The Queen v. Robertson

The Queen v. Robertson
Collection
Supreme Court Judgments
Date
1882-04-28
Report
(1882) 6 SCR 52
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar
On appeal from
Federal Court of Appeal
Subjects
Fishery
Decision Content
Supreme Court of Canada
The Queen v. Robertson (1882) 6 SCR 52
Date: 1882-04-23
The Queen
Appellant
And
Christian A. Robertson
Respondent
1882: Feb'y. 21; 1882: April 23
Present—Sir W. J. Ritchie, Knight, C. J.; and Strong, Fournier, Henry and Taschereau, J.J.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Petition of Right—Fisheries Act, 31 Vic. ch. 60 (D)—British North America Act, 1867, secs. 91, 92 and 109—Fisheries, regulation and protection of—License to fish in that part of the Miramichi River above Price's Bend—Rights of riparian proprietors in granted and ungranted lands—Right of passage and right of fishing.
On January 1st, 1874, the Minister of Marine and Fisheries of Canada, purporting to act under the powers conferred upon him by sec. 2, ch. 60, 31 Vic., executed on behalf of Her Majesty to the suppliant an instrument called a lease of fishery, whereby Her Majesty purported to lease to the suppliant for nine years a certain portion of the South West Miramichi River in New Brunswick for the purpose of fly-fishing for salmon therein. The locus in quo being thus described in the special case agreed to by the parties:—
"Price's Bend is about 40 or 45 miles above the ebb and flow of the tide. The stream for the greater part from this point upward, is navigable for canoes, small boats, flat bottomed scows, logs and timber. Logs are usually driven down the river in high water in the spring and fall. The stream is rapid. During summer it is in some places on the bars very shallow."
Certain persons who had received conveyances of a portion of the river and who, under such conveyances, claimed the exclusive right of fishing in such portion, interrupted the suppliant in the enjoyment of his fishing under the lease granted to him, and put him to certain expenses in endeavoring to assert and defend his claim to the ownership of the fishing of that portion of the river included in his lease. The Supreme Court of New Brunswick having decided adversely to his exclusive right to fish in virtue of said lease, the suppliant presented a petition of right and claimed compensation from Her Majesty for the loss of his fishing privileges and for the expenses he had incurred.
By special case certain questions (which are given below) were submitted for the decision of the court, and the Exchequer Court held inter alia that an exclusive right of fishing existed in the parties who had received the conveyances, and that the Minister of Marine and Fisheries consequently had no power to grant a lease or license under sec. 2 of the Fisheries Act of the portion of the river in question, and in answer to the 8th question, viz.: "where the lands (above tidal water) through which the said river passes are ungranted by the Crown, could the Minister of Marine and Fisheries lawfully issue a lease of that portion of the river?" held, that the Minister could not lawfully issue a lease of the bed of the river, but that he could lawfully issue a license to fish as a franchise apart from the ownership of the soil in that portion of the river.
The appellant thereupon appealed to the Supreme Court of Canada on the main question: whether or not an exclusive right of fishing did so exist.
Held,—(affirming the judgment of the Exchequer Court) 1st, that the general power of regulating and protecting the Fisheries, under the British North America Act, 1867, sec. 91, is in the Parliament of Canada, but that the license granted by the Minister of Marine and Fisheries of the locus in quo was void because said act only authorizes the granting of leases "where the exclusive right of fishing does not already exist by law," and in this case the exclusive right of fishing belonged to the owners of the land through which that portion of the Miramichi River flows.
2nd,—That altho' the public may have in a river, such as the one in question, an easement or right to float rafts or logs down and a right of passage up and down in Canada, &c., wherever the water is sufficiently high to be so used, such right is not inconsistent with an exclusive right of fishing or with the right of the owners of property opposite their respective lands ad medium filum aquce.
3rd. That the rights of fishing in a river, such as is that part of the Miramichi from Price's Bend to its source, are an incident to the grant of the land through which such river flows, and where such grants have been made there is no authority given by the B. N. A. Act, 1867, to grant a right to fish, and the Dominion Parliament has no right to give such authority.
4th. Per Ritchie, C. J., and Strong, Fournier and Henry, J. J.—(reversing the judgment of the Exchequer Court on the 8th question submitted) that the ungranted lands in the Province of New Brunswick being in the Crown for the benefit of the people of New Brunswick, the exclusive right to fish follows as an incident, and is in the Crown as trustee for the benefit of the people of the province, and therefore a license by the Minister of Marine and Fisheries to fish in streams running through provincial property would be illegal.
Appeal from a judgment rendered by Mr. Justice Gwynne in the Exchequer Court of Canada, in the matter of the petition of right of Christian A. Robertson, the above named respondent.
The following special case was agreed to by the parties:
"The Miramichi river at Price's Bend is about forty or forty-five miles above the ebb and flow of the tide. The stream for the greater part from this point, upward, is navigable for canoes, small boats, flat bottom scows, logs and timber. Logs are usually driven down the river in high water in the spring and fall. The stream is rapid. During summer it is in some places on the bars very shallow. In the salmon fishing season, say June, July and August, canoes have to be hauled over the very shallow bars by hand.
"On the 5th November, A. D. 1835, a grant issued to the Nova Scotia and New Brunswick Land Company of 580,000 acres, which included within its limits that portion of the Miramichi river which is in question, and the said grant contained, together with the usual granting clauses, the following clause:—'Excepting also out of the said tract of land, described within the said bounds, all and every lot, piece and parcel of land which have been heretofore by us or our predecessors given or granted to any person or persons whatsoever, or to any body corporate by any grant or conveyance under the Great Seal of the Province of New Brunswick, or the Great Seal of the Province of Nova Scotia during the period when the said hereby granted tract of land was part and parcel of our said Province of Nova Scotia, together with all privileges, &c., and also further excepting the bed and waters of the Miramichi river, and the beds and waters of all the rivers and streams which empty themselves either into the river St John or the river Nashwaak, so far up the said rivers or streams respectively as the same respectively pass through, or over any of the said heretofore previously granted tracts, pieces or parcels of land hereinbefore excepted.' (Copy of grant may be referred to.)
"Copies of grants, made prior to the grant to the Nova Scotia and New Brunswick Land Company, of same lots within and some immediately adjoining and outside of the boundaries of the company's tract, to Steven Hovey, Peter Hayes, Thomas Hunter and James Young, and twelve other copies of letters patent are herewith and may be referred to. The other grants to the others within the company's tract are in similar form; copy of map annexed to the grant to the company is also filed herewith; and all are made part of this case.
"On the first day of January, A. D. 1874, the Honorable Peter Mitchell, then being the Minister of Marine and Fisheries in and for the Dominion of Canada, did, in pursuance of the powers purporting to be vested in him by the Act of the parliament of Canada, intituled "An Act for the regulation of fishing and protection of the fisheries," lease to suppliant as follows:—
LEASE OF FISHERY.
"Dominion of Canada, to wit:
"Lease between Her Majesty, acting by and through the Minister of Marine and Fisheries for the Dominion of Canada, of the one part, and Christian A. Robertson, esquire, of the city of St John, New Brunswick, of the other part. "Her Majesty hereby leases, for the purpose of fly fishing for salmon, unto the said Christian A. Robertson, hereto present and accepting for himself, his heirs, executors, administrators and assigns, for and during the period hereinafter mentioned, and under the conditions herein below stipulated, a certain fishing station situated on the south-west Miramichi river, in the province of New Brunswick, and described as follows, that is to say: the fluvial or angling division of the southwest Miramichi river from Price's Bend to its source.
"The present lease is hereby made for and during the space and term of nine years, to be computed and reckoned from the first day of January, one thousand eight hundred and seventy-four until the thirty-first day of December, which will be in the year of our Lord one thousand eight hundred and eighty-two, and on the following conditions:—
"1st. That the said lessee shall pay to Her Majesty, into the hands of the Minister of Marine and Fisheries for the time being, or such other person or persons duly authorized to receive the same, an annual rent of fifty dollars currency, the said rent payable annually in advance.
"2nd. That the said lessee shall, in the use and occupation of the fishery station and privileges hereby leased, and the working of the same, in every respect conform to all and every the provisions, enactments and requirements of the fishery laws now, or which may hereafter be in force, and comply with all rules and regulations adopted or to be passed by the Governor General in Council relative thereto.
"3rd. That the lessee shall neither concede nor transfer any interest in the present grant, nor sub-let to any one without first duly notifying the Department of Marine and Fisheries, and receiving the written consent of the Minister thereof, or some other person or persons authorized to that effect. Provided always that actual settlers shall enjoy the privilege of fishing with a rod and line in the manner known as fly surface-fishing in front of their own properties.
"4th. That the said lessee shall not have any right, claim or pretension to any indemnity or abatement of rent by reason of a decrease or failure in the fishery by these presents leased.
"5th. That in default of payment by the said lessee of the rent as hereinbefore stipulated, or by his neglect, default or evasion, failure or refusal to fulfil any of the other clauses and conditions of this lease, the same may, at the option of the lessor, be at any time determined and put an end to upon notice thereof to the said lessee by letter posted to him to the post office nearest to the said premises, or by personal notice through any overseer of fisheries for the province of New Brunswick, or other person by the Minister of Marine and Fisheries deputed for the purpose, and the said lease shall become absolutely void and the crown may thereupon enter into possession and enjoyment of the said station and privileges without any indemnification for improvements or recourse to law, and relet the same; the said lessee being moreover held bound and liable for all loss or damage which might accrue or arise to the crown by reason of receiving a lower rent, or being unable to release the premises and privileges appertaining thereto or otherwise.
"6th. That the said lessee binds himself to establish and maintain efficient private guardianship upon the said stream throughout each season, to the satisfaction of the lessor, who reserves the right of four rods.
"This said lease (in duplicate) made and passed on the thirty-first day of October, in the year of Our Lord one thousand eight hundred and seventy-three in presence of the undersigned witnesses.
P. MITCHELL,
Minister of Marine and Fisheries.
Witness: S. P. Bauset.
Countersigned—W. F. Whitcher,
Commissioner of Fisheries.
C. A. Robertson.
Witness: W. H. Venning.
"It is admitted for the purpose of this case:
"1. That the Government of Canada did not own the lands adjoining the said river within the limits of the said lease.
"2. That the said lease includes all that portion of the South-west Miramichi River included in the lands of the aforesaid grant to the Nova Scotia and New Brunswick Land Company; and also the remainder of the river above the said grant up to its source, which last portion of the river passes through ungranted land, and is of comparatively little value for the purpose of salmon fishing. That the said river for several miles up the stream and above and below the lots and parcels of land previously granted to the said New Brunswick and Nova Scotia Land Company, and excepted in the said grant, is within the boundaries of the land described in the said grant. That under the said lease the suppliant entered upon the said fluvial division so leased to him, and paid the annual rent, and fulfilled and performed all the conditions and agreements and provisions in the said lease contained on his part and behalf to be kept fulfilled and performed.
"3. That although the suppliant under the said lease claimed to be in occupation of the said fishery station described in aforesaid lease, and to have the exclusive right of fishing therein, and that subject to the reservations in the said lease he had the right of preventing all persons from fishing for salmon within the bounds of the said fishery station, James Steadman and Edgar Hanson, who were not actual settlers, and who did not have or claim to have any lease, license or permission so to do from the Minister of Marine and Fisheries, or from the suppliant, did (with the permission and consent of and under and by virtue of conveyances from the said Nova Scotia and New Brunswick Land Company of land, including a portion of the said river above the aforesaid grants so excepted and reserved in said grant to the Company), during the year 1875, and during the season when fly fishing was lawful, enter upon the said portion of the river, being a part of the river so leased as aforesaid, and fished for and caught salmon by fly fishing against the will of suppliant and against his consent.
"4. That in order to maintain his rights and privileges, and the right of fishing purporting to be granted and demised to the suppliant by the said lease, the suppliant prevented the said James Steadman and Edgar Hanson from fly fishing.
"5. That the said James Steadman and Edgar Hanson, respectively, brought actions against the suppliant and his servants for and by reason of such prevention from fishing, as above stated, and such proceedings were thereupon had that the said James Steadman and Edgar Hanson recovered against the suppliant damages and costs, which the suppliant has been obliged to pay, and that the Supreme Court of New Brunswick on appeal (see Steadman v. Robertson et al., and Hanson v. Robertson et al.[1], held that the Minister of Marine and Fisheries had no right or power to issue the said fishery lease, and that the same was null and void.
"6. That in and about the defence of the said actions the suppliant also incurred costs and expenses. "7. That also by reason of the premises the suppliant has sustained other loss and damage.
"8. That in establishing and maintaining efficient private guardianship upon the said stream through the season, required by the said lease, the suppliant has also expended money.
"9. That the suppliant therefore prays that her Majesty will be pleased to do what is right and just in the premises, and cause the suppliant to be re-imbursed and compensated for the moneys so expended by him as aforesaid, and for the losses, damages and injuries sustained by him as aforesaid.
"10. It is agreed that the statements above set out are admitted for the purpose of this; special case, and are to be used for the purpose of enabling the court to decide the questions of law raised hereby.
"11. It is also agreed that either party may appeal from the judgment to be pronounced in the above case as upon a demurrer.
"The following questions are therefore submitted for the decision of the court:—
"1. Had the Parliament of Canada power to pass the 2nd section of the said Act entitled "An Act for the regulation of fishing and the protection of the Fisheries?"
"2 Had the Minister of Marine and Fisheries the right to issue the fishery lease in question?
"3. Was the bed of the S. W. Miramichi within the limits of grant to the Nova Scotia and New Brunswick Land Company, and above the grants mentioned and reserved therein, granted to the said company?
"4. If so, did the exclusive right of fishing in said river thereby pass to the said company?
"5. If the bed of the river did not pass, had the company, as riparian proprietor, the right of fishing ad filum aquæ; and if so, was that right exclusive? "6. Have the grantees in grants of lots bounded by srid river, or by any part thereof, and excepted from the said company's grant, any exclusive or other right of fishing in said river opposite their respective grants?
"7. If an exclusive right of fishing in a portion of the Miramichi river passed to said company, or to the grantees in the excepted grants, or any of them, could the Minister of Marine and Fisheries issue a valid fishery lease of such portion of the river?
"8. Where the lands (above tidal water) through which the said river passes are ungranted by the Crown, could the Minister of Marine and Fisheries lawfully issue a lease of that portion of the river?
"9. It is understood and agreed, that if upon the final determination of the case it be held that the Government had no power to make the lease in question to Mr. Robertson, an order shall be made referring it to the proper officer of the court to take an account of the expenses actually and properly incurred by Mr. Robertson, in connection with the suits in the courts of New Brunswick, and such other actual expenses as he may have been put to on account of the action of the parties who intercepted the rights claimed by him under the lease; and it is further understood and agreed that the government shall pay to Mr. Robertson such of these expenses as the court may think him entitled to, in case the parties to this suit may differ upon the matter."
The case was argued in the Exchequer Court for the Suppliant by Mr. Haliburton, Q.C., and for the Crown by Mr. Lash, Q.C.
On the 7th October, 1889, the following judgment was delivered by Gwynne, J.:—
"This special case came before me in the month of February, but upon the argument appearing to be imperfect was withdrawn, and amended, and as so amended was argued in the month of May. After this argument there appeared to me to be still wanting information as to some facts which should be introduced by way of further amendment. These facts have been supplied during the vacation and are now made part of the case.
"The question is as to the right to the Salmon Fishery in the Miramichi River in the Province of New Brunswick, and as to the validity of an instrument purporting to be a lease or license under the provisions of the Fisheries Act of 1868, issued by the Minister of Marine and Fisheries, bearing date 31st of October 1873. The questions submitted by the special case which has been agreed upon are as follows:
"1st. Had the Parliament of Canada power to pass the 2nd section of the Act of 1863 entitled, 'An Act for the regulation of Fishing and the Protection of the Fisheries'?
"2nd. Had the Minister of Marine and Fisheries the right to issue the Fishery Lease in question?
"3rd. Was the bed of S. W. Miramichi River within the limits of the grant to the Nova Scotia and New Brunswick Land Company, and above the grants mentioned and reserved therein, granted to the said Company?
"4. If so, did the exclusive right of fishing in said River thereby pass to the said Company?
"5. If the bed of the River did not pass, had the Company as riparian proprietor the right of fishing ad filum aquæ, and if so, was that right exclusive?
"6. Have the Grantees in grants of lots bounded by said River or by any part thereof, and excepted from the said Company's grant, any exclusive, or other right of fishing in said River opposite to their respective grants?
"7. If an exclusive right of fishing in a portion of the Miramichi River passed to the said Company or to the grantees in the excepted grants or any of them, could the Minister of Marine and Fisheries issue a valid fishery lease of such portion of the River?
"8. Where the lands, above tidal water, through which the said River passes are ungranted by the Crown, could the Minister of Marine and Fisheries lawfully issue a Lease of that a portion of the River?
"It is agreed by the case, that if, upon the final determination of it, it be held that the Government had no power to make the lease in question to the Suppliant, an order shall be made referring it to the proper officer of the Court to take an account of the expenses actually and properly incurred in connection with certain suits in the Courts in New Brunswick and such other actual expenses as he may have been put to on account of the action of parties who intercepted the rights claimed by him under the lease, and it was further agreed that the Government should pay to the Suppliant such of those expenses as the Court may think him entitled to, in case the Suppliant and the Government should differ upon the matter.
"The clause of the Act referred to in the first of the above questions is the 2nd section of the Dominion Act 31st Vic., ch. 60, and is as follows:—'The Minister of Marine and Fisheries may, where the exclusive right of fishing does not already exist by law, issue or authorize to be issued Fishery Leases, and licenses for Fisheries and fishing, wherever situate and carried on, but leases or licenses for any term exceeding nine years, shall be issued only under authority of an order of the Governor in Council.'
"The Act in which this section is contained was passed by the Dominion Parliament 'for the regulation of fishing and the protection of Fisheries' and it was passed under the authority of the British North America Act, the 91st section of which places, among other matters, under the exclusive authority of the Parliament of Canada, 'Sea Coast and Inland Fisheries.'
"To secure an uniformly consistent construction of this our Constitutional Charter it is necessary that some certain and sufficient canon of construction should be laid down and adopted, by which all Acts passed as well by the Parliament as by the Local Legislatures may be effectually tested upon a question arising as to their being or not being intra vires of the legislating body passing them. Such a canon appeared to me to be that formulated by me in the City of Fredericton vs. The Queen[2], and it still appears to me to be a good and sufficient rule for the required purpose, namely,—'All subjects of legislation of every description whatever are within the jurisdiction and control of the Dominion Parliament to legislate upon, except such as are placed by the British North America Act under the exclusive control of the Local Legislatures, and nothing is placed under the exclusive control of the Local Legislatures unless it comes within some or one of the subjects specially enumerated in the 92nd section, and is at the same time outside of the several items enumerated in the 91st section, that is to say, does not involve any interference with any of those items.' The effect of the closing paragraph of the 91st section, namely: 'and any matter coming within any of the classes of subjects enumerated in the 91st section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces' in my opinion clearly is to exclude from the jurisdiction of the Local Legislatures the several subjects enumerated in the 92nd section, in so far as they relate to or affect any of the matters enumerated in the 91st section. "Now among the items enumerated in section 92 there is nothing which could give to the Local Legislatures any jurisdiction whatever over Sea Coast and Inland Fisheries, unless it be the item 'Property and Civil Rights in the Province,' but inasmuch as 'Sea Coast and Inland Fisheries' are enumerated specially in the 91st section as placed under the exclusive control of Parliament, this enumeration carries with it exclusive jurisdiction over property and civil rights in every province in so far as whatever is comprehended under the term 'Sea Coast and Inland Fisheries' is concerned, and the Local Legislatures have no jurisdiction whatever over this subject; the jurisdiction therefore which is given to the Local Legislatures over 'property and civil rights in the Province' is not an absolute, but only a qualified jurisdiction, and must be held to be limited to the residuum of such jurisdiction not absorbed by the exclusive control given to the Dominion Parliament over every one of the subjects enumerated in the 91st section: while the jurisdiction of Parliament over every subject placed under its control is as absolute and supreme as the jurisdiction of the Imperial Parliament over the like subject in the United Kingdom would be; the design of the British North America Act being to give to the Dominion of Canada a constitution similar in principle to that of the United Kingdom. It is of course, in every case, necessary to form an accurate judgment upon what is the particular subject matter in each case as to which the question arises, for the extent of the control of parliament over the subject-matter, may possibly be limited by the nature of the subject; for example, the first item enumerated in the 91st section as placed under the exclusive control of the Parliament is 'the Public debt and property,' and by section 108 the Provincial Public Works and property are declared to be the property of Canada. The jurisdiction of Parliament over such property is in virtue of the subject-matter being the property of Canada, but if Parliament should so legislate as to dispose absolutely by sale of portions of this property from time to time, it may well be that the property so sold, when it should become the property of individuals, should be no longer subject to the control of the Dominion Parliament any more than any other property of an individual should be; but over most of the subjects enumerated in the 91st section, the right of the Dominion Parliament to legislate is wholly irrespective of there being any property in the several subjects vested in the Dominion of Canada, and over those subjects the right of legislation continues forever, no matter who may have 'property or civil rights' therein. There is nothing strange in this provision; on the contrary, it is in perfect character with the whole scheme of the Act, that the jurisdiction of the Dominion Parliament should be supreme over all subjects which are of general public interest to the whole Dominion in whomsoever the property in such subject may be vested.
"It cannot be questioned that all the inhabitants of this Dominion, in whatever Province they may reside, have an interest in the regulation and protection of the Fisheries, whether they be Sea Coast or Inland, not only as affording a large supply of food for the inhabitants of the Dominion, but a very extensive traffic also between the several Provinces and with England as well as with Foreign States, thus extending the trade and commerce external and internal of the Dominion, and this interest of the public in the Fisheries is not the less because in our Inland waters, consisting of Rivers and Lakes teeming with the finest fish, private persons may have property therein. Now, what is to be comprehended under the term 'Fisheries' as used in the 12th item of the 91st section of the British North America Act? In Abbot's Law Dictionary, the term is defined to be, "the right to take fish at a certain place or upon particular waters."
"Chancellor Kent, in his commentaries, defines common of Piscary to be 'a liberty or right of fishing in water covering the soil of another or in a river running through another man's lands'—'it is not,' he says, 'an exclusive right, but one enjoyed in common with certain other persons.' Lord Holt, in 2 Salk. 637, said that it was to be resembled to the case of other commons.
"In the Mayor of Carlisle v. Graham[3] 'Common of Fishery' is distinguished from 'Common Fishery,' the former being defined to be a right enjoyed by several persons, but not the whole public, in a particular stream, and the latter, a right enjoyed by all the public as on the sea, or to the ebb and flow of the tide: 'Free Fishery,' is there defined to be a franchise in the hands of a subject existing by grant or prescription distinguished from an ownership in the soil; and 'Several Fishery' to be a private exclusive right of fishing in a navigable river or arm of the sea, but whether it must be accompanied with ownership in the soil, in that the authorities differ.
"Mr. Hargrave in his jurisconsult consultations on the distinction of Fisheries differs from Blackstone, who was of opinion that the ownership of the soil was essential to a several fishery; after quoting Lord Coke's argument, Mr. Hargrave says: 'At the utmost, they only prove that a several Piscary is presumed to comprehend the soil until the contrary appears, which is perfectly consistent with Lord Coke's position that they may be in different persons, and this indeed appears to be the true doctrine on the subject; and Chancellor Kent in his commentaries[4] says: 'The more easy and intelligible arrangement of the subject would seem to be to divide the right of fishing into a right common to all and right vested exclusively in one or more persons.' In fresh water rivers, he says, 'that is, above the ebb and flow of the tide, the owners of the soil on each side had the interest and the right of fishery, and it was an exclusive right extending to the centre of the stream opposite their respective lands unless a special grant or prescription be shown.'
"In Lord Fitz Walters case[5], Hale, C.J., ruled that in the case of a private, river the Lord having the soil, is good evidence to prove he has the right of fishing, and it put the proof on them that claim liberam Piscariam, i. e. a right of fishing distinct from ownership of the soil.
"The right of fishing, then, in rivers above the ebb and flow of the tide, may exist as a right incident upon the ownership of the soil or bed of the river, or as a right wholly distinct from such ownership, and so the ownership of the bed of a river may be in one person, and the right of fishing in the waters covering that bed may be wholly in another or others.
“Now, that the British North America Act did not contemplate placing the title or ownership of the beds of fresh water rivers under the control of the Dominion Parliament so as to enable that Parliament to affect the title to the beds of such rivers sufficiently appears, I think, from the 109th section, by which 'all lands mines, minerals and royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunwick at the Union' are declared to belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate, and this term 'lands' in this section is sufficient to comprehend the beds of all rivers in those ungranted lands. We must, however, in order to give a consistent construction to the whole Act, read this 109th section in connection with and subject to the provisions of the 91st section, which places 'all Fisheries' both sea, coast and inland under the exclusive Legislative control of the Dominion Parliament. Full effect can be given to the whole Act by construing it (and this appears to me to be its true construction) as placing the fisheries or right of fishing in all rivers running through ungranted lands in the several Provinces, as well as in all rivers running through lands then already granted, as distinct and severed from the property in, or title to, the soil or beds of these rivers, under the exclusive Legislative control of the Dominion Parliament. So construing the term 'Fisheries,' the control of the Dominion Parliament may be, and is, exclusive and supreme without its having any jurisdiction to legislate so as to alter in any respect the title or ownership of the beds of the rivers in which the Fisheries may exist. That title may be and is in the Grantees of the Crown where the title has passed, or may pass hereafter, by grants to be made under the seal of the several Provinces in which the lands may lie, but the exclusive right to control the 'Fisheries,' as a property or right of fishing distinct from ownership of the soil, is vested in the Dominion Parliament.
"So construing the term, it must be held to comprehend the right to control, in such manner as to Parliament in its discretion shall seem expedient, all deep sea fishing and the right to take all fish ordinarily caught either on the sea coast or in the great lakes or in the rivers of the Dominion, and which are valuable for food, within the Dominion, or for exportation for that purpose, or for any other purpose of trade and commerce, and must include as well the right to catch fish as the designation and control of the places where the fish may be caught and the times and manner of catching; it must also, as it appears to me, be construed to comprehend all such rights of fishing and other matters relating to the 'Fisheries,' as distinct from ownership of the bed of the streams, and relating to the protection of the fish, as had been provided by legislation within any of the old Provinces, as the same were constituted before the passing of British North America Act. Now, many Acts had been passed by the legislature of the old Province of New Brunswick for the regulation and protection of the fisheries in that Province between the 33rd Geo. 3rd, ch. 9, and 26 Vic. ch. 6, prohibiting, among other things, the use of drift nets, the erection of any hedge, weir, fishgarth, or other, incumbrance, or the placing any seine or net across any river, cove or creek in the Province in such manner as to obstruct or injure the natural course of the fish in any river where they usually go—regulating the construction of Mill dams—prohibiting also the fishing for Salmon and other fish at certain periods of the year, and giving to the Justices in General Sessions in each County power to establish such other rules and regulations as to them should seem fit for the better production and preservation of the fish within their respective counties, provided that such regulations should not be contrary to, and should not interfere with, the general regulations and restrictions contained in any Act of Assembly or private right. By chapter 101, of the Revised Statutes, the Governor in Council was authorized to appoint two wardens of Fisheries in any County, who should watch over and protect the fisheries, enforce the provisions of that Act, the rules of the Justices in Sessions, or of municipal authorities, and the regulations of the Governor in Council in relation to such fisheries.
Section 5 authorized the Governor in Council to grant leases or licenses of occupation, for a term not exceeding five years, for fishing stations on ungranted shores, beaches or islands, which should terminate when such stations should cease to be used for such purpose, and that such leases or licenses should be sold at public auction, but that the right in lands and privileges already granted should not be affected thereby. This provision as to leases or licenses would seem to apply only to fishing in tidal waters, but 26 Vic. ch. 6, which was in fact an amendment and consolidation of all previous Acts from ch. 101 of the Revised Statutes, enacted that the Governor in Council might grant leases or licenses for fishing purposes in rivers and streams above the tidal waters of such streams or rivers when the same belong to the Crown, or the lands are ungranted, that such leases or licenses should be sold by public auction after 30 days notice in the Royal Gazette, the upset price being determined by the Governor in Council, but that the rights of parties in lands and privileges already granted should not be affected thereby, and that the rents and profits arising from such leases or licenses should be paid into the Provincial Treasury to a separate account to be kept, called 'The Fishery protection account.'
"In Nova Scotia also there were statutes of a somewhat similar character. Ch. 94 of Title 25 revised Stat. (2nd series) regulated the Sea Coast Fisheries, and ch. 95 the River Fisheries. The first section of this latter Act empowered the Sessions from time to time to make orders for regulating the River Fisheries, and subjected every person who should transgress such orders to a fine not exceeding £10 for each offence, and by section 6 it was enacted that the Sessions should annually appoint such and so many places on the rivers and streams as might be attended with the least inconvenience to the owners of the soil or the rivers as resorts for the purpose of taking fish, but that the same and the enactments in the Act contained should not extend to any species of fish from the sea, except Salmon, Bass, Shad, Ale wives and Gaspereaux.
"The 10th section regulated the Salmon fishing. So likewise in Canada an Act was passed, entituled 'An Act respecting fisheries and fishing,' Consolidated Statutes of Canada, 22 Vic., ch. 62, containing many like provisions, the first section of which authorized the Governor in Council to grant special fishing leases and licenses on lands belonging to the Crown for any term not exceeding nine years, and to make all and every such regulations as might be found necessary or expedient for the better management and regulation of the Fisheries of the Province. This Act was amended by the 29 Vic., ch. 11, the 3rd section of which (and from which the 2nd section of 31 Vic., ch. 60 would seem to be taken) purported to give the Commissioner of Crown Lands the authority which the latter Act and section purports to give to the Minister of Marine and Fisheries, and is as follows: 'The Commissioner of Crown Lands may, where the exclusive right of fishing does not already exist by law in favor of private persons, issue fishing leases and licenses for fisheries and fishing wheresoever situated or carried on, and grant licenses of occupation for public lands in connection with fisheries, but leases or licenses for any term exceeding nine years shall be issued only under authority of the Governor General in Council.'
"At the time of the passing of the British North America Act, the above recited Acts were in force in New Brunswick, Nova Scotia and Canada respectively, and by force of the 129th section continued so to be, after the passing of the Act, until the same should he repealed, abolished or altered by Parliament, and the effect was in fact, the same as if the British North. America Act had for the protection and preservation of the fisheries, in precise terms, repealed those enactments and declared that the Dominion Executive should have full power to carry them into effect until the Parliament should repeal, abolish or alter those enactments or any of them, or make additional or other provisions in their stead—unlimited power is thus vested in the Parliament, either to maintain the then existing provisions or such of them as it should think fit, or in its wisdom to repeal, abolish or alter those provisions and to make such further and other, or the like provisions and enactments upon the subject, as to it should seem expedient. Now the Act under consideration, viz: 31 Vic., ch. 60, maintains the like scrupulous respect for private rights as the old acts which it repealed had done; for by the 2nd section the power given to the Minister of Marine and Fisheries to issue fishery leases and licenses is confined expressly to those places 'where the exclusive right of fishing does not already exist by law,' following the provision of the Canada Statute 29 Vic., ch. 11, section 3.
"In all matters placed under the control of Parliament, all private interests, whether Provincial or personal, must yield to the public interest and to the public will, in relation to the subject-matter, as expressed in an Act of Parliament. Constituted as the Dominion Parliament is after the pattern of the Imperial Parliament, and consisting as it does of Her Majesty, a Senate and a House of Commons, as separate branches, the latter elected by the people as their representatives, the rights and interests of private persons, it must be presumed, will always be duly considered, and the principles of the British Constitution, which forbids that any man should be wantonly deprived of his property under pretence of the public benefit or without due compensation, be always respected.
"It is, however, in Parliament, upon the occasion of the passing of any Act which may effect injuriously private rights, that those rights are to be asserted, for once an Act is passed by the Parliament in respect of any matter over which it has jurisdiction to legislate, it is not competent for this or any Court to pronounce the Act to be invalid because it may affect injuriously private rights, any more than it would be competent for the Courts in England, for the like reason, to refuse to give effect to a like Act of the Parliament of the United Kingdom. If the subject be within the legislative jurisdiction of the Parliament and the terms of the Act be explicit, so long as it remains in force effect must be given to it in all Courts of the Dominion, however private rights may be affected. There is no evil to be apprehended from giving, in our constitution, full effect to this principle, which is inherent in the British Constitution, nor would the transfer of jurisdiction to the Local Legislatures be any improvement, for experience does not warrant the belief that the interests of private persons in relation to any subject would be more respected, or the Public interest be better protected, if such subject were placed under the control of the Local Legislatures instead of under that of Parliament.
"The Imperial Parliament, having supreme control over the title to, or ownership of, the beds and soil of the inland waters of the Dominion, and also over the franchise or right of fishing therein as a distinct property, has, at the request of the old Provinces of Canada, Nova Scotia and New Brunswick as the same were constituted before the passing of the British North America Act, so dealt with those subjects as, while leaving the title to the beds and soil of all rivers and streams passing through or by the side of lands already granted in the grantees of such respective lands, to place the franchise or right to fish as a separate property distinct from the ownership of the soil under the sole, exclusive and supreme control of the Dominion Parliament. Construing then the term 'Fisheries' as used in the British North America Act, as this franchise or incorporeal hereditament apart from and irrespective of the title to the land covered with water in which the Fisheries exist, it seems to me to be free from all doubt, that the jurisdiction of Parliament over all fisheries, whether sea, coast or inland, and whether in Lakes or Rivers, is exclusive and supreme, notwithstanding that in the rivers and other waters wherein such fisheries exist, until Parliament should legislate upon the subject, private persons may be seised and possessed of the fishing in such waters, either as a right incident to ownership of the beds and soil covered by such waters, or otherwise; and that therefore, the first question in the special case must be answered in the affirmative.
"The special case raises no question as to the terms of the particular instrument which has been used, nor whether it gives to the party named therein, assuming the Minister signing it to have the right to give, an exclusive franchise or privilege of fishing in the waters named during the period named; or only a right in common with others to whom a like privilege might be given as in Bloomfield vs. Johnson[6], but for the reasons already stated it will be seen that, while by force of the statute, the form of the instrument (although it is not issued under the great seal of the Dominion, under which alone such a franchise could, by the course of the Common Law, be granted) may be sufficient to pass the franchise as distinct from the ownership of the bed or soil of the river, it cannot operate as a demise or transfer of the legal estate in the bed of the river to the donee or Grantee or Licensee (which latter term seems to me to be the most appropriate) of the franchise. As to the residue of the questions submitted in the special case, it will be convenient to review the nature, condition and title to the particular property in question, namely:—the right of fishing in the Miramichi River prior to and at the time of the passing of the British North America Act, and to consider what the law as affecting such property then was.
"The special case states that the portion of the Miramichi River which is covered by the Fishery Lease to the Suppliant is above tidal waters and is navigable for canoes and boats and has been used from the earliest settlement of the Country as a highway for the same and for the purpose of floating down timber and log to market. After the St. John, the largest river in New Brunswick is the Miramichi, flowing northward into an extensive Bay of its own name. It is 225 miles in length and seven miles wide at its mouth. It is navigable for large vessels 25 miles from the Gulf, and for schooners 20 miles further to the head of the tide, above which for sixty miles it is navigable for tow boats. It has many large tributaries spreading over a great extent of Country.—Price's Bend is about 40 or 50 miles above the ebb and flow of the tide. The stream for the greater part from this point upwards is navigable for canoes, small boats, flat bottomed scows, logs and timber; logs are usually driven down the River in highwater in the Spring and Fall. The stream is rapid: during summer, it is in some places on the bars very shallow. In the salmon fishing season, say June, July and August, canoes have to be hauled over the very shallow bars by hand.
"On the 5th November, 1835, a Grant issued to the Nova Scotia and New Brunswick Land Company of 580,000 acres, which included within its limits that portion of the Miramichi River which is in question, and the said Grant contained with the usual granting clauses the following clause, 'excepting also out of the said tract of land described within the said bounds, all and every lot, piece or parcel of land which have been heretofore by us or our predecessors given or granted to any person or persons whatsoever, or to any body corporate by any grant or conveyance under the Great Seal of the Province of New Brunswick, or the Great Seal of the Province of Nova Scotia, during the period when the said hereby granted tract of land was part and parcel of our said Province of Nova Scotia, together with all privileges, &c., and also further excepting the bed and waters of the Miramichi river and the beds and waters of all the rivers and streams which empty themselves into the St. John or the river Nashwaak so far up the said rivers and streams respectively as the same respectively pass through or over any of the said heretofore previously granted pieces or parcels of land hereinbefore excepted.'
"The contention of Mr. Lash upon the part of the Crown as representing the Dominion Government is, that the admissions in the case establish the River Miramichi, at the locus in quo, to be a navigable river, and that, as such, the public at large had a common right of fishing therein, and that therefore there could be no exclusive right of fishing therein, even if the bed of the River had passed by the Grant to the Nova Scotia and New Brunswick Land Company, a point which however he disputes, contending that the bed of the river Miramichi is wholly excepted from the grant; and if the river be, as he contends it is, a public river, he contends that Magna Charta prevents any exclusive right of fishing therein. That the St. Lawrence and other great rivers of Old Canada and the great Lakes formed by them are public waters open to the public at large, who have the right not only of navigation but of fishing also therein, unless in places which are covered by special grants, is too well established now to admit of a doubt. If the principle upon which Dixon vs. Scnetsinger[7] was decided be the correct principle, that right is established upon a firm basis in all those waters, wholly irrespective of the Common Law principle that such right is by the Common Law of England confined to tidal waters; but the same reasoning as in Dixon vs. Scnetsinger was applied to the rivers of Old Canada will not apply to the rivers of New Brunswick, the right of fishing in which must be considered with reference to the Common Law of England. I find some difficulty in determining what is precisely meant by the expression in the special case, wherein it is admitted that the portion of the Miramichi river which is covered by the fishery lease to the Suppliant, 'has been used from the earliest settlement of the country as a highway for the same and for the purpose of floating down timber and logs to market'—for, by the plan which accompanies the grant to the Nova Scotia and New Brunswick Land Company, it would seem that for some 20 or 30 miles up the Miramichi river, within the limits of the Company's grant and above the highest prior grant of any land upon the river above Price's Bend, the country was a dense forest without any settlement whatever, and higher up than the company's grant there is not said to have been any settlement, nor is it said that there had been any licenses to cut timber granted by the Crown in any part of the tract upon the river above the remotest land which had been granted. I find it difficult therefore to understand, if this is what is meant to be admitted, how from the earliest settlement in New Brunswick that part of the river which runs through wild ungranted forest land in which there never had been any settlement whatever, nor, so far as appears by the case stated, any licenses granted to cut timber, could have been used as stated in the case 'as a highway and for the purpose of floating down timber and logs to market.' However, the case sufficiently establishes the character of the river, for it admits that the part in question is above Price's Bend, which is situate 40 or 50 miles above the ebb and flow of the tide, and that from this point upwards the river is navigable only for canoes, small boats, flat bottom scows, logs and timber, which latter are driven down the river in high water, in the spring and fall, and that in the months of June, July and August, which is the Salmon fishing season, the water is so low that canoes have to be carried over the bars which are very shallow, and that consequently, during this period of the year, the river is not, at the part in question, navigable for flat bottomed boats, logs or timber. Lloyd vs Jones[8] is an authority that there is no connection between a right of fishing and a right of passage on a fresh water river—that is, above the ebb and flow of the tide, and that the existence of the latter right does not carry with it the former. Creswell, J., at page 8 J, puts the point thus 'what answer is it to plaintiff's complaint that the defendant unlawfully fished in his stream for the latter to say that he had a right of way over the locus in quo?' So from Ewing vs. Colquhoun[9] it appears that a right of navigation in the public with boats, barges, rafts, &c., &c., on an inland river, involves no right of property in the river or its bed. The public have merely the right to use the river for passing to and fro upon it, in the same manner as they have a right of passage along a public road or foot path through a private estate, but the right of fishing in such a river by the riparian proprietors, is a right of property vested in such proprietors, in virtue of their being seized of the alveus of the stream ad medium filum aquae, which primâ facie all proprietors of land adjoining an inland river are; but if the primâ facie ownership is rebutted by shewing the alveus of the river to be in another, then the right of fishing in that river follows the proprietorship of the alveus, until it be shewn that a right to fish has been acquired either by grant or prescription by a person not seised of the alveus: 'Riparian proprietors' is a term applied by the civilians to the owners of water courses, and the use of the same significant and convenient term is now fully introduced into the Common Law: the soil of the bed itself and consequently the water may be, and most often is, divided between two opposite riparian owners, that is, the land on one side may be owned by one person and the land on the opposite side by another. When such is the case each proprietor owns to the middle, or, what is called the thread of the river: there is but one difference between a stream running through a man's land, and one which runs by the side of it, in the former case he owns the whole and in the latter but half[10]. And in sec. 61 of his work on waters and watercourses Angell says 'It will be seen by reference to the first chapter that where a person owns the whole of the soil over which a watercourse runs in its natural course, he alone is entitled to the use and profits of the water, and that where a person owns only the land upon one side of a water course, his interest in the soil and his right to the water extends to the middle of the stream: concomitant with this interest in the soil of the bed of watercourses is an exclusive right of fishing, so that the riparian proprietor, and he alone, is authorized to take fish from any part of the stream included within his territorial limits.' And Hale, Jure maris, p. 5 of Hargrave's tracts, says: 'Fresh water rivers of what kind soever do of common right belong to the owners of the soil adjacent, so that the owners of one side have of common right the propriety, that is, the property of the soil, and consequently the right of fishing usque ad filum aquae, and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side: and if a man be owner of the land on both sides, in common presumption he is owner of the whole river, and hath the right of fishing according to the extent of his land in length.' When we speak then of the riparian proprietor or proprietors having the exclusive right of fishing in the river passing through or by the side of his or their lands, what is meant by the term "riparian proprietor" is the owner of the whole bed of the stream as well as of the land through which the stream passes, or the owners of the land on either side and of the bed of the stream, each on his own side ad medium filum aquae, which every owner of land upon either side of a stream is presumed to be until the contrary is shewn.
"Chancellor Kent, in his commentaries says: 'It was a settled principle of the Common Law that the owners of lands on the banks of fresh water rivers, above the ebbing and flowing of the tide, had the exclusive right of fishing, as well as the right of property opposite their respective lands, ad medium filum aquae, and where the lands on each side of the river belonged to the same person, he had the same exclusive right of fishing in the whole river, so far as his land extended along the same. The right exists in the rivers of that description, though they be of the first magnitude, and navigable for rafts or boats, but they are subjected to the jus publicum as a common highway or easement. In rivers not navigable (and in the Common Law sense of the term, they were only deemed to be navigable as far as the flux and reflux of the tide,) the owners of the soil on each side had the interest and the right of fishery, and it was an exclusive right extending to the centre of the stream opposite their respective lands. This private right of fishing is confined to fresh water rivers, that is to rivers above the ebb and flow of the tide, unless a special grant or prescription be shewn, but the right of fishing in the sea and in the bays and arms of the sea and in navigable tide water rivers belongs to the general public, and any person asserting an exclusive privilege there must shew it strictly by grant or prescription.'—
"In Murphy vs. Ryan[11] it was held that the public cannot acquire, by immemorial usage, any right of fishing in a river, in which, though it be navigable, in fact the tide does not ebb and flow, and that the term 'Navigable' used in a legal sense, as applied to a river in which the soil primâ facie belongs to the Crown and the fishing to the public, imports that the river is one in which the tide ebbs and flows.
"This case is one of great authority, not only for the learning of the learned Judges who decided it, but because it is cited with approbation by the Court of Exchequer in England, in the Mayor of Carlisle vs. Graham[12]. In pronouncing the judgment of the Court O'Hagan, J., afterwards and now again, Lord Chancellor of Ireland, says: 'According to the well established principles of the Common Law, the proprietors on either side of a river are presumed to be possessed of the bed and soil of it moietively to a supposed line in the middle constituting their legal boundary, and, being so possessed, have an exclusive right to the fishery in the water which flows above their respective territories, though the law secures to the public the right of navigation upon the surface of that water, as a public highway which individuals are forbidden to obstruct, and precludes the riparian proprietors from preventing the progress of the fish through the river. But, whilst the right of fishing in fresh water rivers in which the soil belongs to the riparian proprietors is thus exclusive, the right of fishing in the sea, and in its arms and estuaries, and in its tidal waters, wherever it ebbs and flows, is held by the Common Law to be publici juris, and to belong to all the subjects of the Crown, the soil of the sea and its arms and estuaries and tidal waters being vested in the Sovereign as a trustee for the public.'
He proceeds then to demonstrate by reference to authorities that a navigable river, in the sense of the public having a common right to fish in it, must be a tidal river, and that the right to fish therein 'publici juris,' is confined to the ebb and flow of the tide. 'There are,' (he says) 'two kinds of rivers, navigable and not navigable. Every navigable river, so high as the sea ebbs and flows in it, is a royal river, and the fishing of it is a royal fishery and belongs to the King by his prerogative, but in every other river not navigable and in the fishery of such river the terretenants on each side have an interest of common right.' Quoting then Hale[13], he says, 'upon a full consideration of all the cases it will, I think, appear, that no river has been ever held navigable, so as to vest in the crown its bed and soil and in the public the right of fishing, merely because it has been used as a general highway for the purpose of navigation, and that beyond the point to which the sea ebbs and flows, even in a river so used for public purposes, the soil is primâ facie in the riparian owners, and the right of fishing private.'—And so he concludes that the public can maintain no claim of right to fish in a river the soil of which is not publici juris but private property. "In Bloomfield vs. Johnson[14], where the Crown had granted lands adjoining to Lough Erne and islands in the lake, it was held that although the lake was a public navigable highway, yet that being above the flux and reflux of the tide, and although it was held that the ordinary presumption that the bed and soil of a stream opposite their lands belongs to the riparian proprietors, did not extend to a large lake like Lough Erne, the public had not any right of fishing therein of common right.
"In Bristow vs. Corcoran[15] it was held by the House of Lords that de jure the Crown had not primâ facie a right to the soil or fisheries in a lake like Lough Neagh, and that therefore the plaintiff, who claimed a right of fishing in the lake under a grant from Charles II, had to prove that the King at the time of such grant had an estate to grant; that it was not to be presumed. Lord Cairns there says: 'The lake contains nearly 100,000 acres, but, although it is so large, I am not aware of any rule which could primâ facie connect the soil and fisheries with the Crown, or disconnect them from the private ownership of riparian proprietors or other persons' and Lord Blackburn says: 'It is clearly and uniformly laid down in our books that where the soil is covered by water, forming a river in which the tide does not flow, the soil of common right belongs to the adjoining lands, and there is no case or book of authority to shew that the Crown, of common right, is entitled to land covered with water where water is not running water, but still water forming a lake.'
"In Malcolmson vs. O'Dea[16], Willes, J., delivering to the House of Lords the opinion of the Judges says; "The soil of navigable tidal rivers, like the Shannon, so far as the tide ebbs and flows, is primâ facie in the Crown and the right of fishing primâ facie in the public, but for Magna Charta the Crown could, by its prerogative, exclude the public from such primâ facie right, and grant the exclusive right of fishing to a private individual, either together with or distinct from the soil.'
"Rolle v. Whyte[17] and Leconfield vs. Lonsdale[18] decide that the provisions of Magna Charta and of the early statutes regulating fisheries, including 17 Ric. 2, ch. 9, and 12 Ed. 4, ch. 7 apply only to rivers navigable in the Common Law sense of the term, i.e. to the flux and reflux of the tide. Rowe vs. Titus[19] and Esson vs. McMaster[20] bear wholly upon a question as to the right of the public to the easement of passage along certain rivers in New Brunswick with boats, rafts and other property, and the rivers were held not to be navigable, but to be of common right public highways upon which the public had a right of passage, to which right the title of the owners of the soil and of the rivers was subservient. No reference is made in these cases to the right of fishing.
"The great weight of authority in the United States of America accords with the decisions of the British Courts. In Palmer vs. Mulligan[21] it was held in the Supreme Court of the State of New York, Kent being C.J., in 1805, that the river Hudson at Stillwater, which is above the flux and reflux of the tide, was not navigable in the Common Law sense of the term, citing the River Bar case[22], Carter vs. Murcot[23], and Hale, de Jure Maris from Hargrave[24].
Kent, C.J., says: 'The Hudson river is capable of being held and enjoyed as private property, but is notwithstanding to be deemed a public highway for public uses, such as that of rafting timber, to which purpose it has heretofore been and still is beneficially subservient.'
"In Carson vs. Blazer[25], it was held in the State of Pennsylvania in 1810, that the Patent, under which the proprietors of land abutting on the River Connecticut hold under William Penn, did not pass to them the bed of the river above tide water, or any right of Fishery therein, and that the river and the fisheries therein, above tide water, belonged to the State; the Court in this case held that the Common Law of England rule as to the flux and reflux of the tide determining the character of a navigable river did not apply to a river like the Connecticut: however, in Adams vs. Pease[26] the Supreme Court of the State of Connecticut, in 1818, held that the owners of land adjoining the Connecticut river, above the flow and ebb of the tide, have an exclusive right of fishing opposite to their land to the middle of the stream, but that the public have an easement in the river as a highway for passing and repassing with any kind of water craft; the Chief Justice pronouncing the judgment of the Court says: 'By the Common Law, in the sea, in navigable rivers and in navigable arms of the sea, the right of fishing is common to all. In rivers not navigable, the adjoining proprietors have the exclusive right. Rivers are considered to be navigable in the Common Law sense as far as the sea flows and reflows, and thus far the common right of fishing extends; above the ebbing and flowing of the tide the fishery belongs exclusively to the adjoining proprietors, and the public have a right or easement in such rivers as common highways for passing and repassing with vessels, boats, or any water craft – a more perfect system of regulations on the subject could not be devised. It secures common rights so far as the public interest requires and furnishes a proper line of demarcation between them and private rights.'
"In the People vs. Plait[27], it was held by the Supreme Court of the State of New York, in 1818, that the right to take fish in the Saranac, a river falling into Lake Champlain, could not be a public right, for if the river had been granted, the right to take the fish was a private and individual right, and if it had not been granted, yet the right has not become public so as to authorize the entry of any one who might see fit to enter, for the right would belong to the State; and citing Hale, Lord Fitzwalter's case, and Carter vs. Murcott[28] the Court says 'these authorities have never been denied or over-ruled and are of unquestionable authority.' Referring to this case the same Court in 1822, in Hooker vs. Cummings[29], says: 'In the People vs. Platt we recognized the principles of the Common Law to be that in the case of a private river (that is where it is a fresh water river in which tide does not ebb or flow, and is not therefore an arm of the sea) he who owns the soil has primâ facie the right of fishing, and if the soil on both sides be owned by one individual he has the sole and exclusive right, but if there be different proprietors on each side they own on their respective sides ad medium filum aquae. We considered in the case referred to, that it was not inconsistent with this right that the river was liable and subject to the public servitude for the passage of boats. The private rights of the owners of the adjacent soil were not otherwise affected than by the river being subject to public use, this is recognised as having been decided in Palmer vs. Mulligan[30], and Adams vs. Pease[31].' And referring to Carson vs. Blazer[32], Spencer, C. J., delivering judgment, says: 'I do not feel myself authorized to reject the principles of the English Common Law by saying that they are not suited to our condition, when I can find no trace of any judicial decision to that effect, nor any legislative declaration or provision leading to such conclusion,' and he adopts the encomium passed upon the Common Law of England by the Chief Justice of the Supreme Court of the State of Connecticut in Adams vs. Pease. The principles to be deduced from all these cases seem to be, that in the estimation of the Common Law all rivers are either navigable or not navigable, and rivers are only said to be navigable so far as the ebb and flow of the tide extends. Rivers may be navigable in fact, that is, capable of being navigated with ships, boats, rafts, &c., &c., yet be classed among the rivers not navigable in the Common Law sense of the term, which is confined to the ebb and flow of the tide. Rivers which are navigable in this sense are also called public, because they are open to public use and enjoyment freely by the whole community, not only for the purposes of passage, but also for fishing, the Crown being restrained by Magna Charta from the exercise of the prerogative of granting a several fishery in that part of any river. Non-navigable rivers, in contrast with navigable or public, are also called private, because although they may be navigable in fact, that is, capable of being traversed with ships, boats, rafts, &c., &c., more or less according to their size and depth, and so subject to a servitude to the public for purposes of passage, yet they are not open to the public for purposes of fishing, but may be owned by private persons, and in common presumption are owned by the proprietors of the adjacent land on either side, who, in right of ownership of the bed of the river, are exclusive owners of the fisheries therein opposite their respective lands on either side to the centre line of the river. Magna Charta does not affect the right of the Crown, nor restrain it in the exercise of its prerogative of granting the bed and soil of any river above the ebb and flow of the tide, or of granting exclusive or partial rights of fishing therein as distinct from any title in the bed or soil, and in fact Crown grants of land adjacent to rivers above the ebb and flow of the tide, notwithstanding that such rivers are of the first magnitude, are presumed to convey to the Grantee of such lands the bed or soil of the river, and so to convey the exclusive right of fishing therein to the middle thread of the river opposite to the adjacent land so granted. This presumption may be rebutted, and if, by exception in the grant of the adjacent lands, the bed of the river be reserved, still such reservation does not give to the public any common right of fishing in the river, but the property and ownership of the river, its bed and fisheries remain in the Crown, and the bed of the river may be granted by the Crown, and the grant thereof will carry the exclusive right of fishing therein; or the right of fishing, exclusive or partial, may be granted by the Crown to whomsoever it pleases, just as any private person seized of the bed of the river might dispose thereof. This right extends to all large inland Lakes also, for although in their case the same presumption may not arise as does in the case of rivers, namely, that a grant of the adjacent lands conveys primâ facie the bed of the river, (as was decided in Bloomfield vs. Johnson) still, the prerogative right of the Crown to grant the bed of rivers above the ebb and flow of the tide, not being affected by the restraints imposed by Magna Charta, cannot be questioned, for all title of the subject is derived from the Crown, and so if a bed of a river, or the right of fishing therein, be reserved by the Crown from a grant of adjacent lands, the right and title so reserved remains in the Crown, in the same manner as it would have vested in the grantee if not reserved, and is not subject to any common right of fishing in the public; for, as was said by Lord Abinger, O. J., in Hull vs. Selby Ry. Co.[33], 'as all title of the subject is derived from the Crown, the Crown holds by the same rights and with the same limitations as its grantee.' So in Bloomfield vs. Johnson above cited, it was held that a grant by the Crown of a free fishery in the waters of Lough Erne did not pass a several or exclusive right of fishery therein, but only a license to fish on the property of the grantor, and that the several fishery remained in the Crown subject to such grants or licenses to fish as it might grant. In old Canada the right of the Crown to make such grants of the bed of the great lakes is recognized by Act of Parliament.
"Although the exercise of the prerogative of the Crown to grant a several fishery in waters where the tide ebbs and flows is restrained by Magna Charta, still the right of Parliament in its wisdom (in the exercise of its paramount control in the interests of the public, and as the exponent of the voice of the nation as regards all property,) to authorize such grants there, equally as in waters above the ebb and flow of the tide, is undoubted.
"I speak here of the Parliament of the United Kingdom, and the like power, over all subjects placed by the British North America Act under the control of the Parliament of Canada, is vested in that Parliament.
"As regards then the particular river in question, at the place in question, above Price's Bend, notwithstanding that it may be true that it is subject to a servitude to the public for a common right of passage over its waters, as to which I express no opinion, inasmuch as the determination of that point is unnecessary in the case before me, but assuming the river to be subject to such servitude, still, the river there partakes not of a character of a navigable or public, but of non-navigable or private river, in the sense in which these terms are used in law, and the public have no common right of fishing therein.
"The primâ facie presumption being that the owners of the adjacent lands are owners of the bed of the river, which presumption may be rebutted, it is necessary now to consider the point, which is urged upon behalf of the Crown as representing the Dominion Government in this case, namely that the presumption is rebutted by matter appearing upon the grant to the Nova Scotia and New Brunswick Land Company, which is made part of the case and has been produced in evidence, for, if not rebutted, the exclusive right of fishing passed by that grant to the Company, and the Act of Parliament, 31 Vic., c. 60, does not affect, or in its 2nd section profess to deal with, any fisheries in which an exclusive right of fishing had been conveyed by the Crown and was vested in any persons at the time of the passing of the Act.
"The clause in the letters patent conveying the land to the land company which is relied upon in support of this contention is the latter part of the exception above extracted, namely: 'And also further excepting the bed and waters of the Miramichi River, and the beds and waters of all the rivers and streams which empty themselves either into the River St. John or the River Nashwaak, so far up the said rivers and streams respectively as the same respectively pass through, or over any of the said heretofore previously granted tracts, pieces or parcels of land hereinbefore excepted.'
"This exception, it is urged, is open to two constructions, the one that insisted upon by Mr. Lash, upon behalf of the Dominion Government, namely: that the bed of the Miramichi River is excepted absolutely throughout its whole length, and the beds of the other rivers and streams flowing into the River St. John and Nashwaak qualifiedly, that is to say, "so far up those rivers and streams respectively, &c., &c.", and the other that insisted on by Mr. Haliburton, upon behalf of the Suppliants, namely: that the qualification involved in the words 'So far up the river and streams respectively, &c., &c.,' is to be attached to the exception as to the bed of the Miramichi River as well as to the beds of the other rivers and streams mentioned in the same sentence.
"Which of these two constructions is the correct one depends upon the determination of the question—what should be held to have been the intention of the Crown in making the grant of the lands mentioned in the letters patent containing the exception? 'It is always' (says Sir John Coleridge, delivering the judgment of the Privy Council in Lord vs. City of Sidney[34] upon a question as to the construction of a Crown grant) 'a question of intention to be collected from the language used with reference to the surrounding circumstances. Words in an instrument of grant, as elsewhere, are to be taken in the sense in which the common usage of mankind has applied to them in reference to the context in which they are found.' And the same construction, I may add, is to be put upon words in a grant of land by the Crown which has been established by the decisions of the Courts to be the proper construction to be put upon the same words in a grant between subject and subject. Now, for the purpose of assisting in arriving at the intention of the Crown as to the use of the above words in the letters patent to the Nova Scotia and New Brunswick Land Company, as well as for the purposes of the 6th Question in the special case, namely: '6thly have the grantees in grants of lots bounded by the said rivers or by any part thereof and excepted from the said company's grant any exclusive or other right of fishing in said river opposite their respective grants?' copies of 16 letters patent have been produced, 5 of which grant lands situate upon the Miramichi, and 9 lands situate upon the other rivers and streams mentioned in the letters patent to the Nova Scotia and New Brunswick Land Company running through the tract of land granted to that Company, falling into the rivers St. John and Nashwaak, and it is admitted that all other grants to others within the lines constituting the boundaries of the tract described in the letters patent to the company are in similar form to those of which the copies have been supplied. Copies also of two letters patent granting large tracts of land amounting to about 25,000 acres, immediately outside of and abutting upon the limits of tract described in the letters patent to the Nova Scotia and New Brunswick Land Company, have been produced.
"From a perusal of these several letters patent, it appears that, as regards the title to the soil and beds of the said several rivers alike, the language of all the letters patent is the same, the practice of the Crown was uniform throughout. Now, the established rule of law is that primâ facie the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, and that a description which extends 'to the water's edge,' or 'to a river' or 'to the river's bank,' or which begins at a stake, tree, or other monument 'by the side of a river' or 'in a river's bank,' and which runs 'up' or 'down the river,' or 'its bank,' or 'by the side of the river,' or 'following its courses,' or to a stake, tree, or monument 'by the side of the river,' or 'on the river's bank,' or the like, carries the grant to the thread of the stream. In all such cases, the grant covers the bed of the stream, unless there be some expression in the terms of the grant, or something in the terms of the grant taken in connection with the situation and condition of the land granted, which clearly indicates an intention that the grant should stop at the edge or margin of the river, and should exclude the river from its operation. There must be a reservation or restriction, expressed or necessarily implied, to control the general presumption of law and to make the particular grant an exception from the general rule. This is the established doctrine, not only in England, but in the Courts of the United States of America also, as will sufficiently appear from the cases already cited and from Wright vs. Howard[35], Kairns vs. Turville[36], Tyler vs. Wilkinson[37], Robertson vs. Whyte[38], Lowell vs. Robinson[39], Child vs. Starr[40], Luce vs. Carley[41], Howard vs