Attrill v. Platt

Attrill v. Platt
Collection
Supreme Court Judgments
Date
1884-01-05
Report
(1884) 10 SCR 425
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Property law
Decision Content
Supreme Court of Canada
Attrill v. Platt, (1884) 10 S.C.R. 425
Date: 1884-01-05
Henry Yarwood Attrill (Defendant) Appellant;
and
Samuel Platt (Plaintiff) Respondent.
1883: March 16; 1884: January 5.
Present: Sir W.J. Ritchie, C.J., and Strong, Fournier, Henry and Gwynne, JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Easements—Grant of servient tenement—Implied reservation—Implied grant—Plan—Evidence—Boundaries—Deseription—Riparian proprietor—Diversion of water.
One piece of land cannot be said to be burdenedby an easement in favor of another piece when both belong absolutely to the same owner, who has, in the exercise of his own unrestricted right of enjoyment, the power of using both as he thinks lit and of making the use of one parcel subservient to that of the other, if he chooses so to do,—and if the title to different parcels comes to be vested in the same owner, there is an extinguishment of any easements which may previously have existed, a species of merger by which what may have been, whilst the different parcels were in separate hands, legal easements, cease to be so, and become mere easements in fact—quasi easements.
If the quasi servient tenement is subsequently first conveyed without expressly providing for the continuance of the easements, there is no implied reservation for the benefit of the land retained by the grantor, except of easements of necessity, and no distinction is to be made for this purpose between easements which are apparent and those which are non‑apparent
If the dominant tenement is first granted, all quasi easements which have been enjoyed as appendant to it over a quasi servient tenement retained by the grantor, pass by implication.
Besides the lands the title to which was derived from their common grantor, the appellant was proprietor of another piece of land, called Block A, situated on the opposite side of the River Maitland, the boundary of said Block on the river side being high water-mark.
Held,—That the lateral or riparian contact of the land with the water would suffice to entitle the appellant to object to any unauthorized interference with the flow of the river in its natural state.
In 1859 the then owners of part of the lands in question had a plan prepared and registered, and in 1871 they conveyed a parcel which they described as Block F.
Held,—That it must be presumed they intended to convey the same parcel of land shown on said plan as Block F with the same natural boundaries as those thereon indicated.
The evidence of professional draughtsmen was properly admitted to show what, according to the general practice and usage of draughtsmen in preparing plans, certain shadings and marks on said plan were intended to indicate.
When a close or parcel of land is granted by a specific name, and it can be shown what are the boundaries of such close or parcel, the governing part of the description is the specific name, and the whole parcel will pass, even though to the general description there is superadded a particular description by metes and bounds, or by a plan which does not show the whole contents of the land as included in the designation by which it is known.
APPEAL by the above named appellant (defendant) from a judgment of the Court of Appeal for Ontario, dated the 29th June, A.D. 1882, affirming a decree pronounced in the Court of Chancery for Ontario, in favour of the respondent (plaintiff), on the 8th day of April, A.D. 1880, at the examination of witnesses and hearing at Goderich, before His Lordship Vice-Chancellor Proudfoot.
The substance of the plaintiff’s bill of complaint is, that upon the 4th day of July, 1859, the Buffalo & Lake Huron Railway Company, being the owners of certain lands upon both sides of the river Maitland, demised a part thereof to the plaintiff by an indenture of lease of that date, whereby it was witnessed that for the several considerations therein expressed, the said company did demise to the plaintiff, and did agree to sell to him the lands and premises following, situate in the town of Goderich:
A mill site on the river Maitland, also the easement and privilege of constructing and maintaining a dam upon and across the said river so high as to take up eight feet of the fall of the said river, but no more, also the easement and privilege of constructing and maintaining a sufficient head race from the said intended dam to the said mill site,also the easement and privilege of a roadway leading through the lands of the said company from the said mill site to the boundary of the lands of the said company in the direction of North street, also the easement and privilege of constructing a switch from the said mill site to the main line of the said railway of the company near Goderich Harbour, in so far as the same shall run on, over, or through the lands of the said company, which said lands, &c.., are more particularly described and pointed out on a plan thereof to be annexed, and in the following description, that is to say—Description of mill-race: Commencing at a point on the southerly edge of the channel, known as the Blind Channel, and forming part of the river Maitland, the aforesaid point being due West 295 feet from a point in the centre line of North street, produced at the distance of 2,314 feet from the flagstaff on the centre of the courthouse; thence due north 9 ° 50’, 199 feet to an angle; thence due north 50° 7’ east, 279 feet 5 inches to an angle; thence due north 32’ minutes east, 291 feet 2 inches to an angle; thence due north 34° 46’ east, 259 feet 6 inches to an angle $ thence due north 13° 31’ east, 495 feet 4 inches to an angle; thence due north 49° 25’ east, 103 feet 7 inches to an angle; thence due north 60° 2’ east 110 feet 8 inches to an angle; thence due north 79° 18’ 30” east 319 feet 3 inches, more or less, to the head gates of the race; thence easterly across the head gates 107 feet, more or less, to the high water-mark caused by a dam giving a head of 8 feet of water at the mill; thence westerly and southerly along that high water-mark on the easterly side of the mill-race following the various windings of the high-water mark aforesaid on the natural bank adjoining the said race to the northerly limit of the railway embankment; thence south westerly along that limit to its intersection with the blind channel of the river Maitland; thence north easterly along the southerly edge of the blind channel aforesaid, following its several windings to the place of beginning.
Then follows a description of the mill site as follows:—
Commencing at a point on the easterly edge of the mill race, which point is 320 feet on a course due north 50°7’ east from a point in the production of the centre line of North street northerly 2,559 feet from the flag staff on the centre of the court house in the town of Goderich; thence due north 50°7’ east 260 feet to an angle; thence due north 39° 53’ west 333 feet to an angle on the edge of the mill race in a southerly direction, following the various windings thereof to the place of beginning, the whole containing an area of one acre: To have and to hold the said, demised lands, &c.., and premises unto the plaintiff, his executors, administrators and assigns for and during and unto the full end and term of seven years to commence and be computed from the day the flouring mill intended to be erected on the said mill site shall have commenced working, but in any event from the 1st day of May next ensuing the date of the said indenture of lease. Yielding and paying therefor yearly and every year of the said term of seven years, the clear yearly rent or sum of $100 by equal half yearly payments of $50 each, to fall due and be payable at the beginning and middle of each year.
And it was by the said indenture declared and agreed that the plaintiff, his heirs, executors or assigns should, between the day of the date of the said indenture and the 1st day of May next ensuing, at his or their own proper cost, charge and expense, put up, erect, build and construct a flouring mill on the said mill site with all necessary works, easements, and appurtenances, and during the said term thereby granted at his or their own proper costs and charges, construct, build and maintain the said dam, mill and all and singular other the works, easements and appurtenances without any charge whatever to the said company; and that notwithstanding anything in the said indenture contained, the said company should retain and possess absolute and unconditional power and control over the said river and the waters thereof above the backwater caused by the said dam so to be erected by the plaintiff as aforesaid, and also below the said mill site, and should also have the right of using the said river and the waters thereof for machinery or water purposes, or otherwise, as the said company should think fit, however not wasting the water of the said river below the said head race, but having the right of operating such water in the dam or head race of the said plaintiff as to the said company should seem fit: Provided further that the said plaintiff, his heirs, &c.., should have the right to purchase the said demised premises at and for the sum of $5,000, at any time during the continuance of the said term, upon giving to the said company six months’ notice thereof in writing to end before or at the time of the expiration of the term thereby granted; and that if he or they should not elect so to purchase, he or they should, at the expirration of the said term, have the privilege of re-renting the same demised premises for a further term of three years by giving six months notice thereof to end before or along with the said term of seven years at and for the annual rent which would be equivalent to the interest at six per cent. per annum on the said $5,000 to be paid half-yearly at the times thereinbefore provided for payment of rent during the said term of seven years, with liberty to him or them to purchase the said redemised premises during the said second term on the same terms and conditions as above provided, with respect to purchasing during the said first term, but that in case the said plaintiff, his heirs, etc., should not at the expiration of the term or terms aforesaid, purchase the said demised premises, all the erections, improvements and fixtures thereon erected, put and placed during the continuance of the said terms, should belong to, and form part of the said lands and freehold, and at the expiration of the said term or terms, as the case might be, or sooner determination of the term by the said indenture granted, revert to and become the absolute property of the said company.
The bill then avers that the plaintiff was let into possession of the said premises by the said company, and that he and his assigns have ever since been in uninterrupted possession and enjoyment of the said lands and of the said easements and privileges, including the easement and privilege of erecting and maintaining a dam across the said river so high as to take up 8 feet of the fall of the said river, but no more, also of the easement and privilege of constructing and maintaining a sufficient head-race from the said intended dam to the mill site, and that soon after the plaintiff had acquired the said property, he commenced in the year 1859 making extensive improvements thereon, and built a large flour and grist mill and salt manufactory thereon, and that he and the successive owners thereof spent large sums of money in order to render them available for the purposes for which they were purchased, and in constructing and maintaining the head of eight feet of water for the said mills and works, and that at the time the plaintiff procured the said lease of the said lands and easements with the right of purchase from the Buffalo & Lake Huron Railway Company, and for a long time prior thereto, and ever since the waters of the said river reached the plaintiff’s mill-race and dam by a channel which branched off from the main channel of the river within a short distance of the bridge across the said river; and that in the year 1861 the plaintiff cleared out the said channel at considerable expense and built a dam near the said bridge and thereby caused the water to flow through the said channel in a sufficient volume to produce the head of eight feet to which he was entitled. And the bill charged that the plaintiff was entitled to maintain that dam, and to have the said channel kept in its accustomed condition, and to have the water to flow therein to the plaintiffs mill And the bill alleged further, that the plaintiff expended the sum of $12,000, or thereabouts, in improving, constructing and perfecting a race-way from the said channel to his mill; and that the plaintiff and the successive owners have been in uninterrupted possession and enjoyment of the said channel and raceway for the purposes of the said mills and other works since the year 1861, and until destroyed on the 11th day of February, 1880, when the defendant, with a number of men and horses employed by him, commenced, without any right or authority, and in violation of the plaintiffs rights, to fill up with timber, planks, earth, and stones, the mouth of the said channel, through which the waters of the said river flowed to the plaintiffs said mill, and on the 12th day of February, 1880, the said laborers of the defendant, acting under his instructions, unlawfully and in violation of the plaintiff’s rights, pulled down the dam so erected by the plaintiff for the purpose aforesaid, and used the stone and gravel from the said dam in blocking up the said channel, therewith forming a permanent impediment to the flow of the water through the said channel.
The bill further alleged that while the plaintiff was in possession as aforesaid, he, with the concurrence of the Buffalo & Lake Huron Railway Co., by an indenture dated the 9th of November, 1866, assigned the said lands and premises to one Alex. T. Paterson, and that afterwards, by an indenture of bargain and sale, bearing date the 3rd day of February, 1873, the said lands in pursuance of the said contract were conveyed to the said Paterson in fee simple by the G.T. Ry. Co. of Canada, who had acquired all the property and rights of the Buffalo & Lake Huron Railway Co., and that Paterson, by an indenture dated the 22nd of August, 1873, conveyed to one Tew, who, by an indenture of the 4th of December, 1875, conveyed the same to the plaintiff together with said easements and privileges; and that the successive owners, under the said respective deeds, respectively entered into the actual possession of the said lands, easements and privileges, and actually enjoyed the same; and that the said several deeds are all registered in the registry office of the county of Huron, in which said lands are situate. And the bill prayed that the defendant might be perpetually restrained by the order and injunction of the Court of Chancery from keeping the said channel blocked up and from in any way interfering with the flow of water therein, and for an account of the damage sustained by the plaintiff by reason of the said conduct of the defendant.
To this bill the defendant filed a long answer, in which he sets up his right to do the acts complained of at the places stated in the bill; and therein he denies the plaintiff’s right to the easement as claimed by him. The short material substance of his answer is, that the defendant, is seised in fee of a piece of land situate on one side of the river Maitland, and abutting thereon, and known as part of block F, in the northerly part of the town of Goderich, and of a piece of land opposite thereto, on the other side of the river Maitland, called the Great Meadow, situate in the township of Colborne, and that in virtue of such seisin he is seised of the bed of the river at the place where the said dam was situate; and that in virtue of such seisin he did the acts complained of, as he insists he lawfully might, for the reason that, as he alleges, the said dam was wrongfully erected on lands whereof he was seised in fee, and wrongfully obstructed the flow of the waters of the river in their natural course past the defendant’s said land and another piece of land lower down the said river, called block A, whereof the defendant is also seised in fee; and the defendant alleges and insists that the acts and conduct of the plaintiff in erecting the said dam and in excavating the channel, which is situate on land whereof the defendant alleges that he is seised in fee, being part of the piece of land called block F, and in drawing off the waters of the river through the said channel from above the said dam, were unauthorized acts of trespass committed by the plaintiff without the authority of the then owners of the soil where the same were committed, and that in fact the plaintiff had no right whatever to the easement and privilege as claimed by him of maintaining the said dam and the channel leading therefrom as excavated by him, either by grant or prescription, although title by the latter mode is not asserted in the bill, but title by grant only is. The defendant closes his answer by praying by way of cross relief against the plaintiff that he may be ordered to remove the said dam near the said bridge as an unlawful obstruction in the said river, and that he may be restrained from continuing the use of the said artificial channel through the portion of block F, whereof the defendant is seised in fee, and from otherwise diverting or interfering with the natural flow of the river in its proper and natural channel past and along the lands on the north and south banks of the said river, whereof the defendant is seised in fee.
The following description of the locus will be better understood with the aid of the sketch on the next page.
The river Maitland flows westward into Lake Huron, into which it empties about half a mile to the west of respondent’s mill. Maitland bridge is situated about half a mile to the eastward of the mill. The river is not navigable. Its north bank, from the bridge to the lake, is composed of the parcel of land called “The Great Meadow,” which begins at the bridge and runs westerly along the river until it meets block “A,” which forms the remainder of the bank to the lake. Beginning again at the bridge, and running westerly along the south bank, it is comprised of blocks “F” and “E,” which carries us below or to the westward of the lands and easements in dispute.
The river forms the boundary between the township of Colborne, on the north, and the town of Goderich on the south. The respondent’s mill and the so-called channel in dispute are upon the south bank in the town of Goderich. The dam is across the main channel of the river, near the bridge. In the river, but nearest the Colborne shore, is an island called “C.” The appellant, at the time the alleged wrongful acts complained of were committed, was the owner, in fee simple, of said block “A,” “The Great Meadow” and island “C,” in the township of Colborne, and of blocks “E” and “F” in the town of Goderich, except such portions thereof as the respondent was entitled to.
The town of Goderich is built upon a plateau, about 100 feet above the river. Descending towards the river, a second plateau, some 30 or 40 feet above the river, is reached. This is block “F.” To the westward, and on a lower level by several feet, is block “E.” Between blocks “E” and “F” there was originally a dry or blind channel of the river, forming a natural boundary. This has been enlarged and deepened, and in the accompanying sketch is called “Mill Pond.” In the description by metes and bounds, in respondent’s title, it is called “Mill Race.” The banks of block “F” are precipitous towards the river. Towards its easterly end and down stream for about 100 yards after descending to nearly the level of the river, there is a small shoal or flat before the actual waters of the river, in the main channel, are reached. This shoal or flat is of varying width, but not exceeding at any point 100 feet. To the westward, after passing this shoal or flat, the waters of the river formerly washed the high and almost precipitous banks of the upper table-land composing block “F” down to the limits of block “E.”
In 1859, when the respondent’s title began, the south bank of the river was a forest. No mill had ever been built, nor dam nor race-way constructed, but the whole was in a state of nature. The respondent’s lessors, the railway company, then owned blocks “E” and “F,” and island “C,” and “The Great Meadow,” and the bed of the river, but they never owned block “A,” nor did they ever own the land forming the north bank of the river above the bridge, although they owned block “D,” upon the south bank.
The material portions of the titles of the plaintiff and defendant to the various properties may be briefly set out.
The plaintiff’s title is as follows:—
1. The lease of the 4th July, 1859, from the Buffalo & Lake Huron Railway Company hereinbefore fully set out.
2. Deed, dated the 11th July, 1864, executed by plaintiff Platt, authorizing Alexander Thomas Patterson to receive a deed from the Buffalo & Lake Huron Railway Company.
3. Assignment of lease, dated 1st October, 1864, by Platt to Patterson, assigning lease of 4th July, 1859.
4. Lease dated 9th November, 1866, between the Buffalo & Lake Huron Railway Company, of the first part, Platt, of the second part, and Patterson of the third part. After reciting that the original lease had been assigned by Platt to Patterson in trust by way of collateral security, the railway company demised the premises described in the original lease to Patterson for a new term of three years from the 1st day of May, 1867, and it was thereby agreed that “the demise thereby granted and the rights and liabilities of the party of the third part thereunder, should in all respects be subject and according to all the provisions, promises, covenants, stipulations, conditions, limitations and agreements contained in the original lease, including the right to purchase the demised premises within the term of three years, (as in the lease mentioned) excepting the right of renewal.” 5. Deed dated the 3rd February, 1873, The Grand Trunk Railway Company of Canada to Alexander T. Patterson. This recites that “whereas the Buffalo & Lake Huron Railway Company did sell to one Samuel Platt, etc., certain lands hereinafter described, and whereas the said Platt did transfer all his rights in and to said lands to the party of the second part, who is now at the execution hereof to pay the purchase money and interest now unpaid, and who desires the conveyance for the said lands to be made to him, and whereas by the statute 33 Vic. ch. 49, of the Parliament of Canada, and the agreement therein referred to, the title to the said lands is now vested in the Grand Trunk Railway Company of Canada” and then proceeds to grant to the party of the second part, his heirs and assigns, in consideration of the sum of $5,700, the same lands as in the original lease, by the same description, as far as the description of the mill site. Thereafter the description proceeds as follows:—
“Also commencing at a point on the easterly edge of the mill race, where the westerly limit of North street produced intersects the same, thence north fifty-four degrees fifteen minutes east six hundred and sixty-eight feet to an angle, thence north thirty-five degrees forty-five minutes west three hundred and ninety-six feet, more or less, to the edge of the mill race, thence along the high water mark of the mill race in a southerly direction, following the various windings thereof to the place of beginning; this last piece containing one acre and twenty-five one hundredth parts of an acre, be the same more or less, and all of which property covered by this indenture is shown on the plan annexed hereto, reserving, however, to A.M. Ross, of the said town of Goderich, Esq., his heirs and assigns, and all persons owning or occupying the part of block F, or any part thereof heretofore conveyed by the Grand Trunk Rail- way Company of Canada and the Buffalo & Lake Huron Railway Company, to the said Ross, and which is shown in pink on the map attached to said conveyance, a right of way on foot and for carriages and animals, and all other purposes, from off and along the eastern boundary of the lands hereby conveyed, so as to give access to the road now passing under the railway embankment on the south side of the property hereby conveyed, such right of way to be of a width taking in the whole outlet of the said bridge or culvert which carries the railway over the existing road, of forty feet, and keeping that width from said outlet to and along the said easterly boundary of the lands hereby conveyed, to the water’s edge of the pond, and no further, to have and to hold the said lands, hereditaments, and other the premises above mentioned and described, unto the said party of the second part, his heirs and assigns, to the use of the said party of the second part, his heirs and assigns forever; subject, nevertheless, to the reservations, limitations, provisos and conditions expressed in the original grant thereof from the Crown, and also subject to easement above reserved.”
The deed contains the following provisoes which were also in the original lease of the 4th July, 1859:—
“Provided always, and in accordance with the provisions of the agreement for the sale of said lands, the said party of the first part, their successors and assigns, shall, notwithstanding any matter or thing in these presents contained, retain and possess absolute and unconditional power and control over the said river Maitland, and the waters thereof above the backwater caused by the said dam so to be erected, and also below the said mill site, and shall also have the privilege and right of using the said river and the waters thereof for machinery and water power purposes or otherwise, as they, the said party of the first part, shall see fit; how- ever, not wasting the water of the said river below the head-race of the said party of the second part, but having the right and privilege of wasting such water in the dam or head-race of the said party of the second part as to the said party of the first’ part shall see fit.
“Provided further, that the said party of the second part, his heirs and assigns, shall have the right and privilege of deepening, and in common with other persons of using the blind channel below the said mill site, for the purpose of navigation, and also the easement and right of using, for the purposes of erecting buildings for manufacturing purposes, the space between the said intended tail-race and switch.”
6. Deed, Alexander T. Patterson and wife, to Arthur Tew, dated 27th August, 1873, consideration $4,000. Conveys the same property as described in preceding deed, and contains the same reservations.
7. Deed, Tew to Platt, dated 4th December, 1875. Conveys the same property as described in the deed last mentioned, in consideration of $4,000.
The defendant Attril’s title to Block F is as follows:
1. Conveyance, dated 17th February, 1865, by the Canada Company to the Buffalo and Lake Huron Rwy. Company of the whole block.
In this conveyance reference is made to a plan prepared in 1859, and registered at the instance of the railway company, who, at that time, had agreed with the Canada Company for the purchase of this and other lands. This plan, is hereafter mentioned in the judgments.
2. Deed, dated 3rd June, 1871, by the Grand Trunk Railway Company and Buffalo & Lake Huron Rwy. Co. to Alexander M. Ross, conveying, in consideration of $1,520, part of Block F, described as follows:—
“All that part of said block F shown on the plan annexed hereto, and colored pink, that is, to say: This conveyance covers all of said block F, excepting the part thereof shown on the said plan annexed hereto in green color, and which part colored green is described thus: Commencing at a point on the easterly edge of the mill race where the west limit of North street produced intersects the same there, north fifty-four degrees fifteen minutes east (N. 54° 15 E.) six hundred and sixty-eight feet (668) to an angle; thence north thirty-five degrees and forty-five minutes west (N. 35° 45 W.), three hundred and ninety-six feet, more or less, to the edge of the mill race; thence along the high water mark of the mill race in a southerly direction, following the various windings thereof to the place of beginning; also excepting and reserving from said block F the mill race described thus:—
“Commencing at a point on the easterly edge of the channel known as the Blind Channel and forming part of the River Maitland, the aforesaid point being due west two hundred and ninety-five (295) feet from a point on the centre line of North street produced northerly at a distance of two thousand three hundred and fourteen feet from the flagstaff on the centre of the Court House; thence due north nine degrees and fifty minutes (9° 50’), east one hundred and ninety-nine feet, to an angle; thence due north fifty degrees and seven minutes (50° 7’), east two hundred and seventy-nine feet and five inches (279 ft. 5 in.) to an angle; thence due north thirty-four degrees and forty-six minutes (34° 46’), east two hundred and fifty-nine feet and six inches (269 ft. 6 in.) to an angle; thence due north thirteen degrees and thirty-one minutes (13° 31), east four hundred and ninety-five feet and four inches (495 ft. 4 in) to an angle; thence due north forty-nine degrees and twenty-five minutes (49° 25’), east one hundred and three feet and seven inches (103 ft. 7 in.) to an angle; thence due north sixty degrees and two minutes (60° 2’), east one hundred and ten feet and eight inches (110 ft. 8 in.) to an angle; thence due north seventy‑nine degrees eighteen minutes and thirty seconds (79° 18’ 30”), east three hundred and nineteen feet and three inches (319 ft. 3 in.) more or less, to the head-gates of the race; thence easterly across the head-gates one hundred and seven feet (107 ft.) more or less, to the high water mark caused by a dam giving a head of eight (8) feet of water at the mills; thence westerly and southerly along that high water mark, on the easterly side of the mill race, following the various windings of the high water mark aforesaid on the natural bank adjoining the said race to the westerly limit of the railway embankment; thence southerly along that limit to its intersection with the blind channel of the river Maitland; thence north‑easterly along the southerly edge of the blind channel aforesaid, following its several windings to the place of beginning, and which said two excepted parcels above described form no part of the part of block F, colored pink, or of the lands conveyed by this indenture or intended thereby to be conveyed.”
3. The land described in the last mentioned conveyance was afterwards by deed dated the 7th December, 1876, conveyed to the defendant.
The defendant acquired title to block E, as follows:
1. By conveyance dated 3rd June, 1871, by which the Grand Trunk Railway Company and Buffalo & Lake Huron Railway Company, in consideration of $400 conveyed to one Ince. The description is as follows:—
“All and, singular that certain parcel or tract of land and premises situate, lying and being in the town of Goderich, in the, county of Huron, and province of Ontario, and known as block E, that is to say, all that parcel and tract of land shown on the plan annexed hereto, and marked “Plan of block E, town of Goderich,” and colored pink; the intention being that no part of the mills, mill-dam, mill-pond, mill-race, or works connected with said mills, mill dam, mill pond, and mill race, situate east and south of the easterly line of said lands colored pink, as said line is marked and shown on said plan, shall be covered by this conveyance, it being clearly intended and understood that all, and each, and every part of said mills, mill-dam, mill‑pond and mill-race and works connected therewith, and all land whatsoever situate east and south of said easterly line of said lands shown on said plan in pink, as marked on said plan annexed hereto, is and are excepted and reserved in this indenture, and no land except that colored pink, on said plan annexed hereto and which is situate west and north of said mill, mill-dam, mill-pond, and mill-race and works shown on said plan, shall pass under this conveyance.”
2. Deed from Ince and wife to Alexander McLagan Ross, dated 27th April, 1875.
4. Deed Alexander McLagan Ross and wife to Francis Jordan, dated 26th May, 1875.
4. Deed, Francis Jordan to defendant, dated 26th October, 1875.
The appellant’s title to Island C and the Great Meadow is derived under conveyances from The Buffalo & Lake Huron Co. and The Grand Trunk Railway Co., dated the 3rd June, 1871, Island C being sold and conveyed in fee to one Abraham Smith and the Great Meadow to one John Macdonald. The appellant purchased from Smith, and from the devisee under the will of Macdonald, the Great Meadow, in August, 1876, and Island C on the 15th December, 1879.
Block A appellant holds under a different title from that which he makes to the other lands. Part of the block was sold and conveyed by Sir Alexander Tilloch Galt and wife to appellant on the 27th September, 1873, another part on the same day by Lucy Bennet Widder and John Davidson, trustees of the late John Widder. The railway company were never seized of any part of this land.
The description of the Great Meadow in the deed to John Macdonald is as follows:—
“All and singular that certain parcel or tract; of land and premises situate, lying and being in the township of Colborne, in the county of Huron and Province of Ontario, on the north side of the river Maitland, known as ‘The Big Meadow,’ estimated as containing sixty-one acres of land, be the, same more or less.”
In the deed to the appellant made in August, 1876, the description is as follows:—
“All that tract or parcel of land known as the ‘Big’ or ‘Great Meadow,’ situate between blocks A, B and the original road allowance on the westerly side of block C, in the said township and the river Maitland, containing sixty-one acres of land, more or less. ***
“Also the original road allowance along the southerly side of said block C, as particularly described by metes and bounds in a deed from the municipal council of the township of Colborne to John Macdonald, dated 26th December, 1860, and registered, &c.., containing 4 acres and 22 perches, more or less.
“Also so much of said block C as is situated westerly of the northern gravel road running through the said township.
“Excepting portions of the said road allowance and block C (otherwise included in this description), which have been heretofore disposed of by the late John Macdonald, as appears from the records of the registry office of the county of Huron, namely:—Lots numbers 1, 2, 25, 26 and 27, as shewn on the registered plan of bridge plan, and lots called 91, 92, 97 and 98, but not shown on such registered plan, and an acre conveyed to Deltor and Kirkptrick for the Maitlandville Salt Com- pany, and three acres and 12 perches conveyed to one Thomas Hussey, also one quarter of an acre conveyed to the school trustees, lying immediately to the rear of said lot 25, of the same width and depth as said lot number 25.”
The description in the deed to Smith, of Block C, is as follows:
“All and singular that certain parcel or tract of land and premises situate, lying and being in the township of Colborne, in the county of Huron and Province of Ontario, known as block C, and described on the plan annexed hereto, colored red.”
And in the deed from Smith to appellant, the description is:—
All, &c.., known as block C, and described on the plan annexed to a certain deed from the G.T. Ry. Co. of Canada and the Buff. & L.H. Ry. Co. to the party of the first part, dated 3rd June, 1871.
The description of the part of block A conveyed by Sir Alexander Tillock Galt and wife, is as follows:—
“All and singular that certain parcel or tract of land and premises situate, lying and being in the township of Colborne, in the county of Huron and Province of Ontario, containing by admeasurement 31 acres and seven-tenths of an acre, be the same more or less, being composed of part of the southerly part of lot or block A, in the western division of the said township of Colborne, and may be more particularly known and described as follows; that is to say:—Commencing at a point on the southerly side of road allowance between blocks A and B, said point being a distance of 56 chains and 70 links, measured south-westerly, along the southerly side of the aforesaid road allowance, from the angle formed in the road (said angle being at the limit between blocks A and B, as shown on the registered plan of Colborne); thence due S, 39½ degrees W., along the S. limit of road, 13 chains and 11 links; thence S. 20 degrees E., 2 chains and 58 links; thence S. 14¼ degrees W., 77 links; thence S. 44 degrees W., 1 chain and 70 links; thence S. 55¾ degrees W., 1 chain and 33 links; thence S. 49 degrees W., 4 chains and 7 links; thence N. 67 degrees, 50 minutes E., 22 chains and 92 links; thence S. 22 degrees and 10 minutes E., 5 chains and 60 links, more or less, to high water mark of river Maitland; thence N. 62¾ degrees E., 4 chains and 25 links, measured up stream along said high water mark; thence due N. 15 chains and 70 links; thence due W. 13 chains and 40 links, more or less, to the place of beginning.”
And in the deed from the trustees of the late John Widder, the description of the part of block A conveyed is as follows:—
“All and singular those certain parcels or tracts of land and premises situate, lying and being in the township of Colborne, in the county of Huron and Province of Ontario, containing by admeasurement nine acres three roods and one perch, be the same more or less, being composed of lots numbers 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 81, 32, 33, 34, 35, 36, 37, 38 and 39, according to a plan or survey of the southerly part of lot 2, block A, in the said town-ship of Colborne, made by Charles L. Davis, Esquire, provincial land surveyor, for William Warren Street and others, as an addition to the said town of Goderich, and as shown on the map or plan hereunto annexed, and which said parcels or tracts of land and premises may be more particularly known and described as follows; that is to say:—Commencing at a point on the easterly limit of “ Saw Mill Road,” said point being due S. 19 degrees W., 1 chain and 35 links from the south-westerly angle of the property known as the late John Galt’s; thence due N. 67 degrees and 50 minutes E., 23 chains and 75 links, more or less, to the easterly limit of said lot number 39, and up to the property known as the said late John Galt’s; thence due south 22 degrees and 10 minutes E., 4 chains and 60 links, more or less, to the high water mark of the river Maitland, thence southwesterly, following the high water mark of the river Maitland, a distance of 27 chains, more or less, to its intersection with the easterly limit of “Saw Mill Road;” thence north‑easterly along said limit of road, 5 chains, more or less, to the place of beginning. The whole containing an area of 9 acres, 3 roods, 1 perch, be the same more or less, as before stated.”
On the 8th day of April, A.D. 1880, the case was heard before Proudfoot, V.C.
At the trial, the title of appellant to the lands comprising the north bank of the river was proved, and in fact not disputed. His title to blocks E and F, subject to the exceptions and reservations before mentioned, was also proved.
As the appellant, in his answer, admitted the commission of the alleged trespasses, he was called upon to begin; he did so, and after putting in his title deeds and the several maps in evidence, and calling two Provincial Land Surveyors to identify and locate upon the grounds the several parcels, the learned Vice-Chancellor held that he had established a, primâ facie title, and the respondent was then called upon to prove his title.
This he proceeded to do, by putting in the original lease to him, the renewal lease, the conveyance to Patterson, and the several mesne conveyances to him.
Under these he claimed title by express grant, or failing that, then by implication.
He also set up a title to the use of the easements in question by prescription, upon which evidence was given by a number of witnesses, and a further title by license from and acquiescence by the railway company, the common grantor.
He further contended that block F did not extend to the river, or that if “it did the appellant’s title was limited to that part colored pink, attached to the conveyance to Ross, appellant’s predecessor in title, and that such part colored pink did not include the land covered by the raceway or channel in question.
He further claimed that with repect to the appellant’s ownership of the parcels called The Great Meadow and Island C on the north bank, that the easements in question having been open, apparent and continuous, when the conveyance by the common grantor was made in 1871, were impliedly reserved, and that the Registry Act had no application.
As against block A he claimed title by prescription.
The learned Vice-Chancellor delivered his judgment, finding that block F extended to the river; that appellant was the owner of it to the river; that the channel in question was therefore upon appellant’s lands; that such channel was artificial; that there was no title by prescription made out, but that respondent had acquired a right under the several leases and conveyances to him, “ and under the subsequent dealings between him and the railway company,” to the easements in question as against the appellant. He made no mention in his judgment of the appellant’s rights as owner of the lands on the north bank.
From the learned Vice-Chancellor’s decision the appellant appealed to the Court of Appeal, and that court, after two arguments, unanimously dismissed his appeal with costs.
The judgment of the court was delivered by their Lordships Mr. Justice Burton and Mr. Justice Patterson. From the judgment of the Court of Appeal the defendant appealed to the Supreme Court of Canada.
Mr. Garrow for appellant:—
The appellant claims to be the owner of the locus in quo, the soil of the raceway in question, by virtue of his ownership of block F.
The respondent makes no claim to the land. He only claims an easement. It, of course, is not decisive of his right to the easement of this raceway for the appellant to establish his ownership of the soil.
The title to the easement may remain untouched. Their lordships in appeal apparently overlooked this in their consideration of the boundaries on the river side of block F. The original lease only demised easements; the grant to Patterson is of easements (so far as the locus in quo is concerned), and respondent, in his bill of complaint, only claims easements.
But the appellant’s right to put the respondent to proof of his title to these easements, in so far as his ownership of block F is concerned, depends upon his establishing that that block extends to the river, and thus embraces the soil of the raceway.
The appellant’s rights as owner of the north bank stand upon a different footing. The easements claimed are a dam and race, by means of which the waters are diverted from the north bank as well as from the south bank.
As against the north bank, therefore, the respondent would in any event be bound to prove his title to these easements.
If, however, block F extends to the river, and the appellant is entitled to it to the river, and the respondent has not made out his title, there is an end of the case, and a consideration of the questions arising from the ownership by appellant of the north bank becomes unnecessary. The first question, therefore, is: What, as a matter of fact, is the northerly limit of block F?
The learned counsel went very fully into the evidence and submitted that block F was, at the time of the conveyance to Ross, a perfectly defined parcel, having for its northerly limit, from block E to the Maitland bridge, the main channel of the river Maitland, and that the finding of the Court of Appeal to the contrary is erroneous.
Assuming that the previous proposition is established, the next question is: Did the conveyance to Ross grant to him block F to its northerly limit, the river? Again, without reference to the title to the easements claimed by respondent, it is submitted that this must be answered in the affirmative.
The learned counsel went fully into the evidence on this point.
The river, as a natural boundary of block F, should be preferred if any doubt:—Angell on Watercourses[1]; Juson v. Reynolds[2].
The intention of the parties expressed in the conveyance must govern. White v. Bass[3]; Dodd v. Burchell[4]; Taylor v. Corporation of St Helens[5]; Gillen v. Hayes[6].
The right of the respondent to purchase was to have been exercised during the term, and time was of the essence, and until the right was exercised, the relationship of vendor and vendee did not exist. Ball v. Canada Co.[7]
If conveyance executed in pursuance and fulfilment of original contract, it must be construed as giving only the same rights as the original contract. Wood v. Saunders[8]. There having been no express reservation, the only ground upon which a reservation can rest is by implication. Goddard on Easements[9].
Here the conveyance to Ross, was of the quasi servient tenement, the grantors retaining the quasi dominant tenement, and there was no reservation of the easements now claimed. Edinburgh Life Ass. Co. v. Barnhart[10]; Suffield v. Brown[11]; Wheeldon v. Burrows[12]; Allen v. Taylor[13].
The cases of Young v. Wilson[14], and Watts v. Kelson[15] are relied upon by respondent, as being at variance with the law as laid down in Suffield v. Brown, above cited.
In the former case Vice-Chancellor Proudfoot declined to follow the judgment of Lord Westbury in Suffield v. Brown, because the easement in question in that case was not apparent and continuous, as in Young v. Wilson[16]. On rehearing the Chancellor dissented from the the judgment of the court Vice-Chancellor Blake evidently felt himself constrained by, as he says, the weight of authority, to refuse to follow Suffield v. Brown, but he upheld the original judgment upon other grounds as well, in which also Vice-Chancellor Proudfoot concurred. Wheeldon v. Burrows had not then been decided, affirming, as it does, the judgment of Lord Westbury, not only so far as applicable to the class of easements in question in Suffield v. Brown, but as applicable to apparent and continuous easements, as in the present case, and as in the case itself of Wheeldon v. Burrows.
It is true that in Watts v. Kelson the Lords Justices, in the course of the argument, express themselves as satisfied with the case of Pyer v. Carter[17], but, as pointed out by the judges of the same court when considering these remarks in the latter case’ of Wheeldon v. Burrows, there is nothing in the considered judgment in Waits v. Kelson affecting or weakening Lord Westbury’s judgment in Suffield v. Brown.
Moreover, Watts v. Kelson was a case of implied grant, not, as here and in Wheeldon v. Burrows, implied reservation, and quite different principles were therefore involved.
It is submitted, therefore, that the law must be taken to be as laid down in Wheeldon v. Burrows, and that, if so, it is conclusive against the implied reservation by the Grand Trunk Railway Co. of the easements in question on the sale and conveyance to Ross in June, 1871, of block F.
Again, assuming that the easements in question were reserved in the conveyance to Ross it is clear that they did not “pass to Patterson by the subsequent conveyance in 1873, and in law they were thereby extinguished. After the conveyance to Ross they existed, if at all,’ not as quasi but as real legal easements, with the usual legal incidents, one of which was, that it was essential to their maintenance that they should be appurtenant to a dominant tenement. Goddard on Easements.[18]
After June, 1871, the only land owned by the railway company in the vicinity of the easements in question was the respondent’s mill site. When that was finally granted to Patterson, without these easements being included, the servient tenement was relieved of their burden and they ceased to exist.
The appellant further contends that even if the courts should be of opinion that there was a reservation of the easements in question, as against block “F,” that there is clearly no room for such a conclusion in considering the several conveyances of the parcels on the north bank, viz., Island C, and The Great Meadow. Such conveyances are absolute in form and contain no reservation or exception whatever; and the foregoing argument against implied reservation applies with additional force in considering the title to these parcels.
By means of the dam and race claimed by respondent there was a diversion of the water of the rivers from the main channel which affected Island C, The Great Meadow and Block A upon the north bank.
The appellant submits that there is no room upon the facts for the application of the principle of “reasonable user,” as suggested by Mr. Justice Burton in his judgment, and for which he cited Embry v. Owen[19].
That was a case of the extent of the right of a person having an undoubted title in respect of which the right was exercised, a right to abstract running water for the purposes of irrigation.
Here we say the respondent has no title whatever, upon which to base his alleged right to use the water as he does, and where he does.
Even if he has the right as against the south bank that is insufficient. He must possess a title as against both banks, otherwise he has no right to maintain the dam to divert the water, or even to maintain the artificial race, constructed in the bed of the river, without the dam such a construction, even if it did not, as it does, divert the waters out of their ordinary channel is an unlawful encroachment upon the alveus and actionable, without showing special damages
Bickett v. Morris[20]; Lord Norbury v. Kitchen[21]; Kirchoffer v. Stanbury[22]; McArthur v. Gilles[23]; Penn- ington v. Brinsop Hall Coal Co.[24]; Holker v. Porritt[25]; Clowes v. Staffordshire Potteries Co.[26]; Angell on Watercourses[27]; Goddard on Easements[28].
The question is, has the respondent a right to divert at all. If he has such right we do not claim that he has used it excessively. Our contention is, that he has no right or title to the easements he claims, and therefore no right to divert at all.
This confines the question to whether he has proved his alleged title as he was bound to do, a question evidently not considered, but assumed in the Court of Appeal,
There is equally little support for the supposed dilemma into which Mr. Justice Patterson suggests the appellant may be forced, i.e., that of contesting the respondent’s title, under his title deeds, at the peril, if it should be found that they do not cover the locus in quo, of its being held that respondent’s trespass, in constructing the race and dam in question, amounted to a taking possession of the land itself, and that he had therefore acquired a title by prescription, the limit being ten years in that case, while in the case of easements it is twenty.
It ought to be sufficient answer to this to say that the respondent in his bill only claims casements.
But further, until the conveyance to Patterson in 1873, he was only a tenant to the R.R. Co., and therefore by his encroachments for the benefit of the demised premises was acquiring no title as against them. Earl of Lisburn v. Davies[29]; Whitmore v. Humphries[30].
Until June, 1871, the R.R. Co owned the whole.
The bill of complaint was filed on the 26th February, 1880. So that in no possible view of the matter could any title by prescription to the locus in quo be sustained, even if the date of its origin would be taken to be when the several tenements were severed
Then, has respondent acquired a prescriptive right to divert the water, as against block A, owned by appellant?
The title to this block was not derived from the railway company, and the respondent’s only title therefore must be by prescription.
In the judgments of their lordships in the Court of Appeal it is apparently taken for granted that respondent has such title, or, at least it is stated briefly that the evidence clearly shows that he has such a title.
The first answer to this alleged right is that it is no part of the case made by the respondent in his bill of complaint. The appellant, in his answer, sets up his rights as owner of block A. The respondent did not amend his bill claiming a prescriptive right as against that block. He simply joined issue. The appellant was therefore only bound to prove his title, which he did.
The second answer is, that the evidence does not show that the respondent has such prescriptive right, but shows the contrary.
If, on the pleadings, the point was open to respondent, the burden of proof was, of course, clearly upon him.
He was bound to prove and has failed to prove that he had, for a period of twenty years prior to the interruption by appellant, enjoyed, as of right, easements the same in extent and character as those with which appellant interfered. Bealey v. Shaw[31]; Ruttan v. Winans[32]; Hunt v. Hespeler[33]; McKechnie v. McKeyes[34]. The learned counsel went fully into the facts bearing on this point
Mr. Maclennan, Q.C., and Mr. M.G. Cameron, for respondent:
In answer to the first contention, viz., that the channel in dispute is upon appellant’s land, the respondent contends that such is not the case.
Counsel for respondent went fully into the maps, descriptions and evidence on this point.
In answer to the second contention of the appellant, viz., that as owner of the lands on the north side of the river, called the Big Meadow, Island C and block A, his riparian rights are injuriously affected by the diversion of the water into the raceway of the respondent near the Maitland bridge, the respondent contends: That there is no evidence of diversion, and that the evidence is the other way. As to the Big Meadow and Island C, the appellant’s title comes through persons who purchased from the railway company on the 3rd of June, 1871, and block F and the respondent’s lands and easements were also purchased from the same company; the Big Meadow and Island C, having been purchased at a date subsequent to the grant by the railway company to respondent, of the right to the easement to use the water, as he is now using it, the appellant cannot stand in any better position than the railway company, who owning, as they did, the lands on both sides of the river, and the bed of the stream, had a right to divert the water from the Big Meadow and Island C.
As to block A the appellant’s deed carries his land only to high water mark, so that it is only when the river is at its highest point that he has any riparian rights whatever, and the evidence shows that when the water is high there is no diversion at all by the plaintiff, and no occasion for it; the plaintiff’s dam and raceway are then overflowing, and there is no evidence of diversion affecting block A at any time.
If there is any diversion, which we deny, it is quite clear from the evidence that respondent has established a prescriptive right so to divert it.
The evidence is undisputed, that whatever diversion there was began in 1859 and continued for more than 20 years, up to the time of the obstruction by the appellant.
It is also clear from the evidence that about Christmas, 1859, the respondent made the dam of loose stones across the river, near the bridge thrown down by the appellant, and that he had maintained that dam there ever since, and from that time the water has flowed through the channel in dispute to his milk, and they were driven thereby, and have been driven thereby, without interruption, up to the date of the obstruction by the appellant.
The respondent admits that the embankment as it exists at present, and within which the raceway is confined, was not completed throughout its whole extent until within 20 years, but we say that that cannot and does not impair respondent’s title by prescription, because early in 1859 the respondent had dammed the river to its full breadth, including the present race‑way, and by letting the old dam go, and, instead thereon using the raceway within the embankment, and at the same time keeping the river dammed to its full breadth, as the respondent did, he merely narrowed ‘ the limit over which he exercised his easement, and the respondent would not lose his prescriptive right because the dam was carried away, and rebuilt in the same or another place, if it was not altered or increased to the detriment of the owner of the servient tenement, the right claimed by respondent being to raise a dam so high as to take up eight feet of the fall of the river. There is no evidence to show that a greater burthen was thrown on the servient tenement by the alteration within 20 years. It was diminished, and the right by prescription is still good, though only to the extent to which it was reduced by the alteration. Harvey v. Walters[35]; Thomas v. Thomas[36]; Rex. v. Tippelt[37].
The right to a water course is not destroyed by an owner’s altering the course of the stream. Hall v. Swift[38].
The alteration here was made long before the appellant or his grantor acquired any right whatever.
Alteration in the condition or character of a dominant tenement, to extinguish an easement, must be of a nature and of a character which will inflict serious injury on the servient tenement, by increasing the burthen of the easement; and if the burthen is enlarged, and the user of the right totally changed from that originally contemplated by the grantor of the privilege, the easement will be extinguished. Goddard on Easements[39].
The respondent is in possession of the raceway in dispute in one of two ways: either by express grant from the railway company, or as a trespasser. If the has shown a clear title by prescription; if the latter, the appellant must also fail, because the respondent has been in possession, even according to appellant, who says he finished building the channel in 1865, over ten years, and has thus acquired a title as owner of the soil by the Statute of Limitations.
The respondent also claims the easement of constructing a dam in the river Maitland, so that he may obtain a head of 8 feet of water at his mills, by express grant, and the appellant, who claims under the railway company, is precluded from: asserting a right inconsis- tent with the existence and maintenance of the said dam and raceway. Hendry v. English[40]; The Rochdale Canal Co. v. King[41]; Goddard on Easements[42]; Edinburgh Life Assurance v. Barnhart[43]; Brewster v. The Canada Co.[44]
The license, although verbal, is sufficient, and is irrevocable, if coupled with a grant; or if the licensee, acting upon the permission granted, has executed a work of a permanent character, and has incurred expense in its execution. Nichol v. Tackabery[45]; Winter v. Brockwell[46]; Woods v. Leadbetter[47].
The evidence also clearly shows that at and long before the appellant, or those under whom he claims, purchased, the respondent openly and continuously used the dam and raceway in dispute, and, therefore, that he purchased subject to the easement of respondent.
The authorities show that when there is a continuous and apparent user, it is immaterial whether the dominant or servient tenement be first sold, and that a grant of the easement must be implied in favor of the dominant tenement. Young v. Wilson[48]; Richards v. Rose[49]; Penningtan v. Galland[50]; Ewart v. Cochrane[51]; Watts v. Kelson[52]; Shory v. Piggott[53]; Pyer v. Carter[54]; Dodd v. Burchell[55]; Wadsworth v. McDougall[56]; Diamond v. Reddick[57]; Hickman v. Lawson[58]; Watson v. Traughton[59]. The easement to which the respondent claims to be entitled is, in its nature, continuous. There is this “clear distinction between easements, such as rights of way, or easements used from time to time, and easements of necessity, or continuous easements. The former do not pass unless the owner, by appropriate language, shows an intention that they should pass, but the latter will pass by implication of law without any words of grant. Polden v. Bastard[60].
But whatever might have been the result between the appellant and the railway company, if the matter had been between them, it is clear that the railway company could not sell, or the appellant acquire, the servient lands otherwise than subject to respondent’s easements.
It is no answer to the respondent’s claim to say that if the supply of water running through the race-way in question to the respondent’s mill was cut off, possibly some other supply might be obtained. It is clear here that no supply of water equally convenient could have been obtained, and it is sufficient to show that. Watts v. Kelson[61]; Morris v. Edgington[62].
The case of Wheeldon v. Burrows is not an authority against respondent’s contention, nor does it alter the law as laid down in Young v. Wilson. In the former case, the easement was not necessary to the reasonable enjoyment of the property granted, but one respecting lights, where no easement by implication would arise on the severance of the tenements.
It makes no difference whether the easement had a legal existence before the severance of the tenements. Gale on Easements[63]; Dart on Vendors and Purchasers[64]; Davies v. Sear[65]. Suffield v. Brown and Crossley & Sons v. Lightowler do not affect this case, as the easement there was neither apparent nor continuous, and not one of which the purchaser would necessarily have notice.
The rule under which a man is prevented from derogating from his own grant has no application to this case, except in favor of the respondent
RITCHIE, C.J.: delivered judgment, stating in substance that he had come to the conclusion the plaintiff had failed to show title to the strip of land on which the head-race was made or to the easements in question; that in his opinion block F came to the river; and that, even if block F did not come to the river, the plaintiff had no right to maintain the obstruction at the stone dam, and so divert the water of the Maitland river from the Great Meadow, Island C, and block A.
STRONG, J.:—
In considering this case it will be convenient in the first place to ascertain what (if any), on the 3rd June, 1871, the date of the several conveyances to Ross, McDonald & Smith, was the title of the respondent to the mill, lands and easements, now claimed by him, for it is manifest that the respondent can have no more extensive rights against the appellant deriving title from the railway company, through Ross and the other grantees mentioned, than he had against the railway company at the date referred to, except in so far as such rights were either expressly or by implication of law reserved to the railway company in the deeds mentioned, and were subsequently vested in Patterson under the deed of the 3rd February, 1873 By following this order it will be possible to disembarrass the case of several questions, relating to equitable acquiescence, prescription, and the Statute of Limitations, which have given rise to much controversy in the court below, but which are, as will be shown (with the exception of the single point of prescription, so far as it relates to one parcel of the appellants’ land on the north bank of the river—block A,) irrelevant to the decision of the present appeal.
By the original lease of the 4th of July, 1859, the mill site, lands and easements appendant to them were demised by the Buffalo and Lake Huron Railway Company to the respondent for the term of seven years from the 1st of May, 1860.
The lease contained a provision giving the lessee an option to purchase the fee in the demised premises, at any time during the currency of the lease, upon giving the lessors six months notice in writing to end before or at the expiration of the term, and also a covenant for renewal for the further term of three years, with liberty to the lessee, or his assigns, to purchase the re-demised premises during the second term, on the same terms and conditions as had been provided with respect to the purchase during the first term of seven years; and it also contained a clause in these words:—
In case the said party of the secnd part shall not, at the expiration of the term or terms aforesaid, or sooner determination of these presents, purchase the said demised premises, all the erections, buildings, improvements and fixtures thereon erected, built, put and placed during the currency of the said term or terms, shall belong to and form part of the said lands and freehold, and at the expiration of the said term or terms, as the case may be, or sooner determination of these presents, revert to and become the absolute property of the said party of the first part.
By an indenture dated the 9th day of November, 1866, made between the Buffalo and Lake Huron Railway Company, of the first part, the respondent, of the second part, and A.T. Patterson, of the third part, after reciting that the original lease had been assigned by the respondent to Patterson, in trust by way of collateral security, the Railway Company demised the premises to Patterson for a new term of three years from the 1st day of May, 1867, and it was thereby agreed that “the demise thereby granted, and the rights and liabilities of the party of the third part thereunder should in all respects be subject and according to all the provisions, promises, covenants, stipulations, conditions, limitations and agreements contained in the original lease, including the right to purchase the demised premises within the term of three years (as in the lease mentioned) excepting the rights of renewal.” The renewed term expired on the 1st of May, 1870. There is no evidence to show that the option of purchasing was exercised before the expiration of the term, or that the time for exercising it had been in any way extended. The respondent, it is true, remained in possession, but the mere fact of possession cannot be sufficient to shew that he ever elected to purchase, so as to create a contract between himself and the railway company. The right of purchase expired with the term, for it is clear, both upon principle and authority, that, in the case of all such unilateral stipulations, time is strictly regarded[66]; moreover, by the terms of the provision for purchase contained in the lease, time was made essential, for the right was conditional upon giving notice six months at least before the end of the term, so that, if the general law were not as it undoubtedly is, the parties must be held to have made time of the essence by the terms in which their agreement is expressed. It cannot, therefore, be open to doubt or question, that from the 1st May, 1870, when the term expired, until the 3rd June, 1871, when the several parcels, blocks E and F, Island C, and the Great Meadow, were respectively sold and conveyed by the Grand Trunk Railway Company (who had purchased from and acquired all the rights of the Buffalo and Lake Huron Railway Co.) to the parties under whom the appellant claims, the respondent was in possession as a mere tenant at sufferance, having no other right or title either at law or in equity. Upon the evidence this conclusion is inevitable, unless indeed we are, without proof, to make conjectures in favor of the respondent’s case. It is out of the question to say that any presumption of an exercise of the option of purchase, or of its extension in point of time, or of the making of a new agreement for the purchase of the property, can, in the absence of all other proof, be inferred from the mere fact of the holding over after the time had expired; such possession can, I repeat be attributed only to a mere tenancy at sufferance. No doubt if it had been sufficiently proved that the railway company were bound by a contract of purchase, either under the terms of the lease, or by an agreement made independently of the leaser the fact of possession would have been sufficient constructive notice of the equitable rights of the respondent, to ail persons who subsequently purchased from the railway company, but this is the utmost effect which could be attributed to that fact. Therefore on the 3rd June, 1871, the date of the conveyance of the several parcels of which the appellant is now the owner in fee (with the exception of block A on the north bank of the river, which was not derived from the railway company, but was acquired by the respondent under a different title) the respondent had no title whatever, either as a lessee or as a purchaser, to this mill property, he was merely a person in possession, who had been a tenant, but whose title had expired, and who held over by the sufferance of his landlords. It is impossible, therefore, to ascribe the respondent’s present title to any earlier date than that of the conveyance to his trustee, Patterson, on the 3rd February, 1873, and, as the appellant’s title is derived under conveyances executed in June, 1871, the case must be considered as if the questions now in litigation had arisen between the appellant, or his immediate predecessors in title, and the railway company immediately after the latter date and before the conveyance to Patterson. In thus viewing the case it will at once become apparent that the questions of prescription, the statute of limitations, and the supposed equitable title arising from the acquiescence of the Buffalo and Lake Huron Railway Company in the enlargement of the easement as originally granted, to which some importance was attached in the court below, are immaterial to the decision of the present appeal. On the 1st of May, 1870, when the renewal term expired, the railway company became the absolute owners in fee in possession, or with the right of immediate possession, of all the lands now in question, as well of the mill property and its appurtenant easements, as of the lands on both sides of the river, now the property of the appellant, excepting only block A on the north bank. There was therefore with the exception mentioned, from this date, until the ownership was again separated, on the execution of the conveyances under which the appellant’s title is derived, entire unity of ownership by the railway company of all the tenements, as well of those which are now alleged to be servient, as of those which are said to be dominant, and there could have been, during this period, no easements in the strict sense of the term. It is manifest that one piece of land cannot be said to be burdened by a servitude in favor of another piece when both belong absolutely to the same owner, who has, in the exercise of his own unrestricted right of enjoyment, the power of using both as he thinks fit and of making the use of one parcel subservient to that of the other, if he chooses so to do. There was therefore, when the title to all these lands came to be vested in the same owner, an extinguishment of any easements which may previously have existed, a species of merger by which what may have been, whilst the different parcels were in separate hands, legal easements, ceased to be so, and became mere easements in fact—quasi-easements, as they are sometimes called Then what possible difference can it make in the rights of parties claiming under the railway company, that there had been, during the term which had expired, a possession in the tenant beyond the rights which his lease conferred—a possession which was an encroachment upon other lands of his landlord not comprised in the lease, of such a character that if it had been a possession of the lands of a stranger it would have ripened into a title under the statute of limitations; or that the tenant had, during the term, enjoyed an easement over lands of his landlord other than those demised to him, and which would, in like manner, have given him an easement by prescription, if the burden of it had been imposed upon the lands of a third person; or that such easement had even been enjoyed with the direct and express acquiescence and license of the landlord, who had encouraged the tenant in an expenditure for the purposes of making the easement available? It is impossible to see how any such acts could have had the slightest legal effect upon the rights of the parties claiming under the railway company the owner of the whole, dominant and servient tenements alike. They would, it is true, have some effect as evidence to show that the easements claimed existed as easements in fact, quasi-easements, whilst the several tenements were in the hands of the same owner, but no other and no legal consequence whatever could be attached to such acts in the event which has happened of the ownership of all the lands having become consolidated in the hands of the railway company. Supposing the railway company had not originally owned the mill property at all, and that the easements claimed had actually been acquired in favor of that property and against the other properties now owned by the appellant by a user for the full statutory period of twenty years, and that then the dominant tenements had been acquired by the railway company by purchase, there must in that case have been an extinguishment of the easements. The same principle would also apply in the case of easements to which an equitable title had been acquired by the license and acquiescence of the railway company followed by an expenditure, on the faith of such a sanction, by the owner of the mill property. Again, if in the case supposed of the title to the two properties being absolutely vested in fee in different owners, a title to the land itself on which the race-way is constructed had been actually acquired by a possession for the required period under the statute of limitations, this would, of course, have been immaterial if the railway, company had subsequently acquired a title to the mill property by purchase. Then, when the term came to an end and the mill property reverted to the lessors, it was at least as strong a case as that supposed. It is well settled law that all additions to the demised premises, acquired by a lessee by encroachments on the land of a stranger and possession for the statutory period, enure on the determination of the tenancy to the benefit of the reversioner, as also do easements acquired under the Prescription Act, and an easement acquired by a tenant by acquiescence and license of his landlord over other lands of the latter must be presumed to be so acquired as incidental to the enjoyment of the demised premises, and not as an easement in gross, if indeed such a right as an easement in gross is recognised at all by the law, and therefore to be limited to the continuance of the term and to be determined upon the expiration of the lease. The result is that all these questions of the statutes of limitations, prescription, and license can have nothing to do with the decision of the case, if we determine, as I think we must, on the evidence contained in the record, that the respondent up to the date of the conveyance of 3rd June, 1871, never had any interest, legal or equitable, in the mill property and its appurtenant easements, except as a lessee for the original and renewed terms, the latter of which came to an end on the 1st of May, 1870, and that there is no foundation in fact for the assumption that the respondent has now any title which he can carry back to the option of purchase, or in any way ascribe to the stipulations contained in the lease or to any other origin legal or equitable earlier in date than the conveyance to Patterson on the 3rd February, 1873.
We have, therefore, in order to determine what are now the rights of the appellant in respect of block F, to ascertain what were the rights of the railway company immediately after the execution of the conveyances to Ross, Smith and McDonald of the 3rd June, 1871, for it is plain that the respondent, claiming under a subsequent conveyance to Patterson executed on the 3rd February, 1873, can claim no more extensive rights than his grantors had.
The appellant seeks in the first place to justify the acts which the bill was filed to restrain, the partial removal of the dam and the embankment of the race-way, upon the ground that as the riparian proprietor of block F, he was also the owner of the bed of the river to its middle thread, and that he, therefore, shows the embankment on the stream and a part of the dam to be erected on land which belongs to himself, and in which he had the absolute and unrestricted right of property. The respondent, on the other hand, insists that the descriptions in the conveyance to Ross of the 3rd June, 1871, does not carry the northerly limit of block F to the water’s edge, and that consequently the appellant is neither the owner of the land in the bed of the river on which the dam and race-way are placed, nor even a riparian proprietor. I am of opinion that the conclusion arrived at by Mr. Justice Proudfoot, before whom the cause was originally heard, that block F did extend to the waters of the river Maitland, was a correct inference from the plan of 1859 as explained by the witnesses who gave evidence as experts, and from the descriptions contained in the conveyance to Ross.
The learned judges of the Court of Appeal were of opinion that the plan of 1859 was not entitled to any weight for the purpose of identifying block F as a piece of land extending to the water’s edge, inasmuch as it did not appear that “the plan was made by a person having authority to bind the owner”. But it is proved that the fact was otherwise; that the plan was made for the owners of the land, the railway company, and was actually registered by them, as appears by the memorandum to that effect on its face.
It was, therefore, in June, 1871, when the railway company conveyed to Ross, a plan binding on them, to this extent at least, that when they conveyed a parcel of land, which they described as block F, it must be presumed that they intended to convey the same parcel of land as is shown by that denomination in this plan of 1869 and with the same natural boundaries on the north and north east as are there indicated.
It is contended however by the respondent that these limits of block F are shown by the irregular line of shading on the plan of 1859. This the appellant answers by producing as witnesses experienced draughtsmen and surveyors, who state their opinions to be that this shading is not intended as a boundary line, but is meant to represent the configuration of the land in question and to mark where the table land comes to an end, and to show the declivity and slope towards the river, which are found upon the ground. That it is, what Mr. Miles, one of the witnesses, says is technically called by draughtsmen, a “contour line,” showing the brow of the hill.
This evidence is objected to by the learned judges of the Court of Appeal for the alleged reason that the question is not a proper one to be decided by the evidence of experts, but one