|This is an unofficial archived version of The Special Survey Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. S190
The Special Survey Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Attorney-General, upon the request of any municipality where the land to be affected is situated in the municipality, or if he thinks proper in any case without the request, and whether the land to be affected is in an organized municipality or not, may direct a special survey to be made of any land in the province, for the purpose
(a) of correcting any error or supposed error in respect of any existing survey or plan; or
(b) of plotting land not before subdivided; or
(c) of showing the divisions of lands of which the divisions are not shown on any plan of subdivision; or
(d) of fixing the location or width of any roads or highways; or
(e) of establishing any boundary lines the positions of which, owing to the obliteration of the original monuments defining them on the ground have become doubtful or difficult of being ascertained;
and upon every such special survey may have a plan prepared showing it, which special survey and plan may be made on the principle of a blockoutline survey or a completed survey either in whole or in part.
The special survey and plan shall be made under the guidance of, and instructions from, the Registrar-General; and when the plan is completed it shall be filed, together with the field notes of the surveyor who prepared the plan, with the Registrar-General, to be laid before the Lieutenant Governor in Council for approval.
The Attorney-General shall
(a) cause to be published, at the expense of the applicant, in the Manitoba Gazette and, if the Attorney-General thinks it proper to so direct, in any other newspaper or publication, a notice for the information of all interested parties stating that the plan is to be submitted for the approval of the Lieutenant Governor in Council and also setting forth the object of the special survey, and a day, hour, place, fixed for the hearing by the Attorney-General of any complaints that may be made against the special survey or plan by any person interested in the property thereby affected; and
(b) send or cause to be sent a copy of the plan of special survey to the office of the local government authority in which the lands referred to in the plan of special survey are located.
The Attorney-General may appoint the Municipal Board to hear complaints under this Act, and for that purpose the Municipal Board has the same powers as the Attorney-General.
Any person desiring to complain against the special survey or plan shall deliver or cause to be delivered to the Attorney-General by mail or otherwise, at any time prior to the day named in the advertisement for hearing the complaints, a written statement setting forth the nature and grounds of his complaints.
Where the Attorney-General receives a written statement as mentioned under section 5, the Attorney-General shall remit the matter to the Municipal Board for a hearing.
The hearing of the complaints may be adjourned from time to time by the Attorney-General or by the Municipal Board acting on behalf of the Attorney-General; and an adjournment may be made at any time whether any of the parties interested are present or not.
The Municipal Board may, on the hearing, receive any evidence that it thinks proper to admit and may examine on oath any parties interested and such witnesses as appear before it, and administer the oath.
Any party interested may, on an order from the Attorney-General, obtain and issue out of the Court of Queen's Bench, upon praecipe, a subpoena commanding the attendance for examination of any witness, and the production by that witness of any document or plan at the time and place mentioned in the subpoena; and the disobedience of any such subpoena shall be deemed a contempt of court, and is punishable in the same manner, and to the like extent, as in the case of a subpoena issued out of the court in a civil cause.
The same fees are payable for the subpoena as in cases of subpoenas issued out of the Court of Queen's Bench in civil cases, and the witnesses are entitled to the like conduct money.
Upon the completion of the hearing of a complaint the Municipal Board may dispose of the complaint in such manner as is deemed just and equitable under the circumstances and in particular it may, by order, uphold or vary the plan of the special survey in such manner as it decides.
The Municipal Board shall give written notice of its order made under subsection (1) by registered mail to any person who is or appears to be affected by the plan of special survey, and shall, thereafter, submit the order and the plan of special survey to the Lieutenant Governor in Council for approval.
At any time after the date named in the advertisement provided for by section 3, and without any further notice to any of the parties interested, the Lieutenant Governor in Council may approve the special survey and plan or any part thereof, and may declare the survey or plan, or such portion thereof as he approves, to be the true and correct survey and plan of the land thereby affected, and may declare that all boundaries and lines fixed by the survey and plan, or part thereof so approved, are the true boundaries and lines, whether of roads, streets, lanes, rivers, or creeks, (when the rivers or creeks are defined on the plan by measurements or lines in such a manner as to be capable of absolute reproduction on the ground), or as between adjoining owners or between adjoining lots, and whether or not the boundaries and lines were in fact, before the approval, the true boundaries and lines; and, if the special survey and plan is a completed survey and plan, he may further declare that the plan or part thereof approved be substituted for all, or corresponding portions of all, former plans or surveys of the land affected that have been theretofore registered.
A notice of each order in council approving a plan of special survey shall be published in The Manitoba Gazette and in a local newspaper; and the order in council takes effect at the expiration of 30 days from the date of the publication, unless appealed from, and if appealed from, then on the registration of a certified copy of the final judgment given on appeal; and the notice, when so published, is conclusive evidence of the order in council, and of the regularity of all proceedings leading up to the passage of the order in council, and of the approval of the survey and plan: and except in so far as the order in council may be set aside or varied under this Act, the order in council shall not be set aside on any ground whatever, and the survey and plan shall be thenceforth held to be approved and are final and binding upon all parties whatsoever.
Any person affected by an order of the Municipal Board made under section 11 may, within 30 days from the date of the order appeal the order to the Court of Queen's Bench.
Notwithstanding subsection (1), a judge of the Court of Queen's Bench may, upon application therefor made before or after the expiration of the time for filing an appeal, extend the time within which an appeal may be made under that subsection.
Upon the filing of a notice of appeal under subsection (1) or within such extended period of time as may be granted under subsection (2), the appellant shall apply to a judge of the Court of Queen's Bench to fix a date for the hearing of the appeal.
Not less than seven clear days prior to the date fixed for the hearing of the appeal, the appellant shall by personal service or certified mail serve upon the Registrar-General, the Municipal Board and every person who has or appears to have an interest in the land affected by the special survey, a copy of the notice of appeal together with a copy of the notice of the date fixed for the hearing of the appeal.
The hearing of an appeal in the Court of Queen's Bench shall be a trial de novo and upon completion of the hearing the court may
(a) dismiss the appeal; or
(b) order that the special survey and plan be varied in such manner as the court directs; or
(c) order that any parcel of land vest in such person as the circumstances of the case may require; and
(d) order the payment of such costs or compensation as to the court considers just and reasonable.
Where the Court of Queen's Bench orders a variation of the plan of the special survey, the variation shall be submitted for the approval of the Lieutenant Governor in Council.
Upon approval of the varied plan of special survey under subsection 14(6), the Municipal Board shall file a certified copy thereof together with a certified copy of the order of the Court of Queen's Bench with the Registrar-General.
As soon as an order in council under this Act has come into force by the expiration of 30 days from the publication in The Manitoba Gazette of notice of the passage thereof under this Act without an appeal being taken, a certified copy of the order in council, together with the plan of special survey, shall be registered in the proper land titles office; and the registration and all necessary entries shall be made without the payment of any fees; and upon the registration taking place, the plan of special survey becomes the official plan of that portion of the municipality thereby affected, and is binding on all owners, corporations, and persons.
Upon or after the registration of the plan of any special survey under this Act, the Municipal Board shall ascertain and fix the costs of and incidental to the survey and plan and the confirmation and registration thereof, and the collection of the costs and the amount of interest that may accrue on the costs prior to the payment of them in the manner hereinafter set forth; and it may apportion and charge the whole of the costs and interest against the lands included in the survey in such proportions and sums as it deems most equitable, having regard to all the circumstances of the case.
Any sum so charged against any lands is a lien against the lands having preference over any claim, lien, privilege, or encumbrance, of any party except the Crown and the municipality in which the lands are situated.
The Municipal Board shall prepare or cause to be prepared a statement signed by the Municipal Board setting out the proportionate amounts that it has fixed under subsection 17(1) and charged against each parcel of land included in the survey.
The Municipal board shall forward the statement under section 18 to the assessment commissioner, assessor, or clerk, of the municipality in which the lands therein described are situated, or if the lands are situated in unorganized territory, to the resident administrator of the local government district in which the lands therein described are situated.
Unless the Minister of Municipal Affairs makes a direction to the contrary under subsection (3), the assessment commissioner, assessor, or clerk, of the municipality or the resident administrator of the local government district, upon receiving the statement, shall enter the amount or amounts therein contained against the respective lands thereby affected in the tax roll to be prepared next after the forwarding of the statement.
Where the Minister of Municipal Affairs is of the opinion that the amount or amounts charged will be unduly burdensome if collected in one year, he may direct that the amount or amounts be collected over two or more years; and in that case only so much as he directs shall be entered against the lands in any one year.
Where the Minister of Municipal Affairs makes a direction under subsection (3), he shall add an additional amount to cover the interest that will accrue prior to the payment of the full amount due.
The tax collector, treasurer, or resident administrator, as the case may be, of the municipality or local government district shall thereafter collect the amount or amounts along with the ordinary taxes owing upon the lands, and shall, at least once a year, pay the amount or amounts so collected to the Minister of Finance, subject to a deduction of 5% to defray the cost of collection, and shall pay the amounts so deducted for cost of collection to the municipality or local government district.
In default of payment any amount or amounts so charged against the lands shall be collected in the same manner, and shall be treated in all respects, as ordinary taxes due on the lands.
The tax collector, treasurer, or resident administrator, as the case may be, shall be the agent of the Minister of Finance for the collection, and the municipality or local government district is not liable to the Minister of Finance for any amounts so collected by the tax collector, treasurer, or resident administrator, and that he fails to pay over to the Minister of Finance as aforesaid; but the tax collector, treasurer, or resident administrator, is liable to the Registrar-General for the amount thereof.
The costs of and incidental to any such survey and to the confirmation thereof and the registration of the plan thereof shall, in the first instance, be paid out of the Consolidated Fund.