Windsor & Annapolis Railway Co. v. The Queen and the Western Counties Railway Co.

Windsor & Annapolis Railway Co. v. The Queen and the Western Counties Railway Co.
Collection
Supreme Court Judgments
Date
1885-02-16
Report
(1885) 10 SCR 335
Judges
Strong, Samuel Henry; Taschereau, Henri-Elzéar; Henry, William Alexander; Gwynne, John Wellington; Fournier, Télesphore
On appeal from
Canada
Subjects
Commercial law
Decision Content
Supreme Court of Canada
Windsor & Annapolis Railway Co. v. The Queen and the Western Counties Railway Co. (1885) 10 SCR 335
Date: 1885-02-16
The Windsor and Annapolis Railway Company
Appellants
And
The Queen and The Western Counties Railway Co.
Respondents
1883: Nov. 5; 1884: Nov. 3, 4; 1885: Feb'y. 16.
Present—Sir W. J. Ritchie, C.J., and Strong, Fournier, Henry, Taschereau and Gwynne, JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.
Petition of right—Agreement with Government of Canada for continuous possession of railroad—Construction of—Breach of by Crown in assertion of supposed rights—Damages—Joint misfeasor—Judgment obtained against—Effect of, in reduction of damages—Pleading—37 Vic. ch. 16.
By an agreement entered into between the Windsor & Annapolis Railway Company and the Government, approved and ratified by the Governor in Council, 22nd September, 1871, the Windsor Branch Railway, N. S., together with certain running powers over the trunk line of the Intercolonial, was leased to the suppliants for the period of 21 years from 1st January, 1872. The suppliants under said agreement went into possession of said Windsor Branch and operated the same thereunder up to the 1st August. 1877, on which date C. J. B., being and acting as Superintendent of Railways, as authorized by the Government, (who claimed to have authority under an Act of the Parliament of Canada, 37 Vic., ch. 16, passed with reference to the Windsor Branch, to transfer the same to the Western Counties Railway Company otherwise than subject to the rights of the Windsor & Annapolis Railway Company,) ejected suppliants from and prevented them from using said Windsor Branch and from passing over the said trunk line; and four or five weeks afterwards said Government gave over the possession of said Windsor Branch to the Western Counties Railway Company, who took and retained possession thereof. In a suit brought by the Windsor & Annapolis Railway Company against the Western Counties Railway Company for recovery of possession, &c., the Judicial Committee of the Privy Council held that 37 Vic., ch. 16, did not extinguish the right and interest which the Windsor & Annapolis Railway Company had in the Windsor Branch under the agreement of 22nd September, 1872.
On a petition of right being filed by suppliants, claiming indemnity for the damage sustained by the breach and failure on the part of the Crown to perform the said agreement of the 22nd September, 1871, the Exchequer Court of Canada, (Gwynne, J., presiding,) held that the taking the possession of the road by an officer of the Crown under the assumed authority of an act of parliament was a tortious act for which a petition of right did not lie.
Held,—On appeal to the Supreme Court of Canada, (Strong and Gwynne, JJ., dissenting,)—The Crown by the answer of the Attorney General did not set up any tortious act for which the Crown claimed not to be liable, but alleged that it had a right to put an end to the contract and did so, and that the action of the Crown and its officers being lawful and not tortious they were justified. But, as the agreement was still a continuous, valid and binding agreement to which they had no right to put an end, this defence failed. Therefore the Crown, by its officers, having acted on a misconception of or misinformation as to the rights of the Crown, and wrongfully, because contrary to the express and implied stipulations of their agreement, but not tortiously in law, evicted the suppliants, and so, though unconscious of the wrong, by such breach become possessed of the suppliants property, the petition of right would lie for the restitution of such property and for damages.
Prior to the filing of the petition of right, the suppliants sued the Western Counties Railway Company for the recovery of the possession of the Windsor Branch, and also by way of damages for monies received by the Western Counties Railway Company for the freight or passengers on said railway since the same came into their possession, and obtained judgment for the same, but were not paid. The judgment in question was not pleaded by the Crown, but was proved on the hearing by the record in the Supreme Court of Canada, to which Court an appeal in said cause had been taken and which affirmed the judgment of the Supreme Court of Nova Scotia.
Held, Per Ritchie, C.J., and Taschereau, J.—That the suppliants could not recover against the Crown, as damages, for breach of contract, what they claimed and had judgment for as damages for a tort committed by the Western Counties Railway Company, and in this case there was no necessity to plead the judgment.
Per Fournier and Henry, JJ., that the suppliants were entitled to damages for the time they were by the action of the Government deprived of the possession and use of the road to the date of the filing of their petition of right.
APPEAL to the Supreme Court of Canada from the judgment of Mr. Justice Gwynne, in the Exchequer Court of Canada, in favour of Her Majesty the Queen.
The suppliants are a company incorporated by an act of the Legislature of the Province of Nova Scotia, and owners of a line of railway running from Windsor to Annapolis in that province.
On the 22nd day September, 1871, an agreement was entered into between the Government of the Dominion of Canada and the suppliants, whereby the Windsor Branch Railroad, extending from Windsor Junction, on the Intercolonial Railway, to the suppliants' railroad at Windsor aforesaid, together with running powers over the trunk line of the said Intercolonial Railway, to and from Halifax, were leased to suppliants for the period of twenty-one years from the 1st January, 1872.
The suppliants, under said agreement, went into possession of said Windsor Branch and operated the same thereunder up to the 1st day of August, 1877, on which date Charles J. Brydges, being and acting as Superintendent of Government Railways, and acting for the Government of Canada, ejected suppliants from and prevented them from using said Windsor Branch and from passing over the said trunk line; and shortly afterwards said government gave over the possession of said Windsor Branch to the defendants, the Western Counties Railway Company, who took and retained possession thereof.
Under the proceedings taken the suppliants sought to recover from Her Majesty the Queen damages for the said breach of the agreement of September 22nd, 1871.
After answers had been put in on behalf of Her Majesty and the Western Counties Railway Company, respectively, evidence was adduced and an argument was had thereon in the Exchequer Court before Mr. Justice Gwynne, and judgment given in favor of Her Majesty, with costs, as follows:—
GWYNNE, J.:—
"This is a petition of right wherein the suppliants claim relief against Her Majesty in respect of the same matter as was the subject of complaint in a bill filed by the suppliants, as plaintiffs, against the Western Counties Railway Company, as defendants, in the Supreme Court of the Province of Nova Scotia, and decided in favor of the plaintiffs, and carried from thence by appeal to the Privy Council, where the judgment of the Supreme Court of Nova Scotia has been confirmed and is reported in L. Rep. 7 App. Cases 178. Upon the hearing of the case before me, the only points raised and discussed were: Whether proceedings by petition of right could be taken against Her Majesty to obtain satisfaction in damages for the pecuniary losses alleged to have been sustained by the suppliants by reason of the conduct which is the subject of the suppliants' complaint, and, if a petition of right does lie in such a case, what is the proper and reasonable amount which is recoverable by them from Her Majesty under the circumstances and for which judgment should be rendered in this case.
"The petition alleges that the suppliants are a company incorporated by an Act of the Legislature of the Province of Nova Scotia, passed prior to the passing of the British North America Act, for the purpose of constructing a railway from Windsor to Annapolis, in the Province of Nova Scotia, under the provisions of the said Act, and of an agreement of the 22nd November, 1866, therein recited, and incorporated into and made part of the said Act, whereby among other things it was provided that prior to the opening of the railroad a traffic arrangement should be made between the suppliants and the Provincial Government for the mutual use and enjoyment of their respective lines of railway between Halifax and Windsor and Windsor and Annapolis, including running powers, or for the joint operations thereof on equitable terms, to be settled by two arbitrators to be chosen by the said parties in the usual way in case of difference. That the suppliants, in pursuance and exercise of the powers vested in them by the Act, completed the said railway from Windsor to Annapolis, with a junction at Windsor communicating with a railway called the Windsor Branch Line and thereby with another railway called the Trunk Line into Halifax, both of these last mentioned lines being sections of the provincial railways, afterwards known as the Nova Scotia Railway, which at the time of passing the said Act was the property of the Government of Nova Scotia and so continued, subject to the rights claimed by the suppliants therein, until the 1st July, 1867, when by operation of the provisions of the British North America Act the said railway lines so far as they were the property of the Province of Nova Scotia, and subject to the rights of the suppliants therein, became the property of Canada. That an agreement between the Government of the Dominion of Canada, acting therein by the Minister of Public Works, under the authority and sanction of His Excellency the Governor General in Council, and the suppliants was, upon the 22nd day of September, 1871, entered into making provision for the use by the suppliants of the Windsor and Branch Trunk Line upon certain terms therein provided, by which agreement it was provided that the same should take effect on the first day of January, 1872, and continue for 21 years, and be then renewed upon like conditions as in the said agreement mentioned or upon such other conditions as might be mutually agreed upon. That in pursuance of such agreement of the 22nd September, 1871, and upon the 1st of January, 1872, the Government of Canada delivered to the suppliants, and they thereupon entered into the exclusive use and possession of the said branch line, with the stations, etc., in use thereon, subject, however, to the right of the Dominion Government to have access thereto for the purpose of maintaining the railway and works as provided in the said agreement, and the government likewise gave to the suppliants, and they thereupon took and exercised such use of the said trunk line and the accommodation specified in connection therewith in Article 3 of the said agreement of the 22nd of September, 1871, as they were under such agreement entitled to have and exercise; and that from the time when such use and possession of the said premises respectively were so given to them as aforesaid the suppliants continued to hold and enjoy the same and to work and operate their own railway line from Windsor to Annapolis, and the said branch and trunk lines from Windsor to Halifax until the first day of August, 1877, The petition then alleges, and herein is involved the gist and gravamen of the suppliants' complaint, that on day, namely, the 1st day of August, 1877, one Charles John Brydges, then being, and acting as, the superintendent of Government Railways, and acting on behalf of the Government of Canada, forcibly ejected the suppliants and their servants and railway stock from, and afterwards forcibly prevented them from coming upon or using or passing over the said trunk and branch lines, and he continued in possession thereof, and to prevent your suppliants from coming upon or using or passing over either of such lines, until shortly afterwards the said Government gave over the possession of the said Branch Line to another railway company, known as the Western Counties Railway Company, incorporated under an Act of the Legislature of Nova Scotia for the purpose of making a railway from Annapolis to Yarmouth in Nova Scotia, and that such company thereupon took and has ever since held possession of, and excluded the suppliants from, and from any use of the said Branch Railway, and that the said government have continued to the present time in possession of the said Trunk Line and to exclude the suppliants therefrom and from any use thereof. That by being so expelled and excluded as aforesaid the suppliants have been prevented from further performing their obligations or exercising the powers and privileges undertaken by and required of them under the said agreement of the 22nd of September, 1871, of operating and using the said Trunk and Branch Lines from Halifax to Windsor in connection with their own line from Windsor to Annapolis, and that save in so far as they have been so prevented by the said government from so doing the suppliants have duly operated the said railways and done and performed all other acts and conditions required to be done and performed on their part under and in respect of the said agreement of the 22nd September, 1871. The petition then states the passing of an Act of the Parliament of Canada, 37 Vic., ch. 16, for the purpose of raising the contention that it did not profess to give any authority to the Government of Canada to transfer the said branch railway to the Western Counties Railway Company otherwise than subject to the suppliants said rights, and that if the said act did purport so to do it was ultra vires of the Parliament of Canada and inoperative. The petition further alleged that by the acts so committed by the Government of Canada as aforesaid in forcibly expelling and excluding the suppliants, and by their breach of and failure to perform the said agreement of the 22nd of September, 1871, they had caused to the suppliants great injury, loss and damage, and the suppliants submitted that they had no effectual remedy in the premises against Her Majesty's government but by petition of right, but that they had been advised that they are entitled to recover possession of the said Branch Line from the Western Counties Railway Company, and that they had accordingly commenced a suit against them for the purpose in the Supreme Court of Equity in Nova Scotia; and the suppliants, among other things, prayed that the sum of one hundred and fifty thousand pounds sterling, or such sum as might be reasonable, might be paid to them in compensation and by way of damages for the breach and losses occasioned to them by the breach and failure of the Government of Canada to perform the said agreement of the 22nd of September, 1871.
"The judgment of the Privy Council, on the appeal of the Western Counties Railway Company from the judgment of the Supreme Court of Nova Scotia in the suit in Equity brought against that company by the Windsor & Annapolis Railway Company, has established that the latter company had a good title to the possession of the Windsor Branch Railway under the agreement entered into with them by the Government of Canada, dated the 22nd day of September, 1871, and the result of the success of the Windsor & Annapolis Railway Company in that suit has been to restore to them the possession of that branch railway from which they had been wrongfully evicted. The judgment has further decided that the agreement of the 22nd September, 1871, was an implement of the obligation to make a traffic arrangement which was contained in the agreement of November, 1866, and which was incorporated into and made part of the act incorporating the Windsor & Annapolis Railway Company. The Government of Canada therefore, which by the British North America Act became owners of the Windsor Branch Railway, subject to the rights and interest of the Windsor & Annapolis Railway Company therein, under the agreement of November, 1866, and their act of incorporation, specifically performed the agreement entered into with the Windsor & Annapolis Railway Company by the government of the old Province of Nova Scotia prior to Confederation and perfected the title of that company to the use, possession and enjoyment of the Windsor Branch Railway, under the agreement of the 22nd September, 1871, for the term of 21 years from the 1st day of January, 1872, unless that term should sooner become forfeited or extinguished by due process of law or determined by contract between the parties. The judgment of the Privy Council also determined that the Dominion Act 37 Vic., ch. 16, did not extinguish the right and interest which the Windsor & Annapolis Railway Company had in the Windsor Branch Railway under the agreement of the 22nd September, 1871, even if the Dominion had under the circumstances power so to do, a point which is not determined.
"The consequence is that at the time of the committal of the acts of trespass complained of by the suppliants, and which are made the foundation of the claim for indemnity in damages relied upon in this petition of right, the suppliants had full statutory right and title to maintain their possession of the Windsor Branch Railway, and had therefore ample power in the law, and the same power as all other owners of property have, to protect themselves against the wrongful acts of all persons whomsoever, whether such persons assumed to act in an official capacity as servants or agents to the Dominion Government or otherwise; the act therefore alleged to have been committed by Mr. Brydges, although he was invested with the character of superintendent of Government Railways, was, as indeed it is upon this petition charged to have been, a plain act of trespass for which he was liable to an action, so likewise the Western Counties Railway Company upon their entering and taking possession were equally wrongdoers, and as such responsible to the suppliants, and liable to indemnify them in damages for the injury which the latter thereby sustained, and they have been adjudged so to be by the judgment of the Supreme Court of Nova Scotia, which judgment has been affirmed by the Privy Council. Now what is sought to be obtained by this petition of right in addition to restitution of the property is merely compensation in damages to be paid by Her Majesty for the trespass and eviction so committed by persons acting under the authority of the Government of Canada, or professing so to do, in taking possession of the Windsor Branch Company, evicting the suppliants from the possession thereof and putting the Western Counties Railway Company into possession thereof, and for the mesne profits received by the Western Counties Railway Company during their possession. For the damages sustained by the suppliants by this trespass and eviction, the judgment recovered by the suppliants as plaintiffs against the Western Counties Railway Company renders that Company responsible, but the suppliants nevertheless claim the right to recover the same damages by a judgment to be rendered against Her Majesty upon the petition of right.
"To this petition the Western Counties Railway Company have been made parties under the provisions of the 6th section of the Dominion statute, 39 Vic., ch. 27, which is similar in its terms to the 5th section of the Imperial statute 23rd and 24th Vic., ch. 84, and the company have filed a statement in defence under the provisions of the statute, whereby they assert title to the property in dispute upon the same grounds as were unsuccessfully urged by them in the suit brought against them in the Supreme Court of New Brunswick, that is to say, under the provisions of an Act of the Dominion Parliament, 37 Vic., ch. 16. Her Majesty's Attorney General for the Dominion of Canada has also under the provisions of the statute 39 Vic., ch. 27, filed an answer to the suppliants' petition, wherein, while admitting the agreement of the 22nd November, 1866, referred to in the petition, and the execution of the instrument of the 22nd September, 1871, disputing however its validity and effect, and setting up a resolution of the House of Commons and certain resolutions passed by His Excellency the Governor-General in Council upon certain reports of the Minister of Public Works relating to the property in question, and setting up also the Dominion Act 37 Vic., ch. 16, proceeds to say in the 12th paragraph of such answer—that on or about the 25th July, 1877, the Government of Canada having completed arrangements with the Western Counties Railway Company for giving to them possession of the said branch, a minute of His Excellency the Governor General in Council was passed ordering and directing that the arrangements then existing with the suppliants with respect to the said branch should be terminated on the 1st day of August, 1877, and the Minister of Public Works on behalf of Her Majesty was directed to resume possession of the said branch on that day and to put the Western Counties Railway Company in possession thereof, pursuant to the said Act 37 Vic., ch. 16.
"That in pursuance of the said minute of council and of the said act the officers of Her Majesty did on or about the said first day of August, upon the refusal of the suppliants to give up the possession of the said branch, take possession thereof and afterwards gave possession of the same to the Western Counties Railway Company, which is the ejection and giving over of possession complained of in the fifth paragraph of the said petition.
"And he submitted (14th) that in taking possession of the said branch, in giving over such possession to the Western Counties Railway Company, no wrong was committed against the suppliants which entitles them to any relief against Her Majesty by petition of right; and he denied (15th) that the suppliants were excluded by the government from the trunk line between Halifax and Windsor or from any use thereof, but he submitted that no relief could be decreed against Her Majesty upon the said petition with respect to the said trunk line, inasmuch as the instrument of the 22nd September, 1871, upon which the suppliants base their claim to relief, if ever binding, was based upon a single and indivisible consideration, viz: One-third of the gross earnings from all traffic carried over the Windsor Branch and the Trunk Line; and that if the said instrument cannot, and he submitted that it cannot, under the circumstances referred to in his answer, be enforced with respect to the said branch, neither can it be enforced with respect to the Trunk Line; and submitted (16) that the relief prayed for in the first and second paragraphs of the prayer of said petition cannot be decreed against Her Majesty, nor can any injunction for the purposes prayed for be ordered by the court; and he submitted, lastly, that it should be declared that the suppliants are not entitled to any portion of the relief sought by their petition and that they should be ordered to pay the costs incurred by Her Majesty in the matter.
"Now the case of Tobin v. The Queen[1], decides that the Imperial statute 23rd and 24th Vic., ch. 34, alters only the form of procedure to be adopted by suppliants resorting to petition of right, and does not alter the laws relating to the subject for which the petition can be maintained.
"The Attorney General in that case, the present Lord Selborne, argued that the proceeding authorized by the statute, requiring a party in possession under title derived from the Crown of property claimed by a petition of right to be made a party thereto, was in the nature of bill of interpleader, wherein the party claiming the right to the possession and the party in actual possession can assert their respective rights.
"The case which has been already decided in the Supreme Court of New Brunswick, and in the Privy Council at the suit of the Windsor & Annapolis Railway Company against the Western Counties Railway Company, has decided that the right of former company to the possession of the property in question could as against the latter company be effectually adjudicated upon and determined in a suit instituted and conducted according to the ordinary practice of the courts of justice between subject and subject; and that redress can be thus obtained against the Western Counties Railway Company for the wrongs complained of by the suppliants, and the damages occasioned to them thereby. It was not suggested upon the hearing before me of this petition of right, that the judgment rendered in that case was not sufficient for the purpose of establishing as against the Crown the rights of the suppliants to the restitution and possession of the property under the agreement of the 22nd of September, 1871. It seemed rather to have been assumed to be sufficient for that purpose; for the only question, as I have already said, which was opened and discussed before me was as to the right of the suppliants to have a judgment in this case for the recovery from Her Majesty of the damages occasioned to the suppliants by the wrongs complained of.
"The case of Tobin v. The Queen establishes that a petition of right cannot be maintained to recover unliquidated damages for a tort.
"It does lie to obtain restitution of property wrongfully taken on behalf of the crown, or wrongfully withheld, but the judgment in favor of the suppliant upon such a petition only enabled him to recover possession of the specific property, or the value of it if it had been converted to the Sovereign's use. As against the Sovereign, the only redress to be obtained is restitution. If damages are sought they are to be obtained from the individual who did the wrong. In the present case the suppliants have already obtained a judgment against the Western Counties Railway Company entitling them to an account of the receipt from traffic, which but for their wrongful possession of the suppliants' property the latter would have received, and this was the nature of the damages claimed before me, but there is no pretence that any sum of money from such source ever came to the possession of Her Majesty.
"The case made by the petition is that what was done, although professed to be done under the authority of an Act of Parliament, was not authorized by the Act, and was in fact a trespass unlawfully and forcibly committed: now when public servants of whatever rank commit an act of trespass in the erroneous belief that the act is authorized by an Act of Parliament, Tobin v. The Queen is an express authority that the Sovereign cannot be made responsible on a petition of right for such an act for two reasons: 1st. because in such case the act is not done by command of the Sovereign but under the assumed authority of an Act of Parliament; and 2nd, if it were done by command of the Sovereign, the command to commit a trespass being unlawful, it is no command in law, so that, as is decided in that case, the doctrine of respondeat superior does not apply to the Sovereign. I have no doubt therefore that under the circumstances which are relied upon by the suppliants a petition of right could not be maintained in England to recover damages from Her Majesty, and that therefore by the express provisions of the Act. 32 Vic., ch. 27, sec. 19, no damages can be recovered against Her Majesty upon this petition In so far therefore as this petition claims compensation in damages from Her Majesty, the petition must be dismissed with costs, leaving the suppliants to pursue their remedy for such compensation against the Western Counties Railway Company under their judgment already recovered against that company.
"If the suppliants think it necessary that they should have a declaration of their rights, upon the petition, upon the basis upon which they have been established by the judgment in the suit in the Supreme Court of Nova Scotia affirmed by the Privy Council, the case may be set down to be spoken to before me upon the minutes. As the question of damages was all that was opened or discussed before me, I have confined my judgment to that question."
This appeal was from the refusal of Mr. Justice Gwynne to grant a rule for a new trial.
The case in appeal was first argued before five judges, Mr. Justice Taschereau being absent, but was subsequently re-argued before the full bench.
Mr. Dalton McCarthy, Q.C., and Mr. H. McD. Henry Q.C., for appellants:
The acts complained of are distinctly admitted to have been done by Her Majesty, and therefore the argument need not be complicated by any questions as to the responsibility of the Sovereign for acts of her servants.
These acts must be regarded as constituting a breach of contract and not as a "mere tort," or indeed as a tort in any sense; not a "mere tort," because a breach of contract was also effected; and not a tort at all, seeing that since the "Queen can do no wrong" what was done must be regarded as a breach of contract only.
There is no decided case nor any authority for the position (involved in the judgment appealed from) that the act or acts complained of are to be regarded as wrongs properly so-called. In other words, there is no authority for the position that where a clear and direct breach of contract happens also to involve an element which in some respects might be regarded as tortious, the Crown shall be protected in its breach of agreement by the maxim that "the Queen can do no wrong;" and it is further submitted that there is no good reason why such a result should follow.
The theory of the judgment appealed from in this behalf involves the anomalous result that, while petition might lie if the Queen had simply refused to let the suppliants into possession under their agreement, yet they are remediless where, after being in possession for a time, they are, in breach of the agreement, prevented from continuing that possession.
But even if the expulsion from the Windsor Branch could, upon true principles, be regarded as a "mere tort," the refusal of Her Majesty to execute her part of the contract as to the running powers over the Trunk Line can be nothing but a breach of contract. In that there was no trespass, no invasion of property right. There was in law nothing but a refusal to perform Her Majesty's part of the agreement in that behalf.
It is a mere coincidence that Her Majesty, in breaking the agreement, did what might have been characterized as a tort if it had not been a breach of agreement.
So far as the present subject of discussion is concerned, the judgment appealed from is based on the case of Tobin v. The Queen[2].
Now, the case of Tobin v. The Queen is distinguishable from the present in the following important particulars, and it cannot, therefore, govern the rights of the suppliants in this petition.
In Tobin v. The Queen there was no contract nor even a pretence of the existence of a contract, much less any breach of contract. The act complained of constituted nothing but a tort. It was not only unauthorized by the Crown, or any department of Government, but was expressly repudiated in the answer as being so unauthorized. The benefit to the Crown of the seizure was remotely contingent upon the vessel in question being condemned in the Admiralty Court, and that never occurred, so that nothing of the suppliants, or arising from his property, ever came to the Crown. In the present case, on the other hand, there was a breach by the Crown of a contract made with the Crown.
Her Majesty has admitted in Her answer that the act which constitutes the breach of contract was done for Her.
The property in question was actually used by Her Majesty for nearly two months, the proceeds received by Her, and the rights and privileges of the suppliants were then let to third parties, who held them under and for the Crown, until they were restored to the suppliants.
With regard to the portion of the judgment appealed from, which suggests that redress for the suppliants is available against the Western Counties Company we submit it is erroneous for the following reasons:
1st. Because in no view can the Western Counties Railway Company be held answerable for the loss to the suppliants represented by the period during which the Crown actually received the profits of the property in question, that is, from 1st August to 24th September, 1879.
2nd. Because this case cannot be regarded merely as practically giving rise to an interpleader between the suppliants and the Western Counties Railway Company joined as claiming under the Crown, inasmuch as the claim is for compensation for a specific breach of a contract of the Crown, for part of which compensation, at least, the Western Counties Railway Company can in no view be held liable.
3rd. No such defence has been pleaded, nor was any such defence urged at the trial of the petition.
4th. No compensation has ever been decreed or recovered from the Western Counties Railway Company. This portion of the judgment appealed from would indeed appear to involve a mere speculation as to the effect of the equity suit brought in the Supreme Court of Nova Scotia, the judgment in which still remains entirely without form, as will appear by reference thereto.
On the re-argument the following cases were cited: Rigby v. The Great Western Railway[3]; Manly v. St. Helens Canal and Railway Co.[4]; Wall v. The City of London Ry. Pro. Co.[5]; Wigsell v. The Corporation of the School for the Indigent Blind[6]; McMahon v. Field[7]; Taylor v. Dunbar[8]; Lock v. Furze[9]; Earl of Warwick v. Duke of Clarence[10]; Banker's Case[11]; The British Columbia and Vancouver's Island Spar, Lumber and Saw Mill Co. (Limited) v. Nettleship[12].
Mr. Lash, Q.C., for the respondent, Her Majesty's Attorney General:
The Petition of Right Act does not give to a suppliant any additional remedy against the Crown which would not have existed in England prior to the Imperial Act 23 and 24 Vic., ch. 34, but merely relates to the form of procedure, and in England the relief prayed for against the Crown in this matter could not have been granted upon a petition of right.
The petition in this matter in effect seeks to recover from the Crown damages for trespasses unlawfully and forcibly committed by servants of the Crown, contrary to the well established doctrines laid down in the case of Tobin v. The Queen[13]; McFarlane v. The Queen[14]; MacLeod v. The Queen[15]; and cases therein referred to.
The suppliant's rights to the possession of the property in question and to the damages for the wrongs complained of could have been established and adjudicated upon in a suit or suits instituted and conducted according to the ordinary practice of the courts of justice between subject and subject. And so far as relates to the connection of the Western Counties Railway Co'y with the matter, their rights were so established and adjudicated upon in the suit brought against that company. The only ground upon which judgment was or could have been given in the suppliants' favor in the last mentioned suit is that the acts complained of were torts, which rendered all persons concerned in them liable to the suppliants in unliquidated damages; such being the case, it follows, under the authorities above mentioned, that such acts cannot be relied on in support of a claim against the Crown by petition of right.
The petition of right, in addition to seeking damages, prays for specific performance of the agreement of 22nd September, 1871, and for an injunction to restrain Her Majesty's officers and servants from doing certain acts. No such relief can be given against the Crown.
[The learned counsel relied principally upon the judgment of the Exchequer Court, and the reasons therefor given by Mr. Justice Gwynne, and on the re-argument cited Bird v. Randall[16]; Gosman, in re[17], and Woodfall on Landlord and Tenant[18].]
Mr. Gormully was present on behalf of the Western Counties Railway Company, but was not heard.
RITCHIE, C.J.:—
In discussing this question I am free to admit to the fullest extent the doctrine that a petition of right, founded on a tort in the legal sense of that term, cannot be entertained against the Crown, and also that the Crown cannot be prejudiced by the misconduct, laches, or negligence, of any of its officers, either with respect to the rights of persons or of property. But I think it clear that matters of contract and grant made on behalf of the Crown are within a class of subjects legally distinct from wrongs, such as those from which the Crown is exempt by reason of the maxim that the Crown can do no wrong, and, therefore, with all respect, it does not seem to me that Tobin v. The Queen[19], relied on by the learned judge in the Exchequer Court, is any authority for applying the maxim invoked to this case, the great distinction being that that was not a case of a claim against the Crown, for acting by its servant in the assertion of a supposed legal right, but it was a claim for compensation for a wrongful act done by a servant of the Crown in the supposed performance of his duty.
On the contrary, Erle, Chief Justice, at page 355, very clearly propounds a doctrine so consonant with common sense that I should long hesitate before repudiating it, viz.:
That claims founded on contracts and grants made on behalf of the Crown are within a class legally distinct from wrongs.
So in Seddon v. Senate[20]:
Lord Ellenborough, C. J., observed that the argument of the defendant's counsel, [which he repudiated,] went further; that the defendant having conveyed all interest in the subject-matter out of himself, the plaintiff had no remedy on the covenant, but only the same remedy as against any wrong-doer. That if one sold and covenanted to another an estate with the common covenants, and afterwards went on it to sport, the purchaser could not maintain covenant.
LeBlanc, J., says:
And that brings it to the question, whether, when it appears that the defendant had agreed to part with his whole interest in the medicines, and he does convey in terms large enough to cover his whole interest, the law will not imply a covenant that he shall not himself vend that for his own profit which he had agreed to sell and had sold to another; and it appears to me that the breach assigned against him in that respect is not like a mere tort committed by a stranger; but is a breach of that right which he had conveyed to another. He has done that which is the exercise of an assumed right over a subject-matter which he had before covenanted to convey and had conveyed to the plaintiff; and I also think that the manner in which that breach is assigned is not merely as in the case of a tort by a stranger, but as of a right conveyed to the plaintiff by the deed of the defendant.
Bayley, J., says:
A covenant is nothing more than an agreement, in construing which we have only to look to the fair meaning of the parties to it; and if the agreement were in substance and effect that the defendant would sell and assign to the plaintiff the sole right of making and vending the medicine for his profit, and that the defendant would not interfere with him in making and vending it, that raises an implied covenant on the part of the defendant that he would not make and vend it; and if he do afterwards make and vend it, it is a breach of that implied covenant.
* * * * * *
It appears, therefore, by the language of the third deed alone, that the defendant contacted with the plaintiff that he should have the sole exercise of the right of making and selling these medicines for his own benefit; and then the question is, whether the conduct of the defendant, in interfering with that right which he had before conveyed to the plaintiff, be not a breach of his covenant. As in Pomfret v. Ricroft[21] Twysden, J., (who differed from the rest of the court upon the case in judgment) agreed that the grant of a water course implies a covenant by the grantor not to disturb, by any act of his own, the grantee in the enjoyment of it; and, therefore, that a subsequent act of disturbance by the grantor in stopping the water course would give the grantee an action of covenant against him. And if one make a lease of a house and estovers, and afterwards cut down all the wood out of which the estovers were to be taken, the lessee shall have his remedy by action of covenant against him; it being a misfeasance in him to annul or avoid his grant. So in Russel v. Gulwel[22] it was agreed that if one make a lease of lands, reserving a right of way, or common, or other profit a prender, if the lessee disturb him in the enjoyment of the way, &c., covenant will lie for such disturbance. To apply the same principle to the present case: the defendant assigns by deed all his right, title, and interest in the making and vending of a certain medicine to the plaintiff, and afterwards he disturbs him in the enjoyment of it by making and selling it on his own account; that, therefore, is in breach of his covenant.
Lord Ellenborough, C.J., afterwards observed that no argument could be drawn from the opinion delivered by the court to authorize the extension of the doctrine to the wrongful act of a stranger.
So in Jones v. Hill[23], an action on the case in the nature of waste, which is an action founded on tort:
The declaration stated that the defendant held certain messuages, as tenant to the plaintiff, for the remainder of a term of years, upon a general condition to repair and leave the premises in as good plight and condition as the same were in when finished under the direction of a surveyor.
Breach for not repairing during the term and yielding up the premises in much worse order than when the same were finished under the direction of the surveyor.
Lord Chief Justice Gibbs says:
Where there is an express stipulation or contract between two parties, this species of action is not maintainable, for such contract is a total waiver of tort, and it therefore ceases to bear the character of waste.
That a petition of right is the suitable and proper remedy for the subject, when by misinformation (as in this case) or inadvertence the Crown has been induced to invade the private rights of any of its subjects, or where the Crown has in its hands property to which the subject has a legal title, ancient and modern authorities, in my opinion, unquestionably establish.
As to the ancient authorities.
Petition says Staundeforde, Prerog., is all the remedy the subject hath when the King seizeth his land or taketh away his goods from him, having no title by order of his laws so to do, in which case the subject for his remedy is driven to sue unto his sovereign lord by way of petition only; for, other remedy hath he not; and, therefore, is his petition called a petition of right, because of the right the subject hath against the King by the order of his laws to the thing he sueth for.
* * * * * *
That petitions did lie for a chattel as well as for a freehold, does appear 37 Ass. pl. 11, Bro. Abr. Petition, 17. If tenant by statute, merchant be ousted, he may have a petition, and shall be restored; vide 9 H. 4, Bro. Petition, 9. If the subject be ousted of his term, he shall have his petition $ 9 H. 6, fo. 21, Bro. Petition, 2. Of a chattel real, a man shall have his petition of right, as of his freehold; 7 H. 7, fo. 11. A man shall have a petition of right for goods and chattels; and the king indorses it in the usual form: 34 H. 6, fo. 51. Bro. Petition, 3. He adds: It is said, indeed, [Illegible Text] H. 7, fo. 3, Bro. Petition, 19, that a petition will not lie of a chattel.
The whole tenor of Lord Somers' argument in the Banker's case shows that he was clearly of opinion that a petition of right would lie for a chattel, and even for unliquidated damages.
In 4 Ins. 241 Lord Coke says:
It is holden in our books that in restitutions the king himself has no favor nor his prerogative any exemption, but the party restored is favored.
In Manning's Exchequer practice[24], it is said:
By the law of England, no personal wrong can, for obvious reasons, be imputed to the sovereign. But, when the property of the subject is invaded or withheld, the prerogative does not prevent the injured party from obtaining restitution or payment. Where, however, a right is sought to be established against the crown itself, it would be absurd, as well as indecent, to adopt the mandatory forms of common process. The course, therefore, prescribed by the common law, is, to address a petition to the King in one of his courts of record, praying that the conflicting claims of the crown and the petitioner may be duly examined. * * * * * * *It is called a petition of right, and is in the nature of an action against the King, or of a writ of right for the party, though chattels real or personal, debts or unliquidated damages may be recovered under it.
In Blackstone's Commentaries, p. 254, it is said:
That the King can do no wrong, is a necessary and fundamental principle of the English constitution, meaning that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the Sovereign, nor is he, but his ministers, accountable for it to the people; and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice. When ever, therefore, it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of its subjects, though no action will lie against the sovereign (Jenkins, 78) (for, who shall command the King?) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the Crown of the true state of the matter in dispute; and, as it presumes, that to know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the King's own name, his orders to his judges to do justice to the party aggrieved. * * * *
The common law methods of obtaining possession or restitution from the Crown of either real or personal property are:—1. By petition de droit, or petition of right, which is said to owe its origin to King Edward the First[25]; 2. By monstrans de droit, manifestation or plea of right; both of which may be preferred or prosecuted either in the Chancery or Exchequer. The former is of use where the Sovereign is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the Crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the Crown, or otherwise the petition shall abate; and then, upon this answer being indorsed or underwritten by the king soit droit fait al partie (let right be done to the party), a commission shall issue to enquire of the the truth of this suggestion; after the return of which the king's attorney is at liberty to plead in bar, and the merits shall be determined upon issue or demurrer, as in suits between subject and subject.
As to the more modern authorities.
In delivering the judgment of the Court of Queen's Bench in Baron de Bodes case[26], Lord Denman says:
There is nothing to secure the Crown against committing the same species of wrong, unconscious and involuntary wrong, in respect of money, which founds the subject's right to sue out his petition when committed in respect to lands or specific chattels; and there is an unconquerable repugnance to the suggestion that the door ought to be closed against all redress or remedy for such wrong.
Erle, C.J., in Tobin v. The Queen, says:
We come now to the authorities showing where the petition of right will and where it will not He. We pass the class of claims founded on contracts and grants made on behalf of the Crown with brief notice, because they are within a class legally distinct from wrongs.
* * * * *
Again:
We pass from the class of claims on contract, in all systems of law distinguished from claims founded on wrong, and proceed to the more numerous class of claims where petitions of right have been brought in respect of property either wrongfully taken on behalf of the Crown, or wrongfully withheld.
As a general principle, property does not pass from the subject to the Crown without matter of record. In the time of feudal tenures, rights in property accrued to the Crown on very many occasions, and officers had the duty of enforcing the rights of the Crown. The right accrued on some of these occasions by matters of record, and on other occasions powers existed for the making the right matter of record by office found. The officers seized, or justified seizures, under these records; and their right to seize was a subject of frequent contest, tried either by petitions of right, monstrans de droit, or traverse of office found.
But, whatever was the form of procedure, the substance seems always to have been the trial of the right of the subject as against the right of the Crown to property or an interest in property which had been seized for the Crown; and, if the subject succeeded, the judgment only enabled him to recover possession of that specified property, or the value thereof, if it had been converted to the King's use. The form for trying this question has gone through several changes. Traverse of office found, monstrans de droit, and petition of right were the forms in most frequent use. Amendments of the procedure were made by the statutes 34 E. 3, c. 14, 36 E. 3, c. 13, and 2 E. 4, allowing many questions to be raised by traverse, in cases where theretofore a petition of right was necessary; and much learned discussion is to be found in the books relating to these different forms. Lord Coke has much learning thereon, both in his commentary on the statutes of substituting traverse for petition[27], and in his judgment in the case of The Saddlers' Company[28]. In Conyngsby and Mallom's Case[29] all the judges gave separate judgments of much research, to the effect that a monstrans de droit was wrong in that case, and that the plaintiffs ought to have had a petition.
In Feather v. The Queen[30] Cockburn, C. J., says:
How can you distinguish between the seizure of goods by a servant of the Crown where it is admitted a petition of right lies and the improperly interfering with his liberty.
And at page 293, Cockburn, C. J., delivering judgment of the court says:
We think it right to state that we can see no reason for dissenting from the conclusion arrived at by the Court of Common Pleas (in Tobin v. The Queen). We concur with that court in thinking that the only cases in which the petition of right is open to the subject are where the land, or goods, or money of a subject have ound their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be given compensation in money, or where a claim arises out of a contract as for goods supplied to the Crown or to the public service. * * * *
In considering this case let us start with the now unquestionable proposition that for breach of contract unliquidated damages can be recovered against the Grown by petition of right. This was clearly established in Thomas v. The Queen[31] in which Blackburn, J., thus states the principle:
Contracts can be made on behalf of Her Majesty with subjects, and the Attorney General suing on her behalf can enforce those contracts against the subjects, and if the subject has no means of enforcing the contract on his part there is certainly a want of reciprocity in such cases.
The controversy in this case has never, that I can discover, as between the Crown and the suppliants, been, whether its officer, who evicted the suppliants, was or was not guilty of a tort, and therefore the Crown on that ground not liable for his act; no such defence is set up by the answer of the Attorney General, nor any evidence offered on the part of the Crown in support of such a defence. It would appear to have been stated at the hearing in this case and adopted by this court, but in my opinion it is entirely opposed to the whole action of the Government and the line of defence on record, where the real substantial true matter in controversy between the suppliants and the Crown is clearly put forward by the Attorney General; the suppliants claiming that the contract of 22nd September, 1871, is valid and binding, in full force and effect, and under which they were by the agreement of the Crown entitled to the continuous enjoyment and possession of the Windsor Branch and running privileges over the trunk line from Windsor junction to Halifax for a period of 21 years from the 1st day of January, 1872, and that the Crown in breach of this agreement evicted the suppliants, took possession of the Windsor Branch and prevented them from exercising running powers over the trunk line. The Crown, on the contrary, contending that it had the legal right to put an end to the agreement, avers that it did so, and therefore the agreement, being thus terminated, the eviction and taking possession was lawful, and so no breach thereof.
The Crown, by the answer of the Attorney General, does not attempt to get rid of their liability by setting up that the act of taking possession and evicting the suppliants was a wrongful act of trespass by the manager of the railway, for which the Crown is not responsible; on the contrary, the Crown admits the doing of the act and justifies it on the ground that the legal right existed in the Crown to put an end to the contract and resume possession, and that a minute of the Governor in Council was passed ordering that the agreement with the suppliants should terminate on the 1st August, 1877, and directing the Minister of Public Works, on behalf of Her Majesty, to resume possession; in pursuance of which minute the officers of Her Majesty did, upon refusal of the suppliants to give up possession, take possession thereof and afterwards gave possession to the Western Counties Railway, which taking possession the Crown submits was no wrong committed against the suppliants. The words of the Attorney General's answer are as follows:
11. I submit that the said instrument of 22nd June, 1875, was not and is not binding upon Her Majesty in so far as the same purported to confer upon the suppliants any rights with respect to the said branch other than such as were determinable by further order of the Governor in Council, and in so far as the same purported to confer upon the suppliants any right with respect to the said branch beyond the time when arrangements might be completed for giving possesssion thereof to the Western Counties Railway Company, as referred to in the second section of the said Act of May, 1874. I say that the insertion of any clause in said instrument of 22nd June 1875, purporting to confer upon the suppliants rights other than such as were determinable by further order of the Governor in Council was an error on the part of the person who prepared said instrument, and the same was signed by the said Minister of Public Works in error and without knowledge on his part that such clause was contained therein.
12. I say that on or about the 25th of July, 1877, the Government of Canada, having completed arrangements with the Western Counties Railway Company for giving to them possession of the said branch, a minute of His Excellency the Governor General in Council was passed ordering and directing that "the arrangements then existing "with the suppliants with respect to the said branch should be terminated "on the first day of August, 1877," and the Minister of Public Works on behalf of Her Majesty was directed to resume possession of the said branch on that day and to put the Western Counties Railway Company in possession thereof pursuant to said Act of May, 1874, all of which the suppliants had notice.
13. In pursuance of the said minute of council and of the said act of 1874 the officers of Her Majesty did, on or about the said first of August, upon the refusal of the suppliants to give up possession of the said branch, take possession thereof and afterwards gave possession of the same to the Western Counties Railway Company, which is the ejection and giving over of possession complained of in the fifth paragraph of the said petition.
14. I submit that in taking possession of the said branch, and in giving over such possession to the Western Counties Railway Company, no wrong was committed against the suppliants which entitles them to any relief against Her Majesty by petition of right.
Here the Attorney General does not say the possession was taken by force, or in any way tortiously, no tortious act is set up for which the Crown claim not to be liable, but the exact opposite, The Attorney General puts forward that upon the construction of the agreement and the statutes bearing thereon, the Crown claims it had a right to put an end to the contract, and they did so, and claim that the action of the Crown and its officers being lawful and not tortious, they were justified, and, therefore, the suppliants are not entitled to claim damages. The Crown does not and never has repudiated the act of its officer, but the very reverse. The Courts, however, having decided that the ground taken by the Crown was not tenable in law, that the Crown was misinformed as to its supposed rights, that the agreement was still a continuous, valid and binding agreement to which they had no right to put an end, this defence entirely fails. And therefore the Crown by its officers having thus acted on a misconception of, or mis-information as to, the rights of the Crown, wrongfully, because contrary to the express and implied stipulations of their agreement, but not tortiously in law, evicted the suppliants, and so, though unconscious of the wrong, by such breach became possessed of the suppliants property, and for restitution of which and damages indemnity is now sought, and this is the only real substantial matter that I can discover in controversy in this petition.
To go outside of this agreement, of this litigation, and of this answer and defence of the Crown, and the legal decision on the rights of the parties, and declare this bonâ fide action of the Government, based on what the Government believed to be the true construction of the agreement and the just rights of the Crown to be nothing more nor less than a personal wrong, a simple act of trespass committed by Mr. Brydges, for which he and he only is legally responsible, conflicts, in my opinion, with every principle of law and justice. It must be admitted that the maxim that the Queen can do no wrong does not apply to breaches of contract entered into by the Crown. To turn, then, the deliberate and advised action of the Crown on its construction of this agreement into a simple tort by an officer of the Crown would be to make the maxim applicable to breaches of contract as well as torts, and in my humble opinion to enable a salutory prerogative to be used for the perpetration of the greatest injustice. In a proper case no one will be more ready or willing to uphold and maintain this maxim than I, as I have on several occasions shown in this Court, but to apply the maxim to a case such as this would, in my opinion, be wholly unjustifiable, and supported by no authority that I am aware of, the suppliants seeking compensation and indemnity for a simple breach of a contract which the Crown wholly independent of tort deemed it had a right to put an end to.
What is then the true construction of this agreement, entered into between the Windsor and Annapolis Railway Company, limited, and the Government of Canada (approved and ratified by His Excellency the Governor General of Canada, in Council, on the 22nd day of September, A.D. 1871), and which provides inter alia, as follows:—
2. The Company (meaning the plaintiffs) shall expect, for the purpose of the authorities, (meaning the Government of Canada) in maintaining the railway and works have the exclusive use of the Windsor Branch, with all station accommodation, engine sheds and other conveniences (but not including rolling stock and tools for repairs) now in use thereon.
3. The Company shall also use, to the extent required for its traffic, the trunk line with the station accommodation thereon, including engine shed accommodation for fire engines, water supply, fuel stages, turntables, signals, telegraphs, wharves, sidings and other conveniences, but not including machine shops and other shops, buildings and appliances for repairs of rolling stock.
21. This agreement shall take effect on the 1st day of January, 1872, and continue for 21 years, and be then renewed on the same conditions or such other conditions as may be mutually agreed on.
It must be construed so as to make it operate according to the intention of the parties.
I think the true construction of this agreement or grant is, and the clear intention of the parties as indicated thereby was, that the suppliants should have the full, beneficial and continuous enjoyment of the privileges thereby granted for a continuous period of 21 years, and that they should not be disturbed by the Crown in such enjoyment, and as a consequence, to enable the agreement to operate according to the intention of the parties, there is an implied undertaking on the part of the Crown not to do anything to derogate from its grant so to enjoy, the Crown, in my opinion, being no more entitled to act in derogation of its grant or to defeat its own act and not be liable for a breach of its agreement, expressed or implied, than a subject.
If parties agree that it shall be lawful for one to hold the other's property for a certain time, this is, on the one hand, an agreement that the owner shall not, during that time, interfere with such holding, and on the other, that the holder shall not detain it for a longer time, and in either case, if the one during the time interferes, or the other detains beyond the time specified, it is a breach of the covenant or agreement.
It cannot be denied that the Crown by this agreement contracted with the suppliants for, and granted to them, the continuous right. This, then, is a contract in which quiet enjoyment during the continuance of the agreement is necessarily implied as against the act of the Crown; in other words, that the Crown will do nothing in derogation of its grant, nor disturb the suppliants in the enjoyment of that which the Crown agreed they should have, and, therefore, any interference with the possession of suppliants by the Crown is a breach of the contract, express and implied, and in no way resembles a mere tort committed by a stranger.
The suppliants complaining, therefore, of no act of tort committed by the Crown or its servants, but simply in effect alleging that the Crown, on the assumption that the contract was at an end, evicted the suppliants and resumed possession of the road, and so broke the agreement with the suppliants by preventing them from having what they were entitled to under the agreement, and the Crown having thus come into possession of property belonging to the suppliants, they, by this their petition of right, seek to be restored to such possession and indemnified for the damages sustained by such breach on the part of the Crown, or, in the words of the petition: "the Government of Canada by "the breach and failure to perform the said agreement "of 22nd September, 1871, and 22nd June, 1875, have "caused to your suppliants great injury, loss and "damage," for which they seek indemnity.
I think the action of the Crown under the minute of the Governor in Council, amounts to no more than an eviction by a landlord, whose tenant has a covenant express or implied for quiet enjoyment, in other words, simply equivalent to an eviction where the lessee is ousted by the lessor, in which case it is clear an action of covenant lies against the lessor on the implied covenant in law upon the word "demise." In this case we are not to look to the manner of the eviction, that is not the point in controversy, the right to evict is what we have to deal with, and therefore this case should be treated as if a copy of the minute of the Governor in Council, had been served on the suppliants and possession demanded thereon by the Crown, and the suppliants, knowing that they could not successfully or forcibly resist the action of the Crown, had, under protest, without requiring physical force to be used, permitted the Grown to resume possession, relying on their protest and contract; and as if now by legal means they sought restitution of the possession and redress and indemnity, for an alleged breach of their agreement, under which they were entitled as against the Crown to have the continuous possession and quiet enjoyment of the premises, for the period therein stipulated; and must not, as has been done, be treated as solely a question of tort committed by an officer of the Crown. This then appears to me to be peculiarly a case to which the petition of right is applicable. The Crown, acting in the assertion of its supposed rights, has broken its contract, by reason whereof property and the increase and proceeds of property belonging to the suppliants have found their way into the hands of the Crown to the detriment of the suppliants.
In the view taken adverse to suppliants' right to recover, in so dealing with the case there seems to me to be an entire ignoring of the privity of contract both express and implied between the suppliants and the Crown, and of the nature of claims on contract as distinguished from the class of claims founded on wrong, and also of the fact that the act done was under the authority of an order of the Governor in Council under a claim of right and in assertion of that right.
This act of the Government in endeavouring to put and end to the contract, or, in other words, to cease to continue it, was no act done with a tortious intent, it was an act which the Government deemed they had legal authority to perform, on the assumption that the contract was, by the legal act of the crown, at an end, and that the Government could, therefore, legally resume possession of the road. Neither the Government nor its officers entered, or professed to enter on or take possession of the road as trespassers, but under a claim of legal right; therefore neither the Crown nor its servants committed a tort in the legal sense of that term, or an act which can be set up as against the suppliants as a tort to defeat the claim of the suppliants on their contract; the crown, as Lord Denman expresses it, committed an unconscious and involuntary wrong, which, though not legal by reason of the contract being a continuous subsisting contract, was simply a breach of that contract. This taking possession under a claim of right, as opposed to a tortious taking by the officer has, as has been shown, never been repudiated by the crown, but, on the contrary, the Crown affirmed it in this suit and ask this court to affirm that, so far from the act of taking possession being tortious, it was lawful and right because the agreement was at an end. The crown treats it, and properly treats it, as a claim founded on contract and grant made on behalf of the Crown, which, Erle, C. J., says, are a class legally distinct from, wrongs. The possession taken on the part of the Crown was therefore nothing more than a claim of title.
If this is mere matter of tort for which a petition of right could not be brought, but an action would lie only against Mr. Brydges, who, it is alleged, committed the tort, if Mr. Brydges died this action would die with him, actio personails moritur cum personâ; and it that the Crown, having no right to put an end to the agreement, and it being valid and binding on the Crown, could direct its servant to take possession, accept the possession obtained by the act of its servant, and so most effectually, not only break but put an end to the agreement, and, contrary to its terms, keep in its own possession the property of the suppliants (for it need not have handed the possession over to the Western Counties,) and receive the profits and emoluments of the road, which belonged not to the Crown but to the suppliants, and the suppliants be remediless in the premises, as would be the practical result of the decision in the Court of Exchequer, is, I think, a doctrine principles of law and justice will not tolerate. If this is to be treated simply as a matter of tort as between the suppliants and the Crown the same principle, I presume, must have effect as between party and party. Suppose then, A owned this road and entered into a similar agreement with B, and A, assuming, as did the Crown in this case, that the contract was at an end, when in fact and in law it was in full force and effect, entered and evicted as of right the grantee or lessee, and continued in possession and received the rents and profits and died, in an action against A's executors for breach of contract by the deceased in his lifetime would it be competent for them to reply, "no "action for indemnity or damages for breach of "contract by deceased can be brought against us, for "though true A did make this agreement and "though true, on the assumption that the agreement "was at an end, when in truth it was subsisting, "he did, contrary to the agreement, enter "and evict, and died, and though he has taken from you "all the privileges, profits and advantages, which by "his contract he agreed you should have, his doing "so is no breach of the agreement; his entry "eviction and resumption of possession was simply a "tort, not a breach of his contract, and therefore the "maxim actio personalis moritur cum personâ applies, "and so no action for such tortious act or its consequences "can be maintained against us; therefore, "as we have done nothing whatever since his death in "connection with the property, you are remediless." This, in my humble opinion, is an exact illustration of the present case.
I am pleased to think that in my view of the law I am not constrained to a conclusion, in my opinion, so unreasonable and unjust. These suppliants honestly contracted with the Government; there has been no breach of this agreement on their part that has not been satisfactorily arranged; it is not pretended that the suppliants have been guilty of any wrong whereby they have forfeited their rights under the agreement, or whereby they have debarred themselves from claiming the benefit of the contract. When the Crown therefore, disregarding the agreement, became possessed of that which, by virtue of the act of the Crown, had become the property of the suppliants, on no principle that I am aware of can relief be denied. Law, justice, common honesty, not to say the honor of the Crown alike demanded that there should be restitution of the property of the suppliants, and indemnity for the proceeds thereof which have come to the hands of the Crown, and of which the suppliants have been deprived by the wrongful, though unconsciously wrongful, act of the Crown.
This to my mind is peculiarly and emphatically a case in which one may, as Lord Denman did in Baron de Bodes' case declare an unconquerable repugnance to the suggestions that the door ought to be closed against all redress and remedy.
Had there been no contract in this case, and the seizure of this property had been wrongfully made by the Crown officers and came to the possession of the Crown, then it may be questionable how far the suppliants could, beyond a judgment of restitution, obtain redress for unliquidated damages for the wrongful seizure.
In such a case it well may be that having obtained restitution from the Crown of the property wrongfully seized, if damages are sought they should be obtained, if at all, from the officer who did the wrong.
Mr. Justice Gwynne says:
Now what is sought to be obtained by this Petition of Right, in addition to restitution of the property, is merely compensation in damages to be paid by Her Majesty for the trespass and eviction so committed by persons acting under the authority of the Government of Canada or professing so to do in taking possession of the Windsor Branch Railway, evicting the suppliants from the possession thereof and putting the Western Counties Railway Co. into possession thereof, and for the mesne profits received by the Western Counties Railway during their possession, For the damages sustained by the suppliants by this tresspass and eviction, the judgment recovered by the suppliants as plaintiffs against the Western Counties Railway Company renders that Company responsible, but the suppliants nevertheless claim the right to recover the same damages by a judgment to be rendered against Her Majesty upon the Petition of Right.
But this, I submit, is not so. How could the Western Railway be made responsible for the act of the Government in evicting and dispossessing the suppliants and for the resumption of possession by the crown, acts to which they were in no way parties? On the contrary, it appears from the case that the possession was taken on behalf of the Crown on the 1st August, and the road operated by the Crown from that period until the 24th September, and not till then was possession transferred to the Western Counties Railway. Who, but the Crown, can be liable for taking possession and keeping the suppliants out of possession, from the 1st August until 24th September? On what principle can the Crown be absolved from its liability, and the burthen of indemnifying suppliants cast on the Western Counties Railway Company, and so the suppliants bound to look to them instead of the crown for redress? Surely until the Western Counties Railway Company got the possession, in the absence of the slightest evidence to show that they had till then in any way interfered with the road, or the suppliants in connection with the possession thereof, they can in no way be made responsible.
Then, again, with reference to the trunk line. The result of the decision of the Privy Council is that when the Government resumed possession of the Windsor Branch, and consequently excluded the suppliants from the use of the trunk line of railway from Halifax to its junction with the Windsor Branch line, suppliants had the unquestionable right and title to the possession of the Windsor Branch Railway, and the use of the trunk line. Now, as to the trunk line from Halifax to Windsor, there can be no doubt that the suppliants were excluded from enjoying the uses of this road, and yet there is no pretence that there was any tortious act by the Crown or any of its servants—the suppliants, without any acts of force, were simply in defiance of their agreement excluded, and the reason assigned is thus put by Her Majesty's Attorney General in answer to suppliants' claim:
15. I deny that the suppliants were excluded by the Government from the trunk line between Halifax and Windsor or from any use thereof, but I submit that no relief can be decreed against Her Majesty upon the said petition with respect to the said trunk line inasmuch as the instrument of 22nd September, 1871, upon which the suppliants base their claim to relief if ever binding was based upon a single and indivisible consideration, viz.: one-third of the gross earnings from all traffic carried over the Windsor branch and the trunk line, and if the said instrument cannot, as I submit it cannot, under the circumstances above referred to, be enforced with respect to the said branch, neither can it be enforced with respect to the trunk line.
Inasmuch as it has been decided that the instrument of 22nd September, 1871, is valid and binding, this defence necessarily fails. What answer is there to suppliant's claim as to this? Nothing whatever, that I can discover; and how can it be denied that the Crown was guilty of a breach of this portion of the agreement for which suppliants are entitled to an indemnity; and what had the Western Counties Railway to do in reference to this?
But while I have little difficulty in arriving at the conclusion that this was a proper case for a Petition of Right. I have had much difficulty as to the amount of damages to which the appellants are entitled.
The concluding prayer of suppliants in the suit of the Windsor and Annapolis Railway Co. v. The Western Counties Railway Co., is as follows: —
"The plaintiffs also pray that the defendant company may be ordered and decreed to deliver up possession of the said Windsor Branch Railway to the plaintiffs, and that they may be restrained by order or injunction from this honorable court from further keeping possession of the said railway and running trains thereon, and that an account may be taken of the full amount of the moneys received by the defendant company for freight or passengers on said road since the same came into their possession. And that until a final decree shall be made in this suit a receiver shall be appointed by this honorable court to take and receive all moneys earned or to be earned by the defendant company or any other company or persons whomsoever. And that such further or other relief in the premises may be granted to the plaintiffs as shall be in accordance with justice and equity, and as to this honorable court shall seem expedient."
On which the judgment of the Judge in Equity was in their favor upon the whole case. A judgment subsequently sustained by the Supreme Court of Nova Scotia and afterwards by the Privy Council on the appeal by the Western Counties Railway, and in this court on the appeal of the Attorney-General of Canada.
The suppliants having thus elected to sue the Western Counties Railway Company, not only for the recovery of the possession of the Windsor branch, but also by way of damages for the moneys received by the Western Counties Railway for the freight or passengers on said road since the same came into their possession, and having recovered judgment for the same, I, as at present advised, do not think they can now recover another judgment for the same moneys against the Crown and thus have two judgments—one in contract against the Crown, and the other in tort against the Western Counties Railway, in two different courts for the same damages.
It is clear this action against the Western Counties Railway could only be against them as tort feasors, for it cannot be contended there was any contract or privity of contract between them and the suppliants for breach of which the suppliants could have an action. The suppliants then having elected to treat the dealings of the Western Counties Railway with the Windsor branch as a tort, and having recovered a judgment for such tort, suppose the officers of the Crown were (for the Crown could not be) joint tort feasors, the case of Rex v. Hoar[32] conclusively shows that after such judgment no action could be brought against such joint tort feasors.
If this is so it would seem necessarily to follow that the suppliants, having recovered judgment for all the damages sustained by reason of the tortious acts of the Western Counties Railway Company in reference to the property after it passed into their possession, the suppliants can only recover for the consequences of the breach of contract on the part of the Crown for the net freight and passage money which actually came to the hands of the Crown while the property was