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

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adverse to the Township’s interest and the Council rescinded its original resolution requesting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.
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