Hyperlawhypertext legal database The Attorney General of Canada v. The Canadian Pacific Railway Company and Canadian Nation [1958] SCR 285

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The Attorney General of Canada v. The Canadian Pacific Railway Company and Canadian Nation

[1958] SCR 285 Court SCC Decision date 1958-01-28 English

Contents
Section of the Railway Act is not ultra vires, in or in part, and its effect is that, with the exception there stated, no railway to which the Act applies acquires title to mines and minerals in any land acquired by it, either by purchase or by compulsory taking under the Act, unless the mines and minerals are expressly purchased by and conveyed to it, notwithstanding the provisions of provincial legislation to the effect that a conveyance of land shall be deemed to include mines and minerals.
Per Kerwin CJ. and
Taschereau,
Rand, Kellock, Cartwright and Fauteux JJ.: Parliament is clearly competent to provide for the acquisition of land by a railway, and to limit by conditions the effect of acquisition, and it must also be able to provide reasonable means for ensuring that limitation.
The question in such a case is not primarily how far Parliament can trench on s. 92 of the British North America Act, but to what extent property and civil rights are within *PRESENT: Kerwin CJ. and Taschereau, Rand, Kellock, Locke, Cartwright, Fauteux, Abbott and Nolan JJ.
**Nolan J. died before the delivery of judgment.
[19581 the scope of the paramount power of Parliament.
Tennant v. The *-- Union Bank of Canada, [18941 A.C. 31, referred to. The section clearly binds the Canadian Pacific Railway Company, but its application to the Canadian National Railways is subject to different considerations, because of the varying statutory provisions applicable at different times to the railways now included in that system. All that can be said, in the circumstances of this appeal, is that in the case of such constituent companies as were subject to the Railway Act when they acquired land, between 1904 and 1919, and as between the railway company and the grantor of lands, the minerals did not pass to. the grantee railway.
Per Locke and Abbott JJ.: The effect of ss. 197 to 201 inclusive of the Railway Act is to ensure that when a railway is carried over lands that contain mines or minerals there is adequate protection for the interest of the owner of the minerals, the travelling public, and the railway company. They are clearly legislation in relation to railways, and therefore within the competence of Parliament, under head 29 of s. 91 of the British North America Act. This being so, the fact that part of s. 198, limiting the manner in which railway companies to which the Act applies may acquire mines and minerals, conflicts with provincial legislation is of no moment.
The whole subject-matter is removed from provincial competence.
Proprietary Articles Trade Association et al. v. Attorney- General for Canada et al., [19311 A.C. 310; Tennant v. The Union Bank of Canada, supra; Grand Trunk Railway Company of Canada v. Attorney-General of Canada, [19071 A.C. 65; Attorney-General for Canada v. Attorney-General for Quebec, (19471 A.C. 33, applied. The Manitoba statutes referred to are unquestionably within provincial powers, but they do not apply to transfers or conveyances made since a. 198 came into force in 1904 to railways that are subject to the Railway Act. That section accordingly applies to and governs the title to all lands acquired since 1904 by the Canadian Pacific Railway Company. Although at the time of its incorporation that company was subject to the Consolidated Railway Act, 1879, which contained no provision corresponding to s. 198, it is, by force of a. 20(b) of the Interpretation Act, subject to the Railway Act as it is in force from time to time. Northern Counties Investment Trust Ltd. v. Canadian Pacific Railway Company (1907), B.C.R. 130, approved. The section also applies in respect of lands acquired between 1904 and June 6, 1919 (when the Canadian National Railway Company came into existence) by the Canadian Northern Railway Company, the two companies formerly operating in Manitoba that were amalgamated into it, and the Grand Trunk Railway Company. There is not sufficient material before the Court to enable it to deal with the matter as it affects lands acquired since 1919 by the Canadian National Railway Company or the other companies now included in the definition of "Canadian National Railways" in a 2(b) of the Canadian National Railways Act, R.S.C. 1952, c. 40.
APPEAL from a judgment of the Court of Appeal for Manitoba, on a reference by the Lieutenant-Governor in Council. Appeal allowed.
1(1956), 17 W.W.R. 415, 73 C.R.T.C. 254, 2 D.L.R. (2d) 93 (sub nom. Reference re Validity of Section 198 of the Railway Act).
The following questions, were asked and were answered as follows by the Court of Appeal:

1. Is Section 198 of the Railway Act ultra vires of the Parliament of Canada either in whole or in part, and if in part, in what particular or particulars and to what extent? ANSWER: Section 198(1) and (2) is ultra vires of the Parliament of Canada except insofar as it prohibits a railway company from expropriating mines and minerals by compulsory proceedings.

2. When title to land without exception of mines and minerals is or was acquired by one of said railway companies without any proceedings being commenced under the compulsory powers given by the Railway Act but as a result of agreement made with the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of land, does such railway company own such mines and minerals when that title is or was acquired

(a) pursuant to said The Real Property Act, or
(b) deed to which said The Law of Property Act applies? ANswER: No. 2(a): Yes.
No. 2(b): Yes.

3. When title to land without exception of mines and minerals is or was acquired by one of said railway companies by purchase after commencement but before completion of proceedings under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of the land, does such railway company own such mines and minerals when that title is or was acquired

(a) pursuant to said The Real Property Act, or
(b) by deed to which said The Law of Property Act applies?
No. 3(a): Yes.
No. 3(b): Yes.

4. When title to or ownership of land without exception of mines and minerals is or has been taken by one of said railway companies under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the conveyance of the land, does such railway company own such mines and minerals when that title or ownership is or was acquired

(a) under said The Real Property Act, or
(b) by virtue of the registration of a vesting order or other authorized evidence of the company acquiring ownership under The Registry Act, Revised Statutes of Manitoba, 1954, Chapter 223 or the Registry Act for the said Province heretofore from time to time in force within the Province?
No. 4(a): Yes.
No. 4(b): Yes.
A. E. Hoskin, Q.C., and D. H. W. Henry, Q.C., for the appellant.
C. F. H. Carson, Q.C., Allan Findlay, Q.C., and H. M. Pickard, for the respondent Canadian Pacific Railway Company.
R. D. Guy, Q.C., and E. B. MacDonald, for the respondent Canadian National Railways.
John A. MacAulay, Q.C., A. A. Moffat, Q.C., and R. K. Williams, for Imperial Oil Limited, intervenant.
J. J. McKenna, for the Attorney-General for Ontario, intervenant.
J.:-The first and the substantial question of law raised by this reference is whether s. 198 of the Railway Act, R.S.C. 1952, c. 234, is in whole or part ultra vires. The section is as follows:
It appears within a fasciculus beginning with s. 192 C.R. under the heading First enacted as s. 132(2) of the Railway Act, 1903, c. 58, J. which came into force on February 1, 1904, it was continued in R.S.C. 1906, c. 37, as s. 170, in the Railway Act, 1919, c. 68, as s. 195, and in R.S.C. 1927, c. 170, as s. 195. The original language has undergone minor changes but in the syntax of the section only. The clause "unless the same have been expressly purchased" was in 1906 transferred from the end of the first sentence (as in the old s. 132) to its present position, and in the 1952 revision the word "is" was substituted for "shall" in the first line and the word "be" in the second line was elided. These changes do not seem to me to be significant and in the interpretation of the present section they may be disregarded.
The section distinguishes between lands "purchased" and lands "taken". In this its text is consistent with the words as used elsewhere in the Act; for example, s. 164(1) (c) clothes the company with power to "purchase, take and hold" lands; s. 202 speaks of land "that may be taken without the consent of the owner"; and ss. 207 and 218 exemplify the same distinction. Section 216 expressly contemplates the purchase by agreement of lands which the plan, profile and book of reference deposited in the office of the registrar of deeds and other publication give notice will be required for the purpose of the railway and it is only in case of disagreement between the parties that the compulsory proceedings are to be resorted to. The same procedure is envisaged by s. 236; and s. 213 provides for the case of purchase before the -plans, etc., are deposited or before the lands required are set out or ascertained. What s. 198 is designed to do is to prevent the acquisition of minerals unless they are expressly made the subject of agreement with the owner. Among other possible or likely purposes this seems intended to protect the interest of the owner: the minerals are to remain his unless -they are made the subject of an express term in the agreement. "Purchase" would include every acquisition of land which the company could, if necessary, take by compulsory measures; that would embrace acquisition following the filing of plans, or under s. 213; but beyond these the form o oand purpose of acquisition might be of such variety and call for so many assumptions affecting private rights that, for the reasons expressed hereafter, no opinion should be ventured.
Is s. 198, then, so interpreted, beyond the authority of Parliament? Reading together the sections dealing with lands, the capacity given to the company to acquire them and the power of expropriating them, it is not seriously arguable-nor was it argued-that the prohibition against taking the minerals is ultra vires: what it represents is simply the curtailment of an extraordinary power itself created by Parliament which, being its creator, can modify it to whatever extent or in whatever manner may be considered advisable.
But it is contended that in providing in effect, as it is claimed subs. (2) does, for the interpretation of a provincial instrument of title, Parliament has stepped beyond its legislative boundary. It has, it is said, prescribed the terms of a conveyance which passes property under provincial law and that specifically subs. (2)
conflicts with the statutory law of the Province embodied in The Real Property Act, R.S.M. 1954, c. 220, and The Law of Property Act, R.S.M. 1954, c. 138.
That Parliament, competent to provide for the acquisition of land for a railway and to limit by conditions the extent of acquisition, cannot also provide the reasonable means for ensuring that limitation, would, in the particular circumstances, expose the substantive power to virtual nullification. Powers in relation to matters normally within the provincial field, especially of property and civil rights, are inseparable from a number of the specific heads of s. 91 of the British North America Act under which scarcely a step could be taken that did not involve them. In each such case the question is primarily not how far Parliament can trench on s. 92 but rather to what extent property and civil rights are within the scope of the paramount power of Parliament. Tennant v. The Union Bank of Canada', in which a provision under the Bank Act for taking security for loans made by a bank in disregard of provincial forms of security and registration was upheld, is a characteristic example. Here the steps to be taken for expropriation, the payment of money into court with an authentic copy of the award or the conveyance, or an agreement under s. 213, each of which is declared by s. 236(2) to constitute the title of the company to the lands, are all within the field of railway legislation; and subs. (2) of s. 198 is simply a means for making effective the condition prescribed.
The law of Parliament declaring such a title is as much a law in force in the Province as an enactment of the Legislature. If the company avails itself of the local law of land titles and presents its conveyance or document of title to the registrar or other officer, the latter is chargeable with notice of the applicable law including, in the case of a conveyance to a Dominion railway, that provided by subs. (2). If that instrument does not expressly convey minerals, a certificate of title issuing on it should except them. If this entry were omitted by the registration officer and the minerals were subsequently sold by the company to an innocent purchaser, it might be that the original owner would be bound by that error in the certificate; that is a question to be decided when it arises; but so long as the minerals remain in the apparent ownership of the railway company, and assuming that they were not expressly purchased, the certificate remains subject to correction at the instance of the vendor or his transferee:
as between these parties the statute is conclusive, subject to any right of reformation of the conveyance that may exist, or in the event of sale, to any trust that may arise. That the Canadian Pacific Company, if the section is valid, is bound by it, is conceded; but the situation of the Canadian National Railways is somewhat different. Chapter 13 of the statutes of Canada, 1919, provided for the incorporation of Canadian National Railway Company, and by s. 13 the provisions of the Expropriation Act, now R.S.C. 1952, c. 106, relating to the taking and using of lands were, for the purposes of the company's undertaking, made applicable to the company, The latter was created to embody the ultimate amalgamation of all lines within the National system and the undertaking of the company would therefore depend upon either the absorption by amalgamation of existing lines or the construction by it of new lines. Section 13 in its original form remained in force o. c until 1929, c. 10, s. 2, when, in an amendment of s. 17which it had then become-the words "the taking and using of lands" were omitted. At the same time the company was authorized by subs. (3) of s. 17 to acquire lands required for any of the companies comprised in the National system, a schedule of which had been annexed to the original enactment. In 1955 the Act was revised as c. 29 and the sections dealing with the acquisition of lands were rearranged and modified. By s. 16 all of the provisions of the Railway Act were made applicable except certain named sections, including ss. 192 to 195 and 202 to 205, but omitting ss. 198, 199, 200 and 201, all having to do with minerals, and excepting
Following this, by s. 17 the Expropriation Act was made to apply mutatis mutandis "subject as follows". What follows are four paragraphs, (a) authorizing the Minister of Transport to sign plans under the Expropriation Act and dispensing with the deposit of any description; (b) a declaration that upon the deposit of the plan the title vests in the company for such estate or interest as may be indicated on the plan; and (c) and (d) dealing with compensation.
Prior to 1929 each constituent company of the National system was subject to the Railway Act generally. Amalgamations proceeded somewhat slowly commencing with that between the National Company and the Grand Trunk Railway Company in 1923 and, so far, ending with that of the National Company, the Canadian Northern Railway Company and the Grand Trunk Pacific Railway Company in 1956.
The original s. 13 was before the Judicial Committee in Boland v. Canadian National Railway Company', at p. 205 of which Lord Dunedin remarked on its "very involved method of expression", and the distinction was pointed out between the function of the Expropriation Act in giving power to take lands and in furnishing machinery for taking them. As s. 17 it was again considered in Bell Telephone Company of Canada v. Canadian National Railway'. At p. 577 Lord Macmillan, referring to the comment in Boland, adds that the amended form "cannot be said to present -a more happily inspired example of legislation".
A second proposition advanced by Mr. Guy can be dealt with shortly. Under the charters of many of the constituent companies in the National system power to acquire land for the purposes of the undertaking is conferred. His argument is that by virtue of s. 3 of the Railway
Act, by para. (b), of which it is provided that the charter power is unaffected by the limitation of s. 198.
With this I am unable to agree. The power given under the special Act goes to the capacity generally of the company to acquire and hold land; it does not embrace the taking of land without the owner's consent. Purchases in the course of construction are carried out under a code of sections in the general Act and are within the application of the special Act in no other sense than that of capacity.
That code contains the element of coercion, in the background of which the purchases are made. To resort to or to take the benefit of the code and that element is action outside of the charter power. The authority under the special Act is admittedly subject to the provisions of the general Act which require plans to be submitted, approved and filed and to those dealing with compensation; but these, on Mr. Guy's contention, would, strictly speaking, seem to "relate to the same subject-matter" and to be restrictions of the charter power. Section 198 does not affect the capacity or the right of the company to acquire minerals, but it does prevent their acquisition directly or indirectly by compulsory action, including purchases that do not carry the express consent of the owner.
These provisions, in short, serve to regulate the exercise of the charter capacity as the company moves to construct its ATrry. GEN. railway under the powers, procedures and limitations of CANADAth oV ^ the general Act.
The application of ss. 198 to 201 to the National com- Rand J. pany is thus seen to involve questions of the time of purchase, of special legislative enactments and of amalgamations of constituent companies, apart from the interpretation of the Canadian National Railways Act itself. In these circumstances, by answering questions 2, 3 and 4 we would be expressing an opinion that might seriously affect private rights in the absence of those claiming them, a step which would be contrary to the fundamental conception of due process, the application of which to opinions of this nature has long been recognized.
In Attorney-General for Canada v. Attorneys-General for Ontario, Quebec, and Nova Scotia', the Judicial Committee spoke of it in these words:
Their Lordships must decline to answer the last question submitted as to the rights of riparian proprietors. These proprietors are not parties to this litigation or represented before their Lordships, and accordingly their Lordships do not think it proper when determining the respective rights and jurisdictions of the Dominion and Provincial Legislatures to express an opinion upon the extent of the rights possessed by riparian proprietors. In Attorney-General for Ontario v. Hamilton Street Railway Company et al. 2 :
With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons.
They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case is not before it.
In Attorney-General for Ontario et al. v. Attorney-General for Canada et al. 3 (a reference in which the power of 1[18981 A.C. 700 at 717.
2 (1903] A.C. 524 at 529, 7 C:C.C. 326. 8119121 A.C. 571 at 588-9, 3 D.L.R. 509.
Parliament and Legislature to put questions in this form was in issue):
ArrY. If the questions to the Courts had been limited to such as are in practice put to the Judicial Committee (e.g., must justices of the peace and judges be resworn after a demise of the Crown?) no one would ever have C.N.R. thought of saying it was ultra vires. It is now suggested because the power Rand J. conferred by the Canadian Act, which is not and could not be wider in its terms than that of William IV., applicable to the Judicial Committee, has resulted in asking questions affecting the provinces, or alleged to do so. But the answers are only advisory and will have no more effect than the opinions of the law officers. Perhaps another reason is that the Act has resulted in asking a series of searching questions very difficult to answer exhaustively and accurately without so many qualifications and reservations as to make the answers of little value. The Supreme Court itself can, however, either point out in its answer these or other considerations of a like kind, or can make the necessary representations to the Governor-General in Council when it thinks right so to treat any question that may be put. And the Parliament of Canada can control the action of the Executive.
In Attorney-General for British Columbia v. Attorney- General for Canada':
The business of the Supreme Court of Canada is to do what is laid down as its duty by the Dominion Parliament, and the duty of the Judicial Committee, although not bound by any Canadian statute, is to give to it as a Court of review such assistance as is within its power. Nevertheless, under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied. It has therefore happened that in cases of the present class their Lordships have occasionally found themselves unable to answer all the questions put to them, and have found it advisable to limit and guard their replies. It will be seen that this is so to some extent in the present appeal. And in Attorney-General for Ontario et al. v. Attorney- General for Canada 2 :
But, for reasons several times assigned in earlier judgments of the Judicial Committee, they feel the paramount importance of abstaining as far as possible from deciding questions such as those now stated until they come up in actual litigation about concrete disputes rather than on references of abstract propositions.
In Reference re Waters and Water-Powers, Duff J. (as he then was) reviewed the matter generally to the same effect.
1[19141 A.C. 153 at 162, 15 DLR. 308, 5 W.W.R. 878.
2 [1916] 1 A.C. 598 at 602, 26 D.L.R. 293, 10 W.W.R. 410.
[19291 S.C.R. 200 at 226-8, [19291 2 D.L.R. 481.
19s8
I would, therefore, allow the appeal and answer the GEN. questions as follows:
Question 1: No.
Question 2: Assuming that the question means when Rand J. title to land on the face of the instrument conveying it is without exception of mines and minerals, and that there was no express agreement to purchase them, in the case of the Canadian Pacific Railway Company, subsequent to 1904, and in the case of such constituent companies of the National Railways as were at the time of the acquisition of the land subject to the Railway Act, between 1904 and 1919, and as between the railway company and the grantor of lands, the minerals did not pass to the grantee railway; in other cases of the Canadian National Railways, for the reasons given I abstain from answering.
Question 3: The same answer as to question 2.
Question 4: The same answer as to question 2.
KELLOCK J.*:-I agree with Rand J.
LocKE J.:-This is an appeal taken pursuant to the provisions of s. 37 of the Supreme Court Act, R.S.C. 1952, c. 259, from the opinion pronounced by the Court of Appeal of Manitobax on four questions referred to that Court by the Lieutenant-Governor in council.
The first of these reads:
Is section 198 of the Railway Act ultra vires of the Parliament of Canada either in whole or in part, and if in part, in what particular or particulars and to what extent?
Section 198 of the Railway Act, R.S.C. 1952, c. 23, reads: 198. (1) The company is not, unless the same have been expressly purchased, entitled to any mines, ores, metals, coal, slate, mineral oils, gas or other minerals in or under any lands purchased by it, or taken by it under any compulsory powers given it by this Act, except only such parts thereof as are necessary to be dug, carried away or used in the construction of the works.
(2) All such mines and minerals, except as aforesaid, shall be deemed to be excepted from the conveyance of such lands, unless they have been expressly named therein and conveyed thereby.
1 (1956), 17 W.W.R. 415, 73 C.R.T.C. 254, 2 D.L.R. (2d) 93 (sub nom. Reference re Validity of Section 198 of the Railway Act).
* Mr. Justice Kellock resigned his office as of January 15, 1958. His opinion was delivered in writing pursuant to s. 27 of the Supreme Court Act.
This question was answered as follows:
The Court further expressed the opinion that the section did not apply to land contracts and transactions by the respondent railway companies.
The order in council referring the questions to the Court of Appeal recited, inter alia, that each of the railway companies has from time to time acquired land by agreement with owners of land without any proceedings being commenced under the compulsory powers given by the Railway Act, by purchase after commencement of proceedings under the compulsory powers and before the completion of such proceedings, and also under the compulsory powers given by the Railway Act, and that each of them holds title to certain lands to which the provisions of The Real Property Act, R.S.M. 1954, c. 220, and The Law of Property Act, R.S.M. 1954, c. 138, apply, and that questions have arisen concerning the title to the mines and minerals underlying such lands.
It was apparently the fact that it was considered that there was a conflict between s. 198 and certain sections of the two statutes mentioned that led to the reference as to the first question.
The Real Property Act of Manitoba was first enacted in the year 1885 and introduced the Torrens system into Manitoba. While large areas of land in the Province have been brought under the Act, there are still considerable areas where the root of the title continues to be the original letters patent granted by the Crown in the right of Canada.
Section 2(e) of The Real Property Act defines land as including all estates or interests in land whether legal or equitable, and all mines, minerals and quarries, unless specially excepted.
Sections 63 and 67, to which reference will hereafter be made, declare the absolute and indefeasible nature of the titles evidenced by certificates of title issued under the Act, with defined exceptions.
Section 91 reads:
Where the root of title to land continues to be letters patent issued prior to February 20, 1914, the provisions of The Registry Act, R.S.M. 1954, c. 223, apply, and conveyances are made by deed. The system of registration provided by this Act is known as "the Old System". Land is defined in this statute in the same terms as in The Real Property Act.
Section 4 of The Law of Property Act provides that no words of limitation shall be necesary in any conveyance of land in order to convey all or any title therein; but every grant, deed or instrument conveying land shall operate as an absolute conveyance of all such rights and title as the grantor has at the time of its execution, unless a contrary intention is expressed in the conveyance. Title to lands acquired by purchase by the railway companies has apparently been taken in both manners: transfers under The Real Property Act and deeds of Old System lands to which the two last-mentioned statutes apply.
Section 198 first appeared in the Railway Act as subs. (2) of s. 132 of c. 58 of the statutes of 1903 in substantially its present form and affects lands acquired after the date that statute came into force on February 1, 1904. Its origin appears to have been s. 77 of the Railway Clauses Consolidation Act, 1845 (Imp.), c. 20. The section appears with a group of sections commencing with s. 192 under a subheading
These follow a series of sections, commencing with s. 163, which are grouped under the heading which deal generally with the powers which may be exercised by the company in acquiring the necessary lands for the construction, maintenance and operation of the railway, define the manner in which plans of the proposed railway are to be approved and declare the duty of registrars of deeds to receive and record such plans.
Section 203 and the following sections define the extent of lands that may be taken for the right-of-way and other purposes without the owner's consent, the manner in which oc"" leave may be obtained from the Board of Transport Commissioners to take more ample space than may be taken under s. 202, and the procedure for taking materials necessary for use in construction. The manner in which expropriations are to be carried on is defined in s. 218 and following sections.
Section 92 of the British North America Act, which defines the exclusive powers of provincial Legislatures, includes under head 10 local works and undertakings other than such as are of the enumerated classes, which include lines of railways connecting the Province with any other or others of the Provinces or extending beyond the limits of the Provinces. In relation to such railways, Parliament has the exclusive legislative authority under head 29 of s. 91. The only question to be determined in answering the first question is as to whether s. 198 is legislation falling within this category.
No dispute arises as to the power of Parliament to prohibit a railway company of the class mentioned to expropriate mines and minerals, except such as are necessary to be dug, carried away or used in the construction of the work. The exception made in the answer given by the Court of Appeal refers to the prohibition against expropriating mines and minerals as if it were absolute, but this is not entirely accurate. There is, however, no controversy in these proceedings as to this.
The real basis of the attack on the remaining provisions of s. 198 is that as both a transfer of land, the title to which is under The Real Property Act, and a deed of Old System lands, to which s. 4 of The Law of Property Act applies, convey the entire interest of the transferor or grantor unless a contrary intention is expressed in the instrument, to provide, as does s. 198, that, "unless the same have been expressly purchased" and unless they are expressly named in the conveyance, the railway is not entitled to any mines or minerals in or under any land purchased by it is to trespass upon the exclusive provincial power under s. 92 to make laws in relation to property and civil rights in the Province.
In the the learned Ary. GEN. Chief Justice of Manitoba, with which the other members oV
CANADA of the Court concurred, after referring to the decisions of the Judicial Committee in Canadian Pacific Railway Company v. The Parish of Notre Dame de Bonsecours, LoukJ- Bank of Toronto v. Lambe , The Citizens Insurance Company of Canada v. Parsons*, John Deere Plow Company, Limited v. Wharton , and Great West Saddlery Company, Limited v. The King', the following passage appearse: These cases hold and make it clear (1) that the land laws of the Province, i.e., The Real Property Act, supra, and The Law of Property Act, supra, are intra vires; (2) that companies incorporated by the Dominion Government are subject to valid provincial laws of general application, such as laws imposing taxes, relating to mortmain, and as to the forms of contracts, so long as such Jaws do not derogate from the status of such companies and their consequent capacities or as a result of their restriction prevent such companies from exercising the powers conferred on them by the Dominion Government.
I am unable, with great respect, to agree with this statement of the law. I think no question arises as to whether the provisions of The Real Property Act and The Law of Property Act to which reference has been made are within provincial powers. In my opinion, they unquestionably are, but they do not apply to transfers or conveyances of property to railway companies of the classes in question which are referred to in s. 198 since that section came into force. The matter appears to be stated as if to hold that the Dominion legislation is intra vires, as I think it is, is to say that the provincial legislation is ultra vires. Both are, in my opinion, valid laws in force in Manitoba and have been since they were enacted.
In Toronto Corporation v. Canadian Pacific Railway Company', Lord Collins, delivering the judgment of the Judicial Committee, said in part:
The jurisdiction conferred over property and civil rights in the province is quite consistent with a jurisdiction specially reserved to the Dominion in respect of a subject-matter not within the jurisdiction of the province.
1[18991 A.C. 367.
2 (1887), 12 App. Cas. 575, 4 Cart. 7.
(1881), 7 App. Cas. 96, 1 Cart. 265.
[19151 A.C. 330, 18 D.LR. 353, 7 W.WR. 706.
5 2 A.C. 91, 58 DL.R. 1, [19211 1 W.W.R. 1034.
W.W.R. at p. 425.
7 [19081 A.C. 54 at 59, 7 C.R.C. 282.
In Proprietary Articles Trade Association et al. v.
Attorney-General for Canada et al., Lord Atkin pointed out at p. 316 that any matter coming within any of the o cADA particular classes of subjects enumerated in s. 91 as partic- CYRular instances of the general powers assigned to the
Dominion is not to be deemed to come within the classes of matters assigned to the provincial Legislatures. It had been said many times before but, in that case, it was again mentioned that most of the specific subjects in s. 91 do affect property and civil rights but, so far as the legislation of Parliament in pith and substance is operating within the enumerated powers, there is constitutional authority to interfere with such rights (p. 327).
The jurisdiction of Parliament in relation to railways such as the respondent companies is not less extensive than it is in relation to a telephone company such as the Bell
Telephone Company of Canada, with telephone lines connecting various Provinces. The legislation granting powers to that company was considered in The City of Toronto v.
Bell Telephone Company of Canada. Lord Macnaghten, at p. 57, referring to the fact that s. 91 confers on Parliament exclusive legislative authority over all classes of subjects expressly excepted by head 10(a) of s. 92, such as railways, telegraphs and other works and undertakings connecting the Province with any other or others of the
Provinces, said that it would seem to follow that the Bell
Telephone Company acquired from 'the Legislature of
Canada all that was necessary to enable it to carry on its business in every Province of the Dominion and that no provincial Legislature was or is competent to interfere with its operations as authorized by 'the Parliament of Canada.
It is said in the passage above quoted from the judgment of the Chief Justice of Manitoba that companies incorporated by the Dominion Government are subject to provincial laws of general application, such as those relating to mortmain. This was decided in the case of trading and certain other companies in The Chaudibre Gold Mining
Company of Boston v. Desbarats et al. , the company concerned in that matter being a foreign corporation but the statement apparently applying to both foreign and domestic corporations. In the judgment of Viscount Haldane in Great West Saddlery Company, Limited v. The o
King, supra, at p. 100, it is said that when a company has been incorporated with powers to trade in any Province it may be subject to provincial laws of general application, J. such as laws imposing taxes or relating to mortmain. No one would dispute the fact that the railway companies in question are subject to municipal taxes levied under the powers vested in the Province by head 2 of s. 92 except where such right has been taken away, as in the case of the Canadian Pacific Railway, in respect of part of its operations under the section of the contract between the railway and the Dominion Government, considered by this Court in Canadian Pacific Railway Company v. The Attorney General for Saskatchewan'. I think, however, no one would contend that any provincial statute of mortmain would apply to lands purchased or taken by such a railway for the purposes of its undertaking in the Province under the powers conferred by its Act of incorporation or by the Railway Act. The reason, of course, is that the legislation authorizing the railway undertaking falling within the exclusive jurisdiction of Parliament, the provincial statute would have no application.
I do not think that the decision in Canadian Pacific Railway Company v. The Parish of Notre Dame de Bonsecours, above referred to, lends any support to the respondents' contention. In that case, Lord Watson, after pointing out that it was not a matter of dispute that, by virtue of the sections of the British North America Act that we are here considering, Parliament had the sole right of legislating with reference to the appellant's railway and that any attempt by the Legislature of Quebec to regulate by enactment, whether described as municipal or not. the structure of a ditch forming part of the appellant's authorized works would be ultra vires, said that the regulation under consideration was merely a piece of municipal legislation providing that in the event of the ditch becoming choked with silt or rubbish, so as to cause overflow and injury to other property in the parish, it should be cleaned out by the appellant company. In the same year, in Madden et al. v. Nelson and Fort Sheppard Railway 1re Company', the Judicial Committee decided that legislation of the Province of British Columbia requiring a Dominion railway company to fence its right-of-way was ultra vires. J. These decisions, other than their reaffirmation of the jurisdiction of Parliament, do not appear to decide anything which affects the present question.
In Bank of Toronto v. Lambe, supra, the validity of the legislation imposing taxation upon the bank was upheld on the ground that it fell within head 2 of s. 92, being direct taxation within the Province in order to the raising of a revenue for provincial purposes.
In The Citizens Insurance Company of Canada v. Parsons, supra, the principal question to be determined was as to the right of the Province of Ontario to prescribe statutory conditions in contracts of insurance issued within the Province. There was, however, a general discussion of the scope of head 13 of s. 92 and of head 2 of s. 91, and it was in the course of this discussion that the passage from the judgment at p. 110, quoted in the judgment of the Court of Appeal, appears. It was there said that the expression "property and civil rights" was sufficiently large to embrace, in its fair and ordinary meaning, rights arising from contract, and that such rights are not included in express terms in any of the enumerated classes of subjects in s. 91. This, however, does not mean that the Province may prescribe the form of contract or the obligations arising from contracts of corporations, such as banks or railway companies, or the rights of persons under bills of exchange. These are subject-matters in relation to which the exclusive jurisdiction to legislate is vested in Parliament. If the affirmative of the contrary proposition could be sustained, Tennant v. The Union Bank of Canada', Grand Trunk Railway Company of Canada v.
Attorney-General of Canada (the "contracting-out" case), and Attorney-General for Canada v. Attorney-General for
Quebec' (the "bank deposits" case) would have been otherwise decided. If it were true that as rights arising from contract are civil rights this was decisive in all cases, then many other sections of the Railway Act, such as s. 353 authorizing the Board of Transport Commissioners to o.
approve contracts limiting the carriers' liability, and ss. 370 and 380 giving special powers in respect of contracts of express and telegraph companies, would be ultra vires. The John beere Plow and Great West Saddlery cases, supra, may be considered together, both dealing with the right of provincial Legislatures to require companies incorporated under the Companies Act of Canada (which does not apply to companies for the construction or working of railways) to obtain a licence as a condition precedent to carrying on business. Other than certain passages in Viscount Haldane in these matters, in which general statements are made as to the powers of Provinces to tax such companies and to subject them to provincial laws of general application, the subject-matter appears to me to bear no similarity to the one we are discussing. In the passage from the judgment in the Great West Saddlery case, it was said that companies so incorporated may be subject to provincial laws as to the forms of contract. The companies referred to were not railway companies or banks. It cannot surely be said that this statement was intended to qualify what had been decided by the Judicial Committee in Tennant's case and the "contracting-out" case.
In my opinion, the cases relied upon do not support the contention that s. 198 is ultra vires either in whole or in part.
The sole matter to be determined is as to whether the true nature and character of the enactment is in relation to railways of the nature referred to in head 10 of s. 92. The effect of ss. 197 to 201, both inclusive, of the Railway Act is to ensure that when the railway is carried over lands which contain mines or minerals the interest of the owner of such minerals, the travelling public and the railway company are adequately protected. Section 197 provides that, without the authority of the Board of Transport Commissioners, the line may not be laid out in a manner calculated to obstruct or injuriously affect the operation of an existing mine. Section 198 defines the only manner in which a railway company may acquire title to the mines and minerals existing in lands either purchased or taken by compulsion under the power of expropriation given by the Act, except such as are necessary to be dug, carried away or used in the construction of the works. The company is C. permitted to acquire such mines and minerals only by treaty with the owner and by a conveyance which expressly names them, with the exception above noted. The section in effect limits the power and capacity of the company to acquire mines and minerals, with this exception, in any other manner.
If the removal of the minerals lying under the railway or within 40 yards therefrom, which the railway has not acquired by express purchase, is proposed, the owner may apply to the Board for leave to do so and the Board, under the powers given to it by s. 199, may prescribe the measures to be taken for the protection and safety of the public. Section 200, dealing with cases where the owner of the minerals retains them, gives the Board power to direct the railway company, inter alia, to pay to such owner compensation by reason of the severance by the railway of the lands lying over the mines or because working them is prevented or interrupted.
Where the railway company is apprehensive that the mine is being worked in a manner which may endanger the safety of the right-of-way, s. 201 enables the Board to direct that the premises may be examined by the railway company and use made of any apparatus in the mine to make such examination effective. These sections deal with the same subject-matter as ss. 77 to 85, both inclusive, of the Railway Clauses Consolidation Act, 1845 (Imp.), c. 20, though the manner in which the matter is dealt with is not identical. This is, in my opinion, clearly legislation in relation to railways and, that being so, the fact that the portion of s. 198 limiting the manner in which railway companies to which the Act applies may acquire mines and minerals, conflicts with the sections of The Real Property Act and The Law of Property Act above referred to, is of no moment. The whole subject-matter is removed from the provincial jurisdiction, as pointed out by Lord Atkin in the Proprietary Articles Trade Association case above referred to.
The true view of the matter is, in my opinion, that the sections of the provincial statutes referred to have no application to conveyances made to the railways. If it could be said that the effect of the portion of s. 198 which Ary. G. is attacked is not merely to limit the capacity of the railway company to acquire mines and minerals except in a defined manner, but is rather legislation dealing with the manner ' in which titles to land may be conveyed to a railway company within Manitoba and the construction to be placed upon conveyances in the statutory form prescribed by The Real Property Act or complying with The Law of Property Act, the legislation could not, in my opinion, be successfully attacked. In Tennant's case, supra, it was asserted by the appellant that as the warehouse receipts taken by the Union Bank did not comply with the Mercantile Amendment Act of Ontario, the security taken as authorized by the Bank Act was unenforceable. Lord Watson, delivering the judgment of the Judicial Committee, said in part (p. 45): In the "contracting-out" case, a provision of the Railway Act which prohibited a railway from contracting out from the liability to pay damages for personal injury to its servants, was attacked as being legislation as to civil rights within head 13 of s. 92. It had been held in this Court, and that view was sustained in the Judicial Committee, that this was truly railway legislation and that it was beyond provincial powers to interfere. The case is merely an illustration of the power of Parliament to regulate the contracts of the railway companies, as has been done in the other sections of the present Act which I have drawn attention to above.
In Attorney-General for Canada v. Attorney General for Quebec, the "bank deposits" case, to which I have referred, a statute of the Province of Quebec which declared that deposits of money and securities which have not been for 30 years or more the subject of any operation or claim by the persons entitled thereto are to be deemed vacant property and belonging to His Majesty in right of the Province, was held to be ultra vires. It was said in support oA of the legislation that it was simply one defining the obligation of the bank under its contract with its depositor and thus to be supported under head 13 as dealing with J. civil rights within the Province.
This argument, which bears a close resemblance to the argument advanced by the respondents in the present case, was rejected. Lord Porter, who delivered the judgment of the Judicial Committee, after referring to what had been said by Lord Watson in Tennant's case in the passage which I have referred to, said that the main object and effect of the Provincial Act was to invade the field of banking and it was, accordingly, ultra vires.
On the argument before us, counsel appearing for the Canadian Pacific Railway Company did not seek to support the finding of the Court of Appeal that s. 198 did not apply to the land contracts and transactions of that company and confined their argument to the issue as to whether the section was ultra vires.
The ground upon which the Court proceeded in making this finding may be stated briefly. Section 17 of the letters patent incorporating the company, which constituted the charter referred to in s. 2 of the Act (44 Vict., c. 1), and which was declared to have force and effect as if it were an Act of Parliament, provided that the Consolidated Railway Act, 1879, in so far' as the provisions of the same were applicable to the undertaking and not inconsistent with or contrary to its provisions, "is hereby incorporated herewith". Sections 7, 8 and 9 of the Consolidated Railway Act referred to, contained provisions for the purchase, use and expropriation of lands required for the right-of-way and other railway uses and for determining the compensation payable, but the Act did not contain any provisions similar to s. 198. Considering that the charter of the railway company was constituted by the letters patent, the special Act and the Railway Act of 1879, and that the subject of purchasing and taking lands for the undertaking had been dealt with as indicated, the learned Chief Justice and the other members of the Court considered that the section in the present Act was inapplicable.
In my opinion, the matter is decided adversely to this Ary.GEN. opinion by the provisions of s. 20(b) of the Interpretation CAND
Acc.s ason o Act, R.S.C. 1952, c. 158, which, so far as it need be considered, reads:
O.N.R.

20. Whenever any Act or amendment is repealed, and other provisions Locke J.

are substituted by way of amendment, revision or consolidation,... any reference in any unrepealed Act . . to such repealed Act or enactment, shall, as regards any subsequent transaction, matter or thing, be held and construed to be a reference to the provisions of the substituted Act or enactment relating to the same subjectmatter as such repealed Act or enactment; and, if there is no provision in the substituted Act or enactment relating to the same subject-matter, the repealed Act or enactment shall stand good, and be read and construed as unrepealed in so far, and in so far only, as is necessary to support, maintain or give effect to such unrepealed Act . . .
It is the Railway Act of Canada as it is in force from time to time that applies to the undertaking of the Canadian Pacific Railway Company. The exact point was considered by the full court of British Columbia in Northern Counties Investment Trust Ltd. v. Canadian Pacific Railway Company', and correctly decided, in my opinion. I refer to the judgment of Clement J. with whom Hunter C.J. agreed. Counsel for the Canadian National Railways, however, supported the opinion of the Court of Appeal which, in the case of that railway, was based upon the ground that s. 16 of the Canadian National Railways Act, as it now appears as R.S.C. 1952, c. 40, excludes such provisions of the Railway Act as are inconsistent with that Act and such as are inconsistent with the provisions of the Expropriation Act, that lands expropriated by the railway are taken under the provisions of the Expropriation Act and that the latter Act contains no such restriction as is imposed by s. 198 of the Railway Act. It was pointed out that s. 3 of the Railway Act also provides that where its provisions and any special Act passed by Parliament relate to the same subject-matter, the provisions of the special Act, so far as it is necessary to give effect to it, shall govern.
The order in council referring the four questions to the Court of Appeal states that:
...
Canadian Pacific Railway Company and Canadian National Railways (including "National Railways" as defined in the Canadian National Railways Capital Revision Act, R.SC. 1952, Chap. 311) are undertakings which as railway companies are within the legislative authority of the Parliament of Canada;
1(1907), B.C.R. 130.
and that each of the said companies has from time to time acquired lands in the various manners heretofore mentioned. Whether by the expression "Canadian National Railways" the order in council intended to adopt the meaning assigned to that expression in s. 2(b) of the Act, as it appears in R.S.C. 1952, c. 40, is not made clear. If it was so intended, it includes not merely the Canadian National
Railway Company which first was brought into existence by c. 13 of the statutes of 1919, but all companies mentioned or referred to in the schedule of the Act of 1952 and in the Act of incorporation. If this is the meaning intended, there is, in my opinion, no material before us to enable us to deal with the matter as it affects lands acquired since
June 6, 1919, a situation, no doubt, attributable to the fact that the question as to the application of s. 198 to the two railway companies was not referred to the Court.
Counsel appearing on the argument before us have supplemented the information contained in the order in council by making available the Acts of incorporation of a large number of companies which have either been amalgamated with or whose operations are carried on or directed by the
Canadian National Railway Company. A schedule to the
Act of 1919 shows that there were 31 companies embraced in what was referred to as the Canadian Northern System and a number of other subsidiary companies and, in respect of these, it was provided by s. 11 that by order in council the management and operation of any of them might be entrusted to the Canadian National Railway Company or its properties vested in His Majesty.
We are concerned only with the companies operating in
Manitoba which became part of that system and these appear to be the Canadian Northern Railway Company and the Grand Trunk Pacific Railway Company. The inquiry cannot stop there as the Canadian Northern Railway Company which was incorporated by c. 57 of the statutes of
1899 was by s. I of its Act of incorporation vested with all the corporate powers, assets and property of the Winnipeg
Great Northern Railway Company and the Lake Manitoba
Railway and Canal Company. These latter two companies had been incorporated by Acts of Parliament whose terms must be considered if, as I think we should assume, the
Canadian Northern Railway Company is still in existence and entitled to exercise its corporate powers.
The Winnipeg Great Northern Railway Company, referred to in the schedule to the Act of incorporation of the Canadian Northern Railway Company, was incorporated by c. 59 of the statutes of Canada of 1880 under the name of "The Winnipeg and Hudson's Bay Railway and Steamship Company". By c. 81 of the statutes of 1887, its name was changed to "Winnipeg and Hudson Bay Railway Company" and its powers were further defined. By c. 94 of the statutes of 1894, the name was again changed to the "Winnipeg Great Northern Railway Company".
The Lake Manitoba Railway and Canal Company was incorporated by c. 41 of the statutes of Canada of 1892 and further powers, which need not be considered here, were vested in it by c. 52 of the statutes of 1895 and c. 70 of the statutes of 1898.
The Canadian Northern Railway Company, as declared by its statute of incorporation, is an "amalgamation" of these two companies. The Winnipeg Great Northern Railway Company was authorized by s. 3 of its Act, as amended in 1887, to build the railway authorized "under the provisions of 'The Railway Act' The reference in s. 2 of the Act of 1880 was to the provisions of "The Consolidated Railway Act, 1879". The only express mention of the acquisition of land was in ss. 6 and 22 of the 1887 Act. The former authorized the company to take gravel, stone and other material required for construction from public land and to appropriate for the use of the company a greater extent of land for stations, workshops and other buildings than the breadth and quantity mentioned in the Railway Act, upon certain conditions. The latter authorized the company to receive, in aid of the construction and maintenance of the railway, grants of land and authorized the purchase of lands.
The only power given expressely to the Lake Manitoba Railway and Canal Company to acquire lands is for the erection of elevators, warehouses, docks and piers and other works designed for the use of the steam and other vessels plying upon the lakes, rivers and canals in the territory which the railway was designed to serve. The proposed railway was declared to be a work for the general advantage of Canada and any powers of taking or purchasing lands were derived from the Railway Act.
The Grand Trunk Pacific Railway Company was incorporated by c. 122 of the statutes of 1903. Express power to purchase or otherwise acquire lands for docks, warehouses, offices and other buildings is to be found in s. 16 and, by subs. (2), ss. 107 to 111, inclusive, of the Railway Act were stated to apply to the subject-matter of the subsection. Otherwise, the power of the company to acquire and hold lands and to expropriate lands was to be found in the Railway Act, 1888, c. 29.
In my opinion, nothing to be found in the Acts incorporating the Winnipeg Great Northern Railway Company, the Lake Manitoba Railway and Canal Company, the Canadian Northern Railway Company or the Grand Trunk Pacific Railway Company, or in s. 3 of the Railway Act, excludes the application of that Act, as enacted from time to time, to the undertakings of those companies in so far as it relates to the subject-matter of s. 198. Section 20(b) of the Interpretation Act, in my opinion, declares this to be the law.
The Canadian National Railway Company was not in existence prior to June 6, 1919, and there is no evidence as to whether any of the lands acquired by the Grand Trunk Pacific Railway Company and the Canadian Northern Railway Company or by the amalgamated companies mentioned have been acquired by it. Different considerations apply to lands acquired by the Canadian National Railway Company by purchase or expropriation since, by s. 13 of its Act of incorporation, the provisions of the Railway Act as to the taking or using of lands were declared inapplicable and all of the provisions of the Expropriation Act, except where inconsistent with the Act of incorporation, were made to apply, mutatis mutandis, to the company and its undertakings. On the argument addressed to us on behalf of the Attorney General of Canada, it was conceded that between June 6, 1919, and June 14, 1929, when a change was made in what had been s. 13 of the Act of incorporation by s. 17 of c. 10 of the statutes of 1929, s. 198 did not apply to the Canadian National Railway Company.
In my opinion, we have not sufficient information to enable us to express any opinion upon the question as to whether s. 198 applies in respect of lands acquired by either ATY. GEN. the Canadian National Railway Company or any of the o c companies in the Canadian Northern Railway System since June 6, 1919.
In these circumstances, I feel that any opinion expressed Locke J. might be construed to the detriment of persons not represented before us. I, accordingly, refrain from expressing any opinion in respect to lands acquired after that date. Questions 2 and 3 may be conveniently considered together and read as follows:

2. When title to land without exception of mines and minerals is or was acquired by one of said railway companies without any proceedings being commenced under the compulsory powers given by the Railway Act but as a result of agreement made with the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of the land, does such railway company own such mines and minerals when that title is or was acquired

(a) pursuant to said The Real Property Act, or
(b) by deed to which said The Law of Property Act applies? 3. When title to land without exception of mines and minerals is or was acquired by one of said railway companies by purchase after commencement but before completion of proceedings under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such mines and minerals are or were not excepted or expressly named in the transfer or deed or conveyance of the land, does such railway company own such mines and minerals when that title is or was acquired
(a) pursuant to said The Real Property Act, or
(b) by deed to which said The Law of Property Act applies? While stated without limitation, the questions obviously refer to lands acquired on and after February 1, 1904, when s. 198 came into force.
Subject to the exception above noted of such mines or minerals as are "necessary to be dug, carried away or used in the construction of the works", the conveyances, whether by transfer or by deed, are, in my opinion, to be construed as excepting all such mines and minerals. I consider that the fact that the conveyance may be made after the commencement of expropriation proceedings does not affect the matter.
Question 4 reads:

4. When title to or ownership of land without exception of mines and minerals is or has been taken by one of said railway companies under the compulsory powers given by the Railway Act from the owner of such land who also owns or did own the mines and minerals therein and such The meaning of part of this question is not entirely clear. Where lands are expropriated under the Railway Act, while a conveyance may be given by the owner after the compensation is determined and the award of the arbitrators made, he is not required by the Act to give one and none is necessary. Section 236 of the Railway Act provides for payment of the compensation into court with an authentic copy of the award of the arbitrators and, if there is no conveyance, such award is deemed to be the title of the company to the land taken. If, after the award, the owner of the land taken gives a conveyance, the position, in my opinion, is no different from that referred to in the third question. Clause (b) of question 4 refers to title acquired by virtue of the registration of a vesting order. There is no provision in the Railway Act or in The Registry Act for making such an order. I, accordingly, assume that the vesting order referred to is one made professedly in exercise of the powers vested in the Court of Queen's Bench by s. 53 of The Queen's Bench Act, R.S.M. 1954, c. 52, after an award of the arbitrators appointed under the Railway Act has become effective, though I think that section to be inapplicable in such circumstances. It can, however, scarcely be suggested that the refusal of the former owner to execute a conveyance would enable a railway company to acquire minerals which it could not obtain by expropriation or by a voluntary conveyance under either the old or the new system.

I would allow the appeal and answer the four questions as follows:
Question 1: No.
Question 2: As to the Canadian Pacific Railway: No. As to the Canadian National Railway Company, as to the properties acquired by the Canadian Northern Railway Company and the two amalgamated companies and the

Cases cited

  • Tennant v. The Union Bank of Canada Tennant v. The Union Bank of Canada, supra
  • 17 W.W.R. 415 17 W.W.R. 415
  • 1 A.C. 598 1 A.C. 598 602
  • Real Property Act Real Property Act, supra
  • Law of Property Act Law of Property Act, supra
  • King King, supra, at p. 100 p. 100
  • Bank of Toronto v. Lambe Bank of Toronto v. Lambe, supra
  • Citizens Insurance Company of Canada v. Parsons Citizens Insurance Company of Canada v. Parsons, supra
  • John beere Plow and Great West Saddlery cases John beere Plow and Great West Saddlery cases, supra
  • Tennant's Tennant's case, supra

Statutes and regulations cited