Supreme Court of Canada
Dukart v. Corporation of the District of Surrey, [1978] 2 S.C.R. 1039
Date: 1978-05-01
Corinne Marie Dukart (Plaintiff) Appellant;
and
The Corporation of the District of Surrey (Defendant) Respondent;
and
The Registrar Of The New Westminster Land Registration District (Defendant).
1977: November 16; 1978: May 1.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Real property—Residential development fronting on beach—Whether easement granted in favour of lot owner to cross “foreshore reserves”—Whether easement registered within requirements of Land Registry Act—”Foreshore reserves” acquired by municipal corporation by way of tax sales—Title taken subject to easement—Land Registry Act, R.S.B.C. 1960, c. 208, ss. 25(a)(i), 149—Municipal Act, R.S.B.C. 1960, c. 255, s. 407.
On February 21, 1912, a land developer deposited in the registry office under the then Land Registry Act of British Columbia “a registered map or plan of subdivision” No. 2200, which plan included several hundred residential lots and the four blocks of land between these lots and the waters then known as Semiamo Bay, now known as Boundary Bay, then identified as the “Foreshore Reserves”. The appellant is the registered owner of Lot 38, Plan 2200, being a lot fronting on the Foreshore Reserves. The respondent corporation, which had acquired the Foreshore Reserves by tax sales in 1949 and 1954, commenced the construction thereon of a large comfort station in July 1973. The actual location of this partly completed structure is in front of two residential lots fronting on the Foreshore Reserves which are contiguous to the appellant’s lot.
The title of the appellant is rooted in the deposit in the Land Registry Office of Plan 2200 and the subsequent conveyance of Lot 38 from the development company registered in April 1914. The form of deed used was the standard adopted by the development company for the whole of the plan of subdivision, and one of the recitals provided that “… the Foreshore Reserves… are to be held by the Grantor, its successors and assigns
[Page 1040]
…for the purpose of giving free access to the waters of [the] Bay to persons purchasing subdivisions…”
The deed also included a covenant by the grantee in favour of the grantor developer and “its successors and assigns” and also “as a separate covenant with every owner or owners for the time being of any part of the said [development]” in which is set out a series of restrictive covenants applicable to the grantee’s lot.
The title to the Foreshore Reserves likewise finds its origin in the deposit in the Land Registry Office of the Plan of subdivision 2200 wherein the four blocks of “Foreshore Reserves” between the row of lots closest to the water and the water itself are set out.
On January 10, 1917, the development company conveyed all of the unsold lots comprised in Plan 2200 to a trustee. The conveyance was registered in January 1917 as No. 22841E. In the description of the land so conveyed there was inserted in handwriting “those four separate parcels marked Foreshore Reserves all as shown on subdivision 2200”. The trustee received in due course a certificate of title under the Land Registry Act upon which reference was made to Deed 22841E.
By order of the Supreme Court of British Columbia made on May 26, 1939, a successor trustee was appointed. That order was in due course deposited in the Land Registry Office and a new certificate of title was duly issued to the successor trustee. The new certificate of title again referred, on its face, to the existence of the trust by describing the new grantee as “John Alfred Wright in Trust” and included a directive, “See Deed 22841E and Filing No. 21796 (the latter filing being the order of the Supreme Court).
Although the respondent acquired its interest in the Foreshore Reserves by tax sales in 1949 and 1954, no certificate of title was issued to the respondent until January 30, 1963. Prior to 1963 the certificate described the four parcels as “Foreshore Reserves Plan 2200”, and the reverse side of the certificate made only a bare reference to the “Surrey Tax Sales”. No reference is made in this 1963 certificate of title to the “in trust” notation in the prior certificates, to the conveyance No. 22841E or to Filing No. 21796. In 1963 the respondent filed a new plan covering the area described in the old Plan 2200 as the Foreshore Reserves and in which the Foreshore Reserves are redescribed as Lots 43 to 47 inclusive. This new plan is No. 25109 and, immediately upon its registration, there issued a new certificate of indefeasible title to the respondent, also dated January 30, 1963, which described the Foreshore Reserves as
[Page 1041]
Lots 43 to 47 inclusive, Plan 25109, but made no reference to the 1917 conveyance to the trustee, to the appointment in 1939 of the successor trustee, or to any “in trust” status.
Meanwhile the appellant’s title to Lot 38 was reflected in a certificate of indefeasible title issued to her predecessor in title in November 1963. No mention is made of any right or interest in or in respect of the Foreshore Reserves or Lot 47, but only to Lot 38 Plan 2200. Recorded on the reverse side of this certificate is a reference by deed number to the restrictive covenants set forth in the original grant of Lot 38 from the development company in 1914 to the appellant’s original predecessor in title.
The appellant brought an action seeking, inter alia, an injunction restraining the respondent from erecting a building on Lot 47, and an order directing the Registrar of Titles to amend the respondent’s title by showing the registration of an easement against the said title. The appellant succeeded at trial but lost in the British Columbia Court of Appeal, whereupon an appeal was brought to this Court.
Held: The appeal should be allowed.
As to the questions whether an easement had been granted in favour of the owner of Lot 38 to cross over the Foreshore Reserves, including Lot 47 being the portion thereof immediately between the appellant’s lot and the water’s edge, and whether the respondent, when it acquired the Foreshore Reserves, including Lot 47, by way of a tax sale, took title thereto subject to an easement in favour of the appellant as owner of Lot 38, the Court concluded as follows: (a) The effect of the 1914 conveyance to the appellant’s predecessor in title (which is fortified by the 1917 conveyance of the Foreshore Reserves to the trustee, the respondent’s predecessor in title) was, in law, the grant of an easement in favour of the owners of Lot 38 over the Foreshore Reserves including Lot 47. (b) The right so granted includes the right to promenade freely across the whole of the Foreshore Reserves and not merely to cross directly from the edge or front of Lot 38 to the waters of Boundary Bay. (c) The registration of the 1914 conveyance and the processing (to use a neutral term) of the 1917 conveyance under the provisions of s. 149 of the British Columbia Land Registry Act achieves the protection of the trust interests, including the easement held in respect of Lot 47, in the manner peculiar to the said Act. (d) The result of the operation of s. 149 is to register the easement against Lot 47 in the sense that that term is employed in s. 25 (a)(i) of the Land Registry Act. (e) The registration of the trust instrument not only brings s. 149(2) into play, prohibiting
[Page 1042]
disposition of Lot 47 contrary to the trust instrument, but also requires the holding of Lot 47 subject to the trust instrument and the rights of the beneficiaries thereunder, including the registered owner of Lot 38. (f) Thus the certificate issued to the respondent by the Registrar in January 1963 should have continued to reflect the “trust” status and the reference to the 1917 and 1939 deed and order respectively, (g) Hence, the easement granted to the dominant tenement, Lot 38, survives the tax sale under s. 407 of the Municipal Act of British Columbia and continues to be binding upon the respondent as the registered owner of Lot 47.
Re Ellenborough Park. Re Davies. Powell and Others v. Maddison and Another, [1955] 3 All E.R. 667, applied; Wells v. Mitchell, [1939] 3 D.L.R. 126; Carpenter v. Smith, [1951] 2 D.L.R. 609; Aspdin v. Austin (1844), 5 Q.B. 671; Mackenzie v. Childers (1889), 43 Ch. D. 265; Re Lorne Park (1913), 18 D.L.R. 595; Gregg v. Richards, [1926] Ch. 521; Morrison v. Weller, [1951] 3 D.L.R. 156; Re Massey and Gibson (1890), 7 Man. R. 172; Re The Land Titles Act and Allan and O’Connor, [1918] 1 W.W.R. 440; Gordon v. Hipwell (1952), 5 W.W.R. (N.S.) 433; Clark v. Barrick, [1949] 2 W.W.R. 1009; McKillop v. Alexander (1912), 45 S.C.R. 551; Western Trust Co. v. Olsen, [1918] 3 W.W.R. 811; Close v. McMeans, [1931] 3 W.W.R. 550; St. Germain v. Reneault (1909), 2 Alta. L.R. 371; Re Estate of Roneche (1908), 1 Alta. L.R. 255; Ficke v. Spence, [1922] 1 W.W.R. 1271; National Trust Co. v. Proulx (1910), 15 West. L.R. 349; Sorenson v. Young, [1920] 1 W.W.R. 189; Registrar of Titles v. Vancouver, [1945] 3 D.L.R. 304; Rystephaniuk v. Prosken (1951), 3 W.W.R. (N.S.) 76; Gibbs v. Messer, [1891] A.C. 248; Canadian Pacific Railway Co. v. Turta, [1954] S.C.R. 427; In re Svenska Aktiebolaget Gasaccumulator’s Application, [1962] 1 W.L.R. 657; Grand Trunk Pacific Railway Co. v. Dearborn (1919), 58 S.C.R. 315; Fels v. Knowles (1906), 26 N.Z.L.R. 604; Grasett v. Carter (1883), 10 S.C.R. 105; In re Goldstones Mortgage, [1916] N.Z.L.R. 19; Re Zeller’s (Western) Ltd. and Calford Properties Ltd. (1973), 29 D.L.R. (3d) 16; Ruptash v. Zawick, [1956] S.C.R. 347, referred to.
APPEAL from a judgment of the Court of Appeal for British Columbia, allowing an appeal from a judgment of Meredith J. Appeal allowed.
[Page 1043]
R.R. Dodd, for the plaintiff, appellant.
A.K. Thompson, for the defendant, respondent.
The judgment of the Court was delivered by
ESTEY J.—The appellant, the owner of a residence fronting on Crescent Beach in the city of Vancouver, seeks to prohibit the respondent corporation from building a large structure (a comfort station) on a strip of land between a row of residential properties of which the appellant occupies one, and the waters of Boundary Bay. The land on which the building in question is to be constructed has for years been described in the land registry system as ‘Foreshore Reserves’. It should, however, be noted that the actual location of the partly completed structure is in front of two residential lots fronting on the ‘Foreshore Reserves’ which are contiguous to the appellant’s lot. The ‘Foreshore Reserves’, being the characterization adopted in the early conveyances by the developers of the Crescent Beach development and carried forward in some of the land registry records for many years, consist of the land lying between the residential lots, and the actual foreshore (being the land situated between low tide and high tide and which forms no part of the issue herein). These ‘Foreshore Reserves’ are divided into four blocks by streets on the plan which run down to the shoreline of Boundary Bay. These ‘Foreshore Reserves’ were later redescribed by the respondent municipal corporation and thereby carried into the land registry system as “Lots 44 to 47 inclusive”, but for convenience I will refer to them as a group by their original and long-standing description, namely ‘Foreshore Reserves’.
In order to properly approach the issues arising herein and the proper application of the Land Registry Act, R.S.B.C. 1960, c. 208, of British Columbia to the several transactions giving rise to this dispute, it is necessary to set out some of the history of the development of the Crescent Beach area.
On February 21, 1912, a land developer deposited in the registry office under the then Land Registry Act “a registered map or plan of subdivision” No. 2200, which plan included several hun-
[Page 1044]
dred residential lots and the four blocks of land between these lots and the waters then known as Semiahmoo Bay, now known as Boundary Bay, then identified as the ‘Foreshore Reserves’. These four blocks are separated one from the other by streets on Plan 2200 running down to the water’s edge.
The appellant is the registered owner of Lot 38, Plan 2200, being a lot fronting on the ‘Foreshore Reserves’ the northeast corner of which is twelve feet from the southwest corner of the structure now partially installed on the ‘Foreshore Reserves’ by the respondent.
The respondent corporation acquired the ‘Foreshore Reserves’ by tax sales in 1949 and 1954 although no certificate of this land was issued to the respondent until January 30, 1963. In July 1973, the respondent commenced the construction of the comfort station, being a structure about eighty-five feet long and thirty-five feet wide.
A detailed examination of the title history of the present holdings of the appellant and the respondent is necessary to focus on the threshold issue as to whether or not an easement has arisen in favour of the appellant over and across the ‘Foreshore Reserves’ now owned by the respondent; as well as the ultimate issue of the rights or obligations of the respondent in respect of this land under the applicable provisions of the Land Registry Act of British Columbia.
The title of the appellant is rooted in the deposit in the Land Registry Office of Plan 2200 and the subsequent conveyance of Lot 38, Plan 2200, from the development company registered in April 1914. The form of deed used was the standard adopted by the development company for the whole of the plan of subdivision, and from the point of view of these proceedings, the following are the significant terms thereof:
WHEREAS the said Grantor is placing upon the market, as a summer resort, the property known as Crescent Beach, and it is advisable that certain restrictive covenants hereinafter mentioned should be contained in the conveyances of the land hereinafter described,
AND WHEREAS the said Grantee has represented to the said Grantor that he will comply with the said restrictive
[Page 1045]
covenants and hereby accepts this conveyance subject to such restrictive covenants as a condition of the said Grantor executing this conveyance,
AND WHEREAS the foreshore reserves shown on the plan hereinafter mentioned of the said Crescent Beach are to be held by the Grantor, its successors and assigns, so far as it is capable of so doing, for the purpose of giving free access to the waters of Semiahmoo Bay to the persons purchasing sub-divisions in Lots 52, 231, Group II and the East portion of the Northeast quarter of Section 19, Township One (1), District of New Westminster, and are not to be alienated by the Grantor,
AND WHEREAS subject to the said restrictive covenants, the said Grantor hath sold to the Grantee, and the Grantee has purchased of and from the said Grantor the lands, hereditaments and premises herein described,
WITNESSETH that in consideration of Twelve Hundred ($1200.00) Dollars of lawful money of Canada now paid by the said Grantee to the said Grantor (the receipt whereof is hereby by It acknowledged), It the said Grantor DOTH GRANT unto the said Grantee her heirs and assigns FOR EVER:
ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the District of New Westminster, in the Province of British Columbia, and being composed of Lot Thirty-eight (38),
in Block numbered Four (4), according to the subdivision of a portion of District Lot 52, Group II, according to the registered map or plan of subdivision deposited in the Land Registry Office at the City of New Westminster, and numbered 2200,
TOGETHER with all buildings, fixtures, commons, ways, profits, privileges, rights, easements and appurtenances to the said hereditaments belonging, or with the same or any part thereof held or enjoyed, or appurtenant thereto; and all the estate, rights, title, interest, property, claim and demand of it the said Grantor in, to, or upon the said premises.
TO HAVE AND TO HOLD unto the Grantee her heirs and assigns, to and for her and their sole and only use forever: SUBJECT, NEVERTHELESS, to the reservations, limitations, provisoes and conditions expressed in the original grant thereof from the Crown, and subject also to the performance and observance by the Grantee her heirs and assigns, of the covenants hereinafter contained.
The deed also included a covenant by the grantee in favour of the grantor developer and “its successors and assigns” and also “as a separate covenant with every owner or owners for the time being of any part of the said Crescent Beach” in
[Page 1046]
which is set out a series of restrictive covenants applicable to the grantee’s lot.
The title to the ‘Foreshore Reserves’ likewise finds its origin in the deposit in the Land Registry Office of the Plan of subdivision 2200 wherein the four blocks of ‘Foreshore Reserves’ between the row of lots closest to the water and the water itself are set out.
On January 10, 1917, the development company conveyed all of the unsold lots comprised in Plan 2200 to a trustee. The conveyance was registered in January 1917 as No. 22841E. From the character of the parties to the deed and the various recitals and terms contained in it, the deed appears to be part of an arrangement established to pay off the indebtedness of the developers out of future land sales in the development, and thereafter to divide the profits or surplus revenues amongst the several equity owners in the Crescent Beach development. In the description of the land so conveyed there was inserted in handwriting “those four separate parcels marked Foreshore Reserves all as shown on subdivision 2200”. The deed included the following terms which are of interest in these proceedings:
TO HAVE AND TO HOLD unto and to the use of the said Trustee, his heirs and assigns forever, upon the trusts and with and subject to the powers hereinafter expressed concerning the same, that is to say:
(c) All conveyances of the said land shall be made by the Trustee subject to the restrictive convenants and conditions used in the sale of the properties already sold and in subdivisions 2200 and 2482, and which are contained in the form of Conveyance hereunto annexed and marked with the letter “A”.
The reference to the form of conveyance in the above quotation is to the standard form that was used in the conveyances to the predecessors in title of the appellant and the other purchasers of residential lots in the Crescent Beach development. The deed concluded with the grant of the usual power to the trustee to deliver good title free from any claims by the grantors, whose remedy against the trustee was limited to damages only.
[Page 1047]
In the sense of the state of the art of conveyancing today, both the plan and the terminology used in its execution seem vague and incomplete. For example, neither in the first years of the development nor in the second era (after the conveyance of the residual lands to the trustee as aforesaid) was any provision made for either the form or the funding of the permanent retention of the non-residential area (the ‘Foreshore Reserves’ blocks) by any entity private or public. Nor indeed was there any provision relating to the dedication of any lands, other than those already dedicated in the street patterns shown on Plan 2200, to the public through any municipal agency. Neither was there any express reference in the standard form of conveyance used in the sale of lands in the Crescent Beach development, to any intention on the part of the developer to dedicate or maintain the ‘Foreshore Reserves’ for the use of the purchasers of residential lots, including the appellant, in the future. There is, of course, the strongest implication or inference that such is indeed an inherent part of the conveyancing plan, but this issue will be discussed later.
The trustee received in due course a certificate of title under the Land Registry Act upon which reference was made to Deed 22841E, the conveyance from the developers to the trustee.
By order of the Supreme Court of British Columbia made on May 26, 1939, a successor trustee was appointed. That order was in due course deposited in the Land Registry Office and a new certificate of title was duly issued to the successor trustee. The new certificate of title again referred, on its face, to the existence of the trust by describing the new grantee as “John Alfred Wright in Trust” and included a directive, “See Deed 22841E and Filing No. 21796”. The deed to which reference is there made is the conveyance to the first trustee in 1917 and the latter filing being the order of the Supreme Court.
By tax sales in 1949 and 1954, the respondent corporation acquired the title to the ‘Foreshore Reserves’ but no certificate of title was issued to the respondent until January 30, 1963. Prior to 1963 the certificate described the four parcels as “Foreshore Reserves Plan 2200”, and the reverse
[Page 1048]
side of the certificate made only a bare reference to the “Surrey Tax Sales”. No reference is made in this 1963 certificate of title to the “in trust” notation in the prior certificates, to the conveyance No. 22841E or to Filing No. 21796. To complete the history of the transaction, it should be noted that in 1963 the respondent filed a new plan covering the area described in the old Plan 2200 as the Foreshore Reserves’ and in which the Foreshore Reserves’ are redescribed as Lots 43 to 47 inclusive. This new plan is No. 25109 and, immediately upon its registration, there issued a new certificate of indefeasible title to the respondent, also dated January 30, 1963, which also described the Foreshore Reserves’ as Lots 43 to 47 inclusive, Plan 25109, but made no reference to the 1917 conveyance to the trustee, to the appointment in 1939 of the successor trustee, or to any “in trust” status.
Meanwhile the appellant’s title to Lot 38 was reflected in a certificate of indefeasible title issued to her predecessor in title in November 1963. No mention is made of any right or interest in or in respect of the Foreshore Reserves’ or Lot 47, but only to Lot 38 Plan 2200. Recorded on the reverse side of this certificate is a reference by deed number to the restrictive covenants set forth in the original grant of Lot 38 from the Crescent Beach developer in 1914 to the appellant’s original predecessor in title.
The direct and narrow issue arising herein is whether or not the Registrar erred when issuing the certificates of title to the respondent corporation in 1963, that is, whether reference should have been made to the prior trust and conveyance to the trustee as was done in the previous certificates of title issued with respect to the Foreshore Reserves’; and whether in any case the respondent holds these Foreshore Reserves’ subject to an easement arising in law with respect to Lot 38.
Against this background the appellant in these proceedings seeks, inter alia, an injunction restraining the respondent from erecting a building on what is now described as Lot 47, and an order directing the Registrar of Titles to amend the respondent’s title to Lot 47 so as to reflect the
[Page 1049]
easement against that lot as asserted by the appellant.
The Existence of an Easement
The learned trial judge, whose reasons are reported at (1974), 45 D.L.R. (3d) 280, found that an easement had been granted in favour of the owner of Lot 38 to cross over the ‘Foreshore Reserves’, including Lot 47 being the portion thereof immediately between the appellant’s lot and the water’s edge. Furthermore, the easement so found did not limit the appellant to a direct passageway between her frontage and the waters of Boundary Bay, but rather consisted of a right to cross over or promenade along the ‘Foreshore Reserves’ in total, presumably in common with the owners of all of the other lots in Plan 2200. Such a right, if it exists, would in fact be enjoyed not only in common with the other land owners in Plan 2200 but also the general public who have recourse to the ‘Foreshore Reserves’ by reason of the streets running down to the Bay and which interrupt or separate the reserves into four blocks. It should also be noted that the result has the necessary effect of finding a like right in respect of lots in Plan 2200 which do not front on the ‘Foreshore Reserves’ but which are situated in a second tier of lots behind that in which the appellant’s Lot 38 is located.
In the Court of Appeal, whose reasons are reported at (1975), 54 D.L.R. (3d) 250, two of the members of the Court assumed “for the purpose of this appeal” that the trial judge was right in finding that the appellant, apart from the consequences of the tax sale, was “entitled to free and unrestricted access to the sea from every part of [her] frontage[s] over every part of the strip of land in question”. They found, however, that the respondent corporation, on a proper application of the provisions of the Land Registry Act, held Lot 47 free from any such right in the appellant. Carrothers J.A., dissenting, determined that the disposition made at trial was correct (subject to a difference with reference to the direction to the Registrar) and that there was in law, by reason of the 1914 conveyance, an easement in favour of the owner of Lot 38, across all four lots comprising the ‘Foreshore Reserves’. The question raised in these
[Page 1050]
proceedings with reference to the rights, if any, of the appellant with respect to Lot 47 now owned by the respondent corporation, can be stated in this way: Does the appellant have any right, known in law and enforceable against the respondent as the present owner of Lot 47, for the use and enjoyment of the ‘Foreshore Reserves’? We are here concerned only with the appellant’s rights, but the record reveals others to be in a like position. To qualify for such a right, the appellant must, of course, demonstrate that she possesses an easement, as that right is known in law over Lot 47 specifically.
The development at common law of the law of easements in the nature of rights-of-way has been conveniently traced and summarized by the text writers (vide Gale on Easements, (1972, 14th ed.) at pp. 261-286; Cheshire’s Modern Law of Real Property (1976, 12th ed.) at pp. 516-586). The grant of rights assumed by all of the parties involved in the Crescent Beach development over the years, commencing in 1914, would appear to qualify as easements in favour of the lot purchasers, including the appellant. There is the requisite relationship between a dominant and servient tenement wherein the dominant tenement is accommodated, serviced or supported by the servient tenement; between them there is a connection of real benefit to the former; and which is of such a character as would ordinarily be classified as a right or condition running with the land, and not merely a contractual right enuring to the benefit only of persons who are parties thereto at its inception.
At one time there may have been some doubt as to whether a right to cross over or move generally about on another’s land was a right known in the common law as an easement, but this matter was put to rest by Sir Raymond Evershed, Master of the Rolls, speaking for the Court of Appeal of England in Re Ellenborough Park. Re Davies. Powell and Others v. Maddison and Another. The Court was there concerned with the right of owners of residential lots adjacent to a common
[Page 1051]
garden, and the factual similarity to the circumstances revealed in this appeal should be noted.
In the Ellenborough Park case, the alleged common area butted on the sea and was bisected by a street. Some of the lots in the development did not abut the park but were located in a second tier of lots with access to the common garden by means of the bisecting street. The Court of Appeal there found that a right reserved for recreational or leisure purposes was within the definition of an easement, and as such was recognized in law. As for the complication of public access to the servient tenement, the Court had this to say (at pp. 678, 679):
We do not think, however, that Willes, J., was intending to say that the right of a man to use another person’s property for the purposes of his own estate cannot amount to an easement, unless it is incapable of being in fact enjoyed by anyone other than the grantee of the right.
And again (at p. 679):
If, however, the learned judge was intimating that, if a right be of such a character that it can factually (as distinct from lawfully) be of benefit to persons other than the owner of the estate to whom the right is granted, it is incapable of legal recognition as an easement, the learned judge was enunciating a principle which, so far as we are aware, has no other authority to support it.
As for persons owning property which did not abut the park, the Master of the Rolls stated (at p. 681):
The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which the enjoyment is annexed. But we think that the test is satisfied as regards these few neighbouring, though not adjacent, houses. We think that the extension of the right of enjoyment to these few houses does not negative the presence of the necessary “nexus” between the subject-matter enjoyed and the premises to which the enjoyment is expressed to belong.
Finally, the Court found that the right classified as an easement may include (depending of course
[Page 1052]
on the form and substance of the grant) a right (at pp. 683, 684):
of wandering at will round each and every part of the garden except, of course, such parts as comprise flower beds, or laid out for some other purpose which renders walking impossible or unsuitable…. Wandering at large is of the essence of such a right and constitutes the main purpose for which it exists. A private garden, on the other hand, is an attribute of the ordinary enjoyment of the residence to which it is attached, and the right of wandering in it is but one method of enjoying it.
In my view, these observations apply all the more emphatically in the case of a beach pertinent to a resort development (vide Wells v. Mitchell and Brown; Carpenter et al. v. Smith).
Citing for his authority the Ellenborough case, the learned author of Cheshire’s Modern Law of Real Property, supra, states (at p. 521):
Again, it has been held that a jus spatiandi, i.e. a right to wander at large over the servient tenement, is sufficiently determinate to constitute an easement if it is limited by express grant to a particular house or group of houses and is exercisable over an adjoining garden.
This, of course, only carries us to the question as to whether any grant of easement has here been made by and between the predecessors in title of the parties to these proceedings. In the Ellenborough case, the grant was clear and the question was whether such a grant took on in law the character of an easement. The question before us is whether, accepting that the law of easement is settled on the issue of the status in law of a jus spatiandi, such a grant has here been made.
In anticipation of this root question, the relevant recitals and operative covenants of the 1914 deed to Lot 38 have already been set out. There is, of course, no express covenant by the grantor to make available and to continue to make available to ‘Foreshore Reserves’ to the grantee in common with all others in the Crescent Beach development. Can such a covenant to dedicate to the owners of lots in the Crescent Beach development these ‘Foreshore Reserves’ and to the use in common thereof, be implied so as to found in the appellant
[Page 1053]
the right, and in the respondent the concomitant obligation, with respect to these ‘Foreshore Reserves’? The principal basis for any such implication is the third recital in the 1914 conveyance to the appellant’s predecessor in title, wherein it is stated that “…the Foreshore Reserves… are to be held by the grantor, its successors and assigns… for the purpose of giving free access to the waters of [the] Bay to the persons purchasing subdivisions…”. The formal granting clause contains a conventional supporting grant of “…all rights, easements and appurtenances to the said hereditaments…”.
The pattern or scheme inherent in the conveyancing employed in the Crescent Beach development is clearly inferred in the covenants by the grantee in favour not only of the grantor but of “every owner or owners for the time being of any part of the said Crescent Beach… and with the Grantor as Trustee of such owner or owners…”.
Beyond the inferences and implications in the grant to the appellant’s predecessor in title, there are similar implications to be drawn from the 1917 conveyance of the ‘Foreshore Reserves’ and the unsold residential lots by the Crescent Beach developers to a trustee on terms already set out above. The principal supporting provision in that instrument was a direction to the trustee to make “all conveyances… subject to the restrictive covenants and conditions used in the sale of the properties already sold in subdivision 2200…” which, of course, included the terms and conditions already mentioned.
The learned trial judge construed these terms as establishing an easement, entitling the appellant to cross over the ‘Foreshore Reserves’ and requiring that these Reserves be maintained free of obstacles such as that being constructed by the respondent. The judgment at trial reveals the reasoning behind this conclusion ((1974), 45 D.L.R. (3d) 280 at pp. 286, 287):
The inference that I draw of the over-all intention is fortified by several additional circumstances:
[Page 1054]
(a) The word “reserve” itself implies that the parcels so designated will be reserved for the use of the neighbouring owners;
(b) The third recital in the typical deed is specific as to the provision that one purpose at least of the reserves is to give free access to the waters of the bay;
(c) The restrictive covenant for uniform setback I presume is imposed for esthetic reasons and from the standpoint at least of the waterfront lots to prevent obstruction by buildings of the view from each lot of the water. This purpose would be obviously defeated if it were contemplated that buildings could be constructed on the reserve parcels;
(d) Land Registry Act, R.S.B.C. 1911, c. 127 s. 90 in force at the time of the creation of the subdivision, required that subdivision plans show “all roads, streets, lots and commons”. The foreshore reserves were not roads or streets, and were not designated lots. It would be fair to conclude, I think, that it was intended that they be within the category described as “commons”.
Much of the support for any inferred grant of easement here is found in the recitals above quoted.
In Aspdin v. Austin, Denman C.J., in construing a contract, had this to say (at p. 683) with respect to the weight to be accorded to a recital:
It will be found in those cases that, where words of recital or reference manifested a clear intention that the parties should do certain acts, the Courts have from these inferred a covenant to do such acts, and sustained actions of covenant for the nonperformance, as if the instruments had contained express covenants to perform them.
A situation somewhat similar to that arising in this appeal was considered in Mackenzie v. Childers. The headnote accurately sets out the facts:
The deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each purchaser covenanted with the vendors and with the other purchasers to conform to certain stipulations restrictive of the mode of building on the plots, but there was no express covenant to the like
[Page 1055]
effect by the vendors. Some of the plots were sold, and the several purchasers executed the deed, as did also the vendors. For twenty years subsequently the stipulations were observed, and as plots were from time to time sold the respective purchasers executed the deed.
Kay J. in discussing the appropriate interpretative techniques to be applied to a recital, stated (at p. 275):
I am clearly of opinion that the recitals in this deed do not mean that the intention was one which the trustees were at liberty to change, but that the meaning is that the land coloured green, whether sold or unsold, should not be used in a manner contrary to the building scheme, or, to take the very point now in controversy, that none of the lots marked on the building plan should have more than one house built on it.
Then, if that is the meaning of this deed, what is its effect? It is a deed inter partes, the several parties being the vendors and the purchasers who execute. No formal words are necessary to make a covenant in such a deed. A statement of a binding intention on the part of the vendors who execute the deed, made, on the face of it, for the purpose of inducing the several purchasers to buy, is as good a covenant as could be made by the most formal words.
This principle was adopted by Clute J. in Re Lorne Park, at p. 603, and has been interpreted by the learned author of Odgers’ Construction of Deeds and Statutes, (1967, 5th ed.) at p. 159, as authority for the following statement:
For instance, a recital of an intention to create restrictive covenants on the part of the vendors who execute the deed and inserted it as an inducement to purchasers to buy may operate as if it were a formal covenant contained in the operative portion of the deed.
The 1917 conveyance to the trustee raises the question as to the proper interpretation and weight to be accorded to the habendum already quoted, which, in essence, directs the trustee:
TO HAVE AND TO HOLD unto and to the use of the said Trustee, his heirs and assigns forever, upon the trusts… (c) all conveyances.… shall be made by the Trustee subject to the restrictive covenants and conditions used in the sale of the properties already sold… in subdivisions 2200…”
[Page 1056]
Warrington L.J., speaking in Gregg v. Richards, interpreted the meaning of a habendum which provided “to hold the same subject to and with the benefit of all such easements and privileges in the nature of easements as are now subsisting in respect of the property hereby conveyed…” as follows (at p. 533):
That is “subject to,” so far as the advantage of the vendor is concerned, and “with the benefit of” so far as the advantage of the purchaser is concerned: it is a mutual provision giving to each the benefit of privileges in the nature of easements now subsisting in respect of the property conveyed and the property adjoining of the vendor…. Although I thoroughly agree that you cannot read a habendum as enlarging the description of the parcels, on the other hand it seems to me that when you have the habendum in such terms as we have it here, it is strong evidence that the parties to this conveyance acted on the assumption that the easements and privileges in the nature of easements then subsisting would pass to the purchaser and, therefore, that the words expressed in the statute would not be excluded from the description in the deed.
The situation before this Court is, of course, slightly different in that the developers did not retain any lands but simply transferred all lands remaining in the Crescent Beach development to a trustee. This settlement was made after the developers had sold a considerable number of residential lots with the above-quoted recitals, which indicated the special role to be played in the future by the ‘Foreshore Reserves’ lying in front of the residential lots so marketed in the course of development. There is nothing in the deed interpreted in accordance with the principles set out above in Gregg v. Richards as indicating an intention on the part of the developers by virtue of the settlement to reduce in any way the rights of the owners of the residential lots in the Crescent Beach development with respect to the ‘Foreshore Reserves’, which up to that time had been retained by the developers.
It follows that if the recitals in the conveyances by the developer to the purchasers in Crescent Beach, in law, amount to an express covenant creating rights running with the land so conveyed and against the land retained, and if those rights
[Page 1057]
and concomitant obligations are indeed passed along by the 1917 grant to the trustee, an easement has been established in favour of the dominant tenement Lot 38 over and against the servient tenement Lot 47.
The remaining conveyancing difficulty arises by reason of the fact that no provision of the deed of the trustee articulates his duty with respect to Lot 47 and the balance of the ‘Foreshore Reserves’. Specifically, no scheme or provision is established for the maintenance of title to the ‘Foreshore Reserves’ by the payment of realty taxes. This gap in the planning and conveyancing appears to have led directly to the contest between the appellant and respondent in these proceedings. It is abundantly clear, however, that he could not hold or convey the property so transferred to him contrary to the terms of the Crescent Beach development plan as outlined in these several instruments. I, therefore, conclude as did the Courts below, that a grant of easement was made by the grantor in the conveyances examined, in favour of the appellant’s predecessors in title over the ‘Foreshore Reserves’ and specifically Lot 47 and that such easement is not limited to that part of Lot 47 immediately contiguous to Lot 38.
There remains the final and most important question, namely, whether the respondent, when it acquired the ‘Foreshore Reserves’, including Lot 47, by way of a tax sale, took title thereto subject to the easement in favour of the appellant as owner of Lot 38. The answer to this question depends upon the interpretation of the applicable provisions of the Municipal Act, R.S.B.C. 1960, c. 255, and the Land Registry Act, supra.
Registration of the Easement
The respondent, as has been stated already, obtained title to the ‘Foreshore Reserves’ pursuant to a tax sale under the authority of s. 407(2) of the Municipal Act, which provides that a purchaser of property on a tax sale takes free of any registered or unregistered interest in the property, subject, inter alia, to the provisions of s. 25 (a) of the Land Registry Act. That section reads as follows:
[Page 1058]
25. Notwithstanding the provisions of any other Statute,
(a) where land is sold for taxes, rates or assessments, the registration of the tax‑sale purchaser as owner of the land purges and disencumbers the land of and from all the right, title, and interest of every previous owner thereof, or of those claiming under him, and of and from all claims, demands, payments, charges, liens, judgments, mortgages, and encumbrances of every nature and kind whatsoever subsisting immediately before such registration, except
(i) any easement registered against the land;
(ii) any restrictive covenants registered against the land;
(iii) any right-of-way or’ right of a like nature referred to in section 24 and registered as a charge against the land;
(iv) the rights specified in clauses (a), (b), (e), (i), and (j) of section 38.
We are, of course, here concerned with s. 25(a)(i). In more particular form, therefore, the question is whether the easement was indeed registered within the requirements of the Land Registry Act so as to carry through and be binding upon Lot 47 in the hands of the respondent corporation.
It is convenient to start with the proposition enunciated by Coady J. in Morrison v. Weller et al., at p. 158:
An easement is clearly an interest in land and if established before a certificate of indefeasible title is issued, can be marked up against the title pursuant to ss. 149 [now s. 150] and 164 [now 165] of the Land Registry Act. See Registrar of Titles v. Vancouver, [1945] 3 D.L.R. 304.
(Vide DiCastri, Thom’s Canadian Torrens System (1962, 2nd ed.) at p. 190.)
It is essential to the appellant’s case that the easement appear on the title register of Lot 47. As has been stated in Thom’s Canadian Torrens System (at p. 191), “No rights, in other words, accrue to the claimant of an easement until some filing has been made in the land registry office claiming the easement. Some claim must appear on the register.”
[Page 1059]
Until 1913, no entry of a trust instrument could be registered under the British Columbia Land Registry Act, R.S.B.C. 1911, c. 127. s. 50. Then in 1913 (vide 1913 (B.C.), c. 36, s. 17) s. 50 of the Act was amended to provide that:
50 (1) Whenever any land or any estate or interest therein is vested in any executor, administrator, or trustee, no particulars of the purposes or trusts created or declared in respect of the same shall be made in the register or on the certificate of title, but a memorandum thereof shall be made in the register and on the certificate of title by the words ‘in trust’ or ‘upon conditions’ or other apt words, and by a reference by number to the instrument creating the same.
Subsection (2) of s. 50 went on to direct that no instrument purporting to transfer or otherwise deal with the land could be registered after any such memorandum of trust had been entered “upon the register”, unless the transfer, or other dealing, was expressly authorized by the instrument creating the trust or was directed by order of the Court. These provisions are carried into the present Act throughs. 149(1) and (2).
The effect of this provision, which was in force when both the conveyance to the appellant’s predecessor in title and the conveyance to the trustee were registered, is that although the Registrar is prohibited from endorsing on the register the terms of the trust, he is directed to make a memorandum “in the register” and “on the duplicate certificate of title” relating to the lands, by writing the words “in trust” or “upon condition or other apt words” and making a reference by number to the instrument creating or declaring the trust or purpose. Finally, the statute now directs that the “…instrument shall be filed in the Land Registry Office when the application for registration is made”. It is clear that although the 1913 amendment did not require the “filing” of the trust instrument of 1917 in the Land Registry Office, it was filed, and a memorandum thereof was made in the register and on the duplicate certificate of title which is before the Court.
Some assistance can be derived in construing this and other applicable provisions of the British Columbia legislation by making brief reference to
[Page 1060]
the provisions of comparable statutes in the other provinces of Western Canada relating to the registration of trusts and easements.
In Manitoba, for example, The Real Property Act, R.S.M., c. R-30, ss. 77, 78, expressly excludes «trust estates» from the register and further provides that notice of a trust interest, direct or otherwise, will not affect the interest of the registered owner. Indeed an instrument describing the transferee as a trustee may be denied registration by the Registrar. The Act provides elsewhere for the protection of equitable interests by way of registration of a caveat. Thus, in Re Massey and Gibson, Killam J. concluded that the predecessor of the present statute treated the registration of trusts generally in the same manner as the then British Columbia statute, which prohibited the registration of a trust in any manner.
The Province of Alberta has enacted legislation to the same general effect as that of Manitoba. Section 51 of The Land Titles Act, R.S.A. 1970, c. 198, forbids any memorandum or entry to be made on the certificate of title of any notice of trust. By the same section, the Registrar is directed to ignore any reference to a trust which does appear on a certificate, and the trustee is deemed to be the absolute owner for the purposes of the Act. Section 136 further allows a beneficiary to register his equitable interest by way of a caveat. In Re The Land Titles Act and Allan and O’Connor, Harvey C.J. noted that while the terms and conditions of a trust may be binding on the parties to the instrument wherein reference to the trust is made, the Registrar and any party later dealing with the land are left unaffected by the operation of the trust.
The fundamental difference between the British Columbia land registration legislation since 1913 and those of the other Western Provinces examined above is described in DiCastri, Thom’s Canadian Torrens System, supra, (at pp. 310-11):
But generally speaking, except in British Columbia, the registered title can only be affected if the cestui que
[Page 1061]
trust lodges a caveat to protect his beneficial interest…. the Acts, except that of British Columbia, generally disassociate trusts from their purview as is customary in Torrens legislation…. In British Columbia, where the Torrens principle of “no trusts on the register” was interred in 1913 the Land Registry Act in addition to containing an express provision recognizing trust estates further provides that no dealing with such trust estates shall be registered unless in strict accordance with the instruments creating the trusts, or unless such dealings are authorized by the court. [Emphasis added]
In the result there is no doubt that unlike comparable statutes in the other Western Provinces, the British Columbia Land Registry Act permits, and indeed requires the registration in the manner aforesaid of the trust.
The certificate of title to the ‘Foreshore Reserves’ from 1917 until 1963 has been endorsed by the reference to the deed ‘in trust’ of 1917, wherein Appendix ‘A’ has set forth the scheme or pattern of conveyance used in the Crescent Beach development, and wherein is contained a directive to the trustee to convey lands consistent with the conditions set forth in the standard form of conveyance. Thus, on examination of the certificate of title of the ‘Foreshore Reserves’, and by reason of the reference to the settlement of 1917 set out on the face of the certificate of title, the entire registration and conveyancing pattern of the Crescent Beach development is revealed for the benefit of a purchaser or other interested party. This would appear to be the clear intent and purpose of the 1913 amendment, and the Land Registry Act has consistently contained such a provision down to and including the date of these proceedings. The distinction drawn in this aspect of trust estates between the British Columbia Land Registry Act and other Torrens legislation is discussed with the same interpretative results in Hogg, Registration of Title to Land Throughout the Empire (1920), at pp. 155, 161 and 163.
It may be argued, however, that the protection of trust estates is limited to the duty imposed pursuant to s. 149(2) of the Land Registry Act on
[Page 1062]
the Registrar, prohibiting the registration of any transfer in contravention of the terms of the trust, and does not extend to the protection in law generally of the interest of the beneficiary under the trust by virtue of the Registrar’s actions taken pursuant to s. 149(1). Such an argument requires the imposition of a very narrow, indeed sterile interpretation upon the word “register” where it appears in the relevant sections of the statute. Before so construing the applicable provisions of the Act so as to reduce, if not defeat, the rights of the cestui que trust, a court should require the most precise directive from the Legislature somewhere in the statute. None can be found here. The Act requires “that a memorandum be made on the register”; that the duplicate certificate of title be endorsed with the words ‘in trust’ or other apt wording; and that reference be made to the instrument creating or declaring the trust. Furthermore, the Land Registry Office must place on file the instrument in question. I decline any invitation to interpret these detailed instructions to the Registrar as meaning that the instrument is nonetheless not registered.
The term “registered” is left undefined in the Act (although many other technical and operative terms have been given a precise definition). It is reasonable, therefore, to conclude that the legislative intent is that the word when and where it appears ought to be given the ordinary meaning reasonably to be attributed thereto according to the context. Here the records in the Land Registry Office include the 1917 deed with the form of the deed utilized in the Crescent Beach development attached, together with a direction in the certificate of indefeasible title to anyone concerned to look at the instrument giving rise to the trust and to the other rights flowing therefrom. In my view, the instrument which brings home to the title register the easement over and upon the ‘Foreshore Reserves’ is the 1917 conveyance to the trustee, the predecessor in title of the respondent, and such instrument was “registered” pursuant to the Land Registry Act.
The effect of such registration under s. 149 of the Act is to protect the interest arising under a trust instrument in the same way as the interest of
[Page 1063]
a caveator is preserved on registration of a caveat under s. 209 of the Act (vide Gordon v. Hipwell and Attorney-General of British Columbia; Clark v. Barrick, reversed on other grounds; McKillop & Benjafield v. Alexander. To hold otherwise would be to ignore the plain meaning of the word “registration” where it is used in the Land Registry Act, and would deny the holders of interests under a trust registered in accordance with the legislation the “adequate and sufficient protection” in the words of Anglin J. in McKillop & Benjafield v. Alexander, supra, at p. 583, which the statutory provisions, particularly ss. 149 and 209 of the Act were intended to afford.
Apart from the impact of a tax sale under s. 407 of the Municipal Act, and the effect of s. 25(a)(i) of the Land Registry Act, the interests arising under trusts or noted by caveat are preserved in the normal course of events under ss. 38(1)(g) and (h).
It was argued before this Court (and indeed accepted by the majority of the Court of Appeal below) that s. 165 of the Act requires the Registrar to endorse upon the register a memorandum of any “charge” which, in s. 2(1) of the Act is defined so as to include an easement. The answer to this argument is that s. 149 has already provided for the registration, in the manner fully articulated therein, of any right arising under an instrument creating a trust estate. The subsequent general provision for the registration of charges in no way precludes expressly, or by necessary implication, the registration under s. 149 of such a trust instrument which includes a reference to a charge.
Reference to the decisions in the other Western Provinces is of little assistance on the question of what amounts to ‘registration’ of an instrument under the British Columbia Land Registry Act. The legislation in the other three provinces, unlike the British Columbia statute, expressly defines that term. (Vide The Real Property Act, R.S.M.
[Page 1064]
1970, c. R-30, s. 2(1)(o); The Land Titles Act, R.S.A. 1970, c. 198, ss. 2.21, 25; The Land Titles Act, R.S.S. 1965, c. 115, ss. 2(r), 57.) These statutory contrasts, together with ss. 24A. (2), 165, 171(2) and 38(1) (h) and (i) of the British Columbia Land Registry Act support the conclusion that the entry of a memoradum on the register, the reference to the instrument number of the certificate of title, and the filing of the instrument itself in the Land Registry Office, amount to registration of the instrument under the Act. Accordingly, the interests of the successive registered owners of Lot 38, including the easement over the ‘Foreshore Reserves’, under the trust relationship, are registered under the British Columbia Land Registry Act.
The result, under the British Columbia legislation, is analogous to the position of beneficiaries of estates under the land titles legislation of Alberta, Saskatchewan and Manitoba. In these Provinces the status of personal representatives of a deceased owner of property may be placed on the title notwithstanding that the land titles legislation in these Provinces disallows the registration of any trust instrument or its contents. Persons who claim an interest in the land through the personal representative’s title, in circumstances where the claimant’s interest is not acquired in accordance with the terms of the testamentary trust, are not protected against the beneficiaries’ interest which, by this limited registration, are noted on the certificate of title and exposed to anyone who examines the register. The authorities do not reflect any doubt about the result because of any purported interference with the principles and concepts of the Torrens system. (Vide The Western Trust Company v. OIsen et al.; Close v. McMeans et al., p. 559; St. Germain v. Reneault; Re Estate of Roneche; Ficke v. Spence and Olson; National Trust Co. v. Proulx.
[Page 1065]
Accepting that the interests of a beneficiary of a trust are protected through registration of the trust under s. 149(1) of the British Columbia Land Registry Act, we must next consider whether the easement granted to the appellant’s predecessors in title and carried through to the trustee in the deed of 1917 as a term of the trust (whereby the trustee could only hold or convey the ‘Foreshore Reserves’ subject to the trust interests including the easement) was itself “registered” against the Foreshore Reserves’, specifically Lot 47, and thereby protected by reason of s. 25(a)(i) of the Land Registry Act from obliteration on the tax sale.
As stated, the easement could have been registered against the lands under s. 165 as a charge: Sorenson v. Young, at p. 191; Registrar of Titles v. Vancouver. Alternatively, where the servient title is reserved to the grantor, an easement over it may now be registered under s. 150. This prompted the learned trial judge below to observe in his judgment ((1974), 45 D.L.R. (3d) 280 at p. 293) that:
I cannot see an equivalent s. 150 in the statute of 1911. This may explain why the parcels were then designated “foreshore reserve”—at that time the appropriate method of designating the restriction on use. I think that s. 150 requires that the restrictions now acknowledged by the corporation to exist by its subscribing to the plan and the rights reserved to the benefit of the owners of the neighbouring lots should be reflected in the new certificate of title by an appropriate endorsement.
The question as to whether an interest in land may be registered in more than one manner was considered in the case of Rystephaniuk v. Prosken, where Williams C.J.K.B. observed in respect of the Manitoba Real Property Act that:
The objects of The Real Property Act are declared by sec. 3 to be to simplify the title to land, to give certainty thereto, to facilitate the proof thereof and to expedite dealings therewith and the Act is to be construed in a manner to best give effect to those objects.
[Page 1066]
Surely the objects are best obtained by registering an easement. Nor does the fact that an easement may be transferred or created by an appropriate transfer under sec. 84, in my opinion, lead to the conclusion that the easement may not be created or registered in another way.
Accordingly, it is my view that ss. 165 and 150 of the British Columbia Land Registry Act, and the procedures for the registration of easements established thereby, do not, of themselves, deny the possibility of registration of an easement as a term of a trust under s. 149(1) of the Act.
Section 25 (a)(i), (the provision directly involved here) speaks only of “registration”. In contrast, s. 25(a)(iii) refers to registration of certain interests “as a charge”. The specific provision for “easements” is, of course, s. 25(a)(i) which does not require an easement to be registered as a “charge” in order to be protected from the effect of a tax sale. Neither the policy of the Act nor principles of statutory interpretation permit, let alone require, the importation into s. 25(a)(i) of a further requirement as to the form or procedure of registration. This is particularly the case where to do so would mean the destruction of rights and interests which the plain meaning of that section would preserve.
Yet the notion that an easement contained in an instrument will cut down the interest of an owner of land, where the certificate of title does not, on its face, declare the existence of the right is, on first glance, contrary to the policy of the Torrens legislation. As the judiciary has so often said in discussing the Torrens principles, “the register is everything”. When an instrument on registration gives rise to the issuance of a new certificate of title, the contents of that instrument and indeed its very existence fall away. This is so in order to permit complete reliance on the certificate which is the prime purpose of the land title system. (Gibbs v. Messer, at p. 254 per Lord Watson):
[Page 1067]
The main object of the Act, and the legislative scheme for the attainment of that object, appear… to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity.
This Court reviewed this and other authorities to the same effect in Canadian Pacific Railway Co. Ltd. and Imperial Oil Limited v. Turta et al., at pp. 443, 444 and 453. These general principles have, nevertheless, always stood subject to the proposition that, where registration of an instrument does not cause the issuance of a new certificate but rather leads to the endorsement of a memorandum or notation on an existing certificate, the instrument may in some circumstances retain its force and effect. Otherwise, the statutory direction in s. 149(1) of the Land Registry Act now before the Court “… which instrument shall be filed in the Land Registry Office….” serves no useful purpose and is accorded no meaning in the interpretation and application of the Act. A Court interpreting such a direction must, of course, attribute meaning to it if at all possible, in the same way that all words in the Act are to be given a meaning and taken into the interpretative process. (Vide In re Svenska Aktiebolaget Gas accumulator’s Application, per Lord Evershed M.R. at pp. 662, 663; Grand Trunk Pacific Railway Company and Bithulitic and Contracting Limited v. Dearborn, per Davies C.J. at pp. 320, 321).
For a further illustration of the survival of the contents of a registered instrument under the British Columbia Land Registry Act, reference may be had to s. 42 relating to the registration of a charge.
The conveyance to the trustee in 1917 triggered the issuance of a certificate of title. It also resulted in a concurrent entry of a memorandum on the register and on the certificate of title, including the words “in trust”, as well as a reference to the trust instrument by registration number; all of which, of course, was accompanied by the actual filing of the instrument itself in the Land Registry Office. In
[Page 1068]
these circumstances and on the authorities to be reviewed below, the instrument retained its identity and continued to announce from the register and the certificate its terms and conditions. Thus, the interests created thereby are protected and “registered” pursuant to the express statutory direction in the Act.
This is the result of a line of cases which includes Fels v. Knowles, where Edwards J. found that an option to purchase contained in a registered lease was itself registered and effective against successors in title. In Grasett v. Carter, this Court held that a reference to a plan not included in the instrument itself was nonetheless incorporated as part of the registered description. In In re Goldstones Mortgage, an endorsement of a consent by a second mortgage to the priority of a third mortgage, on the face of the registered third mortgage, was held to be itself thereby registered (per Stout C.J., at pp. 26, 27):
…it has been pointed out by Mr. Hogg in his book on the Australian Torrens System that there is no certificate of title given to a mortgagee; what he gets is an entry on the registry of the existence of a mortgage, and that being registered, it is the duty of all persons dealing with the property to examine the mortgage and see what it contains. That, I presume, is the reason why this sub-s. 4 does not provide for registration of the consent; all that is registered is the mortgage, and because this consent appears on the mortgage it will be notice to all persons who are dealing with the property.
…
There is no registration of this consent; there is no provision for it. It is true the consent is on the instrument, and parties who deal with the land are bound to look at the mortgages that are mentioned on the certificate of title; but it is not necessary to put on the certificate of title any entry about the consent that is on the mortgage.
The learned author of Registration of Title to Land Throughout the Empire (1920), supra, discusses this point as follows (at p. 155):
[Page 1069]
In British Columbia, when the register itself shows the existence of a trust, the land cannot be dealt with otherwise than in accordance with the provisions of the trust instrument.
He concludes (at p. 161) that the registration of a trust in British Columbia is similar in effect to the filing of a caveat, and cites in support thereof the present s. 149(2) and s. 215 of the British Columbia Land Registry Act (to the same effect vide DiCastri, Thom’s Canadian Torrens System, supra, at p. 310).
The similarity between the registration of trusts and caveats in British Columbia is of more than passing interest. It has been held, in some Provinces, that interests contained in an instrument filed in support of a caveat will affect the title of a party who purchases the property notwithstanding that the interest did not appear in express terms on the face of the caveat (and thus on the face of the certificate of indefeasible title) itself. Thus, in Re Zeller’s (Western) Ltd. and Calford Properties Ltd., a lease protected by a caveat was held in turn to have effected registration of a right of renewal although the right of renewal was not itself mentioned in the caveat except in so far as reference was made to the “terms and conditions” of the lease.
The British Columbia Land Registry Act provides in s. 209 for the registration of a caveat for the protection of an interest claimed in land. Thereafter under s. 215 of the Act any instrument may be registered only if expressed to be subject to the claim of the caveator and in some circumstances may not be registered at all. Similarly, s. 149(2) prohibits registration of any instrument after the making of a memorandum ‘of trust’ in the registry under s. 149(1) unless the instrument is expressly authorized “by the instrument creating the trust. Here again the Act requires recourse by the conveyancing parties and the Registrar to the trust instrument “filed in the Land Registry Office when application for registration is made”. It is difficult to contemplate any further step which could reasonably be required to be taken in order “to register” such a trust instru-
[Page 1070]
ment than those steps which s. 149(1) prescribes; and the consequences provided in s. 149(2) reflect such registration of the trust deed.
It is at least helpful in appreciating the nature and effect of a notice on title originating either under ss. 149 or 209 to consider the remarks of Allen J.A. in Re Zeller’s Limited, supra, (at p. 26):
A caveat is in fact only a warning of the existence of a claim, the nature of which should be stated therein. Anyone searching the title should immediately be alerted to the fact that the caveator claims an interest under a lease and is thereby put upon inquiry as to the terms and conditions thereof. It taxes one’s credulity to assume that anyone purchasing property subject to a lease of which notice is given by the caveat would complete his purchase without examining the document itself.
The rights enjoyed under s. 149 could hardly be less than those flowing from the registration referred to in the Zeller’s case, bearing in mind that both the register and the certificate must reflect the number of the trust instrument and the instrument itself must be filed and thus be made available in the Land Registry Office. Furthermore, s. 149(1) prohibits the entry on the certificate of the particulars of the trust itself, so that the duty to inquire is unfettered by any requirement such as appears in The Land Titles Act of Alberta to the effect that a caveat must disclose “the nature of the interest claimed”. (Vide Ruptash and Lumsden v. Zawick.)
I, therefore, conclude that:
(a) The effect of the 1914 conveyance to the appellant’s predecessor in title (which is fortified by the 1917 conveyance of the ‘Foreshore Reserves’ to the trustee, the respondent’s predecessor in title) was, in law, the grant of an easement in favour of the owners of Lot 38 over the ‘Foreshore Reserves’ including Lot 47.
(b) The right so granted includes the right to promenade freely across the whole of the ‘Foreshore Reserves’ and not merely to cross
[Page 1071]
directly from the edge or front of Lot 38 to the waters of Boundary Bay.
(c) The registration of the 1914 conveyance and the processing (to use a neutral term) of the 1917 conveyance under the provisions of s. 149 achieves the protection of the trust interests, including the easement held in respect of Lot 47, in the manner peculiar to the British Columbia Land Registry Act.
(d) The result of the operation of s. 149 is to register the easement against Lot 47 in the sense that that term is employed in s. 25(a)(i) of the Land Registry Act.
(e) The registration of the trust instrument not only brings s. 149(2) into play, prohibiting disposition of Lot 47 contrary to the trust instrument, but also requires the holding of Lot 47 subject to the trust instrument and the rights of the beneficiaries thereunder, including the registered owner of Lot 38.
(f) Thus the certificates issued to the respondent by the Registrar in January 1963 should have continued to reflect the ‘trust’ status and the reference to the 1917 and 1939 deed and order respectively.
(g) Hence, the easement granted to the dominant tenement, Lot 38, survives the tax sale under s. 407 of the Municipal Act of British Columbia and continues to be binding upon the respondent as the registered owner of Lot 47.
For these reasons, I would allow the appeal and restore the order of the trial Court modified only as to the form of the direction to the Registrar of Titles as proposed by Carrothers J.A. in the Court of Appeal, with costs here and in the Courts below to the appellant.
Judgment accordingly.
Solicitors for the plaintiff, appellant: Swinton & Co., Vancouver.
Solicitors for the defendant, respondent: Thompson & McConnell, White Rock.
Email this Content