Supreme Court of Canada
Attorney-General of Canada v. Higbie, [1945] S.C.R. 385
Date: 1945-03-23
The Attorney General Of Canada (Plaintiff) Appellant;
and
Western Higbie and Albion Investments Ltd. (Defendants) Respondents;
and
The Attorney General for British Columbia Intervener.
1944: October 5, 6, 10, 11, 12, 13; 1945: March 23.
Present: Rinfret C.J. and Kerwin, Hudson, Taschereau and Rand JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law—Foreshore—Public harbour—Dispute between Dominion and Province as to ownership—Provincial order in council recognizing Dominion's right—Power to pass—Validity of—Whether author
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izing legislation necessary—Admission of fact contained in order in council—"Public Harbour" in B.N.A. Act—Whether Coal Harbour a "public harbour"—Transfer of Crown land by Province to Dominion—Residuum of royal prerogative—Crown grant of land "with appurtenances"—Land or foreshore not included in—Prescription—Nullum Tempus Act—Riparian rights—Erection of building and making of fill on foreshore—Whether mesne profits due the Crown.
The Attorney General of Canada, on behalf of the Dominion Crown, sued to recover possession (and mesne profits) of the foreshore of a lot fronting on an indentation of Burrard Inlet, known as Coal Harbour, in British Columbia. The action was maintained by the trial judge; but that judgment was reversed by a majority of the Court of Appeal.
Held that the judgment appealed from ([1944] 1 W.W.R. 615) should be set aside and that the judgment at the trial, declaring the ownership and right of possession of the foreshore to be in the appellant and that the respondents were liable for mesne profits to the Crown, should be restored.
Controversy over harbours in British Columbia and disputes as to the ownership of the foreshores, as between the Dominion and the Province, were resolved in 1924 by a provincial order in council (a reciprocal Dominion order in council being also passed in practically identical terms) made without legislative authority or ratification, whereby it was agreed that six harbours therein mentioned, including Burrard Inlet, were declared to be public harbours within the meaning of schedule 3 of the B.N.A. Act, that they became the property of Canada thereunder and that the Province transferred to the Dominion any interest which it might have in the foreshores of these six harbours. The appellant contended that the executive authority of the Province had power to pass the order in council, while the respondents argued that it was lacking in legislative authority or statutory ratification.
Held, per the Chief Justice and Kerwin, Hudson and Taschereau JJ., that the Provincial order in council must be held as valid to the extent that it contains an unequivocal admission of fact that every piece of foreshore in every part of Burrard Inlet was at the relevant time used for public harbour purposes and thus became the property of the Dominion. There is nothing to prevent the Executive of the Province to make such admission. Tweedie v. The King (52 Can. S.C.R. 197) ref.
Per the Chief Justice and Taschereau J.:—The Provincial order in council, moreover, contained a valid recognition from the Province to the Dominion of the latter's jurisdiction over Burrard Inlet including Coal Harbour and its foreshore.
Per Rand J.:—The Provincial executive cannot transfer "property" of the Province, without legislative sanction, to another executive and legislative administration. The provincial function is exercised under provincial legislative control and that authority, in the absence of legislation, cannot extend to an act merely of transferring its own proper subject-matter to another executive: it would rather be a surrender than an exercise of function. But, where the situation of fact is, in the opinion of the government concerned,
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one of doubt and uncertainty, it lies within the authority of the provincial executive to give formal binding recognition to a claim asserted by the Dominion. The effect of the order in council is therefore limited to an agreement or acknowledgment of boundary at high water, and, as between the two jurisdictions, such an acknowledgment concludes the question. But as to private rights different considerations arise; and in some cases, a third person remains entitled to contest the fact of Crown right ownership. The respondents may be entitled to advance their claim on the footing of the fact as found in the action, but they are entitled to no more; and where, in such case, they fail to establish a prescriptive right against either the Province or the Dominion, as here, they fail likewise in an answer to the claim of the appellant.
Per the Chief Justice and Taschereau J.:—The orders in council, either from the Dominion or the Province, may not be lacking in legislative authority or ratification in view of certain statutory enactments referred to by the appellant; but, even if they were, these orders in council were Acts of the highest authority and they were acted upon by both parties to them for more than seventeen years when this action was instituted. They constitute, as already stated, an unequivocal admission that these harbours became the property of the Dominion, not only at the date of the orders in council, but also in 1871 at the time when British Columbia entered Confederation.
Per the Chief Justice and Taschereau J.:—The orders in council may also be upheld as valid, because both Governments, in acting as they did, were exercising powers which are part of the residual prerogative of the Crown, or because the transfer from one Government to another is not appropriately effected by ordinary conveyance: His Majesty the King does not convey to himself.—If, however, it had to be assumed that the orders in council were invalid without legislative approval, it should be pointed out that "The Land Act" of British Columbia imposed no restrictions on a transfer from the Province to the Dominion—When the Crown in right of the Province transfers land to the Crown in right of the Dominion, there is no real conveyance of property, since His Majesty The King remains the owner in either case and, therefore, it is only the administration of the property which passes from the control of the Executive of the Province to the Executive of the Dominion.
Per the Chief Justice and Taschereau J.:—Coal Harbour was part of a "public harbour" in 1871 and, as such, it came under the jurisdiction of the Federal Government. The particular spot of the foreshore, in this case, is within the ambit of the harbour and forms a part of it. The trial judge so found, and that finding, coupled with that made by Duff J. in 1904 (Atty. Gen. for B.C. v. C.P.R. Co. 11 B.C.R. 289, at 291) should be given preference over the decision of the Court of Appeal.
Per Kerwin and Hudson JJ.—Upon the evidence alone, it cannot be found that the foreshore in question formed part of that public harbour, were it not for the two orders in council. In the Canadian Pacific Railway case (supra), it is apparent that the question of fact was confined to the particular piece of foreshore there in question.
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The respondents also contended that, even if the order in council was effective without legislative approval, it was nevertheless subject to a prior grant from the Crown provincial to the respondents' predecessors in title, that the grant was of an upland lot "with appurtenances" and that, these words being ambiguous, the intention of the Crown must have been to pass title to the foreshore.
Held that the foreshore did not pass to the respondents under the grant. The language of the description in the grant is clear and the intent unambiguous. There was no express grant of the foreshore and it is not to be implied. Standing alone, the word "appurtenances" does not include land: land cannot be appurtenant to land.
Held also that the respondents have not discharged the onus of establishing acquisitions of the foreshore by prescription. The evidence is not sufficient under the Nullum Tempus Act (9 Geo. III, c. 16) to establish that the respondents and their predecessors in title have had such possession of the foreshore as is sufficient to oust the title of the Crown.
Held that this Court does not concur in the holding of the trial judge, that the respondents "have never had any riparian rights over the said land arising out of their title to (their) lot or otherwise".
Held, per the Chief Justice and Kerwin, Hudson and Taschereau JJ.:—The erection by the respondents of a substantial structure and the making of a fill on part of the foreshore adjoining their lot cannot be justified as the exercise of riparian rights arising out of their title. The respondents are therefore liable for mesne profits to the Crown appellant.
Per Kerwin, Hudson and Rand JJ.:—It cannot be inferred from what was shown that by their acts the respondents intended to surrender rights attaching to their upland property.
Per Rand J.:—In the circumstances, the appellant is entitled to mesne profits if any can be shown; but they must be profits arising beyond that use of the foreshore which may be found to be within the exercise of riparian privileges.
APPEAL from the judgment of the Court of Appeal for British Columbia , reversing the judgment of the trial judge, Manson J. and dismissing the appellant's action.
F. P. Varcoe K.C., A. M. Russell and D. W. Mundell for the appellant.
C. H. Locke K.C. and T. G. McLelan for the respondents.
Eric Pepler K.C. for the intervener.
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The judgment of the Chief Justice and of Taschereau J. was delivered by
THE CHIEF JUSTICE—The Attorney General of Canada sues on behalf of His Majesty the King in right of His Dominion of Canada to get possession of the land covered by water in the bed of Coal Harbour, in Burrard Inlet, in the harbour of Vancouver, in front of that certain parcel or tract of land situate, lying and being in the city of Vancouver, in the province of British Columbia, known and described as Lot Six (6), Block Sixty-four (64), District Lot One Hundred and Eighty-five (185), Group One (1), New Westminster District, Plan Ninety-two (92).
The contention is that His Majesty the King, before the month of July, 1928, was in possession of the said land covered by water and that, on or before that time, one George F. Johnson, who was then the owner, unlawfully took possession of the said land; and that in or about the month of June, 1936, Johnson sold to the respondent Higbie, who wrongfully took and still wrongfully keeps possession of the said land in contempt of His Majesty and to His great loss and damage.
The conclusions of the statement of claim are for possession of the said land, for mesne profits from the month of June, 1936, at the rate of $300.36 per annum, and the costs of the action.
The action was at first directed against Higbie alone, but, as it was found later that he had sold to the other respondent, Albion Investments Ltd., the latter was subsequently added as a party defendant.
Higbie is a hotel keeper, proprietor of Lynwood Inn, in North Vancouver.
His Majesty's claim is for the legal and beneficial interest of the land in question, having an area of 30,036 square feet, and it is alleged that His Majesty took possession in 1792 and kept it continuously until 1928 when Johnson unlawfully took possession, although His Majesty had never made any conveyance of it.
It would appear that originally, in 1938, the claim was only for possession, but in 1941 ownership of the Crown was asserted.
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The points in issue are as follows:—
(1) Whether His Majesty in right of the Dominion of Canada has title to, or is entitled to possession of, the foreshore as against the respondents. The respondents deny His Majesty's right in connection therewith.
(2) Whether the respondents by the grant of land with appurtenances to their predecessors in title made in 1867 and by subsequent deeds thereof acquired title to the foreshore, being the land lying between mean high water mark and the low water mark. The respondents' contention is that Higbie had such title during the whole period in which he was the owner of Lot 6, and that Albion Investments Ltd. now has title to the said foreshore.
(3) Alternatively, whether the respondents acquired title to the said foreshore by prescription.
(4) Whether an artificial fill has been made in front of Lot 6, and that the mean high water mark is below the old mean high water mark said to constitute the northerly boundary of said Lot 6. The respondents contend, while denying that there is any artificial fill lying to the north of the mean high water mark as of the date of the grant to Brighouse et al., that if there is any such fill it is upon the foreshore of which the respondent company has title by conveyance as aforesaid. Moreover, the respondents say that, if the present mean high water mark lies to the north of such former mean high water mark, such change and any accretions have been caused by the natural action of the sea, or arise from a fair use of the Upland, and that the respondent company, as the owner of the Upland, is entitled to any such accretions.
(5) Whether the respondents have or ever had any riparian rights over the said foreshore arising out of their title to Lot 6 or otherwise. The respondents contend, in the alternative to their claim that they respectively acquired title to the foreshore, that the respondent Higbie had, and Albion Investments Ltd. now has, all the riparian rights incidental to the ownership of an Upland Lot fronting on tidal waters, and that they have not exceeded such rights in their use of the foreshore.
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In the Supreme Court of British Columbia, Manson J. gave judgment in favour of the appellant, but in the Court of Appeal his judgment was reversed by the majority of that Court, McDonald C.J.B.C., with whom Robertson J.A. concurred, while Sloan J.A. would have affirmed the judgment of the trial judge.
The points in respect of which error is alleged in the judgment of the Court of Appeal are as follows:—
(1) In holding that the Provincial order in council was of no effect and that the lands in question could be disposed of by the legislature of British Columbia and in no other manner.
(2) In interpreting the judgment of Mr. Justice Newcombe in The Saskatchewan Natural Resources Reference to mean that an order in council or despatch to effectuate the purpose intended in this case must always have legislative authority upon which His Majesty's Ministers may act.
(3) In holding that the lands in question could not be granted by the Crown in exercise of its prerogative.
(4) In holding that the Imperial statute (1874) 37-38 Vict., cap. 92, being An Act to provide for the transfer to the Admiralty and the Secretary of State for the War Department of Alderney Harbour and certain lands near it supported the argument as to the necessity of legislation.
(5) In holding that the transfer in question implies a diminution in provincial territorial limits contrary to the British North America Act, 1871, being 34 Vict., cap. 28, sec. 3.
In this Court it was further submitted that the appeal should be allowed for the following reasons:—
(1) Prior to 1871 title to public lands of the Colony of British Columbia was vested in the Crown and it so remained without any change after the Province entered Confederation in 1871, and accordingly the prerogative of the Crown to deal with the same remained unaltered subject to any statutory provisions binding the Crown.
(2) The order in council in question was made and the transfer effected by virtue of the prerogative power of the Crown.
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(3) The transfer in question was properly made by order in council.
(4) The appeal should be allowed for the reasons given by Mr. Justice Sloan.
The respondents specifically deny that Coal Harbour is in Burrard Inlet, or in the Vancouver Harbour area, and, accordingly, that it ever formed part of a public harbour previous to the 20th of July, 1871, when British Columbia came into the Confederation. They also claim title, through a Crown grant, to District Lot 185 unto Sam Brighouse, William Hailstone and John Morton, dated the 20th of May, 1867, or alternatively through prescription; and they also contend that anything done by them on the foreshore in question was done exclusively in the exercise of their riparian rights.
According to them, the chain of titles was as follows:—
John Morton, having acquired the interests of Brighouse and Hailstone, to whom the Crown grant had been jointly made with himself, conveyed to Sir Donald A. Smith and Richard B. Angus on December 2nd, 1887. Sir Donald Smith, having become Lord Strathcona, and R. B. Angus conveyed to George Frederick Johnson on the 3rd of August, 1899. Johnson conveyed to Higbie and the latter to Albion Investments Ltd. Higbie owned Lot 6 from June, 1936 to November, 1939, when he conveyed to the other respondent.
The Crown grant was of
all that parcel or lot of land situate in the District of New Westminster said to contain Five hundred and fifty (550) acres and numbered Lot One Hundred and Eighty-five (185), Group One (1), on the official plan or survey of the said District in the Colony of British Columbia: to have and to hold the said parcel or lot of land, and all and singular the premises hereby granted with their appurtenances.
The conveyance in 1885 from Brighouse and Hailstone to Morton was only of certain portions of the said Crown granted property, with appurtenances thereto.
Then, in 1887, the conveyance from John Morton to Sir Donald Smith and R. B. Angus conveyed a subdivision thereof, being Lot 6, Block 64, District Lot 185, Group 1, New Westminster District, Plan 92, with appurtenances thereto; and the conveyance to George Frederick Johnson was in similar terms.
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The facts are that on the foreshore in question Higbie put, and the other respondent still has, a small wooden float, consisting of logs with planking on top of them, three to four feet in width and extending in length some three or four hundred feet. It is built in sections and supported by piles to keep it in place. It is tied to the piles, and floats up and down with the tide. It is the common kind of floating wharf which one sees up and down the coast. There is an open shed, a kind of dry-dock, and there is a slip which runs out from that for probably two hundred or three hundred feet, the slip having little rails along it. The witnesses called them "marine ways".
Moreover, as found by the learned trial judge, on a certain point there is a fill four or five feet high, consisting of several loads of material. It was described by the witness McElhanney, who was asked by the Court to make a special visit for that purpose, as amounting to ten waggon loads, 40 or 50 yards of earth, and sufficient to stop the water coming in.
It consists of bricks, scrap iron shavings, old rags, a certain percentage of dirt—common soil—and the usual collection of waterfront rubbish that you find under sheds *** The slipways forms a sloping roadway in the centre, and the shed is perhaps 10 or 12 feet clear on each side in which the rails or gangway don't operate,
according to the witness Kerr. All this was done by the respondents without any formal protest, or objection, being forthcoming on behalf of the Crown.
In the particulars to their statement of defence, the respondents stated that their acts of possession consisted of:—
(b) (1) Maintaining a log boom and grounding logs.
(2) Anchoring and grounding small craft.
(3) Preventing the intrusion of the public or the embarking or disembarking of the public over the foreshore.
(4) Removal of sand and rocks and deposit of filling materials.
(5) Building and maintaining floats and slipways.
(6) Consenting to the deposit of suitable materials on the foreshore and by objecting to and preventing the deposit of unsuitable material.
(7) Depositing suitable material and dredging a slipways.
(8) Erection of groins and jetties and the driving or piling.
(9) The building and repair of small boats.
(c) All acts of and incidental to the ownership of said land.
(d) A slipway and piling.
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(e) Boom piling by the original Crown Grantees in 1867 and a slipway and piling by George F. Johnson in 1900.
(f) This Defendant, his predecessors and successor in title have been in continuous possession of the whole of the said land.
It was claimed, however, in this Court, that the question of the artificial fill was neither pleaded nor raised, although found by the trial judge, who, according to the respondents, should not have dealt with it. It was said further there was no evidence to support the finding of the learned trial judge on that point, and indeed, on the evidence, that it was doubtful whether there was any such fill.
At all events, counsel for the respondents argued that there was no intention on their part to convert into hinterland that particular part of the foreshore, or to abandon their riparian rights.
On the other hand, the appellant's contention is that there was ample evidence to justify the finding of the trial judge on that point.
Certain admissions were made by the parties to the effect that the land in question in this action was the property of the Crown Imperial in or about the year 1792, and that, in the event of a decision in favour of His Majesty the King, whereby it would be held that he is entitled to possession of the land claimed and has sustained loss because of the wrongful deprivation of the beneficial use of said land, then said loss would be the mesne profits computed on a fair rental value; that in all the conveyances forming the chain of title either the words "with their appurtenances" occur in the description of the property conveyed, or, by virtue of the Land Registry Act and the Short Form of Deeds Act and its predecessors, the effect of such conveyances is the same as if such words were included therein; and finally that Higbie was the owner in possession of Lot 6, Block 64, District Lot 185, Group 1, New Westminster District, Plan No. 92, with appurtenances thereto, from June, 1936 until the month of November, 1939.
The other defendants, Marine Sales and Service Ltd. and Vancouver Shipyards Ltd., were added subsequent to the service of the action, but without prejudice to the plea of prescription. Judgment went by default against them and no appeal was taken by them from that judgment.
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It may be mentioned also that the judgment of Manson J. ordered that there should be no costs to any of the parties in this action. The appellant, brought in the Court of Appeal by the present respondents, entered a cross-appeal praying that Higbie and Albion Investments Ltd. do pay the present appellant the costs of the action. The Court of Appeal adjudged that the cross-appeal be dismissed with costs. In this Court no reference was made to the cross-appeal in the course of the argument.
We may now deal with the several points in issue in the case, and the first question is whether His Majesty in right of the Dominion of Canada has title to, or is entitled to possession of, the foreshore as against the respondents.
There is no doubt that prior to the time when British Columbia entered Confederation in 1871 the foreshore was Crown property of the Colony, now the province of British Columbia and, therefore, in order to succeed, the appellant had the onus of proving that it had since passed to His Majesty in right of the Dominion of Canada.
The appellant endeavoured to establish his title upon two grounds:—
(1) He said that in 1871, on the date when British Columbia became part of the Dominion of Canada, Coal Harbour, on which Lot No. 6 abuts, was part of Burrard Inlet and of the harbour of Vancouver, which was then a public harbour, and that it passed to the Dominion of Canada under section 108 of the British North America Act, whereby the public works and property of each province enumerated in the third schedule to the Act became the property of Canada. (Public harbours in that schedule are included as No. 2).
(2) As the result of certain orders in council adopted simultaneously by the Government of the province of British Columbia on May 6, 1924 and by the Government of the Dominion of Canada on June 7, 1924.
It is now well settled by decisions of the Privy Council (The Fisheries case, Attorney General for Canada v. Attorney General for Ontario ; Attorney General for British Columbia v. Canadian Pacific Railway Co. ;
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Attorney General for Canada v. Ritchie Contracting and Supply Co. that the questions whether a certain area was a public harbour, within the meaning of the Schedule, at the time of Confederation, and also whether a certain particular point of that area formed part of the harbour, stand to be decided as questions of fact.
The learned trial judge found, upon all the evidence, that, notwithstanding it was contended by the defendants that Coal Harbour was not part of Burrard Inlet,
all the evidence is to the contrary. It is simply an indentation along the westerly reaches of Burrard Inlet to the north of the peninsular *** and to the east of Stanley Park.
This finding is in accord with that of Duff J., as he then was, in Attorney General for British Columbia v. Canadian Pacific Railway, , where he observed:—
*** at the time of the admission of British Columbia into Canada that part of Burrard Inlet between the First and Second Narrows was a public harbour ***
That finding of fact was not disturbed on appeal to the Full Court of British Columbia .
Manson J. concluded that part of his judgment by saying:—
Coal Harbour was part of a public harbour on 20th July, 1871, and as such became by virtue of S. 108 of the B.N.A. Act, 1867, the property of Canada.
However, on behalf of the respondents, it was urged that there is no sufficient evidence to support that finding; and for that view it must be said that the respondents may rely on the judgment of the Court of Appeal where even Sloan J., the dissenting judge, agreed that the area in question was not proven to have been, prior to 1871, a harbour and in use as such by vessels engaged in commerce.
There is no doubt that it was not easy for the appellant to find witnesses who could testify as to the state of things more than seventy years before the trial. Those who were heard on that point had to rely upon plans, photographs and charts, as well as descriptions contained in, for instance, an extract from "A Voyage of Discovery to the North Pacific Ocean and Round the World", by
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Captain George Vancouver, or "British Columbia Pilot, volume 1", containing sailing directions for the coasts of Vancouver Island and part of British Columbia.
The chart most relied on was that which was published under the orders of the Honourable the Minister of Mines and Resources for Canada, as a result of surveys made by Mr. H. D. Parizeau, Mr. W. K. Willis and assistants, 1920-29. It shows an anchorage in the vicinity of Coal Harbour.
There was also another chart prepared by Captain Richards in 1858, and several other plans, or sketches, were put in as evidence.
Although such evidence was admissible as being no doubt the best evidence available (The King v. The Ship "Emma K" et al. , and further as there was no objection to their production at trial, it must be admitted that these plans, charts, and the testimony of the witnesses referring to them, leaves the matter in a somewhat unsatisfactory state; but the finding, already referred to, of Mr. Justice Duff, as he then was, in Attorney General for British Columbia v. Canadian Pacific Railway Co. may not be disregarded. Even if it was made in a case between parties different from those in the present case, it is, nevertheless, a finding upon facts and circumstances identical with those in this case; and I cannot see why the question whether Vancouver Harbour and Burrard Inlet constituted a public harbour in 1871 should have to be reopened every time the question comes up before the courts. The decision of Mr. Justice Duff was upheld by the Privy Council , and the question whether there was, or there was not, a public harbour in 1871 within that particular area, should, in my opinion, be considered as established once and for all.
Of course, there remains the further question whether the particular spot with which we are concerned in the premises is within the ambit of the harbour and forms a part of it (Attorney General for Canada v. Ritchie Contracting and Supply Co. ; His Majesty the King v. The Attorney General of Ontario and Forrest .
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As to that point, the present case went to trial more than seventy years after the pertinent date of July 20, 1871, and it was inevitable that the evidence should be lacking, at least in some particulars. We have, however, the finding of the learned trial judge, while the Court of Appeal was of opinion that the area in question was not proven to have been, prior to 1871, a public harbour and in use as such by vessels engaged in commerce. But we would be inclined to hold that the finding of the learned trial judge, coupled with that made by Mr. Justice Duff in 1904, should be given preference, having regard to the fact that it can only be expected so long after the material date, and more and more as we get further from 1871, that the evidence will be harder to obtain (if indeed not altogether impossible to get) from witnesses who are still living and who have had occasion of acquainting themselves with the situation as it then was.
In the case Mr. Justice Duff so expressed himself, the action was for a declaration that the public had a right of access to the waters of Vancouver Harbour through certain streets, that the streets at the time of the construction of the Canadian Pacific Railway were public highways extending to low water mark and that the public right of passage over said highways existed at the time of the admission of British Columbia into Canada, but that these public rights had been extinguished or suspended by reason of the construction of the railway. The decision was that the foreshore of Vancouver Harbour is under the jurisdiction of the Parliament of Canada, either as having formed part of the harbour at the time of the union of British Columbia with the Dominion, or by reason of the jurisdiction of the Dominion attaching at the Union. It was also decided that the Act respecting the Canadian Pacific Railway, 44 Vict., cap. 1, should not be construed in the same way as an ordinary Act of incorporation of an ordinary railway, but that it should be interpreted in a broad spirit, and bearing in mind the objects sought to be accomplished.
Mr. Justice Duff's decision was affirmed by the Full Court of British Columbia sitting in appeal.
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These decisions, both from Mr. Justice Duff and from the Full Court of British Columbia, were upheld by the Privy Council. (Attorney General for British Columbia v. Canadian Pacific Railway . They were rendered in a case where the province of British Columbia had full opportunity to submit all the facts and arguments on the particular question with which we are now dealing; they declared that the foreshore of Vancouver Harbour passed under the jurisdiction of the Parliament of Canada at the time of Union, and it should not be open to individuals, such as the respondents in the present case, to ask the courts to again review that question. It should be regarded, it seems to me, as having been decided as against the whole of the public, including the parties in the present case, and as having been definitely settled.
For those reasons, I would think that the learned trial judge was right in holding that Coal Harbour was part of a public harbour in 1871 and, as such, that it came under the jurisdiction of the Federal Parliament, at least for the purposes with which we are concerned here.
But there is, to my mind, a further reason why we should so hold, and it is to be found in the two orders in council respectively from the Government of British Columbia and the Government of Canada in 1924. They are worded in practically identical terms. They begin by referring to section 108, schedule 3 of the British North America Act, and to the Order of Her late Majesty in Council, dated the 16th May, 1871, and stating that public harbours in British Columbia became the property of Canada as of the 20th day of July, 1871. They proceed to say that some doubt has existed as to what is comprised in the expression "public harbours" in schedule 3 of the British North America Act, and that it has been held by the Judicial Committee of the Privy Council that the question whether any harbour or any particular part thereof is included is a question of fact dependent upon the circumstances of each case, but that a natural harbour not actually used for harbour purposes at the date of the Union is not included.
Then they state that it is desirable in the public interest that the property which belongs to Canada under the designation "public harbours" should be definitely ascertained,
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and negotiations have accordingly been carried on between the Dominion and Provincial Governments with a view to reaching a settlement of all outstanding questions between the two governments in this connection and agreeing upon certain defined areas as being the property of Canada under said designation.
That as the result of conferences between the representatives of the two Governments it has been mutually agreed that the harbours of Victoria, Esquimalt, Nanaimo, Alberni, Burrard Inlet and New Westminster, as described in the schedule attached to the order in council and marked "A", and as shown by the respective maps annexed thereto, were and are public harbours within the meaning of schedule 3 of the British North America Act and became and are the property of Canada thereunder.
That it has been further agreed between the two Governments that the ownership of all other ungranted foreshore of tidal and non-tidal waters and lands covered with water in British Columbia, except any foreshore and lands covered with water within the Railway Belt, belong to and are vested in the Province.
That is has been further agreed that any grants or transfers by one government to the other shall not be affected by this Order, and all such grants and transfers which may have been made prior to the date hereof shall be ratified and confirmed by this Order, and moreover that nothing herein contained shall affect the title of the Dominion to any lands or property acquired under any other provisions of the British North America Act, or otherwise than by virtue of the designation "public harbours" in the said Act.
That it has been further agreed that where the Dominion Government has, prior to the date of this Order, treated as a public harbour other than Victoria, Esquimalt, Nanaimo, Alberni, Burrard Inlet and New Westminster, the Government of the province of British Columbia will consider the transfer of such part or parts of such harbour as may reasonably be required by the Dominion Government for public purposes *** and that the Province will furnish to the Dominion full particulars of all grants, quit claims and leases or other concessions which may have been granted by the Prov-
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ince in respect of foreshore or lands covered with water in British Columbia and being within the limits of the said six public harbours hereinbefore defined, for the purpose of enabling the Dominion to consider and determine the terms and conditions upon which any such grant, quit claim or concession should be confirmed prior to confirmation of the said grant, quit claim or concession by the Dominion.
The orders in council conclude by stating that the agreement above recited is hereby ratified and confirmed, and that all the right, title and interest, if any, of the Dominion in any ungranted foreshore of tidal or nontidal waters and lands covered with water in British Columbia outside the boundaries of the six harbours above mentioned, as defined by the said description and plans, and outside the Railway Belt, shall be and the same is hereby transferred to the province of British Columbia, and that a certified copy of the Order shall be transmitted to the Provincial Government and a copy shall be filed in the office of the Registrar of Titles in Vancouver, New Westminster, Victoria, Prince Rupert, Kamloops and Nelson.
In the schedule referred to in the orders in council, Burrard Inlet is described as comprising
all the foreshore and bed of Burrard Inlet and the area adjacent to the entrance thereto lying east of a line drawn south astronomically from the southwest corner of the Capilano Indian Reserve Number Five (5) to high water mark of Stanley Park.
It is common ground that the above description includes Coal Harbour and, accordingly, the foreshore at present in question between the parties in this case.
A map of Lot 185 in Liverpool (Vancouver) and Plan No. 92, to which reference has several times been made in the course of the present reasons for judgment, are there referred to.
On behalf of the respondents, it is argued that these orders in council are invalid, because they lack statutory sanction and because Coal Harbour is said to be simply an indentation of Burrard Inlet.
It cannot be said that the orders in council, either from the Province or from the Dominion, are lacking in legislative authority, or ratification. Counsel, both for the
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appellant and for the province of British Columbia (intervener), were able to point to some statutes giving more or less legislative authority, or ratification, to what was being done through those orders in council by both the Province and the Dominion. But, even if the argument on that point might be said not to be altogether convincing, there remains that these orders in council were acts of the highest authority and they were acted upon by both parties to them for more than seventeen years when the present action was instituted. They constitute an unequivocal admission that these harbours, including the spot now under discussion, became the property of the Dominion, not only at the time when the orders in council were adopted respectively by the interested parties, but also in 1871 at the time when British Columbia entered Confederation.
Of course, it was urged by counsel for the respondents that the Government of British Columbia had no power to make admissions as are contained in the order in council which it passed; but I must confess my inability to accept the argument made on behalf of the respondent on that point.
The orders in council may be upheld as valid, because both Governments, in acting as they did, were exercising powers which are part of the residual prerogative of the Crown, or because the transfer from one Government to another is not appropriately effected by ordinary conveyance. His Majesty the King does not convey to himself. As to that proposition, reference may be made to Attorney General for British Columbia v. Attorney General for Canada ; Esquimalt and Nanaimo Railway Co. v. Treat ; Saskatchewan Natural Resources Reference . In the latter case, Mr. Justice Newcombe, delivering the judgment of this Court, stated, among other things, as follows (p. 275):—
It is objected that, although the Territories were made part of the Dominion and became subject to its legislative control, there was no grant or conveyance of the lands by the Imperial Crown to the Dominion; but that was not requisite, nor was it the proper method of effecting the transaction. It is not by grant inter partes that Crown lands are passed from one branch to another of the King's government; the transfer takes effect, in the absence of special provision, sometimes by order in council, sometimes by despatch. There is only
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one Crown, and the lands belonging to the Crown are and remain vested in it, notwithstanding that the administration of them and the exercise of their beneficial use may, from time to time, as competently authorized, be regulated upon the advice of different Ministers charged with the appropriate service. I will quote the words of Lord Davey in Ontario Mining Company v. Seybold where his Lordship, referring to Lord Watson's judgment in the St. Catherines Milling case , said:—
"In delivering the judgment of the Board, Lord Watson observed that in construing the enactments of the British North America Act, 1867, 'it must always be kept in view that wherever public land with its incidents is described as 'the property of' or as 'belonging to' the Dominion or a province, these expressions merely import that the right to its beneficial use or its proceeds has been appropriated to the Dominion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown.' Their Lordships think that it should be added that the right of disposing of the land can only be exercised by the Crown under the advice of the Ministers of the Dominion or province, as the case may be, to which the beneficial use of the land or its proceeds has been appropriated, and by an instrument under the seal of the Dominion or the province."
It is needless to mention here that, although this was not a judgment in the true sense of the word, but merely what is sometimes referred to as an opinion made in a Reference to this Court by the Governor General in Council as provided for by section 55 of the Supreme Court Act and the special jurisdiction therein given to this Court, we should regard an opinion of that kind as binding upon this Court and, moreover, one which, in the particular circumstances and in view of the wide experience in these matters which must be recognized to Mr. Justice Newcombe, cannot be held but as having the greatest weight and authority.
In the circumstances, we should hold that the orders in council are valid as a conveyance from the Province to the Dominion and, reciprocally, from the Dominion to the Province, of the several lands which are the subject matter thereof and, as a consequence, as a valid conveyance, from the province of British Columbia to the Dominion, of Burrard Inlet, including Coal Harbour and its foreshore; and, moreover, that they constitute an admission by the Province; and we fail to see why such an admission should not be accepted by the courts as a valid recognition of the rights and the jurisdiction of the Dominion in the premises.
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Let us suppose that, instead of having been made by the means adopted by the interested parties, the admission was made by counsel in a case where the question would be in issue. In such a case I cannot see for what reason such an admission would not be accepted by the courts and why it should not be taken as definitely defining the respective rights of the Province and of the Dominion in that regard. It would follow that it is admitted by the province of British Columbia that the Dominion held the foreshore of Coal Harbour as owner since 1871.
Nor can we accept the suggestion made by counsel for the respondents that Mr. Justice Newcombe, in what he said, was dealing only with the form of the conveyance and not with the authority to convey, always provided there was legislative authority upon which His Majesty's Ministers may act.
The passage in question is not qualified by any restriction and I would hold that the orders in council, therefore, were effective to transfer both the property and the jurisdiction to the Dominion of Canada.
If, however, it had to be assumed that the orders in council were invalid without legislative approval, it should be pointed out that The Land Act of British Columbia, (1936) R.S.B.C., cap. 144, imposed no restriction on a transfer from the Province to the Dominion. After all, there is no real conveyance of property, since His Majesty the King remains the owner in either case and, therefore, it is only the administration of the property which passes from the control of the Executive of the Province to the Executive of the Dominion. When the Crown, in right of the Province, transfers land to the Crown, in right of the Dominion, it parts with no right. What takes place is merely a change of administrative control. Theodore v. Duncan ; Burrard Power Co. Ltd. v. The King . In Theodore v. Duncan Viscount Haldane delivering the judgment, stated at p. 706:—
The Crown is one and indivisible throughout the Empire, and it acts in self-governing States on the initiative and advice of its own Ministers in these States. The question is one not of property or of prerogative in the sense of the word in which it signifies the power of the Crown apart from statutory authority, but is one of Ministerial admin-
[Page 405]
istration, and this is confided to the discretion in the present instance of the same set of Ministers under both Acts. With the exercise of that discretion no Court of law can interfere so long as no provision enacted by the Legislature is infringed. The Ministers are responsible for the exercise of their functions to the Crown and to Parliament only, and cannot be controlled by any outside authority, so long as they do nothing that is illegal.
In Burrard Power Co. Ltd. v. The King , Lord Mersey, delivering the judgment, observed (p. 95):—
Before the transfer they were public lands, the proprietary rights in which were held by the Crown in right of the Province. After the transfer they were still public lands, but the proprietary rights were held by the Crown in right of the Dominion ***
And in Esquimalt and Nanaimo Railway Co. v. Treat , Viscount Haldane, dealing with a conveyance, from the province of British Columbia to the Dominion, of the railway belt, observes at p. 360:—
In an instrument which in reality did no more than operate as a transfer by the Crown of administration in right of the Province to administration in right of the Dominion ***
In St. Catherine's Milling & Lumber Co. v. The Queen , Lord Watson, in delivering the judgment, said at p. 56:—
In construing these enactments, it must always be kept in view that, wherever public land with its incidents is described as "the property of" or as "belonging to" the Dominion or a Province, these expressions merely import that the right to its beneficial use, or to its proceeds, has been appropriated to the Dominion or the Province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown.
The legislature of the province of British Columbia has not as yet by any statutory enactment exercised control with respect to the transfer of land from the Province to the Dominion. If it has, the only enactment of the Province empowers the Province to transfer land to the Dominion by order in council.
Moreover, the words "subject to the control of its legislature" do not appear in section 109, and they are simply a statement of the law that the provincial legislature may legislate with respect to such lands.
That the admissions of fact made in the orders in council must be noticed by the courts, and relied on for the purpose of their decisions, would follow from Tweedie v.
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The King . See what is said in that regard by Mr. Justice Duff at pp. 210 and 211. At the foot of page 211 he says:—
This instrument constitutes an admission touching the title to the lands in question made by the only executive authority competent at the time to make admissions on that subject on behalf of the Crown; and, therefore, as an admission on behalf of the Crown it is admissible in my opinion in evidence against the plaintiff in this proceeding.
In the Deadman's Island case , the transfer to the Dominion was by special grant or by despatch, referred to by Mr. Justice Newcombe in the passage quoted in the Saskatchewan Natural Resources Reference ; and the rights of the Dominion Government derived there from were recognized by this Court in Attorney General of Canada v. Cummings et al. and also in the Gonzalves case, which is merely referred to in the same volume , p. 51. The transfer was made by despatch and was upheld as valid and effective by this Court. This cannot be ascertained from the report itself, which is a mere note of the judgment rendered in the case, but a reference to the book in that case shows that the judgment was rendered in reference to an order in council which included Burrard Inlet.
Referring again to the Provincial Land Act, cap. 144, R.S,B.C. 1936, it may be verified that section 70 relates to lands granted by the Crown and that the statute may be regarded as authority to the Government to act by order in council.
It happens that the province of British Columbia was given the right to intervene in this Court and the Attorney General of that province gave his full and complete support to the argument of the Attorney General for Canada, and more particularly to the contention that the orders in council were valid, adding that it should be considered no title passed by them to the Dominion Government and that it was merely a matter of a change of administrative control.
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Both the trial judge, Manson J., and Mr. Justice Sloan (now Chief Justice of British Columbia) in the Court of Appeal came to the conclusion which I have just mentioned, and I fully agree with their conclusion.
Mr. Justice Sloan added that land vested in the Crown, that is to say in His Majesty the King, may, in the absence of restrictive statutory provisions binding the Crown, be alienated by His Majesty in virtue of the Royal prerogative and, according to conventional constitutional custom, through his delegate, and upon the advice of his Ministers. He referred to what was said by Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick :—
*** in Attorney General of Ontario v. Mercer , St. Catherines Milling & Lumber Co. v. The Queen and Attorney General for British Columbia v. Attorney General for Canada their Lordships expressly held that all the subjects described in section 109, and all revenue derived from these subjects continued to be vested in Her Majesty as Sovereign head of each Province.
And in the same case, in a different passage of his judgment, Lord Watson said (at p. 441):—
Their Lordships do not think it necessary to examine in minute detail the provisions of the Act of 1867, which nowhere profess to curtail in any respect the rights and privileges of the Crown, or to disturb the relations then subsisting between the Sovereign and the provinces.
Reference should also be made to what was said by Strong J., as he then was, in The Queen v. Bank of Nova Scotia :—
The most careful scrutiny of that statute will not, however, lead to the discovery of a single word expressly interfering with those rights, and it is a well settled axiom of statutory interpretation, that the rights of the Crown cannot be altered to its prejudice by implication, a point which will have to be considered a little more fully hereafter, but which, it may be said at present, affords a conclusive answer to any argument founded on the British North America Act. Putting aside this rule altogether, I deny, however, that there is anything in the Imperial Legislation of 1867 warranting the least inference or argument that any rights which the Crown possessed at the date of Confederation, in any province becoming a member of the Dominion, were intended to be in the slightest degree affected by the statute; it is true, that the prerogative rights of the Crown were by the statute apportioned between the provinces and the Dominion, but this apportionment in no sense implies the extinguishment of any of them,
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and they therefore continue to subsist in their integrity, however their locality might be altered by the division of powers contained in the new constitutional law.
In Attorney General for Canada v. Attorney General of Ontario , Strong C.J. said:—
That the Crown, although it may delegate to its representatives the exercise of certain prerogatives, cannot voluntarily divest itself of them seems to be a well recognized constitution canon.
The Royal authority of the Crown in the right of the Province is delegated to and vested in the Lieutenant Governor in Council, so far as the Province is concerned, and, as was said by Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick .
A Lieutenant Governor when appointed is as much the representative of Her Majesty for all purposes of provincial government as the Governor General himself is for all purposes of Dominion Government.
In the province of British Columbia the rule, as expressed by section 35 of The Interpretation Act, is that
no provision or enactment in any Act shall affect in any manner or way whatsoever the rights of His Majesty, his heirs or successors, unless it is expressly stated therein that His Majesty shall be bound thereby;
and, therefore, the prerogative of the Crown cannot be affected, except by clear legislative enactment.
The authority of the Government of the province of British Columbia to act as they did flows from the residuum of the Royal prerogative, which is unaffected by statute. That is undoubtedly the effect of the judgment of this Court in the Saskatchewan Natural Resources Reference , and which was affirmed by the Judicial Committee of the Privy Council when that Reference came before it . Lord Atkin, delivering the judgment, said (at p. 40):—
Their Lordships entirely agree with the reasoning of the judgment of Newcombe J. in the Supreme Court.
The whole of the judgment is that the effect of the order in council in question therein, whereby Rupert's Land and the North-Western Territory were admitted into and became part of the Dominion of Canada, and of s. 5 of the Rupert's Land Act, 1868, was that the lands therein which
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were then vested in the Crown, and now are within the boundaries of the province of Saskatchewan, became so vested in the right of the Dominion, and the Dominion was given full control to administer them for the purposes of Canada as a whole, not merely for the inhabitants of the area.
Reference might also be made to the Deadman's Island case , already referred to, where the transfer by despatch was held to be valid without assent or confirmation by Parliament and declared to be effective notwithstanding the absence of legislative approval. (See also Leamy v. The King ; Attorney General for Canada v. Attorneys General for Ontario, Quebec and Nova Scotia ; Holdsworth's "History of English Law", vol. 10, pp. 282, 339, 363, 366, 469; American and English Encyclopedia of Law, second edition, p. 213; Dicey's "The Law of the Constitution", 8th edition, p. 421; Blackstone's Commentaries on the Law of England (Lewis Ed.) pp. 261, 262 and 264; British North America Act 1867, sections 12 and 65).
Finally, the argument of the Attorney General of Canada on this point receives support from An Act to provide for the Government of British Columbia (1858) (Imp.) cap. 99, and the instructions to James Douglas, Esq., who was appointed Governor and Commander-in-Chief in and for the Colony of British Columbia and its dependencies (which may be found in the appendix to the Revised Statutes of British Columbia, 1871); from a proclamation by Governor Douglas on December 2, 1858 and a further proclamation on February 14, 1859, as well as from the ordinance of April 30, 1866, which, although repealed by the ordinance of the 1st of June, 1870, did not, however, affect the prerogative.
Up to the time when British Columbia entered Confederation the title to public lands was in the Crown, and the latter's prerogative in respect thereof was in full effect. The Crown lands remained vested in His Majesty in right of the Province and His Royal prerogative to deal therewith remained unaltered, subject to any provincial statutory provisions binding the Crown, of which there were none.
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I find it unnecessary on that point to again refer to Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick and to Lord Dunedin in Attorney General for British Columbia v. Attorney General for Canada .
After all the true words for "prerogative" in modern expression are "executive power". (Bacon's "Abridgment", pp. 383, 384 and 385; Holdsworth's "History of English Law", pp. 341 and 362; Williams v. Howarth ; In re Silver Bros. Ltd. .
The Land Act of 1911, R.S.B.C. cap. 129, s. 58, contains no restrictive section. Its history goes back, in its present form, to the statute of 1884, cap. 16, s. 88, and the Crown, although not mentioned in it, could, no doubt, take advantage of it. Peter Zakrzewski v. The King ; The Queen v. Cruise . The Crown may take advantage of the act, although not mentioned.
We do not agree with the contention of counsel for the respondents that the Royal prerogative is vested in the legislature and we think it is vested in the Executive. Crown lands are vested in His Majesty the King; and there is no difference in quality between the Crown acting under its prerogative, or under a modern statute. It must be so a fortiori when the exercise of the prerogative is not in respect of an alienation of lands, but merely in respect of a transfer of the administration to the best available use.
It was stated in the judgment of the majority of the Court of Appeal that under the British North America Act, 34 Victoria, cap. 28, s. 3, the Parliament of Canada could from time to time, with the consent of the legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such province; and it was deduced from that that the legislature alone could transfer the lands covered by water, now in question. But, of course, we do not agree that the orders in council constituted a transfer. In our view, they constituted only a change of administrative control. Besides that, they contained admissions that the transfer had really been made
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automatically by force of the British North America Act of 1871, as forming part of a public harbour at the time when British Columbia came into the Confederation. Moreover, a transfer such as this does not affect provincial limits; and it is sufficient to think of a case where certain land is used by the Dominion Government to build a courthouse, or a post office, or such other things, to indicate that the transfer in question does not alter the limits of the province within the meaning of section 3 of chap. 28 of the statute 34-35 Victoria, being the British North America Act of 1871. The lands remained within the provincial territorial limits.
Having come to the conclusion that the Dominion of Canada became the owner of the land covered by water, with which we are dealing here, and that the latter passed under federal jurisdiction in 1871, or at least in 1924 through the orders in council, there remains to be considered the defence made by the respondents on the grounds that they acquired the foreshore, now in discussion, either by Crown grant or by prescription.
The Crown grant invoked by the respondents was a conveyance from the Crown of Lot 185, Group 1, on the official plan or survey of the district of New Westminster in the Colony of British Columbia, on the 20th day of May in the year 1867. It did not in terms include the foreshore in front of the said lot. There was no express grant of the foreshore and it is not to be implied. Moreover, the grant itself does not purport to convey the land down to the low water mark; and it must be remembered that the soil here is prima facie in the Crown. (The Queen v. Musson , per Lord Campbell, C.J.; Lord Fitzhardinge v. Purcell , per Parker J.; Attorney General for Nigeria v. Holt & Co. per Lord Shaw).
The description in the grant has already been adverted to. It reads:—
All that parcel or lot of land situate in the District of New Westminister said to contain Five Hundred and Fifty (550) acres and numbered Lot One Hundred and Eighty-five (185), Group One (1), on the official plan or survey of the said District in the Colony of British Columbia: to have and to hold the said parcel or lot of land and all and singular the premises hereby granted with their appurtenances.
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The language is clear and the intent is unambiguous. For the purpose of construing it, I see no reason to refer to cases which, in any event, have no application to the present one, since it is evident that the language of a particular document cannot be interpreted by reference to different language; and the decisions can be of some use only if the wording is absolutely identical.
In this case the sketch attached to the grant is the best available evidence of the boundary. As shown by the copy of the sketch, Lot 185 was bounded on the north by the waters of Coal Harbour and on the south by English Bay. The location of Lot 6, fronting on Coal Harbour, is shown on Plan 92. It will be noticed that the description does not limit the area by reference to high water mark or low water mark, or otherwise. In support of their contention, the respondents did not rely on the description itself, which, in effect, was confined to an argument that title to the foreshore passed to them under the grant on account of the use therein of the words "with their appurtenances". Their claim was that these words included the foreshore.
We do not think that that contention is sound. Standing alone the word "appurtenances" does not include land. Lister v. Pickford ; Cuthbert v. Robinson ; See Chitty's "Prerogatives of the Crown", p. 392.
Land cannot be appurtenant to land. Leamy v. The King ; Coulson and Forbes on "Waters", 5th ed. at p. 27; Moore's "History of the Foreshore", 3rd ed. at pp. 781, 782 and 783; Neaverson v. Peterborough Rural District Council ; Wood v. Esson , the judgment of Henry, J., p. 253; In re Provincial Fisheries .
We find an elaborate reference to the meaning of the word "appurtenance" by Idington J. in Vaughan v. Eastern Townships Bank . He begins by saying that the statute in that particular case did not in terms, or by any reasonable implication, make the grant of a water record appurtenant to some specific land. Then the learned judge tests that interpretation by asking what would be the
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result of such a conveyance of land. He refers to the definition of the word in Bouvier's Dictionary (vol. 1, p. 158):—
Things belonging to another thing as principal, and which pass as incident to the principal thing.
He refers also to Burton on Real Property (8th edit.), p. 353, par. 1145, repeating Coke on Littleton:—
In general everything which is appendant or appurtenant to land will pass by any conveyance of the land itself, without being specified, and even without the use of the ordinary form "with the appurtenances" at the end of the description.
Then, says the learned judge, you find the interpretation given by authorities cited in Gould on Waters (3rd edit.), p. 465, dealing with similar legislation, stated as follows:—
The ditch when completed is not a mere easement or appurtenance.
He goes on to say that the cases of Strickler v. City of Colorado Springs , and Bloom v. West , are well worth looking at, and he mentions that in those cases it was held as just quoted by him from these several authors. He concludes by these words:—
The greater part of the land might be granted, one part to one, another to another, or for some other purpose to which this never could be supposed to be appurtenant.
Or as intensive farming progressed, a few acres of a whole section might require all the water so granted. Yet, if anything in the theory that it was appurtenant, a man may have, after spending large sums of money on such improvements, his whole property tied up in an undesirable way.
It will be seen, therefore, that the words, "with their appurtenances", are quite inadequate to include the foreshore in the grant, and the plea of the respondents on that score cannot be maintained.
Nor do the respondents fare better on their claim of prescription. As expressed in the statement of defence, the respondent contended that they had been in possession, or through their predecessors, from 1867; but, upon the evidence, it is quite impossible to say that, during the years mentioned, there was continued and uninterrupted ownership of the foreshore by the grantees
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and their successors, or that there was usage of a kind to justify the claim that ownership was acquired by prescription.
The learned trial judge found that prescription was not established and that the evidence did not substantiate the claim that there was uninterrupted use or occupation of the foreshore in front of Lot 6, as far back as 1881, the year from which it was incumbent upon the respondents to show such use or occupation as would form the basis of a claim of prescription of sixty years, that period of time being the length required for prescription against the Crown. In fact, the finding of the learned trial judge on this point was that the evidence indicated that there was no use or occupation for some years after 1881. This finding ought to be read in connection with what Sir Arthur Wilson said in the Judicial Committee of the Privy Council when delivering the judgment in Attorney General for British Columbia v. Canadian Pacific Railway :—
Prior to the time when British Columbia entered the Confederation in 1871, the foreshore in question was Crown property of the Colony, now the Province of British Columbia.
On this point, like Sloan J. in the Court of Appeal, we would not disturb the finding of the trial judge. Indeed that finding was not disturbed even by the majority of the Court of Appeal; and it should not be forgotten that the onus of establishing acquisition by prescription was on the respondents. This statement does not require the citing of authorities, which are abundant; and we may say, moreover, that the proposition is self-evident.
Counsel for the respondents practically admitted that the evidence which he was able to adduce at the trial fell far short of establishing the necessary use or occupation by the respondents. He suggested that the use having been proven for forty years, as he contended, the Court should infer previous use for the required number of years, but we do not see our way clear to found our judgment on this point upon any such contention.
By the provisions of the Nullum Tempus Act, 9 George III, c. 16:—
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The Crown shall not sue any person for or in any wise concerning any lands or hereditaments (other than liberties or franchises), or the rents and profits thereof, by reason of any right or title which has not first accrued within sixty years next before the commencement of the suit, unless the Crown or its predecessors in title have been answered by force of any such right or title the rents or profits thereof (or the rents or profits of any honour, manor, or other hereditament whereof the premises in question are part) within the said space of sixty years (or that the same have been duly in charge to the Crown or have stood insuper of record within such space).
See Lightwood on the Time Limit of Actions, pp. 143 and 148 and Attorney General of Canada v. Cummins et al. in this Court .
We would refer to what was said by Mr. Justice Anglin, as he then was, in Tweedie v. The King :—
From a continuous user of upwards of forty years (such as has been actually proved in this case) an earlier like user may readily be inferred. Chad v. Tilsed . This, coupled with the lease of 1818 and subsequent documents indicative of the character of the right asserted (Re Alston's Estate ), in my opinion suffice to support the defendant's claim to a possessory title under the New Brunswick statute, 6 Wm. IV., ch. 74 (now C.S.N.B., ch. 139, sec. 1).
But it must be noticed that Mr. Justice Anglin refers to a continuous user of upwards of forty years "such as has been actually proved in this case"; and, accordingly, the evidence in that case cannot establish a precedent for the present case. Moreover, the learned judge added
coupled with the lease of 1818 and subsequent documents indicative of the character of the right asserted.
It is impossible, in the circumstances, to compare what Mr. Justice Anglin said in the Tweedie case with what has been proven in the present case, not to say anything of the fact that, outside of what verbal evidence there is here, there are no "documents indicative of the character of the right asserted". Moreover, what was said by Mr. Justice Anglin, as above reproduced, expressed only his own opinion and was not concurred in by the other members of the Court so that, although, of course, having all the weight of an opinion of such a learned judge, the statement he made does not constitute the decision of the Court in
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the Tweedie case and cannot be accepted in favour of the respondents' argument as a precedent and an authority which would bind this Court.
At all events, with due respect, I cannot come to the conclusion that, in a case like this, evidence of a user of forty years, such as is claimed here, will justify the inference that the property has also been used in a similar way for the twenty year period next preceding in a manner to satisfy the Court that prescription has been acquired by the full possession of sixty years required by the statute.
The conduct of the respondents and of their predecessors may not be interpreted to vary the terms of the grant. Mere unilateral acts on the part of the grantees would not be sufficient. There is no evidence relating to the period prior to 1881. In fact, the evidence is that in the earliest period there was no such user; and evidence of a user in 1900 is quite inadmissible to justify any inference for the period anterior to that year.
Perhaps it might be mentioned in passing that in 1924, the year when the orders in council were adopted by the Province and by the Dominion, the sixty years had not yet been reached. The date of the amended claim is February 27, 1941.
Then if the respondents had adduced sufficient evidence, they would still have had to meet the consideration that the Dominion kept records since 1928, in which the property in question appeared as being in the ownership of the Dominion and under the jurisdiction and control of the federal authorities; and we would have to consider the question whether that alone would not be sufficient to interrupt any pretended prescription. In order so to interrupt prescription, the record may only show that the Crown claimed to be the owner.
It is necessary to make a mere reference to a further contention of the Crown in respect to the question of prescription. On March 1, 1939, Johnson, the predecessor of the present respondents, paid to the National Harbours Board the sum of five hundred dollars ($500) "in settlement in full of all claim the Board may have against me personally" in connection with the occupancy of the
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water lot in front of the property prior to the time that he sold the Upland property to Higbie. The Crown advanced the argument that that payment had the effect of interrupting any prescription that may have been current at the time. But it is shown by the letter written by Mr. Johnson, accompanying the payment of the five hundred dollars ($500) that he did so without prejudice "in order to avoid any court action and rather than fight the case". Apparently the National Harbours Board intended to commence action against Higbie. It appeared that the Attorney General for Canada hardly insisted on the effect that such a payment might have. It was made without prejudice and it was so accepted by the Board in its reply to Johnson's letter.
In addition to that, when Johnson made the payment he was no longer in possession of the land. (See Phipson on Evidence, 8th edit., p. 225; Dysart Peerage, (1881), 6 A.C. 489, at 499 and 500.) Such an admission, therefore, could hardly be held against Higbie and the Albion Investments Ltd.
We have, no doubt, said enough to indicate that in our view the plea of prescription entirely fails. (Attorney General for Canada v. Cummings et al. ; The King v. Attorney General of Ontario and Forrest .
Finally, the respondents raised the question of their riparian rights. They said that, as riparian owners of the Upland lot, they were entitled to the beneficial use of the land covered by water in front of it and that, in the exercise of those rights, they had rightly built and maintained thereon shipways and floats to facilitate access to the navigable water, adding that what they had done did not interfere with the public right of navigation.
Now, the action on behalf of His Majesty the King in the right of Canada originally prayed for the possession of the said land covered by water and later, in an amended statement of claim, a declaration that the appellant was the legal and beneficial owner of the said land. A declaration that the respondents have certain riparian rights on the water covered land in front of Lot No. 6 would not
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be a bar to the determination of the right of possession, or of ownership of the Dominion, as prayed for in the action.
The judgment may decide that the use being made by the respondents of the foreshore and land below high water mark is a trespass on Crown lands and is not justified by their riparian rights. The trial judge held that they were trespassers and liable for mesne profits to the Crown. He ordered a reference to the District Registrar of the Court to take an account of the mesne profits due from the respondents to the appellant; and upon the evidence we think that holding and that order of reference were rightly made. (See Cedar Rapids Mfg. and Power Co. v. Lacoste , where Lord Dunedin, delivering the judgment of the Judicial Committee said:—
The River being a navigable river, the bed belongs, according to the law of Canada, to the Crown and no riparian owner can construct works in the bed without the consent of the Crown.
(See also Arsenault v. The King ).
The uses made by the respondents of the foreshore would be in excess of their legal riparian rights, even if we assume that they have any, as to which, consideration would have to be given to the facts referred to in the evidence that an artificial fill was made by the respondents or their predecessors which had the effect of converting into hinterland what the Court thought might have been looked upon as riparian land. (See Lord Fitzhardinge v. Purcell ).
It may well be that Lot No. 6 is no longer a riparian lot, and the learned trial judge so held on the evidence adduced before him at the trial, as well as upon consideration of the particulars delivered by both respondents. (Davie v. Bentinck ; O'Kelly v. Downey ; Roblin Rural Credits Society v. Newton ; Krawczuk v. Ostapovitch ; Gautret v. Egerton .
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We repeat that the learned trial judge found that Lot No. 6 was no longer a riparian lot. The point was not discussed in the Court of Appeal, as the case was decided on other grounds.
Suffice it to say, in conclusion, that in our view the buildings and other constructions made by the respondents, or their predecessors, cannot be looked upon as a mere assertion of their alleged riparian rights. They go much further. It is impossible to assert that the exclusive possession which these buildings and constructions constitute ought to be regarded as the mere exercise of so-called riparian rights.
It is not sufficient to say that these constructions are no impediments to navigation, or that it is not alleged or contended that they constitute a nuisance.
We cannot accede to the contention of the respondents that buildings and constructions of the nature as proven in this case can be maintained on the mere assertion of what the respondents called their riparian rights; and we think that the learned trial judge was perfectly right in dealing with this particular matter as he did in his judgment.
For all these reasons we think the appeal should be allowed and the judgment at the trial restored, with the following restriction:—
The clause of the judgment to the effect that
none of the defendants have or ever had any riparian rights over the said land arising out of their title to the said lot (6) or otherwise,
should be deleted. The appellant is entitled to his costs on the main appeal both here and in the Court of Appeal. No costs should be allowed to the intervenant, nor to the appellant on his cross-appeal in the Court of Appeal.
The judgment of Kerwin and Hudson JJ. was delivered by
KERWIN J.:—In this action, commenced in the Supreme Court of British Columbia, the Attorney General of Canada (on behalf of His Majesty the King in the Right of Canada) sued to recover possession (and mesne profits) of the foreshore in front of Lot 6, Block 64, District Lot 185, Group 1, New Westminster District, Plan 92.
This foreshore is in what is known as Coal Harbour and according to the maps and testimony, Coal Harbour is part of, and is stiuate in, an inlet of the sea known as Burrard Inlet in the province of British Columbia. As stated in the Precious Metals case, Attorney General of British Columbia v. Attorney General of Canada :—
The title to the public lands of British Columbia has all along been, and still is, vested in the Crown; but the right to administer and to dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the province before its admission into the Federal Union.
Included in these public lands is the foreshore in Coal Harbour.
The first question is whether the particular piece of foreshore with which we are concerned became the property of Canada under section 108 of the British North America Act, 1867, and Item 2 "Public Harbours" in the third schedule to that Act. This section and item, by article 10 of the Terms of Union scheduled to the Order of Her Majesty in Council of May 16, 1871, admitting British Columbia to the Union, became applicable to the Province as of July 20, 1871. The latest pronouncement upon such a question is contained in the judgment of the Judicial Committee in The King v. Jalbert .
It was there pointed out by Lord Wright that it had been repeatedly held by the Board, and by this Court, that it is not desirable to attempt a precise or exhaustive definition of the words "public harbour" but that some guiding limitations and rules had been established which are useful in considering such a question as the one under consideration. Merely because the foreshore on the margin of a harbour is Crown property does not mean that it necessarily forms part of the harbour. It may, or may not, do so according to circumstances: Attorney General of Canada v. Attorney General of Ontario et al. (the first Fisheries case). It is a question of fact whether the foreshore at the place in question forms part of the harbour: Attorney General of British Columbia v. Canadian Pacific Railway Company (the Street Ends case having to do
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with part of Burrard Inlet). "Public Harbour" means not merely a place suited by its physical characteristics for use as a harbour but a place to which on the relevant date the public had access as a harbour and which they had actually used for that purpose. In this connection the actual user of the site, both in its character and extent, is material: Attorney General of Canada v. Ritchie Contracting and Supply Co. , where it was held that English Bay, the bay forming the outer approach to Burrard Inlet, was not a public harbour. A small island in God—erich Harbour in Ontario was held by this Court not to form part of what was a public harbour under the Act: The King v. Attorney General of Ontario and Forrest .
At page 726 of the report in the Jalbert case , Lord Wright continues:—
It is clear from these decisions that if what is in question is a particular piece of the foreshore, the issue is not decided by determining whether the harbour is a public harbour but is decided by considering whether even if there is a public harbour within the ambit of which the piece of foreshore is, the piece of foreshore has been actually used as a place of public access for the loading or unloading of ships or similar harbour purposes at the material time. This is a question of fact, not to be concluded by general consideration, such as whether or not there are public works upon it.
Subject to the effect of the Dominion and Provincial orders in council of 1924, referred to later, there is no evidence in this case that the foreshore with which we are dealing had been actually used as a place of public access for the loading and unloading of ships, or similar harbour purposes, on or before June 20, 1871. It was contended that the issue of fact was determined by Mr. Justice Duff (the trial judge in the Street Ends case ) when he stated at page 291:—
I am, however, of the opinion that the lands in question here passed to the Dominion under section 108 of the B.N.A. Act. I find, as a fact, that at the time of the admission of British Columbia into Canada, that part of Burrard Inlet between the First and Second Narrows was a public harbour, and that the parts of the foreshore subject to the public rights of passage referred to were in use as, and were in fact part of the harbour; as was the whole of the foreshore adjoining the townsite of Granville.
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In the judgment in the Privy Council in that case Sir Arthur Wilson, after referring to the ruling in the first Fisheries case proceeds:—
In accordance with that ruling the question whether the foreshore at the place in question formed part of the harbour was in the present case tried as a question of fact, and evidence was given bearing upon it directed to shew that before 1871, when British Columbia joined the Dominion, the foreshore at the point to which the action relates was used for harbour purposes, such as the landing of goods and the like. That evidence was somewhat scanty, but it was perhaps as good as could reasonably be expected with respect to a time so far back, and a time when the harbour was in so early a stage of its commercial development. The evidence satisfied the learned trial judge, and the Full Court agreed with him. Their Lordships see no reason to dissent from the conclusions thus arrived at.
The trial judge in that case when Chief Justice of Canada, states in the Forrest case , at page 139:—
Attorney General for British Columbia v. Canadian Pacific Railway Company was concerned with the title to a very limited part of the foreshore of Burrard Inlet. In that case, evidence was adduced to show that the part of the Inlet adjacent to the part of the foreshore in controversy was in use for harbour purposes in the strictest sense, and the foreshore also, at and prior to the date of the admission of British Columbia into the Union. The finding of fact in that case was based upon that evidence.
It is apparent that the question of fact was confined to the particular piece of foreshore there in question.
While, therefore, I am satisfied that in 1871 Burrard Inlet was a public harbour and that Coal Harbour was a part of it, I would be unable to find that the foreshore in question formed part of that public harbour were it not for the two orders in council mentioned above and which now require consideration. Before dealing with them, there should be mentioned the decision of the British Columbia Court of Appeal in Hadden v. Corporation of the city of North Vancouver . It was there held that as it was not shown that the north shore of the first narrows of Burrard Inlet was part of a public harbour in 1871, a grant from the Dominion Government to the Vancouver Harbour Commissioners and a lease from the latter to the plaintiff conveyed no title.
It thus is evident that as time passed it was becoming increasingly difficult, if not impossible, to show that any particular bit of foreshore was part of a public harbour at
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the relevant date. This fact was realized, and on March 6, 1924, a provincial order in council was passed based upon the report of the Minister of Lands. After referring to the difficulties inherent in the problem, the Minister reported by paragraph 4:—
4. That as the result of conferences between the representatives of the two Governments (Dominion and Provincial) it has been mutually agreed that the harbours of Victoria, Esquimalt, Nanimo, Alberni, Burrard Inlet and New Westminster, as described in the schedule attached hereto marked "A" and as shown by the respective maps annexed thereto, were and are public harbours within the meaning of schedule 3 of the B.N.A. Act and became and are the property of Canada thereunder.
It also appeared that it was further agreed between the two governments that the ownership of all other un-granted foreshore of tidal and non-tidal waters and land covered with water, in the province, except any foreshore and lands covered with water within the Railway Belt, belonged to and were vested in the province. Paragraph 13 reads as follows:—
13. That all the right, title and interest, if any, of the Province of, in and to the foreshore and lands covered with water within the boundaries of the six harbours above mentioned, as defined by the said descriptions and plans, be and the same is hereby transferred to the Dominion.
Among the plans attached to the order in council is one showing Coal Harbour as part of Burrard Inlet, and the description of the latter in the schedule is sufficient to include the former.
The Dominion order in council, dated June 7, 1924, was based upon a report from the Minister of Fisheries. Paragraphs 4 and 5 are the same as paragraphs 3 and 13 of the provincial order in council and annexed are plans and descriptions similar to the ones attached to the Provincial order in council.
The question immediately arises as to the power of the executive authority of British Columbia to pass the Provincial order in council. For the appellant and intervenant, it was argued that such authority may be found in the British Columbia Land Act, which at the date of the order in council was chapter 129 of the Revised Statutes of British Columbia, 1911. Section 7 provides that the right of certain persons to preempt
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any tract of surveyed, unoccupied and unreserved Crown lands should not extend to the foreshore and the tidal lands, and section 50 enacts:—
50. There shall not be granted under the provisions of this Part of this Act any foreshore lands, tidal lands, the bed of the sea, or lands covered by any navigable water, quarries, or lands suitable for fishing-stations or cannery-sites, except by a special order of the Lieutenant-Governor in Council, and upon such terms and conditions as may be therein specified.
Part III of the Act, in which section 50 is found, deals with the sale and free grants of Crown lands. The word "granted" in section 50 is not apt to authorize the Lieutenant-Governor in Council to proceed as in this case and a reading of the Act makes it clear that such a transfer is not contemplated by, or provided for, in the statute.
Mr. Locke referred to the constitutional development in England since the reign of Queen Anne, upon whose accession to the throne the Act which settled the revenue for her reign restrained the Crown, for that and all future reigns, from alienating the Crown lands (Anson's Law and Custom of the Constitution, 4th ed., vol. 2, pt. II, p. 169). He also referred to facts as summarized in the 7th edition of Keith's Constitutional Law at page 381:—
Since the accession of George III, in 1760, it has been customary for succeeding Sovereigns to surrender the hereditary revenues to the nation, to be paid into the Consolidated Fund, in return for a fixed income known as the Civil List, the statutes by which this is effected, termed Civil List Acts, containing a clause preserving the rights of the Crown to the hereditary revenues, and being made to take effect for the life of the reigning Sovereign and six months after.
To the same effect is article 970 of 6 Halsbury, page 722, where it is also pointed out that in return for this surrender, in addition to allowances made to certain members of the Royal family, His Majesty receives a fixed annual income, still known as the Civil List, although now clear of all charges for the Civil Service and other public expenses which are thrown directly on the Consolidated Fund.
How far these matters may require to be considered in Canada is a question that should be left until the occasion arises. In dealing with the words "the property of"
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or "belonging to" the Dominion or a province, as used in the British North America Act, 1867, Lord Watson in St. Catherine's Milling and Lumber Company v. The Queen , states at p. 56:—
these expressions merely import that the right to its (public lands) beneficial use, or to its proceeds, has been appropriated to the Dominion or the Province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown.
If the words "and is subject to the control of the legislature" are more than obiter dicta they might be taken as referring merely to that control which a provincial legislature may undoubtedly exercise and not that it is the sole branch of a Provincial Government to act under all circumstances. Indeed in Ontario Mining Co. v. Seybold , Lord Davey, after setting out, at page 79, an extract from Lord Watson's judgment including that copied above, continues:—
Their Lordships think that it should be added that the right of disposing of the land can only be exercised by the Crown under the advice of the Ministers of the Dominion or province, as the case may be, to which the beneficial use of the land or its proceeds has been appropriated, and by an instrument under the seal of the Dominion or the province.
These words in themselves might be taken as expressing the opposite view but Lord Davey may have intended only to emphasize that the Sovereign's representative could not act except upon the advice of his constitutional advisers.
Counsel for the appellant and for the intervenant treated the matter as an example of the royal prerogative which persists, they contended, in the absence of any statutory restriction upon its exercise. For that they relied generally upon the judgment of Sloan J.A., now Chief Justice of British Columbia. As an exemplification of their argument they point to the following passage in the judgment of Mr. Justice Newcombe, speaking on behalf of the Court, in Re Saskatchewan Natural Resources Act :—
It is objected that, although the Territories were made part of the Dominion and became subject to its legislative control, there was no grant or conveyance of the lands by the Imperial Crown to the Dominion; but that was not requisite, nor was it the proper method of effecting the transaction. It is not by grant inter partes that Crown
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lands are passed from one branch to another of the King's government; the transfer takes effect, in the absence of special provisions, sometimes by Order in Council, sometimes by despatch. There is only one Crown, and the lands belonging to the Crown are and remain vested in it, notwithstanding that the administration of them and the exercise of their beneficial use may, from time to time, as competently authorized, be regulated upon the advice of different Ministers charged with the appropriate service.
This judgment was expressly approved in the Privy Council . As to this, however, I agree with the late Chief Justice of British Columbia that Rupert's Land Act, c. 105 of the Imperial Statutes of 1868 authorized the order in council by which the Northwest Territory was. admitted into and became part of the Dominion, and that Mr. Justice Newcombe was dealing with the operative transfer which was, of course, the order in council, but which had been authorized by statute.
These considerations indicate that in a caseof this character, the Court should not go beyond what is necessary for the determination of the points at issue. Nothing therefore is said upon the broad question raised by these arguments and their applicability to Canada. It is sufficient to refer to paragraph 4 of the provincial order in council. That is an admission by the executive authority of British Columbia that the harbours mentioned were "Public Harbours" within the meaning of Item 2 of Schedule 3 of The British North America Act, 1867, and that by virtue of section 108 of the Act they became, as of July 20, 1871, the "property" of Canada. As explained in the St. Catherine's Milling Company case , this expression merely means that the right to the beneficial use of public land or its proceeds has been appropriated to the Dominion. In view of the judicial decisions as to what is necessary to transfer the administrative control in any particular part of the foreshore of a public harbour from the Province to the Dominion, the admission contained in paragraph 4 must be taken as an admission of fact that every piece of foreshore in every part of Burrard Inlet was at the relevant time used for public harbour purposes. This is reinforced by the fact that the Attorney General of British Columbia was permitted to intervene in the proceedings in this Court and counsel representing him set up, and relied upon, this admis-
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sion to defeat the claim of the respondents. There is nothing to prevent the Executive of the Province, under the circumstances of this case, to make such an admission. See Duff J. in Tweedy v. The King . In this view, paragraph 13 may be treated as either complementary to paragraph 4 or superfluous.
The appellant is therefore entitled to succeed in its claim for possession unless the respondents are able to defeat that claim by some other defence. One is based upon a grant under the Great Seal of the Colony of British Columbia, dated May 20, 1867, whereby there was granted unto Sam Brighouse, William Hailstone and John Morton, their heirs and assigns,
all that parcel or Lot of Land situate in the District of New Westminster said to contain Five hundred and fifty acres and numbered Lot One Hundred and Eighty-five Group One on the official Plan or Survey of the said District in the Colony of British Columbia to Have and to Hold the said parcel or lot of land, and all and singular the premises hereby granted with their appurtenances unto the said Sam Brighouse, William Hailstone and John Morton, their heirs and assigns for ever.
"The official Plan or Survey" is apparently not now available but, as shown by the sketch attached to the grant, Lot 185 was bounded on the north by the waters of Burrard Inlet and on the south by English Bay. Lot 185 was subsequently subdivided and included therein is what is now known as Lot 6, Block 64, District Lot 185, Group 1, New Westminster, Plan 92. It is admitted that the title to Lot 6 passed by a valid chain of title from Brighouse et al. to the defendant, Albion Investments Limited, and that in all of the conveyances forming such chain either the words "with their appurtenances" occur in the description of the property conveyed by such conveyances, or, by virtue of the Land Registry Act and of The Short Form of Deeds Act and its predecessors, the effect of such conveyances is the same as if such words were included therein.
The entire argument on this branch of the case is based on the words in the original grant "with their appurtenances". It is said they are ambiguous and that, therefore, considering the nature and location of Lot 185 in 1867 the intention of the Crown must have been to pass title to the foreshore; and that the user of the fore-
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shore made by the owners of the upland from time to time was admissible to show that the grant was so construed by them. The argument fails in limine as the words are not ambiguous so far as it is sought to make land appurtenant to land. As put by Sir John Romilly in Lister v. Pickford :—
It is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurtenant to land.
The next defence is that a title by prescription had been acquired. The evidence on this branch of the case is not sufficient under The Nullum Tempus Act (9 Geo. III, c. 16) that the defendants and their predecessors in title have had such possession of the foreshore as is sufficient to oust the title of the Crown. This conclusion is arrived at without reference to the inadmissible evidence that in 1939, after he had sold Lot 6 to the respondent Higbie, Johnson paid $500 to the National Harbours Board in settlement of a claim for rent made against him, and without reference to the effect of entries made in the records of the Vancouver Harbour Commissioners and the National Harbours Board.
The contention of the respondents that the erection of a substantial structure and the making of a fill on part of the foreshore adjoining Lot 6 could be justified as the exercise of riparian rights arising out of their title to Lot 6 is clearly untenable. Furthermore, the effect of the fill was not to form an accretion to Lot 6 so that the finding of the trial judge is correct,—
that an artificial fill has been made in front of said Lot 6 on the said land and that the present mean high water mark is below the old mean high water mark which constitutes the northerly boundary of said Lot 6.
On the other hand, the trial judge gave effect to the appellant's contention that as a result of the fill, Lot 6 ceased to be a riparian lot. As to this, it might be sufficient to say that the point was not raised by the appellant's pleadings but, in any event, the making of the fill does not warrant a finding that the respondents thereby intended it to operate as an abandonment of riparian rights over the land reclaimed. Attorney General of Southern Nigeria v. Holt .
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The appellant is, therefore, entitled to mesne profits which, in accordance with the admissions agreed upon between the parties, is to be equivalent to the rental of the land occupied by the respondents. If this cannot be agreed upon, there must be a reference to the District Registrar of the Supreme Court of British Columbia at Vancouver, as directed by the judgment at the trial. In determining the rental the Registrar will, of course, take into consideration the proper use the respondents were entitled to make of the foreshore as riparian owners of Lot 6.
In the result the order of the Court of Appeal should be set aside and the judgment at the trial restored with the exception of the following clause:—
And this court doth further adjudge and declare that none of the Defendants have or ever had any riparian rights over the said land arising out of their title to the said Lot 6 or otherwise;
The respondents should pay the present appellant the costs of the appeal to the Court of Appeal and of the appeal to this Court. No order should be made as to the costs of the intervenant, or as to the costs of the cross-appeal on the question of costs to the Court of Appeal.
RAND J.—This action was brought by the Attorney General of Canada against the respondents for possession of certain foreshore of Vancouver Harbour and for mesne profits. The adjoining upland was originally granted in 1858 by the Provincial Crown as part of a lot of an official survey, the plan of which showed it to be bounded on that part of the waters of Burrard Inlet which later became known as Coal Harbour. In subsequent conveyances to predecessors of the respondents the boundary was specifically described as the high water mark. The grant as well as the later instruments carried all appurtenances.
The respondents set up a number of defences. They deny the title of the Dominion; they claim title in themselves under the grants and by prescription, and that in any event the use to which they are putting the land is within the scope of their rights as riparian owners.
The title of the Dominion is placed first on the ground that the foreshore is part of a public harbour which,
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upon the admission of British Columbia to the Confederation, became vested in the Dominion under section 108 and schedule 3 of the British North America Act; and alternatively that the interest of the Province, if any existed, was transferred to the Dominion by an order in council of the Provincial Government in 1924. As, in the conclusion which I have reached, the real issue revolves about the latter transaction, I will deal first with two of the subsidiary questions.
I agree with the trial judge that the original grant did not carry to low water mark either by its referential description or by its inclusion of "all appurtenances." Although foreshore may be a royalty, it retains the character of land, and I think it beyond dispute that land, as distinguished from incorporeal rights in land, cannot be appurtenant to land: Buszard v. Capel . I agree likewise that a title by prescription has not been established. The remaining point of riparian rights can better be considered after the main questions have been disposed of.
Coming, then, to those issues, I am in agreement with the Court of Appeal that the Crown has not proved the foreshore to have been part of a public harbour at the time, in 1871, when the Province entered the Dominion. The necessity for this proof follows from the authoritative interpretation placed on section 108 of the Act. It must be shown as fact that the land about which the question arises was at the time of union in actual use in the public commerce of a harbour: The Fisheries case ; Attorney General of Canada v. Ritchie . The notion that a natural harbour, once shown to have been used for commercial purposes along some part of its shore, is a Dominion public harbour as to all of its shore is erroneous.
Disregarding any question of the nature or extent of ownership below low water mark, logically it would be necessary to traverse the whole shore bordering on such a body of water as Burrard Inlet and to establish in fact for each segment the required use. Precise limits or boundaries from such a use are out of the question. Unless characterized in its practical application by broad
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considerations of convenience, as undoubtedly the decisions mentioned contemplate, this rule might work out a patchwork of ownership both inconvenient and embarrassing.
Without some action by the Dominion, fully equipped commercial ports or harbours do not appear to be within the powers of the province to set up. In view of the Dominion control over shipping, navigation, navigation aids, trade and commerce, customs and defence, the province in its ownership of foreshore would not seem to be in much better position than a private individual. And with the property in a public harbour below low water mark generally in the Dominion, the Provincial and Dominion ownership of sections of foreshore, isolated from upland, with occasional private ownership annexed to upland, presents a mosaic which I will not further complicate by suggesting a possible parcelling of ownership of the harbour bed itself.
Now, that was the situation confronting the Dominion and the Province when in 1924 they took steps to settle the controversy over harbours in British Columbia. They agreed that six of these, including Burrard Inlet and its arm, Coal Harbour, "were and are" public harbours within schedule 3 and that the ownership of all other un-granted foreshore was in the Province: and the Province transferred to the Dominion, as in the nature of quit claim, any interest which it might have in the foreshore of the six harbours named. The question before us, then, is whether that arrangement in any aspect, in the absence of provincial legislation authorizing it, is sufficient for the purposes of the Dominion in this proceeding.
The Confederation Act was enacted with the background of the constitutional development in the older provinces; and in this the control of public land and their revenues played a major part. There are two aspects of that control, however, and they must be distinguished. The public lands in the Province are vested in the Sovereign in his body politic, in right of the Crown; but the right and power to deal with them by grant, lease or other mode and to dispose of their revenue is, by the prerogative, as full as if they were held in his personal capacity. In England these revenues are the sub-
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ject of a statutory surrender at the beginning of each reign in exchange for the so-called civil list. On the other hand, the alienation of public lands has been the subject of a series of restrictive statutes, the most impor-portant of which is 1 Anne St. 1 c. 7. The distinction adverted to is illustrated in legislation in relation to the Province of Canada. By 3 and 4 Vic., chapter 35, section 54, the casual and territorial revenues were surrendered to the legislature; but, by section 42, every provincial bill affecting the prerogative touching the granting of waste lands of the Crown must have been laid before both houses of parliament before receiving the royal assent.
By section 126 of the Act of 1867, the revenues from public lands form part of the Consolidated Revenue Fund of the Province which, of course, is committed to the appropriation of the legislature.
Then by section 109, all public lands and royalties are declared to be the property of the Province. This is part of the general distribution of property between the Province and the Dominion. Associated with it is the distribution of legislative jurisdiction and sections 91 (1) and 92 (5) provide that the Dominion and the Province may make laws in relation to the "public property" in the case of the Dominion and to the "management and sale of public lands" in that of the Province. I take the latter to include foreshore generally.
By "property" of the Province or the Dominion is meant only that the right to its beneficial use or its revenues has been appropriated to the Province or the Dominion as the case may be; the land in all cases remains vested in the Crown. With a specific allocation of public lands to the Province and a like investment of legislative jurisdiction to make laws in relation to them, can it be said that there remains any residual prerogative right in the Provincial Crown to transfer any part of that property to the Dominion? In the absence of legislation, such a residue may remain in relation to dealings with them in a provincial aspect. But a transfer effects a change not only in beneficial interest but also in legislative jurisdiction. By this means the Provincial Crown would bring about a redistribution of assets and legislative authority over them contrary to the allocation made by the statute. Certainly it is not
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contemplated that particular property may not pass between the two jurisdictions but the distribution made by the Act can be altered only in accordance with the powers, express or implied, which the Act itself provides; and here I find no means provided except legislative.
But when we speak of the prerogative, it is well to keep in mind the different aspects in which it is to be viewed. The restrictions on alienation had to do with the divesting of the Crown's ownership and the investment of the subject. But the prerogative, as it existed in England, was single and entire. There could be no question as to a transfer between executive advisers because there was only one council known. It was not until the creation in 1867 of a federal organization in government that the point with which we are concerned could have arisen. Strictly, therefore, we cannot accurately speak of the prerogative in relation to the transfer purported to be made in 1924.
But it is put as within the general power to alienate and it is argued that, if the Crown can transfer title to a subject, a fortiori can it effect a transfer to the administrative control of another group of constitutional advisers. But the argument, in my opinion, is unsound. The power of the provincial executive must obviously be looked upon as being fundamentally in relation to provincial administration and correspondingly that of the Dominion. This is necessarily involved in a federal distribution of plenary powers. The provincial function is exercised under provincial legislative control and I am unable to see how that authority, in the absence of legislation, can extend to an act merely of transferring its own proper subject-matter to another executive and legislative administration. That is rather a surrender than an exercise of function and I cannot agree that it is within the scope of the powers to which the statute gives rise, or the division of which it effects.
It is urged that the imperial executive could transfer, and has in fact transferred, subject-matter in Canada to the Dominion, as in the case of the military reserve of Dead-man's Island: Attorney General of British Columbia v. Attorney General of Canada . But the imperial prerogative is under no such statutory distributive restriction as in Canada. Moreover, it was an exercise of power in a
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situation to which different considerations apply. The prerogatives, in relation to colonial administration, exercised originally under advice of the imperial government, became the subject of a progressive devolution by executive action and by statute, to the present constitutional relation of Dominion to Crown. The transfer, therefore, was merely an irrevocable delegation of residual administrative control of the sort contemplated in the evolution of colonial self-government, to an executive deriving its existence and powers from an imperial statute.
Then, reliance is placed on some observations of the late Newcombe J., of this court, used by him in the reference Re Saskatchewan Natural Resources . But what his language deals with is not the power or authority of transfer: it is simply the mechanics by which the transfer is made. He was distinguishing action by order in council between co-ordinate advisers and action by grant under letters patent between Crown and subject.
There is finally an observation by Lord Davey in Ontario Mining Co. v. Seybold . In the St. Catherine's Milling case , Lord Watson had used this language:
It must always be kept in view that wherever public lands with its incidents is described as "the property of" or as "belonging to" the Dominion or a province, these expressions merely import that the right to its beneficial use or its proceeds has been appropriated to the Dominion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown.
After quoting this, Lord Davey adds:
Their Lordships think that it should be added that the right of disposing of the land can only be exercised by the Crown under the advice of the Ministers of the Dominion or province, as the case may be, to which the beneficial use of the land or its proceeds has been appropriated, and by an instrument under the seal of the Dominion or the province.
But it is clear that Lord Davey was there dealing only with the question of the particular executive by whose action an alienation to a subject could be made; there is no reference, nor in that case could occasion for it have arisen, to the actual authority of the executive in any
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case to make a grant and much less the question of authority of the executive to make a jurisdictional transfer.
But the order in council of the Province does more than purport to transfer an interest to the Dominion. The pertinent recitals are these:
3. That it is desirable in the public interest that the property which belongs to Canada under the designation "public harbours" should be definitely ascertained, and negotiations have accordingly been carried on between the Dominion and Provincial Governments with a view to reaching a settlement of all outstanding questions between the two Governments in this connection and agreeing upon certain defined areas as being the property of Canada under said designation.
4. That as the result of conferences between the representatives of the two Governments it has been mutually agreed that the harbours of Victoria, Esquimalt, Nanaimo, Alberni, Burrard Inlet and New Westminster, as described in the schedule attached hereto marked "A" and as shown by the respective maps annexed thereto, were and are public harbours within the meaning of schedule 3 of the B.N.A. Act and became and are the property of Canada thereunder.
5. That it has been further agreed between the two Governments that the ownership of all other ungranted foreshore of tidal and non-tidal waters and lands covered with water in British Columbia, except any foreshore and lands covered with water within the Railway Belt, belong to and are vested in the Province.
Here the distribution of public property by the confederating Act to the Province or Dominion depends upon a question of fact to be proved as any other fact: was this foreshore used for public harbour purposes in 1871? Now, undoubtedly the executive of the Province must deal with such a question. If proceedings were brought, would legislative authority be necessary to consent to a declaration of ownership in the Dominion? In them the Province would be represented by its constitutional officer, the Attorney General, and his act, certainly with the approval of the executive council, must bind the Province. But that such a question could be settled only by or in the course of judicial proceedings is, I think, a misconception.
Where, therefore, the situation of fact is, in the opinion of the government concerned, one of doubt and uncertainty, it lies within the authority of the provincial executive to give formal binding recognition to a claim asserted by the Dominion. It is analogous to agreement on a conventional boundary between lands of their respective
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jurisdictions. The effect of the order in council is, in this view, limited to an agreement or acknowledgment of boundary at high water mark arising from the fact of actual user of foreshore within the legal requirements for public harbours under schedule 3.
As between the two jurisdictions, such an acknowledgment concludes the question but as to private rights different considerations arise. Ordinarily third persons would not be concerned with either Crown right in ownership or legislative jurisdiction. But the Province could not bind its own prior grantee as to his own title by such an acknowledgment: and where accrued rights are claimed not derived from the Province, as by prescription, the third person likewise cannot be prejudiced by provincial action of that nature. In each case, he remains entitled to contest the fact of Crown right ownership. Whether if, for instance, the law of prescription as against the Province was more favourable to the subject than that in relation to the Dominion, the order in council could affect the result of a possession continuing after the acknowledgment, it is not necessary to decide. At most, the right would be placed on provincial law. The respondents may be entitled to advance their claim on the footing of the fact as found in the action; but they are entitled to no more; and where in such case they fail to establish a prescriptive right against either the Province or the Dominion, as here, they fail likewise in an answer to the claim of the appellant.
There remains the question of riparian rights. The issue is as to the legal possession of the land. Riparian rights, as the name indicates, do not carry exclusive possession; they exist as incorporeal rights arising from ownership, in the nature of servitudes, among other things, over foreshore. They are not, therefore, a defence to a claim for possession. The trial judge held the land of the respondents, by reason of an artificial fill made on the foreshore, to be no longer riparian but I cannot draw the inference from what was shown that by any act of this nature the respondents intended to surrender rights attaching to their upland property. What was done was rather to facilitate the exercise of those rights.
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There is no counter claim by which the respondents seek a declaration of the existence or scope of those rights. But as seems to be implied in the case of Attorney General of Southern Nigeria v. Holt 84 L.J. P.C. 98, they are involved in the question of mesne profits. In the circumstances the appellant is entitled to such profits if any can be shown: but they must be profits arising beyond that use of the foreshore which may be found to be within the exercise of riparian privileges.
I would, therefore, allow the appeal and confirm the trial judgment declaring the ownership and right of possession of the foreshore to be in the appellant. As the parties have agreed that the gross mesne profits are represented by the rental value of the land occupied by the respondents, there should be a reference to determine the extent, if any, to which that value is affected by riparian rights. The appellant will have its costs in this Court and in the Court of Appeal except as to the cross appeal. There will be no costs to the intervenant.
Appeal allowed with costs.
Solicitor for the appellant: A. M. Russell.
Solicitor for the respondents: T. G. McLelan.
Solicitor for the intervener: R. V. Prenter.
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