Carey v. Toronto (City)

Carey v. Toronto (City)
Collection
Supreme Court Judgments
Date
1886-04-09
Report
(1886) 14 SCR 172
Judges
Ritchie, William Johnstone; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Sale
Decision Content
Supreme Court of Canada
Carey v. Toronto (City), (1886) 14 S.C.R. 172
Date: 1886-04-09
Patrick Carey (Plaintiff) Appellant;
and
Alexander MacDonell, The Corporation of the City of Toronto, William Henry Bennett and James Arthur Bennett (Defendants) Respondents.
1885: November 26, 27, 28; 1886: April 9.
Present: Sir W.J. Ritchie C.J., and Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Sale of land—Building lots—Plan showing lanes—Alteration of plan—Closing of lane.
The city of Toronto offered land for sale, according to a plan showing one block consisting of five lots each, about 200 feet in length running from east to west bounded north and south by a lane of the same length, and east by a lane running along the whole depth of the block and connecting the other two lanes. South of this block was a similar block of smaller lots, ten in number, running north and south 120 feet each. The lane at the east of the first block was a continuation, after crossing the long lane between the blocks, of lot No. 10 in the second block. The advertisement of sale stated that “lanes run in rear of the several lots.”
M. became the purchaser of the first block and C. of lot 10 in the second. Before registry of the plan M. applied to the City Council to have the lane at the east of his block closed up and included in his lease which was granted. C. then objected to taking a lease of his lot with the lane closed, but afterwards accepted a lease which described the land as leased according to plan 380 (the plan exhibited at the sale) and plan 352 (which showed the lane closed), and he brought an action against the city and M. to have the lane re-opened.
Held, affirming the judgment of the court below that C., having accepted a lease after the lane was closed, in which reference was made to said plan 352, was bound by its terms and had no claim to a right of way over land thereby shown to be included in the lease to M. Held also, per Gwynne J., that under the contract evidenced by the advertisement and public sale C. acquired no right to the use of the lane afterwards closed.
APPEAL from a decision of the Court of Appeal for Ontario[1] reversing the judgment of Ferguson J.[2] in favor of the plaintiff.
The facts of this case are fully set out in the judgment of Mr. Justice Gwynne.
S.H. Blake Q.C. and McCarthy Q.C. for the appellant.
If a man offers to sell property with certain advantages specified he cannot, after the sale, take away those advantages. So here plaintiff bought according to description on plans which showed lane open, and vendors could not after the purchase close them.
In the cases referred to in the Court of Appeal the plans were simply exhibited in the auction room. Here the land was bought in pursuance of the plans and they are referred to in the agreement.
There can be no doubt that we would be entitled to specific performance of our agreement by having the lots with the lanes described in the plan.
Then, we submit that the city of Toronto could do nothing to derogate from the rights of the plaintiff.
The mere registry of the plan did not in any way affect the position of the city. The plan showing the lanes open was made on account of our objection to the other.
MacDonell had knowledge of all that was done and was trying to get an advantage outside of his contract.
As to construction of lease see Broom’s Legal Maxims pp. 498-501. A deed, lease, or agreement, to which is annexed a plan of this kind gives an absolute right to the lane and the grantor cannot do anything to derogate from his own grant. The authority for this is conclusive on two grounds, one the actual authority of the contract between the parties, and the other that for a period of 25 years the courts have held that if you sell by a plan annexed to an agreement, you are just as much bound by the plan as by anything else in the agreement. Peacock v. Penson[3]; Rossin v. Walker[4]; Cheney v. Cameron[5]; O’Brien v. Trenton[6]; Adams v. Loughman[7]; Re Morton and St. Thomas[8]; Grasett v. Carter[9]; Wallis v. Smith[10].
The cases upon which the Court of Appeal rested their judgment are:—
Feoffees of Heriots Hospital v. Gibson[11], which decides that the mere exhibition of a plan at time of sale does not amount to a warranty.
Nurse v. Ld. Seymour [12] where the circumstances were very different from this case. The M.R. says in that case “you cannot have specific performance of an agreement with a variation.”
Randall v. Hall[13] which was similar to the last.
And Squire v. Campbell[14] where the plan was in no way referred to in the lease, and the decision was that a contract could not be inferred from the mere exhibition of a plan.
The intention of the parties must be gathered from the instrument coupled with the circumstances surrounding it at the time. Skull v. Glenister[15]
Then if the plan becomes part of the contract we must treat the whole question as a matter of contract. North British Ry. Co. v. Tod [16].
The following authorities also were cited: Espley v. Wilkes [17]; Roberts v. Karr [18]; Carr v. L. & N.W. Ry. Co.[19]; Maddison v. Alderson[20].
Robinson Q.C. and Moss Q.C. for the respondents.
The case resolves itself into two questions:—
First. What were the rights of the parties at the time the deed was made? and
Secondly. What was the effect, upon those rights, of whatever may have taken place before that?
There is a preliminary matter as to the admissibility of evidence. A petition was put in, and we objected to its being admitted without the documents attached, which were referred to in the petition. His Lordship was entirely wrong in admitting it.
The appellant is entitled to a lane with his lot, but only to a lane abutting upon it not to that in the rear.
For distinction between streets and lanes see Rowe v. Sinclair[21]. See also Vestry St. Mary v. Barrett[22]; and Hesketh v. Atherton Local Board[23]; Re Morton and St. Thomas[24]; North British Ry. Co v. Tod[25]; Randall v. Hall [26].
There is no pretence that we made any representation; therefore there is no force in the argument that if there was no contract there was a representation. Nurse v. Ld. Seymour[27]; Feoffees Heriots Hospital v. Gibson[28]; Squire v. Campbell[29]; Leggott v. Barrett[30].
McCarthy Q.C. in reply cites Wigle v. Setterington[31]; Adams v. Loughman[32]; Fewster v. Turner[33]; Palmer v. Johnson[34].
Sir W.J. RITCHIE C.J.—This action is not for a specific performance of the plaintiff’s contract with the city of Toronto. He claims:—1. That the defendants should be ordered to open up and maintain a lane in the rear of the lots fronting on Huron street, as shown in the plan by which said lots were sold, and as shown in the new plan registered as 380. 2. That the defendants may pay the plaintiff the law costs incurred by him, and also the rental and taxes upon the said lot which he had to pay to the said corporation; and 3. That the defendants may also pay the plaintiff the costs of this suit.
I find it very difficult to say that under the contract of sale the plaintiff did not acquire a right to, or interest in, the lane shown by the plan in the rear of lots 11, 12, 13, 14 and 15, in view of its immediate contiguity to lot 10 on which it practically abutted or bounded, and in connection therewith is what, to my mind, is the self-evident fact that such a lane would be a most material advantage to lot 10 and one which could not but be patent to all parties bidding at such sale. If I had to determine this question I should desire to give it further consideration before deciding it against the plaintiff. But inasmuch as the plaintiff has not chosen to rely on his executory contract, but has accepted in fulfilment thereof a lease from the corporation after it had leased lots 11 to 15 inclusive to MacDonell, including the land on which is the lane claimed, and the corporation having no right to dedicate any portion of the lots so leased to MacDonell in derogation of his title, and the plaintiff having taken the lease from the corporation with full knowledge of such lease to Macdonell and with express reference to the registered plan No. 352, which shows that lots 11 to 15 were leased to MacDonell including the space plaintiff now claims to have opened as a lane, I cannot see that he is in a position, assuming that under the terms of the sale the exhibition of the plan would give him a right, as against the corporation, to have had a lane as indicated on plan 380 opened, or to give him a claim for compensation in lieu thereof, or to give him any claim against MacDonell or the corporation to have the lane now opened, inasmuch as, in my opinion, plaintiff took the lease from the corporation in fulfilment of his contract for what it was worth, subject to MacDonell’s right, which, by taking the lease as he did, he, in my opinion, clearly recognized.
If the plaintiff should be advised that he has any claim enforceable against the corporation as distinct from the defendant MacDonell, I should be disposed to reserve his right to proceed to make good such claim in a suit properly framed for that purpose. In the meantime I think this appeal should be dismissed with costs to the defendant MacDonell.
FOURNIER J.—I agree with the conclusion of the learned Chief Justice and with his last observation. I think the act of the corporation was most unjust and would have sustained Carey’s contention had he not taken a lease of the city property.
I think the appeal should be dismissed.
HENRY J.—I am of the same opinion. I would be very glad if I could have arrived at a different conclusion. The plan shows that the lot was bounded by a lane at one end, and that another lane would be opened right in front of the land purchased by the plaintiff. In the advertisement of the sale the land was bounded by a lane. I think the parties who sold were bound by the plan, and should make good any damage sustained by not opening the lane. But the purchaser knew that a plan had been filed showing the lane not open. He must have known that the title was out of the corporation and vested in MacDonell. The corporation could not convey to him. If he had not taken that other deed he could have enforced his claim against the city.
I think, however, that under the circumstances the appeal should be dismissed.
TASCHEREAU J.—I am also of the opinion that the appellant is bound by the terms of his lease and that he is not entitled to any rights not conferred on him by the same.
GWYNNE J.—The corporation of the city of Toronto being owners in fee of certain land, situate on St. George street, Bloor street, Spadina avenue, the south side of Cecil street, the east and west sides of Huron street and the north side of Baldwin street in the said city, caused the same to be subdivided into building lots for the purpose of offering them to competition for lease at public auction. The lots on the north side of Baldwin street were delineated on a plan as ten in number, numbering from 1 to 10, lot No. 1 being shewn to be 25 feet 6 inches in width, fronting on Baldwin street and extending in a northerly direction along the east side of Huron street 120 feet to a lane of 20 feet in width extending from Huron street to the easterly limit of the block, at the northeasterly angle of the said lot No. 10, which said lot No. 10, as also all the lots numbered from 1 to 10, were shewn to be 21 feet in width fronting on Baldwin street, by 120 feet in depth measuring northerly parallel with Huron street to the lane 20 feet in width laid out along the rear of all of the said lots fronting on Baldwin street. The lots on the south side of Cecil street were designated by the Nos. 16 to 25, lot No. 16 being situate on the eastern extremity of the block, and lots 16 to 24 both inclusive being shewn to be each 21 feet in width and lot 25, on the corner of Huron and Cecil street, 25 feet 6 inches in width fronting on Cecil street by 120 feet in depth measuring in a southerly direction parallel with Huron street to a lane 20 feet in width in rear of the said tier of lots numbering from 16 to 25 inclusive, so laid out as fronting on Cecil street, such lane extending from Huron street to the eastern extremity of the block and the space between the lanes so laid down as in rear of the said lots, fronting on Baldwin and Cecil streets respectively was laid out as five lots numbering from 11 to 15, the former being 21 feet 8 inches and the others 21 feet 9 inches each fronting on Huron street, by 194 feet 6 inches in depth on lines drawn in an easterly direction at right angles with Huron street to a lane, also 20 feet in width in rear of the said lots numbering from 11 to 15 inclusive. The object of laying out these lanes in rear of these several lots was to provide access, in the event of the lots being leased separately to different persons from the rear of each lot to the street upon which the lots respectively fronted, for the convenience of the persons becoming lessees of such respective lots. The corporation caused an advertisement of the contemplated auction sale to be published in the public papers and in posters distributed through the city, as follows:—
City property for sale or lease by auction at noon on Wednesday, the 18tb day of May, 1881, at the auction rooms of F.W. Coate & Co. Leases will be offered for twenty-one years, renewable, of the following valuable lots owned by the city of Toronto and situate as under, that is to say.—
Huron street (between Cecil & Baldwin streets),
No. onPlan.
Size.
Situation.
Reserveper foot.
1 Lot 11,
21 ft. 8 in. x 194 ft. 6 in.
E. side of Huron St.
$1.00
4 Lots 12 to 15,
each 21 ft. 9 in. x 194ft. 6 in.
do
1.00
2 Lots 8 & 9,
each 27 ft. 2 in. x 128 ft. 8 in.
W. side do
1.00
Cecil street running east from corner of Huron street.
1 Lot 25,
25 ft. 6 in. x 120 ft.
S.E. corner of Cecil and Huron streets
1.00
9 Lots 16 to 24,
each 21 ft. x 120 ft.
S. side of Cecil street, E. of No. 25
1.00
Baldwin street running east from corner of Huron street.
1 Lot 1
25 ft. 6 in. x 120 ft.
N.E. corner of Baldwin and Huron sts.
1.00
9 Lots 2 to 10,
each 21 ft. x 120 ft.
N. side of Baldwin street, E. of No. 1
1.00 PARTICULARS RELATING TO LEASES OP THE ABOVE PROPERTIES.
The above properties will be virtually equivalent to freeholds in the hands of lessees, who will hold for 21 years, renewable, rental to be paid half yearly at the office of the City Treasurer. The first payment to be made in advance by way of deposit at time of sale.
Lessees of two or less than two lot3 on St. George or Bloor streets to erect within two years a brick residence not less in value than $5,000.
The lot on Spadina Avenue will, if desired, be put up in two half lots as the north and south half of said lot.
The sizes of lots above given are to be read as being according to said measurements “more or less.”
LANES RUN IN REAR OF THE SEVERAL LOTS. Further terms and particulars made known at time of sale. For further particulars apply at the City Hall where plans and diagrams of the several properties can be seen.
JOHN IRWIN,
Chairman Committee on Property.
City Hall, April 20, 1881.
In the conditions of sale it was provided that all bids should be at a frontage rate per foot per annum upon the lots offered, as the same appear upon the plan or survey produced, each lot being subject to a reserved bid.
At the sale the defendant MacDonell was the highest bidder for, and as such became the purchaser of, the leasehold interest offered for sale in the lots 11 to 15 on the east side of Huron street; other persons became purchasers of all the other lots fronting upon Baldwin and Cecil streets respectively and numbering from 1 to 10 on Baldwin street and from 16 to 25 on Cecil street. The plaintiff being the highest bidder for lot No. 10, fronting on Baldwin street, signed his contract for that lot at the foot of the conditions of sale in the terms following:
TORONTO, May 18th, 1881.
I hereby agree to lease the property described in the plan hereto annexed and marked A as lot No. 10, on the north side of Baldwin street subject to the foregoing conditions of sale for the sum of one 30/100 dollars per foot frontage per annum on Baldwin street.
P.F. CAREY. The defendant MacDonell having become the purchaser of the lots 11 to 15 inclusive and having no occasion for a lane in rear of those lots, but considering that the keeping it open as a lane would be a nuisance to him and to the corporation, made application to the city authorities, before any plan of the several lots was registered, to have the space designed for a lane in rear of these lots thrown into the respective lots and to have a lease given to him of the lots as including within their area the lane in rear which had been designed for the purposes of affording access to those respective lots in the rear. This application appearing to be reasonable was concurred in and a plan was prepared under the direction of the city authorities showing no lane in rear of the lots numbering 11 to 15 on Huron street but shewing lanes 20 feet in width widening at their eastern extremity to twenty-five feet in rear of the lots fronting on Cecil and Baldwin streets, which plan, duly certified under the corporate seal and signed by the Mayor and City Treasurer as representing correctly the lots and lanes, they caused to be registered in the registry office of the city of Toronto on the 9th day of June, 1881, under the provisions of the revised statutes of Ontario in that behalf as plan No. 352. On the fourteenth of the same month of June the corporation duly executed, under their corporate seal and signed by the Mayor and Treasurer of the city, an indenture of lease whereby, in consideration of the rents, covenants and agreements therein reserved and contained, they demised and leased unto the defendant MacDonell, his executors, administrators and assigns, the said lots 11, 12, 13, 14, and 15, according to the registered plan No. 352 habendum for the term of twenty-one years, to be computed from the first day of July, 1881. The purchasers at the auction held on the 18th of May of all the other lots fronting on Cecil street and Baldwin street, except the purchaser of lot No. 10 on Baldwin street, accepted leases for like terms of twenty-one years of the lots bid for by them respectively, in each of which leases their several lots were described as being according to the plan No. 352. The plaintiff does not appear to have applied for a lease of his lot No. 10 fronting on Baldwin street until early in the year 1882, and when he did he refused to take his lease according to said plan 352, insisting that by the terms of his contract of the 18th May, 1881, he had an interest in the lane as originally designed in rear of lots 11 to 15 on Huron street of which, as he contended, he could not be deprived, and that the corporation had no right to register the plan No. 852 not shewing such lane but shewing the said lots 11 to 15 leased to Mr. MacDonell to extend across the space as originally designed for a lane in rear of those lots.
The plaintiff having brought the matter under the consideration of a committee of the city council called the property committee, the defendant MacDonell presented a petition in the shape of a letter addressed to the Mayor and Aldermen of the city in council assembled remonstrating against any attempt to prejudice his rights. In this, his petition, he referred to three certificates of the authorities which he transmitted with, and made part of, his petition in support of his contention. One of these certificates was that of the city commissioner, another of the city treasurer, the third of the surveyors who had been employed by the city to subdivide the block of land into the building lots offered at auction in May, 1881, and who had certified the plan No. 352 as correct in accordance with the provisions of the registry act chapter one hundred and eleven of the revised statutes of Ontario, section 82, sub-section 2. These certificates were by the learned judge of first instance detached from the defendants petition, which was received in evidence without the accompanying certificates, but as the certificates were so referred to in the petition as to be made part thereof they should not, I think, have been separated from it but should have been received quantum valeant. That of the city commissioner is as follows:—
CITY COMMISSIONERS OFFICE,
TORONTO, 21st February, 1882.
I, Emerson Coatsworth, of the city of Toronto, City Commissioner, do hereby certify that I have examined the plan of sub-division of the block of land owned by the city lying on the east side of Huron street between Baldwin and Cecil streets, and state that I find the allowance for lanes in rear of the lots fronting on Baldwin and Cecil streets respectively, ample and sufficient for all purposes relating to the said lots, and I further state that the permission to the lessee of the lots on Huron street referred to to enclose the lane in rear thereof is undoubtedly in the interests of the city, as thereby preventing the facility for nuisances being deposited clandestinely and saving extra labor to this department in keeping same clean, and there being but one lessee of all the lots for which said lane is laid out it cannot prejudice any other person whomsoever to have it closed.
E. COATSWORTH,
Comr. Works and Health.
The certificate of the City Treasurer who had also signed the plan, No. 352, for registration on behalf of the corporation is as follows:—
OFFICE OF THE CITY TREASURER,
TORONTO, 23rd February, 1882.
I, Samuel Bickerton Harman, of the city of Toronto, City Treasurer, certify that the plan for the sub division of the blocks of land belonging to the city lying east of Huron street between Baldwin and Cecil streets was prepared under my supervision for the purpose of laying off same into building lots with lanes in rear of the lots fronting on said streets respectively, such lanes being intended to be appurttenant respectively to the tier of lots lying between them and the streets on which such lots fronted. The lanes in rear of the tier of lots fronting on Baldwin and Cecil streets were made of sufficient width to serve every practicable purpose of lanes for those lots respectively, without regard to the lane between them in rear of the lots fronting on Huron street, which was intended for the latter named lots only. I fail to see how any one has any right or interest to interfere in a matter which seems to me to affect only the purchaser of the lots on Huron street.
SAML, B. HARMAN,
City Treasurer. The certificate of the surveyors who laid out the lots for the corporation, is as follows:—
We, Unwin & Sankey, formerly Wadsworth & Unwin, of the city of Toronto, Land Surveyors, hereby certify that the plan of sub-division of the block of land owned by the city of Toronto lying on the. east side of Huron street between Baldwin and Cecil streets prepared by us, shows the allowance for lanes in rear of the lots fronting on said streets respectively the lanes in rear of the lots on Baldwin and Cecil streets being wide and amply sufficient for all purposes relating to said lots. We further state that the lane originally proposed to extend along the rear of the lots fronting on Huron street was designed for the benefit of the lessees of those lots solely; and the lessees of lots fronting on Baldwin and Cecil streets could not be entitled to any right thereto practically j and the closing up the said lane can only be a matter of business between the city and the lessee of the lots on Huron street.
UNWIN & SANKEY,
Provincial Land Surveyors.
Toronto, 21st February, 1882.
While these certificates cannot be looked to as affording any evidence in this action in favor of the defendants of the truth of the matters therein alleged they may, I think, as representations made to the corporation by their officers of the intention of those officers in doing on behalf of the corporation the acts therein referred to, be looked at as a matter before the corporation, and as part of the res gesta in respect of which the subsequent action of the corporation in relation to the subject matter was taken, and to throw some light upon such action if it should prove to be of doubtful construction; and the action taken, we find, to have been that they caused to be prepared for registration a new plan not corresponding with the one in existence at the time of the auction, but on which the space comprising the rear twenty feet of the lots 11 to 15 as leased to MacDonell, together with the angle cut off from lots 11 and 15, as shown on plan 352, is shown to be cut off with the words “lane to be opened” thereon, and this plan is registered in the registry office of the city of Toronto with a certificate thereon under the corporation seal, and signed by the same mayor of the city as had signed plan 352 and by the same city treasurer, and the firm of surveyors who had prepared and signed that plan for registration, and had signed the above certificate laid before the council.
We certify that this plan represents correctly the manner in which we have dedicated and set apart the rear 20 feet of lots 11 to 15 inclusive for the purposes of a public lane.
It is to be observed that the lane here spoken of as “to be opened” is, in this certificate, spoken of as being at present part of lots 11 to 15. Upon this plan being registered the plaintiff on the same day that it was registered, namely, the 19th day of May, 1882, accepted a lease from the corporation executed under the corporate seal demising to him for 21 years “lot No. 10, on the north side of Baldwin street according to registered plans Nos. 352 and 380,” and he has filed his statement of claim wherein after alleging the auction sale of May, 1881, and that at such sale, relying upon the plan and conditions of sale then produced he bid for and became the purchaser of lot No. 10 on the north side of Baldwin street.
That on the 19th day of May, 1882, the defendants, the said corporation, executed a lease to the plaintiff of the said lot number ten in which lease the said lot is described as being according to a plan of said property registered in the registry office of the city of Toronto numbered 380.
That the said plan numbered 380 is identical with the plan produced at the day of sale and according to which the plaintiff purchased the said lot.
That on the 14th day of June, 1881, the defendants, the said corporation, executed a lease to the defendant, Alexander MacDonell, and granted him lots 11, 12, 13, 14 and 15.
That the said lots are described in the deed to the said Alexander MacDonell as extending over the said lane already described as being shewn on the map or plan between the said lots 11,12,13,14 and 15 and the property of the Hon. George Brown, and no mention is made in the said lease of the reservation of the said lane or of any right of way by virtue of the said lane, but the said lots were sold as designated on the said plan and the said Alexander MacDonell had notice of the said plan and of the contract of the defendants, the said corporation, to lease the said lot, number ten to the plaintiff according to the said plan. That the said Alexander MacDonell has caused the said lane lying in rear of the said lots 11, 12, 13, 14 and 15 to be closed up. And the plaintiff alleges that he has done so with the approval and authority of the defendants, the said corporation.
That the plaintiff has applied both to the defendants and to the said Alexander Macdonell to have the said lane re-opened and the obstruction removed therefrom, in order that he, with the other lessees, might have the full, free and unrestricted use of the said lane, to which he and they are entitled by virtue of the said lease to enjoy.
And the plaintiff claims that by virtue of the said conveyance to him he is entitled, as owner of the said lot, to have a right of way over the said lane lying in rear of the said lots 11, 12, 13, 14 and 15, and to have the said lane kept open and unobstructed, in order that he might not be prevented or interrupted in the free use of the same. And the plaintiff prays that the defendants should be ordered to open up and maintain a lane in rear of the said lots fronting on Huron street, as shown on the plan by which the said lots were sold and as shown on the new plan registered as plan 380.
The plaintiffs claim is not for specific performance of his contract of the 18th May, 1881, and in virtue of that contract to be declared to be entitled to a perpetual right of way over the rear 20 feet of the land leased to MacDonell in June, 1881, as lots 11, 12, 13, 14 and 15, on the east side of Huron street as and for a lane to be maintained in rear of what he insists to be the true lots of those numbers. It is only as not forming a part of lots 11, 12, 13, 14, and 15 on the east side of Huron street, and as being in point of fact in rear of the true lots of those numbers, that the plaintiff could have asserted any claim whatever, if he ever had any to a right of way over the land in question. The plaintiffs claim, however, as asserted in his statement of claim is—that having entered into a contract with the corporation to take a lease of a piece of property designated, on a plan exhibited to him at the time of the contract being entered into, as lot No. 10 on the north side of Baldwin street, and such contract having been specifically performed, as he alleges, by a lease dated the 19th May, 1882, executed to him by the corporation wherein, as he also alleges, the said property is described as said lot number ten according to a registered plan 380, which plan, as he further alleges, is identical with the plan produced when he entered into the contract, he is entitled to have a portion of lots 11, 12, 13, 14, and 15 on the east side of Huron street, which were leased by the corporation to the defendant MacDonell in June, 1881, opened as a lane so as give to the plaintiff full, free, and unrestricted use thereof as a lane, to which he claims to be entitled in virtue of the lease executed to him on the 19th May, 1882.
At the trial the defendants called the three witnesses who gave the certificates above set forth to prove the matters of fact therein alleged to be in point of fact true, but an objection having been taken to such evidence the learned judge, by whom the case was tried, rejected it as inadmissable and he made a decree in favor of the plaintiff in accordance with the prayer of his statement of claim; thereby virtually holding that whatever may have been the intention of the corporation of the city of Toronto in laying out lanes in rear of the several lots as stated in the advertisement of the particulars of the several lots, the leasehold interest in which were intended to be offered for sale at auction, the plaintiff was entitled in virtue of his lease of the 19th May, 1882, as set out in his statement of claim to a right of way over the rear twenty feet of the lots 11, 12, 13, 14 and 15 on the east side of Huron street leased to the defendant MacDonell in June, 1831. This judgment having been reversed by the Court of Appeal for Ontario, from the judgment of that court the plaintiff now appeals.
After the execution by the corporation of their lease to MacDonell of June, 1881, in which the lots 11, 12, 13, 14 and 15, are described as they are shown on registered plan 352, which shows them to extend to the utmost limit of the land owned by the corporation there, that is to say, to the distance of 214 feet 6 inches easterly from the eastern limit of Huron street, it was not competent for the corporation by any act of theirs to detract from their lease or to appropriate any part of the land so leased, so long as the interest granted by such lease should continue, to the purposes of a public or of a private lane. They could not by registering a plan declaring such intention, and exhibiting thereon a lane as “to be opened” and laid out on any part of the land so leased, defeat, or in any manner prejudice, their lease to MacDonell. The corporation must be taken to have known that they could not do so, but that they had no intention of presuming to attempt to do so appears, I think, as well from the plan 380 itself as from the lease to the plaintiff, which he accepted in fulfilment of his contract of May, 1881. Whatever may have been the idea of the parties who procured the registration of plan 380, that plan upon its face shows that all that was intended was a dedication in the future, and that although the time when the lane should be opened in pursuance of such dedication is not stated, it could not be during the continuance of the term created by the lease to MacDonell. That the plan was not intended to have been, if it could be, in prejudice of that lease or in derogation from the plan 352, which was the plan registered according to law upon which the boundaries of the lots leased to MacDonell were shown, appears from the certificate on the plan 380, whereby it is certified by the corporation authorities, that “this plan represents correctly the manner in which we have dedicated and set apart the rear twenty feet of lots 11 to 15 inclusive for the “purpose of a public lane.” The land so said to be dedicated as a “lane to be opened” is stated at the time of the registration of the plan 380, to be the rear 20 feet of lots 11 to 15,” thereby affirming the plan 352 which showed it to be so. And yet it is only by establishing the land dedicated for the purposes of a lane never to have been part of lots 11, 12, 13, 14 and 15 that the plaintiff could claim, or pretend to have, any right of way whatever in or over the same.
Then the lease executed to the plaintiff on the 19th of May, 1882, and which he has accepted in fulfilment of his contract of May, 1881, and in virtue of which lease alone the plaintiff now rests his claim to the right of way, instead of describing the property leased, as alleged in the plaintiffs statement of claim, as being lot No. 10, on the north side of Baldwin street, according to registered plan No. 380, describes it as being lot No. 10, on the north side of Baldwin street according to registered plans numbers 352 and 380. Moreover the plan 380 instead of being, as alleged in plaintiffs statement of claim, indentical with the plan exhibited to the plaintiff at the time of his entering into the contract of May, 1881, adopts plainly the deviation from that plan in the width of the lane in rear of lot No. 10 on the north side of Baldwin street and in the rear of lot No. 16 on the south side of Cecil street, as the same is represented on the plan 352. So that it plainly appears that all the plans 352 and 380, taken together, shew, is that the piece of land which upon plan 380 has inscribed “lane to be opened,” is part of lots 11, 12, 13, 14 and 15, as shewn on plan 352, and which (as is part of the matter stated in the statement of claim,)was leased to MacDonell in June, 1881, and which could not be opened by the corporation so long as the term for which those lots were granted to MacDonell should continue; and it is in this state of facts that the plaintiff on the 19th May, 1882, accepted as in fulfilment of his contract of May, 1881, a lease for 21 years of lot No. 10 on the north side of Baldwin street, which lease, upon the basis on which the plaintiff rests his right to the way which he claims, must be held to be subject to the rights of the defendant Macdonell in the land leased to him as forming part of lots 11, 12, 13, 14 and 15, and which these plans 352 and 380 conjointly and each separately represent to be parts of those lots. The plans represent them to be so, the lease refers to and recognizes the plans, and the plaintiff cannot, in virtue of the lease upon which he bases his claim, insist that the land over which he claims the right of way is not part of these lots, but on the contrary is in fact a piece of land in rear of and outside of those lots. The whole gist of the plaintiff’s contention is, that in virtue of his contract of May, 1881, to lease the lot described on a plan said to be annexed to the contract as lot No. 10 on the north side of Baldwin street, he thereby contracted for and became entitled to a right of way over a piece of land shown on the same plan as a lane in rear of lots on the east side of Huron street; if that contention be well founded, a fortiori when he accepted a lease under said plan in fulfilment of his contract, he can only claim whatever that lease and the plans therein referred to give him, and as the lot No. 10 on the north side of Baldwin street is therein described as being the lot of that number and street, “according to registered plans 352 and 380” his rights must be taken to be governed by plan 352 as well as by plan 380, or wholly by 352 if the corporation could not by registering plan 380 detract from their lease of lands particularly designated on the plan 352 as lots 11, 12, 13, 14 and 15 on the east side of Huron street. The plaintiff can, therefore, have no right of way whatever in virtue of his lease of May, 1882, over land shown upon plan 852, (as indeed it also is by plan 380,) to be part of the above lots on the east side of Huron street leased to MacDonell in June, 1881; his claim, therefore, as asserted in his statement of his claim under that lease cannot be sustained. But I am of opinion that the plaintiffs contention as founded on his contract of May, 1881, assuming it to be yet unexecuted, is not well founded. That contract did not in terms give or profess to give to the plaintiff a right of way over the piece of ground in rear of the lots on Huron street, nor did it deprive the corporation of the right to throw that piece of ground into the lots on Huron street. All that the plaintiff contracted for was a lease of the piece of ground shown on the plan exhibited at the auction as lot No.10 on the north side of Baldwin street. That is to say, a lot as described in the advertisement of the particulars of the auction sale as being situate on the north side of Huron street, and east of Huron street and numbered ten having a frontage of 21 feet on Baldwin street and a depth of 120 feet to a lane, 20 feet in width extending along the rear of the several lots numbered from 10 to 1 inclusive on the north side Baldwin street to Huron street. The plan as referred to in the contract is not imported into it further than to show the boundaries of lot No. 10, and the access afforded to its rear from Huron street by the lane of twenty feet in width, which the particulars of sale stated to be in rear of the several lots to be offered at the auction. The plaintiffs contract gives him no interest whatever in the pieces of land originally designed to be lanes in rear of the lots 11 to 15 on Huron street, or in rear of lots 16 to 25, on Cecil street, nor any right to prevent the corporation from altering the dimensions of those lots by throwing the pieces designed as lanes in rear of them into lots; the language of Lord Cottenham in Squire v. Campbell,[35] and of Lords Cottenham and Campbell in the North British Railway Co. v. Tod[36] also reported in 10 Jur. 975, and of Sir J.L. Knightbruce in Randall v. Hall[37], and the other authorities referred to by Chief Justice Hagarty are conclusive on this point. As the present case, however is, not for specific performance of an unexecuted contract, but as the claim asserted by the plaintiff is based wholly on the terms of the lease which he has accepted as in fulfilment of his contract, it is sufficient to say that his lease confers upon him no such rights as he claims, and he has no right to interfere with the lease executed to the defendant MacDonell in June, 1881.
This appeal therefore must be dismissed with costs.
Appeal dismissed with costs.
Solicitors for appellants: Cameron, Caswell & St. John.
Solicitors for respondent MacDonell: Moss, Falconbridge & Barwick.
Solicitor for respondents, City of Toronto: W.G. McWilliams.
Solicitor for respondents Bennetts: W. Mortimer Clarke.
[1] 11 Ont. App. R. 416.
[2] 7 O.R. 194.
[3]11 Beav. 355.
[4] 6 Gr. 619.
[5] 6 Gr. 623.
[6] 6 U.C.C.P. 350.
[7] 39 U.C.Q.B. 247.
[8] 6 Ont. App. R. 323.
[9] 10 Can. S.C.R. 105
[10] 21 Ch. D. 243.
[11] 2 Dow 301.
[12] 13 Beav. 254.
[13] 4 DeG. & Sm. 343.
[14] 1 Mylne & C. 459.
[15] 16 C.B.N.S. 100.
[16] 12 C. & F. 722.
[17] L.R. 7 Ex. 298.
[18] 1 Taunt 495.
[19] L.R. 10 C.P. 307.
[20] 8 App. Cas. 467.
[21] 26 U.C.C.P. 233.
[22] L.R. 9 Q.B. 278.
[23] L.R. 9 Q. B. 4.
[24] 6 Ont. App. R. 323.
[25] 12 C. & F. 722.
[26] 4 DeG. & Sm. 343.
[27] 13 Beav. 254.
[28] 2 Dow 301.
[29] 1 Mylne & C. 459.
[30] 15 Ch. D. 306.
[31] 19 Gr. 512.
[32] 39 U.C.Q.B. 247.
[33] 11 L.J. Ch. 161.
[34] 12 Q.B.D. 32.
[35] 1 Mylne. & C. 459.
[36] 12 C. & F. 722.
[37] 4 De G. & Sm. 349.