Majority
to be on the tracks for that or any other purpose.
They did not see the plaintiff or know of his presence on the track.
I agree, however, that McLean was a person in the company's employ to whose orders, at the time and under the circumstances, the plaintiff was bound to conform, and that, in using the railway tracks as he was, the plaintiff was conforming to McLean's orders.
But I concur with my brother Davies in thinking that the plaintiff was bound to use reasonable precautions for his own safety in what he knew to be a dangerous situation and that his injuries substantially resulted from his failure to do so.
In that view he cannot recover.
Judgment of the Court
J.-I am of opinion that this appeal should be dismissed.
When this case was on appeal before us, after the first decision of the Supreme Court of Nova Scotia (1), we held, (26th Feb., 1903), affirming the judgment that court that the area described in the mining lease under which the plaintiff claims was clearly defined and ascertained, and that all reference in the description therein to the southern line of Peter Grant's lot might be eliminated asfalsa demonstratio. Now, it was clearly proved at the second trial that most, if not all, of the workings, whether old or new, complained of were within that ascertained area, and it follows, therefore, in my view, that the plaintiff made out a primtd facie- case, having put in his lease from the Crown, and.having proved a trespass or conversion by the defendants or those under whom they claim, upon any lands or goods within its boundaries. But the defendants claiming under the successors in title of Peter Grant, whose patent gave him a title to all minerals (the royal metals, of course, accepted), had a right to prove that, notwithstanding the lease from the Crown of the minerals below the surface, the
Peter Grant lot overlapped that tract and that the ore taken out was taken out wholly within the limits of the Peter Grant patent. This for the most part they established by sufficient evidence but they did not do it in toto.
The principal evidence that was given to shew the true location of the southern line of the Peter Grant lot was that of the surveyor Holmes, who, although at the first trial he had placed it as co-terminous with the boundary of the mining lease, at the second trial admitted that it was several chains south of that line.
No witness gave any evidence to shew that the true line was further south than where Holmes, at the last trial placed it. The defendant company were, therefore, held to have been within their rights in respect to all ore mined north of the line so proved by
Holmes, but there was evidence, and so far as I can make out, undisputed evidence, that the new workings, as they are called, from which ore was taken and which came into the hands of the defendant company, were south of the Holmes line.
Alexander McDonald, who was the director and secretary of the company, testifies that there were twelve hundred tons taken out of the new shaft, (otherwise spoken of as the new workings), in the year 1900.
Now, if the new shaft was south of the only southern line of the Peter Grant lot, then the plaintiff must succeed, and a verdict for the defendants must be held to be contrary to the evidence, and the order for a new trial was consequently right.
I do not think it necessary to express any opinion as to the view which Mr. Justice Townshend took as J. to the improper receipt of alleged hearsay evidence, but I think he w as right in his view as to the reception of the copy of the plan alleged to be a copy of the plan attached to the original grant.
If the plan itself had been produced and proved by a competent officer to be an original on file in the Crown Lands Office, it would, at common law as well as under the statute of 1900, have been evidence. Having probably been made by the officers of the Crown Lands Department about a century before the plaintiff's lease, it was certainly evidence against the Crown, not conclusive evidence, but evidence, as an admission by the Crown of the character of the country evidently surveyed by its officers and granted to settlers.
And, if it is evidence against the Crown, it is likewise evidence against all persons claiming under the Crown subsequently to its coming into existence. The appeal should, therefore, be dismissed with costs.
Appeal dismissed with costs.