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

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.’
Page 57 of 66