Kerwin
J.
:—This
action
is
concerned
with
a
tax
sale
held
by
the
Township
of
Tisdale
in
the
Province
of
Ontario
in
the
year
1939.
In
1909,
the
plaintiff,
Allan
G.
Cavana,
purchased
the
fee
simple
in
the
north
part
of
broken
lot
1,
concession
5,
in
the
Township
of
Tisdale,
in
the
Province
of
Ontario,
registered
in
the
Land
Titles
Office
as
parcel
1125
in
the
register
for
Algoma,
North
Section.
It
is
admitted
that
these
lands
were
mining
lands.
On
December
30,
1930,
Cavana
transferred
to
Charles
D.
Ferguson
the
surface
rights
in
the
lands,
which
in
the
meantime
had
become
parcel
818
in
the
register
for
Sudbury,
North
Division.
According
to
the
certificate
of
ownership,
issued
under
the
Land
Titles
Act,
Cavana
thus
became
the
owner
in
fee
simple,
with
an
absolute
title,
only
of
the
mines,
minerals
and
mining
rights
of
the
lands
described.
Ferguson
became
the
owner
of
the
surface
rights
of
the
same
lands,
entered
as
parcel
3191
in
the
register
for
Whitney
and
Tisdale.
In
the
assessment
rolls
of
the
Township
of
Tisdale
for
each
of
the
years
1930
and
1931,
Cavana
is
assessed
as
the
owner
of
these
lands
without
any
reference
to
surface
rights
or
mining
rights.
By
a
letter
dated
April
17,
1931,
Cavana
notified
the
Clerk
of
the
Township
that
he
was
not
the
owner
of
the
lands
assessed
in
his
name.
Presumably
Cavana
had
paid
the
taxes
assessed
against
the
lands
from
1909
to
1929
inclusive.
The
taxes
for
1930
and
1931
were
not
paid
and
in
December,
1931,
an
action
to
recover
them
was
commenced
by
the
Township
against
Cavana
and
Ferguson.
Apparently
Ferguson
did
not
defend
the
action.
Cavana
did
defend
but
ultimately
a
settlement
was
arrived
at
between
him
and
the
Township.
Without
entering
into
the
details,
I
agree
with
the
trial
Judge
and
Masten
J.A.
and
Henderson
J.A.,
that
so
far
as
Cavana
was
concerned,
this
was
a
settlement
of
the
claim
for
the
total
amount
of
taxes
for
both
years,
and
this
claim
being
settled,
no
lien
for
the
taxes
for
those
years
could
continue
to
exist.
The
claim
of
the
Township
to
uphold
the
tax
sale
in
question
on
the
basis
of
there
being
any
taxes
in
arrears
for
either
of
those
years
therefore
fails.
Hence
the
assessment
roll
for
1932
is
the
earliest
that
need
be
examined.
Under
column
2
of
the
roll
for
that
year,
Charles
D.
Ferguson
was
assessed
as
owner.
In
the
second
part
of
that
column
(divided
from
the
first
by
a
vertical
line),
under
the
address
of
Ferguson,—"Orillia,
Ont.’’
appears
"‘also
A.
G.
Cavana,
Orillia”.
Opposite
this
last
entry
but
under
column
6,
which
is
headed
""
Occupation
”,
appear
the
words
‘‘mining
rights’’.
While
the
rolls
for
the
years
1933,
1934
and
1935
are
not
exactly
the
same,
it
may
be
stated
that
for
all
practical
purposes
similar
entries
appear.
In
no
ease
does
Cavana
‘s
name
appear
in
the
appropriate
part
of
column
2
(what
may
be
termed
the
first
half),
to
designate
him
as
the
owner
assessed.
Thereafter
Cavana
‘s
name
does
not
appear
in
any
way
on
the
assessment
rolls
so
that
the
same
remark
applies
to
the
years
subsequent
to
1985.
The
statement
of
defence
alleges
that
Ferguson
was
the
only
person
assessed
during
the
years
1932
to
1939
inclusive
but,
even
without
such
allegation,
I
would
have
no
hesitation
in
coming
to
the
conclusion
that
he
was
in
fact
the
only
person
assessed.
It
is
contended
that
notwithstanding
that
a
severance
occurred
in
1930
of
the
mining
rights
and
the
surface
rights,
the
former
was
assessable.
It
is
true
that,
by
s.
1
of
the
Assessment
Act,
R.S.O.
1927,
e.
238
:
il
(h)
‘Land,’
‘Real
Property’
and
'Real
Estate’
shall
include:—
.
.
.
.
3.
All
mines,
minerals,
gas,
oil,
salt,
quarries
and
fossils
in
and
under
the
land;’’
and
that
by
s.
4
"All
real
property
in
Ontario
.
.
.
.
shall
be
liable
to
taxation,
subject
to
the
following
exemptions’’:—none
of
which
exemptions
apply.
The
question,
however,
is
to
be
determined
by
a
consideration
of
the
provisions
of
s-ss.
(4)
and
(5)
of
s.
40
and
also
of
s-s.
(10),
which
was
added
by
s.
2
of
c.
39
of
the
1928
Statutes.
These
subsections
read:
"(4)
The
buildings,
plant
and
machinery
in,
on
or
under
mineral
land,
and
used
mainly
for
obtaining
minerals
from
the
ground,
or
storing
the
same,
and
concentrators
and
sampling
plant
and,
subject
to
subsection
8,
the
minerals
in,
on
or
under
such
land,
shall
not
be
assessable.
"(5)
In
no
ease
shall
mineral
land
be
assessed
at
less
than
the
value
of
other
land
in
the
neighbourhood
used
exclusively
for
agricultural
purposes.
’
’
"(10)
Where
any
estate
in
mines,
minerals
or
mining
rights
has
heretofore
or
may
hereafter
become
severed
from
the
estate
in
the
surface
rights
of
the
same
lands,
whether
by
means
of
the
original
patent
or
lease
from
the
Crown,
or
by
any
act
of
the
patentee
or
lessee,
his
heirs,
executors,
administrators,
successors
or
assigns,
such
estates
after
being
so
severed
shall
thereafter
be
and
remain
for
all
purposes
of
taxation
and
assessment
separate
estates
notwithstanding
the
circumstance
that
the
titles
to
such
estates
may
thereafter
be
or
become
vested
in
one
owner.’’
The
argument
that
because
s.
40
is
one
of
several
that
appear
in
the
Assessment
Act
under
the
heading
‘‘
Valuation
of
Lands’’,
s-s.
(4)
thereof
deals
only
with
the
valuation
and
not
an
exemption,
was
advanced
in
this
Court
in
Bucke
Tp.
v.
Macrae
Mining
Co.,
[1927],
3
D.L.R.
1,
S.C.R.
403,
and
was
rejected
(pp.
4-5
D.L.R.,
p.
409
S.C.R.).
Subsection
(4)
declares
in
explicit
terms
that
(subject
to
subsection
8,
which
has
no
bearing
in
this
ease)
the
minerals
in,
on
or
under
mineral
land
shall
not
be
assessable
If
there
had
been
no
severance,
the
mineral
land
purchased
by
Cavana
in
1909
would
have
fallen
within
the
terms
of
s-s.
(9)
but,
after
severance,
only
the
surface
rights
were
assessable.
Subsection
(4)
refers
only
to
"‘minerals’
‘
but
the
judgment
in
the
Macrae
case
treats
that
expression
as
synonymous
with
"‘mining
rights’’.
It
is
suggested
that
that
part
of
the
Judgment
dealing
with
this
point
is
obiter.
Assuming
that
to
be
so,
I
have
no
hesitation
in
expressing
my
concurrence
in
that
opinion.
That
view
is
confirmed
by
ss.
15,
16
and
17
of
the
Conveyancing
and
Law
of
Property
Act,
R.S.O,
1927,
e.
137
(now
R.S.O.
1937,
c.
152).
By
force
of
these
provisions,
the
expression
"‘surface
rights’’
in
the
transfer
from
Cavana
to
Ferguson
is
to
be
construed
as
covering
the
lands
described,
with
the
exception
of
the
ores,
mines
and
minerals
on
or
under
the
land
and
such
right
of
access
for
the
purpose
of
winning
the
ores,
mines
and
minerals
as
is
incidental
to
a
grant
of
ores,
mines
and
minerals.
Cavana
therefore
was
the
owner
of
the
ores,
mines
and
minerals
and
the
right
of
access
specified,
and
all
these
mineral
rights
in
the
lands
were
not
assessable.
Subsection
(10),
which
was
enacted
after
the
decision
in
Bucke
Tp.
v.
Macrae
Mining
Co.
refers
to
a
case
where,
after,
severance,
the
two
so-called
estates
became
vested
in
one
owner.
The
fact
that
the
legislature
enacted
that,
notwithstanding
such
vesting,
the
two
estates
should
remain
separate
for
taxation
and
assessment
purposes
indicates
that
the
conclusion
expressed
above
is
the
correct
one.
The
tax
sale
took
place
in
1939.
By
that
time
the
Revised
Statutes
of
Ontario
1937
were
in
force
wherein
the
Assessment
Act
appears
as
¢,
272.
Subsection
(1)
of
s.
14
and
s-s.
(1)
of
s.
15
of
that
Act
are
relied
on
by
the
appellants.
These
subsections
are
as
follows:
"
'14.—(1)
Where
an
easement
is
appurtenant
to
any
land
it
shall
be
assessed
in
connection
with
and
as
part
of
such
land
at
the
added
value
it
gives
to
such
land
as
the
dominant
tenement,
and
the
assessment
of
the
land
which
as
the
servient
tenement,
is
subject
to
the
easement
shall
be
reduced
accordingly.”
"15.—(1)
Where
land
sold
for
arrears
of
taxes
was
a
dominant
tenement
at
the
time
of
sale
and
was
so
sold
after
the
3rd
day
of
April,
1930,
the
easements
appurtenant
thereto
shall
be
deemed
to
have
passed
to
the
purchaser.”
The
right
of
access
is
appurtenant
to
the
minerals
and
like
the
latter
was
exempt
from
assessment.
.
There
is
nothing
inconsistent
with
the
above
in
the
reasons
for
judgment
in
Tisdale
Tp.
v.
Hollinger
Consolidated
Gold
Mines
Ltd.,
[1933],
3
D.L.R.
15,
S.C.R.
321.
What
Mr.
Justice
Cannon
was
there
dealing
with
was
an
entirely
different
matter;
the
effect
of
a
severance
in
connection
with
assessability
was
not
in
issue.
Reference
was
made
to
what
certain
expressions
used
in
cis.
(k),
(m),
(n)
and
(o)
of
s.
1
of
the
Mining
Act,
R.S.O.
1927,
ce.
45
(now
R.S.O.
1937,
¢.
47,
s.
1,
cis.
(j),
(I),
(m)
and
(n)),
should
be
taken
to
mean
or
include,
but
no
assistance
in
the
determination
of
this
appeal
may
be
gained
from
a
consideration
of
those
provisions.
Section
181
of
the
1927
Assessment
Act
(see
now
s.
185
of
R.S.O.
1937,
c.
272)
was
also
relied
on
by
the
appellants.
That
section
is
in
these
terms:
"‘181.
If
any
part
of
the
taxes
for
which
any
land
has
been
sold
in
pursuance
of
any
Act
heretofore
in
force
in
Ontario
or
of
this
Act,
had
at
the
time
of
the
sale
been
in
arrear
for
three
years
as
mentioned
in
section
130,
and
the
land
is
not
redeemed
in
one
year
after
the
sale,
such
sale,
and
the
official
deed
to
the
purchaser
(provided
the
sale
was
openly
and
fairly
conducted)
shall
notwithstanding
any
neglect,
omission
or
error
of
the
municipality
or
of
any
agent
or
officer
thereof
in
respect
of
imposing
or
levying
the
said
taxes
or
in
any
proceedings
subsequent
thereto
be
final
and
binding
upon
the
former
owner
of
the
land
and
upon
all
persons
claiming
by,
through
or
under
him,
it
being
intended
by
this
Act
that
the
owner
of
land
shall
be
required
to
pay
the
taxes
thereon
within
three
years
after
the
same
are
in
arrear
or
redeem
the
land
within
one
year
after
the
sale
thereof
;
and
in
default
of
the
taxes
being
paid
or
the
land
being
redeemed
as
aforesaid,
the
right
to
bring
an
action
to
set
aside
the
said
deed
or
to
recover
the
said
land
shall
be
barred.’’
The
Township
purported
to
sell
Cavana’s
mining
rights.
A
settlement
was
made
of
the
taxes
for
1930
and
1931,
which
taxes
were
based
on
the
assessment
rolls
for
those
years.
Cavana’s
mining
rights
were
not
assessable
in
the
remaining
years
and
were
not
in
fact
assessed.
Therefore,
there
were
no
taxes
on
those
rights
in
arrears
for
any
period
for
which
they
could
be
sold,
and
the
section
has
no
application.
It
was
argued
that
Cavana
was
in
law
and
in
equity
the
owner
at
all
material
times
of
all
the
interests
in
the
fee
simple,
of
both
the
mining
and
the
surface
rights,
in
the
lands
in
question.
This
is
based
upon
the
fact
that
in
the
transfer
to
Cavana
and
in
the
certificate
of
ownership
issued
to
him
after
the
severance,
he
is
described
as
a
trustee.
The
argument
is
that
there
was
a
resulting
trust
when
he,
as
trustee,
conveyed
the
surface
rights
to
Ferguson.
Whatever
might
be
the
position
as
between
Cavana
and
Ferguson,
it
is
impossible
for
the
appellants
to
raise
any
such
issue
in
these
proceedings.
Certain
defects
in
the
assessments
and
the
tax
sale
were
alleged
by
the
respondents,
which
need
not
be
considered.
The
appeal
should
be
dismissed
with
costs.
Appeal
dismissed.
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