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Boundary dispute between ŃĐŸŃĐ”ĐŽĐœĐžĐ” property owners in Victoria: the court held the defendant bears the shortfall, admitted survey evidence, and granted a limited easement with compensation.
La Cour dâappel rejette la demande de prorogation de dĂ©lai de lâappelant, jugeant que lâappel proposĂ© Ă©tait vouĂ© Ă lâĂ©chec et quâaucun intĂ©rĂȘt de la justice ne commandait une prolongation.
The Court of Appeal dismissed an appeal over development permits, holding the City reasonably treated Aquaâs âreturn to Crownâ filing as a taking and relied on avulsion evidence.
Boundary dispute over whether Johnson Creek moved after 1911; the court found the creek changed course and declared the boundary follows the line surveyed by Sansom.
The court balanced encroachment equities under the Property Law Act, granted an easement for Cabin 1, and ordered removal of Cabin 2 on Lot 5.
The Court accepted the expert land surveyor's retracement and methodology (Ryan Survey, April 1, 2019) as reliable and determinative of the boundary; the Ryan Survey's placement of pins and use of historical occupation and prior survey markers reconciled deed calls and onâtheâground indicators; the respondent's competing sketch and challenges did not rebut the expert opinion; respondent has a right of way limited to access (not parking or placing structures) and does not possess title by adverse possession; accordingly the boundary is declared as per the Ryan Survey, encroachments must be remâŠ
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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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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 deeds unambiguously conveyed an unrestricted 66-foot right of way over General M Drive and an 86-foot right of way over Parcel 4E; given that clear grant, the Laamanens are entitled to practical use including reasonable widening, snow removal and access to the Peninsula within the deeded boundaries, and the Clearys' six-month fencing blockade was a substantial unlawful interference; respondents' claims for nuisance/trespass and damages were dismissed as trifling or accidental.
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The court preferred the Plaintiffs' survey evidence (MacKinnon) and the Harvey/MacDonald documentary and local evidence of settled possession; the intended beginning point of the 1946 Donovan deed is at the Harvey marker which places the Donovan western boundary abutting the former Legion/Gunn lot, so no remnant parcel exists; Plaintiffs hold valid title to PID 85154920, entitling them to injunctive relief and trespass remedies, and defeating the Defendants' proprietary estoppel claim.
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