Supreme Court of Canada
Osgoode (Township) v. York, (1895) 24 S.C.R. 282
Date: 1895-03-11
The Corporation of the Township of Osgoode and Others (Defendants) Appellants;
and
James York the Elder, and Others (Plaintiffs) Respondents.
1894: October 23; 1895: March 11.
Present: Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Municipal corporation—Ditches and Watercourses Act, R.S.O. [1887] c. 220—Requisition for drain—Owner of land—Meaning of term “owner.”
By sec. 6 (a) of the Ditches and Watercourses Act of Ont. (R.S.O. [1887] c. 220) any owner of land to be benefited thereby may file with the clerk of a municipality a requisition for a drain if he has obtained “the assent in writing thereto of (including himself) a majority of the owners affected or interested.”
Held, affirming the judgment of the Court of Appeal, that “owner” in this section does not mean the assessed owner; that the holder of any real or substantial interest is an “owner affected or interested”; and that a mere tenant at will can neither file the requisition nor be included in the majority required.
Quarre.—If the person filing the requisition is not an owner within the meaning of that term are the proceedings valid if there is a majority without him?
APPEAL from a decision of the Court of Appeal for Ontario, reversing the judgment of the Divisional Court in favour of the defendants.
The action in this case was brought for a declaration that an award under the Ditches and Watercourses Act (R.S.O. 1887, ch. 220) was made without jurisdiction because the requisition filed was not accompanied by the preliminaries referred to in section 6 of the act.
[Page 283]
The requisition was filed by one George Comrie, and among the lands to be affected by the proposed drain were lots for which the plaintiff James York the elder, was assessed. Some time before the filing of the requisition portions of the last mentioned lots had been conveyed by said plaintiff to James York the younger and Isaac York who are also plaintiffs in the action, and the question for decision is whether or not the said two Yorks were owners under the act and whether or not Comrie was an owner he being in possession of a part of the land to be affected but the legal title thereto being in his father. It was admitted that if Comrie was counted in and the two Yorks out there was a sufficient majority under section 6 (a) of the act for the requisition to be filed.
The Divisional Court held that an owner under the act was one in whom the property was for the time being beneficially vested and who had the occupation or usufruct of it and that George Comrie was such an owner. The court also held that the assessment roll was also a test of ownership, and James York the elder being assessed for the property conveyed to his sons the latter were not owners under the act. The Court of Appeal reversed these holdings and gave judgment for the plaintiffs. The defendants appealed to this court.
Henderson and MacCracken for the appellants referred as to the meaning of owner in the statute to Washburn on Real Property, and contended that Comrie was a beneficial owner according to the facts in evidence, citing Dillwyn v. Llewelyn.
O’Gara Q.C. and MacTavish Q.C. for the respondents referred to In re Flatt and the Counties of Prescott and Russell.
[Page 284]
The judgment of the court was delivered by:
GWYNNE J.—This appeal must be dismissed. The question is as to the validity of an award purporting to be made by the engineer of the municipality of the township of Osgoode, under the provisions of ch. 220 of the revised statutes of Ontario, entitled “an Act respecting Ditches and Watercourses” The question arises under section 6, subsec. a, of that act, whereby it is enacted that where parties interested in a ditch required by an owner of land for the drainage of his land shall not be able to agree upon the proportion to be borne by such owner of land to be benefited by the proposed ditch:
Any owner may file with the clerk of the municipality in which the lands requiring such ditch or drain are situate, a requisition in a form supplied by the act, shortly describing the ditch or drain to be made, &c., &c., and naming the lands which will be affected thereby and the owners respectively and requesting that the engineer appointed by the municipality for the purpose be asked to appoint a day on which he will attend at the time and place named in the requisition, &c., &c.
Provided nevertheless that when it shall be necessary to obtain an outlet that the drain or ditch shall pass through or partly through the lands of more than five owners (the owner first mentioned in this section being one) the requisition shall not be filed unless
(a) Such owner shall first obtain the assent in writing thereto of (including himself) a majority of the owners affected or interested.
Upon the 25th of August, 1891, one George Comrie, claiming to be the owner of the south-west quarter of lot no. 27, of the 7th concession of the township of Osgoode, and as such entitled to avail himself of the above section, filed a requisition with the clerk of the municipality whereby, representing himself to be owner of the said south-west quarter of said lot no. 27, he required a ditch to be made through such lot and therein alleging that it would be necessary to continue the ditch through certain other lots mentioned therein, among others, the north-west quarter of the same lot no. 27 of which his father William Comrie was named as owner, and the west half of lot no. 28, in the 7th
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concession, and the north half of lot no. 27, in the 6th concession, whereof the appellant James York was named as owner, and alleging further that as the said owners had failed to agree upon the respective portions of the proposed work, they required that the engineer appointed by the municipality for the purpose should name a day when he would attend at the locality of the said proposed drain and examine the premises, hear the parties and make his award under the provisions of the statute. This requisition was signed by George Comrie and his father and four others of the persons named as owners of the respective lots named, such owners including the municipality as owners of the roads to be crossed or benefited by the proposed ditch being in all ten in number.
The award made by the engineer upon its face professed to have been made in pursuance of the above requisition, so that several matters referred to in the argument as having taken place prior to the presentation of the said requisition can have no bearing upon the present question which must be determined upon the sufficiency of the above requisition to set the act in motion, the contention of the appellants being that as it was not signed by a majority of the owners of the lands affected by or interested in the proposed drain, the award affects the south half of lot 28 in the 6th concession, not named in the requisition at all, or professes so to do, of which the appellant Isaac York claims to have then been and to be the owner. The appellant James York the younger claims to have then been and to be the owner of the north half of lot no. 27, in the 6th concession, set down in the requisition as having then been owned by the appellant James York, and who although being as stated in the requisition the owner of the west half of lot no. 27, in the 7th concession, did not sign the requisition Now it is admitted that if James York the younger and Isaac
[Page 286]
York were respectively at the time of the presentation of the said requisition owners of the said respective lots claimed by them, and if George Comrie who was the person who as owner of the lot of which he was named to be owner was asserting the right to set the act in motion was not such owner, then the requisition was not signed by a majority of the owners of lands affected or interested as required by the act, and in such case the award which is impeached must be set aside as unauthorized by the act. Indeed it seems to me that if George Comrie who was the person who as the one requiring the drain to be made was the originator of the requisition was himself not an owner, that alone would be sufficient to invalidate proceedings originated by him, and taken upon his requisition, but it is not necessary to proceed upon this ground alone concurring as we do entirely in the judgment delivered by Mr. Justice Osler, that James York the younger and Isaac York were respectively owners of the lots whereof they claim to have been owners and must be counted as such in estimating the sufficiency of the said requisition, and that George Comrie was not such owner of the lot whereof he claimed to be the owner. It is difficult to see how the municipality are to assent in writing to the requisition to be presented to their clerk before it can be presented, but however that may be we entirely agree with the judgment of the Court of Appeal that they cannot be as such assenting parties to the requisition presented by George Comrie upon which the award which is impeached was made. The appeal must be dismissed with costs.
Appeal dismissed with costs.
Solicitors for appellants: Belcourt, MacCracken & Henderson.
Solicitors for respondents: O’Gara, MacTavish & Gemmell.
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