McQueen v. The Queen

McQueen v. The Queen
Collection
Supreme Court Judgments
Date
1886-12-13
Report
(1886) 16 SCR 1
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Gwynne, John Wellington; Taschereau, Henri-Elzéar
On appeal from
Federal Court of Appeal
Subjects
Statutes
Decision Content
Supreme Court of Canada
McQueen v. The Queen (1887) 16 SCR 1
Date: 1887-12-13
CASES DETERMINED BY THE SUPREME COURT OF CANADA ON APPEAL FROM THE COURTS OF THE PROVINCES AND FROM THE EXCHEQUER COURT OF CANADA.
Lucy McQueen (Suppliant in the Court Below)
Appellant
And
Her Majesty The Queen (Respondent in the Court Below)
Respondent
1886: Nov. 30; 1887: Dec. 13.
Present.—Sir W. J. Ritchie, C. J., and Strong, Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Petition of Right Act, 1876, sec. 7—Statute of Limitations—32 Henry 8 ch. 9—Rideau Canal Act, 8 Geo. 4 ch. 1—6 Wm. 4 ch. 16—7 Vic. ch. 11 sec. 29—9 Vic. ch. 42—Deed—Construction of—Estoppel.
Under the provisions of 8 Geo. 4 ch. 1, generally known as the Rideau Canal Act, Lt.-Colonel By, who was employed to superintend the work of making said canal, set out and ascertained 110 acres or thereabouts, part of 600 acres or thereabouts theretofore granted to one Grace McQueen, as necessary for making and completing said canal, but only some 20 acres were actually used for canal purposes. Grace McQueen died intestate, leaving Alexander McQueen, her husband, and William McQueen, her eldest son and heir-at-law, her surviving. After her death, on the 31st January, 1832, Alexander McQueen released to William McQueen all his interest in the said lands, and by deed of Feb. 6th, 1832 the said William McQueen conveyed the whole of the lands originally granted to Grace McQueen to said Lt.-Colonel By in fee for £1,200.
By 6 William 4 ch. 16, persons who acquired title to lands used for the purpose of the canal after the commencement of the works, but who had purchased before such commencement, were enabled to claim compensation.
By the Ordnance Vesting Act, 7 Vic. ch. 11, the Rideau Canal, and the lands and works belonging thereto, were vested in the principal officers of H. M. Ordnance in Great Britain, and by sec. 29 it was enacted: "Provided always, and be it enacted, that all lands taken from private owners at Bytown under the authority of the Rideau Canal Act for the use of the canal, which have not been used for that pupose, be restored to the party or parties from whom the same were taken."
By 9 Vic. ch. 42, Canada, it was recited that the foregoing proviso had given rise to doubts as to its true construction, and it was enacted that the proviso should be construed to apply to all the land at Bytown set out and ascertained and taken from Nicholas Sparks, under 8 Geo. 4 ch. 1, except certain portions actually used for the canal, and provision was made for payment of compensation to Sparks for the land retained for canal purposes, and for revesting in him and his grantees the portions of lands taken but not required for such purposes.
By the 19-20 Vic. ch. 45, the Ordnance properties became vested in Her Majesty for the uses of the late Province of Canada, and by the British North America Act they became vested in Her Majesty for the use of the Dominion of Canada.
The appellant, the heir-at-law of William McQueen, by her petition of right sought to recover from the crown 90 acres of the land originally taken by Colonel By, but not used for the purposes of the canal, or such portion thereof as still remained in the hands of the crown, and an indemnity for the value of such portions of these 90 acres as had been sold by the crown.
Held per Gwynne J. (in the Exchequer)—Under the statute 8 Geo. IV the original owner and his heirs did not become divested of their estate in the land until after the expiration of the period given by the act for the officer in charge to enter into a voluntary agreement with such owner, unless in virtue of an agreement with such owner. Nor was there any conversion of realty into personalty effected by the act until after the expiration of said period. By the deed made by William McQueen of the 6th February. 1832, all his estate in the 110 acres, as well as in the residue of the 600 acres, passed and became extinguished, such deed operating as a contract or agreement made with Col. By as agent of His Majesty within the provisions of the act and so vesting the 110 acres absolutely in His then Majesty, his heirs and successors.
2. Such deed was not avoided by the statute 32 Hy. VIII ch. 9, Col. By being in actual possession as the servant and on behalf of His Majesty and taking the deed from William McQueen while out of possession, the statute having been passed to make void all deeds executed to the prejudice of persons in possession by persons out of possession to persons out of possession, under the circumstances stated in the act.
3. There was no reversion or revesting of any portion of the land taken by reason of its ceasing to be used for canal purposes. When land required for a particular purpose is ascertained and determined by the means provided by the Legislature for that purpose, and the estate of the former owner in the land has been by like authority divested out of him and vested in the crown, or in some persons or body authorized by the legislature to hold the expropriated land for the public purpose, if the estate of which the former owner is so divested be the fee simple, there is no reversion nor anything in the nature of a reversionary right left in him in virtue of which he can at any subsequent time claim upon any principle of the common law to have any portion of the land of which he was so divested to be revested in him by reason of its ceasing to be used for the purpose for which it was expropriated.
4. Assuming that Grace McQueen had by operation of the act become divested of her estate in the land in her lifetime and that her right had become converted into one merely of a right to compensation which upon her death passed as personalty, the non-payment of any demand which her personal representative might have had could not be made the basis or support of a demand at the suit of the heir-at-law of William McQueen to have revested in him any portion of the lands described in the deed of the 6th February, 1832, after the execution of that deed by him, whether effectual or not for passing the estate which it professed to pass.
5. The proviso in the 29th section of 7 Vic. chap. 11, as explained by 9 Vic. ch. 42, was limited in its application to the lands which were originally the property of Nicholas Sparks and not conveyed or surrendered by voluntary grant executed by him and for which no compensation or consideration had been given to him.
6. Her Majesty could not be placed in the position of trustee of the lands in question unless by the express provisions of an act of Parliament to which she would be an assenting party.
In the Supreme Court held:—
1. Per Ritchie C.J. By the deed of the 6th February, 1832, the title to the lands passed out of William McQueen, but assuming it did not, he was estopped by his own act and could not have disputed the validity and general effect of his own deed, nor can the suppliant who claims under him.
2. Per Ritchie C.J. and Strong and Gwynne JJ. The suppliant is debarred from recovering by the Statute of Limitations, which the crown has a right to set up in defence under the 7th section of the Petition of Right Act of 1876.
3. Per Strong J. Independently of this section, the crown, having acquired the lands from persons in favor of whom the statute had begun to run before the possession was transferred to the crown that body incorporated under the title of "The Principal Officers of Ordnance" would be entitled to the benefit of the statute.
4. Per Strong J. The act 9 Vic., ch. 42 had not the effect of restricting the operation of the revesting clause of 7 Vic. ch. 11 to the lands of Nicholas Sparks, and was passed to clear up doubts as to the case of Nicholas Sparks and not to deprive other parties originally coming within sec. 29 of 7 Vic. ch. 11 of the benefit of that enactment.
5. Per Strong J. A petition of right is an appropriate remedy for the assertion by the suppliant of any title to relief under sec. 29. Where it is within the power of a party having a claim against the crown of such a nature as the present to resort to a petition of right a mandamus will not lie, and a mandamus will never under any circumstances be granted where direct relief is sought against the crown.
6. Per Strong J. By the express terms of the 3rd section of 8 Geo. IV ch. 1, the title to lands taken for the purposes of the canal vested absolutely in the crown so soon as the same were, pursuant to the act, set out and ascertained as necessary for the purposes of the canal; and all that Grace McQueen could have been entitled to at her death was the compensation provided by the act to be ascertained in the manner therein prescribed, and this right to receive and recover the money at which this compensation should be assessed vested, on her death, in her personal representative as forming part of her personal estate. Therefore as regards the 110 acres nothing passed by the deed of 6th February, 1832. And up to the passing of 7 Vic. ch. 11, no compensation had ever been paid by the crown, nor any decision as to compensation binding on the representative of Grace McQueen.
7. Per Strong J. The proviso in sec. 29 of 7 Vic. ch. 11 applied to the 90 acres not used for the purposes of the canal, and had the effect of revesting the original estate in William McQueen as the heir-at-law of his mother, subject to the effect upon his title of the deed of 6th February, 1832. But if it had the effect of revesting the land in the personal representative, the suppliant is not such personal representative and would therefore fail.
8. Per Strong J. This deed did not work any legal estoppel in favor of Col. By which would be fed by the statute vesting the legal estate in William McQueen, the covenants for title by themselves not creating any estoppel. But if a vendor, having no title to an estate, undertakes to sell and convey it for valuable consideration his deed, though having no present operation either at law or in equity, will bind any interest which the vendor may afterwards acquire even by purchase for value in the same property, and in respect of such after acquired interest he will be considered by a court of equity to be a trustee for the original purchaser, and he, or his heir-at-law, will be compelled to convey to such purchaser accordingly. In other words, the interest so subsequently acquired will be considered as "feeding" the claim of the purchaser arising under the original contract of sale, and the vendor will not be entitled to retain it for his own use. Therefore, if the suppliant were granted the relief asked, the land and money recovered by her would in equity belong to the heirs of Col. By.
Although nothing passed under the deed of the 6th February, 1832, yet the suppliant could not withhold from the heirs or representative of Col. By anything she might recover from the crown under the 29th section of 7 Vic. ch. 11, but the heirs or representatives of Col. By would in turn become constructive trustees for the crown of what they might so recover by force of the rule of equity forbidding purchases by fiduciary agents for their own benefit.
9. Per Strong J. The deed of the 6th February, 1832, being in equity constructively a contract by William McQueen to sell and convey any interest in the land which he or his heirs might afterwards acquire, there is nothing in the statute 32 Henry 8 ch. 9, or in the rules of the common law avoiding contracts savoring of maintenance, conflicting with this use of the deed.
10. Per Fournier and Henry JJ. The mere setting out and ascertaining of the lands was not sufficient to vest the property in His Majesty, and Grace McQueen having died without having made any contract with Col. By the property went to William McQueen her heir-at-law.
1. Per Fournier, Henry and Taschereau JJ. The deed of the 6th February, 1832, made before the passing of 7 Vic. ch. 11 sec. 29, and five years after the crown had been in possession of the property in question, conveyed no interest in such property either to Col. By personally or as trustee for the crown, and the title therefore remained in the heirs of Grace McQueen.
2. The proviso in sec. 29 of 7 Vic. ch. 11 was not limited by 9 Vic. ch. 42 to the lands of Nicholas Sparks and the appellant is entitled to invoke the benefit of it.
3. The 90 acres now used for the purposes of the Canal did not by 19. Vic. c. 54 become vested in Her Majesty, nor were they transferred by the B. N. A. Act to the exclusive control of the Dominion Parliament. The words "adjuncts of the canal" in the first schedule of the B. N. A. Act could only apply to those things necessarily required and used for the working of the canal.
4. The crown was not entitled to set up the Statute of Limitations as a defence by virtue of sec. 7 of the Petition of Right Act, 1876, that section not having any retroactive effect.
5. Per Fournier, Henry and Tashereau JJ. There could be no estoppel as against William McQueen by virtue of the deed of the 6th February, 1832, in the face of the proviso in 7 Vic. ch. 11.
The court being equally divided the appeal was dismissed without costs.
Appeal from the judgment of Mr. Justice Gwynne in the Exchequer Court in favor of the crown.
The suppliant by her petition of right alleged:—
Paragraph 1. That by letters patent dated the 20th May, 1801, under the great seal of the province of Upper Canada, lots lettered E and D, in concession C, in the township of Nepean, containing 400 acres, were granted unto one Grace McQueen in fee simple.
Paragraph 2. That by letters patent, dated the 10th day of June, 1801, under the great seal of the said province, lots D and E in broken concession D on the river Rideau in the said township of Nepean were granted unto the said Grace McQueen in fee simple.
Paragraph 3. That the said Grace McQueen entered into possession of the lands so granted to her and, save as hereinafter appears, continued in possession of the said lands down to and at the time of her death.
Paragraph 4. That by an act of the Provincial Parliament of the said province of Upper Canada, viz.: 8 Geo. 4, ch. 1, passed on the 17th of February, 1827, commonly referred to as the Rideau Canal Act, it was enacted (as in this paragraph alleged, but which it is not necessary to set out at large).
Paragraphs 5, 6 and 7. That by the said act it was further enacted, as in these paragraphs alleged, but which it is unnecessary to set out here.
Paragraph 8. That Lieut.-Col. John By, of the Royal Engineers, was the officer employed by His Majesty to superintend the work of making the said Rideau Canal, and he set out and ascertained certain parts of the said parcels or tracts of land comprised in the said two several hereinbefore stated letters patent and deeds of grant respectively, as aforesaid, amounting altogether to 110 acres or thereabouts, as necessary for making and completing the said canal, and other purposes and conveniences mentioned in the before stated act, and said 110 acres were forthwith taken possession of by His said Majesty, his heirs and successors; and the land which he so] set out and ascertained, as aforesaid, was described on a certain plan signed by him and lodged by him in the office of the Surveyor-G-eneral of the said late province of UpperCanada, and now fyled in the office of Her Majesty's Crown Land Department for the province of Ontario.
Paragraph 9. Some time after the passing of the said act the said Grace McQueen died intestate, being at the time of her death possessed of the said parcels or tracts of land comprised in the said two several deeds of grant, or of so much thereof as had not been set out and ascertained for the purposes of the said canal, as before mentioned; and she left Alexander McQueen, her husband, and William McQueen, her eldest son and heir-at-law, her surviving. And on the 31st day of January, 1832, the said Alexander McQueen, by a deed poll of that date, under his hand and seal, released unto the said William McQueen all his right and interest to and in the said parcels of land, to hold the same unto the sole and proper use of the said William McQueen, his heirs and assigns forever.
Paragraph 10. The Rideau Canal was completed and opened for traffic throughout its length some time in the month of May, 1832.
Paragraph 11. That by an act passed the 9th day of December, 1843 (7 Vic. c. 11) the lands and other property therein mentioned, including the Rideau Canal and the lands and woods belonging thereto, were vested in the principal Officers of Her Majesty's Ordnance in Great Britain, and their successors in the principal said office, subject to the provisions of the said act.
Paragraph 12. That on or about the 20th day of October, 1845, the said William McQueen died intestate, leaving the suppliant his only legal issue and his sole heir-at-law,—him surviving.
Paragraph 13. No payment, indemnity or compensation was ever made to the said Grace McQueen, nor to the suppliant, nor to any person entitled to receive the same, in respect of the said part of the said 110 acres so set out as necessary for the canal purposes, but not used for the purposes of the said canal.
Paragraph 14. That the real property adjoining the said lots granted to the said Grace McQueen formerly belonged to one Nicholas Sparks. A portion of this was set out and ascertained as necessary for the purpose of the said canal, and was accordingly taken from the said Nicholas Sparks under the authority of the said Rideau Canal Act. And after the passing of the said Act, 7 Vic. c. 11, the said Nicholas Sparks applied for a restoration of part of the land so taken from him, and thereupon was passed an act of the Provincial Parliament of Canada (9th Vic., c. 42), A.D. 1846, intituled:—'An Act to explain certain provisions of the Ordnance Vesting Act, 7 Vic. c. 11, and to remove certain difficulties which have occurred in carrying the said provisions into effect.'
Paragraphs 15 and 16 set out what is alleged to be the most material part of 9 Vic. c. 42.
Paragraph 17 sets up the suppliant's contention as to what the effect of 7 Vic. c. 11, as explained by 9 Vic. c. 42, was.
Paragraph 18. That in pursuance of the last mentioned act a considerable portion of the land taken from the said Nicholas Sparks for the said Rideau Canal has since been restored to him; but that no part of the land of the said Grace McQueen so set out and taken as aforesaid for canal purposes, held by Her Majesty but not used for canal purposes, to wit: 90 acres or thereabouts of the said 110 acres, has ever been restored to the said Grace McQueen, nor to the said late William McQueen, nor to suppliant.
Paragraphs 19, 20, 21 and 22. That by an act of the Provincial Parliament of Canada, viz., 19 Vic. c. 45, it was among other things enacted as in these paragraphs is alleged.
Paragraph 23. That several years after the death of the late William McQueen, to wit: in 1869-70, suppliant caused to be presented to the Governor General of Canada in Council a memorial urging the facts and circumstances aforestated, and praying for the restoration of the said 90 acres of land, but that no part of the said land has been restored to her.
Paragraphs 24, 25, 26, 27 and 28 contain an extended legal argument in support of the suppliant's claim to have the said 90 acres restored to her.
Paragraph 29. The suppliant insists that the said 90 acres not so used for the purpose of the said canal, and which passed to or became vested in Her Majesty therefore have, by lapse, passed to and are now vested in the suppliant, as if the said canal had never been made and the said acts had never been passed; yet Her Majesty's Government in Canada have all along, since the construction of the said canal, taken and held possession of the said 90 acres, and still hold possession thereof, and have taken the rents and profits thereof, and have sold parts thereof,—and made conveyances thereof to purchasers and given possession to such purchasers, and have received the purchase money thereof; and the suppliant submits that Her Majesty should deliver possession to the suppliant of the said land remaining unsold, and should pay to the suppliant the rents and profits of the lands unsold: and, as to the portions of the said lands so sold, should pay the present value thereof, and that the suppliant should have a re-conveyance of all such lands as have not been sold.
Paragraph 30. That by the British North America Act, 1867, the said lands and tenements were transferred to the Dominion of Canada. Paragraph 31. That, in any case, Her Majesty was and is a trustee for the suppliant of all of the said lands that were not actually used for the purposes of the said canal, and it should be so declared. And the prayer of the petition is that all such parts of the said two parcels or tracts of land comprised in the said two several deeds of grant, dated respectively the 20th day of May and the 10th day of June, 1801, as were supposed to be taken to the use of the said Rideau Canal, but not used for that purpose, may be restored to and be re-vested in the suppliant, according to her right and interest to and in the same; and that an account of the rents and profits thereof may be taken, and, together with the costs of this petition, be paid to the suppliant; and as to such portions thereof as have been sold, that the values thereof may be paid to the suppliant, and also the rents and profits thereof prior to the selling thereof by Her Majesty, and that for the purposes aforesaid all necessary orders and decrees may be made and accounts taken.
To this petition Her Majesty's Attorney General for the Dominion of Canada has filed an answer, wherein:—
Paragraph 1—He admits that letters patent issued, bearing date respectively the 20th day of May, 1801, and the 10th of June, 1801, as mentioned in the first and second paragraphs of the said petition, whereby certain lands were granted to Grace McQueen in the said petition mentioned.
Paragraph 2 admits the passing of the Act of Parliament of the late province of Upper Canada (being the Act 8 Geo. 4. c. 1), referred to in the fourth, fifth, sixth and seventh paragraphs of the said petition, to which, however, for greater certainty he refers.
Paragraph 3 admits that Colonel By, in the 8th paragraph of the said petition named, was the officer employed by His late Majesty to superintend the work of making the said canal, and that he set out and ascertained certain parts of the said parcels of land comprised in the said letters patent, comprising altogether 110 acres or thereabouts, as necessary for making and completing said canal, and other purposes and conveniences mentioned in the said act, and that the land which he so set out and ascertained as aforesaid is described in a plan lodged by Colonel By in the office of the Surveyor-General of the late province of Upper Canada, and signed by him.
Paragraph 4 admits that the said Grace McQueen died intestate some time before the 31st day of January, 1832, and after the passing of the said act, but denies that she died seized or possessed of the whole of the said parcels of land; and charges that the parts thereof set out and ascertained by Colonel By, as required for the uses and purposes of the said canal, were at the time of her death vested in His Majesty, and His Majesty was then in possession thereof for the purposes of the said canal.
Paragraph 5 admits that the said Grace McQueen left her husband, Alexander McQueen, her surviving, and also William McQueen, her eldest son and heir-at-law, and admits the execution of the deed dated 31st day of January, 1832, from Alexander McQueen to William McQueen, but denies that any estate or interest in the said lands set out and ascertained by Colonel By, as aforesaid, descended to the said William McQueen or passed to him under said deed.
Paragraph 6 charges that the said Colonel By was, at the time of the execution of the indenture dated 6th February, 1832, hereinafter referred to, an officer in the service of His Majesty the late King William IV, and had in charge for His Majesty the said canal and the works connected therewith, and the lands set apart and taken therefor, including the lands in question in this matter; that by an indenture dated 6th day of February, 1832, made at Bytown, in the late province of Upper Canada, between the said William McQueen and Colonel By, the said William McQueen, for the consideration therein mentioned, granted, conveyed and confirmed unto the said Colonel By, his heirs and assigns forever, all the lands and premises which are the subject matter of the suppliant's petition, together with appurtenances and all the estate, right, title, interest, claim, property and demand whatsoever, either at law or in equity, of the said William McQueen, of or to or out of the same, and every part thereof; and submits that upon the death of the said William McQueen, after having conveyed to the said Colonel By the said lands and premises, and all his interest therein, no right or interest therein passed to the suppliant, as stated in the twelfth paragraph of her petition, and that she has no title to the said lands and premises and cannot now assert any claim in respect thereof.
Paragraph 7 submits that any interest in the said lands and premises acquired by the said Colonel By, under the said indenture of 6th February, 1832, having been acquired by him under the circumstances above referred to, passed in equity to His Majesty, His successors and assigns, and that Her Majesty the Queen is now entitled thereto.
Paragraph 8 submits that the said conveyance by William McQueen to Colonel By was operative under the provisions of the second section of the said act 8 George IV., c. 1, and passed to the said Colonel By, on behalf of His Majesty, the fee simple and legal estate in the lands so set apart by him for the purposes of the said canal.
Paragraph 9. The ninth section of the said act 8 George IV, ch. 1, provided that in estimating the claim of any individual to compensation for property taken or for damage done under the authority of the act, the arbitrators or jury in assessing such damages should take into their consideration the benefit likely to accrue to such individual from the construction of the said canals, by enhancing the value of his property or producing other advantages.
Paragraph 10. That some time after obtaining the conveyance of the 6th day of February, 1832, Colonel By took proceedings under the said act 8 George IV, ch. 1, to obtain, by arbitration, compensation or damages from His Majesty in respect of the lands comprised in the said conveyance of the 6th day of February, 1832, and that therein he claimed compensation or damages for the lands now in question.
Paragraph 11 charges that an award was duly made in writing in the course of the said arbitration proceedings, whereby it was awarded and determined that by reason of the enhancement of the value of the other land which at the time of her death belonged to the said Grace McQueen, and of other benefits and advantages which accrued to her, and those claiming under her, from the construction of the canal, as provided in the 9th section of the said act, His Majesty was not liable to make compensation for the lands in question in this matter taken under the said act.
Paragraph 12 charges that afterwards Colonel By, being dissatisfied with the said award, duly caused a jury to be summoned under the provisions of the said act, to assess the said damages and compensation claimed by him, and that the jury duly delivered their verdict to the same effect as the said award.
Paragraph 13 submits that by reason of the enhancement of the value of other lands of the said Grace McQueen, and of the other benefits and advantages which accrued to her and those representing her, the crown never became liable to make compensation for the lands in question in this matter.
Paragraph 14 charges that the said William McQueen, as heir-at-law of the said Grace McQueen, inherited the said other lands which had been so enhanced in the value, and by the said deed of 6th February, 1832, sold and conveyed the same to the said Colonel By, and received from him such enhanced value, by reason whereof the said William McQueen received the value of the lands in question in this matter.
Paragraph 15 admits the 7 Vic. ch. 2, and also the 9 Vic. ch. 42, but as to the effect thereof craves leave to refer to said acts.
Paragraph 16 submits that upon the true construction of the said acts the benefit of the said proviso was and is confined to Nicholas Sparks, therein mentioned, and that the same did not extend to the lands in question.
Paragraph 17 submits that the claim against the crown for compensation or damages by reason of the taking of the lands in question in this matter was personal estate of the said Grace McQueen, and passed at her death to her personal representative, and not to her heir-at-law; and by an act (2 Vic. ch. 19) it was expressly enacted that from and after the 1st day of April, 1841, all and every the provision of the said act, 8th year of King George the Fourth, ch. 1, should in respect of claims brought forward after that period, cease and determine.
Paragraph 18. And it was further by the last-mentioned act enacted that claims made before the said 1st day of April, but not duly prosecuted as required by the said act, should thenceforward be barred, as if they had never been made. Paragraph 19. And it was further by the last-mentioned act enacted that it might be lawful for the Lieutenant-Governor to issue a proclamation requiring all persons to prosecute their claims within the time so limited, or that such claims should thereafter be barred.
Paragraph 20 avers that on the 9th day of September, in the last-mentioned year, such proclamation was duly made by the Lieutenant-Governor in Her Majesty's name, and the same was published in the official gazette and claims, on behalf of Her Majesty, the benefit of the said act and proclamation, and submits that thereby all claims of every kind against Her Majesty, in respect of the said lands, by the said Grace McQueen or her representatives, or any person claiming through or under them or either of them, including the suppliant, became and were and are for ever barred on and after the 1st day of April, A.D. 1841.
Paragraph 21 admits that in pursuance of the acts of 1844 and 1846 some part of the lands taken from Nicholas Sparks for the said canal was restored to him, and that no part of the land in question was ever restored to the suppliant, or to those through whom she claims, and charges, that no land taken for the canal from any other person was restored to the owners under the said proviso and acts, other than to the said Sparks.
Paragraph 22 admits the passing of the act of the 19th of June, 1856, (19 and 20 Vic. c. 45), and by virtue thereof the lands in question became vested in Her Majesty for the uses of the late Province of Canada, and craves leave to refer to its provisions.
Paragraph 23 admits that by the British North America Act the same lands, or so much thereof as had not previously been sold or disposed of, became vested in Her Majesty for the use of the Dominion of Canada.
Paragraph 24 denies that Her Majesty is a trustee for the suppliant of the said lands, or any part thereof.
Paragraph 25 charges that from the original setting apart and taking of the said lands, until the year 1843, the said lands were vested in Her Majesty, in right of Her Imperial Crown, during all which time the suppliant, or those through whom she claims, might have proceeded against Her Majesty by petition of right or otherwise in Her Majesty's courts in England, but they never did so.
Paragraph 26 charges that from the year 1843 to the year 1856 the lands in question were vested in the principal officers of Her Majesty's Ordnance, and the said principal officers of Her Majesty's Ordnance were also during all the times last mentioned in possession thereof, and the suppliant or those under whom she claims might, during all the last mentioned time, have sued and impleaded the said principal officers in the courts of the late province of Canada for the recovery or restoration of the said lands, but they neglected so to do.
Paragraph 27 charges that the suppliant and those under whom she claims have been guilty of such laches and delay in respect of the said claims as precludes the suppliant in equity from now prosecuting the same.
Paragraph 28 claims, under the provisions of the Petition of Right Act, the statutes of limitations.
Paragraph 29 admits the presentation of the memorial mentioned in the 23rd paragraph of the suppliant's petition and that after mature deliberation and consideration the Privy Council refused to entertain it, of which due notice was given to the suppliant.
Paragraph 30 submits on behalf of Her Majesty that the petition shows no grounds for relief against Her Majesty in respect of any of the matters contained therein.
Paragraph 31 submits that under no circumstances is Her Majesty, as representing the Dominion of Canada, answerable or responsible to the suppliant for or in respect of any of the said lands heretofore sold or disposed of, or in respect of the rents and profits of any of the said lands and that the suppliant is not entitled to any such account as prayed for in the said petition.
Upon this petition and the answer thereto a special case has been agreed upon, which is also divided into paragraphs wherein it is admitted as follows:—
Paragraph 1, admits that by letters patent of the respective dates mentioned in the petition, the lots of land therein mentioned, containing 600 acres, were granted in fee simple to Grace McQueen.
Paragraph 2. That on the 17th February, 1827, the act 8 Geo. IV, ch. 1, (commonly called the Rideau Canal Act), was passed.
Paragraph 3. That on the 18th day of September, A. D. 1827, Grace McQueen died intestate, leaving, her surviving Alexander McQueen, her husband, William McQueen her eldest son and heir-at-law.
Paragraph 4. That as set forth in the 8th paragraph of this petition, prior to the death of Grace McQueen, Colonel By, the officer in charge of the Rideau Canal and works, acting under the provisions of the said Rideau Canal Act, for His then Majesty, for the uses and purposes of the said canal, had, from the parcels of land patented as aforesaid, ascertained, set out and taken possession of one hundred and ten acres thereof which he thought necessary and proper for the purposes of the said canal; and that the officers of Her Majesty, for Her Majesty or the principal officers of Her Majesty's Ordnance, or the purchasers from Her Majesty hereinafter mentioned, as the case may be, have had possession of the same from thence hitherto.
Paragraph 5. That as set forth in the 9th paragraph of the said petition, the said Alexander McQueen, by deed dated 81st January, 1832, released all his right, title and interest in all the said lands to the said William McQueen and his heirs, and that the said Alexander McQueen died in or about the year 1851.
Paragraph 6. That by an indenture dated the 6th February, 1832, a copy of the memorial of which is put in as evidence of its contents, the said Wm. McQueen, for the consideration therein mentioned, purported to grant, convey and confirm all the said lands patented as aforesaid unto the said Col. By, his heirs and assigns.
Paragraph 7. That at the time of the execution of the said indenture the said Col. By was the officer in the service of His Majesty the late King William the Fourth, who had in charge for His Majesty the said canal and the works connected therewith and all the lands set apart and taken therefor.
Paragraph 8. That the Rideau canal was completed and opened for traffic some time in the month of May, 1832.
Paragraph 9. That on the 20th day of April, 1836, the act of the late Province of Upper Canada, 6 Wm. IV. ch. 16, was passed.
Paragraph 10. That on the 11th of May, 1839, the act 2 Vic. c. 19, was passed, and on the 9th of September of that year a proclamation was issued and published as set forth in the 20th paragraph of the answer filed to the suppliant's petition.
Paragraph 11. That on the 9th day of December, 1843, the act 7 Vic. c. 11, was passed. Paragraph 12. That on the 20th day of October, 1845, the said Wm. McQueen died intestate, leaving him surviving the suppliant, Lucy McQueen, who for the purposes of this case is to be treated as his only child, heiress-at-law and next of kin.
Paragraph 13. That A.D. 1846, the act of the Legislature of the late Province of Canada 9 Vic. c. 42, was passed.
Paragraph 14. That in the year 1856 the act 19 and 20 Vic. c. 45, was passed.
Paragraph 15. That in the year of Our Lord 1859, the Consolidated Statutes of Canada, chapters 24 and 36, were passed.
Paragraph 16. That in the year 1867 the British North America Act was passed.
Paragraph 17. That on 12th day of April, 1867, an act was passed by the Parliament of Canada, called the 'Petition of Right Act.'
Paragraph 18. That of the 110 acres of the lands and premises so set out and ascertained and taken possession of as aforesaid, only about 20 acres thereof have been actually used for canal purposes.
Paragraph 19, sets out a provision of the 9th sec. of 8 Geo. IV. c. 1.
Paragraph 20. That after obtaining the conveyance of the 6th February, 1832, Colonel By took proceedings, under 8 Geo. IV c. 1, to obtain by arbitration compensation from His Majesty in respect of the lands now in question.
Paragraph 21. That an award was made in the matter of the said arbitration, whereby it was awarded and determined that by reason of the enhancement of the residue of the lands, whereof the said Grace McQueen at the time of her death was seized, from the construction of the canal, His Majesty, under the provisions of the 9th sec. of the act, was not liable to make any compensation for the lands in question in this matter.
Paragraph 22 That upon the action of the said Col. By this award was afterwards affirmed by a jury empanelled under the act.
Paragraph 23. That the documents relating to the said arbitration and assessment proceedings, in the three preceding paragraphs mentioned, are to be treated as part of the special case.
Paragraph 24. That the said McQueen, as heir-at-law of the said Grace McQueen, inherited the said other lands which are stated in the said arbitration proceedings to have been enhanced in value, and which are included in the said deed of the 5th February, 1832.
Paragraph 25. That no payment or compensation in money has ever been made by the crown to Grace McQueen, or to William McQueen, or to the suppliant, or to any person claiming under them, for the 20 acres actually used for canal purposes or for the residue of the 110 acres set out, ascertained and taken possession of as aforesaid, but not so used.
Paragraph 26. That in pursuance of the acts 7 Vic. ch. 11, and 9 Vic. ch. 42, some part of the lands taken from Nicholas Sparks for the said canal was restored to him, but that no part of the land in question was ever restored to the suppliant, or to those through whom she claims.
Paragraph 27. That on the 18th day of February, A.D. 1869, the Under Secretary of State for Canada, being duly authorized in that behalf to represent Her Majesty, advertised for sale by auction a portion of the said lands and premises for building lots, and on the 16th March, 1869, portions of the said lands were sold for the benefit of Her Majesty in pursuance of the said advertisement and that such sale took place, notwithstanding a formal protest of the suppliant in writing and set out at large in this paragraph was served upon the officer in charge of the Ordnance Lands Department and on the several purchasers at the sale.
Paragraph 28. That in the same year, 1869, the suppliant caused to be presented to the Privy Council of Canada a memorial to the effect set out in the 23rd paragraph of her petition, and that the Privy Council after mature consideration and deliberation upon the matters alleged in the said memorial, and on certain reports made to the Council by the Department of Justice, to which department the said memorial had been referred, to report thereon, resolved by an order duly made and notified to the suppliant that the claim preferred by her could not be entertained, and that reference may be made to the documents, referred to in this paragraph for evidence of their contents.
Paragraph 29 is a verbatim admission of the matters of fact alleged in the 25th and 26th paragraphs of the answer of the Attorney-General of Canada to the suppliant's petition.
The questions submitted for the opinion of the court on the facts, documents and statutes referred to in the foregoing case are as follows:—
"1st. Did William McQueen take the lands in question, or any part thereof, as heir-at-law of Grace McQueen; and, if so, what part?
"2nd. Had Grace McQueen, at the time of her death, as to the portion of the said lands taken and used as aforesaid, any right to compensation or damages in respect thereof; and, if so, in respect of what portion did such right pass to her heir or to her personal representative?
"3rd. Were the deeds dated 31st January, 1832, or 6th February, 1832, or either of them, void at common law or under the statute 32 H. 8, ch. 9, or otherwise?
"4th. If the said lands, or any part thereof descended, is Lucy McQueen entitled to recover the same or any part thereof, or is she barred or precluded from so doing by the statutes of limitations, or laches, or otherwise?
"5th. If the said right to compensation or damages passed to the heir-at-law of Grace McQueen, in whom would it be now vested? Assuming it still to exist, is it barred by the statute of limitations, or by laches, or by the said arbitration proceedings, or otherwise? And would the fact that there never has been any person representative of Grace McQueen preserve the right as against the statute of limitations?
"6th. Is the statute of limitations any defence when pleaded by Her Majesty in this petition of right under the fact herein stated?
"7th. If at the time of his death William McQueen was residing out of Canada, and the suppliant was then a minor, residing out of Ontario, and if the suppliant has continued to reside out of Ontario ever since, would that prevent the statute of limitations from running in favor of Her Majesty, assuming that Her Majesty can set it up as a defence to the petition?
"8th. Is the suppliant entitled to recover by petition of right the said lands, or any part thereof, under the facts and circumstances herein stated?
"9th. Is the suppliant entitled to recover by petition of right compensation or damages for the taking of the said lands or any part thereof under the facts and circumstances herein stated?
"10th. Is the suppliant entitled to recover by petition of right the purchase money of the parts of the said lands sold by the crown, and, if so, is she entitled to interest thereon?
"11th. Is the suppliant entitled to recover by petition of right mesne rents and profits and, if so, from what date?
Mr. Gormully appeared on behalf of the suppliant and Mr. Lash Q.C. for the crown. GWYNNE J.—(After reading the above statement of the case delivered the following judgment in the Exchequer Court:—)
"In the year 1876 a similar petition of right was filed in this court by the heirs of the late Colonel By, claiming relief in their favor, similar to that which the suppliant, Lucy McQueen, now claims by her petition, and upon the answer of the Attorney-General having been filed to the petition, a special case was stated, wherein some questions were submitted to the court similar to some of those which are now submitted.
"The late Chief Justice of this court, Sir Wm. B. Richards, delivered his judgment in that case dismissing the petition.
"Upon the argument before me of the present case it was urged by Mr. Lash, upon behalf of the crown, that any of the questions decided by Sir W. B. Richards in that case, similar to those submitted now, should be deemed concluded by his decision; and upon the other side I was requested by Mr. Gormully to express my own views in the case, independently of the judgment of the late Chief Justice in the former case.
"In view of the apparent magnitude of the claim asserted by the suppliant, and inasmuch as upon as thorough a consideration of the case as I am able to give it, I have arrived at the conclusion that there is no ground whatever upon which the claim of the suppliant to any portion of the relief prayed by her can be supported, and as in some minor particulars my mode of arriving at this conclusion may appear to be somewhat different from that by which the late learned Chief Justice arrived at the like result as to the claim of the heirs of Colonel By, I have thought it right that I should state fully the mode of reasoning which has satisfied my mind that the claim of the suppliant cannot be rested upon any foundation of either a legal or equitable character.
"The act 8 Geo. 4, ch. 1 in its preamble recites that:
Whereas His Majesty has been most graciously pleased to direct measures to be immediately taken under the superintendence of the Military Department for constructing a canal uniting the waters of Lake Ontario with the River Ottawa, and affording a convenient navigation for the transport of naval and military stores, and whereas such canal when completed will tend most essentially to the security of this Province by facilitating measures for its defence and will also greatly promote its agricultural and commercial interests, and it is therefore expedient to provide by law any necessary facility towards the prosecution of so desirable a work.
And it was therefore enacted that the officer employed by His Majesty to superintend the said work should have full power and authority to explore the country lying between Lake Ontario or the waters leading therefrom and the River Ottawa, and to enter into and upon the lands or grounds of or belonging to any person, and to survey and take levels of the same, or any part thereof, and set out and ascertain such part thereof as he shall think necessary and proper for making the said canal, locks, aqueducts, tunnels and all such other improvements, matters and conveniences as he shall think proper and necessary for making, effecting, preserving, improving, completing and using the said navigation, and also to make, build, erect and set up in and upon the said canal, or upon the lands adjoining or near the same, such and as many bridges, tunnels, aqueducts, sluices, locks, weirs, pens for water tanks, reservoirs, drains, wharves, quays, landing places and other works, as the officer aforesaid should think requisite and convenient for the purposes of the said navigation and also from time to time to alter the route of the said canal, and to amend, repair, widen and enlarge the same, or any other of the conveniences above mentioned; and also to construct, make and do all other matters and things which he shall think necessary and convenient for making, effecting, preserving, improving, completing and using the said canal, in pursuance of and within the true meaning of this act, doing as little damage as may be in the execution of the several powers to him thereby granted.
By the 2nd section it was enacted that after any lands or grounds should be set out and ascertained to be necessary for making and completing the said canal, and other purposes and conveniences thereinbefore mentioned, the officer aforesaid was thereby empowered to contract, compound, compromise and agree with all persons, &c., &c., who should occupy, be possessed of, or interested in, any lands or grounds which should be set out or ascertained as aforesaid, for the absolute surrender to His Majesty, His heirs and successors, of so much of the said land as should be required, or for the damages which he, she or they should reasonably claim in consequence of the said intended canal locks and other constructions and erections being cut and constructed in and upon his, her or their respective lands, and that all such contracts, agreements and surrenders should be valid and effectual in law, to all intents and purposes whatsoever.
By section 3 it was enacted that such parts and portions of land or lands covered with water as might be so ascertained and set out by the officer employed by His Majesty as necessary to be occupied for the purposes of the said canal, and also such parts as might, upon any alteration or deviation from the line originally out laid for the said canal, be ascertained and set out as necessary for the purposes thereof, should forever thereafter be vested in His Majesty, his heirs and successors.
By the 4th section it was enacted that if, before the completion of the canal through the lands of any person, no voluntary agreement should be made as to the amount of compensation to be paid for damages according to the act, the officer superintending the said work should at any time after the completion of such portion of the canal, upon the notice or request in writing of the proprietor of such lands, or his agent legally authorized, appoint an arbitrator, &c., and provision was made for the determination, by arbitrators, one so appointed, another by the claimant and a third by the two so appointed, of the amount to be paid to such claimant.
Sections 5, 6, 7, 8 provided for submission of the question of the amount to be paid to such claimant to a jury, in case the officer superintending the work or the party claiming should decline to abide by the award of the arbitrators, and
By the 9th section it was enacted that in estimating the claim of any individual to compensation for property taken or for damage done under the authority of the act, the arbitrators or jury assessing such damages should take into their consideration the benefit likely to accrue to such individual from the construction of the said canal by enhancing the value of his property: Provided also that it should not be competent for any arbitrators or jury to direct any individual claiming, as aforesaid, to pay a sum in consideration of such advantages over and above the amount at which the damages of such individual should be estimated.
Now the first question that arises under this act, as it appears to me, is: At what instant of time did Grace McQueen become, if she ever did in her lifetime become, divested of her estate in the 110 acres, part of the lands granted to her in fee? Unless she became divested of the fee simple estate granted to her, so that such estate in the 110 acres became, under the provisions of the statute, absolutely vested in His late Majesty King George the Fourth, His heirs and successors, the estate granted to her by the letters patent in the whole of the lands therein mentioned, including the 110 acres, must have devolved upon her heir-at-law William McQueen eo instanti of her dying intestate, subject, however, to the interest of her husband as tenant by the courtesy; but whichever be the correct view to take makes no difference in the result.
That Grace McQueen did not become divested of her estate immediately upon the lands deemed to be necessary by the officer in charge of the construction of the contemplated canal having been first ascertained on survey and staked out upon the ground, (which are acts that might have been done without the owner of the land having any knowledge whatever of them) appears to me to be clear from the provisions of the 2nd and 4th section of the act; for by the former the power given to the officer to contract with the owners for the amount to be paid for the lands, and for their surrender to His Majesty, is stated to be given as a power coming into operation only after the lands shall have been set out and ascertained to be necessary, &c., &c., and the section provides that all contracts, agreements and surrenders made under this power shall be valid and effectual to all intents and purposes whatsoever.
Now, for what purpose could they be valid and effectual, unless it be for the purpose of vesting the fee of the lands required in His Majesty, and how could they operate for that purpose if, eo instanti of the lands having been set out and ascertained, and therefore before the officer became empowered by the act to contract with the owner, the fee simple estate of such owner had become divested out of him and vested absolutely in His Majesty by the terms of the act? Then, again, by the 4th section the period during which the officer in charge is empowered to enter into contracts with the owner of land taken, while such owners are deprived of all powers of having the amount of compensation to be paid to them determined by compulsory process, is made to extend over the whole period that the works shall be in progress of construction through the lands of the respective owners. The right of the owner to have the amount of his compensation determined by arbitration does not accrue to him until after the completion of the canal through his lands. The section says:
If before the completion of the canal through the lands of any person no voluntary agreement shall have been made as to the amount of compensation to be paid for damages according to this Act, the officer superintendent of the work shall at any time after completion of such portion of the canal, upon notice or request in writing of the proprietors of such lands, appoint an arbitrator, &c. &c.
This section seems to me to regard the former owner as still proprietor of the land taken during the whole period that the work through his land is in progress, and at least until the time stated, when in default of a voluntary agreement having been entered into the proprietor of the land may enforce an arbitration to determine the amount to be paid to him for compensation. Then, again, the provision in the 9th section, that in estimating the claim of any person to compensation for property taken the arbitrator or jury assessing such damage shall take into consideration the benefit likely to accrue from the construction of the canal by enhancing the value of his property (namely the portion not taken), seems to exclude the possibility of any person being entitled to compensation for lands taken, other than the person entitled to the estate in the land; for, if before a voluntary agreement should be entered into, and before the amount of compensation to be paid to an owner in fee for land taken from him should be determined by an award or by the verdict of a jury, and eo instanti of the required land being set out and ascertained by a survey, the owner should have become divested of his estate and the lands so set out should have been absolutely vested in His Majesty, and the title of the former owner in fee turned into a claim merely for compensation which upon his death, intestate, would devolve upon his personal representative, and if such personal representative could claim the compensation, the provisions of the 9th section could not be carried into effect; for such person, if entitled to recover, could by no possibility have his right affected by the benefit which the construction of the canal would attach to the remaining lands not taken which would belong to the heir-at-law of the intestate deceased. Moreover, the 4th section which alone provides for the ascertainment by compulsory process of the amount to be paid for land taken, names the proprietor of the land as the only person who can bring into action the compulsory process, and he is the only person with whom the provision of the 9th section would be given any effect. It is, moreover, contrary to the spirit of legislation to deprive any person of his estate in lands by expropriation for the public use, unless upon voluntary agreement, or until compensation shall be secured, by some process of law provided for the purpose, such as are the provisions contained in the various Acts of the late Province of Canada, affecting the Board of Works, whereby it was provided that until payment and tender into court of some amount as and for compensation and submission to arbitration, in the absence of a voluntary agreement to determine the amount which should be paid, the owner of the lands required for the public use does not become divested of his estate. For these considerations, I think the proper construction to be put upon the act, notwithstanding the words of the 3rd section, is that the original owner, at the time of the lands being first set out and ascertained by survey on the ground, and his heirs, do not become divested of their estate in the land, at least until after the expiration of the period given by the act for the officer in charge to enter into a voluntary agreement with such owner, unless it be in virtue of an agreement being entered into with such owner.
The provisions of the act, 6 Wm. 4 c. 16, seem to me to confirm this view, for that act contemplates, and makes provision for the case of parties acquiring title to lands taken after the commencement of the works, for in a proviso to the 3rd section of that act it is enacted that in all cases of a sale of property made after the commencement of the works, compensation shall be made, either to the former owner or to the assignee, as it may appear just to the arbitrators under the facts proved to them.
Now the statute 8 Geo. 4 c. 1, was passed on the 17th February, 1827, and Grace McQueen died intestate, as is stated in the special case, upon the 11th of September, 1827, after Colonel By had set out and ascertained, but how is not stated, the 110 acres parcel of the 600 acres of which she was seized in fee. The special case does not allege that when she died the canal had been constructed through her lands. In view of the period which had elapsed since the passing of the act we might safely conclude that it had not, but the special case does not even allege that any part of the works had been commenced when she died. In the view, however, which I take it would make little difference if they had been because, for the reasons which I have already explained, I am of opinion that when she died intestate, without any contract having been entered into with her by Colonel By, her heir-at-law, Wm. McQueen, to whom his father only tenant by the courtesy, had released all his right, was the only person with whom a contract could have been entered into by Col. By under the provisions of the act, and it was competent for him to enter into a contract in respect of the 110 acres so taken. In this result, although arrived at in a different way, I entirely concur with the judgment of Sir. W. B. Richards in the case instituted in this court by the heirs of Colonel By against the Crown[1]. The cases of Richards v. The Attorney General of Jamaica[2], and Frewen v. Frewen[3] do not appear to me to have any bearing upon this case, for the question which arose in those cases was who was entitled to the compensation, into a claim for which what had been real estate was by certain acts of Parliament clearly converted, whereas here there is no question as to the person entitled to receive compensation for the land taken; but the question is, whether the heir-at-law of a former owner is entitled to have vested in him land taken from his ancestors upon the ground of its ceasing to be used for the purpose for which it was taken. Moreover, for the reasons I have given, I am of opinion that no conversion of realty into personalty was effected by 8 Geo. IV, c. 1, at least not during the period therein mentioned within which voluntary agreements might' be entered into, nor until the arrival of the time when, by the act, the right was vested in the proprietors of lands taken of proceeding to obtain compensation for the lands taken by compulsory process, in case a voluntary contract should not be entered into before the arrival of that time. Neither have the cases as to the right to money agreed to be paid for the purchase of lands not yet conveyed when the vendor dies, passing to his personal representative, any bearing upon this case, because then the amount of the purchase money has been ascertained by the contract of the parties enforceable in equity, and they proceed upon the principle that equity regards as done, what has been validly agreed to be done. And, moreover, there is no question here as to any right to compensation, or as to who was the party entitled thereto. William McQueen, then, being competent to contract in respect of the 110 acres, appears to have entered into a contract with Col. By for the sale of all his estate and interest therein for the consideration of two hundred and twenty pounds provincial currency paid to him, for this I take to be the conclusion to be arrived at upon the true interpretation of the transaction expressed by the indenture of the 6th February, 1832.
From the memorial of that indenture which has been produced and has been agreed to be taken as evidence of the contents of the indenture itself, it appears that thereby William McQueen, described as heir-at-law of Grace McQueen, in consideration of twelve hundred pounds of lawful money of the Province of Upper Canada, to him paid, the receipt whereof is thereby acknowledged, did give, grant, bargain, sell, assign, release, transfer, convey and confirm with covenants of seizin, right to transfer, freedom from incumbrances, quiet enjoyment and general warranty unto the said John By, habendum, to him and his heirs forever, the 600 acres granted to Grace McQueen by the precise description covering the whole 100 acres, as contained in letters patent of the 20th of May and the 10th of June, 1801.
Now, whether the money so paid to William McQueen was or was not the money of His then Majesty is a matter with which neither William McQueen nor any person claiming under him can have anything to do. Whether it was in whole or in part Col. By's money, or money belonging to the crown over which he had control, was a matter in which Col. By and the crown were the sole parties concerned and if Col. By chose to apply his own money in satisfying William McQueen to the full value of the lands taken from him for the purpose of the canal, all claims of William McQueen or of any person claiming under him to have any compensation for the lands so taken would be satisfied and discharged equally as if the money applied in paying him had been the monies of His Majesty or public monies under the control of Col. By. Whether Col. By in such a case could or could not procure reimbursement from the crown for monies so advanced by him out of his own pocket would be a matter wholly between himself and the crown, and after the payments so made to William McQueen the latter could not ever after, nor could his heirs-at-law, be heard to assert, under any circumstances whatever, a right to have any part of the land so paid for re-conveyed to him or them founded upon the assertion that the land had not been paid for.
Whether an estate did or did not pass by the deed executed by William McQueen would be a matter of no importance, for the deed still stands as a conclusive acknowledgement that it was as and for the purchase money for the whole 600 acres that the £1,200 was paid, and if no estate in the 110 acres passed, still the fact remains that William McQueen got paid the full value of these 110 acres upon the faith that, upon the execution of the deed, whatever estate, right, title or interest he had therein was divested out of him and his heirs for ever, and in fact and in law all title and interest of him and his heirs therein became thereby forever extinguished; but as it appears to me, the estate o William McQueen in the hundred and ten acres equally as in the residue of the 600 acres did at law pass by the deed, notwithstanding at least anything contained in the statute of 32 Henry 8 ch. 9, which, in my opinion, has no bearing upon the case. That act was passed to make void all deeds executed to the prejudice of persons in possession by persons out of possession to persons out of possession, under the circumstances stated in the act.
If A, by the command of and as the agent and servant of B, disseised C, and some years afterwards A, being still in possession as the agent and servant of and upon behalf of B took a conveyance identical in terms with that of the deed of the 6th February, 1832, from the heir-at-law of C, or from C himself, without any reentry having been made by him, such a conveyance was never supposed to be within the act. The transaction would not be within the mischief pointed at by the act, and so would not be within the operation of it; the conveyance would at law operate as a release and the legal estate of the heir of B or of C, as the case might be, could undoubtedly in law become released to and vested in A whatever right in equity B might be able to enforce against him. Now that is the case here: Col. By as the agent of His Majesty, who could never be himself in actual possession, entered upon and took actual possession of the 110 acres in the lifetime of Grace McQueen; while in such actual possession as the servant of and in behalf of His Majesty, he takes the conveyance from William McQueen heir-at-law of Grace while he is out of possession. Such a conveyance is a good conveyance at law by way of release unaffected by the statute of Henry the eighth equally as the conveyance to A by the heir-at-law of C in the case above put; and His Majesty would have equal equity to enforce his rights against his agent and servant Col. By as, in the case put, B would have against A. The person out of possession executing such a deed to the person in actual possession could not, nor could his heir-at-law, ever after be heard to base a claim to any part of the land comprised in the conveyance founded on the contention that the conveyance was void within the statute of Henry the eighth.
The deed then of the 6th February, 1832, not having been avoided in law as to the hundred and ten acres in question by reason of anything contained in the statute of Henry the eighth, the effect of that deed as to those 110 acres was, in my opinion, to make it operate as a contract or agreement made with Col. By as agent of His Majesty within the provisions of 2nd section of 8 Geo. 4 ch. 1, and so by force of that statute to vest those 110 acres absolutely in His then Majesty, His heirs and successors, free and absolutely released and forever discharged from all claims whatsoever of the said William McQueen and his heirs, whose title thereto became utterly extinguished, leaving Col. By, if the monies paid by him to William McQueen in respect of the hundred and ten acres were his own, to claim indemnity therefor as best he could from the crown. Had he presented his claim in the shape of a purchase made by him on behalf of His Majesty, at the rate of two pounds per acre, possibly his claim might have been recognized; but he does not appear to have done so, but on the contrary, as in paragraph 20 of the special case is stated, he, some time after the execution of the conveyance of the sixth day of February, 1832, took proceedings under the act 8 Geo 4 ch. 1, to obtain by arbitration compensation or damages from His Majesty in respect of the lands comprised in the said indenture of the 6th February, 1832, and therein he claimed compensation for the lands now in question, and thereupon, as in paragraph 21 of the special case is stated, an award was made in writing in the cause of the said arbitration proceeding, whereby it was awarded and determined that by reason of the enhancement of the value of the other land, which at the time of her death belonged to the said Grace McQueen, and of the benefits and the advantages that accrued to her and those claiming under her from the construction of the canal, as provided in the ninth section of the said act, His Majesty was not liable to make any compensation for the lands in question in the matter taken under the act, and as is stated in paragraph 22 of the special case. Afterwards Colonel By, being dissatisfied with the said award, duly caused a jury to be summoned under the provisions of the said act to assess the said damages and compensation claimed by him, and the jury delivered their verdict to the same effect as the said award.
By paragraph 23 of the special case it is agreed that the documents relating to the said arbitration and assessment proceedings in the three preceding paragraphs mentioned are to be treated as part of the special case.
I have repeatedly tried to get these arbitration papers which are so made part of the special case and have deferred giving judgment in the case for a long time in the hope of getting them, but either for the reason that they have been mislaid and cannot be found, or for some other reason, they have not been furnished to me. I was particularly anxious to see them, as I think that if produced they would probably remove what I cannot but think is an error in the admission in the special case, where it is said that it was Col. By himself who took the proceedings in arbitration.
He could not have done so while he was the officer in charge of the canal representing the crown and in re Holmes[4] cited in the argument it appears that the arbitration took place in 1840 in consequence of a claim for compensation having been made by the trustees of the will of Col. By, who, as also appears in that case, died upon the 1st February, 1830.
When it is said in the special case that the arbitration took place at the instance of Col. By as claimant we must assume it to have taken place after he ceased to be the officer in charge of the canal upon behalf of the reigning Sovereign and when some other person as officer in charge represented the Sovereign.
Now Col. By having purchased the lands described in the conveyance of the 6th February, 1832, and having procured those lands to be, by that indenture, conveyed to himself, could not, it may be admitted, as against the crown, have asserted an interest in the 110 acres set apart for the use of the canal, although the effect of persons in a position of trust purchasing in their own name lands required for the purposes of their trust was not at that early period very well understood in Upper Canada; however, it was the crown alone who could object and it was competent for the Sovereign to waive his strict rights and as an act of grace to recognise Col. By as the proprietor of the land in question and so recognising him to enter into an arbitration with him as with any other proprietor of land taken for the purposes of the canal under the provisions of the act 8 Geo. 4 ch. 1. It was only in the character of proprietor of the land that Col. By could have claimed to have an arbitration under the act, and the special case admits that the arbitrators appointed and the jury summoned to assess the amount of compensation if any to be paid to Col. By for the hundred and ten acres, were so appointed and summoned respectively under the provisions of the act, and that they adjudged and determined that under the provisions of the act he was not entitled to the payment of any sum of money by way of compensation, for that the enhanced value attached by the construction of the canal to the residue of the land, not taken, was sufficient and complete compensation for the value of the land taken.
We have seen that if any pecuniary payment by way of compensation had been awarded it was competent for the arbitrators and jury to say whether it was, under the particular circumstances of the case, to be paid to the claimant Col. By as assignee of the former owner, or to the former owner; and as Col. By paid William McQueen at the rate of two pounds per acre for the land taken for the canal, there can be no doubt, in justice, if any sum had been awarded it would have been made payable to Col. By and not to William McQueen or any person representing him. The arbitrators and jury having adjudged and determined that no sum was payable under the provisions of the act for the reasons above given, Col. By, who had paid William McQueen two pounds per acre for the land, was compelled to be content with the benefit received by him in the enhanced value attached by the work to the residue of the land which he bought from William McQueen.
Under the circumstances I am unable to see upon what principle of law or equity any claim in favor of the heir-at-law of William McQueen can be asserted as founded upon the allegation that "no pecuniary compensation was paid by the crown to Grace McQueen or to William McQueen, or to any person claiming under them," as admitted in the special case and asserted in the petition of right filed in this case. It would be difficult to reconcile with any principle of law or equity the recognition of such a claim founded upon the fact that the crown ex gratiâ abstained from insisting, as against Col. By, upon rights which it might have insisted upon and granted him an arbitration under the act, treating him as being, as the indenture executed by William McQueen represented him to be, the proprietor, as purchaser for full value from William McQueen, of all the land in question.
But it is said that the law does not permit more land to be taken from any person by process of expropriation for a public purpose than is necessary for the purpose, and that if more be taken than is necessary for the purpose for which it is taken the part not used reverts upon the non-user or cesser of use at common law to the former owner, although at the time of expropriation the full fee simple value of the land taken may have been paid to the former owner from whom it was taken.
Upon this assertion of right is founded the claim made in this case, that 90 acres of the 110 taken not being used, as is said, directly or indirectly, for the purposes of the canal have reverted to the heir-at-law of Grace McQueen, although it appears in the case Col. By paid to him the full value of the whole 110 acres, under the belief that the legal estate therein, as well as in the residue of the lands granted to Grace McQueen by the letters patent of the 20th of May and the 10th of June, 1801, had passed to Col. By in virtue of the indenture of the 6th February, 1832, executed by William McQueen. That the land of a private person cannot legally be expropriated for a public purpose to any greater extent than is necessary for the purpose for which it is expropriated may be admitted, but it is plain that the right to restrain expropriation beyond what is necessary for the purpose of the expropriation must be exercised at the time of the expropriation.
There must be some mode of determining then what is necessary; and with respect to the expropriation for the purposes of this canal, the mode of determining what was necessary is in express terms provided by the act 8 Geo. 4 ch. 1; but when the land required for the particular purpose is ascertained and determined by the means provided by the Legislature for that purpose, and the estate of the former owner in the land has been by like authority divested out of him and vested in the crown, or in some persons or body authorized by the legislature to hold the expropriated land for the public purpose, if the estate of which the former owner is so divested be the fee simple, there is no reversion nor anything in the nature of a reversionary right left in him in virtue of which he can at any subsequent time claim upon any principle of the common law to have any portion of the land of which he was so divested to be revested in him, by reason of its ceasing to be used for the purpose for which it was expropriated. With respect to the particular act in question here, the late learned Chief Justice Sir John Robinson in the Court of Queen's Bench for Upper Canada, in Doe. Mallock v. H. M. Ordnance[5] thus expresses himself:
The Legislature passed in 1827, the act 8 Geo. 4, ch. 1, for granting certain facilities to the government for the construction of the Rideau Canal. They recite in it that "the work would tend most essentially to the security of the province by facilitating measures for its defence as well as promote greatly its agricultural and commercial interests" and when this double public advantage is considered we cannot doubt that the Legislature intended that the discretionary powers which they were about conferring upon the military officers to be intrusted by His Majesty with the superintendence and charge of the canal should be such as would enable them to carry out the design on what they might-consider an efficient and proper scale with reference to the protection and security of the work in war as well as in peace. I have so held on several occasions when it was made a question before me at nisi prius whether the lands which the military engineers had taken were in fact necessary. Although there might possibly be such an evident abuse of the powers given by the statute as would make it right to hold that what was pretended to be done under its provisions was not in fact done with a view to execute its powers but only under colour and pretence of its authority, yet it has always appeared to me that wherever there could be said to be any room for question as to the necessity, it ought to be assumed that the public officers had used their discretion fairly and in good faith, in which case the question of the land being necessary or not necessary must be governed by their judgment and not by the judgment of any court or the opinion of any other person public or private, and this appears to me to be not only legal but highly reasonable when we consider the great public interests involved on the one hand, and on the other the care taken to secure to every individual whose property may be taken possession of a just compensation for its value.
A passage from Mills on Eminent Domain (2 Ed.) was cited on the argument in support of the claim which is asserted as a common law right upon the part of the suppliant as heir-at-law of William McQueen, but that passage refers to a case where the estate or interest expropriated is an use or easement: when the fee simple is the estate expropriated that author expounds clearly what is the language also of the common law.
At section 50 he says:—.
It is the exclusive privilege of the Legislature to determine the degree and quality of interest which may be taken from an individual as well as the necessity of taking it. An easement or usufruct may be taken or the entire property may be taken so as to be vested absolutely, without reversion to the original owner in case of a change in the use. In such case the owner is paid the entire value of the land and should have no reversion. When only an easement is taken it is presumed that the full value is not given and that the owner receives a lesser amount when there is reserved to him the chance of reversion on a discontinuance of the public user. * * * When the full value has been paid the land with all the materials thereon belongs to the public, there is no right of easement remaining in the owner and the lands so taken may be sold for other purposes. Land taken originally for an almshouse or hospital may, after years of increase in the population of a city, become unsuitable for such purposes and may be sold by the public. Otherwise the