Brown v. Town of Edmonton

Mr. Justice Gwynne is as follows:- ON APPEAL FROM THE SU- PREME COURT OF THE

NORTH-WEST TERRI- TORIES.

STEEL '

(Defend.

ants) ........... . .

(Plaintif ............

GwYNNE J.-Tbis is an appeal against the judgment Supreme Court of the North-west Territories(1), dismissing an appeal by the defendants against the judgment of Mr. Justice Rouleau, in an action instituted against them by the Municipality of the Town of Edmonton, whereby the defendants were adjudged to remove a log building erected and maintained by them upon land in the town of Edmonton claimed by the plaintiffs in the action to be, and by the judgment declared and adjudged to be, part of a public street in the said town of Edmonton, called Jasper avenve. Prior to the year 1881, one Colin Fraser was in possession of a portion of unsurveyed 1Ends of the Crown, now within the limits (1) 1 N. W. T. Rep. Part 4, p. 39. [VOL. XXVIIL so adopting Jasper avenue as a substitute for the old trail on river lot 10.

The.judgment was unfortunately mislaid and therefore not reported, but has recently been discovered and can now be reported (1). In the present action the defendant as part of its case proved, by admission of the opposite party but still as part of the defendant's case, that letters patent from the Crown were issued upon the 30th September, 1887, a month after the issue of the letters patent for lot 10, which has been in like manner proved in the present case, granting said river lot 8 to one David Macdougall the purchaser thereof, in fee " reserving thereout the " public road or trail, one chain in width, crossing the HEIMINCK

TOWN OF

Gwynne J.

said lot."

The defendant has thus established the issues entered on the record in favour of the plaintiff HE unless the locus in quo should be established to be, as U pleaded, a public highway.

David McDougall, the patentee of this river lot 8, upon acquiring his title under the said letters patent immediately extended Jasper Avenue across his lot to Gwynne J. a greater width than it has across lot 10, as appears by the registered plan produced, and upon either side of it he laid out building lots, those upon the south side numbering from the western to the eastern limit of the lot where are situated the lots constituting the locus in quo. The old trail ran diagonally across land of the Town of Edmonton; his possession was that of ameresquatter, without title, but making claim to be recognised by the Crown under the provisions of the Dominion Lands Act as an actual settler upon such land.

It appears that seven other persons were in like manner and at the same time in possession of other lands adjoining the land of which the said Colin Fraser was so in possession.

On the 9th of February, 1881, the said Colin Fraser by an agreement in writing signed by him, agreed to sell to one

James McDonald "all the right and interest of him the said Colin

Fraser, in that part of his claim situate on the east side of his ploughing," and fronting on the main travelled road, which is described in the agreement as follows:

" Beginning at a point three feet east from my ploughing, and extending eastward along the main travelled road fifty (50)

feet; thence northward parallel with the ploughing aforesaid one hundred (100) feet; thence westward to within three (3) feet of the ploughing aforesaid fifty feet; thence southward to the main road one hundred feet." the said Colin Fraser thereby agreed to furnish to the said James McDonald a clear deed of the above described lots "as soon as the government surveys thereof are made."

Upon the same 9th February James McDonald transferred all his interest in the said piece of land to the defendants, Brown & Curry.

The main travelled road mentioned in the above description, the northern limit of which was made the southern limit of the piece of land above described, had then no defined width or boundaries, nor could it have any legally defined limits, as indeed appears from the very terms of the agreement, until the Government surveys should be made. The only road which then was there, was a "trail" which, as is alleged in the defendants' statement of defence, ran along what constitutes the centre line of what is now called Jas. per avenue. At or about the same time as Colin Fraser agreed to sell all his interest in the above described piece of land to James Mc- Donald, he in like manner agreed to sell all his interest in several other pieces of the land of which he was so as aforesaid in possession, to persons respectively named Oliver, Kelly, Sanderson and Lorby,

Hogarth and Lauder, and his interest in all the residue of the said land of which he was so in possession to one Samuel Pritchard.

In the year 1882 one Deane, a

Dominion Land Surveyor, was employed by the Dominion Government to make a survey of what is called the Edmonton Settlement in the North-west Territory. Upon that survey he laid down on a plan the several pieces of land of which the said Colin

Fraser and the six other persons in possession of lands adjoining the land of which he was so possessed, and in such plan the name of S. Pritchard is entered as the person in possession of the whole lot, which is on the plan numbered as river lot ho.

of the Edmonton Settlement survey.

This plan was, upon the 26th

May, 1883, approved and confirmed under the provisions of the Dominion Lands Act in that behalf.

Upon this plan there is laid down with dotted lines the northern and southern limits of the road across the said river lot No. 10 and the other neighbouring lots.

The surveyor's notes of survey have not been produced showing the width of the road intended to be designated by such dotted lines, but the plan is made upon a scale of twenty chains to an inch, and by the application of such a scale to the space between the dotted lines inclusive of the dots, it appears to exceed one chain.

Now prior to the 1st of January, Pritchard had a survey and plan made for him of the whole of the said river lot no. 10, but divided into town lots wherein were represented the several pieces thereof which had been agreed to be sold by Fraser to divers persons as well as several other lots wherein the names of other persons were entered, presumably persons to whom Pritchard himsell had agreed to sell such pieces. On this plan Jasper avenue is laid down as being of the width of eighty feet, and another street now comprised within the limits of four of these lots, all of which have been continuously assessed and taxed by the municipality ever since its incorporation to the patentee or persons claiming title under him. Thus in so far as in him lay the patentee declared his clear intention to close forever and he in point of fact so closed up the old trail at its very entry into the lot 8, and he substituted therefor Jasper Avenue which he dedicated as a public highway across his lot. It also appeared that the patentee of river lot 6 in like manner extended Jasper Avenue across his lot to the Hudson Bay Company's Reserve. Towiq oF

Gwynne J.

The whole question then at the trial was: 1st. Whether the public road or trail reserved in and by the said letters patent to David McDougall was the U trail which formerly crossed where is now the locus in quo in the present action; and 2nd. Whether a dedi- o cation by the Crown or the patentee could be presumed from the user which appeared in evidence. These Gwynne J. questions underwent a thorough investigation during a trial which extended over seven days and at its close the learned trial judge upon the 17th December, 1895, reserved his judgment which was delivered by him on the 24th June, 1896, and thereby he found called Fraser avenue extending northerly through the lot from

Jasper avenue.

Upon the plan the name of Brown is entered upon a lot designated on the plan as being fifty feet in width, abutting on the northerly limit of

Jasper avenue, and extending in a northerly direction 100 feet the south-westerly angle of which lot is placed as being 119 feet easterly from the south-easterly angle of the street called Fraser avenue, that is from the intersection of the easterly limit of Fraser avenue with the northern limit of Jasper avenue.

This survey and the plan thereof were made by Geo.

Land Surveyor, as and for a "subdivision of river lot no. 10."

"Pritchard estate," and it is called

A,"

" Edmonton,"

was registered upon the I th of

March, 1886, under the provisions

Northwest

Territories

Registration of Titles Ordinance,

1884, as appears by a copy certified by the registrar.

Up to this time no patent had issued for any part of the'saidriver lot no. 10, but on or about-the 25th January,

1886, the before named Oliver,

Kelly,

Sanderson and Lorby, Colin Fraser, Hogarth and Lauder and the defendants, Brown and Curry signed under their respective hands and seals, a petition to Minister

Interior wherein, alleging themselves to be severally entitled to different portions of river lot number 10 in Edmonton according to

Dominion Government survey, which different portions compose in the whole the lands embraced in an accompanying description and shewn on an accompanying plan, they requested and consented that letters patent should issue for the whole of the lands so embraced in such description, and plan, to John Brown, of Edmonton, in the District of Alberta, in the Northwest Territories of Canada, Merchant, as trustee, and they requested that the patent should be forwarded to Mr. Robert Strachan, Edmonton, Solicitor.

Upon the 27th January, 1886, Mr. Strachan forwarded this petition to the minister with statutory declarations made by Colin Fraser and James McDonald respectively, in the former of which Fraser declared that the above named parties were all the persons who were applying for patent to issue to John Brown, that he had not sold any of the said lands for which the patent was so applied for to any person, that any other sales he had made were entirely distinct from the lands described in a description accompanying his declaration, that the piece described as his own was a piece he had previously sold to, but afterwards purchased from

James McDonald, who in his declaration confirmed this latter statement, and also declared that the lot marked on the accompanying plan "J. Brown"

was purchased by him from Fraser and subsequently sold to John

Brown and D. S. Carry, and he also declared that the description accompanying the declaration did not in any way encroach upon the lands of the Rev. Samuel Pritchard.

This petition and the plan, descriptions and declarations accompanying the same, together with the letter of Mr. Strachan of the 27th January were received in the Department of the

Interior on the 11th February,

1886, and in reply thereto a letter from the department to Mr. Strachan was addressed and sent upon the 16th March, 1886, wherein Mr. Strachan upon behalf of the petitioners was informed that "before any further consideration could be given to the matter of the petition a tracing of a plan to be prepared as thereinafter stated, must be filed in the department, and that upon the receipt of such tracing the question as to the propriety of issuing patents direct to the several parties who purchased parts of the lot in question from Mr. Colin Fraser for their respective portions thereof, will be further considered."

The directions given for further preparation of the required plan were as follows: "1st. It must show river lot 10 as it is shown on a plan of the survey of the Edmonton Settlement made by Mr. Deane, a Dominion Land Surveyor. 2ndly. It must be prepared by a Dominion Land Surveyor on a scale of one chain to an inch and be certified in the usual manner by such surveyor; 3rdly. It must have indorsed on it a certificate of the registrar of the district to the effect that it is and adjudged as to the above issues joined upon the record; 1st. That the highway or public road reserved by the said letters patent was not the trail which had crossed river lot 8, at the place where the locus in quo in the present action is, but that a public road or trail which crossed the northerly part of the said river lot 8, and which was the great thoroughfare from a very early period between the east and west for all the traffic of the Hudson Bay Company who had the monopoly of the trade of the country, and by which road the great majority of persons passing backwards and forwards into and through the Settlement travelled, TowN OF was the public road reserved' by the letters patent.

He also foundfand adjudged, 2ndly.' That the evidence HErMnwx was insufficient to justify the finding of a dedication TMNI by the Crown, and that there was nothing in the act or conduct of the patentee McDougall prior to the arbitration (next mentioned), from which a dedication could be implied.

He thus found. that from the time of the Gwynne J. issue of the letters patent to McDougall up to the time of the arbitration taking place, at any rate the patentee and those claiming under him.were absolutely seized in fee of the land over which the old trail had passed free from any claim whatever of the public to such a record in his office; 4thly. The tracing to be filed in this department must be certified by the said registrar to be a true and correct copy of the above mentioned

In accordance with these directions, Mr. Strachan on behalf of the petitioners had a plan prepared by Geo.

Dominion Land Surveyor, who in

1882 had surveyed and made the plan for Mr. Pritchard.

This plan which bears date the 18th of

August, 1886, and is designed

" A. and was duly certified by the said Geo. A. Simpson and registered in the registry office on the 28th August, 1886, was forwarded to the Department of the Interior, and upon it were marked the boundaries of the several lots which had been sold by Colin Fraser to all others than to Pritchard.

The lot so as aforesaid sold to J. McDonald and by him transferred to the defendants, Brown & Curry, was designated by the letter "P," and dimensions, location boundaries thereof were laid down precisely in the same manner as the lot whereon the name

33Y2 of "

1882, and the said street called

Jasper avenue was laid down as being eighty feet wide.

After receipt of this plan by the Department of the Interior, a letter was addressed and sent by the department to Mr. Strachan informing him that the tracing of lot no.

10 in the Edmonton settlement referred to in the above letter of the 16th March, 1886, had been duly received, and that patents for the several portions of the lot were then in course of preparation in favour of the respective owners as shown on the tracing in question with the exception of that for lot

"P" in favour of John Brown and D. S. Curry, which was stayed pending the receipt by the department of information giving Mr.

D. S. Curry's Christian name in full.

This information having been supplied, the said lot designated by the letter "P" was granted, by letters patent dated the 22nd day of April, 1887, to the defendants John Brown and

Duncan Steel Curry, their heirs and assigns as tenants in com- 515land as being dedicated to the use of the public as a HEIMCK highway and for this reason he justified the assessment of the locus in quo up to and including the year 1894 as the property of the patentee and his assigns, Tow, or and so liable to be assessed, but as to the assessment to the plaintiff in the year 1895, he could not see, he said, Gwynne J. how that assessment could effect the matter in question.

But the assessment of that year, equally as the assessments of the preceding years was, as was the plaintiff's contention, quite proper, and all for the same reason, namely, that the lots so assessed were the absolute property of the patentee and those claiming mon by the following description :

"All that parcel or tract of land situate, lying and being in the

Edmonton

Settlement in the

Northwest

Territories, in our

Dominion of Canada, and being composed of lot lettered "P" as shown on a plan of the subdivision of a portion of the lot numbered

10 in the Edmonton Settlement aforesaid filed in the Department of the Interior signed by George

August, 1886, and registered in the registry office for the Edmonton District on the 28th day of

August, 1886, the said lot numbered in the

Edmonton

Settlement being shown on a said settlement signed by Andrew Russell for the Surveyor General of Dominion Lands, and dated 25th

May, 1883."

Letters patent to the other petitioners granted upon and in accordance with the designation and description of their several portions as the same appeared upon the said plan, under the designation of lots lettered respectively "A," "F,)" P," " R,"

" S," " T," "V,"

and, upon the 31st day of August, 1887, letters patent were granted to Mr. Pritchard of all that portion of said river lot no. 10 coming within the following description : "All that parcel or.tract of land situate, etc., etc., in the Edmonton Settlement, etc., etc., being composed of river lot number 10, in the Edmonton Settlement aforesaid, as shewn upon a plan of the said settlement, signed by A. Russell for the Surveyor General of Dominion Lands, dated 25th May, 1883, and of record in the Department of the Interior, containing by admeasurement eighty-one acres, more or less, saving and excepting thereout the following portions particularly described as follows :-" 1st. A portion containing eight and seven-tenths acres abutting on the most northerly limit of said river lot number ten (particularly describing it by metes and bounds)" ; " 2ndly. The portions or lots indicated and specified by the letters "A," "F," " P," " S," "C T," etc., etc.. shewn on a plan of a portion of the said river lot number 10, under him, and did not nor did any part of them constitute land dedicated to the public use as a highway, as now claimed by the defendants. The weight of THE N this evidence as relied upon by the plaintiff, was that it was clearly in rebuttal of any dedication to be presumed from user.

Now as to this arbitration so referred to by the Gwynne J. learned judge it appears that copies of .the award made thereat, and of a paper purporting to be the evidence given by the plaintiff thereat, and of the by-law for the expropriation of the piece of land therein mentioned, under which the arbitration took place, none Edmonton Settlement, of record in the Department of the Interior, signed by Geo. A. Simpson, D.L S., and duly certified to be a coret copy of a plan of part of lot numbered 10, registered in the registry office in and for the Registration District of Edmonton, in the

Provisional District of

Alberta, in the Northwest Territories, at two o'clock, p.m., on the 28th day of August, A.D.

1S86, and signed by George Roy,

Registrar."

Now the piece of land designated above by the letter "A" is that which on the above plan A, made by Geo.

1882 for Mr. Pritchard, and of a portion of which the plan "A,"

which is the one mentioned in the above letters patent, is a facsimile, is designated as belonging to Mr. Oliver above mentioned that marked letter " F," is the lot wtich on the Pritchard plan is marked as belonging to Hogarth that marked " V," is the lot numbered 40 on the Pritchard plan that marked with the letter " P is the one marked in the Pritchard plan as belonging to J. Brown, (the plaintiff of that name) ; that marked with the letter " R " is that upon which the name of Sanderson is entered in the Pritchard plan; that marked with the letter "S "is the lot upon which in the Pritchard plan the name of Kelly is entered, and that marked with the letter " T " is part of the piece upon which, in the Pritchard plan, is entered the name of Lauder, all of which persons were the petitioners in 1886 for letters patent to be granted tothem. Now of these pieces of land the lot " P," as above granted to the defendants, and the lots designated the letters " and V," abut for their southerly boundaries upon the northern limit of the street called Jasper avenue, as shewn on the Pritchard plan and the plan mentioned in the letters patent, in accordance with which plan the lots were granted; and the pieces marked respectively with the letters "A" and "F 9 are lots the northern boundaries of which abut upon the southerly limit of the said Jasper avenue, D18 of which in any manner bear upon or relate to the HIi sNcx matters in issue on the record, became to be filed as exhibits in the. cause in some way -or other not ex- CIPALITY plained in the record.before us; at what stage of the TOWN OF trial or for what purpose they were so filed nowhere EDMoNToN. appears.

The plaintiff's counsel appears to have Gwynne J. regarded the documents as wholly irrelevant; the de- 7fendant's counsel does not appear upon the record before us to have alluded to them during the trial nor at any time except at the close of his argument, after the trial he alludes to them thus:

The answer is an estoppel because plaintiff shews that he then had an interest in the property in question and upon the arbitration he claimed that the trail existed.

as shewn on said plans.

It is obvious therefore that the space marked upon the plan as Jasper avenue in accordance with which plan alone the lots abutting on that street are granted, was dedicated by the Crown as and for a street or public highway, to no

.part of which can the plaintiffs or any other persons, grantees of lots abutting upon the street, assert any claim whatever. The fact that the terms of the letters patent to Pritchard are such as to convey to him the whole of the river lot

10, except the excepted parts, can make no difference, for even though it should be held that the soil of what is designated as Jasper avenue on the plan in accordance with which his letters patent were granted, passed to him by his said letters patent, it could only so pass as subject to the public easement of being used as a street and public highway which being situate within the Municipality of the Town of Edmonton, is subject to the jurisdiction of the said municipality by ch. 8 of the Revised Ordinances of the Territories, and having such jurisdiction, the municipality, there can be no doubt, are entitled to maintain the present suit. The appeal must therefore be dismissed with costs.

The case of Fisher v. Prowse (1), relied upon by the defendants was a case very different from the present.

The question there was .whether a cellar flat of the defendants' house which although being in the footwalk of a public street had existed in the same condition as far back as living memory went, was unlawful, and so subjected the defendant for maintaining it to liability for injury sustained therefrom by a person using the footwalk, and it was held that it must be presumed that an erection made so far back was lawfully erected and that the dedication was made subsequently and subject to the right to maintain (1) 2 B. & S. 770. It is singular, to say the least, that having, as is said here, an interest in the property in question he should be insisting upon the existence of a state of

* things which would utterly destroy his interest.

However, in the argument before us this construction of the plaintiff's evidence is utterly repudiated and denied to be sound, what he actually did being said Gwynne J. to be, that he gave evidence for the information of the arbitrators as to what could be done with the lot remaining not yet laid out if the trail was a public highway and what if it were not; and it is utterly repudiated that he said anything which could be reasonably construed into insisting that the trail is a public highway, or with intention to get the arbitrators to regard it as such. To have done so would certainly have been utterly inconsistent with his duty to the owner of the land and could not be binding on him. The learned judge read all these papers and formed the opinion that the evidence thereby appearing to have been given by the plaintiff leads to the conclusion that he was contending that the trail in question the erection.

In the present case there is no pretence of the defendants having ever had any rightas against the Crown to erect and maintain the log house which obstructs the public streetin front of the lot " P " granted by the

Crown to them, for about onethird of its width.

The defendants obtained their letters patent for their lot "P,"

having its boundaries precisely as shown in

Pritchard's plan "A,"made in 1882, and precisely as the defendants had in 1886 petitioned that it should be granted. They obtained the only title they have to their lot according to a plan which shows the southerly limit of the piece of land granted to them to be the northerly limit of a piece in front of their lot of 80 feet in width dedicated by the Crown as and for a public street.

To hold that in such case it is to be presumed that the dedication by the

Crown was subject to the right of the defendants to maintain an obstruction which when erected by them was so erected without any right whatever in law, would be, in my opnion, a perversion of common sense.

Appeal dismissed with costs.

S. & H. Taylor.

Beck & McNamara.

was a public highway and he thought that if the arbitrators had not found it to be a public highway tH they would not have awarded so much as they did. As to this observation it may be said that the suggestion is merely a surmise of the learned judge for, from the award, the arbitrators would seem to have J. attached little weight to the evidence of the plaintiff which certainly would seem to have been rather extravagant, for the value attached by him to the piece expropriated was $2,583.75, while the arbitrators allowed only $325.

Again the learned judge says that he thinks that the representations of the plaintiff which the learned judge had spoken of as leading to the conclusion that the plaintiff was contending that the trail was a public highway were made with intent that the arbitrators should act upon such representations, but what these representations were is nowhere stated, although the conclusion which they are construed as leading to, is stated, and such being the assumed intent of the plaintiff in making the representations whatever they were, the learned judge was of opinion that upon the ground of good faith alone the patentee McDougall and the plaintiff should be estopped from denying that the trail in question is a public highway.

I do not propose to inquire whether the opinions of the learned judge are well founded or not, for although he expressed the opinion, he concluded (as there were no pleadings on the record to raise the question involved) merely directing that the defendant municipality might, if advised, amend its defence in such manner as to raise a question as to estoppel, but nevertheless, while so directing and notwithstanding the material issue joined or the record which he had found in the plaintiff's favour he ordered judgment in the action to be entered for the defentants and in accordance with such order a rule has issued out of the court dismissing the plaintiff's action with -costs. From this rule the plaintiff appealed to the full court, and from the judgment of that court therein the appeal to this court has been taken.

The full court consisted of three judges, namely : Justices Richardson, Rouleau and-Wetmore.

All concurred with the learned trial judge that the trail in J. question was not that which was reserved as a public road by the letters patent.

As to the residue, Mr. Justice Richardson was of opinion that dedication by user was established, resting his judgment upon the authority of Turner v. Walsh and for that reason he was of opinion that the appeal should be dismissed. Mr. Justice Wetmore entertained such great doubts as to the applicability of the doctrine of estoppel that he declined to pass judgment upon that point and leaving all question upon that point out consideration he was of opinion th4 from the plaintiff's conduct at the arbitration coupled with the previous user a dedication of the trail as a public road might and ought to be presumed upon the authority of Turner v. Walsh

He regarded as he said the conduct of the plaintiff at the arbitration as being equivalent to McDougall himself appearing and saying: " I am owner of this land and I concede that this is a way; I concede that it must be presumed that there has been a grant of this trail as a way," and so he held that there was established a dedication of the way by user and consent of parties.

So to construe what took place at the arbitration involves an assumption first, that the plaintiff had any authority to bind McDougall by any concession rele.ting to his lands; and secondly, that such authority extended to making in his name a concession which, assuming it to have been made, would be in direct contradiction and reversal of McDougall's manifest intention and conduct in closing up the trail, in dedicating Jasper Avenue in its stead and laying out town lots on the trail itself where closed, disposing of them to others, some of whom built upon them and who, as well as he himself, have ever since the J.' incorporation of the defendant as a municipality, paid. to the defendant the taxes which the defendant assessed upon those town lots.

Mr. Justice Rouleau was of opinion that the learned trial judge was quite right in all his findings upon the issues upon the record, but that his opinion as to applicability of the doctrine of estoppel to the case was erroneous; and while doubting the applicability of the doctrine of Turner v. Walsh (1) to the case of user of a way over the waste lands of the Crown in the Territories before ever a survey was made of them bythe Crown he showed very clearly, as we think, that even upon the authority of Turner v. Walsh (1) any presumption arising from user, if any did arise upon the evidence in the present case, was completely rebutted; and he was of opinion that judgment should be entered in the action for the plaintiff with ($40) forty dollars damages and his costs of the action and of his appeal.

In this judgment we entirely concur and all that we wish to add to it is that while we cannot concur with the learned trial judge in the opinion he formed as to the construction of the plaintiffs conduct and evidence upon the arbitration, still no conduct of his or evidence given by him could, from anything appearing in the case, have the effect of divesting McDougall or his assigns of any estate or interest in their or any of their real estate, could constitute a dedication by McDougall of any part of his real estate as a public highway to the