Cleary v. Boscowitz

J.-The mineral claims " Empress," "Victoria" and "Queen" were located and recorded by the defendant, in September, 1898.

The plaintiffs, in the year 1900, located and recorded, over the same ground, the alleged mineral claims " Royal," " Royal B'owres. Extension" and "Regina."

At the time this action was brought, all the claims had obtained certificates of work, but the certificates in respect to the latter three were later in point of date than the others.

On the 2nd of August, 1900, the defendant applied for a certificate of improvements in respect of the three claims he owned, under section 36 of the Mineral Act as amended by chapter 33 of the Acts of 1898, secs. 7 and 8.

The (plaintiffs) appellants, claiming an adverse right and to be in possession of the ground or claims referred to in this application, commenced this action in the

Supreme Court of British Columbia, under the provisions of said section 37, as amended by section of of the " Minerals Acts Amendment Act, 1898," to determine the question of the right of possession to said claims, and otherwise enforce their adverse right.

The (plaintiffs) appellants, pleaded in their statement of claim that the locations made by them were on vacant and unoccupied land of the Crown.

The (defendant) respondent, in his statement of defence denied this fact and set up that he had obtained and recorded two certificates of work, each, on the

" Empress," " Victoria " and " Queen " mineral claims, dated respectively, the 26th of September, 1899, and the 24th of July, 1900.

In reply, the appellants pleaded that these certificates of work were wrongfully and fraudulently obtained, for the reason that the work required by section of said Mineral Act, as a condition precedent to such certificates of work being obtained, had not been done on the claims.

At the trial of the action, the learned Chief Justice refused to hear any evidence impeaching the defendant's certificates of work or shewing that they had been issued without the full or- any amount of work being done. It was stated by plaintiffs' counsel at the trial that the only question raised was as to the sufficiency of the work on which the certificates were obtained, it being impliedly admitted that, at the time of the location by the defendant, the " Empress," "Victoria" and " Queen " were valid existing mineral claims. The Attorney-Greneral was not a party to the action, and the Chief Justice dismissed it with costs. On appeal to the Supreme Court of British Columbia, the judgment of the learned Chief Justice was affirmed and the plaintiffs' appeal dismissed with costs. The appeal to this court is from that judgment.

The decision on this appeal depends upon the construction to be placed upon section 28 of the Mineral Act, which is as follows:

In Coplen v. Callahan (1) we dealt with this section and, in the case of Collom v. Manley argued in the February term of this court, we endeavoured to place a more definite construction upon it. If we are right, then this appeal must fail, the late learned Chief Justice being right in refusing to receive evidence tending to shew that the certificates of work held by the defendant did not truly represent the facts but were fraudulently procured and void.

This case, it seems to me. affords an interesting illustration of what the legislature was aiming at when they passed it. In the present case, on the day when the plaintiffs made their attempt to "jump " (the word used in the courts below), the claims, the '* defendant was their duly located and recorded owner, holding the same as the tenant of the Crown By S the statute, the rental payable by him to the Crown was the annual payment of for five years, or the annual doing of work on the ground for five years- Upon the full payment of $500 or the doing of $500 worth of work, he becomes entitled to a certificate of improvements, which, in its turn, entitled him to a patent converting his estate for years into an estate in fee simple, as absolute a title as the law could give him. During this period the plaintiffs, having no interest in the property, imagined that the tenant Boscowitz, had not paid his rent to his landlord, and, coming to the conclusion that the claims had thereby become vacant, located and recorded them under new names as their own. One of the objects (I can imagine many others), which the legislature here had in view, was to prevent any legal effect being given to a transaction of that character. A certificate of work once given by the Crown's officer was made conclusive evidence to the world that the tenant had paid his rent; it was made irrefutable and indisputable except upon attack by the Crown itself. So that, as it was admitted in the present case that, at the lime mentioned, the respondent had a valid title and had not abandoned it, the paper title held by the appellants and all locations and payments and work made or done by them were absolute nullities forming no basis for the adverse claim set up.

The appeal should be dismissed with costs.

Appeal dismissed with costs.