PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION FRANK O HANLEY. DOUG WHEATLEY and GULF SURVEYS LTD.

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1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: O Hanley v. Wheatley & Gulf Surveys Date: PESCTD 20 Docket:S1-SC Registry: Charlottetown BETWEEN: FRANK O HANLEY Plaintiff AND: DOUG WHEATLEY and GULF SURVEYS LTD. Defendants Before: The Honourable Justice David H. Jenkins Appearances: Plaintiff appearing on his own behalf Peter C. Ghiz representing Doug Wheatley T. Daniel Tweel representing Gulf Surveys Ltd. Places and Dates of Trial - Charlottetown, Prince Edward Island January 25-27, 2005 Place and Date of Decision - Charlottetown, Prince Edward Island March 11, 2005

2 Citation: O Hanley v. Wheatley & Gulf Surveys Ltd PESCTD 20 S1-FC BETWEEN: AND: FRANK O HANLEY DOUG WHEATLEY and GULF SURVEYS LTD. Prince Edward Island Supreme Court - Trial Division Before: Jenkins J. Dates Trial Heard: Jan , 2005 Date of Decision: March 11, 2005 (18 pages) Plaintiff Defendant REAL PROPERTY: Boundaries. STATUTES CONSIDERED: The Land Surveyors Act, R.S.P.E.I. 1988, Cap. L-3; Roads Act, R.S.P.E.I. 1988, Cap. R-15 RULE CONSIDERED: Province of Prince Edward Island Rules of Civil Procedure, Rules 74; 74.22; 1.02; Small Claims Court Rules, Rules 19; 19.01; 19.02; 19.03; CASES CONSIDERED: Doyle v. MacDonald, [1999] P.E.I.J. No. 57, (PEISCTD); Naugle v. Naugle (1970), 2 N.S.R. (2d) 309 (N.S.C.A.) TEXTS CONSIDERED: Archibald Brown. Hunt s Boundaries and Fences, 4 th ed. (Butterworth & Co., 1896) at ; Canadian Council of Land Surveyors. Survey Law in Canada, (Toronto: Carswell, 1989); Oosterhoff and Rayner. Anger and Honsberger Real Property, 2 nd ed. (Ontario: Canada Law Book Inc., 1985) at Chap. 19. Appearances: Plaintiff appearing on his own behalf Peter C. Ghiz representing Doug Wheatley T. Daniel Tweel representing Gulf Surveys Ltd.

3 Jenkins J.: [1] The claims in this proceeding arise from a boundary dispute. The disputed boundary line [2] The land in issue is riparian or waterfront property along the Gulf of St. Lawrence just west of the beautiful fishing village of Naufrage in Kings County. The property in the area of the disputed boundary was traditionally farmland, and in recent years has become increasingly attractive and valuable as waterfront recreation property. [3] The disputed boundary line and underlying property is shown on the attached survey plan Gulf Surveys Ltd. Plan of Survey Showing 1 Lot Subdivision of property of Elizabeth Greenlee, surveyed September 20, 1999, drawn September 21, 1999, and marked drawing number 5537 (the Gulf Surveys plan ). [4] The surveyor, Albert J. Wright, P.E.I.L.S., placed survey markers, identified on the Gulf Surveys plan as numbers 44 and 45, to show the common boundary between the O Hanley and Greenlee properties running as shown on the plan approximately north-northwest from the north side of the Old North Shore Road to the cape of the land and continuing on to the ordinary high water mark of the Gulf of St. Lawrence. Gulf Surveys Ltd. intended this line to be the continuation of the west boundary of the O Hanley farm and the east boundary of the MacKinnon farm and Greenlee parcel. Theory of Plaintiff s case [5] Frank O Hanley disputes the boundary location set by Gulf Surveys Ltd. He contends the boundary should be 30 feet to the west of the line marked by the Gulf Surveys pins. In Mr. O Hanley s submission, this line would run parallel to the wrongly placed Gulf Surveys line, in a line in extension of the west boundary of the MacKinnon Road, or Old Store Road, which is the road marked on the Gulf Surveys plan as Travelled Roadway that runs between the Old North Shore Road and the Naufrage Road. The boundary would be in common with the east boundary of the plot of land conveyed by Greenlee to Sprathoff in 1979, which is shown on the Gulf Surveys plan as running between survey markers #11 and #14. [6] The O Hanley farm was formerly the Bryan farm. The Greenlee property is part of what was formerly the MacKinnon farm. The Bryan and MacKinnon farms share a common boundary. Title of the farms is not in issue.

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5 Page: 3 [7] From the Naufrage bridge southward, the Bryan and MacKinnon farms were historically divided by MacKinnon Road. In the late nineteenth century, MacKinnon Road stopped at the North Shore Road near the Bridge. As Mr. O Hanley stated, people wanted a shortcut back and forth between Cow River and Naufrage instead of having to follow the North Shore Road and up around, so they developed a path north from the North Shore Road near the boundary between the Bryan and MacKinnon farms up to the Old North Shore Road. [8] This historical account is supported by the plans in the archives. A plan dated 1876 shows a road running north/south between the MacKinnon and Bryan farms. This road intersects another road at the Naufrage Bridge. The road does not continue north from there, although a line drawn in 1876 by the planner running from the Naufrage Bridge to the cape is drawn heavier than the boundary lines between the other farm properties shown on that plan. [9] John Bryan transferred the Bryan farm to his son Joseph Bryan by will dated 1890 and probated in The will contains a metes and bounds description of the Bryan farm, which shows it to be bounded on the north by the Gulf of St. Lawrence and on the west by land in possession of John MacKinnon. [10] By a deed made and registered in 1919, Elizabeth Bryan conveyed a strip of land out of the Bryan farm to the King. This conveyance appears to have been for the purpose of providing for a northerly extension of the MacKinnon Road. The description of that parcel is important in this case. It states: Commencing at a point on the north side of the North Side Road where it is intersected by the division line between the properties of Angus J. MacKinnon and Elizabeth Bryan thence northwardly along the aforesaid division line a distance of 2400 feet or to the south boundary of the old North Shore Road thence eastwardly a distance of 30 feet, thence southwardly by a line parallel to the aforesaid division line and distant therefrom 30 feet to the north boundary of the north Side Road, thence westwardly 30 feet to place of commencement. [11] 1926 Meecham s Atlas shows the MacKinnon Road running in a straight line between the MacKinnon and Bryan farms to the Old North Shore Road, but not continuing north beyond the Old North Shore Road to the cape. [12] In later years, the Department of Highways relocated some of the roads in the area. As a result, the 30 foot strip of land conveyed by Bryan to the King in 1919 now has three components. The bottom or south portion forms part of Highway 16. The middle portion is abandoned, because the spur road off Highway 16 to Naufrage

6 Page: 4 intersects it further north. The top or north portion is now within the Old North Shore Road shown on the Gulf Survey plan as Travelled Roadway. That north portion is central to this case. [13] The theory of Frank O Hanley s case arises from this historical perspective, and is twofold. He asserts that the road marked Travelled Roadway on the Gulf Surveys plan should be comprised only of the land conveyed by Elizabeth Bryan to the King, which is 30 feet wide, and which all comes out of the Bryan, now O Hanley, farm. His companion assertion is that his father before him and then he farmed the Bryan farm to what the O Hanleys and neighbouring farm owners from time to time intended to be the common boundary, and that the O Hanleys farmed and fenced the particular property in dispute from 1949 to He asserts that his fence formed the boundary of the MacKinnon farm running north from the Old North Shore Road to the cape. This line if continued south would run along the west boundary of the right-of-way or Travelled Roadway. Mr. O Hanley contends that the line placed by Gulf Surveys Ltd. is wrong. He submits that the source of the surveyor s mistake was making a wrong assumption that the MacKinnon Road or Travelled Roadway continued to run north beyond the Old North Shore Road to the cape. He says that the surveyors who followed the Island Surveys Ltd. plan in 1979, including Mr. Wright in making the Gulf Surveys plan, perpetrated the same error when locating other boundaries and parcels of land. [14] From 1958 until 1970 there was a shale borrow pit on the north portion of the MacKinnon farm near the cape. The trucks and machinery entered the borrow pit from the Old North Shore Road. [15] In 1999 Douglas and Bonita Wheatley purchased part of the waterfront property from the Greenlee portion of the MacKinnon farm. The land conveyed by Greenlee to Wheatley is shown as parcel A on the Gulf Surveys plan. It includes most of the abandoned shale pit and land which serves as an access way north from the Old North Shore Road into the main waterfront property. The Wheatley deed contains a survey description of parcel A in the Gulf Surveys plan. It is the easternmost 30 feet of the property conveyed by Greenlee to Wheatleys that is claimed by Mr. O Hanley. [16] The Gulf Surveys plan shows a Travelled Roadway and Walkway Path within the parcel conveyed by Greenlee to Wheatleys. A path that looks like the same path can be seen on the property orthophotos taken in 1958, 1970, and [17] According to Mr. O Hanley, that path is not the path that went to the borrow pit. He says that the path to the borrow pit ran diagonally across the MacKinnon farm, and that path was gone shortly after the trucks stopped using it. The 1974

7 Page: 5 orthophoto included in evidence with the Surveyor s Report shows a diagonal path starting from the southeast corner of the Greenlee property and the southwest corner of the O Hanley property at the north side of the Old North Shore Road and running diagonally northwest across the Greenlee property to and from the borrow pit, and traversing over what is now the access out of the Greenlee waterfront property east of a plot identified as Sprathoff property. Mr. O Hanley testified on cross-examination that the Travelled Roadway in dispute was formed from 1973 onward when Mr. Carota began farming the land and he, Mr. O Hanley, would fill in the furrows. [18] The Sprathoff property shown on the Gulf Surveys plan was created out of the Greenlee property in The Sprathoff property is a surveyed parcel of land. The description in the deed is a survey description in accordance with a survey prepared at that time by Island Surveys Ltd., as Drawing No It is as shown on the Gulf Surveys plan. Around 1982, a building was constructed on the Sprathoff property. Mr. O Hanley says that this garage building encroaches two or three feet over the boundary line, which was tolerated and never considered a problem. He testified that he always farmed to the boundary of the Sprathoff property. Theory of Defendants case [19] Both Defendants rely upon the evidence of the surveyor. [20] Gulf Surveys Ltd. is a defendant in this action. In any event, its principal, Albert J. Wright, P.E.I.L.S. is a professional land surveyor who holds a Certificate of Qualification as a Prince Edward Island Land Surveyor effective Because he was called to give evidence on behalf of the Defendant Wheatley, Mr. Wright was qualified to give opinion evidence as a professional land surveyor, notwithstanding that he has a personal interest in the proceedings. [21] The Land Surveyors Act, R.S.P.E.I. 1988, Cap. L-3 constitutes the Association of Prince Edward Island Land Surveyors. Membership in the Association is a condition of being an accredited Land Surveyor and carrying on a public practice of land surveying in this Province. The Association Board grants a Certificate of Qualification to a P.E.I. Land Surveyor. [22] A P.E.I. Land Surveyor has statutory authority regarding land survey matters. He can examine witnesses, enter upon or pass over property, subpoena persons who he has reason to believe possess important information, and through the Prothonotary command the appearance of such persons in the Supreme Court to give evidence before a judge.

8 Page: 6 [23] Mr. Wheatley is entitled to have the testimony of the witness upon whose opinion he says he relied in purchasing his property and defending this action. Mr. Wright s personal interest in the outcome could go to weight to be attached to his evidence. I have considered his evidence with that caution in mind. [24] Mr. Wright testified that in his opinion the disputed boundary as shown on the Gulf Surveys plan is in the right location. That plan was prepared under his direction in September Subsequent to this proceeding having been commenced by Mr. O Hanley, Mr. Wright prepared a comprehensive Surveyor s Report which was provided to the other parties and eventually became Exhibit D-4 at trial. Mr. Wright explained the basis of his opinion and determination of the boundary line based on four propositions, each one which supports the others, and he also responded to Mr. O Hanley s theory and evidence. [25] Beth Greenlee of Ohio retained Gulf Surveys Ltd. to survey Parcel A shown on the Gulf Surveys plan in The east boundary of Parcel A was to be the west boundary of acreage owned by Frank O Hanley or the MacKinnon Road if the MacKinnon Road extended to the shore of the Gulf of St. Lawrence from the Old North Shore Road (Queens Road). Albert Wright was responsible for the survey. [26] Gulf Surveys Ltd. did a complete survey. They established a control traverse through P.E.I. Grid Monuments, searched for and located survey markers from previous surveys, located roadways, fences, dykes, the borrow pit, MacKinnon Road leading into the property, and also the lane or Travelled Path from the north side of the Old North Shore Road to the shore. [27] Mr. Wright paid special attention to the O Hanley boundary. It was apparent to him that there was no evidence of a fence there when he had done previous surveys, and the aerial photography for the year 1935 revealed that there was a fence line at that time. So Gulf Surveys Ltd. scanned the area with a metal locator and they looked for a rise or a dyke on the topography to see if they could find bits of the old wire fence. None of that was found. They found paths and wheel tracks crossing the locus which gave the impression that other people crossing the property may have acquired prescriptive easements, but that did not deter the boundary survey. They located the shale pit on the locus and extending west from there. They concluded there was no physical evidence of a fence or dyke to the east to indicate a boundary. The only feature in this area was a travelled lane leading to the pit on the west and to a travelled path along the top of the bank on the O Hanley property. [28] Mr. Wright explained that when he surveyed the Sprathoff lot in 1979, he had believed that maybe the travelled path was an extension north of the MacKinnon Road which might be public to the shore. In anticipation, he had kept the Sprathoff

9 Page: 7 boundary back 33 feet from the curved centre of the lane. The curve in the lane made him doubt that the MacKinnon Road indeed extended north beyond the Old North Shore Road. Mr. Wright was satisfied, in any event, that the lane was in the same place in 1979 and in [29] Mr. Wright conducted research to ascertain the status of MacKinnon Road. He found and analysed the deeds in the chains in title, and he considered the 1880 Meacham s Atlas, the 1926 Cummings Atlas, and related deeds. All the deeds indicate there was a common boundary described as being a road all the way along the depth of both properties to the shore. All the other information supports the view that the public road did not extend north beyond the Old North Shore Road to the shore. [30] Upon completion of the initial field work, Mr. Wright sought out Mr. O Hanley. According to Mr. Wright, they stood together on the Old North Shore Road. Mr. O Hanley stated he could not indicate the exact location of the boundary, but he believed it to be somewhere in the vicinity of where the travelled lane is now. Mr. Wright then surmised that since the lane was curved and the boundary was straight, portions of the travelled lane would be on both properties. Mr. Wright completed his computations. [31] The four related reasons which Mr. Wright cited as supporting his conclusion may be summarized: 1. Physical evidence such as fences, dykes, hedges, bars and markers takes precedence over calls in a deed, particularly if it is there for a long time and adhered to by adjoining owners. Here, there was no such classical evidence. The deeds for both adjoining properties called MacKinnon Road their boundary. The road must then be taken as physical evidence of the boundary even though it did not exist between the Old North Shore Road and the shore. The centre line extension of the straight portion of the MacKinnon Road between the Harbour Road and the Old North Shore Road was taken as the boundary as it was closest to the boundary in question. That line should be straight for miles, and all the maps and aerial photos reveal an imperfect straight line. Boundary markers were found 33 feet from the center of the paved portion of MacKinnon Road marking three surveyed lots. Those markers were accepted as being the west boundary of MacKinnon Road. Mr. Wright considered the argument against this conclusion in the Report on Litigation of George MacMillan, Deputy Prothonotary on behalf of Frank O Hanley dated June 30, That submission is based on the proposition that MacKinnon Road was 30 feet wide and was never widened. At the time

10 Page: 8 of the deed from Bryan to the King, public roads were 60 feet wide. Mr. Wright then raised the contention, without a conclusion, that the Province also acquired 30 feet from the MacKinnon property, but for whatever reason, no transfer in title was ever registered. Both in his Report on Litigation and at trial, Mr. Wright referred to the provisions and operation of the Roads Act, R.S.P.E.I. 1988, Cap. R Typical P.E.I. farm sizes and widths corroborated the contention in reason number one. Typically, in areas such as the North Shore where one boundary is riparian, the depths may vary somewhat but the widths remain the same at five chains for a 50 acre farm and 10 chains for a 100 acre farm. The O Hanley farm was typical. Mr. Wright found the eastern boundary of the O Hanley property, which was at one time marked by a line page wire fence and was the subject of previous surveys. The width of the O Hanley property to the proposed Gulf Surveys markers aligned with the center of the MacKinnon Road. Mr. Wright conducted the same exercise regarding the MacKinnon farm, which was also found to be typical. The east boundary of the MacKinnon farm was found to be the center line of the MacKinnon Road. Mr. Wright considered these conclusions to be probative, not just coincidence. 3. The photographic evidence is instructive. Recalling that the 1935 aerial photo showed a line fence separating the O Hanley and MacKinnon farms in 1935, Mr. Wright observed that the 1958 aerial photo shows even more clearly that there is a fence, and also a road or lane west of it. The road or lane is on the MacKinnon/Greenlee property leading to the shore, then west along the top of the bank and then onto the shore. Mr. Wright formed the belief that this lane is part of the same lane that is there today and shown on the Gulf Surveys plan. That belief is supported by the visual evidence in the orthophotos made in 1970 and In the year 2000 photography, vegetation patterns not visible to the eye at ground level became apparent revealing the location of the former fence line. 4. The historical documents support this conclusion. Various plans and atlases reveal the boundary of the two farms to be the center of MacKinnon Road. Placing roads with adjoining owners both contributing an equal amount is a tradition on P.E.I. A notable feature is that when one arrives at a T intersection in rural P.E.I., a line fence can be seen on the opposite side of the road. Mr. Wright testified that on rural boundary questions, after the disappearance of a line fence it is not unusual for there to be confusion as to where the fence line was located.

11 Page: 9 [32] Mr. Wright also addressed particular points of Mr. O Hanley s testimony:! Mr. O Hanley is a successor in title to Elizabeth Bryan. The 1919 conveyance from Bryan to the King was 30 feet wide. Point number 44 on the Gulf Surveys plan is exactly 30 feet west of the east boundary of the strip of land conveyed by Bryan to the King.! The line running between Gulf Survey markers 44 and 45 is the extension of the middle of the road Travelled Roadway which runs between the Naufrage Road and the Old North Shore Road, runs 160/-17'-00", and is parallel to the east boundary of the Byrne to the King conveyance.! The shale borrow pit is entirely on the Greenlee property. Mr. O Hanley testified that trucks did not pass over his land. Consistent with that, the Gulf Surveys plan shows the Travelled Roadway in dispute to be within the Greenlee property. The same path or roadway was there in 1958 and 2000, except that earlier it was straight and subsequently it was curved.! When Mr. Wright met with Mr. O Hanley, and they stood together on the Old North Shore Road and looked north, Mr. O Hanley said he could not say exactly where the boundary was, but suggested that portions of the lane were on both properties. Following independent checks and calculations, Gulf Surveys Ltd. placed the survey pin number 44 a day or two later. It is intended to be located on the north boundary of the Old North Shore Road at the west boundary of the O Hanley property. When he met with Mr. O Hanley, Mr. Wright did not get the impression that there would be a problem if he placed the survey markers where he did.! Mr. Wright refuted Mr. O Hanley s evidence that they met several times. Mr. Wright surmised that Mr. O Hanley is confusing him with other surveyors Potter or Morris who also worked in the area around and since 1999.! Mr. Wright had personal knowledge of the Island Surveys Ltd. plan in 1979 which shows the Sprathoff property and which identifies the disputed area as Road to Shore. That strip of land was not farmed in It was rocky based, shale, and built up as land going into a borrow pit would be.! There exists a survey plan of the riparian portion of the O Hanley property from the Harbour Road to the Gulf of St. Lawrence entitled Preliminary Plan of Subdivision of Property Being Conveyed to Mar-Wood Properties Inc.

12 Page: 10 drawing No [author unknown]. This plan shows a reservation of a 30 foot wide strip of land for a right-of-way extending north of the Old Store Road. The proposed right-of-way is bounded on the west by found survey markers these are Gulf Survey markers 44 and 45. A fence constructed by the Defendant Doug Wheatley just west of the disputed boundary line with large posts in the nature of telephone posts and treated lumber is shown on this plan as High Board Fence. The 30 foot wide right-of-way within the O Hanley farm is being excepted out of a proposed transfer of the shore portion of the farm property from Frank O Hanley to a third party.! In 1999, there was no travelled path on the east side of the disputed line. There is a new path there since Law [33] It is long-established and well-settled that there are gradations in the evidence of boundaries, and in that regard, evidence of fences and long usage will trump descriptions in deeds. In 1896, Hunt s Boundaries and Fences, 4 th ed, Chapter XIV, p states this principle. First, the highest regard is to be paid to natural boundaries; next, to lines actually run, and to courses actually marked, at the time of a transaction; thirdly regard is made to lines and courses of adjoining boundaries; and last, regard is made to defined acreages and measurements. That principal has been applied in Prince Edward Island on many occasions, recently in Doyle v. MacDonald, [1999] P.E.I.J. No. 57, (PEISCTD); affirmed on appeal 2001 PESCAD 21. [34] This principle is well-recognized by land surveyors. In the text by Canadian Council of Land Surveyors Survey Law in Canada land surveyors are advised: As between old boundary fences and any survey made after the monuments have disappeared, the fences are by far the best evidence of what the lines of a lot actually are. The authority relied upon in that text is Naugle v. Naugle (1970), 2 N.S.R. (2d) 309 (N.S.C.A.). The surveyor s text explains the rationale. The reasons why adjoining owners of rural lands would normally place a fence along the common boundary rather than anywhere else are plain enough. As a general rule, an old fence should be regarded as valuable evidence of boundary location, only to be set aside when conclusively proved to be unreliable or irrelevant for such purposes. Not all old fences are fence lines. There may be reasons for their placement such as a cattle fence. Ideally, the evidentiary value of a fence will rest upon agreement with evidence from other sources, be it conformity with deed calls or testimony of older residents. There may be a temptation to abandon an old fence when it fails to agree with other evidence; but in Naugle that approach failed where the surveyor was inclined throughout his work to accept survey markers or pins placed by another survey at an earlier time in preference to fences marking the lines.

13 Page: 11 [35] Oosterhoff and Rayner, Anger and Honsberger Real Property (2 nd ed.), Chap. 19 is an extensive statement of the law of boundaries and principle for resolution of boundary disputes. These excerpts are pertinent for this case: BOUNDARIES AND ADJOINING LANDOWNERS BOUNDARIES AND MONUMENTS GENERALLY A boundary is an imaginary line that marks the confines or line of division of two contiguous parcels of land. A boundary point is the extremity of such a line. A boundary line or point may be indicated by monuments, courses, distances, geometric angles, maps, surveys and adjoining lands. A monument, when used in describing land, is any physical object on the ground which helps to define the position of a boundary, corner, point or line. It may be natural or artificial. A monument includes such natural objects as trees, rivers, creeks, springs and mountains, and such artificial objects as a post, stake, peg, stone, mount, pit or other device including pillars, cairns or blazed trees BOUNDARIES FIXED BY AGREEMENT OR ACTS OF PARTIES General Boundaries may be fixed by agreement between two or more adjacent landowners where the boundary is uncertain or in dispute. It may be done by written agreement, assurance, parol agreement or estoppel Assurance The usual method of establishing a boundary is by a metes and bounds description in the deed or deeds or other instrument conveying one or the other or both of the properties concerned. Alternatively, a boundary may be established by reference to a plan Undisturbed Possession A right to a boundary established by an agreement or assurance may be lost by adverse possession, and a new boundary established, if the adverse

14 Page: 12 possession continues for a sufficient length of time to afford a conclusive presumption that the new boundary line is the true one EVIDENCE OF BOUNDARIES AND THE INTERPRETATION OF A DESCRIPTION Description: General Rule As a general rule the description of a boundary in a deed should accord as nearly as possible with the intent of the parties as manifested by the language of the deed, or by the actions of the parties by marking the boundaries on the ground or by having them marked Ambiguity of Description The general rules in the definition of boundaries where there is an ambiguity, or an inconsistent or uncertain description, are as follows: The intention of the parties (which is the controlling consideration) must be ascertained. The whole description must then be looked at fairly in order to see what are the leading words or descriptions and what is the subordinate matter (and for this purpose evidence of extrinsic facts may be considered). Finally, resort is to be had to natural landmarks, artificial monuments, adjacent boundaries, and courses and distances, in that order, but subject to what would appear to be most consistent with the apparent intent of the grantor. Thus, where the boundaries of land conveyed are uncertain, the number of acres which the land is stated to contain may be important, and may be a decisive element in determining what are the true boundaries of the land. But when the boundaries of the lot conveyed are defined in the deed no erroneous statements as to acreage can change such specified boundaries Maps and Plans Where a conveyance describes a property by reference to a plan, the plan or survey is considered as incorporated into the conveyance and becomes just as much a part of the description as would be the case if it were copied into the conveyance or if the data furnished by it were set out in full in a metes and bounds description. Thus, boundaries of lands conveyed as defined by a plan or survey are to be taken as a part of the description.

15 Decision: Page: 13 For a map, plan or survey to be used as a description it must contain all of the elements of a description by metes and bounds with a defined point of commencement and the boundaries tied to that point Boundary Marks The general rule is that monuments, whether they be natural objects or artificial monuments, control courses and distances. Preference is ordinarily given, in the absence of evidence to the contrary, to natural objects over artificial monuments or marks Acts of Ownership Where a boundary is in dispute, or there is a disputed strip or section of land abutting the disputed boundary, evidence of acts of ownership such as fishing, seeking injunctions to restrain trespass, construction of a fence or other acts of parties in establishing or recognizing the boundary intended by the deed are admissible. Occupation, even though recent, is evidence of a boundary. [36] In the absence of a natural boundary, I recognize the preeminence given to a fence line, or previous fence line, and to past usage, which indicates recognition by adjoining landowners of the common boundary. In this case though, at the time the survey was carried out, there was no physical evidence of a present or previous fence line. There is competing evidence regarding the location of the previous fence line. Mr. O Hanley s evidence of the location of a fence and the visual evidence in the aerial photography are different. The 1958 photograph shows a path or way from the Old North Shore Road to the shore to be situate entirely west of the west side of an extension of the MacKinnon Road, and entirely within the Greenlee property. After the Gulf Surveys plan was done, the 2000 aerial photograph showed indicators of a previous fence to have been in accordance with the boundary line established by Gulf Surveys Ltd. [37] I received Mr. O Hanley s evidence as his honest recollection. However, it is not supported by the other evidence, and in the end it is not compelling. Mr. O Hanley s position is contradicted by cogent evidence which conclusively supports the Defendants position. This includes all the physical evidence, and the historical evidence which, when considered together with the physical evidence, puts the deed from Elizabeth Bryan to the King into context. [38] My decision is made upon consideration of all the evidence. This includes the survey evidence. Gulf Surveys Ltd. conducted a full survey, and paid particular

16 Page: 14 attention to the O Hanley/Greenlee boundary. Gulf Surveys Ltd. employed survey methodology and applicable legal principles all appropriate to the circumstances. All of the indicators satisfied Mr. Wright, and I am satisfied too, that the boundary is indeed between points 44 and 45 as shown on the Gulf Surveys plan, and that Mr. O Hanley s contention and evidence regarding the boundary line location is displaced by this evidence. In the context of all the evidence, Mr. Wright s factual evidence as the surveyor on the job, without being supported by opinion, was sufficient for me to reach this conclusion. [39] In the context of the many pieces of evidence present, the most poignant evidence is the aerial photographs. They have a lot of probative value. They appear to illustrate that: (i) in 1958 and in 1970 the MacKinnon Road did not extend north of the Old North Shore Road; (ii) there was no travelled road or path on the O Hanley farm; (iii) the farming activity on the O Hanley farm stopped just short of the east side of that travelled lane; and (iv) the lane or path appears to be located west of a straight line in extension of MacKinnon Road. [40] Many other pieces of evidence contribute to this conclusion. When the plot of lot to Sprathoff was created, Island Surveys Ltd. set the east boundary back from what they then thought was a road to the shore by 66 feet from its east boundary. The conclusion by Gulf Surveys Ltd. that the travelled roadway shown the Gulf Surveys plan drawn in 1999 is the same roadway or path as the one shown on the Island Surveys Ltd. plan in 1979, and that the one shown on the orthophotos in 1958 and 1970 are one in the same, stands up to scrutiny. As mentioned on the orthophotos, the lane or path in question appears to situate west of the extension of the travelled portion of the MacKinnon Road. [41] The 1880 atlas, the 1890 plan, and the 1926 Atlas all support the proposition that the MacKinnon Road south of the Naufrage Bridge ran along the boundary of the Bryan and MacKinnon farms and was taken from both farms. If, as submitted by Mr. O Hanley, the right-of-way north of the bridge up to the Old North Shore Road was only 30 feet wide, then survey marker number 44 is in the right place, because it is 30 feet west from the east boundary of the strip of land conveyed by Elizabeth Bryan to the King. This point would be on the original west boundary of the O Hanley property. If the MacKinnon Road Travelled Roadway is indeed 66 feet wide as shown on the Gulf Surveys plan, then Mr. O Hanley has no basis to claim any land west of the centre line of the old Store Road identified as Travelled Roadway in any event, because only the eastern 30 feet of the roadway came out of the Bryan/O Hanley farm. The western half of the roadway would have come from the MacKinnon farm.

17 Page: 15 [42] I have considered Mr. O Hanley s evidence that he farmed to the boundary of the Sprathoff property. Some caution is to be applied to this particular evidence, because Mr. O Hanley stopped farming many years before the Sprathoff lot was created and more than ten years before the Sprathoff building was built; and there are no remnants of any fence in the area. This evidence, undoubtedly Mr. O Hanley s honest recollection, cannot be relied upon as to the exact boundary location. [43] I have considered Mr. O Hanley s submission that a source of the purported surveyor s error was the surveyors wrong assumption that MacKinnon Road extended north from the Old North Shore Road to the cape. Mr. O Hanley contends this error was compounded by later surveyors following the work of the surveyor who made the wrong assumption in the first place. I am aware that can happen; and it could result in an error, as happened in the Naugle case, supra in Nova Scotia. I am satisfied though that no such error occurred in this case. Earlier surveyors stated they were uncertain regarding the status of the pathway running north from the Old North Shore Road. In any event, the status of the laneway is not determinative or even probative in the circumstances of this case. Indeed, the conclusion that the pathway is on the Greenlee property is consistent with Mr. O Hanley s submission that there was no pathway on his property. Also, in 1979, Island Surveys Ltd. set back the eastern boundary of the Sprathoff property having regard for the path. Regarding this matter, the Gulf Surveys plan in dispute in this proceeding contains this note of endorsement about this matter: Although the deed to Elizabeth Greenlee (Liber 204 Folio 103) indicates her property is bounded on the east by MacKinnons Road records indicate MacKinnons Road only extended as far north as the Naufrage River until 1919 when it was extended north to the south boundary of the Old North Shore Road. This situation is similar to Frank O Hanley s deed (Liber 70 Folio 274) which states his property is bounded on the west by MacKinnons Road. The lane leading north from the Old North Shore Road is not considered to be public as no public funds has been spent on it by the P.E.I. Government. This decision is in compliance with the P.E.I. Dept. of Transportation and Public Works. Mr. Frank O Hanley believes portions of the lane are on both his and Elizabeth Greenlee s property. The Gulf Surveys plan also notes that the lane across the Greenlee property may be subject to prescriptive rights of way. That is not in issue here. Only the common boundary, and not rights of way by prescription over the lane, are in issue in this proceedings. [44] I have also considered the brief evidence on behalf of the Plaintiff of John MacDonald, long-time resident and Jenny McQuaid, sister of Mr. O Hanley. This evidence provides some historical perspective; but it does not meaningfully contribute to determination of the boundary location.

18 Page: 16 proper forum [45] This action is properly brought. A boundary dispute may be settled through an action for trespass: Oosterhoff and Rayner, at topic While Mr. O Hanley s pleadings are unclear, his claim against Mr. Wheatley is for incidental damages of $5,400, which he based on $10 per day, for the period during which the fence posts were on Mr. O Hanley s property from until commencement of the action in December His claim against Gulf Surveys Ltd. is for nominal damages of $1,000 for distress he says he incurred over the whole dispute. What Mr. O Hanley primarily wants from his action is judicial determination that the boundary is where he says and not where Mr. Wright and the other surveyors say it is located. conclusion [46] Mr. O Hanley has not proven that Gulf Surveys Ltd. established the boundary line in the wrong place. He has not proven his contention that the boundary line should be located further west. It follows that it is not shown that Doug Wheatley has placed fence posts on the O Hanley property. The Plaintiff s claims against both Defendants are based on the boundary being wrongfully marked with survey pins on his property. The Plaintiff s claims are dismissed. [47] The Gulf Surveys Ltd. survey is confirmed as having been conducted properly and being accurate in result. Mr. Wheatley cross-claimed against Gulf Surveys Ltd. The cross-claim is dismissed. Gulf Surveys acted for the previous owner, Beth Greenlee, not for the Wheatleys. In the circumstances, it is unnecessary for me to address the question of whether a duty of care ever arose for Gulf Surveys Ltd. toward the Wheatleys. If it did, and that is questionable, it was not breached. Costs [48] Counsel for both Defendants seek costs, and submit that old Rules regarding costs apply to this proceeding because it was commenced before the new Rules came into effect. [49] Rule 74 of the Civil Procedure Rules relating to proceeding in the Small Claims Section of the Supreme Court was amended as of January 1, It is now published as a separate document: Small Claims Court Rules.

19 Page: 17 [50] Under the old Rules, Rule allowed for a successful party to receive filing and service fees, other reasonable charges and expenses as a judge might consider relate directly to the conduct of the proceeding, and costs at 50 percent of the normal taxed amount. [51] Under the new Rules, Rule 19 governs costs. As it would apply to this proceeding: (i) disbursements are recoverable, and (ii) regarding costs, an award is limited to 15 percent of the amount claimed or value of property sought to be recovered, plus up to $50 for preparation and filing of pleadings, unless the court considers it necessary in the interests of justice to penalize a party for unreasonable behaviour in this proceeding. [52] Mr. O Hanley was entitled to commence and pursue his action for trespass and for distress. In the circumstances, he should not at the outset have been too dissuaded by the prospect of costs. Based on his understanding of the deeds and of historical use he had a claim. Once engaged, the defendants had to respond. They had to dispute the claim. Their expenses of pleadings, preparation of the Survey Report, and attendance at settlement and trial proceedings were all necessary steps. In civil cases, there is an expectation that costs will follow the result. This consequence is considerably softened in small claims proceedings. In this case, upon Mr. O Hanley receiving the Survey Report, it seems reasonable to expect that he would have sought advice, and become aware, that his claim was not sufficiently supported, was contrary to the weight of very convincing evidence, and would most likely fail. In these circumstances, both Defendants have a reasonable expectation of compensation for their costs, albeit on the applicable Small Claims scale, at least from the time when the Survey Plan was provided onward through trial. The Survey Plan was filed in the Court on September 27, [53] Under the old Rules, I would award the Defendants their costs on that basis. Defendants costs from September 27, 2004, onward would have been assessed on a partial indemnity basis, then reduced again by half. This is my assessment under the old Rules: Doug Wheatley: Solicitor Ghiz: 40 = $8,400 partial indemnity (@2/3 aggregate) = $5,600 Small Claims rate (@ ½ partial) = $2,800 Add P.S.T. and G.S.T. = 496 $3,296 Disbursements 34 $3,320

20 Page: 18 Gulf Surveys Ltd.: Solicitor Tweel: 27 $225 = $6,075 partial indemnity (@ 2/3 aggregate) = 4,050 Small Claims rate (@ 12 partial) = 2,025 Add P.S.T. and G.S.T. = 358 $2,383 Disbursements: lawyer s 48 Survey Report/G.S.T. 3,064 3,112 $5,495 Mr. O Hanley would thereby be obliged to pay costs to the Defendant, Doug Wheatley, of $3,320 and of the Defendant, Gulf Surveys Ltd., of $5,495. [54] Unfortunately for the Defendants, I cannot award costs to that extent. Even though it was commenced years earlier, the new Small Claims Rules apply to this proceeding. Rule 1.02 of the Civil Procedure Rules governs this determination. Upon applying the new Small Claims Rules, I am not prepared to find the behaviour of Mr. O Hanley in the proceeding as unreasonable. Beyond that, the interests of justice suggest that the Defendants should have the full benefit of Rule 19. Therefore, costs will be allowed under Rules 19.02, 19.03, and as follows: to Defendant Wheatley: (18% of $5,400) =$810 + $50 + $300 + $34= $1,194 plus all applicable taxes; to Defendant Gulf Surveys Ltd. (15% of $1,000) =$150 + $50 + $300 +$2,864 = $3,364 plus all applicable taxes. Counsel for the Defendants should advise Mr. O Hanley of the aggregate costs including applicable taxes. Mr. O Hanley is to pay these costs within 30 days following rendering of this judgment. March 11, 2005 Justice David H. Jenkins