gallagher papers 14
frank...@hotmail.com
on April 9 2004
pertinent information selected in
the order of appearance
Surveys Act
"ascertainable point" means a point found or re-established in its
original position on a line or boundary established during the original
survey or on a line or boundary established during the survey of a plan
of subdivision registered under the Land Titles Act or the Registry
Act.
" lost corner " means a corner established during an original survey or
during a survey of plan of subdivision registered under the Land Titles
Act or the Registry Act where the original post no longer exists or
never existed and which can not be established from the field notes of
either of such surveys or by evidence under oath.
"original post" means any object that defines a point and that was
placed,planted or marked during the original survey or during a survey
of a plan of subdivision registered under the Land Titles Act or the
Registry Act.
"original survey" means a survey made under competent authority.
"undisputed corner" means a corner of a parcel of land at which the
original post exists,or a corner established under this Act or any
predecessor of this Act...R.S.O. 1990.c.S.30,s.1.
True and unalterable lines,etc.
9. Despite section 58,every line,boundary and corner established 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,and shall be
deemed to be defined by the original posts or blazed trees in the
original survey thereof ,whether or not the actual measurements between
the original posts are the same as shown on the original plan and field
notes or mentioned or expressed in any grant or other instrument,and
every road allowance ,highway,street,lane,walk and common shown on the
original plan shall,unless otherwise shown thereon,be deemed to be a
public road,highway,street,lane,walk and
common,respectively.R.S.O.1990.c.S.30,s.9.
PART IX
PLANS OF
SUBDIVISION
Definition
53. In this Part,
"plan of subdivision"means a plan of subdivision that is
registered under the Land Titles Act or under the
Registry Act.R.S.O.1990,c.30,s.53
54. Every line,boundary and corner established by survey and shown on
a plan of subdivision is a true
and unalterable line,boundary or corner ,as the case may be,with
respect to such plan and shall be
deemed to be defined by the original posts or blazed trees in the
first survey thereof ,whether or not the
actual measurements between the original posts are the same as
shown on the plan of subdivision
expressed in any grant or other instrument R.S.O.1990,c.S.30,s.
54.
Re-establishment of lost corners,etc
55. A surveyor in re-establishing a line,boundary or corner shown on a
plan of subdivision shall obtain the
best evidence available respecting the line,boundary or
corner,but if the line boundary or corner
cannot be re-established in its original position from such
evidence,the surveyor shall proceed as
follows:
1.If a part of a line is obliterated,the surveyor shall re-establish
it by joining the nearest ascertainable
points thereof in the manner shown on the plan of
subdivision.
2. If a corner on a line is lost,the surveyor shall re-establish it
by the method that accords with the intent
of the survey as shown on the plan of subdivision and,if it is
consistent with the intent of the survey
as shown on the plan of subdivision,the surveyor shall determine
the distance between the two nearest
undisputed corners,one being on either side of the lost
corner,and the surveyor shall re-establish the
corner by dividing the distance proportionately as shown on the
plan of subdivision having due regard
for any road allowance,highway,street,lane, walk or common shown
on the plan of
subdivision.R.S.O.1990,c.S.30,s.55
(The following is not a part of the act but rather
a commentary of the above by the author ..fg)
xx x Common sense dictates consistent (above) was
intended to be inconsistent xxx
fg
commentary
THE RETRACEMENT OF STREET LINES CREATED BY A REGISTERED PLAN
OF SUBDIVISION
The retracement of a street line shown on a registered plan of
subdivision is the simplest form of surveying that I have experienced
in my 40 years in this business.That was the intention when it was
introduced and it remains the intention.
The subdivision into township lots and concessions were done when land
was plentiful and relatively inexpensive compared to todays
standards.We must remember that the mode of transportation,equipment
available and huge remote areas provided challenges away beyond the
comprehension of the urban surveyor of today.We surveyors who have
routinely retraced the metes and bounds descriptions of property being
part of an aliquot part of a lot who had to measure through woods and
swamps with measuring tape guided by the stars and his knowledge of
astronomy and the Surveys Act are in awe of what the earlier surveyors
accomplished with out roads and automobiles to get them there.
The knowledge gained from the township subdivisions and the Surveys Act
to guide them in their retracements of them was adopted into the
registered plan of subdivision within the townships.
The first subdivisions within the township lots and concessions were
still in remote areas and contained huge lots.Before they could stake
out a registered plan of subdivision they would need to retrace the
road allowance according to the Surveys Act.These fellows were still
using chains 66' long consisting of 100 links.I wonder how much a chain
that long would weigh and how many lbs tension compensated for the
stretch and sag of the chain and just how much they allowed for
temperature correction ?
The Surveys Act described above under the title True and unalterable
lines,etc 9.beginning " Despite section 58,every line...."etc etc. is
deemed to be defined by the original posts or blazed trees
......Suggests to me that the blazed trees were probably closer to the
original post than the original posts on either side of the missing
corner because the act goes on further to disqualify the plan
measurements between this point so established by the measurements from
the blazed tree and the measurements from the monuments on either side
of the missing point
.
Wait a minute !!....defining the lot corner by a blazed tree still
involves measurement.
I am still confused...what if the circumstances presented that the
measurement between the posts on either side of the missing point
measured plan distance but when the missing point was established on
the line of the two exterior points at plan distances it agreed with
the line produced by the blazed trees but did not agree with the
original survey measurement to the blazed tree and the angle measured
at this intersection agrees with the original survey
At the moment I would suspect that the measurement to the blazed tree
was in error or the two posts have been moved.I agree that the original
posts are a whole lot more easily moved than a blazed tree but what if
I agree with the lot depth as shown on the original survey? What if I
continued through the rear yard of the lot abutting the rear of the
subject property and agreed with the measurement shown on the
registered plan.
I am thinking that if there is no fence of age which can be related
back to the time of the original survey or when the original post was
likely to be available and the adjoining owners can not shed any light
as to how a newer fence was erected I would be leaning highly at this
moment to go with the line between the fence posts.Especially if the
newer fence agreed with me.An old fence would have been the concluding
factor even though owners intent on a deception have been known to use
old fence to mark a new line.This can be checked by conversation with
the owners or adjacent owners and documented by affidavit.
I have witnessed property owners in the process of erecting old fence
posts some twenty to thirty feet over onto land not owned by them.On
one occasion the old fence was still there on the tree line which the
fellow had not removed yet as he was removing the posts from the old
line over to his new line as he went.Imagine his embarrassment as we
traversed our way to where he was working.
I wonder what flashed in his mind as we approached.
Here... in the middle of nowhere,from nowhere comes ...of all
people...land surveyors ....just when I was performing my God given
right to nip a little of my neighbours property when he isn't
looking.Daddy,grand daddy and great grand daddy ain't never gonna let
this be done with.
I can hear great grand now."You have set the land owners right to a
peaceful steal back to the ways of the old country.We had the land grab
so perfected that we were going to pass it on to thems in the middle
east.Now...cuz of you... when Johnny comes a lookin for his land I' se
got to blows him away.I hates it when that happens.You ain't gonna
hears how to steal roads."
His great grand dads conclusion would more likely be "Luckily thems
guys was just surveyors who saw ya messin with the fence.Thems gonna go
report to their office and yammer with some more teached people who
will shows them how surveyors messed up the township survey away back
when my great great grand daddy was a young un , just learnin how to
take what he needs while blamin the surveyor. They will explain how it
is easier to document today for our adverse property takeover... if we
wait ten years.
Well ..what we have here is the Surveys Act deeming the lot corner to
be defined by the original post or bazed trees.
Deem in my dictionary..To judge,consider as,suppose.
Suppose in my dictionary..To imagine;to believe without proof;to accept
as true for purposes of reasoning;to expect; as;I suppose I'll be
invited. Syn Deem,guess,surmise.
Surmise in my dictionary..A conjecture,suspicion;an opinion with little
evidence supporting it .Syn.Assumption
Assume according to felix in "The Odd Couple" Assume ...spelled ...A
..S..S..U..M..E....When you assume you make an ASS out of U and ME.
A definition that relates.I will not assume and hence I lean even more
to the two original post decision as mentioned above but I will delve
further for anything that will segregate me from the masses.
xxx Common sense dictates that if the lots were small .....evidence of
the adjacent lots would be available to replace the lost corner .
Why would measurements from the blazed trees be more valid than
the measurements shown on the registered plan of subdivision from
existing lot corners... other than it being quite a bit more difficult
to move.Not as difficult to move as a house, however, but difficult.
Well, ass I said ..I will look further into this to see what I shall
find.
The following information was downloaded from WWW.AOL.ORG
on April 11 2004
pertinent information selected in the order
of appearance
LAND SURVEY PARTY CHIEF
SEMINAR
III
PRINCIPLES OF
RETRACEMENT
LECTURE
NOTES
Introduction:
It is common knowledge that the Surveys Act,and the Regulations that
are the implementing rules of that Act ,govern how we perform any
survey.
The Act defines certain words and expressions such as :
"ascertainable point"-being a point found or established in its
original position.
"lost corner" - being a corner established during an original survey
where the original post (ie monument) no longer exists and which can
not be re-established from the field notes or by evidence under oath.
Parts II to VII of the Surveys Act define the methods of
re-establishment of the different types of township surveys,and,in each
case,before defining how the establishment must be carried out,the
Surveys Act stipulates:
"A surveyor in re-establshing a lost corner,an obliterated side line of
a lot...shall obtain the best evidence available respecting the
corner,boundary or side line but if the corner,boundary or side line
can not be established in its original position from such evidence,he
shall proceed" as follows.
The Act then gets into how the work will be performed.
Notice the expression "shall obtain the best evidence available" What
we must be able to understand is:
What is meant by the term "evidence" and what is "the best available
evidence"
Evidence(and we are only pursuing the meaning as it relates to legal
surveys) is that which affirms a fact.There are two types:
1. Documentary,or on record,such as plans on title in
the Land Registry Office,Surveyors notes etc
2. Physical,or what is found on the ground,such as
monuments,blazes,bearing trees,fences,topography.
These two types of evidence are inter-related.Documentary evidence
indicates what to look for,and physical evidence is what you find on
the ground by the intelligent use of Documentary evidence.
A surveyor must gather and intelligently assess all available evidence
in order to detirmine the actual position of a previously established
line...............................carefully weigh all
evidence................etc...........
...............................................................................................................................................
.............conflicting
evidence...................................etc...............................................................................................
.........................................................................................................................................................................
.........................The monuments found initially may be the
result of an incorrect survey,or could have been placed deliberately to
benefit an individual.
As a firm principle we must follow the precept that the marks and
monuments set on the ground the first time the boundary was delineated
are those which distinguish that boundary,and only by finding those
original monuments can the surveyor define the boundary conclusively.
This leads to a second principal which states that any re-establishment
of a monument on the mathematical dimensioning by the original survey
and unsupported by actual physical evidence might be quite wrong,and
could have far reaching effects if satisfactory evidence of the
original monuments were later discovered.
It is mandatory to complete a full search in order to find the original
monument ,or physical evidence of its actual location.Although you may
be able to locate the monument,you must never assume that it is in its
original position until other evidence ,or measurements prove it to be
correct.
This leads to a third principal of never abandoning the search for
evidence until you are personally convinced that no one else can find
any better evidence than you have.
The last principal that we must adhere to is that every boundary under
retracement must be substanciated and proven according to the rule of
best evidence as laid down by statute,or which may be found in Common
Law.Where no physical evidence can be found,then and only then,can the
corner or boundary be defined by a valid and established survey method.
A long -standing
dictum..............................................evidence
.................................................................................................................same
light as would be assessed by the courts
............................................."What evidence ?" or
"Evidence of what"
.....................................
................................................................................................................
...............................................................................................It
goes on to say that it is our job to prove by some means that what we
have found is what was intended.Evidence must be of a reliable nature
to stand up in court.
J.H.Holloway,A.L.S.,noted in his article published in The Canadian
Surveyor
"A single item of evidence is not proof of the fact it
indicates.Even several items of evidence all pointing to the same fact
may not afford conclusive proof.The surveyor must be sure he has
exhausted all sources of evidence,and then must weigh all that
evidence,and decide in what direction the greatest weight of evidence
lies."
Oh Oh ..........here we go Seminar III for Party Chiefs Page
5 of 18
For instance,where you find an original monument in good condition,it
is in the nature of primary evidence.When you make subsidiary
measurements from it to other evidence which agrees with documentary
data,(i.e.secondary evidence)then you can accept the monument as being
correct.However, if the monument has been destroyed and a fence post
erected which agrees with the secondary evidence ,then you can accept
the fence post as being correct.
You must not lose sight of the basic principle that the most relevant
evidence is the position of original monuments placed to define a
boundary.Field notes of the survey are record of the primary
evidence.What happens when you find that the field notes indicate a
different position of a corner to where you found the monument?Was it
erroneously placed ?Has it been moved from its original location ?Are
there errors in the field notes ?
It is a well-established principal that even though it appears that a
monument appears to be in error,once it is placed and the survey
confirmed,then the monument governs the corner and the boundary for
which it was intended.This is an awkward situation for anyone.The only
way of deciding that it is not to be used can be found by a
preponderance of other evidence proving conclusively that it was in
fact planted erroneously,or by correction through legal avenues.
Page 7 of 18
We must bear in mind when discussing " the best evidence available"that
1. A boundary is a division line between two owners.
2. The rights of both parties must be considered.
3. The survey is not conclusive unless the parties
concerned consent to the surveyor's opinion.
4. The court may follow after the surveyor to judge the
work.
Page 8
of 18
"A monument should be visible,its identity certain,it should have
permanence and its positioning must be stable."
Page 9 of
18
Where monuments are noted in a description, or shown on a plan of
survey, the monuments must govern the extent of the land in the
description or on the plan .And,if it is found that the deed or plan
measurements do not agree with your measurements,then the position of
the monuments govern the extent of land ,provided always that you prove
the monuments are in their original position.
New,the term "original monumentation" refers to the first monument
planted to define a point in a survey ,be it planted in 1792 or 1992.To
be of value,an "original monument"must be in its original position and
proved to be so by evidence verifying its location.
Not all monuments that are found have value as evidence.If a monument
is to be of value ,it must have been noted in some documentary data.If
you locate a monument at or near a corner and it differs in
composition(i.e. size or character) from that described in the
documents,you must investigate and find all the facts about it in order
to detirmine its origin and validity.
But be cautious about monuments. They can and do move from their
original position due to many reasons,not the least of which is man's
greed to acquire land to someone else's misfortune.
To authenticate the position of a monument :
1. Check closely to ensure it is the type and size called
for in the documentary data.
2. Take a really hard look to ensure it appears not to have
been disturbed.
3. Check some measurements from it to other evidence in
order to satisfy yourself it is in the original
position.Other evidence may be ties to old fences or
other monuments,and old and settled lines of
occupation.
Page 10 of 18
Secondly,where the plan and the monuments do not agree,the monuments
govern,provided always that the monuments are in their original
position.
Our job is to authenticate its position and reliability.
Page 11 of 18
What we must always bear in mind is that whenever an original monument
is found ,proved by other evidence to be in its original position, and
authenticated by documentary evidence to be the controlling factor of
the location of a corner or boundary, then it is incumbent upon us to
perpetuate it for future generations.
Page 16 of 18
Narrative:
In our work,we keep using the term "Survey Law" (which is a misnomer)
when referring to those parts of common law and other precedents, which
we use to justify our manner when saying where a boundary is,or is
not,and showing it on a plan.
Just what is a "boundary"? It is not defined by the Surveys Act.The
term "boundary" has, in reality, two meanings. First, it is the
invisible line between two adjacent owners. Secondly, it is a physical
object that defines the limit of a parcel of land.
Page 18 of 18
Conclusion:
We have deliberately refrained from quoting specific cases that have
come before the courts because of my belief that it is the concepts of
law you should understand.The ability to rattle off cases only proves
you have a good memory for names.
now .....MY CONCLUSION
fg
The information above was extracted from 2 seperate downloads from the
WWW.AOL.ORG.
Surveys Act .......April 9 2004
Principals of Retracement.......April 11 2004
My intention was to back up the premise that streets shown on
Registered Plans of Subdivision as 66' are indeed 66'.
That was the intention of the Registered Plan and the original field
notes will document this.The information above confirms this .Any
surveyor rejecting this will be deemed competent according to the
definition above..
The Surveys Act consistently states that any original monument is true
and unalterable as to its position on a plan as long as it is in its
original position.This position must be tested and proved to be in its
original position by measurement to other original evidence.The rights
of owners on both sides must be considered.There is only one way to
consider the City's rights and to verify the position of the original
monument and that is to check for 66' road width.If 66' was measured
across the road in subsequent surveys the case is made.If the distance
was measured across the road and 66' was not obtained and no further
work was done to resolve the issue then the original monument does not
meet the criteria to have value.If a subsequent survey neglected to
check the 66' across the road then the surveyor not only failed to
prove the original monument was of value he blatantly showed no regard
for the rights of the City nor any concern for the authority of the
Surveys Act for he gave no regard for the road.
Due in my dictionary..Something owed or deserved,as it was only his
due.Owed or owing.Owed as a debt.
Regard in my dictionary..Close
attention;consideration;respect:regards,good wishes;in regard
to,concerning...
No in my dictionary..Not any ;as,he has no sense;not one,as, there is
no chance.
Due Regard..Translates to an "Owed or deserved consideration or
respect,"
Due Regard..I suppose due regard could be interpreted from the
dictionanary words as"something owed and good luck"
regards
fg
PS
Recently ,I was reminded of the presumption of innocence of
presumption.
When I hear the word, I visualize that any person ..found in the
jungles.. of obvious distinction from the indigenous ...must certainly
be presumed to be Dr.Livingston.
This is my presumption based on my limited knowledge of that historic
event.
There of course will be as many presumptions as there can be
interpretations of the story.
If we were to accept any interpretation of the story to be fact
....including those famous words "Dr Llivingston.. I presume" it would
probably be fair to say that the finder made a reasonable deduction and
perhaps his name was Watson.
Was the presumption based on wishful thinking due to the arduous trek
to find him or was the summary based on the trail of available evidence
that allowed for the presumption.Maybe there was some finger crossing
involved.
Any scenario including those above may indeed back up the presumption
but the above quote illustrates the finders due diligence to prove the
presumption to be true.
The statement "Dr. Livingston ...I presume " to Dr .Livingston I
presume is in fact evidence that he was beginning the process of
proving the presumption to be the truth.
The presumed Dr.Livingston would respond.. yes or no ..which would
trigger a rapport to satisfy the finder as to whom he had actually
found.
The meaning of the word " presumption" in legal surveying can be best
described as the beginning to the end.
Like a boundary line between two owners ..there is a beginning and an
end which can be determined by the proper use of documentation and
monumentation.
presume.. in my dictionary...To venture without actual authorization;to
take for granted;to imply,as,promotion presumes merit.
presumption ..in my dictionary...Something taken for granted;that which
encourages belief without proof,as the presumption is that we will
accept;unwaranted assurance;unjustified assumption,as,I dislike his
constant presumption.
presumptuous..in my
dictionary...Arrogant;bold;overconfident.Syn.Arrogant,insolent.One is
presumptuous who encroaches beyond the bounds of good taste and takes
undue liberties;one is arrogant who makes exorbitant claims to
importance;insolent suggests offensive disregard for the feelings of
others.
The meaning of the word presumption is enacted in every action one
takes.
When you plan for tomorrow ..you presume that you will be alive to
enjoy the rewards.
If you go to the movies you presume that the local theatre has not
burned down since you were there last.
When you go looking for an "original monument" you use many
presumptions to help you in your search.For example if you are trying
to find the original monument for a point of curve you may presume that
the road construction suggests where you should look for the original
monument or you may presume a fence line to be on a certain boundary
line from which you can measure to look for the "original monument".
So ..it is reasonable to say that there are many presumptions available
to help you locate an "original monument"
It is your presumptions that will show you where to look but
unfortunately when you apply the "Dr.Livingston ..I presume" approach
to confirm the value of that which you find you most likely will be
presumed to have the intellectual capacity of the wood post that you
interviewed.Perhaps it was a stoned monument you found.
The premise "if it looks like one,smells like one and sounds like one"
may indeed support your right to presume that you have the "original
monument"HOWEVER...as I mentioned above ...in surveying... presumptions
are that which aid you to begin your quest to locate the original
undisturbed position as shown in the original field notes for the
relative survey plan.
The finding of a monument which matches the pertinent document call is
indeed a great beginning to the end.
The end is when you have satisfied yourself that there is no evidence
available to dispute your presumption that you
have located the original undisturbed position of the original
monument.
The surveyor retracing an original survey to re-establish the original
position of an original monument will be the first to agree that the
field notes of a surveyor retracing a subdivision to stake out a new
house and the reference ties of the final survey will presumaby provide
him with the best evidence as to where the "original monument "was
found.
I believe this evidence will be presumed by all the world to best
define where the "original monument" was found and that the surveyor
had every right to presume that he had found the original monument.
Unfortunately ,if he did not make a check measurement across the road
to confirm that the monument was in its original and undisturbed
position ,it is usually easy to find evidence to rebut his presumption.
It is important to note that all references to streets or roads above
are relative only to those created by the Registered Plan of
Subdivision.
Existing roads prior to a registered plan of subdivision to which a
subdivision plan abuts are a whole new ball game.It will suffice to say
that you may not establish the said abutting limit by setting the
documented road width from found evidence on the other side of the road
unless such evidence was shown on the registered plan of subdivision
along with a measured road width.A line so established must still
conform with the rules of best evidence etc.
fg