Supreme
Court of Canada
Carey v.
Toronto (City), (1886) 14 S.C.R. 172
Date:
1886-04-09
Patrick
Carey (Plaintiff) Appellant;
and
Alexander
MacDonell, The Corporation of the City of Toronto, William Henry Bennett and
James Arthur Bennett (Defendants) Respondents.
1885: November 26, 27, 28;
1886: April 9.
Present: Sir W.J. Ritchie
C.J., and Fournier, Henry, Taschereau and Gwynne JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR ONTARIO.
Sale of land—Building lots—Plan showing lanes—Alteration of plan—Closing of lane.
The city of Toronto offered
land for sale, according to a plan showing one block consisting of five lots
each, about 200 feet in length running from east to west bounded north and
south by a lane of the same length, and east by a lane running along the whole
depth of the block and connecting the other two lanes. South of this block was
a similar block of smaller lots, ten in number, running north and south 120
feet each. The lane at the east of the first block was a continuation, after
crossing the long lane between the blocks, of lot No. 10 in the second block.
The advertisement of sale stated that “lanes
run in rear of the several lots.”
M. became the purchaser of
the first block and C. of lot 10 in the second. Before registry of the plan M.
applied to the City Council to have the lane at the east of his block closed up
and included in his lease which was granted. C. then objected to taking a lease
of his lot with the lane closed, but afterwards accepted a lease which
described the land as leased according to plan 380 (the plan exhibited at the
sale) and plan 352 (which showed the lane closed), and he brought an action
against the city and M. to have the lane re-opened.
Held, affirming the judgment of
the court below that C., having accepted a lease after the lane was closed, in
which reference was made to said plan 352, was bound by its terms and had no
claim to a right of way over land thereby shown to be included in the lease to
M.
[Page 173]
Held also, per Gwynne J., that
under the contract evidenced by the advertisement and public sale C. acquired
no right to the use of the lane afterwards closed.
APPEAL from a decision of
the Court of Appeal for Ontario reversing the judgment of
Ferguson J. in favor of the plaintiff.
The
facts of this case are fully set out in the judgment of Mr. Justice
Gwynne.
S.H. Blake Q.C. and
McCarthy Q.C. for the appellant.
If a
man offers to sell property with certain advantages specified he cannot, after
the sale, take away those advantages. So here plaintiff bought according to
description on plans which showed lane open, and vendors could not after the
purchase close them.
In the
cases referred to in the Court of Appeal the plans were simply exhibited in the
auction room. Here the land was bought in pursuance of the plans and they are
referred to in the agreement.
There
can be no doubt that we would be entitled to specific performance of our agreement
by having the lots with the lanes described in the plan.
Then,
we submit that the city of Toronto could do nothing to derogate from the rights
of the plaintiff.
The
mere registry of the plan did not in any way affect the position of the city.
The plan showing the lanes open was made on account of our objection to the
other.
MacDonell
had knowledge of all that was done and was trying to get an advantage outside
of his contract.
As to
construction of lease see Broom’s Legal Maxims pp. 498-501.
A deed, lease, or agreement, to which is annexed a plan of this kind gives an
absolute right to the lane and the grantor cannot do anything to derogate from
his own grant. The authority for this is conclusive on two grounds, one the
actual authority of the contract between the parties, and the
[Page 174]
other that for a period of 25 years
the courts have held that if you sell by a plan annexed to an agreement, you
are just as much bound by the plan as by anything else in the agreement. Peacock
v. Penson; Rossin v. Walker; Cheney v. Cameron; O’Brien v. Trenton; Adams v. Loughman; Re Morton and
St. Thomas; Grasett v. Carter; Wallis v. Smith.
The cases upon which the Court of
Appeal rested their judgment are:—
Feoffees
of Heriots Hospital v.
Gibson, which decides that the
mere exhibition of a plan at time of sale does not amount to a warranty.
Nurse
v. Ld.
Seymour where the circumstances
were very different from this case. The M.R. says in that case “you cannot have specific
performance of an agreement with a variation.”
Randall
v. Hall which was similar to the
last.
And Squire
v. Campbell where the plan was in no
way referred to in the lease, and the decision was that a contract could not be
inferred from the mere exhibition of a plan.
The
intention of the parties must be gathered from the instrument coupled with the
circumstances surrounding it at the time. Skull v. Glenister
Then if
the plan becomes part of the contract we must treat the whole question as a
matter of contract. North British Ry. Co. v. Tod .
The
following authorities also were cited: Espley v. Wilkes ; Roberts v. Karr
; Carr v. L.
& N.W.
[Page 175]
Ry.
Co.; Maddison v. Alderson.
Robinson Q.C. and Moss Q.C.
for the respondents.
The
case resolves itself into two questions:—
First.
What were the rights of the parties at the time the deed was made? and
Secondly.
What was the effect, upon those rights, of whatever may have taken place before
that?
There
is a preliminary matter as to the admissibility of evidence. A petition was put
in, and we objected to its being admitted without the documents attached, which
were referred to in the petition. His Lordship was entirely wrong in admitting
it.
The
appellant is entitled to a lane with his lot, but only to a lane abutting upon
it not to that in the rear.
For
distinction between streets and lanes see Rowe v. Sinclair. See also Vestry
St. Mary v. Barrett; and Hesketh v. Atherton
Local Board; Re Morton and
St. Thomas; North British Ry. Co
v. Tod; Randall v. Hall .
There
is no pretence that we made any representation; therefore there is no force in
the argument that if there was no contract there was a representation. Nurse
v. Ld. Seymour; Feoffees Heriots
Hospital v. Gibson; Squire v. Campbell; Leggott v. Barrett.
McCarthy
Q.C. in
reply cites Wigle v. Setterington; Adams v. Loughman; Fewster v. Turner; Palmer v. Johnson.
Sir
W.J. RITCHIE C.J.—This action is not for a
specific performance of the plaintiff’s
contract with the city of Toronto. He claims:—1. That the defendants
[Page 176]
should
be ordered to open up and maintain a lane in the rear of the lots fronting on
Huron street, as shown in the plan by which said lots were sold, and as shown
in the new plan registered as 380. 2. That the defendants may pay the plaintiff
the law costs incurred by him, and also the rental and taxes upon the said lot
which he had to pay to the said corporation; and 3. That the defendants may
also pay the plaintiff the costs of this suit.
I find it very difficult to say that
under the contract of sale the plaintiff did not acquire a right to, or
interest in, the lane shown by the plan in the rear of lots 11, 12, 13, 14 and
15, in view of its immediate contiguity to lot 10 on which it practically
abutted or bounded, and in connection therewith is what, to my mind, is the
self-evident fact that such a lane would be a most material advantage to lot 10
and one which could not but be patent to all parties bidding at such sale. If I
had to determine this question I should desire to give it further consideration
before deciding it against the plaintiff. But inasmuch as the plaintiff has not
chosen to rely on his executory contract, but has accepted in fulfilment
thereof a lease from the corporation after it had leased lots 11 to 15
inclusive to MacDonell, including the land on which is the lane claimed, and
the corporation having no right to dedicate any portion of the lots so leased
to MacDonell in derogation of his title, and the plaintiff having taken the
lease from the corporation with full knowledge of such lease to Macdonell and
with express reference to the registered plan No. 352, which shows that lots 11
to 15 were leased to MacDonell including the space plaintiff now claims to have
opened as a lane, I cannot see that he is in a position, assuming that under
the terms of the sale the exhibition of the plan would give him a right, as
against the corporation, to have had a lane as indicated on plan 380 opened, or
to give him a
[Page 177]
claim
for compensation in lieu thereof, or to give him any claim against MacDonell or
the corporation to have the lane now opened, inasmuch as, in my opinion,
plaintiff took the lease from the corporation in fulfilment of his contract for
what it was worth, subject to MacDonell’s right, which, by taking the lease as
he did, he, in my opinion, clearly recognized.
If the
plaintiff should be advised that he has any claim enforceable against the
corporation as distinct from the defendant MacDonell, I should be disposed to
reserve his right to proceed to make good such claim in a suit properly framed
for that purpose. In the meantime I think this appeal should be dismissed with
costs to the defendant MacDonell.
FOURNIER
J.—I agree with the conclusion
of the learned Chief Justice and with his last observation. I think the act of
the corporation was most unjust and would have sustained Carey’s contention had he not
taken a lease of the city property.
I think the appeal should be
dismissed.
HENRY
J.—I am of the same opinion. I
would be very glad if I could have arrived at a different conclusion. The plan
shows that the lot was bounded by a lane at one end, and that another lane
would be opened right in front of the land purchased by the plaintiff. In the
advertisement of the sale the land was bounded by a lane. I think the parties
who sold were bound by the plan, and should make good any damage sustained by
not opening the lane. But the purchaser knew that a plan had been filed showing
the lane not open. He must have known that the title was out of the corporation
and vested in MacDonell. The corporation could not convey to him. If he had not
taken that other deed he could have enforced his claim against the city.
I
think, however, that under the circumstances the
[Page 178]
appeal
should be dismissed.
TASCHEREAU
J.—I am also of the opinion
that the appellant is bound by the terms of his lease and that he is not
entitled to any rights not conferred on him by the same.
GWYNNE
J.—The corporation of the city
of Toronto being owners in fee of certain land, situate on St. George
street, Bloor street, Spadina avenue, the south side of Cecil street, the east
and west sides of Huron street and the north side of Baldwin street in the said
city, caused the same to be subdivided into building lots for the purpose of
offering them to competition for lease at public auction. The lots on the north
side of Baldwin street were delineated on a plan as ten in number, numbering
from 1 to 10, lot No. 1 being shewn to be 25 feet 6 inches in width, fronting
on Baldwin street and extending in a northerly direction along the east side of
Huron street 120 feet to a lane of 20 feet in width extending from Huron street
to the easterly limit of the block, at the northeasterly angle of the said lot
No. 10, which said lot No. 10, as also all the lots numbered from 1 to 10, were
shewn to be 21 feet in width fronting on Baldwin street, by 120 feet in depth
measuring northerly parallel with Huron street to the lane 20 feet in width
laid out along the rear of all of the said lots fronting on Baldwin street. The
lots on the south side of Cecil street were designated by the Nos. 16 to 25,
lot No. 16 being situate on the eastern extremity of the block, and lots 16 to
24 both inclusive being shewn to be each 21 feet in width and lot 25, on the
corner of Huron and Cecil street, 25 feet 6 inches in width fronting on Cecil
street by 120 feet in depth measuring in a southerly direction parallel with
Huron street to a lane 20 feet in width in rear of the said tier of lots
numbering from 16 to 25 inclusive, so laid out as fronting on Cecil street,
such lane extending from
[Page 179]
Huron
street to the eastern extremity of the block and the space between the lanes so
laid down as in rear of the said lots, fronting on Baldwin and Cecil streets
respectively was laid out as five lots numbering from 11 to 15, the former
being 21 feet 8 inches and the others 21 feet 9 inches each fronting on Huron
street, by 194 feet 6 inches in depth on lines drawn in an easterly direction
at right angles with Huron street to a lane, also 20 feet in width in rear of
the said lots numbering from 11 to 15 inclusive. The object of laying out these
lanes in rear of these several lots was to provide access, in the event of the
lots being leased separately to different persons from the rear of each lot to
the street upon which the lots respectively fronted, for the convenience of the
persons becoming lessees of such respective lots. The corporation caused an
advertisement of the contemplated auction sale to be published in the public
papers and in posters distributed through the city, as follows:—
City
property for sale or lease by auction at noon on Wednesday, the 18tb day
of May, 1881, at the auction rooms of F.W. Coate & Co. Leases will be
offered for twenty-one years, renewable, of the following valuable lots owned
by the city of Toronto and situate as under, that is to say.—
Huron street (between Cecil & Baldwin
streets),
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No. onPlan.
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Size.
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Situation.
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Reserveper foot.
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21 ft. 8 in. x 194 ft. 6
in.
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each 21 ft. 9 in. x
194ft. 6 in.
|
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each 27 ft. 2 in. x 128
ft. 8 in.
|
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Cecil
street running east from corner of Huron street.
|
|
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S.E. corner of Cecil and
Huron streets
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S. side of Cecil street,
E. of No. 25
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Baldwin
street running east from corner of Huron street.
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N.E. corner of Baldwin
and Huron sts.
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N. side of Baldwin
street, E. of No. 1
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PARTICULARS
RELATING TO LEASES OP THE ABOVE PROPERTIES.
The above properties will
be virtually equivalent to freeholds in the hands of lessees, who will hold for
21 years, renewable, rental to be paid half yearly at the office of the City
Treasurer. The first payment to be made in advance by way of deposit at time of
sale.
Lessees of two or less than
two lot3 on St. George or Bloor streets to erect within two years a brick
residence not less in value than $5,000.
The lot on Spadina Avenue
will, if desired, be put up in two half lots as the north and south half of
said lot.
The sizes of lots above
given are to be read as being according to said measurements “more or less.”
LANES RUN IN REAR OF THE
SEVERAL LOTS. Further terms and particulars made known at time of sale. For
further particulars apply at the City Hall where plans and diagrams of the
several properties can be seen.
Chairman
Committee on Property.
City Hall, April 20, 1881.
In the conditions of sale it was
provided that all bids should be at a frontage rate per foot per annum upon the
lots offered, as the same appear upon the plan or survey produced, each lot
being subject to a reserved bid.
At the sale the defendant MacDonell
was the highest bidder for, and as such became the purchaser of, the leasehold
interest offered for sale in the lots 11 to 15 on the east side of Huron
street; other persons became purchasers of all the other lots fronting upon
Baldwin and Cecil streets respectively and numbering from 1 to 10 on Baldwin
street and from 16 to 25 on Cecil street. The plaintiff being the highest
bidder for lot No. 10, fronting on Baldwin street, signed his contract for that
lot at the foot of the conditions of sale in the terms following:
I hereby agree to lease the
property described in the plan hereto annexed and marked A as lot No. 10, on
the north side of Baldwin street subject to the foregoing conditions of sale
for the sum of one 30/100 dollars per foot frontage per annum on Baldwin street.
The defendant MacDonell having become
the purchaser of the lots 11 to 15 inclusive and having no occasion for a lane
in rear of those lots, but considering that the keeping it open as a lane would
be a nuisance to him and to the corporation, made application to the city
authorities, before any plan of the several lots was registered, to have the
space designed for a lane in rear of these lots thrown into the respective lots
and to have a lease given to him of the lots as including within their area the
lane in rear which had been designed for the purposes of affording access to
those respective lots in the rear. This application appearing to be reasonable
was concurred in and a plan was prepared under the direction of the city
authorities showing no lane in rear of the lots numbering 11 to 15 on Huron
street but shewing lanes 20 feet in width widening at their eastern extremity
to twenty-five feet in rear of the lots fronting on Cecil and Baldwin streets,
which plan, duly certified under the corporate seal and signed by the Mayor and
City Treasurer as representing correctly the lots and lanes, they caused to be
registered in the registry office of the city of Toronto on the 9th day of
June, 1881, under the provisions of the revised statutes of Ontario in that behalf
as plan No. 352. On the fourteenth of the same month of June the corporation
duly executed, under their corporate seal and signed by the Mayor and Treasurer
of the city, an indenture of lease whereby, in consideration of the rents,
covenants and agreements therein reserved and contained, they demised and
leased unto the defendant MacDonell, his executors, administrators and assigns,
the said lots 11, 12, 13, 14, and 15, according to the registered plan No. 352 habendum
for the term of twenty-one years, to be computed from the first day of
July, 1881. The purchasers at the auction held on the 18th of May of all the
other lots fronting on Cecil street and Baldwin street, except the purchaser of
lot No. 10 on
[Page 182]
Baldwin street, accepted leases for
like terms of twenty-one years of the lots bid for by them respectively, in
each of which leases their several lots were described as being according to
the plan No. 352. The plaintiff does not appear to have applied for a lease of
his lot No. 10 fronting on Baldwin street until early in the year 1882, and
when he did he refused to take his lease according to said plan 352, insisting
that by the terms of his contract of the 18th May, 1881, he had an interest in
the lane as originally designed in rear of lots 11 to 15 on Huron street of
which, as he contended, he could not be deprived, and that the corporation had
no right to register the plan No. 852 not shewing such lane but shewing the
said lots 11 to 15 leased to Mr. MacDonell to extend across the space as
originally designed for a lane in rear of those lots.
The plaintiff having brought the
matter under the consideration of a committee of the city council called the
property committee, the defendant MacDonell presented a petition in the shape
of a letter addressed to the Mayor and Aldermen of the city in council
assembled remonstrating against any attempt to prejudice his rights. In this,
his petition, he referred to three certificates of the authorities which he
transmitted with, and made part of, his petition in support of his contention.
One of these certificates was that of the city commissioner, another of the
city treasurer, the third of the surveyors who had been employed by the city to
subdivide the block of land into the building lots offered at auction in May,
1881, and who had certified the plan No. 352 as correct in accordance with the
provisions of the registry act chapter one hundred and eleven of the revised
statutes of Ontario, section 82, sub-section 2. These certificates
were by the learned judge of first instance detached from the defendants
petition, which was received in evidence without the accompanying certificates,
but as the certificates were
[Page 183]
so referred to in the petition as to
be made part thereof they should not, I think, have been separated from it but
should have been received quantum valeant. That of the city commissioner
is as follows:—
CITY
COMMISSIONERS OFFICE,
TORONTO,
21st February, 1882.
I, Emerson Coatsworth, of
the city of Toronto, City Commissioner, do hereby certify that I have examined
the plan of sub-division of the block of land owned by the city lying on the
east side of Huron street between Baldwin and Cecil streets, and state that I
find the allowance for lanes in rear of the lots fronting on Baldwin and Cecil
streets respectively, ample and sufficient for all purposes relating to the
said lots, and I further state that the permission to the lessee of the lots on
Huron street referred to to enclose the lane in rear thereof is undoubtedly in
the interests of the city, as thereby preventing the facility for nuisances
being deposited clandestinely and saving extra labor to this department in
keeping same clean, and there being but one lessee of all the lots for which
said lane is laid out it cannot prejudice any other person whomsoever to have
it closed.
The
certificate of the City Treasurer who had also signed the plan, No. 352, for
registration on behalf of the corporation is as follows:—
OFFICE
OF THE CITY TREASURER,
TORONTO,
23rd February, 1882.
I, Samuel Bickerton Harman,
of the city of Toronto, City Treasurer, certify that the plan for the sub
division of the blocks of land belonging to the city lying east of Huron street
between Baldwin and Cecil streets was prepared under my supervision for the
purpose of laying off same into building lots with lanes in rear of the lots
fronting on said streets respectively, such lanes being intended to be
appurttenant respectively to the tier of lots lying between them and the
streets on which such lots fronted. The lanes in rear of the tier of lots
fronting on Baldwin and Cecil streets were made of sufficient width to serve
every practicable purpose of lanes for those lots respectively, without regard
to the lane between them in rear of the lots fronting on Huron street, which
was intended for the latter named lots only. I fail to see how any one has any
right or interest to interfere in a matter which seems to me to affect only the
purchaser of the lots on Huron street.
The certificate of the surveyors who
laid out the lots for the corporation, is as follows:—
We, Unwin & Sankey,
formerly Wadsworth & Unwin, of the city of Toronto, Land Surveyors,
hereby certify that the plan of sub-division of the block of land owned by the
city of Toronto lying on the. east side of Huron street between Baldwin and
Cecil streets prepared by us, shows the allowance for lanes in rear of the lots
fronting on said streets respectively the lanes in rear of the lots on Baldwin
and Cecil streets being wide and amply sufficient for all purposes relating to
said lots. We further state that the lane originally proposed to extend along
the rear of the lots fronting on Huron street was designed for the benefit of
the lessees of those lots solely; and the lessees of lots fronting on Baldwin
and Cecil streets could not be entitled to any right thereto practically j and
the closing up the said lane can only be a matter of business between the city
and the lessee of the lots on Huron street.
Provincial
Land Surveyors.
Toronto, 21st February,
1882.
While
these certificates cannot be looked to as affording any evidence in this action
in favor of the defendants of the truth of the matters therein alleged they
may, I think, as representations made to the corporation by their officers of
the intention of those officers in doing on behalf of the corporation the acts
therein referred to, be looked at as a matter before the corporation, and as
part of the res gesta in respect of which the subsequent action of the
corporation in relation to the subject matter was taken, and to throw some
light upon such action if it should prove to be of doubtful construction; and
the action taken, we find, to have been that they caused to be prepared for
registration a new plan not corresponding with the one in existence at the time
of the auction, but on which the space comprising the rear twenty feet of the
lots 11 to 15 as leased to MacDonell, together with the angle cut off from lots
11 and 15, as shown on plan 352, is shown to be cut off with the words “lane to be opened” thereon, and this plan is
registered in the registry office of the city of Toronto with a certificate
thereon under the corporation seal, and signed by the same
[Page 185]
mayor of the city as had signed plan
352 and by the same city treasurer, and the firm of surveyors who had prepared
and signed that plan for registration, and had signed the above certificate
laid before the council.
We certify that this plan
represents correctly the manner in which we have dedicated and set apart the
rear 20 feet of lots 11 to 15 inclusive for the purposes of a public lane.
It is to be observed that the lane
here spoken of as “to be opened” is, in this certificate,
spoken of as being at present part of lots 11 to 15. Upon this plan being
registered the plaintiff on the same day that it was registered, namely, the 19th
day of May, 1882, accepted a lease from the corporation executed under the
corporate seal demising to him for 21 years “lot No. 10, on the north side of
Baldwin street according to registered plans Nos. 352 and 380,” and he has filed his
statement of claim wherein after alleging the auction sale of May, 1881, and
that at such sale, relying upon the plan and conditions of sale then produced
he bid for and became the purchaser of lot No. 10 on the north side of Baldwin
street.
That on the 19th day of May, 1882, the
defendants, the said corporation, executed a lease to the plaintiff of the said
lot number ten in which lease the said lot is described as being according to a
plan of said property registered in the registry office of the city of Toronto
numbered 380.
That the said plan numbered 380 is
identical with the plan produced at the day of sale and according to which the
plaintiff purchased the said lot.
That on the 14th day of June, 1881,
the defendants, the said corporation, executed a lease to the defendant,
Alexander MacDonell, and granted him lots 11, 12, 13, 14 and 15.
That the said lots are described in
the deed to the said Alexander MacDonell as extending over the said lane
already described as being shewn on the map or plan between the said lots
11,12,13,14 and 15 and the
[Page 186]
property of the Hon. George Brown, and
no mention is made in the said lease of the reservation of the said lane or of
any right of way by virtue of the said lane, but the said lots were sold as
designated on the said plan and the said Alexander MacDonell had notice of the
said plan and of the contract of the defendants, the said corporation, to lease
the said lot, number ten to the plaintiff according to the said plan. That the
said Alexander MacDonell has caused the said lane lying in rear of the said lots
11, 12, 13, 14 and 15 to be closed up. And the plaintiff alleges that he has
done so with the approval and authority of the defendants, the said
corporation.
That the plaintiff has applied both to
the defendants and to the said Alexander Macdonell to have the said lane
re-opened and the obstruction removed therefrom, in order that he, with the
other lessees, might have the full, free and unrestricted use of the said lane,
to which he and they are entitled by virtue of the said lease to enjoy.
And the plaintiff claims that by
virtue of the said conveyance to him he is entitled, as owner of the said lot,
to have a right of way over the said lane lying in rear of the said lots 11,
12, 13, 14 and 15, and to have the said lane kept open and unobstructed, in
order that he might not be prevented or interrupted in the free use of the
same. And the plaintiff prays that the defendants should be ordered to open up
and maintain a lane in rear of the said lots fronting on Huron street, as shown
on the plan by which the said lots were sold and as shown on the new plan
registered as plan 380.
The plaintiffs claim is not for
specific performance of his contract of the 18th May, 1881, and in virtue of
that contract to be declared to be entitled to a perpetual right of way over
the rear 20 feet of the land leased to MacDonell in June, 1881, as lots 11, 12,
13, 14 and 15, on the east side of Huron street as and for a lane to
[Page 187]
be maintained in rear of what he
insists to be the true lots of those numbers. It is only as not forming a part
of lots 11, 12, 13, 14, and 15 on the east side of Huron street, and as being
in point of fact in rear of the true lots of those numbers, that the plaintiff
could have asserted any claim whatever, if he ever had any to a right of way
over the land in question. The plaintiffs claim, however, as asserted in his
statement of claim is—that having entered into a
contract with the corporation to take a lease of a piece of property
designated, on a plan exhibited to him at the time of the contract being
entered into, as lot No. 10 on the north side of Baldwin street, and such
contract having been specifically performed, as he alleges, by a lease dated
the 19th May, 1882, executed to him by the corporation wherein, as he also
alleges, the said property is described as said lot number ten according to a
registered plan 380, which plan, as he further alleges, is identical with the
plan produced when he entered into the contract, he is entitled to have a
portion of lots 11, 12, 13, 14, and 15 on the east side of Huron street, which
were leased by the corporation to the defendant MacDonell in June, 1881, opened
as a lane so as give to the plaintiff full, free, and unrestricted use thereof
as a lane, to which he claims to be entitled in virtue of the lease executed to
him on the 19th May, 1882.
At the
trial the defendants called the three witnesses who gave the certificates above
set forth to prove the matters of fact therein alleged to be in point of fact
true, but an objection having been taken to such evidence the learned judge, by
whom the case was tried, rejected it as inadmissable and he made a decree in
favor of the plaintiff in accordance with the prayer of his statement of claim;
thereby virtually holding that whatever may have been the intention of the
corporation of the city of Toronto in laying out lanes in rear of the several
lots as stated in the advertisement of the particulars
[Page 188]
of the several lots, the leasehold
interest in which were intended to be offered for sale at auction, the
plaintiff was entitled in virtue of his lease of the 19th May, 1882, as set out
in his statement of claim to a right of way over the rear twenty feet of the
lots 11, 12, 13, 14 and 15 on the east side of Huron street leased to the
defendant MacDonell in June, 1831. This judgment having been reversed by the
Court of Appeal for Ontario, from the judgment of that court the plaintiff now
appeals.
After the execution by the corporation
of their lease to MacDonell of June, 1881, in which the lots 11, 12, 13, 14 and
15, are described as they are shown on registered plan 352, which shows them to
extend to the utmost limit of the land owned by the corporation there, that is
to say, to the distance of 214 feet 6 inches easterly from the eastern limit of
Huron street, it was not competent for the corporation by any act of theirs to
detract from their lease or to appropriate any part of the land so leased, so
long as the interest granted by such lease should continue, to the purposes of
a public or of a private lane. They could not by registering a plan declaring
such intention, and exhibiting thereon a lane as “to be opened” and laid out on any part of the land
so leased, defeat, or in any manner prejudice, their lease to MacDonell. The
corporation must be taken to have known that they could not do so, but that
they had no intention of presuming to attempt to do so appears, I think, as
well from the plan 380 itself as from the lease to the plaintiff, which he
accepted in fulfilment of his contract of May, 1881. Whatever may have been the
idea of the parties who procured the registration of plan 380, that plan upon
its face shows that all that was intended was a dedication in the future, and
that although the time when the lane should be opened in pursuance of such
dedication is not stated, it could not be during the continuance
[Page 189]
of the
term created by the lease to MacDonell. That the plan was not intended to have
been, if it could be, in prejudice of that lease or in derogation from the plan
352, which was the plan registered according to law upon which the boundaries
of the lots leased to MacDonell were shown, appears from the certificate on the
plan 380, whereby it is certified by the corporation authorities, that “this plan represents correctly
the manner in which we have dedicated and set apart the rear twenty feet of
lots 11 to 15 inclusive for the “purpose
of a public lane.” The land so said to be
dedicated as a “lane to be opened” is stated at the time of
the registration of the plan 380, to be the rear 20 feet of lots 11 to 15,” thereby affirming the plan
352 which showed it to be so. And yet it is only by establishing the land
dedicated for the purposes of a lane never to have been part of lots 11, 12,
13, 14 and 15 that the plaintiff could claim, or pretend to have, any right of
way whatever in or over the same.
Then the lease executed to the
plaintiff on the 19th of May, 1882, and which he has accepted in fulfilment of
his contract of May, 1881, and in virtue of which lease alone the plaintiff now
rests his claim to the right of way, instead of describing the property leased,
as alleged in the plaintiffs statement of claim, as being lot No. 10, on the
north side of Baldwin street, according to registered plan No. 380, describes
it as being lot No. 10, on the north side of Baldwin street according to
registered plans numbers 352 and 380. Moreover the plan 380 instead of being,
as alleged in plaintiffs statement of claim, indentical with the plan exhibited
to the plaintiff at the time of his entering into the contract of May, 1881,
adopts plainly the deviation from that plan in the width of the lane in rear of
lot No. 10 on the north side of Baldwin street and in the rear of lot No. 16 on
the south side of Cecil street, as the same is represented on the plan 352.
[Page 190]
So that it plainly appears that all
the plans 352 and 380, taken together, shew, is that the piece of land which
upon plan 380 has inscribed “lane to be opened,” is part of lots 11, 12,
13, 14 and 15, as shewn on plan 352, and which (as is part of the matter stated
in the statement of claim,)was leased to MacDonell in June, 1881, and which
could not be opened by the corporation so long as the term for which those lots
were granted to MacDonell should continue; and it is in this state of facts
that the plaintiff on the 19th May, 1882, accepted as in fulfilment of his
contract of May, 1881, a lease for 21 years of lot No. 10 on the north side of
Baldwin street, which lease, upon the basis on which the plaintiff rests his
right to the way which he claims, must be held to be subject to the rights of
the defendant Macdonell in the land leased to him as forming part of lots 11,
12, 13, 14 and 15, and which these plans 352 and 380 conjointly and each
separately represent to be parts of those lots. The plans represent them to be
so, the lease refers to and recognizes the plans, and the plaintiff cannot, in
virtue of the lease upon which he bases his claim, insist that the land over
which he claims the right of way is not part of these lots, but on the contrary
is in fact a piece of land in rear of and outside of those lots. The whole gist
of the plaintiff’s contention is, that in
virtue of his contract of May, 1881, to lease the lot described on a plan said
to be annexed to the contract as lot No. 10 on the north side of Baldwin
street, he thereby contracted for and became entitled to a right of way over a
piece of land shown on the same plan as a lane in rear of lots on the east side
of Huron street; if that contention be well founded, a fortiori when he
accepted a lease under said plan in fulfilment of his contract, he can only
claim whatever that lease and the plans therein referred to give him, and as
the lot No. 10 on the north side of Baldwin street
[Page 191]
is therein described as being the lot
of that number and street, “according to registered
plans 352 and 380” his rights must be taken
to be governed by plan 352 as well as by plan 380, or wholly by 352 if the
corporation could not by registering plan 380 detract from their lease of lands
particularly designated on the plan 352 as lots 11, 12, 13, 14 and 15 on the
east side of Huron street. The plaintiff can, therefore, have no right of way
whatever in virtue of his lease of May, 1882, over land shown upon plan 852,
(as indeed it also is by plan 380,) to be part of the above lots on the east
side of Huron street leased to MacDonell in June, 1881; his claim, therefore,
as asserted in his statement of his claim under that lease cannot be sustained.
But I am of opinion that the plaintiffs contention as founded on his contract
of May, 1881, assuming it to be yet unexecuted, is not well founded. That
contract did not in terms give or profess to give to the plaintiff a right of
way over the piece of ground in rear of the lots on Huron street, nor did it
deprive the corporation of the right to throw that piece of ground into the
lots on Huron street. All that the plaintiff contracted for was a lease of the
piece of ground shown on the plan exhibited at the auction as lot No.10 on the
north side of Baldwin street. That is to say, a lot as described in the
advertisement of the particulars of the auction sale as being situate on the
north side of Huron street, and east of Huron street and numbered ten having a
frontage of 21 feet on Baldwin street and a depth of 120 feet to a lane, 20
feet in width extending along the rear of the several lots numbered from 10 to
1 inclusive on the north side Baldwin street to Huron street. The plan as
referred to in the contract is not imported into it further than to show the
boundaries of lot No. 10, and the access afforded to its rear from Huron street
by the lane of twenty feet in width, which the particulars of sale stated to be
in rear of the
[Page 192]
several lots to be offered at the
auction. The plaintiffs contract gives him no interest whatever in the pieces
of land originally designed to be lanes in rear of the lots 11 to 15 on Huron
street, or in rear of lots 16 to 25, on Cecil street, nor any right to prevent
the corporation from altering the dimensions of those lots by throwing the
pieces designed as lanes in rear of them into lots; the language of Lord
Cottenham in Squire v. Campbell, and of Lords Cottenham and
Campbell in the North British Railway Co. v. Tod also reported in 10 Jur.
975, and of Sir J.L. Knightbruce in Randall v. Hall, and the other authorities
referred to by Chief Justice Hagarty are conclusive on this point. As the
present case, however is, not for specific performance of an unexecuted
contract, but as the claim asserted by the plaintiff is based wholly on the
terms of the lease which he has accepted as in fulfilment of his contract, it
is sufficient to say that his lease confers upon him no such rights as he
claims, and he has no right to interfere with the lease executed to the
defendant MacDonell in June, 1881.
This
appeal therefore must be dismissed with costs.
Appeal dismissed with
costs.
Solicitors for appellants:
Cameron, Caswell & St. John.
Solicitors for respondent
MacDonell: Moss, Falconbridge & Barwick.
Solicitor for respondents,
City of Toronto: W.G. McWilliams.
Solicitor for respondents
Bennetts: W. Mortimer Clarke.
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