Docket: CA 175075
NOVA SCOTIA COURT OF APPEAL
[Cite as: Metlin v. Kolstee, 2002 NSCA 81]
Glube, C.J.N.S.; Hallett and Oland, JJ.A.
BETWEEN:
JOHN METLIN, MICHAEL METLIN and BEATRICE METLIN
Appellants
- and -
HANK W. KOLSTEE and DONNA L. KOLSTEE
Respondents
REASONS FOR JUDGMENT
Counsel: Jeff Forbes agent for the appellants
Gary A. Richard for the respondents
Appeal Heard: March 21, 2002
Judgment Delivered: June 7, 2002
THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Glube, C.J.N.S. and Oland, J.A. concurring.
[1] The parties to this appeal own adjoining properties at or near Brookfield, Nova Scotia. That owned by the respondents was once part of property owned by the appellants.
[2] The appellants appeal the decision of the Honourable Justice C. Richard Coughlan dated June 5, 2001 which determined the extent of the property owned by the respondents. The trial judge was essentially asked to decide the boundaries of the property in their deed. In substance, the matter in issue became whether the western and southern boundaries of the respondents’ property were as claimed by them or as claimed by the appellants.
[3] It is important to note that the respondents were not claiming title by adverse possession but by virtue of their deed.
[4] The relevant portion of the legal description of the respondents’ property (the “Property”) as set out in the deed to them dated November 15th, 1985 follows:
ALL THAT CERTAIN lot, piece or parcel of land situate at Brookfield, in the County of Colchester and Province of Nova Scotia more particularly bounded and described as follows:
BEGINNING at a point on the western side of the Mountain or New Road, so-called, at a point where the northern boundary of land hereby conveyed intersects same;
THENCE southerly along the western boundary of the said highway a distance of one hundred and twenty-one (121) rods to an iron pin set in said highway boundary;
THENCE westerly to a stone drain, seventy-six (76) rods;
THENCE northerly a distance of eighty-seven (87) rods to an iron pin in the Kennedy line;
THENCE easterly along said Kennedy line a distance of eighty-four (84) rods to the western boundary of the first-mentioned highway and point of beginning.
CONTAINING fifty-two (52) acres, more or less.
The full description is attached as Schedule “A”.
[5] In order to understand the decision of the trial judge and these reasons, a recounting of the relevant portions of the chain of title as set out in the abstract of title and some background are necessary.
[6] By a deed dated November 2, 1948 the late Lorenzo (Rennie) Metlin acquired a lot of land of 180 acres at or near Brookfield. The appellant, Beatrice Metlin, is Rennie’s widow and the appellants, John Metlin and Michael Metlin, are two of the children of Rennie and Beatrice.
[7] In 1951, Rennie and Beatrice Metlin deeded the entire 180 acres to The Nova Scotia Land Settlement Board. A review of Part X1X of the Agriculture and Marketing Act, R.S.N.S. 1954; c. 5 shows that the Board or its predecessors existed at least as far back as 1923. Section 207 of the Act authorized the Board to acquire and dispose of farms and to provide financial assistance for farmers by way of loans. It would appear that the mechanism favoured by the Act in providing financial assistance to a farmer was to take a conveyance of a farm and enter into an agreement of purchase and sale with the farmer pursuant to which the farmer would make monthly payments on the debt. If he defaulted the Board could declare his interest forfeited and take possession (s. 215). These statutory provisions were in place in 1951. The abstract of title does not indicate when the 180 acre farm was reconveyed by the Board to Metlin, but obviously it was not before June 22, 1965 because on that date the Board conveyed a parcel of “fifty two (52) acres, more or less”, to The Director, The Veterans’ Land Act. The legal description is the same as that for the Property, but without the “being and intended to be” and the “saving and excepting” paragraphs.
[8] The Veterans’ Land Act, R.S.C. 1942-43 c. 32 was enacted by the Parliament of Canada to assist veterans who would be returning to civilian life after the war in acquiring the ownership of farms. Its preamble recognized that prospective veteran “settlers” had limited financial assets and that the federal government wished to provide a measure of financial assistance to them in acquiring land and equipment. The Act authorized The Director, The Veterans’ Land Act to acquire property and to transfer property in conformity with the purposes of the Act (s. 5). The Director was authorized to contract with a veteran for the sale to him of land and equipment (s. 10). While under contract of sale the veteran in possession of the land was deemed a tenant at will until the Director conveyed the land to him when the sale price was paid in full (s. 12 and s. 13). It is a reasonable inference that the Director acquired the title to the 52 acre lot from The Nova Scotia Land Settlement Board (which was holding title to the Metlin farm at that time) to accommodate the sale from the Metlins to Eugene Harvey Peters which, according to the evidence of Mr. Metlin’s son, Raymond Metlin, was negotiated in the early 1960's.
[9] In July of 1971, the Director conveyed that 52 acre lot to Mr. Peters who deeded it the following month to Joseph Lay and Joan Lay. In 1974 title to this land (saving and excepting a one acre lot which Joseph Lay had conveyed) passed to The Nova Scotia Farm Loan Board which deeded it back to Mr. Lay five years later.
[10] In 1984, Joseph Lay conveyed to Blair Fraser the 52 acre lot, less the one acre lot previously conveyed to a Mr. Church. After deeding to the province a parcel of some 0.49 acres for the widening of the Kennedy Road which comprises the second excepted parcel in the legal description of the Property, Fraser conveyed the Property to the respondents in 1985. In 1994 the respondents conveyed a parcel of land 100 by 200 feet to the Simons as an addition to the parcel previously conveyed to Mr. Church. These parcels of land are located at the northeast corner of the 52 acre lot and are shown on the survey plan described on the Keen Plan in ¶ 12 of this decision as Lot AB-C as belonging to the Simons.
[11] Through all these conveyances of the Property, the Metlins continued to own and live on the adjacent property to the south and to the west. It appears from the evidence at trial that the relationship between the Metlins and the successive owners of the Property was generally friendly and accommodating until 1998 when Beatrice Metlin, wanting to move to town, decided to sell the Metlin property. It was then discovered that the appellants and the respondents did not agree as to the location of the boundaries between their properties.
[12] The appellants retained Ritchie F. MacInnis, N.S.L.S. to survey the Property. They gave a copy of his plan to the respondents who then hired Emerson C. Keen, N.S.L.S. He prepared the plan entitled “Plan of Survey Showing Lands Of And Lands Claimed By Hank W. Kolstee & Donna L. Kolstee, Plan No. 5952, dated November 22, 1999 prepared by E.C. Keen Land Surveying Ltd.” (the Keen Plan) on which he showed the boundaries as he determined them to be. The Keen Plan is attached to this decision as Schedule “B”. It has been very substantially reduced from its original size of three feet by two feet and much of the detail has been unavoidably lost. Even so, it is helpful as an aid to the reader in understanding the evidence before the trial judge and in understanding this decision.
[13] The respondents claim that the extent of the Property and their boundary lines vis-a-vis the appellants’ adjoining property, as set out in their deed, are as established by Mr. Keen. They sought a declaration to that effect.
[14] At trial, Hank W. Kolstee and Emerson Keen testified. With the consent of the appellants, the discovery evidence of Thomas Peters, son of the Eugene Peters, who had been the first individual owner of the Property after its subdivision from the Metlins’ 180 acre lot was entered into evidence. Beatrice Metlin, John Metlin, Michael Metlin, Raymond Merriam, and Raymond Metlin testified on behalf of the appellants.
[15] The exhibits at trial included: an aerial photograph on which, during the trial, several witnesses marked various features of the Property and the Metlin property, the abstract of title, a survey report prepared by Mr. Keen and the Keen Plan.
[16] According to the deed description, the Property is a four-sided parcel bounded on the east by a road which is now known as the Kennedy Road. Each side of the parcel measures an exact distance, and each of its corners except the point of beginning is marked: the southeastern corner by an iron pin set in the west side of the road, the southwestern corner by a stone drain, and the northwestern corner by an iron pin. It is also apparent from a reading of the description that particularly since the eastern boundary is 34 rods or 561 feet longer than the western boundary, the shape of the Property cannot approach a rectangle. Finally, according to the deed, its original estimated area of approximately 52 acres had been reduced by the conveyances of two parcels of land, one of which is described as a one acre parcel located at the northeast corner of the 52 acre lot and the other a very small portion of the said lot which bounded the west side of the Kennedy Road and was conveyed to the province for road reconstruction.
[17] The plan prepared by Ritchie F. MacInnis was not entered as an exhibit and Mr. MacInnis did not testify because he had moved to the United States and apparently counsel did not feel it was necessary for him to attend at trial as the Keen Plan showed the lines of the property in dispute as determined by Mr. MacInnis.
[18] At the hearing of this appeal, the appellants applied to introduce the survey plan and report prepared by Ritchie MacInnis as fresh evidence. Their application was supported by the affidavit of Jeff Forbes, a grandson of Beatrice Metlin, who spoke on behalf of the appellants before this court.
[19] The appellants have failed to meet the test for the admission of fresh evidence on appeals as set out in R. v. Palmer (1979), 30 N.R. 181; 50 C.C.C. (2d) 193 (S.C.C.). That test has been applied by this court in many cases: see, for example, Ross Ritchie Ltd. v. Sydney Steel Corp. (2001), 194 N.S.R. (2d) 345 (N.S.C.A.) at pp. 358-359. It is apparent that the plan and report of Mr. MacInnis could have been adduced at trial. They existed at that time and while that surveyor had left this province, if the respondents had objected to their entry without his testimony, the appellants could have paid the cost of his travel and attendance in court or could have retained another surveyor as an expert to present them in court. The first criteria in R. v. Palmer (supra) not having been met, the application for the introduction of this material as fresh evidence must be dismissed.
[20] The Keen Plan depicts the boundaries of the Property as determined by both Mr. Keen and by Mr. MacInnis. As Mr. Keen had been given the plan drawn by Mr. MacInnis and Mr. MacInnis had established his survey lines on the ground before Mr. Keen’s survey crew arrived, Mr. Keen showed the survey lines as established by Mr. MacInnis and noted on the Keen Plan “See ‘Plan of Survey Showing North, West and South Lines Between Lands of Hank and Donna Kolstee as Per Deed in Book 539 Page 725 and Lands of Beatrice Metlin. Also Showing Lands Claimed by Hank Kolstee Parcel A’ dated May 31, 1999 by Ritchie F. MacInnis, N.S.L.S.” This reference to Mr. MacInnis’ plan does not allow this court, which has dismissed the application for its admission as fresh evidence, to examine Mr. MacInnis’ plan. However, since the lines are depicted on the Keen Plan and Mr. Keen gave evidence regarding those lines at trial, it is proper, appropriate and necessary to refer to them in these reasons.
[21] Before examining the Keen Plan in detail, I would point out that Lot AB-C at the upper or northeast corner of the Property comprises the lands which were conveyed out of the original 52 acres prior to the purchase by the respondents in 1985 and the parcel that was sold by the respondents in 1994 as an addition to the original lot sold to Church. For the purposes of simplifying these reasons, I will deal with the northern boundary of the Property and its measurements on the ground and as called for in the deed description that created the 52 acre lot without referring to Lot AB-C. It is important to note that the description in the deed conveying the Property to the respondents is the same description as that used in the deed creating the 52 acre lot in 1965 saving and excepting out of that 52 acre lot the two parcels that were conveyed prior to the respondents acquiring title. In addition, since the distances given on the Keen Plan are in feet rather than in rods, as set out in the deed description of the Property, I will generally use that form of measurement, although from time to time I will have to relate the measurement in feet to the rod measurements as called for in the deed to the Property. One rod is the equivalent of 16.5 feet.
[22] The boundaries of the Property as established by Mr. MacInnis can be seen on the Keen Plan inside the boundaries established by Mr. Keen. On the Keen Plan, the interior parcel created by Mr. MacInnis’ survey is entitled “Lands of Hank W. Kolstee & Donna Kolstee” followed by the book and page reference of their deed and noted as containing 46.50 acres. The irregular shaped piece of land which extends from the western and southern boundaries of that interior parcel to those boundaries of the exterior parcel drawn by Mr. Keen is entitled “Lands Claimed & Occupied by Hank W. Kolstee & Donna L. Kolstee” and noted as containing 9.94 acres.
[23] As shown on the Keen Plan, Mr. MacInnis and Mr. Keen agreed as to the courses of the northern and eastern boundaries. The eastern boundary of the property runs along the west side of the Mountain Road (also known as the Kennedy Road). From time to time I may refer simply to the Kennedy Road as “the Road.” The deed description begins at a point where the north boundary of the Property intersects the west side of the Mountain Road. From that point the lands conveyed are described as proceeding southerly along the western boundary of the highway a distance of 121 rods to an iron pin set on the highway boundary (121 rods equals 1996.5 feet). The eastern boundary of the Property as determined by Mr. MacInnis measures 1993 feet. The length of the eastern boundary as determined by Mr. Keen proceeds southerly a further 26.94 feet. There is not such a significant discrepancy between the length of the eastern boundary as determined by the respective surveyors, as there is with respect to the southern and western boundaries. However that of Mr. MacInnis more closely reflects the distance called for in the deed.
[24] The Keen Plan and the evidence shows that there are two stone drains in the area relevant to locating the southwestern corner of the Property. Mr. MacInnis ran his south line to the more easterly drain; Mr. Keen to the more westerly. Apart from the difficulties that this creates in the interpretation of the description there are differences in the length of the south line as determined by both surveyors from the distance called for in the deed. A possible explanation arises from the fact that the Kennedy Road was widened in 1984. As previously noted the then owner, Mr. Fraser, conveyed a parcel of land from the 52 acre lot to the province. The description which is reproduced in the abstract is difficult to plot without the aid of the plan referred to in the description. The description is as follows:
All that certain lot, piece or parcel of land, situate, lying and being at or near the district of Brookfield, County of Colchester, Province of Nova Scotia, and more particularly, bounded and described as follows:
BEGINNING at a survey marker located at the point of intersection of the western boundary of the existing Kennedy Road, so called, with the western boundary of the reconstruction of a portion of the Kennedy Road, so called, said survey marker being located 33 feet perpendicularly distance from the centre line of reconstruction thereof;
THENCE in a northerly direction, parallel to the said centre line, a distance of 895 feet, more or less, to a survey marker located on the western boundary of the existing Kennedy Road, so called;
THENCE in a southerly direction, following the several courses of the last mentioned road boundary, a distance of 90 feet, more or less, to the point of beginning.
THE above described parcel of land contains a total of 0.49 acres, more or less, and are shown on Department of Transportation Right of Way titled to Kennedy Road, dated 13 July, 1983, as recorded at the Registry of Deeds, Truro, County of Colchester, as File Number P-3858.
Neither the deed, nor the plan that was referenced in that conveyance to the province, was put in evidence.
[25] A review of the Keen Plan has satisfied me that the parcel conveyed to the province is elliptical in shape and was carved out of the 52 acre lot in an area that does not abut the southern boundary of the Property. The parcel conveyed is a narrow sliver about 900 feet in length (measured south to north) and is located about midway between the northern and southern boundaries of the Property.
[26] Mr. Keen testified that the distance between the centre line and the western boundary of the Road as shown on his plan, in the area opposite the southern boundary of the Property, is 65 feet. This is unusual for a rural road. Generally such provincial roads are 66 feet in total width. Therefore, there is a question whether the west side of the Kennedy Road, opposite the south boundary of the Property, was 66 feet from the centre line of the Road as it was configured in 1965.
[27] Although the legal description of the eastern boundary of the Property drawn in 1965 is described as going to an iron pin set on the side of the highway boundary the Road had been realigned in 1984. This may account for the fact that the iron pin was not found at the southeast corner by either surveyor.
[28] As mentioned above the evidence with respect to the effect of the Road widening in this area is confusing. I would refer to the cross-examination of Mr. Keen. Counsel for the appellant cross-examined Mr. Keen on the discrepancies between the length of the southern boundary line which Mr. MacInnis measured as 1209 feet from the Road to the stone drain whereas the deed called for that distance to be 1254 feet, a difference of 45 feet. The questions and answers are as follows:
Q. This distance between point A on the one hand and, I’m going to choose this SMFD marker back here, coincides with the deed?
A. Exactly.
Q. Okay. This distance from here to here coincides with the deed?
A. Right.
Q. The only one that’s out is this distance from this survey marker found to point B?
A. That’s correct. (Emphasis Added)
[29] From the context and knowing the issues before the trial judge, I would infer that the first question refers to the length of the northern boundary line and the second question to the eastern boundary line. I would also infer that the survey marker being referred to in the last question is the survey marker that Mr. MacInnis apparently placed as marking what was, in his opinion, the southwest corner of the Property, the point being on the stone drain referred to in the description of the south boundary. In the question counsel is, in effect, suggesting to Mr. Keen that of the boundaries as established by Mr. MacInnis the only boundary that does not measure on the ground so as to accord with the distances called for in the description of the property in the 1965 deed is the south line. Mr. Keen answered that proposition “That’s correct.”
[30] The next question again relates to the southern boundary and the fact that Mr. MacInnis has it measured on the ground 45 feet shorter than the deed distance. The questioning I am referring to is as follows:
Q. And it’s out by, if I read this correctly, about 45 feet.
A. Right.
Q. Your deed distance is 1254 feet and what you actually find is, I’m going to say, 1209 feet. I know it’s a few inches more than that...
A. Right.
Q. ...but it’s about 1209 feet so it’s about 45 feet short?
A. That’s correct.
Q. Could that error have occurred simply because they chose a point a little closer to the roadway as their commencing point? Would that make all the dimensions on the deed line...
A. Well, when that lot was measured off, this was the road boundary and the centre line was in here 33 feet from that boundary.
Q. Yes, I understand that but I’m not sure whether the people who wrote this deed understand that.
A. Right.
Q. And what I’m asking you is if they had chosen a point a little closer to the centre line, would that make all the deed dimensions line up properly?
A. They’d have to go way out to make the difference in here. I mean if you’re trying to get the deed distance to fit here...
Q. Yes.
A. ...by sliding this line out to the road?
Q. Yes.
A. They would’ve been way out in the road...
Q. Well, let me ask you about that...
A. ...out in the middle of that road.
Q. ...am I right in thinking that you’re showing a distance of about 66 feet from point B to the centre line of the road. And you can...you can do the measurement because I’d like to get that right?
A. On prolongation of this line to the centre line of the road, you’d have about 65 feet.
Q. Sixty-five feet. So, if we’re out by 45 feet, they would’ve had to take all but 20 feet of that?
A. Um-hum.
Q. So the road would either originally have to have been narrower.
A. Right.
Q. Or in a different location?
A. Right.
Q. And if it had been narrower or in a different location, all the deed measurements would agree?
A. If.
Q. I understand you can’t speak to that...
A. No, I can’t.
Q. ...I’m asking whether that’s a reasonable hypothesis.
A. Right. (Emphasis Added)
[31] About all that one can conclude from this exchange is that the Road as it existed in 1965 may have been more narrow than it was when the respondents acquired title in 1985 or may have been in a different location and that it was a reasonable hypothesis that this might account for the length of the south line as fixed by Mr. MacInnis from the western side of the Road to the stone drain being shorter than that called for in the deed. The Keen Plan shows the distance from the west side of the Road as it now exists as being 66 feet west of the centre line of the Road. I am inclined to infer that the west side of the Road as shown on the Keen Plan is more or less in the same location as it was in 1965. However, one cannot make any really definitive conclusions about this. If the western boundary of the Road appeared to the makers of the deed to be more to the east in 1965 than shown on the Keen Plan it could explain why the length of that line as called for in the deed was longer than Mr. MacInnis measured on the ground in 1999. It might also explain why the length of the south line as measured by Mr. Keen (1293 feet) from the west side of the Road as he has located extends 39 feet further than the deed description to the more westerly of the two drains. A further alternative is that the measurements by the persons laying out the 52 acre lot in 1965 were erroneously calculated. In short there is no adequate explanation for the discrepancy in the length of the south line as calculated by the respective surveyors from that called for in the deed. I would note that the Keen Plan shows the western half of the Kennedy Road in the area of the northern boundary of the Property as being 33 feet narrower than the Road opposite the south line of the Property. The width of the Road opposite the north boundary of the Property is consistent with the description of the lands conveyed to the province as the parcel conveyed from the original 52 acre lot for road widening or relocation purposes does not extend as far north as Lot AB-C.
[32] There are significant differences in the course of the southern boundary as established by the respective surveyors. The deed calls for the southern boundary to run westerly from the Kennedy Road to a stone drain a distance of 76 rods (1254 feet). As previously mentioned Mr. MacInnis’ line as shown on the Keen Plan measures 1209 feet from where he determined the southeast corner to be on the Kennedy Road to a stone drain as called for in the description of the 52 acre lot. The course of the MacInnis’ line is at an angle to the west side of the Kennedy Road. The south line established by Mr. Keen measures 1293 feet and runs along a fence line more or less at right angles to the western side line of the Kennedy Road to a stone drain being west of the stone drain to which Mr. MacInnis extended his southern boundary.
[33] The description of the 52 acre lot then describes the land intended to be conveyed in 1965 deed as proceeding northerly a distance of 87 rods (1435.5 feet) to an iron pin on the Kennedy line (the northern boundary of the Property). There is no dispute as to the location of the Kennedy line; it is an old established line. The western boundary of the Property as determined by Mr. MacInnis proceeds from the southwest corner as he located it northerly to the Kennedy line and measures on his plan 1436 feet which is the distance called for in the deed. On the other hand the western sideline as established by Mr. Keen by following the fence northerly measures 1797 feet from the southwest corner of the Property, as he determined it, to the iron pin he shows as having been found on the Kennedy line. This boundary as established by Mr. Keen is approximately 360 feet (22 rods) longer than called for in the deed.
[34] The description of the 52 acre parcel as contained in the 1965 deed then proceeds easterly along the Kennedy line a distance of 84 rods (1386 feet) to the western boundary of the Kennedy Road and the point of beginning. On the Keen Plan the distance from the northwest corner as established by Mr. MacInnis to the western side of the Road is 1385 feet. The distance from the northwest corner as established by Mr. Keen to the western side of the Road is 1492 feet.
[35] By reason of these differences between the surveyors, particularly in the fixing of the southern and western boundaries, the Property as depicted by Mr. MacInnis is more irregular in shape and smaller than that shown by Mr. Keen. I would note that the irregular shape of the property as determined by Mr. MacInnis accords with the description in the deed as the eastern boundary of the Property as described in the deed measures 121 rods and the western boundary opposite measures 87 rods. The south boundary as fixed by Mr. Keen results in a parcel of land that is more or less rectangular in shape which is not consistent with the description of the 52 acre lot.
[36] The respondent Hank Kolstee is an engineer who serves as supervisor of land protection with the Nova Scotia Department of Agriculture. He testified that before he purchased the Property in the fall of 1985, he walked the land with the legal description in hand. He wanted to make sure that there were at least 52 acres. He started at the northeast corner on the Kennedy Road where he found an iron pin. Rather than walking southwardly along the Kennedy Road following the description, Mr. Kolstee then proceeded westwardly; that is, he travelled counterclockwise rather than clockwise as stipulated in the deed description. Mr. Kolstee’s evidence was that from the starting point he followed an unbroken fence in and through the woods until he came to the northwest corner of the fence where he found an iron pin within two inches of the fencepost. He then followed the unbroken fence southerly until he came to another corner of the fencing at a stone drain. Finally, he followed the unbroken fence easterly until he reached the Kennedy Road and from there northerly to the point where he started.
[37] Before he bought the Property, Mr. Kolstee examined an aerial photograph on which he picked out where the fence line, steel pin, and stone drain were located and from which he determined the boundaries and calculated the acreage. He did not make any inquiry of the vendor, Blair Fraser, or of the Metlins, or of any of the neighbours as to its boundaries. He testified that the real estate agent told him the fences marked the boundaries. Mr. Kolstee did not testify as to his having had the property surveyed prior to closing the purchase.
[38] At the time of the respondents’ purchase, another fence located further north of the fence, that Mr. Keen determined marked the southern boundary of the Property, divided a southern portion of the Property east to west. That bisecting fence, which does not show on the Keen Plan, runs roughly parallel to the southernmost fence and is still there. It has the effect of creating an enclosed parcel bounded on the south by the fence the respondents claim is the southern boundary of the Property, on the east by the Kennedy Road, on the west by the fence claimed by the respondents as marking the western boundary of the Property and on the north by the said bisecting fence. This is not the fence along the northern boundary line of the Property.
[39] The appellants say that the respondents’ southern boundary runs at an angle to the Road along the line established by Mr. MacInnis as shown on the Keen Plan, so that the Metlins own approximately the southern one-half of the parcel which is enclosed by these fences.
[40] Mr. Kolstee testified that after he purchased the Property in the fall of 1985, the following spring he agreed to a request by John Metlin to use that enclosed parcel for pasturing cattle, provided John Metlin maintained the fences. He also gave evidence that between 1986 and 1989, he plowed and seeded that land for pasturing by his brother’s cattle and that the Metlins had not pastured cattle there after John Metlin pastured his cattle in 1986.
[41] Beatrice Metlin testified that all the fences were there when she and her late husband purchased the 180 acre lot in 1948. Her evidence was that the Metlins own on both sides of the southernmost fence the respondents claim is the southern boundary of their Property, and that the fencing was for cattle. This is consistent with the Metlins operating a farm and after that keeping cattle. It is also consistent with the fact that the fences, with the exception of the fence on the northern boundary, were not located on the boundaries of the 180 acre farm. Mrs. Metlin testified that she and her husband had used the enclosed parcel for confining cattle and that after Mr. Peters acquired the Property, Mr. Peters did so and that her husband had said there was no need to put up new fences. Joe Lay had only had a few horses there and, during Blair Fraser’s ownership, John Metlin had cattle on the enclosed parcel. Mrs. Metlin testified that her husband didn’t mind Hank Kolstee using that portion of the Metlin property.
[42] The legal description of the Property does not make any mention whatsoever of fences. As noted, the description of the Property gives distances, pins and two courses; the northern boundary being the Kennedy line and the eastern boundary being the west side of the Kennedy Road.
[43] Mr. Keen’s survey crew found an iron pin on the Kennedy line at the intersection of the fences at the northwest corner of the Property as determined by Mr. Keen. Mr. Keen fixed the southwest corner where the western and southern fences come together at a stone drain, being the drain west of the stone drain to which Mr. MacInnis ran the south line. Mr. Kolstee testified that the two drains are in quite close proximity to each other. These two drains are shown on the Keen Plan as running north to south and roughly parallel to one another; they scale on the Keen Plan as being about 100 feet apart.
[44] The parties consented at trial to Emerson Keen’s acceptance by the court as an expert land surveyor in Nova Scotia able to give opinion evidence on matters concerning land surveying. My review of the report indicates that Mr. Keen’s work consisted of locating a survey done by Mr. MacInnis according to the deed description and also a further survey of the lands which are described by Mr. Keen on his plan entitled “Plan of Survey Showing Lands of and Lands Claimed by Hank W. Kolstee & Donna L. Kolstee.” His report first deals with the conclusions reached by Mr. MacInnis. The report is not very illuminating in that it does not really give much of an opinion as to why Mr. Keen established the boundaries of the Property as described in the deed in the manner he did except to offer the opinion that the boundaries in dispute, the west and south boundaries, are well established fences and that the west and south lines are the limits that the respondents understood was their property when they acquired it and that they have occupied and used the lands contained within these boundaries. He does not give an opinion as to why the factors that led him to his conclusion were relevant in interpreting the 1965 deed. The text of the report is as follows:
SURVEY REPORT
Lands of Hank W. Kolstee and Donna L. Kolstee, Hilden, Colchester County, N.S. E. C. Keen Land Surveying Plan #5952
This survey consisted of the location of a survey done according to the deed description (539/725) by Ritchie F. MacInnis, N.S.L.S., and shown on my plan as Lands of Hank W. Kolstee & Donna L. Kolstee and a further survey of lands claimed by Hank W. Kolstee & Donna L. Kolstee (9.94 acres).
With respect to the first-mentioned lot (lands of), I have the following observation:
The north line (Point A on Road to survey marker found) is 1,386 feet and agrees with the measurement given in the Kolstee deed. The east boundary along the Kennedy Road (Point A to Point B) calculates 1,993.48 feet. The deed distance was originally measured along the old road boundary which is now impossible to determine due to road reconstruction. The west boundary line measures 1,436.52 feet, deed distance is 1,435.50 feet, a difference of 1.02 feet, which is apparently an error in the original placement of the southernmost survey marker. The south boundary was obviously set to hold the deed distance of the west line (1,435.50 feet) and its intersection with a stone drain being the nearest to a deed distance of 1,254 feet from the road boundary.
Bearing in mind the fact that this lot was apparently not surveyed properly by a professional land surveyor in the beginning, there could be significant differences in the interpretation of the road boundary at the time, and in the method of measurement.
With respect to lands claimed by Hank and Donna Kolstee (9.94 acres) the north and east boundaries are the boundaries of the first-mentioned lot (46.50 acres), and the west and south boundaries are well established fences as shown on the plan and have been monumented with survey markers as shown.
The west and south lines are the limits that the Kolstees understood delineated the property when they acquired it, and have occupied and used the lands contained within these boundaries.
E.C. Keen, N.S.L.S.
February 4, 2000
[45] In his report Mr. Keen seems to agree with Mr. MacInnis’ location of the northern, the eastern and the western boundaries as called for in the deed. With respect to the south boundary he says that it was obviously set by Mr. MacInnis “to hold” the deed distance of the west line as called for in the deed to its intersection with a stone drain. That stone drain is the more easterly of the two drains. The deed calls for the southern boundary to be 1254 feet in length from the western side of the Road whereas that distance from the existing Road to the drain, as measured by Mr. MacInnis, is 1209 feet. I would conclude that Mr. Keen was of the opinion that by using the easterly stone drain Mr. MacInnis was using that drain which was nearest to the distance called for in the deed. This would appear to be a comment on how he perceived Mr. MacInnis came to his conclusions. I will have more to state on this point when dealing with the cross-examination of Mr. Keen by counsel for the appellants.
[46] In his report Mr. Keen then makes a general comment that apparently the land as originally described had not been surveyed properly by a professional land surveyor. Mr. Keen opines that there could be significant differences in the interpretation of the road boundary at the time and in the method of measurements. That is all he has to say about Mr. MacInnis’ conclusions. In the report he then deals with “the lands claimed by” the Kolstees (9.94 acres) and correctly concluded that the north and east boundaries are not really in dispute. He goes on to state that the south and west boundaries are “well established fences as shown on the plan and have been monumented with survey markers as shown.” I would infer that he is referring to his own survey markers as he is of the opinion that the 1965 description was not the work of a professional surveyor.
[47] Mr. Keen testified. He relied on the fences as establishing the boundaries notwithstanding his acknowledgment under cross-examination that the fences were there when the lot was created in 1965, and notwithstanding that there is no reference to fences in the legal description in the 1965 deed creating the 52 acre lot. Essentially, Mr. Keen held the belief that the parties to the 1965 deed intended to convey the lands enclosed by the existing fences because they were old fences on the south and west sides and because of the iron post he found on the Kennedy line where the fences met. He fixed the boundaries accordingly. He did not give any consideration to the description other than to reject the distances called for in the deed as being wrong.
[48] Mr. Keen’s comments in the last paragraph of his report, that the respondents occupied and used the lands within the boundaries he established, are irrelevant in that there is no claim made by the respondents based on possessory title; nor would this opinion be relevant on the issue of the intention of the parties to the 1965 deed.
[49] Mr. Keen testified that Mr. MacInnis, in conducting his survey, was trying to hold the deed distances:
Q. ... By trying to hold the deed distances, do you mean hold them in relation to something else or preference to something else or...or what does...
A. He has basically surveyed or tried to use the distances that were quoted in the...that were given in the deed. This distance along the north end, where he placed the survey marker was right on and he basically...he couldn’t hold the two deed distances here on the west line and on the south line because when you swung the two arcs, they don’t intersect a stone drain, which is one of the calls on the deed. So I would say his decision was to take the closest drain and make that the...make that the corner and had to disregard one distance.
Q. The...looking at the numbers and...and in reference to the...to the letters in parentheses that I referred to before, is it...it seems that...that the...the distances in the plan are very close to the distances in the deed, except for the...the southern boundary.
A. That’s correct.
Q. Now, if...if you as a surveyor tried to hold that southern boundary exactly to the distance you found in the deed and, at the same time, obviously had to connect that boundary to the western boundary, at the same time keeping that boundary approx...exactly as found in the deed, is there any way you can do that and still find a stone drain at...at the corner where those two boundaries meet?
A. No, that...that is not possible.
...
Q. In trying to hold the deed distances, though, did he do, in your opinion, an adequate job of that?
A. In holding...yes, I would say he...in trying to make the deed distances work, that was...that was a reasonable solution. (Emphasis Added)
[50] In Mr. Keen’s view, Mr. MacInnis had based his survey on holding the deed distances and had completely ignored other existing evidence. Mr. Keen’s opinion was that the property conveyed to the respondents is the land contained within the exterior fences as shown on the Keen Plan. He testified under direct examination:
Q. ... Why did you decide to take the approach that you did, rather than the approach that Mr. MacInnis took?
A. The fact that there are...that there was a really old fence along the southern part of the property and a really old fence along the western side of the property and one of the calls in the deed is for an iron post in the northwest corner. There is an iron post at the intersection of the fences in the northwest corner.
Q. Is that the IPFD?
A. Noted IP...yes, iron post found.
Q. Okay.
A. And then above and beyond that, in the southwest corner, the call is for the lines intersecting a stone drain. The two fences come together at a corner in a stone drain.
[51] Counsel for the appellants at trial conducted an effective cross-examination of Mr. Keen. The cross-examination of Mr. Keen commenced as follows with counsel for the appellants questioning him about the title to his survey plan:
MR. CASEY: Mr. Keen, maybe I can begin with that point, trying to understand where your opinion differs from Mr. MacInnis’s opinion about the property.
...
What I understand, and don’t agree just to be nice, is that you both agree that these interior dimensions are what’s shown on the deed. What you’re saying is, that in preference to the deed description, you would choose the outside dimensions as the actual amount conveyed by [sic] the...the Kolstees?
A. That is correct.
Q. Okay. But there’s no dispute that inside piece is what the deed says?
A. That’s exactly right.
...
Q. Okay. If I can refer you to the inside portion that we talked about, you’ve described this on the plan of survey as the lands of Hank W. Kolstee and Donna Kolstee, is that correct?
A. Right.
Q. The extra portion you’ve described on the survey as lands claimed and occupied by Hank Kolstee and Donna Kolstee.
A. Right.
Q. You distinguished between those two things in drawing your plan of survey.
A. That is correct.
Q. That would suggest to me that one was covered by the deed and one wasn’t.
A. You could look that I had it that way, correct.
Q. What other way should I look at it?
A. By considering all the evidence, I guess, that I considered.
Q. Well, I...
A. May I add something to that?
Q. I do want you to add something to that. Why would you call one one thing and not the other?
A. I called this lands of because that is pretty much undisputable as far as the deed distance are...are concerned, do you get my reasoning?
Q. Yes.
A. Okay. This, I feel by the existing evidence, even though isn’t included in the...in the description, is part of their property.
Q. And your basis for that, and...and I want to be fair to you, so don’t...don’t...
A. Right.
Q. ...you know, just agree again for the sake of being agreeable. Your basis for that is, that looking at the property, now that you’ve had a chance to walk over it last September, you’ve decided that probably the people who were making the deed, the conveyance, intended to convey to the fences?
A. Correct. (Emphasis Added)
[52] Under cross-examination Mr. Keen acknowledged that there are no fences mentioned in any of the deeds on which the respondents based their claim. He agreed under cross-examination that in older deeds it was typical to refer to a fence as a boundary if it was going to be used as a boundary, and that in many deeds prepared by laymen rather than a surveyor (which Mr. Keen believed from the legal description was the case here), there would be reference to a boundary marker like a fence if there was a boundary fence in existence. After Mr. Keen agreed that the fence was there before the 52 acre lot was created in 1965, his cross-examination continued:
Q. And my question to you is, given that the fence was already there, what are we to take from the fact that they don’t refer to it in the deed creating this lot? What I take from that is that they didn’t mean the fence to be the boundary. It would’ve been easy to say, go to the fence. Never mind this...so many rods and so many this and that. It would’ve been easy to say, you get the piece from the highway to the fence.
A. Right.
Q. What do I take from the fact that that [the fence] wasn’t used in the deed, given that we know the fence was there anyway.
A. Right.
Q. What I take from that is that they didn’t want the fence to be the boundary.
A. Right.
Q. Can you think of any other reason why they wouldn’t use the fence as a marker, given that we both agree it was there at the time?
A. Not really. (Emphasis Added)
[53] The cross-examination continued with respect to the fact that an iron pin was found by Mr. Keen’s crew on the northern boundary (the Kennedy line) which he used to fix the northwest corner of the property. The question and answer as follows:
Q. . . . Sir, you’ve told us in the course of your evidence, and I think you put some weight on it, that you found an iron pin in this area and that indicated to you that that was a likely or a probable boundary of the property. Okay. You’re not able to tell us how long that pin had been there, just that — and I’m going to put words in your mouth — it had probably been there more than ten years or more.
A. There’s no way of knowing.
[54] Counsel cross-examined Mr. Keen with respect to the 1965 estimated acreage of the lot conveyed in 1965 and to which I have referred as the 52 acre lot. Mr. Keen acknowledged that when the 1965 deed was drawn it was practically impossible to calculate the acreage of such an irregularly shaped lot. The cross-examination on this point concluded with the following question and answer:
Q. You wouldn’t necessarily put too much stock in the fact that the deed said 52 acres? It wouldn’t surprise you if it was really only 40 acre or if it was really 54?
A. No, that’s right, it could be. (Emphasis Added)
[55] The total acreage the respondents say is theirs has been calculated by Mr. Keen as 56.44 acres. Mr. Kolstee admitted under cross-examination that he paid $500.00 an acre and paid for 50 acres at the closing.
[56] Mr. Keen also recognized that his location of the southwest corner of the Property, by following the fence to the more westerly stone drain, made for a considerable discrepancy with the deed distances. He stated under cross-examination:
Q. So that would mean, if the deed makers intended to choose the fence corner, they’re out by 400 feet?
A. That’s correct.
Q. So, if I can put that together, they’re out by about 360 feet in terms of how far it is along the back and they’ve chosen a point that’s, in fact, 400 feet away from the...from what’s shown on the deed measurements.
A. Right.
[57] I would infer that the 400 feet mentioned was an approximation by counsel that relates to the fact that the south line as fixed by Mr. Keen is 39 feet longer than called for in the deed and that the west line is 360 feet longer than called for in the deed.
[58] Twice under cross-examination, Mr. Keen acknowledged that a monument such as a stone drain should take priority over the deed distance and that Mr. MacInnis’ decision to do so with respect to the south line as fixed by Mr. MacInnis was reasonable:
Q. ... the southwest corner in particular, what you described as his decision to...to move that corner to the stone drain, that...the effect of doing that had to be to change the deed distance....to...to change his plan distance for the...for the southern boundary line fairly significantly from the deed measurement itself, is that right?
A. That’s correct.
Q. And do you have any big problem in his decision to do that, given the stone drain location?
A. No, that’s common because we...we always hold evidence on the ground ahead of distances in the deed.
and again, after his confirming that Mr. MacInnis had chosen the more easterly stone drain as the turning point for the corner in preference to the actual deeded measurement:
Q. And I think your comment on that, if I understood it correctly the first time round, is that was a reasonable judgment to make in the sense that you would prefer the evidence on the ground over the survey distance because, as a surveyor, you prefer a landmark, like a stone drain, over an actual deeded distance.
A. That’s right.
[59] Beatrice Metlin testified that in 1963, she thought, Eugene Peters approached her late husband Rennie about selling him a piece of the land the Metlins were not using and the men went to walk the boundaries. She had not accompanied them.
[60] Raymond Metlin gave evidence that he had been with his late father and Mr. Peters the first day that they walked around where the lines would be and that they measured with a 100 foot tape. His testimony of discussions between his father, Rennie Metlin, and Mr. Peters gave some reasons for the location of the boundaries as claimed by the appellants. He testified that his father, during discussions with Mr. Peters, with respect to the purchase of the 52 acre lot advised Mr. Peters that he would not sell that part of the farm where the spring was located (being in or adjacent to the area claimed by the respondents) as his father felt he might want to build a house there some day, if one of the boys bought their farm home located further to the south on the farm property, and he wished to retain this water supply and that part of the property which would give him access to the Kennedy Road.
[61] Counsel for the respondents did not object to the admissibility of this evidence on the ground that it was, in part, parole evidence of the intention of Rennie Metlin as to what he was selling when he negotiated the sale of the land with Mr. Peters in the early 1960's. While there is a question as to its admissibility the evidence is not necessary to the interpretation of the description. I will comment further on this in ¶ 83.
[62] Neither Raymond Metlin nor John Metlin knew exactly where the boundaries were before the survey by Mr. MacInnis. There was no evidence as to who drafted the deed description of the Property which first appeared in the 1965 deed from The Nova Scotia Land Settlement Board to The Director, The Veterans’ Land Act and then in the 1971 deed from the Director to Mr. Peters.
[63] The appellants also called Raymond Merriam. While somewhat confusing, his evidence was that in the early 1980's, he was interested in purchasing land on the west side of the Kennedy Road from Joseph Lay who owned the 52 acre lot at that time. He testified:
Q. And what information were you given by Mr. Lay about the boundaries of the property?
A. Well, before we bought it, with the real estate agent, we went over the land and I remember very vividly the...the land, especially across the street, this 50 acres, that...to look at it...I remember Mr. Lay saying that, you know, to look at it, it’s a bit deceiving because you might think that it’s a...you know, look over there and it’s kind of...50 acres would be kind of like square or whatever but actually the line ran over at an angle, like the way it is here, and so Metlins actually owned over to that piece of land. (Emphasis Added)
The line Mr. Merriam indicated generally follows the green line on the aerial photograph which was the line drawn by Beatrice Metlin to indicate where she considered the south boundary of the Property to be. That line ran from the Kennedy Road at an angle northwesterly which would be consistent with the MacInnis south line of the Property and inconsistent with the south boundary as claimed by the respondents.
[64] Tom Peters in his discovery evidence, which was tendered by the respondents at the trial, stated that he was the son of Eugene Peters. He was 12 or 13 years of age when his father bought the 52 acre lot in the early 1960's. He left the farm when he was 18. He had worked the lands by helping with haying, etc. and that his father hayed up to the south fence. Although no one had told him, he always thought that the fence was the southern boundary of the property his father had purchased from the Metlins.
The trial judge’s decision
[65] In his decision, after reviewing the evidence, the trial judge referred to the principles applicable to the interpretation of a deed as set out in Saueracker et al. v. Snow et al. (1974), 47 D.L.R. (3d) 577, McPherson et al. v. Donald Cameron (1866-69) 7 N.S.R. 208, and Humphreys et al. v. Pollock et al., [1954] 4 D.L.R. 721. Justice Coughlan stated in ¶ 37-39 as follows:
[37] The general principles applicable to the interpretation of a deed are set out by Jones, J. (as he then was) in Saueracker et al. v. Snow et al. (1974), 47 D.L.R. (3d) 577 at p. 582:
... The general principles applicable to the interpretation of a deed are set forth in paras. 13 and 24, 5 C.E.D. (Ont. 2d), pp. 488-90 and 497-8, as follows:
13. Construction. - General Rule. The Court must, if possible, construe a deed so as to give effect to the plain intent of the parties. The governing rule in all cases of construction is the intention of the parties, and, if that intention is clear, it is not to be arbitrarily overborne by any presumption. The intention of the parties is to be gathered from the sense and meaning of the document as determined in the first place by the terms used in it, and effect should, if possible, be given to every word of the document. Where, judging from the language they have used the parties have left their intention undetermined, the Court cannot on any arbitrary principle determine it one way rather than another. Where an uncertainty [still remains] after the application of all methods of construction, it may sometimes be removed by the election of one of the parties. The Courts look much more to the intent to be collected from the whole deed than from the language of any particular portion of it.
24.Extrinsic Evidence.
Patent and Latent Ambiguities. An ambiguity apparent on the face of a deed is technically called a patent ambiguity - that which arises merely upon the application of a deed to its supposed object, a latent ambiguity. The former is found in the deed only, while the latter occurs only when the words of the deed are certain and free from doubt, but parol evidence of extrinsic or collateral matter produced the ambiguity - as, if the deed is a conveyance of "Blackacre", and parol evidence is adduced to show there are two places of that name, it of course becomes doubtful which of the two is meant. Parol evidence therefore in such a case is admissible, in order to explain the intention of the grantor and to establish which of the two in truth is conveyed by the deed. On the other hand, parol evidence is uniformly inadmissible to explain an ambiguity which is not raised by proof of extrinsic facts, but which appears on the face of the deed itself. A subsequent will cannot be used to construe an earlier deed of settlement nor as evidence that testator intended to include an additional person among the beneficiaries under the settlement.
Extrinsic Evidence as to Latent Ambiguities Generally. Extrinsic evidence is always admissible to identify the persons and things to which the instrument refers.
Provided the intention of the parties cannot be found within the four corners of the document, in other words, where the language of the document is ambiguous, anything which has passed between the parties prior thereto and leading up to it, as well as that concurrent therewith, and the acts of the parties immediately after, may be looked at, the general rule being that all facts are admissible to interpret a written instrument which tend to show the sense the words bear with reference to the surrounding circumstances of and concerning which the words were used, but that such facts as tend only to show that the writer intended to use words bearing a particular sense are to be rejected.
[38] The relative importance to be given to various items in the interpretation of a deed is well settled. In McPherson et al. v. Donald Cameron (1866-69), 7 N.S.R. 208, Dodd, J., in giving the judgment of the Court, stated at p. 212:
... The question is how he is to get there, for neither the course nor distance given in his grant will take him there, without the alteration of one or the other. The general rule to find the intent where there is any ambiguity in the grant, is to give most effect to those things about which men are least liable to mistake; Davis v. Rainsforth, 17 Mass., 210. On this principle the things usually called for in a grant, that is, the things by which the land granted is described, have been thus marshalled: First, the highest regard had to natural boundaries; Secondly, to lines actually run and corners actually marked at the time of the grant; Thirdly, if the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established; Fourthly, to courses and distances, giving preference to the one or the other according to circumstances; Greenleaf on Evidence, p. 441, n. 2, and the case there referred to.
See also Fraser v. Cameron (1853-55), 2 N.S.R. 189.
[39] And as Rand, J. stated in Humphreys et al. v. Pollock et al., [1954] 4 D.L.R. 721 at p. 724:
... The principle is clear that where distances and monuments clash, in the absence of special circumstances, the monuments prevail; in such cases the context shows the boundary to be the dominant intent, the distance, the subordinate . ...
[66] These statements correctly set out the general principles to be applied in interpreting descriptions of land as spelled out in a deed. As a general rule the intent of the parties to a conveyance is to be gathered from the words of the document. If there is an ambiguity, the common sense rules as quoted by the trial judge from McPherson et al. v. Cameron (supra) are generally to be applied. When courses and distances clash preference to one, rather than the other, will depend on the circumstances. In this appeal the principles enunciated in McPherson et al. v. Cameron (supra) are engaged.
[67] The trial judge found that the legal description of the Property was unambiguous and further found that the boundaries of the Property, as described in the deed to the respondents, are those shown by Mr. Keen on his plan, that is, the exterior parcel bounded by the fences.
[68] The trial judge then stated:
[42] My reasons for this decision include the following:
[43] There is no dispute among the parties as to the place of beginning of the lot prior to the conveyance to Stephen A. Church as being point A on the plan, exhibit three. The deed continues:
THENCE southerly along the western boundary of said highway a distance of one hundred and twenty-one (121) rods to an iron pin set in said highway boundary;
[44] No pin was found to mark this corner, which is not surprising considering the realignment of the Kennedy Road. However, there is the fence which existed at the time of the original conveyance of the lot. Taking the fence line as the boundary of the lot conveyed, the deed then states:
THENCE westerly to a stone drain, seventy-six (76) rods;
[45] Following the fence to its end, one comes to a stone drain as set out in the deed. The deed continues:
THENCE northerly a distance of eighty-seven (87) rods to an iron pin in the Kennedy Line;
[46] The fence went to a point marked by an iron pin as set out in the deed, and as located in the preparation of the plan, exhibit three. The deed continues:
THENCE easterly along said Kennedy line a distance of eighty-four (84) rods to the western boundary of the first mentioned highway and point of beginning.
[47] There is no dispute between the parties as to the course of this line, but only the distance.
[48] In interpreting the description, I followed the case law cited herein and the priority of items to be considered in interpreting the description. I note the fences were not mentioned in the description, even though they existed at the time of the original conveyance of the said lands, and find that the fences did mark the boundary of the lands conveyed even though they were not mentioned in the description.
[49] I also find the plaintiffs and their predecessors in title occupied the lands shown on exhibit three as lands of Hank W. Kolstee and Donna L. Kolstee, and lands claimed and occupied by Hank W. Kolstee and Donna L. Kolstee, and the defendant, John Metlin, made arrangements with the plaintiff, Hank W. Kolstee, to pasture cattle on the lands in dispute between the parties.
[50] After having observed the witnesses and heard the evidence, any discrepancies between the evidence of the Hank W. Kolstee and the plaintiffs' witnesses and the witnesses on behalf of the defendants, I accept the evidence of Hank W. Kolstee and the plaintiffs' witnesses over that of the defendants. (Emphasis Added)
[69] The trial judge granted a declaration that the lands described in the respondents’ deed are as shown within the fences on the Keen Plan, awarded $1.00 damages for trespass and $2445.14 for the agreed replacement cost of fencing destroyed by the appellants, and dismissed the appellants’ counterclaim.
Scope of appellate review
[70] The interpretation of a deed is a question of law. If a trial judge has incorrectly interpreted a deed a court of appeal should interfere.
[71] If findings of fact made by a trial judge are clearly unfounded or result from a misunderstanding of the evidence or a failure to consider relevant evidence an appeal court will interfere (MacPhail v. Desrosiers (1999), 170 N.S.R. (2d) 145 N.S.C.A. and Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114).
Disposition of the appeal
[72] I am respectfully of the view that in finding that the property conveyed to the respondents is that contained within the fences, the learned trial judge overlooked material evidence, misapprehended the evidence before him and erred in his application of the law. He failed to give paramount consideration to the words used in the deed to describe the property intended to be conveyed. In ¶ 44 of his decision, without any analysis of the description, he simply concluded that as the southernmost fence existed in 1965 that it was the southern boundary. He apparently considered that the fence prevailed over the description of the land in the deed even though the fences, although existing on the ground in 1965, were not old boundary fences in 1965 and were not then, and have never since, been mentioned in the conveyances of the 52 acre lot.
[73] In addition to the foregoing fundamental error of failing to give full consideration to the words of the description the trial judge failed to analyze other relevant evidence. There is no indication that he considered the evidence of Raymond Merriam, that when he was negotiating to buy a five acre portion of the 52 acre lot from Joe Lay, that Mr. Lay explained to him that the southern boundary of the property ran at an angle to the Road. Mr. Merriam marked this on the aerial photo in the approximate location of the line established by Mr. MacInnis. Nor did the learned trial judge consider the evidence of Emerson Keen under cross-examination which highlighted the difficulties in justifying the boundaries as established by that surveyor. Nor did he consider Mrs. Metlin’s evidence that the fences were there in 1948 when they bought the farm and that the fences, with the exception of the fence on the Kennedy line, were not boundary fences. Nor did he consider the evidence of Raymond Metlin, as to the discussions between his father and Mr. Peters relevant to the land intended to be conveyed, when they were negotiating for the sale and purchase of the 52 acre lot.
[74] The learned trial judge failed to appreciate and explain the inconsistency between his conclusion to fix the boundaries by the fences and the words used by the parties in the description of the property conveyed by the 1965 deed.
[75] Mr. Keen’s opinion was not sound. Mr. Keen initially rejected the approach taken by Mr. MacInnis of holding to the distances called for in the deed because the lines would not intersect at a stone drain unless at least one of them was adjusted as Mr. MacInnis did. Under cross-examination he agreed that Mr. MacInnis’ approach was reasonable. Mr. Keen based his opinion that fences marked the boundaries on his belief that the parties to the 1965 conveyance intended to convey the land within the fences, which existed at the time, and the fact that the fences intersected at an iron pin at the northwest corner and at a stone drain at the southwest corner. This notwithstanding that the fences are never mentioned in the description of the Property in the deed to The Director, The Veterans’ Land Act. In arriving at his opinion, Mr. Keen virtually ignored the distances called for in the deed. In so doing Mr. Keen made a fundamental error; he failed to look to the words used in the description in seeking the intention of the parties. The learned trial judge made the same error in determining that the respondents’ property consisted of the lands within the fences. There was no evidence other than Mr. Keen’s opinion that the parties to the 1965 deed intended to convey the lands bounded by the fences. The words used in the 1965 deed do not support such a conclusion.
[76] The evidence discloses that those fences were there to enclose cattle. There is no reference to the fences in the deed although they existed at the time. Had the parties intended the fences would be the boundaries of the 52 acre lot the fences would probably have been referred to in the description. Mr. Keen, under cross-examination more or less, agreed with this view.
[77] In his decision, the learned trial judge failed to detail his application of the evidence to the principles enunciated in McPherson et al. v. Cameron (supra) which he had quoted and which are highly relevant to the issues in this case. A fence is not a natural boundary. It would seem that the trial judge did not recognize that the south and west fences were not boundary fences of the Metlin farm and without a reference to these fences in the description of the south and west lines of the Property he ought not to have considered the fences to be of such significance as he accorded to them. From a review of ¶ 44 to 48 of his reasons it appears that the trial judge found the corners which he determined were the respective southwest and northwest corners by way of following the fences, the same way Mr. Kolstee had done when he walked the land and the same way Mr. Keen did; this approach to interpretation was incorrect. The trial judge should primarily have considered the words used in the deed to determine the intention of the parties; he did not do that. A review of his reasons (¶ 44 in particular) shows that, in effect, he assumed the fence was the southern boundary simply because it was there. He erred in doing so. He erred in law by failing to give adequate consideration to the description of the Property in the 1965 deed as reflecting the intention of the parties at the time the 52 acre lot was created.
[78] The trial judge apparently did not attach any significance to the opinion of Mr. Keen that Mr. MacInnis’ decision to hold to the distance of the western boundary was reasonable. In his reasons the trial judge did not mention that Mr. Keen was of the opinion that if old fences existed at the time the lot was conveyed it would be normal to have referred to those fences in the description and that Mr. Keen could not explain why the fences were not mentioned in the description, if the intention was to convey the lands within the boundaries of those fences. In ¶ 48 of his decision, apparently ignoring this evidence, the learned trial judge simply noted that the fences were not mentioned in the description but that the fences did mark the boundaries.
[79] The trial judge did not deal with other evidence in his analysis. For example, his reasons do not mention Mr. Keen’s testimony as to the propriety of Mr. MacInnis changing one distance to give priority to evidence on the ground like a stone drain. He does not deal with the fact that both surveyors had to adjust the distances from those in the deed description to reach their conclusions. Mr. MacInnis’ conclusion required only a shortening of the southern boundary by some 45 feet from the distance called for in the deed to make his western boundary meet the more easterly of the two stone drains as shown on the Keen Plan. Mr. Keen, to reach his conclusion, had not only to lengthen his southern boundary by some 39 feet to meet the more westerly drain, but also to lengthen his western boundary by some 360 feet to meet the Kennedy line. Nor did the trial judge appear to consider the significance of Mrs. Metlin’s evidence that the fences were there when her husband bought the 180 acre farm in 1948 and were not boundary fences. This evidence, coupled with the fact that the fences are not mentioned in the description, ought to have indicated to the trial judge that the southern and western fences could not be assumed to be the boundaries of the 52 acre lot.
[80] Moreover, although he stated in ¶ 31 of his decision that Raymond Merriam had given evidence that Joe Lay, a previous owner of the Property, had advised him where the boundary between the Property and the Metlin property was located, the trial judge gave no indication as to why he did not find this unrebutted evidence credible. He simply set out in his ¶ 50 of his decision that having observed the witnesses and heard the evidence, he accepted that of Hank Kolstee and the respondents’ witnesses over that of the witnesses on behalf of the appellants where there were discrepancies in their testimony. With respect to this finding of credibility I would note that the only witnesses for the respondents were Mr. Hank Kolstee, Mr. Keen and Tom Peters by way of his discovery evidence. The reality is that, with the exception of Mrs. Metlin and Raymond Metlin, none of the witnesses called by either party could testify to anything of significant relevance on the issue of the boundaries of the Property, as they were not involved, nor were they familiar, with the Property in the early 1960's when the late Rennie Metlin agreed to sell the 52 acre lot to Mr. Eugene Peters. Nor in 1965 when the deed conveying the 52 acre lot from The Nova Scotia Land Settlement Board to The Director, The Veterans’ Land Act was prepared and executed. Mrs. Metlin testified that the fences along the southern part of the property and the western side were in place when she and her husband bought the 180 acre farm in 1948. Her evidence was uncontradicted. In fact it was supported by the opinion of Mr. Keen that the fences on the southern and western boundaries as determined by Mr. Keen were old fences, around 50 years of age at the time of the trial. The fences on the southern and western boundaries of the Property were not boundary fences on the Metlin farm.
[81] With respect to the trial judge’s finding that where there were discrepancies in the evidence that he accepted that of the respondents’ witnesses such evidence related to the use of the Property and, therefore, was only marginally relevant to the critical issue of determining what the parties to the 1965 deed intended to convey. What was intended to be conveyed is primarily determined by the court reviewing the words used in the conveyance to describe the land as those words evidence the intention of the parties. Successive owners acquired nothing more than that conveyed in 1965.
[82] Although the trial judge found that the deed was unambiguous, it seems to me that there is a latent ambiguity which arises from the fact that the description calls for the south line to run westerly to a stone drain; there are two stone drains in close proximity to one another. Despite this ambiguity the intention of the parties can be determined within the four corners of the deed.
[83] The evidence of Raymond Metlin as to what his father intended to convey was admitted at trial. There is a question, although not raised by the respondents on the appeal, that the evidence ought not to have been admitted and ought not to be considered by this court in interpreting the deed (see Olgivie v. Grant (1906-7), 41 N.S.R. 1 at pp. 10-11; Saueracker et al. v. Snow et al. (supra) at p. 583).
[84] Assuming, without deciding, that Raymond Metlin’s evidence on this point ought to have been ruled inadmissible at trial nothing flows from its admission. In Transcanada Pipelines Ltd. v. Northern & Central Gas Corp. Ltd. (1983), 146 D.L.R. (3d) 293 at p. 298, there is a useful direction from the Ontario Court of Appeal as to how to deal with such extrinsic evidence at the appeal level. Cory, J.A., writing for the court, stated:
Assuming that extrinsic evidence has been admitted, what consequences may ensue? This was considered by Gale C.J.O. in Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. (Inc.) et al., [1969] 1 O.R. 469 at pp. 536-7, 3 D.L.R. (3d) 161 at pp. 228-9. I will adopt his carefully reasoned conclusions on the subject and attempt to paraphrase them:
(1) The extrinsic evidence admitted may establish that there is no latent ambiguity in the written document relevant to the issue in dispute. In such a case obviously the written document governs.
(2) The extrinsic evidence may demonstrate that there is a latent ambiguity in the terms of the written document which are in dispute. Nonetheless, upon a consideration of all the surrounding circumstances, it requires the choice to be made in favour of the meaning of the agreement which would appear from a reading of the whole document without any extrinsic evidence to show ambiguity.
(3) The extrinsic evidence establishes that there is a latent ambiguity. However, a consideration of the surrounding circumstances requires the choice of a meaning consistent with the words of the document but different from their patent meaning. The party contending that there is a latent ambiguity must not only establish that there is such an ambiguity but also resolve that ambiguity by evidence from which the court can find what agreement was made and what the choice of alternative meanings should be. The party contending for the latent ambiguity must show that the extrinsic evidence dictates the selection of a meaning which is generally consistent with the wording of the written document but different from its patent meaning.
(4) The extrinsic evidence indicates that there is a latent ambiguity of such an extent that the true agreement between the parties is different from the agreement expressed in the written document. That is, the extrinsic evidence established that there is a case of mistake.
(5) The extrinsic evidence establishes that there is a latent ambiguity and goes further and demonstrates that the minds of the parties never really met upon the subject matter concerning which there is an agreement. In other words, there is in fact no agreement upon the terms which would decide the issue between the parties. The court then cannot, on the balance of probabilities, make the necessary finding of consensus ad idem.
[85] I am satisfied that Raymond Metlin’s evidence fits within rule two. The document looked at as a whole speaks for itself and resolves the latent ambiguity caused by the existence of the two stone drains.
[86] The trial judge’s finding that the evidence of the respondents’ witnesses was more credible than the evidence of the appellants’ witnesses, in areas where there were discrepancies, leads me to conclude that the trial judge found that, subsequent to the respondents’ purchase in 1985, they were in sole occupation of the Property. This finding of credibility does not assist in determining the intention of the parties to the 1965 deed. With the exception of the evidence of Thomas Peters the respondents did not adduce evidence of usage for the period 1965 to 1985. Thomas Peters left the Peters’ farm at the age of 18 in 1967. He testified that his father worked the Property to the south fence. This is not inconsistent with Mrs. Metlin’s evidence that Mr. Peters did so with her husband’s consent. Thomas Peters further testified that no one told him where the southern boundary was, he simply assumed the fence was that boundary. Therefore, there is no evidence that the owners of the 52 acre lot from 1965 to 1985 were in exclusive possession of the land enclosed by the fences. On the contrary, Mrs. Metlin’s evidence was that the successive owners Peters, Lay and Fraser used the Property which includes the part the appellants claim did so with the agreement of Rennie Metlin; there is no contradictory evidence. As a consequence the credibility finding by the trial judge does not prevent us from considering this evidence. Therefore, there is no evidence of usage immediately after the conveyance in 1965 until 1985 from which one should infer that the fences were intended to be the boundaries of the Property at the time of the conveyance to The Director, The Veterans’ Land Act in 1965.
[87] When one measures the distances of the four boundary lines as established by Mr. MacInnis it indicates that whoever measured the Property when it was carved out of the Metlin’s 180 acre farm property did reasonably well considering that, according to Mr. Keen, that person was not likely a surveyor. The measurements and the location of the boundaries, as established by Mr. MacInnis, based on the description in the deed, are consistent to a great extent, one with the other. The land to be conveyed in 1965 was possibly measured on the ground and the description prepared by an employee of The Nova Scotia Land Settlement Board or of The Director, The Veterans’ Land Act who was experienced in assisting farmers in the acquisition of farm properties. It is not likely that the measurement of the land by use of a rod or the preparation of the description was done by either Rennie Metlin or Mr. Peters.
[88] In contrast to the conclusions of Mr. MacInnis, the southern and western boundaries established by Mr. Keen do not come close to according with the description of the Property. Previously I have set out the discrepancies and I will not repeat them other than in a summary way. Mr. Keen’s south line does not accord with the description; it is too long. Its course runs more or less at right angles to the Road and extends 39 feet further to the west than called for on the deed. A review of the deed and the Keen Plan shows that this has to be incorrect. The course of the northern boundary along the Kennedy line and the eastern boundary along the Kennedy Road are undisputed and roughly at right angles to each other. Accordingly, the south line must run at a significant angle to the Kennedy Road as the eastern boundary is 121 rods and the western boundary much shorter at 87 rods. The course of the south line as fixed by Mr. MacInnis is more consistent with the deed description than that fixed by Mr. Keen. Mr. Keen’s south line ends at the more westerly drain; Mr. MacInnis’ extends westerly only to the more easterly drain. Neither surveyor’s measurement is consistent with the distance of the south line as called for in the deed. The Road realignment in 1984 may explain why the south line distances as called for in the deed do not accord with either Mr. Keen’s or Mr. MacInnis’ conclusions respecting the length of the south line.
[89] With respect to the western boundary of the Property, Mr. Keen’s opinion results in that line being 360 feet longer than the distance called for in the deed. In contrast the western boundary as established by Mr. MacInnis conforms exactly to the distances called for in the description.
[90] In summary, the trial judge made fundamental errors. As is clear from ¶ 44 of his decision he, in effect, assumed, without any analysis apparent in his reasons, that the south fence was the southern boundary. Obviously he considered that the fences ought to be the dominant consideration in determining the boundaries of the Property as described in the conveyance. He failed to follow the description contained in the deed with the result he went adrift in attempting to determine the intention of the parties to the original conveyance in 1965. He failed to properly apply the law as referred to in Saueracker et al. v. Snow et al. (supra) and in McPherson et al. v. Cameron (supra).
[91] Had the trial judge analyzed the description he would have realized that Mr. Keen’s western boundary did not at all accord with the description of that boundary in the deed; it is 22 rods longer than the 87 rods specified in the description. It is not reasonable to conclude that the persons measuring the lot in 1965 could have so miscounted the number of rods.
[92] There is no clear explanation for the discrepancies in the length of the south line as calculated by either surveyor. However it seems more plausible that the south line ran from the Kennedy Road to the more easterly drain as found by Mr. MacInnis than to the more westerly drain which, along with the existence of the fence, formed the basis of Mr. Keen’s determination of the southwest corner of the Property. First the course of Mr. MacInnis’ south line is consistent with the western boundary of the Property (87 rods in length) being substantially shorter in length than the frontage on the Kennedy Road (121 rods); this creates an irregularly shaped lot. Mr. Keen’s measurements on the rear line, which creates a western boundary, that is 22 rods longer than called for in the deed for the western boundary coupled with the course he ran for the south line produces a lot that is more or less rectangular in shape; this is inconsistent with the description. I am satisfied Mr. MacInnis was correct to fix the southwest corner at the more easterly drain. The location of the southern boundary as fixed by Mr. Keen and the trial judge does not at all accord with the description looked at as a whole. There is no indication in the description that the parties intended the south fence was to be the southern boundary. The southern boundary as established by Mr. MacInnis is consistent with the words used in the 1965 deed, with the evidence of Raymond Merriam that Joe Lay, a former owner of the property, advised him that the line ran at an angle to the Kennedy Road, and with the evidence of Mrs. Metlin. By using the more easterly drain the distances of the other three boundaries as fixed by Mr. MacInnis correspond to the deed description. If one uses the more westerly drain as Mr. Keen did the southern and the western boundaries are too long. The south line as measured on the ground and fixed by Mr. MacInnis more closely accords with the deed description as a whole than the south line fixed by Mr. Keen.
[93] This is not a case where there are old boundary fences that have been recognized for years as marking the boundaries of the abutting properties. Nor is this a case where there are fences which, while not exactly on a boundary as called for in the deed, are erected at the time of the conveyance or shortly thereafter with the intention of marking the boundary line but are put in the wrong place and encroached upon an adjacent property. Where the lands enclosed by such fences are occupied for a period that exceeds the time for bringing an action in trespass the owner of that adjacent property is barred by the relevant limitation of actions legislation. Fences are important in those sorts of cases. Considering the description in the deed to the Property, the fact that the fences were never boundary fences in the first instance and were existing when the 52 acre lot was conveyed, and where there is no indication in the deed that the south and west fences were intended to be boundary fences for the Property, the fences do not take on the relevancy they would have if the facts were different.
[94] I am aware that a fence ran along the northern boundary in 1965 and that the description makes no mention of that fence. One must consider if this is evidence from which one should infer that the draftsmen did not consider it appropriate to mention the fences on any of the boundary lines and that not too much should be read into such an omission. I am satisfied, however, that we are bound by the clear words of the description as evidencing the intention of the parties. Furthermore, the deed describes the northern boundary as running along the well established Kennedy line and the failure to describe it by reference to an existing fence does not undermine its location as being on the Kennedy line. Considering the distances called for in the description of the Property and the fact that there is no reference to the fences in the description one cannot reasonably infer that the parties intended to convey the land as being bounded by the south and western fences. The deed expresses the intention of the parties to the 1965 deed.
[95] The course of the north line of the Property which is referred to in the deed as the Kennedy line is accepted by the parties. It has been a well established line for years. One of the disputes between the parties relates to the location of the northwest corner of the Property. Mr. Keen has it 107.17 feet west of the point that is 1386 feet (84 rods) along the northern line from the west side of the Road. The length of this boundary, as called for in the deed, is 1386 feet. Mr. MacInnis apparently placed a survey marker at this point on the Kennedy line as shown on the Keen Plan as it was found by Mr. Keen’s crew. Apparently Mr. MacInnis then measured from that point to a point on the most easterly drain that is 1436 feet (as called for in the deed for the western boundary) and fixed that point on the drain as the southwest corner of the Property as shown on the Keen Plan.
[96] On the other hand Mr. Keen, having extended the southern line of the Property to the more westerly drain some 39 feet further west than called for in the deed, then proceeded northerly to an iron pin his crew found on the Kennedy line. He determined this to be the northwest corner of the Property. Using that iron pin results in Mr. Keen’s north line being 107.17 feet longer in length than called for in the deed. There is no evidence, of course, as to who placed the iron pin relied on by Mr. Keen as marking the northwest corner of the Property or when it was so placed. Mr. Keen acknowledged this under cross-examination; all he could say was that it was over 10 years since the iron pin was placed in the ground. The Metlins gave some vague testimony about a right-of-way being located in this area. The Keen Plan shows in this area “apparent roadway.” There is no satisfactory evidence that the iron pin found by Mr. Keen’s crew marked the boundary of a right-of-way. There is no evidence that the iron pin is not the one referred to in the description in the 1965 deed. The persons who prepared the description in 1965 referred to iron pins at two of the four corners of the 52 acre lot. As this lot was being carved out of the 180 acre farm at that time it is a reasonable inference that those persons set the two pins.
[97] Corners of properties actually marked at the time a lot is created are obviously of high persuasion; particularly if the person who marked the corners testified to having done so in the location where the marker monument is found (Fraser v. Cameron (1853-55), 2 N.S.R. 189).
[98] Were it not for the well established principle of law, that in marshalling evidence of the intention of the parties to the conveyance, that corners actually marked are less likely to have been incorrectly placed than the distance of a boundary line measured, coupled with the absence of any evidence that the iron pin Mr. Keen’s crew found on the Kennedy line is not the pin set by the person or persons who measured the 52 acre lot and prepared the description in 1965, Mr. MacInnis’ measurements of the east, west and north boundaries are so close to the distances called for in the deed that I would have been inclined to find that the boundaries were exactly as determined by Mr. MacInnis taking into account that it is impossible to determine on the evidence why the south line does not measure to the correct distances as called for in the deed. However, there is no evidence that the iron pin found by Mr. Keen’s crew is not the pin referred to in the description of the 52 acre lot. As a general rule monuments marking corners trump distances when the two cannot be reconciled (McPherson et al. v. Cameron (supra)). On this evidence I am not prepared to depart from this long established general rule. Accordingly, I would fix the western extremity of the northern boundary at the iron pin found by Mr. Keen’s crew.
[99] Mr. Keen’s survey report is not persuasive. He relied on the old fences as marking the boundaries and we know that the south and west fences were not boundary fences when erected. Furthermore, those fences were not mentioned in the deed. Mr. Keen is an experienced and competent surveyor but one was left with the impression, judging from his report and from the results of his cross-examination, that he did not hold a strong belief that the deed conveyed to the respondents all the lands claimed by them.
[100] The essence of the submission of the respondents’ counsel to the trial judge was that the only expert evidence the trial judge had before him was that of Mr. Keen and that accordingly, he should find for the respondents. The task of interpreting deeds in a boundary dispute is for the court. A surveyor is but an expert who conducts a survey and, in so doing and in reporting to the court, must be guided by the legal principles developed by the courts over the years. A trial judge is not locked into the opinion of a surveyor if it does not accord with the judge’s interpretation of the deed applying well established legal principles.
[101] For the reasons I have set forth, I am satisfied that the boundaries established by Mr. Keen do not accord with the description as contained in the deed of the Property to the respondents; the discrepancies are significant. If by following the fences the distance as measured on the ground were close to the distances called for in the deed perhaps one might consider that the fences mark the boundaries even though not mentioned in the description. However in this case the fences were not originally boundary fences and are so far removed from what is called for in the deed that it is wrong to assume, as the trial judge did, that the fences marked the boundary lines of the Property intended to be conveyed to The Director, The Veterans’ Land Act in 1965. The same description, as used in the 1965 deed, has been used in all subsequent conveyances saving and excepting by reference at the end of the description the two parcels conveyed out of the original 52 acre lot prior to the respondents acquiring title. The successors in title to The Director, The Veterans’ Land Act, including the respondents, acquired no more land than that obtained by the Director. A claim for possessory title of the land enclosed by the fences has not been put forward.
[102] Therefore, after carefully considering all the evidence, the record and the written and oral submissions made to this court on behalf of the parties and for the reasons that I have set forth, I am of the opinion that this court should fix the boundaries of the Property with one exception in conformity with the MacInnis boundary lines as shown on the Keen Plan. I would fix the boundaries of the Property as follows:
(i) The eastern boundary is as determined by Mr. MacInnis as shown on the Keen Plan; it accords with the measurements and the course as called for in the deed;
(ii) The southern boundary as determined by Mr. MacInnis; it goes to a stone drain as shown by Mr. MacInnis. The stone drain overrules the distance called for in the deed. The course of the southern boundary is consistent with the length of the western boundary as called for in the deed;
(iii) The western boundary shall commence at the southwest corner of the Property as determined by Mr. MacInnis and proceed northerly in a straight line to intersect with the Kennedy line at the iron pin found by Mr. Keen’s crew and shown on the Keen Plan as the northwest corner of the Property. This boundary, as I have fixed it, scales on the Keen Plan to within 20 to 30 feet of the distance (1436 feet) called for in the deed. As Mrs. Metlin owns the property to the west of the respondents the fixing of this boundary does not involve property of any third party;
(iv) The northern boundary is the Kennedy line and extends easterly from the iron pin on that line to the northwest corner of Lot AB-C and will follow the western and southern boundaries of that lot to the place of beginning as shown on the Keen Plan.
[103] I would direct the appellants to forthwith engage Mr. Keen to survey the western boundary, as I have fixed it, and to prepare a legal description of the respondents’ property, in accordance with this decision, and to submit the same to this court for incorporation into an order of the court declaring the same to be the Property of the respondents.
[104] If Mr. Keen does not wish to or is unable to do the work at a price acceptable to the appellants, and if the parties cannot agree within 10 days of the filing of this decision on another surveyor to do the work, the appellants may apply on two clear days’ notice to the respondents to a judge of this court in chambers to appoint a surveyor to perform the work.
[105] The cost of this survey work to give effect to this decision, whether performed by Mr. Keen or another surveyor, ought to be shared equally by the appellants and the respondents.
[106] In addition to the foregoing I would set aside the order of the Supreme Court of Nova Scotia dated October 18, 2001 giving effect to the trial judge’s decision. I would allow the appellants’ counterclaim for damages for trespass and fix the damages at $1.00. I would order that the appellants are entitled to repayment of all money paid to the respondents as ordered by the Supreme Court together with interest thereon at the rate of five percent from the date of such payments to the date of repayment by the respondents. I would order that the appellants are entitled to their costs at trial to be taxed and costs of this appeal which I would fix at $1000.00 inclusive of disbursements.
Hallett, J.A.
Concurred in:
Glube, C.J.N.S.
Oland, J.A.
SCHEDULE “A”
ALL THAT CERTAIN lot, piece or parcel of land situate at Brookfield, in the County of Colchester and Province of Nova Scotia more particularly bounded and described as follows:
BEGINNING at a point on the western side of the Mountain or New Road, so-called, at a point where the northern boundary of land hereby conveyed intersects same;
THENCE southerly along the western boundary of the said highway a distance of one hundred and twenty-one (121) rods to an iron pin set in said highway boundary;
THENCE westerly to a stone drain, seventy-six (76) rods;
THENCE northerly a distance of eighty-seven (87) rods to an iron pin in the Kennedy line;
THENCE easterly along said Kennedy line a distance of eighty-four (84) rods to the western boundary of the first-mentioned highway and point of beginning.
CONTAINING fifty-two (52) acres, more or less.
BEING AND INTENDED TO BE a portion of lands conveyed from Lorenzo Metlin et ux to the Nova Scotia Land Settlement Board by Deed dated the 28th day of July A.D. 1951 and recorded in the Registry of Deeds Office at Truro, Nova Scotia in Libre 249, Page 113, under date the 28th day of July A.D. 1951.
THE LAND herein conveyed or intended to be conveyed being that land conveyed by the Nova Scotia Land Settlement Board to the Director, The Veterans' Land Act by deed dated the 22nd day of June, 1965, and registered in Colchester County Records on the 22nd day of June 1965 in Book 316, Page 681 as Number 1234.
ALSO BEING AND INTENDED TO BE a portion of the lands conveyed by Eugene H. Peters to Joseph H. K. Lay et ux by deed dated the 31st day of August, 1971 and recorded at the Registry of Deeds at Truro in Book 370 at Page 91.
ALSO BEING AND INTENDED TO BE a portion of the lands conveyed by Joseph H. K. Lay to the Nova Scotia Farm Loan Board by deed dated June 25, 1974 and recorded at the Registry of Deeds at Truro in Book 396 at Page 771.
ALSO BEING AND INTENDED TO BE a portion of the lands conveyed from the Nova Scotia Farm Loan Board to Joseph H.K. Lay by deed dated the 28th day of August 1979 and recorded at the Registry of Deeds at Truro in Book 458 at Page 493.
SAVING AND EXCEPTING therefrom a lot of land approximately one (1) acre in size conveyed by Joseph H.K. Lay et ux to Stephen A. Church by deed dated June 13, 1974 and recorded at the Registry of Deeds at Truro in Book 398 at Page 13.
Saving and excepting therefrom a lot of land conveyed by Blair Allison Fraser to Her Majesty The Queen on July 4th, 1984 and recorded at the Registry of Deeds for the County of Colchester on July 26th, 1984 in Book 518 at page 443.
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