Supreme Court of Canada
Peters v. Sinclair, (1913) 48 S.C.R. 57
Date: 1913-05-06
J. Henry Peters (Defendant) Appellant;
and
Angus Sinclair (Plaintiff) Respondent.
1913: April 11, 14; 1913: May 6.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Trespass—Easement—Public way—Dedication—User—Prescription—Estoppel—“Law and Transfer of Property Act,” R.S.O. 1897, c. 119.
S. brought action against P. for trespass on a strip of land called “Ancroft Place” which he claimed as his property and asked for damages and an injunction. “Ancroft Place” was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of “Ancroft Place” to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing “Ancroft Place” as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action “Ancroft Place” had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
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Held, further, Idington and Duff JJ. dissenting, that the land was not a “way, easement or appurtenance” to the lot to the north “held, used, occupied and enjoyed, or taken or known, as part and parcel thereof” within the meaning of sec. 12 of “The Law and Transfer of Property Act,” R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.
Per DUFF J.—The facts established justify the inference that the original owners (Mr. and Mrs. Patrick) always entertained the design that the strip of land in question should be a street affording access to the adjoining parts of lot 22; that, accordingly, it had been surveyed and laid out as a street, on the ground, in 1884; that the sale to McCully, in 1887, proceeded on the footing that the land purchased by him was bounded to the south by a street and this was one of the elements of value determining the price he paid; that, thereafter, in accordance with the same design, Mrs. P. permitted the successive occupants of the lot bought by McC. to use this strip of land as of right for all the purposes of a street; that these occupants, acting as she intended they should and as the situation, created by her, naturally encouraged them to act, purchased and dealt with it upon the same footing as that upon which the sale to McC. took place: Consequently, the respondent is, on the principle of Piggott v. Stratton (1 DeG. F. & J. 33), as explained in Spicer v. Martin (14 App. Cas. 12), and of Cairncross v. Lorimer (3 Macq. 829); Oliver v. King (8 DeG. M. & G. 110); and Russell v. Watts (10 App. Cas. 590), precluded from disputing the right of the appellant to use “Ancroft Place” as a street.
Per DUFF J.—At the time of the sale to McC. the vendor was precluded from using Rachel Street for any purpose inconsistent with its character as a street and its sole value for her as a “street” or “way” was because of the means of access it afforded to the property sold. Its character as a way laid off for the accommodation, inter alia, of that property was palpable to everybody: as a way, therefore, it was as regards the vendor’s interest in it a “way * * * known or taken to be” an adjunct of the property sold and, as such, passed to the purchaser under the provisions of the “Law and Transfer of Property Act.”
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment at the trial in favour of the plaintiff.
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The essential facts are stated in the above head-note.
W.N. Tilley and J.D. Montgomery for the appellant. The deed with the surveyor’s plan annexed established “Ancroft Place” as a way attached to the lands to the north and 50 Vict. ch. 25 (Ont.) respecting Land Surveyors and Surveys converted it into a public highway. Gooderham v. City of Toronto, at page 262. The land in question was a “way, easement or appurtenance” to the lot to the north of it “held, used, occupied and enjoyed, or taken or known, as part and parcel thereof” within the meaning of “The Law and Transfer of Property Act,” R.S.O. [1897] ch. 119.
The courts below did not give proper effect to the acts of dedication and acceptance proved at the trial and to the above legislation. See Attorney-General v. Antrobus, at page 207. Grand Trunk Railway Co. v. City of Toronto.
Ludwig K.C. for the respondent. It is clear that the use of “Ancroft Place” was not so necessary to the enjoyment of the land to the north as to pass with the conveyance. See Halsbury’s Laws of England, vol. 11, sec. 511; Prideaux on Conveyancing (2 ed.), pages 121‑2; Bell v. Golding.
There was no proof of intention to dedicate “Ancroft Place” to the public and it was not dedicated. See Robertson v. Meyer, at page 370, as to the inference from the placing of a gas lamp on the lane.
As to user see Webb v. Baldwin.
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THE CHIEF JUSTICE.—This is an action brought for trespass. The defence was that the plaintiff was not the owner of the lands and premises in question, but on the contrary that the place where the trespass was alleged to have been committed was a public highway. The trial judge found in favour of the plaintiff, and his judgment was affirmed by the Court of Appeal.
The lane over which the appellant claims a right-of-way is a cul de sac, and eliminating the question of dedication which was not seriously argued, there is, it seems to me, very little difficulty about this case.
At the time the appellant’s property was sold to his predecessor in title, McCully, by Rachel Patrick, the latter held as owner all that part of lot No. 22 which had not been previously disposed of to Ellwell, Davis and Henderson, that is to say, she was still the owner of that portion of lot No. 22 or of those portions of that lot known in these proceedings as the McCully property and Ancroft Place. The latter was then burdened with a right-of-way, under the deed referred to, in favour of Davis, Ellwell and Henderson, but admittedly not in favour of the other portion of the same lot subsequently sold to McCully, and now the property of the appellant. Nor is there evidence to shew that, in fact, it was used by the owner or by others with her knowledge and consent as a roadway for the benefit of that adjoining property.
It is not easy for me to understand how of two adjoining properties owned and possessed by the same person one could be burdened in favour of the other with an easement of this kind except by some express act of the owner manifesting an intention to impose such a burden.
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I was much impressed at the argument by the terms of the deed to Henderson. There is no doubt that Mrs. Patrick, at the time that deed was passed, by an excess of precaution reserved to herself the right to give a passage over “Ancroft Place,” then her property, to whoever might subsequently buy that portion of lot No. 22 now owned by plaintiff, but she did not exercise that right, presumably because she was not asked to do it by McCully when he bought his property. Further, if a right of way then existed over “Ancroft Place” in favour of the balance of lot No. 22, now owned by appellant, why make that reservation? The description contained in McCully’s deed of sale, in my opinion, very clearly excludes “Ancroft Place” and, if at that time no right of way existed over it for the benefit of the property he bought, I do not understand where the foundation of the right now asserted can be found.
The statute is not intended to create a right, but merely to give effect to some right in existence at the time the deed of conveyance is made. The only easement that passed by virtue of the section of the Act relied on is an easement, “belonging or in anywise appertaining” to the land conveyed, that is to say, belonging or appertaining to the land at the date of the conveyance. All the judges below have found that no title had, at that time, been acquired by user to a right-of-way over “Ancroft Place,” and I cannot find in the evidence anything that would justify me in reversing the two courts below on this question of fact.
I would dismiss with costs.
DAVIES J.—The main questions involved in this appeal are, first, whether Helen McCully, the predeces-
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sor in title of the appellant as grantee under the conveyance from Rachel Patrick, dated 21st November, 1887, acquired a right-of-way over “Ancroft Place,” the fee simple title in which was vested in Rachel Patrick. This “Ancroft Place,” so called, was a cul-de-sac running off from Sherbourne Street in Toronto and lying immediately south of the lands conveyed as above to Helen McCully. Secondly, whether “Ancroft Place” was a public street?
I agree with the Court of Appeal and the trial judge that there was no reasonable evidence of dedication. I do not think the “Place” or way in question ever was a thoroughfare. It was merely a cul-de-sac for the convenience of a few property owners abutting on it on the south and east. In the deed given by the former owner, Mrs. Rachel Patrick, to Henderson in 1884 of one of the plots of land to the south and east of this “place” or “street,” there was granted to Henderson and his assigns a right-of-way
over and upon the said street fifty feet wide in common with the said Rachel Patrick, her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any portion of said lot 22 abutting on said street.
I think the object and purpose of this clause was to place beyond doubt the fact that the right‑of-way granted to Henderson was not to be an exclusive one but one to be used in common by him and Mrs. Patrick and those to whom she or her late husband had granted or might grant such a right.
It did not reserve to Rachel Patrick any rights over this lane or way which she did not have without it. The fee in the lane was in her. She did not grant Henderson an exclusive right‑of‑way but one in common with herself, and certain definite other persons
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her grantees. The clause neither enlarged nor abridged her rights over the lane, and I think the trial judge’s construction of its meaning a sound one and that it meant no more than reserving common rights in the way for those to whom she or her husband had granted or might grant them as grantees of the lands “abutting on the street.”
The deed or conveyance to the plaintiff’s predecessor in title, Helen McCully, did not either bound the lands conveyed to her on this “place,” “street,” or “lane,” nor did it use any language indicating any connection between the two or any right-of-way as existing or contemplated by the parties between the lands conveyed and the street or lane. The lands conveyed are expressed as being bounded on one side by Maple Avenue, on another side by Sherbourne Street; but “Ancroft Place” as a “way,” “street,” “place,” “lane” or otherwise is not mentioned or referred to.
I do not think there is any evidence of a dedication of the way or place to the public or of any acceptance of such a dedication by the municipality.
Mr. Tilley rested his case largely upon the contention that while the deed to Mrs. McCully made no reference to any right-of-way over the street or place which was called, as he said, Rachel Street, and had at one time a board with that name upon it affixed to one of its sides, still the deed must be construed by reference to and along with section 12 of the “Law and Transfer of Property Act,” R.S.O. ch. 119. His contention was that the deed plus this statute operated to convey to Mrs. McCully a right-of-way over this street, place or lane, as being within the words of
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the statute a way or easement “held, used, occupied and enjoyed and taken or known as part or parcel thereof.”
The fact that there was a visible road or lane existing along the south side of the lands conveyed to McCully and that access to and from such lands to the lane was at any rate possible and had been at times resorted to and used by the occupiers of these lands was pressed by Mr. Tilley. But these intermittent and casual users established no right and it would be a dangerous construction of the statute to hold that under the proved facts of this case it created and passed such a right-of-way as is contended for. The lane was not established for the benefit of these lands of the appellant. They were bounded by public streets on two sides and of course no way as of “necessity” could be contended for. In delivering judgment of the court in the case of Watts v. Kelson, at page 173, L.J. Mellish cites with approval the following sentence from the unanimous judgment of the Exchequer Chamber in Polden v. Bastard:—
There is a distinction between easements, such as a right of way or easements used from time to time, and easements of necessity or continuous easements. The cases recognise this distinction, and it is clear law that, upon a severance of tenements, easements used as of necessity, or in their nature continuous, will pass by implication of law without any words of grant; but with regard to easements which are used from time to time only, they do not pass, unless the owner, by appropriate language, shews an intention that they should pass.
I have read the cases called to our attention on the construction of section 6, sub-section 2, of the English “Conveyancing Act,” from which the “Law and Transfer of Property Act.” R.S.O. ch. 119 is taken. The two sections are substantially alike. The Ontario section reads:—
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Every conveyance of land, unless an exception is specially made therein, shall he held and construed to include all * * * ways * * * easements * * * and appurtenances whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof.
The cases establish, I think, the question as to whether a claimed way or easement passed or not under and by virtue of the statute to be one of fact to be determined on the circumstances of each case. The question before us is whether before and at the date of the conveyance from Mrs. Patrick to Helen Eliza McCully in 1887 the way in question was a way really and actually used and enjoyed with the property conveyed, or taken or known as part or parcel thereof. If it was so used and enjoyed or taken or known, then it passed to the plaintiffs by the very words of the grant and the Act. In International Tea Stores Co. v. Hobbs, Farwell J., at page 172, referring to a decision of Blackburn J. in Kay v. Oxley, goes on to say:—
He (Blackburn J.) therefore, as I understand him, treats the only relevant question as being: Was the way in fact enjoyed at the date of the conveyance? If so the fact that it was enjoyed under a license which had not been revoked was immaterial. If it had been enjoyed without any license at all for a number of years, although no prescriptive right had been or could have been acquired, still it was in fact enjoyed. It is in each case a question of fact to be determined on the circumstances of the case whether it has, or has not, been enjoyed within the meaning of the statute.
See also Brown v. Alabaster.
On this crucial question the trial judge has, on evidence which seems to me amply sufficient, found against the plaintiff.
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The appeal court has agreed with that finding; and, concurring with it as I do, I think it disposes of the appeal.
IDINGTON J. (dissenting).—The late Mr. Patrick owned a block of land in the south-east angle of Sherbourne Street and Maple Avenue in Toronto out of the south-east part of which he carved and sold and conveyed two parcels each sixty-six feet wide fronting upon a street fifty feet wide and named by some one after his wife “Rachel Street.”
He devised the remainder of the block to his wife. She, after his death, conveyed in 1884 to one Henderson, another part of the original block comprising all that remained thereof unsold south of the northerly limit of said Rachel Street and east of the line of the lands her husband had conveyed as stated above and included part therein of what was to have apparently been a continuation of Rachel Street. The terms of this latter conveyance in relation to Rachel Street I will refer to presently.
The result was to leave vested in Mrs. Patrick a block of land two hundred and five feet six inches on Maple Avenue by one hundred and forty-seven feet nine inches on Sherbourne Street lying next to and on the said northerly line of Rachel Street.
She sold, for $8,000 and conveyed by deed of 21st November, 1887, to Mrs. McCully, this remaining block of land describing it by metes and bounds. The southerly boundary given therein admittedly coincides with the northerly line of Rachel Street.
That conveyance made pursuant to the Act respecting short forms of conveyances must be read as if it had incorporated therein the substance of section
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12 of the “Law and Transfer of Property Act” of which the first part thereof is as follows:—
12(1). Every conveyance of land, unless an exception is specially made therein, shall be held and construed to include all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances, whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof.
The question raised herein is whether or not that conveyance so read contained a grant of the right-of-way over said part of Rachel Street for the distance of one hundred and thirty-six feet unappropriated by the earlier conveyance to Henderson and leading out to the said Sherbourne Street.
The evidence makes it very clear that before and up to the time of the conveyance to Mrs. McCully this space of land was designated as a street by the name first given it of Rachel Street or “Ancroft Place” later placarded on the southerly fence bounding same; that it was not assessed but treated by the assessors as a street from and including the year 1887 when first annexed to the city down to the trial hereof; that the lands lying to the south of it conveyed by Patrick as already stated were assessed according to their frontage on Rachel Street or “Ancroft Place” as if a public street and Henderson’s was similarly treated; that it was fenced on either side and on the end abutting what was sold to Henderson but not fenced on the Sherbourne Street side; that the appearance thus given it was that of a public street; that from such appearance any person buying the land sold and conveyed, to Mrs. McCully would clearly as-
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sume it was such or at least a right-of-way giving a rear access to any one purchasing or using said land; that said land sold her was a much more valuable piece of land with such right of access than if it had it not; that Dr. McCully, her husband, in treating for said land was told by the agent of Mrs. Patrick, that “Ancroft Place” or Rachel Street was a public street just as its appearance indicated; and that when Mrs. Patrick conveyed to Henderson it was by her deed to him expressly declared said street was “fifty feet wide and ran from Sherbourne Street to the land hereby conveyed,” and provided in the said deed to him as follows:—
Together with the free and uninterrupted use and right-of-way at all times in perpetuity to the said James Henderson, his heirs and assigns, and his and their servants, in, over and upon the said street fifty feet wide in common with the said Rachel Patrick, her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any part of said lot twenty-two abutting on said street. The said described lands hereby granted and the said street (fifty feet wide) are shewn on the surveyor’s diagram hereunto annexed.
The lot twenty-two thus referred to was the block originally owned by Patrick. The only part of it thus left vested in Mrs. Patrick and for and in respect of which her use of this street in common with others was thus provided for, was the land which she three years later conveyed to Mrs. McCully under whom appellant claims.
If that is not a reservation and declaration that the right-of-way is “to be held, used, occupied and enjoyed, or” to be “taken or known as part or parcel thereof,” i.e., of said land for which it was thus expressly reserved, what was it for?
It is said she owned the legal estate in the street and hence argued she had no need to reserve any-
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thing but had it as of right. Many people own the legal estate in a street but their right of travel thereon rests not on such legal estate but on the law and facts constituting it a public highway.
It was the incompleteness of the dedication herein that rendered her right to the use thereof in any way doubtful. And if she had happened to give by her several grants, including that to Henderson, rights-of-way to be used by each of these grantees, in common with the others named, over the place, and failed to reserve the like right to herself and said nothing more, then clearly she would have faced the very grave difficulty that these grants of right-of-way to such a specific number of enumerated persons, or a class of persons, in common, might be treated as exclusive of any other. If there had been no right-of-way reserved, then those having in such case a grant of way in common to and for themselves as grantees thereof, might have claimed these as exclusive rights-of-way and restrained any one else using the same place for right-of-way to serve any other property, such as the remainder of the block.
This is so common an incident in transactions relative to rights-of-way, or rights-of-way in common, that one is surprised to hear it argued that as of course because she had the legal estate therefor she could grant to some one else an equal privilege and destroy the value of the right-of-way she had granted.
The very argument put forward now for respondent rests upon this right of exclusion, or might have been rested thereon to protect those others who alone had rights in common to travel there if none had been reserved to serve the other property. If nothing else
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had interfered they need not have feared intrusion from any one else.
It is by getting a clear conception of what the actual legal position would have been under grants in common limited to only a certain class of persons and the rights springing therefrom, that we get a clear notion of what this reservation meant in law. It is idle to talk of her legal estate, for that would not have entitled her in face of limited grants in common to invade such rights and derogate therefrom by either intruding upon the privacy or cumbering improperly a way confined to a few.
Of course there are so many indications of a purpose to dedicate to the public this space of ground, that the legal rights I am illustrating by may not be needed to protect appellant. The simple and clear propositions of law involved in this reservation and its consequences under the circumstances ought, however, to suffice.
It seems quite clear that this reservation to serve the uses of the land later sold to Mrs. McCully, was well designed in law and enabled Mrs. Patrick to add thereby to the value thereof whilst in her hands and to make of it merchandise, as beyond a shadow of doubt she did. And when her grant to Mrs. McCully is read in light thereof, and all else that appears in the surrounding facts and circumstances, which in every case must be considered if proper effect is to be given to deeds made under said Act, there is no doubt in my mind but that the right of way over “Ancroft Place” to serve the land conveyed to Mrs. McCully, passed by that grant. There is also some evidence of an actual user of the space as a right of way to reach a rear en-
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trance to said lands by means of bars when the lot was used as a pasture field before the grant to Mrs. McCully.
If the intention existed as seems pretty evident it did, to dedicate the said land as a public highway, and only failed, if it did fail (as to which I express no opinion) for want of clear acceptance by the public, or authority representing the public, there was at the time of the said grant surely the clear purpose that the right-of-way was to be taken and enjoyed as part of the thing granted unless we are to suppose the people bargaining were bereft of common sense. It was so clearly to the advantage of her selling, to give it and get for it a price nowhere else available, and of her buying, that she should acquire what would be worth to her more than to any person else.
She or her successors in title ought not to be made to buy it over again.
It is urged the description in the deed being by metes and bounds instead of using the line of Rachel Street or “Ancroft Place” as one of the boundaries rebuts the presumption. A glance at the plan shews this was impracticable or inexpedient because the southerly boundary of the land conveyed ran in a straight line past and beyond the limits of “Ancroft Place.”
If Mrs. Patrick instead of selling the whole block to Mrs. McCully had sold to any one a small rear lot carved out of it and not fronting on either Sherbourne Street or Maple Avenue, but of which the boundary on the south coincided with the north line
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of “Ancroft Place” and no entrance or exit had been provided on either Maple Avenue or Sherbourne Street, and no more had appeared in the deed than in this to Mrs. McCully, and the grantee had been perverse enough to want a way of necessity to either Maple Avenue or Sherbourne Street, instead of using this apparent road Ancroft Place furnished, how would such a grantee be treated by any court hearing him insist on such a way of necessity? Would the court not tell him that it was clear he had a way out by Ancroft Place and could not so insist? Would it not be clear that on the facts this was a way “enjoyed or taken or known as part or parcel” of the land granted him?
In every case of this sort the facts must be looked at and the true position inferred therefrom or injustice may be done in many cases.
The leading authorities were all cited and if the case is reported they will appear in the report of argument hereof.
I have examined many of those cited and others, but do not think it necessary to review them. For those, however, who desire to know more accurately than I can express myself what I think should ever guide in such cases, I would refer to the language of Cotton L.J. in Birmingham, Dudley and District Banking Co. v. Ross, at foot of page 308 and top of page 309, where he was dealing with a case regarding a question of light and the implied rights of the parties resultant from their dealings. The case may not appear so apposite as others to be found in some of the leading
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cases, but his language is so expressive of the principle to be adopted in this class of cases that I need not seek elsewhere a means of presenting it. If such must be the view to be taken regarding an implied obligation, how much more so relative to the effect of an express grant carrying what corresponds thereto so far as the language of the statute will fit the facts.
Although much has been urged as to dedication and the case has gone off in that way in the courts below, I do not think it necessary to deal therewith to dispose of the action.
The action fails on the merits as to the alleged trespass without disposing of a number of interesting legal questions, and should be dismissed with costs.
The appellant is entitled to an injunction as prayed for in his counterclaim restraining the respondent from obstructing or otherwise interfering with the appellant’s user and enjoyment of “Ancroft Place” for the purposes of a way.
DUFF J. (dissenting).—There are several grounds upon which I think this appeal ought to be allowed. My views can, I think, be best stated by setting out first in chronological order the more important material facts. The accompanying sketch shows the situation of the appellant’s property. The street marked as “50-foot street” on the sketch is the way which will be hereinafter referred to as Rachel Street or “Ancroft Place.” The whole of the property shown in the sketch including the “50-foot street” is comprised in lot 22, as shown upon a plan that, at the commence-
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ment of the transactions to which I shall have to refer, was registered in the Registry Office of the County of York, as plan No. 329. On this registered plan the “50-foot street” is not shown. In 1874 one Thaddeus Patrick became the owner of lot 22. Although not shown on the plan, this “50-foot street” was then an existing street having defined northerly and southerly limits. On the south side there were two adjoining houses having a common party-wall facing the street. In 1875, Patrick conveyed one of these houses together with a block of land having a frontage of 66 feet on Rachel Street to the Rev. Jos. Ellwell. The northern boundary of the plot of land is described in the conveyance as “the southern limit of a street 50 feet in width.” In 1882, after the death of Thaddeus Patrick, Rachel Patrick, his widow and devisee, conveyed the adjoining house, together with the plot of land connected with it, to Dr. Davies, and the northerly boundary of this plot is described in the conveyance as “the southerly limit of a street 50 feet wide.” At that time the street appears to have extended easterly at least to the boundary between the lots 22 and 23. In 1884, it is stated by one of the witnesses that there were stables on the southerly side of the street, at least as far east as that line. At that time (1884), there were ornamental trees following the line of the street on both sides, and there was a well marked waggon track in the centre. Some time prior to the 8th of July, 1884, it does not appear precisely when, a survey of lot 22 was made, and a plan drawn which was attached to a conveyance of part of the lot from
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Rachel Patrick to James Henderson, that was executed on that date. The accompanying sketch reproduces this plan with the addition of the legends “appellant’s property,” “property sold to McCully,” and the dotted line running north and south between Maple Avenue and Rachel Street. The street in question is the subject of various stipulations in this conveyance. It is described as running easterly from Sherbourne to the “land hereinafter conveyed” and as being of the
full width of 50 feet measured across said street and at right angles to its northerly and southerly limits.
The other provisions relating to it are as follows:—
Together with the free and uninterrupted use and right of way at all times in perpetuity to the said James Henderson his heirs or assigns and his and their servants in, over and upon the said street fifty feet wide in common with the said Rachel Patrick her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any part of said lot twenty-two abutting on said street. The said described lands hereby granted and the said street (fifty feet wide) are shown on the surveyor’s diagram hereunto annexed.
Together with the right at any time after one year from the date hereof to register the plan of sub-division of said lot twenty-two as hereunto annexed and showing when registered the land hereby granted to the said James Henderson and the said fifty feet street and for that purpose to use and sign the name of the said Rachel Patrick and her assigns.
And the said party of the first part hereby further covenants with the said party of the second part that upon any laying out or plotting of said lot twenty-two and upon any plan thereof whether for the purposes of registration or otherwise the said street of the full width of fifty feet shall be laid down and appear as the same is shown on the hereunto annexed diagram.
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In 1887, the municipal boundaries of Toronto were extended so as to embrace part of the Township of York and thereafter the locality in question came within the limits of St. Paul’s Ward. In the summer of that year lot 22 was for the first time placed upon the municipal assessment rolls of Toronto. Mr. Unwin, a well-known surveyor in Toronto, who was the assessor for St. Paul’s Ward in that year and in each year for 15 years thereafter, gave evidence at the trial. He says that the area included within Rachel Street, as shewn upon the sketch, was laid out upon the ground as a street and was entered by him in the assessment roll as a public street running off Sherbourne Street; that this area was treated as the site of a public highway and as such was not assessed and was not taxed by the municipal authorities down to the time of the trial in 1911. He says, moreover, that the Ellwell, Davies and Henderson properties were assessed as fronting on this street.
It was in November, 1887, that the whole of that part of lot 22 situated north of the northerly limit of Rachel Street and of the lands conveyed to Henderson, including what is now the appellant’s property, was sold by Mrs. Patrick. Before going into the details of this transaction it may be noted that by this sale Mrs. Patrick divested herself of all the lands she then held adjoining or in any way communicating with Rachel Street. The purchaser was a Dr. McCully. The conveyance was taken in the name of his wife, but the purchase money was paid by him, and it was he who made the agreement of purchase. Dr. McCully was then living in Toronto, though a few years afterwards, for reasons which he explains in his evidence, he went to the United States. He was
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examined as a witness at Dallas, Texas, in May, 1911, six months before the trial. It was not suggested in cross-examination that he had any interest which could in any way affect his evidence, and though there was ample time after his examination before the trial to investigate his statements, he was not contradicted in any material particular. He says that, in 1887, he accidentally learned that the Toronto Street Railway Co. was likely to extend its line across the Rosedale Ravine on Sherbourne Street past the property in question. He says he had had his eye on the property since 1884 and that immediately (having ascertained that it was then on the market) he entered into negotiations for the purchase of it. Mrs. Patrick’s agent, through whom he bought the property, was a solicitor practising in Toronto, and McCully says he made it a particular point to ask him whether the road at the south of the property was a street and that he was assured by the agent that it was. He regarded the point as of great importance, he says, because his plan was to divide the property into four 50-foot lots facing Maple Avenue with stables in the rear, having an entrance from Rachel Street. That entrance he considered, he says, enhanced the value of the property by at least $1,000. In the following year he changed his plans, and sold the property en bloc to one James Dickson, a commission merchant in Toronto. Dickson built a house upon it and a stable. He placed a gate on Maple Avenue and another opening on Rachel Street, and the stable could be approached by either entrance. Dickson kept horses in the stable two or three days each week during several years. Sometimes he used the Maple Avenue entrance, sometimes the Rachel Street entrance. One would gather from his evidence
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that he used the Maple Avenue entrance more frequently during the first two years. Afterwards, the Sherbourne Street bridge having been built in 1890, he used the Rachel Street entrance more frequently. In 1895 he sold the house, retaining the stable, and left Toronto to reside elsewhere. In 1897 the stable was mortgaged, and in 1899, through a sale made under a power contained in the mortgage, the stable became the property of Mrs. Cockburn to whom the house had already been sold. During the four years which elapsed between Dickson’s departure and the purchase of the stable by Mrs. Cockburn, the stable appears to have been occupied during two winters and summers and the Rachel Street entrance was used by the occupants. From 1899 down to 1909 the stable appears to have been let from time to time and during the whole of the period the Rachel Street entrance was made use of by the tenants of the stable as well as for various other purposes connected with the appellant’s property, such for example as the collection of garbage by the municipal scavenging department. In the meantime Henderson had built a house at the end of the street on the property acquired by him from Mrs. Patrick by the deed of 1884. Sidewalks had been laid down, the roadway improved, a gas lamp had been set up in front of Henderson’s gate by the City Fire Department under the authority of the municipal council at the expense of the city; the name Rachel Street had been changed to “Ancroft Place.” The present appellant bought the property in 1905 from Mrs. Cockburn and built on it a brick stable with an entrance from Ancroft Place. In the various instruments dealing with the property subsequent to McCully’s conveyance to Dickson, the property was
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described as fronting on a street. In 1910 the respondent, having in the meantime acquired the Henderson, Ellwell and Davies properties, that is to say, the properties adjoining Ancroft Place with the exception of that owned by the appellant, obtained from Mrs. Patrick a quitclaim of her interest in the site of the street, and then proceeded to block up the entrance to the appellant’s property from “Ancroft Place.”
In these circumstances the appellant’s title to a right of access to Sherbourne Street by way of “Ancroft Place” may be supported, it appears to me, on at least two grounds; first, an express grant of the right, and secondly, I think the conduct of Mrs. Patrick, before and after the sale to McCully, taken together with the circumstances of that transaction, disentitle her and her successor (who is not and does not pretend to be a purchaser for value without notice) from preventing the appellant using Rachel Street as a street affording communication to and from Sherbourne Street with the southern boundary of her property.
The facts established justify the inferences that Mrs. Patrick and her late husband always entertained the design that Rachel Street should be a street affording access to the parts of lot 22 adjoining it; that in accordance with that design she had the street surveyed and laid out as a street on the ground in 1884; that the sale to McCully in 1887 proceeded on the footing that the property was bounded on the south by a street and that this circumstance was one of the elements of value which went to determine the price paid by McCully; that thereafter in accordance with the same design Mrs. Patrick permitted the successive occupants of the property bought by McCully to use
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the street as of right for all the purposes of a street; and that these purchasers acting as she intended they should act and as the situation created by her naturally encouraged them to act, purchased and dealt with this property from time to time upon the same footing upon which the sale to McCully took place.
The first point of importance is that Mrs. Patrick in selling to McCully in 1884 dealt with the property sold upon the footing that the area known as Rachel Street was set apart permanently as a street for the accommodation inter alia of the property sold and that she dealt with it in this way deliberately with the object of getting the benefit of this circumstance in the price realized upon the sale.
I have already pointed out that, by the sale to Henderson in 1884, Mrs. Patrick dispossessed herself of all of lot 22 except that parcel afterwards sold to McCully and Rachel Street. As a result of the stipulation in the conveyance to McCully, Rachel Street became useless to her for any purpose except as affording a means of access to the parcel afterwards sold. Henderson was expressly given the right to use it as a street; the other property owners on the south side already had that right. The street was formally laid out on the ground as such, and a plan was prepared of it which Henderson was given the right to register after the expiration of a year. In no circumstances could this plot be used by her in any manner inconsistent with its destination as a street without the consent of these owners, and if Henderson chose to register the plan, the street would “be converted into a public highway.” Obviously in a practical sense her interest in Rachel Street consisted solely in the fact
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that the right to use it as a street gave additional value to the property on the north side which she still owned. In these circumstances it is hardly conceivable that in selling that property she should think of separating the title of that property from the right to use Rachel Street. By doing that she would be denuding the property sold of an obvious and important element of value without retaining anything which would be of any present or probable value to her; because, apart from other considerations, it is obvious that if Henderson, registered the plan, and the street in consequence became a public street, the purchaser would get the benefit of it whether he had paid for that benefit or not. The declaration in the conveyance to Henderson shews that she had this in contemplation at the time the street was laid out in 1884; and her subsequent conduct is hardly consistent with any other view than that she supposed the purchaser of the McCully property had acquired the right to use the street. In face of the declaration in the deed of 1884, it cannot be supposed that Mrs. Patrick was not alive to the advantages of Rachel Street as an accommodation to the property on the north side. Is it conceivable, if on the sale to McCully she deliberately withheld the benefit of this accommodation (and we must imagine this in order to suppose that it was not taken into account as an element in the price), that she would have remained silent and inactive for the 22 years following that sale while the street was being actively enjoyed (for at least 18 out of the 22 years) as an accommodation by McCully’s successors in title?
I do not think it is conceivable; and I do not think it is consistent with the facts to suppose that the right to use Rachel Street as a means of access to the
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property sold was not regarded by Mrs. Patrick as one of the elements of value which were represented by the price paid by McCully.
Mrs. Patrick’s intention being that the title to the property afterwards sold to McCully should not be separated from the right to use Rachel Street, but that Rachel Street should be a permanent street for the accommodation inter alia of that property there can, I think, be little doubt that McCully was in fact invited to enter into the purchase (as it was intended by the vendor he should be) on the footing of Rachel Street being of that character; and that he did enter into it upon that footing.
In this connection the importance of the fact of Rachel Street having been laid out on the ground as a street has, I think, been overlooked in the court below. The effect of it is shewn by the action of Mr. Unwin, a surveyor of long experience, when he came to assess lot 22 in the summer of 1887. What he saw led him to treat Rachel Street as a public street; and I think the significance of what he did has not been sufficiently attended to. His duty was to assess all land not specifically exempt from taxation. If Rachel Street was not a public street, it was his duty to assess it. On the other hand if it was a public street it was his duty to take that fact into consideration in putting a value upon the property having access to it. There can be no doubt that this was done. This consequence followed from the fact that this public official, who of course knew his duty and who was at the time an experienced surveyor, deliberately concluded from what he saw in 1887 that this street had been laid off as, and in fact was, a public street.
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In these circumstances, having regard to Mrs. Patrick’s known intention respecting this street, one cannot doubt that her agent was acting entirely in accordance with his duty in answering McCully’s inquiry as McCully says he did or that McCully in view of the visible signs that Rachel Street had been set apart as a street, was entitled to accept the agent’s assurance as he says he did, and to act upon the footing of Rachel Street being in reality that which it appeared to everybody to be.
In passing one may notice Mr. Ludwig’s contention that the absence from the deed to McCully of any reference to Rachel Street justifies the inference that McCully asked for a right of way, and that it was refused. Such a supposition is, for the reasons I have already mentioned, altogether untenable and, moreover, it is impossible to suppose that the respondent, who claims through Mrs. Patrick, could not have ascertained who the agent of Mrs. Patrick was and contradicted McCully’s testimony if it was not in accordance with the fact.
There are two alternative grounds in my opinion upon which in these circumstances McCully could have maintained his right to use Rachel Street as against Mrs. Patrick.
1st. The laying out of the property in the manner referred to and the representation of the agent that Rachel Street was a street, might reasonably have led to the belief in the mind of McCully that the street was in fact a public highway. If so, then the vendor would be estopped from denying that it was so in fact.
2nd. If that was not the belief which the existing circumstances and the agent’s assurance were calcu-
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lated to create in McCully’s mind, then at least the statement of the agent was in the circumstances calculated, as it was no doubt intended, to convey to McCully an assurance upon which he was entitled to rely that Rachel Street was what it appeared to be, namely, a street laid off as a permanent accommodation for the property he was negotiating for, and it amounted to a representation that the property was being offered for sale on that footing. In the circumstances such a statement so intended would amount to a promise that no obstruction would be placed in the way of the enjoyment of the street by McCuIly or his successor in title binding on the vendor within the principle of Piggott v. Stratton, as explained in Spicer v. Martin, at page 23. The Statute of Frauds would be no obstacle in the circumstances of this case. It was, of course, argued that such a promise ought to have been expressed in the deed. The same argument was presented in Piggott v. Stratton14 and it is dealt with by Lindley L.J., in Martin v. Spicer, at page 12; see also Heilbut, Symons & Co. v. Buckleton, at pages 37 and 49.
The case in favour of McCully’s successors is still stronger. The effect of the representation conveyed by the conduct of Mrs. Patrick in dealing with the property would be intensified as every year passed by and as Rachel Street continued to be used by the occupants of the property in question under the belief that they were rightfully entitled to the enjoyment of it, and as the property continued to be assessed for taxation purposes upon that assumption. It is argued that there is no evidence shewing Mrs. Patrick
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to have been aware of this user. That I think is of little, if any, importance in view of the fact that the evidence points so clearly to this user being in accordance with Mrs. Patrick’s own intentions. In these circumstances, the appellant is, I think, entitled to rely upon the principle stated in various forms in Cairncross v. Lorimer, by Lord Campbell; in Oliver v. King; in Russell v. Watts, at page 613.
The appellant’s case, however, does not, in my opinion, rest upon the above considerations alone. The conveyance from Mrs. Patrick to McCully must be construed by reference to section 12, of chapter 119, R.S.O., which is as follows:—
12.—(1) Every conveyance of land, unless an exception is specially made therein, shall he held and construed to include all houses, out-houses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, light, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to the lands therein comprised, belonging or in anywise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof; and if the same purports to convey an estate in fee, also the reversion or reversions, remainder and remainders, yearly and other rents, issues, and profits of the same lands and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever, of the grantor, in, to, out of, or upon the same lands, and every part and parcel thereof, with their and every of their appurtenances.
(2) Except as to conveyances under the former Acts relating to short forms of conveyances, this section applies only to conveyances made after the 1st day of July, 1886.
For the purpose of applying this enactment I accept the conclusion of the court below that Rachel Street was not a public highway. It was nevertheless known generally as a “street” as the evidence of
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Mr. Unwin abundantly shews. A “street” is of course not merely a way. In popular language it signifies a way having, or intended or expected to have houses on both sides of it. Imperial Dictionary, vo. “Street.” Mayor of Portsmouth v. Smith; Pound v. Plumpstead Board of Works; Robinson v. Local Board of Barton-Eccles, at pages 801 and 809; United States v. Bain, and presumptively it is a way for the accommodation of all property adjoining it. The effect of the stipulations in the deeds already referred to was to stamp Rachel Street with that character, and it may be noted that all these deeds would, as a matter of course (as relating to lot 22, and executed by Mrs. Patrick or her husband) be examined by anybody searching the title on behalf of McCully. Mrs. Patrick had by these stipulations disabled herself from using it physically for any purpose inconsistent with its character as a “street.” Her interest in it as a “street” therefore was the interest she had as the owner of the property sold to McCully as affording a particular means of access to that property. In its character of “street” or way, it was, from her point of view, an adjunct of that property and of no other property, and its only value to her in that character was as a right which as an adjunct to that property would increase the selling value of it.
The physical situation, moreover, gave it the “apparent” character of a street for the accommodation inter alia of that property. It had been laid off on the ground not as a mere private way for the benefit of specific properties, but as a “street” with all which
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that, as already indicated, implies. Its character was obvious as Mr. Unwin’s action and evidence shew; a gateway affording an entrance to the property on the north could not have made that character more obvious.
In these circumstances it is impossible to class this accommodation in its relation to the property in question as a “discontinuous” or “non-apparent” accommodation. Its permanent character and its obvious relation to the property were plain to everybody. It seems impossible to hold that the signe apparente was wanting.
We are, I think, to apply the above enactment as if the language describing the subjects mentioned were used in the conveyance as descriptive of the subjects intended to be conveyed. So construing it I cannot escape the conclusion that the way in question, as a way, was “taken and known as part or parcel” of the property conveyed; that, to paraphrase the words of Bowen L.J. in Bayley v. Great Western Rway. Co., at page 453,
taking the thing broadly and endeavouring to judge what the intention of the parties as expressed by their language is * * * the grantor intended to give and that
the grantee “should have” the benefit of this way.
I have not considered the question whether a right-of-way has been established by prescription, nor whether “Ancroft Place” is a public highway. In the view expressed above it is unnecessary to pass upon either of these questions.
ANGLIN J.—The facts of this case are fully set out in the judgment of the trial judge. His con-
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clusion, affirmed by the Court of Appeal, that the evidence did not establish either dedication of the land in question as a public highway, or the acquisition, by prescriptive title, of an easement over it, appurtenant to the land owned by the defendant, is so clearly right that it is not surprising that the appeal on these grounds was but faintly pressed at Bar.
On behalf of the appellant it was urged, however, that the preparing and annexing to the Henderson deed (for accuracy of description) of a surveyor’s sketch, which shews Ancroft Place as a lane or private street, had the effect of making it a public highway by virtue of section 67 of chapter 146, R.S.O., 1877, “The Surveys Act,” continued in 50 Vict. chapter 25, section 62, and R.S.O. 1897, ch. 181, sec. 39. At the time the Henderson deed was registered the land in question was still in the Township of York and the statutory provision relied on did not then apply to township lands. This land, however, afterwards became part of the city of Toronto and by subsequent legislation the provision of “The Surveys Act” was extended to townships. R.S.O., 1897, ch. 181, sec. 39. Assuming that, either by reason of the land coming into the city, or because the subsequent amendment extending it to townships should be held to be retroactive (I think it should not, Gooderham v. City of Toronto), this statutory provision would apply to the plan annexed to the Henderson deed, if otherwise within it, I am of the opinion that the legislature did not mean to give to the preparation of surveyors’ sketches such as that in question, made merely to ensure accuracy of description, the effect of dedication
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as public highways of any private lanes or streets shewn thereon. This ground of appeal, which is not referred to in the judgments below or in the reasons for appeal to the Court of Appeal, and is said to be now taken for the first time, cannot, I think, be maintained.
But counsel for the appellant relied most strongly on a provision of the “Law and Transfer of Property Act,” 50 Vict. ch. 20, sec. 5; R.S.O., 1887, ch. 100, sec. 12. The material parts of this section, as quoted in the appellant’s factum, are as follows:—
Every conveyance of land, unless an exception is specially made therein, shall be held and construed to include all * * * ways * * * easements * * * and appurtenances whatsoever, to the lands therein comprised, belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof.
His counsel contends that this legislation imported into the conveyance from Mrs. Patrick to Helen McCully (21 Nov. 1887), under which the defendant claims, a grant of a right-of-way over the land in question.
The whole effect of this statutory provision is that every conveyance to which it applies, unless it contains an express exception, is to be read as if the words set out in the section formed part of the description of the premises conveyed.
Thaddeus Patrick owned the entire lot, No. 22, which comprised the lands lying to the south and east of “Ancroft Place” (now the property of the plaintiff), the land lying to the north (now the property of the defendant) and also “Ancroft Place” itself. In selling the lands to the south and east he and his wife, who succeeded him in title, gave to their grantees, rights of way over “Ancroft Place” to be enjoyed by them and
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their successors in title in common with the owners of other abutting lands. The last of the conveyances of these lands—that from Mrs. Patrick to Henderson, made in July 1884—contains these clauses, which follow the description of the lands conveyed:—
Together with the free and uninterrupted use and right-of-way at all times in perpetuity to the said James Henderson his heirs or assigns and his and their servants in, over and upon the said street fifty feet wide in common with the said Rachel Patrick her heirs and assigns and the persons to whom she or her late husband has already or may hereafter grant any part of said lot twenty-two abutting on said street. The said described lands hereby granted and the said street (fifty feet wide) are shewn on the surveyor’s diagram hereunto annexed.
To have and to hold unto the said party of the second part his heirs and assigns to and for his and their sole and only use forever.
Together with the right at any time after one year from the date hereof to register the plan of sub-division of said lot twenty-two as hereunto annexed and shewing when registered the land hereby granted to the said James Henderson and the said fifty feet street and for that purpose to use and sign the name of the said Rachel Patrick and her assigns.
And also the following:—
And the said party of the first part hereby further covenants with the said party of the second part that upon any laying out or plotting of said lot twenty-two and upon any plan thereof whether for the purposes of registration or otherwise the said street of the full width of fifty feet shall he laid down and appear as the same is shewn on the hereunto annexed diagram.
This latter covenant conferred rights only upon the grantee Henderson and his successors in title to the property conveyed to him. The defendant is not an assignee of it and it is not so annexed to the land to the north of Ancroft Place that the benefit of it would pass by a mere conveyance of that land. Reid v. Bickerstaff.
The provision authorizing Henderson to register the plan and to use the name of Rachel Patrick and her
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assigns for that purpose has never been acted upon. The presence of these clauses in the Henderson deed, however, and the special grant to him of a right of way on the fifty-foot “street” makes clear the intention of the parties to it that “Ancroft Place” should not become a public highway by virtue of what was then being done. As a result of the several deeds to Elwell, Davis and Henderson of the southern and eastern parcels, Mrs. Patrick remained the owner in fee of “Ancroft Place” subject to the rights-of-way over it which she and her husband had given to these grantees. The words of reservation in the Henderson grant in favour of Mrs. Patrick and subsequent grantees of the portion of the lot which she still held lying to the north of “Ancroft Place” were perhaps inserted ex majori cautelâ to preclude any possible claim by the grantees of the southern and eastern parts of lot 22 that they had amongst them an exclusive right-of-way over this private street. They probably also expressed Mrs. Patrick’s intention at that time with regard to the northern part of the lot she retained. But they certainly did not in any way bind her to make use of “Ancroft Place” for the purposes of ingress and egress in connection with the land which she retained, or to give that right to her subsequent grantee or grantees.
As the owner of the fee in “Ancroft Place” Mrs. Patrick could not have an easement over it. While she held it and also the adjoining land to the north there could not be in respect of “Ancroft Place”
a way, easement or appurtenance (to that adjoining land) belonging or in any wise appertaining, or with the same demised, held, used, occupied and enjoyed;
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nor, in my opinion, could there then be “a way, easement or appurtenance” over “Ancroft Place” “taken or known as part or parcel of” such adjoining lands. Her ownership of the fee in “Ancroft Place” was inconsistent with the existence of any such way, easement or appurtenance in connection with adjoining land also owned by her. It might probably be held on that ground alone that the statutory provision invoked by the appellant did not give to the conveyance from Mrs. Patrick to Mrs. McCully the effect of carrying to the latter the right of way which the defendant now claims to be appurtenant to the land which she bought.
It should be noted that the Ontario statute does not contain the words “or reputed to appertain” which follow the word “appertaining” in the English “Conveyancing Act.” The English statute might well be taken to include so called “quasi-easements” which would not pass under the language of the Ontario Act.
The earlier portions of the section of the “Law and Transfer of Property Act” above quoted clearly do not aid the defendant to substantiate his claim. But he places special reliance on the concluding words “taken or known as part or parcel thereof,” on an assumption that under them something may pass which is not legally “a way, easement or appurtenance” because exercised over land in which the fee belongs to the owner of the tenement to which such “way, easement or appurtenance,” if it had a legal existence as such, would belong or appertain. The basis of the appellant’s argument, so far as I am able to understand it, is that if the owner of two adjoining parcels of land—A and B—uses parcel B as a means of ingress and egress to and from parcel A, his exercise of that right over parcel B may be regarded as some-
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thing in the nature of a quasi-easement “taken or known as part or parcel of” parcel A. Assuming that these latter words imported by the statute are susceptible of such a construction—I think they are not—in order to determine whether they accomplish what the appellant maintains they do it becomes necessary to consider the conditions which obtained on the ground at or before the time Mrs. McCully bought from Mrs. Patrick (and perhaps immediately afterwards), in regard to the existence or user of “Ancroft Place” as a means of access to the property now owned by the defendant. International Tea Stores Co. v. Hobbs; Brown v. Alabaster.
Dr. McCully says that when he bought for his wife, in 1887, the land now owned by the defendant it was fenced along “Ancroft Place.” He says there was a bar or slat gate on the Maple Avenue frontage, but makes no allusion to any opening in the fence along “Ancroft Place.” While Mrs. McCully held this land there were no buildings on it. James Dickson, who bought from Mrs. McCully in 1888, says that the south side of the property was then enclosed by a rough rail fence with no entry to “Ancroft Place” (then Rachel Street). James Lovack, who built the fence on the north side of Rachel Street in 1876 or 1877 says it was “just a common fence, straight along, upright boards.” He does not suggest that there was any gate or opening through it to Rachel Street. These witnesses were all called for the defendant. The only witness who speaks of an opening in the fence in question at this period is one White who says he pastured a cow on what is now the defendant’s lot in 1876-7
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and again in 1892-3. But White says he never knew the lane or street by any other name than “Ancroft Place.” Yet it was called Rachel Street until about 1894. White speaks of the pasture as being “through Ancroft Place”—”East.” He says he pastured in the same field in 1892 as in 1876-7, and he speaks of the pasture field of 1892 as being “at the end of Ancroft Place”—”east of Ancroft Place.” He says when he first pastured there, in 1876-7, the fence was “broken down.” But in fact the rail fence put up by Lovack was at that time newly built. White’s story that he took a cow in through a gate made of bars or slats in a fence on the north side of Rachel Street in 1876 or 1877 appears to be quite unreliable. It may be that he refers to a later period after Dickson had bought and, in place of the old wooden fence, had erected a wire fence in which he put a gate; or that he went in at the eastern end of Rachel Street through the property afterwards bought by Henderson; or possibly that he went in on the north side, after the fence built by Lovack had become “broken down,” through some gap made in it by the ravages of time, or possibly by himself as a trespasser. He gives no account of any right which he had to go upon or use this land as a pasture prior to Dickson’s ownership. His evidence is quite insufficient to displace that of Lovack, who built the fence in 1876-7; of McCully, who bought in 1887 and says he was very anxious about the right of access to Rachel Street and that he made many careful inspections of the property before purchasing (neither of whom suggested that there was any gateway in the fence); and of Mr. Dickson, who says that when he bought from McCully in 1888 there was no entry in the fence forming the boundary between the property
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which he purchased and Rachel Street. The defendant has, in my opinion, failed to shew that at or prior to the time of Mrs. McCully’s purchase (or immediately afterwards, if that would suffice), “Ancroft Place” was used as a means of egress and ingress in connection with the land conveyed to her or that there was anything upon the premises to indicate to a purchaser of that land that a right of way over “Ancroft Place” would pass with it. Moreover, upon this question of pure fact the appellant is confronted with the adverse findings of the trial judge and the unanimous Court of Appeal. Were the evidence supporting them less clear than it is these findings could not be lightly set aside. The provision of the “Law and Transfer of Property Act” which the defendant invokes, even if construed as he contends it should be, does not assist him to establish his claim.
His counsel placed some reliance on a statement which Dr. McCully says was made to him by the “agent” through whom he bought from Mrs. Patrick, to the effect that Rachel Street was a public highway. The name of the agent is not given and there is no attempt made to shew that it was within the scope of any authority which he may have had from Mrs. Patrick to make such a representation. Dr. McCully says this agent was the solicitor in whose office the transaction was carried out.
Finally some reliance was placed on the plan annexed to the Henderson deed as creating some sort of equitable estoppel. But there is no evidence that Dr. McCully, or any one acting for him or his wife, ever saw or knew of the existence of that plan. The Henderson deed is not in the chain of title to the property which Mrs. McCully bought and it may well
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be that her solicitor in searching title, if any such search was made, would not see that deed or the plan annexed to it. There is absolutely nothing to shew that any reliance was placed upon it at the time of the McCully purchase.
The description of the land conveyed in the deed from Mrs. Patrick to Mrs. McCully contains no reference to Rachel Street, which is not even given as a boundary of it. Having regard to the anxiety which Dr. McCully says he then felt and manifested as to the availability of Rachel Street as a means of access to his wife’s property, this omission is, to say the least, singular. If it indicates anything, it is that Mrs. Patrick had abandoned any intention she may ever have had of giving to the grantee of the land lying to the north of Rachel Street a right of way over it.
On the whole case there does not appear to be any tangible ground on which the defendant can rest a legal claim to a right of way over “Ancroft Place.”
The appeal, in my opinion, fails and should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Montgomery, Fleury & Co.
Solicitors for the respondent: Ritchie, Ludwig & Ballantyne.
L.R. 1 Q.B. 156, at page 161.
37 Ch. D. 490, at pp. 502-7.
8 DeG. M. & G. 110, at p. 118.
13 Q.B.D. 184; 10 App. Cas. 364.
L.R. 7 Q.B. 183, at p. 194.
24 Fed. Cas. 940, at p. 943.
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