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Simon Shields, LLB

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Simon Shields, LLB

Line Fences (Ontario) Law
(10 August 2015)

Chapter 8 - Trespass

  1. Trespass and Line Fences
  2. Line Fences Act (LFA) Allowed Trespass
  3. The LFA and Trees Falling Onto Line Fences
  4. Civil Tort of Trespass


1. Trespass and Line Fences

Where "line" fences become involved with tort law, it is usually in trespass - or more specifically - the civil tort of trespass to property. Of course this gets a bit circular because if there is a legitimate trespass issue involving a line fence, then it is probably not a line fence at all, but a trespassing fence. As is discussed below, it is not within the authority of fence-viewers to resolve disputed boundaries.

For instance, if a fence is built not on the property line - but actually strays onto a neighbouring property (and does so without any other legal justification) then the neighbour may both sue for damages in trespass, and/or seek a court order removing the fence. A court order prohibiting a trespass effectively "criminalizes" it, for such orders may be enforced in civil courts by contempt of court proceedings.

Such actions may be further complicated if the owner of the "trespassing" fence alleges that the presence of the fence has been unchallenged for sufficiently long that they can now claim an ownership in the disputed land under the principle of "adverse possession". I do not discuss the law of adverse possession here.

Similarly, the situation where a tree overhangs or falls onto neighbouring property is a civil trespass problem. However, if the tree falls and damages a line fence, the LFA becomes involved (see below).

"Self-help" - ie. tearing the fence down or sawing the tree limb off - as a remedy to fence trespass may be available but is risky in terms of counter-liability and I will not discuss it here.

While the Ontario Trespass to Property Act deals with related issues, it is primarily involved with ("quasi-criminal") prosecution for direct trespass by a person, and the posting of trespass notices to warn persons away from lands. As such it has limited application to line fence trespass situations.

2. Line Fences Act (LFA) Allowed Trespass

Of course, the LFA does implicitly authorize some "trespass", at least to the extent of allowing the erection and maintenance of a line fence:
An owner of land may construct and maintain a fence to mark the boundary between the owner's land and adjoining lands.
Further, where land conditions make it difficult to run line fence exactly along the property line, the LFA permits authorized diversions from that line, even into neighbouring lands:
Where, from the formation of the ground by reason of streams or other causes, it is, in the opinion of the fence-viewers, impracticable to locate the fence upon the line between the lands of the adjoining owners, they may locate it either wholly or partly on the land of either of the adjoining owners where it seems to be most convenient, but such location shall not in any way affect the title to the land.
When doing this, the fence-viewers may engage a surveyor to "have the location of the fence described by metes and bounds." [s.8(5)] The surveyor's fees may be added to the fence-viewer's expenses that we will be charged to the parties involved [s.8(6)].

The mention about "not in any way affect the title to the land" prevents the law of "adverse possession" from being used to claim a title interest in any lands enclosed by a diverted line fence.

There is also a limited right of trespass onto neighbouring lands related to removing trees that have fallen onto line fences (see s.3 below).

It is essential to recognize however that fence-viewers have no authority to resolve disputed issues of boundaries or adverse possession: Re Griffin v. Catfish Creek Conservation Authority (Ont County Ct, 1968). In reaching this decision, the court in Griffin quoted an earlier case on the same point, Delamatter v Brown (1908), 13 OWR 58 (pp.64-5), which appears to be sound law today:
I do not find here any power given the fence-viewers, in case of a dispute as to the true position on the ground, either themselves to determine the line or to have it determined by a surveyor. What they are to do is to take the line; if there is no dispute; and the position of the line is known, determine whether the fence is to be built on the line, or, if there are special circumstances, off it; if the latter, a land surveyor may be employed by them to describe by metes and bounds the locality which they have described or laid out or determined on the ground. But, if there is a dispute as to the position of the line, they cannot determine the line; it may be that it is plain that, no matter where the line may be, the fence should not be built upon it by reason of the special circumstances mentioned in sec. 7(3), and then the fence-viewers may perhaps proceed to locate the proper line for the fence, and have that described by metes and bounds by a surveyor. Even in cases in which a surveyor is employed, it is to be noticed that the true line is not determined at all, and the title is kept intact.
The reference in Delamatter to surveyors refers to those unusual cases countenanced by s.8(4) of the LFA where the condition of the ground bars erection of a fence exactly on the boundary line, and a surveyor must be engaged to map out the variation required by the fence-viewers.

3. The LFA and Trees Falling Onto Line Fences

When a tree falls onto a line fence, s. 22 of the LFA places a duty on a owner or occupant of the land where the tree is located to remove the tree and repair the line fence [s.22(1)].

If, after 24 hours written notice to comply with the duty under s.22(1), nothing is done, the neighbouring owner may:
.... may remove it in the most convenient and inexpensive manner, and may make good the fence so damaged, and may retain the tree to remunerate the adjoining land-owner for such removal.[s.22(2)]
In removing the tree, "the owner of the tree may enter into and upon the adjoining land doing no unnecessary spoil or waste" [s.22(4)]. Any unnecessary or malicious harm done in such an entry would invite counter-trespass claims and perhaps even prosecution.

The costs of fence repair by the neighbouring land owner may be recovered through LFA procedures [s.22(3)]. Disputes over such fallen trees may be resolved by fence-viwer arbitration [s.22(5)].

4. Civil Tort of Trespass

The law of civil trespass is quite extensive, and can easily become complicated by issues of implied permission or "licence". Broadly however, civil trespass provides civil remedies (damages or injunction) for physical encroachment onto another's real estate. In an charming fiction, property interests are generally considered to extend in a line drawn from the centre of the earth, through the property line on the ground, and out into space indefinitely. Usually this formulation catches overhanging trees - though I doubt it's effectiveness against satellites in orbit.

Recall as well from above that quasi-criminal prosecutions for trespass are directed primarily at trespass by an actual person. This discussion relates to other forms of trespass such as fence encroachments and overhanging trees.

An interesting case of trespass by way of cattle occured in Acker v Kerr (Ont County Court, 1974). There the landowner plaintiff (P) sued their neighbour landowner defendant (D) for trespass by way of D's cattle straying onto P's property, the cattle having damaged some of P's crops. D defended in part alleging that P had failed to keep the line fence in repair and thus contributed to the trespass. There was an earlier line fence award between the parties predecessors in title. The court found that both areas of fence were in some disrepair and that cattle probably strayed over fences which were the responsibility of both owners. Regardless, the court held that any default by the parties in maintaining the fence was irrelevant for purposes of the case, and held for P on the basis that the common law of trespass governed, it being the primary duty of the keeper of the animals to ensure that they did not stray. While the court cited as a legal trespass principle that any default by P's default contributing to a trespass might act as a defence, it also found that that respective fault for the fence disrepair between the parties was irrelevant. Part of the reason for this may be that the court found that prior line fence awards between predecessors in title were not binding on the present parties.

Damages may be available as a remedy for trespass, although a simple transitory trespass which involves no serious harm to the property owner may be compensated only with symbolic damages - and courts can take out any disapproval they have towards trivial proceedings against plaintiffs in negative cost awards if they are annoyed by a wasting of the court's time. Otherwise a damages claim should be based on serious and/or prolonged trespass or grounded in clear and quantifiable damages, provable before the court. Only very serious trespass claims will be compensated for with punitive damage awards.

There is no automatic entitlement to an injunction (court order prohibiting trespass) on simple proof of trespass, as injunctions are generally subjected to a weighing of harm and balance of convenience test by the courts. However injunctions are much more readily granted when land title interests are being infringed. In particular, an encroaching fence that has persisted enchallenged for a long time would be a stronger case for injunction as otherwise it may give rise to "adverse possession" property claim. That topic is not discussed in detail here.

Issues such as noise or other interference with use of property (short of direct physical encroachment) are the subject of public and private nuisance law, which also is not covered here.
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