Hackett v. Colchester South

*April 24. THE MUNICIPAL CORPORATION OF

THE TOWNSHIP OF COLCHESTER

RESPONDENT. SOUTH (PLAINTIFF)

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ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO

J.-I have come to the conclusion that this appeal must be dismissed. The land, the possession of which is in dispute, is part of a tract granted to the respondent municipality by Crown grant, dated the 12th of January, 1869. The habendum is in these words,

The appellant's case is that he is in possession of this piece of land from which his predecessors dispossessed the respondent municipality more than ten years before the action was brought, during which period, he, or his predecessors in interest, have been in possession, and that the title of the municipality is consequently extinguished by virtue of the Statute of Limitations. I have been very much impressed by the force of the reasons given by Mr. Justice Hodgins (1) in support of his suggestion that the lands which were the subject of the grant to the municipality were thereby dedicated to a public use, a dedication which was accepted by the public (of this acceptance there is abundant evidence) and that this dedication gave rise to rights of enjoyment by the public, closely analogous to the rights of the public in respect of a public highway, and that such rights are not, nor is a title such as that of the municipality, given for the purpose of supporting and protecting them, capable of being nullified, in consequence of adverse possession, by the provisions of the Statute of Limitations upon which the appellant founds his case. I think there is a great deal to be said for that view. And I venture to add this to what Mr. Justice Hodgins has said in support of it.

The appellant can only succeed upon the hypothesis that the municipality has lost its title. If that be so, it follows that, as concerns the piece of land in question, the object of the trust has necessarily failed. It would seem, again, to follow, on ordinary principles, that a resulting trust has arisen in favour of the Crown.

The equity of the Crown, of which the appellant had notice, it might be forcibly argued on the authority of In re Nisbet and Potts' Contract (1), is not affected by the Statute of Limitations, because, insun dependently of the exceptional position of the Crown, the appellant cannot maintain the position of a purchaser for Dufj. value without notice. And, once more, it would follow, if this be so, that only the bare legal title is extinguished, and whatever possession the appellant may have, is held by him subject to the equitable estate of the Crown. It is difficult to think of so impotent a conclusion as one contemplated by the statute.

Mr. Denison suggests that all property given for charitable purposes is really trust property, and that the title of the property so held is not exempt from the Statute of Limitations. As to this, it should be noticed that here we are only concerned with property which is granted by the Crown to a public body subject to an express trust to permit the public to enjoy in it rights of physical user, as in a highway.

I do not think, however, that it is strictly necessary to express a decided opinion on this point. The Appellate Division (2) has held that, having regard, inter alia, to the fact that the land was the property of the municipality, and in the same enclosure and held under the same title as an adjoining area from which the municipality was never dispossessed, the appellant has failed satisfactorily to establish dispossession from the piece in dispute. There is no doubt that, as to the critical years 1915 and 1916, the evidence is vague, and in some respects quite unsatisfactory. On the whole, I am not convinced that the Appellate Division has taken an erroneous view.

The appeal should be dismissed with costs.

Appeal dismissed with costs.