Leamy v. The King

Leamy v. The King
Collection
Supreme Court Judgments
Date
1916-11-07
Report
(1916) 54 SCR 143
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Canada
Subjects
Maritime law
Decision Content
Supreme Court of Canada
Leamy v. The King, (1916) 54 S.C.R. 143
Date: 1916-11-07
Sarah Elizabeth Leamy and Others (Suppliants) Appellants;
and
His Majesty the King (Respondent) Respondent;
and
The Attorney-General for
The Province of Quebec Intervenant.
1916: May 17, 18; 1916: November 7.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Rivers and streams—Navigable waters—Floatability—Ownership of beds—Grant of Crown lands—Conveyance of bed of navigable waters—Title to land—Art. 400 C.C.
In the Province of Quebec, a river which, owing to natural obstructions, is capable only of floating loose timber (flottables à bûches perdues), in portions of its course may, at least from its mouth upwards until some such obstruction is reached be navigable and subject to the rule of law applicable to navigable waters. As the river in question for several miles from its mouth upwards to a point where its course is obstructed by rapids is in fact capable of being utilized for the purposes of navigation the bed of the stream for that distance forms part of the Crown domain. (Art. 400 C.C.)
Without express terms to that effect a Crown grant, made in 1806, of township lands in the territory now comprised in the Province of Quebec did not pass title to the grantee in the bed of navigable waters within the area described in the letters patent of grant. Idington J. dissented on the ground that the language of the letters patent in question was intended and was sufficiently explicit and comprehensive to convey to the grantee the bed of the navigable waters included within the limits of the description of the lands granted.
The judgment appealed from (15 Ex. C.R. 189), was affirmed, Idington J. dissenting. APPEAL from the judgment of the Exchequer Court of Canada[1], dismissing the suppliants' petition of right with costs.
The circumstances of the case are stated in the judgments now reported.
The arguments on the appeal were heard on the 25th and 26th of May, 1915, and judgment was reserved On the 17th of June, 1915, the Attorney-General for the Province of Quebec applied to the Supreme Court of Canada for leave to intervene in the appeal and to be heard as a party asserting a claim to the lands in question; permission was granted for the filing of the intervention and the appeal was subsequently re-heard on the issues therein raised. By the judgment now reported it was considered that, as the intervenant, in the factum filed on the intervention, had asked that the judgment of the Exchequer Court of Canada should be affirmed and the appeal dismissed it was unnecessary to determine, on this appeal, the respective rights in the lands of the Province of Quebec and of the Dominion of Canada. The appeal was dismissed with costs and it was ordered that there should be no costs allowed to any party on the intervention.
Aylen K.C. for the appellants cited Maclaren v. Attorney-General for Quebec[2]; McBean v. Carlisle[3]; Hurdman v. Thompson[4]; Attorney-General for Quebec v. Scott[5], at page 615; Watkinson v. McCoy[6]; McPheters v. Moose River Log-Driving Co.[7]; Perry v. Wilson[8]; Dixson v. Snetsinger[9], at p. 243; Graham v. The King[10]; and Davidson v. The Queen[11].
Chrysler K.C. for the respondent cited Attorney-General for British Columbia v. Attorney-General for Canada[12]; The Queen v. Moss[13], at page 328; Attorney-General for Quebec v. Scott[14], at page 612; Tanguay v. Canadian Electric Light Co.[15]; "B.N.A. Act, 1867," sec. 108, item 5, Sch. 3; and referred to "Documents relating to the Constitutional History of Canada, 1791-1818," published by the King's Printer for Canada, in 1914, page 13 and pages 61 et seq.
It was also argued that prescription had been acquired in virtue of long possession by the Crown.
Belcourt K.C. for the intervenant, cited Lord Advocate v. Weymss[16], at page 66, and Gann.v. Free Fishers of Whitstable[17].
The bed of the Gatineau River, wherever navigable or floatable, is vested in the King in the right of the Province of Quebec, with the exception only of those portions thereof which, by virtue of the provisions of the "B.N.A. Act, 1867," may have become vested in the Dominion of Canada. We refer to the Quebec statute 6 Geo. V., ch. 17, inserting the following in the Revised Statutes of Quebec, 1909, after article 1524.—"1524 (a). Whatever may have been the system of Government in force, the authority which in the past has had the control and administration of public lands in the territory now forming the Province of Quebec or any part thereof, has always had the power to alienate or lease, to such extent as was deemed advisable, the beds and banks of navigable rivers and lakes, the bed of the sea, the seashore and lands reclaimed from the sea, comprised within the said territory forming part of the public domain."
The intervenant submits that the evidence abundantly warrants the finding of the learned trial judge that that part of the Gatineau River which borders on lots 2 and 3 was at the date of the letters patent, and is now, navigable and floatable according to the law and jurisprudence on the question; and that the appellants have not established a title through Philemon Wright, assuming that the latter ever acquired any title thereto.
Aylen K.C. for the appellants
Chrysler K.C. for the respondent
The Chief Justice.—This is a petition of right brought by the appellants to have it declared that they are the owners, and as such entitled to the possession of the bed of the River Gatineau within the boundary lines of lots 2 and 3 in the 5th range of the Township of Hull in the Province of Quebec.
The petition was dismissed by Mr. Justice Audette on two grounds (a) that the River Gatineau at the point in question is navigable and was so at the time the grant relied on by the appellants was made; (b) that the bed of the river was not included in the grant.
A river must surely be navigable if it is in fact navigated and I do not understand how it could be successfully contended that the River Gatineau is not, as it crosses the lots in question, "navigable and floatable." The appellants do not seriously dispute the finding of the trial judge to that effect. In their factum here they boldly take this position:—
Whether the Gatineau River, in the locality of the lots in question, is navigable or unnavigable, floatable or unfloatable, the ownership of the bed passed by the grant to their "auteur, "Philemon Wright, and McBeanv. Carlisle[18], is referred to No one disputes or puts in question the point decided in that case. In Quebec a right of servitude in favour of the public undoubtedly exists for certain purposes over all streams, whether navigable or not. The question we have to decide, however, relates not to the use of the water, but to the ownership of the bed of the stream, and at once the distinction must be made between rivers which are navigable and those which are not. The beds of non-navigable and non-floatable streams are the property of the riparian owner ad filum aquœ (Maclaren v. Attorney-General for Quebec[19]), and pass with the grant of the ripa. On the other hand, from the very earliest days the courts of Quebec have held, and it is by the law of that province that this case must be decided, that the title to land which forms the bed of a navigable river can only be acquired by an express grant.
By French law the beds of all navigable rivers were deemed to be vested in the King as a public trust to subserve and protect the public right to use them as common highways for commerce. (Art. 400 C.C.) In France the King by virtue of his proprietary interests could grant the soil so that it should become private property, but his grant must be express (In re Provincial Fisheries[20], at page 527), and, in all cases, made subject to the paramount right of public use of the navigable waters which he could neither destroy nor abridge (Proudhon, "Traité du Domaine Public," Vol. 3, No. 734). As under the French law the beds of navigable streams were vested in the King of France (Fisheries Case, 26 Can. S.C.R. 444), that title passed to the King of England by right of conquest. The laws of a conquered country remain in force unless and until they are altered and therefore the Crown now holds those lands upon the same trusts as before.
Since Confederation the title to beds of navigable rivers has been vested in the Crown in right of the province but the authority to legislate regarding the public right of navigation is, by the "British North America Act, 1867," assigned to the Dominion Parliament as coming within the subjects of trade and commerce and navigation which are among those enumerate in section 91 as within its exclusive authority.
In the United States courts it has been held that the power conferred upon the Federal Congress to regulate commerce extends not only to the control of the navigable waters of the country and the lands forming the beds thereof for the purposes of navigation, but also to authorizing the use of the beds of the streams for the purpose of erecting thereon piers, bridges and all other instrumentalities of commerce which, in the judgment of Congress, may be deemed necessary or convenient. The doctrine is very clearly stated in Stockton v. Baltimore and New York Railroad Co.[21].
It follows, therefore, that any legal title which might have become vested in a private individual must be subject to the same public trust and, therefore, subordinate to the rights of navigation and to the power of Parliament to control and use the soil in such navigable rivers, whenever the necessities of commerce and navigation demand. The right of Parliament to regulate trade and commerce and navigation remains unaffected by the question as to whether the soil of the shore submerged is in the Crown in the right of the province or in the owner of the shore.
Mr. Justice Brodeur refers to the opinion of Sir L. H. Lafontaine in the "Seigniorial Case" to the effect that the grant by the Crown of the bed of a navigable river must be made in express terms. It is not to my knowledge that the opinion so expressed has ever been doubted.
The letters patent in this case make no reference to a river, and the diagram attached to the grant has nothing to indicate that the Crown or the grantee had any knowledge of the fact that the River Gatineau crossed the lots in question. In these circumstances, the petition of right must fail on the short ground that the River Gatineau, being a navigable stream at the locus in question, was not included in the grant which is silent with respect to it. The appeal should be dismissed with costs and there will be no costs on the intervention.
See Pothier and Troplong as to défaut de contenance.
Davies J.—The substantial questions raised upon this appeal were two: First, whether the appellants were entitled to a declaration as prayed that they were vested as proprietors with all those portions of the bed of the Gatineau River within the boundaries of lots 2 and 3 in the 5th range of the Township of Hull, Province of Quebec, as described in the Crown grant of 3rd January, 1806, whereby the Township of Hull was created.
For the purposes of this appeal, I assume the correctness of the findings of the trial judge that the suppliants had all the right, title and interest in the lots in question possessed by their original auteur, Philemon Wright, senior, under the said grant.
The second question, necessary to the determination of the first, was whether or not the Gatineau River was a navigable one from its mouth to Ironsides, just above which the first rapids and falls obstructing navigation begin? It is within this part of the river that the plaintiffs' claim is made.
In my judgment, the evidence shews conclusively that the river was a navigable one as far back as the memory of living witnesses went and was largely used as such by the great lumbering firm of Gilmour & Co. for about fifty or sixty years or more. The distance from its mouth to Ironsides is some four or five miles. The evidence places that fact of navigability beyond reasonable doubt.
Then comes the question —if that portion of the river in question, which embraces the locus in dispute, was navigable when the grant passed, did or could the grant operate to convey a title to the grantee in the river bed?
The boundaries of the Crown grant are general but no doubt cover and embrace this river bed and if such a grant could legally convey that part of the navigable four or five miles of the river to the grantee, as claimed, it no doubt did so.
Finding, as I do, however, the river from its mouth up to the rapids to have been a navigable one, I reach the conclusion that such navigable portion of it was not and could not be conveyed by the grant.
If the bed of such portion of the river as was navigable was intended to be conveyed express words to that effect would be necessary to be used, assuming the bed of a navigable river could be conveyed at all by the Crown without legislative authority. In the case of the grant before us no such express words are used nor is the river referred to at all in the grant or shewn at all upon the plan to which the description refers. It is conceded that no legislative authority for the grant existed. The contention of the suppliant is, however, that without express words and in the absence of legislative authority the Crown could by such general words as are used in the grant pass the title in the bed of a navigable river flowing through the lands granted.
It is the civil law and not the common law which governs in this case and the test of navigability is not a tidal but a practical one, namely—as a fact, is the river at the locus in dispute a navigable one? And, as I have held, its navigability for all practical purposes is unquestionable for four or five miles up from its mouth.
I cannot but think that this action was brought by the suppliants on a misunderstanding of the decision of the Privy Council in the case of Maclaren v. The Attorney-General of Quebec[22].
That case merely decided (1) that the general descriptions of the townships there in question, being bounded by the river, were not varied by the references to the posts and stone boundaries in the detailed descriptions (2) that the River Gatineau being one down which only loose logs could be floated was not a part of the Crown domain within article 400 of the Civil Code and that the appellant's lands on either side of the river extended ad medium filum aquœ.
Mr. Aylen attempted to apply the second finding of the Judicial Committee not only to the locus there in dispute but to the entire length of the river including the navigable part of it below Ironsides which embraces the locus in dispute in this appeal.
The river beyond Ironsides, in its upper reaches, may not be navigable but one down which loose logs alone could be floated but, in my opinion, that fact and the legal consequences which flow from it cannot affect the four or five miles from its mouth to Ironsides the evidence with respect to which shewed conclusively that it was navigable for loaded barges, steamers and other kinds of river craft and was, as a fact, while the Gilmour lumbering company carried on their operations for a period covering fifty or sixty years, so navigated.
That portion of the river between its mouth and Ironsides is crossed by two bridges—one is a drawbridge to pass vessels through and the other a bridge of the Canadian Pacific Railway Co. 80 feet high and under which vessels passed. The booms and river improvements, which consist of piers, 1 to 12, running up the river from its west to its east side in a slanting direction, passed to the Dominion Government under section 108 of the "British North America Act, 1867." In the case of the Attorney-General of Quebec v. Fraser[23], this court, of which I was a member, held that the River Moisie, in the Province of Quebec, for four of five miles up from its mouth till it reached the "falls," was a navigable river and, for that reason, a grant of lands bounded by the banks of that river did not convey to the grantee the bed of the river ad medium filum aquœ. In a summary of our holdings in that case formulated at the end of the reasons for the judgment of the court, delivered by Girouard, J., we say:— That the legal effect of the language of the patent with respect to the bed of the river, and the fishing rights therein, depends upon the determination of the question whether the Moisie at and in the four or five of its miles covered by the patent is navigable or floatable within the meaning of the law of Quebec, and that, adopting the test of navigability laid down by the Privy Council and hereinbefore quoted, we concur with the findings of the trial judge, and which findings are not questioned in the judgment of the court of appeal, that such river at such locality and from thence to its mouth, is so navigable and floatable.
That judgment was subsequently appealed to the Judicial Committee, sub nomine Wyatt v. Attorney-General of Quebec[24].
In their judgment, which affirmed the decision of this court, their Lordships approved of and incorporated in their reasons the summary of the judgment of this court including the part above quoted. The facts with respect to the navigability of the rivers Moisie and Gatineau a few miles up from their mouths and their non-navigability beyond that for nearly 200 miles are very similar and, in my opinion, the judgment of the Privy Council in Wyatt v. Attorney-General of Quebec24 is very much in point on the disputed question in this case if it is not conclusive.
The result of that is to hold that the navigability of some miles of a river from its mouth, which is found and held, and the legal consequences which flow from that finding cannot be affected by the fact that, higher up, the river becomes, by reason of falls and rapids, unnavigable and capable only of carrying floating logs.
In the reasons for the judgment of their Lordships of the Privy Council in the Maclaren Case[25] delivered by Lord Moulton, his Lordship was most careful to define exactly what was being decided. He says, at page 274 of that case:— But this is not all. The rights of the public in the River Gatineau are not in any way put in issue in this case. The parties to this appeal are substantially at one on the question of the private ownership of the bed of the River Gatineau. The only difference between them is as to which of two private owners possesses it. The appellants contend that the portion of the bed of the river which is in question passed to their predecessors in title, by the grants to Caleb Brooks in 1860 and 1865, and that to William Brooks in 1891. The respondent contends that it passed to the defendants under the grant to them in 1899. Neither party, therefore, sets up a title in the public. So far as the River Gatineau is concerned the decision of this case will do no more than decide whether or not the language of certain existing grants was sufficient, to pass particular portions of that bed, or whether, after such grants were made, they still remained in the hands of the Crown so that it had power to grant them by a later grant.
Now it is attempted to apply some general observations made as to the River Gatineau being a navigable river or not to the entire river, including the locus near its mouth.
It does not seem to me that there was any intention on the part of the Judicial Committee to lay down any such rule as that contended for or to overrule or in any way call in question the previous decision of their Lordships with respect to the Moisie River being navigable for four or five miles from its mouth while above that, for nearly 180 miles, navigation was stopped by the falls and rapids of the river.
Lord Moulton, after saying that speaking generally no substantial help is obtained by the decided cases in Quebec as to navigable and floatable rivers until the appointment of the Seigniorial Commissioners under the Act of 1854 to settle the value of the Seigniorial rights which were then about to be abolished, says that the decisions of those Commissioners were
of the highest authority as to the law then prevailing in Lower Canada
to which an almost authoritative sanction has been given by statute. He further says:—
Turning to these seigniorial decisions and the judgments of the individual judges which accompany them, one cannot find any specific reference to the status of the beds of rivers which were only "flottables à bûches perdues." But, on the other hand, one finds clear statements that the seigniors became by their grant proprietors of the non-navigable rivers which passed through the fief subject to legal servitudes and to the ad medium filum rule.
His Lordship held that these decisions and the subsequent case of Boswell v. Denis[26],
justified their Lordships in regarding the answers to the seigniorial questions as meaning that rivers were not floatable in the legal sense of that term if they were only so à bûches perdues,
and that their Lordships approved of the decision of this court in Tanguay v. Canadian Electric Light Co.[27], where the precise point was so decided.
For the purposes of this case I conclude that the decisions on the seigniorial questions referred to by Lord. Moulton with commendation and approval decided the law in Quebec to be that grants from the Crown did not without express words in them pass the beds of navigable rivers to grantees. In such a case as the grant before us purporting to convey certain lots of the Township of Hull through which the River Gatineau flowed and in which grant no reference at all was made to the river, the bed of the river for the four or five miles from its mouth where the river was navigable did not in my judgment pass to the grantee.
A third question was raised whether the possession of the Crown for so long a period as that proved, evidenced by the construction and maintenance of the twelve blocks or piers built upon the bed of the river and connected together by logs or booms, did not bar the plaintiffs' claim. In my opinion it did.
Re-stated shortly, my opinion is that a river such as the Gatineau, nearly 180 miles in length, may be in fact and in law navigable for miles from its mouth and until the falls or rapids are reached which prevent further navigation while it may not be navigable above those obstructions.
That in the case of Attorney-General of Quebec v. Fraser[28] the point Was so decided, and on appeal to the Privy Council was affirmed, and that by virtue of the civil law of Quebec in order to pass the bed of a navigable river from the Crown to the grantee express words and statutory authority must be shewn.
Lastly, the plaintiffs' claim in this case is barred by the Crown's possession of the bed of the river as proved by the evidence.
The appeal, therefore, should be dismissed with costs but no costs on the intervention.
Idington J. (dissenting).—The appellants by petition of right sought to have it declared that under and by virtue of a grant on 3rd January, 1806, from the Crown to one Philemon Wright, of lots 2 and 3 in the 5th range of the Township of Hull, in what is now the Province of Quebec, he acquired the bed of the Gatineau River so far as running through the said lots as part of said grant, and that they by a series of transfers by way of conveyance, devise and inheritance, have acquired same. They claimed that respondent had taken and withheld same, or parts thereof, by means of structures erected in the river and booms so connected therewith for the purpose of retaining in store, temporarily or for long periods, logs, rafts and other material; and by the operation of the various devices in question has deprived them of sand and gravel of great value, and otherwise of the profits derivable from the ownership of said property. The respondent admitted the letters patent in question issued on said date, but denied apparently everything else and put appellants to the proof and further alleged that the Gatineau River where it flows through said two lots is and has always been a public navigable river and that the soil and bed of the said river is the property of respondent and not of appellant.
The learned trial judge suggested that the title to relief should be first tried and if any legal damages suffered, then a reference should be directed to determine the measure thereof.
He found the appellants had in fact acquired whatever title the original grantee had in said lots but in law he held that the grant in question did not pass any title to the bed of the stream.
The correctness of this latter holding must turn first upon the power of the Crown to make the grant and next upon whether in law the terms used therein are sufficiently clear to carry in them the intention to convey the bed of the stream free from any public right such as of navigation.
The power of the Crown so to grant must turn upon the nature of its title to such waste domains which it became seized of by statute or otherwise as result of the cession of 1759, and be subject to such restrictions, if any, as existed at the time in question.
I should feel reluctant to cast a possible doubt upon titles dependent upon the grants of the Crown by holding that the prerogative had been so limited in the scope of its authority by reason of what French law or custom may be found to have imposed upon the prerogative of the French Crown.
In so far as anything in question herein may depend upon the royal prerogative, the measure thereof I take it must be that recognized by English law as determining the same and, in the language of Lord Watson in the case of Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick[29], at page 441,
the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain.
I may in adopting this opinion be permitted to add that I incline to think there are cases in which the prerogative may extend further in some colonies than it now may in England.
In some colonies the limitations imposed by statute, applicable to England or Great Britain only, may not be suitable to local colonial conditions even if English law so far as suitable thereto may have been introduced.
In measuring the rights acquired in Quebec before the cession from the French Crown, article 400 of the Code may be of value so far as respects the law of that earlier period.
In such cases whatever impliedly failed by French law to pass to the grantee must be presumed to have been preserved to the Crown and to have passed to the English Crown. In that sense the opinion of the learned judges of the Seigniorial Court must be always held of great value relative thereto.
What, however, we now have to deal with is of an entirely different nature. It arises out of the grant by the English Crown of part of the waste lands of the Crown, in Quebec, in 1806—sixty years before the Civil Code was enacted.
The result mayor may not differ from a fair consideration of what might have been the effect of a similar grant if made by the French Crown before the cession. It conduces, however, to a clear conception of what we have to deal with herein to bear in mind that it is English and not French law which we have to consider and that article 400 C.C., so much relied upon, cannot help us herein.
To prevent misapprehension it may be observed that from the time article 400 C.C. came into force, in 1866, as part of the Civil Code, the Crown having assented thereto may be possibly bound thereby as to subsequent grants unless so far as expressly or impliedly modified by later legislation. I express no opinion upon that. All I am concerned with just now is to eliminate what to my mind is obvious error leading to confusion on a subject where there is so much apt to confuse, even when we have eliminated all that we possibly can which tends to mislead. And I may here observe that in the numerous cases I have referred to in the course of this inquiry, the only formally expressed reason I have found advanced for applying the test of French law in this regard is that assigned by the late Mr. Justice Gwynne in the case of Dixson v. Snetsinger[30], at page 242, when he quotes and relied upon 14 Geo. III. whereby it was enacted
that in all matters of controversy relative to property and civil rights resort shall be had to the laws of Canada as the rule for the decision of the same.
I fail to see how that provision for the decision of rights in controversy between subject and subject relative to questions touching their property and civil rights can touch or measure the prerogative rights of the Crown relative to the Crown domain. It is elementary that unless the Crown is reached by express words or necessary implication in any statute its rights or prerogatives are not affected thereby.
There is no such expression in the statute in question. Indeed there is much in the statute forbidding such implication, to say nothing of section 9 which provides that section 8 which confers said right shall not be extended to any lands that had been granted or should thereafter be granted by His Majesty to be held in free and common soccage.
I am not concerned with the outcome thereof. It might well be that where lands "were granted and any dispute arose relative to them between subjects of the Crown their rights might be determined by French or other law, yet the rights of the Crown to deal with that ungranted would not be affected by any such rule.
I do not quarrel with the result of the decision in Dixson v. Snetsinger[31], which seems to have been rightly decided.
The rebuttable presumption of law which gives the riparian grantee of lands ad filum aquœ as his boundary might well be held in reason and common sense rebutted when such a claim is confronted by the facts involved when attempted to be applied to such a river as the St. Lawrence.
Fortunately we need not pursue that inquiry. The exigencies of this case are not such as to call therefor.
It is the range of possible activity of the English Crown in law over the waste lands thereof in an English colony which we have to deal with and whether or not the limits thereof are to be taken from what we find in relation thereto governing its action in England in regard to inland rivers, does not seem to me to make any practical difference for the purposes of this case.
The Gatineau River is far from tidal waters. The limitations upon the powers of the Crown in regard to tidal waters may therefore at once be eliminated from our consideration.
I think the law upon the subject may be accepted as expressed in Coulson & Forbes on the Law of Waters, at page 515 (3rd ed.), as follows:—
The public right of navigation may exist in non-tidal as well as in tidal waters; and where it does so exist, the principles of law which have been stated with regard to tidal waters will equally apply.
But in the case of non-tidal rivers, the right of passage does not exist as a public franchise paramount to all rights of property in the bed, but can only be acquired by prescription, founded on a presumed grant from the owners of the soil over which the water passes. It would not, therefore, appear to extend primâ facie to a right of passage over the whole of the navigable channel, as in the case of tidal rivers, but to be strictly limited to the extent of the right granted or user proved.
I assume that the law is thus correctly stated and hence a grant of the soil as well as right to fish might have been made by the Crown if possessed thereof in an inland river though navigable. Such I take it are the implications in the foregoing statement just quoted.
The doctrine laid down in the cases of Malcomson v. O'Dea[32], and Gann v. The Free Fishers of Whitstable[33], and many other cases seem to indicate that the Crown before Magna Charta had the power even in the case of tidal navigable waters to make a grant of the soil, but since the development of what is contained therein rather than what is expressed, the Crown cannot now in England make such a grant of soil in such river as will exclude the public or create a several fishery.
This suggests the inquiry of whether or not the like limitations bind the Crown in the colonies. If the prerogative of the Crown in such cases is to be measured by that existent anterior to Magna Charta, assuredly there cloud be no doubt of the power to make a grant of the soil in any tidal navigable river and thereby exclude the public and hence much more so relative to inland navigable rivers or other waters.
It may well be observed that the historical side of the question as exemplified in, the grants made in the early history of the English colonies in America may warrant us in saying that much wider powers than might be tolerated in England, if conceivable of exercise there, have been presumably duly exercised in colonies.
Though this case has been argued twice I have been unable to tempt counsel to help us in relation to the line of inquiry I thus suggest.
I presume counsel in so refraining have been well advised for the two-fold reasons, first that royal prerogative in these later and degenerate days, cannot be imagined to have possessed, even a long time ago, such powers (so repugnant to modern thought) as to render the resting of a claim thereon advisable; and next, that in any case it is the sand and gravel which would go with a rightful grant of the soil that appellants claim and possibly they attach little importance to the right thereto being subject to the public's reasonable rights of navigation. I therefore express no definite opinion on that aspect of the case.
The Crown certainly owned this soil in question and this river a hundred and ten years ago, and could within the law as laid down in the cases of Murphy v. Ryan[34], followed by Pearce v. Scotcher[35]; Tilbury v. Silva[36], without any great stretch of its prerogative grant both soil and river and let the public find its own way of reclaiming any uses thereon or thereof as they best might.
The case of Hurdman v. Thompson[37], and other like cases also support the appellants' contention relative to the power of the Crown to convey the soil in the bed of a navigable river. As they do not bind us I have tried to test the question by the application of general principles which should prevail.
The process adopted for disposing of this part of the wilderness to induce settlement thereof is outlined in the recitals in the grant. And in the instructions to Lord Dorchester, as Governor-General in 1791, some fifteen years before the grant in question both the learned trial judge and counsel arguing here seem to find the only guide to the meaning of said recitals.
I should much have preferred to have seen the instructions to Bouchette, the Surveyor-General, and the reports of the surveyors to him, accompanied as they doubtless were with their field notes, and default those illuminating records should have been glad to have had some reasonable explanation for their non-production.
Had such and the like information relative to the instructions to the Governor-General and Lieutenant-Governor, for the time being, been forthcoming or accounted for, we could probably approach the use of the fifteen-year old instructions to Lord Dorchester and use same with more confidence, than we can in the absence thereof, that the inferences to be drawn therefrom are resting upon a sure foundation.
With such doubt and hesitation as must exist under such circumstances I assume that the instruction to Lord Dorchester and the terms of his commission give us at least a fair indication of the policy of the advisors of the Crown at that time and in all probability it continued for some years unchanged especially as the appointment of Lord Dorchester was coeval with the new departure in the Government of Canada.
The commission to Lord Dorchester contained direct authority for making grants of such kind as in question herein in the following terms:—
And we do likewise give and grant to you full power and authority with the advice of our Executive Councils for the affairs of our said Provinces of Upper Canada and Lower Canada to grant lands within the said provinces respectively which said grants are to pass and be sealed with our Seal of such Province and being entered upon record by such officer or officers as shall be appointed thereunto shall be good and effectual in law against us Our Heirs and Successors: Provided nevertheless that no grants or leases of any of the trading ports in our said provinces shall under colour of this authority be made to any person or persons, whatsoever until our pleasure therein shall be signified to you.
This was accompanied by instructions relative to the execution of this power as follows:—
It is therefore Our Will and Pleasure, that all and every person and persons, who shall apply for any grant or grants of land, shall previous to their obtaining the same, make it appear that they are in a condition to cultivate and improve the same, and in case you shall, upon a consideration of the circumstances of the person or persons applying for such grants, think it advisable to pass the same, you are in such case to cause a warrant to be drawn up directed to the Surveyor-General or other officers empowering him or them to make a faithful and exact survey of the lands so petitioned for, and to return the said warrant within six months at farthest from the date thereof, with a plot or description of the lands so surveyed thereunto annexed, and when the warrant shall be so returned by the said surveyor, or other proper officer, the grant shall be made out in due form, and the terms and conditions required by these Our Instructions be particularly and expressly mentioned therein—and it is Our Will and Pleasure that the said grants shall be registered within six months from the date thereof in the Registrar's office, and a docket thereof be also entered in Our Auditor's Office, copies of all of which entries shall be returned regularly by the proper officer to Our Commissioners of Our Treasury.
32. And for the further encouragement of Our Subjects, It is Our Will and Pleasure that the lands to be granted by you as aforesaid, shall be laid out in townships, and that each inland township shall, as nearly as Circumstances shall admit, consist of ten miles square; and such as shall be situated upon a navigable river or water shall have a front of nine miles, and be twelve miles in depth, and shall be subdivided in such manner as may be found most advisable for the accommodation of the settlers, and for making the several reservations for public uses and particularly for the support of the protestant clergy agreeably to the above recited Act passed in the present Year of Our Reign.
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That no farm lot shall be granted to any one person being master or mistress of a family in any township so to be laid out, which shall contain more than 200 Acres.
It is our Will and Pleasure, and you are hereby allowed or permitted to grant unto every such person or persons such further quantity of land as they may desire, not exceeding one thousand acres over and above what may have heretofore been granted to them, and in all grants of land to be made by you as aforesaid, you are to take care that due regard be had to the quality and comparative value of the different parts of land comprised within any township, so that each grantee may hav