Crow's Nest Pass Coal Co. (Ltd.) v. The Queen, [1961] SCR 750

Supreme Court of Canada

Crow's Nest Pass Coal Co. (Ltd.) v. The Queen, [1961] S.C.R. 750

Date: 1961-10-03

The Crow's Nest Pass Coal Company (Limited) (Suppliant) Appellant;

and

The Queen, The California Standard Company, Canadian Gulf Oil Company And The British American Oil Company Limited Respondents.

1961: April 26, 27, 28; May 1; 1961: October 3.

Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Mines and Minerals—Crown grant—Reservation of "minerals, precious or base (other than coal)"—Whether petroleum and natural gas included—British Columbia Southern Railway Aid Amendment Act, 1896 (B.C.), c. 4, s. 3—An Act to Extend the Rights of the Crown to Prospect for Minerals on Railway Lands to all Free Miners, 1899 (B.C.), c. 58, s. 1.

By a petition of right the suppliant company asked, inter alia, for a declaration that it was the owner of the petroleum and natural gas in and underlying certain lands granted by the Crown to the suppliant's predecessor in title, the British Columbia Southern Railway Company, and further asked, by an amendment made at the trial, for an order rectifying the reservation in respect to minerals by striking out the words "any minerals, precious or base (other than coal)" and substituting therefor the words "any minerals as defined in the

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Mineral Act, 1896, cap. 34, Statutes of British Columbia, 1896". The trial judge dismissed the action and this judgment was affirmed by a majority in the Court of Appeal. The suppliant appealed to this Court.

Held: The appeal should be dismissed.

The word "minerals" standing alone in the grant should be construed as meaning mineral substances and, as the authorities and references referred to indicated, petroleum and natural gas were prior to and at the time the grants were made and now are regarded as such. Ontario Natural Gas Co. v. Gosfield (1890), 19 O.R. 591 and (affirmed) (1891), 18 O.A.R. 626; Dome Oil Co. v. Alberta Drilling Co. (1916), 52 S.C.R. 561; Creighton v. United Oils Ltd., [1927] 2 W.W.R. 458; Stuart v. Calgary & Edmonton Ry. Co., [1927] 3 W.W.R. 678; Knight Sugar Co. v. Alberta Railway Co., [1938] 1 All E.R. 266; District Registrar v. Canadian Superior Oil of California Ltd., [1954] S.C.R. 321, referred to.

The contention that the words "precious or base (other than coal)" which followed the word "minerals" in the grants limited the meaning to metallic substances was rejected.

The contention that the terms of s. 3 of the British Columbia Southern Railway Aid Amendment Act, 1896, indicated that it was the intention of the legislature that only such rights as free miners might acquire under the Mineral Act, 1896 (which rights were restricted to minerals as defined in that Act) should be reserved to the Crown, and accordingly the words of the grant should be so construed, also failed. The rights of free miners at the time of the grants were not limited to searching for minerals as defined by the Mineral Act, 1896. Before the grants were made, by an Act to Extend the Rights of the Crown to Prospect for Minerals on Railway Lands to all Free Miners passed on February 27, 1899 (c. 58), it was declared that every free miner within the meaning of the Mineral Act should be entitled to exercise on his own behalf all the rights of the Crown to prospect for minerals over all lands in British Columbia, whether owned by railway companies or otherwise. This applied to the lands in question granted later that year to the railway company and the definition in the Mineral Act did not apply to the word "minerals".

The words "minerals precious or base" meant all mineral substances other than coal and in their context were free from ambiguity.

The amendment asking for rectification, for which claim no facts were pleaded, was made some 59 years after the grants were issued and accepted by the grantee. Prior to the time of the grants the parties had expressly directed their attention to petroleum as well as to coal, and during the period of 59 years the appellant had acted upon the said grants and sold portions of the lands subject to the exceptions contained in them.

If, as was suggested, there was a duty to convey the lands to the railway company subject only to the rights of the Crown to precious metals and to those of free miners, the right of action for the reformation of the grants would presumably be against the Crown either on a contract to be implied from the fact that upon the faith of the promised grants the railway was built, or upon the footing that there was a statutory duty to convey the lands subject only to the above exceptions. No such contract was pleaded and the decision in A.-G. for British Columbia v. Esquimalt & Nanaimo Ry. Co. [1950] A.C. 87,

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would apparently bar such a claim if made. If there were any such right of action it would be vested in the British Columbia Southern Railway Company and, as there was no allegation that any such right had been assigned to the appellant, that company would be a necessary party to the proceedings.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal from the judgment of Whittaker J. at the trial dismissing the action. Appeal dismissed.

J. J. Robinette, Q.C., J. L. Farris, Q.C., and J. A. McAlpine, for the suppliant, appellant.

M. M. McFarlane, Q.C., and A. W. Hobbs, for the respondents.

The judgment of the Court was delivered by

LOCKE J.:—This is an appeal from a judgment of the Court of Appeal for British Columbia[2] which dismissed an appeal of the present appellant from the judgment of Whittaker J. at the trial dismissing the action. DesBrisay C.J.B.C. dissented and would have allowed the appeal.

The appellant is the successor in title of the British Columbia Southern Railway Company to large tracts of land described as portions of Lots 4588 and 4589 in the District of Kootenay in the Province of British Columbia. These lands together with certain additional areas, were conveyed by deeds dated December 1, 1904, duly registered in the Nelson Land Registry Office at that time. The terms of the conveyances were made subject to the reservations, limitations, provisos, conditions and exceptions expressed in the original grant from the Crown.

There were two grants from the Crown to the railway company of the lands in question dated August 18, 1899, the terms of which, save as to the description of the property conveyed, were identical. The operative portions of the grants read:

Know Ye that We do by these presents, for Us, Our Heirs and Successors, in consideration of the fulfilment of the provisions of the Railway Aid Act, 1890 and amending Acts, give and grant unto the British Columbia Southern Railway Company, its successors and assigns all that parcel or lot of land (describing it) ….

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The further term of the grants that has given rise to the present litigation read:

PROVIDED also that it shall at all times be lawful for US, OUR HEIRS AND SUCCESSORS or for any person or persons acting under OUR or their authority to enter into and upon any part of said lands and to raise and get thereout any minerals, precious or base (other than coal) which may be thereupon or thereunder and to use and enjoy any and every part of the said land and the easements and privileges thereto belonging for the purpose of such raising and getting and every other purpose connected therewith.

By the petition of right the appellant asserted that it was entitled to the petroleum and natural gas to be found under such lands, that the Crown had issued permits to the Canadian Gulf Oil Company and the California Standard Company to do exploratory drilling for petroleum and natural gas on such lands, that these permits had been assigned to the British American Oil Company Limited and asked damages for trespass against the Crown and these companies and an injunction restraining them from entering upon the said lands. This aspect of the claim for relief was abandoned at the trial and does not require consideration. The petitioner asked further for a declaration that it was the owner of the petroleum and natural gas in and underlying the said lands, and, by an amendment made at the trial, an order rectifying the reservation in respect to minerals by striking out the words "any minerals, precious or base (other than coal)" and substituting therefor the words "any minerals as defined in the Mineral Act, 1896, cap. 34, Statutes of British Columbia, 1896".

These two claims for relief are to be considered separately. While in dealing with the first of these the question to be determined is the proper interpretation of the words "minerals, precious or base" in the grants from the Crown, the circumstances leading up to the making of such grants are matters to be considered.

The British Columbia Southern Railway Company was incorporated under the name of The Crow's Nest and Kootenay Lake Railway Company by c. 44 of the Statutes of 1888 and given authority to construct and operate a line of railway in the Kootenay District in the province. The name of this company was changed to the present name by c. 56 of the Statutes of 1891.

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By the Railway Aid Act, 1890, c. 40, s. 1, the Lieutenant-Governor in Council was authorized to grant 20,000 acres of public land for each one mile of railway completed throughout its entire length upon compliance by the company with certain terms which were defined. By s. 14 it was provided that the provisions of the British Columbia Railway Act, passed at the same session, should apply to the enterprise. Section 18, to which as amended much importance is assigned by the appellant, reads:

Nothing in this Act contained shall prejudice the rights of free miners to search for, get and win the precious metals and to use timber for mining purposes, subject to the mineral and land laws of the province and to the provisions of this Act.

Between the years 1890 and 1896 various statutes extended the time for the completion of the railway. In 1896 by c. 4 entitled The British Columbia Southern Railway Aid Amendment Act it was enacted that it should be a sufficient compliance with the provisions of the Railway Aid Act, 1890, as amended, to entitle the railway company to the grant authorized that the company should construct and equip the several sections of its line of railway within the times fixed by an Act passed at that session. Section 3 of this Act reads:

Nothing in this Act and no grant to be made hereunder shall be construed to interfere with free miners entering upon and searching for minerals and acquiring claims in accordance with the mining laws of the province.

The railway line was completed and the company applied for a grant of the subsidy lands.

By a report dated August 17, 1899, made by the Minister of Finance to the Lieutenant-Governor in Council, it was recommended that a block of land be laid out and Crown grants be issued, subject inter alia to the proviso above quoted. The Crown grants were made upon the authority of an Order in Council of the same date.

As originally drafted, the contention of the petitioner was that upon the true construction of the original grants the rights to the petroleum and natural gas in the lands were conveyed to the railway company. The amendment made at the trial some 59 years after the grants were issued and accepted by the grantee asking for rectification as above mentioned did not specify the basis for the claim as is

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usual in asking for relief of this nature. No contract between the Crown and the railway company was pleaded though this question was argued at the trial and dealt with in the judgment of the learned trial judge.

It was contended by the petitioner at the trial that the words "minerals, precious or base (other than coal)" in the grant should be construed as that word was defined in the Mineral Act of 1896. That this was the proper construction was supported, it was said, by the reservation of the rights of free miners under the mining laws of the province, by the Railway Aid Act as amended, rights which it is contended were restricted to searching for minerals of a metallic nature.

The Mineral Act of 1896, by s. 2 under a sub-heading "Interpretation", reads in part:

In the construction of this Act, the following expressions shall have the following meanings respectively, unless inconsistent with the context:—

"Mineral" shall mean all valuable deposits of gold, silver, platinum, iridium, or any of the platinum group of metals, mercury, lead, copper, iron, tin, zinc, nickel, aluminum, antimony, arsenic, barium, bismuth, boron, bromine, cadmium, chromium, cobalt, iodine, magnesium, manganese, molybdenum, phosphorus, plumbago, potassium, sodium, strontium, sulphur (or any combination of the aforementioned elements with themselves or with any other elements), asbestos, emery, mica, and mineral pigments.

In Lord Provost and Magistrates of Glasgow v. Farie[3], where the question was as to whether the word "minerals" in the context "mines of coal, ironstone, slate or other minerals" in The Waterworks Clauses Act, 1847, included common clay forming the surface or subsoil of the land, Halsbury L.C. said that the question to be decided was a question of fact as to "what these words meant in the vernacular of the mining world, the commercial world, and land owners" at the time they were used in the conveyance. This statement of the law was adopted by the Judicial Committee in Borys v. C.P.R. and Imperial Oil Ltd[4]

The appellant called three witnesses in an attempt to establish that, applying this test, the word "minerals" alone or with the words "precious or base" added did not in the

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vernacular include petroleum or natural gas in 1896 when the definition referred to appeared in the Mineral Act or when the grants were made or, indeed, at the present time.

Mr. R. M. Thompson, a professor in the Department of Geology in the University of British Columbia, was permitted to say that, in his opinion, neither petroleum or natural gass fell within the definition of minerals in the Act of 1896. He said that since these substances were not products of an inorganic nature they "cannot be thought of as minerals". The witness said further that the words "minerals, precious or base (other than coal)" in the reservation from the Crown did not in his opinion include petroleum or natural gas. To this he added that they would not bear this meaning to a scientist. In general mining parlance, he considered base minerals meant such metals as lead and zinc. Cross-examined, he said that petroleum and natural gas were hydrocarbons but that to a scientist they were not minerals because "they are not created by a process of inorganic activity".

Mr. L. G. N. Crouch, a mining engineer and professor of mining at the same university with considerable practical experience in Canada and elsewhere, considered that in 1896 "the definition of minerals in the Mineral Act of 1896 in common parlance" would not include petroleum or natural gas nor would they today. He also said that in his opinion the words of the grant "any minerals, precious or base (other than coal)" in common mining parlance in 1896 would not include them. His reason for this opinion was that among mining men minerals were thought of as solid materials and that to a mining engineer the words "precious or base" were applied only to metals in 1896 and at the present time. Cross-examined, he said that to a mining engineer natural gas and petroleum are not included in the expression "minerals" and believed that they had not been so in 1896. He said that he had been assisted in reaching this conclusion by reading reports of the Minister of Mines, journals of the period 1896 to 1900, and examining some of the provincial mining statutes.

Mr. W. H. Matthews, a professor of petroleum geology in the same university and a mining engineer, said that the origin of petroleum and natural gas was "plant and animal

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material laid down in ancient seas" and that "from a scientific point of view" they were not minerals. He said he based this opinion on the fact that they were of organic origin and "the fact that they are of mixed composition not individual species"; minerals he considered were of inorganic origin and accordingly coal was not a mineral since it was of organic origin and of mixed composition meaning mixtures of materials rather than pure substances. He was asked and permitted to say that petroleum and natural gas did not fall within the definition of minerals in the Act of 1896 nor within the language of the exception from the grant. He said that petroleum is not "regarded scientifically as a mineral" and considered that this was also the case in 1896. In common parlance in the mining world in British Columbia he said "any minerals precious or base other than coal" would not include petroleum or natural gas. He was of opinion that minerals precious or base referred to metallic minerals which would not include petroleum.

These three witnesses were all born after 1899 and so had no personal knowledge as to the accepted meaning of these terms at the time of the enactment of the Mineral Act, 1896, nor at the date of the grants.

The Crown did not call any witnesses.

The learned trial judge, Whittaker J., was of the opinion that it had been established by the authorities that the word "mineral" when used in a legal document or act of Parliament included petroleum and natural gas unless the context or the circumstances indicated a contrary intention. He considered that "any" minerals in the words of the grant meant "all" minerals. The word "base" as applied to minerals he held meant all minerals other than those classed as precious. As to the evidence of the three witnesses, he considered that it was insufficient to prove the meaning of these terms in the vernacular in 1896, according to the test proposed by Lord Halsbury in the Farie case.

In the Court of Appeal the late Sidney Smith J.A. said that he was in substantial agreement with the reasons of the learned trial judge.

Davey J. A. agreed with Whittaker J. that the words of the grant "any minerals precious or base (other than coal)" included petroleum and natural gas and adopted his reasons for that conclusion. Referring to the evidence, he said that

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it was largely argumentative and did not touch the question of how conveyancers, land owners and commercial men would have understood the words. He did not consider the words "precious or base", in their context, words of limitation but that they applied to minerals generally, including substances of organic origin as well as metals. With these conclusions, I agree.

The learned Chief Justice of British Columbia reviewed the statutes which authorized the grants and was of the opinion that the railway company was entitled as of right under their provisions to a conveyance of the lands, less only precious metals or minerals and coal without the reservation of base minerals contained in the grants. He would in consequence have allowed the appeal.

The question as to whether petroleum and natural gas are mineral substances within the meaning of the term in various statutes has been considered in several cases to which the learned trial judge referred. In the more recent cases it would appear that the fact that they are mineral substances has been conceded.

In Ontario Natural Gas Company v. Gosfield[5], the question to be decided was whether natural gas was a mineral within the meaning of s. 565 of The Municipal Act, R.S.O. 1887, c. 184, which read, in part, "the corporation of any township or county wherever minerals are found may sell or lease …the right to take minerals, etc." Street J. held that it was. After referring to the meaning assigned to the word "mineral" in several dictionaries and among other authorities to the decision in Lord Provost v. Farie, he adopted the statement of Lord Macnaghten at p. 690 of the report of that case which was followed by the learned trial judge in the present matter.

The appeal from this judgment was dismissed[6]. Hagarty C.J.O. considered that it was impossible to hold that natural gas was not a mineral and that there was nothing in the section limiting its ordinary meaning. Osler J.A. agreed with Street J. saying that the word was to be given its widest signification. MacLennan J.A. agreed that natural gas was a mineral within the meaning of the statute and said that at the time the Act was passed (1887) gas was a well-known mineral substance.

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In Dome Oil Co. v. Alberta Drilling Co.[7] the appellant contended that oil was not a mineral within the meaning of s. 63A of The Companies Ordinance of the North-West Territories which authorized the company "to dig for …minerals …whether belonging to the company or not". As to this, Anglin J. said, in part (p. 582) "rock oil is admittedly a mineral within definitions of that word well established and generally accepted. It was something well-known as a mineral when the legislation under consideration was passed". That was 1901. He continued "the word 'minerals' in a statute bears its widest signification unless the context or the nature of the case requires it to be given a restricted meaning". Brodeur J. said, in part (p. 586), "rock oil in its popular and scientific meaning is a mineral substance. Mineral bodies occur in three physical conditions, solid, liquid and gas, and although the term 'mineral' is more frequently applied to substances containing metals, rock oil and petroleum are embraced in that term" and referred to Ontario Natural Gas v. Gosfield. The dissenting judgments of Idington and Duff JJ. were upon another issue in the case.

In Creighton v. United Oils Ltd.[8], Walsh J. said, in part, "it is admitted and it is established as a scientific fact that petroleum and natural gas are minerals within the ordinary meaning of that word and were so regarded long before this legislation (the Dominion Lands Act, R.S.C. 1886, c. 54) was passed."

In Stuart v. Calgary & Edmonton Ry. Co.[9], Hyndman J.A. stated that it was well settled that gas and oil are minerals in a judgment concurred in by all of the members of the Appellate Division.

In Knight Sugar Co. v. Alberta Railway Co[10], where the reservation in the transfer was of "all coal and other minerals" it was admitted that petroleum and natural gas were minerals (p. 269).

In the case of District Registrar v. Canadian Superior Oil of California Ltd.[11], it was apparently taken for granted that such substances were minerals within the meaning of s. 21

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of the Manitoba Provincial Lands Act, 1887, where the reservation was of "gold or silver mines or any other mineral". The only mention of this aspect of the matter was in the judgment of our late brother Estey who said that petroleum and natural gas were admittedly base minerals. The contrary of this was not apparently considered to be fairly arguable.

The grants in question were made in the year 1899. It is not alleged in the pleadings and I find nothing in the evidence to indicate that these words at that time bore any other meaning than they did at the time of the trial.

The word "petroleum" is derived from the Latin—"petra", rock, and "oleum", oil. Dictionaries in use at the time the grants were made and at the time of the trial may be referred to in determining the commonly accepted meaning of the term. Murray's New English Dictionary, publication of which commenced in 1893, defines "petroleum" as a mineral oil occurring in rocks or on the surface of the water in various parts of the globe. The current New Oxford Dictionary defines "mineral oil" as a general name for petroleum and the various oils distilled from it. Webster's New International Dictionary describes "mineral oil" as any oil of mineral origin such as petroleum. In Soule's Dictionary of Synonyms, petroleum, rock oil, and mineral oil are said to be synonyms.

That the word "minerals" was considered by the legislature to include petroleum in the year 1892 is shown by s. 2 of the Coal Mines Amendment Act, c. 31, of that year to which the learned trial judge has referred. This Act apparently contained the first reference to petroleum by name in the statutes and authorized the issue of prospecting licences for coal or petroleum. So far as relevant the section reads:

Any person desirous of prospecting for coal or petroleum, and acquiring a lease of any lands held by the Crown for the benefit of the province, under which coal measures or petroleum are believed to exist, or wishing to procure a licence for the purpose of prospecting for coal or petroleum upon lands under lease from the Crown in which the mines and minerals, and power to work, carry away, and dispose of the same, is excepted or reserved ….

The reservation of minerals was thus assumed to reserve petroleum.

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The word "minerals" standing alone in the grant should, in my opinion, be construed as meaning mineral substances and, as these authorities and references indicate, petroleum and natural gas were prior to and at the time the grants were made and now are regarded as such.

The witnesses called by the appellant appear to treat the word "mineral" as being synonymous with "metallic" even without the added words "precious or base". This position is, in my opinion, untenable. All metals are minerals but all minerals are not metals. In Barnard-Argue-Roth-Stearns Oil and Gas Co. Ltd. v. Farquharson[12], Lord Atkinson, delivering the judgment of the Judicial Committee, said, in part (p. 869), "in one sense natural gas is as rock oil is, a mineral, in that it is not an animal or a vegetable product and all substances found on, in, or under the earth must be in one or the other of these categories of animal, vegetable or mineral substances". If natural gas is not a mineral substance, how is it to be classified? I find no answer to that question in the oral evidence in this case.

The appellant contends, however, that the words "precious or base (other than coal)" which followed the word "minerals" in the grants limit the meaning to metallic substances.

These words appeared in the Mineral Acts of 1884 and 1891 in the following context:

Minerals shall include all minerals precious or base (other than coal) found in veins, lodes or rock in place and whether such minerals are found separately or in combination with each other."

They were omitted from the definition of the term in the Act of 1896 above quoted for obvious reasons.

Apart from the fact that the words following the word "coal" in the above quoted definition do not appear in the grants, the interpretation clauses of each of these statutes are limited in their application to the construction of the Act in which the expressions appear. If it be permissible to refer to similar language in the earlier mining statutes as an aid to interpretation, it may be noted that the term "all the baser metals and minerals" first appeared in the mining ordinance of the Colony of British Columbia in 1869. In the

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Mineral Act of 1884 this expression was replaced by the words "all minerals precious or base". Standing alone the expressions, so far as the latter relates to base minerals, seem to be synonymous. That "all the baser metals and minerals" included both metallic and non-metallic substances is perfectly clear.

It is, however, contended that the terms of s. 3 of the British Columbia Southern Railway Aid Amendment Act, 1896, hereinbefore quoted, indicate that it was the intention of the legislature that only such rights as free miners might acquire under the Mineral Act, 1896 should be reserved to the Crown. Those rights were restricted to minerals as defined in that Act. Accordingly, it is argued that the words of the grant should be so construed.

In the interest of accuracy it should be pointed out that the grants were not made under the authority given to the Lieutenant-Governor in Council by the Act of 1896 but by the Railway Aid Act of 1890. Section 3 reads: "Nothing in this Act and no grant to be made hereunder." The Amendment Act of 1896 did not purport to repeal s. 18 of the Railway Aid Act and in strictness it is the terms of that section which are applicable. In view, however, of the course of the argument, I have considered the question on the basis that s. 3 applied, as was done at the trial.

I am unable to agree that the section, if applicable to these grants, should be so construed. It should be pointed out that it is inaccurate to say that the rights of free miners at the time of the grant were limited to searching for minerals as defined by the Mineral Act, 1896. Before the grants were made, by an Act to Extend the Rights of the Crown to Prospect for Minerals on Railway Lands to all Free Miners passed on February 27, 1899 (c. 58), it was declared that every free miner within the meaning of the Mineral Act should be entitled to exercise on his own behalf all the rights of the Crown to prospect for minerals over all lands in British Columbia, whether owned by railway companies or otherwise. This applied to the lands in question granted later that year to the railway company and the definition in the Mineral Act did not apply to the word "minerals".

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While I consider that the definition in the statute has no application to the words of the grant, if I were of a contrary opinion I would have difficulty in accepting the evidence of the witnesses so far as it was admissible that petroleum and natural gas were not within its terms. While the great majority of the materials mentioned are metallic, the list includes sulphur, phosphorus, boron, bromine and iodine, all of which are described in the New Oxford Dictionary as non-metallic elements. That portion of the definition reading "or any combination with the aforementioned elements and themselves or with any other elements" was not discussed in the evidence. To deal with one alone of these last mentioned substances, it is a matter of common knowledge in Western Canada that sulphur in considerable quantities is found in some petroleums and that there is a large industry in Alberta today devoted to extracting sulphur from the natural gas found in various parts of that province. This would appear to bring the substance within the definition. The matter was not explored in the cross-examination, no doubt for the reason that it was rightly considered that the definition had no application to the words of the grant.

The fact that the rights of free miners were preserved, assuming s. 3 applied, did not in the opinion of the learned trial judge prevent the Lieutenant-Governor in Council from reserving the rights of the Crown and those claiming under the Crown to minerals, precious or base, if that were considered to be in the public interest. It was his opinion that there was no legal obligation upon the Crown or upon the Lieutenant-Governor in Council to make the grants, the statute merely conferring a discretionary power upon the Lieutenant-Governor in Council. With these conclusions the majority of the members of the Court of Appeal expressed their agreement.

It was upon this last mentioned aspect of the case that the learned Chief Justice differed from the trial judge and the other members of the Court. It was his opinion that upon the true construction of the various statutes the railway company had become entitled to a conveyance of the lands subject only to the rights of the Crown to precious metals and to those of free miners. That being so, and the

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words of the grant being, in his opinion, ambiguous, he considered that they should be so construed as conveying the fee simple with those exceptions only.

The opinion that this conclusion might be invoked as an aid in construing the language of the grants proceeds upon the basis that the words "minerals precious or base" are ambiguous. With the greatest respect, I disagree. For the reasons I have stated I consider that the words mean all mineral substances other than coal and in their context are free from ambiguity.

The conclusion that there was a duty resting upon the Crown or upon the Lieutenant-Governor in Council to convey the lands subject only to these exceptions might in certain circumstances justify a claim by the grantee to reform the grants. That aspect of the claim made by the amendment to the petition of right was not argued before us and is not mentioned in the judgments at the trial or in the Court of Appeal. It was not, however, abandoned.

The amendment which asked for the reformation of the grant appeared in para. 18 of the petition, and reads:

In the alternative an order rectifying the reservation in respect to minerals contained in the third proviso of the Crown grants of Lots 4588 and 4589 by striking out the words "any minerals precious or base other than coal" and substituting therefor the words "any minerals as defined in the Mineral Act 1896 cap. 34, Statutes of B.C. 1896."

As I have stated, no facts are pleaded such as mutual mistake as the basis for this claim. The evidence contains no suggestion that the grants issued in 1899 were not accepted without question by the railway company. It is also of significance that, as pointed out by Davey J.A., on April 15, 1891, the president of the railway company wrote to the Premier saying that the company expected to commence work on the line in the near future and that it was anxious to prospect for coal and coal oil by boring on a block of 400,000 acres which the Crown might grant to the company under the Railway Aid Act and requested that a Minute of Council be passed designating the areas to be thereafter granted. Such a Minute was passed. The parties having expressly directed their attention to petroleum as well as to coal, Davey J.A. considered that the exclusion of coal alone

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in the grants indicated clearly that it was not the intention of the parties that the company should also get the petroleum.

There is this further to be added. So far as the record shows, no question was ever raised by the grantee that the title conveyed by the grants was not that to which it was entitled or by its successor in title, the present appellant, until 1958. During this period of 59 years it is admitted that the appellants have acted upon the grants and sold portions of the lands subject to the exceptions contained in them.

If there was such a duty resting upon the Crown or the Lieutenant-Governor in Council, as is suggested, the right of action for the reformation of the grants would presumably be against the Crown either on a contract to be implied from the fact that upon the faith of the promised grants the railway was built or upon the footing that there was a statutory duty to convey the lands subject only to these exceptions.

No such contract is pleaded and the decision of the Judicial Committee in Attorney-General for British Columbia v. Esquimalt and Nanaimo Railway Company[13], would apparently bar such a claim if made. Whether the cause of action be one or the other it would vest in the British Columbia Southern Railway Company and that company would be a necessary party to the proceedings since there is no allegation that any such right of action was transferred by that company to the appellant.

It is unnecessary in the construction of these grants to consider the question argued before us that in case of ambiguity they should be construed most strictly against the Crown since it is said that there was valuable consideration for the making of the grant. I consider that there is no ambiguity.

I also refrain from expressing any opinion upon the question as to the application of the various Land Acts of the province upon which the respondent relies since I consider it unnecessary for the disposition of the appeal.

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I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitors for the suppliant, appellant: Farris, Stultz, Bull & Farris, Vancouver.

Solicitors for the respondent, Attorney-General of British Columbia: Lawrence, Shaw, McFarlane & Stewart, Vancouver.

Solicitor for the respondent, The California Standard Company: D. A. Lawson, Vancouver.

Solicitor for the respondents, Canadian Gulf Oil Company and The British American Oil Company Limited: J. D. Forin, Vancouver.