In re Estate of J.W. Drummond, Deceased / Benn v. Hawthorne et al.

In 1888, 1889 and 1890, the Crown issued patents, some to the C.A.C. & C. Co., and some to the C.P.R. Co., for certain fractional sections of land in the North-West Territories (within what is now the province of Saskatchewan), which fractional sections then abutted on Rush Lake (held to be non-navigable).

The only survey at that time of lands in Rush Lake's vicinity was that of 1883, and was of land not covered by water. The patents made no reference to the survey nor to Rush Lake. The descriptions in the patents were all in form such as follows: " All that parcel or tract of land, situate * * * in the 17th township * * * and being composed of the whole (fractional) of section 12 of the said township, containing by admeasurement acres more or less."

The survey of 1883 shewed the edge of Rush Lake as a meandered line, and the area of each fractional section bordering on the lake was shown, on the map, on that fractional section. The rights of the C.A.C. & C. Co. to its lands were acquired under an agreement in 1887 (made pursuant to an Order in Council) in which the Dominion Government agreed to sell 50,000 acres, 5,000 acres at each of ten points, of which Rush Lake was one, at the price of $1.50 per acre and performance of certain cultivation conditions, which acreage the company selected and paid for. The rights of the C.P.R. Co. to its lands were acquired under agreement of October 21, 1880, appended to and ratified by c. 1 of 44 Vict. (Dom.). In 1903-4, the C.P.R. Co., for the purposes of straightening its railway line, made a drain to lower the waters, and the effect was to make bare a large extent of land formerly part of-the lake bed. In 1909 the respondents acquired title to the fractional sections in question (on the same descriptions of the lands as in the patents). In the present action they claimed, as being successors in title to the patentees and riparian owners, to be entitled to all the land in front of their fractional sections to the centre of Rush Lake, or, in any event, to the remainders of the whole sections respectively (which remainders had become dry owing to the recession of the waters).

*PRESENT:-Anglin CJ.C. and Duff, Rinfret, Lamont and Cannon JJ. Held: Respondents were not entitled to the land so claimed. Judgment of the Exchequer Court (Maclean J.), [1929] Ex. C.R. 144, reversed. Under English law, the presumptive rule for construing a conveyance as TH KiNa a grant ad medium fdum aquae is rebutted if an intention to exclude it is indicated in the language of the conveyance or is reasonably to be inferred from the subject matter or the surrounding circumstances. (Dwyer v. Rich, I.R. 6 CL. 144, at 149; City of London Tax Commrs. v. Central London Ry. Co., [1913] A.C. 364, at 372, and other cases cited). Likewise, assuming that said presumptive rule would otherwise apply in the Territories (North-West Territories Act, R.S.C., 1886, c. 50, s. 11; semble, the rule was not entirely excluded from the general body of English law as introduced into the region-per Duff and Rinfret JJ.; Lamont and Cannon JJ. inclining to the same view), and would apply there to such a body of water as Rush Lake, yet the rule would be excluded if the Dominion statute law applicable to the Territories satisfactorily disclosed an intention inconsistent with its application. And, per Anglin C.J.C., the Dominion statute law in force when the patents in question were issued indicated, as the proper inference therefrom, an intention to exclude the application of the rule to grants of Crown lands in the North-West Territories. (Lamont and Cannon JJ. were inclined to the same view, but based their decision on the interpretation, as stated below, of the patents and agreements from the Crown.

Duff and Rinfret JJ. held that where lands were acquired through the commoner transactions sanctioned by the Dominion Lands Act-homestead entry, preemption entry, sale at a given price per acre-the presumption must necessarily be excluded in order to give full effect to the intent of the statutory provisions.)

(Dominion Lands Acts, R.S.C., 1886, c. 54, particularly ss. 3, 8, 14, 29, 32, 129, 130, 131; 1879, c. 31, particularly as. 30, 34; Territories Real Property Act, R.S.C., 1886, c. referred to.) Also, the patents, and the agreements under which the lands were acquired from the Crown, and the circumstances of the purchase, (all as interpreted in the light of the statutory provisions), indicated, as the reasonable inference therefrom, that there was no intention that the ad medium filum rule should apply, but that the patents to the fractional sections now in question should be granted and accepted as covering only the acreage therein set out.

Duff and Rinfret JJ. further held that, even assuming that the presumption ad medium filum took effect and that, by force of the presumption, strips of the bed of the lake ex adverso passed to the grantees from the Crown, yet, on the subsidence of the lake in 1904, the land expressly described in each grant ceased to be riparian land, and, to a conveyance of this land to respondents under that express description, land not in contact with the lake, the presumption could not apply; no equitable right of respondents had been alleged or proved. (Anglin C.J.C. doubted whether the Crown should be allowed to set up the fact of the subsequent transfers in reference to the present claim; and was inclined to the opinion that, although respondents must succeed by the strength of their own title, they had an equitable, if not legal, right to everything granted by the Crown to their predecessors in title.)

APPEAL by the Crown from the judgment of Maclean J., President of the Exchequer Court of Canada (1), hold- (1) [1929] Ex. C.R. 144.

S.C.R.]