Supreme Court of Canada
Adamson v. Rogers, (1896) 26 S.C.R. 159
Date 1896-03-24
Joseph Adamson (Administrator) (Plaintiff) Appellant;
and
Elias Rogers (Defendant) Respondent.
1895: October 21; 1896: March 24.
Present: Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Lessor and lessee—Water lots—Filling in—“Buildings and erections”—“Improvements.”
The lessor of a water lot who had made crib-work thereon and filled it in with earth to the level of adjoining dry lands and thereby made the property available for the construction of sheds and warehouses, claimed compensation for the works so done under a proviso in the lease by the lessor to pay for “buildings and erections” upon the leased premises at the end of the term.
Held, affirming the judgment of the Court of Appeal, that the crib-work and earth-filling were not “buildings and erections” within the meaning of the proviso.
APPEAL from the decision of the Court of Appeal for Ontario reversing the judgment of the Chancery Division of the High Court of Justice and restoring the report of the Judge of the County Court.
The action was brought against the assignee of the plaintiff’s lessor to compel him to renew the lease of a water lot on the Esplanade at Toronto. When the case came on for hearing the claim for renewal was abandoned and by consent of the parties the case was referred to the Judge of the County Court for the County of York for trial of the remaining issues, the main question for decision being as to what compensation the plaintiff was entitled to under a proviso in the lease which was as follows:
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“Provided always, that instead of granting such other lease it shall and may be lawful for the said party of the first part, his heirs or assigns, at the expiration of the term hereby granted, to take the buildings and erections that shall or may then be on the said demised premises at such price or sum as shall be fixed and determined on by three persons to be chosen in the same manner as above provided for the purpose of determining the increase ground rent of the said demised premises.”
There was also a question as to the area of the property included in the lease. The plaintiff claimed payment for crib-work and earth-filling done upon the leased premises to raise the level to that of the Esplanade and make the property available for the construction of the buildings that could be used as sheds and warehouses.
The County Court Judge decided in the first place, that upon the premises actually leased there were no “buildings and erections” for which the plaintiff could claim payment within the meaning of the proviso in the lease, and secondly, that a certain extension or added portion of the property was not covered by the lease and consequently was not affected by the provisions therein as to payment for “buildings and erections” in any event.
The Chancery Divisional Court reversed this judgment upon both points, but upon appeal the judgment of the Chancery Division was set aside and the former decision affirmed.
A statement of the material facts will be found in the judgment of His Lordship Mr. Justice Gwynne on this appeal.
Laidlaw Q.C. for the appellant referred to Lloyd on Compensation; London and Canadian Loan Co. v. Warin; Grier v. The Queen.
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Robinson Q.C. and Macdonald Q.C. for the respondent.
TASCHEREAU J.—In my opinion this appeal should be dismissed, with costs, for the reasons given by Mr. Justice Burton in the Court of Appeal.
GWYNNE J.—On the 9th of September, 1828, a certain water lot in the Bay of Toronto, designated as lot letter I, was granted in fee simple by metes and bounds in the letters patent granting the same set out, to one Ulrich Howard in fee simple. This lot extended from a certain line on the shore described in the letters patent to the precise distance of ten chains in a southerly direction into the waters of the bay. This water lot became vested in one Sarah Ann Boulton in fee simple in June, 1840. In the month of February, 1840, all the land covered with the waters of the bay lying south of the southerly limit of the said water lot and of other water lots for which letters patent had been granted by the Crown to a line therein described as drawn across the bay from the late French fort west of Toronto garrison Common to Gooderham’s windmill (since called the windmill line), was granted by letters patent from the Crown unto the corporation of the city of Toronto in fee simple upon certain trusts therein mentioned and among those upon trust that an esplanade should be constructed upon a line designated on a plan accompanying the said letters patent of such material and according to such plan as should be devised, ordered and directed by the mayor, aldermen and commonalty of the city of Toronto, in common council assembled; and upon trust further to convey and assure to the parties entitled to the water lots theretofore granted all that portion of land covered with water granted to the city which lay south of
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such previously granted water lots up to the said windmill line, subject however, to such general regulations as should affect the whole of the said land covered with water granted to the city, and to the provisos and conditions in the said letters patent contained as to the construction of the said esplanade and otherwise. The said letters patent have not themselves been produced, nor consequently the plan annexed thereto, but in lieu of the letters patent an extract therefrom sufficient for the purpose of the present case, and in lieu of the plan referred to in the letters patent a plan has been produced which has been sworn to be in precise correspondence therewith, and has been accepted as such, and also a copy of a plan registered in the Registry office, in the month of June, 1841, upon both of which the water lots granted previously to the letters patent of February, 1840, are designated by their respective letters placed on the northerly part of such water lots; and the pieces of land covered with water lying to the south of such previously granted water lots, and which were granted to the city by the letters patent of 1840, are designated by numbers placed at the southern extremity thereof on the windmill line; the piece so granted lying south of the said water lot, letter I, being numbered 26, while the letter I is put on the plan on the northerly extremity of the water lot as granted to Ulrich Howard. In the year 1853, the esplanade mentioned in the said letters patent had not yet been constructed, or indeed begun, and the corporation of the city of Toronto petitioned for and procured to be passed an Act, 16 Vic. ch. 219, whereby after reciting the said letters patent and that licenses of occupation had been issued to the city of certain other parcels of land covered with the waters of the said bay, under orders in council in the preamble of the Act mentioned, it
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was enacted that it should be lawful for the corporation of the city to contract with such persons or person as might be willing to erect and build an esplanade in front of and upon the water lots in the said city as described in the preamble of the Act and the letters patent and licenses of occupation therein recited, of such material and according to such plan as the corporation might have adopted or should adopt regarding the same, according to the provisions of the said letters patent. The Act then made provision for ascertaining the cost, after the completion of the esplanade, which each owner of a water lot should be chargeable with for the construction of the esplanade across his lot, and then by clause 7 it was enacted—
that so soon as the said esplanade shall be completed in the manner above mentioned, and the general regulations as to buildings and improvements under the direction of the corporation upon the system devised by them shall have been complied with, the mayor, aldermen and commonalty of the said city of Toronto shall forthwith convey to the several and respective owners of the said water lots entitled to the same under the said letters patent, the several and respective pieces, parcels and strips of land set forth and described in the said letters patent and designated on the map or plan thereto annexed.
The esplanade not having been yet completed, another Act was passed on the 10th June, 1857, 20 Vic. ch. 80, intituled
an Act to amend the Act conveying to the city of Toronto certain water lots, with power to the said city for the construction of an esplanade and to enable the said city to locate the Grand Trunk railroad and other railroads along the frontage of the said city,—
whereby it was among other things enacted in its 4th clause as follows:
And whereas the property directed by the letters patent of the 21st February, 1840, mentioned in the said Act to be conveyed to the said water lot owners therein referred to, was intended as compensation for the land which might be taken from them respectively for the esplanade and for the expense of making so much thereof as should be made on the land taken from them respectively. Be it
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enacted that the owners be charged with their respective shares of such expense, and if any such water lot owner or person having estate in any such water lot shall be dissatisfied with any such compensation, his claim to a further allowance shall, if not agreed upon, be determined by arbitration,
(as provided in the Act). Now, up to this time it is apparent that the owner of water lot letter I had acquired no estate in the land covered with water lying south of that water lot, which had been vested in the corporation by the letters patent of 1840. When, therefore, Mrs. Sarah Ann Boulton, by the indenture of lease in evidence, bearing date the 17th August, 1853, demised to George Carey and his assigns the water lot I in front of the “market square reservation” (the precise description by which the lot was granted in 1828 to Ulrich Howard), “together with the houses and buildings thereon erected,” it is quite obvious that nothing beyond the said water lot as the same was granted to Ulrich Howard, together with the buildings thereon at the time of the execution of the indenture of lease of the 17th August, 1853, passed by the demise therein contained, and that neither George Carey nor his assigns acquired any interest in the land covered with water lying south of the said water lot I granted to the city of Toronto by the letters patent of 1840. This indenture of lease contained a covenant for a renewal lease of the said premises at the expiration of the term thereby granted for a further term at such increased ground rent as should be fixed by arbitration in the manner specified in said indenture; provided always that instead of granting such renewal lease it should be lawful for the lessor, her heirs or assigns to take the buildings and erections that should then be on the said demised premises at such price or sum as should be fixed by arbitrators in the same manner as was provided for determining the in-
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creased ground rent. It also contained a covenant to convey the said demised premises in fee simple, free from encumbrances, to the lessee, his heirs or assigns, upon payment of $3,150 over and above all rent at any time within the first fifteen years of the term by the indenture of lease granted, subject to the condition following:
Provided always, and it is hereby declared that time is the essence of this covenant to convey, that unless the said purchase money be fully paid within the first fifteen years of the said term the said party of the second part, his heirs and assigns, shall be absolutely deprived and foreclosed of all right to purchase the said premises, and shall have no claim or title either at law or in equity to acquire the fee simple thereof.
One A.M. Smith became possessed of the term granted by the said lease and entitled to the benefit of all the covenants therein contained by assignment of the said indenture, &c., from the said George Carey, bearing date the 18th April, 1857. Upon the 24th November, 1864, Sarah Ann Boulton the owner in her lifetime of the said lot letter I, and as such upon the completion of the said esplanade entitled to a conveyance from the city of Toronto, in fee simple, of the piece of land covered with water lying to the south thereof to the windmill line, under the provisions of the said letters patent of February, 1840, and of the said Acts of Parliament relating to the construction of the esplanade, being dead, the corporation of the city of Toronto by deed of the above date expressed to be made in pursuance of the statutes relating to the Toronto esplanade, granted and conveyed to the said A.M. Smith, describing him as “water lot owner or assignee and vendee of a water lot owner” over and across or in front of whose lot the esplanade has been built, and to his heirs and assigns, “the piece of land covered with water lying in front of the said water lot letter I, and between it and the windmill line.”
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Smith was not then the owner of the said water lot letter I, and consequently was not entitled to have had the said piece of land covered with water lying to the south thereof conveyed to him, as he had not then availed himself of the right of purchase vested in him under the covenant in that behalf in Mrs. Boulton’s lease to Carey assigned to Smith. The deed doubtless was made in favour of Smith because of that covenant, three years of the period within which the right if exercised must be exercised had yet to run, and because of the fact that Mrs. Boulton the owner of the lot I was then dead. In this deed the water lot letter I is erroneously stated to have been described and marked on a map or plan of the said water lot made by Thomas Young, architect, dated June, 1840, as lot no. 26. As already pointed out the piece that was so marked with the no. 26 was the piece lying south of the said water lot letter I granted to the city of Toronto by the letters patent of February, 1840, while on the same map or plan the lot as granted to Ulrich Howard is marked with its letter I. But it is quite plain from the deed that what passed thereby was the piece south of water lot I and between the south limit thereof and the windmill line. Smith did not within the fifteen years allowed by the covenant in the lease to Carey as to purchase and sale exercise his right of purchase, and such right by the express terms of the lease containing the covenant absolutely ceased and the covenant in relation thereto became null and determined upon the 1st June, 1868, and thenceforth at least, if not from the date of the conveyance from the city in November, 1864, Smith held the piece of land covered with water so conveyed to him upon trust for the owner in fee, of the said water lot I, whereof Mrs. Boulton was seized at the date of her lease to Carey. Upon the 20th November, 1872, the trustees of Mrs.
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Boulton’s will by indenture of bargain and sale of that date conveyed to one John Boulton in fee the said water lot I by the description contained in the said lease of August, 1853, to Carey subject to the terms of that lease, and by indenture dated the 1st June, 1875, Smith who was then seized of the piece of land covered with water lying south of the said water lot I, in trust for the owner in fee of said water lot I, conveyed the same to the said John Boulton, the then owner in fee of said water lot I, in fee by the same description as is contained in the conveyance of November, 1864, from the city to Smith, and by the same description the said John Boulton by indenture of lease, dated the 2nd June, 1875, demised at a nominal rent of 20 cents the same piece of land covered with water lying south of water lot I, for a term of years terminating on the 1st day of June, 1893, subject however to the same right of renewal and covenants in respect of renewal as are contained in the lease of the 17th August, 1853, from Mrs. Boulton to Carey in respect of the piece of land thereby demised, and the lease contained this further provision, that the premises demised by this lease and the premises demised by the lease of August, 1853, for the purpose of determining the value of the increased ground rent to be paid on renewal and the value of the erections and buildings to be paid for in default of renewal should be regarded as one property and as if the whole had been demised by the lease of August, 1853.
Now by an indenture dated the 26th day of October, 1874, Smith demised to one James Adamson for a term terminating on the 28th May, 1893, so much of the said water lot I as lay to the south of the esplanade by the following description:
All and singular all that part of water lot I in front of the market square reservation in the said city of Toronto lying south of Espla-
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nade street having a frontage on Esplanade street of about sixty-six feet, more or less.
This indenture contained a covenant for renewal at an increased ground rent or instead thereof for payment of the value of all buildings and erections thereon in the precise terms contained in the lease of 17th August, 1853. Both Smith and Adamson are now dead and what they may have contemplated to be the premises covered by this instrument we have no means of knowing save by the expressions used in the instrument, and this indeed is what in any case must alone determine the construction to be put upon the instrument; and that as it appears to me clearly is that it is nothing more than a sub-lease of so much of the water lot demised by the lease of August, 1853, as lay to the south of the esplanade and that consequently it does not cover any part of the piece of land covered with water lying south of the water lot letter I granted to the city by letters patent of February, 1840, and conveyed by the city to Smith in November, 1864, and by Smith to Boulton the owner in fee of said water lot I in June, 1875, and then leased by Boulton to Smith. It cannot be assumed that Smith who in October, 1874, held the land covered with water lying south of lot letter I, without any beneficial interest himself therein but as trustee to convey it to the owner in fee of the water lot I, contemplated leasing that piece of land as if he was the beneficial owner in fee thereof. Even had he been such owner in fee he might have retained in himself the land covered with water south of lot I in its then condition as affording access by water to the lot I, and if that had been his intention the language of the lease of October, 1874, is admirably adapted to express such intention. Smith had no beneficial interest in the land covered with water south of the water lot I except under the lease from John Boulton of the date of
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the 2nd of June, 1875, and as that piece of land covered with water was of no use to any one save only the occupant of the water lot I, Smith might well have permitted Adamson without objection to make what use of it he should think fit during the continuance of the sub-term demised to him of the water lot I; but however this may be we must, upon the construction of the instrument of 26th October, 1874, hold that it operated only as a sub-lease of so much of the water lot I granted to Ulrich Howard and described in the lease of August, 1853, as lay to the south of the esplanade.
Now it is here to be observed that by the plans produced and the scales therein stated as being the scales upon which the plans are drawn, the water lot I, as granted to Ulrich Howard, appears to have extended about 320 feet, but no more, measured along the eastern limit of the said water lot in a southerly direction from the south limit of the esplanade as it was constructed. Upon the piece of land covered with water lying south of the said water lot I, James Adamson appears to have erected in his lifetime some temporary structure on piles which was destroyed by fire, and a similar structure was erected in its place which was also destroyed by fire, and after his death the present plaintiff as administrator of James Adamson, deceased, in 1885, filled up with earth the land covered with water south of the water lot I to the windmill line and protected the same with crib-work filled with stone, which by a map or plan produced is shown to have been constructed in the waters of the bay south of the windmill line, and by an indenture dated the 27th day of May, 1887, purported to demise to one Lister Nicholls, for a term expiring on the 27th May, 1893, all that piece of land covered with water, “being part of lot number twenty-six, opposite water lot let-
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tered I, &c.,” more particularly described in the said indenture by a description of which the point of commencement is stated to be 395 feet 10 inches measured in a southerly direction from the south limit of the esplanade along the eastern limit of the said lot; and from that point the piece demised is stated to extend southerly one hundred and eighty-eight feet and nine inches to the windmill line.
Now, although this indenture correctly describes the piece of land covered with water, which is expressed to be thereby demised as being part of a piece of land covered with water lying south of and opposite to water lot lettered I, yet strange to say the title of the lessor thereto is in the indenture recited to be the indenture of the 26th of October, 1874, which does not profess to relate to any land covered with water lying south of, or opposite to, the water lot lettered I, but only to so much of that water lot lettered I itself as lay south of the esplanade and nothing more. The rent reserved by this lease is $375 a year for about two-thirds of the land covered with water which was demised by John Boulton to Smith at 20 cents per annum. It is obvious that this rent of $375 is calculated upon the increased value of the water lot by reason of its having been filled in with earth and made dry land and in six years that rent would go far to pay, if it would not wholly pay, the expense of filling in the lot and making it dry land.
In this instrument the above plaintiff covenants that in case Smith, his heirs, executors, administrators or assigns, should refuse to renew the term granted by the indenture of the 26th October, 1874, then that Nicholls, his executors, administrators or assigns, should be entitled to receive from the plaintiff, his executors, administrators or assigns, or from the estate of the said James Adamson, deceased, the value of the improve-
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ments made by Nicholls, his executors, administrators or assigns, and then standing upon the premises demised by the indenture of the 27th May, 1887, to the extent that Smith, his executors, administrators or assigns, shall be held bound to pay on account of or in respect thereof; so that if Smith or his assigns should not be liable to pay anything for such improvements by reason of the premises upon which they should be standing, not being comprised in the indenture of 26th October, 1874, as not being part of the lot lettered I thereby demised, then in the language of this covenant there would be no liability thereunder resting upon the plaintiff or the estate of James Adamson.
James Adamson in his lifetime by an indenture dated the 26th day of February, 1875, had demised to Christopher and Robert A. Wilson a piece of the water lot I included in the lease of the date of 26th October, 1874, being composed of the north-west corner of that part which lies south of the esplanade, measuring along the south limit of the esplanade about 39 feet and extending southerly along its western boundary line 62 feet.
Then by indenture dated the 20th December, 1887, the plaintiff as administrator of James Adamson purported to demise to one Ray for a term of years expiring on the 27th May, 1893, all the land lying adjoining upon the north to the piece described in the indenture of the 27th May, 1887, up to the southerly limit of the esplanade, exclusive of the piece described in the indenture of the 26th February, 1875. The southeastern angle of the piece described, which is the north-eastern angle of the piece described in the indenture of the 27th May, 1887, is stated to be 395 feet 10 inches south of the esplanade. That point is fully 75 feet south of the southern limit of the water lot lettered I; to the extent of such 75 feet the land
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lying north of and adjoining to the piece described in the indenture of the 27th May, 1887, was not covered by the description in the indenture of the 26th October, 1874. The water lot lettered I extended on its eastern limit no further than 320 feet south of the esplanade; all south of that to the windmill line constituted what always had been known as a water lot lying south of the water lot lettered I, and which on the maps or plans referred to as made in 1840 was marked as an independent water lot known as no. 26, south of and opposite to water lot lettered I.
This indenture also contains a covenant by plaintiff that the lessees, their executors, administrators and assigns, shall be entitled to receive notice of the arbitration provided for in the indenture of the 26th of October, 1874, and to attend such arbitration and give proof of the value of their improvements and shall be entitled to receive the amount awarded in respect of such improvements—and thus their right to recover for their improvements is restricted to the limit of the liability of Smith and his assigns under the indenture of October 26th, 1874. All the interest of the lessees under the above indentures executed by the plaintiff as administrator of James Adamson, deceased, as also all the interest of the lessees under the indenture of the 17th August, 1853, and under the indenture of lease of the 2nd June, 1875, from John Boulton to Smith, are vested in the defendant who has either built himself or purchased at an outlay of several thousand dollars all erections and buildings standing upon the whole of the pieces of land and land covered with water comprised in the said several indentures, using the terms “erections and buildings” as relating to structures, of whatever nature they may be, erected upon the ground demised and not constituting part of the ground itself; and the sole question before us upon
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this appeal is whether the plaintiff as assignee of all the estate and interest of Smith and subject to the liability incurred by him by his covenants in the indenture of the 26th October, 1874, is under those covenants, or any of them liable to pay to the estate of James Adamson for filling in such part of the land covered with water as may have been filled in with earth and made dry land by James Adamson in his lifetime, if any there was, or by the plaintiff as administrator of his estate since his death; in other words whether such filling in and conversion of land covered with water constitutes an erection or building on the demised premises on the 28th May, 1893, when the term granted by Mrs. Boulton by the indenture of the 17th August, 1853, expired; and in my opinion, as already expressed, the indenture of the 26th October, 1874, does not affect any land or land covered with water south of the water lot lettered I, that is to say, it does not cover any part of the land granted by the letters patent of 1840; it operated simply as a sub-lease of so much of the land demised by the indenture of 17th August, 1853, as lay south of the esplanade; Smith’s covenant therein, therefore, has no relation to any of the land covered with water granted by the letters patent of 1840, as being south of the said water lot lettered I.
But as part of the filling in of land covered with water and the conversion thereof into dry land may have been upon a part of the said water lot lettered I, that is, may have been done within about 320 feet of the south limit of the esplanade, it becomes necessary to determine whether such filling in and conversion of land covered with water into dry land constitutes an “erection or building” as those terms are used in the indentures of 17th August, 1853, and 26th October 1874. The language in both is identical, and although there are covenants in the former whose subject and
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context seem to put the question beyond all doubt if arising upon the indenture of August, 1853, against the lessor of that indenture, her heirs or assigns, still I think the construction of the covenants in both instruments relating to payment for “erections and buildings which may be on the demised premises” at the close of the terms granted must be the same, the language of both of those covenants being the same. In both instruments the above words must be construed in the ordinary acceptation of the terms “erections and buildings” and so construed no one would understand that the ground itself or any part of the ground upon which an “erection” or “building” or structure of any kind should be erected, should constitute the erection or buildings upon the ground, but the language of the covenants seems very plainly to exclude such a construction. For the purpose of determining the increased ground rent to be reserved upon a renewal lease the demised premises are to be valued in their then condition as if there were no “erections or buildings” thereon, and as the absolute property of the lessor out of which the rent to be reserved is to issue; then the lessor’s covenant is that if he will not demise such his absolute property at the increased rent ascertained by arbitration he—
will take the buildings and erections that shall or may then be on the said demised premises at a price to be fixed by arbitration
in the same manner as above provided for determining the increased ground rent to be reserved on a renewal lease of the ground, the lessor’s absolute property. From this language it is apparent that the demised premises, that is to say, the ground in its then condition and the buildings and erections thereon are regarded as being wholly distinct from each other and are to be valued the one as the property of the lessor
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and the other as the property of the lessee until paid for by the lessor. Being so distinct it is impossible to say that the ground or any part thereof which is the property of the lessor can be held to be part of the property of the lessee and as such to be paid for by the lessor.
The case I must say appears to me absolutely free from doubt.
We have been referred to a case of Lavy v. London County Council; it decides merely that a wall erected to the height of eleven feet is “a building structure or erection’’ within the meaning of sec. 75 of the Metropolis Management Act, 1862. That case obviously has no bearing upon the question raised on this appeal.
The appeal must be dismissed with costs.
SEDGEWICK, KING and GIROUARD JJ. concurred.
Appeal dismissed with costs.
Solicitors for appellant: Laidlaw, Kappele & Bicknell.
Solicitors for respondent: Maclaren, Macdonald, Merritt & Shepley.
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