There were 2 reports documented for the case I chose. The first one dealt with main issue of the boundary (J.D. Irving Ltd. v. Greer (1993), 135 N.B.R. (2d) 321) and the second dealt with the judge’s consideration of costs (J.D. Irving Ltd. v. Greer (1993), 135 N.B.R. (2d) 337).
The events leading to this case being brought to court are not described explicitly, but one can infer the following:
- although the summary of the case says the case dealt with a boundary dispute, paragraph 1 refers to the case as a trespass action on approximately 40 acres of woodlot claimed to be owned by both the plaintiff (JDI) and the defendant (Greer).
- the judge’s consideration of costs included an estimated value of $6,000 for wood removed from the disputed land (paragraph 5 of the second case report). The estimate for wood removed was made by JDI.
- So, we can infer that the defendant (Greer) cut and removed wood from the disputed land in 1991 and JDI brought an action of trespass and obtained a temporary injunction against Greer (paragraph 27 of the first case). The action described in this case was brought in 1993 and was a boundary dispute.
The events leading to the boundary dispute are as follows:
- JDI purchased a woodlot in 1957 and had it surveyed by Cook, who relied on another survey by McLaughlin in 1949 of the Kingsclear Reserve, whose southern boundary represented the starting point for both the JDI and Greer lots (paragraph 5 of the first case).
- The location of the Kingsclear southern line was the source of the dispute and the difference was 22 chains for a total area of approximately 40 acres.
- The location of the Kingsclear line had been the issue in a case before the Supreme Court of New Brunswick in 1852 (paragraph 10 of the first case). The legal citation was Gaudin v. M’Killigan (1852), 7 N.B.R. 393. The decision of the 1852 case was not recorded/registered (paragraph 20 of the first case) and was, therefore, not available to McLaughlin when he conducted his survey in 1949. The Gaudin v. M’Killigan case established the correct southern line for the Kingsclear Reserve.
- JDI argued that the Gaudin v. M’Killigan decision was not relevant.
The judge decided in favour of Greer.
The judge accepted the decision of the Gaudin v. M’Killigan case which established the correct southern line of the Kingsclear Reserve. The accepted line coincided with the one argued for by Greer.
The judge dedicated several paragraphs (Professional Occupations -Topic 822 on page 321 of the first report) to the duties of surveyors. He also quoted from the landmark case of Kingston v Highland (1919), 47 N.B.R. 324 (paragraphs 21 to 25) in which he discouraged surveyors from disregarding evidence of property lines in favour of establishing new ones. It was land surveyor Estey who erred by establishing a new line for the southern boundary of Kingsclear in 1829, which was subsequently corrected in Gaudin v. M’Kiligan. The judge also admonished the Crown land office for not referencing the decision of the Gaudin v. M’Killigan case on their plans and keeping a copy for their files (paragraph entitled Crown – Topic 6704 on page 338 of the first report). He estimated that Greer and JDI incurred legal costs in excess of $100,000, which could have been avoided if the Gaudin v. M’Killigan case was adequately referenced so that it was available to McLaughlin when he conducted the 1949 survey. The judge awarded costs of $6,825 plus reasonable disbursements to Greer. It appears that he would have awarded more costs to Greer, but he stated that it was not right to punish JDI for the errors of his surveyor (paragraph 3 of the second report).
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