Peters v. Sinclair

Peters v. Sinclair
Collection
Supreme Court Judgments
Date
1913-05-06
Report
(1913) 48 SCR 57
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Ontario
Subjects
Property law
Decision Content
Supreme Court of Canada
Peters v. Sinclair, (1913) 48 S.C.R. 57
Date: 1913-05-06
J. Henry Peters (Defendant) Appellant;
and
Angus Sinclair (Plaintiff) Respondent.
1913: April 11, 14; 1913: May 6.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Trespass—Easement—Public way—Dedication—User—Prescription—Estoppel—“Law and Transfer of Property Act,” R.S.O. 1897, c. 119.
S. brought action against P. for trespass on a strip of land called “Ancroft Place” which he claimed as his property and asked for damages and an injunction. “Ancroft Place” was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of “Ancroft Place” to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing “Ancroft Place” as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action “Ancroft Place” had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street. Held, further, Idington and Duff JJ. dissenting, that the land was not a “way, easement or appurtenance” to the lot to the north “held, used, occupied and enjoyed, or taken or known, as part and parcel thereof” within the meaning of sec. 12 of “The Law and Transfer of Property Act,” R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
Per DUFF J.—The facts established justify the inference that the original owners (Mr. and Mrs. Patrick) always entertained the design that the strip of land in question should be a street affording access to the adjoining parts of lot 22; that, accordingly, it had been surveyed and laid out as a street, on the ground, in 1884; that the sale to McCully, in 1887, proceeded on the footing that the land purchased by him was bounded to the south by a street and this was one of the elements of value determining the price he paid; that, thereafter, in accordance with the same design, Mrs. P. permitted the successive occupants of the lot bought by McC. to use this strip of land as of right for all the purposes of a street; that these occupants, acting as she intended they should and as the situation, created by her, naturally encouraged them to act, purchased and dealt with it upon the same footing as that upon which the sale to McC. took place: Consequently, the respondent is, on the principle of Piggott v. Stratton (1 DeG. F. & J. 33), as explained in Spicer v. Martin (14 App. Cas. 12), and of Cairncross v. Lorimer (3 Macq. 829); Oliver v. King (8 DeG. M. & G. 110); and Russell v. Watts (10 App. Cas. 590), precluded from disputing the right of the appellant to use “Ancroft Place” as a street.
Per DUFF J.—At the time of the sale to McC. the vendor was precluded from using Rachel Street for any purpose inconsistent with its character as a street and its sole value for her as a “street” or “way” was because of the means of access it afforded to the property sold. Its character as a way laid off for the accommodation, inter alia, of that property was palpable to everybody: as a way, therefore, it was as regards the vendor’s interest in it a “way * * * known or taken to be” an adjunct of the property sold and, as such, passed to the purchaser under the provisions of the “Law and Transfer of Property Act.”
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment at the trial[1] in favour of the plaintiff. The essential facts are stated in the above head-note.
W.N. Tilley and J.D. Montgomery for the appellant. The deed with the surveyor’s plan annexed established “Ancroft Place” as a way attached to the lands to the north and 50 Vict. ch. 25 (Ont.) respecting Land Surveyors and Surveys converted it into a public highway. Gooderham v. City of Toronto[2], at page 262. The land in question was a “way, easement or appurtenance” to the lot to the north of it “held, used, occupied and enjoyed, or taken or known, as part and parcel thereof” within the meaning of “The Law and Transfer of Property Act,” R.S.O. [1897] ch. 119.
The courts below did not give proper effect to the acts of dedication and acceptance proved at the trial and to the above legislation. See Attorney-General v. Antrobus[3], at page 207. Grand Trunk Railway Co. v. City of Toronto[4].
Ludwig K.C. for the respondent. It is clear that the use of “Ancroft Place” was not so necessary to the enjoyment of the land to the north as to pass with the conveyance. See Halsbury’s Laws of England, vol. 11, sec. 511; Prideaux on Conveyancing (2 ed.), pages 121‑2; Bell v. Golding[5].
There was no proof of intention to dedicate “Ancroft Place” to the public and it was not dedicated. See Robertson v. Meyer[6], at page 370, as to the inference from the placing of a gas lamp on the lane.
As to user see Webb v. Baldwin[7]. THE CHIEF JUSTICE.—This is an action brought for trespass. The defence was that the plaintiff was not the owner of the lands and premises in question, but on the contrary that the place where the trespass was alleged to have been committed was a public highway. The trial judge found in favour of the plaintiff, and his judgment was affirmed by the Court of Appeal.
The lane over which the appellant claims a right-of-way is a cul de sac, and eliminating the question of dedication which was not seriously argued, there is, it seems to me, very little difficulty about this case.
At the time the appellant’s property was sold to his predecessor in title, McCully, by Rachel Patrick, the latter held as owner all that part of lot No. 22 which had not been previously disposed of to Ellwell, Davis and Henderson, that is to say, she was still the owner of that portion of lot No. 22 or of those portions of that lot known in these proceedings as the McCully property and Ancroft Place. The latter was then burdened with a right-of-way, under the deed referred to, in favour of Davis, Ellwell and Henderson, but admittedly not in favour of the other portion of the same lot subsequently sold to McCully, and now the property of the appellant. Nor is there evidence to shew that, in fact, it was used by the owner or by others with her knowledge and consent as a roadway for the benefit of that adjoining property.
It is not easy for me to understand how of two adjoining properties owned and possessed by the same person one could be burdened in favour of the other with an easement of this kind except by some express act of the owner manifesting an intention to impose such a burden. I was much impressed at the argument by the terms of the deed to Henderson. There is no doubt that Mrs. Patrick, at the time that deed was passed, by an excess of precaution reserved to herself the right to give a passage over “Ancroft Place,” then her property, to whoever might subsequently buy that portion of lot No. 22 now owned by plaintiff, but she did not exercise that right, presumably because she was not asked to do it by McCully when he bought his property. Further, if a right of way then existed over “Ancroft Place” in favour of the balance of lot No. 22, now owned by appellant, why make that reservation? The description contained in McCully’s deed of sale, in my opinion, very clearly excludes “Ancroft Place” and, if at that time no right of way existed over it for the benefit of the property he bought, I do not understand where the foundation of the right now asserted can be found.
The statute is not intended to create a right, but merely to give effect to some right in existence at the time the deed of conveyance is made. The only easement that passed by virtue of the section of the Act relied on is an easement, “belonging or in anywise appertaining” to the land conveyed, that is to say, belonging or appertaining to the land at the date of the conveyance. All the judges below have found that no title had, at that time, been acquired by user to a right-of-way over “Ancroft Place,” and I cannot find in the evidence anything that would justify me in reversing the two courts below on this question of fact.
I would dismiss with costs.
DAVIES J.—The main questions involved in this appeal are, first, whether Helen McCully, the predeces- sor in title of the appellant as grantee under the conveyance from Rachel Patrick, dated 21st November, 1887, acquired a right-of-way over “Ancroft Place,” the fee simple title in which was vested in Rachel Patrick. This “Ancroft Place,” so called, was a cul-de-sac running off from Sherbourne Street in Toronto and lying immediately south of the lands conveyed as above to Helen McCully. Secondly, whether “Ancroft Place” was a public street?
I agree with the Court of Appeal and the trial judge that there was no reasonable evidence of dedication. I do not think the “Place” or way in question ever was a thoroughfare. It was merely a cul-de-sac for the convenience of a few property owners abutting on it on the south and east. In the deed given by the former owner, Mrs. Rachel Patrick, to Henderson in 1884 of one of the plots of land to the south and east of this “place” or “street,” there was granted to Henderson and his assigns a right-of-way
over and upon the said street fifty feet wide in common with the said Rachel Patrick, her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any portion of said lot 22 abutting on said street.
I think the object and purpose of this clause was to place beyond doubt the fact that the right‑of-way granted to Henderson was not to be an exclusive one but one to be used in common by him and Mrs. Patrick and those to whom she or her late husband had granted or might grant such a right.
It did not reserve to Rachel Patrick any rights over this lane or way which she did not have without it. The fee in the lane was in her. She did not grant Henderson an exclusive right‑of‑way but one in common with herself, and certain definite other persons her grantees. The clause neither enlarged nor abridged her rights over the lane, and I think the trial judge’s construction of its meaning a sound one and that it meant no more than reserving common rights in the way for those to whom she or her husband had granted or might grant them as grantees of the lands “abutting on the street.”
The deed or conveyance to the plaintiff’s predecessor in title, Helen McCully, did not either bound the lands conveyed to her on this “place,” “street,” or “lane,” nor did it use any language indicating any connection between the two or any right-of-way as existing or contemplated by the parties between the lands conveyed and the street or lane. The lands conveyed are expressed as being bounded on one side by Maple Avenue, on another side by Sherbourne Street; but “Ancroft Place” as a “way,” “street,” “place,” “lane” or otherwise is not mentioned or referred to.
I do not think there is any evidence of a dedication of the way or place to the public or of any acceptance of such a dedication by the municipality.
Mr. Tilley rested his case largely upon the contention that while the deed to Mrs. McCully made no reference to any right-of-way over the street or place which was called, as he said, Rachel Street, and had at one time a board with that name upon it affixed to one of its sides, still the deed must be construed by reference to and along with section 12 of the “Law and Transfer of Property Act,” R.S.O. ch. 119. His contention was that the deed plus this statute operated to convey to Mrs. McCully a right-of-way over this street, place or lane, as being within the words of the statute a way or easement “held, used, occupied and enjoyed and taken or known as part or parcel thereof.”
The fact that there was a visible road or lane existing along the south side of the lands conveyed to McCully and that access to and from such lands to the lane was at any rate possible and had been at times resorted to and used by the occupiers of these lands was pressed by Mr. Tilley. But these intermittent and casual users established no right and it would be a dangerous construction of the statute to hold that under the proved facts of this case it created and passed such a right-of-way as is contended for. The lane was not established for the benefit of these lands of the appellant. They were bounded by public streets on two sides and of course no way as of “necessity” could be contended for. In delivering judgment of the court in the case of Watts v. Kelson[8], at page 173, L.J. Mellish cites with approval the following sentence from the unanimous judgment of the Exchequer Chamber in Polden v. Bastard[9]:—
There is a distinction between easements, such as a right of way or easements used from time to time, and easements of necessity or continuous easements. The cases recognise this distinction, and it is clear law that, upon a severance of tenements, easements used as of necessity, or in their nature continuous, will pass by implication of law without any words of grant; but with regard to easements which are used from time to time only, they do not pass, unless the owner, by appropriate language, shews an intention that they should pass.
I have read the cases called to our attention on the construction of section 6, sub-section 2, of the English “Conveyancing Act,” from which the “Law and Transfer of Property Act.” R.S.O. ch. 119 is taken. The two sections are substantially alike. The Ontario section reads:— Every conveyance of land, unless an exception is specially made therein, shall he held and construed to include all * * * ways * * * easements * * * and appurtenances whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof.
The cases establish, I think, the question as to whether a claimed way or easement passed or not under and by virtue of the statute to be one of fact to be determined on the circumstances of each case. The question before us is whether before and at the date of the conveyance from Mrs. Patrick to Helen Eliza McCully in 1887 the way in question was a way really and actually used and enjoyed with the property conveyed, or taken or known as part or parcel thereof. If it was so used and enjoyed or taken or known, then it passed to the plaintiffs by the very words of the grant and the Act. In International Tea Stores Co. v. Hobbs[10], Farwell J., at page 172, referring to a decision of Blackburn J. in Kay v. Oxley[11], goes on to say:—
He (Blackburn J.) therefore, as I understand him, treats the only relevant question as being: Was the way in fact enjoyed at the date of the conveyance? If so the fact that it was enjoyed under a license which had not been revoked was immaterial. If it had been enjoyed without any license at all for a number of years, although no prescriptive right had been or could have been acquired, still it was in fact enjoyed. It is in each case a question of fact to be determined on the circumstances of the case whether it has, or has not, been enjoyed within the meaning of the statute.
See also Brown v. Alabaster[12].
On this crucial question the trial judge has, on evidence which seems to me amply sufficient, found against the plaintiff. The appeal court has agreed with that finding; and, concurring with it as I do, I think it disposes of the appeal.
IDINGTON J. (dissenting).—The late Mr. Patrick owned a block of land in the south-east angle of Sherbourne Street and Maple Avenue in Toronto out of the south-east part of which he carved and sold and conveyed two parcels each sixty-six feet wide fronting upon a street fifty feet wide and named by some one after his wife “Rachel Street.”
He devised the remainder of the block to his wife. She, after his death, conveyed in 1884 to one Henderson, another part of the original block comprising all that remained thereof unsold south of the northerly limit of said Rachel Street and east of the line of the lands her husband had conveyed as stated above and included part therein of what was to have apparently been a continuation of Rachel Street. The terms of this latter conveyance in relation to Rachel Street I will refer to presently.
The result was to leave vested in Mrs. Patrick a block of land two hundred and five feet six inches on Maple Avenue by one hundred and forty-seven feet nine inches on Sherbourne Street lying next to and on the said northerly line of Rachel Street.
She sold, for $8,000 and conveyed by deed of 21st November, 1887, to Mrs. McCully, this remaining block of land describing it by metes and bounds. The southerly boundary given therein admittedly coincides with the northerly line of Rachel Street.
That conveyance made pursuant to the Act respecting short forms of conveyances must be read as if it had incorporated therein the substance of section 12 of the “Law and Transfer of Property Act” of which the first part thereof is as follows:—
12(1). Every conveyance of land, unless an exception is specially made therein, shall be held and construed to include all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances, whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof.
The question raised herein is whether or not that conveyance so read contained a grant of the right-of-way over said part of Rachel Street for the distance of one hundred and thirty-six feet unappropriated by the earlier conveyance to Henderson and leading out to the said Sherbourne Street.
The evidence makes it very clear that before and up to the time of the conveyance to Mrs. McCully this space of land was designated as a street by the name first given it of Rachel Street or “Ancroft Place” later placarded on the southerly fence bounding same; that it was not assessed but treated by the assessors as a street from and including the year 1887 when first annexed to the city down to the trial hereof; that the lands lying to the south of it conveyed by Patrick as already stated were assessed according to their frontage on Rachel Street or “Ancroft Place” as if a public street and Henderson’s was similarly treated; that it was fenced on either side and on the end abutting what was sold to Henderson but not fenced on the Sherbourne Street side; that the appearance thus given it was that of a public street; that from such appearance any person buying the land sold and conveyed, to Mrs. McCully would clearly as- sume it was such or at least a right-of-way giving a rear access to any one purchasing or using said land; that said land sold her was a much more valuable piece of land with such right of access than if it had it not; that Dr. McCully, her husband, in treating for said land was told by the agent of Mrs. Patrick, that “Ancroft Place” or Rachel Street was a public street just as its appearance indicated; and that when Mrs. Patrick conveyed to Henderson it was by her deed to him expressly declared said street was “fifty feet wide and ran from Sherbourne Street to the land hereby conveyed,” and provided in the said deed to him as follows:—
Together with the free and uninterrupted use and right-of-way at all times in perpetuity to the said James Henderson, his heirs and assigns, and his and their servants, in, over and upon the said street fifty feet wide in common with the said Rachel Patrick, her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any part of said lot twenty-two abutting on said street. The said described lands hereby granted and the said street (fifty feet wide) are shewn on the surveyor’s diagram hereunto annexed.
The lot twenty-two thus referred to was the block originally owned by Patrick. The only part of it thus left vested in Mrs. Patrick and for and in respect of which her use of this street in common with others was thus provided for, was the land which she three years later conveyed to Mrs. McCully under whom appellant claims.
If that is not a reservation and declaration that the right-of-way is “to be held, used, occupied and enjoyed, or” to be “taken or known as part or parcel thereof,” i.e., of said land for which it was thus expressly reserved, what was it for?
It is said she owned the legal estate in the street and hence argued she had no need to reserve any- thing but had it as of right. Many people own the legal estate in a street but their right of travel thereon rests not on such legal estate but on the law and facts constituting it a public highway.
It was the incompleteness of the dedication herein that rendered her right to the use thereof in any way doubtful. And if she had happened to give by her several grants, including that to Henderson, rights-of-way to be used by each of these grantees, in common with the others named, over the place, and failed to reserve the like right to herself and said nothing more, then clearly she would have faced the very grave difficulty that these grants of right-of-way to such a specific number of enumerated persons, or a class of persons, in common, might be treated as exclusive of any other. If there had been no right-of-way reserved, then those having in such case a grant of way in common to and for themselves as grantees thereof, might have claimed these as exclusive rights-of-way and restrained any one else using the same place for right-of-way to serve any other property, such as the remainder of the block.
This is so common an incident in transactions relative to rights-of-way, or rights-of-way in common, that one is surprised to hear it argued that as of course because she had the legal estate therefor she could grant to some one else an equal privilege and destroy the value of the right-of-way she had granted.
The very argument put forward now for respondent rests upon this right of exclusion, or might have been rested thereon to protect those others who alone had rights in common to travel there if none had been reserved to serve the other property. If nothing else had interfered they need not have feared intrusion from any one else.
It is by getting a clear conception of what the actual legal position would have been under grants in common limited to only a certain class of persons and the rights springing therefrom, that we get a clear notion of what this reservation meant in law. It is idle to talk of her legal estate, for that would not have entitled her in face of limited grants in common to invade such rights and derogate therefrom by either intruding upon the privacy or cumbering improperly a way confined to a few.
Of course there are so many indications of a purpose to dedicate to the public this space of ground, that the legal rights I am illustrating by may not be needed to protect appellant. The simple and clear propositions of law involved in this reservation and its consequences under the circumstances ought, however, to suffice.
It seems quite clear that this reservation to serve the uses of the land later sold to Mrs. McCully, was well designed in law and enabled Mrs. Patrick to add thereby to the value thereof whilst in her hands and to make of it merchandise, as beyond a shadow of doubt she did. And when her grant to Mrs. McCully is read in light thereof, and all else that appears in the surrounding facts and circumstances, which in every case must be considered if proper effect is to be given to deeds made under said Act, there is no doubt in my mind but that the right of way over “Ancroft Place” to serve the land conveyed to Mrs. McCully, passed by that grant. There is also some evidence of an actual user of the space as a right of way to reach a rear en- trance to said lands by means of bars when the lot was used as a pasture field before the grant to Mrs. McCully.
If the intention existed as seems pretty evident it did, to dedicate the said land as a public highway, and only failed, if it did fail (as to which I express no opinion) for want of clear acceptance by the public, or authority representing the public, there was at the time of the said grant surely the clear purpose that the right-of-way was to be taken and enjoyed as part of the thing granted unless we are to suppose the people bargaining were bereft of common sense. It was so clearly to the advantage of her selling, to give it and get for it a price nowhere else available, and of her buying, that she should acquire what would be worth to her more than to any person else.
She or her successors in title ought not to be made to buy it over again.
It is urged the description in the deed being by metes and bounds instead of using the line of Rachel Street or “Ancroft Place” as one of the boundaries rebuts the presumption. A glance at the plan shews this was impracticable or inexpedient because the southerly boundary of the land conveyed ran in a straight line past and beyond the limits of “Ancroft Place.”
If Mrs. Patrick instead of selling the whole block to Mrs. McCully had sold to any one a small rear lot carved out of it and not fronting on either Sherbourne Street or Maple Avenue, but of which the boundary on the south coincided with the north line of “Ancroft Place” and no entrance or exit had been provided on either Maple Avenue or Sherbourne Street, and no more had appeared in the deed than in this to Mrs. McCully, and the grantee had been perverse enough to want a way of necessity to either Maple Avenue or Sherbourne Street, instead of using this apparent road Ancroft Place furnished, how would such a grantee be treated by any court hearing him insist on such a way of necessity? Would the court not tell him that it was clear he had a way out by Ancroft Place and could not so insist? Would it not be clear that on the facts this was a way “enjoyed or taken or known as part or parcel” of the land granted him?
In every case of this sort the facts must be looked at and the true position inferred therefrom or injustice may be done in many cases.
The leading authorities were all cited and if the case is reported they will appear in the report of argument hereof.
I have examined many of those cited and others, but do not think it necessary to review them. For those, however, who desire to know more accurately than I can express myself what I think should ever guide in such cases, I would refer to the language of Cotton L.J. in Birmingham, Dudley and District Banking Co. v. Ross[13], at foot of page 308 and top of page 309, where he was dealing with a case regarding a question of light and the implied rights of the parties resultant from their dealings. The case may not appear so apposite as others to be found in some of the leading cases, but his language is so expressive of the principle to be adopted in this class of cases that I need not seek elsewhere a means of presenting it. If such must be the view to be taken regarding an implied obligation, how much more so relative to the effect of an express grant carrying what corresponds thereto so far as the language of the statute will fit the facts.
Although much has been urged as to dedication and the case has gone off in that way in the courts below, I do not think it necessary to deal therewith to dispose of the action.
The action fails on the merits as to the alleged trespass without disposing of a number of interesting legal questions, and should be dismissed with costs.
The appellant is entitled to an injunction as prayed for in his counterclaim restraining the respondent from obstructing or otherwise interfering with the appellant’s user and enjoyment of “Ancroft Place” for the purposes of a way.
DUFF J. (dissenting).—There are several grounds upon which I think this appeal ought to be allowed. My views can, I think, be best stated by setting out first in chronological order the more important material facts. The accompanying sketch shows the situation of the appellant’s property. The street marked as “50-foot street” on the sketch is the way which will be hereinafter referred to as Rachel Street or “Ancroft Place.” The whole of the property shown in the sketch including the “50-foot street” is comprised in lot 22, as shown upon a plan that, at the commence- ment of the transactions to which I shall have to refer, was registered in the Registry Office of the County of York, as plan No. 329. On this registered plan the “50-foot street” is not shown. In 1874 one Thaddeus Patrick became the owner of lot 22. Although not shown on the plan, this “50-foot street” was then an existing street having defined northerly and southerly limits. On the south side there were two adjoining houses having a common party-wall facing the street. In 1875, Patrick conveyed one of these houses together with a block of land having a frontage of 66 feet on Rachel Street to the Rev. Jos. Ellwell. The northern boundary of the plot of land is described in the conveyance as “the southern limit of a street 50 feet in width.” In 1882, after the death of Thaddeus Patrick, Rachel Patrick, his widow and devisee, conveyed the adjoining house, together with the plot of land connected with it, to Dr. Davies, and the northerly boundary of this plot is described in the conveyance as “the southerly limit of a street 50 feet wide.” At that time the street appears to have extended easterly at least to the boundary between the lots 22 and 23. In 1884, it is stated by one of the witnesses that there were stables on the southerly side of the street, at least as far east as that line. At that time (1884), there were ornamental trees following the line of the street on both sides, and there was a well marked waggon track in the centre. Some time prior to the 8th of July, 1884, it does not appear precisely when, a survey of lot 22 was made, and a plan drawn which was attached to a conveyance of part of the lot from Rachel Patrick to James Henderson, that was executed on that date. The accompanying sketch reproduces this plan with the addition of the legends “appellant’s property,” “property sold to McCully,” and the dotted line running north and south between Maple Avenue and Rachel Street. The street in question is the subject of various stipulations in this conveyance. It is described as running easterly from Sherbourne to the “land hereinafter conveyed” and as being of the
full width of 50 feet measured across said street and at right angles to its northerly and southerly limits.
The other provisions relating to it are as follows:—
Together with the free and uninterrupted use and right of way at all times in perpetuity to the said James Henderson his heirs or assigns and his and their servants in, over and upon the said street fifty feet wide in common with the said Rachel Patrick her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any part of said lot twenty-two abutting on said street. The said described lands hereby granted and the said street (fifty feet wide) are shown on the surveyor’s diagram hereunto annexed.
Together with the right at any time after one year from the date hereof to register the plan of sub-division of said lot twenty-two as hereunto annexed and showing when registered the land hereby granted to the said James Henderson and the said fifty feet street and for that purpose to use and sign the name of the said Rachel Patrick and her assigns.
And the said party of the first part hereby further covenants with the said party of the second part that upon any laying out or plotting of said lot twenty-two and upon any plan thereof whether for the purposes of registration or otherwise the said street of the full width of fifty feet shall be laid down and appear as the same is shown on the hereunto annexed diagram. [Page 77]
In 1887, the municipal boundaries of Toronto were extended so as to embrace part of the Township of York and thereafter the locality in question came within the limits of St. Paul’s Ward. In the summer of that year lot 22 was for the first time placed upon the municipal assessment rolls of Toronto. Mr. Unwin, a well-known surveyor in Toronto, who was the assessor for St. Paul’s Ward in that year and in each year for 15 years thereafter, gave evidence at the trial. He says that the area included within Rachel Street, as shewn upon the sketch, was laid out upon the ground as a street and was entered by him in the assessment roll as a public street running off Sherbourne Street; that this area was treated as the site of a public highway and as such was not assessed and was not taxed by the municipal authorities down to the time of the trial in 1911. He says, moreover, that the Ellwell, Davies and Henderson properties were assessed as fronting on this street.
It was in November, 1887, that the whole of that part of lot 22 situated north of the northerly limit of Rachel Street and of the lands conveyed to Henderson, including what is now the appellant’s property, was sold by Mrs. Patrick. Before going into the details of this transaction it may be noted that by this sale Mrs. Patrick divested herself of all the lands she then held adjoining or in any way communicating with Rachel Street. The purchaser was a Dr. McCully. The conveyance was taken in the name of his wife, but the purchase money was paid by him, and it was he who made the agreement of purchase. Dr. McCully was then living in Toronto, though a few years afterwards, for reasons which he explains in his evidence, he went to the United States. He was examined as a witness at Dallas, Texas, in May, 1911, six months before the trial. It was not suggested in cross-examination that he had any interest which could in any way affect his evidence, and though there was ample time after his examination before the trial to investigate his statements, he was not contradicted in any material particular. He says that, in 1887, he accidentally learned that the Toronto Street Railway Co. was likely to extend its line across the Rosedale Ravine on Sherbourne Street past the property in question. He says he had had his eye on the property since 1884 and that immediately (having ascertained that it was then on the market) he entered into negotiations for the purchase of it. Mrs. Patrick’s agent, through whom he bought the property, was a solicitor practising in Toronto, and McCully says he made it a particular point to ask him whether the road at the south of the property was a street and that he was assured by the agent that it was. He regarded the point as of great importance, he says, because his plan was to divide the property into four 50-foot lots facing Maple Avenue with stables in the rear, having an entrance from Rachel Street. That entrance he considered, he says, enhanced the value of the property by at least $1,000. In the following year he changed his plans, and sold the property en bloc to one James Dickson, a commission merchant in Toronto. Dickson built a house upon it and a stable. He placed a gate on Maple Avenue and another opening on Rachel Street, and the stable could be approached by either entrance. Dickson kept horses in the stable two or three days each week during several years. Sometimes he used the Maple Avenue entrance, sometimes the Rachel Street entrance. One would gather from his evidence that he used the Maple Avenue entrance more frequently during the first two years. Afterwards, the Sherbourne Street bridge having been built in 1890, he used the Rachel Street entrance more frequently. In 1895 he sold the house, retaining the stable, and left Toronto to reside elsewhere. In 1897 the stable was mortgaged, and in 1899, through a sale made under a power contained in the mortgage, the stable became the property of Mrs. Cockburn to whom the house had already been sold. During the four years which elapsed between Dickson’s departure and the purchase of the stable by Mrs. Cockburn, the stable appears to have been occupied during two winters and summers and the Rachel Street entrance was used by the occupants. From 1899 down to 1909 the stable appears to have been let from time to time and during the whole of the period the Rachel Street entrance was made use of by the tenants of the stable as well as for various other purposes connected with the appellant’s property, such for example as the collection of garbage by the municipal scavenging department. In the meantime Henderson had built a house at the end of the street on the property acquired by him from Mrs. Patrick by the deed of 1884. Sidewalks had been laid down, the roadway improved, a gas lamp had been set up in front of Henderson’s gate by the City Fire Department under the authority of the municipal council at the expense of the city; the name Rachel Street had been changed to “Ancroft Place.” The present appellant bought the property in 1905 from Mrs. Cockburn and built on it a brick stable with an entrance from Ancroft Place. In the various instruments dealing with the property subsequent to McCully’s conveyance to Dickson, the property was described as fronting on a street. In 1910 the respondent, having in the meantime acquired the Henderson, Ellwell and Davies properties, that is to say, the properties adjoining Ancroft Place with the exception of that owned by the appellant, obtained from Mrs. Patrick a quitclaim of her interest in the site of the street, and then proceeded to block up the entrance to the appellant’s property from “Ancroft Place.”
In these circumstances the appellant’s title to a right of access to Sherbourne Street by way of “Ancroft Place” may be supported, it appears to me, on at least two grounds; first, an express grant of the right, and secondly, I think the conduct of Mrs. Patrick, before and after the sale to McCully, taken together with the circumstances of that transaction, disentitle her and her successor (who is not and does not pretend to be a purchaser for value without notice) from preventing the appellant using Rachel Street as a street affording communication to and from Sherbourne Street with the southern boundary of her property.
The facts established justify the inferences that Mrs. Patrick and her late husband always entertained the design that Rachel Street should be a street affording access