Geomatics and the Law / Erosion: Insidious in Nature and Invidious in Effect

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Vol. 71, No. 2, 2017 dx.doi.org/10.5623/cig2017-206 GEOMATICA 113
Introduction:
Mad, bad and
dan ger ous to know2
Was it not Lord Byron who
pro claimed:3“Verily, as I stand on the
Lake Geneva shore, it would be
churl ish of me to condemn a riparian
proprietor for succumbing to the
rav ages of erosion, for erosion is
insidious in nature and invidious in
effect?”4 Regardless, let us not quibble
about who wrote what on which
cas tle wall. Suffice to say that the
sen ti ment—that erosion is both insidi-
ous and invidious—exists on the north
shore of Lake Erie.
On June 26, 2017, the ON Court of
Appeal disposed of a boundary,
tres pass and adverse possession
dis pute between Marion and James
Pepper (hereafter “Peppers”) and
Douglas Brooker (hereafter “Brooker”).5
Tis a melancholy tale of mutual
mis take about a boundary, of hubris in
holding back the waters, of the
down side to neighbourliness, and
of misinterpreting adverse possession
principles.
GEOMATICS AND THE LAW
Dr. Brian Ballantyne
Surveyor General Branch, NRCan1
brian.ballantyne@canada.ca
Erosion: Insidious in Nature and Invidious in Effect
1Of course, this does not necessarily reflect the views of the Government of Canada.
2Lady Caroline Lamb’s description of Lord Byron in 1812, according to Her Ladyship. However, Her claim is not supported by the
evidence: Douglass. Lady Caroline Lamb: A Biography. Palgrave Macmillan. 2004.
3As scrawled on the wall of Chillon Castle, Switzerland by Lord Byron on June 25, 1816? See: Vincent (ed). Chillon: A literary
guide. Fondation du Chateau de Chillon. 2010.
4Probably.
5Pepper v Brooker, 2017 ONCA 532 (hereafter “ONCA”).
Figure 1: Plan 909 (1970) showing Lots 2 and 3 (Peppers), Lot 4 (Brooker), and the high/steep bank along
Lake Erie.
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Trial:
It changed the
land scape of the
slope significantly6
The Peppers live on Lots 2 and 3,
RP 909, municipally known as Avalon
Lane (also Charlotte Street) in the County
of Norfolk, between Port Ryerse and Port
Dover. Brooker lives immediately to the
east, on Lot 4. Lot 4 entered the land titles
system in 2007. Both parties (all three
lots) were riparian, bounded on the south
by Lake Erie.
7Sadly, access to the lake
and beach was imped ed by a very steep
bank that sloped 90 ft. Sadder still, the
Peppers and Brooker believed that the
boundary between Lot 3 and Lot 4 was a
straight line between a maple tree on the
upland and a willow tree down the bank:
“The maple-willow line cut across
Brooker’s property quite substantially”
running south-east towards the lake.8
Saddest of all, starting in 1982 the
Peppers dumped 650 truckloads of fill
down the bank, built a road partly down
the bank, erected stairs further down the
bank and then built two break walls,
with a combined length of 120 ft and a
height of 10 ft. The break walls were
motivated by their reluctance “to lose
one truck load of dirt they had placed on
the property to wave and storm
ero sion.”9The Peppers received the
appropriate approvals from the province
to build the break walls, which consisted
of 100 tons of carbon stone.10 The
con struction finished in 2009, by which
time it had “drifted in an easterly
direc tion onto Brooker’s lot.”11
Throughout that period (1982 to
2009) Brooker continued to use
his par cel (Lot 4) to its full extent,
includ ing strolling along the bank,
across the access road and down the
stairs. Discussions between the two
par ties were rare. They never chatted in
the ‘hood,12 and merely exchanged
pleasantries in the local produce sec-
tion:13 “Alright, so you never spoke to
Brooker aside from maybe idle chit chat
at the supermarket.”14 Brooker was
never told that he could not use the
dis puted area.
In 2012, Brooker had his parcel
surveyed, thus ascertaining that the
graded road, the stairs and part of the
break wall encroached on Lot 4 to the
extent of 3 462 sq ft. Brooker sued in
trespass; the Peppers counter-sued for
adverse possession. At trial in 2015,
judgment was for the Peppers; their
claim in adverse possession succeeded.
Justice Harper found that the parties
were mutually mistaken as to the
boundary, both believing it to be the
maple-willow treeline, and that:
・“The Peppers occupied the
lands in question in an open
and notorious manner from at
least 1982 until at least 2007;”15
・“Brooker’s failure to say
any thing to the Peppers over
far in excess of the ten year
period allows me to draw the
infer ence that he was mistaken
with respect to the lot line.”16
The court held that the Peppers
intended to occupy part of Lot 4 and
intended to exclude all others, including
Brooker. Brooker’s claim for dam ages in
trespass was dismissed. The Peppers were
directed to have the disputed part of Lot 4
surveyed to pro vide a parcel description,
such that an adverse pos session order
could be drafted and registered on title.
Appeal:
Paradoxically, this
generosity proved to
be fatal17
The Court of Appeal allowed
Brooker’s appeal because the trial find-
ings were not supported by the facts:
“All issues raised on this appeal turn on
the correctness of the trial judge’s
appli cation of the law of adverse
pos session.”18 Justice Trotter, writing
for the court, relied on a 2015 Court of
Appeal decision: McClatchie v Rideau
Lakes,19 which reiterated that a claimant
in adverse possession must demonstrate
for 10 years:
・Actual possession of the lands
in question;
・Intention to exclude the true
owner from possession; and
・Actual exclusion of the true
owner from possession.20
114 GEOMATICA Vol. 71, No. 2, 2017
6Brooker v Pepper, 2015 ONSC 142 (hereafter “ONSC”), at para 13.
7The issue of whether the parcels were bounded on RP 909 by the dark line labelled “High water mark bottom bank” some 12–20 ft
north of the water’s edge on June 27, 1970, did not arise.
8ONCA, para 2. Note that the trial characterized the upland tree as both pine (para 3) and maple (para 21).
9ONSC, para 15.
10 ONSC, para 18. Or was it “one thousand tons of gabion stone?” CA, para 14. In any event, it was a lot of stone.
11 CA, para 9.
12 A cool, albeit forced, contraction of neighbourhood.
13 Or another section.
14 ONCA, para 22 and 23.
15 ONSC, para 30.
16 ONSC, para 34.
17 ONCA, para 47.
18 ONCA, para 32.
19 McClatchie v Rideau Lakes (Township), 2015 ONCA 233.
20 ONCA, para 32.
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The court relied on a series of
recent CA decisions to demonstrate that
“effective exclusion is an element of
adverse possession, even in cases of
mutual mistake.”21
The court held that there was no
evi dence that the Peppers intended to
exclude Brooker or actually excluded
Brooker; indeed, “the evidence sug gests
the opposite.”22 That is, being good
neighbours, the Peppers encouraged all
members of the com munity—including
Brooker—to use the road, stairs
and break wall.23 Thus, the Peppers
were hoisted on their own good
neigh bourliness.
However, that was not all. The
court also allowed the appeal because of
timing, relying on a 2017 Court of
Appeal decision: Sispsas v 1299781
Ontario Inc.24 To wit, the 10-year peri od
must run fully prior to registra tion; it
could not exceed the date of registering
the Lot 4 in the ON land titles system.
25
Lot 4 was registered in August 2007, but
the break wall con struction and stair
installation did not begin until 2004,
falling short of the 10-year threshold.
Conclusion:
Brooker suffered no
damages26
The conclusion is trite: Know your
boundaries and improve your own
par cel. That is, ensure that you place a
break wall 120 ft long and 10 ft on the
correct parcel. Also, if you happen to
place the break wall on the neighbour’s
parcel, ensure that you exclude the neigh-
bour from accessing the break wall.27 q
Vol. 71, No. 2, 2017 GEOMATICA 115
21 ONCA, para 39: Shennan v Szewczyk, 2010 ONCA 679; Sumner v Sullivan, 2014 ONCA 869; Barbour v Bailey, 2016 ONCA 98.
22 ONCA, para 33.
23 ONCA, para 47.
24 ONCA, para 42, relying on: Sispsas v 1299781 Ontario Inc, 2017 ONCA 265.
25 Land Titles Act, s51(2); Real Property Limitations Act, s4.
26 ONCA, para 49.
27 Also, do not confuse a maple tree with a pine tree. See fn 8!
Figure 2: Maple-willow tree line, fill, road, stairs and break wall; Peppers’ house (left) and Brooker’s
house (right)—Google Earth.
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