T. was the owner of lot 9, and C. was the owner of lot 8 adjoining it on the south. Both lots had formerly belonged to one person, and there was no exact indication of the true boundary line between them. F. being about to build, employed a surveyor to ascertain the boundary. The surveyor went to the place, and asked C. where he claimed his northern boundary was. pointed out an old fence, running part of the way across the land between the lots and an old post, and said the line of the fence produced to the post was his boundary line. The surveyor then took the average line of the fence and produced it till it met the post. He staked out this line, C. not objecting. A few days afterwards, P., with his architect and builder, went on the ground, and, in the pres~nce of C, the builder again marked out the boundary by means of a line connecting the surveyor's marks, C. not objecting. Excavating was commenced according to that line immediately, and Ts house was built according to the line Sir W. Ritchie, . J., and Strong, Fournier, Henry and JJ.
on the extreme verge of T's land.
The first time that C. raised any objection to the boundary so marked was when the walls of 7"s house were up and ready for the roof and considerable mohey had been expended in building.
Beld,-That C. was estopped from disputing that the line run by the surveyor, was the true line.
Per Strong, J.: When lands are described by reference to a plan, the plan is considered as incorporated with the deed, and the boundaries of the lands conveyed as defined by the plan are to be taken as part of the description. In construing a deed of land not subject to special statutory regulations, extrinsic evidence of monuments and actual boundary marks is inadmissible to control the deed, but if reference is made by the deed to such monuments and boundaries, they control, though they may call for courses, distances, or computed contents which do not agree with those in the deed.
In 1861, W. D. P., who owned a piece of land bounded on the south by Queen street, on the east by William street, on the west by Dammer street, and running north some distance, laid out the southerly portion into lots depicted upon a plan, which plan showed the boundary line between the plaintiff's and defendant's lots to be exactly 600 feet from Queen street. There were no stakes or other marks on the ground to indicate the boundaries of the lots or the extent of the land so laid out.
Many years afterwards the remaining land to the north of the parcel so laid out, was laid out into lots so depicted on another plan, and a street was shewn between the northerly limit of the first plan and the southerly limit of the second plan. The actual distance, however, of this street from Queen street was greater than the first plan on its face shewed it to be, and the parties owning lots on the first plan appeared to have taken up their lots as if Queen street and the street on the north of the first plan were actual limits of the plan.
Per Strong, J.: 1. The true boundary line between the plaintiff's and defendant's lots was a line commencing at a point 600 feet from Dummer street, as measured on the ground at the time when the plan was made; but in the absence of evidence showing a measurement on the levelled street, that point could not be accepted as the true point of commencement of the boundary in question.
2. Inasmuch as the conveyances to the parties were made according to the first plan, the second plan could not be invoked to aid in ascertaining the limits of the lots so conveyed.
at their APPEAL from a judgment of the Court of Appeal for Ontario reversing a decree of Vice-Chancellor Blake in favor of respondent.
The plaintiff and the defendant owned a4joining properties abutting on the west side of Simcoe street, in the city of Toronto, and running through to the east side of William street. The plaintiff's lot was known as No. 9, and is north of those of the defendant which are Nos. 7 and 8.
Simcoe street was formerly called William street, and the street now called William street was formerly called Dummer street.
The plaintiff, in his bill of complaint, alleged that he acquired lot No. 9 from one J. A. Temple, who had upon it a brick house, which he had built close to the southern boundary of the lot as ascertained for him by a surveyor named Wadsworth, but which the defendant alleges encroaches 4 inches on his lot No. 8; and that the defendant had commenced to erect walls, which, to the extent of 4 inches, come across the line to which the said house extends.
The bill also alleged that the defendant was aware of Wadsworth's survey, and of the erection of the house by Temple on the faith of the correctness of the boundary then ascertained, but did not object until the walls of the house were nearly, if not quite completed, when, for the first time, he informed Temple that he claimed that the wall encroached on him 4 inches; and it sets out attempts, on the part of the plaintiff, to arrange the matter without litigation. The prayer was (1) for a declaration that the 4 inch strip is part of lot 9, and belongs to the plaintiff;. or (2) that, if part of lot 8, it now belongs to the plaintiff in. consequence of Temple's improvements, and the defendant's conduct; or (3), that in any event it may be declared to belong to the plaintiff, subject only to his paying its value; and (4), that defendant may be ordered to deliver up possession, and may be restrained from continuing to build or from otherwise trespassing; and (5), for farther relief. The defendant by his answer asserted that the encroachment, by the plaintiff's wall, is 41 inches at the east and 4 inches at the west part of it.
By the 3rd paragraph, in answer to the 4th paragraph of the said bill, he says: "before the survey therein referred to was made, I told the gentleman who was making the same that a fence which was then standing, and which ran east and west from a point distant about 77 feet, 8 inches from Simcoe street to the eastern boundary of William street (formerly Dummer street), was claimed by me as the true line between the land claimed by me, and that which I claim to belong to the plaintiff; and that there was a space of 5 feet inches between the north wall of my house and the land which I claim to belong to plaintiff; and I also pointed out to the said surveyor a post which was then and I believe and charge the fact to be, had been since the year 1855, standing on the west side of Simcoe street, and which I then told the said surveyor I claimed to be the north-east boundary of my land, and I believe and charge the fact to be that the said surveyor made his survey on the line of such fence, and that on the plan which the said surveyor made, and which was furnished to James A. Temple, in the said bill named, the said space of 6 feet and 10 inches was shown thereon as being the distance between my said wall and the south boundary of the plaintiff's land."
" 4. In answer to the fifth paragraph of the said bill, I believe, and charge the fact to be, that the said Temple did not adopt the said survey made for him as shown on the plan when he commenced to erect the brick dwelling in the said bill referred to, but that the said CAER. Temple, with the aid of the builder whom he had employed, laid out a new line which the said Temple adopted as the south boundary of his land."
The defendant also denied the charge of dilatoriness in giving notice to Temple, and alleged that he notified him promptly, and before he had begun to build the walls of his house, that he was encroaching ; and he tells a very different story from that told by the plaintiff, about the exertions made to come to an amicable settlement.
He admitted building his walls on the four inch strip, but said he did not interfere with the plaintiff's wall, and had no intention of injuring it. The answer stated a survey made at the instance of the defendant, at which Temple and his surveyor were present by appointment, by which the boundary was ascertained, as now claimed by the defendant. That was after Temple's house was built. Other facts were alleged for the purpose of showing acquiescence by Temple and by the plaintiff in the result of that survey. The defendant also set up title under the Real Property Limitations Act.
The cause was heard in November, 1880, before Blake, V.C., who made a decree for the plaintiff, from which the defendant appealed to the Court of Appeal for Ontario, which court reversed the decree. V. C. Blake dismissed the plaintiff's bill.
The documentary and oral evidence is reviewed at length in the judgments hereinafter given.
Mr. Robinson, Q.C., and Mr. Armour, for appellant, contended that the conduct of the respondent before, at, and about the time of running the line and building estops him from now disputing the said line, even if it ever encroached upon his land, and from, in fact, attacking the quiet possession of the land, having by his former acts, induced the appellant's predecessor in title to believe such land was his own, and to incur great expense; that the evidence showed the line was a conventional one, and that the finding of the learned judge of the facts upon which he made his decree should not have been disturbed by the Court of Appeal.
Dr. McMichael, Q.C., and Mr. Hoskin, Q.C., for respondent, contended that as the evidence showed that the respondent never consented to any deflection from the true boundary line, and as there was evidence that the true line had not been followed, he cannot be held to have assented because he believed their representation or to be estopped from claiming the true line. J.:- The action in this case was brought in consequence of the defendant's interfering with the southerly wall of the plaintiff's house. The defendant and the plaintiff were proprietors of lots of land in the city of Toronto, adjoining each other, and the difficulty arises between them as to the dividing line between those lots. A great deal of evidence was gone into in the case for the purpose of discovering, if it were possible, (which might not be a very easy task) exactly to an inch where the dividing line of those lots was, but I think that was a discussion wholly foreign to this case, which I think should be determined on another point altogether.
I think it is clear law, well established at any rate in the Lower Provinces where I came from, and I believe it must be established everywhere, that where there may be a doubt as to the exact true dividing line of two lots, and the parties meet together and then and there determine and agree on a line as being the dividing line of the two lots, and, upon the strength of that agreement and determination, and fixing of a conventional boundary, one of the parties builds to that line, the other party is estopped from denying that that is the true dividing line between the two properties.
- [The learned Chief Justice after reviewing the evidence and Vice-Chancellor Blake's judgment concluded as follows :-]
I think, what took place in this case between the parties amounted to the establishment of a convential boundary or division line, of the respective properties of plaintiff and defendant, from rear to front, and I think the evidence clearly shows that the building of plaintiff's was erected on such line, so agreed on as such dividing line, and that the plaintiff's building is therefore now on plaintiff's lot.
I therefore think that the judgment of Vice-Chancellor Blake was right, and that it should not have been reversed.
The dispute which has led to the litigation out of which the present appeal arises is in respect of a piece of land 4 inches in width, and 120 feet in depth, the value of which, according to the respondent's estimate, is ascertained by the fact that he offered to sell 5 feet of the land, of which this 4-inch strip forms part, at the price of $50 per foot. On the part of the appellant's testator (the original plaintiff by whom this suit was instituted), the contention had a substantial object, and there can be no reproach against him of having acted in a spirit of unreasonable litigiousness, for had he conceded to the respondent the claim which he makes to this four inches of land, it would have involved the necessity of either pulling down the south wall of the dwelling house, which has been built to the extent of feet and 9 inches, on this 4-inch strip, or of accepting the offer which the respondent made of allowing the house to stand as it had been built, on the condition that it should never be used for any purpose but that of a dwelling house, the plaintiff, however, in this Jlast alternative not to have an absolute title, but merely a license to use the 4 inches as a site for the wall of the house, the acceptance of which would have seriously interfered with the plaintiff's title to the house, and might have rendered it unmarketable, so far as the plaintiff and his predecessor in title are concerned. There does not seem, therefore, to be anything unreasonable in the position which he assumed; and as regards the respondent, if he is able to show that the four inches in question were originally his property, he is, as the Court of Appeal say, entitled to insist that the evidence which would deprive him of it and vest it in his neighbour should be very full and convincing. The land in dispute is part of park lot number 12, in the city of Toronto, which was originally granted by the Crown to the Hon. William Dummer Powell, who, in 1831, caused a plan to be prepared by Mr. Chewett, a surveyor, showing a sub-division of a portion of this park lot into streets and building lots.
This plan is registered in the registry office of the city of Toronto, and it shows a street now called Simcoe street, running north from Queen street (formerly Lot street) and another street, originally Dummer street, to the west of Simcoe street, also running north from Queen street, and between these two streets two ranges of 23 lots each, one range fronting on the west side of Simcoe street, and the other on the east side of Dummer street, each lot being 60 feet in width and 120 feet in depth, and each tier of lots commencing at a distance of 120 feet from Queen street, this intermediate space of 120 feet being taken up by a tier of lots fronting on Queen street, 100 feet in depth, and a lane 20 feet wide in the rear. To the north no boundary whatever was shown in the original plan, Anderson street, now the assumed northern boundary of lot- 23, not having been laid out until many years after the original survey and plan of Strong, The 23 lots are numbered consecutively, from south to north.
The appellant has proved a clear paper title (the execution of the deeds being admitted) to lot number and the respondent to lots numbers I and 8. The only description of the lands contained in any of these deeds is by a reference to the plan made by Mr. Chewelt, in 183 1. In none of the deeds forming part either of the plaintiff's or defendant's title do I understand (for I have not seen any of these deeds) is there a more specific description, either by giving the courses and distances of the lines of the particular -lots, or by a reference to stakes or monuments, or other actual boundaries, laid down up6n the ground.
All these 23 lots are now enclosed and occupied, and most of them have been built upon by their respective owners. Long after the date of the original survey and plan, a street to the north of the range of 23 lots, now called Anderson street, was laid out by the trustees under the will of the Hon. W. D. Powell, upon an open and unenclosed space, designated as Caer Howell Place upon the plan of 1831, lying immediately to the north of the northerly side line of the last lot, No. 23; and to the north of Anderson street another range of lots was laid out, and to the north of this again another street, called Caer Howell street. These two streets, Caer Howell street and Anderson street, are described,upon the plan made by Mr. Howard to show this later survey, as running at right angles with Simcoe and Dummer streets. The land held under a title to lot 23 is enclosed and occupied up to the south line of Anderson street, and it now appears, by actual measurement on the ground, that from the north side of Queen street to the south line of Anderson street, or the north line of lot 23, the distance is 1,509 feet 3 inches instead of 1,500 feet, as. it would he if the side lines of the 23 lots and the lines of the lane and strong, the depth of the lots on Queen street, as shown by the plan of 1831, had been strictly adhered to. No surveyor's stakes or monuments of the original survey have been found, and there is no evidence of any kind to show that the lines of the lots were ascertained at the time of the original survey and marked upon the ground. Upon this state of facts, I agree in the conclusion come to by the Court of Appeal, that it is now impossible to ascertain, with the exactitude requisite to del ermine the present controversy, what was the side line between lots and according to the description in the deeds referring to the original plan.
When lands are described, as in the present instance, by a reference, either expressly or by implication, to a plan, the plan is considered as incorporated with the deed, and the contents and boundaries of the land conveyed, as defined by the plan, are to be taken as part of the description, just as though an extended description to that effect was in words contained in the body of the deed itself.
Then, the interpretation of the description in the deed is a matter of legal construction and to be determined accordingly as a question of law by the judge, and not as a question of fact by the jury.
In construing the description contained in the deed, in cases where land is conveyed by a private owner, and where no statutory regulations apply, but the deed has to be interpreted according to common law rules of construction, extrinsic evidence of monuments and actual boundary marks found upon the ground, but not referred to in the deed, is inadmissible to control the deed, but,if reference is made by the deed to such monuments and boundaries, they govern, although they may call for courses, distances, or computed contents which do not agree with those stated in the deed.
If we apply these well known principles of construction in the present case, it is apparent that J. the boundary now in question, between lots and 9, would be a line drawn from a point on the west side of Simcoe street, at a distance of 600 feet north of the north line of Queen street, according to the result obtained by such a measurement in the state in which the ground to be measured was at the time or immediately after the plan of 1831 was made. It is, however, obvious, that such a measurement, now taken along the level planked side walk on the west side of Simcoe street,would not correspond (unless it did so accidentally) with a like measurement made when the plan and survey were made in 1831, at a time when the land was still in its natural state, probably not unreclaimed from the original forest, and long before the street or sidewalk had been levelled, graded and planked, as it is at present. It is impossible, therefore, now to ascertain this division line between lots and 9, in the manner prescribed by the description in the deeds, with sufficient exactitude to determine the question in dispute, unless we can find some evidence of what the result of such a measurement would have been before the street was made and the sidewalk levelled.
No sufficient direct evidence of this kind has been produced.
It is said, however, that it is impossible to suppose that the different purchasers of lots took possession at random, without having the boundaries of their lots properly defined, according to the plan, and that we must presume, accordingly, that the existing fences and enclosures show the true original boundaries of the lots.
Whatever force this argument might have in a question between the owners of adjoining lots, which were originally, and before the sidewalk was levelled, acquired and enclosed by different purchasers, I cannot see that it has any application in the present case. Strong, J. These lots 7, 8 and 9 were conveyed by William Dummer Powell, the grantee of the Crown in 1833, to Caroline Jarvis, by her in 1855 to Mathew C. Cameron, and by the latter, in April, 1856, to W. H. Pim, from whose devisees the respondent purchased and took a conveyance of lots 7 and 8, in 1869.
Lot 9 was conveyed by the devisees of Pim to Priestman, in 1873, and by Priestman to Dr. Temple in 1871. Dean Grasselt purchased from Dr. Temple, and obtained a conveyance in 1877.
It thus appears that these lots 8 and 9, the boundary line between which is now in question, were always held by the same owner, from the date of the original grant by the Crown to William Dummer Powell, long before 1831, until the ownership was first severed by the conveyance to the respondent in 1869. three lots, therefore, formed one piece of land, having a frontage of 180 feet or thereabouts on Simcoe street, with a depth of 120 feet. The ownership and possession of lots 8 and 9 having thus been consolidated in one hand and the land held under the same title, I cannot regard any interior division by enclosures made or fences erected during the continuance of such a state of things as evidence of boundaries between the different lots. Such fences are rather to be presumed to have been put up in order to subserve the convenience of the common owner, than with the view of indicating land marks.
The exterior fences of the piece of land owned by Pim and formed by the three lots 7, 8 and 9, have no bearing on the question, since it is shown that a measurement between the fence forming the southern limit of respondent's lot 7 and the fence between lots 9 and 10, forming the boundary line between lots 9 and l0, gives the distance of 181 feet 'and y- an inch, being 1 foot I inch more than the full width of the lots, in the present state of the land. The existing fences then do not in any way furnish evidence of the fact sought for, where was the original line between these lots called for by the deed, namely, a line drawn westward from a point distant 600*feet from Queen street, according to a measurement taken before the level of the ground was altered by street making or other improvements. Had there been any evidence of the original boundaries as ascertained at the time of the survey, shown either by a discovery of the stakes or by the testimony of witnesses who had seen such monuments and were able to fix their exact locality, it would have been good evidence, not to alter or control the description in the deed, but as circumstances .tending to show what was the state of things at the time to which the plan refers and which no longer exists. No such evidence, however, has been produced. I therefore come to the conclusion that it is now impossible to ascertain with the minute degree of accuracy required to determine this dispute, as to four inches of land, where the exact boundary line prescribed by the deed is to be drawn. I can very well answer the question, what is the boundary between these lots? That is a matter of legal construction of the deed and is very plainly shown by the plan to be a line drawn at 600 feet from Queen street, but when I proceed to inquire where is this line now, I can only say, having regard to the changes made on the surface of the land and to the entire absence of any evidence identifying the line as it was originally, that it is now and was, in 1875, when Dr. Temple began to build his house, utterly impossible for any one to tell.
Then the difficulty cannot be met, as is suggested in the appellant's factum, by saying that the line intended by the plan was what is there called a "net line," which I take to mean a perfectly level line and, therefore, one the measurement of which would, from the beginning, have corresponded with a line along the level sidewalk. What the deeds strong, J and plan call for is an actual measurement of the land itself as it was in 1831, which such a mode of measurement would not be.
Again, it could not be said that we are to, presume that a measurement of 600 feet at the present time will give the same result as in 1831, in the face of the facts that the levelling of the land for street and other purposes would necessarily have the effect to bring the side lines further to the south than they were when the lots were first laid out.
I also agree with the Court of Appeal in their determination that the method of proceeding adopted by Mr. Passmore, at a survey made for the respondent in 1877, to ascertain the boundary, was an erroneous one. The course adopted by Mr. Passmore is thus described by him in the report of his survey: .
street, The objections to this are: 1st. That it is an entire departure from the terms of the description in the deed under which both parties claim title. The streets and land laid out by Mr. Howard many years after Mr. Chewett's survey of 1831, could on no principle be included, even if the statute which Mr. Passmore refers to had applied.
Caer lowell street was not the northern boundary of this range of 23 lots, shown in Mr. Chewett's plan, nor was Anderson street either. No northern boundary of any description was shown by that plan, and the only mode of ascertaining the location of the 23 lots was by admeasurement from Queen street. J. Further, as Mr. Justice Patterson points out, there is no ground for saying that the statute applies to any cases except to those of surveys of lands included in grants by the Crown made before there had been any government survey.
The Statute of Limitations can have no application. The plaintiff's lots, as well as those belonging to the defendant, were all owned by Pim up to 1860, when, on his conveyance to the defendant, the ownership of the three lots was for the first time severed, and Dr. Temple took possession of lot 9 and began to build in the spring of 1875.
It would, therefore, seem that, if no conventional line had been adopted, the only mode of ascertaining the division line open to the parties would have been by a resort to the jurisdiction of a Court of Equity to settle boundaries.
The judgment of the learned Vice-Chancellor before whom the cause was originally heard, and who made the. decree which the Court of Appeal has reversed, proceeded upon the doctrine of equitable estoppel. When Dr. Temple was about proceeding to build on the lot 9 in the spring of 1875, being desirous of ascertaining the boundaries of his land he employed Messrs. Wadsworth Brown, surveyors, to make a survey for that purpose. Mr. Brown accordingly went to the land and there found an old fence which was, as he says, in his evidence "standing part of the way through from Dummer street "towards William street,"-this fence as it then was, did not run through to Simcoe street, but stopped at a a distance of some 70 feet from Simcoe street, where it was joined by a sloping fence to the north-west corner of the respondent's house on lot 8. At the lot Mr. Brown saw Mr. Carter, the respondent, and what then took c,-E. place is thus stated by Mr. Brown on his examination as witness at the trial:
Strong, J
Q. Did Mr. Carter give any information as to where the post was? A. Yes; he pointed out the old fence above him on William street, that that was the north boundary of his lot, that he considered the north boundary of his lot.
Q. Did you make your line agree with that? A. I produced the line of the fence and I found it agreed with that fence post very well, and I adopted that and made a mark there, and Mr. Carter was present at the time I made the mark, and I asked him if he was satisfied with it as I made it at present, and he said he was.
Q. Did he see you as you ran the line across?
A. Yes, but not all the time; he saw the line I was going to adopt.
Q. Did you picket the line across then?
Q. How did you indicate the point on Dummer street? A. The old fence was standing part of the way through from Dummer street towards William street.
Q. But it did not go all the way through ? A. No.
Q. William street is the street we speak of as Simcoe street? A. Yes.
Q. How was this fence, in a straight line or zigzag? A. It was bent over.
Q. Did you get the correct starting point on Dummer street ? A. I got the centre as near as I could.
Q. And you drew a line from that to the place already indicated on Simcoe street as being the correct boundary there ? A. Yes. Q. He saw you make the mark on Simcoe street, and said he was satisfied?
A. Yes.
Q. Were you there after the building of Dr. Temple was there? A. Yes.
Q. Will you say whether he had crossed that line you drew ? A. He had not.
Q. And no part of the building was upon Mr. Carter's ground if that is the correct line between them ? No.
Q. Had the dispute at the time you were there, arisen between Mr. Carter and Dr. Temple about this line, at the second time you were there? A. Yes.
Did you see Mr, Carter there? No; I did not.
The witness, though rigorously cross-examined, adheres throughout to this statement,
Further, the statements of the witnesses are, in my opinion, entirely confirmed by the respondent himself in the 3rd paragraph of his answer, when he says: -- In answer to the fourth paragraph of the said Bill, I say that before the survey therein referred to was made, I told the gentle- Str J man who was making the same, that a fence which was then' standing, and which ran east and west from a point distant above seventyseven feet eight inches from Simcoe street to the eastern boundary of Wiliam street (formerly Dummer street) was claimed by me as the true line between the land claimed by me and that which I claim to belong to the plaintiff, and that there was a space of five feet and ten inches between the north wall of my house and the land which I claim to belong to the plaintiff ; and I also pointed out to the said surveyor a post which was then, and I believe and charge the fact to be, had been since I 855, standing on the west side of Simcoe street, and which I then told the said surveyor, I claimed to be the north-eastern boundary of my land, and I believe and charge the fact to be, that the said surveyor made his survey on the line of such fence, and that on the plan which the said surveyor made, and which was furnished to Jas. A. Temple, in the said Bill named, the said space of five feet and ten inches was shown thereon as being the distance between the said wall and the south boundary of the plaintiff's land.
I cannot but regard this as a distinct admission that the line laid down by the surveyor was the correct line of the fence, the boundary which- the respondent himself claimed and had pointed out to the surveyor, who relying on the representation of the respondent assumed the fence, so far as it went, to indicate the line of division between the lots and produced it accordingly to Simcoe street to the post there, also shown to him by the respondent. The respondent clearly admits that this line was properly produced by Mr. Brown, when he says :
I believe and charge the fact to be that the surveyor made his survey on the line of such fence.
From the 4th paragraph of the Answer it appears that the point intended to be raised by the answer was, not that the line of the fence was incorrectly carried out to the post, but that that line bad not been adhered to by Dr. Temple in building his wall, and that Dr. Temple had that purpose, with the aid of his builder, laid out a new and different line. The answer does not then n Jimpugn the correctness of the line from the fence to the post, as drawn by Messrs. Wadsworth & Brown, and the issue raised by it was whether this line had been disregarded by Dr. Temple in building his house, and whether he had not in fact carried the wall to the south of the line as determined by the surveyor, and thus committed a deliberate fraud on the respondent. That this was the true issue between the parties, was the view taken by the Vice-Chancellor who finds, after having heard and seen the witnesses, that this line was properly drawn, and was assented to by the respondent as correctly defining the boundary which he claimed, a line produced from the easterly end of the fence to the post, running in the same course and direction as the line of the portion of the fence then standing. Had there been nothing further done beyond running the line, I do not think there would have been an estoppel, or that the respondent could have been, on any acknowledged principle of law, debarred from afterwards shewing either that he was mistaken in supposing that the line of the fence was the proper dividing line between the lots, or that that line had been erroneously produced by the surveyor.
It is said by Lord Hardwicke in Penn v. Lord Baltimore that a settlement of boundaries is not an alienation, because if fairly made without collusion, the boundaries so settled are presumed to be true and ancient limits. From this it would appear that an agreement to a conventional line is not within the Statute of Frauds, and as the mutual agreements of the parties to abide by such a line would constitute a valuable consideration, there is no reason why an agreement of this kind should not be carried into effect by a decree in equity, in the nature of a decree for specific performance.
But, as according to the ordinary principles which regulate the exercise of the jurisdiction to decree specific performance, mistake is a good ground of defence, I take it that such mistakes as I have indicated, subsequently discovered, either as regards the direction of the line or in properly laying it out upon the ground, would be sufficient to induce the court to withold relief. This seems to be the view taken in the 1Massachusetts case of Thayer v. Bacon though it is to be remarked that that case was in an action at law.
Had the building then not been erected by Dr. Temple on the faith of the respondents' assent to the line, and had the respondent been able to show that the surveyor's work had been improperly done, he would probably not have been held bound by his assent to the line as marked out by Mr. Brown. This, however, is not now the question to be decided, for matters did not rest there; Dr. Temple proceeded to build, and before doing so, the line which had been designated by Mr. Brown, and indicated by the stakes he had planted, was further marked out by a chalk line by his builder, Mr. Crozier, as the line for the foundations of the house, in the presence of the respondent and of Dr. Temple and of Mr. Windeyer, his architect. What then occurred is thus stated by Mr. Windeyer in.his evidence:
0, at Graselt.
Q there?
Q. Just that were commenced?
A. Before I came up to the ground the surveyor had staked out his lines, and I cast my eye over them to see if they were in accordance with the stakes.
Q. What took place on the ground at Simcoe street-what did the o builder do?
A. He commenced to build.
Q. Did he run any line? A. Yes, by a chalk line.
0. How did he join the two ends-what were the two ends? A. He brought the line from Simcoe street up to the fence.
Q. What point on Simcoe street?
A. It was a post enclosed by a board.
Q. Was there any mark on it?
A. A surveyor's mark.
Q. And what was the other mark at the hind end-another surveyor's mark?
A. Yes.
Q. And did they agree with the stakes as they were ? A. Yes. Q. Mr. Carter was present?
A. Yes.
Q. Did he object to the line?
A. No he did not make, as far as I heard, any objection to the line.
Q. If there had been any objection raised by Mr. Carter at that time, would you have heard it? Yes, I think so.
Q. And would you have remembered it? Yes.
Q. You say the excavations were commenced then?
A. Yes. Q. Did you see him turn the earth?
A. Yes.
If this evidence is to be relied on, and it is confirmed by that of Crozier the builder, and also by Dr. Temple, and the judge who heard the case in the court of first instance has found that it is reliable, it establishes that Mr. Carter, not only assented to the correctness of the surveyor's line, but also further acquiesced in the adoption of that line as the line to be observed by Dr. Temple in building his house; and further, Mr. Brown, Mr. Windeyer and Mr. Crozier, all swear that it was the line actually observed in excavating the foundations and building the walls. The respondent, it is true, denies this. But any direct conflict of testimony between him and the other witness must be considered as finally decided by the finding of the Vice Chancellor, before whom the witnesses were examined, and there is no foundation for the respondeit's contention that Dr. Temple and his builder fraudulently, or even erroneously, laid out a different line from that which had been designed by Mr. Brown, and built accordingly.
In the short hand writer s notes of the Vice Chancellor's judgment, this finding is most distinctly stated, he says:- The judgment in this court in the case of the Picton (1) and the authorities there referred to, especially the case of Gray v. Turnbull in the House of Lords, which are binding upon us, show that in a case of direct conflict of testimony, such as we have presented here between Mr. Cartef on the one side, and Dr. Temple and his architect and builder on other, as to what was done on the morning on which the excavations for the foundations of the house were began, the finding of the primary judge is to be regarded as decisive, and should not be overturned in appeal by judges who have not had the advantage, as the judge at the trial had, of seeing the witnesses and observing their demeanor under examination.
The respondent, ho wvever, not only acquiesced in the line adopted by the builder in excavating the foundations, but he remained silent and induced Dr. Temple to suppose he continued to acquiesce, until the walls of the house were actually built, and were so far completed as to be ready for the roof; never uttering a single complaint until upwards of $200 had been expended. It is true that the respondent and Mrs. Carter also assert that Mr. Ca? ter did give early notice of his objection to the line upon which Dr. Temple was building; but Strong, Jthis fact depends, like the other, altogether on the testimony of witnesses, and Dr. Temple denies ever having heard any of the complaints which Mr. Carter speaks of. Upon the same principle as that already adverted to, the judgment of the Judge who heard the cause must be considered final upon this point also. What the Vice- Chancellor says in his judg;ment upon this is as follows: Then the question is as to whether there was anything done on the part of the defendant to notify the plaintiff of the position that he was taking; supposing now that there was a mistake. I merely deal with that, though it is not necessary to my mind to the disposition of the case, but to deal with the question as to whether there was any notifying of the plaintiff or of Dr. Temple of the fact, that he did not assent to this line. The principal evidence on that point is that of Mr. Carter. He says that on one occasion he, out of the window, addressed Dr. Temple upon that question.
Mrs. Carter says she was aware of that being done three times by Mr. Garter. Mr. Carter forgets that he was present on the occasion of the commencement of the work. There has been a great deal of talk, no doubt, and letter writing and so on, but I do not think that when Mr. Carter says:- "I gave you that notice," and when Dr. Temple says:-"I never heard one word on the subject from you," and when Mr. Carter's memory is shown to be very defective upon the statement of persons entirely disinterested, and upon a point which one would think rested very distinctly in his mind-the matter of where this house was to be located-1 cannot see that I would be justified in putting his evidence against the statement by Dr. Temple, who says that no such notice was given him, and I find as a fact this affirmatively proved. It is clear that when the notice was given to Dr. Temple upon which something was done, it was at a period long subsequent; and as Mr. Brown says, the very moment notice was given, he was at once anxious; he at once went to the surveyor and demanded: "Are.you correct in this?"
And at once Mr. Brown went up, and at this time the roof was on the house.
Therefore the first time I can find upon the evidence that any objection was made by the defendant as to the place when the house was put, was when the roof was being put upon it, and when it would be too late for him to make this objection.
The law applicable to this state of facts is clear, the respondent was estopped from setting up another line to the prejudice of Dr. Temple.
I take the law to be well settled, that if adjoining land owners agree to a J. dividing line between their respective properties, and one of them, knowing that the other supposes the line so established to be the true line, stands by and allows him on the faith of such supposition to expend money in building upon the premises according to the line assented to, he is estopped from showing that he was mistaken, and from denying that he is bound by the line which he has thus induced the other party to rely upon. I take the law, as laid down in the cases of Ramsden v. Dryson (1) and Willmott v. Barber (2), to warrant this proposition as a correct definition of the principle upon which Courts of Equity act in such cases, and according to the Massachusetts case of Thayer v. Bacon, before cited, the same effect ma.y also be attributed to acquiescence under the same circumstances by a court of law, as operating by way of estoppel in pais. The salient point of the defence, as presented by the answer, that the line designated by Mr. Brown had not been followed by Dr. Temple, being conclusively disproved, it seems to me that the defence wholly failed and that it was too late, after the house had been built and the expenditure incurred, to turn round and impeach the correctness of the surveyor's work in running out that line.
I do not, however, mean to say that the respondent has succeeded in demonstrating that Mr. Brown did not run the line with perfect accuracy.
It is, it is true, said in the court below, that the difference in the angles of the line of the fence as run by Brown at Dummer street and Simcoe street shows that this work was incorrectly performed, but before assenting to this as a conclusive demonstration of error on the surveyor's part, it ought to be established that the lines of Dummer street and Simcoe street are exactly parallel, and this has not been done.
Strong, J.
Mr. Justice Patterson says that he was unable to discover anything warranting the insertion in the decree of the distance of 603 feet inches from Queen street, as the location of the post planted by Messrs. Wadsworth and Brown, to show the line of the fence. This may have been the result of a measurement made after the judgment was pronounced, but before the decree was drawn up; if so, it should have been shown on the face of the decree, but in the absence of any mention in the decree of a reference to the surveyor for this purpose, I cannot assume that it is so. I think that a variation of the decree must be made to meet this objection, which may be by striking out so much of the decree as is contained in the passage beginning with the words " And which said boundary line may be further defined," and ending with the words, " until it strikes the westerly boundary of said lot number Subject to this alteration of the decree, I am of opinion that it ought to be restored as pronounced by the Vice Chancellor, and that the order of the Court of Appeal must be reversed with costs to the appellant in this court as well as in both the courts below.
Le Dr. Temple, avant de construire la propri6t dont l'appelant est actuellement propri6taire et A raison de laquelle s'est 6lev6e la contestation en cette cause, fit constater, par arpenteur, la ligne de division entre sa propri6t6 et celle de son voisin le Dr. Carter, intimb. C'est sur cette ligne, trac6e et marqu6e, qu'il fit construire.
Les arpenteurs paraissent avoir pris, A la suggestion du Dr Temple, toutes les pr6cautions pour s'assurer de l'exactitude de cette ligne. 11s acceptbrent, comme base de leurs op6rations, un point de d6part que l'intim6 d6clara tre une ligne de convention entre son lot et celui du Dr Temple.
L'op6ration faite comme il Fo-ir J. l'avait indiqu6e, il s'en d6clara satisfait. Connaissant le F but que le Dr Temple avait en vue en faisant tirer la ligne de division, avant 6t6 present lorsque le creusement des fondations a th commenc6 sur cette ligne qu'il avait lui-m6me indiqu6e, et donnant son assentiment au lieu de protester contre son adoption,-l'intim6 peut-il 6tre maintenant requ A s'en plaindre ? Non, en loi il est li6 par ses d&clarations (estopped) et par ses actes A cette 6poque.
Son acquiescement peut lui tre oppos6 avec succ6s.
devait savoir qu'en laissant 6riger ces constructions a sa connaissance et avec son assentiment, il faisait un abandon des pr6tentions qu'il aurait pu avoir alors.
La preuve a 6tabli ces faits. Je les interpr6te comme 1'a fait 1'Honorable Vice-Chancelier qui a d6cid6 cette cause en premibre instance, et pour les raisons qu'il a donn~es je suis d'avis que le pr6sent appel doit 6tre allou6.
HENRY, J.:
I have very little to add to what has been said by my learned brethren who have preceded me in this case. I have, ever since I heard the argument, held the same view that they have expressed. There is no doubt in my mind on the evidence, that that line was agreed upon. The law applicable to conventional lines, I take to be, that if a line is agreed upon and one party acts upon it and erects a 1 ouse, or an expensive fence, or holds and improves the 1-nd, the other party is estopped from saying that the line is not the right one. If, however, nothing is done on the land, and there is no change of position in any way, it is, I take it, within the power of one party or the other to prove that a mistake war made in the running of the lines or the adoption of them.
In this case, before the house was put up by V*
Dr. Temple, the defendant might have been authorized to show that the line was not the correct one.
J
I have looked at the evidence on the part of the defendant. and I am far from being satisfied that he has shown that. In fact, I have arrived at the conclusion that it has not been shown. Both parties claim by the same title, to a certain extent, but they claim by a fence. Now, we all know that four inches is a slight deviation where a line has to bp run several hundred feet, so that the slightest variation of the compass in running from one street to another aloiig these lines would make a variation of several inches.
There is evidence that the fence was not straight, and it would depend very much on the position of that fence and the part of it where the line was run from, whether that would be a correct extension of the line that was to form the line of the lots of which that fence was formerly a boundary.
Under these circumstances, then, it is very easy to understand that two surveyors running from one street to another, and taking that fence as a guide, might make a difference of three or four inches. I am of the opinion, however, under the circumstances in evidence, that there was a conventional line proved. The one party adopted and acted upon it, and and the other party did not, within sufficient time, indicate his objections to the boundary.
We have seen that up to a certain time there was an oblique line made from the fence, which at one end was said to have deflected from the other parts of the line one way or the other, to Mr. Carter's house, and then on Simcoe street the fence again was brought out in a similar manner. That fence, and the house of Mr. Carter, con. stituted the only line then existing between the portion of land that was occupied by Dr. Temple and Mr. Carter. The space up to that house in the possession of Dr. Temple was shut out from the possession of Mr. Carter. But independently of that, the objection that was first made, as I take it, from the evidence of Dr. Temple, was not to the line, but to the fact J. that the putting up of the house would interfere with the lights of Mr. Carter's dwelling house. Then negotiations took place and Mr. Carter offered to pay onehalf the amount that would be necessary to make a change to the north side of Dr. Temple's house, to give additional light.
That was estimated at $200, onehalf of which Mr. Carter offered to pay.
Dr. Temple objected to pay the other half and the work proceeded. The next objection that was taken was that the line was wrong, but that was taken after the house was put up, and was in a position to receive occupants. think, under the circumstances, that the parties were bound by it. There is no doubt that if there is a question as to the correctness of a line between two properties, and one party sees the other going over what he claims to be the true line, and building beyond it, and doesInot object, he is estopped from saying afterwards that it is in the wrong place. He is estopped independently of any conventional line agreed upon from saying that the line would take a portion of the building if correctly run. Under all the circumstances of the case, and especially in the absence of satisfactory evidence as to the true line, that agreed upon between the parties ought to be established as the true line.
I think, therefore, that the decision of the Vice Chancellor ought to be changed as suggested by my learned brother Strong. J.
I am of opinion to allow this appeal with costs. Appeal allowed with costs.