January 11, 2023 by Clay Williams, Wendy Cheung
FH&P Lawyers are pleased to report that our lawyers Clay Williams and Wendy Cheung successfully represented landowners in the British Columbia Supreme Court in an action to recover a portion of their land that had been taken over and used by a neighbouring campground. A link to the recent case, Martindale vs. Burko and McKibbon, can be found here: https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc2/2023bcsc2.html?resultIndex=1.
The Martindales owned land north of Johnson Creek in Mara, British Columbia. Mr. Burko and Ms. McKibbin owned land south of Johnson Creek, on which they operated the Whispering Pines campground and RV park. The plans of both parcels were prepared by a surveyor in 1911. The plans showed Johnson Creek, represented by a sinuously curving line, as the boundary separating the parcels. In present day, the creek is in a location north of where the creek was depicted in the plans. The campground operated right up to the present location of the creek.
The owners of the campground argued that the surveyor inaccurately depicted the location of the creek on the 1911 plans. Mr. Williams and Ms. Cheung, for the Martindales, successfully argued that the surveyor correctly located the creek on the plans, but that the creek had since moved in a sudden event called an avulsion at some point during the last century and probably in the 1940s. The legal effect of the sudden movement of the creek meant that the water boundary became fixed in its location set out on the 1911 plans. As such, the campground was operating on land owned by the Martindales.
This case considered the application of the surveyors’ hierarchy of evidence, ranging from the most to least reliable. The hierarchy is used by surveyors to determine the location of property boundaries, and is accepted by courts as a ranking of the best evidence with which to locate physically a disputed boundary. The hierarchy is:
In this case, the fundamental question was whether the creek has moved and direct evidence of the past and present location of the creek, including photographs, historic documentation and the recollections of residents is afforded primacy over historic surveying measurements found on the plans and original deeds.
To prove their case, the Martindales offered the evidence of a long-time resident of the Mara area, who had worked for the former owners of both the north and south parcels, as well as expert evidence of a fluvial geomorphologist and spatial analyst specializing in interpretation of aerial photographs. Of interest, two historic aerial photographs, from 1928 and 1969, were interpreted to persuade the court to find that there was some indication that the creek changed its course from where it was drawn on the plans to its present course between 1928 and 1969. The court also noted that a 1989 plan from a neighbouring property to the west of the south parcel noted presence of a historic fence close to a property originally associated with the creek as some evidence as to where the creek originally ran.
The owners of the campground relied on an opinion of the surveyor general, which determined that the creek has always been where it currently is. However, the court found that the opinion ought to be given little weight, because the surveyor general’s reasoning was incomplete and there was important evidence that was not known to the surveyor general. The campground owners also argued that the surveyor who prepared the historical plans did not properly traverse the creek and that the surveyor did not close the block of property by measuring all the way around the perimeter – a technique used by surveyors to guard against blunders and errors of measurement.
Burko/McKibbin relied on the expert opinion of their own surveyor, Brian Minifie, who said: “It should be noted that [the] plans … lack fundamental information found on typical survey plans of similar vintage, namely: the date of creation/registration at Land Titles, a title block outlining the parcel of land being dealt with, the type of plan … as well as signatures of owners/witnesses.” The court indicated that while these were all good reasons to be cautious of the early 1900’s plans, there was a key point that supported that the placement of the creek on those plans were accurate: the point where the creek intersects with the western boundary of the parcels was close but not identical with the location depicted in the original survey done in 1897 to establish the townships and quarter sections. Given the minor difference, this suggested that the location indicated in the plans was not copied from the prior survey but was independently ascertained.
After five days of trial, the Honorable Justice Gomery declared the boundary between the north and south parcel to lie along the line where it was once depicted in the historical plans, confirming that the creek had indeed moved by a sudden avulsive event to its current location. As such, the Martindales will be able to recover that portion of their property to the south of the creek that is currently being used as a campground. The issue of damages will be determined at a later date.
This case also received media coverage from Castanet, which can be found here: Judge rules in curious case of the moving creek between Mara neighbours - Salmon Arm News - Castanet.net
Clay Williams is a partner at FH&P and has considerable experience in business law and disputes.
Wendy Cheung is a litigation strategist and mediator.
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