The Plaintiff, Mr. Morrison, purchased a property on Shuswap Lake in 1993. The property was subject to an easement which allowed the neighbours, the VanDenTillaarts, to cross Mr. Morrison’s property to access their own property. The easement was L shaped and ran from the railroad tracks down to the water and across the front of Mr. Morrison’s property.
In or about 2006, Mr. VanDenTillaart became aware of some surveying anomalies that suggested that the property line was in fact located about 100 feet into the VanDenTillaart property. It was also alleged that the easement did not line up with the railway crossing. The 100 feet in question encompassed the VanDenTillaarts’ cottage and half their garage. Mr. Morrison notified the VanDenTillaarts that they were trespassing and required that they move.
The VanDenTillaarts retained William Maddox, a British Columbia Land Surveyor, to investigate. Mr. Maddox, during the course of his investigation, discovered that there were serious measurement errors in the original plan. He then undertook an investigation interviewing prior owners who stated that they had seen the property line pins in place. Mr. Maddox found an iron pin leaning against a tree. He excavated in that area and discovered a hole into which the iron pin fit. Accordingly, he re-established the property line.
At Trial, it was established that the original plan was in fact faulty and it was determined that the property line was, as established by Mr. Maddox, correct and that the easement ran over the crossing, down to the water, and then at right angles to the VanDenTillaarts’ property.
Mr. Morrison appealed. The Court of Appeal upheld the Trial decision and dismissed the appeal.Click here to read the Court Decision.