The Township of Zone v. McDowell

The Township of Zone v. McDowell

Ministerial confirmation of the McCubbin survey under s.13(4) of the Surveys Act is final and conclusive and fixes the permanent boundary; s.478 of the Municipal Act could not be invoked to defeat that result because the road had been opened long before the statutory provision and the statutory prerequisites for...

Source-derived case information.

Citation
(1921) 62 SCR 360
Parties
Appellant/defendant: Township of Zone; Respondent/plaintiff: John B. McDowell
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
11 October 1921
Procedural Posture
Appeal to Supreme Court of Canada / On Appeal From the Appellate Division of the Supreme Court of Ontario; Judgment at Trial and Appellate Division Affirmed
Outcome
Appeal dismissed; judgment of Appellate Division affirmed.
Legal Topics
Road Allowance, Highway Boundaries, Survey Confirmation, Expropriation, Statutory Finality
Source Language
english
Municipal Law Property Law Administrative Law Road Allowance Highway Boundaries Survey Confirmation Expropriation Statutory Finality

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Parties

Township of Zone

Appellant/defendant

John B. McDowell

Respondent/plaintiff

Procedural Posture

Appeal to Supreme Court of Canada / On Appeal From the Appellate Division of the Supreme Court of Ontario; Judgment at Trial and Appellate Division Affirmed

Legal Issues

  1. 1 Whether the Minister's confirmation of a survey under s.13(4) of the Surveys Act is final and conclusive and fixes boundary lines
  2. 2 Whether s.478 of the Municipal Act can be invoked by a municipality to deem privately held land part of a highway where the road was opened prior to the statutory provision
  3. 3 Whether land between farm fences or the actual travelled/graduated way constitutes the highway for purposes of municipal claims under s.478

Ratio Decidendi

Ministerial confirmation of the McCubbin survey under s.13(4) of the Surveys Act is final and conclusive and fixes the permanent boundary; s.478 of the Municipal Act could not be invoked to defeat that result because the road had been opened long before the statutory provision and the statutory prerequisites for s.478 were not satisfied; therefore the municipality cannot reclaim the land and the trial and Appellate Division judgments in favour of the respondent are affirmed.

Court Disposition

Appeal dismissed; judgment of Appellate Division affirmed.

Orders

  • Permanent injunction restraining appellants, their servants, workmen and agents from trespassing upon respondent’s lands and from tearing down or removing respondent’s fences
  • Reference to local master to assess respondent’s damages and order that appellants pay the damages so found