District Registrar of Portage La Prairie v. Canadian Superior Oil of California Ltd., [1954] SCR 321

Supreme Court of Canada

District Registrar of Portage La Prairie v. Canadian Superior Oil of California Ltd., [1954] S.C.R. 321

Date: 1954-05-19

The District Registrar of The Land Titles District of Portage La Prairie (Defendant) Appellant;

and

Canadian Superior Oil of California Ltd. and William Hie Bert (Plaintiffs) Respondents.

1953: November 24, 25, 26; 1954: May 19.

Present: Rinfret C.J., Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright and Fauteux JJ.

Real Property—Crown lands brought under Real Property Act (Man.)— Minerals not reserved in certificate of title—Title of bona fide purchaser from registered grantee from Crown—Whether “grant from Crown” includes a transfer therefrom—Manitoba Provincial Lands Act, 1887, c. 21, ss. 20, 21—Provincial Lands Act, R.S.M., 1913, c. 155, s. 25—Real Property Act, R.S.M., 1913, c. 171, ss. 2(a), 78(a), 79— Real Property Act, R.S.M., 1940, c. 178, ss. 61, Dominion Lands, 1883, c. 17, s. 43.

The title to the lands giving rise to the present appeal was originally in the Crown in the right of Canada which, in 1901 by Order in Council, vested it in the Crown in the right of the Province of Manitoba. Shortly thereafter one “M” made application to purchase the lands on terms which provided that all valuable stone, coal or other minerals were reserved to the Province. The latter in 1903 by Order in Council directed that the lands be brought under the operation of The Real Property Act (Man.) and a certificate of title issued to the Crown in the right of the Province. In 1914 “M” quit claimed his rights to one “N”: to whom, on completion of payment of the purchase price in 1919, a. transfer in the form prescribed by The Real Property Act, (R.S.M. 1913, c 171) of all the estate and interest of the Crown in

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the lands was executed and a new certificate of title issued. There was no specific mention of minerals either in the certificate or the transfer but the latter was under the Act made subject to any reservation contained in the original grant from the Crown. Subsequently the lands became vested in the respondent Hiebert to whom was issued a certificate of title similar to that issued “N”. Hiebert executed a lease of the petroleum and natural gas in the lands of which the respondent oil company became the assignee. The latter presented a caveat to the appellant for registration based on the lease and assignment thereof. ‘The appellant refused to register it on the ground that the lessee had no estate or interest in the lands. In the litigation that ensued the appellant contended that the petroleum and natural gas by reason of s. 21 of The Manitoba Provincial Lands Act, 1887 did not at any time pass from the Crown. The contention of the respondents, which prevailed in the courts below, was that as there was no express reservation in the original -transfer from the Crown the mineral rights passed to the transferee and were not reserved by s. 21.

Held (Rinfret C.J., Estey and Locke JJ. dissenting) :—

1. That in enacting the Manitoba Provincial Lands Act, 1887, the Legislature expressly brought all lands held by the Crown in the right of the Province under that general statute.

2. That in construing the Provincial Lands Act (R.S.M. 1913, c. 155) and

The Real Property Act (R.S.M. 1913, c. 171) the two statutes must be read together and when so read the word “grant” in the declaration contained in s. 24 of the 1887 Act (s. 25 of R.S.M. 1913, c. 155), that no grant from the Crown of lands in freehold has operated or will operate as a conveyance of any minerals therein unless expressly conveyed in such grant, includes a transfer of lands from the Crown under The Real Property Act. The effect of s. 21 is as if the transfer bore an endorsement that it was subject to the provisions of s. 21.

Per Rinfret C.J. and Locke J., dissenting:—Section 21 of the Manitoba Provincial Lands Act, 1887 (s. 25 of R.S.M. 1913, c. 155) with a minor change, was taken verbatim from s. 43 of the Dominion Lands Act, 1883 and the words “grant from the Crown” should be attributed the same meaning in both statutes, that is, as referring only to grants by letters patent, As in the case of the Dominion Act, the only means specified for conveying Crown lands was in this manner.

The transfer to “N”, made in the form prescribed by The Real Property Act of 1913 pursuant to Order in Council of Nov. 10, 1914, transferred “all our estate and interest in the said land”. By virtue of the definition of land in The Real Property Act, and of s. 88 of that Act, there being no contrary intention expressed in the transfer, all mines and minerals in the lands were “expressly conveyed in such grant” within the meaning of s. 25 of the Provincial Lands Act of 1913, if the transfer was a grant.

Per Estey J. (dissenting) :After the enactment of The Lands Registration Act in 1880. and The Real Property Act of 1885 Manitoba had two systems of land registration. The Manitoba Provincial Lands Act, 1887 did not alter or amend either and the Crown. thereafter made its conveyances according to which Act its land was under. The contention that a. conveyance by.” way of “grant” would not include a “transfer” therefore cannot be accepted. Here since the Crown’s title

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to the land was under a statute which contemplated that a conveyance should be made by transfer it must follow that the term “grant” in legislation providing for the administration of such land must be. read to include the word “transfer” as used in The Real Property Act. That Act contemplated that whenever the Crown granted land under it it would foe by way of patent deposited with the Registrar and the issue of a certificate of title to the transferee. The land here was placed under that Act by Order in Council and conveyed by transfer so that the transfer must be accepted as the original grant from the Crown. Since under The Real Property Act of 1885 and the Manitoba Provincial Lands Act, 1887 “land” is defined to include “minerals”, the conveyance to “N” would include them because they were not specially excepted.

APPEAL from a judgment of the Court of Appeal for Manitoba 1 affirming with a variation the judgment of Freedman J.2.

A. E. Hoskin, Q.C. and John Allen, Q.C. for the appellant.

J. G. Cowan, Q.C. for the Attorney General of Manitoba.

F. M. Burbridge, Q.C. and D. C. L. Jones for the respondents.

The dissenting judgment of Rinfret C.J. and Locke J. was delivered by:—

Locke J.:—It is, in my opinion, necessary, in order to determine the questions raised in this appeal as to the proper interpretation of s. 25 of The Provincial Lands Act (R.S.M. 1913, c. 155) and of the relevant sections of The Real Property Act (R.S.M. 1913, c. 171, R.S.M. 1940, c. 178), to examine the legislation enacted, both by Parliament and by the Provincial Legislature, defining the manner in which the public lands in Manitoba should be dealt with following the ‘creation of that province in 1870.

The Manitoba Act 1870 (33 Vic. c. 3) provided, inter alia, that all grants of land in freehold made by the Hudson’s Bay Company up to March 8, 1869, should, if required by the owners, be confirmed by grant from the Crown, the mode and form of such grants to be determined by the Governor General in Council.

The first Dominion Lands Act related exclusively to the public lands of Manitoba and the Northwest Territories and was enacted as c. 23 of the Statutes of 1872. This

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defined the manner in which the lands acquired by Canada by virtue of the surrender of the rights of the Hudson’s Bay Company in Rupert’s Land and the North-Western Territory might be dealt with. Provision was made for sales of such land and the granting of homestead rights to settlers. On the completion of such purchases or the fulfilment of the prescribed homestead duties it was provided that title should be conveyed by letters patent, to be signed on behalf of Her Majesty by the Governor General or his Deputy, and the grants to those holding titles by grants from the Hudson’s Bay Company were to be made in like manner. By the terms of the deed of surrender from the Hudson’s Bay Company to the Crown, that company was entitled to certain lands in each township in part of the territory surrendered: as to part of these, it was provided by s. 21 that title should be vested in the company without requiring patents to issue: as to the remainder, letters patent in the name of the company were to be granted. Section 36 of the Act provided that no reservation of gold, silver, iron, copper or other mines or minerals should be inserted in any patent from the Crown granting any portion of the Dominion lands.

The Act of 1872 was repealed by c. 31 of the Statutes of 1879 which was described as an Act to Amend and Consolidate the several Acts respecting the Public Lands of the Dominion. This substantially reproduced the earlier Act. Section 36 of the Act of 1872 appeared as s. 37 of the Consolidated Act.

By c. 26 of the Statutes of 1880 s. 37 and other sections which had appeared in the Acts of 1872 and 1879 under a sub-heading “Mining Lands” were repealed and a section substituted which provided that lands containing gold or other minerals should not be subject to the provisions of the Act respecting sale or homestead but should be disposed of in such manner as might from time to” time be determined by the Governor in Council by regulations to be made in that behalf.

The Act was again repealed and consolidated by c. 17 of the Statutes of 1883. The amendment of 1880 which had’ replaced s. 37 of the Act of 1879 appeared as s. 42, with

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other sections, under a sub-heading “Mining and Mining Lands.” Section 43 of this Act, forming part of this group of sections read:—

It is hereby declared that no grant from the Crown, of lands in freehold or for any less estate, has operated or will operate as a conveyance of the gold or silver mines therein, unless the same are expressly conveyed in such grant.

In this Act, settlers making homestead entries were given the further right of making a pre-emption entry for an adjoining unoccupied quarter section of land.

The surrender by the Hudson’s Bay Company, as has been stated, was made to the Dominion of Canada and the Province did not, with some minor exceptions for roads or road allowances, receive any part of the public lands within its boundaries when constituted in 1870. Thereafter, however, the Province became entitled to certain lands by reason of arrangements made with the Dominion in respect to drainage and it became necessary to provide a means whereby such lands and any other lands that the province might acquire might be sold or disposed of. Accordingly, by c 12 of the Statutes of Manitoba of 1883, provision was made whereby any such lands which had become, or might thereafter become, the property of the province might be sold and title given under letters patent under the Great Seal of the Province, duly authorized by the signature of the Lieutenant-Governor and the Secretary of the Province.

The Real Property Act, 1885 (c. 28) introduced the Torrens system into Manitoba. Under this Act a certificate of title issued by the Registrar General (whose appointment was provided for) and signed by him under his seal of office, became the root of title to lands subject to the Act in lieu of letters patent issued either under the Dominion Lands Act or the Provincial Lands Act of Manitoba.

The interpretation section of the Act contained the following definitions which bear upon the present matter:—

3. In this Act, and in all instruments purporting to be made or executed thereunder, unless the context otherwise requires:—

(1) The expression “Land” shall extend to and include land, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever may be the estate or interest therein, together with all paths, passages, ways, water-courses, liberties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timber thereon, and thereunder lying or being, unless any such are specially excepted;

* * *

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(19) The expression “Grant” shall mean and include any grant of Crown land, whether in fee or for years, and whether direct from Her Majesty or pursuant to the provisions of any statute.

By s, 22 it was provided:—

Hereafter no words of limitation shall be necessary in any conveyance of any land in order to convey all or any title therein, but every deed or instrument conveying land shall operate as an absolute conveyance ‘of all such right and title as the grantor has therein at the time of its execution, unless a contrary intention be expressed in such conveyance; but nothing herein contained shall preclude any conveyance from operating by way of estoppel; and hereafter the introduction of any words of limitation into any conveyance or devise of any land, shall have the like force and meaning, as the same words of limitation would have if used by way of limitation of any personal estate, and no other.

Part V of the Act defined the procedure under which owners of land might apply to have their title registered under the Act and obtain certificates of title.

Section 61, so far as relevant to the present matter, read:—-

61. The land mentioned in any certificate of title granted under this Act, shall, by implication, and without any special mention in the certificate of title, unless the contrary be expressly declared, be deemed to be subject to:—

(a) Any subsisting reservations contained in the original grant of said land from the Crown;

* * *

(g) Any right of expropriation which may by statute be vested in any person or body corporate;

Section 62 read:—

62. Every certificate of title granted under this Act, when duly registered, shall (except in case of fraud wherein the registered owner shall have participated or colluded) so long as the same remains in force and uncancelled under this Act, be conclusive evidence at law and in equity as against Her Majesty and all persons whomsoever, that the person named in such certificate is entitled to the land included in such certificate, for the estate or interest therein specified; subject to the exceptions and reservations mentioned in section 61, except as far as regards any portion of land that may by wrong description of boundaries or parcels be included in such certificate when the holder of such certificate is neither a, purchaser or mortgagee for value, nor the transferee of a purchaser or mortgagee for value, and except as against any person claiming under any prior certificate of title granted under this Act in respect of the same land and for the purpose of this section, that person shall be deemed to claim under a prior certificate who is holder of, or whose claim is derived directly or indirectly from the person who was the holder of the earliest certificate granted, notwithstanding such certificate may have been surrendered and a new certificate granted upon any transfer or dealing.

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Section 65 provided that an owner desiring to transfer the title of property under the Act might execute a transfer in the form contained in Schedule D and required such transfer to contain an accurate statement of the estate intended to be conveyed.

Part XV provided for the setting up of an Assurance Fund which might be resorted to in certain specified events, which included losses sustained by any omission, mistake or misfeasance of the Registrar-General or of anyone employed in the various Land Titles Offices.

In 1887 the Provincial Lands Act of 1873 was repealed and a new statute substituted (c. 21). The preamble to this statute read:—

Whereas it is expedient and necessary to make provision for the administration of the public lands now acquired or which may be hereafter acquired in any manner whatsoever by the Government of the Province of Manitoba, whether earned under the Statutes or Orders-in-Council of this Province, or of the Dominion of Canada relating to the draining of submerged or swamp lands, or the granting of swamp lands to this Province for public purposes, lands foreclosed under mortgages or acquired for arrears of taxes and all lands that may be or become vested in Her Majesty for the use of this Province or in any way become the property of this Province:

Therefore Her Majesty by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:—

By s. 1 the expression “Land” was declared to extend to and include, inter alia, mines, minerals and quarries appertaining thereto. As in the case of the earlier statutes, it was provided that conveyances of Provincial lands should be made by letters patent issued under the Great Seal of the Province.

By s. 12 provision was made whereby Provincial lands which had been sold and the purchaser’s interest, having become liable to taxes, sold for arrears, the Land Commissioner might direct the issue of letters patent to the purchaser at such tax sale upon completion by him of the conditions of location or sale.

Under the sub-heading “Mining Lands”, s. 20 provided that lands containing coal or other minerals should be disposed of in such manner and on such terms as might be fixed by the Lieutenant-Governor in Council, the language being merely an adaptation of the language of s. 42 of the Dominion Lands Act, 1888.

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Section 21 read:—

It is hereby declared that no grant from the Crown of lands in freehold or for any less estate has operated or will operate as a conveyance of the gold or silver mines or any other mineral therein, unless the same ‘are expressly conveyed in such grant.

It will be noted that this was almost a replica of s. 43 of the Dominion Lands Act which is above set out, the only change made being that after the word “mines” there was inserted in the Provincial legislation “or any other mineral.”

The land in question in this action originally formed part of a land grant made by the Dominion of Canada prior to 1899, to assist in the construction of the Manitoba and North Western Railway. No patents had been granted in respect of any of the said lands but land warrants had been issued and, by an agreement dated May 9, 1899, which was approved by c. 19 of the Statutes of Manitoba of 1899, warrants for land including this parcel were surrendered to the Province. By a Dominion Order-in-Council made on May 31, 1901, it was recited that the railway company had requested that “title be passed for certain of these lands to the Crown in the right and for the use of the Province of Manitoba”, that the Government of the Province had forwarded the warrants for the land for which title had been applied and it was recommended that title be vested in His Majesty King Edward the Seventh in the right and for the use of the said Province of Manitoba. Annexed to the order was a list describing lands which included the land in question. No patents were issued in respect of any of these lands by the Dominion. The effect of the Order-in-Council was that the right to the beneficial use of the lands was appropriated to the Province and became subject to the control of its Legislature, the land itself being vested in the Crown (St. Catherine’s Milling and Lumber Co. v. The Queen 3).

In 1902, by c. 43, The Real Property Act was reenacted and the Statute of 1885, as amended, repealed. Section 29 read:—

The Lieutenant-Governor-in-Council may by order direct a District Registrar to bring under this Act any land belonging to His Majesty in the right of Manitoba and the filing with a District Registrar of such Order-in-Council shall in all respects have the same force and effect as the filing of an application to bring land under this Act.

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Acting under this section of the Act, an Order-in-Council was made by the Government of the Province on May 13, 1903, directing that certificates of title do issue to His Majesty the King for lands which included the lands in question. In pursuance of this direction, a certificate of title was issued out of the Land Titles Office at Portage la Prairie in the name of His Majesty the King in the right of Manitoba for the east half of Section 13 in Township 16, Range 10, West of the Principal Meridian. The certificate was in the terms prescribed by The Real Property Act and there was endorsed on the face of it a statement that the land was subject by implication to, inter alia, any subsisting reservation contained in the original grant of this land from the Crown. Unless the Dominion Order-in-Council above referred to, which transferred the right to the beneficial use of the lands to His Majesty in right of the Province, could be described as a grant (and I think it could not) there had been no grant of this land from the Crown. If it was a grant, there were no reservations of any kind contained in it.

The purpose of the Province in directing that these particular lands should be made subject to the provisions of The Real Property Act is not apparent, nor why, having done so, certificates of title were issued in the name of His Majesty. The title of the Crown in the right of the Province to these lands, in the circumstances above described, could not possibly be questioned, and obtaining certificates of title under the provisions of the statute could add nothing to the incontestable nature of that title. The Provincial Lands, Act which was then in force provided for the disposition of Provincial lands by letters patent only, which would indicate that it was never contemplated when that statute was passed that Provincial Crown lands should be made subject to The Real Property Act while remaining the property of His Majesty. It is due to this having been done and a certificate of title issued for the lands in question, which would by virtue of the provisions of The Real Property Act require conveyances to be made by way of transfer, that the difficulty arises which is responsible for the present litigation.

The facts as to the transactions in regard to this particular land following the issue of the certificate of title, so far as it is necessary to consider them, are as follows:—In

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the year 1901, one Richard Morgan had made application in writing to the Provincial Lands Department to purchase the east” half of section 13-16-10” West, which by its terms said that all valuable stone, coal or other minerals were to be reserved to the Province. In September 1914, Morgan’s interest in these lands was acquired by one Noble and, upon his completing payment of the purchase price a transfer in the form required by The Real Property Act authorized by an Order-in-Council was given on November 10, 1914.

The language of the transfer, so far as it is necessary to consider it, was as follows:—

His Majesty the King in the right of our Province of Manitoba being registered owner of an estate in fee simple in possession subject however to such encumbrances, liens and interests as are notified by memorandum underwritten or endorsed hereon in all that piece or parcel of land known or described as follows (describing it and stating the consideration) the receipt of which sum we do hereby acknowledge transfer to the said William P. G. Noble all our estate and interest in the said land.

The instrument was executed by the Lieutenant-Governor, the Attorney-General, the Provincial Secretary and the Acting Provincial Lands Commissioner, and the Great Seal of the Province affixed. There were no “encumbrances, liens and interest” underwritten or endorsed on the instrument.

While by the terms of Morgan’s application the minerals were to be reserved to the Crown, this apparently was ignored or overlooked when the transfer was given to Noble. It is sufficient for the purpose of disposing of the present matter to say that thereafter title to this land was transferred under the provisions of The Real Property Act to various other persons, that it was sold for taxes and title acquired by the Rural Municipality of Lakeview, by which it was sold and transferred pursuant to the provisions of the Act. Eventually, on November 30, 1948, a certificate of title was issued by the District Registrar at Portage la Prairie, wherein William Hiebert of the Post Office of Langruth was stated to be seized of an estate in fee simple in possession:—

subject to such encumbrances, liens and interest as are notified by memorandum underwritten (or endorsed hereon) in all that piece or parcel of land known and described as follows:—

the south-half of the south-east quarter of section thirteen in Township sixteen and Range Ten West of the Principal Meridian in Manitoba.

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There were no encumbrances, liens and interest notified by memorandum or endorsed on the certificate other than those to which all certificates of title issued under the Act, unless the contrary be expressly declared, are deemed to be subject by the terms of s. 60 of The Real Property Act (R.S.M. 1940, c. 178). In so far as it affects the present matter, with minor changes in wording which did not alter the meaning, that section was in the terms of s. 61 of The Real Property Act of 1885.

On August 2, 1950, Hiebert granted a lease of the petroleum, natural gas and related hydrocarbons within, upon or under the said lands to one Ted Harris for a term of ten years at a stipulated annual rental. By assignment, the rights of the lessee under this instrument were subsequently vested in the respondent company. Upon the company seeking to file a caveat in the Land Titles Office at Portage la Prairie for the protection of its interest under the said lease, the District Registrar declined to accept the instrument on the ground that the company had acquired no interest in the” said lands, since Hiebert was not the owner of any of the minerals contained therein. The present proceedings were initiated by the respondent company to establish its right to the registration of its caveat.

The refusal of the District Registrar to accept the caveat for registration is based upon the ground that the transfer from the Crown to Noble was a grant within the meaning of s. 25 of The Provincial Lands Act of 1913 and that, accordingly, by statute any minerals in or under the land remained the property of the Crown since they were not, in the language of the section, “expressly conveyed.”

For the respondent, it is contended that the expression “grant” does not include transfers of land in the statutory form required by The Real Property Act and that, accordingly, Noble became and Hiebert was on the date upon which he granted the lease to Harris the owner of the minerals contained in the land.

It will be seen from the above recital of the legislation passed by the Dominion and by the Province in dealing with lands surrendered by the Hudson’s Bay Company that the Province adopted the mode of conveyance earlier decided on by Parliament for the disposition of Dominion lands. The grants thus made to those holding Hudson’s

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Bay titles or who might become entitled to conveyances under the provisions of the Dominion Lands Act of 1872 were to be made by letters patent and it is to be noted that it was in this manner that the Dominion conveyed lands under the Act from that time until the year 1950, when the Act was repealed by the Territorial Lands Act (c. 22). There can, therefore, be no doubt that when s. 43 was introduced into the Dominion Lands Act, 1883 the “grant from the Crown” referred to was a grant by letters patent and that that was the proper interpretation of the expression in that Act until 1908, when the section in which it occurred was omitted. In the consolidation of that year (c. 20) other provisions were included dealing with the disposition of lands containing minerals and there was no counterpart of s. 43.

The Dominion, while conveying lands of the Crown in the manner specified by the Act followed the lead of the Province in introducing the Torrens system into the Northwest Territories by c. 15 of the Statutes of 1886. This was the Territories Real Property Act, which was made applicable not only to the Northwest Territories but to the District of Keewatin and all other territories of Canada. The Act closely followed the language of The Real Property Act of Manitoba which had been passed by the Legislature in 1885. Ss. 61 and 62 of the Act reproduced the terms of the same sections in the Manitoba Real Property Act. Registration districts were established in the Northwest Territories where persons who already held title to their lands by letters patent from the Crown might have their title registered under the provisions of the new Act. By s. 44 it was provided that whenever any land was granted in the Territories by the Crown the letters patent, when issued, should be forwarded to the Registrar of the registration district in which the lands were situated, to be retained, and a certificate of title granted to the patentee. Thus, all lands alienated by the Crown or by other owners would eventually become subject to the provisions of the new statute. That Act was repealed and replaced by the Land Titles Act of 1894, which did not differ from it in any material particular. When the Provinces of Alberta and Saskatchewan were created in 1905, similar legislation of the same name was adopted by them. There is nothing in any of the Dominion legislation to indicate that it was ever

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contemplated that, so long as the lands remained the property of Canada, they would be subject to the provisions of the Act or that certificates of title should issue to the Crown.

When the Provincial Lands Act of 1887 was passed The Real Property Act had been in force for two years in the Province of Manitoba. The Provincial Lands Act, as was the case with all of the Dominion Lands Acts, provided that the title of the Crown when alienated should be conveyed by letters patent and the manner in which such grants were to be executed was defined. There is nothing in it to indicate that it was ever contemplated at that time that Provincial Crown lands should become subject to the provisions of The Real Property Act while the title remained in the Crown. The Real Property Act of 1885 had provided by s. 28 that from the commencement of the Act all lands unalienated from the Crown in the Province should, when alienated, be subject to its provisions and by s. 29 that when patents were issued thereafter they should be deposited with the Registrar General and a certificate of title issued to the person entitled. This, as in the case of the Dominion legislation adopted in the year following for the Northwest Territories, indicated that the Legislature had considered it desirable that in the course of time lands in the Province purchased from the Crown should be made subject to the new system. The Act contained nothing of this nature affecting lands owned by the Crown.

In my opinion, the words “grant from the Crown” in s. 21 of the Act of 1887 are to be construed in the same manner as those words in s. 43 of the Dominion Lands Act. In accordance with the fundamental rule, it is in the first instance the intention of the Legislature of 1887 which is to be determined. There is another principle of statutory construction that the language of a statute which deals with a genus is generally extended to new things which are a species of that genus which were not known and could not have been contemplated by the Legislature when it was passed (Maxwell, 10th Ed. p. 79). A case illustrating the application of this principle is Attorney-General v. Edison Telephone Co.4. If it could be said that that principle has any application to the differing manners in

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which title to land may be conveyed, it’s application would not assist the case of the appellant since the new manner of conveying lands provided by the Torrens system had been established two years earlier. It is, of course, elementary that the language of s. 21 is to be construed in its context and the entire Act considered in endeavouring to arrive at the meaning to be assigned to the word “grant”. If this be done, it is, in my opinion, a necessary conclusion that the grants referred to were grants of the only kind authorized by the statute, namely by letters patent.

There is nothing in the record to indicate that at any time prior to the year 1903, when the Order-in-Council directed the District Registrar to issue certificates of title for the Manitoba and North Western Railway lands in the name of the Crown, any Provincial Crown lands were held in this manner. While these lands had been thus brought under the Act and certificates of title issued, the Legislature did not amend The Provincial Lands Act and the prescribed mode of conveyance continued to be by means of letters patent. In the case of the land conveyed to Noble, however, since a certificate of title in the name of the Crown had issued it was apparently considered necessary to execute the statutory form of transfer. I assume that the Lieutenant-Governor in Council in authorizing its execution did so under what were considered the powers given by s. 7.

In the revision of 1913 an amendment to The Real Property Act (R.S.M. 1913, c. 171, s. 30) provided that all lands in the territory added to the Province by The Manitoba Boundaries Extension Act, 1912 should be subject to the provisions of the Act and that, thereafter, no instrument affecting any of such lands should be registered under the old system. By that Act the boundaries of the Province had been greatly extended to the north and east and the provision that not only the lands privately owned in the added territory but those of the Provincial Crown should be subject to the Act was a departure from the policy declared by the Provincial Lands Act, 1887. It is to be noted that in this added territory the right to all minerals was reserved to the Crown in the right of the Dominion.

The Provincial Lands Act was reenacted as c. 155 in the 1913 revision. Section 25 of the Act was in the terms of

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s. 21 of the Act of 1887. While various changes were made, those sections dealing with the manner in which title should be given to purchasers from the Crown remained unchanged. The lands which had come to the Province from the land grant to the Manitoba and North Western Railway Company were at this time subject to the provisions of The Real Property Act pursuant to the direction contained in the Order-in-Council of 1903, and presumably certificates of title had been issued to the. Crown in the right of the Province for all of these lands, as had been done in the case of the lands sold to Noble. As to the lands added to the Province in 1912, no question of the application of s. 25 could arise since the minerals in them remained the property of His Majesty in the right of Canada. In these circumstances and for the same reasons which lead me to conclude that the expression “grant” in s. 21 of the Act of 1887 referred to conveyances by letters patent, I am of the opinion that the same meaning should be assigned to it in the Act of 1913.

I have no doubt that the fact is that the effect of the action of the Government in directing that the Manitoba and North Western Railway lands be brought under the Act and certificates of title issued, without making any change in the language of s. 21 of the Act of 1887 and of the relevant sections of The Real Property Act, was simply overlooked. In so far as the Provincial Lands Act is concerned, the oversight was corrected when that Act was repealed and reenacted by c. 32 of the Statutes of 1930 which, by s. 9, provided that there was reserved to the Crown out of every disposition of Provincial lands under the Act all mines and minerals. This was, however, too late to affect the issues in the present matter.

The transfer given by the Crown pursuant to the Order-in-Council of November 10, 1914, transferred “all our estate and interest in the said land.” Section 88 of The Real Property Act provided that every transfer should, when registered, operate as an absolute transfer of all such rights as the transferor had therein at the time of its execution, unless a contrary intention be expressed in such transfer or instrument. No such contrary intention was expressed and, accordingly, the entire interest of the Crown in the land and all mines, minerals and quarries became vested in the

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transferee upon registration. The certificate of title issued to Noble on July 25, 1919, declared him to be seized of an estate in fee simple in possession in the lands in question, subject only to the reservations to which all certificates of title were subject by implication by reason of the provisions of s. 78 of the Act of 1913. As in the case of the Act of 1885, the only reservation which affects this matter was expressed as:—

any subsisting reservation contained in the original grant of the land from the Crown.

If it be assumed for the purpose of argument that the transfer from the Crown to Noble was “the original grant of the land from the Crown” since no patent had ever issued in respect of the land, there was no reservation in it.

Hiebert’s title was not obtained until 1948. The sections of The Real Property Act of 1940 which affect the matter do not differ from those in the Act of 1913 which are quoted at length in the judgment of Adamson J.A. and need not be repeated. Whether or not the Crown might have impeached the title of Noble, so long as these lands were registered in his name by virtue of the fact that he acquired the lands as the assignee of Morgan and the documents make it clear that it was not intended that the sale of the land to the latter should include the minerals, this cannot possibly affect the position of Hiebert. The land had been transferred many times under the provisions of the Act and that Hiebert had purchased them in good faith and for value is common ground. His title to the land could be impeached, if at all, only upon the ground asserted by the appellant, and that claim for the reasons I have stated is, in my opinion, without foundation.

I am further of the opinion that, even if it were to be assumed that the contention of the appellant that the grant from the Crown referred to in s. 21 should be construed as including transfers of land under the provisions of The Real Property Act, this appeal should fail.

If it was intended that such transfers were to be included, it must then have been contemplated that the Crown in the right of the Province, while still retaining ownership of Provincial lands, would bring them under the new system and that certificates of title would be issued in respect of them. This, in turn, would mean that when such lands

[Page 337]

were alienated by the Crown, the form prescribed by The Real Property Act would be employed to effect the transfer. To do this involved the legal consequences resulting from the provisions of The Real Property Act. In my opinion, the combined effect of the definition of “land” in s-s. 1 of s. 3 and of s. 22 of the Act of 1885 was that the expression “land” in any such transfer includes mines and minerals unless, in the words of s. 22, “a contrary intention be expressed in such conveyance.” The definition and s. 22 appeared unchanged in meaning as subsection (a) of s. 2 and s. 88 in the revision of 1913. In my opinion, when the word “land” was employed in the transfer to Noble, it was as if the expression as defined in the interpretation section was written out in full. In this respect, I think the legal effect of employing the defined word does not differ from the use of the short forms prescribed by the Short Forms Act (c. 8, R.S.M. 1913). Unless the provisions of s. 88 are to be ignored, any exception to be effective must have been expressed in the transfer and there was none such in the transfer to Noble. I am, therefore, of opinion that the mines and minerals in this land were “expressly conveyed in such grant”, within the meaning of s. 25 of the Provincial Lands Act of 1913, if the transfer was a grant.

If this were not the legal effect of these provisions of The Real Property Act, there would be repugnancy between such provisions and s. 25. As to the legislation of 1885 and 1887, The Real Property Act provided that “all such right and title as the grantor has therein at the time of its execution” should pass unless it was excepted in the transfer, while the Statute of 1887 declared that minerals should not pass unless “expressly conveyed in such grant.” It is not suggested on behalf of the appellant that, in view of this obvious repugnancy, since the Provincial Lands Act was passed two years after The Real Property Act these sections of the latter Act were impliedly repealed, in so far as they might apply to transfers by the Crown. The fact that both Acts were re-enacted in the revision of 1913 in substantially the same form would be, in any event, a complete answer to any such argument. That this situation would result if full effect were to be given to the argument

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of the appellant gives further support to the contention of the respondent that the language of the section was intended to refer only to conveyances by letters patent.

I would dismiss this appeal with costs.

The judgment of Kerwin, Taschereau and Fauteux JJ. was delivered by:—

Kerwin J.:—On November 30, 1948, under the Manitoba Real Property Act, R.S.M. 1940, c. 178, the District Registrar for Portage La Prairie issued to the respondent, William Hiebert, a certificate in the usual form that he “is now seized of an estate in fee simple in possession subject to such encumbrances, liens and interests as are notified by memorandum underwritten (or endorsed hereon) in all that piece or parcel of land known and described as follows: “The South-Half of the South-East quarter of Section Thirteen in Township Sixteen and Range Ten West of the Principal Meridian in Manitoba”. The relevant part of the only memorandum underwritten or endorsed reads:—

The land mentioned in a certificate of title shall by implication and without special mention in the certificate, unless the contrary be expressly declared, be deemed to be subject to:

(a) Any subsisting reservation contained in the original grant of the land from the Crown.

That Act and its predecessors provided in Manitoba for what is generally known as the Torrens System for lands subject to it. The object of that system is well known and the provisions of the corresponding Alberta statute, The Land Titles Act, have been considered by this Court in C.P.R. v. Turta and Hager v. United Sheet Metal Co. Ltd., the judgments in which appeals are being handed down contemporaneously herewith. By s. 61 of the 1940 Manitoba Act, the certificate issued to Hiebert is, with certain exceptions irrelevant to the present appeal, conclusive evidence as against everyone, including His Majesty, that Hiebert is entitled to the lands described; and by s. 2(f) :—

(f) “land” means land,, messuages, tenements, hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges and easements, appertaining thereto, and all trees and timber thereon, and all mines, minerals and quarries, unless specially excepted;

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Unless, therefore, s. 25 of The Provincial Lands Act, R.S.M. 1913, c. 155, which will be discussed later, requires us to hold otherwise, Hiebert is entitled to the base metals in the lands described in his certificate. In addition to the authorities referred to in the various reasons for judgment in the two appeals mentioned, many others have been cited and considered in the present case but its disposition depends upon the proper construction and effect of the two statutes.

On August 2, 1950, Hiebert gave to one Ted Harris what is called a Petroleum and Natural Gas Lease covering his lands. On August 10, 1950, Harris assigned that lease to Superior Oil of California Ltd., which Company, on August 22, 1950, filed with the District Registrar of the Land Titles District of Portage La Prairie a caveat claiming an estate or interest in the lands. The Registrar recorded the caveat but refused to complete the registration thereof. Having been required in accordance with the statute so to do the District Registrar, with the approval of the Registrar General, on January 4, 1952, set forth as the reason for his refusal that the Company had no estate or interest in and to the lands. On an appeal by the Company and Hiebert to a judge of the King’s Bench of Manitoba, the District Registrar and the Attorney General of Manitoba being respondents, it was declared that Hiebert was the owner of the minerals, except gold and silver, within, upon and under the lands subject only to the lease of August 2, 1950, assigned to the Company, and the District Registrar was directed to complete the registration of the caveat. On appeal by the District Registrar and Attorney General, the Court of Appeal for Manitoba amended the judgment so as to declare that the Company was entitled to an interest in the petroleum and natural gas and related hydrocarbons except coal and valuable stone within, upon or under the lands, but otherwise affirmed the judgment below.

The District Registrar and Attorney General now appeal and their position is that the Company has not such an interest because of s. 25 of The Provincial Lands Act, R.S.M. 1913, c. 155, referred to above, which section reads as follows:—

25. It is hereby declared that no grant from the Crown of lands in freehold or for any less estate has operated or will operate as a conveyance of the gold or silver mines or any other mineral therein, unless the same are expressly conveyed in such grant.

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This section goes back through several consolidations of the statutes to s. 21 of the Manitoba Provincial Lands Act, 1887 and in each case the wording is the same.

The 1913 Act is referred to because it was while it was in force that a transfer of the lands under The Real Property Act by His Majesty the King in the right of Manitoba was executed dated November 10, 1914, and a certificate of title issued under date of July 25, 1919, to one Noble a predecessor in title of Hiebert. That is, by force of the provisions of the then current Real Property Act, Noble would have become the owner of the base minerals while, by s. 25 of The Provincial Lands Act, R.S.M. 1913, c. 155, if applicable, those minerals did not pass because they were not expressly conveyed.

The title to the lands was originally in the Crown in the right of Canada but was transferred to His Majesty in the right of the Province of Manitoba. On May 27, 1901, one Richard Morgan applied to the Department of Provincial Lands to purchase the lands on a form which stated:— “All valuable stone, coal or other minerals are reserved by the Province.” That statement of reservation in the application is mentioned merely as a matter of historical interest, because, in my view, it does not affect the determination of the appeal. At that time the land was not under The Real Property Act but later, pursuant to an order-in-council, a certificate of title, dated May 23, 1903, issued to His Majesty under that Act. Subsequently Morgan quit claimed his interest in the land to Noble, and upon that being shown to the satisfaction of the Department, the transfer to Noble of November 10, 1914, was executed and the certificate of title of July 25, 1919, issued to him. Neither this nor any subsequent certificate of title contained any reservation of mines or minerals.

Several arguments were advanced on behalf of the respondents. First it was contended that in view of the provisions of s. 20 of the 1887 Act, s. 21 had reference only to lands in which it was known that mines or minerals existed, s. 20 (being the same in substance as s. 24 of R.S.M. 1913, c. 155) being in these words:—

20. Lands containing coal or other minerals shall not be subject to the provisions of this Act respecting sale, but shall be disposed of in such manner and on such terms and conditions as may, from time to time, be fixed by the Lieutenant-Governor in Council, by regulations to be made in that behalf.

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Presumably it was intended to deal administratively with known mineral lands in a manner different from lands that were thought to contain no minerals but that circumstance, in my opinion, cannot detract from the explicit wording of s. 21.

Next it was said that s. 21 has no application to transactions and certificates of title under The Real Property Act. In this connection it is to be noted that there was an earlier statute entitled “An Act Respecting the Acquisition and Sale or Disposal of the Public Lands of the Province”, being c. 12 of the statutes of 1883. This Act recited that the Government of Manitoba was entitled to have certain lands transferred to it by the Dominion Government under certain provisions as to drainage and that Manitoba held and might acquire other lands, some, or all, of which it might be necessary or advisable to sell. It then authorized the disposal of any such land, or any interest therein, by letters patent under the Great Seal of the Province duly authorized by the signature of the Lieutenant-Governor and the Secretary of the Province and in such form as should be approved by the Attorney General.

The Manitoba Provincial Lands Act, 1887 repealed the Act of 1883 but recited:—

Whereas it is expedient and necessary to make provision for the administration of the public lands now acquired or which may be hereafter acquired in any manner whatsoever by the Government of the Province of Manitoba, whether earned under the Statutes or Orders-in-Council of this Province, or of the Dominion of Canada relating to the draining of submerged or swamp lands, or the granting of swamp lands to this Province for public purposes, lands foreclosed under mortgages or acquired for arrears of. taxes and all lands that may be or become vested in Her Majesty for the use of this Province or in any way become the property of this Province.

The Legislature was thus indicating its intention to legislate with reference to “all lands that may be or become vested in Her Majesty for the use of this Province or in any way become the property of this Province.” At that time there were two land registration systems in force in the Province—one the old system under The Registry Act and the other, the new, or Torrens System, which first came into force as of July 1, 1885, by virtue of The Real Property Act of 1885, c. 28. The existence of the two systems was, of course, well known and in fact, in ss. 32 and 33 of The

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Provincial Lands Act, 1887 reference is made to the Registrar General (an official under The Real Property Act) as well as to the registrar of every registration division (an official under The Registry Act). The lands under both systems were, therefore, in the contemplation of the Legislature as was also the fact that certain of such lands had been Dominion swamp lands or Dominion lands to which a railway company was entitled as a subsidy and the right to which was transferred by the railway company to the Province.

The third contention was that there was no “grant” from the Crown to which on its proper construction s. 21 could apply. The word “grant” is not defined in the Act and in view of the expressed intention of the Legislature to deal with all lands, there is no difficulty, in my opinion, in holding that it includes a transfer from the Crown of lands the title to which it had in its own name by virtue of a certificate of title issued under The Real Property Act, and the certificate issued to the transferee. Section 21 is not merely a direction to an official as to what should be included in a grant (or transfer or certificate) of Crown lands but it is a specific declaration that gold or silver mines, or any minerals in the lands are not included unless expressly mentioned. That declaration has the same effect as if base minerals were expressly excepted in the transfer and as if the certificate of title issued to Noble bore an endorsement that it was subject to the provisions of the section. The fact that Hiebert subsequently secured a certificate of title under The Real Property Act does not advance his position.

The preceding paragraph incorporates my conclusion on the last point to be considered. In that connection it is reasonable to infer that the Legislature dealing with provincial public lands in 1887 had in mind the provisions of s. 43 of the Dominion Lands Act, 1883:—

43. It is hereby declared that no grant from the Crown, of lands in freehold or for any less estate, has operated or will operate as a conveyance of the gold or silver mines therein, unless the same are expressly conveyed in such grant.

The Manitoba Legislature did not copy this enactment verbatim but inserted the words “or any other mineral” between “mines” and “therein”. Just as the word “therein” in s. 43 of the Dominion Act refers to lands so “therein” in

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s. 21 of the Manitoba statute does not refer to gold or silver mines but to lands. While this opinion has been arrived at without reference to what is now stated, it may be noted that when s. 21 was first enacted, there was a comma after the word “mineral” as well as one after the word “therein” although in subsequent revisions and consolidations the comma after “mineral” disappeared.

The appeal should be allowed, the judgment below set aside, and the refusal of the District Registrar to complete the registration of the caveat restored. There should be no costs to any party in this Court.

Rand J.:—The issue in this appeal is whether a conveyance of land by the Province of Manitoba by means of a transfer under The Real Property Act carried with it petroleum rights to subsequent purchasers for value to whom certificates of title were issued; and to appreciate the circumstances in which the question arises it will be necessary to refer briefly to the early land registration law of Manitoba.

Prior to 1885 the system in effect was similar in its general provisions to those of the eastern provinces under which, through public registers, notice was given to all persons of deeds or other conveyances of estates or interests in lands lying within the registry district.

In 1885 The Real Property Act was passed setting up a scheme of titles which, in its general conceptions, is known as the Torrens system, and under which, by means of what is called a certificate of title, the ownership of any interest-in land is, by the force of the statute, declared to be as therein set forth. In other words, and subject to certain qualifications, the certificate constitutes the conclusive evidence of the title declared by it.

By the terms of the legislation creating the province of Manitoba, all public lands were retained by Canada, but in 1885 an agreement was come to by which the federal government agreed to convey to the province what were known as swamp lands. This was followed in 1887 by the enactment of The Provincial Lands Act, c. 21 of the statutes of that year, which, superseding c. 12 of the statutes of 1883, created a department for the management and sale of pro-

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vincial lands, to be presided over by a member of ‘the executive council known as the Provincial Lands Commissioner. The recital to the Act declared it to be.

expedient and necessary to make provision for the administration of the public lands now acquired or which may be hereafter acquired in any manner whatsoever by the government of the Province of Manitoba, whether earned under the Statutes or Orders-in-Council of this Province, or of the Dominion of Canada relating to the draining of submerged or swamp lands, or the granting of swamp lands to this Province for public purposes, lands foreclosed under mortgages or acquired for arrears of taxes and all lands that may be or become vested in Her Majesty for the use of this Province or in any way become the property of this Province.

Special provisions were made relating to mining lands. By s. 20 lands containing minerals were not to be subject to the provisions of the Act respecting sale, but should be disposed of in such manner and on such terms and conditions as might, from time to time, be fixed by regulations made under Order in Council. S. 21 declared that

no grant from the Crown of lands in freehold or for any less estate, has operated or will operate as a conveyance of the gold or silver mines or any other mineral, therein, unless the same are expressly conveyed in such grant.

This later became s. 25, R.S.M. 1913, c. 155.

Under date of May 31, 1901, railway subsidy lands to the extent of 185,000 acres were transferred by Order in Council of the Dominion government to the province, as nominee of the railway company entitled to them. On May 13, 1903, by a provincial order in council made under s. 29 of c. 43 of the statutes, 1902, The Real Property Act of that year, the lands were brought under that Act and certificates of title were issued to the Crown accordingly. As of May 27, 1901 the land here in question, which was included within those so dealt with, became the subject of an application to purchase, one of the terms of which was that the minerals would be reserved to the province. The purchase money was ultimately paid in full and the interest of the purchaser transferred to one Noble to whom in 1914, as assignee, a transfer of all the estate and interest of the Crown in the land, under The Real Property Act, was executed. This was registered in 1919 and a new certificate of title issued. There is no specific mention of minerals either in the transfer or the certificate, but the latter was made subject to all of the “reservations contained in the original grant from the Crown.” On subsequent conveyances and

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a lease of petroleum rights the respondents rest their claim. The precise questions are, then, whether the transfer of 1914 constitutes a grant of the land within the language of s. 21 of The Provincial Lands Act, and whether the minerals are, by force of that section, to be deemed to have been reserved from that instrument and all succeeding instruments.

Freedman J. at trial held that, as against the original transferee Noble, the minerals, by the effect of the section, did not pass, but that the purchasers from Noble, through force of the provisions of The Real Property Act, were entitled to the fee simple interest in the land declared in the certificate of title issued in 1919. On appeal this conclusion was unanimously affirmed, although the reasoning of the members of the court was not entirely the same nor, as between themselves, was it identical.

That the conveyance by way of transfer is a grant within the meaning of s. 21 does not, in my opinion, admit of any substantial doubt. The technical meaning of the word “grant”, so far as it relates to the conveyance of land, is an instrument under seal expressed in language appropriate at common law to the creation or transference of estates and interests in land. Words of limitation, for instance, were necessary to an estate in fee ; but, apart from the language, the essential formality was the seal. Such grants were originally confined to incorporeal interests and those in expectancy; conveyance of the present freehold required livery of seisin.

The argument of the respondent that the word “grant” in s. 21 does not include a transfer assumes that there is something of a special nature in what is known as a “patent”. This is a term signifying what is more properly denominated “letters patent”. These describe an instrument which, bearing the imprint of the Great Seal, and in language apt to its purpose, is open for all to see as contradistinguished from a letter-claus, a close letter, so-called because it is commonly sealed up and made private with the royal signet or privy seal: Wharton’s Law-Lexicon, 10th Ed., pp. 452-3.

The transfer of 1914 was executed under the Great Seal of the province and attested by the hand of both the Lieutenant-Governor and the Deputy Commissioner of

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Lands. It is adequate to the purposes of a conveyance in fee under The Real Property Act by language which supersedes that of the common law, and at the same time it satisfies all the requirements of letters patent.

On a familiar principle, the Crown could, apart from the section enacted in 1902, have availed itself of the provisions -of The Real Property Act to bring Crown lands under the new system. It seems, therefore, clear that the objects of The Provincial Lands Act, providing as it does for the entire administration of Crown lands and contemplating the bringing of Crown lands under the general statute, would be defeated were it to be limited in its application to lands held and disposed of by the Crown as at common law. The administration of so important a natural resource looked obviously to the entire land law as available for its functioning and such a restriction upon its scope as is now suggested must be rejected.

I can see no ground for any doubt of the effect of s. 21: it withdraws all minerals from the operation of grants in any form unless they are mentioned by express language; its purpose was, obviously, to prevent the possibility of their conveyance when that was not specifically intended, to conclude, in fact, any question of the nature of that which has arisen in this case. It has the same effect as if its language were printed on every transfer executed by the Crown. For the purposes of ownership by the Crown, the minerals were severed from lands as fully as the precious metals are at common law.

In the Court of Appeal it is suggested that The Real Property Act is a paramount statute and that its provisions, being inconsistent with s. 21, override it. I confess to a difficulty in appreciating the soundness of that suggestion. The statute of 1887 covers a special interest of the province and on ordinary principles of interpretation it would prevail over any general enactment. It is conceded, as I understood it, that s. 21 would apply to a grant of provincial lands not then governed by The Real Property Act. In that case, and whether the land is thereupon automatically or voluntarily brought under that Act, if the result is as claimed, the section is completely nullified except as against the first grantee. Such a result would be unique in the history of legislation. The two statutes must obviously

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be read together, and so read it is seen to be the law of the province that from every grant of Crown lands the mineral rights are reserved unless in the instrument they are expressly declared to be conveyed. How it can be taken that such an unequivocal declaration of the legislature can be written out of provincial grants and off the statute book by interpreting a general law which speaks of the “reservations contained in the original grant from the Crown” as meaning, in effect, “made by way only of express stipulation in the grant”, is a proposition for which, to say the least, no authority has as yet been cited.

Since, then, the certificate of title on its face contains a reference to the reservation in the original grant, in this respect simply incorporating the provision of The Real Property Act itself, and since through the operation of s. 21 the minerals were reserved from the transfer of 1914 as the original grant, the title to these interests did not pass from the Crown. All succeeding certificates were, likewise, subject to that reservation.

I would therefore allow the appeal and direct an order dismissing the appeal of the respondents from the refusal of the District Registrar to complete the registration of caveat recorded on the 22nd of August, 1950, as No. 27348. There will be no costs to any party in this Court.

Kellock J.:—The lands in question were vested in the province by order of the Governor-General in Council of the 31st of May, 1901. On the 27th of May following, one Morgan made application to purchase, by the terms of which “all valuable stone, coal or other minerals” were reserved by the province. On May 13, 1903, an order of the Lieutenant-Governor in Council was passed directing that a certificate of title should issue to His Majesty in the right of the province, which was accordingly issued on May 23 following.

On November 12, 1914, the Crown executed a transfer of the lands under The Real Property Act in favour of one Noble, who had, on the previous September 26, obtained a quit claim of Morgan’s rights. The transfer purported to convey “all our estate and interest in the said land”. On July 25, 1919, Noble, having completed his payments,

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obtained a certificate of title to the lands for “an estate in fee simple in possession”. By endorsement the certificate was made subject, inter alia, to

1. Any subsisting reservation contained in the original grant of this land from the Crown.

Ultimately the lands became vested in the respondent Hiebert, to whom was issued a certificate of title in the same form as that to Noble. The respondent company claims under Hiebert.

The contention of the respondents, which prevailed in the courts below, is that they are entitled as against the appellant to the petroleum and natural gas in or under the land in question. The appellant submits, on the contrary, that by reason of s. 21 of the Provincial Lands Act, 50 Vic., c. 21, title to the minerals in or under the lands, did not at any time pass from the Crown. That section is as follows :

It is hereby declared that no grant from the Crown of lands in freehold or for any less estate has operated or will operate as a conveyance of the gold or silver mines or any other mineral therein, unless the same are expressly conveyed in such grant.

The respondents argue in the first place that the transfer to Noble was not a “grant” from the Crown within the meaning of the section. It is said that the Provincial Lands Act had in view the old registry system only, and not the land titles system provided for by The Real Property Act, and that “grant” in s. 21 means letters patent.

The Real Property Act had been passed two years prior to the Provincial Lands Act as c. 28 of the Statutes of 1885 and there is express reference in ss. 32 and 33 of the later statute to the Registrar-General under The Real Property Act, which is of itself sufficient to render it impossible to say that the later statute was passed having in view only the old registration system.

I am quite unable to accept the argument that the word “grant” in s. 21 of the Provincial Lands Act 1887 has the limited meaning for which the respondents contend. In my view the whole purport of that Act, including its recital, is opposed to any such construction. It may be added that the statute employs the word “patent”, e.g., in ss, 26 and 27. It cannot therefore be said that when the Legislature uses the one word it is necessarily synonymous with the other.

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It is next said for the respondents that the word “therein” in s. 21 of The Provincial Lands Act refers back to the word “mines” and not to the word “lands”. Having regard to the section immediately preceding, it is impossible, in my view, with respect, to agree with this contention or to apply the ejusdem generis rule to the words “or any other mineral”. It is provided by s. 20 that “lands containing coal or other minerals” shall not be subject to sale under the statute but shall be disposed of under regulations to be made by the Lieutenant-Governor in Council. It is plain, I think, that the Legislature did not have in contemplation in either section anything less than all minerals.

The respondents further contend that by reason of the statutory definition of “land” in s. 2(a) of The Real Property Act (R.S.M. 1913, c. 171)’ and s. 79 of that statute, every transferee from Noble obtaining a certificate of title obtained title to the “land” therein described, including the mineral. By the terms of s. 79, however, as well as by s. 78, to which the former refers, the respondents are forced back to a consideration of the original grant from the Crown, which instrument, in its interpretation, is subject to the provisions of s. 21 of the Provincial Lands Act. In the absence of express words conveying the minerals, the language of the grant is, by this section, required to be read as reserving them. There is accordingly a “subsisting reservation contained in the original grant” within the meaning of s. 78(a) of The Real Property Act.

I would therefore allow the appeal. There should be no costs in this court.

Estey J. (dissenting):—It is the. contention of the appellant that petroleum and natural gas, admittedly base minerals, have been at all times material hereto the property of the Crown by virtue of s. 25 of The Provincial Lands Act (R.S.M. 1913, c. 155), while the respondents maintain that, as there was no express reservation in the original transfer from the Crown, these passed to the transferee and were not reserved by s. 25. Section 25 reads as follows:

25. It is hereby declared that no grant from the Crown of lands in freehold or for any less estate has operated or will operate as a conveyance of the gold or silver mines or any other mineral therein, unless the same are expressly conveyed in such grant.

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This section was enacted as s. 21 of the first Manitoba Provincial Lands Act, 1887 (S. of M. 1887, 50 Vic., c. 21).

At all times material hereto the relevant statutory provisions are contained in the Revised Statutes of Manitoba, 1913, and, unless otherwise specially mentioned, the citations of statutes are to that revision.

The land here in question (E½ of 13-16-10 W.P.M.) was, on July 25, 1919, transferred, without any express reservation as to minerals, from His Majesty in the right of the Province of Manitoba to William P. G. Noble. Counsel for the appellant, however, contends that under the foregoing s. 25 petroleum and natural gas remained the property of His Majesty and subsequent transferees have taken subject thereto. Therefore, when the present registered owner, William Hiebert, one of the respondents, under date of August 2, 1950, executed a lease of the petroleum and natural gas in the said land to Ted Harris he purported to lease that which he did not possess. It follows, under this submission, that neither Ted Harris nor his assignee, the respondent Canadian Superior Oil of California, Ltd. (hereinafter referred to as the respondent oil company) obtained any rights to the said petroleum and natural gas and when the respondent oil company presented a caveat to the Registrar of the Land Titles District of Portage la Prairie based upon the said lease and assignment thereof registration was properly refused.

The respondents’ contention is that the word “grant” in s. 25 does not apply to transfers under The Real Property Act and, in any event, that s. 25, when properly construed, applies only to gold and silver mines. Therefore, the Crown, under the transfer, without any express reservations, conveyed to Noble the mines and minerals other than gold and silver mines.

An appeal from the Registrar’s refusal was allowed by Mr. Justice Freedman, who directed registration of the caveat. In the Court of Appeal the order for registration was varied to read:

It is declared that the plaintiff, Canadian Superior Oil of California, Ltd., is entitled to an interest in the petroleum, natural gas and related hydrocarbons, except coal and valuable stone within, upon or under the Land described in Certificate of Title No. 69899, as set out in the lease from the plaintiff, Hiebert to Ted Harris, dated the 2nd day of August 1950, which said lease was assigned by the said Harris to the plaintiff Canadian Superior Oil of California, Ltd.

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The said E½ of 13 was included in a block of land vested in His Majesty, the administration of which was transferred to the Province of Manitoba by a Dominion Order-in-Council dated May 31, 1901. A provincial Order-in-Council dated May 23, 1903, placed this land under The Real Property Act and as of that date a certificate of title covering the said E½ of 13 was issued under that statute in the name of His Majesty The King in the right of the Province of Manitoba.

The Real Property Act of 1885 introduced into the province the Torrens system of land registration. Not all of the land was brought under that system and thereafter Manitoba had two systems of land registration, the one under The Lands Registration Act of Manitoba (Cons. S.M. 1880, c. 60) and the other under The Real Property Act of 1885, which are, for convenience, referred to as the old and new system respectively.

That The Real Property Act of 1885 (S. of M. 1885, c. 28) was enacted in respect of registration of land is made clear by its preamble, which reads:

Whereas, it is expedient to give certainty to the title to estates in land in the Province of Manitoba, and to facilitate the proof thereof, and also to render dealings with land more simple and less expensive;

Two years after the enactment of The Real Property Act the Legislature enacted the Manitoba Provincial Lands Act, 1887 (S. of M. 1887, c. 21), including s. 25 (then s. 21). The intent and purpose of the Legislature in enacting the latter is evidenced by its preamble: (See ante p. 327).

It will, therefore, be observed that the Legislature in 1885 set up a new land registration system and in 1887 provided for the administration of the public lands which had been, or might thereafter be acquired by the province. The Provincial Lands Act, 1887 did not, nor did it purport to alter or amend any statutory provision relative to registration under either the old or the new system. These statutes, The Real Property Act and The Provincial Lands Act, were enacted for distinct and separate purposes and, like other statutory enactments of the same Legislature, should be construed, so far as the language thereof may reasonably permit, to avoid contradiction or repugnancy.

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Then, referring particularly to the land here in. question, a provincial Order-in-Council of November 10, 1914, directed that a transfer be “executed on behalf of His Majesty, the King, in the right of the Province of Manitoba, by the Honourable the Provincial Lands Commissioner, to … William P. G. Noble.” This Order-in-Council made no reservation of “mines, minerals and quarries.” The transfer made no reservation, was subsequently registered and, under date of July 25, 1919, a duplicate certificate of title was issued to Noble under The Real Property Act without any reservation as to “mines, minerals and quarries.” At that time the expression “land” was defined in The Real Property Act as follows:

2. In this Act, and in all instruments purporting to be made, executed or registered thereunder, unless the context otherwise requires,—

(a) the expression “land” means and includes land … together with … all mines, minerals and quarries, unless any such are specially excepted.

If, therefore, this transfer be construed under the provisions of The Real Property Act, there would seem to be no question but that the mines and minerals passed to Noble.

The appellant, however, submits that s. 25 constitutes a statutory exception applicable to all Crown lands and, therefore, to the land here in question, though it was placed under The Real Property Act. That the Legislature intended the provisions of The Provincial Lands Act should apply to the administration of all Crown lands is apparent from the recital, which states that it is applicable to “all lands that may be or become vested in His Majesty for the use of this Province or in any way become the property of this Province.” This intention finds further support in the general nature of the operative provisions. It would, therefore, appear that The Provincial Lands Act applies to all the land the property of His Majesty in the right of Manitoba, irrespective of which system it may be registered under.

The land here in question was registered under The Real Property Act before the transfer from His Majesty to Noble was given. When so registered, that statute contemplated the land would be conveyed by a transfer (s. 86) rather than by grant; Moreover, as already stated, an Order-in-Oouncil directed the Provincial Lands Commisisoner, who was in charge of the administration of The Provincial Lands

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Act, to issue, not a grant, but a transfer of the land to Noble. It is not suggested this method of conveyance was an exception and it may be assumed that in respect to Crown lands, registered as this was under The Real Property Act, conveyances were normally made by transfer. That was the form of conveyance contemplated by the Legislature under that Act and the Crown complied therewith, the advisers evidently being of the opinion that the word “grant” in s. 25 included a transfer. In fact, that would appear to be the reasonable conclusion. The Crown, at least in this instance and, it may be assumed, generally, administering its land under The Provincial Lands Act, made its conveyance thereof according to whether it was under The Lands Registration Act or The Real Property Act and, if under the latter, the conveyance was by transfer. In these circumstances the contention that a conveyance by way of grant would not include a transfer under The Real Property Act cannot be accepted. While the phrase “grant from the Crown” may be generally taken to mean Letters Patent from the Crown (North Cypress v. C.P.R. 5; Rex v. C.P.R. 6, it does not follow that the word “grant” has any exact or well defined meaning in law. When, as here, the title is in His Majesty under a statute which contemplates that a conveyance should be made by transfer, it must follow that the term “grant” in legislation providing for the administration of such land must be read to include the word “transfer,” as that word is used in The Real Property Act. In this connection it may be observed that the word “grant” is not defined in The Provincial Lands Act, but is defined in The Real Property Act, s. 2(q). This definition as phrased is not exhaustive, but does contemplate a conveyance from the Crown in the right of the province and does not preclude the inclusion of a transfer made for that purpose.

Section 29 of The Real Property Act of 1885 contemplated that whenever the Crown granted land it would be by way of a patent; that a grantee desiring his land to be placed under The Real Property Act would deposit his patent with the Registrar under the latter Act, who would then issue to the grantee a certificate of title. That was not done in this case and no explanation appears in the

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record as to why that course was not followed, rather than to have the block of land placed by Order-in-Council under The Real Property Act. In these circumstances the conveyance from the Crown was the transfer to Noble and must be accepted as “the original grant of the land from the Crown” within the meaning of s. 78(a) of The Real Property Act.

In considering the respective contentions as to the construction of s. 25, it is important to observe that in both s. 3(1) of The Real Property Act of 1885 and s. 1 of the Manitoba Provincial Lands Act, 1887 “land” is defined to “extend to and include … mines, minerals and quarries appertaining thereto … unless … specially excepted.” Both of these definitions are, in all relevant respects, carried forward in the respective statutes in the revision of 1913. Under these definitions of “land” a conveyance such as that to Noble would include the mines and minerals because they were not specially excepted.

Section 25 (then s. 21) as enacted in 1887 was, except for the insertion of the words “or any other mineral,” identical with s. 43 of the Dominion Lands Act as enacted in 1883 (S. of C. 1883, 46 Vic., c. 17). S. 43 was enacted in 1883 to clarify the provisions of an earlier s. 36 (S. of C. 1872, 35 Vic., c. 23) and to make it clear that gold or silver mines passed from the Crown to a grantee only when expressly conveyed. In Reference re Precious Metals 7. At that time, and when the abovementioned s. 25 was enacted in 1887, grants from Her Majesty in the right of the Dominion of Canada conveyed the base metals, unless they were expressly reserved.

The practice of the Government of Canada in the disposition of Crown lands would be well known to the members of the Legislature when enacting s. 25 (then s. 21) in 1887. It would also be present to their minds that two years earlier the Legislature had introduced into Manitoba the Torrens system “to give certainty to the title to estates in land” and “to render dealings with land more simple and less expensive”; that in doing so it provided in s. 62 of The Real Property Act of 1885 (s. 79 in the 1913 revision) that “every certificate of title granted under this Act … shall … so long as the same remains in force and uncancelled

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under this Act, be conclusive evidence at law and in equity as against Her Majesty and all persons whomsoever” and further by s. 61 (s. 78 in the 1913 revision) that the land mentioned in “any ‘certificate of title granted under this Act, shall, by implication, and without any special mention in the certificate of title, unless the contrary be expressly declared, be deemed to be subject to:— (a) any subsisting reservations contained in the original grant of said land from the Crown.” In view of the established practice and the purpose of the Torrens system it would seem that, if the Legislature had intended to effect such a change as the appellant here contends for in respect to the conveyance of mines and minerals by the Crown and to create an exception to its statutory definition of “land” as contained in The Real Property Act, it would have used language more clearly expressive of such an intention and would probably have amended s. 61 (s. 78(a) in the 1913 revision), in order that one searching the title might be directed not only to the original grant but to the statutory exception, if such were intended.

In this connection it is significant that in s. 25 no mention is made of mines or minerals in relation to base metals, but only the words “or any other mineral” are inserted.

Moreover, I am in agreement with Mr. Justice Coyne that the foregoing is in accord with the grammatical construction of the section. It must be assumed that the words “or any other mineral” were carefully inserted and due regard must be had to their meaning and effect in the section when read as a whole. They are preceded by the words “gold and silver mines” and followed by the word “therein.” The draftsman would realize that, while the word “therein” referred to “land” before the insertion of these words, that thereafter it would be understood to refer to “mines.” As stated by Lord Wensleydale in Grey v. Pearson 8 :

… in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument …

Not only is there no absurdity or repugnance involved in this construction, but it avoids any conflict between the definition of “land” in s. 2(b) and the provisions of s. 25.

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Moreover, in so far as punctuation may be relevant it may be noted that as enacted in 1887 a comma was placed both before and after the word “therein.” In 1891 the first comma was deleted. This would but emphasize that the word “therein”, after the insertion of the words “or any other mineral”, was intended to refer to “mines”.

While the Legislature had in 1883 enacted a lands act relative to the disposition of Crown lands, this enactment of 1887 was the result of a more thorough and exhaustive study of the problems associated therewith and no doubt the attention of the Legislature would have been directed to the possible presence of other minerals in gold and silver mines. Their presence in such mines had caused considerable difficulty after The Mines Case in 1568, 1 Plow. 310, and which had been the subject of legislation thereafter, and inserted these words with the intent of making it clear that any other mineral found in gold and silver mines would be treated in any conveyance as part thereof. That such was the intention of the Legislature finds support in the conflicts already discussed, the absence of any reference to mines and the practice of the Government of Canada.

It, therefore, follows that mines and minerals, apart from gold and silver, were transferred to Noble and had passed by successive transfers to William Hiebert, who gave a valid lease to Ted Harris, which the latter assigned to the respondent oil company.

The foregoing is not affected by the fact that the agreement between the Crown and Morgan, who originally purchased the land here in question, contained a provision that “all valuable stone, coal or other minerals are reserved by the Province.” In 1914 Morgan assigned his agreement to Noble. The foregoing provision does not appear to have been again mentioned and is not included in the Order in Council authorizing the transfer to Noble, the transfer or the certificate of title issued to Noble. In other words, the last three documents were executed without any reservation of mines and minerals. It may well be that while the title remained with Noble rectification may have been possible. Noble, however, transferred the land to another in 1921 and, after further transfers, it became the property of the present registered owner, William Hiebert, to whom a certificate of title was issued. The latter, under s. 79 of The Real Property Act, holds a certificate of title as “conclusive

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evidence at law and in equity as against His Majesty and all persons whomsoever that the person named in such certificate is entitled to the land described therein for the estate or interest therein specified.” There are certain exceptions to this general statement in s. 79, but it is not suggested that William Hiebert holds his title subject to any of these.

The appeal should be dismissed and the judgment of the Court of Appeal should be affirmed.

Cartwright J.:—I agree with the reasons of my brothers Kerwin, Rand and Kellock. I wish, however, to add some observations as to three of the many points which were argued before us. I shall refer to the relevant sections of The Provincial Lands Act and of The Real Property Act as they appear in the Revised Statutes of Manitoba, 1913.

The first argument with which I wish to deal may be summarized as follows. It is said for the respondents that, assuming that s. 25 of The Provincial Lands Act applied to the transfer from the Crown to Noble, such transfer, by the combined effect of ss. 88 and 2(a) of The Real Property Act, did expressly convey to Noble all minerals in the lands described in the transfer. It is said, (i) that the transfer should be read as if instead of the word “land” the words of the definition in section 2(a) were written out in full so that the operative words would read:—

… do hereby … transfer to the said William P. G. Noble all our estate and interest in the said land, messuages, tenements, hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein may be and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges and easements, appertaining thereto, and all trees and timber thereon, and all mines, minerals, and quarries, unless any such are specially excepted;

(ii) that, by force of s. 88, this transfer when registered operated as an absolute transfer of all such right and title as the transferor (that is His Majesty in the right of Manitoba) had in the land therein described at the time of its execution unless a contrary intention be expressed in such transfer; (iii) that in such transfer nothing was specially excepted and no contrary intention was expressed; (iv) that the transferor had at the time of the execution of the transfer the sole right and title to the land and the minerals; and therefore (v) the minerals were expressly conveyed in the transfer within the meaning of s. 25 of The Provincial Lands Act.

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There appear to me to be several obstacles in the way of this argument.

Dealing first with the effect of s. 2(a), it will be observed that by its terms the definition of “land” is carried into the act and into instruments purporting to be made under the act subject always to the proviso “unless the context otherwise requires”. The Real Property Act and The Provincial Lands Act are in pari materia and for purposes of construction must be read together. When the instrument to which . it is sought to apply the words in s. 2(a) of The Real Property Act is a grant from the Crown of lands in freehold which does not expressly convey the minerals therein then the context does otherwise require. Even if this were not so and the words of the definition should be taken as being written into. the transfer the respondents would then be confronted with the concluding words of the definition, “unless any such are specially excepted”, and, the transfer being a grant from the Crown which does not expressly convey the minerals, the minerals are, by force of s. 25 of The Provincial Lands Act, “specially excepted”.

Dealing next with the effect of s. 88, it must first be born in mind that, as is pointed out by my brother Rand, the effect of s. 25 of The Provincial Lands Act is that for the purposes of ownership by the Crown minerals are severed from lands as fully as the precious metals are at common law and are withdrawn from the operation of grants from the Crown in any form unless they are mentioned in express language. Section 88 deals not with the description of the land but rather with the nature of the estate which a transfer under the act operates to convey and dispenses with the necessity of words of limitation, which would have been required at common law, to effect a transfer of an estate in fee simple. Under the transfer from the Crown to Noble all the right and title of the Crown in the lands therein described passed to him, but the lands therein described were the lands without the minerals which were severed as above set out and formed no part of the subject matter of the transfer.

On this first point I am in agreement with Freedman “J., when he says:—

… I have reached the conclusion that Sec. 25 of The Provincial Lands Act was a declaratory enactment, creating a statutory reservation of mineral rights in favor of the Crown, and that such reservation would not

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be extinguished, as against a grantee from the Crown, except by an express conveyance of mineral rights eo nomine. I hold that when the Crown, using the form of transfer prescribed by The Real Property Act, purported to transfer “all our estate and interest in the said land,” it did not divest itself of mineral rights, because mineral rights were not expressly named or mentioned in the transfer. For the Crown to lose the mineral rights which were reserved to it by Sec. 25 of The Provincial Lands Act, the same would have to be “expressly conveyed in such grant”, otherwise the concluding words of Sec. 25 are without meaning. The transfer being silent on the subject of mineral rights, the statutory protection afforded by Sec. 25 of The Provincial Lands Act operated in favor of the Crown.

The second argument with which I wish to deal is one which found favour with Freedman J., that although the transfer to Noble did not transfer the minerals to him but left the title to them in the Crown he was able to give a purchaser in good faith and for value a title to the minerals. This argument is based primarily on s. 79 of The Real Property Act which, it is said, makes the certificates of title granted to Noble and to subsequent purchasers “conclusive evidence … as against Her Majejsty … that the person named in such certificate is entitled to the land described therein”. The difficulty in accepting this argument is that s. 79 expressly preserves the right of any person to shew that the land described in the certificate is subject to any of the exceptions or reservations mentioned in s. 78, the first of which is:—

(a) any subsisting reservation contained in the original grant from the Crown.

In my view the effect of these provisions is that a certificate of title issued under The Real Property Act assures to the holder thereof the title to the land therein described which was conveyed by the original grant thereof from the Crown and nothing more. Another way of expressing this is that the purchaser from a holder of a certificate of title who relies on such certificate is by the express terms of the certificate and of ss. 78 and 79 of The Real Property Act put on inquiry as to, and affected with notice of, the terms of the original Crown grant and obtains title to whatever was conveyed by such grant but not to anything withheld thereby. On looking at the transfer to Noble, which is in this case the original grant from the Crown, it at once appears that as it is silent as to minerals they were not conveyed. Indeed, insofar as this particular point in the argument is concerned, ex hypothesi the transfer to Noble

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did not convey the minerals. While the retaining of the title to the minerals by the Crown might be more accurately described as an exception than as a reservation I think that on a reading of both acts together it appears that the word “reservation” in ss. 78 and 79 of The Real Property Act is not used in a narrow technical sense but is wide enough to cover the retention of the title to the minerals by the Crown. Such reservation is clearly a subsisting one. It is also, in my opinion, “contained in” the original grant from the Crown, as the effect of that grant is to convey the lands without the minerals to Noble and so to retain the minerals in the Crown.

The third argument which I wish to mention is that the respondent’s case is assisted by the fact that when a certificate of title was issued to Noble the certificate of the Crown in regard to these lands was cancelled “in full”. This fact appears to me to be irrelevant. If the views which I have expressed above are correct Noble’s certificate did not, and the certificate now held by Hiebert does not, purport to state that the holder thereof is entitled to the minerals in the lands therein described. The cancellation of the Crown’s certificate “in full” was an error and can be corrected. This error does not assist the respondents because on their own documents of title they are unable to make out title to the minerals.

I wish to add one further observation of a more general nature. If it should appear that certain provisions of The Real Property Act cannot be reconciled with s. 25 of The Provincial Lands Act then, since the last mentioned section is a special provision clearly designed to prevent the possibility of the conveyance of minerals in a grant of lands from the Crown unless expressly conveyed eo nomine, it must prevail over the inconsistent provisions in The Real Property Act which deals generally with the effect of all transfers of land under that Act. Generalia specialibus non derogant.

I would dispose of the appeal as proposed by my brother Kerwin.

Appeal allowed. No costs.

Solicitors for the appellant: A. E. Hoskin and John Allen.

Solicitors for the respondents: Maclnnes, Burbidge, Hetherington, Allison, Campbell & Findlay.