Two recent decisions in Ontario from the Superior Court of Justice have dealt with the concept of adverse possession as it relates to the location of a boundary.
TASK 1 – [5 marks]
In Levy v. Stoller, 2009 CanLII 31603 (ON SC), Justice Henderson refers in paragraph 43 to a location between two properties that must follow a certain stipulated boundary line. In order to better understand the issues in Levy v. Stoller, prepare a sketch that identifies the kind of information you need in order to do what Justice Henderson has ordered. The sketch need not be drawn to professional drafting standards; a simple hand-drawn sketch scanned into an image will do. Explain your rationale – including referring to specific parts of the judgment – that lead you to place the property line in the location you have drawn.
TASK 2 – [5 marks]
Earlier, in Tucker v. Moffatt, 2007 CanLII 57091 (ON SC), Justice Glithero also rendered a decision involving competing claims to a disputed strip that were based on adverse possession. However, his approach was one of needing to deal with a question of mistaken belief and, even then, no one provided him with any kind of a legal description of the parcel that was in dispute. Based on the decision reported in Tucker v. Moffatt, prepare a hand-drawn sketch to illustrate the exact parcel that Justice Glithero requires in order to make a declaration about the relief sought. As before, the sketch need not be drawn to professional standards; a simple hand-drawn sketch scanned into an image will do. Explain your rationale – including referring to specific parts of the judgment – that lead you to place the property line in the location you have drawn.[1]
PART 2
You are hired as a professional land surveyor to survey a piece of property on Lake Huron that is described by your client as being about 150’ x 220’ in size. As part of your initial research, you locate field notes prepared in 1934 by a surveyor who appears to have done a survey for a previous owner. The field notes reveal the following:
Field Note
The cursive writing reads as follows:
Description – Being composed of part of Lot 32, Lake Range, Township of Saugeen –
Commencing at a point at High Water on Westerly limit of said Lot and distant 277’ in a northerly direction from the Westerly angle of sd. Lot;
Thence easterly & ll (parallel) to southerly limit of sd. Lot 220 feet +/- (more or less) to a fence;
Thence northerly ll (parallel) to easterly limit of sd Lot 150 ft. to a fence;
Thence Westerly parallel to southerly boundary of Lot 220 ft to H.W.M. (high water mark) or Westerly limit of sd Lot;
Thence Southerly along H.W.M. 150’ +/- to place of beginning...”
Assuming this is all you uncovered and no further evidence is available before visiting the site:
TASK 3 – [2 marks]
Describe what you will be looking for on the ground when at the site in terms of the 4 kinds of evidence listed in the Hierarchy of Evidence.
TASK 4 – [3 marks]
Identify at least 2 problems with the information in these field notes.
TASK 5 – [5 marks]
Is the record found in these field notes evidence of a “first running” of the property lines or of a “retracement”? Why?
Task 1:
In order to better understand the issues in Levy v. Stoller, a sketch is required to identify the kind of information needed to follow the stipulated boundary line mentioned by Justice Henderson in paragraph 43. The sketch should indicate the location of the boundary line.
Rationale: To determine the location of the property line, specific parts of the judgment can be referred to. For example, paragraph 43 mentions that the boundary line must follow a certain stipulated line. By studying the judgment and any relevant testimony or evidence, it should be possible to identify the specific boundary line described in the case.
Task 2:
In Tucker v. Moffatt, a sketch is needed to illustrate the exact parcel that Justice Glithero requires in order to make a declaration about the relief sought. The sketch should indicate the location of the disputed strip.
Rationale: The specific parts of the judgment referred to in the explanation will help in determining the location of the property line in dispute. By analyzing the judgment and any relevant information provided, it should be possible to visualize and accurately depict the exact parcel that Justice Glithero requires.
Task 3:
On the ground, when at the site, the surveyor will be looking for the following kinds of evidence as listed in the Hierarchy of Evidence:
1. Physical monuments: The surveyor will look for physical markers, such as fences or posts, that can indicate the location of the boundaries described in the field notes. These physical monuments can help confirm or validate the measurements and directions mentioned in the field notes.
2. Adverse possession evidence: The surveyor will look for any signs of adverse possession, such as encroachments or long-standing uses of the land by neighboring property owners. This evidence can help determine if there have been any changes or disputes regarding the property boundaries over time.
3. Survey plans or previous surveys: The surveyor will search for any existing survey plans or records of previous surveys conducted on the property. These plans can provide valuable information about the property boundaries and can be used to validate or compare with the information mentioned in the field notes.
4. Natural boundaries: The surveyor will observe the natural features of the land, such as rivers, trees, or hills, that can be used as natural boundaries. These natural boundaries can help determine the location of the property lines based on the descriptions in the field notes.
Task 4:
Two problems with the information in the field notes can be identified:
1. Lack of precise measurements: The field notes mention approximate measurements such as "220 feet +/-" and "150 feet +/-." This lack of precise measurements can create ambiguity and make it difficult to accurately determine the exact location of the property boundaries.
2. Incomplete description of starting point: The field notes mention that the starting point is at "High Water on Westerly limit of said Lot and distant 277’ in a northerly direction from the Westerly angle of sd. Lot." However, the exact coordinates or references to physical markers are not provided, which can make it challenging to locate the starting point accurately.
Task 5:
The record found in these field notes is evidence of a "retracement" rather than a "first running" of the property lines.
Rationale: The field notes mention references to existing boundaries and specific measurements from those boundaries. This indicates that the surveyor in 1934 was retracing or confirming the existing property lines rather than establishing them for the first time. Additionally, the mention of fences and high water marks suggests that the surveyor was working based on previously established boundaries rather than creating new ones.