Supreme Court of Canada
Canada Cement Co. v. Fitzgerald, (1916) 53 S.C.R. 263
Date: 1916-05-02
The Canada Cement Company (Defendants) Appellants;
and
John Joseph Fitzgerald (Plaintiff) Respondent.
1916: February 25; 1916: May 2.
Present: Sir Charles Fitzpatrick C.J. and Davis, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.
Deed of land reservation—Right of passage—Changed conditions—Object of conveyance.
F. sold land to the Cement Co., reserving by the deed “the right to pass over for cattle, etc., for water going to and from Dry Lake.” The company, in using the land for excavating the marl deposit, cut away the shelving bank of Dry Lake and rendered it inaccessible for cattle.
Held, Fitzpatrick C.J. dissenting, that cutting away the bank at this place without providing another suitable watering-place with a proper way leading thereto was an unwarranted interference with the rights of F. and the fact that the company purchased the land for the purpose of digging marl did not give them a right to extinguish F.’s easement of passage for his cattle.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario affirming the judgment at the trial in favour of the plaintiff.
The facts are sufficiently stated in the above head-note. The trial judge held that the plaintiff was entitled to a perpetual right of way over the land sold for his cattle to get to water and he sent the case to a referee to ascertain if the defendants could furnish such right of way. In case they could not, plaintiff to have judgment for $1,500 as damages.
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Tilley K.C. and Northrup K.C. for the appellants.
Mikel K.C. for the respondent.
THE CHIEF JUSTICE (dissenting).—In the grant by the respondent of part of his farm to the appellant there was the following reservation:
And the said parties of the First Part reserve to themselves, their heirs and assigns forever, the right to use the roadway at present existing across the marl deposit to the Second Concession and the right to pass over for cattle, horses and other domestic farm animals for water going to and from Dry Lake.
There was some suggestion that these two rights refer to one and the same thing. I can see nothing to support such a contention. The right with which we are concerned is the second mentioned in the reservation and is entirely distinct from the first right reserved.
There was evidence that there was what is called a drift-way, that is a path or track, which was used by the cattle going from the respondent’s farm to water at Dry Lake. The land surrounding the lake was, however, open marsh land and the cattle being at large I doubt if there could be said to be any definite way though possibly the cattle went more or less in the same direction. At any rate there is no suggestion of any such drift-way in the reservation and that in marked contrast to the reservation by the first right of the use of
the roadway at present existing across the marl deposit to the Second Concession.
Now although the respondent tried to avoid answering the question he was obliged to admit that the appellant had not prevented cattle from going from the farm to Dry Lake.
His LORDSHIP: Try and answer the question.
A.—They could walk there
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Mr. NORTHRUP:—To the shore?
A.—Yes.
Q.—There is nothing to prevent your cattle coming from the lane around the head of the dredger to the shore of Dry Lake, whatever that shore is?
A.—No.
Therefore it is clear that the appellant has not prevented the respondent’s cattle passing over the lands granted for water going to and from Dry Lake and that is all that the reservation in terms gives a right to.
The appellant in pursuance of the purpose for which it purchased these lands excavated the marl in Dry Lake and, instead of the shelving bank with two or three feet of water at which the cattle were accustomed to drink unattended, the water is now so deep at the bank that it would be unsafe to allow them to go there without someone in charge.
This is the real grievance of which the respondent complains and it is of something outside and beyond the right of way reserved in the conveyance over the lands granted. Consequently we are not concerned with those innumerable cases which are governed by the well-established principle that
the servient owner cannot so deal with the tenement as to render the easement over it incapable of being enjoyed or more difficult of being enjoyed by the dominant owner.
Again, I do not think we can consider what was the intention of the respondent in making the grant to the appellant. He is very positive now that he intended to reserve the right to water his cattle as he had previously done. Perhaps he did not then consider the matter so fully as he has since done, for otherwise it must surely have occurred to him that since the purpose for which the appellant was acquiring the property was to excavate the marl some inter-
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ference with the water must be inevitable, and that he could not expect to sell part of his land for such a purpose and retain the use of it for farm purposes as completely as before. It is not, however, a question of what the respondent intended, but of what he did. There would be no justification for varying the grant even if such intention were clearly shewn for if at the time the appellant had been asked to pay a further $1,500 for the rights it was acquiring it would probably have refused to proceed with the purchase. We can, therefore, only consider what are the legal rights arising as between the parties.
Now the learned judge at the trial says in his judgment:
I think the inference is when the right of way was reserved in the second part “The right to pass over, etc.,” that that involves the inference and suggestion that there should be a place at the end of that right where they (i.e., the cattle) could water in safety.
In the first place, I point out that we are not directly concerned here with the difference between an implied grant and an implied reservation. This difference is laid down in the well known case of Wheeldon v. Burrows, where Thesiger L.J. states the general rules and says:
The first of these rules is that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed there will pass to the grantee all those easements which are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted. The second is that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant. Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz., that a grantor shall not derogate from his grant.
With this, as I have said, we are not directly
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concerned because the grantor has made an express reservation and all that we have to do is to find what is the right or the extent of the right so reserved.
Nevertheless it is only by implication or, as the judge says, by “inference and suggestion” that the reservation can be held to bear the extended meaning he places upon it and there seems no reason why the same rule should not apply to an implied extension of a reservation as to the reservation itself. On the face of it, the reservation is of nothing but a limited right of way. It is a right to pass over the lands granted for cattle, horses and other domestic farm animals only and only for water going to and from Dry Lake. The words “for water” are certainly capable of bearing a purely restrictive meaning. The lands may not be used for pasturing cattle, exercising horses or any other purpose than for water.
The reservation of the right of way would be just as proper in the form actually used if Dry Lake had been the property of a third party. If the respondent had then become unable to obtain a continued right to use the lake, not only would the appellant be under no liability, but the right of way over its land would have ceased with the purpose for which it was granted.
There is in the grant no reservation of Dry Lake or of any rights in its waters or of convenience of access thereto, yet these are the matters of substance to which the right of way could be only ancillary. If the parties to the conveyance had been agreed as to the reservation of any such rights we should have expected to find that they had been expressly provided for and safeguarded. Had they been so reserved we might in the absence of a grant of right of way have implied one. It is different, however, from the mere grant of a right of way to imply substantive rights which
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the appellant would probably have refused to concede. Considering the purpose for which the company purchased, a purpose of which the respondent was of course aware, I think it is reasonable to suppose that the right of way was agreed to and has to be taken for what it is worth. If the consequence of the appellant’s workings renders the access to the water more difficult or were to decrease the quantity of the water or otherwise interfere with the respondent’s full enjoyment of the water as he possessed it when he was the owner of the whole property, he has reserved no rights for loss of which he can maintain any claim for damages.
I do not recall any decided case presenting exactly the same features as the present case, but perhaps some light may be gained by reference to the case of Rhodes v. Bullard,.
In covenant the plaintiff declared upon a lease by the defendant to the plaintiff of a messuage and a warehouse and also all that part of the yard belonging to the messuage between that and the warehouse. And the defendant covenanted that he would permit the plaintiff to have free ingress, egress and regress through the gate at the bottom of the yard belonging to the messuage to the warehouse and the use of the pump in the said yard jointly with the defendant whilst the same should remain there paying half the expenses of keeping it in repair.
The defendant removed the pump unnecessarily and it was held that under the words of the covenant he might do so and consequently the breach was ill assigned. The Chief Justice, Lord Ellenborough, draws attention to the fact that there was no demise of the pump and Grose J. says:
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It is material to consider that there are no words of demise of the use of the pump; but the lessor covenants that the lessee shall have the use of the pump jointly with himself whilst the same shall remain there, etc.
Now it is true that the judgment went upon the words of the covenant, but in the present case not only is there no demise of the use of the water in Dry Lake, but there is no covenant either. If a covenant is to be implied at all, is it reasonable that more should be implied than that the respondent should have the use of the water if and so long as and to the extent that the appellant’s workings did not interfere with such use? I think that would be the utmost the respondent could ask.
For these reasons I am of opinion that the appeal should be allowed and the action dismissed with costs.
DAVIES J.—I agree in dismissing this appeal for the reasons given by Sir William Meredith C.J. in the Appellate Division in delivering the judgment of that court. Those reasons are quite satisfactory to me.
IDINGTON J.—If the grantees under whom appellant claims title had executed the deed of conveyance in question the reservation of the right of way would then have been construed as a grant by the said grantees to their vendors of the right of way so reserved, as was explained in the case of The Durham and Sunderland Railway Co. v. Walker at p. 967.
They do not seem to have executed the conveyance and at common law there might be some difficulty in respondent’s way besides the question of uncertainty relied upon.
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It seems, however, obviously to have been agreed between the parties that this right of way should be enjoyed by the vendors to serve the user by them of the remaining part of the farm.
In the case of May v. Belleville, Mr. Justice Buckley held the successors in title of the vendees had not signed the deed but their agent had signed the agreement for sale which provided for the right of way. The deed of conveyance there as here contained the reservation of the right of way. The learned judge seems to have held this to be notice of the agreement and the successor in title bound thereby.
The conveyance in question herein seems to me, by its numerous provisions in the way of agreements between the parties for several other contingencies relative to the lands in question and rights in or over them, peculiarly to lend itself to such a mode of judicial treatment of the same and all it contains bearing upon this question of right of way.
Founding the respondent’s claim upon his rights to relief in equity I see no difficulty in applying the law as held in the May Case6. In principle I cannot distinguish the cases. It is true that in that case there was an antecedent agreement but does that do more than open the inquiry?
And in this case where there are so many collateral agreements contained in the conveyance, can there be any doubt of the fact? I admit it seems assumed by both parties rather than expressly proven, but should they be driven back to try over again what they do not seem to dispute?
Moreover there is this to be said for that manner of looking at the case, that it lets in the power of the
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court, perhaps in a way otherwise difficult to maintain, to deal with the question in the way it has been dealt with by providing for an inquiry as to another way being found.
As to the difficult question of certainty I think it might be fairly arguable, if we had no other evidence than the somewhat indefinite and ambiguous language of the reservation in the deed, that it was void for uncertainty. But when, as must be in the case of such documents, that language is interpreted and construed in light of the evidence of surrounding facts and circumstances existent at the time of the execution of the deed, and the conduct of the parties thereto immediately after such execution, there cannot be any doubt of what it means.
I think strictly speaking the respondent was entitled to continue using, as he had been before the deed, the right of way defined by that actual user; and that appellant had no right by constructing a railway or in course of mining to excavate that part of the land habitually trodden, and so to impair or obstruct the use thereof. The deed is not as definite as it might have been but the cattle seem to have done, of their necessities and long practice, that which roughly marked the path intended.
The contentions of appellant, as to travel by the other way defined being meant, seem to me absurd if any meaning is to be given the words used. They were entirely unnecessary if only the first way defined to the highway was that intended for the cattle to follow.
The appellant seems to have got by the judgment appealed from such relief as may ameliorate its situation, perhaps due to the improvidence of its predecessors in title.
I think the appeal should be dismissed with costs.
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DUFF J.—The appeal should be dismissed with costs.
ANGLIN J.—The defendant appeals from a judgment of the Ontario Appellate Division, which affirmed the judgment of Falconbridge C.J. the trial judge, declaring the plaintiff entitled to a right of passage across the defendant’s land for cattle on his farm going to and from Dry Lake for the purpose of watering, granting a reference to enable the defendant to indicate a suitable right of way, and if one can be given to assess damages for interim wrongful interference, or, if none can be given, fixing the damages for permanent deprivation at $1,500.
The plaintiff sold the lands held to be servient to Messrs. Irwin and Hopper, from whom the defendant acquired them. The deed to Irwin and Hopper contained this clause:—
The said parties of the first part reserve to themselves, their heirs and assigns forever, the right to use the roadway at present existing across the marl deposit to the second concession and the right to pass over for cattle, horses and other domestic farm animals for water going to and from Dry Lake.
This deed was not executed by the grantees.
As an admission upon a matter of law, the statement of counsel for the appellant at the trial that “the title of the plaintiff to the right of way is not in question” may not bind it. But, disregarding that admission, the plaintiff’s title is, in my opinion, fully established.
Applying the ordinary rule of construction that, if possible, effect should be given to every word of a document, the language of the deed itself makes it clear that the right of passage to and from Dry Lake for cattle, etc., asserted in this action is distinct from
the right to use the roadway at present existing across the marl deposit to the second concession.
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To the plaintiff’s objection that the reservation relied upon is ineffectual, because a right of way can be created only by grant and Irwin and Hopper did not execute the conveyance to them from the plaintiff, the judgment of Buckley J. in May v. Belleville, at p. 612, gives a convincing answer.
The fact that the location and width of the passage to Dry Lake over the land conveyed were not defined in the deed did not render it void for uncertainty. Deacon v. South-Eastern Railway Co. Whether the owners of the servient land had the right to assign the way where they could best spare it or the holder of the easement had the right to take it where most convenient for his purpose (Gale on Easements, 8th ed., p. 510; Norton on Deeds, p. 263; Packer v. Wellsted, at p. 111), as the Chief Justice of Ontario points out, citing Pearson v. Spencer, a well-defined way across the land conveyed having been used by cattle from the plaintiff’s farm in going to and returning from Dry Lake for many years before and after the grant to Irwin and Hopper, the plaintiff’s right to that particular way was probably established. But, as the learned Chief Justice says, the judgment at the trial has recognized the appellant’s right to assign any other passage way over its land which will serve the purpose intended, and of that the respondent does not complain.
That the taking away of the bank of Dry Lake at the place where the cattle had been accustomed to water without providing another suitable watering place with a proper way or passage leading to it was an unwarranted interference with the plaintiff’s right
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is unquestionable. The right accorded to the defendant by the judgment of assigning to the plaintiff some suitable way other than that formerly used and more convenient and less prejudicial to its mining operations is probably something to which it was not entitled. The further claim, that the fact that the land owned by it was to his knowledge purchased from the plaintiff by its predecessors in order to dig marl from it, gives the defendant the right in so digging to extinguish the plaintiff’s easement of passage for his cattle, is so utterly in derogation of the grant of that easement, which the terms of the conveyance to its predecessors in title shew that they undertook to make,—a bargain which equity will enforce, May v. Belleville at p. 612—that the mere statement of it proves it to be untenable. The contention that the use by the cattle on the plaintiff’s farm of other drinking places, not constantly but from time to time, involved an abandonment by the plaintiff of the right of passage to Dry Lake, is equally hopeless.
The appeal, in my opinion, fails and should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Northrup & Ponton.
Solicitors for the respondent: Mikel, Stewart & Baalim.
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