Tuesday, May 20, 2014

Cottage neighbours, boundary lines, chainsaws and adverse possession

This Nova Scotia cottage boundary line case started in 2007 when neighbours on one side started cutting down trees to install an access road: "the tranquility of the setting was shattered by the sound of chainsaws".  A surveyor for neighbour D had run a line that purported to represent the boundary with the lands owned by neighbour M, and the trees were being felled by neighbour D on the basis of that survey.  In the end, the Court ruled in favour of the boundary line claimed by neighbour M, putting an end to the sound of the chainsaws.

The M property had been deeded to the M family in 1966 by the D family.  Although three of the four boundaries of the 100 acre M property were certain, one was not.  A complication in setting the fourth boundary line arose because the description of that fourth boundary, the one in question between the M property and the D property, included reference to a property owned by KD.  This was a problem because, in actual fact, KD didn't own any land in that area (although he was known in the community to own it).  Therefore, the boundary of KD's property could not be used to define the uncertain boundary line.

That said, the location of what had been presumed to be the property of KD was to considered in setting the proper location of the line.  The Court noted that one proposed line was not to be accepted because, "it is based on the false premise that the description of the northern boundary of the M lands as the property of KD was meaningless."  That description had meaning, even if it was based on an error.

In the end, the Court accepted the M-proposed line as the correct one on the whole of the evidence.  The Court did not accept that the description of the M property as being 100 acres "more or less" could be used to locate the fourth boundary line, since the sale of the M property was not a "sale by acreage".  The phrase in the deed stating that the land contains 100 acres "more or less" was a "falsa demonstratio" (from the latin legal maxim - falsa demonstratio non nocet cum de corpore constat - "a false demonstrative particular or reference does not prejudice what was clear before"). 

In the alternative, the Ds claimed to have acquired the land in question (including the proposed access road location) through adverse possession.  The Court found that the main evidence in support of this claim was exaggerated, and that there were not acts that were sufficiently "exclusive, continuous and notorious" to supplant the ownership of the M family.

Read the decision at: Webster v. Duncanson.