Search

A public that increasingly expects the delivery of boundary line, property corner establishment and retracement, in a virtual environment with no “hard features” referenced to the ground, may seem like the exact opposite of what is seen as “certain,” such as a cadastral monument. Yet, increasing capacity to model boundary location using digital mapping is challenging our traditional views of how evidence, based on co-ordinates, is to be treated. This paper explores these developments with a view to understanding the further changes that are needed in the legal framework for determining boundary location based on co-ord inates.

Geospatial data is widely available and used by a broad range of users for a wide range of purposes—from government planning for service delivery to directions on how to get to a coffee shop. What, if any, duties and standards of care are owed to users of geospatial data by the provider? This is a question complicated by a growing trend toward volunteer geographic information (or VGI) that is itself part of the broader trend of user generated content whereby the users of data contribute geographic data and create a wide range of value-added products based on available data.This paper is a companion piece to the article authored by Katherine Plante and Marc Gervais entitled “Geospatial Data Quality Guarantee.” Plante and Gervais provide an overview of geospatial data quality guarantees in the legal context of the Quebec Civil Code. This paper, in contrast, looks at similar concepts, but from the perspective of the common law in Canada and drawing at times from other common law jurisdictions.

In this paper, recent boundary cases are considered—but especially as related to Ontario. The choice of jurisdiction is a consequence of the original audience for whom the paper was prepared: real estate lawyers in Ontario. While the activity of case law review and discussion may be seen as an ad hoc and fact—specific exercise, most lawyers in practice choose to remain aware of recent cases in order to stay abreast of new trends. Law schools still use the case law method for teaching—as well as to identify current reported cases as harbingers of potential new trends. Likewise, legislators monitor what emerges from our courts—if only to make sure that there is not a need for remedial legislation in order to possibly “correct” policy implications of a decision or a series of decisions which signal a new trend. Despite its jurisdictional limitations and the review of only most recent cases, this paper is both an example and a reminder that the jurisprudence of boundary law and the work of geomatics professionals continues to evolve.

The interpretation and use of information relating to the spatial extent of land ownership (fee simple title) has traditionally been the subject of products which professional land surveyors in Canada have provided. The primary source of such information has been the circumstances noted “on the ground” and the title record that is available for review. These service products have been generally referred to as “Real Property Report” and “Plan of Survey”. Most jurisdictions in Canada require surveyors to mention or show lesser interests in land on a Report or Survey Plan and specifically mention easements and rights of way as the type of interests to be indicated. In this paper, the types of lesser interests in land which have a spatial extent component are considered in terms of modern usage. By relating instances in which the courts have had to deal with clarification and the imposition of a remedy, the traditional treatment of showing only easements and rights of way appears to be no longer sufficient. This paper uses examples of development agreements, site plans and restrictive covenants in establishing the need to revisit the definition of lesser rights in land that must be shown on a Report or Survey Plan. Although some lesser interests have a spatial extent that is the same as that of the fee simple parcel, this is often not the case. The need to understand the broader range and nature of lesser rights in land—as well as new ways of interpreting and communicating their spatial extent to clients—are clear opportunities for the enhancement of professional surveyors’ products and services.

It is trite to say that surveyors deal with boundaries of a parcel of land, while lawyers deal with the title. The statement belies the complexity of surveying the boundaries of a parcel, the title to which may be naturally severed by a strip of land in the ownership of a third party. This has been a growing concern with the survey of parcels of land which are bisected by streams or rivers, the title to which may not be the same as the upland owner. This paper explores the difficulty faced by surveyors when called upon to survey the natural boundary of a watercourse, thereby making implicit assumptions about its title. Examples are used to illustrate a practical means of obtaining answers, rather than leaving it to assumptions.