Western Minerals Ltd. v. Gaumont

Western Minerals Ltd. v. Gaumont
Collection
Supreme Court Judgments
Date
1953-03-18
Report
[1953] 1 SCR 345
Judges
Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Alberta
Subjects
Constitutional law
Property law
Decision Content
Supreme Court of Canada
Western Minerals Ltd. v. Gaumont, [1953] 1 S.C.R. 345
Date: 1953-03-18
Western Minerals Ltd. And Western Leaseholds Ltd. (Plaintiffs) Appellants;
and
Joseph Albert Gaumont And The Attorney General Of The Province Of Alberta (Defendants) Respondents.
and
Farmers Union Of Alberta Intervenant,
Western Minerals Ltd. And Western Leaseholds Ltd. (Plaintiffs) Appellants;
and
James Warren Brown And The Attorney General Of The Province Of Alberta (Defendants) Respondents.
and
Beaver Sand & Gravel Ltd. (Defendant) ;
and
Farmers Union Of Alberta Intervenant.
1952: June 13, 16, 17; 1953: March 18.
Present: Kerwin, Taschereau, Rand, Kellock, Estey, Locke and Cartwright JJ.
Real Property—Ownership of Sand and Gravel—Whether reservation in Certificate of Title of mines, minerals and valuable stone, includes sand and gravel—The Land Titles Act, R.S.A., 1942, c. 205, s. 62.
Constitutional Law—Validity of The Sand and Gravel Act, S. of A., 1951, c. 77—Applicability to pending action.
The appellant, Western Minerals Limited, held a certificate of title as the registered owner in fee simple under The Land Titles Act, R.S.A., 1942, c. 205, and amendments thereto, of all mines, minerals, petroleum, gas, coal and valuable stone in or under two certain quarter sections of land of which the respondents Gaumont and Brown were the respective owners under the Act of the surface rights. The appellant, "Western Leaseholds Limited, was lessee from its co-appellant. Both appellants sued for a declaration that they were the registered and equitable owners of all minerals and/or valuable stone including the sand and gravel within, upon or under the said lands and for certain other relief. The actions were consolidated and tried together and judgment was given in favour of the appellants. Following the filing of notice of appeal by the respondents, The Sand and Gravel Act, S. of A., 1951, c. 77, came into force providing that as to all lands in the Province the owner of the surface of land is and shall be deemed at all times to have been the owner of and entitled to all sand and gravel on the surface of that land and obtained or otherwise recovered by surface operations. By order of the Appellate Division, Gaumont and Brown were permitted to raise the terms of the Statute as a further ground of appeal. The Appeal Court allowed the appeal and dismissed the plaintiffs' action. On appeal to this Court.
Held: 1.—That the appeal should be dismissed.
Per Kerwin, Taschereau, Rand, Kellock, Estey and Oartwright, JJ.:— The appellants failed to establish that "mines, minerals, petroleum, gas, coal and valuable stone" in their Certificate of Title should be construed as including sand and gravel.
Per Locke, J.—Apart from the provisions of The Sand and Gravel Act, the only question to be determined was the meaning of the language employed in the certificate of title by reason of s. 62 of The Land Titles Act (R.S.A. 1942, c. 205) and on the proper construction of that instrument, sand and gravel were included. The appellants should, therefore, have their costs of the trial.
2. Per Curiam—That The Sand and Gravel Act is intra vires of the Provincial Legislature and is declaratory of what is and has always been the law of Alberta, and so applied to the present litigation and is fatal to the appellants' claim.
APPEALS from the judgments of the Appellate Division of the Supreme Court of Alberta 1 which allowed the Defendants' appeals from the judgments of Egbert J. 2 in favour of the Plaintiffs. The two actions were brought by the Plaintiffs for a declaration that they were the registered and equitable owners of all minerals and/or valuable stone including sand and gravel, upon or under certain lands the title to the surface of which was vested in the Defendants and for certain other relief. The two actions were consolidated and tried together. The Defendant, Beaver Sand & Gravel Ltd., took no part in the action. By leave of the Court, the Farmers Union of Alberta was permitted to intervene. Following the delivery of judgment by the trial judge The Sand and Gravel Act, 1951, S. of A., c. 77, came into force and the Defendants who, in the meantime had filed notice of appeal, applied for and were granted leave to amend and plead the Act as a further ground of appeal. The Plaintiffs then served the Attorney General for the Province of Alberta with notice that they intended to bring into question the constitutional validity of the Act and thereafter, by order of the Appellate Division, the Attorney General was added as a party Defendant.
H. W. Riley Q.C. and H. Patterson for the appellants.
W. G. Morrow for the respondents.
J. J. Frawley, Q.C. for the Attorney General of Alberta.
J. A. Ross for the Farmers Union of Alberta, Intervenant.
Kerwin J.:—On the argument the Court decided that The Sand and Gravel Act, c. 77 of the 1951 Statutes of Alberta was intra vires. That Act applies to the present litigation and on this point I agree with the reasons of my brother Cartwright. However, the statute was enacted after the judgment at the trial and if at the date of that decision the appellants were entitled to judgment in their favour as the trial judge held, they should have, at least, the very considerable costs of the action, including the trial.
I have come to the conclusion that the appellants were not so entitled. At the outset it should be emphasized that the plaintiff, Western Minerals Limited, was registered as owner pursuant to The Land Titles Act of the Province of Alberta of an estate in fee simple of and in all mines, minerals, petroleum, gas, coal and valuable stone in or under the lands in question in the two actions and the right to enter upon or occupy such portions of the lands as may be necessary or convenient for the purpose of working, mining, removing and obtaining the benefit of the said mines, minerals, petroleum, gas, coal and valuable stone. On the other hand, the respondent Gaumont has a certificate of title that he is the owner of an estate in fee simple in his lands "reserving thereout all mines and minerals. Subject to the exceptions, reservations and conditions contained in transfer of record as 6489 B.D." The reservation in this transfer, dated April 5, 1915, from a former owner, Western Canada Land Co. Limited, to one Bolster, reads:—"reserving to the transferor, its successors and assigns, all mines, minerals, petroleum, gas, coal and valuable stone in or under the said land and the right to enter upon and occupy such portions of the said lands as may be necessary or convenient for the purpose of working, mining, removing, and obtaining the benefit of the said mines, minerals, petroleum, gas, coal, and valuable stone." Similarly, the respondent Brown has a certificate of title dated November 16, 1945, as owner of an estate in fee simple in his lands "reserving thereout all mines and minerals and the right to work the same as set forth in transfer of record as 5755 F.V." This transfer from a prior owner to Brown is dated August 1, 1945, and the reservation is the same as that in the transfer of Gaumont's lands from Western Canada Land Co. Limited to Bolster.
While there is no evidence as to when the certificate of title was granted by which the appellant, Western Minerals Limited, is declared to be the owner of the mines, minerals, etc. its date is of no importance. The question for determination is whether under the terms of the three certificates of title the sand and gravel in the lands are owned by the respondents Brown and Gaumont respectively or by Western Minerals Limited. In Attorney General for the Isle of Man v. Moore 3, Lord Wright, speaking for the Judicial Committee, at page 267, states (referring to a statute): "The principles to be applied in determining such a question have now been established by decisions of the House of Lords dealing with words of reservation in the Railway Clauses Act and similar Acts." In the earlier case of Attorney General for the Isle of Man v. Mylchreest 4 the Judicial Committee had arrived at the same conclusion as the House of Lords, and it might be noted that in Re McAllister v. Toronto Suburban R.W. Co. 5, the Ontario Court of Appeal considered these decisions applicable in an expropriation under s. 133 of the then Ontario Railway Act. All of these decisions were as to the meaning of certain statutes and the effect of the decision of the Privy Council in the Moore case is that the same principles are to be applied to the construction of statutory provisions of an entirely different type. I see no reason that they should not also be applied to the construction of certificates of title under The Land Titles Act (R.S.A. 1942, c. 205). S. 62 of that Act provides that "every certificate of title … shall … be conclusive evidence … that the person named therein is entitled to the land included in the same for the estate or interest therein specified." The point is whether the estate or interest of the parties includes the sand and gravel.
It was not contended that they fell within the term "mines" but it was urged that they were "minerals". The enumeration of "petroleum, gas, coal and valuable stone" affords a context to show that the word is not used in its widest sense: Attorney General for the Isle of Man v. Mylchreest (supra); Barnard-Argue-Roth-Stearns Oil and Gas Co. Ltd. v. Farquharson 6. Furthermore, I am quite sure that Gaumont and Brown, as holders of certificates of title, or any other purchasers of lands in Alberta would never imagine that sand and gravel were excluded from their estate or interest under "minerals": Lord Provost v. Farie 7. My brother Kellock has detailed the evidence adduced on behalf of the appellants and I therefore do not repeat it. It is quite apparent that that evidence falls far short of showing that in the mining and commercial world, and by land owners, sand and gravel were considered to be minerals. There can be really no question that, as held by the trial judge, sand and gravel do not come within the term "stone".
The appeals should be dismissed with costs payable by the appellants to the respondents Gaumont and Brown. There should be no order as to the costs of the Attorney General of Alberta or of the intervenant.
Rand J.:—Two questions are raised in this appeal: whether a reservation of "all mines, minerals, petroleum, gas, coal and valuable stone" contained in two conveyances of land in Alberta, includes sand and gravel, both of which will be embraced within the treatment of the latter; and whether a statute passed after judgment at trial, effects retroactively the exclusion of gravel from the scope of the reservation.
Evidence was adduced to show the place of gravel in the scientific and engineering classifications of minerals, which was undoubtedly pertinent to the issue; but as the question arises out of the sale and purchase of land, the understanding of persons who deal in land or its constituents is of primary importance; and in the circumstances here there are factors of special significance to that understanding. In Crown grants of lands in the colonies the reservation of mines and minerals was exceptional, but in western Canada from the early stages of its organization that was not the case. The uninhabited territory of what was later called the Northwest Territories, then little better than a wilderness, was transferred to the Dominion by an Imperial Order-in-Council in 1870. In the course of the subsequent administration, including a comprehensive immigration program, the Dominion Government in 1889 by an order authorized by the Dominion Lands Act, provided for the reservation of mines and minerals in grants made under that Act. There is not readily accessible the extent of land patented between that date and 1905; but the reports of the Commissions on Western Lands and Subsidies submitted to Parliament in 1935 show that between 1905, when Alberta and Saskatchewan were formed, and 1930, when the remaining public lands were transferred to them, approximately fifty million acres had been disposed of, the individual applications for which approached three hundred thousand in number. This was in addition to at least nine million acres granted after 1905 on commitments made before that time. From this uniform practice, the reservation became notorious throughout the West, and a matter of common knowledge in land dealings. Large areas had, it is true, been conveyed to the Hudson's Bay Company and to railway companies without reservation, but these were widely known as exceptions to the generality of titles.
Since 1931 the same policy has been continued by statutory provisions in all three provinces, Manitoba, Revised Statutes (1940) c. 48; Saskatchewan, Revised Statutes (1940) c. 37; and Alberta, statutes of 1949, c. 81; in all of them the expression "mines and minerals" is found.
From the commencement, also, of the Dominion administration, a form of the so-called Torrens system of land titles has been in force. By its effect the ownership of land is conclusively evidenced by an official Certificate of Title, and this system has, likewise, been continued by the provinces since their formation.
In this background of uniformity of public administration and of phraseology in relation to mines and minerals, and the formal establishment of title by certificate, it would, I think, be difficult to attribute to that collocation of words any other than the same meaning throughout that western territory, certainly, on the record here, throughout Alberta ; and, apart from questions, as between the immediate parties to a transfer, of rectifying the certificate, it would be a rare case in which an enquiry into the actual or presumed intentions of parties to a grant or transfer, where the same expression is alone in question, would be justified. What is to be sought, then, is the general sense of those words in the vernacular of engineers, business men and land owners, the latter of whom constitute a substantial fraction of the population in the prairie section. The recent decision of the Judicial Committee in Borys v. Canadian Pacific Railway Company 8, dealing with the word "petroleum", adopted that use as the determinant of its scope.
The vernacular is, in turn, a fact itself to be ascertained. There are varying degrees of appreciation of the meaning of words, and, apart from the opinions of individuals, positive data evidencing the common acceptation are not always at hand; but one of reliability is that of neutral conduct which indicates the assumption of such an acceptation.
It is, therefore, of some significance, that although gravel in general building and railway construction has long been used as material, and during the past thirty years, most extensively in road building, no case has been cited in which the question here has been directly raised before a Canadian court. That seems to be particularly noteworthy in relation to railways. By The Railway Act, 1903, as well as its revision of today, the sections which authorize expropriation of land do not entitle the company to the mines or minerals unless expressly purchased. On the other hand, the statute provides, as in s. 202 of the present Act, that "any stone, gravel, earth, sand, water or other material" required for the construction, maintenance or operation of the railway may, for any such purpose, be taken. The inclusion of the word "gravel" in this context points, at least in the understanding of Parliament, to a genus of materials forming part of land which embraces gravel but excludes minerals. In the first twenty years of this century, a vast network of railways was built in the West for which immense quantities of gravel were required for ballasting, a great deal of which must have been obtained from lands in which the minerals were reserved to the Crown; but nothing has been disclosed to suggest a claim for compensation ever asserted by the Dominion.
Geologically, the soil was formed by the disintegration of hard surface minerals plus the later ingestion of vegetable matter. Gravel is produced in the course of that disintegration by the attrition of rock fragments and contains all sizes from a grain of sand to stones of several inches in diameter. The difference, then, between the ordinary soil and gravel is a matter largely of gradation in physical refinement of a common substance, and that fact may explain the absence of previous controversy through the natural tendency to treat the latter as ordinary roughage of the soil rather than discrete mineral substance.
Viewing the evidential matters and opinions placed before the Court in the light of these considerations, I take the vernacular sense of the words "mines and minerals" not to extend to gravel.
But the reservation before us, by the additional words "valuable stone", itself evidences that exclusion. Stone, lacking any real use qua land, has, from the earliest times, been used for building all manner of structures, and so far has acquired a higher degree of distinctiveness from the soil than gravel: it was and is that utility that gives it special character and value. It is not seriously contended that "valuable stone" includes gravel, but its presence in the reservation implies that other stone is excluded, which, a fortiori, excludes material produced by a fragmentation of stone that basically changes its useful character.
Then is the legislation to be interpreted as a prospective alteration of the previous law or a retroactive declaration of what the law was prior to the judgment at trial? Here is a case in which the boundary between property rights, depending upon the scope to be given general words in common parlance, is somewhat vague and uncertain, and in which the determination by the legislature can safely be taken to express the general understanding of the language being interpreted. That in such a situation and by way of precaution the legislature should resort to a declaration of pre-existing law arises from an apprehension of widespread disruption of what are thought to be settled interests. For that purpose the legislature has access to sources of relevative considerations not effectively available to a court of justice. The word "shall" in the context implies a conclusive effect to the words "be deemed" and, that, considering the recitals in the preamble, the expression was intended to operate upon the subject matter of these proceedings, I entertain no doubt. The Appeal Division was consequently concluded by it.
I would, therefore, dismiss the appeal with costs.
Kellock, J.:—These appeals raise the same question, namely, the proper construction of a reservation in certain certificates of title to lands in the province of Alberta of the following reservation: "all mines, minerals, petroleum, gas, coal and valuable stone in or under the said land and the right to enter upon and occupy such portion of the said land as may be necessary or convenient for the purpose of working, mining, removing and obtaining the benefit of the said mines, minerals, petroleum, gas, coal and valuable stone."
In the case of the respondent Gaumont the certificate is dated July 11, 1928, while that of the respondent Brown is dated August 1, 1945. These certificates are to be read in conjunction with s. 62 of The Land Titles Act, R.S.A. 1942, c. 205.
The appellants are entitled to the benefit of these reservations and claim title thereunder to the sand and gravel in, upon or under the lands. They contend that sand and gravel are "minerals" within the meaning of that term as used in the reservations. This contention was given effect to by the learned trial judge, but was rejected by the Appellate Division which also held that the respondents were, in any event, protected by The Sand and Gravel Act of Alberta, 15 Geo. VI, c. 77, passed on April 7, 1951, after delivery of the judgment at trial.
The word "minerals", standing alone, and considered in contradistinction to animal or vegetable substances, would no doubt include such materials as sand and gravel. In Darvill v. Roper, 9, Kindersley V. C. said at p. 299, in reference to a similar contention, that
Every portion of the soil, not merely the limestone rock, but the gravel, the pebbles, all, even to the very substance of the loam or mould which forms the soil, would be included.
In Attorney-General for the Isle of Man v. Mylchreest, 10, Sir Montague Smith pointed out, in the Judicial Committee, considerations which enter into the question as to the sense in which the word may, in any particular case, have been used, as follows:—
It was contended for the Crown that the word "minerals" used in the clause comprehended clay and sand. Doubtless, the word in its scientific and widest sense may include substances of this nature, and, when unexplained by the context or by the nature and circumstances of the transaction, or by usage (where evidence of usage is admissible), would, in most cases, do so. But the word has also a more limited and popular meaning, which would not embrace such substances, and it may be shewn by any of the above-mentioned modes of explanation that in the particular instrument to be construed, it was employed in this narrower sense.
It seems plain from the context in the case at bar that the word is not used in its widest sense. At page 308 of Mylchreest's case, Sir Montague Smith said with respect to the language there in question,
If the word "minerals" were intended to be used in its widest signification, it was obviously unnecessary to make specific mention of flagg, slate and stone.
Similarly, in the case at bar there is an enumeration of substances which would be quite unnecessary if "minerals" were employed in the broad sense.
In. Barnard-Argue-Roth-Stearns Oil and Gas Co., Ltd. v. Farquharson, 11, the Judicial Committee had to consider a conveyance which reserved to the grantor "all mines and quarries of metals and minerals and all springs of oil …" Lord Atkinson, delivering the opinion of the Board, expressed the same idea at p. 869 as follows:
It is obvious, however, for several reasons, that in this clause of the grant the word "minerals" is not used in this wide and general sense. First, because two substances are expressly mentioned in the clause which would be certainly covered by the word "minerals" used in its widest sense, namely, "metals" and "springs of oil in or under the said land …" Lord Gorell in Budhill's case, 12, put the matter as follows at p. 134:—
The enumeration of certain specified matters tends to show that its object was to except exceptional matters.
If the broad meaning is not to be given to the word in the reservation here in question, the onus would appear to be on those who assert, in doubtful cases at least, that the word is inclusive of the substance in controversy: Savill v. Bethell, 13. It may very well be that such a substance as "lead" would obviously fall within the scope of such a reservation, but where, as here, "coal and valuable stone" are specifically mentioned, it is incumbent, in my opinion, upon those who assert that such ordinary materials as sand and gravel were intended to be included, to establish this.
In Attorney-General for Isle of Man v. Moore, 14, Lord Wright, delivering the opinion of the Privy Council, reaffirmed the principles to be applied as follows:—
The principles to be applied in determining such a question have now been established by decisions of the House of Lords … that this type of question is an issue of fact to be decided according to the particular circumstances of the case, the duty of the court being to determine what the words meant in the vernacular of mining men, commercial men and land owners at the relevant time. Such an issue is necessarily an issue of fact because it must depend on evidence of the actual user of the words—that is, the way in which they were in practice used by the classes of persons enumerated.
The learned trial judge was of opinion that the sand and gravel question in the case at bar were "not separable either commercially or geologically" and dealt with them as forming one deposit. He referred to them throughout his judgment as gravel only. In his view, the deposit did not come within the word "mines" as used in the conveyances, as he was of opinion that it had been authoritatively determined by the decisions that a "mine" was limited to underground workings and that there was nothing in the evidence before him to indicate that the word should have any other meaning in the present instance. It is not necessary to consider this particular aspect of the matter as the appellants do not rely on the word "mines" but on the word "minerals". The learned judge was also of opinion on the evidence that the words "valuable stone" in the conveyances in the case at bar were limited to cut stone and that they did not include "gravel".
With respect to the meaning of the word "minerals" in the present certificates, the learned judge concluded that the appellants had established on the evidence that it included gravel, although he expressed "a strong suspicion" that that was not the intention of the parties to the transactions but that if sand and gravel had been mentioned at the date of the original conveyances, they would have been excluded from the reservations. It is necessary to examine the evidence.
The appellants rely in the first place upon the testimony of a member of the engineering faculty of a university who, in addition to his academic duties, carries on a consulting practice in connection with the construction industry. This witness testified as follows:—
Q. In the phraseology or popular language of a mining man, is a commercial deposit of gravel surface or soil or minerals or what?
A. Well, in my opinion, it is a mineral. The reason for that is that in the general definition a mineral is anything that is not plant or animal.
Q. Yes?
A. The use of the "commercial" though, restricts it so that your mineral material as contained in a conveyance has to have some commercial value. Well, a gravel deposit that is being worked for profit obviously has commercial value, and by fundamental definition it is a mineral, and therefore it is a mineral substance.
This evidence is, of course, completely worthless in that it is pure argument and does not answer at all the relevant question as to the meaning of the word "minerals" in the vernacular of mining men. The witness made a similar attempt to include gravel within the meaning of "valuable stone." He said:—
Well, on the question of the definition of valuable stone as it is most commonly used or as it has most commonly been used, it probably has meant stone that was quarried; in other words, building blocks that were taken out or blocks of stone that were taken out and then faced off and so on and turned into building stone. On the other hand, you don't have to extend the definition any appreciable amount to include gravel as a valuable stone. It definitely is valuable and it is stone. The appellants also rely on the evidence of a chemical engineer who is an officer of the appellant Western Minerals Limited. When asked the following question in chief:
Q. Now, sir, you and your companies are in the mining game in its various branches. In the phraseology, or, if you like, the popular language of the mining world, what is gravel? Mineral or surface?
he answered,
A. I would say it was a mineral.
It is not too clear what was intended by the question itself. The contrast is between "mineral" on the one hand and "surface" on the other, and in the case of a transfer of surface rights exclusively it may be that, in certain circumstances, gravel would not pass to the grantee. But such a question is not the relevant question. It is whether or not, when used in its ordinary sense by mining men, the word "minerals" would be understood as inclusive of gravel. That question was neither put nor answered. The following additional testimony of the same witness does not clarify matters:—
Q. If that sand could be sold today, would it be considered as a mineral?
A. If it was handled commercially at commercial rates I would say so.
Q. Is that your standard?
A. I believe that is what makes it commercial.
. . .
Q. Well, in a chemical sense there is no doubt that sand would be a mineral, is there? I am speaking in the commercial sense. If you could sell that sand today would it be a mineral?
A. Yes, it has value.
Q. And if you can't sell it then today, it isn't a mineral in the commercial sense? Correct?
A. Yes, I will answer that yes.
I do not think, therefore, that there is any evidence in the record at all on this aspect of the matter.
With respect to the understanding of land owners, the appellants called an employee of the Hudson's Bay Company who had been employed by that company since 1931. He described himself as a "land department representative" or "inspector". What the duties of this witness are, does not appear. He testified that the Hudson's Bay Company had originally owned two and a quarter million acres of land in the province of Alberta, of which there remained unsold approximately sixty thousand acres. Whether or not the witness had anything to do with the land sold or any part of it, or what sales were made since 1931, he did not say. The following evidence of the witness is relied on by the appellants:—
Q. Now, the Hudson's Bay Company granted a number of commercial gravel permits on lands from which they have parted with the surface?
A. Yes, sir.
. . .
Q. In these various gravel permit transactions which you have spoken about with the Hudson's Bay Company, are they all cases in which the Hudson's Bay Company owned minerals and valuable stone?
A. Yes, sir.
Q. All right, sir. In the understanding of land representatives is gravel a mineral or part of the surface?
A. I would say mineral.
The same infirmity appears in this evidence as in that of the previous witness to which I have just referred, the attention of the witness being directed to the contrast between "mineral" and "surface" and not to the real question. Moreover, his evidence is presumably based upon the dispositions of lands made by the Hudson's Bay 'Company, but his knowledge of such transactions or of the language of the conveyances does not appear. In my opinion, his evidence does not touch the question as to the meaning of "minerals" as ordinarily used by owners of land.
It was for the appellants to establish that the word "minerals" is here used in the sense of including either sand or gravel. I think they have failed to do so.
It is not without relevance to observe that the lands in question were sold on the one hand and bought on the other for agricultural purposes. So far as any vendor or purchaser knew at the time of the grants, it might have developed that the whole or the greater part of the lands were underlaid with gravel, to get at which would have destroyed the lands for the purposes for which they were purchased, in which event the grant would have been swallowed up by the reservation. In my view, as pointed out by Lord 'Gorell in Budhill's case, supra, the enumeration of the specific substances indicates that the intention was to reserve exceptional substances only. Sand and gravel deposits are no doubt less frequent in the Edmonton area than apparently they are in the neighbourhood of Calgary, but the specific exception of "valuable stone", in my opinion, indicates that the parties intended that apart from building stone, other stone or allied substances such as sand or gravel were not reserved.
I would therefore dismiss the appeals with costs.
Estey, J.:—I agree that the appeal should be dismissed on the basis both, as the learned judges in the Appellate Division held, that the word "minerals," as used in the reservations, did not include sand and gravel and that, upon the principle underlying Boulevard Heights v. Veilleux 15, the provisions of The Sand and Gravel Act are applicable to this litigation.
Locke J.:—This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta setting aside the judgment delivered at the trial by Egbert J. in favour of the present appellants in these consolidated actions.
The issues concern the ownership of deposits of sand and gravel in the northeast quarter of Section 21 in Township 55 and Range 22 west of the 4th Meridian in the Province of Alberta and the southwest quarter of Section 21 in Township 57 and Range 21 west of the said Meridian, of which lands the respondents Gaumont and Brown are respectively the registered owners of what have been referred to in these proceedings, for the purpose of convenience, as the surface rights.
As against the respondent Gaumont the appellants claimed, in addition to a declaration of right, an injunction restraining him from removing either sand or gravel from the land and damages for trespass in respect of quantities of these materials theretofore taken from the land by this respondent. The respondent Brown had entered into an agreement with the respondent Beaver Sand and Gravel Limited, under which that company had removed and was continuing to remove gravel and sand from the property, and, as against them, the appellants claimed, in addition to a declaration of right, an injunction to restrain the removal of further material, an accounting and damages. At the outset of the trial a written admission made by the solicitor for the respondents Gaumont and Brown was read into the record, this being that the plaintiff Western Minerals Limited was:—
registered as owner pursuant to The Land Titles Act of the Province of Alberta of an estate in fee simple of and in all mines, minerals, petroleum, gas, coal and valuable stone in or under
the said lands
and the right to enter upon or occupy such portions of the lands as may be necessary or convenient for the purpose of working, mining, removing and obtaining the benefit of the said mines, minerals, petroleum, gas, coal and valuable stone.
Various transfers and agreements of sale evidencing dealing with these lands by the parties and others and the predecessors in title of the appellant Western Minerals Limited and the respondents Gaumont and Brown were filed and, in the reasons for judgment of the learned Chief Justice of Alberta delivering the unanimous opinion of the Appellate Division, various of these instruments have been referred to as an aid to the interpretation of the expressions "mines and minerals" in these several documents. From these it appears that in the year 1915 the Western Canada Land Company Limited transferred the northeast quarter of Section 21 of the surface rights of which the respondent Gaumont is now the registered owner to one Bolster, with a reservation of the mines and minerals and other named mineral substances and the right to enter and work the same, and thereafter a certificate of title for the said lands issued to Gaumont excepting the mines and mineral substances reserved in the transfer to Bolster. The respondent Brown had agreed to purchase the said southwest quarter of Section 21 from one of the predecessors in title of the appellant Western Minerals Limited by an agreement made in the year 1940, by which the vendor reserved the mines and mineral rights in similar, though not identical, terms to those expressed in the transfer to Bolster and it was shown that, as far back as 1919, the respondent Brown's father had agreed to purchase the land from the then registered owner in an agreement containing a like reservation and had thereafter entered into an agreement in similar terms for the purchase of the land in 1928. In the case of the respondent Brown, a certificate of title under the provisions of The Land Titles Act had been issued in the year 1945, with an exception as to mines and minerals and the right to work the same in similar terms.
In addition to these documents, evidence was given which made it quite clear that both Gaumont and Brown purchased these lands for agricultural purposes and that they have lived there and farmed the lands for a long period of years prior to the commencement of these actions and to show that the gravel, and such sand as is intermingled with it, cannot be removed without destroying the surface and rendering that portion of the land thereafter worthless for farming purposes.
With respect for contrary opinions, I think none of this evidence was relevant to the issue raised by the pleadings and decided by Mr. Justice Egbert. That question was as to the interpretation to be placed upon the language of the certificate of title of the appellant Western Minerals Limited which is above referred to. It is so restricted, in my opinion, by the provisions of s. 62 of The Land Titles Act (c. 205, R.S.A. 1942) which, so far as relevant, reads as follows:
Every certificate of title granted under this Act shall (except in case of fraud wherein the owner has participated or colluded) so long as the same remains in force and uncancelled under this Act be conclusive evidence in all courts as against His Majesty and all persons whomsoever that the person named therein is entitled to the land included in the same, for the estate or interest therein specified, subject to the exceptions and reservations mentioned in section 61, except so far as regards any portion of land by wrong description of boundaries or parcels included in the certificate of title and except as against any person claiming under a prior certificate of title granted under this Act or granted under any law heretofore in force relating to titles to real property in respect of the same land.
The reservations mentioned in s. 61, other than those which are irrelevant to the present considerations, are merely any subsisting reservations or exceptions contained in the original grant of the land from the Crown. These lands formed part of the lands originally granted by the Government of Canada to the Canadian Pacific Railway Company and there is no evidence that the grant contained any exceptions and there were none such in the conveyance of the said lands to the Western Canada Land Company Limited, one of the predecessors in title of the appellant Western Minerals Limited. There is no evidence that there was any prior certificate of title relating to the interest of the appellant Western Minerals Limited declared by the certificate of title in question in existence. The title of the said appellant to the mines, minerals and other mineral substances described in it is not in any way impeached.
S. 62 of The Land Titles Act, with a change which does not affect the matter to be considered, re-enacted s. 57 of The Land Titles Act (57-58 Vict. c. 28) enacted by the Parliament of Canada, dealing with titles to land in the Northwest Territories and the manner of its disposition. The system of landholding adopted by the Federal Act and by the Province of Alberta in 1905 was that which has come to be known as the Torrens system, the object of which was to provide a system of landholding where the root of the title was a certificate granted under governmental authority, which would declare an absolute and indefeasible title to realty or to some interest therein and to simplify its transfer. The first of the Acts providing for such a system was enacted by the South Australian Legislature, at the instance of Sir Robert Torrens, in 1858, and it was thereafter adopted in all of the States of the Commonwealth of Australia, the declared purpose of such statutes being as above st