Supreme Court of Canada
Gooderham v. Toronto (City), (1895) 25 S.C.R. 246
Date: 1895-03-11
George Gooderham and Charles Stark (Plaintiffs) Appellants;
and
The Corporation of the City of Toronto (Defendant) Respondent.
1894: October 27; 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.
Public highway—Registered plan—Dedication—User—Statute, construction of—Retrospective statute—46 V. c. 18 (O).—Estoppel.
The right vested in a municipal corporation by 46 V. c. 18 (O) to convert into a public highway a road laid out by a private person on his property, can only be exercised in respect to private roads, to the use of which the owners of property abutting thereon were entitled.
APPEAL from a decision of the Court of Appeal for Ontario, affirming the judgment of the Divisional Court by which a perpetual injunction to prevent the city from entering on plaintiffs’ land was refused.
A full statement of the facts and questions at issue in this case appears in the judgment of the court delivered by Mr. Justice Grwynne.
Nesbitt and McKay for the appellants. At common law exhibiting a plan of streets and even selling lots according to said plan would not amount to dedication. Carey v. City of Toronto; Heriot’s Hospital v. Gibson.
There must be an acceptance by the public. Cubbit v. Maxse.
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The city cannot invoke the aid of the statute 50 Vic. ch. 25, sec. 62 (O.) as its requirements have not been complied with.
Robinson Q.C. for the respondent referred to Rowe v. Sinclair.
The judgment of the court was delivered by:
GWYNNE J.—The plaintiff Grooderham may be regarded as sole appellant and sole plaintiff, for his co-plaintiff Stark claims only as his tenant.
This was an action instituted by the plaintiff to restrain the city of Toronto from entering upon and trespassing upon land described in the statement of claim as being composed of one large field containing about 22½ acres which, for a period exceeding 30 years, had been fenced in on all sides except the south where the land abuts upon the waters of Ashbridge’s Bay, being a part of lot no. 14 in the broken front of the township of York, lying south of South Park Street or Eastern Avenue in the city of Toronto and bounded on the east by the line dividing lot no. 13 from lot no. 14 in the broken front of the said township, and on the south by the boundary line established between the several owners of the broken front lots and the grant by the Provincial Government to the city of Toronto, and on the west by lands owned by John Smith and leased to Gooderham and Worts, limited, of which piece of land so inclosed and fenced in as one field for a period of over 30 years the plaintiff Gooderham claimed to be seized in fee simple, save as to a small piece of about 1/5 of an acre near the south-west corner of the said field of which he claimed to be possessed as tenant thereof for a period of 42 years from the 22nd day of January, 1885, from John Smith the owner thereof in fee. The defendants claim the right to enter upon the said land
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and to take possession of parts thereof which, they claim, do constitute certain public streets and highways in the city of Toronto placed under the jurisdiction and control of the defendants by the act known as the Municipal Act and the acts passed in amendment thereof.
The case may be said to rest wholly upon certain admissions made by the respective parties to the suit, although much evidence was adduced. The plaintiff's case was opened upon an admission signed by the counsel and solicitor of the defendants as follows:
That the plaintiff George Gooderham is, and those from whom he has derived title by conveyance have been for the past twenty-five years, in occupation of part of the east half of lot number fourteen in the broken front concession in the township of York, bounded on the east by the line between lots numbers thirteen and fourteen in the said township; on the south by the northern boundary line of the lands granted by the Crown to the defendants by patent dated May 18th, 1880; on the west by lands owned by one John Smith and the Grand Trunk Railway Company; and on the north by the south limit of Eastern Avenue, formerly South Park Street. That the said lot comprises one large field containing about twenty-two and one-half acres, and fenced in on the north, west and east sides, and that such field has been so fenced for the past twenty-five years.
The place where, and the only place where, the Grand Trunk Railway bounds the said field on the west, as is said it does in the said admission, is where, as appears by the plan hereinafter mentioned produced in evidence, the fence along the northern side of the said field, that is, along the southern limit of South Park Street, comes in contact with the eastern limit of the said railway.
The learned judge, Mr. Justice Ferguson, who tried the case has found in his judgment that in point of fact it was established in the evidence before him that until the making of the lease by Gooderham to Stark the land in question was occupied by the plaintiff
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Gooderham, and those under whom he claims, as a pasture field for cattle and continually fenced in as such field for a period of thirty years or more.
Assuming it to have been so occupied and enclosed for thirty years the possession of the plaintiff Gooderham, and of those under whom he claims, and so the date at which his commencement of title would begin, would reach back to the year 1859, and assuming the field to have been so occupied and fenced for the period only of twenty-five years, that would date the commencement of his title to the year 1864. Now such being admitted to be the title of the plaintiff Gooderham, the whole onus is cast upon the defendants of showing the pieces of land over and upon which they claim control and right of entry to be public streets and highways.
The matters of fact upon which the defendants rest their claim, as gathered from the admissions of the parties and the facts in evidence, are as follows:—
On the 1st of July, 1853, the Honourable Henry John Boulton, then of the city of Toronto, being seised in fee simple of about 35 acres of the east half of the broken front no. 14 in the first concession from the bay of the township of York, conveyed the same by deed of bargain and sale, by a particular description therein, to James Boulton and Thomas Saulter in fee simple, who, upon the same day, by an indenture of bargain and sale by way of mortgage, reconveyed the same land to the said Henry John Boulton in fee simple, subject to redemption upon payment of the full sum of £3,000 of lawful money of Canada, being the consideration money mentioned in the indenture of bargain and sale executed to them by the said Henry John Boulton, together with interest thereon at the days and times in the said indenture of mortgage mentioned. While the said James Boulton and Thomas Saulter
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were so seized of the said lands, subject to the said indenture of mortgage, the Grand Trunk Railway Company, in virtue of the powers vested in them by law, located their railway across the said land. This location of the railway caused considerable speculation and gave birth to expectations that the land might be made available for sale in small lots. The evidence upon this subject is that of John Smith himself, who says:
The railway caused this excitement and this property to be laid out. Mr. Saulter and James Boulton bought this from Henry John as a speculation, and they were going to lay it out to the railway.
Smith owned the west half and Saulter and Boulton the east half of the lot, and the latter asked Smith if he would let his part be shewn so as to make it look like a good advertisement, to which he replied that he would have no objection to that, but that he would not consent to have his part registered because he wanted to utilize his land in farming, and did not want to lay it out in lots. Then he says that when Saulter and Boulton went to lay out their part, they found that at the point where their half abutted on Smith’s half on Queen Street they could not have a corner lot unless they could get land from Smith for a road, and so, as Smith says, they said to him:
Mr. Smith, will you let us have the whole of the road and we will give you ten lots on our part.
To this proposition Smith agreed. James Boulton and Thomas Saulter then caused a plan to be made of the whole broken front lot, including Smith’s half, showing the whole subdivided into town lots and numbered, with spaces for streets for a proposed sale by auction contemplated and advertised to take place upon the 9th day of August 1854.
No success appears to have attended such exposure to sale by auction if it ever took place. The plan so
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prepared was filed in the registry office of the county of York on or about the 26th day of December, 1854, and numbered 105. By an indenture bearing date the 5th day of May, 1855, James Boulton and Thomas Saulter granted and Henry John Boulton confirmed unto the said John Smith his heirs and assigns ten of the said lots as laid down on the said plan and numbered as follows: 141, 142, 143, 153, 234, 242, 253, 342, 346 and 351. The above lot numbered 253 was inserted plainly by mistake for it is on the plan as situate upon Smith’s own or west half of the broken front lot. The lot intended as will appear hereafter was no. 243. The consideration of the deed is stated therein to have been as follows:
In consideration of the said John Smith having dedicated to the public and for the benefit of the said parties of the first part a street sixty-six feet wide as the same is laid down on the plan of the survey of that piece or parcel of land formerly known as lot number fourteen in the broken front of the township of York now forming part of the city of Toronto and owned by the said John Smith, James Boulton and Thomas Saulter, such street extending from the Kingston road to the south side of Front street produced east and also in consideration of five shillings of lawful money of Canada to them paid by the said John Smith.
By a decree of the Court of Chancery bearing date the 8th day of May, 1860, and by two final orders bearing date respectively the 17th day of January, and the 27th day of June, 1861, all the estate and interest of the said mortgagors, James Boulton and Thomas Saulter, their heirs and assigns, in the whole of the east half of the said broken front lot number 14, save and except in the lots 141, 142, 143, 153, 234, 242, 243, 342, 346 and 351, these being the lots in which Smith was interested, and excepting also the lots numbered on the said plan as numbers 161, 162, 163, 167, 168 and 189, was absolutely foreclosed. To whom or when these latter six lots were sold does
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not appear, nor do I think it at all important as affecting the point in issue in this case, for they are all of them on that portion of the broken front lot which lies north of South Park Street, as shown on the said plan. Nos. 161 and 162 front on Queen Street and abut on the east upon the Grand Trunk Railway; 168 lies immediately to the rear of them, abutting on the east on the Grand Trunk Railway, and on the west on a street designated on the plan as Strange Street; lot 167 is shown on the plan to front upon a street designated D’Arcy Street, its north-easterly corner being distant 152 feet from Queen Street; 168 lies immediately to the south of 167, its north-easterly corner being distant 202 feet from Queen Street; lot number 189 fronts on Queen Street, having a frontage of 51 feet, 5 ¼ inches, and a depth of 132 feet; of the other lots excepted from the decree of foreclosure, four of them, that is to say, 141, 142, 143 and 153, are situate north of South Park Street and the Grand Trunk Railway, and the other six south of South Park Street, as shown on the said plan.
Now, upon the foreclosure of the mortgage by Henry John Boulton, it was quite competent for him to have inclosed the whole of the land comprised in the decree of foreclosure and lying to the south of South Park Street and to have abandoned the plan wholly as to such part without the let, suit, trouble, claim, demand, interruption or denial of any person whomsoever, subject only to such claim as John Smith had in virtue of his being grantee as aforesaid of the said six lots lying south of South Park Street. No person whatever other than the said John Smith coald, under the circumstances appearing in evidence, have had any right or interest in law to dispute such action upon the part of the said Henry John Boulton, his heirs or assigns; and such the estate and claim of the said John Smith
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his heirs and assigns was liable to be defeated by dispossession for the period limited for making an entry upon or bringing an action or suit for the recovery of real estate. That it was Mr. Henry John Boulton who first inclosed the field which the plaintiff Gooderham and those under whom he claims are admitted to have had in their occupation as a pasture field for twenty-five years prior to December 1889, there is no reason whatever for entertaining a doubt.
Then it appears that by an indenture of bargain and sale bearing date the sixteenth day of March eighteen hundred and sixty-five, the said Henry John Boulton granted, bargained and sold to Clarke Gamble his heirs and assigns the whole of that part of the east half of the said broken lot as described in the decree of foreclosure, and by an indenture bearing date the 23rd day of November, 1870, the said Clarke Gamble conveyed the same land by the same description to George Leslie his heirs and assigns. Now although the description in these deeds was precisely the same as that in the decree of foreclosure still the field in question which was occupied throughout as a pasture field contained within its fences the whole of the east half of the lot no. 14 south of South Park Street, including the lots numbered 234, 242, 243, 342, 346 and 351, so as aforesaid conveyed to Smith, and also so much of the west half of the said broken front lot as consisted of sixty-six feet in width lying south of South Park Street and abutting upon the westerly limit of the east half of the said lot; this is apparent from Smith’s own evidence and from an indenture of lease produced in evidence bearing date the 17th July, 1866, whereby Smith demised to William Gooderham, James G. Worts and George Gooderham for 21 years—
all that certain tract of land situate lying and being in the ward of St. Lawrence in the said city of Toronto, containing 50 acres
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more or less, being the farm now in the actual occupation of the said lessor divided into two several parcels by the Grand Trunk Railway, parcel number one lying north of the said inclosed railroad containing about thirty acres and parcel number two lying south of the said railroad, containing about twenty acres, and being composed of the west half of lot number fourteen, and lot number fifteen in the broken front formerly in the township of York, now the city of Toronto, and bounded as follows: on the north by the Kingston road, on the south by the Marsh and waters of the Bay of Toronto, on the east by land owned by the trustees of Harriet E. Gamble, wife of Clarke Gamble, and on the west by the River Don.
In his evidence Smith explains that the piece demised was bounded on the east by a fence which ran as now along what appears on the above map to be the west limit of Saulter Street, and that the land spoken of in the lease as owned by the trustees of the wife of Clarke Gamble is the property now in litigation, and he says that when he executed that lease he knew that the portion designated on the plan as Saulter Street, lying to the south of the railway, was enclosed within the field occupied by Gamble as pasture and by Leslie after him; of the fact that it was so occupied there does not appear to be any doubt. Now while Leslie was so in occupation of the said field, and on the 21st December, 1874, the Ontario Act 38 Vic. ch. 16, was passed, whereby it was enacted that as to all persons resident in the Province of Ontario no person after the first day of July, 1876, should make any entry or bring any action or suit to recover any land, &c., but within ten years next after the time at which the right to make such entry or to bring such action or suit should have first accrued.
The evidence, therefore, justifies the conclusion that on the 13th day of March, 1884, when Leslie executed the indenture of that date whereby he conveyed all the land south of South Park Street therein described to Edward Blong who was acting in the transaction as the agent of the plaintiff Gooderham, he was
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seized by statutory title of an absolute estate of inheritance in the whole of the land south of South Park Street, constituting the field which is admitted and proved to have been in 1889 in the occupation of the plaintiff Gooderham and those under whom he claims as one pasture field fenced in on every side, for a period exceeding 25 years absolutely freed and discharged from every estate, title, claim and demand whatsoever of the said John Smith and of all other persons whomsoever. The land, however, which is purported to be conveyed by the deed from Leslie to Blong is described therein as being composed of a part of the said broken front lot no. 14 particularly described as follows:
Commencing at the intersection of the south side of South Park Street or Eastern Avenue with the division line between the broken front lots thirteen and fourteen, thence southerly along the said division line one thousand three hundred and sixty feet more or less to the boundary line established between the several owners of the broken front lots and the grant lately made by the Provincial Government to the city of Toronto, thence south sixty-one degrees fifty-two minutes twenty-two seconds west, on an astronomical course along such boundary line seven hundred feet more or less to the intersection with the prolongation southerly of the east side of Saulter Street, then northerly along the east side of Saulter Street one thousand four hundred and ninety feet more or less to the south side of South Park Street or Eastern Avenue, then easterly along the south side of the last mentioned street six hundred and eighty feet four inches more or less to the place of beginning, containing twenty-two acres and thirty-five hundreths of an acre and comprising among other lands—
the several lots which are enumerated therein according to plan no. 105 registered in the registry office of the county of York. Now upon the evidence of Smith and the admission that Gooderham and those under whom he claims had had in 1889 occupation of the whole of the land in respect of which the present litigation has arisen lying south of South Park Street fenced in as one pasture field for 25 years it is plain that Leslie and those under whom he claimed had such occupation
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in 1884 for 20 years of which period Leslie himself had exclusive occupation for 14 years, so that he had good right and title when he executed the deed of the 13th March, 1884, to convey the whole of the said pasture field, there can I think be little doubt that the intention of the parties to that deed was to convey the pasture field of which Leslie and those under whom he claimed had such continuous possession, and that the western boundary of the piece as described in the deed being stated to be the eastern side of Saulter Street produced, arose from the draftsman assuming that the fence along the west side of the field was on such east side of Saulter Street produced. This by Smith’s evidence, however, appears not to have been the case; but adopting his evidence as correct, namely, that the fence is and always has been along the west side of Saulter Street as shown on the plan then, although it must be admitted that in such case there is a piece of land east of the fence, and which was always occupied by Leslie and those under whom he claimed as part of the one inclosed pasture field which is not covered by the description in the deed executed by Leslie, still Gooderham’s title to such intervening space or piece of land upon his taking possession thereof in succession to Leslie, would have been as appears by the evidence a perfectly good indefeasible statutory title had he chosen to insist upon such title. However, by an indenture bearing date the 22nd day of January, 1885, the said John Smith in consideration of sum of one thousand dollars paid to him by the plaintiff Grooderham did grant unto the said plaintiff to have and to hold to the sole use of himself, his heirs and assigns, for ever
all and singular these certain parcels of land and premises, situate, lying and being in the city of Toronto, being part of broken lot no. 14, in front of the first concession from the Bay, composed of lots numbers 234, 242, 243, 342 and 351, according to registered plan 105,
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and by said indenture be released to the said plaintiff all his claims upon the said land.
The operation of that release is by statute declared to be,
to exonerate and discharge the releasee from all claims and demands whatsoever which the releasor might or could have upon the releasee in respect of the said lands or upon the said lands.
And by an indenture of lease of the same date he demised and let to the said plaintiff the “lot 346” according to registered plan number 105 to have and to hold for the term of 21 years, to be computed from the said 22nd day of January, 1885, which term was further extended by an indenture bearing date the 21st day of December, 1888, for a further period of 21 years, or in all 42 years from the 22nd January, 1885.
It cannot, I apprehend, be doubted that at the time of the passing of the Ontario Act 50 Vic. ch. 25, that is to say, in April, 1887, the plaintiff Grooderham was solely and absolutely seized of an indefeasible estate of inheritance in fee simple in the whole of that part of the east half of the said broken front lot no. 14, which lies south of South Park Street, and also in so much of the west half of that lot south of South Park Street as is designated upon the said plan as Saulter Street, the same having at that time been held inclosed with the east half of the said lot south of South Park Street by the said plaintiff and those under whom he claims for 23 years, freed and absolutely discharged from all claims whatsoever of all persons whomsoever, save only such private claim as the said John Smith could assert by reason of the said plaintiff having accepted from him the said lease of the said lot number 346; what may be the nature and extent of such claims we are not called upon to determine in the present case; that is a matter in which John Smith is himself alone concerned, and which can be entertained
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and adjudicated upon only in a suit properly instituted by himself; what we are concerned with at present is only a claim asserted by the defendants, the city of Toronto, on behalf of the public, for which there is not any foundation whatever, unless it can be established, as is contended that it can be and is, upon a true construction of the Ontario statute 50 Vic. ch. 25.
In order to arrive at a true construction of that statute the most material element to be considered is the condition in which the land in respect of which the litigation arises, and the plaintiff Gooderham’s title thereto, was at the time of the passing of the said Act.
The statute law bearing on the question under consideration before the passing of the said act, was as follows:
By the Revised Statutes of Ontario of 1877, ch. 146, sec. 67, which was simply a re‑enactment of a law in force ever since municipal institutions were established in Canada in 1849, it was enacted as follows:—
Whereas towns and villages in Ontario have been, or may be, surveyed and laid out by companies and individuals, and by different owners of the land comprising the same, and lands may have been or may be sold therein according to the surveys and plans thereof; therefore all allowances for roads, streets or commons which have been surveyed in such towns and villages and laid down on the plans thereof, and upon which lots of land fronting on or adjoining such allowances for roads, streets or commons have been or may be sold to purchasers, shall be public highways, streets and commons, and all lines which have been or may be run and the courses thereof given in the survey of such towns and villages and laid down on the plans thereof, and all posts or monuments which have been or may be placed or planted in the first survey of such towns and villages to designate or define any such allowances for roads, streets, lots or commons, shall be the true and unalterable lines and boundaries thereof respectively.
Sections 524 and 531 of the Ontario statute 46 Vic. ch. 18, which are but re-enactments of similar sections
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which had been in force ever since the passing of the act of the late province of United Canada in 1858, viz, 22 Vic. ch. 22, secs. 300, 322 and 323, were enacted for the purpose of determining and defining what roads were public roads and the rights and liabilities of municipal corporations in respect thereof. 46 Vic. ch. 18 enacts as follows:
Sec. 524. All allowances made for roads by the crown surveyors in any town, township or place already laid out or hereafter laid out, and also all roads laid out by virtue of any statute or any road whereon the public money has been expended for opening the same or whereon the statute labour has been usually performed, or any roads passing through the Indian lands, shall be deemed common and public highways unless where such roads have been already altered or may hereafter be altered according to law.
Sec. 531. Every public road, street, bridge and highway shall be kept in repair by the corporation and in default of the corporation so to keep in repair the corporation shall besides being subject to any punishment provided by law be civilly responsible for all damages sustained by any person by reason of such default but the action must be brought within three months after the damages have been sustained.
2. This section shall not apply to any road, street, bridge or highway laid out by any private person, and the corporation shall not be liable to keep in repair any such last mentioned road, street, bridge or highway until established by by-law of the corporation, or otherwise assumed for public user by such corporation.
The act then repeats sec. 1 of 13 & 14 Vic. ch. 15, as still in force as follows:
The right to use as public all roads, streets, and public highways within the limits of any city or incorporated town in the province shall be vested in the municipal corporation of such city or incorporated town (except in so far as the right of property or other light in the land occupied by such highways have been expressly reserved by some private party when first used as such roads, streets or highway and except as to any concession road or side road within the city or town where the persons now in possession or those under whom they claim have laid out streets in such city or town without any compensation therefor in lieu of such concession or side road.)
From these sections it appears to be clear, 1st, that the right of the public or a municipal corporation to
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use as a public highway a road or street laid out by a private person on his own property applied only to such roads or streets as were in actual use as private roads or ways to property purchased by parties, and fronting on such roads or streets.
2nd. This right was qualified by such reservations as might have been made by the person laying out such road or street when first used as such road or street, showing very clearly, I think, that the user of such road or street as a private road or street was an essential condition precedent to the public or the municipality being in a position to acquire a right to use it as a public highway.
3rd. A private road so in use was liable to be made a public road or highway by the application of public money for keeping it in repair and in a condition fit to be used, but until so converted from a private road or street into a public road or street the municipality were by 46 Vic. ch. 18, sec. 531, declared to be under no responsibility to keep it in repair, or liability to persons injured by its not being kept in a sufficient state of repair. In fine there must have been a private road or street in actual existence and used as a private road in order to its being converted into a public road or highway. Now from the title of the plaintiff Gooderham, as above shown to the inclosed pasture field, of which he and those under whom he claimed had actual occupation for over 23 years at the time of the passing of the Act 50 Vic. ch. 25, sec. 62, no part of that inclosure could then have been acquired for public use as a public road, street or highway, otherwise than by statutory expropriation and payment of compensation to Gooderham for the land taken for such purpose.
The question before us therefore simply is: Does that Act divest Gooderham of the title and right which,
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under such title, he had in the lands under consideration immediately before the passing of the Act, and appropriates any part of such, his property, to public use as public streets and highways? It is admitted on all hands that if the Act must be construed as so doing it would work a great injustice to the plaintiff, for which there is no precedent in legislation, and which would be in direct conflict with the provisions of the statute as to the acquisition of private property for public purposes upon payment of compensation.
Mr. Justice Osler, while admitting the injustice which such a construction works, and while recognizing the duty of the courts to avoid, if possible, attributing to the legislature the intention of committing such an injustice, thinks that intention too plainly expressed to leave to the courts any discretion.
Mr. Justice Burton relieves the legislature from the imputation of injustice in a judgment from which, before I should dissent, I should have to give it further consideration if I thought it necessary to the determination of this case that it should rest upon the view there taken. But in my opinion there is really no just ground for imputing to the legislature the unjust intention imputed. The act, properly construed, warrants no such imputation, and in fact is not, in my opinion, open to the construction insisted upon by the defendants and put upon it by the judgment appealed from. The Act, in its sixty-second section, simply re-enacts the provisions of the old section 67 of ch. 146 of R.S.O. of 1877, omitting the preamble, and for the words “towns and villages” substituting the words “cities, towns and villages, or any part thereof,” and adding, as a proviso, the enactment in subsection 2 of sec. 531 of 46 Vic. ch. 18 above extracted. The language used in the section cannot reasonably be construed as affecting, or as intending to affect, any
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property so situated as to title as the property of the plaintiff under consideration is, nor, as regards the time past, anything else than roads or streets which at the time of the passing of the act were then already in existence as private roads, to the use of which purchasers of property abutting thereon were then entitled, which roads and streets so in existence the section under consideration subject to the proviso as to the non-liability of the corporation to keep the same in repair converted into public highways. That being, as I think it is, the true construction of the section the appeal must be allowed with costs and a decree be ordered to issue in the court below with a declaration that the lands the right to open which as public highways the defendants claim are not public highways by force of the said statute or otherwise, with costs in the courts below to be paid by the defendants to the plaintiff. A declaration to this effect will be sufficient to protect the rights of the plaintiff, and cannot prejudice any private right if any which the plaintiff’s lessor John Smith may have in respect of the said lot no. 346 and by reason of the plaintiff Gooderham having accepted such lease thereof.
Appeal allowed with costs.
Solicitors for the appellants: Beatty, Blackstock, Nesbitt & Chadwick.
Solicitor for the respondent: Thomas Caswell.
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