I would add that if Gomm's case applied in the present circumstances it would be necessary to consider the decision of the Court of Appeal in the case of Manchester Ship Canal conflict with it. The right of first refusal upon which the action was based in that case does not appear to differ from the right of an optionee who has the right to purchase, and the Court there held that such right was not an interest in land and rejected the argumet based upon Gomm's case. The latter case has, it is true, been followed.in a number of cases by single judges in England who, apparently, considered themselves bound by it, but I think this does not add to its weight.
As to the defendant company, as found by the learned trial judge, the option agreement obtained by it was entered into with full knowledge of the option theretofore granted to Harquail, and the principle followed in Lumley v. Wagner , applies.
The fact that the appellants obtained an interim injunction restraining the respondents from entering upon and working the claims and that the formal judgment at the trial, as above pointed out, read in part:
cannot conceivably, in my opinion, affect our decision in this matter. The option required the prospectors to transfer the claims as they were at the date of the option to the company to be formed if the option was exercised and, clearly, during the currency of the option the optionee would be entitled in an action on the covenant to restrain thel. respondents , from . drilling on or removing material from the claims. However, equally clearly the optionee was not entitled to enter upon the claims and to conduct drilling operations since the agreement gave to it no such right and this term should be stricken from the judgment. It is, however, the duty of this Court to decide this matter upon its own view of the law, and the answer to the important- question of law here to be decided cannot be to the nature of those rights or the nature of the relief granted at the trial.
The defence that the agreement was uncertain and that an action for specific performance does not lie fails, in my opinion. I agree with the learned trial judge and with the el majority of the learned judges of the Court of Appeal upon this aspect of the case.
The respondent company and Morrisroe and Meschi contend by way of cross-appeal that a new trial should have been granted in any event by reason of the refusal of the learned trial judge to permit the defendant Daigle to be cross-examined in respect of the issues as between the plaintiff and the company, on the ground that his interest as a defendant in the action was the same as that of the company. As to this, I agree with the view of the majority of the Court of Appeal that permission to cross-examine should not have been refused. I, however, also agree with them that, applying Rule 40 of the Court of Appeal Rules, a new trial should not be granted because no substantial wrong or miscarriage of justice was occasioned by the refusal to permit the cross-examination.
The application of the appellant for leave to amend its statement of claim to permit it to raise a claim for damages against the respondent company under regulation 124 above mentioned should, in my opinion, be refused. There is no evidence that the appellant suffered any damage by reason of the filing of the caveat and, without such proof, there can be no recovery under the regulation and the amendment would be of no advantage to the appellant. As to the claim advanced under that regulation by the respondents Oak and Amren, not only is there no proof of any damage to them by reason of the filing of the appellant's caveat, but filing it was neither wrongful nor without reasonable cause, within the meaning of the regulation: on the contrary, it was completely justified under the circumstances.
At the trial it was contended that regulation 124 was ultra vires the Executive Council of Saskatchewan, and
Davis J. directed that the Attorney-General should be notified and permitted to be heard before the matter was decided. After argument in which counsel for the Attorney- General took part, the learned judge held the regulation to
S.C.R.
be ultra vires. The Attorney-General did not intervene formally in the litigation but was represented by counsel in the Court of Appeal and supported the regulation. The members of that Court did not consider it necessary to determine the matter. Before this Court the Attorney- General was again represented by counsel in support of the validity of the regulation, though he had not formally intervened in this Court. In the view of my conclusion that there can be in any event no recovery, either by the appellant or by the respondents Oak and Amren, it is unnecessary to decide the question as to the validity of the regulation. The matter does not come before us as a reference and, in my opinion, we should not express any opinion in the circumstances.
In the result, I would allow the appeal from that portion of the judgment of the Court of Appeal which directed on terms a new trial in respect of the issues raised as to noncompliance by Harquail and the appellant with regulations 8(1) and 9(1). I would direct that the judgment at the trial, however, be amended by striking out the words:
in that portion of the judgment above quoted. In all other respects, save as to costs, I would confirm the judgment of the Court of Appeal. The appellant should have its costs in this Court as well as in the Court of Appeal. The crossappeal should be dismissed with costs.
J.:-The relevant facts and the contentions of the parties are set out in the reasons of other members of the Court.
I am in agreement with what I understand to be the opinion of all the other members of this Court that the Court of Appeal' exercised its discretion rightly in permitting the respondents to amend their statements of defence so as to plead regulations 8(1) and 9(1) of the Regulations under The Mineral Resources Act, and the only point with which I find it necessary to deal is the defence based on regulation 9(1).