MacDonald v. MacCallum, 2021 NSSC 362

SUPREME COURT OF Nova Scotia Citation: MacDonald v. MacCallum , 2021 NSSC 362 Date: 20210915 Docket: Amh. No. 492943 Registry: Amherst Between: Cameron MacDonald and Nancy MacDonald Applicants v. Brian MacCallum Respondent DECISION Judge: The Honourable Justice Jeffrey R. Hunt Heard: February 25, 26 and May 18, 2021 at Amherst, Nova Scotia Decision: September 15, 2021 Counsel: Brian S.

Creighton, Counsel for the Applicants Brian MacCallum, Respondent, Self-Represented By the Court: [ 1 ] The Applicants have filed an Application in Court seeking a declaration that the common boundary between their cottage property (PID 25119728) and that of their neighbour (PID 25119686) is as reflected on a plan of survey of Zackary Ryan, NSLS dated April 1, 2019 and recorded in the Cumberland County Land Registration Office as document number 114798599 (the “Ryan Survey”). The Respondent opposes this Application.

Lots in Question [ 2 ] The dispute in this case arises from two neighbouring cottage lots located in Port Howe, Cumberland County. In terms of square footage, the amount in contention is relatively small. In cottage country however, every square foot can appear to be precious to the parties involved. This is such a case. [ 3 ] The Applicant’s lot is known as 20 & 22 Dogwood Drive. They have owned it since 2015, although Mrs. MacDonald’s family held the property back to the late 1960s. The MacDonalds took title through Mrs.

MacDonald’s family. (With the exception of one portion derived from a land swap with a neighbour). [ 4 ] The Respondent owns an adjacent lot, known as 75 Toney Cove Lane, which is the consolidation of two parcels previously owned by Mr. MacCallum’s father. [ 5 ] To help orient the reader I will outline, in general terms, the layout of the lands in dispute and how they are situated. [ 6 ] The subject properties are adjacent to one another in a cottage community on the Northumberland Strait.

The community consists of two main streets (MacDonald Lane and Toney Cove Lane) which begin on Highway 366 and run perpendicular toward the shore. Extending off these two Lanes are five streets which are oriented roughly parallel to the shore. [ 7 ] The MacDonald and MacCallum lots are located on two of the side streets. Although they have civic addresses on separate streets they are located in close proximity. The MacDonald lot is generally more to the west and closer to the highway while the MacCallum lot

is more to the east and slightly closer to the shoreline. [ 8 ] There are no issues of beach access involved in this proceeding. The dispute revolves around property boundary and right of way issues. Position of the Applicants [ 9 ] The MacDonalds allege that shortly after the Respondent took title to his lot in 2017, he began driving onto and parking vehicles on the edge of Applicants land. They say this progressed in August of 2018 to his parking a 30-foot recreational 5 th wheel in such a way that it intruded on to their parcel.

Finally, the Applicants say that in July 2019 the Respondent allegedly constructed a small shed that encroached to a small degree on their property. In their evidence they described their efforts to dissuade the Respondent from persisting in these acts of alleged trespass. [ 10 ] The Applicants are claiming for declaratory relief within an Order setting the boundary. They also made a claim for damages, although this aspect of the claim was not advanced forcefully. Position of the Respondent [ 11 ] Mr. MacCallum says the disputed portion of land is a right-of-way.

He disagrees that the land was owned by the Applicants when the travel trailer was parked, and the shed placed. The Applicants later acquired some additional land from a neighbour in a land swap. Additionally, the Ryan Survey had not been completed when Mr. MacCallum took some of the actions he did, and to this extent he says the boundary situation was not as clear as suggested by the Applicants. [ 12 ] The Respondent’s position is the Ryan Survey is flawed in methodology and incorrect in its conclusions. He says the metes and bounds description in his deed conflicts with the survey. Issues 1.

Is the Applicant entitled to declaratory relief with respect to the placement of the boundary? If so, in what terms? 2. Does the Respondent enjoy rights pursuant to a claimed right of way? 3. Have the Plaintiffs proven any claim in damages?

Summary of Evidence [ 13 ] Four witnesses gave evidence in this matter. These were the two Applicants, the expert, Zackary Ryan, and finally the Respondent. [ 14 ] I intend to summarize the evidence. I am not attempting to produce a transcript or recite back every single point covered in questioning. It is my intention to focus on central issues of relevance and elements necessary to put the Court’s conclusions in context. I have, however, considered and weighed all the testimony, and each of the exhibits, in reaching my conclusions. Cameron MacDonald [ 15 ] Mr.

MacDonald produced two affidavits and was cross-examined by Mr. MacCallum. The Affidavits provide his take on the history of the relationship between the parties, the historic use of the lots in question and some details of the breakdown in relations between the neighbours. [ 16 ] Mr. MacDonald is 65. He and his spouse took over ownership of their current lands in Port Howe from Nancy MacDonald’s parents in 2001. Their holdings were also added to in 2019 when they undertook a land swap with neighbours Randolph and Sandra Ryan.

Later in 2019 he and his spouse commissioned the Ryan Survey in an effort to address the growing dispute with Mr. MacCallum. [ 17 ] Mr. MacDonald began attending this property in or about 1990 when the lands were owned by Mrs. MacDonald’s parents and other family members. From 1990 to 2008 the MacDonalds attended her parent’s cottage with regularity. He would occasionally undertake maintenance work on the lot under the direction of his father in law. Eventually in 2001 his in laws transferred their ownership interest to himself and his spouse.

Nancy’s aunt, Dorothy Potter, continued to have an ownership interest but this too eventually was transferred to the Applicants in 2015. [ 18 ] Mr. MacDonald gave evidence that from 2001 onward he maintained the cottage and lot “to the full extent of Lot 19-1BC”. In detail he asserted these boundaries were as follows: i.To the boundary of the lands owned by Mr. MacCallum’s father and now Mr.

MacCallum to the northeast; ii.To a ditch between Lot 19-1BC and the lands of Margaret Murray-Cutcliffe and the lands of Avella Moir; iii.To the boundary of lands on the southeast owned by Leonard and Sheila Wilson and lands owned by Joyce Brown and Lori Isenor; and iv.To the boundary of lands on the southeast owned by Terry and Jennifer MacDonald and the end of Dogwood Drive. [ 19 ] With respect to the disputed parking area he provided the following Affidavit evidence:

27. In June of 2016, Nancy and I sold Barbara’s manufactured home to Mr. MacCallum and he moved it to the MacCallum property. 28. At the same time, we hired contractor Stephen Jamieson to remove the foundation for that manufactured home and to improve the parking area where our family had parked our cars and maintained for over 50 years. We chose to build up this area because it was somewhat swampy during part of the year and we were parking in mud. ... 30.

We were very pleased how the project turned out and it made our property look so much better and we would no longer be parking in the muck in the springtime or late fall or when it rained hard. 31. As a result, the area we and Nancy’s family had been parking our motor vehicles for 50 years now had a good sturdy gravel base. 32. In 2017, Mr. McCallum stared calling our parking area a right of way and said we no longer owned it and that he was going to use it as he wanted. 33. Mr. McCallum started bringing trucks, trailers and excavation equipment across our Lands.

He then began digging trenches and installing drainage equipment on property that was not his. 34. In 2017, Mr. McCallum began parking his speed boat and trailer in our parking area. 35. In August of 2018, Mr. McCallum pulled a 30 ft 5th wheel travel trailer crossways in front of our front yard totally blocking our view of the water and the trailer is four feet on our lands. ... 37. Then in October of 2018 Mr. McCallum parked his long pontoon boat in our parking area. 47. In the first week of July 2019 and after the survey and with the survey pins which were put in place in March 2019 were clearly visible, Mr.

MacCallum constructed a new shed partly on our Land behind the 30 ft long travel trailer in total disregard of the surveyed boundaries. [ 20 ] Mr. MacDonald went on to describe the process of retaining the land surveyor and receiving the Ryan Survey. Following the receipt of this report the MacDonalds entered into some negotiations with other neighbours (Ryan and Murray-Cutcliffe) to clean up some boundary issues with them via mutual agreement.

These steps are detailed in the affidavit evidence but they resulted in portions known as Parcels C and D being released to the MacDonalds from the Ryans and Parcel B being land swapped with Margaret Murray- Cutcliffe in exchange for transfer to the MacDonalds of Parcel B. (For a sketch of the area in question see

Schedule A attached). [ 21 ] The MacDonald affidavits and in court testimony include an account of what they indicate was significant stress and worry caused by the growing dispute with the Respondent. This included resort to the Protection of Property Act, lawyer’s letters and eventually an attempt to have the police intervene. [ 22 ] Mr. MacCallum cross examined Mr. MacDonald on a number of matters. He challenged many portions of Mr. MacDonald’s account. In general, the position advanced by Mr. MacCallum was that prior to 2017/18 the parties had not engaged in any real conflict or dispute.

He took the position that while Mr. MacDonald was claiming the boundaries were very well settled this was not actually the case. He challenged the Applicants account of the historical use of the lands as well as their claim that Mr. MacCallum had carried out work or sited property across established boundaries. [ 23 ] In the course of his questioning the Respondent offered an apology to the Applicants in the event anything he did caused anxiety or great distress to the Applicants. Mr. MacDonald thanked him for the apology. [ 24 ] Mr. MacCallum suggested to Mr.

MacDonald that he had not been properly approached by the MacDonalds, in an effort to resolve things amicably. He further suggested that after he placed the shed, he was not approached with a view to resolving things until he received a lawyer’s letter. Mr. MacDonald stated that he and his spouse had lost trust in Mr. MacCallum by that point. He felt it was pointless to approach Mr. MacCallum because in his view the survey pins had been clearly in place for some time.

He did agree with the suggestion that, prior to the delivery of the Protection of Property Act Notice in August 2019, he had never personally asked Mr. MacCallum to remove any of his property from the MacDonald lands. [ 25 ] Mr. MacCallum also challenged Mr. MacDonald’s assertion from his affidavit evidence that he had never had any boundary conflicts with any other neighbours. Mr. MacDonald acknowledged there was a time he and the Murray-Cutcliffes had experienced an issue over their mutual boundary for which Mr. MacDonald had written them an apology.

Nancy MacDonald [ 26 ] Nancy MacDonald provided two affidavits and was cross-examined by the Respondent. Her affidavit covered some of the same territory as her husband. The Port Howe property now owned by the MacDonalds was originally in Nancy’s family. She outlined a brief history from her perspective. [ 27 ] Mrs. MacDonald started her history in 1969 and provided an account of her mother and aunt receiving deeds to certain lots in 1969. By 1972 her parents built a cottage on their lot. By 2001 Nancy MacDonald’s mother’s interest was deeded to Nancy.

Her aunt’s interest devolved in turn to her daughter (Nancy’s cousin) Barbara Potter. [ 28 ] In 2015 Barbara Potter’s interest and Nancy MacDonald’s interest was conveyed to Cameron and Nancy as joint tenants. The

relevant parcel is identified by the Applicants as Lot 19-1 BC in the Ryan Survey. In 2019 the Applicants holdings were impacted by certain transactions with other neighbouring landowners. These moves were as follows: ▪ Parcel C being transferred to the Applicants from the Randolph & Sandra Ryan. ▪ Parcel D being transferred to Margaret Murray-Cutcliffe from the Ryans. ▪ Parcel B being transferred to the Applicants from Margaret Murray-Cutcliffe. [ 29 ] The court has chosen to include this history in order to provide some context to assist with the

interpretation of the sketch attached as

Schedule “A” to this decision. [ 30 ] Mrs. MacDonald testified that, with the exception of the recent transactions described above, her family’s use and occupation of these cottage lands had been the same for 50 years. She reiterated many elements of the evidence given by Mr. MacDonald and was cross examined on substantially the same lines. Zackary Ryan [ 31 ] Zackary Ryan was qualified as an expert witness in this matter. He is an NSLS chartered land surveyor employed with Rayworth and Roberts Surveys Ltd. He provided an affidavit, expert’s report, background materials and plan of survey. [ 32 ] Mr.

Ryan’s qualifications were accepted, and the particular statement of expertise was agreed to be as follows: An expert land surveyor and geomatics engineering technologist and qualified to give opinion in his field and specifically, on issues of legal surveying including boundary retracement and establishment procedures, boundary analysis and aerial photograph analysis. [ 33 ] He gave evidence and was cross-examined at some length. Mr. Ryan’s evidence is ultimately critical to the determination of the matter. [ 34 ] Mr.

Ryan provided an overview of his involvement in the matter and outlined his understanding of his role. Despite being retained by the MacDonalds he did express a full appreciation of his independent obligation to the Court. [ 35 ] He outlined in clear terms the manner in which he went about reviewing the documentary and in situ evidence. His report is detailed and provides a clear account of the review work undertaken by him. Little of value would be gained by me restating in these reasons a verbatim account of his report.

Rather I am going to provide an overview of the opinion, how it was challenged by the Respondent, and the conclusion reached by the Court as a result of assessing the Report and cross-examination. [ 36 ] Mr. Ryan first became involved in this matter in mid 2018 when he was retained to undertake a retracement survey. A boundary retracement survey involves researching public and private records of the property in order to come to a description on the ground.

It will include a study of the deeds of the property and adjoining lots as well as the evaluation of any previous surveys or metes and bounds work performed for the specific parcel of land. On the ground investigation and measurements are an integral part of the assessment. The intention was to eventually undertake a consolidation of the 22 Dogwood Drive property owned by the Applicants. [ 37 ] As part of the work to be undertaken, a portion of the southern boundary of the MacCallum land had to be established. [ 38 ] That work was undertaken in a process extensively described by Mr. Ryan.

After the conclusion of that work he went on to conduct an assessment of whether there were encroachments of any items owned by the MacCallums over the line he established. [ 39 ] Mr. Ryan provided evidence on the back-title research he conducted prior to commencing the field survey. In conducting that research he identified one point of concern which he stated related to a call for a 16’ road said to be located on the southwestern boundary of a neighbouring lot to the south of the MacDonald lot owned by Terry & Jennifer MacDonald. Later evidence revealed this was provision for a road which was never constructed.

He identified no other points of concern. [ 40 ] On July 11, 2018 he began his on-site work. This was conducted on the MacDonald property and surrounding area. He confirmed that he began all this field work with a spot check on Nova Scotia High Precision Monument 213672. [ 41 ] The Ryan Survey was in evidence and a good deal of time at the hearing was spent reviewing and discussing its contents. The survey covered all the lots surrounding the disputed parcels. Mr. Ryan testified that he was able to locate substantially all the indicators referred to in previous deeds. He indicated that he was able to locate: 1.

Leisure Lane, Dogwood Drive and Toney Cove Lane travelled ways. 2. The ditch running east-west which he took to be an indicator of cottager occupation, and which was referred to in various deeds. 3. Evidence of occupation for the various lots. 4. Corner posts consisting of iron bars, iron pipes and survey markers which he identified as having been set previously by surveyors Michael Greene, NSLS and Mark MacMillan, NSLS. [ 42 ] As part of the field work Zackary Ryan spoke with Brian MacCallum. Mr. MacDonald pointed out the Michael Greene markers on his southeast boundary.

Also located near the MacCallum southwestern corner was a curled iron bar standing out of the ground on the north side of the ditch and a buried iron pipe laying on its side close to the ditch and which he testified he believed had

been disturbed by the movement of a travel trailer which appeared to him to have been hauled from Dogwood Drive across the ditch and placed on the neighbouring Lisa MacCallum property to the north. [ 43 ] In addition to locating and relying on the previous survey markers Mr. Ryan also consulted with one of the prior surveyors, Michael Greene. [ 44 ] After these consultations Mr. Ryan received copies of sketches prepared by Michael Greene as part of his work. These were also in evidence. [ 45 ] Following his discussions with Greene, Zackary Ryan concluded as follows: 1.

That his field evidence and the information provided by Greene matched up precisely. 2. He understood no cottagers had expressed concern with the placement of the Greene survey pins. He believed these matched up well with available occupational evidence and the boundaries set by him compared well to the deed distances given for various lot owners. 3. For these reasons he accepted the Greene coordinates and concluded that these established the southwestern alignment of the MacDonald property and the southeastern boundary of the MacCallum property, as well as providing a good basis for further analysis. 4.

The road allowance called for between the MacDonald property and their neighbours to the south (Terry and Jennifer MacDonald) had never actually been built, possibly as the result of a change in the design intentions. This allowed him to conclude that the Cameron MacDonald and Terry and Jennifer MacDonald lots did properly adjoin, as appeared to be the case during the site assessment. [ 46 ] Mr. Ryan described in detail his process of setting the various boundaries and alignments of the relevant lots.

He did observe that the survey marker at the northeastern corner of the Terry and Jennifer MacDonald lot (which was being used to help establish the most southern boundary of the Cameron MacDonald property) was found to be 0.6’ from the coordinate supplied by Michael Greene. He noted this was the only physical evidence that did not fit precisely with the other existing data and coordinates.

He, therefore, concluded that this marker was likely reset after having been disturbed in some fashion and for this reason he used Michael Greene’s original coordinate in the calculation as opposed to the pin which he concluded had been disturbed. [ 47 ] The Ryan Survey contains a detailed account of the steps he took to confirm the boundaries for the property to the north of the Cameron MacDonald lot (the Cutcliffe property).

He describes his process of confirming the lines as well as his rationale for accepting as accurate certain markers identified on the ground. [ 48 ] The MacCallum lot is bounded on the north by Toney Cove Lane and to the south in part by Dogwood Drive. Mr. Ryan gave evidence on his process of confirming the placement of these roadways. With respect to Toney Cove Lane he had the benefit of a survey marker set previously by Mark MacMillan, NSLS which he concluded accurately aligned with coordinates received from Michael Greene as well as his own on site observations.

He described the process of setting the southern boundary of Toney Cove Road which in turn was fixing the northern boundary of the Brian MacCallum lands. [ 49 ] The MacCallum parcel consists of a consolidation of two deed descriptions. Lot 1 is described as a 50’ by 100’ lot touching on Toney Cove Road (to the north) and on a 16’ foot right of way (Dogwood Drive) to the south. The description includes a right of way to travel over these lanes to get to the shore and to the Port Howe Shore Road. [ 50 ] Mr.

Ryan indicated that Lot 2 is described as having 20’ of footage on the Toney Cove Lane, then running along a ditch 130’, then having 94’ of frontage on Howard Johnson Road (now known as Dogwood Drive) and 100’ touching Lot 1 and running back to Toney Cove Lane. There is no right of way statements. [ 51 ] Zackary Ryan gave evidence that the bearings in this particular description do not in his opinion accord with the features on the ground. He notes that in the back title there is a much earlier conveyance where the typed bearings have been altered with pen to read with more clarity.

His conclusion was that the bearings given in the Lot 2 description were recorded incorrectly. [ 52 ] His evidence was that the Claude MacCallum lot must touch the ditch and the property owned by June and David MacCallum. This is stated in the lot description. The measured frontage on Toney Cove Lane was 79.49’ compared to the 70’ described in the deeds. [ 53 ] The Lisa MacCallum lot (to the northwest of Claude MacCallum) had measured frontage on Toney Cove Lane of 99.4’ compared to the 100’ described in her deed. Mr.

Ryan gave evidence that all this confirmed for him that what he set as the Toney Cove Lane corridor and the corners of the Lisa MacCallum parcel were correctly established. [ 54 ] The placement of the boundaries of the Brian MacCallum lot was a focus of the Ryan Survey. Mr. Ryan detailed his methodology for establishing its boundaries and placement.

His report detailed his conclusions as follows: 31 As stated before, Brian MacCallum’s lot must touch the ditch and the property owned by June and David MacCallum, resulting in a measured frontage on Dogwood Drive of +/- 147’ compared to 144’ described in the deeds: A. Lisa MacCallum’s southwestern boundary is described as +/- 35’ as per the Land Registration description and in the back title (Book 809 Page 458). I found the measured distance to be 31.63’. This is a reasonable margin of error to expect from a deed distance described as “more or less”. B.

The resulting alignment was found to run about 0.3’ (or 9 cm) north of the curled iron bar I had located in (12B). C. The resulting alignment matched the existing bend in the travelled way of Dogwood Drive.

D. The measured distance along the ditch between Brian and Linda MacCallum was found to be +/- 118’ as compared to the +/- 135 recorded in Lisa’s description and the 130’ recorded in the back title to Brian’s property. i. I did investigate what holding 130’ along the ditch would result in and I found the resulting boundaries strayed further from the deed descriptions by considerable margins. I rejected this finding in favour of my above calculations. E.

The description for Lisa’s lot does not contain an adjoiner reference or call for the ditch (as is called for in the back title to Brian MacCallum’s lot), however, these lots would appear from the measurements to adjoin. [ 55 ] Tied closely to the placement of the boundaries of the MaCallum lot is the issue of the disputed right of way. Ryan testified that the MacDonald deed description calls for 50’ of frontage on the road reserve which is the extension of Dogwood Drive. Additionally, the deed references the use of a right of way in the following terms: A.

Together with a right of way to travel over the aforementioned roads as provided by the Grantor, to reach the Port Howe Shore Road, so called, this being Highway 366. [ 56 ] As noted previously the Brian MacCallum property consists of the consolidation of two lots. The first of these referred to the use of a right of way as follows: A.

Together with a right of way to travel over the aforesaid roads and lanes to get to the Port Howe Shore Road so called, being Highway No. 66 on map. [ 57 ] The second lot is described as having 20’ of frontage on the lower road (Toney Cove Road) running along a ditch 130’, having 94’ of frontage on Howard Johnson Road (now Dogwood Drive) and 100’ touching Lot 1. The description for Lot 2 of the consolidated parcel did not contain any right of way statements. [ 58 ] The expert’s conclusions on the deed descriptions that comprised the MacCallum property were as follows: (Survey Report para 46) A.

Lot 1 would enjoy a right of way along its Toney Cove Lane frontage and Dogwood Drive frontage, both running southeastly to their respective intersections with Toney Cove Lane, as well as running along Toney Cove Lane from its intersection with the shore to its intersection with Highway 366. B. Lot 2 does not include any right of way statements. As both lots have always been in common ownership since the conveyances made by Sarah MacDonald, it may have been the intention this parcel would have been accessed via Lot 1. C. Lot 2 would have the benefit of whatever proscriptive rights the court might find to exist.

D. The right of way described in these deeds, and with various deeds in the surrounding area, indicate their purpose is to gain access to specific lots from Highway 366, and in some cases to the shore. There is no provision for general access or a right to park on the right of way. E. I did investigate Brian MacCallum’s claim to have acquired lands at the end of Dogwood Drive to park his boat (Paragraph 55 of his affidavit).

I found no recorded evidence of this claim. [ 59 ] With respect to the encroachment issue, Ryan’s affidavit says as follows: 11 A site visit was made on or about the 18th of October 2019 and two encroachments were found to exist, one being a small shed in which the southwest corner was sitting over the boundary by about 2.9’. The other being a travel trailer sitting lengthways along the boundary. The northern portion of the trailer being about 3.3’ feet over the boundary and the southern portion of the trailer being about 3’ over the boundary. [ 60 ] In cross-examination of Mr.

Ryan, Brian MacCallum sought to challenge a number of assumptions and conclusions. I have carefully assessed Mr. MacCallum’s challenge to the expert. [ 61 ] At its core Mr. MacCallum’s challenge to the expert was that he consistently made assumptions that favoured the interests of the MacDonalds. He suggested to the surveyor that where critical decisions had to be made about the placement of lot boundaries or corners it was invariably the case that the decision seemed to advantage the MacDonalds. [ 62 ] Mr. Ryan’s position was that he brought appropriate professional judgement to each decision.

He denied exhibiting favouritism. His position was that he was guided by the documents and the evidence on the ground. He also reminded the Respondent that he relied as well on the prior work of other surveyors who had worked the area previously. [ 63 ] Mr. MacCallum put to Mr. Ryan a number of hypotheticals. These included the suggestion that a friendly dispute between some other neighbours (Calder/Gillis) had resulted in a particular boundary marker being moved a number of times. The suggestion of Mr.

MacCallum was that the final placement of this marker was 10 feet out, placed as a result only of one of these individuals outliving the other which allowed his preferred placement to stand. Mr. MacCallum suggested this misplacement resulted in the Ryan Survey being out by 10 feet as it pertained to the area in dispute in this matter. [ 64 ] The expert disagreed with the Respondent and explained the reason for his conclusion that the marker and resulting

measurements were correct. I have carefully assessed all this evidence and the submission that flowed from it. [ 65 ] He challenged Mr. Ryan’s use of a particular marker identified as a “bent iron pipe”. Mr. MacCallum suggested that the surveyor had erred in identifying this item as potentially useful to the surveying process as an historic marker. Mr. MacDonald’s position was that this item was simply a stake he had driven to support a tree. [ 66 ] Mr. MacCallum drew the surveyor’s attention to the issue of whether another neighbour (Cutcliffe) disagreed with Mr. MacDonald about a particular corner placement.

Mr. Ryan accepted that this appeared to be the case. [ 67 ] Mr. MacCallum put to Mr. Ryan a hypothetical which was expressed in a sketch created by Mr. MacCallum, which became Exhibit 13. This sketch was Mr. MacCallum’s effort to document the various metes and bounds of the various lots as believed they ought to appear on the ground. [ 68 ] The position of the Applicant was that Mr. MacCallum did not carry his evidentiary burden of proving the assumptions expressed in the hypothetical. [ 69 ] As to the sketch, Mr.

Ryan’s position was that his own evidence and opinion were more in keeping with the written documentation and historic uses of the land. [ 70 ] The evidence of the expert is ultimately critical to the determination of this matter. [ 71 ] I find the expert did understand his obligation to approach his evidence and role in an unbiased manner. His obligation was to the Court as opposed to the party calling him. [ 72 ] I was favourably impressed with his willingness to be open minded. In cross-examination he appropriately defended his conclusions but without becoming defensive or argumentative. I also felt Mr.

MacCallum’s manner of questioning the expert was well done and respectful. Evidence of the Respondent [ 73 ] Mr. MacCallum provided two affidavits. He also relied on certain exhibits including a red line sketch which I have carefully reviewed. A number of paragraphs were stuck from his affidavits and these alterations are reflected in the record. The Applicants opted not to cross-examine Mr. MacCallum. [ 74 ] Mr. MacCallum provided an account of neighbourhood history from his perspective.

He indicated that up until approximately 2018 he was not aware of any real conflict between himself and the MacDonalds. [ 75 ] He provided an account of approaching Cameron MacDonald in the summer of 2018 with respect to some work he proposed to do to facilitate the delivery of a trailer onto his property. This included cutting some trees, removing stumps and laying a gravel pad for the trailer. His account indicated that at first, he was met with apparent cooperation from Mr. MacDonald, but this seemed to change. His view was that the MacDonalds began to obstruct or interfere with his rights.

For instance, he related episodes of them placing their vehicles in such a way that he believed it was designed to obstruct him. [ 76 ] Communication and relations continued to deteriorate. After a negative exchange of words at the MacDonald property, Mr. MacCallum called the RCMP to seek their help over the dispute. As is often the case, it appears the RCMP largely wanted to stay out of the matter beyond ensuring a breach of the peace was not likely. This makes sense given that the police have few tools for dealing with a civil boundary dispute. [ 77 ] Mr.

MacCallums’s evidence was that since he called the RCMP, and had them speak to the MacDonalds, any cordial relations effectively ceased between the neighbours. He indicated that following this point in 2018 the MacDonalds would no longer speak or acknowledge him in any way. [ 78 ] As the summer of 2018 unfolded Mr. MacCallum went ahead with his plan to place a 5 th wheel trailer on what he believed to be the southwest corner line of his property along the boundary of Dogwood Drive.

He indicated that no survey had been completed at that time and he used an existing ditch as the boundary [ 79 ] His affidavit evidence goes on to relate that when he and his wife returned to their cottage property in the spring of 2019 they found that, at some point in the preceding months, certain survey pins had been placed between his property and the MacDonalds. In his view these did not accurately reflect the proper boundary of his property with the Applicants. He believed the surveyor had even mistakenly used as an indicator a ground rod that Mr. MacCallum had placed to protect a tree.

His view was that the survey was flawed. [ 80 ] In June of 2019 he purchased a small aluminum shed and erected it on what he refers to in his affidavit as the “far southwest corner” of his lot.

Although he viewed the southwest corner survey pin to be incorrect, he appears to indicate that he did at least consider its placement when setting up the shed. [ 81 ] He indicates that as he was weighing his options throughout the summer of 2019 (which included a possible approach to the surveyor) he was served with legal papers in mid August alleging that he had been encroaching on the MacDonald lands and attaching a Protection of Property Notice. [ 82 ] After August 2019 Mr. MacCallum and legal counsel for the Applicants engaged in a substantial amount of back and forth.

The parties never reached a point of agreement. The Applicants relied on the survey. The Respondent disagreed with those findings and felt the surveyor had favoured the interests of his clients and ignored points of evidence or argument that pointed away from his conclusions.

[83] I have assessed the attachments to Mr. MacCallum’s affidavits including all photographs. I have carefully assessed his “redline sketch” which was accepted as an exhibit. It set out his perspective on proper boundary placement. Impressions of Witness Testimony [84] This dispute has regrettably been allowed to cloud what had been an historically normal and pleasant relationship betweensummertime neighbours. Both sides spoke of the stress and loss of enjoyment they have experienced. [85] As is entirely unsurprising, both sides view the same events with opposite perspectives.

Both see themselves as the wrongedparty and the other side as the instigator. [86] Both sides had an obvious interest in the outcome of the litigation. I have weighed all the evidence with a recognition of thisfact and the reality that people can subjectively recall events or discussion differently. I do not believe that either side has intentionallyattempted to mislead the Court. But I have concluded that I need to be cautious in how I apply the recollections of each side.

The upsetand emotion that each side has experienced has no doubt made it difficult for them to separate their feelings about the other side from adispassionate recollection of events. [87] Ultimately the evidence of the expert has played a major role in the Court’s determination of this matter. Accordingly, myimpression of his evidence is very important. [88] I did find that the expert approached his duties in an even handed and professional manner. This is an absolute expectation ofsomeone in his position. Had I detected any partiality this would have undermined the core duty he had to the Court.

An expert witnesswho is the unthinking tool of his paymaster is a useless expert. [89] As a judge I have had the experience of seeing an expert who had lost their perspective. Ultimately that evidence is of novalue. This was not the case here. The surveyor did want the Court to have the clearest available evidence and did assist the Court witha full accounting of the assumptions which had to be adopted and the professional judgment calls which did have to be engaged in. I willhave other comments about his conclusions elsewhere in these reasons. Law [90] The principles applicable to the

interpretation of a deed were considered by the Nova Scotia Court of Appeal in Metlin v.Kolstee, 2002 NCSA 81, as follows: [65] In his decision, after reviewing the evidence, the trial judge referred to the principles applicable to the

interpretation of a deed as setout in Saueracker et al. v. Snow et al., (1974), (NS SC), 14 N.S.R. (2d) 607, 11 A.P.R. 607, 47 D.L.R. (3d)577 (T.D.); McPherson et al. v. Cameron, (1866-69) 7 N.S.R. 208, and Humphreys et al. v. Pollock et al., (SCC),[1954] 4 D.L.R. 721. Justice Coughlan stated in 37-39 as follows: [37] The general principles applicable to the

interpretation of a deed are set out by Jones, J. (as he then was) in Saueracker et al. v. Snowet al., (1974), (NS SC), 47 D.L.R. (3d) 577 at p. 582: . . . The general principles applicable to the

interpretation of a deed are set forth in paras. 13 and 24, 5 C.E.D. (Ont. 2d), pp. 488-90 and497-8, as follows: 13. Construction. — General Rule. The Court must, if possible, construe a deed so as to give effect to the plain intent of the parties. Thegoverning rule in all cases of construction is the intention of the parties, and, if that intention is clear, it is not to be arbitrarily overborneby any presumption.

The intention of the parties is to be gathered from the sense and meaning of the document as determined in the firstplace by the terms used in it, and effect should, if possible, be given to every word of the document. Where, judging from the languagethey have used the parties have left their intention undetermined, the Court cannot on any arbitrary principle determine it one way ratherthan another. Where an uncertainty [still remains] after the application of all methods of construction, it may sometimes be removed bythe election of one of the parties.

The Courts look much more to the intent to be collected from the whole deed than from the language ofany particular portion of it. [38] The relative importance to be given to various items in the

interpretation of a deed is well settled. In McPherson et al. v. DonaldCameron (1866-69), 7 N.S.R. 208, Dodd, J., in giving the judgment of the Court, stated at p. 212: ... The question is how he is to get there, for neither the course nor distance given in his grant will take him there, without the alterationof one or the other.

The general rule to find the intent where there is any ambiguity in the grant, is to give most effect to those thingsabout which men are least liable to mistake; [66] These statements set out the general principles to be applied in interpreting descriptions of land as spelled out in a deed. As a generalrule, the intent of the parties to a conveyance is to be gathered from the words of the document. If there is an ambiguity, the rules asquoted by the trial judge from McPherson et al. v. Cameron, supra, are to be applied.

When courses and distances clash preference toone, rather than the other, will depend on the circumstances. [91] In MacDonald v. McCormick, 2009 NSCA 12, Justice Saunders made the following observations with respect to the applicablelaw: 72 A clear and unambiguous deed should be given its plain meaning. As Fichaud, J.A. observed in Knock v. Fouillard (2007), 2007NSCA 27 , 252 N.S.R. (2d) 298 (N.S. C.A.), commencing at ¶ 27:

[27] In the

interpretation of a conveyance it is important to recall three governing principles: . . . . (b) . . . the court should construe the document as a whole, if possible giving meaning to all its words... This principle applies to the

interpretation of a deed: Anger and Honsberger, ¶ 25:40. Gale on Easements (Sweet v. Maxwell, 17th ed.) ¶9-14 says: In the case of an express grant the language of the instrument must be referred to. The court will have regard to the conveyance as awhole, including any plan that forms part of it, even though the plan is not mentioned in the parcels or is said to be for identificationpurposes only. Third, the court's first task is to determine whether an unambiguous intention is manifested objectively by the words of the deed, not bythe parties' subjective wishes, motives or recollections. The primary source is the document, not the psyche. In the process of

interpretation, a court may not utilize the parties' subjective wishes, motives or intent to alter the unambiguous andobjectively manifest intent in the deed's wording. 73 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 (N.S. C.A.). [92] I had the advantage in this matter of expert evidence from a witness properly qualified and with an appreciation of their duty tothe Court. Mr. Ryan walked the Court through the process of interpreting the underlying deeds and descriptions. [93] He provided a detailed explanation for some of the professional judgments he engaged in when determining boundaries.

Theseinclude those leading up to what I accept is an important judgment respecting the measured distance along the ditch between BrianMacCallum and the neighbouring lot of Lisa MacCallum. His report discussed this as follows (paras 30 – 31): 30 To establish the northern boundary of Dogwood Drive road reserve I took the following steps: A. Dogwood Drive is described as 16’ wide in various deeds such as Lot 1 in Book 497 page 880 (being part of Brian MacCallum’s lot)and in Book 615 page 896 (PID 25119850, the Lochhead lot). B. I held 16’ from the northeast corner of the MacDonald property as established in (18). (

i) A line was drawn from Brian MacCallum’s southeastern corner (marked by Mr. Green’s survey marker) to this 16’ offset. This point would become the northeastern corner of a Parcel “C” in a later subdivision of road allowance, at the end of Dogwood Drive. (ii) A line was drawn from the northeast corner of Parcel “C” to Lisa MacCallum’s northwestern corner as established in (29B). 31 As stated before, Brian MacCallum’s lot must touch the ditch and the property owned by June & David MacCallum, resulting in ameasured frontage on Dogwood Drive of #147’ compared to 144’ described in the deeds. A.

Lisa MacCallum’s southwestern boundary is described as #35’ as per the Land Registration description and in the back title (Book809 Page 458, attached as Appendix G). I found the measured distance to be 31.63’. This is a reasonable margin of error to expect froma deed distance described as “more or less”. B. The resulting alignment was found to run about 0.3’ (or 9cm) north of the curled iron bar I had located in (12B). C. The resulting alignment matched the existing bend in the travelled way of Dogwood Drive. D.

The measured distance along the ditch between Brian & Lisa MacCallum was found to be #118’ as compared to the #135’ recordedin Lisa’s description and the 130’ recorded in the back title to Brian’s property. i. I did investigate what holding 130’ along the ditch would result in and foundthe resulting boundaries strayed further from the deed descriptions by considerable margins. I rejected this finding in favor of my abovecalculations. E.

The description for Lisa’s lot does not contain an adjoiner reference or call for the ditch (as is called for in the back title to BrianMacCallum’s lot), however, these lots would appear from the measurements to adjoin. [94] In cross-examination Mr. MacCallum challenged this reasoning and the resulting lines. A portion of this exchange is asfollows: Mr. MacCallum: Q: You state that you investigated holding the Deed lengths of 135 and 130 along the ditch for the Lisa MacCallumand Brian MacCallum lots, and I’m gonna stop there for a second.

We’re referring to your Report of sketch and those Deed lengths thatyou’re referring to are from the, what you have labelled as, the centreline of the ditch to your new survey marker, right by the corner ofwhat’s labelled, “shed,” is that correct? Mr. Ryan: A. Yes.

Q. Okay. Can you tell me … or no, I guess you say right in here, that you found that distance to be 118 feet? A. I did. Q. … as opposed to the 135 feet for the Lisa MacCallum property and the 130 feet for the Brian MacCallum property, correct? A. Correct. Q. You then go on to say you chose the common point on the centreline of the ditch but rejected the 130 … and the 130-foot calls because, “the resulting boundary strayed further from the Deed descriptions by considerable margins,” correct? A. Yes. Q. Can you explain that? A. Ah, the road reserve is supposed to be 16 feet wide, by documents in the area.

Holding 130 or 135 feet along the ditch pushed the boundaries into that gravelled portion and then would result in having to go 16 feet from that point and thus squeezing the Cameron and Nancy MacDonald property further which also didn’t match with their occupation of the lands. So- Q. Okay, so- A. … to avoid putting boundaries where I didn’t believe boundaries should be, I did not hold the 130-foot Deed call. Q. Okay. Just to be clear, we’ve heard evidence from Mr. MacDonald that that gravelled area was established in 2016 as a parking area after the removal of a manufactured home, do you agree with that? A.

Ah, I can’t … my memory’s foggy from yesterday but I would think that would be generally true, yes. Q. Okay. However, you … you used that gravelled area as evidence that that pin shouldn’t extend into it because it was occupied by the MacDonald’s, correct? A. It looked as if it was occupation, yes. I didn’t think the boundary line should go into it by my opinion of the boundaries. [ 95 ] I have assessed the totality of the evidence on this issue. I have determined that the position adopted by the surveyor is correct in all the circumstances. He was presented with evidence of use and occupation.

These are standard tools used in interpreting signs on the ground as these relate to metes and bounds descriptions. I find the professional judgment he brought to bear was reasonable. [ 96 ] I have considered the issue raised by Mr. MacCallum around the surveyor’s reliance on the placement of a certain marker (the “bent iron pipe”) in reaching some of his determinations. The role of Mr. Ryan is to take the totality of the indicators and history available to him and, based on the cumulative evidence, offer an opinion. In totality the conclusions reached by Mr.

Ryan are supported and reasonable. [ 97 ] I accept his evidence that it is normal to find reasonable deviation from the strict distance calls provided in metes and bounds descriptions. There is an exercise of judgment in bringing all the collected evidence and factors into play when fixing boundary lines on the ground. [ 98 ] I have assessed the competing photographic exhibits. This is an imprecise exercise and one where reasonable people could have differing

interpretations. I did not find the photographic evidence to be a great deal of help. With some exceptions there are always

issues of dating such evidence and recollections are imprecise. On balance I found the other evidence and historic indicators employedby the surveyor to be more compelling and useful. [99] My conclusion is that the exercise he followed is reasonable and intelligible. It was not driven by any improper motive andrelied on the best available information including the past work of Michael Greene, NSLS. [100] I have assessed the red line sketch provided by the Respondent. I have reviewed in some detail the exchanges between theRespondent and Mr. Ryan with respect to the sketch. Mr.

MacCallum’s position was that his sketch provided a reasonable alternativeinterpretation of the relevant deed calls and on the ground features. [101] I have taken some pains to follow the Respondents argument. I believe I understand it but, with respect, I have not accepted it. Iwas more persuaded by the rationale provided by the surveyor. Specifically, I find his explanation with respect to the critical issue ofhow the property boundaries come together to be understandable and in keeping with the totality of the evidence. I accept hisconclusions and the reasoning pathway employed by him.

I accept his view as to the right of way situation. To be clear, I absolutelyreject that any title by virtue of a possessory claim has been established by the Respondent. Nothing here came close to the requirementsset out in case law such as Brown v. Bellfontaine, [1999] NSJ No. 291 as affirmed by the Court of Appeal, 2000 NSCA 103. [102] I find that the boundary between these two properties is as set out in the Report of Survey filed by Zachary Ryan, NSLS on April1, 2019 and recorded in the Cumberland County Land Registration Office as document number 114798599.

Claim for Right of Way [103] The Respondent has a right of way on Dogwood Drive to the end of Dogwood Drive on the northwest boundary of theApplicants’ land. This is asserted by the Respondent and acknowledged by the Applicants. [104] The Applicants say that if the Respondent was seeking to assert some wider right then this is not reflected in the parcel registerfor the Applicants’ land and does not appear in the Ryan survey. The Applicants rely on the correctness of the parcel register and notethat no proceeding under the Nova Scotia Land Registry Act has been commenced by Mr. MacCallum.

Such a step would have to takeplace on notice to the Registrar General (LRA., s.92A). [105] The Respondent appears to be claiming a right of way over a portion of the Applicant lands beyond that expressed in paragraph103 above. This appears to be based in the wording of the Sarah MacDonald to Earl Thomas and Marion Thomas Deed dated July 24,1968.

It provides in part: ...together with a right of way to travel over the aforesaid roads and lanes to get to the shore and to the Port Howe Shore Road so called.Being highway 66 on map. [106] I agree with the Applicants that this does provide the basis for the discrete right of way discussed in paragraph 103. It is not abasis for a right to park vehicles or place items on the right of way or otherwise employ it in ways that go beyond the proper limited useof a right of way for access: See for example discussion in Pink v.

Lohnes-Davis, 2014 NSJ No. 463. [107] The Respondent further has no entitlement to an implied right of way due to necessity by reason of possessing an otherwise landlocked parcel. The Respondent has full access to his land by virtue of a granted and registered right of way over Toney Cove Lane. Thisstreet runs fully along the northwest boundary of his parcel. It provides full access to his lands. Land Registry Act, S.N.S. 2001, c.6 [108] It was noted during the hearing that this proceeding was not an application under

section 92 of the Land Registry Act or aproceeding seeking a remedy for an alleged violation of

section 22 of the Land Registration Administration Regulations. [109] As the Court does not have a proper record before it on those issues, it will refrain from any comment on possible recourse underthose provisions or otherwise. Claim for Damages [110] This case was not truly about damages. While the claim was pleaded it was not pressed in evidence or argument. As a matter oflaw, trespass is actionable without proof of damage. Nova Scotia caselaw contains many discussions of the law of trespass and trespassdamages. In MacQueen v. Sydney Steel Corp., 2013 NSCA 143 the Nova Scotia Court of Appeal adopted the following

summary: 88 The trial decision in Smith v. Inco Ltd., 2010 ONSC 3790, supplies a useful

summary of the trespass – nuisance distinction,emphasizing the need for directness in the former: [37] The essential characteristics of a trespass to land are concisely set out in Grace v. Fort Erie (Town), (ON SC),[2003] O.J. No. 3475 (S.C.J.) at para. 86, and in R. & G. Realty Management Inc. v. Toronto (City), [2005] O.J. No. 6093 (S.C.J.) atpara. 40, as follows: 1. Any direct and physical intrusion onto land that is in the possession of the plaintiff; 2. The defendant’s act need not be intentional, but it must be voluntary; 3. Trespass is actionable without proof of damage; and 4.

While some form of physical entry onto, or contact with, the plaintiff’s land is essential to constitute a trespass, the act may involve

placing or propelling an object, or discharging some substance onto, the plaintiff’s land. [ 111 ] In the recent case of Urban Farm Museum Society of Spryfield v. Auby , 2021 NSSC 136 , Justice Norton quoted this law noting that no proof of actual damage to the land is required to advance a monetary claim. In setting the remedy however Justice Norton settled on nominal damages of one dollar ($1.00). [ 112 ] I find myself attracted to this same rationale here. This case was about setting the boundary line and hopefully achieving the level of certainty needed to return these parties to a less stressful coexistence.

The evidence as presented did not in my view raise to the level which requires the Court to express itself through damages. [ 113 ] Accordingly, as was the case in the Auby decision, the Court believes the record before the Court calls for the assessment of nominal damages only. These are set in the sum of one dollar ($1.00) in favour of the Applicants. Conclusion [ 114 ] In

summary the Court orders that the Applicants are entitled to: (

a) A declaration that the property boundary as between the Applicants and Respondent is as it appears in the recorded Report of Survey of April 1, 2019 prepared by Zackary Ryan, NSLS; (

b) a mandatory injunction order requiring the relocation of the 5 th wheel trailer and shed such that these items no longer impinge on the boundary as reflected in the Ryan Survey. This will occur within 30 days and at the expense of the Respondent; (

c) an award of nominal damages in the amount of one dollar ($1.00); (

d) the issue of costs will be reserved. I ask that the parties attempt to resolve the cost question. If this does not occur within 30 days of the date of this decision, then the parties will provide written submissions to the Court no later than 60 days following this decision. Hunt, J.