District Registrar of Portage La Prairie v. Canadian Superior Oil of California Ltd.

District Registrar of Portage La Prairie v. Canadian Superior Oil of California Ltd.
Collection
Supreme Court Judgments
Date
1954-05-19
Report
[1954] SCR 321
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
Manitoba
Subjects
Property law
Decision Content
Supreme Court of Canada
District Registrar of Portage La Prairie v. Canadian Superior Oil of California Ltd., [1954] S.C.R. 321
Date: 1954-05-19
The District Registrar of The Land Titles District of Portage La Prairie (Defendant) Appellant;
and
Canadian Superior Oil of California Ltd. and William Hie Bert (Plaintiffs) Respondents.
1953: November 24, 25, 26; 1954: May 19.
Present: Rinfret C.J., Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.
Real Property—Crown lands brought under Real Property Act (Man.)— Minerals not reserved in certificate of title—Title of bona fide purchaser from registered grantee from Crown—Whether “grant from Crown” includes a transfer therefrom—Manitoba Provincial Lands Act, 1887, c. 21, ss. 20, 21—Provincial Lands Act, R.S.M., 1913, c. 155, s. 25—Real Property Act, R.S.M., 1913, c. 171, ss. 2(a), 78(a), 79— Real Property Act, R.S.M., 1940, c. 178, ss. 61, Dominion Lands, 1883, c. 17, s. 43.
The title to the lands giving rise to the present appeal was originally in the Crown in the right of Canada which, in 1901 by Order in Council, vested it in the Crown in the right of the Province of Manitoba. Shortly thereafter one “M” made application to purchase the lands on terms which provided that all valuable stone, coal or other minerals were reserved to the Province. The latter in 1903 by Order in Council directed that the lands be brought under the operation of The Real Property Act (Man.) and a certificate of title issued to the Crown in the right of the Province. In 1914 “M” quit claimed his rights to one “N”: to whom, on completion of payment of the purchase price in 1919, a. transfer in the form prescribed by The Real Property Act, (R.S.M. 1913, c 171) of all the estate and interest of the Crown in the lands was executed and a new certificate of title issued. There was no specific mention of minerals either in the certificate or the transfer but the latter was under the Act made subject to any reservation contained in the original grant from the Crown. Subsequently the lands became vested in the respondent Hiebert to whom was issued a certificate of title similar to that issued “N”. Hiebert executed a lease of the petroleum and natural gas in the lands of which the respondent oil company became the assignee. The latter presented a caveat to the appellant for registration based on the lease and assignment thereof. ‘The appellant refused to register it on the ground that the lessee had no estate or interest in the lands. In the litigation that ensued the appellant contended that the petroleum and natural gas by reason of s. 21 of The Manitoba Provincial Lands Act, 1887 did not at any time pass from the Crown. The contention of the respondents, which prevailed in the courts below, was that as there was no express reservation in the original -transfer from the Crown the mineral rights passed to the transferee and were not reserved by s. 21.
Held (Rinfret C.J., Estey and Locke JJ. dissenting) :—
1. That in enacting the Manitoba Provincial Lands Act, 1887, the Legislature expressly brought all lands held by the Crown in the right of the Province under that general statute.
2. That in construing the Provincial Lands Act (R.S.M. 1913, c. 155) and
The Real Property Act (R.S.M. 1913, c. 171) the two statutes must be read together and when so read the word “grant” in the declaration contained in s. 24 of the 1887 Act (s. 25 of R.S.M. 1913, c. 155), that no grant from the Crown of lands in freehold has operated or will operate as a conveyance of any minerals therein unless expressly conveyed in such grant, includes a transfer of lands from the Crown under The Real Property Act. The effect of s. 21 is as if the transfer bore an endorsement that it was subject to the provisions of s. 21.
Per Rinfret C.J. and Locke J., dissenting:—Section 21 of the Manitoba Provincial Lands Act, 1887 (s. 25 of R.S.M. 1913, c. 155) with a minor change, was taken verbatim from s. 43 of the Dominion Lands Act, 1883 and the words “grant from the Crown” should be attributed the same meaning in both statutes, that is, as referring only to grants by letters patent, As in the case of the Dominion Act, the only means specified for conveying Crown lands was in this manner.
The transfer to “N”, made in the form prescribed by The Real Property Act of 1913 pursuant to Order in Council of Nov. 10, 1914, transferred “all our estate and interest in the said land”. By virtue of the definition of land in The Real Property Act, and of s. 88 of that Act, there being no contrary intention expressed in the transfer, all mines and minerals in the lands were “expressly conveyed in such grant” within the meaning of s. 25 of the Provincial Lands Act of 1913, if the transfer was a grant.
Per Estey J. (dissenting) :After the enactment of The Lands Registration Act in 1880. and The Real Property Act of 1885 Manitoba had two systems of land registration. The Manitoba Provincial Lands Act, 1887 did not alter or amend either and the Crown. thereafter made its conveyances according to which Act its land was under. The contention that a. conveyance by.” way of “grant” would not include a “transfer” therefore cannot be accepted. Here since the Crown’s title to the land was under a statute which contemplated that a conveyance should be made by transfer it must follow that the term “grant” in legislation providing for the administration of such land must be. read to include the word “transfer” as used in The Real Property Act. That Act contemplated that whenever the Crown granted land under it it would foe by way of patent deposited with the Registrar and the issue of a certificate of title to the transferee. The land here was placed under that Act by Order in Council and conveyed by transfer so that the transfer must be accepted as the original grant from the Crown. Since under The Real Property Act of 1885 and the Manitoba Provincial Lands Act, 1887 “land” is defined to include “minerals”, the conveyance to “N” would include them because they were not specially excepted.
APPEAL from a judgment of the Court of Appeal for Manitoba 1 affirming with a variation the judgment of Freedman J.2.
A. E. Hoskin, Q.C. and John Allen, Q.C. for the appellant.
J. G. Cowan, Q.C. for the Attorney General of Manitoba.
F. M. Burbridge, Q.C. and D. C. L. Jones for the respondents.
The dissenting judgment of Rinfret C.J. and Locke J. was delivered by:—
Locke J.:—It is, in my opinion, necessary, in order to determine the questions raised in this appeal as to the proper interpretation of s. 25 of The Provincial Lands Act (R.S.M. 1913, c. 155) and of the relevant sections of The Real Property Act (R.S.M. 1913, c. 171, R.S.M. 1940, c. 178), to examine the legislation enacted, both by Parliament and by the Provincial Legislature, defining the manner in which the public lands in Manitoba should be dealt with following the ‘creation of that province in 1870.
The Manitoba Act 1870 (33 Vic. c. 3) provided, inter alia, that all grants of land in freehold made by the Hudson’s Bay Company up to March 8, 1869, should, if required by the owners, be confirmed by grant from the Crown, the mode and form of such grants to be determined by the Governor General in Council.
The first Dominion Lands Act related exclusively to the public lands of Manitoba and the Northwest Territories and was enacted as c. 23 of the Statutes of 1872. This defined the manner in which the lands acquired by Canada by virtue of the surrender of the rights of the Hudson’s Bay Company in Rupert’s Land and the North-Western Territory might be dealt with. Provision was made for sales of such land and the granting of homestead rights to settlers. On the completion of such purchases or the fulfilment of the prescribed homestead duties it was provided that title should be conveyed by letters patent, to be signed on behalf of Her Majesty by the Governor General or his Deputy, and the grants to those holding titles by grants from the Hudson’s Bay Company were to be made in like manner. By the terms of the deed of surrender from the Hudson’s Bay Company to the Crown, that company was entitled to certain lands in each township in part of the territory surrendered: as to part of these, it was provided by s. 21 that title should be vested in the company without requiring patents to issue: as to the remainder, letters patent in the name of the company were to be granted. Section 36 of the Act provided that no reservation of gold, silver, iron, copper or other mines or minerals should be inserted in any patent from the Crown granting any portion of the Dominion lands.
The Act of 1872 was repealed by c. 31 of the Statutes of 1879 which was described as an Act to Amend and Consolidate the several Acts respecting the Public Lands of the Dominion. This substantially reproduced the earlier Act. Section 36 of the Act of 1872 appeared as s. 37 of the Consolidated Act.
By c. 26 of the Statutes of 1880 s. 37 and other sections which had appeared in the Acts of 1872 and 1879 under a sub-heading “Mining Lands” were repealed and a section substituted which provided that lands containing gold or other minerals should not be subject to the provisions of the Act respecting sale or homestead but should be disposed of in such manner as might from time to” time be determined by the Governor in Council by regulations to be made in that behalf.
The Act was again repealed and consolidated by c. 17 of the Statutes of 1883. The amendment of 1880 which had’ replaced s. 37 of the Act of 1879 appeared as s. 42, with other sections, under a sub-heading “Mining and Mining Lands.” Section 43 of this Act, forming part of this group of sections read:—
It is hereby declared that no grant from the Crown, of lands in freehold or for any less estate, has operated or will operate as a conveyance of the gold or silver mines therein, unless the same are expressly conveyed in such grant.
In this Act, settlers making homestead entries were given the further right of making a pre-emption entry for an adjoining unoccupied quarter section of land.
The surrender by the Hudson’s Bay Company, as has been stated, was made to the Dominion of Canada and the Province did not, with some minor exceptions for roads or road allowances, receive any part of the public lands within its boundaries when constituted in 1870. Thereafter, however, the Province became entitled to certain lands by reason of arrangements made with the Dominion in respect to drainage and it became necessary to provide a means whereby such lands and any other lands that the province might acquire might be sold or disposed of. Accordingly, by c 12 of the Statutes of Manitoba of 1883, provision was made whereby any such lands which had become, or might thereafter become, the property of the province might be sold and title given under letters patent under the Great Seal of the Province, duly authorized by the signature of the Lieutenant-Governor and the Secretary of the Province.
The Real Property Act, 1885 (c. 28) introduced the Torrens system into Manitoba. Under this Act a certificate of title issued by the Registrar General (whose appointment was provided for) and signed by him under his seal of office, became the root of title to lands subject to the Act in lieu of letters patent issued either under the Dominion Lands Act or the Provincial Lands Act of Manitoba.
The interpretation section of the Act contained the following definitions which bear upon the present matter:—
3. In this Act, and in all instruments purporting to be made or executed thereunder, unless the context otherwise requires:—
(1) The expression “Land” shall extend to and include land, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever may be the estate or interest therein, together with all paths, passages, ways, water-courses, liberties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timber thereon, and thereunder lying or being, unless any such are specially excepted;
* * * (19) The expression “Grant” shall mean and include any grant of Crown land, whether in fee or for years, and whether direct from Her Majesty or pursuant to the provisions of any statute.
By s, 22 it was provided:—
Hereafter no words of limitation shall be necessary in any conveyance of any land in order to convey all or any title therein, but every deed or instrument conveying land shall operate as an absolute conveyance ‘of all such right and title as the grantor has therein at the time of its execution, unless a contrary intention be expressed in such conveyance; but nothing herein contained shall preclude any conveyance from operating by way of estoppel; and hereafter the introduction of any words of limitation into any conveyance or devise of any land, shall have the like force and meaning, as the same words of limitation would have if used by way of limitation of any personal estate, and no other.
Part V of the Act defined the procedure under which owners of land might apply to have their title registered under the Act and obtain certificates of title.
Section 61, so far as relevant to the present matter, read:—-
61. The land mentioned in any certificate of title granted under this Act, shall, by implication, and without any special mention in the certificate of title, unless the contrary be expressly declared, be deemed to be subject to:—
(a) Any subsisting reservations contained in the original grant of said land from the Crown;
* * *
(g) Any right of expropriation which may by statute be vested in any person or body corporate;
Section 62 read:—
62. Every certificate of title granted under this Act, when duly registered, shall (except in case of fraud wherein the registered owner shall have participated or colluded) so long as the same remains in force and uncancelled under this Act, be conclusive evidence at law and in equity as against Her Majesty and all persons whomsoever, that the person named in such certificate is entitled to the land included in such certificate, for the estate or interest therein specified; subject to the exceptions and reservations mentioned in section 61, except as far as regards any portion of land that may by wrong description of boundaries or parcels be included in such certificate when the holder of such certificate is neither a, purchaser or mortgagee for value, nor the transferee of a purchaser or mortgagee for value, and except as against any person claiming under any prior certificate of title granted under this Act in respect of the same land and for the purpose of this section, that person shall be deemed to claim under a prior certificate who is holder of, or whose claim is derived directly or indirectly from the person who was the holder of the earliest certificate granted, notwithstanding such certificate may have been surrendered and a new certificate granted upon any transfer or dealing. Section 65 provided that an owner desiring to transfer the title of property under the Act might execute a transfer in the form contained in Schedule D and required such transfer to contain an accurate statement of the estate intended to be conveyed.
Part XV provided for the setting up of an Assurance Fund which might be resorted to in certain specified events, which included losses sustained by any omission, mistake or misfeasance of the Registrar-General or of anyone employed in the various Land Titles Offices.
In 1887 the Provincial Lands Act of 1873 was repealed and a new statute substituted (c. 21). The preamble to this statute read:—
Whereas it is expedient and necessary to make provision for the administration of the public lands now acquired or which may be hereafter acquired in any manner whatsoever by the Government of the Province of Manitoba, whether earned under the Statutes or Orders-in-Council of this Province, or of the Dominion of Canada relating to the draining of submerged or swamp lands, or the granting of swamp lands to this Province for public purposes, lands foreclosed under mortgages or acquired for arrears of taxes and all lands that may be or become vested in Her Majesty for the use of this Province or in any way become the property of this Province:
Therefore Her Majesty by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:—
By s. 1 the expression “Land” was declared to extend to and include, inter alia, mines, minerals and quarries appertaining thereto. As in the case of the earlier statutes, it was provided that conveyances of Provincial lands should be made by letters patent issued under the Great Seal of the Province.
By s. 12 provision was made whereby Provincial lands which had been sold and the purchaser’s interest, having become liable to taxes, sold for arrears, the Land Commissioner might direct the issue of letters patent to the purchaser at such tax sale upon completion by him of the conditions of location or sale.
Under the sub-heading “Mining Lands”, s. 20 provided that lands containing coal or other minerals should be disposed of in such manner and on such terms as might be fixed by the Lieutenant-Governor in Council, the language being merely an adaptation of the language of s. 42 of the Dominion Lands Act, 1888. Section 21 read:—
It is hereby declared that no grant from the Crown of lands in freehold or for any less estate has operated or will operate as a conveyance of the gold or silver mines or any other mineral therein, unless the same ‘are expressly conveyed in such grant.
It will be noted that this was almost a replica of s. 43 of the Dominion Lands Act which is above set out, the only change made being that after the word “mines” there was inserted in the Provincial legislation “or any other mineral.”
The land in question in this action originally formed part of a land grant made by the Dominion of Canada prior to 1899, to assist in the construction of the Manitoba and North Western Railway. No patents had been granted in respect of any of the said lands but land warrants had been issued and, by an agreement dated May 9, 1899, which was approved by c. 19 of the Statutes of Manitoba of 1899, warrants for land including this parcel were surrendered to the Province. By a Dominion Order-in-Council made on May 31, 1901, it was recited that the railway company had requested that “title be passed for certain of these lands to the Crown in the right and for the use of the Province of Manitoba”, that the Government of the Province had forwarded the warrants for the land for which title had been applied and it was recommended that title be vested in His Majesty King Edward the Seventh in the right and for the use of the said Province of Manitoba. Annexed to the order was a list describing lands which included the land in question. No patents were issued in respect of any of these lands by the Dominion. The effect of the Order-in-Council was that the right to the beneficial use of the lands was appropriated to the Province and became subject to the control of its Legislature, the land itself being vested in the Crown (St. Catherine’s Milling and Lumber Co. v. The Queen 3).
In 1902, by c. 43, The Real Property Act was reenacted and the Statute of 1885, as amended, repealed. Section 29 read:—
The Lieutenant-Governor-in-Council may by order direct a District Registrar to bring under this Act any land belonging to His Majesty in the right of Manitoba and the filing with a District Registrar of such Order-in-Council shall in all respects have the same force and effect as the filing of an application to bring land under this Act. Acting under this section of the Act, an Order-in-Council was made by the Government of the Province on May 13, 1903, directing that certificates of title do issue to His Majesty the King for lands which included the lands in question. In pursuance of this direction, a certificate of title was issued out of the Land Titles Office at Portage la Prairie in the name of His Majesty the King in the right of Manitoba for the east half of Section 13 in Township 16, Range 10, West of the Principal Meridian. The certificate was in the terms prescribed by The Real Property Act and there was endorsed on the face of it a statement that the land was subject by implication to, inter alia, any subsisting reservation contained in the original grant of this land from the Crown. Unless the Dominion Order-in-Council above referred to, which transferred the right to the beneficial use of the lands to His Majesty in right of the Province, could be described as a grant (and I think it could not) there had been no grant of this land from the Crown. If it was a grant, there were no reservations of any kind contained in it.
The purpose of the Province in directing that these particular lands should be made subject to the provisions of The Real Property Act is not apparent, nor why, having done so, certificates of title were issued in the name of His Majesty. The title of the Crown in the right of the Province to these lands, in the circumstances above described, could not possibly be questioned, and obtaining certificates of title under the provisions of the statute could add nothing to the incontestable nature of that title. The Provincial Lands, Act which was then in force provided for the disposition of Provincial lands by letters patent only, which would indicate that it was never contemplated when that statute was passed that Provincial Crown lands should be made subject to The Real Property Act while remaining the property of His Majesty. It is due to this having been done and a certificate of title issued for the lands in question, which would by virtue of the provisions of The Real Property Act require conveyances to be made by way of transfer, that the difficulty arises which is responsible for the present litigation.
The facts as to the transactions in regard to this particular land following the issue of the certificate of title, so far as it is necessary to consider them, are as follows:—In the year 1901, one Richard Morgan had made application in writing to the Provincial Lands Department to purchase the east” half of section 13-16-10” West, which by its terms said that all valuable stone, coal or other minerals were to be reserved to the Province. In September 1914, Morgan’s interest in these lands was acquired by one Noble and, upon his completing payment of the purchase price a transfer in the form required by The Real Property Act authorized by an Order-in-Council was given on November 10, 1914.
The language of the transfer, so far as it is necessary to consider it, was as follows:—
His Majesty the King in the right of our Province of Manitoba being registered owner of an estate in fee simple in possession subject however to such encumbrances, liens and interests as are notified by memorandum underwritten or endorsed hereon in all that piece or parcel of land known or described as follows (describing it and stating the consideration) the receipt of which sum we do hereby acknowledge transfer to the said William P. G. Noble all our estate and interest in the said land.
The instrument was executed by the Lieutenant-Governor, the Attorney-General, the Provincial Secretary and the Acting Provincial Lands Commissioner, and the Great Seal of the Province affixed. There were no “encumbrances, liens and interest” underwritten or endorsed on the instrument.
While by the terms of Morgan’s application the minerals were to be reserved to the Crown, this apparently was ignored or overlooked when the transfer was given to Noble. It is sufficient for the purpose of disposing of the present matter to say that thereafter title to this land was transferred under the provisions of The Real Property Act to various other persons, that it was sold for taxes and title acquired by the Rural Municipality of Lakeview, by which it was sold and transferred pursuant to the provisions of the Act. Eventually, on November 30, 1948, a certificate of title was issued by the District Registrar at Portage la Prairie, wherein William Hiebert of the Post Office of Langruth was stated to be seized of an estate in fee simple in possession:—
subject to such encumbrances, liens and interest as are notified by memorandum underwritten (or endorsed hereon) in all that piece or parcel of land known and described as follows:—
the south-half of the south-east quarter of section thirteen in Township sixteen and Range Ten West of the Principal Meridian in Manitoba. There were no encumbrances, liens and interest notified by memorandum or endorsed on the certificate other than those to which all certificates of title issued under the Act, unless the contrary be expressly declared, are deemed to be subject by the terms of s. 60 of The Real Property Act (R.S.M. 1940, c. 178). In so far as it affects the present matter, with minor changes in wording which did not alter the meaning, that section was in the terms of s. 61 of The Real Property Act of 1885.
On August 2, 1950, Hiebert granted a lease of the petroleum, natural gas and related hydrocarbons within, upon or under the said lands to one Ted Harris for a term of ten years at a stipulated annual rental. By assignment, the rights of the lessee under this instrument were subsequently vested in the respondent company. Upon the company seeking to file a caveat in the Land Titles Office at Portage la Prairie for the protection of its interest under the said lease, the District Registrar declined to accept the instrument on the ground that the company had acquired no interest in the” said lands, since Hiebert was not the owner of any of the minerals contained therein. The present proceedings were initiated by the respondent company to establish its right to the registration of its caveat.
The refusal of the District Registrar to accept the caveat for registration is based upon the ground that the transfer from the Crown to Noble was a grant within the meaning of s. 25 of The Provincial Lands Act of 1913 and that, accordingly, by statute any minerals in or under the land remained the property of the Crown since they were not, in the language of the section, “expressly conveyed.”
For the respondent, it is contended that the expression “grant” does not include transfers of land in the statutory form required by The Real Property Act and that, accordingly, Noble became and Hiebert was on the date upon which he granted the lease to Harris the owner of the minerals contained in the land.
It will be seen from the above recital of the legislation passed by the Dominion and by the Province in dealing with lands surrendered by the Hudson’s Bay Company that the Province adopted the mode of conveyance earlier decided on by Parliament for the disposition of Dominion lands. The grants thus made to those holding Hudson’s Bay titles or who might become entitled to conveyances under the provisions of the Dominion Lands Act of 1872 were to be made by letters patent and it is to be noted that it was in this manner that the Dominion conveyed lands under the Act from that time until the year 1950, when the Act was repealed by the Territorial Lands Act (c. 22). There can, therefore, be no doubt that when s. 43 was introduced into the Dominion Lands Act, 1883 the “grant from the Crown” referred to was a grant by letters patent and that that was the proper interpretation of the expression in that Act until 1908, when the section in which it occurred was omitted. In the consolidation of that year (c. 20) other provisions were included dealing with the disposition of lands containing minerals and there was no counterpart of s. 43.
The Dominion, while conveying lands of the Crown in the manner specified by the Act followed the lead of the Province in introducing the Torrens system into the Northwest Territories by c. 15 of the Statutes of 1886. This was the Territories Real Property Act, which was made applicable not only to the Northwest Territories but to the District of Keewatin and all other territories of Canada. The Act closely followed the language of The Real Property Act of Manitoba which had been passed by the Legislature in 1885. Ss. 61 and 62 of the Act reproduced the terms of the same sections in the Manitoba Real Property Act. Registration districts were established in the Northwest Territories where persons who already held title to their lands by letters patent from the Crown might have their title registered under the provisions of the new Act. By s. 44 it was provided that whenever any land was granted in the Territories by the Crown the letters patent, when issued, should be forwarded to the Registrar of the registration district in which the lands were situated, to be retained, and a certificate of title granted to the patentee. Thus, all lands alienated by the Crown or by other owners would eventually become subject to the provisions of the new statute. That Act was repealed and replaced by the Land Titles Act of 1894, which did not differ from it in any material particular. When the Provinces of Alberta and Saskatchewan were created in 1905, similar legislation of the same name was adopted by them. There is nothing in any of the Dominion legislation to indicate that it was ever contemplated that, so long as the lands remained the property of Canada, they would be subject to the provisions of the Act or that certificates of title should issue to the Crown.
When the Provincial Lands Act of 1887 was passed The Real Property Act had been in force for two years in the Province of Manitoba. The Provincial Lands Act, as was the case with all of the Dominion Lands Acts, provided that the title of the Crown when alienated should be conveyed by letters patent and the manner in which such grants were to be executed was defined. There is nothing in it to indicate that it was ever contemplated at that time that Provincial Crown lands should become subject to the provisions of The Real Property Act while the title remained in the Crown. The Real Property Act of 1885 had provided by s. 28 that from the commencement of the Act all lands unalienated from the Crown in the Province should, when alienated, be subject to its provisions and by s. 29 that when patents were issued thereafter they should be deposited with the Registrar General and a certificate of title issued to the person entitled. This, as in the case of the Dominion legislation adopted in the year following for the Northwest Territories, indicated that the Legislature had considered it desirable that in the course of time lands in the Province purchased from the Crown should be made subject to the new system. The Act contained nothing of this nature affecting lands owned by the Crown.
In my opinion, the words “grant from the Crown” in s. 21 of the Act of 1887 are to be construed in the same manner as those words in s. 43 of the Dominion Lands Act. In accordance with the fundamental rule, it is in the first instance the intention of the Legislature of 1887 which is to be determined. There is another principle of statutory construction that the language of a statute which deals with a genus is generally extended to new things which are a species of that genus which were not known and could not have been contemplated by the Legislature when it was passed (Maxwell, 10th Ed. p. 79). A case illustrating the application of this principle is Attorney-General v. Edison Telephone Co.4. If it could be said that that principle has any application to the differing manners in which title to land may be conveyed, it’s application would not assist the case of the appellant since the new manner of conveying lands provided by the Torrens system had been established two years earlier. It is, of course, elementary that the language of s. 21 is to be construed in its context and the entire Act considered in endeavouring to arrive at the meaning to be assigned to the word “grant”. If this be done, it is, in my opinion, a necessary conclusion that the grants referred to were grants of the only kind authorized by the statute, namely by letters patent.
There is nothing in the record to indicate that at any time prior to the year 1903, when the Order-in-Council directed the District Registrar to issue certificates of title for the Manitoba and North Western Railway lands in the name of the Crown, any Provincial Crown lands were held in this manner. While these lands had been thus brought under the Act and certificates of title issued, the Legislature did not amend The Provincial Lands Act and the prescribed mode of conveyance continued to be by means of letters patent. In the case of the land conveyed to Noble, however, since a certificate of title in the name of the Crown had issued it was apparently considered necessary to execute the statutory form of transfer. I assume that the Lieutenant-Governor in Council in authorizing its execution did so under what were considered the powers given by s. 7.
In the revision of 1913 an amendment to The Real Property Act (R.S.M. 1913, c. 171, s. 30) provided that all lands in the territory added to the Province by The Manitoba Boundaries Extension Act, 1912 should be subject to the provisions of the Act and that, thereafter, no instrument affecting any of such lands should be registered under the old system. By that Act the boundaries of the Province had been greatly extended to the north and east and the provision that not only the lands privately owned in the added territory but those of the Provincial Crown should be subject to the Act was a departure from the policy declared by the Provincial Lands Act, 1887. It is to be noted that in this added territory the right to all minerals was reserved to the Crown in the right of the Dominion.
The Provincial Lands Act was reenacted as c. 155 in the 1913 revision. Section 25 of the Act was in the terms of s. 21 of the Act of 1887. While various changes were made, those sections dealing with the manner in which title should be given to purchasers from the Crown remained unchanged. The lands which had come to the Province from the land grant to the Manitoba and North Western Railway Company were at this time subject to the provisions of The Real Property Act pursuant to the direction contained in the Order-in-Council of 1903, and presumably certificates of title had been issued to the. Crown in the right of the Province for all of these lands, as had been done in the case of the lands sold to Noble. As to the lands added to the Province in 1912, no question of the application of s. 25 could arise since the minerals in them remained the property of His Majesty in the right of Canada. In these circumstances and for the same reasons which lead me to conclude that the expression “grant” in s. 21 of the Act of 1887 referred to conveyances by letters patent, I am of the opinion that the same meaning should be assigned to it in the Act of 1913.
I have no doubt that the fact is that the effect of the action of the Government in directing that the Manitoba and North Western Railway lands be brought under the Act and certificates of title issued, without making any change in the language of s. 21 of the Act of 1887 and of the relevant sections of The Real Property Act, was simply overlooked. In so far as the Provincial Lands Act is concerned, the oversight was corrected when that Act was repealed and reenacted by c. 32 of the Statutes of 1930 which, by s. 9, provided that there was reserved to the Crown out of every disposition of Provincial lands under the Act all mines and minerals. This was, however, too late to affect the issues in the present matter.
The transfer given by the Crown pursuant to the Order-in-Council of November 10, 1914, transferred “all our estate and interest in the said land.” Section 88 of The Real Property Act provided that every transfer should, when registered, operate as an absolute transfer of all such rights as the transferor had therein at the time of its execution, unless a contrary intention be expressed in such transfer or instrument. No such contrary intention was expressed and, accordingly, the entire interest of the Crown in the land and all mines, minerals and quarries became vested in the transferee upon registration. The certificate of title issued to Noble on July 25, 1919, declared him to be seized of an estate in fee simple in possession in the lands in question, subject only to the reservations to which all certificates of title were subject by implication by reason of the provisions of s. 78 of the Act of 1913. As in the case of the Act of 1885, the only reservation which affects this matter was expressed as:—
any subsisting reservation contained in the original grant of the land from the Crown.
If it be assumed for the purpose of argument that the transfer from the Crown to Noble was “the original grant of the land from the Crown” since no patent had ever issued in respect of the land, there was no reservation in it.
Hiebert’s title was not obtained until 1948. The sections of The Real Property Act of 1940 which affect the matter do not differ from those in the Act of 1913 which are quoted at length in the judgment of Adamson J.A. and need not be repeated. Whether or not the Crown might have impeached the title of Noble, so long as these lands were registered in his name by virtue of the fact that he acquired the lands as the assignee of Morgan and the documents make it clear that it was not intended that the sale of the land to the latter should include the minerals, this cannot possibly affect the position of Hiebert. The land had been transferred many times under the provisions of the Act and that Hiebert had purchased them in good faith and for value is common ground. His title to the land could be impeached, if at all, only upon the ground asserted by the appellant, and that claim for the reasons I have stated is, in my opinion, without foundation.
I am further of the opinion that, even if it were to be assumed that the contention of the appellant that the grant from the Crown referred to in s. 21 should be construed as including transfers of land under the provisions of The Real Property Act, this appeal should fail.
If it was intended that such transfers were to be included, it must then have been contemplated that the Crown in the right of the Province, while still retaining ownership of Provincial lands, would bring them under the new system and that certificates of title would be issued in respect of them. This, in turn, would mean that when such lands were alienated by the Crown, the form prescribed by The Real Property Act would be employed to effect the transfer. To do this involved the legal consequences resulting from the provisions of The Real Property Act. In my opinion, the combined effect of the definition of “land” in s-s. 1 of s. 3 and of s. 22 of the Act of 1885 was that the expression “land” in any such transfer includes mines and minerals unless, in the words of s. 22, “a contrary intention be expressed in such conveyance.” The definition and s. 22 appeared unchanged in meaning as subsection (a) of s. 2 and s. 88 in the revision of 1913. In my opinion, when the word “land” was employed in the transfer to Noble, it was as if the expression as defined in the interpretation section was written out in full. In this respect, I think the legal effect of employing the defined word does not differ from the use of the short forms prescribed by the Short Forms Act (c.