Black v. Norris et al., (2012) 399 N.B.R.(2d) 1 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 31, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 399 N.B.R.(2d) 1 (TD);2012 NBQB 346

Black v. Norris (2012), 399 N.B.R.(2d) 1 (TD);

    399 R.N.-B.(2e) 1; 1035 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. FE.022

Renvoi temp.: [2013] N.B.R.(2d) TBEd. FE.022

Lennox Kingman Black (plaintiff) v. Peter Herbert Norris and The Registrar General of Land Titles (defendants)

(S/C/490/10; 2012 NBQB 346; 2012 NBBR 346)

Indexed As: Black v. Norris et al.

Répertorié: Black v. Norris et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

October 25, 2012.

Summary:

Résumé:

This litigation arose out of a property dispute between the owners (Black and Norris) of two valuable waterfront properties. In addition to a number of legal issues, at issue was a subdivision plan which was prepared by Welch and who was the fee simple owner of the "disputed area".

The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area. Accordingly, an amended subdivision plan was to be prepared by Welch at his expense and filed in the Land Titles office showing the disputed area as being part of Black's property. Black was entitled to rectification of the title register pursuant to s. 70 of the Land Titles Act to reflect this correction and to show that he was the fee simple owner of the disputed area. Black was also granted a permanent injunction restraining Norris and his agents and servants from committing any acts of trespass on the disputed area.

Barristers and Solicitors - Topic 1541

Relationship with client - Duty to client - General - Real property lawyers - The New Brunswick Court of Queen's Bench, Trial Division, stated that "New Brunswick lawyers have an obligation to investigate location-related title issues and to work collaboratively with land surveyors in order to promote and protect the integrity of the Land Titles system. Service New Brunswick is relying upon them to do so. Service New Brunswick no longer reviews or double checks lawyers' work and abstracts of title as was done during the pilot project in Albert County. Lawyers have a duty to protect the integrity of the New Brunswick Land Titles system and to make certain that upon conversion of a parcel to registration under the Land Titles system ownership rights of others are not compromised or extinguished. ... a solicitor in making an AFR [application for first registration of title] for a property under the Land Titles system is not responsible for certifying the exact dimensions or boundaries of the property" - See paragraphs 478 and 479.

Estoppel - Topic 1324

Estoppel in pais (by conduct) - Acquiescence or encouragement - Proprietary estoppel - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - Black claimed that he was the owner of the disputed area based on the doctrine of proprietary estoppel - The New Brunswick Court of Queen's Bench, Trial Division, held that Black was entitled to a declaration that he was the owner in fee simple of the disputed area as a result of the doctrine of proprietary estoppel - Before 2010, the evidence indicated that the Norris family consistently acquiesced in Black's use, maintenance and occupation of the disputed area - Black also acted to his detriment in expanding funds to maintain, protect and improve the disputed area in reliance upon his belief that he was its rightful owner - Finally, it would be unconscionable for Norris to now deny that Black was the owner in fee simple of the disputed area - See paragraphs 380 to 392.

Professional Occupations - Topic 822

Surveyors - Duties of - Boundaries - Determination of - [See third Real Property - Topic 4702 ].

Real Property - Topic 4700

Title - Boundaries - Determination of boundaries - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The evidence clearly established that there had been longstanding occupation of the disputed area by both Black and his predecessors in title - New Brunswick case law accepted longstanding occupation as evidence of the location of a boundary line - Here, the longstanding occupation of the disputed area, both by Black and his predecessors in title, was good evidence that the grant line ended at its first point of contact with the St. Croix River - Welch disregarded all evidence of occupation and claim of title to the disputed area by Black and his predecessors in title - He chose to ignore the actual reality of the situation - See paragraphs 303 to 305.

Real Property - Topic 4700

Title - Boundaries - Determination of boundaries - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The parties asked the court to decide whether the subdivision plan was incorrect in depicting the boundary line between the properties - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The ability of a court to make determinations with respect to boundaries was implicit in s. 68 of the Land Titles Act - In addition, the ability of the court to make determinations with respect to boundaries was necessary to fulfill the purpose of s. 70 of the Land Titles Act, which empowered a court to rectify the title register whenever it " is satisfied that any person is entitled to any estate, right or interest in any registered land." - Section 70 did not limit the means by which a court could become "satisfied" that a person was entitled to an interest in registered land - For the court to be satisfied that Black was entitled to such a fee simple estate in the disputed area, it was necessary to consider boundary issues - See paragraphs 408 to 411.

Real Property - Topic 4700

Title - Boundaries - Determination of boundaries - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The court noted that separate from the Land Titles Act, the New Brunswick Legislature had created a mechanism for resolving boundary disputes through the Boundaries Confirmation Act - This was a system for a land owner to grieve a boundary line as placed by a surveyor - However, in the present case the court was of the view that Black was not limited in his remedies to proceeding pursuant to the Boundaries Confirmation Act - He had to take immediate action to prevent Norris from carrying out his threat to take "active ownership" of the disputed area - See paragraphs 519 to 522.

Real Property - Topic 4702

Title - Boundaries - General - Duty of surveyor - [See Real Property - Topic 4745 and Real Property - Topic 8011 ].

Real Property - Topic 4702

Title - Boundaries - General - Duty of surveyor - The New Brunswick Court of Queen's Bench, Trial Division, held that a "land surveyor owes a duty of care to adjoining landowners" - See paragraph 325.

Real Property - Topic 4702

Title - Boundaries - General - Duty of surveyor - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, held that Welch breached his duty of care to Black - Rather than question Norris' putative claim to the disputed area and to consider the rights of Black, Welch proceeded to complete a subdivision plan which maximized the amount of land to be owned by his client, Norris, to Black's detriment - The only reasonable way to interpret Welch's actions was that he either ignored the clear and obvious evidence of Black's use and occupation of the disputed area or he was willfully blind to any evidence which was inconsistent with the Norris drawing and his client's wishes - Welch acknowledged that there were signs of occupation by Black of the disputed area and that Welch had concerns about the disputed area from the beginning of his field work - Welch's attempts to contact Black were apathetic - They were clearly not meaningful as required by his Surveyors Manual - The court inferred from the evidence that Welch wanted to please his client, Norris - The court further found on the evidence that reasonably adequate attempts were not made by Welch to contact Black in order to enquire about his obvious rights to the disputed area, especially since his occupation and possession of the disputed area would have been so visible and obvious to Welch - Welch mistakenly thought the threshold was simply a courtesy call - See paragraphs 306 to 328 and 523 to 542.

Real Property - Topic 4745

Title - Boundaries - Determination of - Adjacent property lines - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, held that when preparing a land survey, the rights and opinions of an adjoining landowner should be considered - Here, because the rights and opinions of Black were not taken into consideration, the subdivision plan prepared by Welch was not prepared in accordance with the Association of New Brunswick Land Surveyors' Standards Manual - See paragraph 549.

Real Property - Topic 4746

Title - Boundaries - Determination of - Accretion - Adjacent lands subsequently acquired - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - At trial, Norris advanced erosion and accretion - The New Brunswick Court of Queen's Bench, Trial Division, held that neither accretion nor erosion was at issue in this case unless Norris had established on a balance of probabilities that the disputed area was once contiguous with the Norris lot - The person relying on the doctrine of accretion had the onus of establishing, on the balance of probability, that accretion did in fact occur - The court found that Norris had not established on a balance of probabilities that the disputed area was once contiguous with the Norris lot - Based on the evidence, Black was the owner in fee simple of the disputed area as a result of his legal title, obtained pursuant to his 1984 deed - See paragraphs 329 to 349.

Real Property - Topic 4761

Title - Boundaries - Determination of boundaries - Rivers and streams - Tidal - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The disputed area was part of Crown Grant 47 and part of Black's property - This was based on the legal principle that a grant of land adjoining tidal water prima facie extended only to the ordinary high water mark - This conclusion was further supported by the depiction of the Grant Line on the Penobscot Plan, which did not extend past its first point of contact with the St. Croix River - This was consonant with what was shown on Crown Grant Map 161, which showed what was referred to as the "unique peninsula" of the disputed area as being part of Lot 47 - In the result the court found on the evidence that the disputed area was a unique peninsula and formed part of Black's property being part of Crown Grant 47 - See paragraphs 278 to 302.

Real Property - Topic 5604

Title - Extinguishment, prescription and adverse possession - Availability of claim by adverse possession - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - Black sought a declaration of adverse possession under the Land Titles Act - The New Brunswick Court of Queen's Bench, Trial Division, found that "title by possession cannot generally be acquired under the land titles, or Torrens, system" - However, although the legislators did not make possessory rights an overriding interest in s. 17(2) (other than for rights of way and rights of access) they did leave a remedy available by incorporating ss. 70(a)(a) and 71(c) into the Land Titles Act and allowing rectification of the Title Register in certain cases - The Land Titles Act granted a broad judicial power to courts to rectify the title register (see ss. 70 and 71) - The recognition of Black's possessory title in this case would be consonant with the curtain principle of the Land Titles Act - In the result, a declaration issued that Black was the owner in fee simple of the disputed area as a result of his and his predecessors in title matured adverse possession of the disputed area - See paragraphs 366 to 379.

Real Property - Topic 5609

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Evidence and proof - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - Black sought a declaration of adverse possession - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black and his predecessors in title had been in continuous, open, visible, notorious and exclusive possession of the disputed area since either 1973 or 1974 - Black's own possession of the disputed area since 1985 was sufficient to meet the 20 year period prescribed by the Limitation of Actions Act - In particular, the court found on the evidence that Black: "Continuously maintained the Disputed Area since 1985; Continuously used the Disputed Area for recreational purposes; Regularly planted trees and ground vegetation in the Disputed Area; Installed a watering system which covered part of the Disputed Area; Brought in approximately 10 truckloads of rock and boulders in the winter of 1986-1987, which were spread along the shoreline, including in the Disputed Area, to prevent erosion; Upgraded the grounds of his Property, including the Disputed Area, in 1988, by bringing in additional earth and reseeding the lawn; Hired a gardening company to undertake a 'major overhaul' of his garden in the Disputed Area in 2002; Installed large granite steps and a stone bench (in 2002) and a wood patio (in 1993 or 1994) on the Disputed Area; and Occupied the Disputed Area in a manner consistent with his use and possession of the contiguous Property, of which Mr. Black's title is not in dispute." - See paragraphs 354 to 357 - The court rejected Norris's argument that Black had failed to make out the continuity requirements for title by adverse possession because his property had been used as a summer residence and not continuously for 12 months of each and every year - Black's annual use of the property as a summer residence was sufficient to meet the continuity criterion of the test for adverse possession - Black's acts of possession and use and occupation of his property, including the disputed area, had been typical of what would be reasonably expected of an owner of seasonal waterfront property in the area for well in excess of 20 years - See paragraphs 358 to 365.

Real Property - Topic 5631

Title - Extinguishment, prescription and adverse possession - Possession - Acts constituting possession - [See Real Property - Topic 5609 ].

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - [See Real Property - Topic 5609 ].

Real Property - Topic 5751

Title - Extinguishment, prescription and adverse possession - Adverse possession - General (incl. what constitutes) - [See Real Property - Topic 5609 ].

Real Property - Topic 7803

Title - Registration of instruments, etc. - General principles - What constitutes an instrument - [See second Real Property - Topic 8014.2 ].

Real Property - Topic 8011

Title - Registration of instruments, etc. - Land titles system - Registration - Procedure - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - At issue was, inter alia, whether Black should have received notice of the application for first registration (AFR) - The New Brunswick Court of Queen's Bench, Trial Division, held that there was a significant breakdown in communication - Welch knew that there was actual occupation of the disputed area by Black but did not communicate this fact to Bartlett (Norris's counsel) - Welch had a professional duty to do so - Norris also would have known that Black occupied the disputed area but did not tell Bartlett and Norris deposed to the Form 2 Affidavit without mentioning Black's occupation of the disputed area - Based on Bartlett's testimony and the obvious seriousness and intensity with which he treated real property transactions, the court was satisfied that if he had known about Black's occupation of the disputed area he would have put the brakes on the AFR and would have insisted that Welch contact Black before proceeding further - In reaching his decision to certify title, Bartlett's records showed that he met the requirements of the Real Property Standards - Welch had a professional obligation to advise Bartlett of Black's occupation of the disputed area and had a further obligation to discuss the issue with Black - Welch knew there was occupation of the disputed area by Black - He owed Black a duty of care even though Black was not his client - That was part of a land surveyor's duties - In a situation such as what transpired here the land surveyor was a key person in the process and alot depended on the surveyor completely carrying out his or her professional duties - See paragraph 498.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - [See second Real Property - Topic 4700 ].

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The court was empowered pursuant to s. 70 of the Land Titles Act to rectify the title register such that Norris's property as currently shown on the subdivision plan would no longer include the disputed area - Section 70(1)(a) granted a broad power to order rectification where a court "is satisfied that any person is entitled to any estate, right or interest in any registered land and as a consequence is of opinion that rectification of the title register is required." - The subdivision plan was an "instrument" within the meaning of the definition of "title register" - See paragraphs 393 to 407.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - The court had the jurisdiction to order rectification of boundaries - Welch erroneously depicted the disputed area as being part of Norris's property on the subdivision plan - Norris acted pursuant to the mistake which had been made by Welch with respect to that plan and the mistake in the Form 2 affidavit - As a consequence, the entry in question was made by mistake - Accordingly, the court ordered the registration on the New Brunswick Land Titles system of an amended subdivision plan showing that the disputed area was part of Black's Property - See paragraphs 408 to 416.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - Black sought rectification under s. 70 of the Land Titles Act - The court agreed with Black's assertion that s. 71 of the Land Titles Act did not apply - Section 71 qualified s. 70 and applied only to the title of a registered owner "in possession." - Norris was currently the "registered owner" of the disputed area - However, Norris was not "in possession" of the disputed area - Norris's attempts to exercise control over the disputed area by having his surveyor, Welch, mark it and locate it on the subdivision plan as part of his property were not sufficient acts to become a registered owner "in possession" - As well, while Norris told Black that he was going to take "active ownership" of the disputed area, there was no evidence that he attempted to do so - The New Brunswick Legislature did not speak in vain when it used the words "in possession" in s. 71 of the Land Titles Act - The phrase "in possession" had to mean in actual possession, in the sense of "the exercise of dominion over property" - Since Norris was not, and never had been, physically in possession of the disputed area, s. 71 was accordingly not applicable - See paragraphs 417 to 433.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - Black sought rectification under s. 70 of the Land Titles Act - The court held that Black was entitled to rectification of the title register pursuant to s. 70(1)(a) of the Land Titles Act, because he had a fee simple interest in the disputed area - The court had discretion as to whether or not to rectify the register to reflect a matured possessory title - Section 70 provided that a court "may grant relief." - Black was also entitled to rectification on the basis of s. 70(1)(c) of the Land Titles Act, as the registration of Norris's property would not have occurred had it not been for Welch's surveying errors and the mistake in paragraphs 6 and 7 of the Form 2 Affidavit - See paragraphs 439 to 448.

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - Litigation ensued - The New Brunswick Court of Queen's Bench, Trial Division, concluded that Black was the fee simple owner of the disputed area - If Norris was deemed to be the registered owner "in possession" of the disputed area, Black asserted that he was entitled to rectification under a. 71(a) and (c) of the Land Titles Act - The court had concluded that Norris was not a registered owner "in possession" - In the event that the court was found to be in error in this regard and Norris was found to be a registered owner in possession of the disputed area, then, the court held that s. 71(a) and (c) would be operative since Norris would have knowledge or would be on notice of the mistake in paragraphs 6 and 7 of the Form 2 Affidavit which was prepared and used by Norris' lawyer as part of the Application for Registration - With respect to s. 71(c), it would clearly be unjust not to rectify the register against Norris to exclude the disputed area from Norris' property and to include the disputed area as being part of Black's property - Otherwise Black would be dispossessed of part of his property - See paragraphs 449 to 455.

Avocats et notaires - Cote 1541

Rapports avec le client - Obligations envers le client - Généralités - Avocats spécialistes en droit immobilier - [Voir Barristers and Solicitors - Topic 1541 ].

Biens réels - Cote 4700

Titre de propriété - Limites - Établissement des limites - [Voir Real Property - Topic 4700 ].

Biens réels - Cote 4702

Titre de propriété - Limites - Généralités - Devoir de l'arpenteur - [Voir Real Property - Topic 4702 ].

Biens réels - Cote 4745

Titre de propriété - Limites - Établissement des limites - Lignes de biens adjacents - [Voir Real Property - Topic 4745 ].

Biens réels - Cote 4746

Titre de propriété - Limites - Établissement des limites - Accroissement - Terres adjacentes acquis par la suite - [Voir Real Property - Topic 4746 ].

Biens réels - Cote 4761

Titre de propriété - Limites - Établissement des limites - Rivières et ruisseaux - Soumis à la marée - [Voir Real Property - Topic 4761 ].

Biens réels - Cote 5604

Titre - Extinction, prescription et possession adversative - Possibilité d'une revendication par possession adversative - [Voir Real Property - Topic 5604 ].

Biens réels - Cote 5609

Extinction du titre de propriété, prescription et possession adversative - Prescription et possession adversative - Principes généraux - Preuve - [Voir Real Property - Topic 5609 ].

Biens réels - Cote 5631

Extinction du titre de propriété, prescription et possession adversative - Possession - Actes constitutifs de la possession - [Voir Real Property - Topic 5631 ].

Biens réels - Cote 5705

Extinction du titre de propriété, prescription et possession adversative - Continuité de la possession - En quoi consiste la "possession continue" - [Voir Real Property - Topic 5705 ].

Biens réels - Cote 5751

Titre de propriété - Extinction du titre de propriété, prescription et possession adversative - Possession adversative - Généralités (y compris éléments constitutifs) - [Voir Real Property - Topic 5751 ].

Biens réels - Cote 7803

Titre - Enregistrement d'actes instrumentaires - En quoi consiste un instrument - [Voir Real Property - Topic 7803 ].

Biens réels - Cote 8011

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Enregistrement - Procédure - [Voir Real Property - Topic 8011 ].

Biens réels - Cote 8014.2

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Enregistrement - Rectification - [Voir Real Property - Topic 8014.2 ].

Droit des professions - Cote 822

Arpenteurs-géomètres - Devoirs de l'arpenteur-géomètre - Limites - Délimitation - [Voir Professional Occupations - Topic 822 ].

Préclusion - Cote 1324

Préclusion par conduite - Acquiescement - Préclusion propriétale - [Voir Estoppel - Topic 1324 ].

Cases Noticed:

Turnbull v. Saunders (1921), 48 N.B.R. 502, refd to. [para. 287].

Charbonneau v. McCusker (1910), 22 O.L.R. 46 (C.A.), refd to. [para. 300].

Belyea v. Belyea (1857), 8 N.B.R. 588 (C.A.), refd to. [para. 301].

Kingston v. Highland (1919), 47 N.B.R. 324 (K.B.), refd to. [para. 303].

Hughes Surveys & Consultants Ltd. v. Rutledge (1997), 189 N.B.R.(2d) 186; 482 A.P.R. 186; 1997 CanLII 14426 (Q.B.), refd to. [para. 313].

Irving (J.D.) Ltd. v. Greer (1993), 135 N.B.R.(2d) 321; 344 A.P.R. 321; 1993 CanLII 6578 (Q.B.), refd to. [para. 315].

Robertson v. Wallace et al. (2000), 276 A.R. 201; 2000 ABQB 1020, consd. [para. 317].

Chisholm v. Watson et al., [2011] O.T.C. Uned. 3600; 2011 ONSC 3600, consd. [para. 319].

Canada (Attorney General) v. Kennings et al. (1988), 23 F.T.R. 51; 40 L.C.R. 253 (T.D.), refd to. [para. 342].

Miller v. British Columbia (Attorney General), [1975] 1 S.C.R. 556; 2 N.R. 178, refd to. [para. 342].

McLellan v. Salter (1988), 1 R.P.R.(2d) 20 (N.S.T.D.), refd to. [para. 347].

Taylor et al. v. Stoddard et al. (2008), 337 N.B.R.(2d) 229; 864 A.P.R. 229; 2008 NBCA 71, refd to. [para. 351].

Taylor v. Haughn Estate - see Taylor et al. v. Stoddard et al.

Duggan v. Nova Scotia (Attorney General) et al. (2004), 222 N.S.R.(2d) 229; 701 A.P.R. 229; 2004 NSSC 66, refd to. [para. 352].

Teis v. Ancaster (Town) (1997), 103 O.A.C. 4; 34 O.R.(3d) 216 (C.A.), refd to. [para. 357].

Gould v. Edmonds (2001), 203 N.S.R.(2d) 163; 635 A.P.R. 163; 2001 NSCA 184, refd to. [para. 357].

Chandler v. LeBlanc (2008), 337 N.B.R.(2d) 385; 864 A.P.R. 385; 2008 NBQB 345, folld. [para. 360].

McKinney v. Tobias (2006), 306 N.B.R.(2d) 282; 793 A.P.R. 282; 2006 NBQB 290, refd to. [para. 366].

New Brunswick (Minister of Natural Resources) v. Aiken et al. (2009), 348 N.B.R.(2d) 169; 897 A.P.R. 169; 2009 NBCA 54, refd to. [para. 370].

Chowood Ltd. v. Lyall (No. 2), [1930] 2 Ch. 156 (C.A.), refd to. [para. 374].

Grasett v. Carter (1884), 10 S.C.R. 105, refd to. [para. 382].

Quartermain v. Stevens (1972), 4 N.B.R.(2d) 266 (Q.B.), refd to. [para. 383].

Re-Deptford High Street, ex parte British Transport Commission, [1951] Ch. 884, refd to. [para. 432].

Johnson v. Shaw, [2003] E.W.C.A. Civ. 894, refd to. [para. 441].

Sellathurai et al. v. Sriskanda et al., [2008] O.A.C. Uned. 269; 2008 ONCA 392, dist. [para. 457].

Swazey et al. v. King et al. (1996), 175 N.B.R.(2d) 11; 446 A.P.R. 11; 1996 CanLII 5095 (Q.B.), affd. (1997), 186 N.B.R.(2d) 169; 476 A.P.R. 169 (C.A.), refd to. [para. 484].

Burtt et al. v. Wilson et al. (1991), 123 N.B.R.(2d) 419; 310 A.P.R. 419; 1991 CanLII 4582 (Q.B.), refd to. [para. 485].

Pond v. Hovey (2011), 369 N.B.R.(2d) 394; 952 A.P.R. 394; 2010 NBCA 2, refd to. [para. 502].

Folkins Estates Inc. v. Ganong (2006), 298 N.B.R.(2d) 230; 775 A.P.R. 230; 2006 NBQB 152, refd to. [para. 509].

Price, Re (2010), 368 N.B.R.(2d) 27; 949 A.P.R. 27; 2010 NBQB 428, refd to. [para. 515].

Brophy v. Alexander Construction Co. and Blackville (Village) (1984), 55 N.B.R.(2d) 233; 144 A.P.R. 233 (Q.B.), refd to. [para. 516].

Harries, Hall and Kruse v. South Sarnia Properties Ltd.; South Sarnia Properties Ltd. v. Baird and Baird, [1928] 4 D.L.R. 872, refd to. [para. 553].

Hedley Byrne & Co. v. Hiller & Partners Ltd. (1964), A.C. 465, refd to. [para. 554].

Statutes Noticed:

Land Titles Act, S.N.B. 1981, c. L-1.1, sect. 68 [para. 409]; sect. 70(1) [para. 398]; sect. 71 [para. 399].

Authors and Works Noticed:

Allred, G.K., Survey Law in Canada (1989), generally [para. 299]; p. 294 [para. 311]; para. 5.52 [para. 483]; c. 6, s. 583, p. 203 [para. 563].

Anger and Honsberger, The Law of Real Property (3rd Ed. 2008), generally [paras. 296, 297]; c. 18, pp. 1, fn. 1 [para. 299]; 4 [para. 382]; 10 to 13 [para. 294]; 12, 13, fn. 2, 9 [para. 304]; c. 22, pp. 10, 11 [para. 477]; 15 [para. 294]; 15 to 17 [para. 293]; c. 28, pp. 1, 2 [para. 381]; 5 [paras. 386, 389, 391]; 17 [para. 364]; c. 29, p. 19 [para. 356]; 21, 22 [para. 363]; c. 30, p. 15 [para. 400].

Anger and Honsberger, The Law of Real Property (3rd Ed. 2008) (Looseleaf), vol. 2, ¶28.50 [para. 368].

Association of New Brunswick Surveyors Standards Manual, generally [paras. 173, 216]; s. B-6.2 [para. 205]; p. 17, D-2.1.5 [para. 293].

Canada, Manual of Instructions for Canada Lands Surveyors (2nd Ed. 1979), c. B7, p. 58 [para. 311].

Doig, James F., Settlement of Boundary Uncertainties, generally [para. 316].

Halsbury's Laws of England (4th Ed. 1993), vol. 26, para. 1047 [para. 402].

Hansard (N.B.) - see New Brunswick, Hansard, Legislative Assembly.

LaForest, Gerard Vincent, Water Law in Canada - The Atlantic Provinces (1973), generally [paras. 173, 341]; pp. 239, 240 [para. 511].

Lambden, David W. and de Rijcke, Izaak, Boundaries and Surveys, generally [para. 1].

New Brunswick, Hansard, Legislative Assembly (June 6, 1984), p. 3192 [para. 274].

New Brunswick, Hansard, Legislative Assembly (June 25, 1984), pp. 4547 [para 274]; 4549 to 4550 [para. 275].

Siebrasse, Norman, McKinney v. Tobias "Now You Own It, Now You Don't", 24 Sol. J. (Issue 2), generally [para. 367]; pp. 32 [paras. 370, 419]; 38 [para. 371].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), generally [para. 403]; p. 210 [para. 427].

Counsel:

Avocats:

John D. Townsend, Q.C., on behalf of Lennox Kingman Black;

Rodney J. Gillis, Q.C., on behalf of Peter Herbert Norris;

David D. Eidt, on behalf of The Registrar General of Land Titles.

This action was heard on November 7, 8, 9 and 15, 2011, and final written submissions were received on January 31, 2012, by Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on October 25, 2012.