IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON McCarron and Wood v. Wylie 2018 NBQB 206 M/C/103/11 2018/11/06 BETWEEN: GERALD WARD McCARRON and BEVERLY MAE WOOD, Plaintiffs, – and – JAMES ALLISON WYLIE, Defendant. DECISION BEFORE: Mr. Justice George S. Rideout AT: Moncton, New Brunswick DATE OF HEARING: September 24, 25 and 26, 2018

DATE OF DECISION: November 6, 2018 APPEARANCES: Edward McGrath, on behalf of the Plaintiffs Wynn Meldrum, on behalf of the Defendant Rideout, J. [ 1 ] This matter is a companion case to one I previously heard and gave an unreported decision. The first case was McCarron and Wood v. Gillespie , 2015 NBQB 226 , which I have just now had reported to the different publishers. [ 2 ] Both cases deal with the issue of a disputed right-of-way. In the first case, I concluded that the alleged right-of-way was not on the property of Margaret Gillespie.

In the first case, we were dealing with three parcels of land and a roadway from the highway to Baie Verte. The roadway or laneway was called Vacation Lane. If you were proceeding down Vacation Lane to the water, the first lot on your left would be Margaret Gillespie’s lot. Below her lot, we have two lots whose southerly boundary lines were the high water mark of Baie Verte. The two lots were side by side. In other words, the easterly lot was landlocked but for an alleged right-of-way. [ 3 ] In the first action, McCarron and Wood alleged that the right-of-way was on Ms.

Gillespie’s lot to the north of the two lots. I ruled that the right-of-way was not on Margaret Gillespie’s property. Gerald Ward McCarron and Beverly Mae Wood were the owners of the more easterly of the lots on Baie Verte. James Allison Wylie owns the lot between Vacation Lane and the westerly side of the McCarron and Wood property. [ 4 ] In attempting to keep the lots straight, I will use their civic numbers on Vacation Lane. Ms. Gillespie’s lot is civic #19, Mr.

Wylie’s lot is civic #23, and the McCarron and Wood lot is civic #21. [ 5 ] I will repeat paragraphs 5-9 of the earlier decision to give a bit of a background on the lots in question: [5] On the same date, August 8, 1933, John McLeod Raworth and Charlotte McGregor Raworth conveyed two lots. One lot was conveyed to Marjorie Beatrice Wry, now civic number 23 and one to Clarissa Jean Logan, now civic number 21. I will set out the descriptions for these two lots.

The Wry Deed was registered on October 21, 1938 and reads, in part; “ALL and singular that certain parcel of tract of land and premises situate lying and being on the farm now owned by the said John McLeod Raworth, in Upper Cape in the County of Westmorland, in the Province of New Brunswick, fronting on Bay Verte, and being more particularly bounded and described as follows: - BEGINNING at a stake four hundred eighteen (418) feet north-east of an iron post marking the boundary line between the farm of John Herbert Raworth and the farm of the above named John McLeon Raworth; thence in a north-westerly direction one hundred twenty-five (125) feet more or less to an iron stake; thence at right angles in a north-easterly direction one hundred (100) feet more or less to an iron stake; thence at right angle in a south-easterly direction one hundred and twenty five (125) feet more or less to an iron stake on the shore of Bay Verte; thence in a south-westerly direction following the aforesaid shore-line back to the place of beginning.

Together with the use of a right-of-way from the main road to the above property by way of a lane running through the above farm from the main road to the shore. Together with all the Estate, right, title, interest, improvements, property, claim or demand of the said John McLeod Raworth and Charlotte McGregor Raworth, of, in or to the said described and bargained premises, with all the appurtenances.

TO HAVE AND TO HOLD the before described premises, with all the improvements and privileges belonging to the same, unto the said Marjorie Beatrice Wry, her Heirs and Assigns, forever.” [6] The lot conveyed to Clarissa Jean Logan dated August 8, 1933 was actually registered on April 21, 1960 as Deed number 233675 with a description as follows:

“ALL and SINGULAR that certain parcel or tract of land and premises situate, lying and being on the farm now owned by Mr. John Raworth in Upper Cape, in the County of Westmorland, in the Province of New Brunswick, fronting on Bay Verte, and being more particularly bounded and described as follows:- BEGINNING at a stake five hundred and eighteen (518) feet north- east of an iron port marking the boundary line between the farm of John Herbert Raworth and the farm of the above named John McLeod Raworth; thence in a north-westerly direction and following the eastern boundary line of land owned by Mrs.

Marjorie Beatrice Wry, one hundred (100) feet more or less to an iron state; thence at right angles in a north-easterly direction two-hundred (200) feet more or less to an iron stake; thence at right angles in a south-easterly direction one hundred (100) feet more or less to an iron stake on the shore of Bay Verte; thence in a south-westerly direction following the aforesaid shore-line back to the place of beginning.

TOGETHER WITH the use of a right-of-way from the Main Road to the above property by way of a lane running from the main road to the shore of Bay Verte, and also over the rear of the above mentioned land owned by Mrs. Marjorie Beatrice Wry.” [7] The above land was conveyed by C. Jean Logan to Ralph M . Logan and his wife, Elizabeth Joyce Logan by Deed number 588540, dated December 23, 1993 and registered on December 30, 1993. This Deed has the same description as the August 8, 1933 Deed. [8] Ralph and Elizabeth Logan registered the lot in question under the Land and Titles Act on June 29, 2004 as number 18616608.

I will set out the description set out in

Schedule A although redundant:

Schedule A PID: 831735 Parcel Access: Private Access/Accès privé Status: Current/Courant Effective Date/Time: 2004-06-28 16:12:00 Legal Description All that certain lot or parcel of land at Rayworth Beach, Parish of Botsford, County of Westmorland and Province of New Brunswick, bounded and described as follows: Commencing at the intersection of the Southeast corner of lands now or formerly owned by James Wylie and the edge of the shore of Bay Verte; Thence following the easterly side line of James Wylie property in a northerly direction of the lands now or formerly owned by Margaret Gillespie; Thence following the southerly side of lands of Margaret Gillespie in an easterly direction to lands now or formerly owned by Richard G.

Racheter; Thence following the westerly side line of Richard G. Racheter to the edge of the shore of Bay Verte; Thence following the various courses of the edge of the shore of Bay Verte to the place of beginning.

Together with a Right-of-way from the Main Road to the above described property, by way of an existing lane running from the Main Road to the shore of Bay Verte and also over the rear of lands now or formerly owned by Marjorie Beatrice Wry as referred to in the a Deed from John McLeod Raworth and Charlotte McGregor Raworth, his wife to Clarissa Jean Logan by Deed dated the 8th day of August, 1933 and registered in the office of the Registrar of Deeds for the County of Westmorland on April 21, 1960 in Book C-20 at page 207 as Number 233675. And being the same lands and premises as were conveyed by C.

Jean Logan to Ralph M. Logan and Elizabeth Joyce Logan by Deed dated December 23, 1993 and registered in the Office of the Registrar of Deeds for the County of Westmorland on December 30, 1993, in Book 2166 at page 513-517 as Number 588540. [9] During the period 2002-2006, it would appear that Mr. and Mrs. Logan were worried about being able to look after their cottage property. Letters were exchanged between the Logans and Mrs. Gillespie and others. I will set out these emails and letters according to date.

As well, Ralph McDonald Logan gave a Statutory Declaration dated June 18, 2004 which I will also reproduce. They are found in Exhibit 2, items 20, 21, 22 and 23: PROVINCE OF NEW BRUNSWICK

COUNTY OF WESTMORLAND TO WIT: STATUTORY DECLARATION I, RALPH McDONALD LOGAN, of 27 Litchfield Cres., Halifax, Nova Scotia, B3P 2N4, DO SOLEMNLY DECLARE AS FOLLOWS: 1. THAT I am one and the same person as the Ralph M. Logan mentioned and described in an Indenture of Deed dated December 23, 1993, from C. Jean Logan as Grantor and Ralph M. Logan and Elizabeth Joyce Logan, Grantees, which Deed is duly registered in and for the Office of the Registrar of Deeds for the County of Westmorland on December 30, 1993, in Book 2166 at Page 513 as Number 588540; 2.

THAT I acquired the lands and premises mentioned in Deed Number 588540 from my mother Clarissa Jean Logan and that my mother acquired the lands and premises from John McLeod Raworth and Charlotte McGregor Raworth by Indenture of Deed dated the 8th day of August, 1933 and which Deed is registered in and for the Office of the Registrar of Deeds for the County of Westmorland on April 21st, 1960 in Book C-20 at Page 207 as Number 233675; 3.

THAT my Mother, Clarissa Jean Logan owned the lands and premises described in Deed number 588540 and travelled the right-of-way referred to in Deed Number 588540 from 1933 to December 1993; 4. THAT I now own the within property described in Deed Number 588540 and have continued to travel and use the Right of Way and have done so since December 1993 to the present time; 5.

THAT no person has interfere with the occupation of my lands and premises which I own and I am unaware of any claim or any interference from anyone with my mother’s ownership and occupation of the right-of-way during the time which she owned the property. AND I MAKE THIS SOLEMN DECLARATION conscientiously, believing it to be true and knowing that it is of the same force and effect as if made under Oath and by Virtue of the Canada Evidence Act. Aug. 18 Dear Margie: As promised, here is a rehash of matters we have discussed before.

Our healths are not good and we won’t be able to tend to the needs of a cottage much longer. We have few options - one of which might be selling to one of your family members. (at a very low price).

With your OK to access our cottage we could try and rent - but this would prove to be difficult - too difficult for us. We could abandon the cottage completely. Needless to say it would soon deteriorate. Sort of like throwing away money. Not an attractive option. We could sell- but must have a right of way. To go through courts to gain access would be a costly proposition. Our idea is to pay you for a right of way - thus eliminating the problem. SO — when you see your lawyer - and if you think this is a good idea- see how it could be arranged to our mutual benefit.

Naturally it would be ideal if a survey could be circumvented. Maybe just a clear description of the right of way would suffice. Please keep us informed as soon as you can. 902 477 0240 27 Litchfield Crescent Halifax B3P 2N4 Thanks and enjoy the rest of the summer. Hope to see you soon. Best regards to you and yours. Joyce and Ralph PS Our well tested AOK — those fellows fixed it good! [ 6 ] I will set out the DISPOSITION in the Gillespie matter at paragraph 46 of the decision: DISPOSITION [46] The claim of Gerald Ward McCarron and Beverly Mae Ward against Margaret Gillespie is dismissed with costs.

The counterclaim of Margaret Gillespie against Earl Ward McCarron and Beverly Mae Ward for an injunction prohibiting access by them across the lands of Margaret Gillespie, known as civic #19, Vacation Lane is granted with costs. As mentioned above, this injunction will be a final injunction prohibiting the plaintiffs, their agents and guests from crossing any land which is part of civic #19, Vacation Lane. The Court maintains jurisdiction to determine court cost issues as set out in these reasons. [ 7 ] I should also mention that Mr. Wylie was opposed to my hearing the second matter.

I was asked to recuse myself and I declined. As I explained, if he produced evidence suggesting that the right-of-way was not on his property, I could analyze that evidence and come to an unbiased decision. In my earlier decision, I decided that the right-of-way was not on Mrs. Gillespie’s property. In obiter , I noted the mention to a right-of-way to the McCarron property in their deed with it positioned at the rear of Mr. Wylie’s property. For this reason, Mr. Wylie felt I should not hear the matter.

It was my decision that I was open to hear any other evidence which could possibly establish that a right-of-way was not on his property, and it was my duty to weigh that evidence in reaching any conclusions. [ 8 ] It should be noted that Mr. Wylie was not present at the trial of this matter and his objection to my hearing the matter was through his brother-in-law and his sister, Charles McQuade and Barbara McQuade, who also testified at this trial.

[ 9 ] There was a great deal of evidence led showing that erosion has had its effects on the property at civic #21 and civic #23. The evidence revealed that from time to time, both cottages at the address were moved back from Baie Verte. As well, Mr. Wylie’s family acquired another parcel of land which is 50’ x 100’ contiguous to what I would call the back portion or the Gillespie side of Mr. Wylie’s existing lot. This lot was acquired from Mr. Harman Nicholson, who had acquired a large portion of property from John MacLeod Raworth and Charlotte Raworth on May 25, 1951.

This deed contained a reservation: “[…] [r]eserving unto said Grantor the Right of way presently existing to all cottages now on the said shorefront property […]”. Mr. Nicholson subsequently conveyed the above-mentioned lot (50’ x 100’) to Marjorie Wry, who then conveyed it to James Wylie’s mother, Doris Wylie. Doris Wylie conveyed both her lots to her son James Wylie, the defendant in this action.

It is to be remembered that the two shore front properties were acquired in 1993 and stayed in the respective families for many years. [ 10 ] While there are numerous deeds showing the transfers of lots to family members, I will reproduce a portion of the index contained in Exhibit P-1, which shows the original conveyances and then the root of title to the Logan property: INDEX 1. August 8, 1933 Deed #233675 between John McLeod Raworth and Clarissa Jean Logan 2. October 21, 1938 Deed #148218 John MacLeod Raworth and Charlotte MacGregor Raworth to Marjorie Beatrice Wry 3.

November 24, 1954 Deed #206184 between John M. Raworth to Harman Nicholson 4. June 22, 1967 Deed #303890 between Harman Nocholson [sic] and Alex E. and Doris Wiley 5. April 21, 1977 Deed from Albert L. Wry and Katheryn Wry to Doris R. Wylie. 6. June 25, 1982 Deed #424569 Doris R. Wylie and James Allison Wylie 7. December 14, 1985 Deed #468176 Doris Wylie to Margaret Gillespie 8. December 23, 1993 Deed #588540 between Jean Logan and Ralph M. Logan 9. June 18, 2004 Deed #18584061 Ralph McDonald Logan and Elizabeth Joyce Logan 10.

June 18, 2004 Transfer between Ralph MacDonald Logan and Elizabeth Joyce Logan to Gerald Ward McCarron and Beverly Mae Wood [ 11 ] Deed #233675 being tab 1 of Exhibit P-1 contains the following description: BEGINNING at a stake five hundred and eighteen (518) feet north-east of an iron post marking the boundary line between the farm of John Herbert Raworth and the farm of the above named John McLeod Raworth; thence in a north-westerly direction and following the eastern boundary line of land owned by Mrs. Marjorie Beatrice Wry, one hundred (100) feet more or less to an

iron stake; thence at right angles in a north-easterly direction two hundred (200) feet more or less to an iron stake; thence at right angles in a south-easterly direction one hundred (100) feet more or less to an iron stake on the shore of Bay Verte; thence in a south-westerly direction following the aforesaid shore-line back to the place of beginning. TOGETHER WITH the use of a right-of-way from the Main Road to the above property by way of a lane running from the main road to the shore of Bay Verte, and also over the rear of the above mentioned land owned by Mrs. Marjorie Beatrice Wry.

TO HAVE AND TO HOLD unto the said Grantee, her heirs and assigns, to and for her and their sole and only use forever. SUBJECT NEVERTHELESS to the reservations, limitations, provisoes and conditions, expressed in the original grant thereof from the Crown. THE said Grantor Covenants with the said Grantee, THAT he has the right to convey the said lands to the said Grantee, notwithstanding any act of the said Grantor. AND THAT the said Grantee shall have quiet possession of the said lands free from all incumbrances.

AND the said Grantor COVENANTS with the said Grantee, that he will execute such further assurances of the said lands as may be requisite. AND the said Grantor COVENANTS with the said Grantee, that he has done no act to incumber the said lands. AND the said Grantor RELEASES to the said Grantee, ALL his claims upon the said lands. […] [ 12 ] On the same day, John McLeod Raworth and his wife conveyed a lot to Margaret Beatrice Wry. For whatever reason, the lot to Ms. Wry does not mention the right-of-way over the back portion of the lot, which was contained in the Logan deed. Interestingly, when Mr.

Raworth conveyed a large lot of land to Harman Nicholson in 1951 (tab 3 of Exhibit P-1), the description showed the metes and bounds of 60 acres, more or less, then goes on to provide for a reservation, as follows: RESERVING NEVERTHESS [sic] UNTO THE SAID GRANTOR the Right of Way presently existing to all cottages now on said shore front property, as well also as Right of Way to the Grantor to all lumber lands of said Grantor lying North of the property herein described and conveyed; [ 13 ] Tab 8 of Exhibit P-1 contains the conveyance from C. Jean Logan to Ralph M. Logan and his wife Elizabeth Joyce Logan.

The description is similar to the description in tab 1 of Exhibit P-1 except for the TO HAVE AND TO HOLD provisions in the original deed. The deed contains the following after the description: TOGETHER with the use of a right-of-way from the main road to the above property by way of a lane running from the main road to the shore of Bay Verte, and also over the rear of the above mentioned land owned by Mrs. Marjorie Beatrice Wry.

BEING the same lands and premises as were conveyed to Clarissa Jean Logan by deed from John McLeod Raworth and Charlotte McGregor Raworth, said deed dated August 8, 1933, and registered in the Westmorland County Registry Office on April 21, 1960, in Book C-20 at Pages 207-208 as Number 233675. [ 14 ] Tabs 9 and 10 of Exhibit P-1 are deeds of the Logan property and appear to be done to have the property registered to Gerald Ward McCarron and Beverly Mae Wood under the Land Titles Act .

The deeds contain the same provision with respect to the right-of- way and Ralph McDonald Logan gave a Statutory Declaration on the same date as the deeds were prepared and signed set out in tabs 9 and 10. [ 15 ] It is important to note that the Logan transfer set out in tab 9 of Exhibit P-1 was given the following Certificate of Registered Ownership (CRO), which is set out in tab 26 of Exhibit P-1 as follows: Page 1 of 2 Form 47

CERTIFICATE OF REGISTERED OWNERSHIP Land Titles Act, S.N.B. 1981, c. L-1.1, s.63 Parcel Identifier: 831735 Owner: Logan, Elizabeth Joyce 15 Alma ST c/o LeBlanc McGrath Boyd Moncton NB E1C 8N6 Deed/Transfer 18584061 Westmorland 2004-06-24 Logan, Ralph McDonald 15 Alma ST c/o LeBlanc McGrath Boyd Moncton NB E1C 8N6 Deed/Transfer 18584061 Westmorland 2004-06-24 Manner of Tenure: Joint Tenants Encumbrances: NONE Instruments in the Registration Process: NONE THIS IS TO CERTIFY THAT the specified owner is the registered owner and holds title in fee simple, by virtue of the specified instrument(

s) and in the specified manner of tenure, to the specified parcel, described in

Schedule A attached hereto. The title to the land is subject to the overriding incidents specified in section 17(4) of the Act and also to the specified encumbrances. The title to the land may be subject to the specified instruments, which have been entered in the instrument record and may be entered on the title register when the registration process is completed. THIS CERTIFICATE is evidence of the particulars contained herein as of the date and time of its issue. The description is not conclusive as to the boundaries or extent of the land. Date & Time: 2004-06-29 11:36:26 Registrar of Land Titles for the District of: New Brunswick Report ID: 1278414

Page 2 of 2

Schedule A

Annexe A PID: 831735 NID: Apparent Parcel Access: Private Access Accès apparent à la parcelle: Status: Current État de la demande: Effective Date/Time: 2004-06-28 16:12:00 Date et heure de prise d’effet: Legal Description: Description officielle: All that certain lot or parcel of land at Rayworth Beach, Parish of Botsford, County of Westmorland and Province of New Brunswick, bounded and described as follows: Commencing at the intersection of the Southeast corner of lands now or formerly owned by James Wylie and the edge of the shore of Bay Verte; Thence following the easterly side line of the James Wylie property in a northerly direction to the lands now or formerly owned by Margaret Gillespie; Thence following the southerly side of lands of Margaret Gillespie in an easterly direction to lands now or formerly owned by Richard G.

Racheter; Thence following the westerly side line of Richard G. Racheter to the edge of the shore of Bay Verte; Thence following the various courses of the edge of the shore of Bay Verte to the place of beginning.

Together with a Right-of-way from the Main Road to the above described property, by way of an existing lane running from the Main Road to the shore of Bay Verte and also over the rear of lands now or formerly owned by Marjorie Beatrice Wry as referred to in a Deed from John McLeod Raworth and Charlotte McGregor Raworth, his Wife to Clarissa Jean Logan by Deed dated. the 8th day of August, 1933 and registered in the Office of the Registrar of Deeds for the County of Westmorland on April 21, 1960 in Book C-20 at Page 207 as Number 233675. [underlining added] And being the same lands and premises as were conveyed by C.

Jean Logan to Ralph M. Logan and Elizabeth Joyce Logan by Deed dated December 23, 1993 and registered in the Office of the Registrar of Deeds for the County of Westmorland on December 30, 1993, in Book 2166 at Page 513-517 as Number 588540. [ 16 ] There was a report prepared by land surveyor, Brendon McDonald, for Margaret Gillespie and I reproduced portions of his report in the earlier decision. The same report was admitted into evidence in this action as Exhibit D-4.

For ease, I am reproducing paragraphs 13 and 14 of the earlier decision: [13] As well, Exhibit 2, item 14 is a survey plan by the surveyor hired by Mrs. Gillespie. There are a number of plans by Terrain Group Inc. prepared by their surveyor, Brendon McDonald, who was declared an expert. His plan circa 2003 shows that a great deal of erosion has occurred and suggests the two lots on Bay Verte shore have almost disappeared. The cottages were moved on a number of occasions.

Item 4 of Exhibit 2 shows the properties circa 1933; item 8 shows properties circa 1945; item 10 shows the properties circa 1953, item 12 shows the properties circa 1963. All of these plans show the effects of erosion and give reference to the cottages being moved and their location on those dates. [14] Mr. McDonald prepared a report on January 19 th , 2015 which is Exhibit 8. While lengthy, I believe it is important to set out portions of this report commencing on page 2 - 4: January 19, 2015 […]

The orthophoto is a better product than aerial photos, but as far as history, the old aerial photos have not been converted into orthophotos, so the following method applied on this project will suffice for the preliminary investigation. In order to delineate a more accurate location of the shoreline and the buildings, some more finite photogrammetric methods should take place. A geocoded othrophoto should be created from a mosaic of aerial photos. PIECING IT TOGETHER The old aerial photos are hard copy photos taken from the air showing the topographic features of the area.

Aerial photos were obtained from 1935, 1945, 1953, 1963 and 2001. These photos were each scanned, scaled, oriented and located as best as possible to represent the area in question. The scanned 1935 photo was used as the basemap for this investigation. The shoreline and buildings were digitized to show their approximate location at that time. 1933-1935 Both properties along the shore were deeded in 1933. John MacLeod Rayworth deeded one property to Marjorie Beatrice Wry on August 8, 1933, registered on October 21, 1938 as document 148218, in volume G-12, on page 620.

The lot was + 418 feet northeast from the boundary line between John Herbert Rayworth and John MacLeod Rayworth, thence 100 feet along the shore and being 125 feet deep. The deed also states there is a right of way over the existing lane that travels from the main road to the shore. John MacLeod Rayworth deeded the other property to Clarissa Jean Logan on August 8, 1933, registered on April 21, 1961 as document 233675, in volume C-20 on page 207.

The lot was + 518 feet northeast from the boundary line between John Herbert Rayworth and John MacLeod Rayworth, thence 100 feet along east side of Marjorie Beatrice Wry and being 200 feet along the shore. The deed also states there is a right of way over the existing lane that travels from the main road to the shore, as well as a right of way over the rear of land owned by Mrs. Marjorie Beatrice Wry. Interestingly enough, Wry’s deed has no mention of a right of way over her land. The photo from 1935 does show a road traveling directly behind the Wry cottage across her property.

If this is how things actually were, I believe Logan had no legal right of way to her cottage without Wry’s permission. With these lots created on the basemap, one can see the current deeds do surround the buildings in question, and there is a fair distance between the shore and the buildings. 1945 The scanned 1945 photo shows the Wry cottage has been moved away from the eroding shore and they erected a shed. The Logan cottage is still int eh same location as in the 1935 photo, and they have also built a shed. The Wry cottage is no longer on the Wry land, nor is their shed.

The Logan shed is not on the Logan land. Also, notice the cottages west of the subject area have all moved away from the eroding shore. 1953 Nothing really has changed, except for the shore is continuing to erode. Note the shore is getting very close to the Logan cottage. 1963 Harman Nicholson did the property transfers in the sixties, so he must have received the remnant, or triangular parcel in the period between the 1930’s and the 1960’s. This document was not searched for.

The third lot in question is from Harman Nicholson to Alex and Doris Wylie on June 22, 1967, registered on October 19, 1971 as document 303390, in volume 313, on page 749. It is described being bounded by the marsh, the shore road, and by Madge Wry (Marjorie Beatrice Wry), with no mention of Logan’s land, and being + 1.5 acres (it is more like + 2.5 acres).

Before the above mentioned transfer, Harman and Hattie Nicholson deeded an additional 50-foot strip of land to Marjorie Beatrice Wry and Albert Wry on September 10, 1963, registered on December 24, 1963 as document 255338, in volume 129, on page 664. The intention, as mentioned in the deed, was to give the Wry’s more land for their cottage “…to provide greater protection against the risk of loss of foreshore from incursion by the sea.” This document in itself, shows the land owners were quite aware of the loss of land and their attempt to protect their cottage.

A question does arise, since the Nicholson’s came to own the remnant land later in time, did they know the Wry’s already moved their cottage once, and did Nicholson think he was deeding them 50 feet from behind the 1963 location of the cottage? The 50-foot strip added to the Wry land does not surround the Wry’s shed. 2003 Fieldwork was completed in 2003, and verified in 2007, and the aerial photo ws from 2001. This data shows where all features currently are situated, ie. Roads, buildings, shoreline, edge of marsh, hydro poles, etc. the most dramatic features shown are the shoreline and the original lot lines.

The cottages have been moved since last seen in 1963, and the original Logan shed has been destroyed, and a new shed erected. The Wry shed has not moved since 1945. The Wry family deeded their lands to Doris R. Wylie in 1976, registered in 1977, who then deeded the lands to James A. Wylie, her son, Margaret Gillespie’s brother, and current owner, in 1982. Clarissa Jean Logan deeded her property to Ralph M. and Elizabeth J. Logan in 1993, who then deeded the land to Gerald W. McCarron and Beverly M. Wood in 2004.

The deeds passed still had the same descriptions from 1933, and the original lots are nearly disappeared, and McCarron/Wood’s right of way over the rear of land owned by Mrs. Marjorie Beatrice Wry is almost completely destroyed. Wylie’s cottage and shed are clearly on Gillespie’s land, as are the McCarron/Wood cottage and shed. One can see that this area has lost at least 90 feet of shore, and the shore loss gets worse as one travels west (as much as 160 feet).

CONCLUSION If the final product needs to be accurate to feet + instead of meters + , then more finite photogrammetric methods must be used to accurately determine the shore in 1933 as best as possible. Although, with the current methods used, one can plainly see there has been a significant loss of shore to the above discussed lots. At least 90 feet of land has eroded into the sea from between 1935 and 2003, or whenever the breakwater was built. There is hardly any land left that was described in those 1933 deeds. [ 17 ] Curt Speight testified in this trial as well as the previous trial.

I set out in the earlier decision, at paragraph 15 of the decision, a lengthy review of his report. His report deals with aerial photography of the area and

interpretation of air photos from 1935 to 2011. In this decision, I will set out

section 5.0 of the report, which is the

summary of all which is found in Exhibit P-2: 5.0

SUMMARY

Interpretations of the various years of aerial photography dating back to 1935 illustrates that the vicinity around Civic 21 (PID 832113) [sic] and Civic 23 (PID 832113), Vacation Lane, Upper Cape, New Brunswick has seen many changes. Civic 19 (PID 846592) has also been identified. As what appears to be result of erosion, both Cottage Civic 21 and Cottage Civic 23 have moved in a northerly direction towards Route 960 and away from the receding coastline. Over the 70+ years of imagery interpreted, Civic 21 has moved two times from its original 1935 location.

The first move was approximately 80 ft sometime between 1971 and 1982, as observed on the aerial photographs. The second move of approximately

20 ft occurred between 2001 and 2011. The access to Civic 21 was interpreted during the various years of photography. It moved from its general location identified on the 1935 air photos to a northerly location identified on the 1982 photography. See Appendix D1 for an illustration. Photo

Interpretation of Civic 23 revealed that this cottage has also moved in a northerly direction towards Route 960 form [sic] its original location in 1935. The first move of approximately 70 ft occurred sometime between 1935 and 1945. The second move of approximately 50 ft occurred between 1982 and 1996, as observed on the aerial photographs. In and around the area of Civic 21, white spruce trees and scrub vegetation first appeared on the 1982 aerial photographs. Since 1982, this vegetation seems to have been allowed to grow to create a natural buffer around Civic 21.

This natural vegetation may provide both shelter and privacy. The lawn area surrounding this cottage has continued to be maintained and mowed over the years. The coastline in the vicinity of Vacation Lane has eroded over the years as evidenced by the various years of photography. Along this particular segment of beach, the shoreline appears to have eroded as much as 135 ft in some areas. In addition to Civic 21 and Civic 23, many other cottages to the west of Vacation Lane have also moved in a northerly direction towards Route 960 and away from the original 1935 Coastline.

Please see Appendix D2 for an illustration of the shoreline erosion. [ 18 ] Warren Daigle, a land surveyor, carried out a review of the area, the deeds and plans in attempting to determine if there is a right-of-way. I am setting out a portion of the plan he proposed which is Exhibit P-5: REMAINS OF TIMBER CULVERT (added to reproduction is unreadable)

[ 19 ] Surveyor Daigle reviewed portions of Exhibit P-1 and, in particular, tab 32 of that exhibit. This shows the trees that are set out on his plan. He stated that there were bare roots from these trees and the roots were very flat on their tops which indicated to him that these roots had been driven over “for quite a while”. The plan also shows a possible older access, which would be at the back of an earlier location of civic #23. Surveyor Daigle found the “remains of timber culvert” which he says was the then usual method for the construction of culverts. [ 20 ] Interestingly, Mr.

Speight, in his report, has the following comments or observations with respect to access: 1935 AERIAL PHOTOGRAPHY […] ● Access to both Civic 21 and Civic 23 appears to be just north of both cottages off of Vacation Lane. […] 1945 AERIAL PHOTOGRAPHY […]

● Access to Civic 21 remains the same as on the 1935 aerial photographs ● Access to Civic 23 has moved to a driveway north of original driveway. […] 1953 AERIAL PHOTOGRAPHY […] ● Access to Civic 23 appears to have moved in a northerly direction since 1945. […] 1963 AERIAL PHOTOGRAPHY […] ● Access to Civic 23 remains the same as in 1953. […] 1971 AERIAL PHOTOGRAPHY […] ● Access to Civic 23 remains the same as in 1963. […] 1982 AERIAL PHOTOGRAPHY […] ● Access to Civic 21 has changed since the 1971 air photo. This access is now in a north westerly direction intersecting with Vacation Lane. It passes just south of Civic 19 and north of Civic 23. It is closer to Civic 19.

● Access to Civic 23 appears the same as in 1971. […] 1996 AERIAL PHOTOGRAPHY […] ● Access to Civic 21 is consistent with the previous 1982 photography. It intersects with Vacation Lane, and then passes between Civic 23 and Civic 19, and then goes through the tree cover north of Civic 211 [sic]. ● Access to Civics 19, 21, and 23 all originate from Vacation Lane at the same location. […] 2001 AERIAL PHOTOGRAPHY […] ● Access to Civic 21 has not changed from that interpreted on the 1982 and 1996 aerial photographs.

This access is from Vacation Lane and passes between Civic 23 and Civic 19. ● Access to Civics 19, 21, and 23 all originate from Vacation Lane at the same location. […] 2011 AERIAL PHOTOGRAPHY […] ● Access for Civics 19, 21, & 23 from Vacation Lane appears to be from the same location as it was in 1996 and 2001. [ 21 ] Charles McQuade, brother-in-law to the defendant James Wylie, testified that prior to Mr. McCarron and Ms. Wood purchasing civic #21, he and his wife Barbara met them walking the beach near their cottage. Mr. McCarron asked the McQuades if they

were aware of any cottages for sale in the area. They advised them that the Logan cottage was for sale, but it did not have access and the well water was bad. Mr. McCarron and Ms. Wood acknowledged this conversation. [ 22 ] In addition, Barbara McQuade confesses that the Logans had their cottage for a long period of time. She went on to say that there was access to the Logan cottage between Mrs. Gillespie’s and Mr. Wylie’s land. She remembered when she was driving with Mr. Wylie and they would enter a common entrance and then drive up to Mrs. Gillespie’s cottage and later go down to Mr. Wylie’s cottage.

Barbara McQuade is the sister of James Wylie. I took from Ms. McQuade’s evidence that there was one access off Vacation Lane and then it divided to the three cottage properties. ISSUE [ 23 ] I believe the same issue which was applicable to the first action involving Margaret Gillespie is applicable to the present matter: Do Gerald Ward McCarron and Beverly Mae Wood have a legal and enforceable right-of-way? If so, where is it located?

ANALYSIS LAW [ 24 ] I will first set out certain provisions of the Land Titles Act , namely, sections 1 , 16 , 17 , 61 , 68 , 70 , and 71 : Purpose 1 The intent and purpose of this Act is to provide a system for the registration of the title to land in the Province and instruments related thereto and to provide statutory authority for guaranteed land title.

Status of registered owner 16 Notwithstanding anything in any other enactment, the owner who is shown by the title register to be the owner of a parcel of land described therein holds the land in fee simple subject, in addition to the overriding incidents implied by this Act , to such encumbrances, liens, estates or interests as are shown by the title register to have been registered against or in respect of that land and free from all other encumbrances, liens, estates or interests whatever, except in case of fraud wherein he has participated or colluded.

Effect of registration on subsequent interests 17(1) After the title to land has been registered under this Act , (

a) no right, title or interest adverse to or in derogation of the title of the registered owner or his right to possession shall be

acquired by the possession of another; and (

b) no right to the access and use of light or any easement, right or profit à prendre shall be acquired in or in respect of the land by any person by prescription, and any such rights acquired by any person prior to the date on which the title was first registered under this Act shall not be enforceable as against a registered owner if the existence of the right is not shown in the title register. 17(2) Any person who, prior to the date on which the title to land was first registered under this Act , had the use and enjoyment of a right of way or right of access to property and such right of way or right of access is not registered against a parcel of registered land, may apply to the court for relief. 17(3) The court upon consideration of an application pursuant to subsection (2) may grant relief and notwithstanding the generality thereof may (

a) order that the title register be rectified to show the existence of a right of way or right of access; (

b) determine the compensation, if any, that should be paid to any person; (

c) order that any reasonable legal, survey and other costs actually incurred by a person involved in the application be damage suffered by reason of rectification of the title register; and (

d) fix the costs in a lump sum or order that the costs be taxed in accordance with the Rules of Court. 17(4) Unless the contrary is expressly declared in the title register, all registered land is, by implication and without any special mention in the title register, subject to the following overriding incidents: (

a) any subsisting exceptions, reservations, covenants and conditions in favour of the Crown contained in or implied by grant of the land from the Crown or excepted or reserved by statute, including any standing trees and timber vested in the Crown; (

b) the right of a lessee under a subsisting lease or agreement for a lease for a period not exceeding three years where there is actual occupation of the land under the lease or agreement; (

c) any right of a spouse of the registered owner to occupy the land under the Marital Property Act; (

d) any right granted by or under an enactment of Canada or the Province (

i) to enter, go across or do things on land for the purpose specified in the enactment, (ii) to recover taxes, duties, charges, rates or assessments by proceedings in respect of land, (iii) to expropriate land,

(iv) to restrict the use of land, or (

v) to control, regulate or restrict the subdivision of land; (

e) any lien under the Mechanics’ Lien Act where the time within which the claim of lien is required to be filed has not expired; (

f) any public highway or other public right-of-way, however created, on, over or in respect of the land; (

g) any easement or right-of-way, however created, on, over or in respect of the land, that is (

i) held by the Crown, a Crown corporation, a local government or a public utility, and (ii) used to construct, alter, maintain, inspect or repair water mains or pipelines, drains, storm sewers, sanitary sewers, gas pipelines, electrical transmission lines, telecommunication transmission lines or any other similar works or works related to or appurtenant to those works, including if necessary, permanent towers, poles or relay or switching stations.

Unregistered instrument or interest 61(1) Notwithstanding any rule of law or equity to the contrary, a person contracting or dealing with or taking or proposing to take a transfer of or interest in registered land from the owner thereof is not, except in the case of fraud by such person, (

a) bound to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the land is or was registered or to see to the application of the purchase money or of any part thereof; or (

b) affected by notice direct, implied or constructive, of any unregistered instrument or interest or claim affecting the land. 61(2) Knowledge on the part of any such person that any unregistered instrument or interest or claim is in existence shall not of itself be imputed as fraud. 61(3) Subject to

section 49 of the Personal Property Security Act, no person contracting or dealing with or taking or proposing to take a transfer of or an interest in registered land from the owner is affected by a registration in the Personal Property Registry whether or not that person has notice or knowledge of the registration. 61(4) The fact that a person referred to in subsection (3) has knowledge of a registration in the Personal Property Registry, or that that person could have obtained knowledge by searching the Personal Property Registry, is not evidence of fraud for the purposes of subsection (1). RECTIFICATION OF THE TITLE REGISTER Cases where registrar may rectify

68 Subject to

section 71 and to the approval of the Registrar General, the registrar may rectify the title register in any case and at any time with the consent of all persons interested, as well as in the following cases: (

a) where the title register contains an error or an omission has been made therefrom; (

b) where two or more persons are, by mistake, registered as owners of the same estate or interest or of the same encumbrance or charge; (

c) where an estate or interest, charge or encumbrance has been registered in the name of a person who, if the land had not been registered under this Act , would not have been owner of the estate or interest, charge or encumbrance; (

d) where upon survey of the registered land a dimension shown on a plan is found to be incorrect; but in any case referred to in paragraph (a), (b), (

c) or (

d) the registrar shall first give notice of his intention to rectify the title register to all persons appearing to be interested or affected by such rectification. Court order respecting rectification 70(1) Subject to

section 71, the court may make an order directing the registrar to rectify the title register in the following cases: (

a) where the court is satisfied that any person is entitled to any estate, right or interest in any registered land and as a consequence is of opinion that rectification of the title register is required; (

b) where the applicant is aggrieved by any entry made in or by the omission of any entry from the title register or by any default in the making of an entry therein, and the court is satisfied that a rectification of the title register is required; (

c) where the court is satisfied that any registration, including a first registration, or any entry in or memorandum on the title register or on an instrument has been obtained, made or omitted by fraud, wrongful act or mistake. 70(2) An application to the court for an order directing the registrar to rectify the title register shall be made in the manner prescribed in

section 79. Rectification and registered owner in possession 71 The title register shall not be rectified so as to affect detrimentally the title of the registered owner who is in possession unless (

a) such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by this act; (

b) the immediate disposition to him was void, or the disposition to the person through whom he claims otherwise than for valuable consideration was void; or

(

c) for any other reason, in any particular case it is considered that it would be unjust not to rectify the register against him. I would note a recent decision of the New Brunswick Court of Appeal which considered the effects of a Certificate of RegisteredOwnership (CRO). In paragraph 1 of CG Group Ltd. v. Girouard et al, 2018 NBCA 59 ; 2018 CarswellNB 382, Quigg, J.A.sets out the basic issue before the Court of Appeal, namely, the

Summary Judgment issue: In this case, the respondents (the “Girouards”) claimed against the appellant (“CG Group”) seeking a rectification of aCertificate of Registered Ownership (“CRO”) with respect to a property having PID 875237 (the “property”). The Girouardsalso had a Certificate of Pending Litigation issued and registered against the property. CG Group brought a motion forsummary judgment requesting the claim against it be dismissed and the Certificate of Pending Litigation be revoked. On May 1,2017, a judge of the Court of Queen’s Bench dismissed the motion.

It is from that decision and the resulting order, dated May 3,2017, CG Group appeals. In particular, CG Group submits the motion judge erred in law by failing to apply the appropriateprovisions of the Land Titles Act, S.N.B. 1981 c. L-1.1 (the “Act”) and he further erred in failing to grant

summary judgmentwhere there was no genuine issue requiring a trial. [25] The facts and issues that somewhat follow the case now before this Court are set out at paragraphs 4, 5 and 18: 4 On August 10, 2016, CG Group’s lawyer obtained a CRO. This CRO indicates Seagull was the owner, and the onlyencumbrances listed were easements to the New Brunswick Electric Power Commission and the New Brunswick TelephoneCompany, as well as a debenture and mortgage to the Bank of Nova Scotia.

It showed no encumbrances in favour of theGirouards, or anyone else, in the nature of restrictive covenants or rights-of-way. 5 On August 15, 2016, CG Group proceeded to purchase the property and a new CRO was issued by the Registrar of LandTitles. This CRO showed CG Group as owner, again with easements in favour of the New Brunswick Electric PowerCommission, the New Brunswick Telephone Company and a debenture and mortgage to the Bank of Nova Scotia. It alsoindicated a collateral mortgage was in the process of being registered.

Subsequently, on August 15, 2016, CG Group registered acollateral mortgage in favour of the Royal Bank of Canada as mortgagee and CG Group as mortgagor.

III.Grounds of Appeal 18 CG Group appeals to this Court on the basis the motion judge erred in law by: 1) failing to hold CG Group, as the purchaser of PID 875237, was entitled to have the action and claims as against it dismissed,and the Certificate of Pending Litigation in favour of the Girouards as against PID 875237 revoked; 2) holding CG Group was in any way bound to inquire into, or ascertain the circumstances of, any previous owner of the land,or that it was somehow effected by notice of any unregistered instrument, or interest or claim affecting the land.

Accordingly,CG Group was not entitled to have the action and claims as against it dismissed, and the Certificate of Pending Litigation infavour of the respondents against PID 875237 ordered revoked; 3) holding that in the circumstances, the Girouards were entitled, or may be entitled, to rectification of the CRO in respect toPID 875237, or that, in the circumstances, s. 71(

c) of the Act would be available to defeat the registered interest of CG Group, apurchaser from a registered owner, and further erred in law in by failing to apply the provisions of s. 79(6) of the Act, and in the

result, failed to dismiss the action of the Girouards as against the CG Group, and failed to order the Certificate of Pending Litigation in favour of the Girouards as against PID 875237 revoked; 4) holding if the Girouards were entitled to an interest in registered land, or aggrieved by an omission of an entry from the title register, they could be entitled to rectification, as opposed to indemnification, under the provisions of the Act ; and 5) failing to grant

Summary Judgment under the provisions of Rule 22.04(1)(a), and in particular in circumstances where there is no genuine issue requiring a trial with respect to the Girouards’ claim, and thus failed to dismiss the claim of the Girouards against CG Group and failed to order the Certificate of Pending Litigation in favour of the Girouards as against PID 875237 revoked. [ 26 ] While I am reproducing a substantial portion of Madam Justice Quigg’s decision, I do so to explain the law to some of the participants in this matter and the “whys” for my decision.

I am reproducing paragraphs 19, 23, 29-30, 34-47, 56-59, and 92-93: 19 The Law Society of New Brunswick (“LSNB”), Service New Brunswick (“SNB”) and the Province of New Brunswick (as represented by the Registrar General of Land Titles) made submissions before this Court as intervenors. According to the intervenors, the decision under appeal runs counter to the Standards for the Practice of Real Property Law adopted by the LSNB and those relating to the Land Titles System as a whole.

The decision places an onus on lawyers who practice real property law to search real property titles prior to a CRO being issued pursuant to the Land Titles System, thereby establishing a practice and a precedent that are contrary to the Land Titles System. […] 23 The introduction of the Land Titles System in New Brunswick provided, among other things, for the security of guaranteed title, eliminated time- and money-consuming title searches, and resulted in efficient and economical transfer of real property.

The main difference from the old Registry system is the registered owner of a parcel has an indefeasible title. Individuals acting in good faith can rely on the information registered within the register as to the rights, interest and ownership limitations of a particular property title, and act on the basis of that information. With the new system, each time a lawyer undertakes a land transaction he or she requests a CRO for the relevant parcel of land. SNB issues a CRO for that property, thereby guaranteeing the quality of such title.

No further searches for that parcel are therefore necessary from that point forward. […] 29 Since SNB had agreed it would rely upon Certificates of Title issued by real property lawyers without independent verification, SNB required assurances lawyers would conduct their searches in accordance with the Standards. This resulted in a Subscription Agreement, which is

Schedule A to the Master Agreement. Accordingly, any lawyer who wants to participate in the conversion of property titles from the old Registry system to the new Land Titles System is required to enter into a subscription agreement with SNB. Only eligible members of the LSNB who sign the Subscription Agreement pursuant to the Consolidated Master Agreement with SNB are entitled to: (

i) register instruments electronically within the Land Titles System (with the exception of the Crown in right of the Province of New Brunswick and land surveyors in good standing); (ii) participate in the adjudication of issues arising on the conversion of property from the previous registry system to the Land Titles System; and (iii) issue certificates of title to eventually allow for the issuance of a Certificate of Registered Ownership (CRO) under the Land Titles Act , S.N.B. 1981, c. L-1.1 (the “ LTA ”).

30 In fact, the Act was amended in order to ensure all applications for conversion to the Land Titles System would be accompanied by the required certificate of title in the prescribed form, issued only by a member in good standing of the LSNB who is a subscriber pursuant to the Subscription Agreement. This Agreement is a contract between the lawyer and SNB whereby the member confirms he or she will conduct searches and submit Certificates of Title to SNB in accordance with the Standards. This promotes the maintenance of the integrity of the system as a whole. […] C.

The Land Titles Act 34 In New Brunswick, as confirmed in McKinney v. Tobias , 2006 NBQB 290 , 306 N.B.R. (2d) 282 , the Land Titles System operates on three basic principles, namely: the mirror principle, the curtain principle and the insurance principle. These basic principles are known to be the doctrine of indefeasibility of title, and constitute the main pillars of the Land Titles System embodied by the Act . This was specifically addressed by Glennie J. in McKinney : Land Titles legislation operates on three basic principles, namely: the mirror, curtain, and insurance principles .

The mirror principle requires that the registrar of title reflect accurately and completely all facts material to the title. The curtain principle means that the register is the sole source of information and purchasers need not concern themselves with trust and other equities which lie behind this curtain . The insurance principle requires that if the application of the legislation, through some error or flaw, causes loss to a person, that person be compensated from an insurance fund created under the legislation. The curtain principle is given legislative expression in

Section 61 of the Land Titles Act which tracks similar provisions contained in Alberta, Saskatchewan and British Columbia land titles legislation. [para. 41] [Emphasis added.] 35 Glennie J. further articulated the following tenets of the Land Titles System: As noted per Sigurdson J. in Vancouver City Savings Credit Union v. Hu (2005), 31 R.P.R. (4th) 309 (B.C.S.C.) at para. 32 : The classic statement of the purpose of our land title system appears in Gibbs v. Messer (at 254): The main object of the Act , and the legislative scheme for the attainment of that object, appear to be equally plain.

The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity . That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title. See Citifinancial Canada East Corp. v. Morrow Estate (Trustee of) , [2006] N.B.J.

No. 171 , 2006 CarswellNB 439 at paragraphs 33 , 34, 36 and 37. [para. 45] [Emphasis added.] 36 The doctrine of indefeasibility of title is emphasized in s. 1 of the Act as follows: Purpose of the Act Objet de la loi

1 The intent and purpose of this Act is to provide a system for the registration of the title to land in the Province and instruments related thereto and to provide statutory authority for guaranteed land title . [Emphasis added.] 1 La présente loi vise à doter la province d’un système d’enregistrement des titres de biens-fonds et des instruments afférents ainsi qu’ à consacrer législativement la garantie que confère un tel

titre . [C’est moi qui souligne.] 37 The most significant feature of the Act is that, once title is certified by a lawyer to the Province (SNB) during the conversion process, through the issuance of a Certificate of Title, SNB in turn certifies this title to the public by the issuance of a CRO. Again, from that point on, SNB guarantees the quality of the title and it never has to be searched again. This is the impact of both the mirror principle and the curtain principle.

The system of examining and opining on titles has become simplified and more exact, in accordance with one of the main purposes of the Act : to promote commercial certainty and to simplify the task of title searching for a lawyer to render an opinion on title. Unfortunately, it appears that the motion judge was unaware of these principles, based on the comments and iterations of his views contained in the decision under appeal. D.

Sections 16 and 61 of the Act : Paramountcy 38 Several provisions of the Act contemplate providing some form of indefeasibility of title, or title assurance, to those who register land, affecting charges and/or instruments in the Land Titles System. For example, s. 16 of the Act sets out one of the most significant impacts of registration in the Land Titles System, namely its reliability.

Section 16 deals with the status of a registered owner’s title in the Land Titles System. It embodies the mirror principle, referring to the idea that the registry mirrors all rights in relation to a particular parcel of land and accurately reflects the title, subject only to fraud or certain statutory exceptions. Thus, an individual could examine an abstract of title for a specific parcel of land and see listed all of the interests that pertain to that parcel, and rely on it (see Stoney Tribal Council v. Canada , 2016 ABQB 193 , [2016] A.J. No. 349 (QL) , at paras. 268-270 ).

Section 16 reads as follows: Status of registered owner Statut du propriétaire enregistré 16 Notwithstanding anything in any other enactment, the owner who is shown by the title register to be the owner of a parcel of land described therein holds the land in fee simple subject, in addition to the overriding incidents implied by this Act , to such encumbrances, liens, estates or interests as are shown by the title register to have been registered against or in respect of that land and free from all other encumbrances, liens, estates or interests whatever, except in case of fraud wherein he has participated or colluded. 16 Nonobstant tout autre texte législatif, la personne que le registre des titres indique être le propriétaire d’un bien-fonds qui y est décrit détient ce bien- fonds en fief simple avec les réserves dérogatoires de la présente loi, d’une part, et des charges, privilèges, droits de propriété et droits que le registre des titres indiquent comme étant enregistrés contre ou concernant ce bien-fonds, d’autre part, et libre de toute autre charge, privilège, droit de propriété ou droit quelqu’ils soient sauf dans le cas de fraude à laquelle cette personne a pris part ou dont elle a été complice. 39 Furthermore, s. 61 clearly states a lawyer dealing with a post-conversion transfer of a land has no obligation to inquire or ascertain the validity of the previous owner’s title.

This

section embodies the aforesaid curtain principle. This means once the title is migrated to the Land Titles System, there is no obligation to perform a traditional historical title search. The title search is only done once, during the application for first registration pursuant to s. 11 of the Act , when the title is being converted to the Land Titles System. 40 During the conversion process, once the title is certified by a member in good standing who entered into a Subscription Agreement as mentioned above, SNB will in turn certify the title to the public by issuing a CRO pursuant to s. 63 of the Act . From

that moment on, the quality of such title is guaranteed by the Government. This is essential in that the CRO contains all therelevant information about the title. The purchaser, and by extension his or her lawyer acting on the purchasers behalf, does notneed to investigate the history of past dealings with the land and “search behind the title” as depicted on the register anymore(see Durrani v. Augier, (ON SC), [2000] O.J. No. 2960 (QL), at paras. 40-42).

In other words, the Land TitlesSystem eliminates duplicative title searching (another concept that seemed absent from the motion judge’s understanding whenhe gave his reasons for his oral decision under appeal); title to the land now depends on the registry and not on the validity ofprior conveyances.

This is confirmed in s. 61 which reads as follows: Unregistered instrument orinterest Instrument ou un droit nonenregistré 61(1) Notwithstanding any ruleof law or equity to the contrary,a person contracting or dealingwith or taking or proposing totake a transfer of or interest inregistered land from the ownerthereof is not, except in the caseof fraud by such person, 61

(1) Nonobstant toute règlecontraire de droit ou d’equity,toute personne qui reçoit untransfert de bien-fondsenregistré ou un droit dans cebien-fonds du propriétaire dubien-fonds, propose de le faireou l’entreprendre par voie decontrat ou de négociation, n'estpas, sauf en cas de fraudecommise par cette personne, (

a) bound to inquire into orascertain the circumstances inor the consideration for whichthe owner or any previousowner of the land is or wasregistered or to see to theapplication of the purchasemoney or of any part thereof; or

a) tenue de s’enquérir descirconstances dans lesquelles oucompte tenu desquelles lepropriétaire ou ceux qui l'ontprécédé comme propriétairesont été enregistrés à ce titre, nide la façon dont a été utilisétout ou

partie de l’argent qui aservi à l’achat; ni (

b) affected by notice direct,implied or constructive, of anyunregistered instrument orinterest or claim affecting theland.

b) liée par une notificationexpresse, implicite ou établiepar interprétation, portant surun instrument, un droit ou uneréclamation non enregistréerelativement à ce bien-fonds. 61(2) Knowledge on the part ofany such person that anyunregistered instrument orinterest or claim is in existenceshall not of itself be imputed asfraud. 61(2) La connaissance de la partde cette personne de l’existenced’un instrument ou d’un droitou d’une réclamation nonenregistrée ne constitue pas parelle-même de la fraude. 41 Similar principles are found in Alberta, British Columbia and Saskatchewan, where comparable Land Titles Systems andLand Titles legislation are in place.

In Alberta and Saskatchewan, there are almost identical provisions to those found in s. 61 ofthe Act. 42 Recently, in SaskEnergy Inc. v. ADAG Corp. Canada Ltd., 2015 SKQB 143, [2015] S.J. No. 261 (QL), while examining theissue of indefeasibility of title, the Saskatchewan Court of Queen’s Bench stated: [...] Specifically, the entity identified as the registered owner on the title, ipso facto, has authority to deal with the title, and thereis no obligation to look beyond or behind that registered owner. [...] The principle of indefeasibility is of long standing under our land titles system.

As noted in the Manitoba Court of Appeal case ofCartlidge v. Granville Savings and Mortgage Corp. (1987), (MB CA), 34 DLR (4th) 161 (WL) (Man CA):

40 Indefeasibility is the heart of a Torrens system. The register is everything; an owner’s title is conclusive and persons dealingwith registered owners are not required to go behind the register. [...] More recently the issue of indefeasibility was addressed by Popescul J., as he then was, in Brick v Modus Resources Ltd., 2007SKQB 111, 294 Sask R 21, where the court confirmed that the title acts as a “mirror and blind” reflecting all interests andbehind which you do not have to look.

Justice Popescul noted at para. 19: 19 The integrity of the land titles system in Saskatchewan has long depended on the fundamental principle of indefeasibility oftitle. A party intending to obtain an interest in land in Saskatchewan is entitled to rely on the certificate of title being correct andconclusively representing all interests in the land without having to look behind the title to determine if there are anyunregistered interests. This principle has often been referred to as the “curtain” principle of the Torrens system.

This principle isabsolute and is subject only to statutory exceptions or the effects of fraudulent activities, none of which are relevant to the matterbefore the Court (see Hermanson v. Martin, (SK CA), [1987] 1 W.W.R. 439 (Sask. C.A.)). [paras. 102-105] [Emphasis added.] 43 In Wharton v. Smerychynski, 2000 ABQB 217, [2000] A.J.

No. 375 (QL), the Alberta Court of Queen’s Bench emphasized theprinciple according to which any person who consulted the register is entitled to rely on the state of the title as disclosed in theregister (or “registry”, as the case may be) to determine the existing interests in land (see paras. 67 and 73). 44 Similarly, in Farm Credit Canada v. Gherasim, 2016 SKQB 182, [2016] S.J. No. 283 (QL), the Saskatchewan Court of Queen’sBench emphasized the paramountcy of a CRO (i.e.

Certificate of Title in Saskatchewan) in the following terms: The manner in which the court may exercise its discretion under s. 109 of the Act is not unfettered: its orders must remainconsistent with the fundamental principles of the Act as a whole. Those principles were summarized by G.R.

Jackson, thenMaster of Titles (now Jackson J.A. of the Saskatchewan Court of Appeal) in Land Titles in Saskatchewan, Vol 1 (Regina,Saskatchewan Justice, 1988): First, a certificate of title is, subject to certain specified exceptions, conclusive of evidence of ownership, so that it can be reliedupon in all transactions concerning that land. This principle is often called the principle of indefeasibility. Second, the scheme ofthe Act promotes facility of transfer. Relying on the principle of indefeasibility, prospective purchasers can freely deal withanyone purporting to be the registered owner of land.

Third, registration of documents is compulsory which means that in orderto take priority or have any effect over persons who are not parties to the transaction, the transaction or notice of the transactionmust be registered or filed in the appropriate land titles office. Fourth, an assurance fund is created to compensate any personwho suffers loss or damage through an error in the operation of the Land Titles System or through deprivation in circumstanceswhere the principle of indefeasibility overrides previous common law rights of ownership.

These principles are illustrated by ss. 23 and 24 of the Act, which declare that a current or prospective holder of a registeredinterest is entitled to rely on the state of the Register and is not affected by any other unregistered interest.

This meansregistration is conclusive proof of any interests, exceptions or reservations that may affect ownership or an interest in land.[paras. 14-15] 45 Again, unlike the old Registry system, anyone wishing to deal with real property within the province may request a CRO forthe relevant parcel, which can be relied upon due to the government and statutory guarantees. 46 It should be noted the main purpose of a CRO is to answer three basic questions: (1) where is the parcel located; (2) whoowns it; and (3) what the charges against it are.

It is delivered for each registered parcel every time a change in the title occurs,so that the title register always shows its current state, again, without the necessity for any further traditional title search, whichis now done only once during the conversion process at the application for first registration. Thus, the CRO is the key evidence of

title.

This is confirmed by s. 63 of the Act : Certificate of registered ownership Certificat de propriété enregistrée 63(1) Any person may upon payment of the prescribed fee require the registrar to issue a certificate of registered ownership, in the prescribed form, in respect of any parcel of registered land. 63(1) Sur paiement du droit prescrit, toute personne peut demander au registrateur de délivrer un certificat de propriété enregistrée, dans la forme prescrite, relativement à toute parcelle de bien-fonds enregistré. 63(2) Every certificate of registered ownership under this Act shall contain a statement of the registered owner's interest in the land referred to therein and is subject to the exceptions and reservations stated therein, overriding incidents and the provisions of this Act and the regulations. 63(2) Tous les certificats de propriété enregistrée délivrés en application de la présente loi énoncent le droit du propriétaire enregistré dans le bien-fonds, sous réserve des exceptions et réserves qui y sont contenues, des réserves dérogatoires et des dispositions de la présente loi et de ses règlements. 63(3) Every certificate of registered ownership under this Act shall be evidence in all courts and in every proceeding of the particulars contained therein as of the date and at the time the certificate was issued. 63(3) Tous les certificats de propriété enregistrée en vertu de la présente loi font foi, dans toutes les cours et dans chaque procédure, de leur contenu à la date et à l’heure de la délivrance du certificat. 47 The LSNB established the Standards in accordance with the aforementioned principles stemming from the Act and the Land Titles System.

Thus, the Standards incorporate the doctrine of indefeasibility of title in various sections. For example, Standard 56 contemplates the reliability and the primacy of the CRO, by explicitly setting out the obligations of a lawyer on a post- conversion transaction. Standard 56 clearly states that, once a parcel has been converted to the Land Titles System, no full title search (i.e. a full historical or conventional title search) is required.

Indeed, on a post-conversion transaction, the role and obligations of a lawyer are different from those of the lawyer during the first registration of a title and its conversion process. […] 56 In light of the above, there would be various implications for the legal practice should the decision under appeal stand. The decision of the motion judge nullifies the Act and is contrary to the essential purpose of the Land Titles System as a whole: to permit members of the general public to benefit from certainty, effectiveness, cost savings and facility of transfers (see Stolt Sea Farm Inc. v.

Silver Harvest Ltd ., 2006 NBQB 187 , 298 N.B.R. (2d) 218 , at para. 54 ). 57 For more than 16 years, the public has been well-served by the current system of conveyancing land throughout the province. It provides effective and efficient services that can be relied upon, as well as access to a province-wide paperless electronic Land Titles System. The integrity and reliability of the Land Titles System has been maintained and, at the same time, property rights enjoyed by various members of the public have been protected.

This was achieved by the interaction between the LSNB and SNB and the Land Titles System’s four fundamental legal sources, namely the Consolidated Master Agreement, the Master Agreement, the Act and its Regulations and the Standards, all of which are founded on promoting and protecting the public interest. 58 Because the Land Titles System eliminates the time-consuming historical title search required in the old Registry system, land transfers are now efficient and more economical.

Reliability of various certificates issued under the Land Titles System not only affords stability and assurance for members of the LSNB who practice real estate law and participate in the Land Titles System, but it also provides for greater access and cost-effective means for members of the public to take

part in real property transactions. Members of the general public in New Brunswick and the business community rely on the proper and efficient operation of the Land Titles System in order to protect their real property rights and interests. Lawyers represent individuals

and businesses in the acquisition, disposition and financing of real property in our province and in this capacity are one of, if not the most, significant users of the Land Titles System in New Brunswick. Lawyers must be able to rely on the certainty of the Land Titles System and must especially be able to rely on CROs when effecting property transactions so that they may fulfill their roles and duties owed to the clients and laypersons in a more efficient and cost-effective manner. 59 It should not be forgotten that the guarantee of title is the hallmark of the Land Titles System.

It promotes the protection of the interest of land owners throughout New Brunswick, all while promoting its economic stability and well-being. […] 92 CG Group acquired the property on a bona fide sale after it was converted to Land Titles and before notice of any proceeding by the Girouards. 93 Sections 61 , 70 , 71 and 79(6) of the Act , work together to provide that, in the absence of fraud or bad faith, a bona fide purchaser for value will obtain indefeasible title to a property once registered and the court will not be able to interfere with that title. [ 27 ] The text of Anger & Honsberger, Law of Real Property , comments on right-of-ways at sections 1804.2 to 1804.6

Section 1804.2: “ A private right of way is a right which permits the owner of the dominant tenement to pass over some defined portion of the servient tenement in order to gain access to or egress from the dominant tenement and fro some purpose connected with the better enjoyment of the dominant tenement. A right of way like any other easement may be created by express or implied grant or by prescription .”

Section 1804.3: “ The nature and extent of a right of way created by an express grant depends upon the proper construction of the language of the instrument creating it. The court primarily will look at the words of the grant. However, parol evidence is admissible to show the situation at the time of the grant and of the parties and the surrounding circumstances in order to show the nature and extent of the intended user.

Surrounding circumstances that are particularly material are the description and nature of the lands or buildings of the dominant tenement and the nature of the locus in quo of the servient tenement over which the right of way is granted as it exists at the date of the grant .”

Section 1804.4: “ A right of way may be created by implication of law where the dominant and servient tenements have been commonly owned and the owner sells and conveys one for an absolute estate therein. There is an implied grant of all easements necessary for the reasonable enjoyment of the tenement conveyed and an implied reservation of an easement of necessity without which there could be no enjoyment of the tenement retained.

A way of necessity may be acquired by an implied grant in favour of the grantee of lands over the lands of the grantor when land- locked lands are granted which are physically inaccessible unless the grantee is permitted to use the surrounding land of the grantor as an approach, and similarly a way of necessity may by implication be reserved to the grantor over the lands of the grantee when land-locked lands are retained.

A way of necessity will only be implied where it is actually necessary for the use of the land retained or granted and no where it is for the more convenient enjoyment of the land granted or retained. A way of necessity will be implied where the land-locked parcel is acquired by a devise. The right of way of necessity will cease when the right is no longer required in order to render the grant or reservation effectual .”

Section 1804.5: “ A right of way may also be acquired by prescription. The law in this regard presents an analogy to the acquisition of title to land by adverse possession. In proving the right the user of the right is the only evidence. Generally, the evidence is held to be sufficient if the user is of such a nature and takes place at such intervals as to afford an indication to the owner of the servient tenement that a right is claimed against him, an indication that would not be afforded by mere accidental or occasional exercise. A right acquired for one use may not necessarily include the right of another kind .”

Section 1804.6: “ As a general rule, the user of a right of way depends upon the nature of the road in which it is granted and the purposes for which it is intended to be used. If the grant is not limited to any particular use, and is granted in general terms, it may be used for all purposes.” “All that the grantee of a right of way has the right to do is to cross over the land of the servient tenement and this does not include a right of tarry. However, a right to pass and repass over a yard with or without vehicles implies the right to stop to load and unload.

The user of a right of way must be within the terms of the grant or of the accustomed user in the case of a right acquired by implied grant or prescription and must be reasonable .” [ 28 ] It is the position of the Defendant, in part, that the Logans in their deed fabricated the description. Mr. Wylie suggests that the Logans were going to “quiet the title” of their property but abandon the quieting of titles and proceeded under the Land Titles legislation. It should be noted that the Land Titles system came into effect tin 2001.

One of the effects that occurred was the doing away with the necessity of “quieting title”. The CRO is effectively a quieting of title. I see nothing which suggests the deed to first register title under the Land Titles Act is fraudulent, a mistake, deceptive or a flagrant misuse of the Land Titles system. [ 29 ] Another principle which has been around for a number of years is the presumption against landlocking property. If Mr. Wylie has his way, the Logan property would be landlocked with no access.

But the evidence is clear that access to that parcel of land has been around and used for over seventy years before the Logans sold the property to Mr. McCarron and Ms. Wood. [ 30 ] I will now review some of the authorities on this matter. I utilized these authorities in my earlier Gillespie decision. The New Brunswick Court of Appeal considered the matter of right-of-ways in Voy

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