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HomeMy WebLinkAboutWD-32-81 TOWN OF NEWCASTLE PUBLIC WORKS DEPARTMENT Director's Report to Public Works Committee of February 17, 1981. ITEM: WD-32-81. DATE: February 12, 1981. SUBJECT: Lots 30 & 31, Concession 9, Darlington. BACKGROUND: On January 20, 1_981, the Public Works Committee, by Resolution ll W-7-81, adopted Report No. WD-12-81, as follows: "THAT the Aecommendation in Report WV-12-81 be endwoed cued; I. Upon acga bs L�i.on o(j B y-Lcuo 198, dated MaAch 3, 1866, the same be )Leg.i6.teAed and the neee.5,scucy Deed be pAep(uced conveying the Ae.tevcu,t-t poALtjon 06 the Aoad a,UON) nce and, 6wutheA, that any a5,socictted co,5ts be boAne by the Aploticant. 2. Whehe" By-Law 198 may not be on Aecmd, then conment,s 6Aom the Town SoZi.c i-toA be obtained P,tioA to a new b y-2cao being utbmitted to Council 60A consideAc tcon. " REPORT: I As it was found that By-Law 198 was not on record, the Solicitor was requested to comment on this matter, and his letter is attached hereto. It is noted thrit the Solicitor indicates that the Town should p ass j the appropriate by-law rescinding By-Law 198 (making note that the latter was never registered on Title) and that Part 2 of Plan IOR-1222 should be recognized as a Hydro Easement, as indicated on Instrument No. 20346. RECOMMENDATION: i THAT a by-law be prepared, and submitted for Council consideration, regarding the closure and conveyance of the road allowance between Lots 30 & 31, Concession 9, former Township of Darlington, more clearly defined on Plan IOR-1222 and, further, that the property owner pay any costs involved in respect of the acquisition of a 8uk�vey, and lepc description, in accordance with Town Policy. P' I Sims Mort®n McInerney & Brady D.J.D. S I M s, Q,C, R.P. MORTON 13ARRISTERS & SOLICITORS M.C. McINFRNLY .I.F. BRADY W.M. BURCH February 5th, 1981 . The Corporation of the Town of Newcastle, Office of the Town Clerk, 40 Temperance Street, BOWMANVILLE, Ontario. LlC 3A6 CLE:;*,'; :L)`;'__PARTMENT Attention: Mrs . Gertrude E . Gray, Deputy Clerk , Committee Secretary Dear Sirs : RE : Part of Lots 30 and 31, Concession 9 , Part of Road Allowance between Lots 30 and 31, Concession 9 , former Township of Darlington -- Report WD-12-81 Our File No . 4269/81 We acknowledge receipt of your letter dated January 28th, 1981 with respect to the road allowance between Lots 30 and 31, Concession 9, Township of Darlington. We have reviewed the title to this property and wish to advise as follows : 1 . By-law 198 apparently is a by-law that was dated March 3rd, 1866 which was to close up the road allowance between Lots 30 and 31, Concession 9 and convey the closed up road allowance to the abutting owners . You will note on the enclosed copy of 10R-1222 that By-law 198 is mentioned but the by-law was never registered on title . 2 . We, have enclosed a portion of Plan R.D. 65 which again states that this road 'allowance was closed by by-law 198 which by-law was dated March 3rd, 1866 . 3 . Enclosed herewith please find the first page and the back page of instrument No. 47773 and ou will note the the Corporation of the Township of y Darlington received a conveyance from George R. Moore for part 4 on R.D . 65 and Part 4 is part of the closed road allowance between Lots 30 and 31 . It appears that since the Township requested this conveyance from Moore in Instrument Number 47773 that the Township thought title to this portion was in the name of 117 K I NG STREET, WHITBY, ONTARIO L I N 4Z I BOX: 358 TELEPHONE: 6687704 s - 2 - I, I the Grantor. 4 . The closing of this road allowance by by-law 198 has been referred to in legal documents since 1886 when By--law 198 was recited in Deed No. 874 . From the above it would appear that the owners of this property since 1866 have claimed legal title to the road allowance notwithstanding the appropriate by-law was never registered on title . We feel that the present registered owner could obtain legal title to this closed road allowance under a vendor' s and purchaser ' s motion through adverse possession being a period in time from 1866 to the present. Rather than have a vendor ' s and purchaser ' s motion we would suggest the following: 1 . The Town will agree to pass the appropriate by-law closing the road allowance which by-law would recite the previous by-law No . 198 and mention that the by-law was never registered on title . This by-law of course would authorize the conveyance of the closed road allowance to the abutting owners . 2 . The Town will convey the closed road allowance to the abutting owners without compensation provided that the present owners of the property pays for the appropriate legal description allowing the town to convey the closed road allowance . It should also be mentioned that in preparing this legal description it may be necessary to describe part 2 on Plan 1OR-1222 in a different manner . You will note that part 2 refers to the hydro easement contained in Instrument No . 20346 . I It is our opinion that this road allowance should have been j properly closed out years ago and this is why we are recommending that if the owner of the property pays for the survey then the Town should not charge for advertising expenses and legal fees . We trust you find the above and the enclosures contained I herein satisfactory and we look forward to hearing from you in this regard. Y urs very t.ru\l�', MICHAEL C .�McTNERNEY mcm:bjc Encls . fJo:,.L ru R M A A�t`�r,1�`jIN, `�• �'I 194-KING STREET EAST ri4-54'r,'-5 ar TELEPHONES - OFFICE 72E3-p232 FF 77�� RES. - 725-3405 OSHA` A I ONTARIO L1H IA9 January 12th, 1981 The Corporation of the Town of Newcastle , Public Works Department, HAMPTON, Ontario . LOB 1JO Re : MacKay/Brock Sale to Keast et al Part of Lots 30 and 31 , Concession 9 , and Part of Road Allowance between Lots 30 & 31, Concession 9 , formerly Darlington, now Newcastle Attention Mr . Dunham, Director Dear Sir : Following a phone call from Mr . Mingay of Markham this morning , solicitor for the purchaser, Keast, the writer at once phoned your office but was advised that the application, previously fixed for hearing today, would not proceed today probably by reason of your not having received to date the photostatic copy of Reference Plan No . 1OR-1222 , forwarded with our letter of January 8th last. Shortly after that information had been received your secretary phoned the writer advising that our letter of January 8th, with the above registered plan enclosed, had cc)me to hand. I As previously advised the writer acts for the vendors , Eldon MacKay and wife , and his father-in-law, Eric Brock , in selling the above property to Keast et al, who are represented in this transaction by Mingay and Associates , Barristers and Solicitors , 81 Main Street, North, Markham . The following is Requisition No . 1 appearing in the Requisitions upon title of Mingay and Associates in its letter dated November 19th, 1980 : - 111 . Insta.:ument 5020 is a deed dated December 14th, 1885 , and registered February 5th, 1886 , from the executors of George McCullough to John Stark . The property which is conveyed by this deed is described as being the North Half of Lot No . 31 , in the 9th Concession, and part of Lot No. 30 , and part of the original road allowance between Lots 30 and 31 . - 2 - Although a copy of a subsequent reference plan indicates that this road allowance was closed by By-law No. 198 , dated March 3rd, 1866 , our search of title fails to reveal a conveyance of this land to George McCulloch . REQUII;ED: Production and registration on or before closing Of a copy of By--law 198 , closing the said road allowance , together with a deed from. the Corporation of the Township of Darlington , conveying that part of the road allowance which has been closed to George McCulloch, and a copy of a By-law authorizing this conveyance . " The problem appears to be that though the road allowance between Lots 30 and 31 , shown near the East limit of the lands described in the survey as having been closed by By-law No . 198 nearly 100 years ago, the said lands therein had never been conveyed by the Municipality 6f the Township of Darlington to the owners of the lands , or to the owners of the adjoining lands at that time . You will note in the said requisition No . 1 reference is made to a Deed dated December 14th , 1885 , and registered February 5th, 1386 , as No . 5020 , from the executors of George McCulloch to John Stark . That Deed is said to be a Deed of the North parts of Lots 30 and 31 , Concession 9 , Township of Darlington. From that fact it would appear that upon the said portion of the road allowance between Lots 30 and 31 having been closed by By-law No. 198 , the lands comxrising the said road allowance should have been conveyed to the executors of the estate of the said George McCulloch , or to John Stark, or the westerly half of the said road allowance should have been conveyed to the adjoining property owner, and the Easterly half of the said road allowance should have been conveyed to the owner of the Easterly half of the said road allowance . Furt-7er, that conveyance has never been made to date , and the said closed road allowance has been , at least since 1886 , used as part of the farm premises of the successors in interest of the said John Stark to the present time, and the records will show that the present owners and present vendors are Eldon MacKay, Karen MacKay and Eric Brock, all of the Town of Newcastle in the Regional Municipality of Durham, formerly of the Township of Darlington, in the County of Durham. i i We might further advise that Eric Brock is presently the registered owner of an undivided one-third interest in the said lands , Eldon MacKay is presently the registered owner of an undivided one-third interest in the said lands , and the said Eldon MacKay together ;,Iith his wife , Karen MacKay, are the joint regis- tered owners of the remaining undivided one-third interest in the said lands . We might add that in the pending conveyance the three above-named parties or vendors are showing their respective interests as in the immediately preceding paragraph . The writer might add that when speaking to one of your secretaries this morning she advised us that the disposition of the application- of Mingay and Associates for the purchasers , 3 submitted by the writer to Mr . Guiler under date of November 25th, 1980 , shall come up for hearing before the Public Works Committee (of the Corporation of the Town of Newcastle) at 9 : 30 A.M. on Tuesday, January 20th, in the Bell Building opposite the Town Hall in the Town of Bowmanville . The writer proposes to attend upon that application and he is most desirous that Mr . Mingay for the purchasers, shall be satisfied that in purchasing the subject property , his clients shall obtain good title of all lands to which title shall be received upon closing the trans- action . Thanking you and the officers of the Municipality of the Corporation of the Town of Newcastle for any assistance you may be able to give in this matter, I remain, Yours sincerely, JPM:mg 1 DELIVERED January 13th, 1981 i I it i CORPORATION OF THE TOWN OF NEWCASTLE OFFICE OF THE TOWN CLERK 40 TEMPERANCE STREET TELEPHONE 623-3379 }= BOWMANVILLE, ONTARIO r, '4 L1C 3A6 January 28, 1981 Mr. David J.D.Sims, Q.C. Sims Morton McInerney & Brady Barristers and Solicitors 117 King Street Box 358 Whitby, Ontario Dear Sir;- Re; Part of Lots 30 and 31, Concession 9 Part of Road Allowance between Lots 30 and 31, Concession 9 former Township of Darlington The recommendation in report WD--12-81, attached, was endorsed by Council on January 26, 1981. It would appear that By-law 198 of the Township of Darlington is not on record. Could we have your comments please. Yours very truly, Gertrude E. Cray � Deputy Clerk/Committee Secretary i 99 C.C. Mr. J. Mangan, Q.C. _ 10 King Street East Oshawa, Ontario UH 1A9 t ' i i i