Report of Research, Field Investigation and Survey of Robert D ...

Report of 

Research, Field Investigation and Survey of 

Boundaries of 

Road Allowance between Concessions 6 and 7 

Adjacent to Lot 19 and 

Road Allowance between Lots 18 and 19, Concession 7 

Township of Tiny 

County of Simcoe 

Province of Ontario 

Client: Ontario Ministry of Natural Resources 

Project: Municipal Resurvey Under Section 48, The Surveys Act 

Field Work was conducted during the period of December 3, 2012 to August 22, 2013 

by 

Robert D. Halliday, O.L.S., C.L.S. 

TULLOCH Geomatics Inc. 

Espanola, Ontario 

(File 13-7508) 

September 5, 2013

Table of Contents 

Contents 

Page 

Purpose 1 

Research 2 to 6 

Plan Review 7 to 16 

Title Search Review 17 to 21 

Field Survey 22 to 30 

Statute Law Review 31 to 34 

Case Law Review 35 to 49 

Boundaries Act Decision Review 50 to 59 

Review of Other Articles and Research 60 to 63 

Concluding Remarks and Recommendations 64 to 66 

Photographs 

Google Earth Image of Shoreline 

Goessman’s Shore Traverse 

Shore Profiles 

Investigation of Road Allowance 

Between Concessions 6 and 7 

Sketch Showing Reg’d Plan 779 

and BA File B-1232 

Appendix A 

Appendix B 

Appendix C 

Appendix D 

Appendix E 

Appendix F 

i

SURVEY REPORT 

File: 

13-7508 Ontario Ministry of Natural Resources 

Road Allowance between Concession 6 and 7 

Adjacent to Lot 19 

and Road Allowance between Lots 18 and 19, Concession 7 

Township of Tiny 

The preliminary field work was executed during the period of December 3 to 5, 2012. A second 

trip was made on August 22 and 23, 2013 to obtain additional field measurements and to set the 

necessary survey monuments. 

1) Purpose: 

The purpose for this project was to survey the boundaries of Road Allowances cited above from 

the last existing survey evidence to the water’s edge of Nottawasaga Bay of Lake Huron and to 

prepare a Plan of Municipal Resurvey to be confirmed by the Surveyor General for Ontario. 

In order to complete this project the following tasks would first need to be completed: 

• obtain and review all existing surveys which deal with the subject Road Allowances 

(Primary Records); 

• at a lesser level, obtain surveys within a reasonable perimeter of the subject Road 

Allowances to assess potential negative impact on these properties (Secondary records); 

• review Case Law, Boundaries Act decisions and Statute Law related to surveys under 

Sections 48 and 49 of the Surveys Act and to issues related to accretion, distribution of 

accretion and other aspects of a riparian nature; 

• perform a preliminary site visit and obtain preliminary survey field measurements, assess 

general site conditions and obtain site photographs; 

• prepare recommendations for proposed resolution of location of the Road Allowances in 

question; 

• hold a meeting with the Surveyor General and staff to review my findings and 

preliminary plan to determine the suitability of the proposed approach; 

• conduct final field work to make additional measurements and plant additional survey 

monuments; 

• finalize Municipal Resurvey Plan and submit to Surveyor General. 

Page 1 of 66

2) Research: 

Searches carried out at the Land Registry Office for Simcoe County at Barrie, the Teraview online 

title searching service, at local survey offices, the on-line Land Survey Records (LSR) 

website, from Ontario Ministry of Natural Resources Survey Records and from Ontario Ministry 

of Natural Resources Integration Branch (Crown Patents Branch) produced a significant volume 

of information. To simplify the review I have categorized the plans into Primary and Secondary 

survey records. This is not in any way intended as a judgement of the quality of the survey work 

represented, but simply a means of distinguishing between records which deal specifically with 

the subject area and those which help to capture the general area. Primary Records indicate the 

existence of Survey evidence which would need to be measured during field work. Secondary 

Records indicate survey evidence which would help to show the general ownership 

configuration, but for which a comprehensive retracement would not be required. Instead, 

scattered evidence which could be readily found and measured would be obtained, but every 

existing survey monument would not be included in the survey. 

2.1 Primary Survey Records 

• Original Plan for Township of Tiny (Scan 2212 C30 Tiny) (see para. 3.1); 

• Original Field Notes for Township of Tiny (Scan FNB 665) (see para. 3.1); 

• Municipal Survey 572 (Road Allowance between Concessions 6 and 7 across Lots 9 

through 18) by M. Gaviller P.L.S., confirmed Dec. 1, 1891 (Scan MunSur572) (see para. 

3.2); 

• Field Notes and Report for Municipal Resurvey 572 (Scan MunSur572_Report&FNs) 

(see para. 3.2); 

• Plan of Survey of Shoreline of Georgian Bay Along the Western Bounds of Concessions 1 

to 12 Inclusive, Township of Tiny by E.P. Bowman O.L.S. dated Oct. 15, 1938 (see para 

3.5); 

• Provisional Boundaries Act Plan of Part of the Westerly Limit of Lot 19, Concession 6 by 

J.A. Stanton O.L.S. dated May 29, 1984 (Scan K8-39) (see para. 3.6); 

• Plan and Field Notes of Part of the Westerly Limit of Lot 19, Concession 6 by J.A. 

Stanton O.L.S. dated Sept. 8, 1983 (Scan U29-40) (see para. 3.7); 

• Survey Instructions and Survey Report for Staton Survey of the Westerly Limit of Lot 19, 

Concession 6 by J.A. Stanton O.L.S. dated Sept. 13, 1983 (Scan Instructions and Report - 

1983 Stanton Survey) (see para. 3.6); 

• Reg’d. Plan 757 (Wimblewood Beach Subdivision) by Cavana and Watson O.L.S. dated 

July 16, 1929 (Scan PL757) (see para. 3.3); 

• Reg’d. Plan 779 (Mountain View Beach) by Cavana and Watson O.L.S. dated March 2, 

1932 (Scan PL779) (see para. 3.4); 

• Plan and Field Notes of Survey of Part of Lot 19, Concession 7 by John M. Harvey O.L S. 

dated Dec. 15, 1961 (Scan Harvey_1 and Harvey_1_FN) (see para. 3.5); 


• Plan and Field Notes of Survey of Part of Lots 18 and 19, Concession 6 by John M. 

Harvey O.L S. dated 1971 (un-signed) (Scan Harvey_4) (see para. 3.5); 

• Plan of Survey of ‘All’ of Lot 7, Reg’d. Plan 779 by J.W. Nicholson O.L S. dated May 28, 

1969; (Scan Nicholson_132) (see para. 3.24); 

• Surveyor’s Real Property Report of Lot 6, Reg’d. Plan 779 by J.W. Nicholson O.L S. 

dated Dec. 19, 1991; (Scan Nicholson_4678) (see para. 3.24); 

• Surveyor’s Real Property Report of Lots 1 and 2, Reg’d. Plan 779 by J.W. Nicholson 

O.L S. dated Aug. 31, 1993; (Scan Nicholson_4679); 

• Surveyor’s Real Property Report of Block A, Reg’d. Plan 757 and Part of Lot 19, 

Concession 6 by Rodney G. Reynolds O.L S. dated June 7, 2002; (Scan Reynolds_127); 

• Plan 51R-390 (RD390) by John M. Harvey O.L.S. dated Oct. 30, 1967 (Scan RD390) (see 

para. 3.8); 

• Plan 51R-4292 by John M. Harvey O.L.S. dated Jan. 30, 1975 (Scan 51R4292) (see para. 

3.9); 

• Plan 51R-7026 by C.P. O’Dale O.L.S. dated Aug. 10, 1977 (Scan 51R7026) (see para. 

3.10); 

• Plan 51R-10058 by John M. Harvey O.L.S. dated Jan. 22, 1981 (Scan 51R10058) (see 

para. 3.11); 

• Plan 51R-14274 by H.L. Mellish O.L.S. dated March 3, 1986 (Scan 51R14274) (see para. 

3.12); 

• Plan 51R-31482 by Rodney G. Reynolds O.L.S. dated Sept. 25, 2002 (Scan 51R31482) 

(see para. 3.13); 

• Plan 51R-34310 by Peter T. Raikes O.L.S. dated Jan. 17, 2006 (Scan 51R34310) (see 

para. 3.14); 

• Plan 51R-35907 by Rodney G. Reynolds O.L.S. dated Jan. 28, 2008 (Scan 51R35907) 

(see para. 3.15); 

• Plan 51R-36379 by Rodney G. Reynolds O.L.S. dated Sept. 26, 2008 (Scan 51R36379) 

(see para. 3.16); 

• Plan 51R-36555 by Rodney G. Reynolds O.L.S. dated Dec. 1, 2008 (Scan 51R36555) (see 

para. 3.17); 

• Plan 51R-36631 by Rodney G. Reynolds O.L.S. dated Jan. 7, 2009 (Scan 51R36631) (see 

para. 3.18); 

• Plan 51R-37764 by Gary L. Preston O.L.S. dated Dec. 21, 2010 (Scan 51R37764) (see 

para. 3.19); 

• Provisional Reference Plan of Lot 19, Concession 7 by Gary L. Preston O.L.S. dated 

Aug. 29, 2006 (Scan Preston_3570) (see para. 3.21); 

• Plan BA-2624 by Ronald J. Stewart O.L.S. dated Nov. 16, 2004 (Scan BA-2426 (see para. 

3.22); 

• ‘Rough Field Records’ of preliminary field investigation of area near Lot 19, Concession 

7 by D.W. Lambden, O.L.S. dated Dec. 11, 2001 (Scan Rough_Field_Records) (see para. 

3.23); 


• Provisional Boundaries Act Plan of Lots 42, 43, 44 and 45, Reg’d. Plan 779 by Ronald J. 

Stewart O.L.S. dated Jan. 31, 2013 (Scan Stewart 130131) (see para. 3.26); 

• Provisional Boundaries Act Plan of Part of Lot 19, Concession 6 and Part of Block A, 

Reg’d. Plan 757 by Rodney C. Reynolds O.L.S. dated Sept. 27, 2010 (Scan 

Reynolds_09_156) (see para. 3.21); 

I requested the field notes and survey report for the Provisional Boundaries Act plan by Rodney 

Reynolds. He has sent me a portion of his report, but not the field notes, despite several requests. 

2.2 Secondary Survey Records 

• Plan 51R-1152 by John M. Harvey O.L.S. dated Feb. 25, 1970 (Scan 51R1152); 

• Plan 51R-2775 by H.L. Mellish O.L.S. dated Jan. 22, 1974 (Scan 51R-2775); 

• Plan 51R-4649 by John M. Harvey O.L.S. dated May 16, 1975 (Scan 51R-4649); 

• Plan 51R-18331 by William Jackson O.L.S. dated Dec. 29, 1988 (Scan 51R18331); 

• Plan 51R-28142 by James W. Nicholson O.L.S. dated Sept. 10, 1998 (Scan 51R28142); 

• Plan 51R33195 by Gary L. Preston O.L.S. dated Oct. 14, 2004 (Scan 51R33195); 

• Plan 51R-34916 by Peter T. Raikes O.L.S. dated Sept. 26, 2006 (Scan 51R34916); 

• Plan 51R-36160 by James W. Nicholson O.L.S. dated June 12, 2008 (Scan 51R36160); 

• Plan 51R-38618 by F. Dale Eplett O.L.S. dated Sespt. 12, 2012 (Scan 51R38618); 

• Plan of Survey of Part of Lot 10, Concession 7 by John M. Harvey dated Dec. 14, 1987 

(Scan Harvey_176087); 

• Plan of Survey of Lot 17 and Part of lots 16 and 18, Reg’d. Plan 779 by John M. Harvey 

O.L.S. dated July 10, 1990 (Scan Harvey_2); 

• Plan of Survey of Lot 20, Reg’d. Plan 757 by John M. Harvey O.L.S. dated Oct. 2, 1972 

(Scan Harvey_3); 

• Plan of Survey of West Half of Lot 17, Concession 7 by Paul M. Kitchen O.L.S. dated 

1984 (Scan Kitchen_T-7-17); 

• Building Location Survey of Part of Lot 18, Concession 6 by H.L. Mellish O.L.S. dated 

Sept. 8, 1986 (Scan Mellish_923); 

• Plan of Survey of Part of Lot 19, Concession 6 and Part of Block A, Reg’d. Plan 757 by 

H.L. Mellish O.L.S. dated June 4, 1992 (Scan Mellish_2226); 

• Plan of Survey of Part of Lot 19, Concession 6 and Part of Block A, Reg’d. Plan 757 by 

H.L. Mellish O.L.S. dated April 11, 2003 (Scan Mellish_2226-1); 

• Compiled Plan of Part of Lot 18, Concession 7 and Part of Lot 18, Concession 6 by H.L. 

Mellish O.L.S. dated Nov. 9, 1994 (Scan Mellish_2635; 

• Plan of Survey of North Half of Lot 17, Concession 6 by James M. Nicholson O.L.S. 

dated Aug. 30, 1973 (Scan Nicholson_864); 

• Field Notes of Survey of Lot 9, Concession 7 by Gary L. Preston O.L.S. dated Jan. 20, 

1995 (Scan Preston_1_FN); 


• Surveyor’s Real Property Report of Lot 8, Reg’d. Plan 779 by Gary L. Preston O.L S. 

dated Jan. 8, 2001; (Scan Preston_1842); 

• Field Notes and control station print-out by D.W. Lambden O.L.S.; 


dated June 1, 2004; (Scan Preston_2884); 


dated Aug. 17, 2006; (Scan Preston_3554); 


dated June 1, 2004; (Scan Preston_2860); 

• Surveyor’s Real Property Report of Lot 20, Reg’d. Plan 757 by Rodney G. Reynolds 

O.L S. dated June 4, 2003; (Scan Reynolds_099); 

• Surveyor’s Real Property Report of Lot 20, Reg’d. Plan 757 by Rodney G. Reynolds 

O.L S. dated Oct. 7, 2003; (Scan Reynolds_099D); 

• Plan of Survey by Roger R. Welsman O.L.S. dated June 21, 1967 

(Scan Welsman_2-757-T); 

• Provisional Boundaries Act Plan of Lots 19 through 27, Reg’d. Plan 907 by James W. 

Nicholson O.L.S. dated Dec. 18, 1987 (Scan Nicholson_3607); 

• Reg’d. Plan 747 (Wymbolwood Beach Subdivision) by A.G. Ardaugh O.L.S. dated Aug. 

25, 1928 (Scan PL747); 

• Reg’d. Plan 792 (Wymbolwood Beach Extension) by A.G. Ardaugh O.L.S. dated July 25, 

1934 (Scan PL792); 

• Reg’d. Plan 907 by Anthony F. Fassel O.L.S. dated Nov. 4, 1947 (Scan PL907); 

• Reg’d. Plan 1296 by C.P. O’Dale O.L.S. dated April 22, 1958 (Scan RP1296); 

• Field Notes by C.E. Fitton O.L.S. dated Feb. 10, 1916; 

• Various Field Notes by A.G. Cavan O.L.S. dated 1947 and other unknown dates. 


2.3 Title Documents and Crown Patents 

• Property Index Map 58394 (Sheets 1 to 4); 

• Property Index Map 58395 (Sheets 1, 2 and 4); 

• Property Index Map 58393 (Sheets 6, 7 and 8); 

• P.I.N.s 58394-0138, 58394-0139, 58394-0091, 58394-0086, 58394-0085, 58394-0084, 

58394-0083, 58394-0080, 58394-0092, 58394-0109, 58394-0124, 58394-0087 and 

58395-0004; 

• Crown Patent for Lot twenty-one, Concession two and Lot eighteen, Concession seven to 

John Goessman dated May 31, 1823; 

• Crown Patent for Lot twenty-three, Concession four and Lot nineteen, Concession six to 

Alexander Christie dated Aug. 21, 1866; 

• Abstract for Lot 19, Concession 6; 

• Abstract for Lots 1, 20 and 42, Reg’d. Plan 757; 

• Abstract for Lot 8, Reg’d. Plan 779; 

• Transfer documents 21050, 788360, 1335867, 1335868, RO847755 and RO1388643. 

2.4 Records of Historic Water Levels for Lake Huron 

• On-line Historic Monthly Mean Water Levels for Great Lakes by Canadian 

Hydrographic Surveys (www.waterlevels.gc.ca/C&A/network_means.html; 

• Historic Great Lakes Water Level Data for Harbour Beach, MI from United States 

National Ocean and Atmospheric Administration. 


3) Plan Review: 

3.1 (Tabs 1, 2 and 3) Original Survey of Township of Tiny 

Tiny Township was surveyed by John Goessman, Deputy Surveyor in 1823. It was surveyed 

under instructions dated 1821 from the Surveyor General. It was surveyed following the ‘Double 

Front Township System, illustrated at Method 42 of The Surveys Act (RSO 1990). 

Under that system, standard 200 acre lots of 30 chains x 66.67 chains (603.50m x 1341.19m) 

were laid out, with Road Allowances laid out along every concession (hence, both ends of every 

concession are lot fronts). Road Allowances were also laid out between every fifth lot side-line. 

The normal survey practice during the original surveys was to place posts for all lot corners. 

The lots were normally patented as half lots, and there were usually jogs at the half-way depth of 

these concessions. 

There is very little relevant survey information available on the Township plan, which appears to 

have received maintenance to keep it intact. The plan shows the general shape of the Township, 

with major water bodies as landmarks, shows the lot and concession configuration and the 

patentees for each lot. Unfortunately, there is very little dimensional information provided. 

The original field notes are also somewhat vague, although some dimensional information can 

be found with enough study. I am unable to identify the specific concession at the top of many of 

the pages I was provided, but on the right hand side of Page 16 there is a heading of Conc. 6 th 

th 

and 7 , with a direction of S60W on the left hand side of the page, followed by a series of 

chainage notations totaling to 30 chains for each of Lots 9 through 13. On the left hand side of 

Page 18 the chainages resume for Lots 15 through 18 with each having 30 chains. At the bottom 

of this page there is an entry ‘R’ with a one chain entry, followed by Lot 19, a chainage of 1.69 

and the notation “to the beach”. 

There is no comment in the field notes, but based on the era I believe that bearings are by 

compass. I contacted Mr. Lorne McKee who is the specialist in matters related to magnetic 

declination with Geological Survey of Canada to determine the declination in Tiny Township 

(Latitude 44-40-24, Longitude 79-59-17.5) in 1823. He advised that the observations for Owen 

Sound have been damaged somehow, and cannot be read, so provided me with an estimate for 

Toronto and Little Current, Ontario, which are essentially on the same isoline of declination. 

The estimated declination for 1822.5 was 0 degrees 32 minutes West. 


3.2 (Tab 4) 1891 Municipal Survey 572 

This plan surveyed the Road Allowance between Concessions 6 and 7 across Lots 9 through 19, 

but little monumentation is indicated, although I assume that restoring the survey monuments 

would have been the primary purpose for the survey. No evidence or explanation is indicated on 

the plan either, although it was approved by the Director of Surveys so I can only assume that 

proper methods were followed. 

Between Lots 9 and 13, the line is almost exactly perpendicular to the indicated direction of the 

Base Line. The distance is 155.1 chains, which doesn’t seem consistent with the original field 

notes (150 chains for the lots, plus 1 chain for the Road Allowance as I read the field notes). 

Across Lots 14 through 18 there is a bend of a little over 2 degrees, although the basis for this 

bend is not apparent. The distance for Lot 19 is slightly long, while the distance across Lots 14 

through 18 is identical to the distance across Lots 9 through 13, so I am led to believe that the 

edge of Georgian Bay was used to control the distances and all intervening corners were set by 

proportion in accordance with the Surveys Act. 

The Report and Field Notes also give very little indication of the method actually used to set 

these corners, and no indication in the vicinity of Lots 18 and 19. The location of the centre-line 

of the Base Line Road Allowance was still marked by original blazes and P.L.S Galliver took an 

affidavit from a local person for the location of the centre-line of the Road Allowance between 

Concession 6 and 7 based on a line of blazes he had seen while cutting timber. Galliver also 

found an original blaze on a beech tree in Lot 11. Other than this, no record can be found to 

document the reasons for how the rest of the Road Allowance was set, nor why the distances 

were set as they were. 

P.L.S. Galliver indicates on the field notes that he set ‘Field Stone’ monuments for the S.E. 

corner of Lot 9, Concession 7 and for the N.E. corner of Lot 9, Concession 6. Cedar posts were 

set for the four corners at the intersection of the Road Allowance between Concession 6 and 7 

with the Road Allowance between Lots 18 and 19. He doesn’t indicate that he set any monuments 

for the westerly boundary (simply shown as ‘Georgian Bay’), where it is intersected by the 

subject Road Allowance. 


3.3 (Tab 8) Reg’d. Plan 757 

This plan shows undescribed survey monuments for the NE and NW corners of Lot 19, 

Concession 6, but no indication of what was planted, or what it was based on. Twenty-one lots 

were laid out adjacent to the ‘Beach’, with a straight line approximating the ‘High Water Mark’. 

There is a clear indication of a strip of land lying between the lots and the water’s edge of 

Nottawasaga Bay. Also, the ‘Beach’ is not coloured, whereas the lots and subdivision road are. 

However, in a number of Boundaries Act decisions this has not been considered as conclusive 

evidence of an intention to retain separate ownership of the land between the lots and the 

water’s edge. This will be discussed in greater detail at Paragraph 6.4.8 under a review of the 

relevant Boundaries Act decisions. I requested copies of the original field notes from Chester 

Stanton, O.L.S., but he was not able to locate them. 

3.4 (Tab 9) Reg’d. Plan 779 

This plan shows an undescribed survey monument for the SW corners of Lot 18, Concession 7, 

but no indication of what was planted, or what it was based on. Ninety-six lots were laid out 

adjacent to the ‘Beach’, with a straight line approximating the ‘High Water mark’. Unlike Reg’d. 

Plan 779 , there is no strip of land indicated between the lots and the water’s edge of 

Nottawasaga Bay, but from all available information, this line is seldom if ever at the water’s 

edge. Although not shown on the plan, there is a 1 chain (20.12m) reservation for Road 

Allowance adjacent to Nottawasga Bay by the Crown Patent. The implications of both of these 

fact situations will be discussed in greater detail at Paragraph 6.4.7 under a review of the 

relevant Boundaries Act decisions. I requested copies of the original field notes from Chester 

Stanton, O.L.S., but he was not able to locate them. 

3.5 (Tab 35) Survey of Shoreline by O.L.S. Bowman 

This plan details a very comprehensive survey of the shoreline and adjacent lands across 

Concessions 1 through 12 and contains a wealth of historic data. Great emphasis has been 

placed on elevations, and O.L.S. Bowman left benchmarks at numerous locations across the 

project area. He has also recorded information about buildings on the adjoining lands, 

landowners and some dimensional information for his traverse and its relationship to some 

survey monuments he shows. He also records the location of the water’s edge (at elevation 

176.25), high water mark (at elevation177.64) and location for top of sand ridge/edge of bush 

(varying elevations). At the end of the Road Allowance between Concessions 6 and 7 O.L.S. 

Bowman shows a ‘Frame Shelter - four posts and roof - value of $5.00. 


Other notes of interest include a description of the type of sand beach (fine sandy beach) in the 

are of this survey and a notation that the beach is ‘travelled by cars’. 

The plan shows an IB at the intersection of the easterly boundary of the Road Allowance between 

Lots 18 and 19 with the westerly boundary of Lot 4, Reg’d. Plan 779 as well as wood posts for 

several other nearby lot corners within Plan 779. It also shows IBs at the NE and NW corners of 

Lot 1, Reg’d. Plan 757. It is noteworthy (but not binding) that the plan indicates that the two 

Road Allowances of interest for the present survey end at the same depth as the subdivision lots 

adjoining them, or at the high water mark. 

3.6 (Tabs 10 and 11) John Harvey Surveys 

The 1961 Harvey survey dealt with the portion of Lot 19, Concession 7 located between the two 

subject Road Allowances. O.L.S. Harvey found survey monuments for the SW corner of Lot 1, 

Reg’d. Plan 779 and the intersection of the easterly side of the Road Allowance between Lots 18 

and 19 with the monumented westerly limit of Reg’d. Plan 779. O.L.S. Harvey shows the ‘High 

Water Mark lying an unspecified distance northerly from this monument, indicating his belief 

that there is a remainder of Lot 18, Concession 7 lying in front of the Reg’d. Plan 779 lots. This 

issue will be discussed further at Para 6.4.7 under a review of the relevant Boundaries Act 

decisions. 

The 1971 Harvey survey shows several survey monuments along the Road Allowance between 

Lots 18 and 19 within Concession 6, including the NE corner of Lot 19, Concession 6. There is 

no indication as to whether these monuments were found or planted, and if planted, what the 

basis is for their alignment. 

3.7 (Tab 5) Provisional Boundaries Act Plan of Westerly Limit of Lot 19, Concession 6 

I have no information about the history of this survey (what it was intending to accomplish and 

why it was never completed). The plan is closely connected to the Plan and Field Notes discussed 

under para. 3.8 below. From the information on the face of the plan, and knowing a little of the 

history of the on-going disputes in Tiny Township and the confusion existing among many 

surveyors and the general public, I assume that this was an attempt to limit the ownership of the 

waterfront properties at the high water mark/tree line at the back of the beach area. Judging by 

the date of the survey, it was likely abandoned as some of the more recent Court rulings were 

coming to light, and it became apparent that the Application could not succeed. 


Of relevance to the present survey is the survey monument O.L.S. Stanton planted, purportedly to 

mark the NW’ly corner of Lot 19, Concession 6. It would appear that the corner was set at 1.69 

chains from the NE’ly corner of Lot 19, in accordance with the original field notes. No sign of 

this monument could be found. 

3.8 (Tabs 6 and 53) Plan and Field Notes of Part of the Westerly Limit of Lot 19, Concession 6 

This drawing appears to be a preliminary version of what became the Boundaries Act plan, and 

contains some traverse data, but nothing of particular relevance to our situation. It also shows 

the 1.69 chain tie from the original field notes, which was set by the abandonned Boundaries Act 

plan. 

The primary focus was in the southerly portion of Concession 6, in front of Reg’d. Plan 747. 

However, O.L.S. Stanton details his review of the original field notes for Tiny Township, and in 

particular, Goesmann’s shore traverse. He discusses ties made to ‘the line of the wood’ and to 

the waterline, and concludes that the westerly boundary of the lots in the original survey was 

intended to be the ‘line of the wood’. This opinion was overturned by the Rowntree decision. 

3.9 (Tab 19) Plan 51R-390 

This survey deals with two parcels which are split by the Road Allowance between Lots 18 and 

19 in Concession 6, lying a short distance southerly from the Road Allowance between 

Concessions 6 and 7. It shows SIBs already in existence on the southerly side of the Road 

Allowance intersection, but no indication of their source. 

3.10 (Tab 20) Plan 51R-4292 

This survey deals with a parcel within Lot 19, Concession 6 lying immediately to the west of the 

Road Allowance between Lots 18 and 19 and immediately to the south of the Road Allowance 

between Concessions 6 and 7. On the west it is shown as extending to the High Water mark as it 

existed in January, 1975. The plan shows found survey monuments along the northerly side of 

the Road Allowance, and setting the standard 20.12m (66') width. 

3.11 (Tab 21) Plan 51R-7026 

This survey deals with the remainder of Lot 18, Concession 7, after Reg’d. Plans 779 and 1296 

are accounted for. It shows an alignment for the Road Allowance between Concessions 6 and 7 

across Lot 18. The plan shows survey monuments for the SE’ly corner of Lot 18, Concessions 7 

and the NE’ly corner of Lot 18, Concession 6, but these corners weren’t considered to be of 

much use in resolving the issues specific to the subject survey. 


3.12 (Tab 22) Plan 51R-10058 

This survey is of a 1.83m strip along the northerly boundary of Lot 1, Reg’d. Plan 757. The plan 

shows survey monuments found for the NE’ly and NW’ly corners of Lot 1, which it attributes to 

Reg’d. Plan 757. In keeping with what appears to be standard practice in the area, the westerly 

boundary of Part 1 on the plan, as well as all of the lots, is set at 53.34m, the depth of the lots as 

indicated on Reg’d. Plan 757. Ronald Stewart O.L.S. does a thorough review of this practice in 

his Survey Report for Boundaries Act File B-1212. (See para. 6.4.8) 

3.13 (Tab 23) Plan 51R-14274 

This is a survey of the remainder of the north half of Lot 18, Concession 6. There are no 

surprises on the plan, with an alignment shown for the northerly boundary of the lot, where it 

abuts the Road Allowance between Concessions 6 and 7 that appears to be consistent with Plan 

51R-7026. 

3.14 (Tab 24) Plan 51R-31482 

This is a survey of a 15.24m parcel comprising part of Lot 18, Concession 6 and part of Block A, 

Reg’d. Plan 757. The survey area lies just north of Lot 1, Reg’d. Plan 757, but is separated from 

Lot 1 by 2.13m. The survey is based entirely on found survey monuments, and Part 1 on the plan 

is shown as extending across the ‘Beach’ area (shown on Reg’d. Plan 757) to the water’s edge of 

Georgian Bay. This is the first time I have come across a survey in this area claiming ownership 

extends to the water’s edge. 

3.15 (Tab 25) Plan 51R-34310 

This is a survey of the Road Allowance between Concessions 6 and 7 in Lot 19 and part of Lot 

18, the Road Allowance between Lots 18 and 19 in Concession 7 and part of Concession 6 and 

part of Pine Avenue, Reg’d. Plan 779. The plan shows finding survey monuments along these 

Road Allowances, and laid out Parts coinciding with wood post barricades. O.L.S. Raikes 

projected his alignment to the water’s edge. Several of the found monuments are attributed to 

MMM (Marshall, Macklin, Monaghan Limited, O.L.S.). I contacted Ronald Stewart O.L.S. for 

information about this survey, but he indicated that although he had been involved, he was only 

an assistant to David Lambden. I spoke with Mr. Lambden and he advised that records are 

available, but in storage, and he is having trouble accessing them, due to mobility issues. 


3.16 (Tab 26) Plan 51R-35907 

This is a survey of Lots 1 and 2, Reg’d. Plan 757. O.L.S. Reynolds found survey monuments for 

the northerly boundary of Lot 1 and the southerly boundary of Lot 5, and proportioned for the 

southerly boundary of Lot 2. He produced the sidelines across the ‘Beach’ area (as shown on 

Reg’d. Plan 757) to their intersection with the water’s edge of Georgian Bay. Part 1 on the plan 

overlies Part 1 on Plan 51R-10058, but extends the boundaries to Georgian Bay. 

3.17 (Tab 27) Plan 51R-36379 

This is a survey of Part of Lot 19, Concession 6 and part of Block A, Reg’d. Plan 757. The land 

in question lies between Part 1, Plan 51R-31482 and Part 1, Plan 51R-35907. The portion of 

Block A being dealt with was extended across the ‘Beach’ area (shown on Reg’d. Plan 757) to 

the water’s edge of Georgian Bay. 

3.18 (Tab 28) Plan 51R-36555 

This is a survey of Part of Lot 19, Concession 6. It includes Part 1, Plan 51R-4292 as well as two 

parcels immediately to the south. All three extend to the water’s edge of Georgian Bay, and to 

provide frontage for the Part 1, 51R-4292 portion, O.L.S. Reynolds bent the southerly boundary 

of the Road Allowance between Concessions 6 and 7 at the ‘high water mark as illustrated on 

Plan 51R-4292, setting the direction of the bend perpendicular to the general direction of the 

shoreline. The southerly boundary of Part 1, Plan 51R-4292 was set using an unspecified 

method, while the two parcels to the south simply had the directions for their their boundaries 

produced. There is no explanation of the rationale for the direction of any of these lines on the 

face of the plan. 

3.19 (Tab 29) Plan 51R-36631 

This is a survey of Part of Lot 19, Concession 6, which immediately abuts the southerly boundary 

of Part 3, Plan 51R-36555. Again O.L.S. Reynolds accepted found monuments and produced the 

sidelines to the water’s edge of Georgian Bay. 

3.20 (Tab 30) Plan 51R-37764 

This is a survey of Part of Lot 19, Concession 6 lying between the Road Allowance between Lots 

18 and 19 and the easterly boundaries of Lots 27 through 42, Reg’d. Plan 757. It defines a 

significant portion of the Road Allowance boundary with numerous survey monuments. 


3.21 (Tab 31) Provisional Boundaries Act Plan 

This is a re-survey of the land previously surveyed as Part 1, Plan 51R-36555, within Lot 18, 

Concession 6. There are no significant changes to the actual survey, although the graphic 

representation of Block A, Reg’d. Plan 757 and the Road Allowance between Concessions 6 and 

7 has changed. Block A is shown as comprising part of Parts 1, 2 and 3, Plan 51R-36555, 

contrary to what is shown on that plan. The Road Allowance is shown as extending to the 

production of the boundary of Block A, and bending at that point. There is no change in the 

monumentation between Plan 51R-36555 and this plan. 

I understand that the Boundaries Act process is on hold until the subject Municipal Re-survey is 

completed. 

3.22 (Tab 32) Provisional Reference Plan by Gary Preston 

This is a survey of Lot 19, Concession 7, and consists of all of the land lying west and north of 

Parts 1 and 2 and Parts 3 and 4 on Plan 51R-34310. O.L.S. Preston found most of the survey 

monuments shown on Plan 51R-34310 and produced the alignment to the water’s edge of 

Nottawasaga Bay, planting one new monument. In discussions with O.L.S. Preston, he advised 

that the land was proposed for re-development, but a business partnership fell apart and all 

plans for the re-development have been cancelled, so the plan was not finalized. 

3.23 (Tab 33) Plan BA-2624 by Ronald Stewart O.L.S. 

This is a survey to confirm the boundaries of Lots 79 and 78, Reg’d. Plan 779, in the subdivision 

immediately north of the Road Allowance between Lots 18 and 19. There are two significant 

factors from this survey: 

1) O.L.S. Stewart established the easterly boundary of the 20.12m reservation for road in the 

Crown Grant to John Goesmann, based on an estimated elevation for the water’s edge at the 

time of the Grant as determined by David Lambden in some research he had undertaken for the 

Township of Tiny; 

2) He extended the existing lot lines beyond the straight line westerly boundary of the subdivision 

across the sand beach area to intersect the easterly limit of the 20.12m reservation along the 

shore. A more detailed discussion of this survey is at paragraph 6.47 where the legal arguments 

will be considered. 


3.24 (Tab 34) Field Notes by D.W. Lambden O.L.S. 

These are preliminary field notes for a survey involving the subject Road Allowances which was 

never completed. I spoke with O.L.S. Lambden about this and he has been unable to locate all of 

his records, but the field notes indicate the a traverse using a total station as well as ties to 

various land features. They offer no guidance as to how O.L.S. Lambden thought the Road 

Allowances in question should be surveyed. 

Included with the field notes are some control sketches and a co-ordinate list for all of control 

network established using GPS. There is no indication of the system, so I assume co-ordinates 

are in NAD83 (original). One of these points coincides with a survey monument we tied in at the 

Jackson Point boat launch, and confirms the elevation we have determined through the Precise 

Point Positioning Service of Geodetic Surveys of Canada. 

3.25 (Tabs 13 and 14) Surveys of Lots 6 and 7, Reg’d. Plan 779 by J.W. Nicholson O.L.S. 

These two surveys marked the corners of Lots 6 and 7, The evidence found and method used for 

the survey of Lot 7 are not shown, in keeping with the practice at that time, but survey 

monuments were set for the NE and SE corners of Lot 7, while witness monuments were set 

1.52m (5 feet) easterly from the NW and SW corners. It appears that O.L.S. Nicholson set plan 

bearing and distance for the westerly boundary. The plan shows the lot being bounded exactly in 

accordance with Reg’d. Plan 779, but no comment is made about the status of the beach area 

lying between the indicated boundary of Lot 7 and the water’s edge of Nottawasaga Bay. 

The survey of Lot 6 is identical other than being in the format of a Surveyor’s Real Property 

Report. An additional survey monument is reported for the actual NW corner of Lot 6, in 

addition to the witness monument. I did not obtain the field notes for this survey, but I suspect 

that both the NW and SW corners of Lot 6 were set during a preliminary phase, and then shown 

as found on the plan, since the dwelling is shown as being under construction. Again, O.L.S. 

Nicholson shows the lot as only extending to the monumented line by the registered plan, with no 

comment about ownership of the beach area. The plan indicates a distance of 10.7m from the 

monumented line to what he calls the ‘present tree line’, which I assume O.L.S. Nicholson is 

equating to the ‘high water mark’ as indicated on Reg’d. Plan 779. 

3.26 (Tabs 51 and 52) Provisional BA Plan by Ronald Stewart O.L.S. 

This is a survey to confirm the boundaries of Lots 42 through 45, Reg’d. Plan 779, in the 

subdivision immediately north of the Road Allowance between Lots 18 and 19. There are two 

significant factors from this survey: 

1) O.L.S. Stewart established the easterly boundary of the 20.12m reservation for road in the 

Crown Grant to John Goesmann, based on an estimated elevation for the water’s edge at the 

time of the Grant as determined by David Lambden in some research he had undertaken for the 

Township of Tiny; 


2) He extended the existing lot lines beyond the straight line westerly boundary of the subdivision 

across the sand beach area to intersect the easterly limit of the 20.12m reservation along the 

shore. A more detailed discussion of this survey is at paragraph 6.47 where the legal arguments 

will be considered. 

At the time of writing this report the application had not yet been heard, nor had a decision yet 

been rendered. It appears that objections have been filed so this application will likely be the 

subject of a Hearing with a full decision rendered. 


4) Title Search Review 

I obtained copies of the Property Index Maps (or Block Maps)by means of a personal visit to the 

Land Registration Office (LRO) for Simcoe County in Barrie. They can be found at Tab 54. 

Using these maps I determined the Property Identification Numbers (PINs) for the subject and 

adjacent lands, and obtained copies of the PIN print-outs through the on-line Teraview service. I 

made a subsequent attendance to the Barrie LRO to view the original mounted versions of Reg’d. 

Plans 757 and 779. 

I also wished to review the Abstract Book for Lot 18, Concession 6 and for a random sampling of 

the lots within Reg’d Plan 757 (prior to automation of the Land Registration System the land in 

this area was mostly registered under The Registry Act and all dealings recorded on Abstract 

pages). A contract Title Searcher from Barrie was hired to obtain the required pages which are 

now stored on microfilm. She provided the actual pages as well as a summary ‘Tree’ following 

each separate line of ownership. 

4.1 Subject Lands (see Tab 55 for copies of PINs) 

The Road Allowance between Concession 6 and 7 west of the Road Allowance between Lots 18 

and 19 is held under PIN 58394-0138. The registered owner is the Corporation of the Township 

of Tiny. The Road Allowance between Lots 18 and 19 within Concession 7 is held under PIN 

58394-0139. The registered owner is also the Corporation of the Township of Tiny. The only 

entry on this PIN is the deposit of Plan 51R-34310. 

4.2 Adjoining Portion of Road Allowance (see Tab 56 for copy of PIN) 

The Road Allowance between Concession 6 and 7 lying between the Road Allowance between 

Lots 18 and 19 and the Road Allowance between Lots 13 and 14 is held under PIN 58395-0004. 

The registered owner is the Corporation of the Township of Tiny. The only entry on this PIN is 

the deposit of Plan 51R-34310. 

4.3 Lot 19, Concession 6 (see Tab 57 for copy of Abstract, PINs and Instruments) 

Reg’d. Plan 757 shows two parcels (identified as C. Fraser and D.B. Caston) to the north of Lot 

1 and Block A within Lot 19, Concession 6. On the plan they are shown as being a truncated 

rectangle, with a similar westerly boundary as for Lots 1 through 21. These parcels are shown 

as being parallel to the Road Allowance between Concession 6 and 7, with a total width of 

91.44m (300') and a depth of 106.68m (350') at a point coinciding with the SEly corner of Block 

A. At some point since then the two parcels were re-configured into their present shape, being 

Part 1, Plan 51R-4292, Parts 2 and 3, Plan 51R-36555, Part 1, Plan 51R-31482 and Part 1, 

Plan 51R-36379. I needed to know how this came about, in order to determine what might be 

appropriate for the Reynolds BA application. 


The two parcels referred to above (Fraser and Caston) were not created by Reg’d. Plan 757, but 

predate the subdivision. Caston was created in 1921 and originally consisted of the entire 91.44 

x 106.68m parcel, By ‘B&S’ 11132 from Henry Madill. In Sept. 1925 by Grant 12539, Caston 

sold the northerly 15.24m (50') to Charles Fraser. It is hard to say why the original parcel was 

shown differently on Reg’d. Plan 757, but there were no transfers from Caston or Fraser to the 

developers (Parnell, Parnell and Clute) to support the notion that the parcel originally acquired 

by Caston had changed. Assuming that ‘Water Line’ shown on Reg’d Plan 757 is accurate, the 

NW corner of the original Caston parcel would fall into Nottawasaga Bay, but the parcel would 

capture much of the area shown as beach on Reg’d. Plan 757. 

Inst 13555 (dated April 4, 1930) was a Quit Claim from Ernest Madill (former owner of Lot 19) 

to Parnell, Parnell and Clute to the land within Reg’d. Plan 757 as well as to the land between 

the High Water Mark and the Water’s Edge of Georgian Bay. This document pre-dates the 

registration of the subdivision by slightly more than one month and indicates an understanding 

by the developers that they owned the land to the west of the High Water Mark and that it had 

intentionally been excluded from the subdivision lots. Mr. Madill no longer owned the Caston or 

Fraser lands, so the Quit Claim could have no effect on them. 

Subsequently, Tiny Beaches Road (Lot 22, Reg’d. Plan 757) was extended northerly from the 

northerly end of the subdivision to intersect the Road Allowance between Lots 18 and 19. A 

portion of Lot 19 lying north of the subdivision and east of Tiny Beaches Road was surveyed as 

Part 1, Plan RD-390 and conveyed. The remaining portion of the Caston land was re-configured 

into 4 15.24m lots, plus a remainder at the north end of Lot 19, which was surveyed as Part 1, 

Plan 51R-4292. The land designated as Part 1 on Plan 51R-4292 is held under PIN 58392-0086, 

and is owned by Acorn Lodge Ltd.. Plan is 51R-36555 is deposited on title, and document 

RO134683, which is a By-law imposing subdivision control under Section 26(6) of the Planning 

Act (RSO1960) is also registered. 

I believe that the land now shown as Parts 1 and 2, Plan 51R-36555 should properly extend as 

far west as the westerly boundary of the Caston parcel but no further. The land west of the 

Caston parcel remains part of the ‘Beach’ area on Reg’d. Plan 757. 

4.4 Lot 19, Concession 7 (see Tab 58 for PIN and Crown Patent) 

Lot 19, Concession 7 is held under PIN 58394-0091 and is owned by Romspen Investment 

Corporation. The same subdivision control By-law by RO134683 is registered on title. A 

foreclosure Judgement is also registered by SC801598. 


4.5 Lots in Reg’d. Plan 779 (see Tab 59 for Abstract, PINs and Instruments) 

The question of extent of lands included within these subdivisions could become an issue so the 

original plans needed to be examined. In other legal proceedings within Tiny Township this has 

been an area of interest. The original mounted plans are not readily available on the floor of the 

Registry Office, but a Clerk willingly went to the storage area and retrieved them for me. 

There is no shading on the copy of Reg’d. Plan 779 I obtained from Teraview, which is also a 

‘Certified True Copy’. This is consistent with the original which I viewed at the Land Registry 

Office. As best I could I also compared my copy with the original, and I could not see any 

discrepancies. 

According to Reg’d. Plan 779, Lots 1 through 4 abut the Road Allowance between Lots 18 and 

19. The remaining lots are shown with a straight-line westerly boundary and with Nottawasaga 

Bay as the adjoining entity. Since there is a possibility that we will be extending the Road 

Allowance to the water’s edge I also searched title for the lots which could potentially be 

impacted. 

Lots 1 and 2 are held under PIN 58394-0085, and are owned by Arthur Resse Dunsford and 

Rosalyn Diane Dunsford. The subdivision control By-law (RO134683 is registered against title. 

Lot 3 and the southerly 9.14m (30') of Lot 4 (as described by RO847755) are held under PIN 

58394-0084, and are owned by Terry Gordon Church and Lora Ann Klatt. The subdivision 

control By-law (RO134683 is registered against title. 

Lot 5 and the northerly 6.10m (20') of lot 4 are held under PIN 58394-0083, and are owned by 

Danu Mandlsohn, Samuel Paul Mandlsohn, Mark Mandlsohn and Anne Mandlsohn. The 

subdivision control By-law (RO134683 is registered against title. 

Lot 6 is held under PIN 58394-0082, and is owned by William Millet Salter, Nancy Claire Salter, 

Gregory Millet Salter and Lindsay Jane Salter-Craig. The subdivision control By-law 

(RO134683 is registered against title. 

4.6 Reg’d. Plan 757 

The scanned copy of Reg’d. Plan 757 I obtained is stamped as a ‘certified true copy’ and signed 

by J.A. Small, Dep. Registrar on May 15, 1972. However, given technology of the day, it is a 

black and white copy. Lots 1 through 42 (including Lot 22, which is now the road) are shaded 

gray, while the are labeled ‘Beach is non-shaded. 


The mounted original in the Land Registry Office for Simcoe County is in colour and the portion 

shaded gray on my copy coincides exactly with the area coloured blue. The Beach area is white, 

as is the case on the scanned copy I obtained. 

4.7 Reservation in Patent 

In the Crown Patent to John Goesmann for Broken Lot 18, Concession 7, there is a one chain 

(20.12m) reservation for road allowance with free access to the beach for all vessels, boats and 

persons. In Boundaries Act File B-1176, this has been interpreted as being along the shore of 

Nottawasaga Bay, and measured from the estimated contour of the water’s edge as it existed at 

the time of the Crown Grant (175.9 IGLD 1985). (See Plan BA2624, Stewart Provisional BA 

Plan and paragraph 6.4.7 for further details). 

4.8 Abstracts for Lots 1, 20 and 42, Reg’d. Plan 757 (see Tab 60 for copies of Abstract, 

Instruments and PINs) 

In the Ellard case, which has a ‘Sand Beach’ area shown on the plan, access easements in 

favour of the non-beachfront lots had been registered. This became a significant factor in trying 

to understand the rationale of the developer. Since Reg’d. Plan 757 has a similar fact situation I 

thought it might be helpful to consider the Abstracts for a random sampling of the subdivision 

lots to see if a similar easement arrangement had been made. 

Lots 1 and 2 are presently held under PIN 58394-0092. The PIN has an easement registered 

against it, over Part 1, Plan 51R-10058, in favour of the owners of Lots 41 and 42, Reg’d. Plan 

757 by Inst R01238027, dated Nov. 3, 1993. This easement is obviously much later in chronology 

than the registration date of the subdivision. Also, since it only applies to Lots 41 and 42, it can’t 

be part of an overall plan to provide access to all of the back lots. 

Lot 20 is presently held under PIN 58394-0109. No easements are reflected on the PIN, nor on 

the underlying Abstract. 

Lot 42 is presently held under PINs 58394-0124 and 58394-0002. PIN 58394-0002 is a 2.44m 

wide strip from the west side Lots 23 through 42 for a road widening and is owned by the 

Township of Tiny. PIN 58394-0124 comprises the remainder of Lot 42 and is the beneficiary of 

an easement over Part 1, Plan 51R-10058 by Inst. R01187497. 


4.9 Abstract for Lot 8, Reg’d. Plan 779 (see Tab 59 for copies of Abstract, Instrument and PIN) 

Following the same line of reasoning as under Section 4.8, I also obtained the Abstract and PIN 

for Lot 8, Reg’d. Plan 779. This plan is different from Reg’d. Plan 757 in that there is no 

identified parcel of land lying between the surveyed ‘High Water Mark’ and the water’s edge. 

Therefore, some of the distinguishing facts from Ellard do not apply. However, an examination 

of at least one of the lots was considered essential. 

Lots 1 to 3 clearly never had any frontage to the lake, while a small portion of lot 4 and the 

remaining lots all had some exposure to the lake according to Reg’d. Plan 779. By virtue of this 

survey Lot 14 will be the first lot without the influence of the Road Allowance between Lots 18 

and 19 in front of it. I chose Lot 8 as being indicative of all regular lots within this subdivision. 

Lot 8 is held under PIN 58394-0078. There is no mention of an easement over Lot 8, or in favour 

of Lot 8 over the portion of Lot 18, Concession lying in front of Lot 8. 

In his review of Title documents for Boundaries Act File B-1212 (Dies), referred to below at 

Section 6.4.7, O.L.S. Stewart refers to a number of Quit Claim Deeds. Since they give insight into 

the history and the understanding about ownership I obtained and reviewed them. Inst. 21050 

(Frederick T. Stott (developer of Reg’d. Plan 779) to Anne O. White, George V. Stott and John E. 

Stott) dealt with the portion of Lot 18, Concession 7 lying east of Reg’d. Plan 779. No mention is 

made of the land lying west of the subdivision plan. 

Inst 788360 (by George M. Stott, executor of estate of George V. Stott, Ann White and John Stott) 

transferred parts of Lot 18, Concession 7 lying between Reg’d. Plan 779 and the water’s edge of 

Nottawasaga Bay to the Corporation of Township of Tiny. 

Two Quit Claim deeds (1335867 and 1335868) were registered in 1983. These were executed by 

the Township of Tiny to the owners of Lots 78 and 79 for the land lying in front of these lots, 

between the subdivision and Nottawasaga Bay. The wording in the documents indicates that they 

were intended to remove any cloud on Title that Inst 788360 might have caused, and make 

specific reference to the Rowntree Beach Association case. 


5) Findings from Field Survey 

5.1 General Goals 

My goal for the preliminary site visit was to locate and make survey connections to all of the 

survey monuments related to the subject Road Allowances, as well as to the nearby properties 

(and especially the subject of the provisional Boundaries Act plan). Some monuments along the 

Road Allowance between Lots 18 and 19 to the south of the Road Allowance between 

Concessions 6 and 7 were also found, although several were either missing or disturbed. We also 

found some survey monuments for the nearby lots within Reg’d Plan 779, and some near the 

southerly end of Reg’d. Plan 757. 

In addition to the subject boundary, I wanted to be able to give a reasonable answer to the 

question: What will the impact on the adjoining owners be if we establish the Road Allowances 

to the water’s edge in accordance with the methods prescribed by The Surveys Act? Boundaries 

Act File B-1173 (see para. 6.4.3) dismissed that application because insufficient consideration or 

research had been undertaken into its impact on neighbouring properties. 

After reviewing the preliminary findings and the recent BA Application by O.L.S Stewart I 

determined that some additional bars needed to be located and measured to. In addition, 

additional survey monuments needed to be placed to define the boundaries of the Road 

Allowances in question. Also, during a meeting with the Surveyor General and staff, it was 

determined that a profile along the centre of both Road Allowances needed to be measured so 

that sketches could be prepared showing the location of water’s edge at different important dates 

during the history of the area. These would be: 

1. 1823 (Patent to John Groessmann); 

2. 1891 (Municipal Survey of Road Allowance between Concessions 6 and 7); 

3. 1920 (Grant to J.B. Caston); 

4. 1929 (Field Work for Survey of Reg’d. Plan 757). 

The derivation of these elevations is explained at Paragraph 6.5.4, and the profiles for both 

Road Allowances are included at Appendix D. 


5.2 Site Description 

The subject area is located along the easterly shore of Nottawasaga Bay approximately 20km 

southwesterly from the Town of Midland. It appears to be an active summer vacation area with 

numerous motels and probably thousands of private cottages or permanent homes. 

There is a sand beach area approximately 75m wide lying between the developed lots and the 

water’s edge. Approximately coinciding with the straight line westerly boundary of the 

subdivision lots there is a bank with a height varying between 1.5 and 3m high. Trees and brush 

grow a little further west from the straight line boundary, but not very far. From the end of 

vegetation the beach slopes gently toward Nottawasaga Bay. 

With very few exceptions, there is nothing permanent on the beach, presumably because of the 

wind and because the water level and extent can fluctuate greatly. On our third day on site in 

December 2012, the wind blew with such force that wave action extended 8m from what I took to 

be the actual average water’s edge. Also, at one point a gust blew over our GPS base station, 

forcing us to re-do our localization process. 

Although the beach area is quite extensive and impressive, it also has avery bleak and lonely 

sense under near winter conditions. There were one or two remnants of destroyed structures 

closer to the water, but for the most part the landowners seem quite aware of the volatility of the 

water and potential strength of the wind during stormy weather, and have learned that the beach 

area is not suitable for permanent structures. 

There is a much more alive feel to the area under summer conditions. There were numerous 

frames for what I assume are tent style sun shade spaces placed at regular intervals, and 

recreational equipment such as kayaks, water boards, chairs and beach toys were stacked on the 

beach well in front of the cottages. Several boat lifts were placed in the water 20 or 30 metres 

offshore. However, nothing of a permanent nature was there. 

The actual lake shore is remarkably straight: I could probably see more than 1km in either 

direction along the beach from the area of interest. A screen shot from Google Earth is included 

at Appendix B, showing general site conditions. 


5.3 Geo-referencing 

In order to meet project requirements that the survey be geo-referenced, a five station GNSS 

session was observed using one dual frequency and four single frequency receivers. The 7 hour 

data file from the dual frequency observation was submitted to the Precise Point Positioning 

Service (PPP) provided by Geodetic Surveys of Canada for processing. The absolute accuracy 

for the results was 0.02m at the 95% confidence level. Two new concrete pins (Stations 1200 and 

1202) were established in the general project area, and temporary nails were set at the Road 

Allowance between Lots 13 and 14 and also at Baseline Road. Another nail was set at the 

Concession 4 road, strictly to provide better geometric structure to the network. A four hour 

GPS session was observed in the field, and downloaded and processed using Spectrum v4.2.2 

software. For preliminary processing we used the value for Station 1002 as measured relative to 

Station 2 from Plan 51R-34310 (As determined by RTK measurements - see para. 5.4) as a fixed 

base point. The results of this survey were excellent, with worst-case 95% confidence error 

ellipses of 0.006m for the stations. Co-ordinates are for UTM Zone 17 (NAD83-CSRS). 

Elevations are also based on the PPP observation and processing and are orthometric, referred 

to the CGVD28 datum. 

During our time on site during August 2013, a second 6.5 hour dual frequency GPS observation 

was made over Station 1202 to verify our results. After processing by PPP, the results (with 

estimated 0.025m accuracy at the 95% confidence level) agreed with the previous value within 

0.02m. 


5.4 Field Procedures 

All field measurements were made using a Sokkia ISX2700 Real Time Kinematic (RTK) GPS 

system. For the first day of field operations the base unit was set in a clear area close to the area 

being worked in and the system was ‘localized’ (or referenced) to Station 2 on Plan 51R-34310, 

assuming that this would put us in a reliable UTM co-ordinate system, since we did not have a 

point with known co-ordinates to reference to. On the second day we again localized to Station 

2, so that all points were in a common co-ordinate system. Ties were also made to some remote 

survey monuments in Lots 9 and 14, and for these points, the RTK system was localized to GPS 

Stations 1203 and 1201, respectively. 

Once the final GPS processing relative to the PPP value for Station 1200 had been completed, 

the entire field co-ordinate file underwent a co-ordinate transformation to make the file 3- 

dimensionally correct. It turns out that our final co-ordinate values do not compare favourably 

with those by Plan 51R-34310 at all, so all co-ordinates needed to undergo a 3-dimensional shift 

to be in an accurate and reliable system. As a check on our work I compared our measured value 

for the Lambden control point at Jackson Point with our own. We agree vertically within 0.04m 

with the Lambden value, but differ by several metres with his horizontal values. Since the 

Lambden work was done in 2001, I suspect that it is in NAD83 (original). The PPP Observation 

we observed on our return trip verifies our values. As a further check, and to understand the 

impact of our work on the lots in Reg’d. Plan 779, we also measured to four points from the 

O.L.S. Stewart Boundaries Act application on Lots 42, 43, 44 and 45. Again we agreed within 

0.02m with the co-ordinate values shown on that plan. 

All measurements to survey bars consisted of a first sequence of 10 ties which were averaged. 

Following this tie, a loss of satellite lock was forced, after which the system was allowed to reacquire 

satellite lock and an independent check measurement was obtained for verification of the 

initial averaged value. In the event that the comparison is not satisfactory, the process is 

repeated, until we are confident that the repetition tie and check tie are compatible, and that no 

corruption of the GPS signal is taking place. 


5.5 Survey Evidence 

Most of the survey monuments we expected were found, although both monuments at the 

intersection of Tiny Beaches South Road with the Road Allowance between Lots 18 and 19 

(Skylark Road) were either disturbed (northerly side of intersection) or inaccessible (buried 

beneath the hard topped road on the southerly side of the intersection). 

There is a monument shown on Plan 51R-34310 which should be located along the 

northeasterly boundary of the Road Allowance between Lots 18 and 19 (apparently at the NW’ly 

corner of PIN 58394-0084), but it could not be found. A marker post with a concrete base has 

been erected close by, and apparently the monument was accidentally removed during the 

construction process. A new monument was re-established to replace the missing one on the 

production of the survey monuments further to the south, and at the distance shown on Plan 

51R34310. 

Two monuments are shown on Plan 51R-34310 as being nearly opposite the monument replaced 

above, along the southwesterly limit of the Road Allowance, but neither could be found. The 

provisional survey by Gary Preston O.L.S. shows one additional survey monument further to the 

north along this boundary. It was still in place, located close to another steel post in concrete. 

In addition to the survey monuments, we also tied in all built features (buildings, fences, play 

areas) on or near the subject area, as well as the ‘high water mark/ tree line, water’s edge, and 

the contour for the estimated water’s edge as it existed at the time of the Crown Grant to John 

Goesmann of 1823 (175.9m IGLD 1985), in order to locate the easterly boundary of a 20.12m 

reserved in that Patent. The basis for this value will be discussed more fully under the Case Law 

review found at Paragraph 6.4.7. 

In an attempt to evaluate how well the existing survey monuments compared to the dimensions 

shown on Municipal Survey 572, we also tied in bars on either side of the Road Allowance 

between Lots 13 and 14 and at the Base Line east of Lot 9. This was not a comprehensive 

boundary survey, but simply a measurement of bearings and distances between survey 

monuments we found. The results are illustrated on the plan included at Appendix E. The 

bearings are quite at odds with the results from Municipal Resurvey 572: that plan shows a 2 

degree bend to the south across Lots 14 through 18 relative to the direction across Lots 9 

through 13. We found a 1 degree bend to the north, followed by another 1 degree bend into Lot 

19. I can’t really say what the significance of this is, other than note these large differences. 


I also reviewed several of the plans listed under ‘Secondary’ to get a better understanding of 

progressions of surveys and evidence and whether I could find similar survey connections across 

the lots we had measured. Plan 51R-18831 shows a connection across Lots 9 through 13 in 

Concession 7. On the Appendix E plan I show a difference of 0.8m across these lots as compared 

to 51R-18831, but a bearing difference of 0 degrees 51 minutes. Both plans differ from 

Municipal Survey 572 by 30.6m. It is noteworthy that Plan 51R-18831 (surveyed in 1989) shows 

a stone monument at the SE corner of Lot 9, Concession 7, which is the monument style placed 

by the Municipal Survey. In a contradictory manner, Plans 51R-2775 (1974) and 51R-4649 

(1975) show an SIB by OLS 650 (John Harvey). I also looked at Field Notes by Gary Preston 

O.L.S. from 1995 where he claims to have replaced the stone monument with an SIB and cap. We 

found a 0.025 square iron bar and cap in conformity with the Preston Field Notes. 

I also note that Plan 51R-18831 shows a 20m (plus or minus) displacement between the Road 

Allowance as surveyed by Municipal Survey 572 and the same Road Allowance as surveyed by 

Plan 51R-15505. This discrepancy is very much outside the scope of the present survey, but 

could account for some of the angular discrepancy we have discovered. 

Across Lots 14 through 18 we measured 20.1 longer than the distance shown on Municipal 

Survey 572. The bearing difference is two degrees 15 minutes as compared to the Municipal 

Survey. I checked the field notes to determine how P.L.S. Galliver had determined his bearing 

reference. On Page 8 of his notes (Page 9 including the Title Page) he shows his reading and 

time of observation of Polaris at elongation on September 22, 1891. Regardless of bearing 

reference, the bend in the Road Allowance at Lot 14 is significant: 177 degrees 48 minutes 50 

seconds according to the Municipal Survey and 180 degrees 51 minutes 50 seconds as we have 

measured. 

There is no record of surveys extending across the entire extent of Lots 14 through 18. Plan 51R- 

7026 shows a bearing and distance across the southerly boundary of Lot 18, Concession 7, while 

Plan 51R-14274 shows a similar connection across the northerly boundary of Lot 18, 

Concession 7. J. Nicholson’s 1973 survey of Northerly Half of Lot 17, Concession 6 shows a 

bearing and distance across the northerly boundary of Lot 17, Concession 6. The plan shows a 2 

degree bend in the Road Allowance for Lot 17 as compared to Lot 18. Bearings on the 1973 

Nicholson plan are based on a solar observation, while Plan 51R-14274 is based on a bearing 

from a previous survey (51R-8584), which was in turn based on Plan 51R-4722 which was based 

on Plan 51R-1589 which was based on Reg’d. Plan 757. Since there is no record of this angle 

having been measured, it is impossible to know whether the 2 degree bend is real, or a result of 

an unreliable bearing reference resulting in incompatible bearing systems. 

The 1984 Kitchen survey surveyed the west half of Lot 17, Concession 7. It shows a similar width 

for Lot 17 as O.L.S. Nicholson measured for Lot 17, Concession 6. There is a 0 degree 27 minute 

difference in bearing for the Road Allowance between Kitchen and Nicholson. 


Plan 51R-34916 surveyed part of Lot 16, Concession 7, and includes a bearing and distance 

across the southerly boundary. Bearings are UTM grid and no convergence factor is indicated 

on the plan, but using the value I have determined, the astronomic bearing is close to the bearing 

on the Nicholson plan for Lot 17. Similarly, the distance comparison is reasonable, being 

approximately 20m. The nominal lot width according to the original survey is 624.0m: Plan 51R- 

34916 measures 622m for Lot 16, while Nicholson measures 642.0m for Lot 17. I could not find 

any survey records for Lots 14 or Lot 15, so no overall comparison across Lots 14 through 18 is 

possible. 

I would summarize all of this by saying that there are many unknowns with respect to the 

bearings for the underlying surveys. No consistent bearing system has been used over the years. 

There may be a 2 degree bend across Lot 17, but I can’t be sure from these plans. Evidence used 

for many of these surveys was old fencing, which may have been valid as evidence, but it is 

impossible to know whether or not the fences were actually based on Municipal Survey 572. If 

they were not, the bends I have noted could be accounted for. 


5.6 Centre-line Profile of Road Allowances 

Three dimensional measurements were made along the centre-line of both Road Allowances at 

all key changes in grade between the water’s edge and the top of sand bank at the ‘back of the 

beach’. The location for each of the critical elevations were determined by interpolated between 

each of the actual tie points. It is recognized that a sand beach is an ever changing environment, 

but I am not aware of any better information related to these elevations. Below the water level, 

wave scouring will remove sand in one place and deposit it in another location. Similarly, wind 

action will have a similar impact above water level. As the water level rises or lowers, this 

dynamic will continue, but in differing ways and locations. There is no doubt in my mind that the 

exact profiles we have measured are not the same as at the dates we are trying to replicate, but I 

know of no other better way to accomplish the task. I would suggest that in the absence of 

accurate historic surveyed representations of this beach area (which do not exist), that the 

exiting profile is the best model we can produce. 

Both profiles show a cluster of events in close proximity, despite the passage of nearly forty 

years. This is not surprising however, since the water elevations from 1891, 1920 and 1929 are 

all vertically within 0.4m of each other. The Profile of the Road Allowance between Concessions 

6 and 7 also shows the location of the extent of the survey by the original Goessman survey and 

by the Municipal Survey, along with the interpolated elevation for these locations. The Field 

Notes for both of these surveys are very clear in the distances they measured, although neither 

shows an actual tie to the water’s edge. The Field Notes for the Municipal Survey indicate 

‘Drifting Sand’ and ‘Sand Dunes’ at the westerly extent of Lot 19, but no indication of the 

feature that was actually measured to. The Field Notes for the Original Survey by John 

Goesmann indicate that the measurement was ‘To the Beach’, but no tie to the Water’s Edge is 

shown. 

The Profile of the Road Allowance between Lots 18 and 19 shows the location of Goessman’s 

Shore Traverse station, along with it’s interpolated elevation. I have done my best to interpret 

Goesmann’s traverse notes, although I admit to some uncertainty as to what he is actually trying 

show. I have plotted the Shore traverse across Concessions 5, 6 and 7, and this plot is included 

at Appendix C. In several places, Goesmann shows a course which corresponds exactly with the 

course of either a concession line or lot line, and in some instances I have assumed that this 

course is referenced to a post at a lot corner. At the top of Page 89 of the Original Field Notes, 

where Goesmann starts his traverse across Concession 5, he shows a distance of 8.80 chains on 

a course of S60W, described as ‘at the Conc on the Sand’. On Page 14 of the same Notes, there 

is a total tally of 2 chains across Lot 23, with the final entry being 1 chain, described as ‘on the 

Sand Beach’. I have concluded that the traverse tie of 8.80 chains is from the centre-line post 

opposite the westerly boundary of Lot 23, Concession 5, and on a production of the Concession 

centre-line across the beach. 


Continuing to plot the traverse we have an entry of N30W and a distance of 2.05 chains at Conc 

7, which I have taken to be 2.5 chains from the centre-line intersection of the Road Allowance 

between Concessions 6 and 7 with the Road Allowance between Lots 18 and 19. Even though 

there is no indication that the Road Allowance between Lots 18 and 19 was actually surveyed 

and posted across Concession 7 I believe that the Shore Traverse connected to the centre-line 

post as described above. This Traverse Station was plotted on the Profile for the Road Allowance 

between Lots 18 and 19 and its elevation interpolated. Both Profiles are included at Appendix D. 

5.7 Connections to Survey Monuments by BA File B-1232 

Survey connections were measured to the three water side survey monuments on O.L.S. Stewart’s 

provisional plan, as well as to HCP 1 on that plan. The resulting bearings, distances and coordinates 

all agreed very closely with the values on the plan. A sketch has been prepared 

(included at Appendix F) showing the shape and relationship between the Road Allowance 

between Lots 18 and 19, the lots on Reg’d. Plan 779 and Lots 42 through 45 on Stewart’s survey. 

As is evident on the sketch, Lots 4 through 9 are ‘cut off’ from the lakeshore, if the sidelines for 

these lots were to be extended. However, as discussed under my Concluding Remarks, I am not 

convinced that any of these lots are entitled to be extended. The purpose for the sketch is to give 

an overall picture of how these various lines and parcels all fit together. 


6) Law Review 

6.1 Relevant Statute Law 

6.1.1 Municipal Survey 

This survey is being done under the authority of Section 48 of the Surveys Act, which reads: 

1) “The council of a municipality or the board of trustees of an improvement district, upon its 

own motion, may, or upon the petition of one-half of the landowners affected shall, pass a by-law 

authorizing an application to the Minister to cause a survey to be made under his direction for 

the purpose of fixing the position of a disputed or lost line, boundary or corner that is in the 

municipality and that has been surveyed under competent authority or under the Land Titles Act 

or the Registry Act.” 

2) “The Minister shall appoint and instruct a surveyor to make the survey for which an 

application has been made under subsection (1) and when the survey has been made and the 

plan and field notes have been examined by the Minister, the Minister shall cause a notice to be 

published once in each week for four consecutive weeks in a newspaper having general 

circulation in the municipality in which the survey has been made of a hearing to be held by him 

at a stated place on a day not less than ten days after the last publication of the notice at which 

hearing the survey will be considered and any interested persons will be heard, and upon the 

evidence submitted the Minister may direct such amendments to be made as he considers 

necessary and may confirm the position of the disputed or lost line, boundary or corner fixed by 

the survey, and any line, boundary or corner so confirmed is, subject to section 49, an 

unalterable line, boundary or corner and is final and conclusive and shall not be questioned in 

any court.” 

3) “The Minister shall mail within ten days of confirming a survey under subsection (2) a copy of 

the plan and field notes of the survey to the municipality and to every person who appeared at 

the hearing.” 

4) “Subject to section 51, the cost of a survey under subsection (2) shall be paid to the surveyor 

making the survey by the municipality making the application therefor upon notice in writing by 

the Minister to the municipality that the survey has been made, and the municipality may levy all 

or any part of such cost on the landowners affected by the survey in proportion to the benefit 

received as determined by by-law of the municipality and collect the same as taxes.” 

Section 49 provides a right of appeal: 

1) “Any person objecting to the confirmation of a survey under subsection (2) may appeal to the 

Divisional Court and the court may decide the matter on the evidence before it or direct the trial 

of an issue and may dismiss the appeal or order the Minister to amend the survey and plan in 

such manner as the court considers proper.” 

2) “Notice of an appeal under this section shall be served on the Minister within thirty days of 

the date of the confirmation by the Minister of the survey.” 

3) “Upon the expiry of thirty days from the confirmation of a survey by the Minister or where an 

appeal has been taken under subsection (1) within thirty days of the final disposition of the 


appeal, a copy of the plan and field notes of the survey or of the survey as amended in 

accordance with the order of the court, as the case may be, shall be registered by the Minister 

with the proper land registrar and a copy thereof shall be filed with the clerk of the municipality 

that made the application under subsection 48 (1).” 

Based on these sections from the Surveys Act, my instructions to undertake this survey are valid, 

provided that the proper procedure has been followed. These include: 

1. Properly constituted Municipal by-law requesting a survey. Presumably this could be 

challenged if a quorum was not present or any other defects exist could be used to negate 

the by-law; 

2. The line being surveyed must have previously been surveyed under competent authority, 

or have been surveyed under either the Registry Act or the Land Titles Act. In this case, 

being an original Road Allowance, the line was surveyed under instructions from the 

Surveyor General for Upper Canada in 1821; 

3. The Minister shall appoint and instruct a surveyor to undertake a survey. This has been 

done by the Surveyor General, who has been assigned this duty by the Minister. In this 

case my instructions were to survey the Road Allowances in accordance with the 

appropriate method prescribed by the Surveys Act. 

6.1.2 Road Allowances in Double Front Townships 

We find the following background and instructions in Section 24 of the Surveys Act (RSO 1990): 

1) “In this Part, “double front township” means a township where the usual practice in the 

original survey was to survey the township boundaries, the proof lines and base lines, if any, and 

the concession lines forming the front boundaries of the half lots and to establish the front 

corners of the half lots.” 

2) “A surveyor in re-establishing a lost corner or obliterated boundary in a double front 

township shall obtain the best evidence available respecting the corner or boundary, but if the 

corner or boundary cannot be re-established in its original position from such evidence, he shall 

proceed as follows: 

5) “If the concession line forming the front boundary of the half lots in a concession is 

obliterated beyond the last ascertainable point in a concession broken by a lake or river 

at its end, he shall re-establish such concession line on the same astronomic course as 

shown on the original plan and field notes from the last ascertainable point on the 

concession line.” 

The method for re-surveying an obliterated concession line is illustrated as #49. 

Instructions for dealing with side lines under this township system are found in Section 28, and 

specifically subsection 1: 

28. “A surveyor in establishing in a concession in a double front township a side line of a half 

lot that was not surveyed in the original survey shall proceed as follows: 


1. If intended in the original survey, the surveyor shall establish the side line on the same 

astronomic course as the boundary line of the concession at the end from which the lots 

are numbered, or, if such boundary line was not surveyed in the original survey because 

it was wholly broken by a lake or river and if intended in the original survey, the 

surveyor shall establish the side line on the same astronomic course as the boundary line 

at the other end of the concession, but where a proof line was surveyed in the original 

survey, the surveyor shall establish the side line on the side of the proof line that is 

farthest from the end of the concession that is intended to govern the course of the side 

line on the same astronomic course as the proof line.” 

The method for re-surveying an obliterated concession line is illustrated as #59. 

For the Road Allowance between Concessions 6 and 7, there are monuments on the northerly 

and southerly boundaries, approximately 90m easterly from the water’s edge. The method used 

to establish these monuments is unclear, but they appear to be undisputed, and I think they 

qualify as “last ascertainable points” as required by the Surveys Act. Subsection 24(2) calls for 

finding the best available evidence, which often involves old fences or other occupation which 

can be reasonably related to evidence from the original survey. In the case at hand, there are 

some widely spaced steel posts, apparently intended to approximately indicate the location of the 

Road Allowance. However, these posts are quite recent additions and I don’t believe they would 

qualify as having any status as boundary evidence. There is no other substantial evidence 

anywhere in the area of this Road Allowance. 

When dealing with original lot structure, and in the absence of better evidence, surveyors 

normally fall back on the provisions of the Surveys Act. The method used locally for setting Road 

Allowances appears to be to produce the alignment defined by existing monuments; my 

interpretation of Section 24 (2)(5) is that the surveyor is to set the course shown in the original 

field notes. We measured N59 degrees 07 minutes (UTM grid for Zone 17) for the last course; 

the direction in the original field notes is S60 degrees W, which as stated above, is most likely 

magnetic. Declination for 1822 is believed to be 0 degrees 32 minutes west of north, meaning 

that the astronomic equivalent for the original direction is S59 degrees 28 minutes W. The 

convergence correction for our Station 1002 located in the concrete base of a steel post 43m 

west of the “last ascertainable pont” is 0 degrees 43 minutes 02 seconds counterclockwise, 

resulting in a grid bearing of S58 degrees 45 minutes W. 


For the Road Allowance between Lots 18 and 19, our “last ascertainable points” are 100m on 

the easterly side of the Road Allowance and 120m on the westerly side from the water’s edge. A 

new SIB was set on the easterly boundary opposite the found monument on the westerly side to 

maintain a true 20.12m width. The measured bearing for the last course is N32 degrees 21 

minutes 30 seconds W (UTM grid) on both sides of the Road Allowance. I cannot find any “proof 

line” shown on either the plan or the field notes, and this is further confirmed by D.W. 

Lambden’s ‘Report on Road Reservations in Tiny Township (Para. A.4) (see para. 6.5.2 of this 

report). The Surveys Act instructs (Section 28 (1)) that side lines are to be set on the same 

astronomic course as for the boundary at the end of the concession from which the lots are 

numbered. The east boundary of the Township is shown on the original plan as having a bearing 

of N 30 degrees W: this is the only controlling bearing for the sidelines I can find anywhere on 

the plan. Converting this presumed magnetic bearing to astronomic gives a bearing of N30 

degrees 32 minutes W, and after applying convergence, we get N31 degrees 15 minutes W (UTM 

grid). 

This then leaves the question of whether we should follow the ‘local’ custom and produce the 

existing alignment, or follow the Surveys Act method and set bearings as calculated above. Since 

I contend that we need to follow the Surveys Act method rather than the common law procedure 

of setting a line perpendicular to the general direction of the shoreline (see section 6.3.2, 6.4.4 

and 6.4.8 below), then I believe that we need to do so rigorously, and the two Road Allowance 

boundaries were set in strict accordance with the Surveys Act. 

6.1.3 Re-establishment of Lost Township Corners 

We find the following instructions regarding the Minister’s powers in Section 24 of the Surveys 

Act (RSO 1990): 

2) “A surveyor in re-establishing a lost corner or obliterated boundary in a double front 

township shall obtain the best evidence available respecting the corner or boundary, but if the 

corner or boundary cannot be re-established in its original position from such evidence, he shall 

proceed as follows: 

1) “If the lost corner is a corner of the township, he shall report the circumstances to the 

Minister who shall instruct him how to proceed.” 

Although I have never found myself is a situation where this was considered necessary, I 

understand from surveyors who have that the process involves providing a sketch and a summary 

of the situation along with a proposed resolution to the Surveyor General who reviews and 

approves the proposed method (or presumably amends the method if considered necessary). The 

power of the Minister (Surveyor General) as expressed seems to be absolute, with not even any 

mention of opportunity to appeal. As such, I believe that an argument can be made that this same 

authority is carried throughout the Act, wherever the Minister or designated representative is 

involved. 


6.2 Case Law Related to Surveys under the Surveys Act 

Tabs referred to in the section refer to Volumes 1, 2 and 3 in bound materials entitled 

‘Legislation, Case Law and Decisions’ compiled for me by Izaak deRijcke, Barrister and 

Solicitor. 

6.2.1 Dennison v. Chew (Tab 3) 

A township lot line was surveyed in 1807, prior to the existence of methods under the Surveys 

Act. In 1818 a new Surveys Act was proclaimed which established legislated methods for the first 

time. Some time later the line was re-surveyed according to the new provisions, with approval 

from the adjacent owners. The line according to the Surveys Act was accepted as the correct line 

and the older first running was rejected. 

This gives credence to our intention to hold the Road Allowances straight according to the 

Surveys Act, because it recognizes the authority of the statutory provisions, even to the extent 

that it over-ruled a ‘first running’ of a line. 

6.2.2 Zone (Township) v. McDowell (Tabs 4,5 and 6) 

A road had been constructed in the vicinity of a township Road Allowance based on fences and 

the Municipality relied on what was then Sec. 478 of the Municipal Act: 

(1) Where the Council of a municipality desiring to open a original road allowance for road has 

by mistake opened a road which was intended to be, but is not wholly or partly upon such road 

allowance, the land occupied by the road as so opened shall be deemed to have been 

expropriated under a by-law of the corporation, and no person on whose land such road or any 

part of it was opened shall be entitled to bring an action for or in respect of what was done or to 

recover possession of this land, but he shall be entitled to compensation under and in 

accordance with provisions of this Act as for land expropriated under the powers conferred by 

this Act. 

Subsequently, Township Council resolved at the request of the Respondent to request a 

Municipal Resurvey under what was then Sections 13 and 14 of the Surveys Act. The results were 

adverse to the Township’s interest and the Council rescinded its original resolution requesting 

the Resurvey. The Minister of Lands and Forests would not accept the requested rescission and 

proceeded to confirm the survey under the Act. 

At the Supreme Court (High Court Division) trial (Tab 6), Orde J ruled that the provisions of Sec 

478 of the Municipal Act did not apply because there was no conclusive evidence of Statute 

Labour or expenditure of public money having been spent on the contested land, nor even that 

the actual constructed road was outside of the recently Resurveyed Road Allowance. The 

provisions of Sections 13 and 14 of the Surveys Act were binding on the municipality. 


This ruling was upheld at the Ontario Supreme Court Appellate Division. At the Supreme Court 

of Canada all six justices dismissed the appeal, but for a variety of reasons. The majority ruling 

is summarized as ‘The order of the Minister confirming the survey was conclusive and the 

boundaries established thereunder must be accepted’. Idington and Brodeur JJ ruled ‘The order 

of the Minister is final and the municipality cannot claim any boundary other than that 

established by survey.’ 

This ruling would seem to give tremendous strength to the authority of the Minister (or delegated 

representative) to not only undertake a Section 48 Municipal Survey, but also to use their 

position to direct how the survey is done, provided that the method used is not contrary to the 

Surveys Act. 

6.2.3 McCordic et al. V. Township of Bosanquet (Tab 9) 

This was an application for a Stay of Proceedings pending the completion of a Municipal 

Resurvey under Sections 48 and 49 of the Surveys Act. As a matter of interest, the Stay was 

granted, but there is little else of relevance for us. 

Justice Goodman states (para 8) ‘The position of the applicant that the determination of the 

boundary line pursuant to the provisions of the (Surveys) Act constitutes a final and conclusive 

decision in that regard is supported by the case of McDowell v. Township of Zone.” this would 

seem to be a strong recognition of that decision. Being an Ontario High Court decision, it 

doesn’t carry the same weight as the Supreme Court decision of Zone v. McDowell. 


6.3 Case Law Related to Riparian Boundaries 

Tabs referred to in the section refer to Volumes 1, 2 and 3 in bound materials entitles 

‘Legislation, Case Law and Decisions’ by Izaak deRijcke, Barrister and Solicitor. 

6.3.1 Ontario Attorney General)v. Rowntree Beach Association (Tabs 36, 37 and 38) 

This case involved a dispute over the ownership of a strip of land lying between the water’s edge 

of Nottawasaga Bay and a line designated “line of the wood” between the province and a group 

of cottager owners. It involves Lot 18, Concession 11, Township of Tiny. 

Based on the wording in the Patent, which reserved “free access for all vessels, boats and 

persons”, Justice Flinn ruled that the lot was intended to be riparian. Based on Walker v. 

Attorney General, Justice Flinn then determined that riparian properties on navigable waters in 

Ontario extend to the water’s edge. 

There is a lengthy discussion about the history of surveys in Tiny Township which provide good 

background for this survey. The case is also relevant because it rules that all of the broken lots 

within Tiny Township are indeed riparian. 

This decision, plus numerous other Court decision and Boundaries Act decisions constantly 

assert that where lands are riparian (and the onus on is whoever tries to assert that an apparent 

water front parcel is actually separated from the water by a clearly worded clause or indication 

on a plan of survey), ownership extends to the water’s edge as it exists, unless some catastrophic 

instantaneous event has occurred. It means that Lot 19, Lots 18 and 19, Concession 7 and the 

two Road Allowances in question extend to the water’s edge of Nottawasaga Bay. In Lot 18, 

Concession 7, as mentioned in para. 3.22, there is a 20.12m reservation for road along the shore 

within Lot 18, Concession 7. 

6.3.2 Paul v. Bates (Tab 7) 

In an action between proprietors of adjoining properties on the shore of a bay of the sea, as to 

the proportion of the accretion between the properties and the foreshore to which they are 

entitled, it was held that this accretion belonged to the owners of the adjoining lands and the 

mode in which it should be divided is to take a line representing the line of the shore drawn at 

such distance seawards as to clear the sinuosities of the coast and let fall a perpendicular from 

the end of the land boundary dividing the properties in dispute. This does not mean a line 

representing the whole cost of the bay but a line fairly representing the average line of the shore 

extending on either side of the disputed land boundary. 

This method has been referred to and upheld by numerous subsequent decisions (court and 

Boundaries Act). 


6.3.3 Queen’s County v. Cooper (Tab 8) 

This Supreme Court of Canada case involves an island in a river in New Brunswick which had 

become attached to the mainland by means of slow and imperceptible accretion. The Court ruled 

on two matters related to accretion: the first is not relevant to the present situation, and 

recognizes and directs that the dividing line is the line of lowest elevation (line which was last 

covered by water)in the area of accreted land. The second principle is that, although not 

desirable, under some situation, formerly riparian properties can cease to enjoy that benefit, if 

conditions change. 

Per Rinfret C.J. and Hudson and Rand JJ - The right of access of the riparian owner to the river 

is not the consideration underlying accretion; but even if it were, to extend its application to land 

formed quite otherwise than by accretion vis a vis the riparian owner is, in the law as laid down 

for centuries, quite out of the question. If in the circumstances, the most efficient use of the newly 

formed land would lie in its connection with the original ripa, the legislature must bring about 

that change; but that, on such a ground, a court should forcibly re-allocate ownership, with all 

its possibilities of area and values, is a proposition supported neither by authority nor principle. 

–Upon the facts of the case, the Municipality has become in actual occupation of their accreted 

lands since their formation. 

Per Kerwin and Hudson JJ - As a riparian owner, the respondent, or his predecessors, had 

certain rights at one time, among them being that of access to the river. “The rights of a riparian 

proprietor...exist jure naturae, because his land has, by nature, the advantage of being washed 

by the stream...” (Lyon v. Fishmonger’s Company [1875-76] 1 A.C. 662, at 682). But, once the 

advantage of being washed by the water is put an end to by nature, this right of access 

disappears, as it has disappeared in this case. Then, no question of public policy can interfere 

with the title, which, so far as the parties hereto are concerned, has been acquired by law by the 

appellant Municipality. 

Per Hudson and Estey JJ - The riparian owner’s rights are subject to the changes effected by 

nature. So long as and to the extent that nature continues the riparian owner as such, he enjoys 

riparian rights, but nature or the act of any person in the exercise of his rights may from time to 

time alter or even destroy those of a riparian owner. –In the present case, the relative positions 

of the appellant municipality and the respondent have thus far been determined by nature: the 

first has been fortunate, while the latter unfortunate. 

The possibility of loss of riparian status is an important principle, because some of the owners in 

Reg’d. Plan 779 could fall into this situation. The ownership of the land lying west of these lots 

is open to debate, but if it were ever determined that ownership should extend beyond the 

westerly boundary as surveyed by Plan 779, it is possible to argue that these lots are prevented 

from owning all the way to the western boundary of the ‘open’ land. 


6.3.4 Re: Brew Island (Tab 10) 

Meredith J. does a thorough review of the law related to accretion and upholds the right of an 

upland riparian owner to the ‘alluvion’ which has built attached to his land (Brew Island). At 

Para 10 he says ‘No issue is taken with the general principle of law that the accreted land 

becomes the property of the owner to whose land it attaches as it is formed. In A.G. Southern 

Nigeria v. John Holt & Co. (Liverpool) Ltd. [1915] A.C. 599, Lortd Shaw of Dunferline gives the 

reason [at pp. 613-14]: “Blackstone says (vol. ii, chap. xvi), ‘As to lands gained from the sea, 

either by alluvion, by the washing up of sand and earth, so as in time to make terra firma, or by 

dereliction, as when the sea shrinks back below the usual water mark; in these cases the law is 

held to be, that if this gain be by little and little, by small imperceptible degrees, it shall go to the 

owner of the land adjoining’. ... The true reason for the principle of law in regard to foreshores 

is the same reason as the principle in regard to river banks, ie, that it is founded upon security 

and general convenience.” 

At Para 11 Meredith J. seems to be speculating and says ‘I gather that the right to be secured 

and protected is not so much the right to the accreted land itself, but rather the right to retain 

access to the river or sea since such is regarded as more valuable than the mere land. Thus the 

division of land accreted to contiguous properties will generally not have reference to land mass 

attaching to a particular parcel but rather to the river “lost “ or “gained” as a result of the 

formation. 

At Para 12, citing Deerfield v. Arms [1835], 34 Mass. (17 Pick.) 41, 28 Am. Dec. 276 (Supreme 

Court of Massachusetts), Shaw J. said: “A rule which appears to us to be applicable to the 

present case and meets the required conditions, is found in a work of the civil law, cited by the 

learned counsel who opened the case for the defendants, entitled ‘A Collection of New Decisions, 

by Denisart’, published in France in 1873. ... The rule suggested in this work is founded on the 

obvious consideration already alluded to, that in many cases lands which border upon navigable 

rivers derive a great part of their actual value from that circumstance, and from the benefit of 

the public easement thereby annexed to such lands, and that, being wholly deprived of that 

situation would operate as a great hardship and do real injustice to a riparian proprietor, 

although he should obtain his full proportion of the land measured by the surface. This injustice 

will be avoided by the proposed rule, in conformity with which each proprietor will take a larger 

or smaller proportion of the alluvial formation, and of the newly formed river or shore line, 

according to the extent of his original line on the shore of the river.” 

In Para. 13, Meredith J cites McTaggart v. McDougall [1867], 5M. 534, which is citing 

Campbell v. Brown, and there deals with the proposition of using a perpendicular to the general 

shore direction through the upland corner, thereby creating a bend in the boundary. 


Para 10 is nothing unexpected, but is good legal precedent for the general proposition that 

accretion or dereliction becomes part of the general upland holding without any formal legal 

action being required. Para 11 seems to be a direct contradiction of Queen’s County v. Cooper, 

indicating that retaining contact with the water is an important consideration. Obviously it will 

need to be considered carefully, but I think that Queens County gives us some latitude if there is 

no option, since it is a Supreme Court ruling. The question remains what constitutes the 

boundary between competing interests, perpendicular lines or some proportion of distances? 

6.3.5 Re: Darrach (Tab 11) 

This was an application for ‘quieting of tile to real property’, and included the applicant’s 

original 90 acre parcel as well as 12 acre and 0.3 acre accreted areas. 

Held: Application dismissed. For the benefits of accretion to accrue to land, the accreted land 

was required to be joined to the owner’s property. Accordingly, in this case, the applicant did 

not establish title by accretion as the 12 acre parcel was not attached to his 90 acre parcel at 

any point. No order as to ownership of the accreted land could be made as the Crown had not 

received notice of the application and, therefore, its rights to the said land could not be 

canvassed. 

Justice Matheson quotes from Re Brew Island where Justice Meredith acknowledges from 

McTaggart v. McDowell the appropriateness of using perpendicular lines for dividing accretion 

as suggested in Campbell v. Brown. Quoting from Rondesvedt v. Running [1963], 121 N.W. (2d) 

(Supreme Court of Wisconsin), Justice Meredith also approved the method of producing property 

lines to divide accretion. Justice Matheson also quotes Justice Meredith when he states “rules 

applicable in the United States, founded as they are on the same principles as the rules in 

English law, must be held to be applicable in British Columbia.” At Para 43, Justice Matheson 

asks the question “is ... this rule good law in Canada?” 

There is considerable discussion of a number of cases, but finally, at Para 47, Justice Matheson 

concludes: “From the foregoing it appears the law in Canada on accretion is not always the 

same as the law in the U.S.. St. Louis v. Rutz was relied on by the court in Rondesvedt and Re 

Brew Island, but had not been approved by the Supreme Court of Canada in Cooper. Canadian 

law is clear that where a piece of property is described as being bounded on one side by a body 

of water, in this case a tidal bay, this remains the boundary of that property and any land which 

has filled in or accreted to the original shoreline gradually over time becomes the property of the 

owner of the original shoreline. It is also clear from the case law that a landowner claiming 

riparian rights does not have a continued right of access to open water. If over time the stream is 

filled in or his access to the stream is filled in, then he must accept that as he must accept any 

dereliction of his land by the same stream.” 

This decision seems to distinguish U.S. precedent cases as not being authoritative in the 

Canadian situation, and disagrees with the acceptance of U.S. decisions as was done in Re: 

Brew Island. 


6.3.6 Red Deer v. Pitt (Tabs 12 and 13) 

This was an application for official recognition of ownership of accretion which had attached to 

the applicant’s land. At Para 19, Justice Wilson quotes Justice Milvain from Boychuk et al v. Her 

Majesty and Jarvie et al “I find and declare the doctrine of accretion can in no event extend the 

ownership of the Plaintiff’s land described in Certificate of Title 110 C223 beyond the 

boundaries of South West Quarter of Section 13, Township 9, Range 22, West of the 4 th 

Meridian.” 

Pitt appealed to the Alberta Court of Appeal, but his appeal was dismissed. Justice McClung, 

speaking for the Court sais at Para 1: “We see the issue here as: Does alluvial accretion 

inevitably extend the ownership of land beyond the original boundaries set forth in the 

Certificate of Title?” 

He summarized Pitt’s ownership at Para 2: “Clearly the boundaries of Mr. Pitt’s land 

originated in the 1886 survey and culminated in the 1966 title which he received. The disputed 

accretion lies wholly within the N.W. of 18, while Mr. Pitt has title to the N.E. of 13-38-W4th.” 

“His finding at Para 3 is: “It seems clear to us that the change of the physical boundaries of the 

watercourse cannot create an expanded title overriding the boundaries of the title he received. In 

saying so, we respectfully adopt Mr. Justice Wilson’s reasoning and the remedy he chose, 

although we emphasize that the presence of the road allowance here forecloses ownership by the 

City of Red Deer or Mr. Pitt. The disputed land is orphan and hence belongs, as Mr. Chapman 

concedes, to the Crown.’ 

It would seem that we can use this decision to infer that a claim to accretion cannot extend over 

an artificial boundary by an original township survey? (ie - the right to accretion ends at the 

artificial boundary, whether already surveyed or proposed to be done according to a method 

under the provincial Surveys Act). 

6.3.7 Johnson et al. v. Alberta (Tabs 14 and 15) 

This was an application for official recognition of ownership of accretion which had attached to 

the applicants’ land. Under ‘Findings’, Justice Phillips ruled: 

[39] ‘For the following reasons, I find that accretions to the Plaintiff’s lands are limited by the 

theoretical or legal section, quarter-section or legal subdivision lines within the relevant 

townships: 

1. Section 91 of the Land Titles Act states that land described in a certificate of title consists only 

of the actual area within its legal boundaries and no more or less. 


2. Pitt is binding authority on this court with respect to legal descriptions of land in Alberta. 

More specifically, Pitt is binding authority for the position that accretion cannot give title 

beyond the boundaries of the applicable sections, quarter-sections and parts of legal 

subdivisions referred to in these Plaintiff’s Certificates of Title. For example, a Certificate of 

Title to the NE quarter not covered by the waters of a lake, does not confer entitlement to any 

part of the NW quarter. 

3. Following Pitt, the land owned by the Plaintiffs consists of land (including the accreted land) 

within the applicable section, quarter-section or legal subdivision, as the case may be, that is not 

covered by any of the waters of Buffalo Lake and the boundaries are to be the limits of that 

section, quarter-section or legal subdivision, or to the water line, whichever is the lesser, but not 

beyond. In other words, the boundaries, as described, allow for accretion within the applicable 

section, quarter-section or legal subdivision but do not extend beyond those areas. 

4. If we allow accretion to go beyond the limits of the legal description, the Plaintiffs will gain 

title to land they were never intended to own. 

[40] Surveyed vs Non-Surveyed Land - Parcels of lands are determinable whether or not they 

have already been surveyed. This is illustarted in Part 2 and Part 3 of the Surveys Act, S.A. 1987, 

c. S-29.1. Land can be surveyed and re-surveyed to accurately reflect the position of the parcel 

according to the Alberta Township System. 

[41] The fact that a parcel of land is surveyed or not surveyed does not affect the validity of title. 

The parcel of land is ascertainable based on the mapping system in Alberta. As the Defendants 

correctly state in their Brief at para 35 on page 15: “Certificates of Title, by using the 

descriptors of sections, quarter-sections or legal subdivisions adopt the prescribed boundaries. 

The descriptor “NE 34-30-21-4", to use the NE Rider title, adopts the boundaries prescribed by 

the Alberta Township System for that descriptor.” As such, legal descriptions are not referring 

to hypothetical parcels of land and their boundaries in the context submitted by the Plaintiffs; 

they are real. The Plaintiffs argue that unsurveyed boundaries are “hypothetical” because thay 

have not been ascertained by survey and that therefore, their entitlement to accretions does not 

end at these “hypothetical grid lines”. 

[42] If the description in a Certificate of Title (which Certificate refers to the applicable section, 

quarter-section and/or legal subdivision and adopts its prescribed boundaries) were hypothetical 

simply by virtue of the land not having been surveyed, then there would be no identifiable parcel 

of land that answers to those descriptions. If that is so, the Certificate of Title to this 

unidentifiable parcel of land is as the Defendants submit a Certificate of Title to nothing, which 

covers nothing and confers no rights on its holder (including a claim for accretion). If one 

accepted this, it could be concluded that individuals’ Certificates if Title were meaningless. But 

that is certainly not the case. It therefore, leads me to find that the protection and preservation of 

the land ownership method in Alberta dictates that boundaries which are ascertainable but 

unsurveyed are as valid and real for title and accretion purposes as boundaries which have been 


ascertained. Given this result, I need not determine which boundaries of the Plaintiffs’ lands in 

question are surveyed and which are unsurveyed. This would only have to be determined if I had 

found that a surveyed boundary limits accretion but an unsurveyed boundary does not. Since I 

am of the view that it makes no difference whether a boundary has been surveyed or not in 

determining the limits of the accretions to the Plaintiffs’ lands, I will now turn to setting out my 

conclusions. 

[43] It is my finding in the trial of the issues before me that the accretions to the Plaintiffs’ lands 

are limited by the theoretical or legal section, quarter-section or legal subdivision lines within 

the relevant townships. Further, I find that the fact that a parcel of land has been surveyed or not 

surveyed does not invalidate a Certificate of Title. Therefore, the relevant lines (referred to 

above) are those boundaries of the lands described in the Plaintiffs’ Certificates of Title. 

On appeal, the ruling by Justice Phillips was up-held. The appellant tried to distinguish Pitt, or 

to have it ignored, but the Court ruled that the circumstances were indistinguishable. 

At appeal, Clarke v. Canada and Chuckry v. Manitoba were distinguished because one boundary 

was a natural boundary. In our situation, and this is the entire basis of the disagreement, the 

boundary where the accretion has attached is the natural boundary. In Clarke the accretion had 

only attached to a portion of the riparian boundary, and how the sidelines effected this was not 

an issue (see 6.3.11); in Chuckry the issue was entirely related to right to compensation of 

accreted land, and the question of sidelines crossing the accretion did not come up (see 6.3.12). 

6.3.8 Andriet v. Strathcona No. 20 (Tabs 16 and 17) 

This is another case involving accretion as well as adverse possession on a prairie lake (Cooking 

Lake) which has receded over time. This not a clearly reasoned and explained decision so I don’t 

see a lot of value. 

[56] The Andriets in their factum state with reference to the Johnson and Pitt cases: 

These cases resolve the potential conflict between the certainty of title given by the Torrens 

system, which allows a purchaser to rely completely on the document at the Land Titles Office 

and the potential uncertainty introduced to that system by the haphazard addition of land to an 

owner’s title by the common law doctrine of accretion. 

The solution is really quite elegant. The solution is essentially to say that a given title registered 

at the Land Titles Office has two types of boundaries. There are fixed immovable boundaries 

usually having reference to sections, township, legal subdivision lines, quarter section lines and 

then there are moveable boundaries, which are usually spoken of in relation to lakes and rivers. 

The solution is that the moveable boundaries cannot pass over the immovable boundaries. This 

gives effect to the doctrine of accretion but still limits it to the maximum bounds provided for in 

the titles registered at the Land Titles Office. So, in Johnson it was found that accretion could 

not add lands outside the South West Quarter of Section 26 where the title said that the lands 

owned by the owner were contained within the South West Quarter of Section 26. 


[57] This submission requires an analysis of these prior decisions and following that, a 

determination of the applicable principles and then their application to the issue at hand. 

[58] In Pitt, the respondent’s certificate of title described his land as follows, from para. 2: 

All that portion of the north east quarter of section 13 township thirty eight (38) range twenty 

eight (28) west of the fourth meridian in the said province, lying to the north of the left bank of 

the Red Deer River... 

It appears from the certificate of title that the Red Deer River had been situated on the northeast 

quarter of 13-38-W4th at some point in time. The trial judge found that the respondent could not 

gain accreted land outside of the northeast quarter of section 13, because his certificate of title 

circumscribed his interest as being within that quarter section (Pitt (QB) at para. 18). The trial 

judge gave no special status to ATS lines in this case. Rather, the trial judge focussed on the 

description in the certificate of title and it so happened that the limits in the certificate of title 

were ATS lines. 

[59] This Court in Pitt described the issue thus: “Does alluvial accretion inevitably extend the 

ownership of land beyond the original boundaries set forth in the Certificate of Title?” (Pitt 

(CA) at para. 1). The court dismissed the appeal briefly stating “the change of physical 

boundaries of the watercourse cannot create an expanded title overriding the boundaries of the 

title [the appellant] received” (at para. 3). The focus both at trial and on appeal was the 

description of the lands in the certificate of title. 

[60] The trial judgement in Johnson dealt with a reference question. Essentially, there were a 

number of parcels of land that had once bordered Buffalo Lake. The certificate of title of each 

parcel of land contained an ATS description (either quarter sections or legal subdivisions) 

followed by “not covered by the waters of Buffalo Lake.” The lake had receded to the extent that 

it was completely outside of the various ATS descriptions. The issue as stated by the trial judge 

was this: ”can the changes in the boundary of a body of water...expand the Plaintiffs’ title 

beyond the boundaries of a section, quarter section or legal subdivision referred to in the 

Plaintiff’s certificate of tile?” (At para. 11). Thus, the issue was explicitly about the effects of 

ATS lines as set out in a certificate of title. 

[61] The crux of the decision in Johnson (QB) was an application of section 91 of the Land 

Titles Act, R.S.A. 1980, c. L-4 (LTA) (now, section 90 under the R.S.A. 2000, c. L-5): 

s. 91 Every parcel of land described in a certificate of title consists only of the actual area within 

its legal boundaries and no more or less, notwithstanding that a certificate of title or other 

instrument that describes the parcel expresses an area is more or less than the actual area. 


The trial judge observed that the language in section 91 “suggests that the legal description in a 

certificate of title is binding on the holder” (at para. 9), and that this binding effect is consistent 

with the “legislative intent to create absolute title and provide holders of certificates with 

certainty in title (at para. 9). Ultimately, the trial judge expressed the view that she was bound by 

the decision in Pitt (A), and the title to accreted land is limited to the legal description contained 

in a certificate of title (at para. 23). 

[62] This Court affirmed the trial decision in Johnson, noting that the trial judge was correct in 

characterizing the issue as being “not simply a matter of accretion, but rather a case of applying 

legally decided boundaries under the ATS to define...titles” (at paras. 8, 16). Further, this Court 

endorsed the trial judge’s findings that “the doctrine of accretion can in no event extend the 

ownership of the appellants’ lands beyond the description in their certificates of title” (at paras. 

8, 16). 

[63] Except for Andriets, all of the parties to the present appeal argued that the Pitt and Johnson 

decisions found that only ATS lines can limit the extent of accretion. Viewed narrowly, the ratios 

in these cases are indeed limited to ATS lines. However, this limitation appears to be a 

consequence of the fact that only ALS lines were at issue in both of these cases. Nether case 

considered how the use of non-ATS descriptions in a certificate of title could circumscribe 

accretion. Essentially, both Pitt and Johnson were applications of section 91 of the LTA (R.S.A. 

1980/ section 90 LTA (R.S.A. 2000). To say that section 91 applies only to ATS lines would be 

tantamount to saying that only ATS lines constitute “legal Boundaries” as referenced in section 

91. However, neither the LTA nor the Surveys Act defines “legal boundaries”. 

[64] Viewed broadly, the decisions in Pitt and Johnson are more concerned with giving certainty 

to the descriptions in certificates of title, than they are with ascribing a special status to ATS 

boundary lines. In fact, the Pitt decisions do not distinguish between ATS boundaries and non- 

ATS boundaries. Thus, applying Johnson and Pitt to non-ATS boundaries would appear to be 

consistent with the principle expressed in those cases. However, I am not required to make a 

definitive finding on this point because, as will be shown, the boundaries described in the subject 

certificates of title neither expressly nor by implication extend through the accreted lands. 

Conclusions and Directions 

[73] The Andriets, the County, and other Plan 2611 lot owners are declared to have riparian 

rights. The accreted lands are to be divided in an equitable fashion, preserving to each owner 

access to the water. The accreted lands will be divided so as to provide each owner, so far as 

reasonably practicable, with their proportionate share of the shore of the lake as disclosed by 

the plans referred to in the existing certificates of title relating to the subject lands. 

Justice O’Brien seems to have muddied the waters somewhat as compared to the trial judgement. 

He makes a number of statements and draws conclusions that appear to refute or diminish the 

notion that ALS boundaries are paramount, but I think it is all obiter: in his decision at para 73 

he simply directs that some form of equitable division be used, such that all owners receive a 


share of the accretion. He makes no specific statement with respect to any accretion extending 

across any ATS boundaries. 

He also speaks about section 91 of the Alberta LTA at para 61. 

s. 91 Every parcel of land described in a certificate of title consists only of the actual area within 

its legal boundaries and no more or less, notwithstanding that a certificate of title or other 

instrument that describes the parcel expresses an area is more or less than the actual area. 

Does this mean that application of Pitt, Johnson and Andriet are restricted to Alberta 

application? I believe the comparable portion of the Ontario Land Titles Act is: 

1. 140. (1) Registered land shall be described in such manner as the land registrar considers is 

best calculated to secure accuracy. R.S.O. 1990, c. L.5, s. 140 (1). 

Description not conclusive 

(2) The description of registered land is not conclusive as to the boundaries or extent of the land. 

R.S.O. 1990, c. L.5, s. 140 (2). 

I think section 91 is saying that a parcel gets whatever its description says (Lot A on Reg’d Plan 

B), regardless of whether the stated area is correct or not. Section 140(2) of Ontario’s Land 

Titles Act says that the specified dimensions in a description (metes and bounds, or dimensions 

on a reg’d plan) are not conclusive, and would give way to original monuments in their original 

position which differ from the registered description. 

The original Reg’d. Plan and a second sketch are included with the Appeal Court decision: the 

sketch shows a straight line production of the southerly Reg’d. Plan boundary, apparently 

recognizing the ATS boundary, while all others bend to ensure frontage for the effected parties. 

6.3.9 Lack v. Alberta (Tab 18) 

The case involved a Judicial Review of an application to the Minister for Sustainable Resource 

Development by a group of landowners fronting on a lake which has receded by 600m for an 

acknowledgement that they own the land now accreted to their lots. The exposed lakebed extends 

beyond the boundaries of their quarter section and was refused by the Minister. 

Justice Yamauchi said: 

[59] The legal principles governing accretion in Alberta have been clearly articulated by both 

parties to the effect that, inter alia, an owner’s entitlement to accretion is limited by the legal 

description in the owner’s certificate of title. In other words, the ATS lines referenced in the 

certificates of title would limit the accretion to which the owners are entitled. It is also important 

to note that the Alberta Court of Appeal supports the view that both ATS and non-ATS 

boundaries limit the extent of accretion that a property owner may claim and that the decisions 

in Pitt and Johnson were more concerned with giving certainty to the descriptions in certificates 

of title : Andriet at paras. 63-64. 


[60] This court finds that the description in the original Crown grant for NE 25-41-10W5M 

which underlies the Applicants’ titles to Lots in Plan 1970 EO and the description in the original 

Crown grant for SE 36-40-1-W5M which underlies the Griffins’ title are helpful in ascertaining 

with relative precision the ATS and non-ATS boundaries of all the parcels or tracts of land in 

which each grant is composed. This Court recognizes that the original Crown grants for each of 

these parcels refer to lands ‘which are not covered by the waters of Gull Lake, as shown upon a 

th 

map or plan of survey of the said township, signed at Ottawa on the 26 day of September, A.D. 

1896...’ Certainly, the Accreted Lands were covered by the waters of Gull Lake in 1896. Does 

this mean that the owners of these parcels never had, or ever could acquire, any right to the 

accreted lands? The land descriptions contained in the original Crown grants deal only with the 

lands to which the grantees are entitled. Riparian rights exist either at the time of the original 

Crown grants or through the passage of time as water recedes or shorelines expand. In Western 

Irrigation District v. Traobst [1990], 1990 CarswellAlta 310, 103 A.R. 65(Q.B.) Virtue J. 

Described ‘riparian rights’ in the following way: 

17 At common law the owner of land on the banks of a natural stream or watercourse is entitled 

to the enjoyment of what are commonly known as “riparian rights”. A riparian owner has a 

right to the ordinary use of the water which adjoins his land, as a natural incident of the 

ownership of the land itself, which does not depend upon the ownership of the land covered by 

water. Chasemore v. Richards [1859], 7 H.L.C. 349, 11E.R. 140; Lord v. Sydney (City 

Commissioners) [1859], 12 Moo. P.C. 473. 

[61] Based on the original Crown grants, the Applicants had and the Griffins have riparian 

rights. The Applicants acknowledge in their written briefs, that, originally, part of SE 36-40-1- 

W5M which underlies the Griffins’ title, was bounded by Gull Lake before the registration of 

Plan XCVI, which was done pursuant to certain orders of the Court of Queen’s Bench (see 

Applicants’ Brief at para. 35). It remains unclear how the alleged orders of the Court of Queen’s 

Bench would have altered these fundamental riparian rights, absent clear indication to the court 

that the Griffins, or their predecessors in title, were party to the action or were given notice of 

the application that resulted in the alleged orders. This would have provided the Griffins, or 

their predecessors in title, the opportunity to make representations regarding their interests as 

riparian owners. Neither is it clear whether the Griffins, or their predecessors in title, gave their 

consent to the revision or registration of Plan XCVI and its subsequent amendment to Plan 025 

2851, which apparently had an adverse impact on their riparian rights. 

[62] This Court finds that the Applicants’ entitlement to the Accreted Lands end at the northern 

ATS boundary of NE 25-40-1-W5M and that they ceased to be riparian owners when the waters 

of Gull Lake receded over the quarter section line into SE 36-40-1-W5M which is owned by the 

Griffins. To that end, this Court holds that the Respondent is correct in its interpretation of the 

Acts, its consideration of the appropriate land titles document and its decision contained in the 


Decision, in which it refused to provide its consent to the Proposed Plan, on the basis that the 

Applicants were not the owners of the Accreted Lands in the south half of SE 36-40-1-W5M not 

covered by the waters of Gull Lake. Finally, this Court holds that nothing short of a legal 

transfer can validly convey the Griffins’ riparian rights of ownership to the Applicants. In other 

words, for the purpose and circumstances of the present matter, it is this legal transfer that 

would satisfy the SRD that it is a position to provide the Applicants with a consent under the 

Land Titles Act s. 89. 

[63] Although the parties did not raise this as an issue, what happens if the waters of Gull Lake 

rise beyond the northern ATS boundary of the NE-25-40-1-W5M? This decision retains its vigour 

in that case, inasmuch as the Applicants will then have shoreline access, or riparian rights. The 

Griffins will be bound by the original Crown grant because their land would be “covered by the 

waters of Gull Lake.” Similarly, the Applicants’ argument that Pitt and Johnson held that the 

ATS lines that are referenced in the certificates of title limit the accretion to which the riparian 

owners are entitled is consistent with this Court’s findings. For example, if the waters of Gull 

Lake recede even farther, the Applicants and the Griffins would be limited to the lands described 

in the original Crown grants, and no more. 

This now makes the fourth Alberta ruling that supports the concept that accretions are limited to 

the township grant entity to which the accretion has attached. Although the Andriet case might 

have confused the issue a bit, none of the Courts have departed from following the concept. 

Paragraph 63 seems to say if the water level rises again then these properties which have 

seemingly ceased to be riparian will regain that status, once the water returns across the quarter 

section boundaries, making them factually riparian. 

6.3.10 Volcanic Oil and Gas v. Chaplin (Tabs 25 and 26) 

This is a landmark case involving accretion and the question: if a parcel is not riparian, but due 

to natural forces the water invades across the parcel separating it from a body of water, is that 

non-riparian subject to loss by erosion. The trial court and the Ontario Appeal Court (Tab 26) 

ruled that encroachment by water onto a non-riparian parcel did not constitute true erosion. 

The Ontario Supreme Court, Appellate Division reversed the decision on the basis that the facts 

presented were inadequate to prove that the water body had crossed the non-riparian boundary 

onto the plaintiff’s land. 

In a sense, this case is the exact opposite fact set to the four Alberta cases, except that this case 

involves erosion instead of accretion. Once the water crossed the rectilinear boundary the 

natural boundary ceased to exist and the linear one takes precedence, even if part of the former 

up-land was now under water. 


6.3.11 Clarke v. Canada (Tabs 28 and 29) 

This is an appeal to the Supreme Court of Canada, which overturned the Alberta Supreme Court 

ruling (included in Volume 3 at Tab 28). At the Alberta Supreme Court it was found that the 

addition of alluvial material to a raised ‘bench’ did not constitute a true accretion, partly 

because the City had deposited trash on the bench, which contributed to the deposition of silt 

and partly because the bench was much higher than the level of much of the alluvion, and so 

could be distinguished from the more recently created land addition. 

The Supreme Court of Canada ruled that it did qualify as a legal accretion and that Clarke was 

entitled to the land. There is a thorough review of the law regarding accretion under English 

common law, but no surprises, since many more recent cases have accepted and built upon this 

ruling. There were presumably (but not necessarily) sidelines which would have restricted the 

accretion Clarke was entitled to, assuming that it extended beyond these boundaries, but there is 

no discussion to give us guidance in this regard. 

6.3.12 Chuckry v. Manitoba (Minister of Public Works) (Tabs 30 and 31) 

This case arose from a dispute regarding compensation for land expropriated and then flooded 

as part of a Water Control Work on the Assiniboine River. Chuckry claimed that he owned an 

additional 59 acres due to accretion, while the province of Manitoba denied this. During the 

expropriation by the province he was not compensated for the accreted land so he appealed (Tab 

30), but the appeal was dismissed. The Supreme Court of Canada allowed the appeal and 

overturned the Manitoba Court of Appeal ruling. 

This case again asserts the fact the there is a right to accretion by the adjoining riparian owner. 

However, there is an interesting comment which might guide us in the question of statute law 

and when it takes priority over common law. In Tab 30, at para. 49, Justice Dickson writes: “In 

the Keewatin Power Co. v. The Town of Kenora [1908] 16 O.L.R. 184, Moss C.J.O. held the 

common law of England relative to property and civil rights, as introduced into Ontario in 1792 

except in so far as repealed by Imperial legislation having force in the province, or by provincial 

enactments, to be the rule for decision on the rights of riparian assets. The Court held in respect 

of lands granted by the Crown bounded by the Winnipeg River, the title to the bed of the river, ad 

medium filum aquae passed to the riparian owners by virtue of the grant to them, there being 

nothing in the grants to rebut the presumption. 

Justice Moss was speaking specifically on riparian rights, but I believe this applies also to all 

civil and property rights. As a result of this ruling the province passed the Beds of Navigable 

Waters Act after the fact to correct the situation. In our case we already have provincial 

legislation pre-existing (in the Surveys Act) which it would seem to me has already over-ruled 

any common law. 


6.4 Boundaries Act Decisions 

6.4.1 Boundaries Act File B-1167 (Frustaglio) (Tab 19) 

This decision orders an unconventional distribution of accretion at a point of land, not staying 

consistent with Paul v. Bates, but it seems to be a reasonable solution given the circumstances. 

As in Andriet, seeking an equitable solution finds favour. The ruling recognizes differences 

between Canadian and US treatment of accretion and acknowledges that it is possible for a 

riparian property to lose that status if natural actions are the cause, based on Cooper v. Queen’s 

County. 

6.4.2 Boundaries Act B-1178 (Marion) (Tab 20) 

There are no new concepts introduced in this decision, but it contains a solid discussion of the 

concept of ownership to the water’s edge based on the key cases. See ‘The Law’, at pages 5 

through 8. 

6.4.3 Boundaries Act File B-1173 (McCrory) (Tab 21) 

Another good discussion with respect to riparian land and accretion. 

At the top of Page 10, Deputy Director Cotterill says: One boundary of the subdivision in 

question is a line between concessions in a 2400 acre sectional township. The Surveys Act at 

least gives us a method for establishing the location of this line to the ‘water’s edge’. The line 

between concessions 11 and 12 in the Township of Nottawasaga is the rear boundary of a 

concession in a sectional Township with double fronts. The two concessions are broken at the 

end by Lake Huron and Lot 50 is a broken lot in both concessions. Subsection 33(6) of the 

Surveys Act R.S.O. 1990, c. S.30 states: 

Establishment of rear boundaries of concessions 

33 A surveyor in establishing the rear boundary of a concession in a sectional township with 

double fronts shall proceed as follows: 

(6) If both concessions in a section are wholly broken by a lake or river on their fronts and no 

posts were planted in the original survey to establish the rear boundaries of such concessions, 

the surveyor shall establish the rear boundary of such concessions on the astronomic course 

intended in the original survey from a point established on the limit of the section nearest the end 

from which the lots are numbered midway between the section corners. 

From this I understand that the concession line is to be produced straight until it intersects the 

‘water’s edge’. 


The Application was dismissed because Deputy Director Cotterill determined that insufficient 

field research and case law review had been undertaken. 

Deputy Director Cotterill clearly supports following the Surveys Act method for setting the 

intersection of township lot lines with natural boundaries. 

D.D. Cotterill was critical of the surveyor making the application for presenting an incomplete 

application, which he claimed lacked in legal argument and field work, The section of shoreline 

constituting the accretion in front of the subdivision should have been more fully surveyed and a 

proposal as to how all of the effected lots could be dealt with included, so the Deputy Director 

could assess how his decision would impact the neighbouring lots. I have taken this into account 

for this survey, in that an understanding of impact on adjoining properties and any claims to the 

waterfront they might have is considered. 

6.4.4 Boundaries Act File B-1197 (Cornell) (Tab 22) 

This is an Application involving an original township lot bounded on the north and west by 

original township road allowances but with conflicting evidence as to whether or not the lot was 

riparian. The application sought a ruling that the lot was indeed riparian, and secondly that 

because it was originally riparian it should continue as such. The result was that the two Road 

Allowances were bent at right angles to the general shoreline. 

It appears likely that the lot was landlocked at the time of the original survey based on water 

elevation projections, but the evidence suggested that the lot was riparian at the time of the 

Letter’s Patent. Deputy Director Cotterill determined that the lot had indeed been riparian at the 

date of the Patent, and following Clarke v. City of Edmonton the owner is entitled to some share 

of the accreted land. 

He agreed with both surveyors who said that if the lot was entitled to a shore of the accretion 

then it should be based on perpendicular lines in accordance with Paul v. Bates to points on the 

two Road Allowance boundaries where they intersected the purported contour of the water’s 

edge at the date of the Letters Patent. 

No consideration one way or the other was given to the provisions of the Surveys Act in this 

decision. Also, the assumption that a riparian property must always remain as riparian was 

taken as fact, whereas Cooper v. Queen’s County and Re Darrach recognized the possibility of 

losing riparian status under some scenarios, where nature takes away this right. 

Also of note is the fact that this ruling contradicted Plan 51R-27759 by Ron Stewart, who 

produced the north boundary of the Road Allowance straight through to Georgian Bay. 


6.4.5 Boundaries Act File B-1201 (Fitzgerald and Reycraft) (Tab 23) 

This is an application regarding an island and a portion of mainland now attached to the island. 

Several issues were involved including whether the provincial or federal government had 

jurisdiction to dispose of the land, since there were purportedly conflicting Patents from both 

levels of government and how to properly distribute the accreted lands between the island and 

mainland. These points are not of relevance to the present situation. 

Of particular interest is the reference and approval (at Page 18) of the ruling in Cooper v. 

Queen’s County which held that riparian rights are not necessarily permanent if nature changes 

the situation. Deputy Director Cotterill quoted and relied on a statement in Cooper which found 

that US rulings on the issue of whether a riparian parcel can cease to be riparian are 

inconsistent and should not be considered as authoritative. 

6.4.6 Boundaries Act File B-1210 (Nicolls) (Tab 24) 

This is an application regarding several lots in a subdivision fronting on a horseshoe shaped bay 

in Collingwood (the same subdivision as in B-1173). Ron Stewart used a proportional method 

for distributing the remaining available waterfront, holding the intersection of a concession line 

(established using the Surveys Act) with the water’s edge as a fixed boundary. There had been 

two First Registration plans prepared previously which this decision over-ruled. 

There is a solid recounting of riparian law at Page 9 from ‘Registration of Title to Land’ by 

Victor di Castri. There is also extensive quotations from Legal Aspects of Surveying Water 

Boundaries by David Lambden and Izaak de Rijcke. No new law come out, but these may be 

better summaries of the law than the trace quotations from the individual cases recorded above. 

6.4.7 Boundaries Act File B-1176 (Dies) (Tab 47, Supplementary Survey Documents) 

This is an application for confirmation of the boundaries of Lots 78 and 79, Reg’d, Plan 779 in 

the subdivision immediately north of the subject area. Ron Stewart O.L.S. has a very thorough 

Survey Report and the application was apparently un-contested, since the application was 

approved without a hearing or decision. The pre-existing lot corners for the ‘original lot’ were 

projected to the inner limit of a 20.12m shore reserve by the Crown Patent. O.L.S. Stewart 

contended that no bend was necessary because the perpendicular to the general direction of the 

shoreline, as espoused by Paul v. Bates was on nearly the same course as the lot sidelines, so no 

bend was required. Reg’d. Plan 779 shows a monumented straight line as the lake side boundary 

of the lots, which is labelled “high water mark”, and although not indicated on RP779, he says 

there “is and always was” a sand beach between the high water mark and water’s edge, and 

because of this, ownership should extend to the limit of the 20.12m reserve, based on Rowntree 

and Walker. 


The use of this rationale is then cited as justification for concluding that the ‘Beach Area’ 

between the monumented line and the water’s edge should be included as part of the lots in BA 

File B-1212.The final plan is recorded as Plan BA-2624. 

At Paragraph D.3.1 O.L.S. Stewart refers to Quit Claim Deed 21050 (Frederick T. Stott 

(developer of Reg’d. Plan 779) to Anne O. White, George V. Stott and John E. Stott) dealt with 

the portion of Lot 18, Concession 7 lying east of Reg’d. Plan 779. From this deed he concludes 

that Frederick T. Stott thought that he had already dealt with all of his remaining interest in Lot 

7. 

At Paragraph D.3.2 O.L.S. Stewart discusses Inst 788360 (by George M. Stott, executor of estate 

of George V. Stott, Ann White and John Stott). This deed transferred that part of Lot 18, 

Concession 7 lying between Reg’d. Plan 779 and the water’s edge of Nottawasaga Bay to the 

Corporation of Township of Tiny. O.L.S. Stewart makes the claim that the transfer had no effect, 

because Reg’d. Plan 779 had already dealt with all of this area, first by the specific layout of the 

lots and secondly by the assumption that the subdivider thought he was not leaving any land 

between the subdivision and the water’s edge, and that this was his intention. Based on the 

Ellard decision this is probably not a conclusion we can make without judicial approval. 

At Paragraph D.3.3 O.L.S. Stewart discusses Quit Claim deeds 1335867 and 1335868, which 

were for the land in front of Lots 78 and 79, Reg’d. Plan 779, between the subdivision and 

Nottawasaga Bay. O.L.S. Stewart says these Quit Claims were intended to remove any cloud on 

Title that Inst 788360 might have caused. 

Although it makes logical sense to hold that the developer intended to have the lots extend to his 

westerly boundary, and that he was simply mis-informed, this runs counter to the decision in 

Ellard (see Para 6.4.8 below). The fact situation is different, in that there is no separately 

identified area called ‘Beach’, so we cannot make a direct one to one comparison. It is also 

important to note that this decision pre-dates Ellard. The portion of the former Lot 18, 

Concession which became Reg’d. Plan 779 was never riparian. Although there is fairness in 

O.L.S Stewart’s approach, the facts are different from Walker and Rowntree and Gibb: in this 

case there is a distinct strip of Crown land above the water’s edge. 

In this case, as in Ellard, there was a straight line boundary surveyed for the westerly boundary 

of the lots within Reg’d. Plan 779. In Ellard, Justice Lauwer ruled that it was inappropriate to 

make assumptions about the developer’s intentions, where the plan indicates an entirely different 

intention. A legal decision will be necessary to determine conclusively whether the Ellard 

decision is applicable to this different plan layout. 


It is important to be aware that although O.L.S. Stewart’s Report is very thorough and 

compelling, there were no objectors to the application, so the Report was not subject to the 

extreme degree of scrutiny associated with a Hearing. The statement that the intention of the 

original developer was to not retain any land west of the subdivision lots in paragraph E.3 has 

not been challenged nor stood the test under cross-examination, or has it been examined or 

refuted by hostile parties. 

6.4.8 Boundaries Act File B-1212 (Ellard) (Tabs 32 and 33) 

This is an application for confirmation of the boundaries of Lot 8, Reg’d. Plan 773 in the 

Township of Tiny. The subdivision Plan shows 23 lots near Nottawasaga Bay, all defined on the 

lake side by a single straight line labelled High Water Mark on the plan. To the lake side of the 

line is an area labelled Sand Beach and to the lake side of the beach is an irregular line labelled 

water’s edge. On the two extreme ends of the subdivision are original Township Road 

Allowances. 

O.L.S. Stewart claimed that the intention of the subdivider was to develop everything he owned, 

and that he and the surveyor (Cavana) were simply mis-informed as to the true law with respect 

to riparian lands. Based on this assumption he produced the Road Allowances to their 

intersection with the contour determined by David Lambden to be the highest recorded lake level 

for Lake Huron (178.1m, IGLD 85), and then bent both Road Allowances on lines perpendicular 

to the general direction of the lakeshore, based on Paul v. Bates. Within the confines of the two 

Road Allowances he bent each of the sidelines twice (once along the 178.1m contour, and a 

second time at the water’s edge). Along the 178.1m contour he proportioned against each of the 

subdivision lot frontages to ensure that each lot retained some frontage; along the water’s edge 

he set the same perpendicular line as at the road allowances. 

Deputy Director Cotterill accepted O.L.S. Stewart’s proposal after a thorough review of the 

proposition that the subdivider did not intend to retain any land between the subdivision and the 

lake, as well as the relevant case law. There was a brief presented by Chester Stanton O.L.S. on 

behalf of the Township (objector), and in response to Stanton’s brief, a rebuttal document was 

presented by O.L.S. Stewart. Most of the discussion revolved around the status of the ‘Sand 

Beach’, but the Deputy Director did dedicate one paragraph to discuss the appropriateness of 

bending the Road Allowance. 

The Deputy Director requested additional information on several topics, including ‘Some 

authority or a Surveys Act provision with respect to the retracement of original road allowances 

that would apply to any projection of the original township road allowances in the event of water 

levels dropping within Georgian Bay, or if such road allowance lines as straight projections are 

extinguished whenever they are covered by water;’ In response, O.L.S. Stewart prepared a 

document entitled ‘Additional Information Requested by Deputy Director of Titles’. 


His response follows: 

C 

Extinguishment of Geographics 

C.1 Section 9 of the Surveys Act... provides that “every line, boundary and corner establsihed 

by an original survey and shown on the original plan thereof is a true and unalterable line, 

boundary or corner, as the case may be”; this includes both rectilinear and natural boundaries 

shown on the original plans. 

C.2 Boundaries are created by common law by division of title. The effect of Section 9 is the 

statutory recognition of the original survey lot lines as boundaries by virtue of the official plans 

in spite of the fact that division of title has not yet occurred, but was only contemplated. 

(Footnote 1: This is the reason for annulment of official township surveys where the Ministry of 

Natural Resources deems it necessary to extinguish geographics created by the Crown 

acceptance of original township plans.) 

C.3 Section 9 has also been interpreted as statutory authority for the fixing of the position of 

rectilinear lot lines that, again, were contemplated to mark future divisions of title. This 

interpretation does not effect a statutory change to common law; it is simply a codification of the 

common law as it always was. The codification also confirms the common law regarding the 

status of natural boundaries, including the ambulatory nature of a water’s edge title limit. 

C.4 The Rowntree decision confirmed that the natural boundary of Lot 18, Concession 11, 

Tiny Township, is the ambulatory water’s edge of Nottawasaga Bay of Lake Huron. By 

extension, the same principle applies to Lot 18 in Concession 8 of Tiny Township. Lands above 

the water’s edge form part of Lot 18, Concession 8; lands below the water’s edge form part of 

the bed of Lake Huron, which (adjoining to Lot 18, Concession 8) is unsurveyed and unalienated 

Crown land. 

C.5 Consequently, when the water ambulates westerly due to lower water levels or alluvial 

accretion, the upland riparian geographic entities - specific to the subject site, being Lot 18, 

Concession 8, and any riparian Plan 773 subdivision lots - increase in area, and the additional 

land takes on the same legal characteristics as the uplands to which it attaches. (For example, 

see Eliason v. Registrar, North Alberta Land Registration district and others, as noted in Section 

58 of the CED). 

C.6 By corollary, when the water ambulates easterly due to higher water levels, Lot 18, 

Concession 8, and the adjoining original road allowances are thereby restricted to only the 

portion remaining above the water’s edge. Any lands below the water’s edge that were part of 

the Tiny Township geographics become part of the Provinces unsurveyed and unalienated lands, 

taking on the legal characteristics of the bed of the lake. 


C.7 Pursuant to Volcanic Oil and Gas v. Chaplin, if the water rises to a level that crosses a fixed 

rectilinear (formerly upland) boundary to the extent that a riparian parcel is completely 

inundated, the riparian parcel is completely extinguished. In the event that the water 

subsequently retreats, there is no longer any riparian parcel to which any new dry land can 

attach. 

C.8 In other words, as waters encroach onto upland geographic parcels, the boundaries 

dividing those geographics disappear as the inundated lands on both sides of the former 

boundary are consolidated with the bed of the lake. 

On Page 13 of the decision, the Deputy Director writes: “When Tiny Township was first 

surveyed in 1821/1822 the road allowances would have been projected to the water’s edge as 

prescribed in Section 9 of the Surveys Act. Mr. Stewart explained that the level of Lake Huron 

reached its highest point in 1838 at 187.1 metres. Mr. Stewart explained that in accordance with 

the principles set out in Volcanic Oil and Gas the boundaries between the road allowances and 

the adjoining lots would have been extinguished when they were covered by water. As the water 

receded, the land being exposed is considered to be accretion and forms part of the land to 

which it is attached. The principles set out in Paul v. Bates would apply to determine the location 

of the boundaries as they cross the accretion. In summary, on the assumption that the current 

topography is the same as, or the best available evidence of, the historical topography, the road 

allowance boundaries would be projected to intersect the 178.1 metre contour line, which is the 

extent of the accretion, and from that intersection would be perpendicular to the general line of 

the shore at the water’s edge. A substantial bend would occur at the 178.1 metre contour line. 

The water’s edge frontage of Lot 18, Concession VII can then be determined. 

The decision was appealed (Ellard et al v. Township of Tiny [2012], ONSC 280), where Justice 

Lauwers strongly disagreed with the Deputy Director regarding his interpretation that the 

original subdivider had intended to develop all the land he owned near the shore and was simply 

misinformed about what constituted his water side boundary. 

Following a lengthy review of the facts from the Boundaries Act Hearing Justice Lauwers says at 

Para 27 ‘In my view the Deputy Director went wrong when he concluded, as set out at para 11 

above, that “it cannot be assumed that Mr. Kitching was aware that his deed described to the 

“water’s edge” at the time he instructed Cavana about what he wished to subdivide, since at that 

time he had not yet received a deed.” It is hard to imagine that a land developer, which is what 

Mr. Kitching plainly was, would not know fully both what he was getting and what he was 

selling in a project that took months to realize. In my view the Deputy Director overstates the 

significance of the dates.’ 


At Para 34 Justice Lauwers continues ‘The only reasonable inference to draw from the 

constellation of facts is that Mr. Kitching intended to convey the land to the beachfront cottagers 

down to the monumented straight line and no further. I note that the Deputy Director comes 

close to conceding this point at page 12 where he says: “I might be drawn to this conclusion....” 

The result most consistent with Mr. Kitching’s design of Plan 773 is that he intended to except or 

reserve the land between the monumented line and the water’s edge for the use of the back lot 

cottagers, the beachfront cottagers and the public.’ 

[35] ‘It was unreasonable, in short, for the Deputy Director to conclude that Mr. Kitching’s 

intent in creating Lots 1 to 23 on Plan 773 was to extend the lot lines of the beachfront lots to the 

boundary with the Crown, if the boundary was the water’s edge and not the monumented line. 

That is not an arrangement that would have been effective for Mr. Kitching’s commercial 

purposes. The fact that the law was settled retrospectively and forced the issue does not mean 

that the court or the Deputy Director must come to an unreasonable decision. I note the words of 

Stark J in Walker at para, 56: 

56 It appears to me, therefore, that I am driven to this conclusion, that any Crown patent 

which indicates that one of the boundaries of the lands granted is to be a boundary of 

water, then it establishes that boundary as at the water’s edge and not upon any bank or 

high water mark unless, of course, the grant clearly reserves by description or otherwise 

a space between the lands granted and the water boundary or unless the boundaries of 

the land can so clearly be delineated by reference to an original plan of survey as to 

clearly except or reserve to the Crown a space between the lands granted and the water’s 

edge. [Emphasis added] 

The underlined words apply with necessary modifications to the identification oif the beachfront 

lots western lot line on Plan of Subdivision 773, and the identification of the clearly depicted and 

labelled “Sand Beach” area beyond it.’ 

[36] Cases over many years have shown that land titles in cottage country were sometimes left in 

a somewhat messy state, especially when measured against modern land use planning and 

conveyancing laws and practices. Courts must do the best we can with what we have to reach an 

equitable, practical and just result in the circumstances of each individual case. 

[37] I find that the decision of the Deputy Director is unreasonable and does not fall within the 

“range of possible, acceptable outcomes which are defensible in respect of the facts and law”, 

per Dunsmuir at para. 47. I would allow the appeal, set aside the decision of the Deputy 

Director of Titles, and confirm the boundaries of Lot 8 as depicted on Plan of Subdivision 773.’ 


Apparently the issue of bending the road allowance was not part of the appeal, because no 

mention of this concept is made. This Superior Court decision was itself appealed, but the appeal 

was dropped following the issuing of the Bataglia decision. Since the decision by Justice 

Lauwers was not overturned it and since it is a Superior Court of Justice decision it stands as the 

current state of the law. 

This decision has significant potential ramifications, because Reg’d. Plan 757 similarly has a 

straight-line “high water mark” with a “beach” area identified between the High Water Mark 

and water’s edge shown on the plan. Based on this decision, any claim by any of the beachfront 

lots within Reg’d. Plan 757 would essentially have no merit. There will be no need to consider 

the implications upon any of these subdivision lots since they are bounded by the straight line 

frontage of Reg’d. Plan 757. 

Since the concept of bending the Road Allowances below the original water’s edge contour was 

not challenged by the appeal, or discussed at great length by the Deputy Director, there is no 

direction in this matter. However, I believe that we can assume that the entire Boundaries Act 

decision has been overturned, meaning that the acceptance for bending the Road Allowance 

shown by Deputy Director Cotterill also does not have any standing. Furthermore, although 

instructive for general policy, Boundaries Act decisions do not have authority as precedent . 

The decision has no clear ramifications for the lots in Reg’d. Plan 779, since that plan does not 

show a separately delineated ‘Beach’ or other such area. However, the lots are not riparian, 

since the Reservation in the John Goesmann patent retained ownership to 20.12m along the 

shore of lot 19, Concession 7.If the lots are not riparian, how can anyone justify extending 

across the beach to the easterly limit of the Goesmann Reservation? 

Pitt, Andriet and Johnson all support the notion that entitlement to accretion is restricted by the 

underlying Township lines. In his submission to the Deputy Director O.L.S. Stewart claims that 

Alberta is unique in Canada, in that its Surveys Act gives special status to the ‘township, 

sections, quarter sections and legal subdivisions’. In the sections which he mentions I only see a 

numbering protocol and the basic technical details of the basic set up and size and direction for 

township structure. Elsewhere in this statute, or in other Alberta statutes there may be wording 

to give special status to these boundaries, but otherwise I don’t see a big difference between the 

Alberta version and ours, because both deal with how lines are to be set. 


6.4.9 Boundaries Act File B-1232 (Edwards) (Tab 39) 

This is an application for confirmation of the boundaries of Lots 42, 43, 44 and 45, Reg’d, Plan 

779 in the subdivision immediately north of this project. The site lies between the Lots confirmed 

by BA File B1176 (paragraph B.6.4.7 above) and the subject area, and is approximately 500m 

northeasterly from this project. As expected, the Survey Report is similar to the Report for 

Boundaries Act File B-1176 (Paragraph 6.4.7), and no significant new information has been 

produced. I note that O.L.S. Stewart acknowledges that his clients are not entitled to the ‘Beach’ 

area because their land is riparian, but instead because the intention of the developer was that 

he would no longer own any land west of the subdivision. 

My comments at paragraph 6.4.7 about the differences between Reg’d. Plan 779 and the Ellard 

decision apply to this application as well. 


6.5 Articles and Other Research Papers 

6.5.1 Apportionment of Accretions: A Study of Three Canadian Cases (Tab 46) 

(by Ronald Stewart O.L.S., published in Geomatica, 2012) 

As the title suggests, O.L.S. Stewart discusses various approved methods of distributing 

accretion amongst adjoining riparian owners, depending upon the specific circumstances. On 

page 5, he writes “In the reasons, the court based its decision partially on the principle that a 

riparian owner continues to have a right of access to the water in the event of slow and 

imperceptible accretion. A question arises, which is not dealt with in the Andriet decision: is the 

right of access absolute? In other words, does the right of access necessarily mean that a 

riparian owner will always own lands bounded by the water? Or are there circumstances where 

the right to access can be lost? 

Certainly in Alberta the right is limited by the restrictions imposed by Pitt v. Red Deer (City) and 

Johnson v. Alberta, both of which were discussed in the Andriet reasons. Essentially, those 

decisions direct that the right to ownership of accretions is bounded by Alberta Township System 

lines where certificates of title are limited by statutory boundaries of township, sections, quarter 

sections and legal subdivisions, as set out in Sections 18 to 28 of the Alberta Surveys Act, R.S.A. 

2000, c.S-26. This is an anomaly to the common law doctrine of accretion, arising at least 

partially from the statutory imposition of the Dominion Land Survey System grid.” 

O.L.S. Stewart indicates that access to water, or riparian rights are not necessarily guaranteed 

in perpetuity, based on some restrictions imposed by Red Deer and by Johnson, but also says 

that this is a result of statutory anomalies from the Dominion Land Survey System. In fact, 

according to Cook v. Queen’s County, a change in physical conditions can result in a loss of 

riparian status. Obviously the loss of water access is a serious issue, but in some situations it 

cannot be avoided. In the case at hand, Lots 4 through 13 will now have a barrier between these 

lots and Nottawasaga Bay to prevent any claim they might have to the extension of their 

boundaries toward the lake. Based on the cases reviewed above, and especially based on Ellard, 

I don’t believe these owners ever had a valid claim. The lots are bounded on the west by the 

straight line boundary established by Reg’d. Plan 779, just as they are bounded on the east by 

the boundary with Tiny Beaches Road South (formerly Pine Avenue). If it were ever ruled that 

these lots are entitled to the land in front then some sort of proportional distribution would be 

necessary. Some sort of arbitrary decision about which lots wold not be eligible for this 

proportional distribution would be necessary, because Lots 4 to 9 (and possibly Lots 10,11 and 

12) would end up with such narrow angled strips as to be of no real benefit. It should be pointed 

out that although the Road Allowance eliminates the possibility of actual ownership extending to 

the lake for Lots 4 through 13, if I am correct the beach will be publicly owned. Thus all lot 

owners will still be able to enjoy access to the lake. 


6.5.2 Draft Memorandum to Council of Corporation of Tiny Township by David W. Lambden 

O.L.S. dated June 6, 2002 

This document is a preliminary report on investigations into the One Chain Road Allowances 

created by the several Patents to John Goesmann in payment for his survey of the township. 

O.L.S. Lambden goes to extreme detail in his investigation, most of which is not relevant to the 

present situation, but at Section A, he reports on several aspects related to the original survey of 

Tiny Township. Of specific note are his comments at A.4 where he confirms my finding that 

Goesmann did not survey any proof lines, and only surveyed the concession lines. 

This is a copyrighted document which O.L.S. Lambden provided to me on condition that I not 

release copies without his approval. As such, copies are not included. 

6.5.3 Field Book 38142 CLSR by T.A. Bunker, O.L.S. C.L.S., dated Mar. 5, 2010 (Tab 44) 

This document is entitled ‘Report of Research of the Islands and Water Levels in Georgian Bay, 

adjacent to Henvey Inlet Indian Reserve No. 2', prepared for Surveyor General Branch of 

Natural Resources Canada. It is of interest because, among other things, O.L.S. Bunker 

investigated the relationship between ‘IGLD1985 datum and CGVD28 datum. I wanted to 

prepare a cross-section of the centre-line of both Road Allowances being surveyed to show 

where the water’s edge would likely have been at different important dates, and having an 

understanding of the difference between these two datums is imperative if we are to get reliable 

results. 

Quoting O.L.S. Bunker from Pages 7 and 8 of his Report, “Measured elevations must be referred 

to a datum, a level surface from which the measurements are based. Elevations of the Great 

Lakes are referred to the International Great Lakes Datum (IGLD). Due to Glacial Isostatic 

Adjustment (GIA, often referred to a “post-glacial rebound”), the land around the northern side 

of the Great Lakes is slowly rising, while the land to the south of the Great Lakes is slowly 

sinking. Because of this, the elevations of benchmarks located around the lakes are changing 

over time, and so the IGLD and benchmarks referred to it must be revised approximately avery 

25-35 years in order to ensure that the elevations assigned to the benchmarks remain fairly 

accurate. 

The first IGLD was named IGLD 1955, and has since been replaced with a newer version, IGLD 

1985. The date, 1985, is the central year of the period 1982-1988 during which water 

information was collected for preparing the datum revision.” 


Further on Page 8, O.L.S. Bunker continues “Mr. Stewart also provided us with a table of 

conversions between CGVD28, IGLD 1955 and IGLD 1985 for Lake Huron (Appendix G), based 

on his research into the water level data provided by CHS. The table shows conversion factors 

for 6 different gauging stations located around Lake Huron. 

The table of conversions is copied below: 

Conversion BetweenCGVD28, IGLD55 and IGLD85 

For Lake Huron 

Notes 

• IGLD85 is a higher figure than CGVD28 

• CGVD28 is a higher figure than IGLD55 

Gauging Station 

IGLD85-CGVD28 CGVD28-IGLD55 IGLD85-IGLD55 

Metres (feet) Metres (feet) Metres (feet) 

Goderich 0.031 (0.10) 0.164 (0.54) 0.195 (0.64) 

Tobermory 0.140 (0.46) 0.138 ().45) 0.278 (0.91) 

Collingwood 0.052 (0.17) 0.192 (0.63) 0.244 (0.80) 

Parry Sound 0.119 (0.39) 0.215 (0.71) 0.334 (1.10) 

Little Current 0.151 (0.50) 0.189 (0.62) 0.340 (1.12) 

Thessalon 0.075 (0.25) 0.183 (0.600 0.258 (0.85) 

6.5.4 Historical Great Lakes Water Level Data for Water Gauage at Harbor Beach, MI produced 

by United States National Ocean and Atmosphere Administration (NOAA) (Tab 42) 

This is a table listing monthly water level averages at Harbor Beach from 1860 to 2007, referred 

to IGLD1985 datum. Harbor Beach is located on the western shore of Lake Huron at 

approximate Latitude N43 degrees 50 minutes, roughly opposite Goderich, Ontario. It is 

approximately 230km west of the site of this survey. 


Values are given monthly, and for purposes of continuity I have assumed the most likely 

interpretation of the ‘annual average elevation’ to be during June of the year, once the spring 

freshet has passed. At Paragraph 5.1, I indicated 4 years for which elevations would be of 

interest. Of these, 1823 pre-dates the NOAA data, and I have relied on the elevation determined 

by D. Lambden. The remaining elevations are taken from the NOAA document and corrected to 

CGVD28, since this is the datum provided by our GPS observations, as discussed at paragraph 

5.3. Since Collingwood is located 26km from, and directly across Nottawasaga Bay from the 

project area, I used the IGLD1985 to CGVD28 correction of 0.052m for Collingwood. As noted 

in the Stewart Table, IGLD1985 - correction = CGVD28. 

Average Elevations for Critical Years in Chronology of Wimblewood Beach 

Year Water Elevation (IGLD1985) Water Elevation (CGVD28) 

1823 175.9 175.85 

1891 176.73 176.68 

1920 176.70 176.65 

1929 177.13 177.08 

6.5.5 Historical Lake Huron Water Level Data produced by Canadian Hydrographic Service 

(CHS) (Tab 43) 

This document is similar to the NOAA document above, but from a Canadian source. 

Unfortunately, these records only go back as far as 1918. As with the NOAA records, elevations 

are referred to IGLD1985. The values are monthly means for Lakes Michigan and Huron, and 

are the average of readings from gauging stations located at Thessalon, Tobermory, Milwaukee, 

Ludington, Mackinaw City and Harbour Beach. For comparison and validation of the NOAA 

elevations, the CHS elevations for June, 1920 is 176.73 and for June, 1929 is 177.15. These 

values agree within a worst case of 0.03m, which I would consider well within ‘background 

noise’ for all of the other factors, such as storm surge. 


7 Concluding Comments 

My instructions from the Surveyor General’s office were that the two Road Allowances are to be 

extended northerly and westerly, following the methods from the Surveys Act. I have not been 

able to find Case Law which contradicts this approach, although two Boundaries Act 

applications have bent Road Allowances and used perpendicular lines following Paul v. Bates. 

Boundaries Act cases are not considered legal precedent setting, even according to the Deputy 

Director with the Regulatory Services Branch of Service Ontario. The issue of bending a lot or 

concession line has simply not been discussed by any of the numerous legal decisions I have 

referred to. 

There are four Alberta cases which have held that accretion ends at ‘ATS’ lines (township lot 

fabric), although it isn’t clear whether these lines were side lines or ‘front ‘lines in all cases. 

There is a sketch with Andriet which seems to indicate that the ATS sideline was also respected. 

Clearly in Johnson v. Alberta, the Court placed a high status on the ATS lines, regardless of 

whether they had previously been surveyed or not. 

In his document of additional information for the Deputy Director in Boundaries Act File B- 

1212, Ron Stewart O.L.S. claims that underlying geographics (lot lines) are extinguished when 

water levels increase and then recede at a later date. O.L.S. Stewart claims that Volcanic Oil 

and Gas v. Chaplin determined that once up-land becomes part of the bed of the lake and then 

re-appears the pre-existing boundaries disappear, and that once this happens, the accreted lands 

should then be distributed according to Paul v. Bates rather than the Surveys Act. I do not see 

this from my reading of the case, since I tend to focus on the facts of the case and what is 

actually written by the court, rather than trying to read behind the lines. This issue may 

ultimately need to be determined through a judicial review. Given the lack of legal support for 

bending original Township fabric, as compared to the certainty of the instructions for how to 

proceed contained in the Surveys Act I believe we have good reasons for using the Surveys Act 

methods. 

Johnson v. Alberta, and to a lesser extent Pitt v. Red Deer, Andriet v. Strathcona No. 20 and 

Lack v. Alberta all support the relatively higher status of ATS lines, which I would equate with 

Ontario’s lot and concession lines. In both cases there are clear statutory instructions for how 

such a line should be run, unless better evidence is available. In Johnson especially, the trial 

judge ruled that deviating from the ATS lines would give the plaintiff land they were never 

intended to have, and that whether or not a line had actually been surveyed, the methods under 

the Surveys Act gave clear instructions for how they could be determined. It seems to me that 

given the authority the Minister has under the Surveys Act (as delegated), as recognized by 

Dennison v. Chew and by Zone v. McDowell, and given the clear method for setting these Road 

Allowance boundaries (as compared to the lack of clear direction from specific legal decisions), 

it is appropriate to use the Surveys Act method I explain under Section 6.1.2. 


Based on the Ellard case, the lot owners within Reg’d. Plan 757 do not have any claim to the 

‘Beach’ area in front of their lots. The owners north of Reg’d. Plan 757 including the current 

Boundaries Act application for Duarte (discussed at para. 3.21) only have a claim to the land 

within the original Caston parcel, which was based on a metes and bounds description, with no 

indication of the parcel being riparian. Since the Caston parcel was always bounded on the 

north by the Road Allowance between Concessions 6 and 7, which now extends further west than 

the westerly boundary of Caston, I would argue that not of these properties are riparian, so have 

no claim to waterfront. I would expect that some equitable method for distributing the Caston 

land in front of the straight ‘High Water Mark’ shown on Reg’d. Plan 757 is supported by 

Andriet and several of the Boundaries Act decisions I have reviewed. 

Reg’d. Plan 779 is a different situation, with lots 4 through 96 all being shown with frontage on 

the straight line labeled ‘high water mark’. Lots 1 to 3 never had frontage of any type and they 

will remain as back lots. Lot 4 is only shown with 5.5m ‘frontage’, while the remaining lots have 

‘frontages’ varying from 12.2m to 26.8m. Ronald Stewart O.L.S. has made a Boundaries Act 

application for Lots 42 through 45, Reg’d. Plan 779, under File B-1232. As with B-1176 he has 

extended the existing lot lines west to intersect with the 20.12m Reservation for Road Allowance 

from the J. Groessman Patent. Assuming that this application is successful, we would likely be 

left to proportion between Lots 4 through 41. If a legal decision is made supporting the notion 

that the Reg’d. Plan 779 lots do not end at the surveyed line on the plan, then some form of 

proportional distribution would need to be followed. A decision as to which lots should 

reasonably be included in those eligible for this distribution would needed, since some lots at the 

south end would be dramatically distorted by including Lots 4 through 11 in the distribution 

scheme. 

As I alluded to under Paragraph 6.4.7, the notion that the land between the lots in Reg’d. Plan 

779 and Nottawasag Bay should be considered as part of these lots using the justification that 

the developer intended to use all of his available shoreline land may fail under judicial scrutiny. 

Walker succeeds because riparian land extends to the water. The land owned by the developer of 

Reg’d Plan 779 (originally the John Goemann Patent) never extended to Nottawasaga Bay, so 

that legal doctrine doesn’t directly apply. In a sense this is still the situation that Madame 

Justice Lauwers disagreed with in her decision regarding Ellard v. Township of Tiny. I’m not 

sure that it is certain conclusion that these lots should extend to the landward side of the 

reservation for road allowance, as contended by O.L.S. Stewart. 

If it is decided that the lots should be extended then I would suggest that the original layout for 

Reg’d. Plan 779 should be used as the model. Under that layout, Lots 1 through 3 and part of 4 

are bounded by the Road Allowance between Lots 18 and 19 and have no claim to the ‘Beach’ 

area. Rather than bend the lot lines across the beach using a proportional approach, it might 

make more sense to extend all of the lot lines as done by O.L.S. Stewart has done: Lots 4 through 

11 would extend only as far as the Road Allowance between Lots 18 and 19, while Lots 12 

through 41 would extend to the Road Allowance Reservation.

Report of Research, Field Investigation and Survey of Robert D ...

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