Heiminck v. The Municipality of the Town of Edmonton

June 14. ANT).................

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ON APPEAL FROM THE SUPREME COURT OF THE NORTH-WEST TERRITORIES.

The user of old travelled roads or trails over the waste lands of the Crown in the North-west Territories of Canada, prior to the Dominion Government Survey thereof does not give rise to a presumption that the lands over which they passed were dedicated as public highways.

The land over which an old travelled trail had formerly passed, leading the Hudson Bay Trading Post at Edmonton, N.W.T., had been enclosed by the owner, divided into town lots and assessed and taxed as private property by the municipality, and a new street substituted therefor as shewn upon registered plans of subdivision and laid out upon the ground had been adopted as a boundary in the descriptions of lands abutting thereon in the grants thereof by Letters Patent from the Crown.

Held, reversing the decision of the Supreme Court of the Northwest Territories, that under the circumstances there could be no presumption of dedication of the lands over which the old trail passed as a public highway, either by the Crown or by the private owner, notwithstanding long user of the same by settlers in that district prior to the Dominion Government Survey of the Edmonton Settlement.

APPEAL from the judgment of the Supreme Court of the North-west Territories, sitting en banc, which affirmed the judgment of the trial court dismissing the plaintiff's action with costs.

:-Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

The plaintiffs action was for trespass by the municipality and breaking down his fences enclosing lands in the Town of Edmonton. The municipality claimed part of these lands as a public highway by reservation and dedication in the patent from the Crown and by long user. The case was tried in the Supreme Court for the North-west Territories, District of Northern Alberta, before Scott J., who dismissed the plaintiff's action with costs and this decision was affirmed by the full court, sitting en banc, Rouleau J. dissenting.

The circumstances under which the controversy arose and the matters in issue in the case are stated in the judgment reported.

The appellant's title is unquestioned, unless the locus in quo is a public highway by express reservation in the Crown grant or by dedication, as the claim by prescription has been abandoned by the respondent, and claim by estoppel does not appear on the face of the pleadings. All the judges of the court below are agreed that the respondent could not succeed upon the ground of reservation.

Their lordships have found it impossible to say that the reservation in the patent-" the public road or trail crossing the said lot "-has reference to the particular trail to which the respondent endeavours to assign the words.

As to the question dedication, the trial judge, (Scott J.), held that the evidence was not sufficient to establish a dedication. Upon appeal, Richardson J., feeling bound by Turner v. Walsh (1) decided that from user alone there was sufficient evidence of dedication; Wetmore J., was of opinion that there was no sufficient evidence of dedication by reason merely of user alone, but that such user coupled with the reservation in the patent and some supposed admissions of the appellant in connection with certain expropriation proceedings, showed a sufficient intention on the part of the appellant (and his vendor, David McDougall, the patentee), to dedicate;

while Rouleau J. held that there was no evidence of dedication.

The trial judge dismissed the action on the ground of estoppel by representations; upon appeal

Richardson J. and Wetmore J. gave no decided opinion, while Rouleau J. thought that the doctrine of estoppel had no application whatsoever. Therefore, although the judgments are largely in favour of the appellant, yet because of alleged admissions of the appellant at the expropriation proceedings, the judgment in appeal went against him.

The respondent contended that, in addition to

Jasper Avenue, there exists a highway, part of an old irregular and straggling trail (which had been used as a public road prior to the Dominion Government survey in 1882) still surviving, though only as to a small portion, the rest having been obliterated by lots, streets and buildings.

Now the grantee from the

Crown did not and could not claim through the squatters who had occupied the land prior to the survey;

Farmer v. Livingstone (1) ; The 7rustees, Executors and Agency Company v. Short ; and the trial judge expressly held that prior to patent, (in 1887,)

he had " no right or title to occupation,"and " was not in a position to prevent" any user of the property as trail.

The "reservation" in the patent is in these words:

"Reserving thereout the public road or trail one chain in width crossing the said lot."

There were, at the date of the patent, " crossing the said lot," not only the roadway which the respondent claims to have been the trail or road reserved but also, towards the north, a well-travelled road which answered the description in the patent and also Jasper Avenue, the main street of the village or town, which had been cleared and was the principal travelled road in 1887.

It is altogether probable that it was to Jasper Avenue that the patent referred, but if not, the next most probable road was the northerly one.

It is certain, therefore, that the roadway in question is not that referred to in the patent as the " public road or trail."

In this all the judges agree.

The whole question of dedication is a question fact; Belford v. Haynes (1); Beveridge v. Creelman al. (2) at page 37; depending on the assent or intention of the owner, which " must be clearly proved before the court will take away a man's land from him," Rae v. Trim (3) per Blake, V.C., at p. 379.

It was a question for the trial judge, (Scott J.) who distinctly held that there was no evidence of any intention to dedicate on the part of the patentee. While the fee was in the Crown, user cannot be relied upon as evidence of dedication because that user was without the knowledge of the Crown, and Nullum tempus occurrit regi. Harper v. Charlesworth (4); Reg. v. Plunkett (5); Dunlop v. The Township of York The Queen v. Moss

Although there was a certain amount of travel over the lands in question the route was not of any considerable importance and in no sense a main-road or trail. It was merely one of innumerable local trails which arise in every waste territory, according to the convenience of straggling squatters.

The western prairie, far from being a "trackless" plain, as so often described, was, and is, crossed and re-crossed by tracks and trails, in every conceivable (1) 7 C. Q.

& C.

(2) C. Q.

(5) C. Q. (7) S. C.

direction.

The main trail-the principal artery of travel-crossed the north end of the lot in question. One of the witnesses speaks of the roadway now in dis- .HE pute as a mere footpath in 1882 and in fact it was a mere trespass road or short-cut, used until the main thoroughfare, (Jasper Avenue), was cleared and opened, and it has been completely obliterated both upon the east and west of the locus in quo, blocked, closed up, and built upon.

The patentee in making his plan, three months after obtaining his patent, showed a distinct refusal to dedicate the property, and instead thereof dedicated, or rather, as he believes, conformed to the patent, in showing, upon his plan, Jasper

Avenue, as the road reserved across his property and the respondent, since incorporation in 1892, assessed the owner of the property in question and collected taxes thereon for the years 1892, 1893, 1894, 1895 and

1896, up to the time of the trespass complained of.

S-e Dillon "Municipal Corporations," (4 ed.) par. 564, note p. 659.

There never was any animus dedicandi;

Poole v. Huskinson (1); Elliott on Roads and Streets, p. 120.

Beck Q.C. for the respondent. The respondent submits that the southerly trail is that intended to be reserved in the Crown patent. The Government plan shows the southerly trail to be a continuous one through the Village settlement, and a necessary highway affording the settlers access to the surveyed road allowances running north and south on each side of the village, while the northerly trail, so far as the map shows, stops short, no doubt because it was not clearly defined on the ground. The patents for lands in the vicinity, except that for lot 10, contain reservations of a trail, and describe the adjoining lands by express reference to the Government map which shows no continuous trail over them except the southerly trail. The omission of the reservation in the patent for lot clearly explained by the fact that prior to the issue of that patent the plan of subdivision had been registered giving a public highway over it, approximately corresponding with the southerly trail there. The plan of subdivision of the Hudson Bay Company's Reserve completed before the Dominion Government survey clearly shows which trail the company-one of the public interested in both trails-considered to be the more important, showing as it does the southerly, but not the northerly trail. User by the public has been shown since 1852, and evidence of intention to dedicate on the part of McDougall, the patentee, is clear in view of his legal rights as an occupant, and of his assumed rights recognized by the Crown. His conduct is clearly sufficient to establish a dedication as against both himself and the Crown.

Reg. v. East Mark (1); Reg. v. Petrie (2); Elliott on Roads and Streets, pp. 100, 124, 125 ; Turner v. Walsh (3). The reservation in the patent, and the conduct McDougall in connection with the arbitration on recent expropriation proceedings, even if not amounting to estoppel, are both strong additional circumstances in support of the dedication.

As to estoppel, (even assuming there was waiver by not pleading it), the trial judge in dealing with the facts was at liberty to find either according to the facts or according to the estoppel if they led to different conclusions.

Vooght v. Winch (4) ; Trevivian v. Lawrence The plaintiff is estopped. David McDougall was a party to the arbitration proceedings, and the plaintiff was his agent and at the same time the nominal owner (1) Q. B.

(2) &

(5) 1 (3) 6 J. of the land in question, in trust for McDougall, subject to his own beneficial interest.

McDougall raised the issue of the trail in question being a legally existing TE one or not, and the plaintiff gave evidence to show that there was a trail and that, therefore, a proposed extension of another street would be not only valueless to him but an injury. The appellant took the benefit of the arbitrators' finding on this point. In a question estoppel, an award is equivalent toajudgment. Bigelow on Estoppel (5 ed.) p. 58; Russell on Arbitration (7 ed.)

pp. 514, 555 ; Whitehead v. Tattersall (1) ; Gueret v.

Audouy

The familiar cases of " standing by " are instances of this kind of estoppel. Ramsden v. Dyson at pages 142 and 160 ; Gregg v. Wells (4) ; Coles v.

Bank of England

Also under quasi-estoppel, Bigelow, pp. 673, 683-4-5-7; Birmingham v. Kirwan (6) at page 449.

There is no estoppel against the defendants. They were quite right in assessing the property. The right of way over it does not change its ownership, though it no doubt lessened its value, and a large part of the parcel assessed is unaffected by the right of way. The assessment and collection of taxes would in no case amount to an estoppel, except in proceedings relating directly thereto. At all events, there could be no estoppel in the circumstances under which this land was assessed.

There has been no abandonment so far as this portion of the trail is concerned, for nothing more is shown than that the two buildings have been allowed to be built so as to encroach on the trail, but not so as in any degree to restrict the travel. Jasper avenue and Main street was not dedicated by registration of a plan of subdivision until after the issue of the patent. It was bush until 1885, when only the timber on it was cut. It was not brushed or cleared up till 1890 or 1891, and not graded until 1892.

In order to establish an abandonment, it is necessary not only to show the opening of a new way which will answer the purpose of the old one, but also to show an entire and absolute disuse of the old road. Elliott. p. 658 et seq.

J.-This is an action instituted in February, 1895, by the plaintiff against the Town of Edmonton, incorporated as a municipality by an ordinance the North-west Territories in the month of January, 1892, for breaking and entering a close of the plaintiff, situate at the north-east angle of that part of river lot no. in the Edmonton Settlement, which lies south of Jasper avenue, as it crosses the said lot, and for breaking down and destroying a fence of the plaintiff there being. The close in question consists of two small town lots fronting on the south side of said Jasper avenue for which the plaintiff's predecessors in title were assessed and taxed by the municipality defendants every year until the year 1895, when the plaintiff, being in possession, was assessed and taxed therefor.

The defendant, notwithstanding the assessment of the said town lots, now pleads as a defence to the present action that at the time of committing the grievances complained of by the plaintiff the locus in quo was and for a long time had been a public highway within the limits of the municipality, and in support of such contention, it is alleged and pleaded; 1st. That the locus in quo forms part of river lot no. in the Edmonton Settlement, and that the patent from the Crown for the said lot expressly reserves the said highway for the public use; and, 2ndly. That the highway was dedicated by the Crown and by the patentee as is evidenced by long user.

Prior to the year 1882, when first these lands called VUIriver lots in the Edmonton District were surveyed and given boundaries by the Crown there was a trail across what is now river lot 10, and other lands east of it, in a devious, irregular route and without any J. defined limits, and westerly across what is now river lot no. 8, in a diagonal direction from the place where it entered upon the river lot to where the western limit of the said lot, which is the eastern limit of the river lot reaches a steep bank overhanging the

Saskatchewan River, and thence along the top of such steep bank, across river lot 6, to the Hudson Bay Company's Reserve, which lies immediately west of the river lot and so to a Trading Post of the Hudson Bay

Company in such Reserve. This trail the settlers on the Edmonton Settlement, close to the river, had been in the habit of using for convenience of access to the

Hudson Bay Company's said Trading Post.

In the year 1892 the present defendant brought an action against two persons named Brown and Curry, in which the contention of the present defendant was that Jasper avenue as laid across river lot 10 by the person who afterwards became patentee from the

Crown of the greater part of that lot was adopted and dedicated by the Crown and confirmed by the letters patent for the several parts of the said river lot and was substituted for the old trail as it crossed said river lot 10, which upon the opening of Jasper avenue, which was eighty feet in width, became absolutely obliterated and extinguished in so far as lot 10 is concerned.

In that contention the present defendant finally succeeded by the judgment of this court delivered upon the 1st May, 1894, and in that judgment will appear how the Dominion Government acted in