Defining the Parcel: The Complexity Continues
| Author | Izaak de Rijcke |
| Profession | Barrister & Solicitor |
| Pages | 333-361 |
Definine
the
Parcel:
The
I.
INTRODUCTION
This review will highlight recent developments that have
affected
boundary surveying
and how
parcels
of
land
are
defined
on the
ground.
The
increasingly complex legal framework applicable
to the
definition
of
land parcels will also
be
reviewed.
The
consequence
of
land records
becoming less accessible
(an
ironic result
of
POLARIS)
will also
be
con-
sidered
for its
impact
in
making
the
necessary information more
diffi-
cult
to
retrieve. Although written
from
the
point
of
view
of the
real
estate practitioner
in
Ontario,
there
may
also
be
assistance found
for
members
of the
boundary surveying profession
in
highlighting some
problematic developments
and
possible solutions.
n. THE
NATURE
OF
BOUNDARIES
It
is
axiomatic that
different
interests
in
land must
first
exist before there
can
be a
boundary.
The
different
interests
are
perhaps
best
understood
as
the
interface between historic Blackacre
and
Whiteacre.
The
common
law
principles
of a
boundary
are
well established:
Barrister
&
Solicitor
and
Ontario Land Surveyor. Sole practitioner
in
Guelph
specializing
in the
solution
of
hybrid title
and
boundary problems.
333
Complexity Continues
Izaak
de
Rijcke
334
Izaak
de
Rijcke
It
is by the
work
as
executed
on the
ground,
not as
projected before
execution
or
represented
on the
plan
afterwards,
that
the
actual bound-
aries
are
determined.1
The
Surveys
Act has for
many decades
codified
the
same principles
and now
reads:
54.
Every
line, boundary
and
corner, established
by
survey
and
shown
on a
plan
of
subdivision
is a
true
and
unalterable line, boundary
or
cor-
ner,
as the
case
may be,
with respect
to
such plan
and
shall
be
deemed
to be
defined
by the
original posts
or
blazed trees
in the
first
survey
thereof,
whether
or not the
actual measurements between
the
original
posts
are the
same
as
shown
on the
plan
of
subdivision
or
expressed
in
any
grant
or
other
instrument.2
But
a
boundary
can
also
be
found
to
exist between
a fee
simple par-
cel
and the
extent
of a
lesser interest passing over
it. A
good example
is
a
right
of way or
easement,
which
may
exist
at law
through prescrip-
tion,
but the
width
may be
difficult
to
determine.
The
fact
of a
bound-
ary's existence
in
such instance
is not due to a
survey,
but the
differentiation
of
interests
in
land that leads
to the
creation
of
parcels.
The
historic severance
of
estates into smaller parcels invariably
required some definition
of the new
parcels'
boundaries
on the
ground,
which later came
to be the
expertise
of the
land surveyor.
But the
sur-
veyor
was
neither
the
person
who
made
the
boundary,
nor
someone
who was
necessary
for the
boundary
to
come into legal existence. Even
when lots
are
laid
out for a
subdivision plan
on the
ground,
the lot
lines
themselves
do not
become boundary
lines
until
such
time
as
differences
in
ownership
are
effected
by
transfer
of
lots
by the
subdivides
As the
writer
has
co-authored,
4.05
Boundaries must
be
created,
or
delimited,
by the
proper actions
of
owners,
and
they also must
be
brought into physical existence
by
being
identified
and
marked
on the
ground.
The
latter
is,
generally,
the
work
of
land surveyors
in the
measurement
and
marking
of
ground points
and in the
drafting
of
plans
of
survey. These activities distinguish
the
property limits
and
hence demonstrate
the
parcels
on the
ground
by
survey monuments
and in
documents, such
as a
plan
or
other graphic
Ovens
v.
Davidson
(1861),
10
U.C.C.P.
302.
Surveys
Act,
R.S.0.1990,
c.
S.30.,
s. 54, as am.
1
2
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