REGINA V. McCORMICK

(1859), 18 U.C.Q.B. 131 (also reported: 6 U.C.L.J. 40)

Upper Canada Queen's Bench, Robinson C.J., McLean and Burns JJ., 1859

This was an injunction filed by the Attorney-General for Upper Canada to recover from the defendants possession of the lands known as Pointe au Pele Island, in the township of Mersea, in the county of Essex, which is an island in lake Erie, near the said township.

The defendants pleaded not guilty, and issue was joined

thereon; and by consent of the parties the following case was stated for the opinion of the court:

CASE.

In the year 1789, Alexander McKee was in the actual possession and occupation of the land in question, and so remained until his death some years afterwards, when he left a will devising it to his son Thomas McKee, who shortly afterwards died intestate, leaving Alexander McKee his eldest son and heir at law. On the first of September, 1823, this Alexander McKee by deed conveyed to William McCormick the land in question, and all his interest therein.

William McCormick went into possession, and so remained until his death. He left a will devising the land by certain described parcels to and among his children, most of whom were then residing on the portions so devised, which had been previously allotted to them by the testator. The chil- dren were as follows: Alexander, John, David, William, Thomas, Lucinda, Elizabeth, Charles, Mary, Sarah, Pere- grine, and Arthur. All were then living; Alexander, John, and Charles have since died. All the children continued to occupy their portions, and those living and the represen- tatives of those deceased still do so, except that Alexander and David have by deed conveyed their portions to pur- chasers.

No grant from the Crown has ever issued, now has any intermission or interruption in the possession or occupation of the premises by Alexander McKee and those claiming under him taken place since the year 1789. Neither has the same ever been assessed nor returnable as assessable.

The question for the opinion of the court is, whether the Crown can recover the land, or whether the possession for upwards of sixty years does not bar the Crown's right.

If the court should be of opinion that the Crown should recover, then judgment should be entered for the plaintiff, with the costs of suit. If the court should be of opinion that the Crown is barred, then judgment shall be entered for defendants, with costs of suit.

R. A. Harrison, for the Crown. Prince, contra.

Co. Lit. 41 b, 277 a; Doe West v. Howard, 5 O. S. 462; Elvis v. Archbishop of York, Hobart 322; Doe Fitzgerald v. Finn, 1 U. C. R. 70; 21 Jac. 1. ch. 14; 4 Wm. IV., ch. 1, secs. 16, 17; 9 Geo. III., ch. 16; Bac. Ab. "Prerogative" E. 5; 14 Geo. III., ch. 83, were referred to on the argument.

ROBINSON , C.J.--This case brings up an important ques- tion, and one which cannot, I think, be quite satisfactorily disposed of without our knowing whether the Crown had ever in any manner exercised any act of ownership over Point au Pele Island, and whether it had been acquired by purchase from the aboriginal Indian tribe to which it had belonged.

Our statute of limitations in regard to real property, 4 W. IV., ch., 1. does not bind the Crown, nor has any legislative provision that I am aware of been made in Upper Canada, or in Canada since the union, placing any limitation upon the Crown in respect to the time within which its title to real property must, under any circumstances, be asserted.

At common law we have the maxim, Nullum Tempus occurit regi, which would leave the Crown at liberty to pursue its remedy , by action or information, at any distance of time.

The British statute, 21 James I., ch. 2, never could have affected such a question here, from the nature of the provi- sions contained in it, for it could only be applied to actions in respect of estates to which the King had title within sixty tears before the passing of that act.

We have only to consider the Nullum Tempus Act of 9 Geo. III., ch. 16, which was passed because the operation of the statute of James the First was spent.

That act, I have no doubt, must be held to be in force here, under our general adoption of the law of England in all matters relative to property and civil rights, by our sta- tute 32 Geo. III., ch. 1, although the King is not named in the last mentioned statute.

Then what should be the effect of the statute 9 Geo. III., ch. 15, under the circumstances of this case ?

According to the statement of facts placed before us, there has been an actual and uninterrupted possession of the whole of the premises in question by the defendants, and those under whom they claim title, from the year 1789 to the present time. There is therefore no reason for considering the question as applying only to any part or parts of the island, and not to the whole, for the admission is of an actual and continued occupation since 1789 of the whole island. It is not stated whether such occupation was held

with the knowledge or in any manner by the sanction of the Crown, or whether it was held adversely under a claim of right, or adversely by persons who acted in the first instance as trespassers, and not claiming title.

Under the statue 9 Geo. III., ch. 16, occupants do not from the mere lapse of time acquire a title, as they might under our statute 4 Wm. IV., ch. 1, by occupying lands owned by individuals for more than twenty years, without payment of rent or written acknowledgment of title. The effect of the statute 9 Geo. III. is simply that the Crown is barred; and that will only be the case where the possession appears to have been adverse, and by a party claiming title, and not entering as a mere trespasser.

Can it be said that this is shewn to have been the fact in regard to this island? The statement is that Alexander McKee, the first occupant, who held possession in 1789, devised the island to his son Thomas McKee, whose heir inherited it, or claimed to do so, and conveyed it by deed to William McCormick in 1823. It is not stated whether the devise or the deed professed to give an estate in fee, but that I think may be fairly inferred; and it is expressly admitted that there has been no intermission in the occu- pation of the premises.

Supposing that the British statute 9 Geo. III., ch. 16, is in force here by reason of our adoption of the English law, as I think I may say it has always been assumed to be, though there seems to have arisen no case in which a court has been called upon to apply it, some proof, I think, should be given in any such case that the possession has been ad- verse to the Crown, and not permissive, and has not been a mere continued possession taken in the first instance by a mere intruder not asserting title.(1) See Doe dem William IV. v. Roberts, 13 M. & W. 520. I cannot say that I see in the case stated anything that would warrant us, stand- ing in the place of a jury, in coming to that conclusion.

In the next place, I think that to enable us to apply the statute 9 Geo. III., ch. 16, the case should be one in which the Crown might in the nature of things have had it in its power

to set up in its favour one or other of the exceptions con- tained in the statute: namely, that within the sixty years His Majesty or his successors had, "by force or virtue of his right or title to the land, been answered the rents, issues, or profits of the lands;" or that the land "had with- in that time been duly in charge to His Majesty, or some of his predecessors, or shall have stood insuper of record within the space of sixty years." It is only, I think, in regard to lands of which that might be predicted that this statute can have been intended to apply.

Now if in 1789, or any time more than sixty years ago, this had been part of the lands of the Crown from which rents and profits had been received for the Crown, or might in the ordinary course of things have been received, and yet it had been shewn that for sixty years no rents and profits had been in fact received, nor the land in any way put in charge to or for the Crown, the meaning of which is explained in some of the provisions of the act, then the Crown might fairly have been deemed to have abandoned its right in favour of the person who had been left so long unmolested in the possession, though even then the nature and origin of that possession would require, I think, to be made to appear more distinctly than it does in the case before us.

But for all that appears this island had not for sixty years been part of the organized territory of the province, in which the title of the original Indian inhabitants had been extinguished, or if the Indian title had been extinguished, the land may never have been surveyed and laid out by the Crown with a view to granting it, but may have been suffered to lie like other waste lands from which the Crown had never derived either rents or profits, and which can never be sup- posed to have been under the actual supervision and charge of its officers. As to all waste lands so situated, I apprehend the entry of any stranger, and his continued possession for sixty years, would not, under the statute, bar the Crown, and certainly not unless it were shewn that the Crown knew of such occupation sixty years ago, and that it was taken adversely to the Crown, and with the intention of setting up a title against the Crown. That, in my opinion, would be

the case in regard to any trespasser, or succession of trespas- sers, who might for sixty years past have been occupying lands in the remote parts of Upper Canada, north of our lakes; and it would make no difference if there had been a succession of trespassers who had pretended to convey the land from one to another; and if so, we cannot on any principle draw any dis- tinction between lands so situated and lands similarly circum- stanced laying nearer to the settled portions of the province.

This land, it is stated in the case, has never been assessed, from which it is reasonable to infer that it is not land which has yet been made liable to assessment. For anything that appears, this island may have been regarded and treated by the Crown as Indian lands, in which the right of the natives had not been extinguished, though it is by law a part of the township of Mersea, as the case states; and in that case, or even if it formed part of the waste lands of the Crown, to which no tribe of Indians could pretend any claim, but which had never been organised by the Crown, and surveyed and laid out with a view to its being occupied, I do not think the Nullum Tempus Act of 9 Geo. III. could be pro- perly held to apply to it. We could draw no distinction founded upon proximity to settlement or comprative re- moteness, but so far as the application of legal principles is concerned, must look as we should upon any other waste land of the Crown which had never by any particular act been reduced into actual possession of the Crown, as land from which rents and profits might be derived. To hold otherwise would be inconsistent, I think, with the various statutes which have from time to time been passed for the protection of the waste lands of the Crown, and of what are called Indian lands, from trespassers. The Indians could not have adopted any legal proceedings for dispossessing trespassers, either as holding in a corporate capacity or otherwise; and it would seem unreasonable, on the other hand, that the time should be considered as running so as to bar either the Crown or the Indians, while the Crown could not be held to be acquiescing in any interruption of rents or profits, which it had never at any time been re- ceiving, or in a position to receive.

I do not doubt, when I consider the position of this island, on the southern frontier of Canada, that it must have been known to the government in fact that McKee and McCormick and his family had held the long possession which is admitted. If the government acquiesced in it from a knowledge that the Indians had all along intended the land to be theirs, and for that or any other reason have forborne for sixty years to assert a claim, either on account of the Indians or for the Crown, that may be felt perhaps by the government to give a strong claim to the present occupants to be con- firmed in their title, or at least to be left unmolested as they have hitherto been; but that is a consideration to be disposed of by the government, and it is evident, I think, from what is before us, that the defendants are not likely to be unjustly or harshly dealt with. As a court of justice we must be careful not to distort legal principles on account of their operation in particular cases, for what we hold to be law in the present case we should be bound to apply to others, unless there should be a difference in the facts such as would warrant a different decision.

My opinion is that the Crown, upon what is stated in this case, is entitled to a verdict.

BURNS, J.--The question to be decided in this case, is whether the 9 Geo. III., ch. 16, is to be applied to the un- surveyed public lands of this province or not, and I believe it is now for the first time brought up.

The act 14 Geo. III., ch. 83, passed five years after the Nullum Tempus Act. making more effectual provision for the government of the province of Quebec, expressly provided that in all matters of controversy, relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the decision of the same; but when the province of Quebec was separated into Upper and Lower Canada the legislature of Upper Canada, on the 15th of October, 1792, enacted, in consequence of the provision being manifestly and avowedly for the accommodation of his Majesty's Canadian subjects, that in future, in all matters of controversy relative to pro- perty and civil rights, resort should be had to the laws of England, as the rule for the decision of the same.

It appears from the case submitted to us that the first occupation of the island in question by those under whom the defendant claims, took place in 1789, three years before the Upper Canadian Legislature altered the rule of decision.

Looking at the two statutes of Upper Canada with respect to the public lands, 2 Vic., ch. 15, and 12 Vic., ch. 9, and others also, I do not think the legislature contemplated the act of 9 Geo. III., ch. 16, to be applicable in Upper Canada to lands for which there had been no grant, lease, ticket, either of location or purchase, or letter of license of occupa- tion. In the provisions in these acts no time is contemplated when the Crown would be barred from taking the summary remedy provided in the two specially mentioned. We should not however be pressed with that consideration, if we saw clearly that in the case of the unsurveyed and ungranted lands of the Crown, the Nullam Tempus Act must be held to apply, for we should take it the legislature was only mak- ing provision for cases in which the Crown had not lost title.

I have no doubt we must consider the act called Nullam Tempus Act, as part and parcel of the law of this province so far as affecting lands, the rents, revenues, issues or profits of which the Crown has taken or received, or where the lands can be said to have been duly in charge at some period, so that the act would apply; but with regard to the public waste lands vested in the Crown, I take it they must be looked upon as at common law without being bound by that statute. When I consider the 36th and 37th sections of the Imperial act, 31 Geo. III., ch. 31, with respect to the allot- ment of lands of the Crown, for the support and maintenance of a protestant clergy, and also the 43rd, 44th, and 45th sections of the same act, with respect to the mode of granting lands, and by what title they should be held, I cannot do otherwise than conclude that the Imperial Legislature sup- posed the lands of the Crown at that day in Canada were not subject to be considered in the same light with the lands of the Crown in England. Again, when the Union Act, 3 & 4 Vic., ch. 35, was passed, we find that all the territorial revenue at the disposal of the Crown was surrendered to the government of this province upon certain conditions. The act 7 W. IV., ch. 118, to provide for the disposal of the

public lands, and the act 2 Vic., ch. 14, passed before the union, and the acts since that time, the 4 & 5 Vic., ch. 100, 12 Vic., ch. 31, and 16 Vic., ch. 159, all shew, I think, the distinction between lands which my be supposed to be lands of the Crown proper, and public lands which belong to the government of the country, by which I mean the unserveyed waste lands of the Crown, and which do not come within the meaning of lands duly in charge, or where rents, revenues, issues or profits may have been taken. In this case it is admitted this island has never been assessed, nor been returned as assessable, and it therefore cannot be considered otherwise than as lands from which neither rents, issues, revenues or profits, have been derived. It is not stated in the case whether it ever has been in charge of the Crown or not, but if it ever had been that should be made to appear, and so long as that is not proved or admitted we must assume that it never has been. In order to bar the Crown from the common law right belonging to it, the case should be brought within the statute.

I thine the Crown is entitled to judgment upon this special case.

McLEAN, J., concurred.

Judgment for the Crown.

EDITOR' S NOTE: This judgment should be com- pared with that delivered by the Privy Council in Attorney-General for British Honduras v. Bristowe (1880), 6 A.C. 143