DESCRIPTIONS OF LAND THE MACMILLAN COMPANY NEW YORK BOSTON CHICAGO DALLAS ATLANTA SAN FRANCISCO MACMILLAN & CO., LIMITED LONDON BOMBAY CALCUTTA MELBOURNE THE MACMILLAN CO. OF CANADA, LTD. TORONTO DESCRIPTIONS OF LAND A TEXT-BOOK FOR SURVEY STUDENTS BY R. W. AUTLEY, D.L.S., B.C.L.S., A.L.S. LATE SURVEYOR TO THE LAND TITLES OFFICE AT EDMONTON ALBERTA, AND MEMBER ALBERTA AND BRITISH COLUMBIA BOUNDARY COMMISSION fork THE MACMILLAN COMPANY 1913 AH rights reserved COPTBIGHT, 1913 BY THE MACMILLAN COMPANY Set up and electrotyped. Published December, 1913. INTRODUCTION Title to land is based upon the description contained in the deed conveying it. It is not enough that the boundaries should be accurately surveyed: the land itself must be so described hi the deed as to identify it without ambiguity and beyond any possible doubt. The importance of a precise description is enhanced when the boundaries are partially or wholly unsurveyed: it must then be so bounded that all the surveyors who may be employed in laying out the boundaries shall find identical lines if their operations are conducted with accuracy, and that the land lying between the lines so located shall be the particular piece of land which the parties to the deed are intending to deal with. A surveyor who is draft- big a description must be able to express what he wishes to say hi sentences that will admit of only one interpretation; he must have a clear concep- tion of what he has to describe, of the surveying operations involved and of the exact meaning of the words he is using, as interpreted by judicial decisions. The writing of descriptions cannot be governed by absolute rules. Whether a piece of land should vi INTRODUCTION be described by adjoiners, or by land marks or by the courses and length of the boundaries de- pends upon a variety of circumstances: when in doubt the surveyor should be guided by legal advice. While it is true that most lawyers are quite ignorant of the most elementary principles of surveying, it is equally true that few surveyors, if any, are able to understand the intricacies of a complicated title. The cooperation of surveyor and lawyer is necessary. One of the blessings of the Dominion Lands System of Survey is that descriptions generally assume such a simple form that the average sur- veyor should have no difficulty in writing them if he will only take the trouble to conform to a few rules. In the pages which follow Mr. R. W. Cautley has endeavored to formulate these rules: his experience as a surveyor in active practice for a number of years and subsequently as Surveyor to the Land Titles Office at Edmonton having given him exceptional opportunities, his views on the questions involved are especially valuable. E. DEVILLE. PREFACE While there are a great many standard works on the subject of conveyancing, they deal, for the most part, with the legal aspect of the subject, with which a survey student has nothing to do. At the same time all survey students in Canada are required to pass an examination on "Descrip- tions of Land," which is one important branch of the subject of conveyancing. I have therefore written the following text-book in the hope that it may prove useful hi helping survey students to get up the subject for their examination, and what is far more important to realize the im- portance of the subject, and, by further study of it, to become capable of filling a more useful position as a surveyor in after Me. Writing descriptions of land is essentially a branch of sur- veying and every complicated description should be drawn by an authorized surveyor. Unfor- tunately a great many surveyors are satisfied with obtaining proficiency in field work, as the most important and lucrative part of surveying, and do not take the trouble to become proficient in description writing, draughtsmanship, survey law or any other kindred subject once they have vii viii PREFACE obtained their commission. I venture to say that any surveyor, having just acquired his commis- sion, who will devote a year or two to acquiring a knowledge of office work and general business methods in a department of the Government, in the land department of a railway system or in the employ of any corporation having extensive deal- ings in land, will find that the knowledge so ob- tained will open to him a wider field of oppor- tunity that will more than compensate him for the increased earnings which he might have had by undertaking field work at once. In studying this subject it is important to note the close connection between the practice of sur- veying, the writing of descriptions of land and a knowledge of the laws governing registration of land titles. It is absolutely essential that any surveyor who undertakes to write descriptions of land in any given province must first have a knowledge of the Real Property Act in force in that province. 6th July, 1913. EDMONTON, ALBERTA. CONTENTS Section Page DESCRIPTIONS BASED ON ACTUAL SURVEY 1-2 1 DESCRIPTIONS MUST REFER TO PLANS OF RECORD 3 7 PLANS AND HOW TO REFER TO THEM, GENERAL 4-5 9 Departmental Plans 6 11 Subdivision Plans 7-9 13 Explanatory Plans 10-17 16 Railway Plans 18-19 23 USE OF NATURAL BOUNDARIES IN DESCRIP- TIONS 20-25 27 USE OF WORDS "MORE OR LESS" IN DE- SCRIPTIONS 26-29 34 USE OF BEARINGS IN DESCRIPTIONS 30-39 37 DESCRIPTION OF REMAINDERS 40-42 48 DESCRIPTION BY EXCEPTION 43-47 54 DESCRIPTION OF RAILWAY RIGHT OF WAY 48-50 59 EXCEPTION OF MINERALS IN DESCRIPTIONS 51 68 INTERPRETATION OF FAULTY DESCRIPTIONS 52-53 71 FORMS OF PREAMBLE 54 75 EXAMPLES, DESCRIPTION OF: city lot with appurtenant easement . 55 76 partition of two city lots 56 77 part quarter section . .- 58 82 part bounded by right of way 59 84 ordinary right of way 49 60 right of way by metes and bounds . . 60 85 additional right of way 62 87 interior parcel of quarter section ... 15 18 ix DESCRIPTIONS OF LAND DESCRIPTIONS OF LAND All Descriptions of Land must be Based on Actual Survey. 1. Since the ownership of land is the most universal and, at the same time, the most per- manent form of property, it follows that convey- ancing of land constitutes the most common and important class of transactions in the everyday business of the world. The term "conveyance of land" includes all Meaning of documentary instruments purporting to deal ve ^ nc with the ownership of land, whether by way of land.", absolute sale or transfer, transmission, agreement of sale or lease. Every conveyance of land may, for the present purpose, be regarded as consisting of two essential parts; first, that which defines the relation be- tween the parties to the. document as to their respective interest in the land, and secondly, that which defines the actual position and extent of the land itself. The first of these two parts is a matter of drawing up a legal document, and should generally be done by a lawyer: with it 1 Description must be based on survey. , . . : , . ;;? * .^ '''-DESCRIPTIONS OF LAND we have nothing to do here. The second involves the description of land and forms the subject of this text book. 2. To begin with the fact must be recognised that all descriptions of land must be based upon a survey of the land in question, and the establish- ment on the ground of recognisable points by which the land described may be identified. Such points may be either corners of a mathe- matical survey marked on the ground by the establishment of posts or other survey monu- ments, or they may be topographical features of the country. In the former case, since the points are arbitrarily determined, it is essential that the lines which connect them should be mathemati- cally surveyed. In the latter this is not essential for purposes of conveyancing unless it is desired to include in the conveyance precise information as to the area and measurements of the land conveyed. For instance, when two Indian chiefs wanted to determine the boundaries of their respective hunting grounds, they did so by reference to a range of hills and an intersecting river points of the landscape which were patent to their eyes and capable of identification by their tribesmen and in so doing made an actual survey of the country. Again, after the North-West Rebellion in 1885 Description by natural boundaries. DESCRIPTIONS OF LAND 3 the Government of the Dominion of Canada is- sued land scrip to veterans and half breeds for a certain specified quantity of land in the North- West Territories, the position of which was unde- fined hi the scrip and left to the choice of the holder. This scrip was exchangeable for as much real property as the number of acres mentioned in it; at the same time the land could not be con- veyed until the owner of the scrip had located it according to the Government's own surveys and received a patent for it from the Crown. In other words the scrip could be sold as a chattel but the land which it represented could only be conveyed after it had been defined in reference to surveys on the ground. Of course the above rule that all descriptions Descriptions must be based on actual survey is capable of may on remote secondary application. It is not essential that survey, all the corners of a parcel of land which it is de- sired to describe should be marked on the ground. It is not even necessary that any of them should be so marked. What is essential is that the exact position of each such corner shall be so described hi relation to the position of some point that is surveyed and marked on the ground, and of some line of known direction starting from said point, that it shall be capable of being accurately and unambiguously defined on the ground. To take a very simple example, it is of course possible to 4 DESCRIPTIONS OF LAND describe and convey a parcel of land containing ten acres out of the interior of a quarter section by describing the ten acres in reference to any corner and adjacent side of the quarter section. As a further example it is only necessary to refer to the Dominion Lands Act 1908, which expressly provides that any quarter section shall be deemed to be surveyed when any two of the corners have been established. Description The most extreme cases of land being described in reference to j n re f erence to known points Outside the land it- lines of lati- i.i.ii tude or longi- self are those in which boundaries are described tude. as unsurveyed lines of latitude or longitude. In these cases the real reference is the Greenwich Observatory in England and the local meridian at that point, although usually there are many subsidiary points and lines of reference established by previous survey much closer to the projected line than Greenwich. For instance, the North boundary of the Provinces of Saskatchewan and Alberta has been denned as the 60th parallel of North latitude, and the West boundary of Al- berta, is, in part, the 120th Meridian of West longitude, none of these being actually defined on the ground. In these cases, however, the rights of possession guaranteed by a title based on a line of latitude or longitude cannot be fully enjoyed by the owner, or enforced against possible trespass, until such time as the line is actually DESCRIPTIONS OF LAND 5 defined on the ground. The story of the Hudson's Bay Company's Post on the Yukon River affords a good illustration of this point. Many years ago the common boundary between that part of the North- West Territories now known as the Yukon Territory and Alaska a territory of the United States was defined as the 141st Meridian of West longitude. In 1847 the company estab- lished a trading post at Fort Yukon at the Junc- tion of the Yukon and Porcupine Rivers, but, when the first surveys of the country were made, it was found that the longitude of Fort Yukon was approximately 145 20' West, and its latitude 66 34' North, so that the fort was about 120 miles due West of the British American boundary, and within American Territory. As a result the company's post was moved Easterly to a point on the Porcupine River which was East of the boundary, and was named Rampart House, in 1869 or 1870. Before leaving this phase of the subject it may Descriptions be stated as a fact that, in all ordinary cases, and good , or b * d according to provided it is correct hi other respects, a descrip- proximity of tion of land is good or bad hi inverse ratio to the surve y n which they distance of the land described from the points of are based, reference in regard to which it is described. In other words, that description is best hi which the point of commencement at least is referred to as being actually defined on the ground, and the 6 DESCRIPTIONS OF LAND worst form of description is that in which the connection between the point of commencement of the land described and the points of reference in relation to which it is described is long, com- plicated and obscure. The following reasons may be given for the above statement : (a). A description should always be made as simple and direct as possible. (6). A description does not fulfil all its purposes until the land described has been identified on the ground, and although a description based on a survey at some distance from the land described may be perfectly sufficient for the purpose of conveying the said land it necessitates a survey before the land can be identified and is, to that extent, incomplete. Description (c). A description of land the boundaries of tuai^ositioT w ^ c ^ are described as being between certain of points on posts or other monuments on the ground is bound ground. ^y t k e ac t ua i position of such posts or monuments, and thus any errors of distances or bearings given in the written description are absorbed by the survey on the ground. Descriptions Should Refer to Plans of Survey Which are of Record, as well as to the Survey Itself. 3. Having seen that all descriptions of land Descriptio must be based on actual land surveys near or re- J 1 " mote it is very important to realize that de- survey. scriptions should always refer to a plan of the sur- vey registered in some public office of the State, as well as to the actual lines and monuments on the ground. There are several reasons for this, of which the following are perhaps the most im- portant : (a). A survey on the ground cannot be brought Reasons why within the comprehension of any person interested ^"^^Q in the land, except the surveyor who has made p i a n of sur- the survey, until it has been plotted hi plan form ve y- on a convenient scale. If you take a man out on the prairie and tell him that you are standing at about the centre of a piece of land having certain measurements and containing a specified acreage, he can only be convinced in so far as his faith in your knowledge of the facts and your personal integrity will carry him. If, on the other hand, you are able to show him a plan of the same land, with the various measurements shown on it and bearing on its face the affidavit of a State au- 7 8 DESCRIPTIONS OF LAND thorized land surveyor and the signatures of the owner and the public official whose duty it is to keep such plan as a matter of public record, he is at once able to realize the position and extent of the land for himself. (6). It is impracticable for all the principals, or their agents, who have to deal in land to visit any given parcel of land, or to have it resurveyed, every time they desire to ascertain anything in regard to it. (c). A plan duly registered in a place of public record tends to do away with any chance of the actual survey on the ground being tampered with by interested parties. (d). Many surveys become obliterated alto- gether in process of time, either by decay or up- rooting of the monuments or by fire, so that a conveyance of land in which the land is described in reference to posts planted in the ground would, if such posts were entirely obliterated, often become valueless, whereas any proper plan of survey contains information from which it would be possible to reconstruct the survey on the ground in such a case. (e). No registrar of land titles, under the Torrens system of land titles which obtains in all the Western Provinces of Canada and to a certain extent in Eastern Canada, can properly issue certificates of title based on facts of survey DESCRIPTIONS OF LAND 9 which are not a matter of record in his own office. Since monuments on the ground can never be matters of office record it follows that a plan of every survey must be made and registered before such survey can be accepted by a registrar as an authentic fact on which to base descriptions of land for registration purposes. The foregoing paragraphs may be summarized by stating that all references to surveys to be made in descriptions of land should be made to plans of such surveys hi order that they may be intelligible, accessible for purposes of verifi- cation, better established and valid for registra- tion. 4. The description of a surveyed parcel of land Advantages which is based on, and made subject to, a plan of the survey is described partly in the written sidered as a words of the description and partly by the lines description, and measurements shown on the plan. A sufficient plan of survey constitutes a graphically drawn description of the parcels of land shown on it. A graphically drawn description possesses these advantages over a written description, (a) that the more intricate points of the survey are ren- dered capable of being visually realized by inspec- tion, and (6) that the mathematical process of plotting the survey on a plan serves as a check against errors which may easily be made and un- discovered in a written description. 10 DESCRIPTIONS OF LAND Definition of 5. A plan of survey that is "sufficient" for a "sufficient" ^ purpose of conveying land by reference to it vey . may be denned as having the following attributes : (a). That it is a plan of an actual survey made upon the ground and marked on the ground in such a way that the parcels of land surveyed may be capable of identification. (6). That it is made by a surveyor authorized by law to make such a survey. (c). That the survey and plan are made in ac- cordance with the provisions of any law affecting the making of such survey or plan, as to the method of survey employed, the marking of the survey on the ground and the execution of the plan by the surveyor, the registered owner and any other person required to execute the same under the said provisions. (d). That the plan is of record in the public office wherein such a plan is required to be regis- tered by the law in that behalf. Plans and How to Refer to them in Descriptions of Land. DEPARTMENTAL PLANS 6. The most important class of plans are those Importance issued by the departments of the Government of f 3 re P resent - ing original the original surveys of different parts of Canada, surveys. The great importance of these plans arises from the fact that they are the plans of the surveys on which all original grants from the Crown have been based, and therefore on which all subsequent title to land depends. Owing to the fact that the original surveys were not always made carefully, it has been found necessary in a great many in- stances to have certain sections of the country resurveyed, and new plans of the corrected survey issued, so that it is quite usual to find two, and even three, departmental plans of the same town- ship having different measurements and acreages shown on them. All these plans are of record in the office of the Where of Department by whose authority they were issued, record - and also in the Land Titles Office for the district in which the land occurs. They are usually iden- How identi- tified in descriptions that are based on them by fied * 11 12 DESCRIPTIONS OF LAND reference to the date of the official approval of the survey which they represent. Examples. Two examples are given below of the way in which departmental plans may be referred to in descriptions of land : (a). The whole of the South East quarter of Section 1 in Township 54 and Range 23 West of the 4th Meridian in the Province of Alberta in the Dominion of Canada containing 160 acres more or less and as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May, 1894, which plan is of record in the Department of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Province. (6). The whole of the fractional South West quarter of Section 6 in Township 51 and Range 24 West of the 4th Meridian in the Province of Al- berta in the Dominion of Canada containing 39 acres more or less and as the same is shown on a plan of survey of part of the said township being a subdivision of part of the Papaschase Indian Reserve made by A. Nelson, Dominion Land Sur- veyor and signed by him at Ottawa on the 29th day of March, 1892, which plan is of record in the Department of Indian Affairs at Ottawa and in the Land Titles Office for the North Alberta DESCRIPTIONS OF LAND 13 Land Registration District at Edmonton in said Province. NOTE. The second form is not so good as the first, but it will be found that some of the earlier plans were admitted to record without endorse- ment by the head of the department, and exam- ple (6) is supposed to represent a case of this kind. SUBDIVISION PLANS 7. A second class of plans which are very im- portant, because of the value of the land which they represent and the great number of convey- ances that are based on them, is that of City or townsite plans of subdivision. The object of these plans is to facilitate the Object of sub- transaction of all kinds of business having to do ^ion plans, with city or town lots. These lots consist of small parcels of land which it would not be practicable to deal with as independent parcels described in reference to the outlines of the original land survey on account of their number, the number of transactions that take place in regard to them and the fact that it is constantly necessary to identify the position of the land occupied by each lot. It is quite usual for a quarter section, contain- ing 160 acres, to be subdivided into 1,000 town lots, with streets and lanes. This often results 14 DESCRIPTIONS OF LAND in thousands of persons acquiring an interest in small portions of t.he quarter section, either as owner, mortgagee, lessee or tenant, and in endless complications of title. Subdivision 8. In order to meet the foregoing conditions plans spe- a }| j^gj p roper ty Acts contain provisions that cially pro- vided for in have the following general effect, although they Real Property vary considerably in scope and treatment: (a). That an owner desiring to create a town- site on his property may register a plan of sub- division of the same, showing the blocks and lots designated by numbers or letters, the position of streets, lanes, parks, etc., and all necessary measurements. (6). That upon the registration of such a plan he may proceed to sell or otherwise deal with the town lots shown thereon by reference to the regis- tration marks of the plan and the numbers or letters shown on the plan to designate such lots. Registration 9. On the registration of a plan of subdivision of subdivision under the Torreng system of land titles the own ers 7 pitin. C&USGS change in title is changed in form from a title based on the form of title. or i g i na i i an( i surve y to a title to lots and blocks based on the plan of subdivision. For instance in the case of a man owning a quarter section of land within the limits of an incorporated city and presenting for registration a plan of subdivi- sion of the entire quarter section, his title to the quarter section as such would be cancelled in DESCRIPTIONS OF LAND 15 full and he would receive in exchange a new Once a plan title for all the lots shown on the plan. It follows of ^Mwirion registered all that descriptions of lots, or parts of lots, in a city property or townsite must always be based on the registered showi1 n it plan of subdivision, and that, after the registra- described in tion of such a plan, it is wrong to attempt to de- reference to it. scribe them in any other way. Take the supposed case of Lot 1 in Block 13 situate hi the town of Orwell and being part of the South East quarter of Section 1 in Township 46, Range 23 West of the Fourth Meridian as shown on a plan registered in the district land titles office under number 2079 in Day Book Q. A good and sufficient description of the above lot would be as follows: "Lot num- bered One (1) in Block numbered Thirteen (13) in the Town of Orwell in the Province of Alberta as the same is shown on a plan of survey regis- tered hi the Land Titles Office for the North Al- berta Land Registration District under number 2079 in Day Book Q." But suppose it is merely described as "Lot numbered One (1) in Block numbered Thirteen in the Town of Orwell being part of the South East quarter of Section One (1) in Township Forty-six (46), Range Twenty-three (23) West of the Fourth (4th) Meridian," this is insufficient for the following reasons: (a). There is no certificate of title in existence which corresponds with and can be identified with 16 DESCRIPTIONS OF LAND the terms of the description. The description contained in the Certificate of Title for this lot is based on plan 2079 Q, which defines its size and relative position. (6). There may be, and experience shows that there frequently is, an unregistered plan which shows Lot 1 Block 13 to be in an entirely different position and which, nevertheless, was the plan which the parties to the sale or agreement had agreed upon. EXPLANATORY PLANS Purpose of ex- 10. A third class of plans are those which are drawn for the express purpose of accompanying and elucidating particular descriptions of land, and which are attached to and form part of such de- scription. For the purpose of distinguishing them from departmental plans or subdivision plans, they will be referred to as "explanatory plans." Provided for 11. Most of the Real Property Acts in Canada P rov ide that a Registrar may require any person desiring to register an instrument containing a complicated description of land to furnish him with an explanatory plan, signed by an authorized surveyor, and to make the description in the in- strument subject to the plan by embodying a direct reference to the plan in the instrument itself. DESCRIPTIONS OF LAND 17 12. The object of an explanatory plan is to Effect of ex- attach to a description which is not of a nature to p} anator y plans. be capable of comprehension by the Registrar, or his staff, the weight of evidence afforded by a plan of survey certified to be correct by a surveyor whom the Government has found worthy to receive a Commission as such from the Crown and who has done the work necessary to prove the correctness of the description. 13. An explanatory plan, and the survey which it represents, add a great deal to the cost of con- veyancing, so that there is a constant tendency on the part of lawyers to save their clients money by evading the necessity of having a plan made. The question therefore arises as to what constitutes a complicated description. As the answer to this Definition of question generally lies in the discretion of the * c mpfoati description. Registrar, it is only possible to consider the sub- ject in a general way. Any description may be said to be complicated, the facts of which cannot be grasped when it is read through by a man who is accustomed to such work. Further, any descrip- tion in which it is necessary to make a trigono- metrical calculation in order to prove the cor- rectness of the various courses, or to plot the said courses in order to prove the correctness of the acreage specified, is complicated within the mean- ing of the term as applied here. 14. Explanatory plans are not registered as 18 DESCRIPTIONS OF LAND independent instruments, as are plans of sub- division, but are merely attached to the instru- ment of which they are really a part, and must be referred to accordingly. For example: " and as shown colored red on a plan of survey attached to an instrument registered in the Land Titles Office for the Land Reg- istration District under number in Day Book ." 15. As explanatory plans are intended to ac- company a description of a particular parcel of land it only becomes necessary to refer to them in descriptions affecting the same land. That is they are plans of special record affecting one par- ticular parcel of land instead of being plans of general record affecting many different titles, as in the case of a departmental plan or a plan of subdivision. Moreover, whereas a departmental plan is usually a plan of an original survey, and a subdivision plan is one that has been accepted in lieu of such plan of original survey, so that, in either case, all titles which are based on them de- pend directly on the plan itself and the survey which it represents, this is not the case with ex- planatory plans. Explanatory Explanatory plans can only be used to accom- secondary 7 & P an y a description of a part of one of the larger base of de- parcels shown on a plan of general record, and scnption. anv ^j e j ssue( j on guch a description depends, DESCRIPTIONS OF LAND 19 first, on the plan of general record, and, second- arily, on the explanatory plan. Hence it is sometimes held that a description accompanied by an explanatory plan must in- clude in the text a full written description of the lands by metes and bounds, as well as the refer- erences to the plan of general record and the ex- planatory plan, as in example (a) given below. On the other hand it is very common practice to make the description depend directly on the ex- planatory plan, as in example (6). My own opinion is that either form is correct providing the explanatory plan is a plan of ac- tual survey, duly certified by an authorized sur- veyor and sufficiently executed by the registered owner of the land. The advantage in Form (a) lies in the fact that a title issued on, and containing, such a descrip- tion is, to a large extent, self contained and com- plete, whereas a title issued hi Form (6) cannot be understood without a certified copy of the explanatory plan or an examination of the original at the land registry office. The advantage in Form (6) is that it does away with any chance of a discrepancy between the written description and the plan a serious error which is by no means uncommon. (a). "All that part of the South East quarter of Section twenty (20) in Township Forty-seven 20 DESCRIPTIONS OF LAND (47) Range Twenty-one (21) West of the Fourth (4th) Meridian as the same is shown on a plan of survey of the said Township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May, 1894, of record in the Department of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in the Province of Alberta which may be more par- ticularly described as follows: Commencing at an iron post planted at a point on the Southerly boundary of said quarter section distant six hundred (600') feet more or less Westerly from the South East corner thereof, Thence Northerly and parallel to the Easterly boundary of said quarter section six hundred and sixty (660') feet more or less to an iron post planted, "Thence South forty-five degrees and no min- utes more or less West nine hundred and thirty- three decimal point two (933.2) feet more or less to an iron post planted on said Southerly boundary, " Thence Easterly and following said Southerly boundary six hundred and sixty (660') feet more or less to the point of commencement, "The part herein described containing five (5) acres be the same more or less and as shown colored red on a plan of survey of the same made by Alfred Jones, Dominion Land Surveyor and attached hereto." DESCRIPTIONS OF LAND 21 (6). "All that part of the South East quarter of Section Twenty (20) in Township Forty-seven (47) Range Twenty-one (21) West of the Fourth (4th) Meridian as the same is shown on a plan of survey of the said Township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May 1894 of record in the Department of the Interior at Ottawa and the Land Titles Office for the North Alberta Land Registration District at Edmonton in the Prov- ince of Alberta containing five (5) acres be the same more or less and as lettered "X" and shown colored red on a plan of survey of the same made by Alfred Jones, Dominion Land Surveyor and attached hereto. " NOTE. The two above examples are intended to be embodied in an original transfer of the parcel described. In the title that would issue, and in all subsequent transfers, it would be necessary to substitute for the final word "hereto" the follow- ing "to an instrument registered in the said Land Titles Office under number hi Day Book ." 16. When referring to a registered plan or other important instrument hi a description of land it is of the that reference to plans shall utmost importance that the reference shall be identify made in terms that shall absolutely identify the plan or instrument referred to. To do this it is necessary to have some knowledge of the system 22 DESCRIPTIONS OF LAND System of registration discussed. under which instruments are registered in different registry offices. The most general system of registration is that in which instruments are registered according to the number given them in the current day book or journal, and the num- ber or letter given to said book to distinguish it from those that have already been filled and those of the future. For instance, take a day book containing room for 8,000 entries and known as Day Book "Q." Each instrument that is regis- tered is given the next unused number say 3679 and henceforth becomes known for all pur- poses of registration as " instrument registered in the Land Titles Office for the Land Registration District under number 3679 in Day Book 'Q.'" or for informal reference, as plan, or document, " 3679 Q." A very common mistake in ordinary practice is reference to an instrument by its registered number alone, as " Instrument registered, etc., under number 3679." Since it will be seen that there are as many instruments registered in any registry office under any given number as there are completed day books, it is unnecessary to further establish the fallacy of this practice, particularly when it is understood that instruments are indexed and filed for refer- ence in a registry office, in sequence of numbering, under the letter or number used to designate the particular day book that they were registered in. DESCRIPTIONS OF LAND 23 17. In cases where it is practicable to see the Good practice Certificate of Title of, or including, the land which to c P y e3 ? st ' ' f m c ing title when it is desired to describe, it is almost always good describing practice to follow the actual wording of the de- same land - scription contained in the Certificate as far as the same is applicable. For one thing, except in the comparatively few cases where there is some- thing radically wrong about it, it will be accepted without question by the registrar. RAILWAY PLANS 18. There is a fourth class of plans which may Nature of be referred to as Railway Plans, being plans of railwa yp lai18 - surveys of railway right of way on which descrip- tions of land, and titles to the same, are based. Railway plans were called into existence by the provisions of various Railway Acts which have been passed by the Dominion and Provincial Legislatures. The object of these plans, as plainly Purposes of contemplated in the said Acts, is to give public railwa yp lans - notice of intention on the part of the promoting railway companies, first to the Government whose approval and sanction are necessary before the privileges granted to the company under its charter can be given effect to in respect of the proposed line, and secondly to the owners of all land through which the line passes. With a view to promoting the second of these objects, it is 24 DESCRIPTIONS OF LAND provided that railway plans shall be deposited in the land registry office for the district in which the land affected occurs. It followed that, be- cause these plans were of record in the local land registry offices, and because there was no other Why railway available base of description that was of record, plans us ^ 8 they came to be generally recognized and accepted as a base of description for title to railway lands. Inferior char- Unfortunately the class of plans made under the P r visions of tne Railway Acts and approved by those who administer the said Acts as being suffi- cient for the purposes thereof, lack the essential characteristics which any plan intended to be used as a base of description for land titles should Wherein rail- possess. In the first place such a railway plan way plans not j g on j y & p i an Q f survev m so f ar as the actual " sufficient.'' . . . . , right of way is concerned; in respect to the land boundaries shown on such a plan it is merely a sketch, most of the ties shown on land boundaries, from the intersection of the centre line of the right of way to alleged corners of the parcel of land, being derived from calculation based on the assumption of a theoretically perfect original survey, or having been carelessly and incorrectly made. The serious feature of the above is that the survey of the right of way itself is not posted or marked on the ground in any way, and its existence as a matter of record depends on the spurious ties given on the plan. DESCRIPTIONS OF LAND 25 NOTE. Lest it should appear that this state- ment contains an exaggeration, I may say that 3 years experience as a surveyor to a land titles office has shown me that whenever a subsequent and carefully made survey of land abutting on a rail- way right of way has been made, and a plan of same presented for registration, 'fully one half of the land ties shown on the railway right of way plan have been found to be incorrect often grossly so. In the second place the survey represented by such a railway plan is very rarely made by an authorized surveyor, but, generally, by a railway engineer whose whole interest in the work is centred in the actual right of way and who cares nothing whatever about the land connections thereof. In the third place the Government officials who pass upon railway plans can only require that they shall fulfil the conditions prescribed in the Railway Acts, which do not contemplate their being used as a basis of title. As a result, there are innumerable faulty descrip- tions contained in right of way titles, which will all, eventually, have to be rectified at an immense cost. In recognition of this fact the Governments of the Provinces of Manitoba, Saskatchewan and Alberta have passed legislation refusing to issue titles to railway right of way until plans of a posted survey of the right of way, made by an 26 DESCRIPTIONS OF LAND authorized surveyor in accordance with the pro- visions of the Provincial Surveys Acts, or, in the case of Manitoba, the Real Property Act, have been registered in the proper land titles office. How regis- 19. Since railway plans are plans of general tered ' record that affect the titles to all lands through which the railway is shown to pass, they are regis- tered as independent instruments and should be identified in descriptions of right of way by refer- ence to the registration marks of the plan. Owing to the fact that railway plans are de- posited hi land titles offices as matters of record with a view to their future use as bases of descrip- tion whenever the railway company shall desire to acquire title to the right of way across any particular parcel of land shown thereon, and the further fact that they do not in any way affect the title to such land until so used, it is frequently the case that they are not registered in the com- mon register of instruments which have a direct and immediate effect on existing land titles, but are registered in a special register. Before under- taking to draw descriptions of railway lands, therefore, it is necessary to make careful enquiry as to the correct designation of the railway plan on which it is proposed to base the description. The Use of Natural Boundaries in Descriptions of Land. 20. Natural boundaries include the high water Definition of mark of seas, lakes, or rivers, the centre line of term " nat ~ ural bound- Creeks and the foot or the top of hills. aries." 21. In the case of lands fronting on seas, lakes High water or considerable rivers the high water mark is the f ar ^ of wat f r frontage only only proper boundary to adopt, the object being proper to ensure that the land shall include the water boundary to adopt. frontage and the high water mark being the only possible boundary having flexibility enough to allow for changes in the actual water front due to encroachment or recession of the water. It is H. w. M. bad practice to attempt to define the high water shou | d n f be it x- i i. ngldly de - mark by mathematical survey in such a way as fi ne d by sur- to preclude any change hi the position of the ve y- boundary whatever the water may do. Any sur- vey of a high water mark should be made only for the purpose of plotting the same or computing the area of land fronting on it, and not with any idea of rigidly defining the boundary of the land. For instance, let us consider the case of a frac- tional quarter section of land, containing 100 Example, acres and fronting on a navigable river with a swift current which is constantly cutting away its 27 28 DESCRIPTIONS OF LAND banks on the one hand or forming new land on the other. Let us assume that the high water mark was accurately determined at the time of survey and that the said high water mark, tied in by offsets from properly connected traverse lines, was made the boundary of the quarter sec- tion as a surveyed line. First let us suppose that the river encroaches on the quarter section and cuts away 20 acres from it. This 20 acres, having become part of the bed of a navigable river, re- verts to the Crown. Thus we have an existing title for 100 acres of land while there are only 80 acres within its described boundaries. Secondly let us suppose that the action of the river causes 20 acres of land to form in front of the quarter section. The result is that, while the original 100 acres are undisturbed, the land has lost its character as water frontage and, with it, much of its value. If the high water mark of the river, without any attempt at surveyed definition, had been used in the description the title would, at different times, have included anywhere from 80 to 120 acres and the real intention of the original grant would, at all times, have been fulfilled. Area of land 22. Owing to the fact that the area of land wate^shouid ^ rontm S on water is liable to actual change in be described extent, any specific acreage given in a description as approxi- o f^ or a ^j^j e ^ ^^ j anc j s ] lou } ( j a l wa y s be quali- fied by the use of the word "approximately." DESCRIPTIONS OF LAND 29 For instance, "and containing approximately 100 acres be the same more or less," or "and containing approximately 100 acres as the same may be or may become." It may be argued that the use of the words Use of words "more or less" is sufficient to cover any possible , moreor less ' as ap- variation of acreage, due to whatever cause. On plied to reflection, however, it will appear that the words acrea e - "more or less" are only intended to cover any variation of acreage due to error in computation of the area, and cannot be held to cover any actual change in the area itself. 23. A high water mark that is sharply defined m defined is, as has been said, a very good natural boundary, ^ but there is an immense amount of land which fronts on marshes that intervene between that which is indubitably land and that which is in- dubitably water. In such cases it is often im- possible to define the high water mark with any degree of precision. Even so it is all the more necessary to use the term "high water mark" and to rely on its flexibility of meaning under differ- ent circumstances. Any specification of acreage in a description of such a parcel should be : (a). Expressed in terms giving the greatest possible latitude, or (6). Omitted altogether, or (c). Described as containing so many acres of 30 DESCRIPTIONS OF LAND high land "together with all the low lying land lying within the above described boundaries/' - of which "the high water mark" is one. Centre of 24. The centre line of a creek may be a very creek as nat- ^ natural boundary in cases where the creek ural bound- ary, has a well denned channel and is of a size to en- sure its permanency. Good in cases Even a small creek may make a good common where land is boundary between two parcels of agricultural of small value. lands which are of small value, and there may be good reasons for adopting such a creek as a bound- ary which, while contrary to the best principles of good conveyancing, should nevertheless be taken into consideration. For instance, take the case of a quarter section with a creek running diagonally through it and having steep rough banks. From the point of view of working the land economically the two halves as divided by the creek would have a very much greater value than if they were divided by a straight line leaving small corners of arable land on either side of the creek. Why creeks In a city or town, however, the water which should not be flowg in & gmg ^ creek win eventua n y be absorbed adopted as boundaries into the municipal drainage system, while the in cities. bed of the creek will become diverted, excavated, filled in or otherwise obliterated. In the City of Winnipeg litigation over the question of what had been the true position of a small creek of this DESCRIPTIONS OF LAND 31 kind, the position of which had been obliterated, cost hundreds of thousands of dollars, and the same thing has occurred in regard to other cases elsewhere. Hence it may be accepted as a general rule General rule, that no small creek should ever be adopted as a common boundary between two parcels of land which have, or appear likely to have, a value above that of agricultural land. 25. The use of the foot or top of hills as natural Hills must boundaries should always be avoided, on account ^dlpted 6 as of their lack of definition and the possibility of natural change in their position, owing to slides or erosion boundanes - by water. It is often desirable to establish the foot or top of a hill as a land boundary, and this may very properly be done but such a boundary must in all cases be established as a surveyed line. For instance, the inining regulations which were in Example, force in the Klondike gold mining camp defined the most valuable class of claims creek claims as extending from "base to base of hill." As the country is of glacial formation, and what may at one time have been a sharply defined base of hill is generally overlaid with from 10 to 60 feet of slide matter, and as, moreover, the values in- volved were often enormous, the result was an endless succession of law suits on the interpreta- tion of this particular definition. The reason why the law suits were endless was that, owing to the 32 DESCRIPTIONS OF LAND impossibility of applying the theoretical provi- sions of the regulations to the actual conditions, each case had to be decided on its own merits and it was not possible to create precedents. In their efforts to render equitable decisions the Courts were obliged to listen to, and give consideration to, fictitious arguments as to where the base of the hill ought to be, rather than where it actually was.* Example. To take a more ordinary case: Some years ago the Northerly 40 acres of Lot 27 in the Edmonton Settlement was sold, described as follows: "All that portion of Lot 35 in the Edmonton Settle- ment in the Province of Alberta containing 40 acres more or less and lying to the North of a line drawn parallel to and distant three feet Southerly from the high bank of the North Sas- katchewan River." As the bank referred to is by no means sharply defined it is difficult to imagine a more perfect example of a bad description. After a time the owners of the Southerly portion subdivided their land and the surveyor employed defined the above boundary by a straight line * I distinctly remember hearing a well known member of the Dominion Geological Survey give evidence to the effect that, in his opinion, the "base of the hill" was half way up an adjacent mountain, basing his opinion on the probable position of said base of hill during the Pliocene Period. DESCRIPTIONS OF LAND 33 boundary of two courses. The plan of subdivision was refused registration until the description was interpreted by an order of the Court, after all interested persons had been heard in the matter. In this case, therefore, a description based on the position of a hill top was found to be insufficient to define the boundary of the land described for purposes of legal occupation. The Use of the Words " More or Less " in Descriptions of Land. Object of us- 26. The words "more or less," when applied ing wor s J. Q a distance given for one of the courses in a more or less." description of land, are intended to cover any variation in such distance from that given which may appear on re-measurement or re-calculation. Surveying Theoretically speaking surveying is an exact lively 1 Txact sc i ence > but m practice it is only relatively so. science. Elements of personal exactitude and skill in mak- ing surveys, variations of temperature, slight inherent errors in the manufacture of measuring tapes and differences caused by variation of ten- sion in using them, all have their effect in making field surveying only relatively accurate. In describing a course between two actual points on the ground there can, of course, be only one cor- rect distance, but the conveyancer is not justified in assuming that the distance which the surveyor measured between these two points, and put on his plan, is exactly correct. Nevertheless it is the actual distance between the two points that he desires to describe, and he is not concerned that the distance given in the conveyance does not agree with such actual distance within the limits 34 DESCRIPTIONS OF LAND 35 of precision of the survey. Hence the use of the words "more or less." For instance, let us take the following very simple example: "Commenc- ing at a post planted; Thence due North 1,000 Example, feet more or less to an iron post and mound." In the above example suppose the surveyor to have made an error in chain ing the distance and that this distance is in reality 1004 feet. What is it that the conveyancer desires to describe? Is it 1,000 feet of land, or the actual distance between the two posts? Why, the actual distance of course. But the description describes the course in two ways first as being the distance between the two posts and secondly as being 1,000 feet, (which latter is found by later and more accurate meas- urement to be wrong in that it is 1,004 feet in- stead of 1,000). Hence there is a confliction of evidence in the description as to the length of this course, which is overcome by the use of the words "more or less," but which, if the said words were omitted, would remain unaccountable. 27. The rule is, therefore, that "Every distance Rule when given in a description of land as representing the W0 5 s more or less actual distance between two points established should be ap- on the ground should be qualified by the words phed to dis " I tances - more or less . 28. In the two preceding sections we have Example, dealt with descriptions of surveyed parcels of land, but parcels of land which have not been sur- 36 DESCRIPTIONS OF LAND veyed are frequently described by metes and bounds, and referred to some more or less remote survey. The following may be taken as an ex- ample: "Commencing at a point on the South- erly boundary of the South East quarter of Sec- tion 20 in Township 46, Range 23 West of the Fourth Meridian distant 660 feet Westerly from the South East corner thereof; Thence Northerly and parallel to the Easterly boundary of said quarter section 660 feet; Thence Westerly and parallel to said Southerly boundary 660 feet; Thence Southerly and parallel to said Easterly boundary 660 feet; Thence Easterly and following said Southerly boundary 660 feet to the point of commencement." To qualify any of the distances given in the above example by the words "more or less" would be to render the description indeterminate and absurd. All the said distances, being purely theoretic and not subject to discrepancies of survey on the ground, are, and must be, as exact as the science of mathematics itself. Rule when 29. The rule is, therefore, that "Every distance oriess" must given in a description of land which is not sub- not be applied ject to the position of points established on the to distances. gr^^ must never be qua iifi ec i by the words "more or less." The Use of Astronomical Bearings in Descrip- tions of Land. 30. The use of bearings in describing bound- Object of use aries of land is employed to define the direction of f beann s m descriptions. such boundaries from their previously described starting point in relation to the meridian passing through such point, or such other meridian as they may be referred to. 31. The reason why it is usual to describe the Why bearings direction of lines of survey by bearings rather n efe 1 r ^ r ble to than by angular measurement with some con- measure- tiguous line of the survey is twofold. First, be- ments - cause to describe the direction of the lines of a survey in reference to the direction of the pre- ceding course must always be cumbersome and give more occasion for errors, both on the part of the person making the description and those who subsequently have to interpret it, than if the method of description by bearings were em- ployed. Secondly, because the method of descrip- tion by bearings possesses the great advantage that the description of each line is independently described in regard to a constant line of reference .having a positive and a negative direction: to wit, the local astronomical meridian, of which 37 38 DESCRIPTIONS OF LAND the North Pole may be regarded as the positive end and the zenith of the point described as the negative end. This tends to the utmost facility and lucidity of description because each line of which the bearing is given in a description repre- sents a definite and positive direction to the mind's eye of any person reading such description. Example. As an instance of this, and in order to show how difficult it is to make a clear description in which the method of angular measurement is used to define the direction of the various courses, the two following examples are given, in which the same parcel of land is described, (a) by employ- ing bearings to define the direction of its bound- aries, and (fr) by employing angular measure- ments for the same purpose. The preamble, which is the same for both descriptions, is as follows: "'All that portion of the North East quarter of Section 23 in Township 46, Range 23 West of the 4th Meridian in the Province of Alberta as the same is shown on a plan of survey of the said Township approved and confirmed by the Sur- veyor General of Canada at Ottawa on the 4th day of May, 1894, which plan is of record in the Department of the Interior and also in the Land Titles Office for the North Alberta Land Regis- tration District which may be more particularly known and described as follows : " (a). "Commencing at an iron post planted at a DESCRIPTIONS OF LAND 39 point distant 10.73 chains more or less on a bear- ing of North 73 25' West from a point on the Easterly boundary of said quarter section distant 14.02 chains Southerly from the North East corner thereof; Thence North 73 25' West a distance of 12.00 chains more or less to an iron post planted; Thence South 28 02' West a dis- tance of 14.00 chains more or less to an iron post planted; Thence due East 16.00 chains more or less to an iron post planted; Thence North 13 06' East 9.18 chains more or less to the point of commencement the whole containing three and eighty-hundredths acres be the same more or less and as shown red on the plan of survey attached hereto." (6). "Commencing at an iron post planted the position of which may be described as follows: Commencing at the North East corner of said quarter section: Thence Southerly and following the Easterly boundary of said quarter section a distance of 14.02 chains to a point; Thence in a straight line making a deflection angle to the right with the last described course of 106 35' a distance of 10.73 chains more or less to said iron post and point of commencement; Thence continu- ing in the same straight line as that "described between said point and iron post a distance of 12.00 chains more or less to an iron post planted; Thence in a straight line making a deflection 40 DESCRIPTIONS OF LAND angle to the left with the last described course of 78 38' a distance of 14.00 chains more or less to an iron post planted; Thence in a straight line making a deflection angle to the left with the last described course of 118 02' a distance of 16.00 chains more or less to an iron post planted; Thence in a straight line making a deflection angle to the left with the last described course of 76 54' a distance of 9.18 chains more or less to the point of commencement, the whole containing three and eighty-hundredths acres be the same more or less and as shown colored red on the plan of survey attached hereto." teariTs * 32 * For S eneral use in descriptions of land it is should be better to adopt quadrant bearings than bear- used. mgs f rom the North meridian from to 360 through East, South and West and back to North again. The reason for this is simply that quad- rant bearings are more commonly understood than the other, and descriptions should always be made as simple and universally intelligible as possible. 33. In theory, all bearings given in a description of land as representing the actual direction of a line between two points established on the ground should be qualified by the words "more or less," applied to the number of degrees and minutes given in the bearing, in order to allow for possible discrepancies of survey and for the same reasons DESCRIPTIONS OF LAND 41 given in section 24 having reference to the qualifi- cation of distances between similar points. For instance, "Commencing at a post planted; Thence North 41 33' more or less West 1,000 feet more or less to an iron post and mound." However, it is not usual to find this rule ob- Bearings do served, even hi the best practice, and the reason Absolutely* for this may be found in the fact that an astronom- govern direo- ical bearing, when used in a description of land, tlon of Unes - cannot be considered to absolutely govern the direction of the line described, but only to serve as a close indication of it. The principal reason for this is that the bearing of a line is usually given without specified reference to any particular meridian; it therefore fails to define the direction of the line, unless it is assumed as implied that the bearing is referred to the meridian of the point of commencement, which assumption would not, as a rule, be justified by the facts. For in- stance, suppose the bearing of a line to be given as North 45 00' East, and that subsequent observation from the point of commencement reveals the fact that the actual bearing of the said line is North 45 05' East. It is nevertheless a fact that the bearing of said line is North 45 00' East if referred to the meridian of a point about five miles East of the point of commence- ment. As a matter of fact, most of the bearings which occur in descriptions of land are derived 42 DESCRIPTIONS OF LAND Rule when bearings given in de- scriptions should be qualified. Showing how bearings may be referred to special meridian. from those shown on the departmental plans of the original surveys, rather than from observa- tion. Further, the bearings shown on such de- partmental plans, with the exception of those shown for the central meridian of townships, are not themselves true astronomical bearings, but are referred, in accordance with a convention of the Dominion Lands Surveys Act, to said central meridian. It follows that the bearings given in descriptions of land would hardly ever bear the test of verification by observation, although most of them would be shown to be approximately correct, and that the whole question of the use of bearings in descriptions is established on a less accurate basis of survey than that of the use of distances. 34. In a description of land in which the bear- ing given for any line, which is also defined as lying between two points established on the ground is referred to a specified meridian, the direction of the line is defined in two ways and such bearing should be qualified by the use of the words "more or less" applied to the number of degrees and minutes given in the bearing. 35. The bearings of lines of survey may be re- ferred to a specified meridian in descriptions of land in various ways, of which two are shown in the following examples, for both of which the following preamble will serve: DESCRIPTIONS OF LAND 43 "All that portion of the North East quarter of Example. Section 23 in Township 46, Range 23 West of the 4th Meridian in the Province of Alberta as the same is shown on a plan of survey of the said Township approved and confirmed by the Sur- veyor General of Canada at Ottawa on the 4th day of May, 1894, which plan is of record in the Department of the Interior and also hi the Land Titles Office for the North Alberta Land Registra- tion District which may be more particularly known and described as follows : (a). "Commencing at the South East corner of said quarter section; Thence North 45 00' more or less West assuming the Easterly boundary of said quarter section to have a bearing of due North a distance of 1,000 feet more or less to an iron post planted." NOTE. In view of the fact that this book is in- tended to be a text book for the guidance of prac- tical survey students, I wish to say that, although I feel that the rule prescribed in section 34 is a logical and unavoidable deduction in the theory of description, it is one that is very rarely observed in common practice, and I do not know of its -ever having been insisted upon by any Board of Ex- aminers or Master of Titles. (6). "Commencing at the South East corner of said quarter section; Thence North 45 00' more or less West which bearing and all other 44 DESCRIPTIONS OF LAND bearings given in the following description are derived from the bearing of the Easterly boundary of said quarter section as the same is shown on said plan a distance of 1,000 feet more or less to an iron post planted." When proper 36. It is very usual in common practice to find to describe j^ described ag the North half Qr the East land as "North half," of a parcel of land. When the boundaries ha fini f ^ ^ e P arce ^ are snown on tne Pl an as being due parcel. North, South, East and West, and the boundaries on the ground may reasonably be assumed to be very nearly so, there can be no objection to this practice, except that such a description is always subject to any discrepancy on the ground in the survey referred to, and, for that reason, a descrip- tion by metes and bounds is generally preferable. When im- j n a g rea t many cases, however, the boundaries describe land f suc ^ a Parcel are not due North, South, East as "North O r West and then the description fails to express half," etc. , , , . , ,, . , . . the true intent of the conveyance in ninety-nine cases out of a hundred, since there can be no doubt, as a matter of technical description, that Technical def- the North half of a parcel of land is all that part ^xT 10 ?ui! of such parcel, being one half of the total area North half of a parcel of thereof, which lies to the North of a due East and land. West line bisecting such parcel, whereas, in al- most all cases, the intention is to convey a part which shall be bounded on the South by a line drawn parallel to and equidistant from the North- DESCRIPTIONS OF LAND 45 erly and Southerly boundaries thereof. This is most frequently found in descriptions of parts of city or town lots, and there are thousands of titles, in many registry offices, which are based on faulty descriptions such as the above, and which remain as a monument to the incompetence of the conveyancer and the examining staff of the registry office alike. However the general effect is not so serious as might be supposed; the intention of most of such titles is usually so mani- fest that it is accepted without question by the parties affected, or, if a dispute arises, it can generally be enforced by an order of a competent Court. 37. The rule is "That no part of any original Rule when parcel of land should ever be described as the J^J*^ North, South, East or West part, as the case scribed as may be, unless such original parcel is quadri- "^ rth " lateral and the boundaries thereof are due North and South or East and West." 38. It is also quite common to find land de- Improper use scribed as "the Northerly one quarter" of a parcel ? of land. As the words "Northerly," "South- etc. erly," "Easterly," and "Westerly" can only properly be used to indicate a general direction, and have no precise meaning, such a description is hi the nature of a mere blunder. These words, used in the above sense, should never be used in any description of land. 46 DESCRIPTIONS OF LAND Magnetic bearings never to be used in de- scriptions of land. 39. Magnetic bearings, or bearings that are derived from the Magnetic North Pole, should never, under any circumstances, be used in de- scriptions of land. One reason for this is that such bearings are incapable of being determined with a sufficient degree of precision say within fifteen minutes. The chief reason, however, is that, for causes which have never been scientifically deter- mined, the Magnetic North Pole is not constant, but varies from day to day and from year to year. This variation has been recorded at Paris in France as extending from 11^ degrees East of true North in the year 1580 to 22J/ degrees West of true North in the year 1814 a total variation of 34 degrees.* It follows that bearings derived from the Magnetic North Pole vary accordingly, so that a line, the magnetic bearing of which was determined as being Magnetic North 10 degrees East in the year 1800, might quite possibly have a bearing of Magnetic North 5 degrees West in the year 1900. That is to say that, if it was at- tempted to re-establish the said line on the ground in the year 1900 from a known point of commence- ment and in reference to the magnetic bearing recorded for it in the year 1800, it would be 15 degrees in direction out of place. Therefore, since the principal object of a description of land is to establish a record from which it shall be * Gillespies' Treatise on Surveying. Article 278. DESCRIPTIONS OF LAND 47 possible to identify the described parcel on the ground, it will be seen that a description of land in which the direction of the various courses were referred to the Magnetic North Pole would fail to fulfil its purpose. Description of the Remainder of an Original Parcel of Land Definition of 40. "An original parcel of land" may be de- term Or js- fined, for the purposes of this article, as any sur- land." veyed parcel of land, considered as an undivided whole, for which a separate title exists. Definition of The remainder of an original parcel of land is mainder "~ ^^ P ar k wn i c ^ remains after one or more parts have been previously conveyed by description. A remainder 41. The description of a remainder depends parts^ pTe-^ nOt ^ n the ri g inal title to the whole f the viously con- parcel of which it is a part, but must also be made veyed. subject to the description contained in any exist- ing title for the part, or parts, previously conveyed, and the rule may be stated as follows: "The Rule for de- description of a remainder of any parcel of land remainder & mu st be expressed in terms of the remainder, in such a way as to be subject to the description contained in any existing title for a part, or parts, of said parcel which has been previously con- veyed." Object of 42. The object of the above rule is to prevent confliction of description and title in conveying a number of small parcels of land by description out of what has been defined in section 38 as an 48 DESCRIPTIONS OF LAND 49 original parcel of land. Such confliction may as- sume the form of overlapping of adjacent bound- aries, or the creation of small strips of land be- tween such boundaries. It is generally caused by the acceptance as absolutely correct of the various measurements shown on plans of survey of the property, without allowing for the discrepancies to which all surveys are subject. This discrepancy of survey, and of plans of Discrepancies survey, has already been referred to hi section 24. of 8T "7 ey must DC Its lack of absolute accuracy constitutes an in- taken into ac- separable feature of the practice of surveying, and count m wnt " ing descnp- is a fact which must be accepted as such by all tions. who have to describe land, and in the knowledge and constant consideration of which they must proceed. Its importance in relation to the de- scription of land can scarcely be over-estimated, or emphasized too strongly. For instance, a quarter section of land may be shown on a de- Example, partmental plan to be 40.00 chains square, and to contain 160 acres. We will suppose that the owner first sells "the South half" of said quarter section "containing 80 acres more or less" and subsequently proposes to sell the remainder. In this case the remainder can only properly be described as "the North half of said quarter section, containing 80 acres be the same more or less" since this is the only possible form of positive description that cannot conflict with 50 DESCRIPTIONS OF LAND the description of the South half previously conveyed. But quite frequently the purchaser demands a transfer for "the North 20.00 chains of said quarter section containing 80 acres be the same more or less." Such a transfer generally is, and always should be, returned to him by the registrar of the district registry office as being unregisterable. Why? Because, in 99 cases out of 100, the measurements of the quarter section will not be found to be on the ground exactly as they are shown on the departmental plan. First let us suppose that the North and South bound- aries are each exactly 40.00 chains in length, but that the meridian outlines are each 40.50 in length. Then the first parcel sold namely the South half was 40.00 by 40.25 chains and contained 81 acres, the additional acres being accounted for in the original description by the use of the words "more or less." If then the second transfer, describing the remainder as the North 20.00 chains, be accepted by the registrar, there is left a strip of 25 links by 40.00 chains, containing 1 acre of land, still left in the original title. But the registrar has no other source of knowledge in regard to the actual size of the quarter section than that supplied by the departmental plan. If, therefore, he chooses to accept the second transfer for registration, he can only do so on the assumption that the measurements shown on DESCRIPTIONS OF LAND 51 such plan are absolutely correct, in which case the two transfers, taken together, include all the land described in the original title, and the said title is cancelled in full accordingly. But we have seen that there is still one acre of land which is not included hi either of the transfers and should still appear in the name, and on the title, of the original owner. The result is that the title to the said 1 acre becomes latent for the time being and is very often lost altogether to the original owner, because the owners of the "South half" and "the North 20.00 chains" respectively may, in per- fectly good faith, occupy their respective proper- ties on either side of a common fence and thus, in time, acquire a title through undisturbed possession. Secondly, let us suppose that the North and South boundaries are still 40.00 chains in length, but that the meridian boundaries are each 39.50 chains in length, or 50 links short. Then the first parcel sold was 40.00 by 19.75 chains and contained 79 acres. The second transfer, describ- ing the remainder as the North 20.00 chains, in- cludes the North 25 links of the first described parcel, or 1 acre of land for which the transferrer has no title and, in respect to which the title subsequently issued to the transferee is spurious; As a further example let us take the case of a Example, city lot 50 by 100 feet of which the boundaries 52 DESCRIPTIONS OF LAND are due North and South or East and West, and of which a part has been already conveyed by description as "the West 15 feet of said lot." Since the actual size of the above lot is determined by the position of its corner posts, and it may be either 49 or 51 feet wide on the ground in fact, although the plan of subdivision shows it to be exactly 50 feet, it would be incorrect to describe the remainder as "the East 35 feet of said lot" for the same reasons given hi the preceding ex- ample. There are two ways of describing the remainder correctly: (a). To describe it as the whole of said lot saving and excepting thereout and therefrom the West 15 feet thereof. (6). To describe it by metes and bounds in such a way as to exclude the West 15 feet; for in- stance "Commencing at a point on the South bound- ary of said lot distant 15 feet Easterly from the South West corner thereof; Thence North and parallel to the West boundary of said lot 100 feet more or less to the North boundary thereof; Thence East 35 feet more or less to the North East corner of said lot; Thence South along the East boundary of said lot 100 feet more or less to the South East corner thereof; Thence West 35 feet more or less to the point of commence- ment," or, DESCRIPTIONS OF LAND 53 "Commencing at the North East corner of said lot; Thence West along the North boundary of said lot 35 feet more or less to a point distant 15 feet East of the North West corner thereof; Thence South and parallel to the West boundary of said lot 100 feet more or less to the South bound- ary thereof; Thence East, etc., etc." Description by Exception of Previously Con- veyed Parcels. Definition of 43. A description by exception is one of an a description or i gma i parce i o f i anc } out o f w hi c h a part, or by exception. . parts, have been conveyed by description, ex- pressed in terms of the exceptions instead of in terms of the remainder. Description 44. From the above definition it follows that a b3 n e ati eP e 10n description by exception is a negative description description, as opposed to a positive or direct description of the land to be conveyed, and on this account is not so good a form of description as a description by remainder. At the same time the use of descriptions by exception is unavoidable in some cases and allowable in many others. How de- 45. The creation of descriptions by exception ecnptions by occurs through the conveyance of small parcels exception occur. which may make the remainder of the original parcel difficult to describe directly, or, at least, makes it easier to describe by exception. For instance, suppose the case of a quarter section of land from which a parcel has been conveyed by description that lies entirely within the boundaries of such quarter section, thQ parcel being con- nected with one of said boundaries by description 54 DESCRIPTIONS OF LAND 55 of a survey tie. This is a case in which it is im- possible to describe the remainder otherwise than in terms of the excepted parcel. 46. It will often be found that a parcel of land has been conveyed out of an original title by a description which is so loosely worded and faulty as to be ambiguous. In all such cases it is most desirable that the remainder should be described by exception, since any ambiguity hi the descrip- tion of the part conveyed must necessarily be communicated to the remainder thus created. It is true that to describe the remainder by Faults in ti- exception perpetuates any ambiguity which may ^^^ ** exist, but it must be remembered that the duty by precise of the conveyancer is to describe that which ac- description of . -IT remainder. tually remains, and if such remainder includes any ambiguity of title such ambiguity must be accounted for in the description. In some cases a conveyancer will deliberately attempt, by precise description of the remainder, to rectify the ambiguity of title caused by a faulty description contained in a prior conveyance. Such an attempt is illogical and futile, because, if the ambiguity is of real effect it cannot be affected by the registration of an instrument subsequent to that of the one which caused it. 47. The title to an original parcel of land, out of which a great many small parcels have been conveyed by description frequently becomes ob- 56 DESCRIPTIONS OF LAND Titles by ex- ception of previously conveyed parcels often become ob- Example. scure, and is only intelligible after many hours of careful work and plotting each of said small par- cels, as they are described, on a plan of the whole. This condition becomes greatly aggravated when the practice of describing exceptions from a title by reference to the number of the Certificate of Title issued for such exceptions is permitted by the Real Property Act of the province in which such land occurs. Take as an example the following description : "The whole of section 4 in Township 14, Range 12 West of the 4th Meridian as the same is shown on a plan of survey of the said township approved and confirmed by the Surveyor General of Canada at Ottawa on the 17th day of January, 1907, which plan is of record in the Department of the Interior at Ottawa and in the Land Titles Office for the South Alberta Land Registration District saving and excepting thereout and therefrom: "Firstly: All those portions of said section comprised within the limits of a plan of subdivi- sion registered in said Land Titles Office under number 2066 in Day Book 'M2'; " Secondly: A parcel of land containing One (1) and 77-100 acres be the same more or less being part of a public roadway as shown on a plan of survey of said roadway registered in said Land Titles Office under Road Plan number 279 and as described in Certificate of Title 14 Y.6. DESCRIPTIONS OF LAND 57 "Thirdly: All that portion containing 17 and 36-100 acres be the same more or less taken for the Right of Way of the Canadian Pacific Railway as shown on a plan of said railway filed hi said Land Titles Office under Railway Plan Number 738 and as described in Certificate of Title 117 K.7. " Fourthly: All that portion of said section described in Certificate of Title 202 N.ll," and so on until, hi some cases, there are as many as twenty exceptions to which the original parcel referred to in the Certificate of Title is sub- ject. Such a description as the one contained in the above Certificate of Title is merely negative in effect. Instead of being a sufficient, complete and self contained description of the land included in the title, it depends for its validity on evidence contained in a number of instruments outside of itself. It defines the position and limits of the original parcel but, regarded as an individual document, conveys no assurance that any of such parcel is left after all the various exceptions have been satisfied. The existence of every title of this kind is a source of danger and embarrassment to registrar and owner alike, because it is impossible to know just what it contains without doing a great deal of careful work which, however carefully done, 58 DESCRIPTIONS OF LAND involves a greater risk of serious error than or- dinarily good conveyancing should do. How to The only possible remedy is simple but expen- scure titles s * ve an< ^ cons i s ^ s m taking the following three steps : (a). To have a survey made of the entire original parcel and each of the parcels conveyed thereout by description. (6). To register a plan of such survey, showing clearly the boundaries of each and every excepted parcel and showing the portions still remaining in the title as numbered or lettered blocks. (c). To make application to the registrar to cancel the existing title by exception and to issue instead thereof a new title for such numbered or lettered blocks, thus converting a negative title by exception into a positive title by direct de- scription. Descriptions of Railway Right of Way. 48. Descriptions of railway right of way should Descriptions almost invariably be drawn so as to depend di- . f ""^y right of way rectly on a sufficient plan of survey either at- mua t depend tached to the instrument containing the descrip- on " t f lffi - tion or of previous record. That is to say that no attempt should be made to describe the land by metes and bounds other than by reference to the centre line of the railway as shown on such plan. The reason for the above statement may be found in the fact that the majority of right of way descriptions are complicated, as denned in section 13, in that the boundaries described con- sist of a succession of tangents and curves. More- over these tangents and curves are actually sur- veyed and measured along the centre line of the railway, whereas the boundaries themselves, on which the corresponding tangents are of different lengths and the corresponding curves have differ- ent radii and lengths, are not surveyed at all, but calculated hi reference to the survey of said centre line. It follows therefore that the measurements given in a description by metes and bounds of a right of way are calculated instead of having been measured on the ground, and are more subject to error than if taken from actual survey data. 59 60 DESCRIPTIONS OF LAND Another objection to descriptions by metes and bounds of railway right of way is that it is not possible to realize the position of the land de- scribed without a plan, and, if the description be also made subject to a sufficient plan of survey there is no object in describing the land by metes and bounds at all, for the plan is then an integral part of the description. In fact any description of land in which the facts of survey on which it is based are presented in a dual manner, as in the case of a description by metes and bounds which is also made subject to a plan of survey, contains in itself this element of weakness that any discrepancy between the measurements shown on the plan and those contained in the written de- scription must often remain unaccountable. We have seen, for instance, that it is neither necessary nor desirable in describing a quarter section ac- cording to the departmental plan of survey of the township in which it occurs to refer to the measure- ments of its boundaries; or, in describing a town lot according to the plan of survey of the sub- division containing it to refer to the measure- ments of such lot. 49. Since descriptions of right of way must depend directly on the registered plan of survey of such right of way, it is essential that such plan shall be a "sufficient" plan of survey, as defined in section 5. Given such a plan it is usual to DESCRIPTIONS OF LAND 61 describe right of way as shown in the following example: "All that part of the South East Example, quarter of Section Twenty (20) in Township Forty- six (46) Range Twenty-three (23) West of the Fourth (4th) Meridian in the Province of Alberta as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May, 1894, which plan is of record in the Depart- ment of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registra- tion District at Edmonton in said Province which is taken for the Right of Way of the Canadian Pacific Railway and lies between two lines drawn parallel to and perpendicularly distant fifty (50) feet from and on opposite sides of the centre line of said railway as the same is shown on a plan of survey of said railway crossing said land and lands adjoining the same registered in said Land Titles Office under number 2037 in Day Book 'P' and as said railway is now constructed on the ground, the land herein described containing Six (6) and 66-100 acres more or less and as shown colored red on said plan of railway." There are several points hi the above descrip- tion which are worth considering (a). Since railway right of way constitutes a special form of land titles, and the land conveyed is, as a rule, devoted to the one purpose, it may be 62 DESCRIPTIONS OF LAND good practical conveyancing to describe right of way as being "taken for the Right of Way of the Canadian Pacific Railway" with a view to giving it general distinctive description. In theory however, the practice is incorrect. There is absolutely no difference between the title which a railway corporation acquires to its right of way and any other title to land, and to describe it in reference to its present or future use is as if a city lot were described as "being acquired for the purpose of erecting a livery barn thereon," which part of the description would be superfluous at any time and would become more apparently so if the land were used for some entirely different purpose. (6). The words "crossing said land and lands adjoining the same" are necessary because, since the right of way is described in reference to the perpendicular distance of its boundaries from the centre line, the projection of said centre line be- yond the actual boundaries of the parcel of land containing the right of way being described must be allowed for. For instance, suppose a point of curve of the centre line to fall exactly on a bound- ary between two parcels of land; there will then be a part of the boundary of the right of way in each of said parcels which will be neither parallel to nor perpendicularly distant fifty feet from the centre line as it is shown within the limits of said parcel. DESCRIPTIONS OF LAND 63 (c). The words "and as such railway is now constructed on the grounds," or words to the same effect, are inserted by a good many corporation lawyers in the forms of transfer prepared by them for the use of railway companies, with a view to safeguarding the company from the effects of trespass committed through misdescription of its right of way. Owing to the insufficient character of many railway plans on which descriptions of right of way have been based, it is no infrequent occurrence for subsequent and more careful sur- vey to reveal the fact that the land occupied and fenced in by the company does not agree with that described hi its title;* i. e., that the company is trespassing, and it is this trespass which the use of the above words is intended to purge. It is possible that the use of the above words may have something of the intended effect as against the owner of the land who executed the original transfer he being still the owner of the remainder in that such owner might conceiv- ably be ordered by a court to fulfil the evident intention of the faulty transfer by executing a new one in lieu of it, but it is impossible to believe that the insertion of said words in a transfer, wherein the land also purports to be precisely described in reference to the measurements shown on a registered plan, can have any effect on the * See section 18. 64 DESCRIPTIONS OF LAND title that issues from said transfer. If the latter were the case, it would mean one of two things: either that the land conveyed was that occupied by the company at the date of the transfer, whether such occupation were determined by the theoretical width on either side of the centre of the actual track or in regard to the position of the fences matters, in either case, which it would be impossible to establish the truth in regard to after a few years or else it might be construed to mean that the land conveyed was that occupied by the company at any present time, or in other words that every time a portion of the track were re-constructed, a curve flattened or new fences erected the land conveyed by the title would vary accordingly, and would therefore be indeter- minate. In the absence of any judicial decisions on the point, either of the above alternatives appears to be preposterous. It may therefore be accepted as an unestab- lished rule that the words "and as such railway is now constructed on the ground" should not be inserted in descriptions of right of way, and that, if they are so inserted in transfers, registrars should at least see that they are not included in the description of right of way contained in cer- tificates of title issuing from said transfers. (d). One difficulty in regard to the above form DESCRIPTIONS OF LAND 65 of description is that it is practically impossible to include in such a description all the extra land which a railway company requires beyond its mere right of way for station grounds, wyes, sidings, extra wide cuts or fills, borrow pits, water tanks, snow fences or sheds or other purposes con- nected with the railway. The consequence is that separate descriptions have to be made for all these as occasion requires. With the exception of sta- tion grounds, all the extra land so required is generally of so small a monetary value that the company can hardly be expected to have a sepa- rate survey made of each which survey would probably cost three or four tunes as much as the company is required to pay for the land itself and the result is that these parcels are also de- scribed in reference to the position of the centre line. Such descriptions are often very involved but must be accepted as one of the weaknesses of the above form of description. 50. While the method of describing right of Method of way referred to in the preceding section is almost ^"of^a universally employed at the present tune, there as lettered is another method sometimes used which is dis- blocks shown on plan. tinctly better but has the one disadvantage that it requires a more complete survey of the land described. This method consists in showing the land required for all railway purposes as lettered blocks on the registered plan of survey of the right 66 DESCRIPTIONS OF LAND of way, and describing them in the same way that city lots are described; i. e., without direct refer- ence to any of the measurements shown on the plan but simply by reference to the lettered block considered as a separate parcel of land, and the registration marks of the plan. For instance: Example. "All that part of the South East quarter of section Twenty (20) in Township Forty-six (46) Range Twenty-three (23) West of the Fourth (4th) Meridian in the Province of Alberta as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May, 1894, which plan is of record hi the Department of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Province Being C. P. R. Block No. 1 containing Six and sixty-six hundredths (6 66-100) acres be the same more or less and as said Block is shown colored red on a plan of survey of the Canadian Pacific Railway right of way registered hi said Land Titles Office under number 2037 in Day Book ' P. ' One advantage in the above form is that it could be made to include all extra right of way shown on the original plan, either as part of "C. P. R. Block No. 1" or as "C. P. R. Blocks Nos. 2, 3, 4, etc." DESCRIPTIONS OF LAND 67 Another advantage is that it is somewhat shorter and more simple although it depends no more directly on the plan than the form in the preceding section. Exception of Minerals in Descriptions of Land. Land includes 51. Since the theory of title to land is that such derT'n * the " ^ e i nc ^ uc ^ es no ^ on ^y the surface but all that same. underlies it, it follows that all mineral deposits, underlying land would be included in a perfect allodial title to such land. As a matter of fact there are comparatively few such titles in exist- ence. There are rare cases where grants for land have been issued by the Crown without any reser- vation whatever, as, for instance, some of the earlier grants issued by the Government of the Crown Colony of British Columbia, which con- veyed all minerals precious or otherwise. The Dominion Lands Act however, always excluded gold and silver from the rights conveyed by Crown Grant to land, and has also excluded coal and petroleum for some years past. Land titles Thus we see that there are certain reservations reservations an( * exceptions to most land titles created by the mentioned in conditions of the original grant from the Crown, rown grants. jj owever? there are very many existing titles which include the base minerals, and it is frequently required to except coal for instance from the opera- tion of a conveyance transferring the land which overlays it. This is effected by adding to the end 68 DESCRIPTIONS OF LAND 69 of the description contained in such conveyance the words " Saving and excepting thereout and therefrom all coal which may be in or under said land and the right to mine the same" or other words to that effect. It will frequently happen that a person trans- Restrictive ferring land but retaining the coal rights will J^J want to have included hi the description articles to be avoided, of agreement as to his right of entry upon the land for the purpose of mining said coal. Such articles would constitute a restrictive covenant in the title and, therefore, should not be inserted in the description of the land to be transferred, but should be embodied hi a separate form of agree- ment between the parties which could be regis- tered against the title. NOTE. If the fee simple of an entire parcel of land is transferred "saving and excepting thereout and therefrom all coal which may be in or under said land, etc." the apparent effect is to create a fee simple for the remainder in this case the coal. This is of course impossible, but a separate title to the coal is certainly created in such a case. I am writing of the practice of conveyance by description as I know it to be and the case stated is quite common practice but my own opinion would be that it is improper to create a title for coal apart from the land which overlays it, and that all transactions in regard to coal should be in the form of lease and should follow the title to the land in the same way that an unredeemed 70 DESCRIPTIONS OF LAND mortgage does. For instance it is my opinion that a vendor desiring to retain coal rights should transfer the coal with the land and receive back from the vendee a reciprocal lease of the coal rights to be registered against said vendee's title when issued. Interpretation of Faulty Descriptions of Land. 52. A description of land should be drawn in such a way that it is capable of only one possible interpretation. Unfortunately there are many descriptions of Existence of land which contain inherent errors in construe- **"? de ~ scnptions tion and in the mathematical data given in regard which are to the various boundaries of the land described, nevertneless which nevertheless form the base of title to such land. It therefore becomes necessary to consider the question of how to interpret a faulty descrip- tion in laying out, or otherwise dealing with, the land described or lands adjacent thereto. If the land conveyed by a faulty description is of suffi- Interpreta- cient value, and the parties affected cannot agree * lon ? f * ault y descriptions upon an interpretation of such description that is by a judge, mutually satisfactory, it is often necessary to ap- ply to the courts for an interpretation thereof. A Judge has power to take evidence into con- sideration and issue an order accordingly. In the case of registrars, conveyancers, surveyors and others who have occasion to deal with faulty descriptions, and who do not have the power of discretion vested in a Judge, it may be laid down as a general rule that "When dealing with a 71 72 DESCRIPTIONS OF LAND Descriptions faulty description it is only permissible to take to be followed ' m fo cons id e ration the mere technical facts pre- m order of . ... construction, sented in the description as written in the order in which they are written." Example. 53. For instance, suppose a part of a quarter section to be described as follows: " Commenc- ing at the North East corner of said quarter sec- tion; Thence South along the East boundary of said quarter section a distance of 2,000 feet to a point (A) Thence North 60 00' West a distance of 3,049 feet more or less to a point on the West boundary of said quarter section; (B) Thence North along said West boundary a distance of 376 feet more or less to the North West corner of said quarter section; (C) Thence East along the North boundary of said quarter section a distance of 2,640 feet more or less to the point of commence- ment." On plotting the above description it will be found that when the position of the point (B) has been determined in accordance with the descrip- tion of the course A-B, the distance from (B) to (C) is in reality 476 feet instead of 376 feet as described. The description is therefore faulty in that it will not close because the correlation of the various courses as described is mathematically impossible. Either the bearing of A-B is correct and the distance B-C as given in the description is wrong, or the distance B-C as given in the DESCRIPTIONS OF LAND 73 description is correct and the bearing of A-B must be disregarded. Neglecting the possibility that both distance and bearing are incorrect, and following the general rule above stated, there can be no doubt that the bearing given for A-B must be accepted as correct, since the first two courses described are correct in themselves and are not subject to that which follows. Of course there is a certain amount of internal Departure evidence contained in such a description which rule some- may be strong enough to justify a departure from times justi- the general rule: For instance, supposing the dis- fie f by . mter ~ 7 r nal evidence tance given for A-B to have been 3,099.4 feet of description, more or less, which equals cosecant 58 25' X Example. 2,640 and which would agree with the distance of 376 feet given for B-C, and that the area of the parcel is given as being 72 acres which would also agree with said distance, the weight of evi- dence would tend to disprove the correctness of the bearing given for A-B and to show that the distance of 376 feet given for B-C was correct. As a matter of fact, in any case where the dis- crepancy is so marked as in the above example, it would be very unsafe to assume either inter- pretation of the description; the only proper course would be to remedy the description itself either by re-conveyance on the part of the regis- tered owners of the land, or by obtaining an order of the court to that effect. 74 DESCRIPTIONS OF LAND It may be noted that if the course A-B had been described so as to read "Thence North 60 00' West a distance of 3,049 feet more or less to a point on the West boundary of said quarter section distant 376 feet from the North West corner thereof," there would be no dis- crepancy, because the bearing, though incorrect, would be subject to the position of two clearly denned points and would be manifestly wrong. Preamble of a Description of Land. 54. For use in all cases where it may seem ad- visable, the following is a good form of preamble which is sometimes used hi descriptions of land: "All and singular that certain parcel or tract of Formofpre- , . i i_ .1 amble some- land and premises situate lying and being in the timeg uged Province of Alberta in the Dominion of Canada comprising part of the South East quarter of Section Twenty (20) hi Township Fourteen (14) Range Twelve (12) West of the Fourth (4th) Meridian as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the 14th day of May, 1894, and which may be more particularly described as follows, that is to say: " In ordinary practice however, the use of such Above form a form is cumbersome and unnecessary. For instance many Real Property Acts define the cases, meaning of the word "land" in the interpretation clauses of the Act to mean "lands, messuages, tenement, and hereditaments, corporeal and in- corporeal, of every nature and description, and every estate or interest therein, etc., etc." It follows, therefore, that when conveying land held under the provisions of such an act it is quite 75 76 DESCRIPTIONS OF LAND unnecessary to include the words "and prem- ises." General form As a general rule it is quite sufficient to com- De> mence a description "All that portion of the South East quarter, etc." Examples of Descriptions of Land with Explana- tory Notes. 55. The following example is a description of a city lot together with an easement over the East 14 inches of the lot immediately adjoining the same on the West side thereof, which easement is created by the previous registration of a party wall agreement and is appurtenant to the lot described. The boundaries of both lots are shown to be due North and South or East and West on the registered plan of subdivision. "The whole of Lot numbered Thirteen (13) in Block numbered Seventy-one (71) in the City of Calgary in the Province of Alberta in the Dominion of Canada as the same is shown on a plan of subdivision of a part of said City regis- tered in the Land Titles Office for the South Alberta Land Registration District in said City under number 2133 in Day Book 'S' together with an easement over the East Fourteen (14) inches of lot numbered Twelve (12) in said Block for the purposes specifically mentioned hi an DESCRIPTIONS OF LAND 77 instrument registered in said Land Titles Office under number 249 in Day Book 'RV Notes. (a). The effect of the registration of instrument 249 R was to register a charge or encumbrance against the Certificate of Title for Lot 12 and a corresponding entry on the Certificate of Title for Lot 13 making the easement appurtenant thereto. (6). In some cases conveyancers define the pur- poses and conditions of the easement in the body of the description, thus making the description more complete and self contained. I prefer the method of reference to the registered instrument creating the easement as eliminating all possibility of discrepancy between the terms of the ease- ment as expressed in the description and as actually provided in the registered instrument. Also the terms and conditions mentioned in the registered instrument are frequently irrelevant to a description of land, and their inclusion in a description intended to be inserted hi a Certificate of Title would tend to obscure the real facts of such title 56. The following example illustrates the parti- tion by description of two city lots, and is based on the facts of an actual case: 78 DESCRIPTIONS OF LAND Lots 1 and 2 as shown in the figure were origi- nally owned by A. A first sold to B the part de- scribed as follows: "All those portions of Lots numbered One (1) and Two (2) in Block numbered Five (5) in the City of Edmonton in the Province of Alberta in the Dominion of Canada as the same are shown on a plan of subdivision of part of said city regis- tered in the Land Titles Office for the North Alberta Land Registration District in said City DESCRIPTIONS OF LAND 79 under number 14 in Day Book 'X' which may be more particularly described as follows: "Commencing at the North West corner of said Lot 1 : Thence South along the West boundary of said lot Seventy (70) feet to a point; Thence Easterly and parallel to the Northerly boundaries of said lots 1 and 2 to a point on the Easterly boundary of said lot 2; Thence Northerly along said Easterly boundary to the North East corner of said lot 2; Thence Westerly along the Northerly boundary of said lots 2 and 1 ninety-five (95) feet more or less to the point of commence- ment." A then sold to C "All these portions of Lots numbered One (1) and Two (2) etc., . . . which may be described as the most Southerly Eighty (80) feet throughout of said lots." B erected a six story modern block completely covering the most Northerly 70 feet of said lots measured perpendicularly from the Northerly boundary thereof. A discovered that the part sold by him to B as described above, only contained 69.6 feet meas- ured perpendicularly from the Northerly bound- ary of said lots, and demanded payment for the remaining four-tenths of a foot. On a careful resurvey of the lots being made it was discovered that they were two-tenths of a foot longer, measured along the First Street 80 DESCRIPTIONS OF LAND frontage, than the measurement shown on the registered plan, and B was obliged, on advice of his counsel, to pay to A a sum of $1,000, for the six-tenths of a foot still remaining hi A's title. Notes. (a). The description of the part sold by A to B was a perfectly good description in itself, but was misunderstood by B and his agents. On the other hand it did not carry out the evident intention of the parties to divide the land into two parts having perpendicular depths of 70 and 80 feet respectively. (6). It is important to note that all the parties involved were bound by the actual terms of the description contained in the transfer from A to B, in spite of A's evident intention to dispose of the whole of his property by the two transfers to B and C respectively, and in spite of the fact that the registrar had erroneously cancelled his title in full on the registration of the second transfer to C some years previously, and that A's title had therefore been latent for such time. (c). The description of the land sold by A to C was loosely and incorrectly drawn, but its intent was admitted by both A and C to mean "the most Southerly 80 feet of the lots measured per- pendicularly from the Southerly boundary DESCRIPTIONS OF LAND 81 thereof. For a proper method of description of this part see Sections 41 and 42 (a) and (6). 57. In connection with the description of lots as shown on plans of subdivision of lands lying outside of, but comparatively near to, the limits of an incorporated city or town, it is very common practice to describe the whole subdivision by some high sounding name as a "suburb of " or "an addi- tion to" such city or town. For instance: "Lot numbered One (1) in Block numbered Forty-six (46) in Maryborough Heights being an addition to the townsite of Orwell as the same is shown, etc." It is almost unnecessary to say that this prac- tice emanates from real estate offices rather than from the law courts. A subdivision within the limits of a city or town is a part of said city or town. A subdivision outside such limits is not a part of such city or town. It is merely a subdivision of a parcel of land which may never be incor- porated within the limits of an adjacent town and can only be properly identified by the legal de- scription of the land itself. Moreover, it is not practically possible to establish a limit of distance beyond city limits within which a subdivision may be termed "an addition" or "a suburb", and when such a subdivision happens to be five miles beyond city limits, either of the above terms is 82 DESCRIPTIONS OF LAND obviously misleading. Therefore the description of all lots situated in subdivisions outside the limits of an incorporated city or town should be described as follows: "Lot numbered One (1) in Block numbered Thirteen (13) as the same is shown on a plan of subdivision of part of the South East quarter of Section Fourteen (14) in Township Forty-one (41) Range Thirteen (13) West of the Fourth (4th) Meridian in the Province of Alberta in the do- minion of Canada which plan is registered in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Prov- ince under number 7144 in Day Book ' K. " 58. The following example is a description of part of a quarter section bounded on the West and South by the boundaries of the quarter section, on the North by the High Water Mark of the North Saskatchewan River and on the East by the Westerly boundary of a registered townsite, which however does not extend to said High Water Mark: "All that part of the North West quarter of Section Twenty-three (23) in Township Forty- two (42) Range Fourteen (14) West of the Fourth (4th) Meridian in the Province of Alberta in the Dominion of Canada as the same is shown on a plan of survey of said township approved and con- firmed by the Surveyor General of Canada at DESCRIPTIONS OF LAND 83 Ottawa on the 18th day of July, 1907, which plan is of record in the Department of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Province and which may be more particularly described as follows: Com- mencing at the South West corner of said quarter section; Thence Easterly along the Southerly boundary of said quarter section Eighteen hun- dred and sixty-four (1864) feet more or less to the intersection of said boundary with the Westerly boundary of Elm Street as the same is shown on a plan of subdivision registered in said Land Titles Office under number 4173 hi Day Book 'AM'; Thence North along said West boundary of Elm Street, and said West boundary produced Northerly, Fourteen hundred and twenty (1420) feet more or less to the High Water Mark of the North Saskatchewan River; Thence Westerly and following said High Water Mark in an upstream direction to its intersection with the West bound- ary of said quarter section; Thence South along said West boundary One thousand and ninety- four (1094) feet more or less to the South West corner of said quarter section and point of com- mencement the part herein described containing approximately Fifty-three (53) acres be the same more or less." 84 DESCRIPTIONS OF LAND Notes. (a). All the distances in this description are "more or less" in accordance with the rule laid down in section 27. (6). The acreage given is qualified by the use of the word "approximately" in accordance with the rule laid down in section 22. 59. The following example is a description of part of a quarter section bounded on the South by the right of way of the Grand Trunk Pacific Railway: "All that part of the North East quarter of Section Twenty-one (21) in Township Forty- nine (49) Range Seventeen (17) West of the Fourth (4th) Meridian in the Province of Alberta in the Dominion of Canada as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the llth day of October, 1903, which plan is of record in the Department of the In- terior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Province which lies to the North of the Northerly limit of the right of way of the Grand Trunk Pacific Railway as the same is shown on a plan of survey of said right of way registered in said Land Titles Office under num- ber 14444 in Day Book 'L V DESCRIPTIONS OF LAND 85 Notes. (a). No acreage is mentioned in the description because the description is not made subject to an explanatory plan of survey, nor is the acreage shown on the railway plan referred to, and, with- out the assurance afforded by a surveyors' certif- icate, a registrar would be justified in refusing to accept the conveyance if it showed a specified acreage, since he could have no means of knowing whether it was correct or not. (See Section 13.) (&). A very common mistake is to describe such a parcel as the above as "lying to the North of the Grand Trunk Pacific Railway" without es- tablishing the position of the railway by reference to a particular plan. Since there are probably at least two plans of such railway of record in the Land Titles Office, which do not as a rule agree exactly with one another, and since it is quite possible that the land actually occupied and fenced hi by the railway company does not cor- respond with that shown on either plan, it follows that such a description is inadmissible in that it lacks clearness and definition. 60. It is frequently desired to describe the limit of a right of way as a boundary of a parcel of land before any sufficient plan of such right of way has been registered. In the Provinces of Manitoba, Saskatchewan and Alberta at least a 86 DESCRIPTIONS OF LAND registrar must refuse to recognize the limit of a right of way as established until a sufficient plan of survey has been filed or registered, so that any absolute transfer of land based on the position of right of way considered as such would be unregisterable until such time. However, such descriptions are frequently required to be made for insertion in interim agreements of sale, etc., and the following example is a description by metes and bounds of the parcel otherwise described in the preceding section: "All that part of the North East quarter of Section Twenty-one (21) in Township Forty- nine (49) Range Seventeen (17) West of the Fourth (4th) Meridian in the Province of Alberta in the Dominion of Canada as the same is shown on a plan of survey of said township approved and confirmed by the Surveyor General of Canada at Ottawa on the llth day of October, 1903, which plan is of record in the Department of the Interior at Ottawa and in the Land Titles Office for the North Alberta Land Registration District at Edmonton in said Province and which may be more particularly described as follows: "Commencing at the North East corner of said quarter section; Thence on an assumed bearing of due South along the Easterly boundary of said quarter section a distance of Eighteen hundred and thirty decimal point seven (1830.7) DESCRIPTIONS OF LAND 87 feet to a point; Thence North 65 00' West a distance of Fifteen hundred and twenty-nine (1529) feet to a point; Thence on a curve to the right having a constant radius of Fifteen hundred and nineteen (1519) feet from a centre lying hi a direction of North 25 00' East from the last mentioned point a distance of Three hundred and ninety-seven decimal point six seven (397.67) feet; Thence North 50 00' West a distance of Twelve hundred (1200) feet more or less to inter- sect the West boundary of said quarter section; Thence North along said West boundary Two hundred feet more or less to the North West corner of said quarter section; Thence due East along the North boundary of said quarter section Twenty-six hundred and forty (2640) feet more or less to the North East corner of said quarter section and point of commencement." 61. There is an example of an ordinary descrip- tion of railway right of way given in section 49. As these descriptions only vary as to the land of which the right of way forms a part, the width of the right of way and the registration data of the railway plan on which they are based, no further example need be given here. 62. The following example is a description of additional right of way required by the railway company after it has acquired title to the right of way shown on its registered plan of survey of 88 DESCRIPTIONS OF LAND the same; the preamble may be assumed to be the same as that given for the description con- tained in section 60: " Commencing at the point of intersection of the Northerly limit of the right of way of the Grand Trunk Pacific Railway as said right of way is shown on a plan of survey thereof registered in said Land Titles Office under number 1167 in Day Book 'P' with a line drawn at right angles to the centre line of said railway as shown on said plan from a point distant Thir- teen hundred and seven (1307) feet Westerly from the intersection of said centre line with the Easterly boundary of said quarter section; Thence Westerly and following said Northerly limit a distance of Six hundred and sixty (660) feet to a point; Thence North Easterly on a line drawn at right angles to the tangent to the curve at that point a distance of Sixty-six (66) feet to a point; Thence Easterly and parallel throughout to said Northerly limit a distance of Six hundred and sixty-one (661) feet more or less to a point distant Sixty-six (66) feet from the point of commence- ment in a line drawn at right angles to the said Northerly limit at that point; Thence in a straight line Sixty-six feet to said point of commencement the part herein described containing One (1) acre be the same more or less and as shown colored red on an attached copy of part of said plan." (a). It will be noted that the above description DESCRIPTIONS OF LAND 89 is not self contained but depends in a secondary manner on the plan of the survey of adjacent land. This constitutes a defect which is un- avoidable unless a separate survey of the parcel is made, and a plan thereof attached to the de- scription and made a part of it. As the value of the 1 acre contained is probably only $15.00 or $20.00, whereas the cost to the company of having a special survey made at an out of the way part of their line might easily amount to $100.00, such descriptions of additional right of way are very commonly used. *HE following pages contain advertisements of a few of the Macmillan books on kindred subjects. IMPORTANT BOOKS ON SURVEYING Surveying and Surveying Instruments BY G. A. T. MIDDLETON Associate of the Royal Institute of British Architects, and Member of the Society of Architects. Third edition, revised and enlarged. London, 1912. Cloth, 170 pp., III., I2mo, $1.75 net A concise work upon Land Surveying in which modem instruments and modern methods of working are described. Field and Colliery Surveying A Primer Designed for the Use of Students of Surveying and Colliery Manager Aspirants. BY T. A. O'DONAHUE, M.I.M.E., F.G.S. London, 1896. Latest reprint with additions, 1911. Cloth, 263 pp., III., I2mo, $ .80 net The book is elementary in character and at the same time supplies a more or less complete treatise on modern practice in Colliery Surveying. Land Surveying and Leveling BY ARTHUR THOMAS WALMISLEY London, 1900. Cloth, 244 pp., i2nto, $1.90 net Within the compass of one volume the author gives the student as much as it is possible to teach him concerning the practical working of instruments and field work from a book alone. It will be found a practical book to put into the hands of those taking Civil Engineering courses at an early date in their training. PUBLISHED BY THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New York BOOKS ON CIVIL ENGINEERING Roads : Their Construction and Maintenance With Special Reference to Road Materials. BY ALLAN GREENWELL, A.M.I.C.E., F.G.S., AND J. V. ELSDEN, B.Sc. (Lond.), F.G.S. London, 1901. Cloth, 275 pp., i2tno, $1.60 net A work which, while essentially of an elementary nature, nevertheless deals with such of the inherent difficulties of the subject as are sure to confront the student who desires to become familiar with the principles which should guide him in his daily practice. Mining Tables BY F. H. HATCH, PH.D., F.G.S. Member of the Institute of Civil Engineers, Member of the Ameri- can Institute of Mining Engineers, Member of the Institution of Mining and Metallurgy, Late President of the Geological Society of South Africa, and E. G. Valentine, F.G.S., Member of the Federated Institute of Mining Engineers, Associate of the Institution of Mining and Metallurgy. London, 1907. Cloth, 200 pp., 8vo, $1.75 net A comparison of the units of weight, measure, currency, mining area, etc., of different countries; together with tables, constants and other data useful to mining engineers and sur- veyors. PUBLISHED BY THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New York BOOKS ON CIVIL ENGINEERING The Theory and Practice of Bridge Con- struction in Timber, Iron and Steel BY MORGAN W. DAVIES London, 1908. Cloth, 594 pp., i2mo, $3.50 net The aim of this work is primarily to furnish easily understood rules whereby problems connected with Bridge Construction may be treated analytically and graphically. Examples are given of the various types of existing bridges constructed either of timber or of steel. In every instance the calculations and designs are set out step by step in their development and the illustrations have been reproduced from the actual working drawings. Moving Loads on Railway Underbridges Including Diagrams of Bending Moments and Shearing Forces, and Tables of Equivalent Uniform Live Loads. BY HARRY BAMFORD, M.Sc., A. M. Inst. C. E. London, 1907. Cloth, 78 pp., Svo, $1.25 net By a direct application of the funicular polygon, the author has succeeded in devising a graphical method, whereby on a single diagram, the maximum shears and the maximum bend- ing moments and the points along the spans at which they occur can be determined with facility for a wide range of spans and for any given type-train. The book will prove use- ful to engineering students in general and to designers of rail- way underbridges in particular. PUBLISHED BY THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New York BOOKS ON CIVIL ENGINEERING Simplified Methods of Calculating Rein- forced Concrete Beams BY W. NOBLE TWELVETREES, M. I. Mech. E., A. M. I. E. E., M. R. S. I. London, 1909. Paper, 20 pp., III., i2mo, $ .20 net The Practical Design of Reinforced Concrete Beams and Columns BY W. NOBLE TWELVETREES With Labor-saving Diagrams and Numerous Illustrations. London, 1911. Cloth, 164 pp., III., I2mo, $2.00 net The author has confined his attention chiefly to the presenta- tion of formulae, simple working rules, and labor-saving dia- grams, intended to facilitate the work of designing reinforced concrete structures. The treatment throughout is applicable to all rational sys- tems of construction and all varieties of reinforcing bars. The work is a thoroughly practical guide. Structural Iron and Steel A Text-book for Architects, Engineers, Builders and Science Students. BY W. NOBLE TWELVETREES London, 1900. Cloth, 266 pp., i2mo, $i.go net In this elementary treatise the author presents in regular sequence the more important details relative to iron and steel as applied to structural work. PUBLISHED BY THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New York 14 DAY USE RETURN TO DESK FROM WHICH BORROWED This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. REC'D LD APR 1 G 1953 LD 21-50m-8,'57 (C8481slO)476 General Library University of California Berkeley VB I 1 05 Cs UNIVERSITY OF CALIFORNIA LIBRARY