Hamilton v. The King

Hamilton v. The King
Collection
Supreme Court Judgments
Date
1917-02-06
Report
(1917) 54 SCR 331
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Canada
Subjects
Property law
Decision Content
Supreme Court of Canada
Hamilton v. The King, (1917) 54 S.C.R. 331
Date: 1917-02-06
Susan Hamilton and Others (Defendants) Appellants;
and
His Majesty The King (Plaintiff) Respondent.
1916: November 16, 17, 29; 1917: February 6.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Title to land—Adverse possession against Crown—"Nullum Tempus Act" —Interruption of possession—Information of Intrusion—Judgment by default—Acknowledgment of title—"Real Property Limitations Act" (Ont.).
A judgment by default, on information of intrusion against persons in possession of Crown lands, which was never enforced did not interrupt such possession and prevent it ripening into title under the "Nullum Tempus Act."
"The Real Property Limitations Act" of Ontario (C.S.U.C. ch. 88, sec. 15; R.S.O. [1914] ch. 75, sec. 14) providing that an acknowledgment of title in writing shall interrupt the adverse possession does not apply to possession of Crown lands and such acknowledgment is not an interruption under the "Nullum Tempus Act."
The provision in the "Ontario Limitation of Actions Act" of 1902, making an acknowledgment apply to interrupt possession of Crown lands is not retroactive or, if it is, it cannot apply to a case in which the adverse possession had ripened into title before it was passed.
Per Duff J.—As intrusion does not, in itself, deprive the Crown of possession the occupation required to attract the benefit of the first section of the "Nullum Tempus Act," 9 Geo. III, ch. 16, is not technically possession; but lands are "held or enjoyed" within the meaning of that section where facts are proved which, in litigation between subject and subject, would constitute civil possession as against the subject owner.
The judgment of the Exchequer Court (16 Ex. C.R. 67) in favour of the Crown on information of intrusion was reversed, Fitzpatrick C.J. holding that the Crown had failed to prove title, Idington, J., that the claim was barred by the negative clause of the first section of the "Nullum Tempus Act," and the other judges that the defendants had obtained title by operation of the "Nullum Tempus Act." APPEAL from the judgment of the Exchequer Court of Canada[1] in favour of the Crown on information of intrusion.
The information of His Majesty the King was filed in the Exchequer Court for the purpose of recovering possession of a piece of land situated at the south-east corner of Rideau Street and Mosgrove Street in the City of Ottawa. The land was portion of the ordnance lands of the City of Ottawa, the title being vested in Her late Majesty's Officers of Ordnance and was partly occupied at one time by what was known as the By-Wash or Waste-Weir Reserve extending from the Rideau Canal Basin to Rideau street through which the overflow or surplus waters of the canal found their way from the canal basin as it existed many years ago. The appellants' grandparents went into possession of this land in the year 1832 without having acquired a title from the Officers of Her Majesty's Ordnance. In the month of February, 1890, an information was filed in the Exchequer Court of Canada against the parties then in possession thereof, including the parents of the defendants in the present action. No defence was filed and judgment was obtained by default, and entered for possession of the lands and premises in the information mentioned, and upon that judgment a writ of possession was issued to the sheriff of the County of Carleton and placed in his hands. Subsequently an order was obtained for the issue of a new writ of possession which writ was duly issued on the 16th day of January, 1902, and placed in the hands of the sheriff.
The said defendants were not evicted under the judgment and writs of possession above mentioned, but continued in possession of the land, and as they had died it was considered advisable by the Crown to exhibit a new information against the defendants in this action, who claimed, and were in occupation of the land. They entered a defence in which they denied the title of the Crown and further pleaded that the title to the lands was vested in them inasmuch as they and their parents had been in uninterrupted, actual, visible and continuous possession and enjoyment of the lands and premises since the year 1832, and were still in full possession and enjoyment thereof. To this defence the respondent replied setting up the former proceedings and the judgment which was obtained against the persons under whom the appellants claim, and further pleaded that the defendants either as defendants in the present action or as claiming under the defendants in the former action, were estopped from denying the Crown's title.
The action came on for trial before Mr. Justice Cassels in the Exchequer Court on the 11th May, 1915. In support of the information the Crown placed in evidence all the proceedings in the former action of intrusion, and also produced a letter written by Susan Cousens and Sarah Cousens to the then Minister of Public Works. The former of these persons, Susan Cousens, was afterwards Susan Hamilton and mother of the appellants in this action, and one of the defendants in the former action. That letter is as follows:—
"Ottawa City,
"17th October, 1871.
"Sir,—We the undersigned (being sisters) beg to inform you that having understood that the small property or lot situated on the southern side of Rideau street and adjoining the by-wash (leading from the Canal) on the west side of it, on which there is a wooden building, has been applied for by the St. George's Society for the purpose of erecting a hall thereon. We would hope that the same might not be sold, as we consider our right to it cannot be alienated from the length of time said lot has been possessed by our family, namely, 39 years. Our father the late James Cousens in his lifetime settled upon this lot in 1832 with permission of the Ordnance Department, our mother outlived our father and resided upon this property for a number of years and at her decease bequeathed it to us, and we have continued upon it ever since. Our father's name was entered upon the books of the Department at the time of his settling down here which was then called By-town, these facts are known to many of the citizens.
"The corporation taxes levied from time to time have been duly paid all along to this date, and we most urgently and respectfully solicit that the aforesaid lot be sold to us, as we consider we have the prior right and are willing to pay any reasonable amount for a deed of the same.
"We remain,
"Your most obedient servants,
"Susan Cousens.
"Sarah Cousens.
"Hon. H. L. Langevin, C.B."
The judgment delivered by Mr. Justice Cassels held that His Majesty was entitled to recovery of possession of the said lands.
Fripp K.C. for the appellants. The Crown did not prove title. The "sixty feet around the basin and by-wash" reserved to the Crown by 7 Vict. ch. 11, when the unused lands were restored to former owners, must mean to refer to the junction of the basin and by-wash and so does not include our land.
And title must be proved: Doe d. Fitzgerald v. Finn[2]; The Queen v. Sinnott[3]; Tuthill v. Rogers[4].
The letter to Sir H. Langevin in 1871 was no acknowledgment of title. See Doe d. Curzon v. Edmonds[5].
The appellants were never dispossessed during the sixty years; Day v. Day[6]; and the provisions of the Ontario "Limitation of Actions Act" cannot affect them.
Hogg K.C. for the respondent. The judgment obtained by the Crown in 1890 and the letter to Mr. Langevin in 1871 are, and either of them is, sufficient to uphold the judgment appealed against.
Where an effectual claim is made by the Crown within the sixty years, its remedy is not barred: Attorney-General for British Honduras v. Bristowe[7], at pages 155-6.
As to the acknowledgment see Halsburys Laws of England, vol. 19, page 132.
Fripp K.C. for the appellants.
Hogg K.C. for the respondent.
The Chief Justice.—The Attorney-General for the Dominion of Canada brought this suit by information claiming possession of certain lands and premises therein described and which now are, and for the past eighty-four years have been, in the possession of the defendants or their predecessors in title.
The matter comes before the courts in a rather curious fashion because in the year 1890 the Attorney-General brought a similar suit to recover possession of those, amongst other lands, and obtained judgment in default of pleading. Possession, however, was never had under this judgment and no writ of possession has been issued or applied for in the name of His present Majesty. The defendants then interested in the lands now in question are dead, and the Attorney-General has thought it necessary to take these proceedings in which he must prove the title of the Crown in right of the Dominion. The defendants have been in possession for more than twenty years since the judgment of 1890.
Whether the Crown could have relied simply on the judgment by default of 1890 as establishing the title of the Crown is a question which I think we are not called on to decide, because in the present proceedings counsel for the Crown set up a title which he stated at the opening of the trial, as follows:—
His Lordship :—How did the Crown get title to it?
Mr. Hogg:—The Crown got title under the original statutes. The canal was constructed under the statute of 8 George the Fourth, and by 7 Victoria, ch. 11. That statute vested the property in the principal officers of Her Majesty's Ordnance in Great Britain: that the Rideau Canal and all its appurtenances became vested in the. Principal Officers of Ordnance, and remained in that way until Confederation, and became part of the property of the Dominion of Canada under the "Confederation Act." That is the short history of the title, so far as the Crown is concerned.
This is clearly erroneous. If the canal and all its appurtenances remained vested in the Principal Officers of Ordnance until Confederation, there is nothing in the "British North-America Act, 1867," which would have made it the property of the Dominion of Canada.
The "British North America Act" by section 108 provides that
the Public Works and Property of each Province enumerated in the third schedule to this Act shall be the property of Canada;
the third schedule is headed
Provincial Public Works and Property to be the Property of Canada; the first item in this schedule is
Canals with Lands and Water Power connected therewith
and the ninth is
Property transferred by the Imperial Government and known as Ordnance Property.
Now there is no doubt that the Rideau Canal was Ordnance Property and as such it appears to this day in the schedule to the "Ordnance and Admiralty Lands Act" (R.S.C. [1906], ch. 58). If, therefore, it passed to the Dominion under the "British North America Act 1867," it was as Ordnance Property. The legal advisors of the Crown have evidently supposed that it passed like ordinary canals the Property of the Province under the first enumeration in the third schedule of
Canals with Land and Water Power connected therewith.
This is the only item of the third schedule which is printed in the extract from the "British North America Act" 1867, given in the printed
Schedule of Statutes and Parts of Statutes to be referred to on argument of this Appeal.
But whether the canal passed to the Dominion under the first or the ninth item in the third schedule it would be, of course, an essential link in the title to prove that it was at Confederation the property of the Province of Canada, and not only has no attempt been made to shew this, but counsel, as appears from his statement above quoted, has set up that it then remained vested in the Principal Officers of Ordnance.
It does not follow, of course, that because the title which the Crown has set up in this suit is bad it has not really a good title. I am certainly aware that there are a number of statutes dealing with the Rideau Canal but I do not think it is incumbent on the court to search amongst pre-Confederation statutes and other evidences of title for the purpose of seeing if a good title can be made out. Moreover, there may be points of difficulty and doubt arising on these statutes and documents. It would, indeed, seem absurd to suppose that the court should have to deduce the title and decide upon its validity independently of either of the parties to the suit.
The statute of the Province of Canada, 19 Vict. ch. 45, can scarcely be looked upon as a model of clearness or accuracy. If it is to be held to establish that the Ordnance properties of which it purports to dispose had been transferred to the province, it would seem that this could only be by implication; there is no recital to that effect such as we find in the Dominion statute, 40 Vict. ch. 8, whereby certain other Ordnance property transferred directly to the Dominion was disposed of. In the provincial statute, on the contrary, there is only a recital of the intention that they should be transferred whilst the second schedule to the Act, which alone can be material here, is headed
Military Properties in Canada proposed to be transferred to the Provincial Government.
The description in the schedule is, however, of the most meagre description; indeed it does not seem to deal with the canal at all. The schedule is in the following form:—
The Second Schedule.
Referred to in this Act being the Schedule of Military Properties in Canada proposed to be transferred to the Provincial Government.
Situation
Approximate Quantity of Land.
A. R. P.
Description of Buildings or Military Works.
(Amongst the Properties enumerated are)
Rideau and
Ottawa Canals
…………………..….……
…………………………...
…………………………...
City of Ottawa, Barracks. Blockhouses and Adjuncts of the Canals. The canal, it will be seen, is only mentioned as giving the "situation" of the properties mentioned in the third column. Again are we to suppose that the lands on either side of the canal and round the basin and by-wash are to be considered "adjuncts of the canal"? Even if they are included in this expression may not the Province of Ontario have some claim to these lands?
I am, of course, giving no opinion on any of these points and merely mention them as possible difficulties arising on the title of the Crown; it is unnecessary to pursue their consideration further since I hold that it was for the respondent to shew title which has not been done. I think as I have already intimated that the respondent having set up in this suit a title which is defective cannot be heard now to say that the judgment given by default in 1890 establishes that the title of the Crown is a good one.
If the lands now claimed are Dominion property they are apparently subject to the "Ordnance and Admiralty Lands Act," and this might be of importance to the defendants even if the judgment appealed from were upheld since the Act reserves special privileges to persons in actual occupation of such lands with the assent of the Crown. With this, however, we are not immediately concerned.
The Crown permitted the defendants or their predecessors in title to remain in undisturbed possession for fifty-eight years before taking action in 1890 and took no steps to enforce the judgment then obtained during the ensuing twenty-four years. During this long lapse of time all parties concerned have died. The form of government of the country has been repeatedly changed, and the then newly founded and insignificant By-town has become a great city, the capital of the Dominion of Canada. Under these circumstances, I think the courts need not hesitate to require the strictest proof of a claim to oust the defendants. Failing this, I think substantial as well as legal justice will have been done by leaving them undisturbed in the possession which they have so long held.
This is a case in which we may recall what the Privy Council has said concerning the difference in the relation between the Crown and the subject in this and in older settled countries. Such long periods of time as those prescribed in the "Nullum Tempus Act" seem to consort more with the slowly altering conditions in the latter, than with those in a country which has witnessed such phenomenal changes as Canada during the past century. Without encroaching on the functions of the Legislature we may endeavour to mitigate the hardships of a rigorous enforcement of rules which change of time and place render oppressive.
Holding the view above stated it is not necessary for me to deal with other points raised at the trial and dealt with in the judgment of the learned judge of the Exchequer Court. The plaintiff not having proved title cannot recover judgment on the claim for possession of the lands. The appeal must be allowed and the action dismissed with costs.
Davies J.—Several questions arose out of this appeal which, I confess, I have had some difficulty in solving.
A copy of a plan of a portion of the Rideau Canal, dated in 1847,
shewing the boundaries as marked on the ground of the land belonging to the Ordnance at Bytown (Ottawa) and the part of lot C, Concession C, in the Township of Nepean taken from N. Sparks signed by Michael McDermott, C.E. and P.L.S., and also by the Lieutenant-Colonel and a number of officers of the Royal Engineers was apparently received in evidence at the trial, though objections were taken to its reception. A witness proved it to be a copy of the original plan on file in the Department of the Interior, Ottawa, Ordnance Branch, and I do not doubt it was properly received.
If properly in evidence, it would place beyond doubt the fact that the lands in question were part of the 60 feet around the basin and by-wash of the Rideau Canal.
The Ordnance stones X. Y. marked O. B. S. on the plan shew the by-wash to have extended to Rideau Street. There is no evidence whatever as to the date when these ordnance boundary stones were placed but they must have been so placed before the date of McDermott's plan, in 1847, and most probably before 1846, the date of the statute making clear what part of the canal and its adjuncts were retained by the . Crown.
But apart from that plan I agree with the learned trial judge that the oral evidence given at the trial with respect to the locus and the by-wash of the canal in conjunction with the several written acknowledgments of title made by the defendants and their predecessors in title sufficiently establish the title in the Crown to the locus in question.
After quoting part of the evidence given by John Little a witness in his 84th year, the learned judge concludes, and I agree with him, that "the by-wash" in question is
no doubt the creek which was referred to by this witness and the cottage in question would be erected on the 60 feet. The learned judge, after referring to and quoting the "Ordnance Vesting Act" of 1843, 7 Vict. ch. 11, providing for the restoration to the parties from whom they were taken of the lands taken for the Rideau Canal and afterwards found not to be required and the subsequent statute of 1846, ch. 42, 9 Vict., making clear what was intended by the previous Act of 1843, namely, that its provisions should be construed to apply to all the lands at By-town set out and taken from Nicholas Sparks, except
(1) So much thereof as was actually occupied as the site of the Rideau Canal, as originally excavated at the Sappers' Bridge and of the Basin and By-wash, as they stood at the passing of the Ordnance Vesting Act; excepting also:
(3) A tract of 60 feet around the said Basin and By-wash.
concludes
That the Basin and By-wash and the 200 feet along the canal and the 60 feet along the By-wash were retained by the Crown.
I do not think there can be any reasonable doubt of the correctness of this conclusion.
Once that conclusion of fact is reached there cannot remain any doubt as to the title of the Crown. The statute, 19 Vict. ch. 45, of the late Province of Canada passed in 1856, recites amongst other facts that
the Ordnance lands of this province consist at the time of the passing of this Act of the several lands, estates and property comprised in the two schedules to this Act,
and that Her Majesty had signified Her gracious intention (inter alia).
that all such of the lands and other real property comprised in the said part recited Act (7th Victoria) as are comprised in the second schedule to this Act annexed, and all title, estate and interest therein respectively, should be transferred from the said Principal Officers and become re-invested in the Crown, for the public uses of this Province.
The enacting clause of this Act carries out specifically the expressed intention of the recital and vests all the lands, etc., mentioned in the second schedule absolutely in Her Majesty for the benefit, uses and purposes of the province.
Amongst these lands so transferred from the principal officers of Her Majesty's Ordnance and vested in the Crown for the use of the province was the "Rideau and Ottawa Canals" and "adjuncts of the Canals."
I cannot doubt, therefore, that after the passage of this Act the by-wash, so called, of the Canal basin extending as far as Rideau Street and the reservation of 60 feet on each side of it being adjuncts of the canal were vested in the Crown for the use of the Province of Canada and were transferred by the "British North America Act" to the Dominion.
The Crown, therefore, may, under the evidence given and these statutes, be said to have proved title to the land sued for.
But the question at once arises out of the defence of over 60 years continuous possession set up by the defendants in themselves and their predecessors in title.
The fact of such continuous possession seems to have been sufficiently proved and would entitle the defendants to judgment, unless the acknowledgments of title made by them in their letters to the Honourable Hector Langevin, Minister of Public Works in 1871, the Honourable Alexander MacKenzie, Premier and Minister of Public Works in 1874 and to Sir John Macdonald, premier, in 1890, together with the judgment by default obtained by the Government on a writ of intrusion brought by the Crown for the recovery of these lands in 1890, together, or any one or more of them, operated as an interruption of such possession. I confess that upon this question I have had many doubts, not indeed as to the meaning and legal effect of these letters as an acknowledgment of title in the Crown, because I have no doubt whatever that they did so operate, but on the question whether such an acknowledgment is sufficient under the "Nullum Tempus Act" to interrupt a possession which the evidence shews was not as a fact interrupted.
The actual possession of the defendants and their predecessor in title was never interrupted. They remained in continuous possession for over the required sixty years and were never ousted nor disturbed by the Crown.
If it can be held that the provisions of the "Real Property Limitations Act" relating to acknowledgments of title and the effect of such acknowledgments extended to the Crown, and that the Crown could avail itself of such acknowledgments as interrupting defendants' possession of the lands, then the case for the Crown is made out, in my opinion, and the appeal should be dismissed.
I cannot, however, reach that conclusion. The "Nullum Tempus Act" does not contain any reference to acknowledgments of title as staying the running of the period of prescription, but it does provide that an interruption by entry and receipt of the rents and profits by the Crown shall stay the running of such period. It would seem a bold step for the Court to add yet another fact or incident to those the Nullum Tempus statute expressly mentions as interrupting possession against the Crown. After a good deal of hesitation I am unable to say that it should do so; and I agree with the argument that this section of the "Real Property Limitations Act" (now section 14 R.S.O. [1914] ch. 75) should not be construed as including adverse possession of Crown lands because that Act had no application to such possession, which is specifically dealt with by the "Nullum Tempus Act."
In the year 1902 the section of the "Real Property Limitations Act" providing for the effect of an acknowledgment in writing of the title of the person entitled to any land or rent by the person in possession was for the first time declared applicable to
rights of entry, distress or action asserted by or on behalf of His Majesty.
The letters of the defendants on which the Crown relies as such acknowledgment, were written years before that statute of 1902 (2 Edw. VII. ch. 1, sec. 18) was passed; and at the time it was passed the prescriptive period of sixty years of uninterrupted and continuous possession by the defendants and their predecessors in title had elapsed.
The statutory title of the defendants under the "Nullum Tempus Act" was therefore complete years before the legislation was passed in 1902, unless, of course, it is held that the provisions of the "Real Property Limitations Act" relating to acknowledgments before they were expressly made applicable to rights of entry or action by the Crown can be invoked by the Crown. As I have already said, I incline to the opinion they cannot be so invoked. Nor can I construe the legislation of 1902 as having a retrospective operation upon possession which had already ripened into and become a statutory title. Whatever may be said in favour of a retrospective operation being given to the legislation of 1902 with respect to the possession of land which had not ripened into a complete statutory title in the possessors or claimants, I cannot yield to the suggestion that it can have such a retrospective operation with respect to a possessory title which had so ripened.
It seems clear under the decided cases of In re Alison[8] and Sanders v. Sanders[9], that where a statutory title has once been acquired under the Statute of Limitations it cannot be defeated by any subsequent acknowledgment or even by any subsequent payments of rent unless these continue for such a period as creates a new statutory title.
The reasoning of the learned judges in these two cases in appeal would indicate that the statutory title so gained was, as stated by Jessel M.R.
a complete title which extinguished the other.
Assuming that to be so, then it would seem most unreasonable to give a retroactive effect to the statute of 1902 which would operate to destroy a complete statutory title gained years before, and resurrect an extinguished one. That certainly goes to destroy the argument that the statute is one relating to procedure only.
Then as to the effect of the recovery of the default judgment by the Crown before the prescriptive period had elapsed but notwithstanding which the defendants continued in possession and were not dispossessed I have also entertained some doubts.
I cannot find any direct authority which gives a different effect to a judgment recovered by the Crown on a writ of intrusion from that recovered in an ordinary ejectment between subject and subject, or which indicates that the former had the effect of interrupting the defendants' possession while the latter admittedly has not. The best consideration I have been able to give the question leads me in the absence of authority to the conclusion that the mere obtaining of a judgment against the defendant on a writ of intrusion without further action dispossessing the defendant does not operate to interrupt the defendant's possession and that to do so there must be an actual dispossession under the judgment, or an attornment or payment of rent by the party in possession.
For these reasons, I concur in allowing the appeal.
Idington J.—The information of intrusion herein is answered by a general denial of all the facts alleged therein and of any title in the Crown or possession by it of any of the lands in question, and by an assertion of title in appellants and possession since the year 1832.
The respondent replies, amongst other things, that an information of intrusion was filed against a number of persons including predecessors in title of the appellants and judgment got by default for the possession of the lands in question and other lands in the year 1890.
The respondent put in evidence a certified copy of the proceedings in said case including the judgment for default of appearance awarding possession to the respondent.
The claim of the respondent is rested thereon and upon an alleged statutory title. His counsel by way of proving the identity of the land in dispute with part of the whole included in said proceedings, called a surveyor who testified, according to certain plans, filed subject to objection, that the lands in question fell within the description therein, and in the information of intrusion, upon which the judgment for recovery of possession had been awarded.
There was no evidence adduced relative to the actual survey on the ground or to the authenticity of the said plans so filed, or that any of them were based upon or practically identical with, or in fact formed part of the evidence necessary to maintain the alleged statutory title (if any) of the respondent to the lands in question. That statutory title depends upon statutes which can only operate and be properly made effective by the production or proof of the documents therein referred to and especially the plan as that
of those (lands) marked and described as necessary for the said purposes on a certain plan lodged by the late Lt.-Colonel By of the Royal Engineers, the officer then employed in superintending the construction of the said canal, in the Office of the Surveyor-General of the said late Province and signed by the said Lt.-Col. By, and now filed in the office of Her Majesty's Surveyor-General for this Province.
We have in the record a plan evidently made in 1847, after all the said legislation now relied upon, and after the settlement between one Nicholas Sparks and those acting for the Crown. We are asked to act upon this plan. But why? I am puzzled to understand, for the plan which the Legislature proceeded upon was that of Lt.-Col. By, thus referred to.
There is nothing I can discover identifying this plan in 1847 with said plan certified by Lt.-Col. By, which assuredly should be taken as the guide determining what land respondent might claim herein.
As already pointed out there is nothing in evidence identifying the work on the ground with that of Lt.-Col. By or his plan.
The case was evidently launched by the officers of the Crown in reliance solely upon the force and effect to be given the said judgment, for everything else seems to have been ignored.
Even the acknowledgment upon which the learned trial judge rests his judgment, was evidently considered of as little importance as I attach to it, for reasons to be assigned presently. The counsel for the Crown at the trial after presenting the certified copy of the judgment, introduced it and other material thus:—
The only other evidence I have is the evidence that was taken on discovery. I do not know whether your lordship has looked at that.
*****
Mr. Hogg:—There are one or two letters or petitions that are attached to this ancient fyle that I would put in, merely to shew the relations that were existing between the government and these people at that time.
The learned trial judge found himself unable to attach the importance counsel for the Crown evidently had attached to the said judgment and the effect thereof.
He therefore accepted as an answer to the claim of continuous possession for sixty years, the following alleged acknowledgment in writing:—
Ottawa City,
17th October, 1871.
Sir,—We the undersigned (being sisters) beg to inform you that having understood that the small property or lot situated on the Southern side of Rideau Street and adjoining the Bywash (leading from the Canal), on the west side of it, on which there is a wooden building, has been applied for by the St. George's Society for the purpose of erecting a Hall thereon. We would hope that the same might not be sold, as we consider our right to it cannot be alienated from the length of time said lot has been possessed by our family, namely, 39 years. Our father, the late James Cousens, in his lifetime settled upon this lot, in 1832, with permission of the Ordnance Department; our mother outlived our father and resided upon this property for a number of years and at her decease bequeathed it to us, and we have continued upon it ever since our father's name was entered upon the books of the department at the time of his settling down here which was then called By-town, these facts are known to many of the citizens.
The corporation taxes levied from time to time have been duly paid all along to this date, and we most urgently and respectfully solicit that the aforesaid lot be sold to us, as we consider we have the prior right and are willing to pay any reasonable amount for a deed of the same.
We remain,
Your most obedient servants,
Susan Cousens.
Sarah Cousens.
Hon. H. L. Langevin, C.B. Even if the only statute invoked by the appellants had contained a provision excepting its application and operation in the case of such acknowledgments in writing as are given effect to by many statutes of limitation, I should much doubt the efficacy of this writing which clearly points to some agreement or grant conditionally binding the Crown, in honour at least, to give the ancestor of the signers a right to purchase at some price to be fixed, and which has never been fixed, and appeals to a record in the department at the time of "his settling down here" which I take it means; upon the lands in question.
I asked in the course of the argument if any inquiry or search had been made relative to said entry or record of the import thereof, and was answered by counsel on either side that no such search or inquiry had been made.
If respondent ever seriously intended to rely upon this or other letters as acknowledgments falling within any conceivable exception to the operation of the statute we should have been told in evidence what the official relation respectively was, of each of those to whom such letters were addressed, to the land in question so that thereby we might have been enabled to understand how either one of them could be held an agent of respondent to receive such letters of acknowledgment.
I should be loathe to attach much (if any) importance to such a document without the fullest information at least on the part of the Crown relative to the import of what such a claim as made therein implied, and how it could be treated as an acknowledgment taking away the rights acquired by the statute.
There are in the record two other letters from one of the same parties, and a descendant, and others, addressed respectively in 1874 and 1890 to the Premier of Canada for the time being, upon the question. Strange to say there does not appear according to the record to have been any reply made to any of these letters.
It is to me inconceivable that these several letters should go unanswered and if answered that there is no copy of record of reply thereto.
The only reason I can assign for the non-production of the replies, is that counsel did not think it conceivable at the trial that the Crown could properly rest its case upon either that I have quoted, or the others I refer to.
With the greatest respect for the learned trial judge I am unable to give that effect which he has given to the letter above quoted.
I understand how easy it would be for him and those arguing, accustomed to the consideration of acknowledgments as a usual part of statutes of limitations, to overlook the fact that their utility in the way of answering any statute of limitation is dependent upon whether or not the statute of limitations in question has made any acknowledgment a bar to the operation of the statute or an exception therefrom.
The statute invoked in this case is the "Nullum Tempus Act" of 1769, 9 Geo. III. ch. 16, of which the first part of the first section thereof seems in itself complete, and reads as follows:—
Whereas an Act of Parliament was made and passed in the Twenty-first year of the Reign of King James the First, intituled, An Act for the general Quiet of the Subjects against all Pretences of Concealment whatsoever; and thereby the Right and Title of the King, His Heirs and Successors, in and to all Manors, Lands, Tenements, Tythes, and Hereditaments (except Liberties and Franchises) were limited to Sixty years next before the Beginning of the said Session of Parliament; and other Provisions and Regulations were therein made, for securing to all His Majesty's Subjects the free and quiet enjoyment of all Manors, Lands, and Hereditaments, which they, or those under whom they claimed, respectively had held, or enjoyed, or whereof they had taken the Rents, Revenues, Issues, or Profits, for the Space of Sixty Years next before the Beginning of the said Session of Parliament: And whereas the said Act is now by Efflux of Time, become ineffectual to answer the good End and Purpose of securing the general Quiet of the Subject against all Pretences of Concealment whatsoever: Wherefore be it enacted by the King's Most Excellent Majesty, by and with the Assent and Consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, That the King's Majesty, His Heirs, or Successors, shall not at any Time hereafter, sue, impeach, question, or implead, any Person or Persons, Bodies Politick or Corporate, for or in anywise concerning any Manors, Lands, Tenements, Rents, Tythes, or Herditaments whatsoever (other than Liberties or Franchises) or for or in any wise concerning the Revenues, Issues, or Profits thereof, or make any Title, Claim, Challenge, or Demand, of, in, or to the same, or any of them, by reason of any Right or Title which hath not first accrued and grown, or which shall not hereafter first accrue and grow, within the Space of Sixty Years next before the filing, issuing, or commencing, of every such Action, Bill, Plaint, Information, Commission, or other Suit or Proceeding, as shall at any Time or Times hereafter be filed, issued or commenced for recovering the same, or in respect thereof; unless His Majesty, or some of His Progenitors, Predecessors, or Ancestors, Heirs, or Successors, or some other Person or Persons, Bodies Politick or Corporate, under whom His Majesty, His Heirs, or Successors, any Thing hath or lawfully claimeth, or shall have or lawfully claim, have or shall have been answered by Force and Virtue of any uch Right or Title to the same, the Rents, Issues, or Profits thereof, or the Rents, Issues, or Profits of any Honour, Manor, or other Hereditament, whereof the Premises in Question shall be Part or Parcel, within the said Space of Sixty Years; and that the same have or shall have been duly in charge to His Majesty, or some of His Progenitors, Predecessors, or Ancestors, Heirs, or Successors, or have or shall stood insuper of Record within the said Space of Sixty Years.
There would seem no exception to this taking away of any right of action except those specified therein of which neither such like acknowledgment as relied upon nor any former action for mere recovery of possession is one.
The judgment in question was merely for possession and nothing else was prayed for except the costs of suit. It was entered 14th April, 1890, and a writ of hab. fac. pos. was issued thereon the same d