



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Morrison v. Van Den Tillaart,









2013 BCCA 48




Date: 20130128

Docket: CA039687

Between:

Merle Thomas Morrison

Appellant

(Plaintiff)

And

Tony Van Den Tillaart,
Susan Van Den Tillaart, William E. Maddox, and
Andrea Brace as Registrar of the Kamloops and Nelson Land Title Districts

Respondents

(Defendants)




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Harris




On appeal from: 
Supreme Court of British Columbia, February 10, 2012
(
Morrison v. Van Den Tillaart
, Kamloops Registry S44495)

Oral Reasons for Judgment




Counsel for the Appellant:



J.G. Frame





Counsel for the Respondents Tony and Susan Van Den Tillaart:



K.G. Burnham





Place and Date of Hearing:



Vancouver, British
  Columbia

January 28, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2013








[1]

HARRIS J.A.:
This appeal arises out of a dispute about the
correct location of the boundary between two adjacent lots located alongside
the shore of Shuswap Lake. A little background is required to set the issue on
appeal in context.

[2]

The lots were created as Lots B and C by subdivision in 1951. In
rough terms, Lot C lies to the north of Lot B. The lake lies to the
west of the lots. An easement runs across Lot B to the lakeshore and turns
north to reach Lot C, thereby providing access to Lot C.

[3]

There is a cabin on what has generally been understood to be Lot C.
The original cabin predates the subdivision. After subdivision the boundary of
the lots was generally understood to run close by the cabin to its south. The
cabin has been subsequently renovated and enlarged, but not in a way that would
have encroached on Lot B.

[4]

Mr. Morrison bought Lot B in 1993. In 2007, he commissioned
survey work from a surveyor, Mr. Sansom. Mr. Sansom produced a
posting plan based principally on calculations derived from the original
Reference Plan (5558) that had been deposited in the Land Registry Office in
connection with the subdivision (the Lewall Plan). The result of the posting
plan was startling. It concluded that the historical property line, which
previous owners had accepted, was inaccurate and Lot B actually extended 100
feet further to the north, taking in the house and part of the garage of the current
owners of Lot C, the Van Den Tillaarts.

[5]

In response, the Van Den Tillaarts retained a different land
surveyor, Mr. Maddox, to review the Sansom Plan. Mr. Maddox made
extensive investigations, including arranging an on-site meeting with previous
owners. In the course of this meeting, Mr. Maddox was told where the
previous owners believed a surveyors pin had been located. Mr. Maddox was
directed to a specific area very near and south of the cabin. After probing, he
found a square hole the size of a survey pin. He found nearby what he
considered to be an old (certainly pre-1959) survey pin leaning against a tree.
Mr. Maddox found that the pin fitted inside the hole and was satisfied
that the hole was a monument establishing the boundary, even though it was
found where one would not ordinarily expect to find a survey pin.

[6]

Mr. Maddox also concluded that the original Reference Plan contained
glaring errors and was demonstrably inaccurate in many respects.

[7]

As a result of his investigations, Mr. Maddox prepared a new plan
(the Maddox Plan), which, in effect, located the boundary where it has always
been understood to be before the matter was thrown in doubt by the Sansom Plan.
The Maddox Plan was submitted for registration with the Land Title Office. Mr. Sansom,
upon review of the Maddox Plan, declined to defend his own plan and confirmed
that he supported the Maddox Plan. It has not yet been registered, the Surveyor
General concluding the matter should be settled by the court.

[8]

Mr. Morrison refused to accept the Maddox Plan and started the
current action. Mr. and Mrs. Van Den Tillaart filed a
counterclaim alleging that Mr. Morrison had blocked the easement.

[9]

Mr. Justice Dley found as a fact that the Maddox Plan accurately
identified the boundary and dismissed Mr. Morrisons claim. He further
found that Mr. Morrison had blocked the easement and ordered him to clear
it and not interfere with access to Lot C.

[10]

Mr. Morrison appeals against both of these conclusions. He alleges three
errors. First, that the trial judge made a palpable and overriding error in
finding that Mr. Maddox found an original survey monument. Second, in
failing to give effect to the intentions of the original parties to the
subdivision. Third, in placing the onus on Mr. Morrison to show that he
was not blocking the access easement to Lot C.

[11]

Mr. Morrison submits that this case is about whether in British
Columbia the location of a property boundary can be established by longstanding
reputation.  He contends that the trial judge made a palpable and overriding error
in finding that Mr. Maddox had found an original survey monument. He
submits, moreover, that the boundary could not be established by Mr. Maddox
without relying on the Lewall Plan for dimensions and measurements.

[12]

The appellant puts his position that the trial judge made a palpable and
overriding error in finding that Mr. Maddox found the original survey
pinhole near but south of the cabin in paragraphs 59-61 of his factum:

1.

At paragraph 53, the trial judge concluded that:

The critical evidence was the monument,
being the original survey pinhole found near the south-east corner of the cabin.
The location of that pinhole was confirmed by the prior owners. The evidence of
Mr. Fuller is particularly compelling, since he worked on the construction
of the cabin within a year or two of the subdivision being created. He saw the
survey pins which were in the same area as the pinhole found by Mr. Maddox.
Those same pins were seen by Mr. Schmidt.

2.

In the above cited passage, the trial judge conflates three distinct
distances from the cabin to the boundary: a) 2 feet according to Fuller; b)
between 3 and 5 feet according to Schmidt; and c) 5.18 feet according to Maddox.
It is possible that Fuller and Schmidt are referring to the same location when
Schmidt puts the distance at around 3 feet. It is clear that Schmidt and Maddox
are referring to the same distance when Schmidt agrees the Maddoxs placement
of the post (at 5.18 feet) during the onsite meeting. It is however, not
possible that what Fuller saw at 2 feet is the same location as the pinhole
found by Maddox at 5.18 feet. The original post cannot be at two different
locations. It cannot be at both 2 feet and 5.18 feet south of the cabin.

3.

Having accepted Fullers testimony, the only
conclusion open to the trial judge was that the pinhole found by Maddox was not
the original survey pinhole. The trial judges conclusion that the object seen
by Fuller was at the same location as the pinhole found by Maddox is an obvious
(palpable) error.

[13]

I am unable to accept these submissions. The fact that the trial judge
found the evidence of Mr. Fuller to be compelling does not mean that he
must accept every last scintilla of it. The trial judge was well aware of the
inconsistencies in his evidence and dealt with them. At paragraphs 19 and
20 of his reasons, he accepted that Mr. Fuller had seen the survey stakes
(and I emphasize that he saw more than one stake) separating the lots in 1951
and had worked on a renovation of the cabin in 1951 or a very short time later
with his father (who had subdivided the property) and care was taken in the
renovation not to cross the boundary. The judge found that Mr. Fuller was
fully cognizant of the boundary. After noting the inconsistency in his
evidence about whether the boundary was 6 feet or 22 inches from the cabin he
said: While that evidence is not consistent, it is beyond any doubt that the
cabin was clearly within the boundary of Lot C. Whether it was within 22
inches or six feet is not fatal to Mr. Fuller's evidence. There was only
one cabin on Lot C and while it was close to the boundary line, it most
certainly was not some 100 feet onto Lot B.

[14]

In my view, that finding is unassailable on appeal. Standing alone it is
sufficient to support the dismissal of the action. If it were the only evidence
of where the boundary line was, the trial judge would have been entitled to
accept it. Whatever uncertainty may remain about the direction or location of
the boundary, the boundary did not take in 100 feet of Lot C.

[15]

Moreover, I do not think that the judge made any error in finding that
the hole found by Mr. Maddox was an original survey pinhole and,
accordingly, a monument on which he was entitled to rely to locate the
boundary. The trial judge is entitled to weigh the evidence. It is apparent
that he was aware of the different estimates given by various previous owners
of where they thought the survey pin near the cabin should be found. The
discrepancies in the various estimates are, in the scheme of things, trivial. The
previous owners present were able to direct Mr. Maddox to an area about a
metre square. There he found a hole the size of a survey pin. Nearby, he found
an old survey pin of a type used before 1959. The pin fit in the hole. Mr. Maddox
concluded that he had found a monument setting out the location of the boundary
near the corner of the cabin.

[16]

The trial judge accepted Mr. Maddoxs opinion, as he was entitled
to do. The trial judge accepted that Mr. Maddox had provided the only
reliable evidence of the boundarys location. He found that Mr. Maddox had
conducted a thorough investigation using the hierarchy of evidence generally
recognized by surveyors, that his conclusions were supported by Mr. Sansom
who had reviewed his work, and that there was no evidence to the contrary. It
is unnecessary to detail the deficiencies in the Lewall Plan that were
catalogued by the trial judge. He was entitled to reject it as unreliable and
inaccurate, as Mr. Maddox had done. The evidence demonstrates it was rife
with errors. I am satisfied that among the many errors are ones that are
material to the specific issues before the trial judge.

[17]

I do not accept the characterization of this case as being about whether
a boundary can be established by long standing reputation. The critical
findings were that the pinhole was a survey monument marking the boundary. Other
evidence supported that conclusion. That evidence included the evidence of
previous owners who had seen the survey pins marking a boundary to the south of
the cabin. The finding that the pinhole found by Mr. Maddox was in the
same area as the pins seen by Mr. Fuller and prior owners is unassailable.
This is not a matter of reputation, it is a finding based on historic evidence
about the location of survey pins that was later corroborated by findings in
the field.

[18]

It is worthwhile to stress too that other evidence supported the
location of the boundary where Mr. Maddox placed it. Other survey pins had
existed and been seen by previous owners. They had been lost likely because of
road building as the trial judge found, or as a result of flooding and work at
the lake shore. For example, Mr. Schmidt bought Lot C in 1980. His
evidence was that when he bought the lot there were two survey pins marking the
boundary, one close to the cabin and one by the lake. Mr. Schmidt built a
retaining wall at the lake to line up with the lakeshore pin (which was
subsequently lost). Mr. Warren, who next owned the property, replaced the
retaining wall built by Mr. Schmidt with the wall that currently exists. In
doing so he relied on the end of Mr. Schmidts wall and eye-balled the
boundary. In my view, this evidence establishes features that are probative of
the location of the boundary, likely constitute the best evidence available in
the circumstances, and do not turn on reputation because the retaining wall
ended where the survey pin had been. This evidence also explains why it was not
necessary for Mr. Maddox to rely on anything that was inherently
unreliable in the Lewall Plan.

[19]

I am satisfied that the trial judge did not make any palpable and
overriding error in his findings of fact. To the contrary, his findings are
amply supported by the evidence.

[20]

The trial judge accepted that Mr. Maddox had relied on the
hierarchy of evidence used by surveyors and endorsed by the courts to locate
boundaries. That hierarchy is 1) natural boundaries; 2) original
monuments; 3) fences or possession that can reasonably be related back to the
time of the original survey; and 4) measurements. In this case there is no
helpful evidence of natural boundaries. There is evidence of original monuments
upon which both Mr. Maddox and the trial judge were entitled to rely. Similarly,
there is evidence of fences and possession that can reasonably be related back
to the time of the original survey. This evidence includes retaining walls and
the price at which the lots were transferred shortly after subdivision.

[21]

The appellant argues the trial judge should have relied on the
measurements in the Lewall Plan as the best evidence of where the boundaries
lie, and made a palpable and overriding error in not doing so. I disagree. Not
only do measurements rank behind the other categories of evidence relied on by
Mr. Maddox and the court, the trial judge went further and found as a fact
that the measurements in the Lewall Plan were incorrect. I accept the
respondents submission that to rely on the measurements in the Lewall Plan
would be to implicitly overturn a finding of fact that is in my view amply
supported by the evidence.

[22]

Similarly, I am unable to give effect to the argument that the trial
judge failed to give effect to the intentions of the parties. This argument is
based on the proposition that the parties must have intended what could be
derived from the Lewall Plan since the original parties to the subdivision
signed it. But it was demonstrated beyond any doubt at trial that the Lewall
Plan was riddled with error. There was no evidence of what the original owner
who received Lot B intended (beyond signing the Plan), except that the
subdivision helped resolve the consequences of his failing to purchase the
entire parcel. He sold Lot B almost immediately and never visited it. So
far as I can see the only reliable evidence of intention is that Mr. Fullers
father, who subdivided the property, intended to keep Lot C with the cabin
on it, so his family could live there, as they did later.

[23]

Finally, I am unable to detect any error in the order made by the trial
judge requiring Mr. Morrison to clear the blocked access to Lot C.

[24]

Mr. Morrison argues that the road used to access Lot C along
the lakeshore is not within the easement shown on the Sansom Plan which is
derived in turn from the Lewall Plan. It followed he said that the obstructions
he placed on the road to block access do not fall within the easement. He
argues that the trial judge placed the onus on him to show that he was not
blocking the easement, but, in any event, the evidence shows that the roadway
strays from the registered easement. The explanation offered for how this came
about is that the shoreline likely eroded as a result of flooding and the
easement runs on the shore of the lake itself or in the water.

[25]

The trial judge found that Mr. Morrison had blocked access along
the road. That fact is beyond dispute. The relevant easement was modified in
2005 when time restrictions on the then existing easement were removed. There
is nothing to suggest any intention to change the location of the easement. The
easement is shown on Plan 5558 (the measurements on which the trial judge found
to be incorrect). As the trial judge noted, the easement is shown as a line
running from the railway crossing, though Lot B, to the lakeshore and then
turning on a right angle to Lot C. It is described as All that portion of
the transferors land which is 20 feet wide more or less as shown outlined in
green on Plan 5558.

[26]

The trial judge must be taken to have approached his conclusions on the
basis that he could not rely on the Lewall Plan to locate the easement. It will
be recalled that even Mr. Sansom did not defend his own plan. Quite apart
from the problem with its measurements, the easement as shown on the Lewall Plan
does not line up with the private crossing of the railway tracks.

[27]

The trial judge found that there was no reliable evidence that the
lakeshore had eroded alongside the easement since 2005. It appears that the
evidence would also support the conclusion that the shoreline was not eroded as
a result of earlier flooding, because steps were taken to build up the land to
protect it from erosion. Both Mr. Fuller and Mr. Schmidt gave
evidence to that effect. In my opinion there is no reliable basis in the
evidence to conclude that the easement now lies partially on the beach or in
the lake.

[28]

I accept the respondents submission that the intention of the owners
was to create an easement entering Lot B from the private crossing,
running to the lakeshore and turning along the lakeshore towards Lot C. In
the absence of any reliable evidence that the land area had shrunk by erosion,
the best evidence of the location of the easement is the road which has always
been used to reach Lot C. Within the hierarchy of evidence, the course
travelled by the owners from the time of the subdivision is evidence of fences
or possession reasonably related to the time of the original survey. Certainly,
measurements, in this case, are of little or no probative value.

[29]

In my view, the trial judge was entitled to find that there was a lawful
easement in place, to locate it as he did, and to conclude that Mr. Morrison
had blocked it.

[30]

I would not accede any of the grounds advanced on appeal. I would
dismiss the appeal.

[31]

NEWBURY J.A.:
I agree.

[32]

LOWRY J.A.:
I agree.

[33]

NEWBURY J.A.:
The appeal is dismissed.

The Honourable Mr. Justice Harris


