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Appendix E2 ver. 1

LEGAL PRINCIPLES FOR SURVEYS OF CANADA LANDS

Table of Contents

Effective Date

This Chapter is effective January 1, 1997. It was originally published as Chapter E2 of the Third Edition of the Manual of Instructions for the Surveys of Canada Lands.

  1. In making an official survey the surveyor should be guided by the same precepts and rules that courts of law would apply. Decisions made in the field may be examined in court at a later date, and the surveyor may be required to appear to explain or justify those decisions.
  2. An original survey is the first official survey of a boundary. In conducting an original survey the surveyor must ensure that the boundaries are well marked on the ground, and that the nature and position of the monuments marking the boundary are accurately recorded. The boundaries defined by the original survey are usually the boundaries by which a parcel is first granted, bought, sold, or otherwise dealt with and these boundaries are the boundaries of the parcel for all future owners.
  3. In all surveys, other than an original survey, the surveyor must make an exhaustive search for original monuments, ancillary monumentation and if necessary physical evidence such as post holes, blazes, and cut lines marking a boundary. Only by finding original monumentation, or actual physical evidence of the original monumentation, can boundaries of a parcel be identified conclusively. The surveyor shall never abandon a search for evidence until convinced that no other surveyor could subsequently find better evidence.
  4. Numerous court judgements have supported the following order of importance of evidence in redefining boundaries:
    1. evidence of natural boundaries;
    2. evidence of original monuments;
    3. evidence of possession which can reasonably be related back to the time of the original survey; and
    4. measurements quoted by the original surveyor on a plan or in field notes.
  5. The surveyor must bear in mind that a boundary does not only mark the limits of one parcel, but the dividing line between two or more parcels. In any search for evidence, the surveyor must consider the rights of all owners, and include in the search evidence created in surveys of adjacent properties.
  6. Even after a monument is found, the surveyor should not assume that it is the original monument, or that it is in the position in which it was originally placed. Sufficient corroborative evidence must always be collected and recorded in the field notes to support the acceptance of a monument and its position.
  7. Legal principle requires that actual physical evidence of the original monument shall govern its position. This does not imply that original survey dimensions should be ignored. Measurements provide an indication of the position of a monument, and in some cases may be the best evidence of the original monument location.
  8. In surveying natural boundaries of Canada Lands a surveyor must be guided by the legislation, legal principles and jurisprudence in force in the province or territory where the survey takes place. The following general principles should be considered in defining natural boundaries:
    1. A natural boundary of Canada Lands, at any instant, is the identifiable natural feature as it exists at that instant, and its position changes with the natural movements of the feature provided the movements are gradual and imperceptible from moment to moment.
    2. A natural boundary of Canada Lands fronting on a body of water is the natural feature identified in the original survey on which the official plan of survey is based, subject to the following conditions:
      1. If the body of water is a stream that is neither tidal nor navigable, then the boundary will normally be the middle thread of the stream, notwithstanding that the bank or high water mark was identified in the original survey. If erosion of, or accretion to, the bank occurs due to natural causes, then the middle thread will retreat or advance with the change in the bank. This general rule will not apply where there is a statute to the contrary, or where there is a specific and clear contrary intent in the original description of the land. A contrary intent is not to be assumed from the fact that the lands are shown on a plan by measurement and colour to exclude the bed.
      2. If the body of water is the sea, a tidal stream, or a navigable stream or lake, and erosion occurs due to natural causes, then the land covered by water will normally form part of the bed of the body of water.
      3. If the body of water is the sea, a tidal stream, or a navigable stream or lake, and accretion occurs due to natural causes, then the additional land will normally form part of the Canada Lands.
  9. In surveys of occupied parcels the surveyor must be very cautious about doing anything which would upset the established limits of occupation, or lead to a dispute. Settled possession which can reasonably be related back to the time of the original survey may provide the courts with satisfactory evidence of the original boundary.
  10. In a case of a disputed boundary the surveyor can only advise those affected by the boundary and provide an opinion of the correct position of the boundary. Care must be taken not to perform an act which might have the effect of prejudicing the case of any party.
  11. Boundaries of Canada Lands defined by monuments placed in surveys made under the Canada Lands Surveys Act become the true boundaries of those lands :
    1. on confirmation of the Surveyor General (or a person designated by the Surveyor General to confirm such plans) for plans confirmed under Part II of the Act, or;
    2. on filing of the plan in the land titles office for plans confirmed under Part III of the Act.
  12. An error in a survey, or a failure to find original evidence, should not result in a loss of land to an owner. If an error is discovered, or if original evidence is found after a plan has been confirmed, then a resurvey correcting the work or incorporating the additional evidence may be required to rectify any problems caused by the previous survey.