VOL. III.] EXCHEQUER COURT REPORTS. 157 THE CANADIAN COAL AND COLO- i CLAIMANTS 1892 NIZATION COMPANY (LIMITED)... S , Oct. 31. AND HER MAJESTY .THE QUEEN RESPONDENT. Sale of Dominion Lands—=Reservation of mines and minerals—The Dominion Lands Act (43 Vic. c. 26)--Rights of irechaser. . where the Crown, having authority to sell, agrees to sell and convey public lands, and the contract is not controlled by some law affecting such lands and there is no stipulation to the contrary express or implied, the purchaser is entitled to a grant conveying such mines and minerals as pass without express words. THIS was a reference to the court by the Department of the Interior of a claim respecting certain Dominion Lands. The reference was made under 50-51 Vic. c. 16 s. 23. The facts of the case are stated in the judgment. May 4th, 1892. Hogg, Q.C. for the Crown : The 'agreement, as well in its terms as in the negotiations and correspondence leading lip to it and in the dealings of the parties subsequent to its execution, shows . conclusively that so far as the Government were concerned they were dealing with farm lands. This is an element of great importance in view of the effect of the legislation and the order in council. The whole object and intention of Sir John Lister Kaye when he applied for this agreement was to start farms in'that locality. And not only that, but all the conditions in the agreement had reference to farming and stocking and carrying grain and cattle upon the railway. On the 27th of March, 1887, Sir John Lister Kaye telegraphs : " Will the Government include coal in sale
158 EXCHEQUER COURT REPORTS. [VOL. III. 1892 " of lands to me. Most important. Sixty thousand THE " pounds conditionally subscribed " ; and the Govern- CANA IAN ment DAND replied : " Will sell coal lands on usual terms, COAL COLONIZA- " ten dollars cash with deduction, however, on cash TI°N COMPANY " h i r c e to you ,—b eing a deduction in all of two dol- e " lars and fifty cents per acre." So that if there was THE- QUEEN. anything really required to show what the intention A,.g,L,,1Q„r of the parties was both before and after this agreement or connaeit, was entered into, they have revealed it most plainly in these two telegrams. Taking the whole conduct of the parties from the beginning to the end, although the agreement contains the words ” fee simple," it must be held to have reference merely to the use of the land for farming or agricultural purposes. The proper and fair inference to be drawn from the mutual dealings is that when the Government was entering into the contract they were doing so with that view. It should not be assumed that the Government were entering into a contract which they had no power to make under the Act 42 Vic. c. 31. He cites Jones y. The Queen (1). Gormully, Q.C. for the claimants :—I thought that the words " fee simple " were of such a very ancient and settled meaning that any man who was entitled to get lands in fee simple was never satisfied to get merely the surface rights to the ground. (Cites Cruise's Digest (2).) These telegrams between the parties are quite independent of the contract, and the agreement itself is the best evidence of its own meaning. I submit that the words " fee simple " must include all mines and minerals, except gold and silver. The Crown is the holder of these lands. The fee simple in these lands is in Her Majesty just as much (1) 7 Can. S. C. R. 570. (2) Vol. 1 p. 55.
VOL. III.] EXCHEQUER COURT REPORTS: 159 as-1 am the owner of the fee in my ownlands. Now 1892 the Crown makes a bargain; which cannot be carried? THE out, and am I' not entitled to damages for the breach CANADIAN Coaz AND of contract'? The claimants- cdrne into court having; COLoNIZA-performed: all the conditions necessary on their part COMA rrr to entitle them to relief; and' ask a proper remedy in, U• THE damages. Again, the orders in council which were QUEEN. supposed to have been made in 1888; have never been sufficiently published in. The. Canada Gazette, and areanafaent. therefore:. under the statute, not binding on; the claim- ants, or: any body' else. AIIYi'ott, QC. ,followeds on; same side. BurtmnGE, J. now (October 31st; 1892) delivered= judgment. The claimants purchased from the Crown certain Dominion Lands, of which the. east half of section. 12, township 1'2, range 5' and' section 86, township 13, range 7, west of the 4th meridian, formed part. Inj the letters-patent issued to them of the half-section and the' section mentioned was inserted a reservation Of all mines and minerals. The' claimants allege that they are entitled. to, letters-patent without any such reservation, and their claim in that' behalf has been referred to the court for determination; The lands described form part of 50,0.00 acres which, • on the 11th February, 1887; the Crown' agreed. to sell and convey'in fee simple to Sir John Lister. Kaye for the price and upon the conditions set out in . an agreement of that date, . and which, under the authority of an order in council made on the 3rd , of' January, 1889; the Crown, for the price of $1.50 'per acre, sold to the claimants as assignees of Kaye. • There is in the agreement and order' in council nothing to support the reservation complained of, and
100 EXCHEQUER COURT REPORTS. [VOL. III. 1892 limiting the question to what appears therein, I have THE no doubt that the claimants' contention must prevail. CANADIAN COAL AND I am unable, however, to go to the full extent of OOLONIZA- their argument and to hold that the question referred COMPANY to is concluded by the use of the expression " fee v. simple " in the agreement. These words indicate that THE QUEEN. the estate is to be one of inheritance without any con- Reasons dition or limitation that would abridge or defeat the Jud gfment. fee. But one may have an estate in fee simple in lands in which the right to take the minerals therein is in another, or is.reserved. If, however, the Crown having authority to sell agrees, to sell and convey public lands, and the contract is not controlled by some law affecting such lands, and there is no stipulation to the contrary, express or implied, the purchaser is, it seems to me, entitled to a grant conveying such mines and minerals as pass without express words. But if by the law authorizing the sale thereof, such ]ands may not be sold without a reservation of the mines and minerals therein, then, I think the purchaser has no good ground of complaint if such reservation is inserted in the grant thereof, although by the terms of the agreement of sale the lands were to be conveyed in fee simple. In the first place it is said for the Crown in support of the reservation that the sale was made subject to certain orders in council relating to coal lands passed, respectively, ou the 26th of December, 1882, the 2nd of March, 1883, the 13th of May, 1884, and the 13th of April, 1886. By the first two of such orders certain lands, including those for which the letters-patent are • in question, were declared to be coal districts, and were withdrawn from ordinary sale and settlement. By the third an upset price for coal lands was prescribed, and by the fourth coal districts were opened
VOL. III.] EXCHEQUER • COURT REPORTS. 161 to settlement reserving, however, the coal rights there- 1892 in. There was also an order in council of October II; 30th, 1887, upon which the Crown does not now rely ; COALA ANn though it is set out in the statement in defence. This CoLONIzA-order authorized the insertion in letters-patent of- all COMr oN Y. lands west of the 3rd meridian of a reservation of all Tx~N mines and minerals, except in the case of ,lands which QuEEr: had theretofore been sold and disposed of for valuable Reasons for consideration. Judgokont. These orders in council were, made under the authority of a clause in The .Dominion Lands Act (1)- by which it was provided that lands containing coal or other minerals should not be subject to the provisions of the Act resPecting sale or homestead, but should be disposed of in such manner and on such terms and conditions as might from time to time be fixed by the Governor in Council by regulations .to be made in that behalf—which regulations should not go into operation until after they should have been published for four successive weeks in The Canada Gazette. It turns out, however, that none of .the orders-in-council re- (erred to were published in accordance with the statute. Two were published for three- weeks only, and , the others were never published. So it happened, I think,' that, at the time of the sale to the claimants, the lands in question had not been withdrawn from the operation of the provisions of the Act.respecting sale (2), and there was nothing to prevent the Crown selling them without any reservation of the. mines or minerals therein. In the second place, ' for the Crown, it is :contended that the reservation was properly inserted in the 'letters-patent fox the reason that when the agreement of February 11th, 1887, was entered into the Crown and (1,) 43 Vic. c. 26 s. 6 ; 46 Vic. 54 ss. 47 & 91. c. 17 ss. 42 & 81. (2) ; R. S. C. c. (2) 46 Vic. c. 17 s. 24. II
162 EXCHEQUER COURT REPORTS. [VOL. III. 1892 Kaye had in contemplation the sale of agricultural THE lands to be used for agricultural purposes only, and CANADIAN COAL AND that, it appears to me, is a fair inference to draw from COLONIZA- the following incident :—On the 27th of March, 1887, TION COMPANY. Kaye sent a message by cable to the Minister of the N. Interior asking if the Government would include the THE QUEEN. coal in the sale of the lands, to which the Minister Seasons two days later replied that the Government would, for Judgment. with certain reductions mentioned, sell coal lands on the usual terms of ten dollars per acre. Probably Kaye had seen the orders in council respecting coal lands and believed that he was purchasing subject to their provisions. But that does not, it seems to me, dispose of the question in issue between the parties. The orders not having been published cannot be regarded as valid regulations of which all purchasers of Dominion Lands were bound to take notice ; and there is nothing to show that the claimants were aware of their existence. Neither had they knowledge of what passed between Kaye and the Minister of the Interior in respect to the purchase of the coal in the lands. When as assignees of Kaye they were accepted by the Government as the purchasers of such lands there was no intimation to them that the sale was made subject to any reservation. ' There was nothing in the agreement to put them on their guard. On the contrary by its terms they had, I think, a right to conclude that they would acquire all mines and minerals in the lands, excepting gold and silver (i ). Then too, it appears to me, that the sale to the claimants of the 50,000 acres at $1.50 per acre, authorized by the order in council of January 3rd, 1889, even if it did not constitute, had in a great measure the character of, a new transaction to which the only parties were the Crown and the claim , (1) 46 Vic. c. 17-s. 43 ; R. S. C. c. 54 s. 48.
'VOL. III.] EXCHEQUER COURT REPORTS. ants, and which could in no way be effected by any view Sir John Lister Kaye may have entertained of the rights he was acquiring under the agreement of February 11th, 1887. Judgment for claimants, with costs.* Solicitors for claimants: Abbotts, Campbell k Mere- dith. Solicitors for respondent : O'Connor, F.Fogb sr Balder- son. *REPORTER'S NOTE.—Upon a motion heard on 23rd. January, 1893, on behalf of the respondent, to make absolute a rule trial or to vary the judgment, the learned Judge said the rule would be dismissed without costs. He was, however, glad. of the opportunity afforded him to correct the statement in his reasons for judgment that the order in council of the 26th of December, 1882, was not published in The Canada Gazette in accordance with the statute,—the fact being that it was so published three times in English and. twice in French, and in this way for four successive weeks ; but that there was no evidence that it had been laid before Parliament, as was also required by the statute, and in any case he did not think the question as to whether or not that particular order was in force was in anyway material to the issues raised by the reference in the case. • II1 163 1892 THE CANADIAN COAL AND COLONIZA- TION COMPANY. v. THE QUEEN Reasons for Judgment. nisi for a new .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.