Attorney General for Manitoba v. Attorney General for Canada

Attorney General for Manitoba v. Attorney General for Canada
Collection
Supreme Court Judgments
Date
1904-02-16
Report
(1904) 34 SCR 287
Judges
Taschereau, Henri-Elzéar; Girouard, Désiré; Davies, Louis Henry; Nesbitt, Wallace; Killam, Albert Clements
On appeal from
Federal Court of Appeal
Subjects
Property law
Decision Content
Supreme Court of Canada
Attorney General for Canada v. Attorney General for Canada (1904) 34 SCR 287
Date: 1904-02-16
The Attorney General for Manitoba (Plaintiff)
Appellant
And
The Attorney General for Canada (Defendant)
Respondent
1903: Nov. 30; 1904: Feb. 16.
Present:—-Sir Elzéar Taschereau C.J. and Girouard, Davies, Nesbitt and Killam JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Grown lands—Settlement of Manitoba claims—48 & 49 V. c. 50 (D.)—49 V. c. 38 (Man.)—Construction of statute—Title to lands—Operation of grant—Transfer in prœsenti—Condition precedent—Ascertainment and identification of swamp lands—Revenues and emblements—Constitutional law.
The first section of the "Act for the final Settlement of the Claims of the Province of Manitoba on the Dominion" (48 & 49 Vict. ch. 50) enacts that "all Crown Lands in Manitoba which may be shewn, to the satisfaction of the Dominion Government, to be swamp lands shall be transferred to the province and enure wholly to its benefit and uses."
Held, affirming the judgment appealed from (8 Ex. C. R. 337) Girouard and Killam JJ. dissenting, that the operation of the statutory conveyance in favour of the Province of Manitoba was suspended until such time or times as the lands in question were ascertained and identified as swamp lands and transferred as such by order of the Governor-General-in-Council, and that, in the meantime, the Government of Canada remained entitled to their administration and the revenues derived therefrom ensured wholly to the benefit and use of the Dominion.
Appeal from the judgment of the Exchequer Court of Canada[1] dismissing the plaintiff's action with costs.
The action was by statement of a claim made, on behalf of the Province of Manitoba, that on the proper construction of the "Act for the final Settlement of the Claims of the Province of Manitoba on the Dominion,"[2] that province was entitled, as of right, to all the surface rights, hereditaments, timber, wood, hay and emblements upon and appertaining to all Crown lands in Manitoba which might, at any time, be shewn to the satisfaction of the Dominion Government to be swamp lands pursuant to the above mentioned statute and to various orders-in-council in relation to the selection and identification of the lands in question, and that the province was also entitled to certain moneys received by the Government of Canada through sales of the timber, wood, hay and emblements of the said lands, since the 20th day of July, 1885, (date of the assent to the statute,) with interest, subject only to the costs of administration and collection of revenues., The contention on the part of the Government of Canada was that the statutory grant took effect only on the happening of the event of Crown lands in Manitoba being shewn, to the satisfaction of the Dominion Government, to be swamp lands and such lands, so ascertained, being identified and transferred to the province as such in the usual manner, by orderin-council, and that, until such transfer, the revenues from the lands in question enured wholly to the benefit and use of the Dominion of Canada.
In relation to the selection and transfer of the lands in question, an order by the Governor-General-in-Council was passed, on 19th June, 1896, as follows:
"On a Memorandum dated 14th May, 1886, from the Minister of the Interior, representing that it is expedient to settle the method to be adopted of making a selection of the swamp lands to be granted to the Government of the Province of Manitoba, under the Act passed in that behalf at the session of Parliament held in 1885 (48 & 49 Vict. ch. 50, sec. 1). The Minister observes that section 3 of chapter 84 of the "United States Statutes at Large," part 1, Public Laws 1845-1851, contains a provision having reference to the selection of swamp lands to be granted to certain states of the Union, which reads as follows: 'All legal subdivisions, the greater part of which are subject to overflow and thereby rendered unfit for cultivation, shall be included in the list, but when the greater part of a sub-division is not of that character, the whole of it shall be excluded therefrom; (the legal sub-division in the United States' system of survey, as in the Canadian, consists of forty acres.) That the definition seems a fairly good one and would apply to the case now under consideration and he, the Minister, recommends that it be adopted as applicable to the lands to be selected for the purpose of being granted to the Province of Manitoba, under the provisions of the Act 48 & 49 Vict. ch. 50, sec 1, hereinbefore referred to.
"The Minister further observes that the United States' statute provides that the selection shall be subject to the approval of the Secretary of the Treasury; and the lands to be selected shall be such as are not held or claimed by individuals; that the selection shall be made by surveyors appointed for that purpose by the United States; that the expense of the selection shall be defrayed by the states interested; and that the lists and surveys, where surveys are necessary, shall also be made at the expense of the states interested.
"The Minister recommends that the selection necessary to make the grant to the Province of Manitoba shall be made by two surveyors, appointed for that purpose by the Minister of the Interior; that the two surveyors so appointed shall be paid, and the other expenses incident to the selection defrayed, by the Province of Manitoba; that the lands to be selected shall be swamp lands according to the definition hereinbefore recommended for adoption, and shall consist of unoccupied and unclaimed lands at the disposal of the Government of Canada; that the selection shall not commence to be made before the 20th of May in any one year and that whatever portion of such work is not completed by the 1st of October in the said year shall remain in abeyance until after the 20th of May in another year, and so on until the selection has been completed.
"That the surveyors, appointed as hereinbefore provided, shall report from time to time to the Minister of the Interior, until the whole grant to which the Government of Manitoba is entitled under the said Act 48 & 49 Vict. ch. 50, sec. 1, has been made up, and they shall furnish lists of the lands selected by them, and the said lists shall be subject to the approval of the Governor-in-Council upon reports made from time to time by the Minister of the Interior; and the signification in writing to the Lieutenant-Governor of Manitoba of the approval of such lists by His Excellency shall operate to vest the title in the lands described in the said lists in Her Majesty for the purposes of the Province of Manitoba.
"The committee concur in the foregoing report of the Minister of the Interior and the recommendations therein made, and they advise that the requisite authority be granted to carry the same into effect."
On the 16 April, 1888, the Minister of the Interior reported that the surveyors appointed for the purposes mentioned in the foregoing order-in-council had made a joint report on 16th Feb., 1888, submitting a revised and corrected list of certain lands selected by them as "swamp lands" for approval in accordance with the terms of the order-in-council, and the Governor-General-in-Council, thereupon, under the provisions of the satute, 48 & 49 Vict., ch. 50, ordered that the lands mentioned in said list should be and become "vested in Her Majesty for the purposes of the Province of Manitoba." Subsequently other lands selected as "swamp lands" in like manner were transferred to the provincial government.
The defendant for the purposes of the suit admitted that: (1) Certain Crown lands in Manitoba were, in pursuance of 48 & 49 Vict., ch. 50, sec. 1, shewn to the satisfaction of the Dominion Government to be swamp lands and transferred to the province accordingly: (2) Between the 20th July, 1885, when the said Act received assent, and the various dates when the above mentioned transfers were made to the province, the Dominion Government received certain sums of money produced by the sale of timber, hay and other emblements off some of the said lands so transferred as aforesaid: (3) The Government of the Dominion has retained such sums of money to the use of the Crown for the purposes of the Dominion of Canada.
By the judgment appealed from[3] the Exchequer Court of Canada decided in favour of the defendant and the present appeal is asserted on behalf of the Province of Manitoba.
Daly K.C. and J. Travers Lewis for the appellant. To fully appreciate the question reference should be made to the orders-in-council passed prior to 48 & 49 Vict. ch. 50, and to the debates which took place in the House of Commons. The appellant craves leave to refer to these orders-in-council and debates, as found in "Hansard," because this is merely a controversy between the Crown, as represented in one right by the Dominion, and in the other by the Province of Manitoba, and not between subject and subject. The question in controversy concerns land vested in the Crown. No subject of the Crown is a party to this action; and, for these reasons, counsel should be permitted to refer to these orders-in-council in the "Hansard" debates.
It clearly appears, from the reference to and quotations made from the statutes of the United States, in the orders-in-council of 19th June, 1886, that it was the express intention and desire of the Government of Canada to pursue the same "policy" towards Manitoba in reference to these swamp lands that the Government of the United States had pursued towards the Western States of the Union, that Canada was to adopt the "American system," in dealing with the swamp lands in Manitoba. There were good reasons for this. The United States statute was passed in 1850. Numerous controversies had arisen in connection with the selection and administration of swamp lands, and valuable precedents were thus available, to which the Government might have reference in dealing with the lands. The physical features were similar and the system of surveys in the states affected is identical with the Dominion Lands surveys in Manitoba.
In the Act of Congress, granting the swamp lands to Arkansas and other states, the words "that there be and is hereby granted" are used in the enacting clause. These and other words of similar purport were advisedly omitted from the first section of the Dominion Act, as it was not necessary to use operative words of grant. See The Queen v. Farwell[4]; Attorney-General for British Columbia v. The Attorney-General for Canada[5].
The words "shall be transferred to the province and enure wholly to its benefit and uses," in the Act of 1885, have the same force and operative effect as the words, "that there be and is hereby granted," in the United States statutes, and, consequently, amounted to a grant in prœsenti, of all "swamp lands" in the Province of Manitoba to the province, subject only to the Dominion Government being satisfied as to the character of lands. The lands passed to Manitoba on the day when the Act was assented to. The title became perfected when the lands were identified and vested by orders-in-council, the latter merely giving precision to the title. A statute amounting to a present grant does not require the formalities required in an ordinary grant of land to make it effective. Rutherford v Greene's Heirs[6]; Lessieur etal v. Price[7] at page 76 per Catron J.; Railroad Co. v. Freemont County[8]; Railroad Co. v. Smith[9]; Schulenberg v. Harriman[10]; Missouri K. T. Railway Co. v. Kansas Pacific Railway Co.[11].
The title to the lands remaining in the province, and the lumber and hay cut upon the land, as well as any other emblements, belong to the province.
In Langdeau v. Hanes[12] Field J. held (p. 530) that a legislative confirmation of a claim to land was a recognition of the validity of the claim, and operated as effectually as a grant or quitclaim and that the title there questioned was perfect long before the issue of a patent. French v. Fyan[13] follows the same construction as to the grant in prœsenti. In Wright v. Roseberry[14] Field J. held that the grant of swamp lands to the several states was one in prœsenti passing title to the lands from the date of the Act and requiring only identification to render title perfect. In San Francisco Sav. Union v. Irwin[15] Field, J, held it to be a grant in prœsenti, to each state then in the Union, of lands situated within its limits of the quality described, which could not be defeated, nor impaired, by the delay or refusal to have the list made and patent issued. See also Southern Pacific Railroad Co. v. Orton[16] at page 479; Railroad Co. v. Baldwin[17] at page 429; Leavenworth L. & G. Railroad Co. v. United States[18]; Denny v. Dodson[19].
If this contention prevails, and the grant to Manitoba be held to have been a present grant, operating as an immediate transfer of the lands afterwards shewn to be swamp lands, then, from and after the 20th July, 1885, Manitoba became and was entitled to all income and profits derived from said lands, and, consequently, the Dominion Government should account to Manitoba therefor. The Act of 1885 does not contain any reservation of exception in favour of the Dominion. The grant is absolute and Manitoba should enjoy the same relationship to the Dominion as an ordinary purchaser; the rules between vendor and purchaser should apply. See Leake's Uses and Profits of Land, p. 29; Dart's Vendors and Purchasers (6 ed.) p. 611. The grantor cannot derogate from his own absolute grant, so as to claim rights over the thing granted. Suffield v. Brown[20], per Westbury L. J. at page 190; Wheeldon v. Burrows[21], at page 42; Crossley & Sons v. Lightowler[22]; at page 486; Russell v. Watts[23], at page 572.
Manitoba contends that, from and after the 20th July, 1885, the Dominion was a trustee in the premises. There was an implied trust created by the Act and the ordinary equitable rules as between subject and subject should apply. Perry on Trusts (5 ed.) sec. 30. The Crown may be a trustee; Canada Central Ry. Co. v. The Queen[24]; Lewin on Trusts (10 ed.) 68, 153; Acland v. Gaisford[25] at page 32; Wilson v. Clapham[26]; Ferguson v. Tadman[27]. If the settlor proposes to convert himself into a trustee, then the trust is perfectly created; and whenever a person, having a power of disposition over property, manifests any intention with reference to it in favour of another, the court, when there is a sufficient consideration, will execute that intention through the medium of a trust, however informal the language in which it happens to be expressed. Holroyd v. Marshall[28], per Westbury L. J. at page 209. The Dominion, being trustee for Manitoba, has no right to retain the profits of these lands. No trustee can derive a profit from the exercise of his office, or derive any personal advantage from the trust property Lewin on Trusts (10 ed.) 296, 328; Wightwick v. Lord[29]; Heathcote v, Hulme[30], at page 131. We cite also Williams on Real Property (19 ed.) 171; Washburn Real Property, (ed. 1902) vol. ii. secs. 1441—2, 1150, 1501; Aberdeen Town Council v. Aberdeen University[31].
Turning once more to the statute, even the marginal note to the section in question reads: "Swamp lands to belong to the province;" Sheffield Waterworks Co. v. Rennet[32], at p. 421; Venour v. Sellon[33]; and it is to be observed that by sec 7 it is provided that "the grants of land . . . authorized by the foregoing sections shall be on the condition that they be accepted by the province . . . as a full settlement of all claims made by the said province . . ." The expression deliberately used is "the grants of land." The statute did not, therefore, merely provide for a future transfer of the swamp lands, but itself characterized the consideration for the settlement of all provincial claims as statutory grants in prœsenti.
Newcombe K.C. for the respondent. The American cases cited by the appellant have no authority in this court; at best, they may be used only to support arguments. Besides, the Statute at Large, referred to, is, qua the point now in issue, essentially different from the Canadian Act, as will appear from a comparison of the two enactments.
There is a long series of decisions in the United States courts upon their statute of which it will be sufficient to mention the leading cases of Railroad Company v. Smith[34]; French v. Fyan[35]; Wright v. Roseberry[36]. In these cases it was held that the plain and indisputable grant made by the words in section 1, must be considered to govern the whole statute which was a grant in prœsenti and this notwithstanding the very strong grounds for negativing such a construction contained in the provisions of section 2. Were it not for the express grant in section 1, it would seem that none of the courts would have been disposed to favour such an interpretation for we find that, notwithstanding the distinct terms of grant in section 1, Mr. Justice Clifford of the Supreme Court in the case of Railroad Company v. Smith (1) dissented from the judgment of the court. There are also judgments in opposite sense in the United States. See Thompson v. Prince[37], where, though overruled in Keller v. Brickey[38], Mr. Justice Scott adhered to his opinion given in the former case. In the Canadian Act there is absolutely no grant nor anything equivalant to a grant and nothing from which an intention to make one could be inferred. It has been suggested that it was the intention of the Dominion Government to follow the course of the United States Congress in assigning swamp lands in the State of Arkansas and other states to the Government of such states, and the official debates of the House of Commons have been cited. There is nothing in the official debates to support this contention. It appears, on the contrary, from several passages, that the Dominion Government understood that the swamp lands would not be transferred to the province until they had been shewn to the satisfaction of the Dominion Government to be such. See debate on the bill reported in the official debates, 1885, vol. II, at page 2794.
The swamp lands which, until the passing of the statute, were undoubtedly vested in the Crown in right of the Dominion remained vested in the Crown after any transfer under the Act. The only change, therefore, is that, after transfer, they enure to the benefit of the province. There is in this Act nothing but a direction that, after the happening of a future event, viz., the lands having been shewn to be swamp lands, they shall be transferred to the provincial administration. If any lands which are swamp lands are never shewn, to the satisfaction of the Dominion Government, to be such, they will never be transferred.
As will be seen by section 2 of the United States statutes it is the duty of the Secretary of the Interior to take the initiative in the necessary proceedings for ascertaining the lands to be granted and for completion of the conveyance. By the Canadian statutes no such duty is imposed upon the Dominion Government. All that is provided is that the "lands which may be shewn to the satisfaction of the Dominion Government to be swamp lands shall be transferred."
The method actually adopted for determining which were swamp lands to be transferred is shewn by the order-in-council. It would seem that the Minister of the Interior somewhat gratuitously accepted the task of ascertaining what were swamp lands which would come under the operation of the statute. How, exactly, the transfer was carried out does not appear to be material. The Act has provided that the lands shall be transferred and the order-in-council is sufficient evidence that all requisite preliminaries have been carried out and the transfer duly completed.
The respondent refers to Thompson v. Prince[39]; Keller v. Brickey[40]; Rutherford v. Greene's Heirs[41]; The Queen v. Farwell[42]; Railroad Company v. Smith[43].
THE CHIEF JUSTICE.—I would dismiss this appeal.
The appellant contends that this statute should be read as if it enacted an actual and unconditional grant of the swamp lands in question in favour of Manitoba. Now, upon the very wording of the statute, that contention cannot prevail. The grant is conditional. It takes effect only if there are any swamp lands, and so, necessarily, only when it has been ascertained if there are any, and where they are. Shall be transferred when ascertained to be swamp lands cannot mean are transferred in prœsenti.
The statute does not say "are transferred," simply because parliament did not intend to transfer the title in prœsenti. The words are plain, and cannot receive the forced construction for which the appellant contends. I agree in my brother Davies' reasoning and conclusions,
GIROUARD J. (dissenting).—The first section of chapter 50 of 48 & 49 Vict. enacted on the 20th July, 1885, by the Parliament of Canada,
An Act for the final Settlement of the Claims of the Province of Manitoha on the Dominion,
provides that
all Crown lands in Manitoba which may be shewn to the satisfaction of the Dominion Government to be swamp lands, shall be transferred to the province and enure wholly to its benefit and uses.
It is re-enacted almost word for word in section four of chapter 47 of the Revised Statutes of Canada, 1886, with a slight variation which I believe is of no importance. The words "which may be shewn," etc., are replaced by the following: "which are shewn, etc."
Section two provides for "an allotment of land," etc., which
shall be selected by the Dominion Government and granted as an endowment to the University of Manitoba,
founded a few years previously.
By sections three and five, a certain annual pecuniary indemnity, "for the want of public lands" is increased to $100,000 such increase to date from the 1st July, 1885.
Sections four and six authorize the advance of certain sums of money and the re-adjustment of the yearly or semi-yearly subsidies and allowances to be calculated also from the 1st July, 1885. Doubts having arisen as to the true construction of section six an interpretation Act was passed during the following session of 1886, which affects only the money payments.
Clause seven provides that
the grants of land and payments authorized by the foregoing sections shall be made on the condition that they be accepted by the province (such acceptance being certified by an Act of the Legislature of Manitoba) as a full settlement of all claims made by the said province for the reimbursement of costs incurred in the government of the disputed territory, or the reference of the boundary question to the Judicial Committee of the Privy Council, and all other questions and claims discussed between the Dominion and the Provincial Government, up to the tenth day of January, one thousand eight hundred and eighty-five.
On the 26th May, 1886, by 49 Vict. ch. 38, sea 1, the Legislature of Manitoba passed the following acceptance:
The Legislature of the Province of Manitoba accepts the grants and payments as authorized and construed by the above recited Acts as a full settlement of all claims by the said Province upon the Dominion, as therein set forth, up to the tenth day of January, one thousand eight hundred and eighty-five.
The Dominion statute does not provide for any means or method of selecting these swamp lands "to the satisfaction of the Dominion Government evidently this was considered to be a mere matter of administration and left to the action of the Dominion Government. It was eventually settled by an order-incouncil of the 19th June, 1886. The order-in-council recites that it is expedient to make "a selection of the swamp lands to be granted" to Manitoba, provides for the appointment of two surveyors or commissioners by the Minister of the Interior, who are empowered to select the lands in the manner indicated in the American statutes relating to the grant of federal swamp lands (which is recited in the order-in-council), and to furnish from time to time lists of the lands so selected, the whole at the expense of Manitoba, and finally declares that
the signification in writing to the Lieutenant Governor of Manitoba of the approval of such lists by His Excellency shall operate to vest the title in the lands described in the said lists in Her Majesty for the purposes of the Province of Manitoba. Of course anything in this or any order-in-council contrary to the statute is ultra vires.
The surveyors proceeded with their work (which is yet unfinished) and reported lists from time to time which were duly transmitted to Manitoba with the approbation of His Excellency. In these orders in Council the Canadian Government declares
that the lands mentioned in the said annexed list * * * be and the same are hereby vested in Her Majesty for the purposes of the Province of Manitoba.
The appellant contends that all Crown lands in Manitoba shown at any time to the satisfaction of the Dominion Government to be Crown swamp lands, became from the date of the passing of said Act the property of Manitoba, including all surface rights, timber, hay crops, baser metals and all other territorial revenues derived from the said lands on and after the 20th July, 1885, the date of the passing of the statute, after deducting costs and charges which the department of the Interior incurred in administering the said lands By his action he demands that an account be taken and payment be ordered.
The question is whether section one of the Canadian statute constitutes a transfer in prœsenti of the swamp lands or whether it is a grant stipulated to take effect only on and at the time of the happening of a future event, viz., the selection of the lands to the satisfaction of the Dominion Government as swamp lands.
The court below held that this transfer dates only from the orders-in-council. Mr. Justice Burbidge remarks:
The statute provides that all Crown lands in Manitoba which may be or (as enacted in the Revised Statutes) are shown to the satisfaction of the Dominion Government to be swamp lands shall be transferred to the province and enure wholly to its benefits and uses. But when shall such lands enure to the benefits and uses of the province? The answer, it seems to me, must be, when they have been shewn to the satisfaction of the Dominion Government to be swamp lands and have been transferred; and until they are so transferred the Government of Canada have, I think, not only the right to administer such lands, which, as has been said, is not disputed, but also the right to take the revenues arising therefrom to the use of the Dominion.
With due deference, it seems to me that this argument goes to the delivery and actual possession of the lands and not to the title or transfer which is in the statute.
The appellant has referred us to several American decisions rendered in interpretation of a statute (U. S. Statutes at Large, vol. 9, 519, [1850], respecting swamp lands) similar in many respects to the one under consideration, but apparently very different as to clause one. The language of the American statute is "that there be and is hereby granted to the State of," etc., the swamp lands intended to be conveyed. The expression in the American statute "hereby," that is by means of this, leaves little room for doubt that a transfer in prœsenti was contemplated by Congress, and for this reason I consider that the numerous American decisions defining the nature of the grant under that statute are of little value in the determination of the meaning of clause one of the Canadian Act.
Other American decisions, however, are quoted by the appellant which seem to me to be quite in point. They were rendered in interpretation of legislative land grants worded in the very language of our Canadian statute. The oldest and leading case is undoubtedly Rutherford v. Greene's Heirs,[44] decided in 1811 by the Supreme Court of the United States when that high tribunal was presided over by one of the greatest jurists of modern times, Chief Justice Marshall. Almost every word of his elaborate judgment applies to the case before us, and I cannot do better than reproduce part of it in support of the view I take of the question. Referring to an Act passed in 1782 by the State of North Carolina "for the relief of the officers and soldiers of the continental line and for other purposes therein mentioned," the eminent judge says:—
The 10th section enacts: "that 25,000 acres of land shall be allotted for, and given to, Major General Nathaniel Greene, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by the aforesaid commissioners, as a mark of the high sense this state entertains of the extraordinary services of that brave and gallant officer."
This is the foundation of the title of the appellees.
On the part of the appellant it is contended that these words give nothing. They are in the future, not in the present tense, and indicate an intention to give in future, but create no present obligation on the state, nor present interest in General Greene. The court thinks differently. The words are words of absolute donation, not indeed of any specific land, but of 25,000 acres in the territory set apart for the officers and soldiers.
"Be it enacted that 25,000 acres of land shall be allotted for and given to Major General Nathaniel Greene." Persons had been appointed in a previous section to make particular allotments for individuals, out of this large territory reserved, and the words of this section contain a positive mandate to them to set apart 25,000 acres for General Greene. As the act was to be performed in future, the words directing it are necessarily in the future tense.
"Twenty-five thousand acres of land shall be allotted for, and given to Major General Nathaniel Greene." Given when? The answer is unavoidable—when they shall be allotted. Given how? Not by any future act,—for it is not the practice of the legislatures to enact that a law shall be passed by some future legislature,—but given by force of this Act.
It is suggested that the answer to the question, "Given when?" indicates that a gift in prœsenti was not intended. Evidently here Chief Justice Marshall refers to the lands with metes and bounds. But the answer to the question: "Given how?" shews that the gift was created not by the operation of the allotment or survey but by force of the statute. This is made more clear from his following remarks:—
It has been said that to make this an operative gift, the words "are "hereby" should have been inserted before the word "given" so as to read, "shall be allotted for, and are hereby given to," &c. Were it even true that these words would make the gift more explicit, which is not admitted, it surely cannot be necessary now to say that the validity of a legislative act depends, in no degree, on its containing the technical terms used in a conveyance. Nothing can be more apparent than the intention of the legislature to order their commissioners to make the allotment, and to give the land when allotted to General Greene.
The 11th section authorizes the commissioners to appoint surveyors, for the purpose of surveying the lands given by the preceding sections of the law. In pursuance of the directions of this act, the commissioners allotted 25,000 acres of land to General Greene, and caused the track to be surveyed. The survey was returned to the office of the legislature on the 11th of March in the year 1783. The allotment and survey marked out the land given by the Act of 1782, and separated it from the general mass liable to appropriation by others. The general gift of 25,000 acres lying in the territory reserved for the officers and soldiers of the line of North Carolina, and now become a particular gift of the 25,000 acres, contained in this survey * * *
It is clearly and unanimously the opinion of this court that the Act of 1782 vested a title in General Greene to 25,000 acres of land, to be laid off within the bounds allotted to the officers and soldiers, and that the survey made in pursuance of that act, and returned in March, 1783, gave precision to that title and attached it to the land surveyed.
The soundness of this doctrine has never been questioned in any court of the American Union; on the contrary it has since been frequently reaffirmed by the United States Supreme Court, and more particularly in Lessieur v. Price[45]; Langdon v. Hanes[46]; Schulenberg v. Harriman[47]; Wright v. Roseberry[48].
American decisions, although not binding, have always been of great weight with English and Canadian courts in the absence of any jurisprudence of their own, as in this particular instance. See Niagara District Fruit Growers Stock Co. v. Walker[49]; Scaramanga & Co. v. Stamp[50]; Itter v. Howe[51]; Skillings v. Royal Ins. Co.[52], part 2; In re Missouri Steamship Co.[53]; Wells v. Gas Float Whitton No. 2[54].
The reasons advanced by Chief Justice Marshall commend themselves to my mind; they are convincing, and I have no hesitation in coming to the conclusion that the grant to the Province of Manitoba dates from the statute and not from the respective orders-in-Council.
Although we have no jurisprudence directly in point, yet it cannot be said that we are entirely without authority. In two well considered cases decided by this court a few years ago, I find dicta, propositions and principles which seem to agree with the American decisions. I refer to The Queen v. Farwell[55] and especially The Attorney General of British Columbia v. The Attorney General of Canada[56], as the latter went to the Judicial Committee of the Privy Council. As in this instance public lands had been granted by statute by one government to another in Canada for consideration; 1st, by the order-in-Council or Articles of Union (Art. 11) of British Columbia, agreed to in 1871 and having the force of an Imperial Statutute; 2ndly, by an Act of the British Columbia Legislature, 43 Vict. ch. 11, passed in 1880; and 3rdly, by another Act of the same legislature, 47 Vict. ch. 14, section 2, passed in December, 1883, in substitution of 43 Vict. ch. 11. All three enactments purport to aid in the construction of a railway through the province, since built and known as the Canadian Pacific, and for that purpose grant to Canada in trust a large tract of public lands in British Columbia
along the line of the railway before mentioned wherever it may be finally located, to a width of twenty miles on each side of the line, as provided in the order in Council, section 11, admitting the Province of British Columbia into Confederation. (47 Vict. ch. 14. sec. 2.)
These public lands had never been surveyed, and even in 1883, when the last provincial statute was enacted in settlement of long pending difficulties and disputes between the two governments, the line of railway had been only partly located. The wording of the grant is not the same in all the enactments, although I am not prepared to admit that the meaning is different in any of them. Section 11 of the Articles of Union declares "that the Government of British Columbia agreed to convey to the Dominion Government, etc."; the Act 43 Vict. ch. 11 uses the expression "the lands being granted to the Dominion Government, etc."; and section 2 of 47 Vict. ch. 14, enacts that "there shall be and there is hereby granted to the Dominion Government," etc.
The Judicial Committee and this court, Henry J. dissenting, did not doubt that the grant was absolute and operated immediately. Judges were divided, not as' to the date of the grant, but only as to whether it included precious metals. The Judicial Committee seems to hold that a transfer of the lands, including territorial revenues, was made by force of the 11th Article of Union rather than by the subsequent provisions of the provincial statutes, the difference in language not being noticed by their Lordships, probably as of no importance in the determination of the point before them. They quote only the Article of Union as the origin or creation of the grant. A few extracts from the reports of the elaborate opinions delivered in all the courts will show that they are at least high authorities in the determination of the point before us. Mr. Justice Fournier who alone in the Supreme Court was of opinion that the grant did not include the precious metals, said:
Dans le traité, sec. 11, l'obligation est "to convey to Dominion Government, &c., &c., a similar extent of public lands," dans Pacte 43 Vict. ch. 11, "lands being granted to the Dominion for the purpose, &c., &c.", dans la 47 Vict. ch. 14 (Colombie), sec 2. "there shall be, and there is hereby granted to the Dominion Government, in trust, &c., &c., to be appropriated as the Dominion Government may deem advisable, the public lands along the line of the railway, &c., &c." Dans la sec. 7 de ce dernier acte les expressions sont: "There is hereby granted to the Dominion Government, three and a half million acres of land, &c, &c." On voit que dans toutes les expressions employées pour faire l'octroi, il n'en est pas une seule qui comporte l'idée qu'il y ait autre chose que la terre qui soit octroyée. Toutes les expressions sont claires, précises, n'accordant qu'une seule chose, la terre, et ne laissent aucune place au doute. (page 368.)'
And in The Queen v. Farwell[57], the eminent judge added:—
In the case of Attorney General of British Columbia v. Attorney General of Canada, p. 345, which was decided by this court yesterday, I had occasion to express my opinion upon the question of the ownership of the precious metals in these railway lands, but as regards the construction to be put upon the statute granting provincial lands in aid of the construction of the Canadian Pacific Railway, I think the expressions used are quite sufficient to convey the lands to the Dominion, and therefore Farwell's title from the Government of British Columbia is void; but I come to this conclusion with the reserve I made in the other case, that the conveyance does not cover the gold and silver mines. * * * (Page 428.)
Chief Justice Ritchie:—
It was a a statutory transfer or relinquishment by the Province of British Columbia of the right of that province in or to such public lands to the Dominion of Canada, to be managed, controlled and dealt with by the Dominion Government in as full and ample manner as the Provincial Government could have done had no such Act been passed * * * (Page 358).
Mr. Justice Taschereau concurred with Mr. Justice Gwynne. Mr. Justice Gwynne:—
This language of the 11th article of the treaty with reference to the transfer from British Columbia to the Dominion of Canada of this tract of land never could be literally complied with, that is to say that by no species of conveyance could the land be conveyed to the Dominion Government as grantees thereof. That Government, from the nature of the constitution of the Dominion, could not take lands by grant or otherwise, nor could it have the power of appropriation of the tract in question, otherwise than under the direction and control of the Parliament of Canada. When, therefore, as part of the terms upon which British Columbia was received into the Dominion, it was agreed that a tract of the public lands of the Province of British Columbia should be conveyed in such manner as to be subjected to being appropriated as the Dominion Government may deem advisable, what was intended plainly was, as it appears to me, that the beneficial interest which