I read the Halliday versus Nicholson case and the follow-up articles with some interest because boundaries and boundary law are the main reasons I wanted to take this course. I grew up in a very rural area where boundaries between lots of cleared land are marked almost exclusively with fences. These fences were constructed long before I was born but everyone recognizes them as being “conventional lines”.[1] Original monuments no longer exist. My father and his adjacent neighbour to the west had an on-going “discussion” about whether the fence between their properties actually represented the true property line. My father’s position was always that the neighbour should engage a surveyor and they would share the costs of a survey. This was never done and both properties were inherited by elder sons and the argument has come up again. I am not aware of the neighbour’s reasons for not trusting the fence as the property line.
Without going into too much detail, 2 woodlots became the subject of a dispute over the boundary separating the properties. There was a fence on the properties and it had been assumed that it represented the line between the two. In 1992 the owner of Lot 23 (Serre) hired land surveyor Halliday to survey the property. Halliday concluded that the fence did not represent the property line and ran a new boundary line based on calculations from the northern road allowance. Halliday’s survey resulted in both lots being 100 acres. The fence would have resulted in Serre’s lot being 87 acres and Little’s (owner of Lot 22) lot being 113 acres. Another surveyor Dorland supported Halliday’s conclusion on the basis that the fence was “not in keeping with the rectilinear nature of other fences in the area” and “the fence was not built to mark the boundary” (Nicholson vs Halliday, 2005, paragraph 9).
Little hired land surveyor Nicholson who concluded that the fence did represent the boundary saying the southern end of the fence was coincident with Halliday’s line. It is interesting that all three surveyors supported the positions of the owners who hired them and who paid their fees. Application was made under the Boundaries Act to the Director of Titles to settle the matter. The Director of Titles ruled in favour of Nicholson that the fence was indeed the line because, in the absence of natural boundaries and original monuments, a fence that “can be reasonably related back to the time of the original survey” (Nicholson vs Halliday, 2005, paragraph 28) can be used as the boundary. In the hierarchy of evidence used to re-establish a boundary, measurement should be the last resort. The Halliday line was based on measurement after rejecting the fence as evidence The central question in this case is whether the fence could indeed be related back to the time of the original survey. In my opinion, there was no original survey – only a road allowance on the northern end of the lots. In my opinion, Halliday was correct in rejecting the fence and recalculating the boundary line based on the northern road allowance. An appeal was made to the Divisional Court who reversed the Director’s decision. A further appeal was made to the Ontario Court of Appeal who ruled to reinstate the Director’s decision and awarded costs of $5,000 to the loser. The results are summarized in Table 1.
Table 1
Summary of the Results of the Case
| Lot # | 23 | 22 |
| Owner | Serre | Little |
| Original acreage | 100 acres | 100 acres |
| Surveyor | Halliday and Dorland | Nicholson |
| Conclusion | Fence is not the boundary | Fence is the boundary |
| Acreage if fence is the boundary | 87 | 113 |
| Decision of Director of Titles | Fence is the boundary | |
| Decision of Div. Court | Fence is not the boundary | |
| Decision of Court of Appeal | Fence is the boundary | |
| Acreage based on final decision | 87 | 113 |
| Costs | $5,000 + GST |
The case is an interesting one in that qualified surveyors reached different conclusions based on different interpretations of the evidence. There were 3 follow-up articles written to comment on this case. At least 2 of the authors were lawyers (Stocker and Rijcke). Their comments relate primarily to legal aspects of the case. In my opinion, this case should have been settled by the Director of Titles who should have ruled in favour of Halliday. How does this case and comments relate to my brother’s situation and his dispute with his neighbour? In that circumstance, based on what I now know about boundaries, the surveyor would conclude that the existing fence between the properties must be considered as the boundary
[1] Wesley, W. F., Swanby, T. C., Usher, W .D., & Hittel, A. (2001). Cadastral Studies Lecture Notes (2nd edition). Department of Geomatics Engineering, The University of Calgary, Calgary, Alberta.
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