Goulden v. Nova Scotia (Attorney General), 2013 NSSC 253

SUPREME COURT OF NOVA SCOTIA Citation: Goulden v. Nova Scotia (Attorney General), 2013 NSSC 253 Date: 20130819 Docket: SY. 290886 Registry: Yarmouth Between: Michael L. Goulden Plaintiff v. The Honourable Attorney General of the Province of Nova Scotia and Joseph E. MacDonald and Louanne MacDonald and Clifford VanBuskirk and Ardith VanBuskirk and James Kimbrell and Betty Kimbrell and Gary Rapp and Brian Ricky Rapp and Jonathan Rapp Defendants Judge: The Honourable Justice Margaret J. Stewart Heard: July 23-27, 2012, Shelburne & Barrington, Nova Scotia; final written submission, September 6, 2012 Counsel: Allen C.

Fownes, for the Plaintiff Andrew Nickerson, Q.C. for the Defendants Greg Barro, for AGNS (not participating) INTRODUCTION AND BACKGROUND

[ 1 ] Introduction. This is a proceeding under the Quieting Titles Act , R.S.N.S. 1989, c. 382. It involves competing claims to property on the western side of Highway 404 (the Shore Road) in Carleton Village, Shelburne County. The issues include the location of certain boundaries and the existence or non-existence of a prescriptive right-of-way over the disputed area, which is wood and brush. The deed descriptions contain limited particulars. The Attorney General does not oppose the quieting titles claim. [ 2 ] Background.

The defendants are neighbouring and nearby landowners to the plaintiff: James and Betty Kimbrell own land to the west of the plaintiff’s property; Clifford and Ardith VanBuskirk own land to his north; Joseph and Louanne MacDonald own land north of the VanBuskirks. Finally, the defendants Gary, Brian, Ricky and Jonathan Rapp own land west of the Kimbrells’ property. The common factor is the various defendants’ boundaries with the property of the plaintiff, Michael Goulden’s property. [ 3 ] The location of Goulden’s western boundary line in respect to the Kimbrells’ eastern line is in dispute.

Goulden claims the boundary is the one established by surveyor Ronald Dearman on a 1996 survey of his property. The Kimbrells rely on a line run by another surveyor, David Thorne, on a March 1983 survey of the lands of Ida Mahaney, their predecessor in title. The VanBuskirks and MacDonalds say part of Thorne’s line was demarcated by an old wire fence, and later by its remnants. [ 4 ] The other principal boundary issue is the location of Goulden’s northern boundary with the VanBuskirks.

Although Goulden argues the deed description is not ambiguous, and should therefore be interpreted according to its plain meaning without extrinsic evidence, if the court were to find otherwise, reliance is placed on Goulden’s viewing and discussions with a former abutting owner, the late Arnold DeMings, respecting the location of his northern line. Goulden claims the shared boundary line is a line (A-

B) set by surveyor Lester Berrigan on a November 2007 survey plan and a 2002 concept plan of Goulden’s lands. Berrigan followed a northern line from an 1898 survey by Deputy Surveyor James McKay. [ 5 ] The defendants say Arnold DeMings owned no land west of Highway 404, which is where the disputed areas lie; they maintain that all of his property was to the east of the road. They also say the evidence reveals that he did not actually know where his northern line was located. The VanBuskirks claim their southern boundary (i.e.

Goulden’s northern boundary) to be the line BY-AX set by surveyor Everett Hall on a 1999 plan of Goulden’s lands and a 2008 survey plan of the VanBuskirks’. They point to the evidence of Gerald DeMings, a predecessor in title of theirs and the MacDonalds to their north. They refer to a survey marker at point BY, set by Thorne in his April 1983 survey of Goulden’s lands and identified by Gerald DeMings as his southeast corner.

Goulden argues that Gerald DeMings’s evidence as to the specific location of the boundary is prone to error and should be disregarded, given that some 48 years have passed since DeMings lived there. He says there is no corroboration, and suggests that DeMings put little importance on the location of the boundary. He also questions surveyor Hall’s impartiality. [ 6 ] The location of the MacDonald southern line is also affected by the placement of Goulden’s northern line. The MacDonalds were predecessors in title, and now adjacent landowners, to the VanBuskirks, following a 2005 subdivision.

In February 2005, the MacDonalds subdivided what they believed to be their property, immediately to the north of Goulden’s, into Parcel A and Lot 2. Parcel A, the southern parcel, was sold to the VanBuskirks, who, in turn, joined it with a triangular Lot 1 on the western side of Highway 404 to create Lot 1A. Lot 1 lay to the east of Goulden’s eastern boundary line as shown on Berrigan’s 2007 quieting plan. The VanBuskirks had purchased Lot 1 from Arnold DeMings’s daughter, Melda Langille.

Goulden claims that all of VanBuskirk’s Parcel A, as well as a southern portion of MacDonald’s Lot 2, are in fact his property. [ 7 ] The portion of Lot 1 south of the VanBuskirks’ proposed boundary with Goulden (the BY-AX line) was part of the property of George Egbert Hamilton, Lamont Hamilton, and Ethel Bowers (formerly Hamilton). The Hamiltons were predecessors in title to Goulden and VanBuskirk/MacDonald.

The VanBuskirks acknowledge that the area south of the BY-AX line belongs to Goulden, although it is not claimed in the quieting titles proceeding or noted in red on Berrigan’s 2007 plan. [ 8 ] None of the parties claim title by adverse possession. The claims are all based on deeds. Goulden, MacDonald and VanBuskirk have the same chain of title and there is no conflict. As will become clear, the interest of Arnold DeMings is central to the deed

interpretation and boundary determination between Goulden, the VanBuskirks and the MacDonalds, due to references to him as an adjacent landowner. [ 9 ] An additional issue is an alleged right-of-way across the disputed lands of Goulden and the VanBuskirks, allowing the Kimbrells and Rapps to access their lands from Highway 404. The Rapp properties are located to the west of the Kimbrells’. The Rapps claim a right-of-way for vehicles across Goulden’s and the Vanbuskirks’ properties. They say they maintained and used this right-of-way openly, notoriously and continuously from at least 1970 until 1998.

That year, Goulden took action to prevent its use, over their protest. In essence, this is the retrial ordered by Hamilton, J.A. in Kimbrell v. Goulden , 2006 NSCA 102 , for the purpose of enabling MacDonald “to present his position on any ownership interest he had in the servient tenement and to allow him to testify on the issues of

acquiescence and permission in particular” (para 43). [10] The defendants claim this right-of-way at common law on the basis of the doctrine of lost modern grant, and pursuant to theLimitation of Actions Act, R.S.N.S. 1989, c. 258. The Kimbrells assert the same right. Prior to the purchase from the MacDonalds, theVanBuskirks allegedly used the same right-of-way to access the property of a relative for the purpose of (among other things) cuttingand hauling lumber and accessing the Rapps’ gravel pit.

Like the MacDonalds when they owned the land, the VanBuskirks take no issuewith the Kimbrell and Rapp claims. [11] Goulden denies that a right-of-way exists. He denies that any grant was ever made. He claims the Kimbrells cannot have rightsthat their predecessors, Ida Mahaney and Norine and Larry Wildman, denied. He says the Rapps’ use was by permission, no differentfrom sporadic and casual use by the public. He also seeks damages for trespass, as well as a declaration that any future use of the roadwill be at his pleasure, if at all.

In the alternative, if he is not entitled to ownership of the land, he claims the same right-of-way as anyothers who are found to have such a right over the VanBuskirks’ property. LEGAL PRINCIPLES [12] Boundary determination. Before embarking on a review of the evidence, it will be of use to set out several of the general legalprinciples that govern the rather technical field of boundary determination. Various legal principles govern deed

interpretation andboundary demarcation when the court is required to resolve boundaries. The general rules of evidence apply to boundary disputes, whichare typically heavily concerned with documentary evidence of title. In deed

interpretation, the question is not the grantor’s subjectiveintent. Rather, the court is concerned with the meaning of the words used in the deed. That is to say, the question is “what is theexpressed intention of the grantor?”: Knock v. Fouillard, 2007 NSCA 27, at para. 27.

If the terms of the conveyance are clear, extrinsicevidence is not admissible: Anne Warner Le Forest, Anger and Honsberger’s Law of Real Property, 3d edn. (Aurora, Ont: Canada LawBook, 2010) at §18:30:30. [13] When the words of a deed are not ambiguous, either in themselves or when applied to the land in question, the intention of theoriginal grantor is to be taken from the words of the description in the deed. No further rules of

interpretation are required: Herbst v.Seaboyer, (1994) 1994 NSCA 210 , 137 N.S.R. (2d) 5 (C.A.), at para. 15; McCormick v. MacDonald, 2009 NSCA 12, at para73. A latent ambiguity occurs when the words of a document on their face do not admit a different possible meaning, but surroundingcircumstances show that two or more different meanings are possible. A party may demonstrate that a latent ambiguity exists, andattempt to resolve it, by adducing extrinsic evidence, including evidence of subjective intention. A patent ambiguity, by contrast, is“apparent from the face of the document”: Taylor v. City Sand and Gravel Ltd., 2010 NLCA 22, at para. 21; Geoff R. Hall, CanadianContractual

Interpretation Law, 2d edn. (Toronto: Lexis Nexis Butterworths, 2012) at §2.8.5. [14] The rules for ascertaining the intention of a grantor in the event of ambiguity were set out in McPherson v. Cameron (1868), 7N.S.R. 208, [1868] N.S.J. No. 2 (S.C.). Dodd J. said the general rule “is to give most effect to those things about which men are leastliable to mistake” (para. 5).

In applying this principle, the elements of the description are “marshalled” in the following order: “First, thehighest regard had to natural boundaries; Secondly, to lines actually run and corners actually marked at the time of the grant; Thirdly, ifthe 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” (para. 5). [15] In Kolstee v.

Metlin, 2002 NSCA 81, the Court of Appeal confirmed that cases such as MacPherson, supra, Saueracker v. Snow(1974), (NS SC), 14 N.S.R. (2d) 607 (T.D.), and Humphreys v. Pollock, (NB CA), [1953] 3 D.L.R.730 (N.B.S.C.A.D.), aff’d (SCC), [1954] 4 D.L.R. 721 (S.C.C.), “correctly set out the general principles to be appliedin 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 gatheredfrom the words of the document. If there is an ambiguity, the common sense rules as quoted by the trial judge from McPherson ... aregenerally to be applied.

When courses and distances clash preference to one, rather than the other, will depend on the circumstances”(para. 66). [16] More recently, in Nicholson v. Halliday (2005), (ON CA), 248 D.L.R. (4th) 483, [2005] O.J. No. 57, the OntarioCourt of Appeal set out the surveyors’ hierarchy of evidence: (1) natural boundaries; (2) original monuments; (3) fences or possessionthat can reasonably be related back to the time of the original survey; and (4) measurements (as shown on the plan or as stated in themetes and bounds description). See also Robichaud v. Ellis, 2011 NSSC 86, at para. 25.

The Court of Appeal recently considered thishierarchy in Podgorski v. Cook, 2013 NSCA 47, declining to decide whether it applies in Nova Scotia. The court held that the“application of the ‘hierarchy of evidence’ and related survey principles would initially be a matter for the expertise and opinion of thesurveyors in question. So, for example, whether monuments were ‘original’ or whether ‘fences or possession’ can be reasonably relatedback to the ‘time of original survey’ would be matters of expert opinion for a surveyor” (para. 20).

[17] In re-establishing a line, a surveyor must “consider the best evidence available and re-establish the boundary on the ground in thelocation where it was first established, and not where it was necessarily described, either in the deed or on a plan. The boundary is the re-establishment on the ground of the original running of the line and this re-establishment of the boundary constitutes the deed line”:Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303, 1989 CarswellOnt 2417 (Ont. Dist. Ct.) at para. 11. Stortini J. stated in Traynorv. Hilderley, [1997] O. J. No. 4839 (Ont. Ct.

J. (Gen Div)), that if “original monumentation is found and is undisturbed as to location, itmust be accepted, erroneous as may have been the original survey” (para. 14). If there is no evidence “of either the original monumentsor original line, then the surveyor must refer to the measurements as contained in the deed or on the plan. This approach may, of course,be affected by possessory title.

If no other method of establishing the boundary in question is available, the court must fix the boundarywith the assistance of deed measurements and the law of possessory title” (para. 15). [18] In some instances I will make reference to notes on surveyors’ plans. I note that where a deed refers to a plan in the description,notes on that plan are considered to be incorporated into the deed: Fullerton v. Brundige (1887), 20 N.S.R. 182, 1887 CarswellNS 43(S.C. in banco) at para. 5; K. & W. Enterprises Ltd. v.

Smith (1971), (NS SC), 7 N.S.R. (2d) 411, 1971 CarswellNS162 (S.C.T.D.) at para. 43. [19] This does not exhaust the scope of the legal principles governing boundary determination. When other points of law are relevant toa particular issue, they will be addressed in that context. [20] Credibility. This proceeding also raises questions of credibility. The Supreme Court of Canada considered the problem ofcredibility assessment in R. v. R.E.M., 2008 SCC 51.

McLachlin C.J.C. repeated the observation of Bastarache and Abella JJ. in R. v.Gagnon, 2006 SCC 17, that “[a]ssessing credibility is not a science” and that it may be difficult for a trial judge “to articulate withprecision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile thevarious versions of events” (Gagnon at para. 20, cited in R.E.M. at para. 28).

The Chief Justice went on to say, at para. 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. [21] The assessment of the evidence of an interested witness was considered in Faryna v. Chorny, (BC CA), [1952] 2D.L.R. 354, [1951] B.C.J. No. 152 (B.C.C.A.), where O’Halloran J. said, for the majority, at para. 11: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to aconclusion on consideration of only half the problem.

In truth it may easily be self-direction of a dangerous kind. [22] Such factors as inconsistencies and weakness in the evidence, interest in the outcome, motive to concoct, internal consistency, andadmissions against interest are objective considerations going to credibility assessment, along with the common sense of the trier of fact:see, e.g. R. v. R.H., 2013 SCC 22. It is open to a trier of fact to “believe a witness's testimony in whole, in part, or not at all”: R. v. D.R., (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J. No. 8, at para. 93.

I have taken these principles into account in reviewingthe viva voce and documentary evidence in conjunction with counsel’s submissions and the relevant law. EVIDENCE [23] Surveys. In this case, some seven survey plans of the plaintiff Goulden’s property, or parts thereof, were completed between 1982and 2008. Three were done at Goulden’s request; one by an adjacent landowner to the west (Mahaney); one for the Municipality of

Shelburne to address a petition by Brian Ricky Rapp under the Private Ways Act ; one for a complaint to the Nova Scotia Land Surveyors Association against surveyor David Thorne; and one for the VanBuskirks. The plans and their dates are as follows: March 3, 1983, D. S. Thorne, N.S.L.S. No. 423, Mahaney and Wildman Property Survey Plan No. 1546DT82; April 4, 1983, D.S. Thorne N.S.L.S. No. 423, Goulden Property Survey Plan No. 1592DT83; November 18, 1996, R.C. Dearman N.S.L.S. No. 317, Goulden Property Survey Plan No.4133596; September 16, 1999, Everett B. Hall N.S.L.S. No. 323, Goulden Property Survey Plan No.

S7409-99; June 28, 2002, Lester Berrigan N.S.L.S. No. 409, Concept Plan No. 8746 re ownership of existing gravel road from public Highway 404; November 13, 2007, Lester Berrigan N.S.L.S. 409, Goulden Property Survey Plan No. 11,194 provided for quieting action; and February 24, 2008, Everett B. Hall N.S.L.S. No. 323, VanBurskirk Property Survey Plan No. S8503-08. [ 24 ] Of the surveyors, Thorne is deceased, Dearman did not testify, Berrigan was called as an expert by Goulden, and Hall was called as an expert by the VanBuskirks and relied upon by the Kimbrells as well.

Both Berrigan and Hall filed reports concerning the northern boundary, and relied upon their previous work with the Goulden property, i.e. Berrigan in 2002 for the Shelburne Municipality and Hall in 1999 for the Land Surveyors Association in relation to Goulden’s complaint against Thorne. [ 25 ] The Gerald DeMings property. By way of tax deed dated May 2, 1936, the Municipality of Shelburne conveyed 20 acres of land – shaped like a boat with a keel facing north – at Carleton Village to George Egbert Hamilton. The land was to the west of the Shore Road (Highway 404).

The second of three lots is described as “Bounded on the north by the Highway, from the “Big Hill” so called, to the Gunning Cove School; On the east by the Highway, lands of the Estate of Adam Hamilton, and lands of Lester Perry; On the south by lands of George McKenney and; On the west by lands of Herbert Goulden and containing in the whole about 20 acres more or less.” [ 26 ] By deed dated May 8, 1964 , Preston Lamont Hamilton, George Egbert Hamilton’s son, conveyed the northern end of the land (the unsurveyed “bow” of the boat) to Gerald DeMings. Mr. DeMings had occupied a portion of the land since 1962.

He had built a house beside the old hauling road – originally an ox trail – that extended from Highway 404 westerly across the property. The hauling road crossed the lands of adjacent owners (or future owners) Ida and Lawrence Mahaney, Norine and Larry Wildman, and the Rapps. A gravel pit was located on the Rapp property. [ 27 ] Only Gerald DeMings’s deed description defines the northern boundary line of the land in dispute.

It does so by reference to Arnold DeMings’ lands, as follows: Beginning at a point on the west side of the Shore Road at said Carleton Village where land of the Grantor herein intersects with land of Ida Mahaney and the said Shore Road, this particular point in the said Shore Road being known as “Clay Hole”; Thence running in a southerly direction along the said western side of the Shore Road until it reaches the Northerly boundary line of lands of Arnold Demings; Thence in a Westerly direction along the North side line of lands of Arnold DeMings and Lamont Hamilton until it reaches the Easterly boundary line of Ida Mahaney; Thence in a Northeasterly direction along the Easterly boundary line of lands of Ida Mahaney to the Shore Road and the place of beginning. [ 28 ] Prior to moving away from the area in 1965, Gerald DeMings spoke to the Department of Transportation about relocating the old road from his doorstep.

He complained that the gravel trucks were dangerous for his children. Subsequently, in 1967, new owners complained of the dust. In 1970 or 1971, the Department of Highways relocated Highway 404 to its present location. Aerial photos indicate less use of the

section of the old road that passed the house in 1968. By 1971, however, there was intense use of the portion of the road relocated to the south, and the

section of the old road connected to it (the pit road). [ 29 ] Forrester (“Fot”) Williams obtained the lands of Gerald DeMings by tax deed from the Shelburne Municipality, dated June 26, 1968, after acquiring it at a tax sale in 1967. He conveyed the property to Dieter C. Oswald by deed dated April 7, 1983. Oswald, in turn, conveyed it, with some lots excepted, to Joseph and Louanne MacDonald on October 31, 1988. The MacDonalds divided off the majority of the area in dispute, the lands to the south of the house, to Clifford and Ardith VanBuskirk in February 2005. [ 30 ] The plaintiff’s property.

On February 24, 1983, shortly before Dieter Oswald purchased the Gerald DeMings property, Goulden purchased what was intended to be all of the remaining land held by the Hamiltons under the 1936 tax deed. The deed excepted out Gerald DeMings’s property to the north. It was later determined that the deed was deficient as to the parties’ intentions. A confirmation deed was required so that the entire homestead – not just five to six acres, excepting the part on the north conveyed to Gerald DeMings – would be conveyed to Goulden. The confirmation deed was executed on June 8, 1999.

Thus, this deficiency existed when Thorne surveyed Goulden's lands in 1983 and established his northern line. He placed the line between Goulden and Williams north of the

irregular homestead fence line and 139 feet south of a found survey marker on what he noted to be the Williams lands’ western line. [ 31 ] Mr. Goulden was 52 years old at the time of trial. He testified that he grew up a mile from his current property, which he obtained from his grandmother's friend Ethel Bower in February 1983. Ethel Bower was a daughter of George Egbert Hamilton and a sister of Preston Lamont Hamilton. Goulden said Preston Hamilton lived in the house in the 1960s, when he was growing up. He died in the early 1980s.

The area in dispute, including the Goulden, VanBuskirk and MacDonald properties, is derived from grants out of the Hamilton lands. [ 32 ] After acquiring the property, Goulden retained David Thorne to survey it. Thorne was surveying in the area for Ida Mahaney and her daughter, Norine Wildman, whose property (subsequently the Kimbrell property) was to Goulden’s west. Thorne produced a plan of the Mahaney property dated March 3, 1983, and one for Goulden dated April 4, which Goulden (while stressing that it was not the plan Thorne showed him) confirmed he had seen.

This plan placed Mahaney to his west, Roy and Carol Blades to the east, Susan Hamilton to the east, Arnold Demings to the east, and Rodney Williams to the north. There was no line between the Hamilton and Demings properties. [ 33 ] Before retaining Thorne, Goulden said, he spoke with his neighbours about the boundaries. He reported these discussions to Thorne, who, he claimed, did not pay any attention to them. He blamed Thorne for the subsequent boundary-line disputes. Goulden said Ethel Bower, his predecessor in title, had only a vague idea of the boundaries.

He said two neighbours – “Fot” Williams and Arnold DeMings – showed him where the boundary line was, and he discussed it with others, including Mahaney and Wildman. Referring to the plan, he said, Arnold DeMings had referred to a fence on his northern line and ledge rock on the road, and pointed out where the fence was, and an adjacent driveway.

He said the fence Arnold DeMings pointed out was on the eastern side of the highway, “right through the corner” and he saw “steel growing in the trees - could be nails or anything but there was something indicating it was there.” He said Arnold DeMings showed him the approximate area where he believed his line lay to the eastern side of the highway, and referred to Loran Blades’s driveway and house being there now. [ 34 ] Goulden said Arnold DeMings showed him “where it came to a corner on this ledge rock” which was “on the eastern side” of Highway 404.

When asked by his counsel again, “So he only showed you the eastern side?”, he said, “yes, he just showed me what he owns.” Asked again whether Arnold DeMings showed him anything on the western side of the road, he testified (while pointing to the southeast corner at Hwy 404) that “the only thing he showed me was down here where Hamilton keeps a fence.” Goulden marked this ledge rock on the 1999 Hall plan. VanBuskirk placed it further south. Goulden described it as being as wide as the courtroom, with a visible depth of six to eight feet.

This was on the eastern side of Highway 404, across from the disputed area on the western side. Goulden said Arnold DeMings indicated that he knew his northern line was above the ledge rock, and that he always kept the fence up on that line. [ 35 ] Goulden said Arnold DeMings produced the unrecorded 1898 McKay survey plan when he confronted DeMings about the line. He said this plan was the basis for DeMings’s objection to Thorne’s placement of Goulden's northern corner, on the western side of the highway. He said DeMings accused him of stealing his land.

Goulden said he gave copies of the McKay plan to his lawyer, and to the surveyors Robert Dearman, Robert Hunt and Lester Berrigan. He met with Gary Rapp, Thorne, two workers, Fot Williams and Arnold DeMings, in an attempt to rectify the situation and “get it over with.” He said they all wanted Thorne “out of there.” Williams and Arnold DeMings, he said, were “on Thorne’s back.” [ 36 ] When Thorne completed his April 1983 plan, Goulden said, he was not happy with it, refused to pay, and later made a complaint to the Nova Scotia Land Surveyors Association.

Goulden believed that the only correct line was his fenced southern line. He did not accept Thorne’s northern line, given what Arnold DeMings and Williams had shown him, and in view of the McKay plan. Goulden later retained Robert Dearman, who prepared a survey plan of his property dated November 18, 1996. He said he did not know Hall was surveying his land until he discovered a recorded survey plan by Hall, dated September 16, 1999, while dealing with the municipality over a petition by Brian Rapp for a right-of-way.

Goulden testified that he first met Hall at discovery concerning his complaint against Thorne; Hall purchased Thorne’s business. In these circumstances, Goulden questions the ethics of Hall reviewing Thorne’s work. [ 37 ] Goulden said Hall came to his home around February 1998 to inquire about Goulden's understanding of the boundaries. He said he gave Hall no information. He said he next saw Hall at a municipal meeting about the Rapps' right-of-way petition. Goulden said Hall never told him who hired him to survey his land.

He did provide Hall with an old grant map that was in his possession. [ 38 ] When asked to describe the road over the disputed land to Mahaney’s property as it was in February 1983, Goulden compared it to a courtroom exhibit table, about four feet wide. He indicated that it would accommodate a three-wheeler trailer, and that it would be difficult to accommodate a half-ton truck. All-terrain vehicles sometimes travelled the road. He said it ran from the main road in a westerly direction as far as the CN Railway bed. He said it was not kept up. Before he bought the property, he said, he used it twice.

On one of those occasions, around 1982 or 1983, he saw Gary Rapp cutting wood on Wildman’s property. In the mid-1990s he saw people

dumping garbage, and hauling fill beginning in the mid-1990s. [ 39 ] Goulden recalled one occasion early on when VanBuskirk and his father-in-law, Manney Goulden (Ida Mahaney's nephew), were cutting wood and complained about his cattle being loose. Later Goulden said conflicts arose over the use of the road. He said Gary Rapp graded the road, with a grader and backhoe, then gated it with a steel cable and lock between two oak trees, just beyond Goulden's and Mahaney's property line. Goulden identified the location of the gate on Hall's 2007 plan. The trees were later cut down and then replaced with railway ties.

Goulden placed this event prior to lawyer Celia Melanson's 1998 letters (discussed below). Goulden said that the ungraded road had a bed sufficient for vehicles, and that after grading it was level, smooth and rock-free. After that, he said, there was unwanted and uncontrolled traffic, as people used it as a short cut, a dump, or a place to drink or hunt. He said there were all-terrain vehicles driving it at all hours.

He said Rapp graded it more than once, and that he was constantly trying to stop this and keep him out. [ 40 ] Goulden said that prior to the grading, he was not aware of Gary Rapp's truck carrying fill out. He said the Rapps were hauling fill from the CNR pit most of the time. As to the Rapps cutting wood and hauling it out over the disputed right-of-way, he said there were several other roads – possibly as many as seven – that they could have used, such as a back road through the CN pit to the Rapps' homestead. He also said a truck could drive down the CN rail bed.

He said he had met VanBuskirk and Rapp on that road in their trucks, carrying produce. [ 41 ] Conflict over the pit road. The dispute over ownership and use of the road began in the late 1990s. Prior to that time, Goulden said, he had heard gossip to the effect that he was trying to take land. Over the years, there were a few incidents and exchanges where he believed other parties were too close to his boundary. The evidence is such that it is difficult to ascertain a sequence of the events and incidents described in relation to the road to the pit.

By early 1998, after Dearman’s 1996 survey, Goulden blocked the road to the east of a locked steel cable gate installed earlier by Gary Rapp on Mahaney’s property after Rapp had graded and upgraded the pit road. Goulden said he was concerned about a significant increase in public use of the road after its grading and widening. He had asked for, but not received, a key. He told Gary Rapp that he did not want him crossing his property, and that Ida Mahaney and Norine Wildman (“the women”) did not want him crossing their land. [ 42 ] Gary Rapp did not take issue with the exchange as described by Goulden .

He told Goulden he intended to haul fill from the pit. Rapp said the maintenance and upgrading of the road to the pit occurred when necessary, every two or three years. He did not recall Goulden asking for a key to the gate. Over the years the road had been gated, but not always locked. Goulden recalled a gate from when he was a child, Gary Rapp recalled one in 1975 and Brian Ricky Rapp remembered a gate in the late 1980s. [ 43 ] Further context is provided through an exchange of letters between counsel.

On March 12, 1998, the VanBuskirks, acting as authorized agents for Ida Mahaney, Norine Wildman, and Brian and Gary Rapp, offered Goulden $500.00 for a deeded right-of-way on the land Goulden had recently had surveyed, in order to resolve his cutting off of the allegedly 40-year-old right-of-way from Highway 404 to their lands. The offer was by letter from counsel, Celia Melanson. Goulden said he interpreted the letter as an offer of $500.00 in exchange for a deeded right-of-way. He said he spoke with Ms. Mahaney and Ms. Wildman, who were distant cousins of his, and told Ms.

Melanson he did not want VanBuskirk or Rapp pressing his wife, from whom he had recently separated, about the issue. [ 44 ] By further correspondence on May 1, 1998, Ms. Melanson asked Goulden to remove the fence he had erected on property allegedly owned by Ida and Lawrence Mahaney. She stated that access was being denied to landowners and their assignees to the rear of the property over the existing road. She also pointed out that there was no certainty that the road was on Goulden’s land.

She referred to Thorne’s 1983 survey plan as establishing that the road in fact crossed lands of Joseph MacDonald, and advised Goulden that the landowners had MacDonald’s consent to use the right-of-way. No resolution was reached. Goulden denied erecting any fence, and denied knowing what fence she meant. He said he had put a fence on the survey line between his land and the Mahaneys’, in order to keep cattle contained and to deter people from entering his land. [ 45 ] By letter dated August 25, 1998, Donald Harding, who represented Norine Wildman (but not Ida Mahaney) indicated that VanBuskirk’s status as Ms.

Wildman’s agent was being retracted. He added that Ms. Wildman wanted no further cutting or trespassing on her lands. He requested that she be provided with any survey work relating to her land and any information with respect to rights-of- way crossing her land. [ 46 ] By letter dated August 26, 1998, Ms. Melanson advised Mr. Harding that the VanBuskirks would deal directly with Norine Wildman. According to Mr.

VanBuskirk that discussion resulted in agreement to pay for a quantity of cut wood, with permission to remove cut wood not yet hauled out, and no further cutting to be done on the Mahaney/Wildman land until 2000. The Kimbrells subsequently purchased the land and gave him permission to cut. As reflected in Mr. VanBuskirk’s undated letter to Donald Harding, written after September 1998, and after the cut wood was hauled out, it proved a difficult task due to problems using the road.

Goulden had obtained Norine Wildman’s permission to enter onto the land, but was also acting in some “caregiver” capacity and was involving the police in matters that he believed were already resolved directly with Norine Wildman.

[ 47 ] The Rapp Private Ways Act petition. In January 1999, Brian Ricky Rapp brought a petition under the Private Ways Act , R.S.N.S. 1989, c. 358, for a 25-foot right-of-way over the lands in dispute and the Mahaney/Wildman land. A memorandum filed by Ms. Melanson with the petition provided a history of the pit road right-of-way. It indicated that there did not appear to have been any written grant of a right-of-way, or written agreement, dealing with the pit road.

Both Melda Langille (Arnold DeMings’s daughter) and the MacDonalds verbally confirmed their agreement to a right-of-way over lands they believed they owned. Goulden did not agree. The Wildmans did not consent to a right-of-way or agree to its existence. There was no reference to any position being taken by Ida Mahaney. [ 48 ] At trial, Goulden adopted statements he made in a letter to the commissioners and Shelburne municipal council, dated October 4, 2002. He referred to Gary Rapp’s activity in 1998.

He said Gary Rapp and James Kimbrell had admitted in court on September 11, 2002, that there were at least three other roads in addition to the disputed right-of-way. He said the Rapps had other means of vehicle access, such as along the railway tracks. He said he had seen them take gravel out by these other means. [ 49 ] After receiving a legal opinion that the Municipality had no authority to make a determination under the Private Ways Act , the Rapp application was dismissed by council in late December 2002. [ 50 ] Use of the alleged right-of-way.

Goulden described the use, and, in his view, abuse of the disputed right-of-way. He complained of blockage by vehicles, garbage dumping, and blocking by cable. He said his truck was blocked in by a pile of wood for three months at VanBuskirk's direction (with Kimbrell also present) in 1999 or 2000. He said he was blocked in several times, including blocking in of lobster traps that he was storing on the road. Goulden described the area in dispute as a "war zone" beginning around March 1998.

In May 2003 he took steps to install a camera at the intersection of his eastern line with the south side of the disputed right-of-way. [ 51 ] Goulden stated that he believed in 2003 that the property between the highway and his eastern line belonged to Melda Langille, Arnold DeMings's daughter, before the VanBuskirks bought it from her. He stated that in 1983 he knew he owned the property containing the road, based on interactions with Arnold DeMings and Fot Williams. He was content with that; but, he did not have a survey to match it.

The Thorne survey did not take his line that far north. [ 52 ] Between 1983 and early 1998, Goulden said, he was only in the disputed area a couple of times. He only began to cut wood in 2000. He said “Fot” Williams and Joseph MacDonald, successive owners to the north, also did not use the disputed lands. He said it was a rocky property, with holes and rocks in the road, mostly used by people on foot and bikes. Since he acquired the property, Goulden said, to his knowledge the Department of Transportation had not trucked fill out of the area. [ 53 ] Evidence of Gerald DeMings.

In May 1964 Gerald DeMings purchased 20 acres from Lamont Hamilton, George Egbert Hamilton's son. This parcel included the disputed area. This was the only conveyance out of Hamilton's 1936 tax deed until Goulden received the remainder in 1983 and 1999. Mr. DeMings was one of the few lay witnesses not involved in the action, and the only witness with direct knowledge of the deeds and boundaries of the disputed lands. His evidence included two statutory declarations, dated January 12, 1997 and February 26, 2003. [ 54 ] Gerald DeMings lived in Carlton Village for 27 years.

His father's home on Highway 404 was almost across the road from Lamont Hamilton's, now Goulden's, property, down the road from the parcel that Lamont ("Monty") Hamilton sold him in 1964. He had built a house on this location some two years earlier, on an area belonging to Hamilton that he described as "up the road, past the old house and past the big rock." His driveway access from Highway 404 was the old road. He said the road was active with Department of Transportation gravel trucks. After he squatted on the land for two years, he testified, Mr. Hamilton agreed to sell it to him.

They walked the area and measured it off. According to Mr. DeMings, his southern line met Highway 404 a "good 100 yards" to the south of his home. Mr. DeMings located this point on Hall's plan. The line which went "slash ways" up to Ida Mahaney's land was not blazed. He recalled a blaze being put on the spruce tree on Mahaney's line. According to "Monty," no one owned any land between his land and Highway 404.

No survey work was conducted. [ 55 ] According to Gerald DeMings, the trucks travelling past his doorstep, and concern for his children's safety, led him to ask the Department of Transportation to re-route the road running past his home. He described a discussion where, besides himself, Clarence Deinstadat on behalf of the Department of Transportation, Bernard Rapp (Gary and Ricky Rapps' father), and Lamont Hamilton were present for this discussion. He said Arnold DeMings was not present.

In an earlier affidavit, he had made reference to Arnold DeMings being present for a meeting with the Department, along with Bernard Rapp and himself. He stated that at that time he didn't know they were talking about another road. Gerald DeMings moved away from the area in 1965. When he came back to visit, he said, the relocated

new road

section was on his land, which now belonged to someone else. [ 56 ] Gerald DeMings drew a line indicating his recollection of the location of his southern line on a survey plan provided by Hall. In February 2003 he visited the property with Hall. They drove down to Church Road and then drove back up. He testified that he showed Hall where he thought the line was located and showed him the spot that he and “Monty” had decided upon. He found a pin on the side of the road after locating the spot. Hall showed him the northern Dearman line, which was south of the location of his former house.

In a declaration of the same date, he expressed his disagreement with that line, stating that it should be located further south, some 150 feet to the south of the new road, and that the northern boundary of Arnold DeMings' land was always considered to be located on the east side of the highway, directly opposite and to the east of the survey marker set by Thorne in 1983, about 150 feet north of a very large rock or boulder located on the west side of the road.

What was always accepted and used as the common boundary between himself and Lamont Hamilton is reflected on Hall's 1999 survey plan as BY-AX. [ 57 ] The Berrigan and Hall plans. In order to understand the background, it is necessary to consider Berrigan’s survey of Goulden’s property, dated November 13, 2007, and Hall’s survey of the VanBuskirks’, dated February 24, 2008. As an aid to comprehension, a portion of the Hall plan is attached as

Schedule A (the plan is reproduced on an East-West heading, and so must be turned sideways; for further clarity Highway 404 runs north-south.) The reproduction cannot convey the particular details of the competing surveys, but does give a visual sense of the lay of the disputed lands, which principally lie along the western side of the highway. The alleged Pit Road right-of-way can be seen branching off the highway to the west, with the “old road”

section further north until it meets the new relocated

section at the fork and continues on as it always has to the west. Both plans show the Kimbrell lands (formerly Ida Mahaney and Norine Wildman) to the west of the area that is the subject of the Quieting Titles Act action. The Kimbrells own a second lot to the west of the property that borders on Goulden’s property. The Rapps’ lands are west of the Kimbrells’ western lot. [ 58 ] Lot 1A has been referenced before.

The lands designated as Parcel A and the portion of Lot 1 to the north of Hall’s survey line, which extends from point BY on the west side of Highway 404, northwesterly on an angle to point AX on the disputed western Thorne line, are claimed by the VanBuskirks. As such, the VanBuskirks claim Hall’s BY-AX line as their southern boundary with Goulden. Goulden, however, disputes the VanBuskirk claim to a line so far south. He relies on Berrigan’s plan, which shows his northern line further north than Hall’s BY-AX.

Berrigan’s line runs from point A, some 20 feet from the west side of Highway 404, westerly in a straight line some forty feet south of MacDonald’s home, until it meets the disputed western Dearman line at point B. Berrigan’s northern line is between 20 and 25 feet north of that identified by Dearman for Goulden in 1996. [ 59 ] Each of Hall’s plans (1999 and 2008) shows the northern line Thorne ran for Goulden in 1983, extending westerly at a slight angle, south of Hall’s angled BY-AX northern line.

It started from Hall’s point BY, on Highway 404, which was a found survey marker set by Thorne on Goulden’s1983 northern line (as he found it). Hall’s plans indicate that this line was “surveyed in 1983 by mutual agreement.” Also shown as intersecting with point BY from Goulden’s undisputed southeast corner is the eastern line surveyed by Thorne in 1983. This line was to the east of the Dearman/Berrigan eastern line, noted as being an “extension of the most northernly portion of old fence” found on the ground by Thorne along sections of the eastern line.

The most northerly portion of the old fence referred to was on lands now owned by Goulden to the north of his driveway and formerly owned by Adam Hamilton. [ 60 ] Some 364 feet to the south of Thorne’s 1983 northern line, at a survey marker found by Thorne, Hall’s plans show the western end of the northern boundary of the five-or-six-acre homestead property of George Egbert Hamilton. It was demarcated east to west by an old irregular wire fence found by Hall in 1999, as per the limitations of Goulden’s 1983 deed.

The 1999 confirmation deed from Hamilton’s daughter, Ethel Bower, to Goulden confirmed that there was no unknown land, and that Goulden owned all of the land south of the northern line as described by the Gerald DeMings/ MacDonald deed description. [ 61 ] Thus, the line set by Thorne in 1983 as Goulden’s northern line is south of Hall’s BY-AX northern line and Berrigan’s A-B northern line, and north of Hall’s 1999 homestead line, which no one claims the true northern line. [ 62 ] Hall’s plans show the line that Gerald DeMings identified as the southern boundary of his former property as running near the BY- AX line, commencing some 75 feet to the north of point BY, about 25 feet from the west side of Highway 404 (as it was prior to its 1970 relocation.) This line is also in the vicinity of the “Road to Pit,” being the disputed right-of-way.

Hall shows the Gerald DeMings southern line running northwest on a shallow angle and crossing the BY-AX line on the north side of the Road to Pit, at the point where it meets Thorne’s disputed western line some 30 feet north of point AX. This line is noted as the “line as indicated by Gerald DeMings on a previous plan – approximate location only (not surveyed.)” [ 63 ] Hall’s plans show the VanBuskirks’ Lot 1 (part of Lot 1A) between the western side of Highway 404 and the eastern boundary claimed by Goulden in the quieting.

As previously noted, the VanBuskirks acknowledge that the portion of Lot 1 south of the Hall BY- AX northern line as shown on the plan is actually Goulden’s land, as a result of a 1936 tax deed to Goulden’s predecessor in title, George Egbert Hamilton. In the circumstances, the VanBuskirks argue, Goulden should be seeking to quiet all of Lot 1 south of their

claimed northern line (the BY-AX line), making the west side of Highway 404 Goulden’s eastern boundary. The VanBuskirks acknowledge that they would need to purchase the portion of Lot 1 north of BY-AX, being the apex of the triangular lot, from the MacDonalds, in order to rectify this situation on the property they claim. [ 64 ] Hall’s plans show the lands of Mary Hagar (and subsequently Charles Arthur Hagar) to the south of Goulden’s property, demarcated by a wire fence.

Goulden’s southern line is undisputed. [ 65 ] Other than the pit road that crosses it, the land in dispute in the area of the Goulden northern line is mainly woodland. Around Berrigan’s proposed A-B northern line, there is bush land. Other than a survey marker set by Thorne on Highway 404 in April 1983, there is no physical evidence of blazing, fencing, or demarcation of the two proposed lines between the adjacent properties of Goulden and VanBuskirk/MacDonald. Gerald DeMings referred to a blazed spruce tree at the west end of the southern line that he set with Lamont Hamilton in 1964. The tree was not found.

No survey work was done in 1964. No pin or marker was placed by Hamilton or Gerald DeMings to mark the east end of their common line at the highway. The deed descriptions are meager, providing names of adjacent landowners with cardinal directions, but no measurements or metes. [ 66 ] On the western line of Goulden’s property the lines proposed by Berrigan and Dearman on behalf of Goulden (the Dearman line) and by Thorne and Hall on behalf of the Kimbrells (the Thorne line) progressively diverge by between ten and fifteen feet as they run north. The Dearman line lies further west.

Both proposed lines cross the road to pit in the vicinity of the AX end of the AX-BY line. The Mahaney/Kimbrell side is woodlot, as is the land on each side of the road to pit and north of Goulden’s homestead. [ 67 ] In the course of his March 1983 survey for Mahaney/Wildman (the Kimbrells’ predecessors in title), Thorne surveyed Goulden’s western boundary line, being the common line between them. Goulden takes issue with all of Thorne’s work. Specifically, he challenges the claim that a fence existed on his western boundary in 1983 (as reported by Thorne) or its remnants in 1999 (as reported by Hall).

Goulden said he erected a fence in 1983, to keep animals contained; he claimed he later moved it nearer the line set out by Dearman (and subsequently accepted by Berrigan). The Dearman/Berrigan line (originally established by Dearman in November 1996) extended from a fixed southwest corner where two old existing fence lines intersect, in a northerly direction to the south end of a fence and stone wall, the McKenney fence, on the eastern side of Highway 404. In other words, the Dearman western line crossed the highway in order to extend to the fence and stone wall. [ 68 ] Goulden’s northern line.

In his April 1983 survey of Goulden's property, Thorne placed his northern line some distance to the south of the A-B line proposed later by Berrigan on his 2007 plan, and the BY-AX line proposed later by Hall on his 1999 and 2008 plans, but not as far south as Hall in his 1999 review of Thorne's work.

Goulden's pre-June 1999 confirmation deed left open the possibility of unknown land. [ 69 ] Goulden essentially argues that the lack of ambiguity in Gerald DeMings’s deed, and the acknowledgement by both surveyors that an unrecorded1898 survey plan by Deputy Surveyor James McKay of Arnold DeMings’s land lies on the ground as testified to and shown by Berrigan and duplicated on Hall’s 2008 plan, ends the matter of the location of Goulden’s northern line. As such, it is submitted, little concern need be accorded certain issues raised by the 1970 Highway 404 plan.

Arnold DeMings’s 21-foot north line west of the highway, ending at point A, and Lamont Hamilton’s north line extending from there westerly in a straight line to Mahaney/Kimbrells’ eastern line, would be the northern line of Goulden’s property. The road to the pit, including the new relocated section, is to the south of that line and would therefore cross lands owned by Goulden. [ 70 ] The Defendants submit that Goulden’s northern boundary is defined by reference to Arnold DeMings’s land in Gerald DeMings’s (now VanBuskirk/MacDonald’

s) deed description. They say extrinsic evidence of title history and possession, offered as proof of an ambiguity, shows that Arnold DeMings held neither legal title nor possessory title to lands west of the highway.

The resulting ambiguity, they say, calls for extrinsic evidence, such as that of Gerald DeMings. [ 71 ] Goulden refers to things he says were shown and said to him by the late Arnold DeMings, as well as “Fot” Williams, at the time of the Thorne survey, as well as documents such as the unrecorded 1898 McKay survey plan, which Goulden copied and provided later to the surveyors Dearman, Hunt and Berrigan, as well as the 1970 relocation plan for Highway 404. [ 72 ] Berrigan and Hall agree that Thorne did not opine on the McKay plan which, as referenced on Hall’s 2008 plan and Berrigan’s 2007 plan, created a triangle of land with a square apex to the north on the west side of the highway.

It is referenced as the VanBuskirks’ Lot 1 of Lot 1A. Goulden later bought the land immediately south of the triangle from the Hamiltons. This gave a right-of-way and driveway to the former Hamilton (now Goulden) house to the west. The McKay plan identifies Hamilton as owning land immediately east of the highway. It makes no reference to the piece Goulden purchased to the west of the highway.

[ 73 ] Goulden’s western line. The length of Goulden’s western line is determined by the location of his northern line. The western line is defined in the 1936 Hamilton tax deed, Goulden’s deed, and the 1964 Gerald DeMings/MacDonald deeds. These documents provide only cardinal directions and the identities of adjacent lot owners. Extrinsic evidence to identify persons named is found in the recorded affidavit of Audrey Norine Wildman, which names Herbert Goulden (Ida Mahaney’s father) as the owner of the lands to the west, by way of a 1957 quit-claim deed.

It also indicates that Ida Mahaney was conveyed the lands by Herbert Goulden’s heirs the same year. In 1986 she conveyed the property to herself, her daughter Norine Wildman, and her grandson Lawrence Wildman. Various witnesses identified Ida Mahaney as the owner of the adjacent lands and predecessor to the Kimbrells. [ 74 ] Thorne prolongated Goulden’s western line from the northern end of an old wire fence marked on his survey plan, using an “x-x-x” marking. The plan shows the fence on the western line of Goulden’s neighbour to the south, Hagar.

Thorne ran Goulden’s western line northwards from the end of that fence, creating the “Thorne extension” for a total distance of 1,340 feet. Thorne went on to prolongate the fence line from the north end, straight and on similar bearings to a point on the west side of Highway 404. This is the point referred to as the “clay hole” in Gerald DeMings’s deed.

Having found remnants of the old fence in 1999, Hall relied on Thorne's line, while acknowledging a loss of some old fencing from the Thorne extension. [ 75 ] On his 2002 concept plan and 2008 survey plan, Berrigan started his western survey line from Goulden’s southwest corner at the intersection of the two existing boundary fence lines. He found no old fencing, only a fence to contain cattle. Like Dearman in 1996, he projected Goulden’s western line from that starting point, running northerly to the west of the Thorne line at a progressive width difference of up to 15 feet.

He ended it at a point at the south end of a fence and stone wall on the northeast side of the highway, offset by the road and some 70 feet or more west of Thorne’s end point. [ 76 ] Goulden made several comments respecting the presence of fencing on the western line in 1983. He said he understood that the “x’s” marked on the plan indicated fencing. He said he assumed that Thorne had found fencing in the area, but that he himself could not locate any fencing on the area where the x’s lay on the plan. He said he believed that Thorne extended it, as there were fences in existence along there.

He indicated on the plan that Thorne found fencing by Hagar’s line because it was still there, but said there was none that he could find, other than that which he had put up himself to keep his children’s pony (and later the cattle) from straying. [ 77 ] With respect to fencing on the 1996 Dearman line, Goulden said that years later he put a fence on a survey line adjacent to the Thorne line or the Dearman line, or between them. As for removing fence from the Thorne line, he said there had only ever been one fence since he arrived, and he put it there.

He said he “may have repaired fences but I never removed the fence, it was always on the survey line.” He said it probably started on the Thorne line when he did the cut-through, but was eventually adjacent to the Dearman line. He said he did not remove the fence, nor did he remove any remnants of an old fence in the area. [ 78 ] In contrast, Clifford VanBuskirk attested to the presence of old fencing in the area of the Thorne line marked by x’s on the plan as far back as 1971, when he began going onto the Mahaney property with his future father-in-law.

Ricky Rapp corroborated Goulden’s testimony to a degree, but attested to pieces of old fence being stuck in the trees when Goulden was relocating the fence he had erected on the Thorne line to the new line Dearman had cut. Similarly, in his 1999 survey, Hall, unlike Berrigan two years later, found remnants of old fencing that extended Hagar’s existing old fence line northerly along Goulden’s boundary (the Thorne extension) for some 340 feet less than Thorne. [ 79 ] Within five weeks of Goulden’s purchase, Dieter Oswald bought the former Gerald DeMings land from Forrester Williams by deed dated April 7, 1983.

This was also within days of Thorne completing his survey of Goulden’s property. Mr. Oswald said the real estate agent showed him lines and pins on the road frontage, although they did not walk the back line. His southern line was the only one blazed out. The land extended out to the main road, with a survey marker in the ditch at the road. He identified the road to the gravel pit as being located on the land he owned. Mr. Oswald said he knew Forrester Williams – “Fot” – who had hauled wood for him. He said they walked the lines together a few times while cutting wood or to look the area over. [ 80 ] Mr.

Oswald said he had no concerns about the location of his lines. He said that during the five years he owned the property before selling to Joseph MacDonald in 1988, no one ever contested the lines. He assumed that “the survey line was right and that is where it was.” He had no discussion with Thorne about the boundary. Thorne’s services were retained in subdividing his property to the north. By that time Lamont Hamilton was dead. Oswald was content with the survey lines, and relied on the pins. He sold land in accordance with those lines. A piece to the north that he sold to Vincent DeMings was surveyed.

He said he saw no need to survey the home lot. He knew Goulden, but said they never discussed boundaries. [ 81 ] Mr. Oswald said that when he bought the property, the

section of the old road to the north of his house was grown over with alders and only the portion that was a driveway by the house remained. Further along, Fot Williams had kept a pig pen. By that point it was not

identifiable as a road. The relocated new road to the south of the house, however, was in very good condition . It was sandy and cut back, and cars could drive on it. He did not recall any commercial use, but said he and other local residents drove on it with pickup trucks, all- terrain vehicles, and four-wheelers. He said loads of sand were hauled out over it. He did not feel possessive about the pit road, but got annoyed when people used it to dump garbage. He said he had no issues with dust or noise, as trees separated the road from his house.

In his time, there was no contest over the use of the road. [ 82 ] The MacDonalds purchased Gerald DeMings’s former property by deed from Mr. Oswald dated October 31, 1988. A few pieces had been excepted out by Mr. Williams and Mr. Oswald, which are not of concern here. Joseph MacDonald said Mr. Oswald told him, without showing him, that the southern boundary of his surveyed land was towards Goulden’s and that it was “beyond,” meaning that it was south of the wood road that Mr. MacDonald identified as the pit road on the 2008 Hall plan. The old road on the plan was his driveway.

It went from the highway to the edge of his house. In 1988 there was no sign of a road beyond the house. As for renovations or additions to the house, other than adding a pool and deck, he made none. [ 83 ] According to Mr. MacDonald, some five or six months after he moved in Goulden asked him if he would sell or give him the piece of land crossed by the wood road. In return, Goulden would provide him with cut wood from the land. He said Goulden had never previously raised any issue with the boundary between the two properties, but he later raised the issue of the disputed land.

The MacDonalds retained Hall for background research. In February 2005 they sold most of the disputed lands to the VanBuskirks. Mr. MacDonald said he wanted to remove himself from the dispute. He could not afford court action and wanted to be “clean of the mess.” The VanBuskirks paid $1,500.00 for the land, and gave him an oral indemnification respecting court costs. [ 84 ] Mr. MacDonald described the pit road in the 1980s as a dirt road with no side growth, on which vehicles could drive with no problems. He would use it to go hunting. In the 1990s it began to grow in, and boulders were placed across the road.

He said various parties, including the Rapps, were closing the right-of-way over what he believed to be his land. He avoided involvement in the Kimbrell /Goulden law suit. He said he never exercised any control over the egress to the pit road. As far as he was concerned anyone could use it. [ 85 ] Dearman’s 1996 survey. Some 13 years after Thorne’s 1983 survey of Goulden’s property, Dearman surveyed Goulden’s property and prepared a plan dated November 18, 1996. The plan is in evidence, though Dearman did not testify.

He commenced Goulden’s western line by running it from the intersection of two old fence lines at Goulden’s southwest corner, one being the boundary fence line shared with Hagar to the south. This south line was the only fence line Goulden agreed was correctly identified and marked as such by Thorne. The other fence line found by Thorne was the line shared by Hagar with Ida Mahaney and Norine Wildman, whose lands lay to the west. From that commencement point, Dearman extended the line northerly to the west of the Thorne line, with a gradual width differential between the lines of some 12 to 15 feet.

After connecting with Goulden’s northwestern corner, the line projected and ended at the southern end of the McKenny stone wall and fence on the opposite side of Highway 404. As has been noted, Berrigan adopted the Dearman line and Hall adopted the Thorne line. [ 86 ] Dearman relied on the McKay plan, which was provided to him by Goulden. His northern line was some 20 to 25 feet south of where Berrigan later placed the line in 2002.

Berrigan's line projects from point A, some 21 feet to the west of Highway 404, in a westerly direction some 40 feet south of MacDonald's house until it meets the disputed Dearman-Berrigan western line at Berrigan's point B. [ 87 ] Hall’s 1999 survey. Hall purchased Thorne’s survey business in 1997. He became aware of a few complaints with the Nova Scotia Land Surveyors Association, one being a complaint by Goulden respecting Thorne’s work with the boundary lines. Part of the context of Goulden’s complaint was Dearman’s November 1996 survey.

The Association’s insurer asked Hall for a second opinion respecting Goulden’s northern boundary. [ 88 ] In response to the request, Hall produced a survey plan of Goulden’s property, dated September 16, 1999. He referred to Goulden ’s 1983 pre-confirmation deed, which raised issues of

interpretation and unknown land given that it described what Lamont Hamilton classified as a five-to-six-acre homestead property. Hall concluded that the northern boundary of the lands Goulden acquired was the northern boundary that Lamont Hamilton referenced in describing his homestead property: an old irregular wire fence north of Hamilton’s house and south of Thorne’s northern line. This gave Goulden between three-and-a-half and four acres less than the line set by Thorne. Hall’s 1999 plan indicates that Thorne’s northern line was by mutual agreement. Goulden disputes that claim.

Matters were resolved without trial. Thorne’s 1983 survey plan was neither retracted nor modified. Goulden’s 1999 confirmation deed rectified any deed

interpretation issue. [ 89 ] In the course of his research, Hall contacted Gerald DeMings, who swore two affidavits, dated January 12, 1997, and February 26, 2003. At Hall’s request, he also marked on a plain plan his recollection of the location of his southern boundary, as set by himself and Preston Lamont Hamilton to the west of the pre-relocation Highway 404 in 1964, at the time he purchased the land. Hall described this

line as “unsurveyed” on his 1999 plan. Hall also acknowledged Goulden’s lands between the homestead northern line and Gerald DeMings’s unsurveyed southern line, and showed Dearman’s 1996 northern line just south of MacDonald’s dwelling. [ 90 ] Gerald DeMings’s affidavit of February 26, 2003, was sworn the day after he and Hall visited the property on which he had lived starting in 1962, and which he purchased in 1964. He indicated that the Dearman line, running only 60 feet to the south of his former house, was too far north.

He believed that the distance, which he recalled by reference to physical features, was some 300 feet to the south of the house. He built the house only a few yards south of the old woods or gravel pit road that was used as a driveway. There was no road to the pit from the highway south of his house in the 1960s. He recalled seeing the relocated

section of the road on what he believed to have been his property when he returned years later. [ 91 ] Gerald DeMings went on to state his belief that Thorne’s1983 survey marker on the west side of Highway 404 was located at the southwest corner of the lands he acquired from Hamilton. The southern boundary of his lands ran from the survey marker in a northwesterly direction “on a slant” to the east line of Ida Mahaney’s lands, at a blazed fir tree some 30 feet north of the northern side of a long-established

section of the old road crossing Mahaney’s eastern boundary. He showed Arnold DeMings’s northern boundary directly opposite and to the east of Thorne’s 1983 survey marker, and some 150 feet north of a large boulder he associated with the location of Highway 404 and Adam Hamilton’s home. [ 92 ] Berrigan’s 2002 plan. Surveyor Lester Berrigan was retained by the Municipality in connection with the Rapp Private Ways Act petition.

In 2002 he provided a concept plan and a report concerning the location of boundary lines pertaining to the use and ownership of a gravel road leading from Highway 404 to the Kimbrell, Wildman, and Brian Ricky Rapp properties. Berrigan noted ambiguities in Goulden ’s 1983 deed from Bowers. He agreed with Hall that the deed described a five-to-six acre homestead extending north only to the old fence, with Adam Hamilton’s land as its only abutter to the east. This was the deed Thorne used in his survey of Goulden’s land, and in locating Goulden’s northern line to the north of the old fence homestead line.

As such, it was only when Goulden received the 1999 quit-claim deed from Bowers, with her declaration, that the intention of the words was clear and he acquired title to all lands extending north to the southern line of the former Gerald DeMings property. [ 93 ] Berrigan attempted to determine the location of Gerald DeMings’s southern boundary. It was not possible to establish the line between Goulden and MacDonald without a boundary agreement or a court decision. Hall’s 1999 plan describes Thorne’s northern line as being by mutual agreement. Goulden denied this, stating that the owners were angry with Thorne.

Berrigan opined, as per Gerald DeMings’s deed description and McKay plan, his southern boundary follows Arnold DeMings’s northern line a short distance, some 21 feet, west from the highway (being the square apex of the triangular Lot 1) to Arnold’s northwest corner, then continues westerly (possibly in the same direction as Arnold’s northern line), following Lamont Hamilton's north line to Ida Mahaney’s eastern boundary. There was no physical evidence establishing the northern line westerly from Arnold’s northwest corner (Berrigan’s point A).

In such circumstances, according to Berrigan, a surveyor cannot make assumptions as to the directions of the line without a boundary agreement between the adjoining owners. He took the view that the situation was governed by parallel boundaries. He further stated any claim south of point A would be an adverse claim to the lands of Goulden. [ 94 ] The Kimbrell purchase. In November 2000, the Kimbrells purchased Betty Kimbrell’s grandfather’s woodlot on the western side of the highway abutting Goulden and MacDonald’s western boundary.

They also bought the old home on the eastern side of the highway from Mahaney and the Wildmans. They were most concerned with acquiring the house. At the time of the offer, James Kimbrell was aware that there was an issue over the use of the road to the pit in that he knew VanBuskirk had been physically blocked, but he did not fully understand the situation.

They intended to buy the property regardless of any issue with the road. [ 95 ] The deed description did not reserve out the pit road, or any road, for the benefit of adjacent property owners, nor did it reserve a right for the Rapps or anyone else to travel over the property. In 2007 Mr. Kimbrell provided a written right-of-way across the property for the Rapps. When he became owner he was added to the Rapp petition, although it would burden his property, where the pit road extended. The Kimbrells had no independent knowledge about their eastern boundary from observations prior to their purchase of the land.

They support the Thorne line as adopted by Hall. [ 96 ] Various events occurred in the late 1990s and 2000s in relation to the use of, and blocking of, the road. There was a major altercation in the fall of 2001 when Goulden, pointing a shotgun, threatened to shoot anyone moving boulders from the road, using the words “spilling guts.” This incident led to criminal proceedings, and an eventual pardon. There was any number of other events and exchanges. For one, Goulden’s truck was blocked in for three months.

He cut another road along the western boundary in order to access the disputed area near the road to retrieve items on the road. [ 97 ] The VanBuskirks purchase Parcel A. In February 2005, the VanBuskirks purchased Parcel A from MacDonald, adding it to the triangular Lot 1 that he had purchased from Melda Langille to form Lot 1A. Both pieces were purchased in order to have control over the land west of Highway 404, allowing VanBuskirk access to the Kimbrell woodlot to haul wood. Mr. VanBuskirk intended to place

Goulden in a position of trespass if he tried to block access, and himself in a position to carry on the action for ownership of the disputed land and to resolve the right-of-way dispute. Not being an owner prior to 2002, he was not a party to Rapp's petition. He said that since the 1970s, when he dated Manney Goulden's daughter, he spent about two weeks annually helping to cut and haul wood for family members off of his father in laws' aunt's property using the road. [ 98 ] Berrigan’s 2006 survey.

In 2006 Goulden retained Berrigan to survey his property, in order to address the right-of-way and boundary dispute issues. Field work was carried out in February and March 2007, producing a plan dated November 13, 2007. The plan also incorporated research and field work carried out for the Municipality in 2002, ie. Berrigan’s concept plan. GOULDEN’S NORTHERN LINE [ 99 ] The McKay plan. Berrigan relied on the unrecorded plan prepared by James McKay, dated May 7, 1898, for establishing Goulden's northern line.

The only reference to the McKay plan is found in a deed of Robert Munroe (a predecessor in title to Arnold DeMings) dated April 18, 1898. Berrigan’s view was that it conforms with other deed measurements on the ground; with adjoiners in Arnold DeMings' deed; and with the 1964 deed into Gerald DeMings. It also agreed with most aspects of 1970 Department of Transportation relocation plan.

The exception is that where measurements starting at Church Road are taken, Arnold DeMings’s northern line is apparently 70 feet south of where the McKay plan places it. [ 100 ] Berrigan and Hall agreed on where the McKay plan lies on the ground. They also agreed that the McKay plan, as shown outlined in pink on the 2008 Hall plan is accurately placed and displayed. Berrigan’s point A is the northwest corner of the McKay plan, where the northern line extending from Shelburne Harbour intersects with the western line, some 20 feet west of Highway 404.

According to Goulden , the 20-foot extension between the highway and point A, the square apex of VanBuskirk’s triangular Lot 1, is the “northern sideline of lands of Arnold DeMings” described in Preston Hamilton’s 1964 deed to Gerald DeMings.

Using the parallel line approach because of the lack of evidence on the ground, Berrigan opined that Goulden’s northern line, shown as Berrigan’s A-B line, projected from the side of Highway 404 westerly “along the north side line of the lands of Arnold DeMings” for 21 feet to point A, then along the north line of the Lamont Hamilton (now Goulden) lands, in a straight line to point B on the contested western Dearman line.

Berrigan’s A-B line, the northern extension of the McKay line on the west side of the highway, lies about 20 or 25 feet north of Dearman’s 1996 northern survey line. [ 101 ] Predating by a century any deed reference to the 1898 McKay plan, Hall’s research into the parties’ common chain of title, as well that of Arnold DeMings, reveals a latent ambiguity associated with Gerald DeMings’s 1964 deed, which defines Goulden’s northern line and VanBuskirk’s southern line.

I accordingly find such an ambiguity exists. [ 102 ] The Hamiltons (George, then his son Preston) were predecessors in title over lands now owned (or claimed) by Goulden, MacDonald and VanBuskirk. Gerald DeMings’s lot was a 1964 conveyance out of Hamilton’s 20-acre lot, as per Hamilton’s 1936 tax deed. Under his 1983 and 1999 deeds from Hamilton’s daughter, Ethel Eldora Bower, Goulden acquired the remaining Hamilton land.

This incorporated all lands west of Highway 404 and south of the common northern boundary shared with Gerald DeMings’s successors in title: Forrester Williams (1968-1983), Dieter Oswald (1983-1988), Joseph MacDonald (1988-2005), and VanBuskirk.

The deed description originating in the 1964 deed from Preston Hamilton has been cited earlier. [ 103 ] Although the words of the deed appear clear on their face, and do not obviously permit a different meaning, a latent ambiguity arises from the description of the southern boundary line – Goulden’s northern line – as running westerly “along the North sideline of lands of Arnold DeMings and Lamont Hamilton” after reaching “the northerly boundary line of lands of Arnold DeMings” on the “western side of the Shore Road.” The title history indicates, however, that Arnold DeMings did not have paper title to any land west of Highway 404.

He did not acquire any such property from George Egbert Hamilton in 1947. Preston Hamilton made the only non-family conveyance from the 1936 tax deed, to Gerald DeMings in 1964. There were no other non-family conveyances prior to 1983, when Ethel Bower (Preston Hamilton’s successor) made the conveyance to Goulden. [ 104 ] As such, the description as it stands cannot be applied to the land. Arnold DeMings, owning no land on the west side of the highway, was not an abutter.

Further, as Goulden testified, the only evidence on the ground that could relate to what Arnold DeMings might have believed he owned to the west of Highway 404 was a short piece of fence on the property immediately to the south, owned by Adam B. Hamilton and subsequently acquired by Goulden. There was no evidence of occupation of any land west of Highway 404 by Arnold DeMings or his successors. Therefore, he could not have obtained title by prescription.

This is not contested. [ 105 ] In addition to title history prior to 1936, it is relevant that George Egbert Hamilton’s 1936 title was derived from a tax deed, conveyed by the Shelburne municipality. He received three lots. All of the land at issue on the quieting titles action is in the second lot,

which is shaped like a boat with its keel facing north. The second lot is described as follows: Bounded on the north by the Highway, from the “Big Hill” so called, to the Gunning Cove School; On the east by the highway, lands of the Estate of Adam Hamilton, and lands of Lester Perry: On the south by lands of George McKenney and on the west by lands of Herbert Goulden and containing in the hole about 20 acres more or less.

The three above described pieces of land being a part of the lands mentioned and described in a deed from the heirs of Isaac Wilkins, to the Reverend Henry How, dated April 9, 1888 and recorded January 9 th , 1890 in Book 29, Page 329, in the Registry of Deeds at Shelburne, in the Province of Nova Scotia; the same appearing to be the property of the Reverend Henry How by deed dated April 29 th , 1888 and recorded in the Registry of Deeds at Shelburne in Book 29, Page 329. [ 106 ] The 1936 tax deed conveyed to George Egbert Hamilton all of the land west of Highway 404.

The description excludes any land alleged to have been owned by Arnold DeMings to the west of the highway. It makes no reference to lands owned by Arnold DeMings or his predecessor, Abby Dexter. VanBuskirk takes the position that the municipality did not consider Arnold DeMings to own any land west of Highway 404, with the logical inference that he would not have been assessed for any such land. Further, it is submitted, if Arnold DeMings or his predecessors did own land to the west of the highway, title was conveyed to Hamilton in 1936.

A tax deed conveys “an absolute and indefeasible title in fee simple to the land described in the tax deed and is conclusive evidence, with respect to the purchaser and every person claiming through the purchaser, that every requirement for the proper assessment and sale of the land has been met”: Marketable Titles Act , S.N.S. 1995-96, c. 9, s. 6(2). As a result, any title held by Arnold DeMings’s predecessors would have been extinguished by the tax deed.

Obviously, the 1898 McKay survey plan, placing Arnold DeMings land on the west side, does not convey any title. [ 107 ] As for Arnold DeMings’s title, Hall determined that the 1790 deed from Isaac Wilkins to William Burns, and Burns’s 1818 conveyance to Gilbert McKenna, conveyed only the property between the east side of the highway and Shelburne Harbour. As a result McKenna, Arnold DeMings’s predecessor, did not have a deed to any land on the west side of the highway. The title history established Highway 404 as the westernmost boundary of the land belonging to Arnold DeMings.

His northern line could not extend west of the highway. [ 108 ] By contrast with Hall’s investigation of the conveyances of 1790 and

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