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Lorsque le document est trop grand pour Atre reproduit en un seul client, il est film* * partir da Tangle supArieur gauche, de gauche i droite. et de haut en bas, en prenant le nombre d'imagas nicessaire. Les diagrammes suivants illustrent la m*thode. 1 2 3 1 2 3 4 5 6 Tl.ct. 2 HEAD NOTES OF REPORTED LAND CASES Bv H. L. EST£N, O.L.S. TORONTO £ aw p I . BLAOKfTT BOBINWM. PHINTIR, 8 JORDAN tTRtlT; TOROHTC. CONTENTS. Alternate Concessions ■ Boundary by Agreement Boundary Lines 7. 8, i6, 17, Concessions 8- ^3> Costs, Liability, Witness Fees 15, 21, 26, Double or Single Fronted Concessions Double Front Concessions Evidence • • 3. 1°. ", 13. 14. 15. 16, Highways 9 Municipal Surveys Miscellaneous i • '6, 19, Original Monuments (work on ground) Patent • • • • •' Plans and Field Notes 10, 15, 16, 17 Side Lines and Governing Lines • . i. Single Front Concessions . Special Acts ", Survey (work on ground) Title by Possession, and Statute of Limitations 11, Trespass 9. 10. 12. 17, 18, 19, Unskilful Survey or Erroneous Survey 7. 10. M. Variations of Compass and Bearings 5. 8, 18, 19, 14. 15. 28, 2g. 1, 2, 17, 18, 15. 17. 13. 14. 20, 23, 3. S, 1. 9. 18, 19, 2. 3. 13, 21, I, 10, 12, 13. 23. 24. 15. 25, 12, 20, 21, 23, 21, 25, 31. 32. I, 2, 3. 4. 19. 24, 18, 26, 21, 27, 24, J6, 12, 13. 10, 19, 20, 30, 5. 6. . . I, 2, 22, 23, 15. 16, 18, 22, 26, 31, 31. 32, PAGES. 25. 22, 24 24. 25 28, 29 36. 37 3. 6 5. 6 3c. 36 27. 33 28, "9 30. 32 16, 17 20, 33 .3. 36 7. 8 3. (^ 25, 26 17, 20 24, 36 32, 33 36. 37 31 HEAD NOTES OF REPORTED LAND CASES. H. L. ESTEN. O.L.S., Toronto. SURVEY AFTER PATENT — PATENT GOVERNS. — TOWNSHIP OF HARWICH. The plaintiff claimed a piece of land as part of lot McGregor r»- ten in the first concession west of the Communication McMichaei road in the township of Harwich ; the defendants '' "'" claimed it as part of lot nine , and the plaintiff was en- citled to recover if the line between the lots was to be run as in the case of a double not a singlei". onted concession. It appeared that lots nine and ten were described for patent by metes and bounds in 1793, «^"*^ letters patent were soon after issued in accordance with this description. The original survey of that part of the township was not completed on the ground, but the surveyor laid out the Communication road as directed and returned a plan shew- ing it, and, as the learned Judge who tried the case with- out a jury found, he gave the infoimation upon which the description for these lots and for others about the same time were prepared. The principle of survey with double- fronts was not in use before 1820. In 1821 another sur ve^'or was instructed by the Government to complete the survey of this township with double-fronted concessions, and to explore and survey the road, but not to interfere with the lands ceded intersecting it. No pests on the ground were found along the Communication road, and he laid out the lots along it as double-fronted. held, that the latter survey, made after the patents for these lots, could not affect them : that the principle of sur- vey with double-fronts could not be applied to the grant made long before it was adopted ; and that the plaintiff therefore could not succeed. McGregor v. McMichael et al., 41 Q.B., 128. SINGLE FRONT CONCESSION — NOT ALTERED BY SUBSEQURNT SURVEY. The first five concessions of a township were surveyed Murphy m. in 1797, the lots being 29 chains 87 links in width. About "«*'ey- 1813, an original post was found by a surveyor in front . .Si.'. 9-u >» of the fifth concession by which he determined the limits of the lots, and they had been settled on accordiogly. In 1821 the remaining concessions were surveyed, under in- structions from the Surveyor-General, which directed the several concession lines to be produced beginning with that between the fifth and sixth concessions, and from the centre of each line at the distance of 50 links each way, right and left, at right angles thereto, the several lots of the width of 29 chains 37 links were to be posted. The surveyor, undei these instructions, double posjed the line between the fifth and sixth concessions, making the lots 29 chains 37 links wide and patents were afterwards granted for'half lots in the concession. It was contended that this made the fifth concession double-fronted, having the lots 29 chains 87 links wide in the front, and 29 chains 37 links in rear. One of these patents however made the rear half 29 chains 87 links wide, and the Government plans shewed no jog in the side lines of the fifthconcession. Held, that the concession was not double-fronted, for the evidence shewed that the whole of it had been surveyed as a single fronted one in 1797, and the surveyor in 1821 had no authority to change it, ii he so intended. Murphy V. Healey 30 Q.B., 192. Holmes vs. McKechin. SINGLE OR DOUBLE FRONT CONCESSION — HOW TO RUN SIDE LINE. TOWNSHIP OF CUMBERLAND. The township of Cumberland is bounded to the north by the Ottawa, and has a range of lots on the river, with their rear boundaries irregular, corresponding to the course of the strea.n in front, the remainder of it being laid out into concessions running north and south, numbering from the east, and into lots running east and west numbering from the north. The instructions for the original survey were to leave one chain as an allov;ance for road between each con- cession, to be double posted at the distance of 50 links right and left from the centre of the road The surveyor how- ever planted only a single row of posts in rear {i.e., at the west side) of each concession, and he stated in his evidence that the west halves of lots in the concession were to be measured from these posts, and the east halves of lots in the next concession westward by beginning at the distance of one chain from each post westerly, parallel to the side line of the township. No line therefore was run or posted at the front of the eighth concession. The plaintiff sued for trespass on the west h.ilf of lot B , in the eight concession, and the question was how the course and starting point of hit side line were to be de- 8 termined ? His surveyor took tne line dividing Cuniber- land from Russell, the adjoining township to the soutn, as governing the course of the side line, because, thougii the lots numbered from the north, there was no continuous straight line at that end of the concession. He found an original monument on the rear line of the 7th conc' ssion, intended to mark the limit between lo*s A. and Z>. there, and ran the side line from a point one chaiii wcl' of that monument to the rear of the 8th concessicii, whicli if cor- rect, shewed tiiat the plaintiff should recover ; while if the township was to he treated as double-fronted, the Ime should have been run from the post at the west side of the concession, and in that case the defendant should succeed. It appeared that whole lots had been granted in several of the concessions, and the north halves of two lots and the south half of one, all before 1854, but that many more grants had been made from 1821 to 1858 for the east and west halves of lots separately described. I/eli^. I. That the course of the side line was under the facts proved correctly ascertained, the case being within the proviso to sec 71, Consol Stats. U.C , ch 77, and the principle of McDonald v. McDonald, 11 C.P. 374.. 2. That sec. 85 could not apply, for no line in front of the 8th concession had ever been run or posted. As to the starting point for the side line, the precise case of this sur- vey is unprovided for by the Act ; the concessions were not single-fronted for the lines had been run aiid posted in rear not in front, and very few whole lots had been granted ; and they were not within the definition of double-fronted concessions, or within sec 28, for only a single row of posts had been planted, and the grants had not all been by half lots ; but //eld, looking at the instructions, the evidence of the surveyor and the grants made, that the weight of evi- dence was much in favour of treating the township as one with double rather than single-fronted concessions, in which case the plaintiff's side line had not been correctly determined. JJM, also, that if a single-fronted concession as the posts in rear of the seventh were intended to govern the front angle of lots in the eighth concession, the plaintiffs line might properly being as it did by his survey Holmes V. McKechin, 23 Q.B., 52. TOWNSHIP OF CUMBERL.\ND, SURVEY OF- FRONTED CON'CESSIONS — EVIDENCE- GRANTED 12 VIC, CH. 35, SEC. 37. ■SINGLE ORJ)OUBLE- -SECOND NEW TRIAL trial. See this case reported on a previous motion for a new sEl^K^«*-i<^^fta I* The jury havinK again found for the plaintiff, the court granted a second new trial, holding that upon the facts proved the township should clearly be treated as one with double-fronted concessions. Held, also, that as all the grants before the passing of the Surveyors' Act, X2 Vic, ch 35, sec. 37, had described the lard in half lots, that feature of a double-fronted con- cession was established by the retrospective words of the Act, and subsequent grants, therefore, could not affect the question. There are several townships with double-tronted con- cessions in v/hich the posts have not been planted on both sides of the allowances for roads between the concessions, though the statute makes that a part of the definition of such townships. Holmes v. McKechin, 23 Q B., 321. DOUBLE FRONT CGNCESSION—ADJALA ROAD, TOWNSHII" OF ALBION. Mcl.uchlen vs. Dixon. Marrs ts. Davidcr^n. In the township of Albion, the lots in the different concessions were originally surveyed and laid out with double fronts ; but the Adjala road, which forms the northern boundary of the township of Albion, cuts lots numbers 30 and 31 in the 7th concession diagonally, leaving the eastern halves of these lots broken, and not corresponding with the front or v/est halves, and no posts or monuments were placed to mark the angles of the east halves. Held, in appeal, that the side or division road between lots numbers 30 and 31 should not run direct from one front to the Adjala road in a direct line, but that the side road should be run from each front to the centre of the lots, Macaulay, C.J, C. P., V. C, Esten, V. C. Spragge, and Richards, J,, dissentiente, McLachlen v. Dixon, 4. C. P 307. DOUBLE FRONT. — PATENTED IN HALF LOTS. The 12 Vic.ch. 35, sec. 37, Consol, Stat, U. C, ch. 93, sec 28, which prescribes the rule for drawing the side lines in double-fionted concessions, applies to townships there- tofore surveyed. Held, following Warnock v. Cowan, 13 U. C. R. 257, and Holmes v. McKechin, 23 U. C. R., 52, 321,— that the lands having been described in half lots is made by that section part of the definition of a township with double front concessions. ^^^tt. Held, also, that the rule prescribed appHes to all lands in such concessions, not to the grants of half lots only, and that it is brought into application by the granting of any half lots. Semble, however, that the section is on both points open to doubts, which it is desirable to remove by legislation. Where land was described as commencing at a post planted four chains and fifty links from the north-east angle of a lot ; Held, that the post (the existence and posi- tion of which were satisfactorily estabhshed) was the point of commencement, though its distance from the true north- east angle was inaccurately given. The declaration charged the trespasses breaking down fences, etc., as committed on divers days and times. De- fendant pleaded leave and license, which the plaintiff traversed. It appeared that part of the fence was removed under a license, and the remainder after it had been revoked, tlie interval from the first to the last removal being two or three years. HcU, that the plaintiff was entitled to succeed, though it would have been otherwise if the declaration had only charged the trespasses as committed on the same day, for the defendant could then have applied the license to the only trespass charged. Marrs v. Davidson, 22 Q. B , 641. DOUBLE FRONT CONCESSION LINE BETWEEN LOTS, TOWNSHIP OF OPS. In trespass quare clausum f regit, to try the boundary line Darkfs. between lots 28 and 29 m the 5th concession of Ops, the "«pburn*<4/. plaintiff described in his declaration by metes and bounds the piece of land trespassed upon, alleging it to be part of 28, to which lot his title was not disputed : Held, that " not guilty " was the only piea required and that the other pleas pleaded and set out below were unnecessary and in- appropiiate. The land in question was situated at the rear of the concession (the concessions running north and south and numbering from the west), and plaintiff claiming that it was a double front concession, had the division line run from a point on the concession line in the rear, or, what he claimed to be the east front, of the concession ; but there was no proper evidence of the concession having, in the original survey, been laid out as a doable front con- cession, and of posts being planted in the rear, while the lots were granted by the letters patent a3 whole, and not as half lots. Held, the fact of 28 and 29 having been granted as whole lots, was prima Jacie evidence of the concessions being single-fronted, and that the grant of half lots in the adjoining concession could not affect it. ??1!:^«^:«3 ■■A^^sc^^:7Z ;^^s*s7: '^-ataBt:3HK8 -t5am ■^aa»;-fj'?¥?!5igi^8j>^s^t - 6 MflJ, also, that the fact of defendants attempting to prove a post in rear, from which they contended the Hne should be run, did not estop them from asserting that the concession was single-fronted. The jury were asked to find : — i. Is the point contend- ed for by the defendants the place where the original post stood ? 2. Did the plaintiff, when he moved his fence, do so on the understanding with the defendants that they acknowledged his right ; or, Was his possession to be sub- ject to the correct adjustment of the line ? They found, that the post had not been proved, and that the plaintiff was given possession by the defendants : Ne/d, tiiat on the first answer the verdict should hnve been for defend- ants, for the fact that defendants had not proved the post did not lelieve plaintiff from proving the true line ; and that the second question was not presented by the case. Dark v. Hepburn et al 27 C P., 357. • SPECIAL CASE — DOUBLE FRONT CONCESSIONS — POSTS NOT A'„L PLANTED. TOWNSHIP OF FMILV. Dyeiiw. By 36 Vic, ch. 60, sec. i, O.,— after reciting that great Miiiaste. inconveniencc had resulted from the concessions in the township of Emily, having been intended to be n;adc double fronted, but posts net having been in many cases planted at the front ;.iid rear angles of the lots— it is enacted that notwithstanding anything in sees. 28-31. inclusive, of C. S. U. C, ch. 93 :— i. VVhere posts were in the original survey planted at tiie front, but not at the rear angles of any lot, the side lines should be run from the posts at the front angles to the rear of the concession, parallel with the governing line. 2 Where posts were in the original survey planted at the rear angles of any lot, the side lines should be run from the front anghs of such lot parallel with 'he governing hne to the centre of the con- cession, and thence direct to the post at the rear angle. 3. In all other cases, the side lines should be run from the front angles of the lots to the rear of the concession, par- allel to the governing line. In trespass, to try the boundary between lots 15 and 16 in the 14th concession, it was ad- mitted tliat the original survey of the township was in- tended to be in double-fronted concessions, and that there was satisfactory evidence of the original posts at the north or rear end of the concession, between lots 14 and 15 and lots 17 and 18, but not of the intermediate posts. It was admitted, also, that a post had been planted in the rear, ii. the original survey between the two lots in question ; and the post in front was agreed upon. - - ^^ '-'-fr :*. »j»- "Bw'Tg t /As/r/, that the case came within the third sub-secticn, and that the hne must therefore be drawn from the front to the rear of the concession parallel with tho governing line. Dyell 7>. Mill'.ge, 27 C.P., 347. BOUNDARY LINES AND SIDE LINES. The Eastern side line of lot 24, in tiie front or first con- swviutvt. cession of the tovvnship of Kingston, cannot be run as it is •'"''^y'^- described in tlie grant from the crown, or parallel 10 the Western limit of the township, according to 59 Geo. III., c. 14, because that would carry thf; concession beyond the line which was onginally run o.it as its eastern boundary. Doedem. Stuart v. Forsyth, i Q.B., 324. SIDE LINES OF LOTS, HOW ASCERTAINED — SURVEY — 12 VIC. CH. 35, CASE WITHIN THE 36TH SECTION CF — CON- STRUCTION OF 32ND SECTION. In the original survey of the township of K. which McDoncii w. was made by alternate concessions, the lines in front of McDoneii. the first and rear cf the second concessions, were run, and a single row of posts planted along the latter to divide the space into two hundred acre lots. The line between ihe first and second concessions was afterwards surveyed under instructions from Government, and divided off into lots of the same size. Held, A case within the 36th section of 12 Vic, ch. 35 : and therefore that the side line'- of lofs in the second con- cession should be ascertained by the posts of the original survey on the line in rear of that concession, and not by tl;ose of the subsequent survey on the division line betvveen the first and second concessions. McDonell v. McDon- ell. 10 Q.B., 530. BOUNDAPY LINE — MODE OF ASCEr»TAINING WHEN IMPERFECTLY SURVEYED. On the original survey of a township a base line had Davis m. been run, but the concession lines had not been run through ^^ *<•'*<="• from one side of the township to the other, and the sur- veyor had also run the side lines, planting a post at the measured depth of each concession, to .nark the line of the concession ; but it appeared impossible the concession lines so marked could be straight, and one of the angles of a lot could not be discovered by any stake or monument. Held, that the statutes 12 Vic, ch. 35, and 18 Vic, ch. 83, do not provide a rule for determining ihe front of any lot in a township so surveyed, and that the proper method of ascertaining the place of a lost poot was by dividing the 8 Culp vs. Culp. Bell !S. White. distance between th-e nearest known posts on the side line, as it vvaG originally run past the lots, and not by running a straight line between the nearest posts on the concession line and dividing the distances by the number of lots ; also, that the side lines originally surveyed were to be considered true and unalterable boundaries. Davis v. Waddell, 6 C.P., 442. BOUNDARY LINES AND SIDE LINES— BOUNDARY WHERE POST MARKING SIDE LINE OF LOT HAD BEEN LOST. A concession or base line had been run and posts planted on it upon a survey made on a similar principle to that referred to in Davis v. Waddell, but the question was how the side line of a lot was to be ascertained. Be/d, thai the distance between the two nearest ascer- tained monuments on the base line should be measured and divided proportionately between the lots, making the due allowance for roads, and that the side line required should be run from the angle of the lot so ascertained. Mary Culp v. John Culp, 6 C.P., 466. SIDE LINE — TOWNSHIP OF YORK — 12 VIC, CH. 33, TEC. 35. Where the lots in a concession ranging from east to west were not numbered all the way from the boundary line of the concession on the east, but two blocks of five lots each had been laid out in the original survey fronting on and towards that line, and the remainder of the concession in blocks of five lots each, fronting as usual on the concession lii.e, and numbering westward, beginning at No. lo Beld, that the 35th section of 12 Vic, ch. 35, nevertheless apply, and that the side line of the question (32) must be determined by the course eastern boundary line of the concession. Be/d, also, that the last proviso in that section would not apply, so as to make the boundary line of the block in which lot 32 was the governing line, because the township was surveyed before the 27th of March, 1829 °'-" " White, 15 Q.b., 171. Macdonald vs. McDonald. would lot in of the Bell SURVEY— BOUNDARY LINE— NIMBERING OF LOTS— APPLICA- TION OF STATUTE. Two surveyors being employed to divide the gore of land marked in the plan in the statement of case ran lines as are therein dotted and named McLaurin's and McLeod s lines. The parties apparently acquiesced in the McLeod's line for a time, but subsequently disagreed, and this action \i'as brought to contest the division. '^'^V Jleld that the rule in the statute, that the course of the boundary line in each concession, on that side from which the lots are numbered shall be the course of the division or side line, not being applicable to the case as these lots purport to number from the east, while the gore at the east ot the concession is not numbered, the defendant is entitled to recover. Macdonald v. McDonald, ii C.P., 374.- TRESPASS ON HIGHWAY. On the 8th of January, 1836, a surveyor, in compliance Mountjoyw. with instructions from the government agent, laid out a Reginu. road or street on the northern limit of the town of Lon- don, two chains wide, a poriion of which was then, and had for some time been, in the actual possession of the Episcopal church, to which body a patent subsequently, and on the iat in order to prove a survey which will be conclusive under the statute, the application by the county council to the Government for such survey must be shewn. Boley vs. McLean, 41 Q.B., 260. Jarvis vs. Morton. ERROR IN MARKING POSTS OF ORIGINAL SURVEY. A mistake of a surveyor in marking the number of concessions wrong on some of the posts of an original survey, will not make it proper to describe the lots so marked as being in the concession numbered on the posts. Jarvis vs. Morton, 1 1 Q.B., 431. 1ft CONCESSIONS — SURVEYS — STATUTES. Tliere is no ule of law nor any statute which makes Joimson vs. it necessary tliat each concession should be of the same """siu-rjitr width throughout a township, nor is ther;; any principle ' " ' by wiiich an error in the survey of one concession entirely unconnected witii the actual work and survey on the ground in another, is to affect and either contract or expand such other concession. Johnson I's. Honsberger e/ al, 6 C.P., 20I. Also Marrs vs. Davidson, 26 (J.b., 641 ; Dark ?'«. Heoburn. DISCREPANCY RRTWEEN WORK ON GROUND AND PLAN — HIGHWAY — riEI.n NOTES — COSTS. The question in an action of trespass being whether Cimciv tx. there was a highway between lots 20 and 21 in a town- J"''""'""- ship, which the plaintiff denied, it appeared that the practice of surveyors in laying out a road allowance was to plant a post on each side of it, marked on the ..ide nearest the road with the letter R., and on the opposite side with the number of the lot, and to plant a third post in the centre of the road marked R on two or on all four sides. Stakes thus marked were found between ig and 20, but none bet\veen 20 and 21, and it was sworn that an or. inal post had been seen there 24 years ago, and until w.ihin three or four years, marked 20 and 21, thus far shewing that there was no road allowance between those lots. On the other hand, the registered map of the township, the map in the Crown Lands Department, and the field notes of the surveyor who made the original survey, shewed such allowance. The plaintiff and defendant both claimed under grants from the Crown of separate parts of lot 21, described as commencing on the northern limit of such allowance, and without it the defendant would have no access to his lands. The jury were told that the work on the ground must govern, but that under C.S. U,C , ch 54, sec. 313, the fact ot the Government surveyor having laid out this road in his plan of the original survey, would make it a highway, unless there was evidence of his work on the ground clearly inconsistent with sucli plan. The jury having found for defendant. Held, that the direction was right, but that the verdict was contrary to evidence, and a new trial was ^.anted on payment of costs. The Queen vs. Great Western R. W. Co.. 21 U.C.R., 555, remarked upon. 10 A certified copy of part of the field notes of the original survey is admissable in evidence. The defendant's counsel told the jury that a verdict in favour ol the plaintiff Tor any sum would carry costs. Quccre, as to the right to make such statement ; but semble, that the objections to a verdict for the plaintiff founded upon it, would apply equally to a verdict for defendant. Carrick 7's. Johnston, 26 Q.B., 69. Ovens vs. Dnviilson. McGregor vs. Calcutt. SURVEY— POUNDARV LINE COMMISSIONERS— VALIDITY WORK DONE UV SUBORDINATE. OF HeU, that a line run by a subordinate and adopted by the principal (surveyor) is the work of the latter, an-l must be treated as such. That it is by the work as executed on the ground, and not as projected before execution, or represented on a plan afterwards, that the boundaries are to be determined. Ovens vs. Davidson, 10 C.P., 302. SURVEY OF TOWNS AND VILLAGES— WORK ON THE GROUND — PLAN— C.S.U.C, CH. 93, SEC 35. Under the latter part of sec. 35, of ch. 93, C.S.U.C, the work upon the ground in the original survey of towns and villages, to designate or define any lot, shews its true and unalterable boundaries, and will over-ride any plan of such lot. McGregor t;. Calcutt, C.P. 39- BOUNDARIES— ORIGINAL MONUMENTS— SURVEYS. ArtievT... In questions relating to boundaries and descriptions Crry. of lauds, the wdl-established rule is that the work on the ground governs ; and it is only where the site of a monu- ment on the ground is incapable of ascertainment that a surv'-yor is authorized to apportion the quantities lying between two defined or known boundaries. Therefore, where an original monument or post was planted as indi- cating that the north-west angle of a lot was situated at a distance of half a chain south therefrom, and another surveyor had actually planted a post at the spot so indi- cated, and subsequently two surveyors, in total disregard of the two posts so planted, both of which were easy of ascertainment, made a survey of the locality and placed the post at a different spot, the court (Spragge, C.) disre- garded the survey, and declared the north-west angle of the lot to be as in.: cated by the first mentioned monu- ment. Artley 7>. Curry, 29 Chy.. 243. 17 EVIDENCE. A piece of land marked out in the original plan of a BaHtteiy vt. township, as an allowance for road, does not lose that BenJ"- character, because it has never been used as a road for a period of forty years, and a copy of the original plan of the township is admissible in evidence to prove such allowance, although it does not appear by whom, nor frcm .vhat materials the plan was compiled. Badgely v. Bender, 3 O.S., 221. When a witness, a surveyor, founded his evidence upon Case r.«. the assumption of a certain monument as the correct Mas'"- point to start from in running a line, and the jury gave their verdict accordingly, and such witness afterwards discovered he was in error as to the correctness of that boundary, and made affidavit of his mistake, the court granted a new trial. Doe d. Case v. Magill, 5 O.S., 56. A surveyor cannot act independently of the provisions sherwood v. of the statute, 5 Geo. III., ch 13, and arbitrarily lay on "°°'^- one side the evidence which neighbours are ready to give, from their own knowledge of the situation of original posts. Sherwood vs Moore, 3 Q.B. 468. THE DESCRIPTION AND CERTAINTY OF EVIDENCE REQUIREC UY PLAINTIFFS IN EJECTMENT BROUGHT ON ACCOUNT OF DISPUTED BOUNDARIES — FIELD NOTES. In all ejectments brought on account of disputed strong vs. boundaries, the plaintiff has to shew, beyond any reason- •'°"^*- able doubt, that he is entitled to some land at least of which the defendant is in possession ; where the point is a doubtful one, the plaintiff must be prepared to shew that he has had a survey carefully made, and that the proper steps have been taken which the law requires for ascertaining the exact position of any posts ,-long the line which can still be discovered by inspection or can be established by evidence, in order that the court and jury may see whether the two lots in question are, by the proof which tne plaintiff is seeking to establish, made to occupy their proper position on the concession linr Sembh, that an admitted copy of the field notes from the Crown Lands Office may be received in evidence. Doe d. Strong v. Jones, 7 Q.B., 385. EVIDENCE. A person not being a licensed surveyor is a competent po"" ^'^■ witness on a question of boundary. Potter v. Campbell, ^^""'' •=' ■ et al. 16 Q.B., 109. ■ i— .* ' -»=^" 18 UOUNPAKY LINE— EMUENCE. In ejectmenl for part of a gore of land, lying between lots Nos. 12 and 13, the plaintiff rested '.lis case on proving by the recollection of witnesses, the original movement between lots Nc;. 10 and 11 and between lots 14 and 15, and claimed to have the space between these two bcim- daries proportionally di.vided according to the width of lots Nos. II, 12 and 13 ; and of this gore, as designated in the field notes. The defendant gave evidence of an original monument between the gore and lot No. 11; and if this were proved defendant was entitled to a verdict ; but it did not appear from the field notes that any post had been planted in the original survey beiween the gore and lot No. 12. Upon verdict for delendant, the court set aside such verdict, and granted a new trial, without cost — Hagarty, J., dissentientc. Richmond v. Fe'-ris, 6 C.P., X63. See also Ovens v. Davidson, 10 C.P., 307; McGregor e. Calcutt, 18 C.P., 39. Stock vs. Ware! rl iiiii i'. (piarter of a lot, to try a disputed boundary, defendant i-mson. owning the north-east quarter, the plaintiff's surveyor stated that he ran the east side-line of the lot, divided it into equal halves, and drew a line across the lot on a bear- ing corresponding to the concession line in the rear, and that of the quarter so ascertained defendaiit was in posses- sion of eleven acres. He said, howver, that he did not know the quantity in the whole lot, v.hich fronted on a river, ami there was a jog in the concession line in rear, for which he male no allowance. By the Survey Act, CSC, ch. 77, sec 68, every grant of an aliquot part of a lot sliall be construed as a grant of such aliquot part of the whole, whether more or less than e.xprcssed in the grant. Held, that the plaintiff had not clearly shown his right to the land claimed and was therefore not entitled to suc- ceed ; but a new trial was granted instead of a non-suit. Babaun v. Lanson, 27 Q.B., 399. BOUNDARY LINKS — EVIDENCE. //eW, that the entries in the diary of the surveyor, to- Smith t;*. "ether with a small piece o nap, also produced, supposed ciunas. to be his (which was all that remained in the Crown Lands office shewing the lines in question run), and the trace of a blaze for a preat part of the way, were evidence of the fact of the lines b-\ving been run by him in the manner m which he was directed to run the-' by his instructions vwhich were produced), although ti.ere was no further evidence upon the ground that the original hues had been run. Smith V. Clunas, e/al. 20 C.P., 213; Dark v. Hepburn, rt ,n the loth and nth concessions opposite lots 32 be surveyed upon the same bearings as that portion of said line lying south of the Portage road. Defendant W., who was a sharp, inteili- gent man. knew that the effect of this would be to deprive the plaintifTs lot of 50 acres and add it to his own, while • V SI the plaintiff, w''o was illiterate and dull, was quite ignor- ant of this ; and defcidant W. assured him that if the effect of the n'reemcnt should be to reduce his, defendant W.'s, lot t"> lo acies he would be satisfied. The aRreemfnt was prepared at W.'s instance, and the plaintilT siK'iicd it without taking anv advice //«/(/. that tlie plan and survey must govern, and that there was nothing in the agreement, if binding upon the plaintiff, to prevent him from asserting his title in accordance with them, or lo divert him of any pc.tion of his land. . SeiiiMe, however, that under the circumstance i plamtifl woulil not be bound by tlie agreement. The plaintiff claimed under i> patent fertile east half of lot 32, in the loth concession, as expressed in the patent, " according to the original survey ot said township of Kldon," containing 100 acres more or less, issued on ist of May, 1868, to the plaintiff. The patent for the west half of the same lot as expressed by the patent, " according to the original survey thereof," coniaining by admeasurement 100 acres more or less, was issued on the 3rd of Februa'-y, 1873, to one James Sweeny. The defendant claimed under a patent to one Joseph Fee, dated 17th of October, 1853, of 'lot 32, in the nth conctc'^ion of Eldon, containing by admeasurement 30 acres nic-e or less. McEachern v. Somerville, e/ ai ; McEachern v. White et al, 37 Q.B., 609. AS "O THE TOWNSHIP OF KINGSTON — BOUNDARY LINE. Appeal from the decision of the Boundary Line Commis- Mnrney vs. sioners of the Midland District upon an ppplication of ""'<'«"''■ Edmund Murney, Esquire, to have the eastern boundary line of lot 25 in the first concession of the township of Kingston determined. Seiiib/e, that the eastern boundary line of lot 25, in the first concession of the township of Kingston, is a line drawn from the north-west to the south east angle of the ««--r. bounded in front by a river, and the line had been run in the original survey in front of such concession, up to though not past these lots, but the township itself fronted upon another township. He/d, clearly not a township Dounded in front by a river, within the C.S.U.C , ch 93, sec. 27, so that resort might be had to the posts in the coricession in rear to determine the side lines of these three lots. Quaere, whether such a case is provided for by the Statute. Johnson f. Hunter, -25 Q.B. 348. TRESPASS — BOUNDARY LINE. Trespass to try the boundary line between plaintiff and McN.^u>fht vs. defendant. The former claimed title to part of N.W. part I'-x-nbun. of lot No. 20 in the sixth concession of South Dumfries, by metes and bounds ; the defendant claimed the east half. The descriptions in the deeds did not conflict ; a line was originally run by a Mr. Ball for the prior holders of the property, one of them at the time claiming title through the original patentee, under an agreement for purchase, but was not acquiesced in by the plaintiff. In 1849 one M., a Provincial Land Surveyor, at plaintiff's request, ran a line supposed to be acquiesced in by the de- fendant ; but upon the erection of a fence thereon by the plaintiff the defendant objected, and it was removed. In 1863 a Mr. Peters ran a line, claimed by the plaintiff as a true line, and which caused this dispute Messrs. P. and J , being present at the time on defend ant's behalf, concur in opinion ihat this line is correct. The jury having found for the plaintiff with leave re- served to the defendant to move against it, upon motion — 24 Held, that the Hne originally run, and now contended for by the defendant, was not binding upon the parties and that the evidence showed the line run by Peters, .nd ac- quiesced in bv the defendant, to be the correct one ; there- fore the verdict for the plaintiff was correct. McN aught V. Turnbull, 13 Q.B- 426. BOUNDARY— ESTOPPEL— AGREEMENT TO AUIDE EY SURVEY. crosswaite vs. xn action of trespass, q.c. f., it appeared that defendant Omfe. conveyed to the plaintiff 19 acres of lot 2 in the fifth con- cession of Barton, described by metes and bounds, com- mencing at the N.E. angle of the lot. This str.uing-point upon the ground was undisputed, and it was admitted that the description given enclosed the land claimed by the plaintiff. , , , 1 j a Held, that defendant was estopped by his deed, and could not set up any question as to the boundary between lots I and 2. It appeared also that about twelve years since, cne W., defendant's tenant, having moved the fence between plaintiff and defendant, an agreement in writing was en- tered into between W. and the plaintiff that they would employ B., a surveyor, to establish the original line be- tween lots I and 2, and would be bound by it ; and de- fendant, by a memorandum signed by him at the foot of this agreement, agreed to abide by it. The land in dis- pute was then in W.s possession, and it was alleged that B. had not completed his survey. Held, no evidence to support defendant's plea of leave and license. tj 1 Held, also, that upon the evidence, set out below. ■">. tlie surveyor, had proceeded properly to establish the .ne. Crosswaite v. Gage, 32 Q.B. 196. .\lso Holmes v. McKechin et nl, 23 Q.B. 52. LOTS i-RONTING ON RIVER — POINT OF LAND IN FRONT SEPA- RATED BY WATER. Thomson vs. In an action of trespass, defendant claimed as part of Sherwoai. lot i-Sinthe broken front of Escott that part of <-arys point in the river St. Lawrence which would be included within the side Hues of the lot, if projected from the main shore across a small bay, to and across the point to the river in front 01 it. In the original plan of the tov^ns up the line across the point from west to east, showing an intention to include it in the broken front was continued only as far east as lot 14, though the point extended far enough to cover the fronts of lots 15 and 16. In scaling 25 the fror-i on the river posts appeared to have been put down on the main land, but none could be traced on tlie point. The jury found that these posts were intended to mark the width of lots, not the front angles of lots in the broken front, and tliat the front of lot i6 was upon the main shore, and not on the river in front of the point. Held, that upon the evidence the verdict was right as no part of the point appeared to be included in the lot. Thomson v. Sherwood el al. 21 Q.B , 174 ALTERNATE CONCESSIONS, RUNNING OF— D'SPUTED BOUN- DARIES — ORIGINAL SURVEYS. In the o- prietors " of the lands interested. Seinb/e, that the jurisdiction to pass such a by-law should appear on the face of it, by shewing a survey such as the statute rontemplates. Quare, whether the Act authorizes the re-survey of a whole township. In re Scott and the Corporation of the County of Peterborough, 25 Q.B., 453. 29 MUNICIPAL SURVEY BY-LAW. BY-LAW OK UNITED TOWNSHIPS — SEPARATION — APPLICATION TO yUASII — PRACTICE — SURVEY. A by-law was passed by the united townships of Smith Scott vs. and Harvey to levy a certain sum on lands in Harvey, to H«veyTp. d-fray the expense of a re-survey of that township The union havmg been dissolved. He/t/, tliat an application to quash was properly made by a rule calling on the cor- poration of Harvey, upon a certified copy obtained from the clerk of Smith, the senior township. The certificate was under the corporate seal of Smith, but there was no seal to the copy of by-law, nor anything bu^ the certificate to shew that it had been sealed. ffeld, sufficient. The by-law directed the money to be levied " on all lands patented, leased, sold, agreed to be sold, and located as free grants" in the township of Harvey. Held, bad, following Scott and the Corporation of Peterborough, 25 U. C. R., 453. In re Scott and the Corporation of the Township of Har\ey, 26 Q. B., 32. MUNICIPAL SURVEY, BY-LAW, LEVYING RATE. C. S. U. C, CH. 93 — RE-SURVEY OF TOWNSHIP. The County Council, under Consol Stat , U. C, ch. 93, sec. 6, havinf; caused the re-survey of an entire town- ship, and directed a certain sum to be levied for the ex- penses, by a by-law which had been quashed, by a sub- sequent by-la- directed the collection of a furthev sum for the purpose, to be levied on the proprietors of land in the township in proportion to the quantity of land held by them respectively in such township. This by-law was quashed, on the grounds : i. That the Ststute does not authorize the re-survey of a whole township, 2. That it directs the expense of each concession to be borne by the proprietors of land there. In the matter of Scott and the Corporation of the County cf Peterborough, 26 Q. B., 36. Scott vs. Peterboro Co. MUNICIPAL SURVEY — IMPROPER APPLICATION FOR CON- CESSION LINE. A concession line having been laid out by a Provincial Cooper r.v. Land Surveyor under instructions from the Commissioner weiibanks. of Crown Lands, upon the pecition of the corporation of the township, based upon the assumed application of one- half the resident land-holders to be affected by the survey, the petition being in the following words:— "To the WiSCj^^. *«f-iW:^ 30 Reevf: and Coun-^illors in council assembled. — We, the undersigned freeholders in the 2nd and 3rd concessions, south side ot Black River, west of Point Travers, in Marys- burg, beg to ask your honourable body to petition the government to send a surveyor to establish the concession line according to law between the 2nd and 3rd con- cession commencing at thj township line running towards South Bay, and by c.^mplying with tl-is request your petitioners in duty bound will ever pray. Milford, April 14th, i860." On receipt of this petition the corporation passed a resolivtion in these words : " Resolved. That in accordance with the statute 18 Vic, ch. 83, sec. 8, and the prayer of the petition of a majority of the householders to be affected theicby, that there be a survey made between the 2nd and 3rd concessions south of Black River froui the township line of Athol, to lot number one in the third concession of Marysburg." On the 29th of May, i860, the corporation of the township of Marysburg petitioned His Excellency to cause thi-^ survey to be made, and on the 9th of July, i860, the Honourable the Commissioner of Crown Lands gave instructions to a Provincial I and Sur- veyor to survey and establish the concession line between the 2nd and 3rd concessions of the township of Marysbuig, commencing at the township line, and running towards South Bay in accordance with the provisions of the Pro- vincial Statute, 12 Vic, ch. 35, and 18 Vic, ch, 83. ffe/d, that the application to the corporation, and the re- sell tion by the corporation not being such as the statute requires to authorize an application to the government to cause the survey to be made, that the survey made by the instructions of the Commissioner of Crown Lands, dated the gth of July, i860, was therefore unauthorised Cooper V. Wfcllbanks, 14 C.P., 364. VanEvery vs. Drake. SURVEY— WHEN LEGAL IF NOT MADE BY CROWN— MAPS, CUSTODY OF — EVIDENCE — ABBUTTALS IN DEEDS. A survev made bv a private party of an unsurveyed block granted by the' Crown is the " original survey and shall have the same force and effect thereof as though the said original surveys and plans thereof had been made by government authority." See !-> Vic, ch. 35, sec. 34. When the description in a deed which was supposed to contain hAi a lot, m giving metes and bounds, stated as a measurement 40 chains as the length conveyed. He/d, it was necessary for the grantee to prove the whole lot contained mcie than 80 chains from front to rear, to en- title him to any greater quantity, for the production of the deed alone would entitle him to 40 chain, only. A map produced from the custody of the son of the original owner of the lot and sworn to be the map upon which the township was originally sold. Held, to be properly admitted in evidence. VanEvery V. Drake, 9 C.P., 4-'S. McGregor v. Calcutt, 18 C.P., 39. ERRONEOUS SURVEY — MAGNETIC BEARING AND ASTRONOMI- CAL HEARINGS. Defendant claimed under a timber license which de- ^"""5""^ " scribed his limits as hounded on the south by " the con- tinuation of a line from the head of Mud Lake on the course North 54 ° E., formerly the boundary between T. C. and A. R M." The plaintitf claimed under a license which gave his northerly limit as the same line, describing it also as running N. 54° E Both licenses were re- newals of previous licen-ies from about 1839. Hclii, tl.at the boundary between them was the true astronomical line N. 54° E. ; and that the plaintif -ould not claim according to a line run in 1874, N. 54° E. mag- netically, making no allowance for the variations of the compass. Tliibaudeau et al v. Skead, 39 Q.B. 387. TRESPASS BY SURVEYORS IN MAKING PRIVATE SURVEYS. The declaration stated that the defendant broke and t"'";"''""^'*- entered the east half of lot No. 20 in the sixth concession ^cNaughi. of the township of South Dumfries, and there cut down and destroyed the trees and underwood, to-wit, etc. The fourth plea alleged that as to the breaking and entering, and cutting down and destroying a small quantity ot un- derwood, he, the defendant, at the time when, etc., was in the lawful possession and seised in fee of a part of the west half of the same lot ; that the boundary between the two parts was a stiaight line through the centre of the lot from the front to ihe rear ; that the boundary was in dis- pute between the plaintiff and the defendant, and they could not agree upon the same ; and that the defendant, in order to discover and ascertain correctly the boundary, employed and instructed a duly authorized land surveyor to run the said line and establish the said boundary, who, with certain chain- bearers and other necessary assistants, in pursuance of sucli instructions and in discharge of their duty as such land surveyors, necessarily entered into and upon the land in the first part of the plea mentioned, for the purpose of running the said line and discovering and ascertaining the said boundary, and necessarily and un- avoidably cut 'own and destroyed a small quantity )f brush and underwood then growing upon the said land u first mentiontd, in order to run such line and to discover and ascertain such l)oundary as they lawfully might, doing no actual damage on the occasion, which arc the same trespasses complained of. Helti, on demurrer to this plea, tint a surveyor has no power to enter upon the lands of on3 leighbor for the pur- pose of making a mere private survey for another neigh- bor. TurnbuU v. McNaught, 14 C.F'., 375. Paul vs. Blackwood. SPECIFIC PERFORMANCE UNDER ERRONEOUS SURVEY — LACHi^s. The defendant had for some time used part of the plain- tift's land as a mill-pond, antf differences existed between them in relation thereto, to pa* an end to whicii they en- tered into a written agreement that the plaintiff should sell to the defendant as much of the land as was, or had been, overPiowed by the water of the mill-pond, for a price which was proved to be much beyond the intrinsic value of the piece of land so sold. To carry into effect this con- tract, the plaintiff had the ground surveyed ; but the sur- vey was erroneous, and the deed which the plaintiff there- upon tendered comprised, in consequence, less land than the defendant was entitled to have. The defendant re- fused this deed, procured a new survey to be made, and tendered a new deed for execution by the plamtiff ; and this deed thp plaint'ff refused to execute. When tlie first instalmeni ' the purchase money became due, the de- fendant tendered it, but did not pay it in consequence of the non-execution of the conveyance. The defendant con- tinued to use the land for a mill pond, and gave no intima- tion of his intention to abandon the contract ; and twelve- month afterwards the plaintiff filed a bill for a specific performance of the contract, which was decreed without costs. (Blake, C, diss.) Paul r. Blackwood, 3 Chy., 394. AS TO DEBT LYING AGAINST THE TOWNSHll' COUNCIL FOR EXPENSE OF A SURVEY MADE UNDER THE 38 GEORGE III., CHAPTER I. KoacUrv. Heiti, per Cur., that the township council of Hamil- counciioi ton coming in the place under the 12 Vic, ch. 81, sec. 31, Hamilton. heads 26 and 31, of the trusts .s of the Newcastle district in quarter sessions assembled, could not be held liable in dfM to the surveyor who had been appointed under the 38 George III., chapter i, to re-survev the township of Ham- ilton. Roach V. Municipal Council of Hamilton, 8 Q.B., SURVEY MADE AFTER GRANT. The question in dispute was what quantity oi land was Horn. v,. granted by the patent issued in 1797. the description in M""™ which was: •' Heginninp about iH chains below a small creek which empties itself into the river Thames, in lot No. 17; thence west to the eastern boundary of lot 16, two chains, more or less ; thence north 45 degrees west to the northeast angle ok lot 16, 28 chains, more or less; thence south 45 degrees west to the river Thames ; and thence along the bank of the river against the stream to the place of beginning, being the broken fronts of if' and 1 7.'" The lots were supposed to contain 150 acres. There were two creeks, an the point of commencement con- tended for by the plr .ntiff (the upper creek) would give him a much larger qiantity of land than the uefendant claimed he was entitled to, while that sought to b. upheld by the defendant would reduce it to about 50 acres. / old map trom the Surveyor-General's ofrtce was put in evi- dence, under which the lot had evidently been granted; and a surveyor called for the defence stated that the ground contended for by the piaintiff corresponded best with the old map. , 1 r 1 1 1 • He/d that as the description contended for by tlie plain- tiff corresponded best with t!ie oldest plan to be found in the Surveyor-General's department, and with a survey since made for the purpose of tracing out or completing parts not fully surveyed before, he was entitled to recover. Home T'. Munro efa'l, 7 C.P., 433. Semb/"., per Draper. C. J . the crown may grant a tract of land by a sufficient description to designate the por- tionment, although the township within which the land lies has not been surveyed and laid out into lots and con-, cessions; and the grantee will be entitled to hold it. although a subsequent survey made by authority of the Crown makes it by name a different lot, or places it in a different concession from that named in the patent, or the surveyor laying it out projects a road through it. lb. HIGHWAYS, INDICTMENT FOR OBSTRUCTING. In September, 1852, a tract of land upon the River St. ^'^«^"y';,^ Clair, adjoining the town plot of Sarnia to the south, was ceded bv the Indians to the Crown, to be disposed of for their benefit. In the same year this tract was surveyed under instructions from the Government, and three streets laid out upon the plan, one called Front Street, running north and south, parallel with the river, and the others, W/e'iiprrton ana Nelson streets, running westerly through u the track, crossing Front street at right angles, and contin- uing to the river bank, which was distant only i chain 50 links from Front street along Nelson, aiui 50 links along Wellington street. This plan was reported to the Govern- ment, with the surveyor's field notes, but Nelson and Wel- lington streets were not laid ou upon the ground west of Front street, and tl at portion of iheui had never been opened or used so as to give access to the water — the river bank there being abrupt. A sale was held in 1H53 at which some lots were sold with reference to tli's plan, one on Nelson street, but none west of Front street. In 1854 the Great Western Railway Company pur- chased from the Government the tract west of Front street, along the river between Wellington and Nelson streets, and beyond them to the north and south, including the water lots in front, for which they paid the sum awarded by arbitration. Afterwards a public sale of lots in the tract ceded by the Indians was held by Governm* nt, at which a plan was referred to, made for the comppny by the same surveyor who first laid out the tract, she ,ving the ground which the railway and its terminus would occupy.but exhib- iting no streets leadinj;, through it to the river ; and 'his was the plan used before tne arbitrators, and upoo which their award was in.-.de The company, without objection on the part of the municipality entered upon the land bought by them, made new ground in front by filling up the river, and completed their buildings and other works which obstructed Welling- ton and Nelson streets running through the land purchased to the river, according to the first plan mentioned. After this the municipality by letters applied to them for com- pensation for the injury caused the town in consequence of the access to the water by these streets being cut off, claiming that they should be paid a fair value for the streets thus taken and remunerated for a purchase of land which it was proved they had made higiier up at a cost of .^3,200 in order to obtain access to the river. They made no complaint, liowever, that the defendants had acted illegally. Defendants being afterwards indicted for obstructing these streets, it was left to the jury to say, with reference to the 15th clause of 22 Vic, ch. 116, whether the muni- cipality or the govt rnment had permitted defendants to occupy the streets b?:fore tliat act, and if so, to find for defendants. The jury gave a general verdict of guilty, and being asked how they found as to the permission, said only that they thought the municipality ought to be compen- sated for the land. 1 35 I By 22 Vic, cli. ii6, sec. 15, it is enacted, in sub- stance, that all highways occupied by this railway with the written assent of the municipahty witliiii which they are situated, shall be declared vested in them to the extent of the user permitted or enforced by the munici- pality : and all proposed or contemplat' d streets occupied by the company, or which they have been permitted to occupy by the license of the owner in fee, and which shall not lead to any place beyond the said railway, shall be deemed closed, and the occupation by the said railway shall be lawful. Held, that defendants were clearly entitled to an acquit- tal under this clause, for, first, as to the first part of the clause, a written assent given afterwards by the munici- pality would suffice, and might l)e inferred from their let- ters, m which they asked only for pecuniary compensation ; and, secondly, these were proposed or contempbtod streets occupied by the company, and not leading to any place beyond the railway, in which case no assent w =5 required. Held, also, that the Consol. Stat. U.C, ch. 54, sec. 333, had no ao'-'ication, for it could not be said t'^at tliose streets had . ot been opened by reason of any other road beinj, used in lieu thereof. That under 16 Vic, ch. 99, sec. 4, and 16 Vic, ch. loi, defendants had clearly a right to take possession of this land for thei'- railway, with any easement thereto. Qiicre, whether the 4 W. IV., ch. 29, sec. 9, which requires this railway company on intersecting any highway to restore it to Its former state, or in a sufficient manner not to im- pair its usefulness, could have been applied to this case ; the streets in question never having been opened or used, being covered by the works of defendants, so that they could not be restored without dispossessing them, and leading to no place beyond. Semhie, that at all events a mandamus would not, under the circumstances, have been granted at the instance of the municipality. Under Consol. Stai. U.C, ch 54, sec 313, these streets, being laid out on the original plan mad-^ by the Crown surveyor, would be public highways, though not staked out upon the ground, and never opened or used. Semble, that under 12 Vic, ch. 35, sec. 41, the Indians, or the government acting for them, had power to alter and amend the survey by striking out these streets where they ran through the land sold to defendants. Regina 7'. The Great Western Railway Company, 21 Q.B., 555. r Chisholm and Town ot Oakville. f r 36 PROHIBITION TO COL'NTY JUDr"- - A'.MDING REGISTERED PLAN— STATUS OF APPLICA T — 0\ tR — ASSIGN — R.S.O., CM. Ill, SEC. 84. /%W (reversing the judgment of Proudfoot, J., 9 O.R., 274), that the status of C.,as a person, or the assignee ot a person, who registered a plan, was a question of law and fact combined for the county judge to determine upon C.'s application to him, under R.S O., ch. iii, sec. 84, to amend the plan, and that his decision was not examinable in prohibition. Semble, a person not the owner of tht; property may register a plan, and although this would be at the time a futile proceeding, yet if he afterwards became the owner of the property and adopted the plan he would be entitled under the Act to have it amended In re Chis- holm and the corporation of the town of Oakvilk, 12 A.K., 225. In re the Hon. G. W. Allan, 10 C.R., no. EVIDENCE— surveyor's FIELD NOTES— POSSESSION— ACTS OF OCCUPATION— STATUTE OF LIMITATIONS- R. S. O., c. 108. To determine a disputed boundary line between two lots, the field notes of S., a land surveyor, were offered in evidence, but objected to on the ground that they were not made by S. in the execrtion of his duty as such sur- Held that tlie objection was good, and the evidence inadmissible. The plaintiff and M., his next adjoining neighbour, in 1868, employed a surveyor to run the hne between his land and that of M. The line drawn ran through a wood. For more than ten years the plaintitt was in the habit of cutting timber up to the said line, and he and the owners 01" the adjoining land recognized it as the division line. • . .1 1 Held, that this was sufficient occupation by the plain- tiff to give him a good title by possession up to the said line, whether it was the correct line or not. Harris v. Mudie, 7 A.R., 414. distinguished. McGre- gor V. Keiller et a/, 9 O.R., 677. surveyor's liability— PROVINCIAL LAND SURVEYOR— IM- PROPER SIRVEY — LIABILITY FOR DAMAGE. r,.. of Stafford A surveyor in making a survey is under no statutory r^.Beii. obligation to perform the duty, but undertakes it as a matter of contract, and is liable only for damages caused by want of reasonable skill, or by gross negligence. The McGregor j'.v. Keiller,'/ u/. 37 defendant, a provincial land surveyor, who was employed by ihe plaintiffs to run certain lines for road allowances, proceeded upon a wrong principle in making the survey, and the plaintiffs sued him for damages which they had paid to persons encroached upon by opening the road according to his survey. Held, reversing the judgment of the Common F.eas. 31 C P., 77, that the plaintiffs could not recover, as although the survey was made by the defendant on an erroneous principle, the evidence failed to prove that the lines as run by him were not correct. Quffre, per Patterson J. A., whether the fact that the plaintiffs knew that the correctness of the survey was questioned before opening the road did not make them guilty of contributory negligence. Remarks upon the impropriety of receiving the opinions of surveyors as experts as to the proper mode of making a survey under a statute. The Corporation of the Township of Stafford v. Bell, 6 A.R., 273. surveyor's witness fees, taxation of— costs— procuring evidence — taxation— local master — fees. Expense incurred for surveys and other special work of J^^JJe"""" '"'' that nature made in order to qualify witnesses (surveyors) to give evidence are not taxable between party and party, the English Chancery Order 120(1845) not being in force here. The taxing officer refused to allow charges for maps prepared to identify the details of the line mentioned in the judgment as that which the judge considered the true line, and also for. a certificate of the state of the cause, for a letter advising of judgment, and for instructions on motion for judgment. Held, that there being no error in principle, but only an exercise of discretion ■ y the taxing officer, the Court would not interfere with his ruling. Held, also, that the Local Masters, who are paid by fees instead of salary, are entitled to charge one dollar per hour in money under Chancery Tariff of 23rd March, 1875, when taxing costs. ^June i8th, 1883.— Boyd, C.) McGan- non V. Clarke, 9 P.R., 555. UNSKILFUL S'.'RVEY— COMPENSATION FOR IMPROVEMENTS UNDER R.S.O., CH. 5I, SS. 29, 30. Where S., having purchased a lot of land, employed a Plumb v^. public land surveyor to mark out the boundaries of it for ^'"" ° • him and the surveyor, by reason of an unskilful survey, 38 included in the lot, as marked out by him, land which should not have been so included, and S., misled thereby, effected improvements upon the land so erroneously included. Held, on recovery of the said land by the rightful owner that S was entitled to compensation for the said improve- ments under R S.O.. ch. 51, ss. 29, 30. Plumb v SteinhofT, 2 OR., 614