105 Power Of Registrar If Measurements On Plans Conflict

PRACTICE

Referral to Surveyor General

The Surveyor General has asked that, when a registrar refers a plan to the Surveyor General under this section, the referral include, so far as is practical, a complete statement of the background and the issues and copies of all pertinent plans.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, para. 131, and vol. 3, paras. 787 and 988.

CASE LAW

Land Surveyors’ Disagreement Overcome by Admissible Hearsay Evidence of Creek Displacement

Burko v. Martindale, 2023 BCSC 2, involved a boundary dispute between two parties over a strip of land between their properties. The properties were adjacent to each other, situated south of Sicamous and west of Highway 97, with the Shuswap River to the west. Johnson Creek, a tributary of the river, was a key feature, varying in width and water flow seasonally. Both properties, not then yet subdivided, were the subject of a Crown grant in 1907. They were subdivided when the grantee sold them separately in 1910 and 1911. The deeds of sale were registered in the land title office together with plans of the subdivided parcels. They remained the only plans of the property boundary on file. They showed the centre of Johnson Creek as the southern boundary of plan DD 15293 and as the northern boundary of plan DD 24952. In both cases, the creek was shown as a sinuously curving boundary.

Where a water course such as Johnson Creek is a natural boundary, the boundary is usually considered as ambulatory. As the edge of the water course or its centre moves according to the natural processes of erosion and accretion, the boundary moves as well. There is an exception to this legal rule if the movement is due to a sudden avulsion rather than gradual erosion or accretion. An avulsion is rapid and dramatically obvious, and the property line remains where it was.

The dispute turned on a question of fact: had Johnson Creek moved to the south since 1911? The parties agreed that, if the creek had moved, the movement would have been an avulsion, and the property line would have remained where it was. The plaintiffs asserted that the creek had moved, supported by a land surveyor, other qualified professionals, and historical documents. The defendants claimed the creek hadn't moved, supported by a different surveyor and qualified professionals. The amount of territory in dispute was about .65 hectares or 1.6 acres. It represented about 12% of the area of the northern parcel.

The Registrar of Land Titles declined to register a replacement plan submitted by the land surveyor supporting the plaintiffs and referred it to the Surveyor General for a report pursuant to s. 105(1)(b) of the LTA. The Deputy Surveyor General, in a 2019 report to the registrar, favoured the view that the creek had not moved and recommended that an application be made pursuant to s. 94(1)(d). The land surveyor made such an application, and the Surveyor General approved it in 2020, but the registrar required the defendants’ approval for the change pursuant to s. 103. The defendants, refusing to approve the proposed change, commenced their own action. The two actions were tried together.

Held, judgment for plaintiffs. In British Columbia, a certificate of title affords to the registered owner of a piece of land conclusive proof of ownership, subject to statutory exceptions. The documents registered in the land title office describe the property in question, but are not conclusive as to its location on the ground. Location on the ground must be determined by survey evidence.

In determining the location of cadastral boundaries—that is, property boundaries—surveyors refer to a hierarchy of evidence ranging from most to least reliable. That hierarchy is accepted by courts as a precedential ranking of the best evidence with which to locate physically a disputed boundary. In summary, the hierarchy is as follows: (1) natural boundaries; (2) original monuments; (3) fences or indicia of possession that can reasonably be related back to the time of the original survey monuments; and (4) measurements (as shown on the plan or as stated in the metes and bounds description). The third order of evidence encompasses a very wide variety of possible indicia of possession, including the recollections of knowledgeable residents of long-settled possession, with a view to determining “whether a reasonable factual nexus has been established between evidence of possession and the presence of original monuments” (at para. 21, quoting Phillips v. Keefe, 2010 BCSC 2005). The common law’s acceptance of the approach taken by surveyors does not involve a delegation of responsibility from courts to surveyors, but rather the development of common law principles that mirror surveying practice.

The court concluded that the creek had shifted, based on various factors including expert testimonies, ground observations, historical aerial photographs, and hearsay evidence. The court considered statements from a deceased long-time area resident, indicating the creek’s former location. Although the court didn’t need to rely on historic surveying evidence, it supported the conclusion that the creek had moved.