)) Mississippi Valley Conservation Authority Plaintiff – v. –, 2017 ONSC 5407

CITATION : Mississippi Valley Conservation Authority v. Bucci , 2017 ONSC 5407 COURT FILE NO.: 15-64412 DATE: 2017/09/12 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) Mississippi Valley Conservation Authority Plaintiff – and – Glen Bucci and Marthe Roche-Bucci Defendants ))))))))) Robert Ghignone, Counsel for the Plaintiff David Contant, Counsel for the Defendants ) ) )) HEARD: February 27, 28, March 1 and 2, 2017 REASONS FOR JUDGMENT L. Sheard J.

Overview [ 1 ] This action concerns ownership of lands (the “Disputed Lands”), that the plaintiff, Mississippi Valley Conservation Authority (“MVCA”), asserts form part of the K&P rail trail in Frontenac County (the “K&P Trail”). The Disputed Lands are described as the easterly 49.5 feet measured from the centerline or center stake of the former Kingston and Pembroke Railway (“KPR”) tracks to the lands undisputedly owned by the defendants. The Disputed Lands are included in the lands described in

Part 13 on deposited Plan 226104 [1] (“Part 13”). MVCA seeks a declaration that it owns all of

Part 13. [ 2 ] The K&P Trail runs over the rail bed of the former KPR railway tracks. The tracks were removed in the early 1960’s and the K&P Trail is now used as a recreational trail and unopened road access in the summer months and by snowmobiles and the like in the winter. The K&P Trail has been managed by MVCA since the 1970’s and, by deed dated May 4, 1990, title to

Part 13 was conveyed to MVCA (the “1990 Deed”). [ 3 ] The defendants (the “Buccis”) own lands that abut the K&P Trail (the “Bucci Lands”). They say that

Part 13 includes land owned by them pursuant to the legal title registered under the Ontario land titles system. The Buccis say that they own the eastern half of

Part 13 pursuant to the chain of title which conveyed part of Lot 24 “bounded on the west by the centre stakes of the KPR.” [ 4 ] Both MVCA and the Buccis have paper title to some or all of the lands described in

Part 13. On October 25, 2010, title to the Bucci Lands was converted from the land registry system to Land Titles Qualified (“LTQ”). MVCA’s paper title to

Part 13 was not converted to LTQ and remains registered under the land registry system. [ 5 ] MVCA asserts ownership to

Part 13 by virtue of its paper title, as per the application of the Registry Act , R.S.O. 1990, c. R.20, and by way of adverse possession. [ 6 ] The Buccis assert that, as title to the Bucci Lands was converted to LTQ, it is governed by the Land Titles Act , R.S.O. 1990, c. L.5. The parties agree that the qualifications to the Buccis’ title include “the rights of any person who would, but for the Land Titles Act , be entitled to the land or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention.” [ 7 ] As an alternative pleading, MVCA asserts that it owns all of

Part 13 by virtue of adverse possession and that the property description of the Bucci Lands in the Buccis PIN in instrument FR758701 contains a misdescription in that it includes lands not owned by the Buccis because title to the Disputed Lands was extinguished by reason of adverse possession of KPR and/or MVCA. [ 8 ] There is no survey which identifies the location of the centerline or centre stakes of the KPR and there is uncertainty as to its exact location. The Buccis assert that the Court cannot make a declaratory order concerning MVCA’s ownership of

Part 13 without a proper field survey of the affected lands. The parties agree that if an order is made directing title to the Bucci Lands to be rectified to reflect MVCA’s ownership of all or part of

Part 13, a Reference Plan must be created, which accurately describes the location of the boundary between

Part 13 and the Bucci Lands. [ 9 ] MVCA is not asserting against the Buccis ownership of all the lands that lie 49.5 feet to the east of the centerline/stakes of

the KPR. Rather, MVCA seeks an order that the boundary between

Part 13 and the Bucci Lands be determined in accordance with the fences that existed prior to 2014, when the Buccis built a new fence in a location different from the historical fence. In taking that position, MVCA acknowledges that the surveys, such as any do exist, show that the KPR did not consistently take or use the full 49.5 feet of the lands on the east side of the centerline of the KPR. Issues to be determined: 1. Who owns the easterly half of

Part 13? 2. Where is the boundary between

Part 13, or its easterly half, and the Bucci Lands and/or how should that boundary be determined? 3. Should the Buccis be required to remove the fence they built in 2014 and/or restore the existing fence? Issue #1: Who owns the easterly half o f

Part 13? Agreed Facts [ 10 ] As per their Agreed Statement of Facts, the parties agree that:

i) the KPR and later the Canadian Pacific Railway Company (“CPR”) operated a railway from 1894 to approximately 1960 between Kingston and Renfrew, Ontario (the “Railway”); ii) the KPR line passed through Lots 24, Concession 11, which lands are now identified as

Part 13.

Part 13 has not been converted to Land Titles; iii) the Buccis claim to own the eastern half of

Part 13; iv) on April 27, 1907, Mr. Morris, Civil Engineer and Ontario Land Surveyor prepared a document entitled “Plan of Line as Constructed Through Frontenac County” (the “Plan of Line”) which provided, in part, that there was deed in the Registry office and no reference to the R/W in titles in the Registry Office. “Same is fenced and area given in table is calculated for with the 49.5 feet on each side of centerline as shown on re-survey Plan No. 35408. RY.CO. will rely upon fencing for its title”;

v) in 1927 William Walter Roche transferred the Bucci Lands (as identified in these Reasons) to his sons. The transfer states that the Bucci Lands are “bounded on the west by the centre stakes” of the KPR now in the course of construction.”; vi) all of the deeds in the chain of title to the Bucci Lands from 1927 forward include the same legal description of the westerly boundary except that the phrase “now in the course of construction” does not appear on deeds from 1960 to the present; vii) the Railway was operated along the tracks within

Part 13 until approximately 1960. Since at least 1950 there was a partial fence located between the railroad tracks and a home owned by the Buccis’ predecessors in title; viii) the railway tracks were removed in the early 1960s but the fence remained; ix) CPR compiled a Plan dated June 2, 1972 to illustrate the right-of-way lands of the KPR and its Lessee, Canadian Pacific Limited, in the Lessee’s abandoned Kingston subdivision, which was prepared from a Topographical Survey performed in the year 1907 of record with Canadian Pacific Limited and is shown on their Resurveyed Plan No. 35408 (the “CPR Plan”);

x) the CPR Plan includes

Part 13; xi) by Quit Claim Deed dated June 15, 1973, KPR and CPR granted, released and quit claimed their interest in

Part 13 to ARDDO [2] ; xii) ARDDO planned to develop the formal alignment of the railway as a recreational trail. The K&P Trail was built on the former bed and alignment of the KPR; xiii) since 1978, MVCA has managed the former alignment of portions of the Railway, now known as the K&P Trail and, in the late 1970’s, it replaced a portion of the fence with a new fence in a similar location; xiv) on June 25, 1990, ARDDO transferred its interest in

Part 13 to MVCA by way of deed; and, xv) on March 5, 2007, the Bucci Lands were transferred to Marthe Roche-Bucci and John Allen Roche. On May 27, 2011 the Bucci Lands were acquired by the Buccis. [ 11 ] On October 25, 2010 title to the Bucci Lands was converted to LTQ. Positions of the Parties [ 12 ] MVCA asserts that this is a title dispute and that the provisions of

Part III of the Registry Act operate to establish that,

immediately prior to conversion of the Bucci Lands to LTQ, MVCA was the paper and legal title holder of

Part 13. [13] MVCA called Bram Potechin[3] as its expert. Mr. Potechin expressed his opinion that, as a title issue, the 1990 Deed is theonly transfer of the Disputed Lands within the 40-year search period, and, in the absence of a Notice of Claim respecting the DisputedLands, the 1990 Deed governs ownership of

Part 13, which includes the Disputed Lands. [14] For the purposes of this action, I conclude that it is reasonable to use October 25, 2010 as the date on which the Bucci Landswere converted to Land Titles Qualified, as the date on which there was a “dealing” with the Disputed Lands and from which the 40 yearsearch period should be referenced. This date was also used by the Buccis’ expert, Izaak de Rijcke[4], who stated that the chain of titleto the Bucci Lands needs to be shown as based on a root dating back to October 25, 1970.

Mr. de Rijcke also asserts that the Buccis mayrely on the description of the Bucci Lands as found in the original conveyance in 1927 to show the root of title that is now seen in BucciLands, and as described in PIN 36207-0025 (LT). [15] The MCVA submits that the effect of

section 112 of the Registry Act is that an owner need only show good and sufficientchain of title for a 40-year period prior to October 25, 2010. [16] No one disputes that there was no dealing with the Bucci Lands in the 40 years immediately preceding October 25, 2010. Thedealing with the Bucci Lands closest in time occurred on August 24, 1960. That is outside the 40-year period. The 1990 Deed was“dealing” with the Disputed Lands within the 40-year period. The 1990 Deed purports to transfer

Part 13 to MVCA. MVCA relies uponthe 1990 Deed for its legal title to

Part 13, which encompasses the Disputed Lands. [17] Mr. de Rijcke is of the opinion that the issue before the Court is not a title issue but a boundary dispute. Further, Mr. deRijcke opines that the state of the paper title as at October 25, 2010 is irrelevant because, once having been transferred to LTQ, title tothe Bucci Lands is subject only to the qualifications set out in the Land Titles Act, which, in this case, are a claim of adverse possessionor an alleged misdescription. Analysis of Application of the Registry Act [18] The law is now well settled that, pursuant to

Part III of the Registry Act, for lands that are subject to the Registry Act, a persondealing with the land is required to show only that he is lawfully entitled to the land as owner for a period of 40 years immediatelypreceding the day of the dealing. The effect of

Part III was considered by the Ontario Court of Appeal in the leading case of Fire v.Longtin, , from which an appeal to the Supreme Court of Canada was dismissed (SCC), [1995] 4S.C.R. 3, in its brief reasons dismissing the appeal, the Court stated: We adopt in their entirety the reasons for judgment delivered byMcKinlay J.A. speaking for a unanimous Court of Appeal (1994). [19] In Fire, the dispute involved two chains of title, both of which dealt with

Part 2 of Lot 2. The appellants came to own

Part 2 ofLot 2 by virtue of a deed from a grantor who did not have title. At the time of the transfer, the Registry Act required only that the title besearched back 40 years. The only persons who were shown to have title to

Part 2 within that 40-year period were the appellants. Therespondents argued that the appellants could not acquire legal title from someone who did not own the land the grantor purported toconvey. [20] In her reasons, McKinlay J.A. also considered the decision of the Ontario Court of Appeal in National Sewer Pipe Ltd. v.Azova Investments Ltd. (1993), . In that case, the deed to the plaintiff followed a series of conveyances based on atypographical error which erroneously purported to convey property that was not owned by the grantor.

Similar to the facts in Fire, theonly conveyance within the 40-year search period was one based on a grant, containing an error, which purported to convey title whichthe grantor did not have. [21] Despite the acknowledged errors in the deeds, the appeal courts concluded that

Part III of the Registry Act operated to supporttitles on which successive grantees may have relied, even in the face of apparent injustices to persons with claims to real property whichare older than 40 years and who did not give notice of those claims within the 40-year search period. [22] Here, there are no obvious or acknowledged errors in the 1990 Deed transferring

Part 13 to MVCA. Moreover, the evidencedoes not lead the Court to conclude that there would be any apparent injustice to the Buccis if MVCA were found to be the titled ownerof

Part 13. It was the evidence of Marthe Roche-Bucci that the Bucci Lands have been in her family since at least 1927. Her ancestorswelcomed and relied on the railway for their livelihoods. Ms. Roche-Bucci produced a photograph of her grandfather standing beside theWilbur train station on/near the Bucci Lands and photographs that showed historic fences along or near the KPR that ran through theBucci lands. Ms.

Roche-Bucci admitted that when the Buccis built the fence in 2014 (that MVCA seeks to have removed), they put it ina new location, closer to the K&P Trail, and removed the existing (historic) fence and/or fence remnants and filled in the fence postholes. [23] I conclude that the Buccis and their ancestors knew, at the least, that the KPR adversely possessed and thereby assertedownership over the lands that lay under the track, and that the KPR also built fences along the track. Therefore, were the Court toconclude that MVCA had acquired paper title to

Part 13 pursuant to the provisions of

Part III of the Registry Act, it should not come as asurprise to the Buccis nor, do I find, that it would it cause them any injustice. It should be noted, however, that the risk of injustice isirrelevant to the determination of title: in Fire, the Court concluded that

Part III operated to give good title even if to do so would “resultfrom time to time in apparent injustices to persons with claims to real property which are older than 40 years.” (at p. 9) [24] Taken together, I conclude that as at October 25, 2010, ss. 112 and 113 of the Registry Act operated to give MVCA paper titleto

Part 13 and, as no Notice of a Claim was made with respect to the Disputed Lands, any ownership of the Buccis to the Disputed Landswas extinguished.

Analysis of Application of the Land Tiles Act [ 25 ] Mr. de Rijcke agreed that there was an overlap in the title of the Disputed Lands but opined that the Registry Act has no application to the Bucci Lands as the Bucci title is governed solely by the Land Titles Act . In his view, the decision in Fire, has no application to the facts here: in Fire the Court was dealing with two owners of the same lands. Here, the Court is dealing with a boundary dispute between two separate properties. [ 26 ] Mr. Potechin was of the view that the Bucci Lands ought never to have been put in LTQ until the issue of ownership of

Part 13 had been resolved but that in any event the conversion to LTQ still allows a challenge to the Buccis title on the basis of misdescription. Mr. Potechin was of the opinion that the property description on the Buccis PIN should have excepted the east half of

Part 13, and that the issue of misdescription could be adjudicated and determined by this Court. [ 27 ] I accept and adopt the analysis of Mr. Potechin that when title to the Bucci Lands was converted to LTQ, the title was conditional upon any ownership rights of MVCA to the Disputed Lands. I further accept and adopt the view expressed by Mr. Potechin that as at October 25, 2010, by virtue of the 1990 Deed and in the absence of any Notice of Claim respecting the Disputed Lands, MVCA was the legal owner of all of

Part 13. Accordingly, when the Bucci Lands were converted to LTQ, there was a misdescription in the Bucci Lands which should be rectified to show the east half of

Part 13 excepted from the PIN. Did MVCA acquire title by adverse possession? [ 28 ] MVCA alternatively asserts ownership of

Part 13 by way of adverse possession. [ 29 ] Both parties’ experts agree that in the late 19 th century, the building of railways was important to the province and to the country. As a result, railroad companies were given private expropriation rights under federal and provincial law to acquire an interest in land. Mr. de Rijcke states that this method of acquiring land was typically accomplished through the preparation of a “plan and profile”, drawn and signed by the Railway Engineer and Surveyor in the course of defining the centerline of the proposed Railway.

The location and configuration of the railroad, as well as the amount of land to be acquired, depended on a determination of the best route for the railroad. [ 30 ] In this case, Mr. de Rijcke could not locate either a Book of Reference and/or a Plan and Profile. He was able to find a copy of the KPR “Plan of Line as Constructed Through Frontenac County” dated April 27, 1907 prepared by Mr.

Morris, Civil Engineer and Ontario Land Surveyor, which was then incorporated into the Title Record Plan dated December 8, 1919. [ 31 ] In the opinion of Mr. de Rijcke, the Title Record Plan does not qualify as a Plan and Profile. Whether or not he is correct, I conclude that the Title Record Plan should be taken into account for the purposes of determining the location of the Disputed Lands. [ 32 ] Mr. de Rijcke opined that the Plan of Line dated April 27, 1907 appears to be a survey of the existing railroad as constructed in 1909, which was then reincorporated into the Title Record Plan.

Mr. de Rijcke correctly notes that the Plan of Line does not consistently show a distance of 49.5 feet from the centerline of the railway tracks. That point was conceded by MVCA, which, for the purposes of the preparation of a Reference Plan, seeks a declaration that it owns the portions of the land as can be determined in accordance with the fence(

s) that existed prior to June 2014, and, where no fence or remnants can be found, in accordance with the Title Record Plan for Lot 24, Concession 11. [ 33 ] The Buccis concede that they do not own any part of the K&P Trail, whether or not the K&P Trail lands are encompassed in the PIN/legal description of the Bucci Lands. That is a sensible position to take.

There is no dispute that the Railway was operated until the 1960’s and, given Mr. de Rijcke’s evidence about how railways acquired lands, and coupled with the information on the Title Record Plan, it would be unreasonable to assert that the KPR did not adversely possess the lands that lay under the KPR railway track.

For the purposes of the adverse possession analysis, the question to be asked is what lands beyond the railway bed, if any, did KPR adversely possess? [ 34 ] The evidence is undisputed that the KPR did not fence all the lands along the Railway bed, nor were the fenced areas consistently 49.5 feet from the centerline of the track. [ 35 ] However, there was much evidence at trial of the existence of past fences. Fences and remnants of fences were visible in recent and historic photographs.

Also, the Buccis had firsthand knowledge of historic fence posts and holes, which they dug up and filled in, in 2014. [ 36 ] There was also evidence at trial of natural boundaries along the KPR such as swampy areas, hills, and large rocks or boulders, where no fences were built or needed. Ms.

Roche-Bucci testified that the Buccis moved a number of these large boulders in recent times. [ 37 ] The Title Record Plan also offers evidence of the location of the lands adversely possessed by KPR. [ 38 ] I conclude that there is sufficient and compelling evidence that the KPR acquired possessory title of the lands over which the KPR travelled for at least 60 years. Therefore, to the extent that

Part 13 includes those lands, I declare that, as against the Buccis, MVCA is the owner of those lands. [ 39 ] The parties agree that the conversion to LTQ does not immunize the Buccis’ title from KPR’s claim to ownership via adverse possession. Therefore, to the extent required to give effect to this decision, the Buccis’ title should be rectified to reflect the KPR’s ownership interest in the lands over which the railway track was laid. In addition, as the Buccis do not assert any claim over the lands occupied by K&P Trail, if required, I declare that, as against the Buccis, MVCA is the owner of the K&P Trail.

Issue 2: Where is the boundary between

Part 13, or its easterlyhalf, and the Bucci Lands and/or how should that boundary bedetermined? [40] In the absence of a survey, it is impossible for the Court to determine this issue. For the reasons set out above, the Courtconcludes that MVCA is the legal owner of

Part 13. However, the MVCA properly acknowledges that

Part 13 may not accurately depictthe location of the easterly boundary of

Part 13, described as the “Trail Segment” at paragraphs 1 (

a) and 1 (

c) of the statement of claim. [41] I accept the views expressed by the experts and, in particular, by Mr. de Rijcke, that a proper survey is required and that asurveyor would take into account not only the fences or fence remnants and other evidence of fences but would also consider otherevidence when determining the boundary of the disputed lands on the easterly part of

Part 13. [42] The parties agree that the law of adverse possession requires that the person claiming a possessory title as against the legalowner must not only establish actual possession for the statutory period but he must establish that such possession was with the intentionof excluding the true owner and that the true owners possession was effectively excluded for the statutory period (Keefer v. Arillotta(1976), (ONCA)) [43] As set out above, I have concluded that title to the Bucci Lands is subject to a misdescription. Therefore, I need not determineif the KPR adversely possessed the easterly half of

Part 13. However, if I am mistaken in my conclusion about the implications of theRegistry Act as to the ownership of the Disputed Lands, I also conclude that the KPR did adversely possess both the lands underneath theKPR as well as certain lands alongside the railway track. What is less clear is whether those lands extended 49.5 feet from the centrelineof the KPR or some lesser distance.

In other words, although I am satisfied that KPR intended and did, in fact, adversely possess landsover which it built the railway track, together with lands on either side of that track, the evidence before me is insufficient to determinethe extent of the lands adversely possessed. [44] In reaching the above conclusion, I have taken into account that the Buccis dispute that the KPR or MVCA adverselypossessed any of the Bucci Lands.

I find the evidence of Ms Roche-Bucci to be unreliable that the KPR had the permission of herpredecessors in title to cross the Bucci Lands or that the fences were not built by the KPR in order to assert ownership over the BucciLands but in order to protect the animals from the train. Her evidence on those issues is at best speculation. I prefer the other trialevidence that supports the claim of adverse possession, and in particular, the Title Record Plan on which it is noted that the “RY. CO.will rely upon fencing for its title.” [45] I do accept the evidence of Ms.

Roche-Bucci, which is also consistent with the other evidence, that the KPR fences were notall the same distance from the rail bed; that there were no fences where there were wetlands or other natural boundaries; and that therewere some fence pieces on the ground at markings F and G on the map at Exhibit 20. [46] Therefore, in order to answer issue number 2, and from which a Reference Plan may be prepared, a survey needs to beundertaken to determine

i) the centerline of the KPR, ii) the location of historical fences that existed prior to the 2014 fence constructed by the Buccis, and iii) the location of historical boundaries taking into account the Title Record Plan and the natural boundaries (boulders,swamps, etc.). The parties accept that the onus is on MVCA to establish the location and extent of the lands that were “expropriated” bythe KPR for the railway.

Accordingly, MVCA should be responsible for the preparation of the reference plan, including paying for it. [47] Once completed, the Reference Plan shall be used to correct the converted title of the Bucci Lands. Issue #3. Should the Buccis be required to remove the fence theybuilt in 2014 and/or restore the existing fence? [48] It is undisputed that the Buccis unilaterally decided to build a new fence in July 2014. They chose to build the fence at alocation different from the historical fences and closer to the K&P Trail. Ms.

Roche-Bucci had knowledge of the family historyrespecting the Bucci Lands and knew at least some of the history of the use of railway lands and of the historic fences. There is someevidence that the Roche ancestors accepted the fences built by the KPR [49] The Buccis assert that they did not seek, nor did they require, permission to build the new fence because their legal title gavethem ownership of the lands to the centre stakes of the KPR. Furthermore, they assert, and the evidence of MVCA witnesses supports,that the fence they built did not encroach on the K&P Trail.

The Buccis state that they have no intention of interfering with the use ofthe K&P Trail. Nonetheless, the position advanced by the Buccis for not seeking permission before building the new fence, is somewhatundermined by their argument in this proceeding that, without a survey, no one can say with certainty where the centre stakes orcenterline of the KPR is located. [50] I find it reasonable to conclude that the Buccis did not consult about the location of their new fence because they feared that itmight give rise to a dispute.

They moved the boundary of the fence in the face of the long family history respecting the use and fencingof the KPR lands. It appears that this “boundary dispute” was as a result of the construction of the 2014 fence.

[ 51 ] The Court has determined that the boundary of the east half of

Part 13 should be governed, in part, by the historical (pre-2014) fences, therefore to the extent that the 2014 fence is in different location from the prior fence, it is to be removed or moved to follow the historic fence line. If there is no historic fence line, then the 2014 fence is to relocated to follow the boundary as determined by the survey and Reference Plan referenced above in these Reasons. Costs [ 52 ] Overall, MVCA has been successful in this action and is entitled to its costs.

Should the parties be unable to agree on costs, within 21 days of the release of these Reasons, MVCA shall serve and file to my attention its written costs submissions not to exceed 3 pages, plus its Bill of Costs, time dockets and copies of any Offers to Settle. Within 14 days of service upon them of the Costs Submissions of MVCA, the Buccis shall serve and file their written costs submissions as per the above guidelines. Released: September 12, 2017 L. Sheard J. CITATION : Mississippi Valley Conservation Authority v.

Bucci , 2017 ONSC 5407 COURT FILE NO.: 15-64412 DATE: 2017/09/12 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mississippi Valley Conservation Authority Plaintiff – and – Glen Bucci and Marthe Roche-Bucci Defendants REASONS FOR JUDGMENT L. Sheard J. Released: September 12, 2017