Doyle v. McPhee, (1895) 24 SCR 65

Supreme Court of Canada

Doyle v. McPhee (1895) 24 SCR 65

Date: 1895-01-15

Patrick Doyle (Defendant)

Appellant

And

Alexander G. McPhee and Henry F. Donaldson (Plaintiffs)

Respondents.

1894: Nov. 5; 1895: Jan. 15.

Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Deed—Description of land—Extent—Terminal point—Number of rods—Railway Co.

A specific lot of land was conveyed by deed and also: "a strip of land twenty-five links wide, running from the eastern side of the aforesaid lot along the northern side of the railway station about twelve rods unto the western end of the railway station ground, the said lot and strip together containing one acre, more or less."

Held, reversing the decision of the Supreme Court of Nova Scotia, Taschereau J. dissenting, that the strip conveyed was not limited to twelve rods in length, but extended to the western end of the station, which was more than twelve rods from the starting point.

Appeal from a decision of the Supreme Court of Nova Scotia affirming the verdict for plaintiffs at the trial.

The nature of the question to be decided is sufficiently stated in the above head-note.

Ross Q.C. for appellant.

McInnis for respondents.

The judgment of the majority of the court was delivered by

GWYNNE J.—The case turns wholly upon the question whether a piece of land granted by one Henry Donaldson to one James Sims, by deed bearing date the 22nd day of November, 1867, under which the

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defendant claims, is to be limited by the number of rods stated in the deed from an undisputed starting point, or by the point indicated in the description as that intended to be reached, and in my opinion there can be no doubt that the latter must govern. It was probably not known at the time how much land the railway company would acquire at the station in question. The deed grants a piece of land near the Enfield station of the Intercolonial Railway, in the province of Nova Scotia. As to the limits of this piece of land there is no dispute. The deed then proceeds to grant a further piece by the following description:

Also a strip of land twenty-five links wide, running from the eastern side of the aforesaid lot along the northern side of the railway eastward about twelve rods unto the western end of the railway station ground, the said lot and strip together containing one acre, more or less.

There is no dispute as to the site of the eastern side of the piece of land first granted by the deed. The question is merely whether the piece secondly described is to be limited by the precise distance of twelve rods from the eastern limit of the piece first granted, or to be continued until the western end of the railway station ground at Enfield is reached. As to what is the western end of the station ground mentioned in this description, the evidence admits of no doubt that it is a line bounding on the west a greater width of land taken at the station for station grounds, and which crosses the piece of land 25 links in width granted by the deed if, in the words of the deed, the land granted reaches the west end of the station grounds, What is granted is plainly a piece of land 25 links in width, the southerly limit of which is the northerly limit of 100 feet in width taken outside of the station grounds for the roadway, which northerly limit of the railway the piece granted goes "along"

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until it reaches the western limit of the station grounds, which must therefore be a line along the west end of the station ground and crossing the space 25 links in width and so terminating the piece intended to be granted, and which is, as I think, plainly expressed in the deed. This view is confirmed by the description contained in the deed under which the plaintiff claims, which, while it shows that the plaintiff had not conveyed to him the piece in dispute, affirms that it had been conveyed to Sims.

The plaintiff claimed under a deed from one Henry F. Donaldson, who claimed under the said Henry Donaldson, bearing date the 14th day of October, 1878, in which the piece of land thereby conveyed is described as follows:

Beginning at the northern side of the railway ground at a point situate ten links from the south-east angle of the saloon occupied on the 1st of September, 1868, by the said Henry F. Donaldson, from thence to run north sixteen degrees west one chain and seventy-five links, thence south twenty-three degrees west four chains and thirteen links to James Sims' lot, thence by the said James Sims' lot south two degrees west one chain and sixty-five links to the north side of the said James Sims' road, thence by the said James Sims' road and the railway ground eastward four chains and ninety links to the place of beginning.

The point of commencement of this description is, by the plan in evidence, plainly shown to be in the northern limit, not of the space of 100 feet in width occupied by the railway outside of the station grounds, but the northern limit of a space of much greater width occupied as station ground at Enfield and north of the northern limit of the Sims's road produced eastward, and such point is shown to be ten links only distant from the south-east angle of the building mentioned and shown on the plan. Then the point reached in the description and spoken of as "the northern side of the said James Sims's road," is the precise point of

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commencement and northern limit of the piece of land 25 links in width granted to Sims by the deed of November, 1867; from that point in the northern limit of said James Sims's land, the description of the land conveyd to the plaintiff proceeds "thence by," (that is, along) "the said James Sims's road eastward four chains and ninety links to the place of beginning," which being a point in the northern limit of the station ground and north of the northern limit of said James Sims's road, the description plainly indicates that the course eastward from the point reached in the northern side of the said James Sims's road is along such northern side of the said road, that is, of the piece of 25 links in width granted by the deed of November, until the northern limit of that road or piece of land so granted intersects the western limit of the station ground, and thence along such limit until the place of beginning is reached.

This appears to be the plain intention of both of the deeds, and the appeal therefore must be allowed with costs, and judgment be ordered to be entered for the defendant in the court below.

TASCHEREAU J.—I am not very clear as to this case. However, the appellant has failed to convince me that there is error in the judgment. I would dismiss the appeal.

Appeal allowed with costs.

Solicitor for appellant: W. A. Lyons.

Solicitor for respondents: W. R. Foster.