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The court granted an easement for a longstanding deck and carport encroachment, refused removal, and set compensation at $19,429, with limited leave regarding a hydro meter.
The court found the O'Leary deed ambiguous and, applying the hierarchy of evidence, gave primacy to the physical location of the stream as it existed when the Crown conveyed in 1968; it preferred the Beaton survey over the MacKeen survey, found the stream was in its post-highway realignment position and that expropriation events prevented respondents from having a superior chain of title, and therefore granted the Applicants entitlement to a certificate of title under the Quieting Titles Act.
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The trial judge erred in concluding that 'High Water Mark' in Registered Plan 33 unambiguously meant the NCHWL (106.33 ft a.d.); because Plan 33 is latently ambiguous and JLL is shown to have intended to convey the full extent of the title it held, the proper starting point is the water's edge at the time of the 1902 Crown patent and the matter must be remitted to the trial court to determine that historical water edge and the effects, if any, of accretion, erosion or artificial changes, and any resulting riparian rights; the appeal is allowed and the trial orders are set aside.
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The trial judge erred in declaring adverse possession to the entire 50' x 102' parcel because the respondents failed to prove exclusivity and sufficient possessory acts beyond the garden and shrub area; successive possession may be tacked where continuous; a prescriptive right of way was established but is limited to the original path and cannot be relocated to the post-2006 road absent agreement or abandonment.
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The court granted a limited easement over encroaching driveway and patio works, ordered partial removal of a fence and patio, set compensation at $25,000, and made no costs order.
The hedge comprised multiple border trees/shafts jointly occupying both properties; the Defendant had no unilateral right to destroy them and her removal constituted trespass. The Small Claims Court could not reorder title or adjudicate adverse possession but could award damages and costs caused by the trespass; accordingly limited compensatory damages and survey costs were awarded.
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On the balance of competing paper title chains and expert survey evidence, the court found respondent Naugle established clear paper title to the woodlots comprising Block BN based on McIntosh's analysis and abstracts, and the plaintiff failed to prove acts of possession sufficient to extinguish that interest; accordingly the court will quiet title in favour of Naugle for Block BN and grant a certificate to the plaintiff for the remaining lands shown on the Parker plan (excluding Block BN).
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The trial judge's factual findings — that the firebreak was a limited-purpose bulldozer swath not agreed to as a boundary, that the respondents' survey and corroborating evidence were preferred, and that adverse possession was not established — were supported by the evidence and correctly applied the law; appellate interference was not warranted, therefore the appeal is dismissed.
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Appeal dismissed in a dock-access dispute between adjoining lakefront owners. The court upheld findings of no enforceable agreement, no proven easement, and no error on the natural boundary issue.
The court accepted surveyor Rayworth's boundary determination as best supported by the physical evidence (notably blaze 15) and contemporaneous evidence; the bulldozer firebreak was found to be a fire-protection measure, not an agreed boundary; James failed to prove adverse possession because true owners and their agents entered the land periodically, preventing exclusive, continuous possession for the statutory period, and any permissive use was more likely; accordingly the boundary is as per Rayworth and respondents David and Evelyn remain the owners of the disputed strip.
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