Array |n tljE firing (fomntil.
No. 17 of 1911.
ON APPEAL EROM THE COURT OF APPEAL
I OF BRITISH COLUMBIA.
BETWEEN
CITY OF VANCOUVER,
(Defendant), Appellant,
AND
VANCOUVER LUMBER COMPANY and THEODORE
LUDGATE ..--- ¥0 - - (Plaintiffs), Respondents.
RECORD OF PROCEEDINGS.
INDEX OF REFERENCE.
No.
,3
4
Description of Document.
In the Supreme Court of Brittsh Columbia.
Endorsement on Writ ...
Statement of Claim
Statement of Defenoe
Demand for Particulars ...
Date.
7th June, 1909
15th June, 1909
7th August, 1909
28th August, 1909
Page.
1
1
5
8
WMF
5879 11.
INDEX.
KS
No.
5
6
7
8
9
10
11
12
13
Description of Document.
Date.
14
15
16
17
18
19
20
m
1
Particulars of Defence ...
Demand for further Particulars ...
Further Particulars of Defence
Reply
Rejoinder ...
Proceedings at Trial
Plaintiffs' Evidence.
R. G. McPhebson—
Examination ...
Cross-examination
E. L. Kinman—
Examination ...
Cross-examination ...
Argument as to admissibility of evidence taken on Com
mission
Defendant's Evidence.
E. B. McKay—
Examination ...
Gbobge Tubnee—
Examination ...
Cross-examination ...
Re-examination
E. B. McKay (recalled)—
Examination continued
R. G. Tatlow—
Examination ...
Cross-examination
J. C. Keith—
Examination
Cross-examination
James McQueen—
Examination
Cross-examination ... ... ...
Re-examination
T. F. McGuigan—
Examination...
Cross-examination
2nd September, 1909
3rd September, 1909
37th September, 1909
30th August, 1909
14th September, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
10th December, 1909
15th December, 1909
Page.
8
9
9
11
12
14
15
16
17
17
18
22
26
30
31
32
32
34
35
36
36
38
38
39
44 M
INDEX.
111.
No.
Description of Document.
Date.
Page.
21
C. E. TlSDALL—
Examination ...
15th December, 1909
46
Cross-examination ...
15th December, 1909
47
Re-examination ... <-'>'..:
15th December, 1909
49
22
Geobge Eldon—■-
Examination... ... • ...
15th December, 1909
49
Cross-examination ...
15th December, 1909
53
23
William Hammersley-*-
Examination ...
15th December, 1909
56
Cross-examination ...
15th December, 1909
58
24
William Skene—
1
Examination ...
15th December, 1909
59
25
Thomas Matthews—
Examination ...
15th December, 1909
61
Cross-examination ...
15th December, 1909
61
26
Sir F. Borden—
Evidence on Commission (continued on page 75)
19th November, 1909
62
27
R. H. Alexander—
Examination ...
15th December, 1909
64
Cross-examination ...
15th December, 1909
66
28
G. S. MoCoNNBLL—
Examination ...
15th December, 1909
66
29
John McMillan—
Examination ...
15th December, 1909
67
30
F. Buscombe—
Examination ...
16th December, 1909
.68
31
Plaintiffs' Evidence in Rebuttal.
16th December, 1909
71
3lA
i George F. Baldwin—
Examination ...
16th December, 1909
73
Cross-examination ...
16th December, 1909
74
Defendant's Further Evidence.
32
Sir F. Borden—(continued).
Questions of Evidence (on Commission) ...
75
33
Brigadier General Macdonald—
Questions of Evidence (on Commission)
76
34
Sib F. Bordbn—(continued).
Evidence on Commission ...
76
35
Examination of Plaintiff Ludgate for Discovery. Questions
1 to 66
77
376529 13Z.
INDEX.
rj
i
No,
. Exhibit
Mark.
Description of Document.
Date.
Page.
Exhibits intboduced dubing Tbial.
'36
11
Order in Council
25th February, 1880
84
37
12
Letter, Ralph Thompson to Under Secretary of State and
schedule thereto ... ... ... ... ... ...
27th July, 1883
84
?)
Letter, Admiralty Office to Colonial Office
29th February, 1884'
86
) J
Letter, Earl Derby to Marquis of Lansdowne
27th March, 1884
86
38
23
Report of Gen. Middleton
16th April, 1885
87
39
13
Letter, A. W. Ross to Sir Adolphe Caron
24th March, 1886
87
40
21
Letter, Deputy Minister of Interior to Under Secy, of State
19th April, 1886
88
41
14
Telegram, Sir A. Caron to J. W. Trutch
20th April, 1886
89
it
Letter, Jos. W. Trutch to Sir A. Caron
6th May, 1886
89
42
38
Letter, Under Secy. State to Sir A. Caron
25th June, 1886
90
43
24
Petition, City of Vancouver to Lord Lansdowne, Governor-
General
Undated
91
44
4
Order in Council
8th June, 1887
91
45
5
Letter, Col. Panet to Mayor of Vancouver
12th July, 1887
92
46
6
Letter, Mayor of Vancouver to Col. Panet ...
27th July, 1887
93
47
7
Letter, City Clerk to Sir A. Caron
9th March, 1888
93
48
8
Letter, Col. Panet to City Clerk
21st March, 1888
94
49
9
Letter, Mayor and City Clerk to Sir A. Caron
9th January, 1889
94
50
10
Letter, Col. Panet to Mayor
26th January, 1889
95
51
32
Memorandum of Lieut.-Col. McPherson
21st April, 1896
96
tt
Memorandum of Gen. Gascoigno
16th September, 1896
96
52
28
Letter, Lord Aberdeen to Sir F. Borden
25th August, 1898
97
71
Memorial and Petition in form of Resolution
97
))
Letter, SirF. Borden to G. R. Maxwell
26th August, 1898
98
»)
Letter, Sir F. Borden to Lieut.-Col. Macdonald
26th August, 1898
98
>l
Letter, Macdonald to Borden
30th August, 1898
99
))
Letter, Borden to Maxwell
3rd September, 1898
99
53
22
Letter, Jos. Martin to Hon. Dr. Borden
20th January, 1899
100
54
2
Lease, Her Majesty Queen Victoria to Vancouver Lumber •
Co., and Endorsement ...
14th February, 1899
101
>>
Lease, Her Majesty Queen Victoria to Vancouver Lumber
Co. ...
4th April, 1900
103
55
56
1
20
Order-in-Council approving Lease of 14th February, 1899
Petition of Mayor and Aldermen of Vancouver to Sir
Wilfrid Laurier (Ex. 40 on Commission.)
16th February, 1899
9th March, 1899
104
105
57
25
Memorandum from Minister of Militia and Defence to
Deputy Minister
28th March, 1899
115
Letter, Deputy Minister, Militia and Defence, to Deputy
Minister, Justice
29th March, 1899
116 INDEX.
No.
Exhibit
Mark.
Description of Document.
Date.
Page.
57
25
Letter, Deputy Minister of Justice to Deputy
Minister, Militia and Defence ...
14th April, 1899
116
58
31
Letter, Deputy Minister of Militia and Defence,
to City Clerk
15th April, 1899
118
59
30
Record of Proceedings in Action of Attorney-
General of British Columbia vs. Attorney-
General of Canada
16th May, 1899
119
60
27
Evidence of A. R. Howse on trial of Attorney-
General of British Columbia vs. Attorney-
General of Canada
21st December, 1900
123
61
26
Telegram, R. G. MacPherson to Sir E. Borden ...
28fch September, 1904
150
it
Letter, Deputy Minister of Militia and Defence, to
R. G. MacPherson
3rd October, 1904
150
s
Telegram, Deputy Minister of Militia and Defence,
to R. G. MacPherson
20th October, 1904
151
62
37
Letter, City Clerk to Minister of Militia and
Defence ... ...
11th August, 1906
151
63
36
Letter, Acting Deputy Minister, Militia and
Defence, to City Clerk ...
20th August, 1906
152
64
33
Order in Council
31st August, 1906
153
65
29
Letter, R. G. MacPherson to Sir F. Borden
27th November, 1906
153
63
34
Order in Council
13th August, 1908
154
67
39
Letter, A. McEvoy to E. F. Jarvis
28th September, 1908
155
)>
Telegram, Mayor of Vancouver to A. McEvoy ...
2nd October, 1908
155
>»
Memorial referred to in above
28th September, 1908
156
68
40
Letter, E. F. Jarvis to City Clerk
6th October, 1908
157
69
35
Lease, His Majesty the King Edward VII., to City
of Vancouver
1st November, 1908
158
70
3
Demand for possession by Plaintiffs
or Judgment of Hon. Mr. Justice Morrison ...
7th June, 1909
31st January, 1910
160
71
Beasons f
160
72
Formal J
adgment...
« the Court of Appeal of British Columbia.
31st January, 1910
165
73
Notice of
Appeal ... ... ... ... ... ... ...
3rd February, 1910
166
74
Formal J
udgment ... ...
1st November, 1910
167
75
Eeasons f
or Judgment of the Hon. Chief Justice Macdonald ...
1st November, 1910
168
76
Reasons f
or Judgment of the Hon. Mr. Justice Irving
1st November, 1910
172
77
Reasons \
or Judgment of the Hon. Mr. Justice Martin
1st November, 1910
174
78
Order of.
lis Majesty's Privy Council giving leave to appeal ...
4th March, 1911
175 '■*.
%
m
M
3
•ysi |n t\ft flribu CmmalL
No. 17 of 1911.
ON APPEAL FROM THE COURT OF APPEAL OF
BRITISH COLUMBIA.
CITY OF VANCOUVER
BETWEEN
AND
(Defendant), Appellant,
VANCOUVER LUMBER COMPANY AND
THEODORE LUDGATE - - - (Plaintiffs), Respondents.
10
RECORD OF PROCEEDINGS.
IN THE SUPREME COURT OF BRITISH COLUMBIA.
Between :
VANCOUVER LUMBER COMPANY AND THEODORE LUDGATE, ■
Plaintiffs,
and
CITY OF VANCOUVER, I
(Writ issued the 7th day of June, 1909).
Defendant.
ENDORSEMENT ON WRIT.
RECORD
In the
Supreme
Court of
British
Columbia
2Q The Plaintiffs' claim is to recover possession of all that certain Island known No. l
as Deadman's Island, situated in Coal Harbor, in Burrard Inlet, City of ^writment
Vancouver.
7th June
1909
STATEMENT OF CLAIM.
Writ issued 7th day of June, 1909.
No. 2
Statement of
Claim
]. The Plaintiff Theodore Ludgate at present resides in the City of Seattle15th June
in the State of Washington in' the United States of America, and carries on
business under the firm name of Vancouver Lumber Company, and the Defendant
is a municipality incorporated by special Act, of the Legislature of British
30 Columbia i
RECORD
In the
Supreme
Court of
British
Columbia
No. 2
Statement of
Claim
15th June
1909
continued
/i
2. The Plaintiff Theodore Ludgate under his firm name of the Vancouver"
Lumber Company is entitled to the possession of a certain Island known as
Deadman's Island situate in Coal Harbour in Burrard Inlet near the City of
Vancouver aforesaid.
3. On or before the 14th day of February (a.d.) 1899, Her Majesty Queen
Victoria (in right of the Dominion of Canada) was seized in fee and in possession
of the said premises.
4. On the said 14th day of February, 1899, Her Majesty Queen Victoria,
acting through the Honorable the Minister of Militia 'and Defence (for the
Dominion of Canada) the Honorable Frederick William Borden, leased the said 10
property known as Deadman's Island to the Plaintiff, in the following terms :—
THIS INDENTURE made in duplicate the Fourteenth day of February in
the year of our Lord one thousand eight hundred and ninety-nine in pursuance of the Act respecting Short Forms of Leases Between Her
Majesty Queen Victoria acting through the Honorable the Minister of
Militia and Defence and Honorable Frederick William Borden of the
City of Ottawa in the Province of Ontario and Dominion of Canada of
the first part and the VANCOUVER LUMBER COMPANY of the
City of Vancouver in the Province of British Columbia and Dominion of
Canada of the Second Part. 20
WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the said party of the
second part his executors administrators or assigns to be paid observed
and performed he the said party of the first part hath demised and
leased and by these presents doth demise and lease unto the said party
of the second part his executors administrators and assigns all that
certain island known as " Deadman's Island" situated in Coal Harbour
in Burrard Inlet near the City of Vancouver in the Province of British
Columbia and Dominion of Canada to be used as a lumbering location
with the right of erecting thereon a lumber plant and all such appliances go
as may be necessary for carrying on a general lumber business including
wharves, etc.
TO HAVE AND TO HOLD the said demised premises for and during the
term of 25 years renewable to be computed from the first day of March
one thousand eight hundred and ninety-nine and from thenceforth next
ensuing and fully to be complete and ended at expiration of said term
or until determined as hereinafter mentioned YIELDING AND
PAYING therefor yearly and every year during the said term or unto
the party of the first part of his successors in office the sum of five
hundred ($500) dollars current money of the Dominion of Canada 40
to be payable on the following day and times, that is to say: Half-
yearly in each and every year during.the continuance of the said term
without any defalcation or abatement whatsoever—the first of such
payments to become due and be made on the first day of September
next, 1899.
m AND the Lessee covenants with the said Lessor—TO pay rent; and to pay
taxes ; and to repair ; and to keep up fences ; and that the said Lessor
may enter and view state of repair ; and that the said Lessee may repair
according to notice ; and will not carry on any business that shall be
deemed a nuisance on the said premises and will not assign or sublet
the said leased premises or any part thereof without leave in writing
from the party of the first part.
THE said Lessees to have the right to cut down and remove such timber as
may be necessary to provide space for the erection of all buildings in
10 connection with their industry—Her Majesty's Men of War and
Canadian Government Vessels to have> the right to use all wharves constructed by the said Lessees for coaling and watering purposes.
AND that he will leave the premises in good repair proviso for re-entry by
the said party of the first part on non-payment of rent or non-performance of covenant; the said party of the first part covenants with the
said party of the second part for quiet enjoyment; provided always and
it is hereby agreed that this demise may be determined by either party
giving to the other a notice thereof in writing months before the
expiration of the first or any subsequent term or the said party of the
20 first part may determine this demise at any time by a demand of
possession of the said leased premises or any part thereof if required for
military or defensive purposes and the said lessees to have no claim for
compensation for buildings erected or improvements made thereon.
IN WITNESS WHEREOF the said parties hereto have hereunto set their
hands and seals the day and year first above written.
RECORD
In the
Supreme
Court of
British
Columbia
No. 2
Statement of
Claim
15th June
1909
continued
SIGNED, SEALED, AND DELIVERED by
the party of the first part in the presence
of the undersigned witness,
D. A. MACDONALD,
30 Z ff § Lt.-Col.
SIGNED, SEALED, AND DELIVERED by )
the party of the second part in the presence
of the undersigned witness,
F. E. KNIGHT.
F. W. BORDEN (L.S.),
Minister of
Militia and Defence.
THEO. LUDGATE (L.S.)
for the Vancouver
Lumber Co.
5. On the 4th day of April, 1900, Her Majesty> Queen Victoria, acting
through the Honorable the Minister of Militia and Defence (for the Dominion of
Canada) the Honorable Frederick William Borden modified the hereinabove
recited lease by the following indenture under seal:—
THIS INDENTURE made in duplicate on the fourth day of April in the
40 year of Our Lord nineteen hundred between HER MAJESTY QUEEN RECORD
In the
Supreme
Court of
British
Columbia
No. 2
Statement of
Claim
15th June
1909
continued
VICTORIA acting through the Honorable Frederick William Borden of
the City of Ottawa in the Province of Ontario and Dominion of Canada
of the first part and the VANCOUVER LUMBER COMPANY of the
City of Vancouver in the Province of British Columbia and Dominion of
Canada of the second part.
WHEREAS by an indenture bearing date February the fourteenth in the
year eighteen hundred and ninety-nine between the parties hereto of the
first and of the second parts it is witnessed that the party of the first
part did demise and lease unto the party of the second part all that
certain island known as Deadman's Island in the City of Vancouver in 10
the Province of British Columbia on the terms and conditions is in the
following words: Provided always and it is hereby agreed that this
demise may be determined by either party giving to the other a notice
thereof in writing months before the expiration of the first or any
subsequent term of the said party of the first part may determine this
demise at any time by a demand of possession. of the said leased
premises or any part thereof if required for military or defensive purposes
and the said lessees to have no claim for compensation for buildings
erected or improvements made thereon.
AND WHEREAS it is deemed advisable to modify the said lease by 20
removing therefrom the said condition above recited and also any
restrictions as to the lawful uses of said premises and also to provide
therein for the fixing of rents from time to time, Now therefore it is
hereby agreed and declared between the parties hereto as follows :
That the said lease shall be and the same is hereby amended by the removal
therefrom of the conditions on above set forth and any restrictions
as to the purposes for which said premises may lawfully be used and by
the addition thereto of the following provision :
Providing always that the said lease at the expiration of the said first term of
twenty-five years and from time to time at the end of each renewal term 30
of twenty-five years shall be renewed for a further term of twenty-five
years at a rental for each renewal term to be then determined by way of
arbitration in case of any difference as to the amount of said rental
provided always that no such renewal or further term shall be granted
unless the rents reserved shall have been paid.
It is hereby declared and agreed between the parties hereto that the said
lease shall be construed as if the said above recited condition for its
determination had not formed part of said lease and as if said lease did
not contain the restrictions to user therein contained, and as if the
above-mentioned condition for renewal or renewals had formed part of the 40
said lease at the time of the execution thereof, and it is further declared
and agreed that these presents and the said lease shall in no way be THEO. LUDGATE (L.S.),
for the Vancouver Lumber Co.,
Signed in the presence of
held to deprive Her Majesty of any right which she her Successors or
Assigns or they may now or hereafter possess to expropriate the demised
premises for the public use.
F. W. BORDEN (L.S.),
Minister of Militia and Defence,
Signed in the presence of
(Sd.) JOHN H. POWELL. (Sd.) D. A. MACDONALD.
6. The Defendant the City of Vancouver has wrongfully trespassed upon
and taken possession of the said Deadman's Island and has refused and still does
10 refuse (after having been requested so to do) to give up possession thereof to the
said plaintiff.
THE PLAINTIFFS CLAIM—
(a) Possession of the said property known as Deadman's Island.
(b) Mesne profits from the 14th day of February, 1899.
(c) Damages and costs.
Place of trial, Vancouver, B.C.
DELIVERED this 15th day of June (a.d.) 1909, by David Gordon Marshall,
of the firm of Davis, Marshall and Macneill Rooms 80-87 Davis Chambers,
Vancouver, B.C., Solicitor for the Plaintiffs.
20 To G. H. COWAN, Esq., K.C.,
Solicitor for the Defendant.
RECORD
In the
Supreme
Court of
British
Columbia
No. 2
Statement of
Claim
15th June
1909
continued
STATEMENT OF DEFENCE. n0. 3
t-\ (> i i i r» i o /^n • Statement of
1. Defendant as to the 2nd paragraph of the Statement of Claim herein Defence
says that the Plaintiff Ludgate is not under the said firm name of the Vancouver i9o9Ausust
Lumber Company or otherwise entitled to possession of the said premises known
as Deadman's Island.
2. Defendant is in possession of the said premises referred to in the Statement of Claim and known as Deadman's Island, by itself.
30 3. Defendant as to the 3rd paragraph of the said Statement of Claim
denies each and every allegation of fact contained therein.
4. Defendant, as a further defence to said 3rd paragraph, says that Her
Majesty Queen Victoria (in right of the Dominion of Canada) was not on the 14th
day of February, 1899, nor for over 11 years prior thereto in possession of the
said premises.
5. Defendant as to the 4th paragraph of the said Statement of Claim
denies each and every allegation of fact contained therein.
6. Defendant as a further defence to the said 4th paragraph says that the
said alleged Lease was not executed by the Honorable Mr. Frederick William
40 Borden acting as Minister of Militia and Defence for the Dominion of Canada or
otherwise. 1
RECORD
In the
Supreme
Court of
British
Columbia
No. 3
Statement of
Defence
7th August
1909
continued
7. Defendant as a further defence to the said 4th paragraph says that if
the said Honorable Frederick William Borden executed the said lease as Minister
of Militia and Defence for the Dominion of Canada or otherwise (which the
Defendant does not admit but denies) then that he was not authorised to execute
such alleged lease by a Dominion Order-in-Council or otherwise.
8. Defendant as to the 5th paragraph of the said Statement of Claim denies
each and every allegation of fact contained therein.
9. Defendant as a further defence to said 5th paragraph says that the
Indenture referred to in the said paragraph was not executed by the said
Honorable Frederick William Borden as Minister of Militia and Defence for the 10
Dominion of Canada or otherwise.
10. Defendant as a further defence to said 5th paragraph says that if the
said Honorable Frederick William Borden executed the said Lease as Minister of
Militia and Defence for the Dominion of Canada or otherwise (which the Defendant does not admit but denies) then that he was not authorized to execute such
alleged Indenture by the Dominion Order-in-Council or otherwise.
11. Defendant as to the 6th paragraph of the said Statement of Claim
denies each and every allegation of fact contained therein.
12. On the 8th June, 1887, the Dominion Government by Order-in-
Council and for the consideration and on the terms therein mentioned vested the 20
property known as the Dominion Military reserve near the First Narrows |
(bounded on the west by English Bay and on the east by Burrard Inlet) in the
Defendant for Park purposes subject only to redemption by the Dominion -
Government for military purposes, and such Order-in-Council is as follows :—
"REPORT OF A COMMITTEE OF THE HONORABLE THE PRIVY
COUNCIL APPROVED BY HIS EXCELLENCY THE GOVERNOR
GENERAL IN COUNCIL on the 8th day of June, 1887.-
| On a report dated 10th day of May, 1887, from the Minister of Militia and
Defence stating that he has had under consideration a petition of the
Mayor and Aldermen of the City of Vancouver, B.C., praying that the 30
Dominion Government Military reserve near the First Narrows, bounded
on the west by English Bay and on the east by Burrard Inlet may be
handed over to the said corporation for use as a park. Then Minister
reports that he sees no objection to this proposal provided this Corporation keep the park in proper order and the Dominion Government
retain the right to resume the property when required at any time. The
Minister further states that he does not deem it advisable to recommend
that this property be transferred to class 2 as not available for military
use as he is of the opinion that it will be required for military purposes
but until this recommends that the corporation have the use of the same 40
as a park, subject to the provisions mentioned. The Committee advise
that the Minister of Militia and Defence be authorized to take the
necessary steps for carrying the same into effect.
JOHN J. McGEE,
Clerk, Privy Council.' 13. The said Deadman's Island forms a portion of the said Government
Military Reserve referred to in the said last-mentioned Order-in-Council and by
virtue of such Order-in-Council the said Deadman's Island became vested in the
Defendant for Park purposes as aforesaid.
14. The said Order-in-Council of the 8th June, 1887, was duly transmitted
to the Defendant by direction of the Minister of Militia and* Defence for the
Dominion of Canada and in pursuance of and upon the faith of such Order-in-
Council the Defendant immediately thereafter entered into possession of the said
Government Military Reserve including the said Deadman's Island, and expended
10 large suras of money improving the said land, building roads, trails and bridges,
and rendering the same suitable for park purposes, and has been ever since and
is now in possession of the said Government Military Reserve including Deadman's
Island.
15. No portion of the said Government Military Reserve has, since the
Defendant so took possession of same and expended money thereon, ever been
required for military purposes, nor has possession thereof been resumed by the
Dominion Government for that or any purpose.
16. On and prior to the 25th day of February, 1880, the said Military
Reserve was with other lands in Canada, owned and held by the Imperial
20 Government as Military Reserve, and the Governor of Canada requested
the Imperial Government to transfer such Military Reserve with other
Naval and Military Reserves to the Dominion of Canada to be held and
administered by the Dominion in the same manner as other lands in Canada of a
corresponding character that had been previously transferred by the Imperial
Government to the Dominion Government were held and administered, and in the
year 1884 the Imperial Government in compliance with such request transferred
inter alia the said Military Reserve to the Dominion of Canada to be so held and
administered as aforesaid.
17. The said Military Reserve so transferred to the Dominion of Canada
30 as aforesaid was to be held and administered for military purposes until the same
was transferred to the class of lands known as "Class 2" as not available for
military use, and the said Military Reserve was not so transferred to such class,
and the alleged lease to the Plaintiff and the Indenture purporting to modify said
alleged lease dated the 4th April, 1900, were and are both contrary to the terms
and conditions upon which the said Military Reserve was to be held and
administered by the Dominion of Canada, and the Plaintiffs did not receive or
obtain any rights thereunder.
18. Defendant says that the alleged right of action and any claim to mesne
profits did not accrue if at all within six (6) years "before the commencement
40 of this action, and was including any claim for mesne profits barred by the 3rd
Section of the Statute of Limitations.
Delivered this 7th day of August, 1909, by George Henry Cowan of the
firm of Cowan, Macdonald and Parkes, whose place of business and address for
service is at their office, 537, Hastings Street, Vancouver, B.C., Solicitor for the
Defendant.
RECORD
In the
Supreme
Court of
British
Columbia
No. 3
Statement of
Defence
7th August
1909
continued JmT'WrxW"
m
m
RECORD
In the
Supreme
Court of
British
Columbia
No. 4
Plaintiffs'
Demand for
Particulars
28th August
1909
1
No. 5
Particulars
of Defence
2nd Sept.
1909
*<©K
i
8
No. i. ;|:'
DEMAND FOR PARTICULARS.
The Plaintiffs demand particulars of the Defendant's Statement of
Defence in the following respects :—
1. Particulars of the request of the Government of Canada to the Imperial
Government to transfer Military Reserves to the Dominion of Canada referred to
in paragraph 16 of the Defence herein, stating whether such request was oral or
in writing, and if in writing the date of such document, between who, or to whom
addressed, and by whom signed.
2. Particulars of why "the said Military Reserve so transferred to the 10
Dominion of Canada was to be held and administered for military purposes until
the same was available for military use" referred to in paragraph 17 of the said
Statement of Defence, and if any such obligation depended upon any document
giving the date and description of such document and between whom made.
3. Particulars of | Class 2" referred to in paragraph 17 of the said
Statement of Defence.
Dated the 28th day of August, 1909.
To
D. G. MARSHALL,
Solicitor for Plaintiffs.
G. H. Cowan,
Solicitor for Defendant.
20
No. 5.
I PARTICULARS.
Particulars delivered pursuant to Demand, dated 28th August, 1909.
1. The request referred to in paragraph 16 of the Defence herein is as far
as Defendant has knowledge, contained in a report of the Privy Council
approved by His Excellency the Governor-General in Council on the 25th day
of February, 1880, and is as follows :—
"On a memorandum, dated 16th February, 1880, from the Honourable the 30
Minister of the Interior reporting that he is informed that a considerable area of
lands situated at important points along the coast line in the Province of British
Columbia is held by the Imperial Government as Military and Naval Reserves,
and suggesting for the consideration of your Excellency in Council the expediency
of inviting the attention of the Imperial Authorities to the fact, and asking
should the same not be inconsistent with the views of Her Majesty's Government
that the lands in question, excepting such as may actually be required for military
or naval purposes, may be transferred to the Dominion, to be held and
administered in the same manner as the lands of corresponding character in the
older provinces formerly transferred by Her Majesty'^ Government to Canada. 40
'The Committee submit the foregoing suggestions for your Excellency's
approval.
" J. O. COTE,
" Clerk, Privy Council." 9
2. The Defendant cannot give particulars of why the said Military Reserve
so transferred to the Dominion of Canada was to be held and administered for
military purposes as the reason for so holding and administering such Military
Reserve were and are matters of Imperial and Dominion policy.
Dated this 2nd day of September, 1909.
To
10
GEO. H, COWAN,
Solicitor for the Defendant.
D. G. Marshall,
Solicitor for the Plaintiffs.
RECORD
In the
Supreme
Court of
British
Columbia
No. 5
Particulars
of Defence
2nd Sept.
1909
continued
No. 6.
DEMAND FOR FURTHER PARTICULARS.
The
Plaintiffs demand further and better particulars of the Defendant's
Statement of Defence in the following respects :—
1. Particulars of the obligation by which | the said Military Reserve so
transferred to the Dominion of Canada was to be held and administered for
military purposes until the same was transferred to the class of lands known as
'Class 2 ' as not available for military use" referred to in paragraph 17 of the
20 said Statement of Defence, and if any such obligation depended upon any
document giving the date and description of such document, and between whom
made.
Dated, etc., 3rd September, 1909.
No. 6
Demand for
further
particulars
of Defence
3rd Sept.
1909
No. 7.
FURTHER PARTICULARS OF DEFENCE.
Pursuant to Demand of 3rd September, 1909.
the particulars of any " obligation
No. 7
Further
Particulars
of Defence
27th Sept.
1909
1. The following are the particulars of any "obligation*' referred to in
such demand:
30 The said Military Reserve was applied for by the Domiuion Government and
transferred or surrendered to the said Government by the Imperial Government
in pursuance of the following Order-in-Council and Despatch, viz.:—
The Order in Council approved of the 25th of April, 1880, and the Despatch
of the Earl of Derby of the 27th of March, 1884.
Copy of a Report of a Committee of the Honourable the Privy Council
approved by His Excellency the Governor-General in Council on the 25th
February, 1880. 10
fft
RECORD
In the
Supreme
Court of
British
Columbia
No. 7
Further
Particulars
of Defence
27fch Sept.
1909
continued
"On a Memorandum dated 16th February, 1880, from the Honourable the
Minister of the Interior, reporting that he is informed that a considerable area of
lands, situate at important points along the coast line in the Province of British
Columbia, is held by the Imperial Government as military and naval reserves,
and suggesting for the consideration of your Excellency in Council the expediency
of inviting the attention of the Imperial authorities to the fact, and asking should
the same not be inconsistent with the views of Her Majesty's Government, that
the lands in question, excepting such as may actually be required for military or
naval purposes, may be transferred to the Dominion, to be held and administered
in the same manner as the lands of corresponding character in the older provinces 10
formerly transferred by Her Majesty's Government to Canada.
" The Committee submit the foregoing suggestions for your Excellency's
approval.
"J. 0. COTE,
I Clerk Privy Council."
THE EARL OF DERBY TO THE MARQUIS OF LANSDOWNE.
Governor-General, the Most Honourable
The Marquis of Lansdowne, G.C.M.G., etc. etc. etc.
Downing Street, 20
27th March, 1884.
My Lord,
With reference to your despatch No. 207 of the 13th of July, 1881, and to
previous correspondence respecting the proposed surrender to the Canadian
Government of certain lands reserved for naval and military purposes in British
Columbia, I have the honour to state that the power of Governor Douglas
to make reserves in British Columbia appears to have rested on the 2nd clause of
his commission dated the 2nd of September, 1858, directing him to execute his
trust according to powers, directions and authorities granted or appointed to him
under the Royal Sign Manual and Signet or by Order in Council or by the Queen 30
through one of Her Majesty's principal Secretaries of State, and further upon
despatches from Sir E. B. Lytton, dated the 31st of July and 14th of August,
1858, and giving him instructions as to the marking out of allotment for public
purposes and giving him provisional rules for his guidance in selling lands.
These papers are contained in a Parliamentary paper given to the British Parliament in 1859, entitled I Papers relative to the affairs of British Columbia,"
printed 18th February, 1859, p. 3, 45 and 49. And it has always been considered
that reserves made by him were valid and became effectual without confirmation
by the Secretary of State.
As regards the reserves now in question no formal deed appears to have 40
been, made conveying them to the military or naval authorities, and I am advised
that they may now m like manner be surrendered without the formality of a
regular deed of conveyance.
It appears, therefore, sufficient to state that Her Majesty's Government are
prepared to surrender the military reserves specified in the schedule to the War 11
Office letter of the 27th of July, 1883, a copy of which is enclosed, and all navy
reserves with the exception of those mentioned in the letter from the Admiralty
of the 29th ultimo, a copy of which is enclosed.
I request that you will inform me whether the Dominion Government desire
to receive any more formal notification of surrender than this despatch, and that
I may also be informed of the nature of the instrument which they would like to
receive.
I have, etc.,
DERBY.
10
RECORD
In the
Supreme
Court of
British
Columbia
No. 7
Further
Particulars
of Defence
27th Sept.
1909
continued
2. Particulars of Class " 2 | referred to in paragraph 17 of the Statement
of Defence are such lands as have been reserved by the Dominion for military or
naval purposes, but which have been found no longer available or necessary for,
such purposes and then transferred to Class " 2."
Dated this 27th day of September, a.d. 1909.
GEO. H. COWAN,
Defendant's Solicitor.
ToD. G. Marshall, Esq.,
Plaintiffs' Solicitor.
20
No. 8.
REPLY.
1. The Plaintiffs join issue with the Defendant's Statement of Defence
delivered herein.
2. In further answer to paragraphs 12, 13 and 14 of the said Statement of
Defence, the Plaintiffs say that if an Order-in-Council such as is alleged were
passed (which these Plaintiffs deny), such Order-in-Council was not acted upon
and was inoperative, and was cancelled by Order-in-Council dated August 31st,
1906
30 3. In further answer to paragraphs 12, 13 and 14 of the said Statement of
Defence, the Plaintiffs say that if any term of demise of the lands in question in
favour of the Defendant was established by the said Order-in-Council (which the
Plaintiffs deny), then the unexpired residue was duly Surrendered by the
Defendant to the Dominion Government by act and operation of law in or about
the month of November, 1908, and prior to the demand for possession mentioned
in the Statement of Claim herein. Particulars are as follows :—
(a) On or before the 28th day of September, 1908, the Defendant presented
a petition to the Right Honourable Sir Wilfrid Laurier and the
Executive Council of the Domiuion of Canada, asking for a lease of the
40 reserve known as Stanley Park, and the Plaintiffs crave leave to refer
to this petition at length on the trial of this action.
No. 8
Reply
30th August
1909 RECORD
In the
Supreme
Court of
British
Columbia
No. 8
Reply
30th August,
1909
continued
12
(b) Acting upon the said request and petition of the Defendant, the Minister
of Militia and Defence, representing His Majesty King Edward the
Seventh, and acting under the authority of the said Order-in-Council
dated August 13th, 1908, leased the said property referred to in the
said Order-in-Council of June 8th, 1887, to the Defendants upon certain
terms and conditions contained in a lease dated November 1st, a.d.,
1908, which lease the Plaintiffs crave leave to refer to at length upon
the trial of this action.
(e) The said lease was also executed by the Defendant and was accepted
and acted upon by them, and is now in full force and effect. 0 i
(d) If the property referred to in the said Order-in-Council of June 8th,
1887, includes the lands sued for herein or any portion thereof (which
the Plaintiffs deny), then the said lease as accepted and acted upon by
the Defendant as aforesaid was expressly made subject to the lease to
the Plaintiffs of the lands sued for referred to in paragraph 4 of the
Statement of Claim herein.
4. As to paragraphs 16 and 17 of the Statement of Defence, the Plaintiffs
say that the same show no good cause of defence to this action.
Delivered, etc., 30th August, 1909.
To Geo. H. Cowan. 20
No. 9
Rejoinder
14th Sept.
1909
No. 9.
REJOINDER.
1. The Defendants join issue on the reply.
2. In answer to the 2nd paragraph of the Reply, the Defendants say that
the Order-in-Council referred to in the Statement of Defence was never cancelled,
but was acted upon and always remained in full force and effect, and by the
same the Defendants acquired a perpetual interest in the said lands with the
exclusive right of occupation irrevocable by the Crown except for military
purposes, and that such Order-in-Council was never revoked, and the Defendants 30
have been in continuous possession ever since the same was passed, and are now
in possession of the said lands thereunder.
3. In further answer to the said 2nd paragraph, the Defendants say that
the Order-in-Council of the 31st August, 1906, did not and was not intended to
cancel the said Order-in-Council of 1887, and that the same was never communicated to these defendants in any way.
4. In answer to the 3rd paragraph of the Reply, the Defendants say that
they never surrendered to the Crown in right of the Dominion either in fact or
in law their interest in the said lands.
5. The Defendants further say that they applied to the Crown in the right 40
of the Dominion for better evidence of their title to the said lands, and thereupon
the Crown in right of the Dominion by an Order-in-Council, dated 31st August,
1906, which was not communicated to these Defendants or acted upon in any IS
of
way affected to cancel the Order-in-Council
arranging the holding; of the said lands which l
RECORD
1887 for the purpose of re-
intended by the said Order in the
to be leased for a period of ninety-nine years to Commissioners. Thereafter, on couVof
the 13th August, 1908, the Crown in right of the Dominion made an Order-in- Sjjjjjj^
Council whereby the t-aid Order-in-Council of the 31st August, 1906, was __
amended to provide for the leasing; of the said lands to the Defendants. In _ .^°;9
*» i • • i y^w t • s*? -ia r\ i • r*i H ReJ01nder
pursuance of the original Order m-Council of 1887, and of the Order-m-Uouncil uth Sept.
of 1908, the Crown in right of the Dominion executed a lease bearing date the 2inued
1st day of November, 1908, which recited that the Order-in-Council of 1887 was
10 in force, and that it was thereby intended to demise to the Defendants all the
said lands for the term of ninety-nine years renewable perpetually, subject
only to the conditions in a certain lease made by the Crown in the right of the
Dominion of Public Lands (known as Mount Pleasant Park) at the City of
Halifax, Nova Scotia, and to no other conditions.
6. In drawing up the said lease, by mistake and inadvertence, there was
inserted in the same a clause as follows :—
" Subject until their determination of any existing lease of portion of
said lands."
But the Defendants say that the said clause is not in accordance with the Order -
20 in-Council aforesaid, which was passed to carry out more effectually the Order-in-
Council of 1887, and did not contain any such conditions, and that under the
Orders-in-Council of 1887 and 1908 they are entitled to the exclusive possession
and occupation of the said lands.
7. The Defendants further say that the said lease was signed or executed
by the Mayor of the City of Vancouver without any bye-law authorising him to
do so and without any other authority, and that the said Mayor had no right to
affix the seal of the City of Vancouver to the said lease or to execute the same
with the clause referred to in the 6th paragraph hereof, and that the same was
without authority and void.
30 8. The Defendants further say that by the Order-in-Council of 1887 acted
upon by these Defendants, and under which large sums of money were expended,
these Defendants became entitled to a perpetual lie mce to occupy the said lands,
which is irrevocable by the Crown, and the lease claimed by the Plaintiffs passed
no right, title or interest thereto to the Plaintiffs.
9. The Defendants further say that the public are interested in the said
lands, the same having been dedicated as a public park, and that either the
Attorney-General for the Province of British Columbia or the Attorney-General
for Canada is a necessary party to this action.
Delivered this 14th day of September, a.d. 1909, by Geo. H. Cowan, of the
40 firm of Cowan, Macdonald & Parkes, whose place of business and address for
service is 537, Hastings Street, Vancouver, B.C., Solicitors for the Defendant. •
Record
In the
Supreme
Court of
British
Columbia
No. 10
Proceedings
at Trial
Case for the
Plaintiff
ft
I
I
14
No- 10 'If f;
PROCEEDINGS AT TRIAL.
Before MORRISON, J.
Vancouver, B.C.,
December 10th, 1909.
E. P. DAVIS, Esq., KG, and D. G. MARSHALL, Esq. (Davis, Marshall and
Macneill), for Plaintiffs.
W. A. MACDONALD, Esq., KG, and C. F. CAMPBELL, Esq. (Cowan,
Macdonald & Parkes), for Defendants.
CASE FOR THE PLAINTIFF. f 10
Mr. Davis—I wish to take certain objections to certain paragraphs of the
Defendants' Rejoinder as being bad in law, and ask to have them struck out, and
that no evidence may be given under them.
Mr. Macdonald—I object to my learned friend's application. No notice
whatever has been given of this application, and one cannot strike out paragraphs
of a Statement of Defence without giving notice.
Mr. Davis—As far as I am concerned, at the present time it is quite
sufficient for me to take the objection that it is bad in law, and then it can be
argued afterwards as to its being struck out. This is the formal way of putting
it, paragraph 3 of the Rejoinder referring to the second paragraph of the Reply. 20
The reason why I object, I want to protect myself now by my objections in
raising this point. For instance, if they came along and tendered evidence under
a defence like that, they might say when I objected to the admissibility of the
evidence, " You never took any objection to that pleading, and the pleading is
there," and I am just protecting myself in that way. The next one is paragraph
I of the Rejoinder, and the reasons are practically the same. I object to
paragraph 6 as bad in law. Then in the* next plnce I object to paragraph 8 of
the Rejoinder as merely setting up a conclusion of law- I do not suppose that
they will tender any evidence under it in any event, but still I take the
objection. 30
Mr. Macdonald—I think my learned friend is hardly of the opinion that
your Lordship will deal with these objections to the paragraphs at this stage, but
he simply wants to save his rights, so I do not want to take up any time now
arguing upon that.
The Court—No.
Mr. Davis—I put in an Order-in-Council of the 16th of February, 1899.
Mr. Macdonald—It is as well for me at this point to raise the objection to
this Order-in-Council that it cannot have reference to the lease under which this
Plaintiff claims title to the island, as the Order-in-Council was passed after the
lease was executed. 40
The Court—The lease was executed when ? 15
continued
Mr. Macdonald—On the 14th of February, and the Order in Council was RBJ^D
on the 16th of February. in the
The Court—The lease was filed a couple of days before, that is all. Was courtrf6
the lease made pursuant to that Order ? rritislv
Mr. Macdonald—It does not show. ° maiJ'
By the Court—Is that the suggestion 1 I No-}°
Mr. Macdonald—I don't know what the suggestion is. at trial
By the Court—It may not have any reference to that lease at all, yet it Casef~
might have some reference to some point involved in this trial. If you say that plaintiff
10 purports to be the Order-in-Council on which the lease is based—
Mr. Macdonald—I do not say so. I say my learned friend is suggesting
that is the Order in Council on which the lease is based. I say it is not a matter
of evidence in the trial unless he can show that is the order on which the lease is
based, and the date shows it cannot be the one on which it is based.
By the Court—I suppose there is no controversy that the lease was dated
on the 14th, and this is on the 16th ; but the document speaks for itself, and I
do not know the contents yet.
Mr. Davis—I will undertake to prove beyond all question, my learned friend
knows perfectly well this is the Order-in-Council and with the rest of the evidence
20 will go in.
By the Court—There is no jury, and if documents have been improperly
admitted, all that can be rearranged.
Mr. Davis—I will straighten that out. My statement won't help it a particle. The evidence shall speak for itself. Extract from the report of the
Committee of the Honorable Privy Council as approved by His Excellency on the
26th of February, 1899.
By the Court—I suppose you do not intend to spread all these on the
record, because they will be filed as exhibits, anyway. Of course I do not pretend
to carry them in my mind, but they might obviate the necessity of your
30 reading it.
Mr. Davis—All right, my Lord, I will just state the substance of it. I will
call Mr. MacPherson.
No. 11.
R. G. MACPHERSON Called and Sworn, and Examined by Mr. Davis :—
Q. What is your name ? A. Robert G. MacPherson.
Q. You live in Vancouver ? A. Yes, sir.
Q. You are Postmaster here at present, I believe ? A. Yes.
Q. You were a Member for the Dominion House Parliament for Vancouver
40 City for some years ? A. Yes.
Q. You were personally acquainted, I believe, with Sir Frederick Borden ?
A. Yes.
Q. Do you know his signature ? A. Yes,
Plaintiffs'
Evidence
No. 11
R. G.
Macpherson
Examination
10th Dec.
1909 RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence
Noll
R. G
Maopherson
Examination
10th Dec.
1909
continued
16
Q. Will you just look at the two signatures, one on the front " F.W. Borden."
Whose signature is that ? A. Sir Frederick Borden's.
Q. What position does he occupy ? A. Minister of Militia.
Q. And Defence, in the Dominion Cabinet ? A. Yes, sir.
Q. Look at the
By the Court—And was so during your time ? A. Yes, during my time
of incumbency.
Mr. Davis—And was so in 1899? A Well, yes, to the best of my
knowledge.
Q. As a matter of fact he was from 1896, on, anyhow ? A. 1896, yes. 10
Q. He has always been ? A. Yes.
Q. Now " F. W. Borden " on the back again ? A. Yes.
Q. Whose signature is that ? A. That is Sir Frederick Borden's.
Q. I would ask leave to put in first to let certified copies take the place of
these. There are two documents here, the one on the first part of the page is the
lease in question which date is the 14th of February, 1899, Deadman's Island, to
the Vancouver Lumber Co. Then on the back there was a modification of that
lease, and if there were any question about the date, the 16th, although it is
easy enough to see how that has crept in, we will put it beyond all question. On
the 4th of April, 1900, another lease was signed introducing some modification in 20
that of the 16th February. Both are set out in full in the statement of claim:
In other respects it leaves the lease the same.
Cross-
examination Cross-Examination by Mr. Macdonald—
Q. How long were you a member, Mr. Macpherson ?
1908.
A. From 1903 to
Q. And during all that time that agitation was on over at Deadman's
Island ? A. No, we didn't have much agitation ; that was prior to my time.
Q. That is one of the troubles you escaped ? A. Evidently.
Q. I see that in this list—because the copy that goes in will not show it— 30
there is a blank left in the printed form; there is no time within which the
notice can be given for cancellation ? A. Well of course I know nothing about
that.
Q. I only draw your attention to it, because we are not going to keep the
original. That is correct ? A. Well of course I am not authority for the lease.
By the Court—From a glance of the copy that is spread out in the
pleadings, that also is left in blank ? A. I do not know anything about the
lease.
Mr. Macdonald—I see the clause that is used in the printed form that is
used for leases " shall not erect any building or obstruction whatever on the 40
leased premises" is struck out ? A. Yes.
By the Court—I think he must put in, as it were, a photograph or exact
picture of that.
Mr. Davis—Yes, By the Gourt—Mr. Davis will see to that, Mr. Macdonald.
Mr. Davis —It can be marked 2 in the meantime, and with the privilege of
withdrawing it when a certified copy is substituted.
Mr. Macdonald—I see there is another blank endorsement on this, but it
seems to be cancelled and scored out. That will go on too.
Mr. Davis—We have no objection to that. You want a facsimile.
By the Court—Isn't it usual, Mr. Macdonald, to photograph it ?
Mr. Macdonald—-I would not want it put in to that extent.
Mr. Davis —We will put in a copy that is satisfactory to Mr. Macdonald,
10 and if it is not satisfactory and he wants the photograph, he can have it.
RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence
No. 11
R. G.
Macpherson
10th Dec.
1909
Cross-
examination
continued
this document
Yes.
2? A.
No. 12.
E. L. KINMAN, Called and Sworn, and Examined by Mr. Davis :—
Q. What is your name ? A. Everett L. Kinman.
Q. You live in Vancouver, Mr. Kinman ? A. Yes.
Q. You know Mr. Ludgate's signature I believe ? A. I do.
Q. Just look at I Theo. Ludgate" here on the front of
(Exhibit 2). Whose signature is that ? A. It is Mr. Ludgate's.
Q. That is Mr. Ludgate of the Vancouver Lumber Co. ? A.
2o Q- And then look at the back, " Theo. Ludgate," back of Exhibit
That is the same.
Q. His signature also ? A. Yes.
Q. Did you under that lease, or these leases, take possession of this
Deadman's Island sometime this year ? A. I did.
Q. And when ? A. I think about the first of May.
Q. Acting under whose authority ? A. Mr. Ludgate's.
Q. And you took possession, you say ; and did you find anybody in connection with the city there at all ? A. When I first went over there I found two
men who I was told were working for the city. I asked them, and they refused
30 to tell who they were working for.
Q. And then what happened to you ? A. Well, I put them off the Island.
Q. That is, you put these men off the Island ? A. Yes.
Q. And subsequently, what happened to yourself? A. Well, they arrested
me on a warrant.
Q. The city ejected you from the premises, a short way of putting it? A.
Yes ; arrested me and put me in gaol.
Q. Adding insult to injury ? A. Yes.
Cross-Examined by Mr. Macdonald—
Q. You are interested in this action, Mr. Kinman ?
40 Q. Well, I hardly know. I have an interest in the Company that was
formed, but the property has never been transferred to the company.
Q. Well, you are interested in the Company, to be plain about it ? A. Well,
I presume so.
No. 12
E. L. Kinman
Examination
10th Dec.
1909
Cross-
examination 4
RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence
No. 12
E. L. Kinman
10th Dec.
1909
Cross-
examination
continued v
[18
By the Court—We are all interested in it, you know. I am very much •
interested at the present time.
Mr. Macdonald (to witness)—I mean, financially interested ? A. Oh yes
Q. You are ? A. Yes. J
Q. And so that in going there to evict these men from the Island you were
acting on your own behalf as well as Ludgate's ? A. Well, I was acting under
instructions from Mr. Ludgate.
Q. But acting in your own financial interests.
(Objected to by Mr. Davis as involving a question of law.)
Mr. Macdonald—I want to know whether at that time you were interested ? 10
A. Oh, yes, I was interested then, as much as now.
Q. And you put these two men off the Island ? A. I did.
Q. Then there was a policeman put on with one of those men again? A.
There were three or four policemen come back with those men that same day or
the next day; I am not sure which.
Q. And there was a policeman, one of them remaining, and you put him off
the next morningr ? A. I did.
Q. By force ? A. Yes.
Q. When did you first have a knowledge of this Island ? A. Ten or eleven
years ago. 20
Q. At present I believe you are living in Seattle ? A. No, sir.
Q. Living here ? A. My home is 1519, Beach Ave., and has been for some
years.
Q. Where does Mr. Ludgate live? A. Mr. Ludgate is at the Hotel
Frederick, Seattle, at the present time.
Mr. Davis—I ask my learned friend to produce the demand for possession.
Mr. Macdonald—I have not got it, but you can put in a copy.
Mr. Davis —I put in the demand for possession, which my learned friend
admits as having been served on the city in accordance with the endorsement.
It is dated the 7th of June, 1909. 30
(Marked as Exhibit 3).
tew*
No. 13
Argument
as to
admissibility
bf Evidence
taken on
Commission
No. 13.
Mr. Davis—That is the Plaintiff's case, my lord.
Mr. Macdonald—My lord, I must admit my learned friend has overlooked
the fact that a commission was issued on his behalf and that commission is part
of the evidence of this Court.
Mr. Davis—I have not overlooked it at all.
By the Court—Apparently he does not deem it necessary for his case.
Mr. Macdonald—Oh, you cannot take that course. If you issue a com- 40
mission it becomes part of the evidence of the party who issues it, and you cannot
come to the trial and lie back and say I am not going to use it now. I state, as
a fact, and it can be shown by affidavit if necessary, there was a commission
issued,
0 19
Mr. Davis—I do not dispute that.
By the Court—I suppose I will have to take judicial notice of that because
I think it was I who issued the order, but whether it is obligatory on him to use
the evidence he has thereby obtained I am not prepared to say.
Mr. Macdonald—That is the point, whether 1 commission once issued for
the examination of witnesses at a foreign point, whether those witnesses do not
become witnesses of the Court and the evidence of the party who takes out the
commission when before the Court, and for the purpose of being used on the
trial.
10 By the Court —May he not use it if he wishes to ?
Mr. Macdonald —Just the same I take it as if a witness is called into open
Court and the evidence given is evidence before the Court and it has been taken
and is required to be used. In other words, they cannot trifle with the Court in
that way in having a commission issued and then not use the evidence.
By the Court—Your question is. that commission evidence contains some
material which may be adverse to the Plaintiffs' case ? If so, you have the
opportunity of using it, haven't you ?
Mr. Macdonald—No, I suggest this—.
By the Court—If he can make the case without that, presumably the onus
20 is on you of course to adverse that, and I presume you have that evidence at
your disposal.
Mr. Davis—I may say, my lord, I would like to see my
produce some authority. The practice I understand is when a
issued, certain evidence is taken and there is a provision put in
upon the party who is using the commission showing that the witnesses are out
of the province, he is at liberty to use the evidence. Although I do not suppose
I would object to my learned friend putting the evidence in, still he has no right
to do so. I only know of one case in this province (which is not reported). Mr.
Luxton was on the other side, and he had taken out * 9 just as I have here—a
30 certain commission which he did not wish to put in and I tried to put it in—not
myself, because I did not think I had a right to do so, but I asked that the other
side put it in. Mr. Luxton refused, and under the same provision as to a solicitor
showing by affidavit that a witness was away, I put Mr. Luxton in the box in
order to get myself in a position to put the evidence in. I was not able sufficiently
to prove through Mr. Luxton that the witness was out of the province, and I was
not able to make use of the evidence at all. Mr. Justice Drake decided that
was the only way I could get it in and he ruled it out ultimately. That is the
only decision I know of in these Courts. Your lordship knows that a man can
put in a certain portion of his commission evidence, he is not bound to put it all
40 in. The other side can put in what is necessary to explain it. He is merely in
the position of not having obtained certain evidence. You can object when commission evidence is read if there is any question that is not admissable—evidence
that is not admissible put in on commission, when that question is read you can
object in Court here although no objection may have been taken in the Court
below,
RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence
No 13
Argument
as to
admissibility
of Evidence
taken on
Commission
continued
learned friend
commission is
the order that
"SIC 20
RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence
No 13
Argument
as to
admissibility
of Evidence
taken on
Commission
continued
By ihe Court—Mr. Macdonald's objection goes further than that. It presupposes the matter is before the Court, and he complains you have ignored this
altogether.
Mr. Davis—Yes, that is my right.
By the Court—Perhaps Mr. Macdonald has authority.
Mr. Davis—I don't think my learned friend can find any authority. I may
say we may use it in rebuttal. Is my learned friend to force me to put it in in my
original case when perhaps there would be nothing to rebut ?
By the Court—Is there any obligation on Mr. Davis to use that evidence ?
That is the point I would like some authority on. 10
Mr. Macdonald—Well, I would like to see if there is an affidavit.
By the Court—Couldn't we go on ? There is no jury, and these are
matters that can be adjusted. If you give me authority later on that he is
obliged to use that evidence.
Mr. Davis—Mr. Marshall says there was an affidavit and the usual one, that
covers the point.
By the Court—The affidavit of D. G. Marshall ?
Mr Macdonald—Yes, the affidavit of the solicitor for the Plaintiff says "T
am advised by counsel and verily believe it is material for us at the trial," and so
on—the usual affidavit. 20
By the Court—Well, could we not go on ?
Mr. Macdonald—That is, I understand, your lordship then does not care to
pass upon that at present ?
By the Court—If you give me authority I will receive it and we can strike
that out you know. I will leave it open for you to show, as you say you are
taken by surprise in the matter.
Mr. Macdonald—I wish to take the ground that there is no lease upon
which the PI aintiff can succeed. A lease from the Crown can only arise in two
ways, that is by letters patent or seal—the great seal of Canada as it would
be in this case, or under the authority of an Act of Parliament or by Order-in- 30
Council. Now the only order produced here is an order that was passed and the
word "approved" means passed, on the 16th of February.
By the Court—Pardon me for interrupting you, you of course are
applying for a dismissal on the evidence. Now I will not undertake to determine
the matter at this juncture, and I think reserving to yourself the right to reply,
it would be well for us to dispose of the evidence you may hava here, and then
we can canvass the whole matter at the conclusion of your evidence.
Mr. Macdonald—Would that cover any other points that I have got ?
By the Court—Yes, because it would really save that much time and
obviate the necessity of arguing the matter twice; so if you would go on with 40
your defence you could deal with that later on. 21
CASE FOB THE DEFENCE.
Mr. Macdonald—I put in as the first exhibit on behalf of the defence—
By the Court—Again, Mr. Macdonald, if you will pardon me, have you a
number of witnesses ?
Mr. Macdonald—Yes.
By the Court—Well, if it would suit your plan of defence to call those
witnesses it might be better to do so, and then after that put in your documentary evidence.
10 Mr. Macdonald—I will try to do that as much as I can. This is a copy of
the Order-in-Council, approved on the 8th of June, 1887.
(Marked Exhibit 4—1).
That is set out in the pleadings. I put in the letter enclosing that Order-in-
Council dated the 12th of July, 1887, commission number 16. My lord, there
were about between 50 and 60 exhibits on the commission, and I suggest so there
will be no conflict about numbers, we will adopt the numbers before the commission. They begin 1, 2, 3, etc.
Mr. Davis—The only objection to that will be, in addition to those, these
are out of order now, but apart from that there was a tremendous number of
20 documents put in at Ottawa. We had not the chance to see those documents
there, and for fear that something might be left out everything was put in. Now
I do not feel it is right to have those go into the record, because nine-tenths of
thera have absolutely nothing in the world to do with it, and it is not fair to the
Court. This is a case which I suppose it is safe to say may go some distance on
appeal, and at any rate there is no object in cumbering the record.
Mr. Macdonald—As to the numbering, I think perhaps we bad better put
our own numbers.
Mr. Davis—I would suggest that the commission number be also mentioned
at the same time.
30 Mr. Macdonald—Letter dated 27th of July, 1887, from Mayor of Vancouver
to Col. Panet (6-17); letter 9th of March, 1888, from the City Clerk to the
Minister of Militia (7-19).
Mr. Davis—This exhibit T want to object to. I suppose there is no object
in arguing it now.
Mr. Macdonald—Letter from Deputy Minister of Militia, 21st of March,
1888 (8—20) to the City CI rk.
Objected to.
Mr. Macdonald—Letter from Mayor and City Clerk, dated 9th of January,
1889 (9-22) to the Miuister of Militia. '
40 Objected to.
Letter from Deputy Minister to Mayor, 26th of January, 1889 (10-23.)
Objected to.
At this stage, upon the suggestion of the Court, it was decided to call
certain witnesses.
Mr. Macdonald—I put in Exhibit 7 of Commission (11-7), Order-in-Council,
$5t>h February, 1880. Then the Despatch 8 on Commission with Schedule,
RECORD
In tbe
Supreme
Court of
British
Columbia
Defendants'
Evidence jt
4
'A
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
continued
*stc
a
22
27th March, 1884, that contains some exhibits—some letters of Ralph Thompson
and G. Tyron (12-8). I draw my learned friend's attention to the fact that I am
putting in, further over in the return 68a. I put in Exhibit 12 on the Commission, letter from A. W. Ross, 24th of March, 1886, to the Minister of Militia,
Mr. Adolphe Caron (13-12).
Objected to.
Mr. Davis—I ask if the letter goes in the * go in.
Mr. Macdonald—You will find on the Commission evidence the map could
not be produced from the department. There was a great scarcity of maps.
By the Court—It was not that there was any objection to the materiality 10
of it at all but there was none available ?
(Marked 14).
Mr. Macdonald—It is not there, that is all. They cannot find it anyway.
(Exhibit 14-14. Telegram, 20th of April, 1886, from Caron to Crutch.
Also as the same Exhibit, letter Crutch to Caron, dated 6th of May,
1886).
Both objected to.
#/
No. 14
E. B. Maokay
Examination
10th Dec.
1909
No. 14.
E. B. MACK AY, Called and Sworn :— 20
(Examined by Mr. Macdonald).
Q. What is your name ? A. Eric B. Mackay.
Q. What position do you hold in the Department of Lands ? A. Surveyor-
General of the Province.
Q. And you have held that position for how many years ? A. Four or
five years.
Q. And as such Surveyor-General you have the custody of what documents ?
A. Plans, field notes, and all the documents connected with the Lands Department of the Province.
Q. You have been subpoenaed to produce such maps and field notes and 30
other documents as relate to what is commonly known as Deadman's Island ?
A. Yes.
Q. Have you those with you ? A. Yes, sir.
Q. Have you got, first, what was called in the previous action of the
Attorney-General of British Columbia versus the Attorney-General of the
Dominion, a plan of reserves ? A. Yes.
By the Court:—Is that a list of what you have ? A. Yes.
Q. Have you submitted a copy of that to Mr. Davis.
Mr. Macdonald—Well, I know the ones I want. Exhibit marked No. 4.
It was never marked by the Court; it was marked in pencil by one of the 40
gentlemen connected with the case. It is a plan of reserve in Burrard Inlet.
Q. This plan of reserves, will you produce that to the Court ? 23
Mr. Davis—Can we not shorten this ? My learned friend says he had this
book of plans that was produced in the Deadman's Island case, and I consent
that any exhibits in the Deadman's Island case should be used just the same here
as if they were in.
Mr. Macdonald—I think we have got a number of plans in this book
which I see no necessity for going into in this action.
Mr. Davis—If my learned friend will just state which of those he wishes to
use, he can give them to the stenographer.
Mr. Macdonald—I won't put them in; but I thought it would be right to
10 the Court these should be produced.
The Court—I give you credit for that. You can produce the originals and
put in copies which Mr. Davis is not disputing.
Mr. Macdonald—I am putting in now Exhibit 15, Exhibit 4 in. the
previous trial.
j Mr. Davis—I would suggest that it go, although nothing is filed at present,
as the next exhibit, the stenographer taking a note at the same time that it is
exhibit number so-and-so in the Deadman's Island book of maps, and then, if
necessary, later on, my learned friend can have copies of these exhibits made and
filed.
20 Mr. Macdonald—This is called 10 T. 1 L.R., being Exhibit 4 in the
previous Deadman's Island case. Marked Exhibit 15, copied from volume of
map used in Attorney-General of B.C. versus Attorney-General of Canada, to be
inserted in lieu of the original.
Field notes of Geo. Turner, marked Exhibit 16.
• (Was also Exhibit 16 in the Deadman's Island case.)
Witness—It is Field Book 4 of the Royal Engineers, marked Exhibit A.
Mr. Macdonald (to Witness)—These Field Notes of Stanley Park so-called,
came into your possession in your office in the ordinary way ? A. Yes.
Q. As you say, they were produced and used on the previous case ? They
30 are the same Field Notes ? A. Yes.
Q. And after the action had terminated, they came back in the ordinary
course to your office ? A. Came back, yes.
Q. Will you look up Exhibit 31d? Do you know it by that? It is a
tracing of a map or a portion of New Westminster District, 1879. (Exhibit 17).
A. No, sir; I have not got that exhibit. The original map is on file thereto.
It is marked 16,799. I have the original map this was traced from.
Mr. Macdonald—Mr. Mackay may be all right. I' notice in the printing
at the edge it says substituted- for 3ID. (To Witness)—Did you make the
tracing ? A. I did.
40 Q. Will the original help us any more than that; throw any light on it ?
A. I don't think so, except the original was marked as Exhibit 10, I think.
Q. Look at this *casing. Who made that ? A. I made it, sir.
By the Court?—What is that tracing ? I have as Exhibit 13, 31 Deadman's
Island. That is not that document is it ?
Mr. Macdonald—It will come out that way eventually, I think, in the end.
(To Witness)—What does that purport to be on the left hand upper side ? A,
RECORD
In the
Supreme
Court of
British
Columbia I
Defendants'
Evidence
No. 14
E B. Mackay
Examination
10th Dec.
1909
continued
*sic ? tracing 1
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 14
E B. Mackay
Examination
10th Dec
1909
continued
24
Tracing of a portion of the map of a portion of New Westminster District in '77,
filed in the Lands and Works Department, Victoria, signed W. S. Gore, Deputy-
Commissioner of Lands and Works, 9th of June, 1899.
Q. Where was that tracing taken from ? A. From that map just as before
you.
Q. By whom ? A. By nryself.
Q. And this large roll map, (Joes it contain the same material as in the one
you have in your hand ? A. In part; it is only a portion of that map. This is
Richard Roll Map, New Westminster District, Exhibit 10 ; that is what it was
called in the other trial. 10
pi By the Court—And accepted as authentic and correct ? A. Yes, sir.
Mr. Macdonald—Without putting in this large roll map, so that we can
get it down on the notes, can you say this roll map purports to have been made
in 1877 ? A. Yes.
Q. The roll map from which you made this tracing must have been made up
in 1877 or prior thereto ? A. It has been compiled from other maps; it has
always been known as Richards 1877 map of the Department, of which this is a
correct copy.
Q. Dealing particularly with the locality in question in this action, have
you correctly taken the initial (?) from the peninsula lying to the west of the 20
city ? A. Yes ; it is a copy of that.
By the Court—That is on this tracing ?
Mr. Macdonald—Yes. What number do we give this, in ours ?
By the Court—17.
Mr. Macdonald—That takes the place and served all the purposes of the
roll map ? That is the understanding !
Mr. Davis—If you are
joing
one
to use all these, why make an exception of
A. Those
Mr. Macdonald (to Witness)—These are photographed copies ?
are photographed copies ; they are perfectly accurate. 30
Mr. Macdonald—I ask you to produce what is known as Capt. Richard
Admiralty Chart of Burrard Inlet 1859, and revised in 1886, marked X on the
edge of it.
(Marked Exhibit 18.)
Witness stands aside.
(Court adjourned at 1 o'clock to 2.15 p.m.)
After Adjournment.
E. B. MACKAY, Sworn :—
(Examined by Mr. Macdonald.) 40
Q. Mr. Mackay, you produce a return made to the Legislative Assembly of
the Province in 1873 ? A. Yes.
Q. Exhibit 29 in the Deadman's Island case. (Now marked Exhibit 19). 25
Q. At the time that these lands were surrendered by the Imperial Government to the Dominion Government there was a schedule attached to the
surrender, and that was supplemented by a return to the Local House of
reserves. I call one the schedule and the other the return. Will you just read
the headings there? A. "Government Reserves — Location—■ South First
Narrows Burrard ; Purpose of Reserve—Military Acreage—950 ; Established—
(nothing) ; Remark—Burrard Inlet." That is under the general heading of
Government Reserves.
Q. Will you turn to Government Reserves for Navigation ?
10 Q. " Government Reserves available for Navigation or Military Purposes.
Location—South of First Narrows, Burrard Inlet." | Purpose of reserve—
defensive, 950 acres ; Remarks—| Commanding entrance to Burrard Inlet."
Now, as Surveyor-General of the Province, what is the practice where an
island at a certain stage of the tide is found adjoining a large area of land ?
Mr. Davis—I object.
Mr. Macdonald—I am asking what is the practice as to surveying ?
Mr. Davis—I object to that; I don't see how that can have anything to do
with the question of whether or not this particular Island is included; that will
depend on Turner's survey, and what Turner did will appear from the notes and
20 from Turner's evidence.
Mr. Macdonald—I want to show by the Surveyor-General that, where
upon the foreshore of a large piece of land is found a piece of land which at
certain stages of the tide is dry, it is the intention to include that with the mainland,
with the object of showing that it was so regarded and formed part of the mainland.
Mr. Davis—I object to this. My learned friend wants to show that it was
the intention of the Provincial Government that this Island should form part of
the mainland adjoining it, and he wants to show that Turner's survey show as
part of it, and that it was surveyed in accordance with the practice of the
Provincial Government.
30 Mr. Macdonald—My learned friend is mistaken ; George Turner, who
made the survey, was not in the employ of the Local Government at all.
By the Court—I expected that you would call Mr. Turner first, and then
we would find out.
Mr. Davis—I had forgotten that Turner was not in the Provincial
Government Service, and since that appears to be the case, and the survey in
question was not made for the Provincial Government, what can the practice of the
Provincial Government have to do with it ?
By the Court—Have you got through with Mr. Mackay as far as Exhibit 1
is concerned ?
40 Mr. Macdonald—I was going to put the field notes in his hands.
Mr. Macdonald—Now having reference to the Government Returns you
have just read and the field notes that you produced, upon what exhibit can you
point out the reserve that is referred to there ? A. Exhibit 4.
Mr. Davis—As a matter of fact, it is shown in them all. A. Shown in the
three surveys-Richard's map, Snyder's map, exhibit 4, Index map; the Island and
the Peninsula ; both marked Government reserve on those maps.
Mr. Macdonald—I will let Mr. Mackay stand down, and call Mr. Turner.
RECORD
In the
Supreme
Court of
British
Columbia
Delendants'
Evidence
No. 14
E. B. Mackay
Examination
10th Dec.
1909
continued
376529 •
I
w
I
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 15
G. Turner
Examination
10th Dec.
1909
26
i i No> i5, ^
GEORGE TURNER, Sworn jj
(Examined by Mr. Macdonald).
Q. You were the first witness called by the Dominion Government in the
Deadman's Island case ? A. I was not called until before the Supreme Court in
the first appeal; my evidence was not allowed to be entered in the first hearing
of that case. ■
Q. Your evidence was stopped, but you were examined ? A. Well, I was on
the stand; I don't remember how long. I knew my evidence was stopped.
Q. You did not finish the evidence you were supposed to be brought there in
to give ? A. No.
Q. Your evidence was taken before the Appeal Court anew ? A. Yes,
Q. If we refer to your evidence given before the Appeal Court, it covers all your
evidence ? A, Yes, my evidence from the first; I think I gave my evidence at
the Supreme Court Appeal; of course there were probably some questions asked
at the Trial Court.
Q. You appeared to have been called as a witness on the 8th of January,
1910? A. That was the last time I appeared before the Court of Appeal, I
think; but I don't remember the date.
Q. You are employed in what capacity ? A. I am employed by the 20
Dominion Government at the present time at Westminster, in the Public Works
Department.
Q. And in 1863 ? A. I was in the Army—Royal Engineers.
Q. What was your position ? A. I was Lance Corporal at that time.
Q. Who was your Commanding-Officer ? A. Captain Parsons ; he was one
I had to deal with, with the exception of Col. Moody, who was at the head.
Q, What official capacity had Moody ? A. Chief Commissioner of Lands and
Works or what is the same now as that.
Q. As Corporal in the Royal Engineers, in the course of your duties, did you
do any surveying ? A. That is what my duty was; I was brought from the 30
other service for that purpose.
Q. I have in my hands produced from the Department of Lands and Works,
Victoria, what is apparently the original memorandum by Col. Moody to Capt.
Parsons. Do you recognize that ? A. Yes, that is Col. Moody's signature as
far as I can remember.
Q. This is a portion attached to Exhibit 116." I see attached to this
memorandum for Capt. Parsons the notation " copy handed to Corporal Turner."
Did you receive a copy at that time ? A. I expect so. I can't say now.
Q. In pursuance of this authority what did you do ? A. I proceeded to
Burrard Inlet from New Westminster and made the survey I was instructed to 40
make.
Q. Are those your field notes of that surveying ? A. Yes, these are the
field notes.
Q. In whose handwriting, in respect to this particular locality ?
in mine.
A. I
guess 27
main British
Columbia
Q. Now having reference to the particular locality in and around RE^
what is now called Deadman's Island, will you state what you did as appears in the
from these notes ? A. In making my main traverse to the head of False Creek, court™6
in passing Deadman's Island; I connected Deadman's Island with my
traverse.
Q. Why ? A. Because it was a parcel of land that would need to be Defendants'
surveyed and shown on the map ; it was a parcel of land that was there and had _
to be.shown ; I could not ignore it. r,1l0-15
o . Gr, Turner
Q. Have you got the line that shows the connection there, showing the Examination
10 traverse? A. The notes here—that is it. jS^
Q. How far is it shown there ? continued
By the Court—Is that book paged ? A. Yes; page 19.
By the Court—Showing Deadman's Island? A. Yes; page 19.
Mr. Macdonald—I want to show the distance you took for your off-set ?
A. The distance from ?
Q. From your traverse line south-west ? A. High watermark; the distance
between high watermark and high watermark; when I made the survey the
tide would be out, and the consequence was while I passed Deadman's Island I
would be 90 links away from high watermark or 60 feet from high watermark ;
20 the distance would be from high watermark to high watermark about seven
chains, about 400 odd feet.
Q. How many feet ? A. Nearly four hundred.
Q. At what stage of the tide did you make that survey ? A. Low tide ; at
a low stage of the tide.
Q. Spring tide ?
not a half
A. It would be what we call our low tide ;
tide ; It would be the low tide.
Q. Was any name given to the piece of ground you have called the island at
that time ? A. No name at that time.
Q. Do your field notec- show whether you, chained across from this piece of
30 land to the shore ob not ? A. I should imagine I did ; it doesn't mention any
other way, and if I had taken the angles it might have shown.
Q. You could have taken it by triangulation, but it does not appear to have
been taken that way ? That is right ? A. Yes, that is right ? I should imagine
I chained across from my main traverse to the Island on foot; there might have
been.a little sag. but evidently I got it chained some way ; I could not swear
that I walked straight across.
Q. You say you chained across ? A. Yes, I probably walked across, but I
could not say for certain.
Q.. After you made that survey what became of your field notes ? A.
40 Were handed into the Surveyor's office in New Westminster.
Q. Is the date shown there—the actual date that you made that survey ?
A. Yes, 17th March, 1863, is the date shown here; it might not have been all
done at the time.
Q. You say you turned the field notes into the office at New Westminster ?
A. The Surveyor's office at that time.
Q. At New Westminster ? A. Yes, similar to what is now under the
Provincial Government. ' Y^-'Jd
1
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 15
G. Turner
Examination
10th Deo.
1909
continued
28
By the Court—What at New Westminster ? A. That was^ headquarters.
Q. It was the capital, was it, at that time? A. Yes, headquarters for
British Columbia at that time; was the office of the Department of Public
Works.
Q. How did these field notes get over to Victoria ? A. I don't know anything at all about that; when the capital was removed, I should imagine.
Q. Which would be how many years after this time ? A.I think five years.
Q. I suppose you didn't take a hand in moving them to the capital at all ?
A. No.
Mr. Macdonald—How long did you remain in the service ? A. We were 10
disbanded that year ; I followed surveying after that, my own private work.
Q. This piece of land on Burrard Inlet—there was no name given to the
land itself ? A. No name given to any land there.
Q. What were you surveying it for at the time ? What was the land to be
for?
Mr. Davis objects.
By the Court—I suppose he was surveying pursuant to those instructions.
If he had instructions outside of what we have there ? A. There is exactly the
instructions given there.
By the Court—You were limited in those instructions ? A. Limited to 20
those instructions. I got some verbal instructions, afterwards which I think are
not mentioned there in reference to the Brighouse property in the same locality.
Mr. Macdonald—Do you mean that you had any verbal instructions in
respect to that area known as Stanley Park and Deadman's Island ? A. No,
only as to three other lots for other parties.
Q. That has nothing to do with this ? A. No.
By the Court—Those instructions covered your survey ? A. Yes.
Q. And that is what you surveyed ? A. Yes.
Q. That included the piece of land in question, which is now known as
Deadman's Island ? A. I suppose so; I don't know. 30
Mr. Davis—Let the surveys speak for themselves.
Mr. Macdonald—In making the survey of what is now termed Stanley
Park, what became of the piece of land in question—
Mr. Davis—I object to the term Stanley Park unless my learned friend
gives an exact definition of the term.
Mr. Macdonald—I will say that peninsula lying west of Lot 185, In making
the survey of that peninsula what became of the piece of ground now called
Deadman's Island ? A. I made a survey of it; it is in these notes.
Q. Did you include it or exclude it ?
Mr. Davis objects ; The notes will speak for themselves. All he did was to 40
survey ; he didn't include it or exclude it.
By the Court—He has already stated that he connected what is now called
Deadman's Island with the main traverse, because it was necessary to show
everything above water in that vicinity, and the survey shows that he did.
Mr. Macdonald—At low tide could you walk across from that piece of land
known as Deadman's Island to the peninsula ? 29
Mr. Davis objects.
By the Court—He has already covered that, because he says he must have
chained across from the island to the mainland, but was not quite sure—he might
have thrown the chain across a certain little channel. He said he must have
chained across on foot, but he is not certain.
Mr. Macdonald—These survey lines that you find on page 19 that you find
around this piece of ground called | Island Reserve," what do they denote ? A.
Survey lines in making the survey.
Q. From where to where ? A. For that line, 250 from that point and 300
1 0 —there is the total length of that line ; this is the usual surveyor's memorandum ;
they were kept in different form at that time to what they are at the present
time. I do work like that at the present time.
Q. | Island Reserve " is in your handwriting ? A. I think so.
Q. Don't you know it ? A. Yes, the whole thing is in my handwriting.
Q. You don't feel any doubt about it ? A. No.
Q. Where do you find in this book the reserve also upon the mainland ? A.
There it is there.
Mr. Davis—He points to what? A. What is called Stanley Park.
Mr. Davis—What direction is Deadman's Island ? A. Deadman's Island is
20 south.
Q. What direction is this from Deadman's Island ? A. There is nothing
there to indicate at all; at right angles from the shore line, I should imagine
about south-east.
Q. On this page, where the words | Traverse of Coal Harbour " are written,
that is the part you refer to as this order reserve ? A. Yes, I have not seen this
since the survey.
Mr. Macdonald—You see those words "Island Reserve"—when did you
put that on these field notes ? A. At the time the field notes were made, at the
time of the survey.
30 Q. When you were on the ground ? A. Yes.
Q. What induced you to put the statement down that it was a military
reserve ?
Mr. Davis objects. As to why he recorded that I submit that cannot be
evidence. Supposing he gave a certain answer that he did it because he wanted
to. show a certain reason, my learned friend would be attempting to prove
from him that it was the reason without his really knowing anything about it.
By the Court—It might be in consequence of some personal knowledge he
put it there, or according to his instructions.
40 Mr. Macdonald—That is evidence that I offer—
By the Court—If you get an answer would it be of any use to you ?
Mr. Macdonald—Your lordship rules against me ?
By the Court—Yes.
Mr. Macdonald—Will you take your field notes again ? Referring now to
your previous examination at page 323.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 15
G. Turner
Examination
10th Dec.
1909
continued 30
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 15
G. Turner
Examination
10th Dec.
1909
continued
Q. Your actual instructions would be verbal as to the survey ? Is that
correct ? A. I can't say.
Q. Look at'page 10'; what part of the coast does that show ? A. It shows
I think what is known as the Brighouse property.
By the Court—With which this has nothing to do ? A. If I had the
plan.
By the Court—This was 46 years ago ? A. Yes; I would require the
plan besides to identify everything in the field notes.
Mr. Macdonald—1 That shows the south side of Burrard Inlet," is that
correct ? A. It must show the south side of Burrard Inlet. ] q
Q. Is it near what is commonly called Stanley Park ?
Mr. Davis—Better keep to the word " peninsula."
Mr. Macdonald—Is it near the peninsula the way we understand it ? A.
This is up towards Hastings, I think.
By the Court—On page 10 of your book? A. I think so. I can't speak
from memory. Yes, I think this is alongside of Hastings—on page 10.
Q. Look at the top of the page, what is the entry ? A. % Survey of coast
lying from the town reserve to the military reserve."
Q. What direction were you surveying in at the time ? A. Surveying down
the inlet from Hastings in a westerly direction. 20
Q. To where ? A. Down to what is known as Stanley Park, around the
Narrows and continued right to False Creek.
Q. You see at the top | To military reserve i ? A. " To military reserve,"
A.
Cross-
examination
yes.
Q. Page 21—What is page 21 supposed to contain, taken as a whole ?
It is a survey of the coast line through the first narrows.
Q. Survey for military reserve ? A. It is marked 1 military reserve " on
the coast line ; it is a survey of the coast line of what is then known as military
reserve, passing through the narrows or along the foreshore.
Q. You put the woids there yourself, " military reserve." A. Yes, it was 30
known as military reserve at that time.
Q. In making this survey from the edge of the military reserve to the first
narrows you included the land—
Mr. Davis objects
Q. In making the survey of the coast line from the edge of the military
reserve to the first narrows what did you include ? A. I took the coast line that
was marked " military reserve," that is all I know about it. Deadman's Island
was detached, and whether it should be included or not I could not say.
Q. You included it anyway ? A. I included it; it shows that.
Cross-examined by Mr. Davis- -
Q. A survey of the coast line would include all islands adjacent to the
coast ? A. It depends altogether on the nature of the survey ; if a survey of the
mainland it would take everything in connection with it.
Q. Speaking of a survey of the coast line, a Government survey of the
coast line, it would include all islands adjacent to the coast ? A. Yes.
40 81
Q. And this Deadman's Island that you included in the survey of the coast
line would have been included even if a quarter of a mile away, or sixty feet
away ? A. Yes.
By the Court—As he puts it himself, he could not ignore it.
Mr. Davis—When was it you were there according to the notes ? A.
March, 1863.
Q. How many days ? A.I was three months on the Inlet altogether.
Q. How long would you be at that particular spot, Deadman's Island ? A.
May be two or three days.
0 Q. You don't recollect just now ? A. No ; depends on the tides.
Q. It might be one day, or two or three days ? A. Yes; about that time.
Q. That was the only occasion that you had any survey work to do at that
particular point ? A. Yes; that is the only time.
Q. You had no occasion to make any careful examination of that particular
spot since then, had you ? A. No.
Q. You don't pretend to remember at this late date whether the tide ever
got so low that there was no water between the island and the mainland or not,
You don't pretend now to remember distinctly as to just what the
RECORD
In the
Supreme
Court of
British
Golumbia
Defendants'
Evidence
No. 15
G. Turner
Cross-
examination
10th Dec.
1909
continued
do you
condition of the water was, whether or not there was water between the island
20 and the mainland ? A. No.
Q. Anything you said in that connection is based upon the condition of
your notes ? A. Yes.
• Q. You would not pretend to contradict anyone who said there was always
some water left at low tide between the island and the mainland ? A. No.
Re-examined by Mr. Macdonald—
Q. Did I understand you to say that if in surveying the coast line of a Re- ,
military reserve you had found an island out from the foreshore you would have
30 embraced that in the survey of that military reserve ? A. Yes.
Q. Why ? A. Because to make a proper survey of land that was right
there.
Q. What land ? A. The land that comprises Deadman's Island—we had to
show what land there was.
Q. Do I understand you to say that if you found an island away out some
distance from the shore you would have taken that in the survey you were
making at that time ? A. Yes ; I was making a general survey, and would have
to show all there was to be shown—any land adjoining the mainland.
Q. Would you mark it " Island Reserve?" A. "Island Reserve" would be
40 an altogether different thing; whether I should have done an "Island Reserve"
I would not say. y
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 16
E. B. Mackay
Re-called
examination
10th Dec.
1909
continued
32
it r 'i;Na ia '
ERIC B. MACKAY (Recalled) :
-j'
(Examination continued by Mr. Macdonald).
Q. You have heard the evidence given by Mr. Turner as to the survey of
that military reserve. On reading his instructions and his field notes, what do
you say, as a surveyor, as to that land he took there being included with the
mainland or not ?
Mr. Davis objects.
A. As to it forming part of the mainland, I could only say this that the
practice of the Provincial Department of Lands was that if an island is connected 10
with the mainland it is to be surveyed; that is, if you were surveying a piece of
land with an island adjacent to it, you must furnish the department with a
survey of the land.
Q. Taking the relative distance there and the fact of the survey being
connected, what do you say as to its forming a portion of the mainland ?
Mr. Davis objects.
A. That would depend on the nature of his survey, whether for military
purposes or navigation purposes, and again on the contour of the coast.
Q. That survey Mr. Turner made. Is there any other Island Reserve
recognised by the Department except the Military Reserve of 950 acres in which 20
that would be included ? A. Not that I am aware of.
Mr. Davis.—The language used was a survey of the coast line, and the
coast line, as I understand it, includes the land adjacent to the mainland and
also any adjacent islands ? A. Any adjacent islands that would be connected at
low tide, or partly connected.
Q. It would include an absolute island ? A. Yes.
Q. Whether connected or not ? A. Yes.
Q. The practice you are speaking of, by the Department in connection with
land, that is only Crown granted land given by the Government to private
individuals ? A. Yes. 30
No. 17
R. G. Tatlow
ShD?cati°n ROBERT G. TATLOW, Sworn |
1909
No. 17.
(Examined by Mr. Macdonald).
Q. You have been, until recently, Finance Minister of this Province ? A.
Yes.
Q. You were at one time a member of the Board of Park Commissioners ?
A. Yes.
Q. When ? A. I was a member for about fifteen years, from about 1888 to
1903, or thereabouts. 40
Q. Do you remember the time that the Order in Council was passed with
respect to Stanley Park ? A. I remember there was one, but cannot remember
the time. 33
A. Lord Stanley. Yes, I
RECORD
In the
Supreme
Court of
Mr. McGuigan, the British
Columbia
bridge ?
Q. Do you know who opened the park ?
remember when he opened it.
Q. Who kept the minutes of the Park Board ?
Mr. Davis—What year was that ? A. 1888, I think.
City Clerk, also kept the minutes of our Board.
Q. Do you remember the meeting of October 20th, 1888, when you were defendants'
present, at which a certain matter came up with respect to what came to be
called Deadman's Island ? A. The only matters referring to the island that I **°fr1L-
remember coming up in that was, was the building of a bridge to the island and Examination
10 a trail across the island. - ^ Dec-
Q. That matter came up at one of the meetings; in 1888 who vvere the continued
other Commissioners ? A. They changed every year ; I hardly remember.
Q. Was A. G. Ferguson ? A. He was for a time a member of the Board.
Q. Is he alive or dead ? A. He is dead.
Q. And R. H. Alexander ? A. He was one of the members.
Q. Do you remember this resolution being passed at a meeting of the
Board ?
Mr. Davis—Is that the one you showed me ?
Mr. Macdonald—Yes.
20 A. I remember the spirit of the resolution being arrived at.
Q. In pursuance of this meeting, was anything done as to building the
A. The bridge was built.
Q, Do you know how many years after ? A. The bridge was built about
1891 or 1892, I should say ; I know it was some time after.
Q. You said something about the cutting of a trail across the island; do
you know anything of that personally ? A. Yes; I think I was Chairman
of the Board that year ; that was the last time I was Chairman, and, in
conjunction with the Park Ranger, I laid out not only all the trails in the park,
but I remember laying out a trail across Deadman's Island from water to water.
30 Q. As one of the Park Board, why did you lay out that trail.
Mr. Davis objects. If this is to show that he did it because he was a Park
Commissioner, I think that is a fair inference, and I am willing to admit
it.
By the Court—You might ask him in what capacity the trails were made
by them.
Mr. Macdonald—How did you come to do that work or see that work
being done ? Why did you see to that work being doing on that island ? A. It
was part of the scheme of opening up the park generally ; we were making trails
on various portions of the park and across the island; one reason was that
40 Brocton Park Athletic Grounds was being opened up.
Q. It was part of your general scheme, you say—whose general scheme ?
A. The Park Commissioners.
Q. You think you were Chairman at that time ? A. I think so.
Q. Do you remember a conflict arising between you and the city on account
of some small pox patients being placed on the Island ? A. I remember some of
the details in connection with that, 34
r/i
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 17
R. G. Tatlow
Examination
10th Dec.
1909
continued
A. It was at
A. I think it
Q. During the time you were connected with the Park Board did the
Dominion Government meet you at all on the question of your use of that ground ?
Mr. Davis—What ground ?
Mr. Macdonald—The ground in question in the present action ? A. Yes.
Q. On what point ? A. The Dominion Government asked for reservations.
Mr. Davis—There is correspondence, I suppose ? A. Colonel Anderson, I
think, came out and arranged about that, speaking from memory.
Mr. Davis—Was it you arranged with Colonel Anderson ?
the arrangement with one of the officials.
Q. Are you sure it was personally with Colonel Anderson ?
was a member of the Marine and Fisheries Department.
Mr. Macdonald—Why did you improve the Island in the way which has
been spoken of?
Mr. Davis—I object to the question of motive ; motive cannot be evidence.
By the Court—It seems to me the whole thing is covered by the capacity
in which these improvements are made.
Mr. Macdonald—Whatever work was done, was it done as part of the
Board's works ? In what capacity did you improve the property ? A. As Park
Commissioners.
Q. At that time were the Park Commissioners elected by the people ? A.
Yes.
Q. At that time what did you have under your control as Park Commissioners ? A. Stanley Park and some other parts to the east.
Q. As Park Commissioners what property did you take under your control ?
Mr. Davis—I will admit that the Park Commissioners made a claim to
Deadman's Island as part of the park.
Mr.. Macdonald—For years ?
Mr. Davis—At the time they built the bridge, and, I presume, ever since;
they laid claim to it.
10
20
Cross-
examination
10th Dec.
1909
Cross-Examined by Mr, Davis—
30
Q. This bridge to the island was a foot bridge ? A. Yes.
Q. Comparatively inexpensive, was it not ? A. Cost about $400.
Q. It was allowed to get in disrepair and fall down years ago ? A. Yes, it
was not repaired.
Q. And it fell down ? A. Yes.
Q. There is no trace of it there now ? A. I have not been there for some
time; it became useless.
Q. It disappeared altogether, did it not; the last time you were there, there
was no sign of it ? A. I think it practically disappeared.
Q And no other means of communication between the mainland and Dead-
man's Island has been constructed either by the City or Park Commissioners or
anybody else ? A. Not that I know of.
Q. This trail that you speak of, do you remember what it cost ? A. Cost
about $400. Very much the same price as the bridge. 35
10
Q. And that has not been kept up since the bridge disappeared, the trail has
not ? A. I have not been there for some years.
Q. As far as your knowledge goes ? A. It was kept up as long as the bridge
was utilized.
Q. As long as the bridge was there, but since then it has not been kept up ?
A. Would hardly be any necessity to keep it up, the trail was well made at the
start, and it did not overgrow.
Q. Have you ever been there since the bridge fell ? A. Yes, but not since
1903.
Q. There has been nothing done on the trail by the Park Commissioners or
the City since the bridge fell down ? A. Not that I know of.
Q. As far as your knowledge goes ? A. I have no actual knowledge of
anything having been spent on it since.
To Mr. Macdonald—
Q. The bridge went down since the Ludgate lease was given ? A. I could
not say.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 17
R. G. Tatlow
Cross
Examination
10th Dec.
1909
continued
No. 18.
J. C. KEITH, Sworn
20 (Examined by Mr. Macdonald).
Q. You are an old resident of the city ? A. Yes.
Q. You have been here since what year ? A. I came here on the 2nd June,
1886.
Q. You were for some years manager of the Bank of British Columbia here ?
A. Yes, to 1892.
Q. Do you remember the occasion of the city receiving a lea.se of the park
property ? A. I remember the occasion.
Mr. Davis—I prefer you would not use the word | Lease."
Mr. Macdonald—Authority to take possession; it does not make any
30 difference. You don't want to admit it was a lease.
Q. Have you a knowledge of this property now in dispute between these
parties? A. Yes.
Q. Following on then from the time you knew that the city had received—
Mr. Davis—-Refer to the Order-in-Council.
Mr. Macdonald—From the time that the Order-in-Council was received
by the city up to the time of the Ludgate affair, how was that property used, as
far as your knowledge goes ? A. Used by the city.
Q. Personally, can you give any evidence of that ? Have you used it
yourself?
40 By the Court—Can you get the dates ?
Mr. Macdonald - From 1887 to 1899—what we call the Ludgate incident—
from 1887 when the Order-in-Council Was given up to 1899 when the Ludgate
affair arose, I want to know whether personally during that period you can recall
ways in which you personally used that property as a citizen ?
No. 18
J. C. Keith
Examination
10th Dec.
1909 36
HD
I
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 18
J. C. Keith
Examination
10th Dec.
1909
continued
Mr. Davis—What property ?
Mr. Macdonald—Deadman's Island. A. I knew the city used it and
claimed it for years.
By the Court—Ihat must have been hearsay.
Mr. Davis—Does Mr. Keith really go further than to say that the bridge
was built and the trail ?
Mr. Macdonald—Did you yourself personally use it ?
A. Yes, I walked across before the bridge was there.
Q. From where ? A. A number of people, like myself, were interested personally in Brocton Point Athletic Grounds, and one day at very low water 110
walked across to the island, and I was surprised afterwards when the city put a
bridge there.
Mr. Davis objects.
Q. You walked across from where to where ? A. From where the road is,
about where the bridge would have been built later on.
Q. You walked across ? A. There is a ridge there at low water, and in
those days it was dry.
Q. All the way across ? A. Well, I walked across from one side to the
other.
Q. You walked from the mainland to the island, if we call it such ? A. 20
Yes.
Q. After the bridge was built, did you ever utilise the bridge at all ? A.' I
can't say that I have; I remember that I have walked across ; I remember once
going with a small picnic party there.
Q. Since the City according to your idea abandoned the bridge have you
walked across from the mainland? A. Not that I am aware of.
ti
Cross-examined by Mr. Davis—
examination Q. On the occasion that you walked over to Deadman's Island I suppose
you can't say how much water there was between the mainland and the Island
A No. 30
No. 19
J. McQueen
Examination JAMES McQUEEN, SwORN '—
10th Dec. '
No. 19.
1909
(Examined by Mr. Macdonald).
Q. You were one of the aldermen of the city at the time that the question
about the Ludgate lease came up ? A. Yes.
Q. For how many years previous to that were you one of the aldermen ? A.
I think 1906 and 1907.
Q. You came to the city when ? A. In 1891. 37
Q. From 1891 up to the time of this Ludgate lease being mentioned, how REc°RD
was that island or property used by the city as far as you know ? A. Of course in the
I never was on the property; never was on it myself; it is only a matter of court oT
repute how it was used ; I knew the bridge was put there by the Park Com- British
missioners ; that is all I know about that part of it. ° um_ia
Q. I see that you were one of the delegation that went to Ottawa, and you Defendants'
submitted a manifesto to the Premier in connection with the matter ? A. Yes. _
Q. Did you have the making up of that ? A. Yes, with Mr. McLagen ; he x £°- 19
n -. J or & 'J. McQueen
IS dead nOW. Examination
10 Q. In connection with making out that statement of facts did you have any- igo9Dec'
thing to do with that ? A. I knew then, but cannot state at this time just continued
exactly.
Q. When did you first hear of any person else, other than the city, laying
claim to this island ?
Mr. Davis objects.
A. The first I heard—
Mr. Davis—When did you hear ? A. I can't give you the date ; it was at
a meeting of the Council; it was announced there.
Mr. Macdonald—About how long before you went to Ottawa in connection
20 with the matter ? A. About a couple of weeks or so.
By the Court—Would it be in consequence of that you went to Ottawa ?
A. Yes.
Q. Up to that time had you heard of any person claiming any right to the
island, other than the city ?
Mr. Davis objects.
By the Court—I assume you have evidence other than that which you are
now eliciting in regard to the position of the city ?
Mr. Macdonald—I am simply trying to show that there was no claim being
made to the property other than here in 1899.
30 Mr. Macdonald—Did you know of an application by Davis, Marshall and
Macneill on behalf of a client being submitted to the City Council?
Mr. Davis objects.
Mr. Macdonald—I will ask leave to recall Mr. McQueen on that point.
By the Court—Yes.
Mr. Macdonald—Do you remember the occasion when Lord Aberdeen was
here, about the park, a certain meeting of the City Council being held. A. I
remember Lord Aberdeen was out.
Mr. Davis objects. Anything the Council did will be shown by the minutes.
Mr. Macdonald—I will ask leave to call Mr. McQueen again.
40 By the Court—You are trying tc show some sort of occupation by reputa
tion.
Mr. Macdonald—I admit that.
By the Court— It seems to me as far as Mr. McQueen is concerned his
evidence can be better obtained from the archives at the City Hall.
Mr. Macdonald—The archives would not be a narrative of what was going
on during all these years with respect to a certain piece of property. 38
record Cross-examined by Mr. Davis-
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 19
J. McQueen
Cross-
examination
10th Dec.
1909
Reexamination
Q. My learned friend asked you about a delegation that went to Ottawa. I
think yourself and Mr. McLagan and Mr. Buscombe and Mr. Senkler went down
to Ottawa and laid the whole question before the Government, the question of
Dead man s Island ? A. Yes,
Q. And of course you put every fact that you thought would be in your
favour, in any way, shape or manner, before the Government in requesting them
to cancel the Ludgate lease ? A. To the best of my ability.
Q. You did the best you could to press it as strongly as you could ? A.
Yes.
Q. You put in a petition to the Government stating the facts as far as you
knew, so that they would cancel the lease to Ludgate of February 14th, 1899, and
which we have filed here ? A. Yes, that is what we wanted.
Q. But the Government did not accede to your application ? A. Do not
appear to have done so.
Re-examined by Mr. Macdonald—
10
Q. The Provincial Government shortly after intervened and claimed this
property as theirs ? A. Yes.
Q. And the matter was in dispute between the two Governments for some „_
years ? A. Yes.
Mr. Macdonald—With respect to the memorial petition, which my learned
friend has just referred to, I ask to have put in just as it stands. At page 28
(Exhibit 40 upon that action).
Marked Exhibit 20 now.
Mr. Davis—That exhibit I am content should go in, subject only to this,
that it is not to be used by my learned friend as being any evidence or proof of
the statements contained in the petition. If my learned friend will say that he
is not putting it in as proof of the statements contained in the petition.
Mr. Macdonald—Well, for example, the letter addressed by your firm,
instead of calling evidence—
*? Macdonald *Mr. Davis—As far as letters passing between the city and what we might
term the landlord (the Dominion Government), I ask it to be taken as proof of
the facts therein contained.
Mr. Davis—Yes, I will not object to that. Is there anything further ?
Mr. Macdonald—I ask that it should be taken as proof that the letter from
Lynwood Pereira to the City Clerk was duly received and that the reply thereto
of the City Clerk is a correct copy of the letter that was sent.
_ Mr. Davis—To facilitate matters I will admit those are correct; they bei
30
aug
subject to objection as to being relevant; and with this admission by my learned
friend that Lynwood Pereira who signs as Assistant Secretary was not in the
Department of Militia but in the Department of the Interior. '
Mr. Macdonald—I fancy that is the case.
By the Court—He was in the Department of Interior.
J 39
No. 20.
THOMAS F. McGUIGAN Sworn
(Examined by Mr. Macdonald).
Q. You were City Clerk of the City of Vancouver during what time ?
A. 1886 to 1905.
Q. And during what time did you also act as Secretary of the Board of Park
Commissioners ? A. During the whole of that period.
Q. Are the minutes of the Board of Park Commissioners in your handwriting ? A. Yes, except the first page.
10 Q. Dealing particularly with Deadman's Island (so called), do you find a
minute of the Board of Park Commissioners at the second meeting shown in the
minute book ? A. Yes, in my handwriting; October 20th, 1888, in the minute
book of the Park Commissioners, as follows :—| It was further resolved that gate
posts with a sign overhead, painted ' Stanley Park/ be erected at each entrance
. and that a plan for a foot bridge from Brocton Point to the Island be prepared."
Q. Then at the meeting of December 2Gth, 1889, what do you find in the
minutes ? A. " That the Council be requested to place a sufficient sum of the
estimates next year for the construction of a foot bridge to Deadman's Island,
opening up trails throughout the park and complete the lake."
20 Q. All those minutes are in your handwriting ; regular minutes in the
ordinary way ? A. Yes.
Q. In May, 1890, who were the members of the Board of Park Commissioners ? A. Mr. Tatlow, Mr. Castlo; he is dead.
Q. Was a resolution passed at that time also dealing with the question of
the island ? A. | That the City Engineer be instructed to make an estimate of
the cost of a light pontoon bridge for ferry boat landing and a ferry bridge to
connect the mainland."
Mr. Davis—I don't admit that this can be evidence against us. Can my
learned friend get further than the fact which is admitted, that the Park
30 Commissioners spent $400 on a foot-bridge ?
.Mr. Macdonald—I want to show that they dealt with that property.
Mr. Davis—There is no doubt they did to that extent.
Mr. Macdonald—Did you let the contract for the building of the bridge ?
A. It was duly advertised and constructed.
Q. On August 13th, 1890 ?-
Mr. Davis—I don't object; I admit all that.
A. " That a bridge and pontoon bridge be constructed, contractor to be paid
as per contract."
Q. There was a bridge between the island and the mainland, and a pontoon
40 bridge at Brocton Point ? A. Yes; for landing purposes.
Q. Do you remember the occasion of the question of the smallpox patients ?
A. Yes.
Q. Have you got your other minute book here—1892 ?
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 20
T. F.
McGuigan
Examination
10th Dec.
1909 r/
3
TR73
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 20
T. P.
McGuigan
Examination
10th Dec.
1909
continued
40
By 'the Court—Perhaps Mr. Davis will admit there were smallpox patients
there ?
Mr. Macdonald—If he will admit that during all these years we exercised
control.
Mr. Davis—I will admit that occasionally there was exercise of control over
it as Mr. Tatlow said—they built a bridge and made a trail.
By the Court—In regard to the City putting smallpox patients there ?
Mr. Davis—It might be ; I don't know. I submit this is not evidence at
all. I object to this resolution. I say that, of course, they claimed the island.
HH Macdonald—Is it admitted that we continuously and persistently laid 10
claim to this property from the time that the Order-in-Council was passed |
Mr. Davis—I don't say either continuously or persistently. I admit the
City claimed Deadman's Island.
Mr. Macdonald—From 1887?
Mr. Davis—And do so now.
By the Court—From 1887 to the present time?
Mr. Davis—Yes.
Mr. Macdonald—Now, as City Clerk, during the period you mentioned
you remember signing the memorial that was taken down with the delegation to
Ottawa, during the Ludgate lease incident ? A. That is the delegation Mr. 20
McQueen referred to ; I don't remember it myself; I know the delegation went,
forward; no doubt I signed it in my official capacity, but I don't remember it.
Q. Now there was a letter received from Lynwood Pereira to the City
Clerk with respect to this island ? A. Yes.
Q. And you as City Clerk replied to that letter ? A. That is the long
letter, yes ; that is my letter. I wrote that.
Mr. Davis—We admitted that correspondence.
Mr. Macdonald—Now, these statements that you signed as City Clerk, are
they correct 1 A. Yes.
Mr. Davis objects. 30
A. They were written under instructions from the Council.
Q. The statements of fact, are they correct ?
■Mr. Davis objects.
Mr. Macdonald—You say 1 that by Order in Council of 8th of June, 1887,
this property was granted to the City of Vancouver for use as a public park, and
that the City since then occupied the said property and spent considerable
money in improving the property." Is that statement correct ? A. Yes.
Q. ' That said property is now being used and enjoyed by the city as a
public park,"—is that statement correct ? A. Yes.
Q. " That it has always been considered by the City that the Order-in- 40
Council was sufficient ? "
Mr. Davis objects.
A. Those are quotations from the resolutions copied in the minute book;
that is what I based this letter on. ■
Mr. Macdonald—Then further down, you say that in the opinion of the
Council of the City it was considered desirable 41
Mr. Davis—This is evidence of a written document. Let the document be
produced. How can this witness speak of correspondence between the Government and the Council that took place 20 years ago ? They can only prove it by
production of the letter. I will admit the fact that a certain letter was sent,
but why the City sent it could not be evidence. They might have title or not;
how could it affect us ?
Mr. Macdonald—As City Clerk and Secretary of the Park Board Commissioners did you obtain any knowledge of this particular piece of property ?
A. Not except as a citizen.
10 Mr. Davis objects.
Q. Of your own actual knowledge, what do you know as to the island
question ? A.
Mr. Davis—In what respect.
Mr. Macdonald—As to the use of the property.
Mr. Davis—I object to that.
Mr. Macdonald—It is his own actual knowledge.
By the Court—As to use by whom ?
Mr. Macdonald—I don't care to lead him.
A. When the bridge was constructed it was used by picnic parties—the
20 island.
Q. How did you use the island ? A. For picnic purposes.
Q. Who used it ? A. Myself and other parties that I was with.
Q. You are speaking now of yourself ? A. Yes.
Q. You spoke of the bridge. Did you use the bridge ? A. Yes ; the footbridge.
Q. For what purpose ? A. For traffic purposes.
Q. Roughly speaking, would that be once, or twice, or a number of times ?
A. For several seasons.
Q. Now, dealing with the portion of the park, the mainland, was there any
30 difference in the use of it ? A. Well, after the mainland was fully developed we
always went through the mainland.
Q. Before the mainland was developed for park purposes, how did you
utilize that island ? A. We used to utilize it for land purposes for boats, direct
connection with the City, before the bridge was constructed.
Q. After the bridge was constructed, how did you use that property ? A.
Both ways.
Q. Coming from the mainland and coming from the water ? A. Yes, up to
the time that the bridge fell into decay.
Q. Can you fix that date ? A. I can't fix that date.
40 Q- When you speak of it being used for picnic parties, can you say anything
more on that subject, of your own knowledge ? A. I have seen other people
there, but can't give their names.
Q. You don't remember the people, but you know they were citizens using
the property ? A. Yes.
Q. From ] 887, when this Order-in Council was issued, up to 1899, when the
Ludgate lease cropped in, was there any interference by anyone in connection
RECORD
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Columbia
Defendants'
Evidence
No. 20
T. P.
McGuigan
Examination
10th Dec.
1909
continued
f\ 4
U
RECORD
In the
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Court of
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Columbia
Defendants'
Evidence
No. 20
T.F.
McGuigan
Examination
10th Dec.
1909
continued
42
with whatever possession you had of the island? A. I have no absolute
knowledge.
Q. No personal knowledge ? A. I know there was a lawsuit between the
Provincial Government and the Dominion Government as to who owned the
property.
Q. That was afterwards ? A. Yes ; I don't know anything before that.
Q. Can you say from recollection the bridge went down after the ligitation
started; was no longer used from the time of this litigation ? A. I am not pre
pared to say; I know it fell down.
Q. I suppose from memory you cannot tell when this litigation ceased ? A. 10
Has not ceased yet.
Q. Now there is a letter in here of 12th July, 1887, which is in already as
exhibit " 5 " page 15. Referring to the last paragraph, can you say whether
that refers to Colonel Holmes or not ? A.I cannot.
Q. You say you remember the receipt of this Order-in-Council covering this
property ? A. Yes.
Q. From your local knowledge at that time, taking the boundaries as you
find them there, what does that include ? A. Have to look up the city's
charter.
Mr. Davis—The boundaries given there speak for themselves. 20
Mr. Macdonald—How soon after the receipt of the first Order-in-Council
was the first Meeting of the Park Board which you attended ? A. September
28th, 1888, there was a meeting.
Q. But the first meeting of which you have any knowledge was October
26th ? A. Yes, when I was appointed Secretary ; the previous Minutes were in
the name of Mr. Huntley ; he has disappeared some twenty years ago.
Q. Do you know of your own knowledge after the Order-in-Council was
received what was done in respect to the park, after you became Secretary in
1888 ? A. Mr. A. G. Ferguson was Chairman an*d he started to take action for
the improvements of* the parks, and cut trails. 30
Q. Ferguson was Chairman ? A. Yes, and Tatlow, Caldwell, and R. H.
Alexander, were member.-.
Q. Some time after that the bridge we have spoken of was built ?
Q. Were you aware of the squatters on that island ?
A. Yes.
A. Yes.
Q. Did you take any steps to have them removed ?
Mr. Davis objects.
By the Court —Are you referring to himself or the city ?
Mr. Macdonald—The City.
Mr. Davis—I submit that has nothing at all to do with this action.
Mr. Macdonald—I want to show what the city did in that matter.
Q. As Secretary of the Park Board can you state as to the appointment of
Superintendent, did it come from the city or the Park Board ? A. I think the
City Council appointed the Park Board; I am not quite certain on that point; I
have an idea they did. Mr. Eldon will be able to answer that question.
(Adjourned at 5 p.m.)
40 43
Tuesday, December 14th, 1909, adjourned until the 15th.
Wednesday, December 15th, 1909, at 11 a.m Case continued.
Mr. Macdonald—I wish to put in letter of 19th April, 1886, of the Deputy
Minister of the Interior (Exhibit 13 on that action.)
Now marked EXHIBIT 31.
Mr. Davis—I object to that letter.
By the Court1—I will note that it is objected to.
Mr. Macdonald—I now propose to read portions of the examination for dis-
10 covery of the Plaintiff Ludgate. I will read all down to the end of question 66
inclusive, from the first.
Mr. Davis—I wish to take the objection that this evidence that my learned
friend proposes to read is not relevant to the issue herein at all.
Mr. Macdonald—-I submit that my learned friend cannot object to it as
being relevant. That is a matter of argument.
Mr. Davis—There is no plea anywhere in the pleadings that there has been
any assignment or anything of that sort, of the lease, and if my learned friend
is putting this in with a view to that, then I will object, and it would be necessary
for him to amend his pleadings.
20 By the Court—You know the contents of the examination for discovery ?
Mr. Davis—Yes; but it never occurred to me that my learned friend intended
putting it in for that purpose, and I shall object.
Mr. Macdonald—I take the ground that the Statement of Defence that the
Defendants are in possession of the property puts the Plaintiff to proof of this
title, and if in the course of the trial it is discovered that the Plaintiff has no title
and it is outstanding, then he fails.
By the Court—The objection of Mr. Davis is noted, and we will discuss that
later.
Mr. Macdonald—Now I submit letter dated 25th January, 1899, exhibit
30 number 30 in the other action, to the Honorable Mr. Borden.
Mr. Davis—I object to that letter as being irrelevant.
By the Court—I think we can facilitate matters by allowing them to go in.
They go in subject to Mr. Davis' objection, at present, and their admissibility can
be considered later, on argument.
Marked EXHIBIT 22.
Mr. Macdonald—I desire to put in report of Major-General Middieton,
which is incorporated in Exhibit number 24 in the other action.
Mr. Davis objects.
By the Court—Received subject to objection.
Marked EXHIBIT 23. |
40 THOMAS F. McGUIGAN (Re-called) :—
(Examined by Mr. Macdonald.)
Q. You ceased to be City Clerk, when ? A. 1905.
Q. At that time were you still Secretary ot the Board of Park
Commissioners ? A. Yes,
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 20
15th Dec.
1909
T. P.
McGuigan
Re-called
15th Dec
1909 44
Y0
I
I
4
RECORD
In the
Supreme
Court of
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Columbia
Defendants'
Evidence
No. 20
T. P.
McGuigan
Re-called
15th Deo.
1909
continued
Cross-
examination
Q. And who up to that time was in possession of this so-called island ? A.
The City of Vancouver.
Q. Can you say from memory whether or not at that time the bridge had
disappeared ? A. The bridge had disappeared several years before that ; it
became in a dilapidated condition.
Q. The litigation was then on between the Province and the Dominion at
that time ? A. Yes, and for several years previous to that.
Q. And some time afterwards ? A. Yes, Mr. Ludgate—■
That will do for the present ; I reserve my right to recall Mr. McGuigan.
Cross-examined by Mr. Davis— 10
Mr. Davis—I would ask my learned friend to produce the Minutes of the
City Council of May 12th, 1886.
Mr. Davis—That pontoon bridge that you spoke of had nothing at all to do
with Deadman's Island, had it ? A. It was only a landing.
Q. But not a landing at the island ? A. It had nothing to do with the
island.
Q. It was not a landing at the island ? A. No.
Q. The pontoon bridge had nothing to do with the island ? A. No, the
pontoon was not on the island.
Q. And outside of the foot bridge and a little trail that was built, no other 20
expenditure was ever made in Deadman's Island by the City of Vancouver during
your time ? A. Not to my knowledge.
Q. You say that the City of Vancouver was in possession of this island in
1905? A. Yes.
Q. What outward visible sign of possession was there on the part of the
city ? A. Well, there was a question, I don't know whether
Q. You stated that the city was in possession of the island.—what outward,
tangible sign of possession was there ? A. Everything was in statu quo, and we
didn't know where we were at.
Q. I understand that the city laid claim to it, but I am not talking about 30
that. What was there to show that the city was in possession ? What actual
fact was there to show that the city was in possession, outside of the fact that
the bridge had been there and the trail had been built ? Was there anything
else to show that the city was in possession of that island ? A. The boundaries
of the city including Deadman's Island.
Q. If the boundaries of the City of Vancouver did not include Deadman's
Island, then naturally it would be different ? A. Yes.
Q. There is nothing except the building of the foot-bridge and the building
of the trail; those are the only actual things they did—that is the only way they
were ever actually in possession ? A. Yes ; that is right. ' 40
Q. As far as people going there for picnic parties, any island situated like
this is and owned by the Government, the people would naturally go there ? A.
Oh, I have gone there several times. 45
who claimed to
we call them squatters.
own
that
A. No,
they
Q. It would not matter whether it was owned by the Government or
belonged to the City ? A. No.
Q. There have always been squatters there
property ? A. There were people living there
Q. There were people living there who claimed to own the island ?
they don't claim to own it; but were there on surveillance.
Q. They claim to own the places where they lived ? A. I don't know7
continued to stay there, and they are there yet.
Q. They were there before the first petition went down prior to the City
10 taking over Stanley Park ? A. They were there in 1885, when I came there.
Q. They are the only people who have been in actual possession of
Deadman's Island. Is that so ? A. Yes.
Q. You were Clerk of the City from the commencement ? A. Yes.
Q. I turn to minute book of the City—minutes of meeting held 12th May,
1886—are these minutes in your handwriting ? A. Yes.
Q. I read the resolution there : | Moved by Alderman L. A. Hamilton,
seconded by Alderman Caldwell -That the Mayor be authorised to forward a
petition to the Dominion Government through the Member for New Westminster
District, praying that the whole part of Coal Harbour known as Government
20 Reserve, or such part of it as in its wisdom the Government may see fit to
grant, be conveyed, to the City for a public park." That resolution was passed
at that meeting ? A. Yes.
Q. There was only one petition sent down at that time ? A. Yes.
Q. The same one as the printed form ? A. Yes.
Mr. Davis—I put in this petition authorised by the resolution of May 12th,
1886. I am putting it in, although I think it is in already.
Q. The letter book of that date, I believe, has been destroyed or lost ? A.
As a matter of fact, our machinery was lacking at that time.
Q. You had no letter book ? A. No.
Q. Did you send that petition down to Ottawa ? A. I sent it down myself
personally.
Q. Incorporated, or authorised by that resolution of May 12th, 1886 2
Yes.
Q. This is the petition referred to in
Yes.
(Exhibit 24).
Q. About when was it sent down
execution.
Q. About when was it executed ? A,
40 Q. 12th Mav, 1886? A. Y
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 20
T. F.
McGuigan
Cross-
examination
15th Dec.
1909
continued
30
A.
A.
the minute of the 12th May, 1886
? A. It was immediately sent In
About the date mentioned there.
■Q.
Lay
es. 46
mh
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 21
C. E. TisdaU
Examination
15th Dec.
1909
No. 21.
CHARLES E. TISDALL, Sworn:— *■'
(Examined by Mr. Macdonald).
Q. You have been Chairman of the Board of Park Commissioners for how
long? A. 1 was elected to the Park Board January, 1904, and was Chairman
continuously since.
Q. As Chairman of the Park Board Commissioners, do you take a personal
interest in the parks in the City ? A. Yes; certainly.
Q. What do you know as to the property in question, Deadman's Island so
called ? A. In what respect ? 10
Q. As to its appearance and the locality adjoining that property, and any
other evidence that in your opinion will place the matter in the proper light
before the Court ? A. As Chairman of the Board of Park Commissioners I
always looked upon Deadman's Island as being part and parcel of the reserve.
Mr. Davis objects.
Q. How did you treat it ? A. It was treated as part and parcel of Stanley
Park.
Q. From the time that you became Chairman of the Board up to the
present time has there been any change of possession by the Park Board of that
whole park? Has the Dominion Government in any way made any change m 20
respect to possession ? A. The Dominion Government made no attempt to
interfere with the Park Board Commissioners.
Q. Has any part of that property been reserved for military purposes ?
A. No.
Q. Now, the litigation between the Province and the Dominion terminated
in 1906 ; was there an)- change took place in respect to possession ? A. No ; as -
far as I know the City was continuously in possession of Deadman's Island, and
had a man named Hammersley in possession of the island, and the Superintendent
has had standing instructions to take whatever steps were necessary to look
after Deadman's Island as part and parcel of the park ; on several occasions he 30
put out large fires, and his services have been paid for out of public funds to my
knowledge ; out of Park Commissioners' money, for putting out fires.
By the Court—You say you were exercising acts of ownership over the
place ? A. Certainly.
Mr. Macdonald—How close does this property lie to what may be called
the mainland ? A. Speaking offhand, approximately 60 yards.
Q. Have you noticed the state of the ground lying between, the so-called
island and the mainland at the different stages ? A. Yes ; when the tide is full
the only means of access to Deadman's Island is by boat; when the tide is out,
you can walk across it. 40
By the Court—At all low tides ? A. Yes; at low tide you can walk
across.
Q. Is there any other pieces of property which you as Chairman of the
Park Board have exercised jurisdiction over that lies somewhat the same
condition? A. Yes, 47
Mr. Davis objects.
By the Court—Objection sustained.
Mr. Macdonald—Speaking of this piece of property in particular, this so-
called island, do you recollect the time that the bridge was across ? A. Yes.
Q. Was it during your term as Chairman that the bridge went out ? A.
No; the bridge was down when I became Chairman.
Q. You spoke of Mr. Hammersley being there on the island on your behalf ?
A. He is still available ; he is still on the island.
Q. Did you know Mr. McLean who was Mayor when the Order-in-Council
10 was passed? A. Yes ; he is dead.
Q. And the first Chairman of the Park Board, Mr. Ferguson, is dead ? A.
I don't know who was the first Chairman. I thought Mr. Alexander was
Chairman. Mr. Ferguson is dead.
Q. Many of the men and officials of the City who were cognizant of these
matters are dead ? A. Have naturally died ; it was a long time ago.
Q. Now, outside of being Chairman of the Park Board, did you have any
knowledge of the park ? A Yes ; I was often over the parks.
Q. You were one of the local members here ? A. Yes; and took an interest
in that.
20 Q. Were you here at the time that the Ludgate incident came up ? A,
Yes; Mr. Ludgate showed me the lease in a room at the Legislature when I
represented the City.
Q. How long prior to that did you take an interest in this particular piece
of property ? A. 1 am naturally disposed to an outdoor life, and I knew Stanley
Park before the road was built in the spring of 1888.
Q. It would be in your recollection the building of the bridge as a means of
access between the island and the mainland ? A. Yes.
Q. yo far as your knowledge goes, was there any intimation at all that this
piece of property was in question until the Ludgate lease was given ? A. Not
30 as far as my knowledge goes.
Q. You were a member of the Legislature for how many years ? A. For
two years.
Q. Now in regard to this island, what was the reputation of it, as to who
was the owner of it ?
Mr. Davis objects.
Mr. Macdonald—I am going to press the question as to what was the local
reputation of it as to ownership.
By the Court—I don't think that is evidence.
RECORD
In the
Supreme
Court of
British
Columbia
Defendant's
Evidence
No. 21
0. E. Tisdall
Examination
15th Dec.
1909
continued
40
Cross-examined by Mr, Davis—
Q. Is Mr. Hammersley here ? A. In Court.
Q. Yes? A. Yes.
Q. Who did you say was paying him ? A. I said he was placed in possession
by the Park Board.
Cross-
examination 48
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 21
C. E. Tisdall
Cross-
examination
15th Dec.
1909
continued
i
*? trail
Q. And did you say he was paid by them ? A. No ; he has not been paid,
he was simply placed in possession, and left there ; he was not interfered with ; he
has his home there ; we allowed him there.
Q. How long was he there before you became Chairman of the Board of
Commissioners ? A. I have no knowledge ; he was there when I became Chairman of the Board ; I know he was there previously.
Q. He had his house there ? A. I have no knowledge of it.
Q. He was there the same as the rest of the squatters on the island as far
as you know ? A. Well, my knowledge of Hammersley is that he was an
employee of the Park Board. 10
Q. As far as you know Hammersley continues on that island the same as
the other squatters there ? A. I have no knowledge of that at all; the first
intimation I had about Mr. Hammersley was when I signed a report, my attention was drawn to some allowance to him. He was getting twenty cents an
hour, and I was told that he was living on Deadman's Island at that time, and
was doing some work for the Commissioners in Stanley Park.
Q. Not on Deadman's Island ? A. No.
Q. What I understand the case to be is that Mr. Hammersley is one of the
squatters on the island who have been there a long time and refused to go off;
that Hammersley is in the same position as the rest. Are you in a position to 20
say that is not the case ? A. I have no knowledge on that point; our employment of Mr. Hammersley was intended to give him possession as far as his house
was concerned on that island in the same way that other careta kers
Q. You are not in a position to say it would give him any n.ore than the
other squatters on that island ? A. No, he has received no pay any more than
his looking after the property for the Park Commissioners.
Q. Approximately Deadman's Island is 60 yards from the mainland ? If I
recollect the evidence, I think the evidence is that it is 400 feet at high water ?
A. I have no knowledge of that.
Q. 60 yards at low or high water did you mean to say? A. I would say 30
just simply as a pedestrian walking along—I would judge from bank to bank,
when the tide is at high water ; from high water mark to high water mark.
Q. Now you said that at low tide you could walk across ? You don't mean
that at low tide there is no water between the island and the mainland do you ?
A. There is no water other than usually might be after a tide ; there might be
little puddles there.
Q. That is at extreme low tide ? A. I assume at extreme low tide.
Q. During part of the low tide there is water between the island and the
mainland ? A. I don't know.
Q. There is no question but at anything except low tide there is water 40
between ? A. Yes.
Q. You say the city was in continuous possession ? A. Yes.
Q. You are speaking of what possession Mr. Hammersley might have, and
the building of the footbridge and the *tunnel ? A. The fact that the Board of
Park Commissioners exercised jurisdiction over it and had always safeguarded
the place from fire. 49
Q. What have you done on the island other than what has been mentioned ? Reck>RI)
A. Trails have been cut. in the
Q. Except the one trail ? A. A great many trails cut within the last three c^fS3
Or four months. British
Q. Prior to the commencement of this action ? A. Practically nothing has
been done other than what you said, for the simple reason Defendants'
Q. I understand that what has been done there has been mentioned
already ? A. In a general way, yes.
Re-examested by Mr. Macdonald-
No. 21
C. E. Tisdall
Cross-
examination
15th Dec.
1909
10 Q. Outside of the litigation which arose, was there any other reason why contmued
you didn't spend more money on this park ; I mean the litigation between the
Dominion and the province ? examination
Mr. Davis objects.
A. We had to spend our money where the citizens could enjoy it to better
advantage, and it has been towards the English Bay side where the money of
the Park Commissioners has been spent.
Q. You know when the litigation started in 1899 ? A. Yes.
Q. And was in progress when you took office ? A. Yes,
Q. Terminated in 1906 ?
20 Mr. Davis—I will admit the dates. Mr. Tisdall I am sure does not know
that.
Mr. Macdonald—I want to give the date of the commencement of the
action—May, 1889, and ended in 1906, August 2nd.
No. 22.
GEORGE ELDON, Sworn :—
(Examined by Mr. Macdonald).
No. 22
G. Eldon
Examination
15th Dec.
1909
Q. You have been Superintendent of Parks in the City of Vancouver for
how many years ? A. I think thirteen years last September since I commenced
30 at Stanley Park and took charge of the parks.
Q. That would be then in 1896 ? A. Yes.
Q. Before becoming Superintendent of Stanley Park did you have any
knowledge of the park ? A. Yes.
Q. In what connection ? A. I laid out Brocton Point Athletic Grounds I
think 19 or 20 years ago.
Q. Do you recollect the time that the park was opened ? A. Yes, I was
present there.
Q. Who opened the Park ? A. Lord Stanley.
Q. Aiter whom the Park was called ? A. Yes.
40 Q. Was that a public affair ? A. Yes.
Q. On the ground ? A. Yes. Bf
'Am
-9
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Examination
15th Dec.
1909
continued
50
Q. Can you give the year ? A. No, I don't remember.
Q. How long prior to the time you became superint endent ? A. I could
not say ; I have not the date.
Q. It was before you became superintendent ? A. Yes.
Q. Now after you became superintendent of parks what property did you
take control of ? _ A. Of Stanley .Park.
Q. What did that include ? A. Included what is called Deadman's Island;
this was the only park we had in the city.
Q. This was the only park they had at that time ? A. Yes.
Q. The park system has been increased since then ? A. The last four or 10
five years.
Q. But when you became superintendent you had nothing under your
control except Stanley Park ? A. That is all.
Q. Now going back to 1896, dealing with your first year, what was your
manner of dealing with the park at that time ? A. My position as park superintendent was to look after the park, employ men, and lay out the work, and
see that there was no buildings put up around the park, and watch for fires; that
was my special orders from the Park Board.
Q. Would you personally go through the park, or did you leave that to
your men? A. I went there myself; at that time I was Park Ranger, and 20
acted as policeman as well.
Q. The City had only a small population at that time ? A. I did police
duty as well at that time.
Q. With special reference to the property in dispute, did you use to go
there at that time ? A. Used to go there at that time.
Q. How at that time did you go to the island ? A. Used to go over the
bridge.
Q. The bridge, then, was in use in 1896? A. Yes; and previous to that,
as far as I remember.
Q. How long did that course of work on your part, giving personal super- 30
vision to the property, continue ? A. Until about three or four years ago; I
had no assistants until then.
Q. With the City's growth you have had assistants ? A. Yes; I had to
have assistants.
Q. Under your superintending of the park, what work was done ? A. I
would go to see that no fires in the park in the summer time, and see that no
fallen timber or fallen branches in the road. About twice a week I would be
there.
Q. From 1896 down to the time when the Ludgate incident occurred, how
often would you say you were on this island during that time ? A. Well, I 40
suppose during the time the bridge was up probably twice a week.
By the Court—In what capacity ? A. As superintendent.
Mr. Macdonald—Now, the island itself is only about how many acres of
land ? A. I never measured it; 3, 4, 4j, 5 acres, I would not say.
Q. The whole park property is a large area ? A. Yes ; about a thousand
acres in round figures. 51
Q. Now, at the times that you went on this island during this period, how
did you get over to this 3^ to 5 acres ? What was the means of access from the
mainland ? A. When the bridge was up ?
Q. When you got there, how did you get over the island ? A. Used to go
over the trail; there was a trail made from one side of the island to the other ;
the south side was where they landed from.
Q. Was this trail accessible at all times ? A. Yes.
Q. Were any means taken in order to be able to use it ? A. Every year it
was slashed out, and the brush taken out; there is a tendency to growth in
10 British Columbia, and every year we had to go through it with a scythe to keep
the trail open.
Q. From the time you took the superintendency, how long did that
continue ? A. Right up to the time that the bridge went down.
Q. Can you fix the date that the bridge went out ? A. I think eight years
ago, 24th December next,
Q. Is there anything to mark in your mind the occasion when the bridge
went down? A. Yes; there was a very severe storm at the time I believe the
Condor went down, eight years ago. 24th December next, early in the morning.
Q. At the time the bridge went down or went out the litigation was on
20 over the title to the island ? A. I don't know ; I think probably it was.
Q. Do you remember the occasion of the Ludgate lease ? A. I remember
the occasion very well; I remember the time but not the date.
Q. As Park Superintendent, what was the first intimation you got in regard
to possession of the property ? A. 1 think it was from the President.
Q. Did he say anything to you that showed there'was a claim made to this
property by someone other than the Park Board ? A. We kept on doing duties
in the park just as usual.
Q. Did anything occur that showed you that Mr. Ludgate was claiming
some right over the property ? A. There was nothing that we knew about; we
30 didn't know anything at all of that until we saw it in the Press.
Q. Subsequent to what you saw in the Press, was there anything occurred
on the ground that showed . some claim was being made ? A. Not until Mr.
Ludgate came over himself. I was there at that time. I was there that
morning.
Q. Can you fix the date ? A. No.
Q. What occurred ? A. If I remember right, Mr. Ludgate sent word to
the Park Board or the City Council, and I was ordered to take my men over and
protect the island. He came over with a gang of men and commenced to chop
some trees down, and he was stopped by our men.
40 Q. Assuming that was in 1899, up to that time had there been any
interference whatever with your possession of that island ? A. Previous to that
there had not been ; not that I know of; I don't remember any.
Q. You spoke of this bridge across to the island that you used, you cannot
say what year it was built ? A. No.
Q. Can you say how it was kept in repair ? A. We kept it ;in repair.
Q. Who paid for brushing out the trails each spring ? A. The Park Board.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Examination
15th Dec.
1909
continued 52
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Examination
15th Dec.
1909
continued
4
Q. You don't know as to who paid for the original cutting of the trail ? A.
They were there when I went there.
Q. As far as fires were concerned, who looked after the protection from
fires of that property ? A. That was my duty.
Mr. Davis—What property ?
Mr. Macdonald—The property in question, the island.
Q. Did you ever have occasion to put out any fires on the island ? A. Yes;
several times.
Q. Taking Stanley Park as a whole even in 1896, what was its condition?
A. It was very very crude even at that time ; I think the walk to Prospect 10
Point was about all there was done at that time; they mostly used to go to
Prospect Point, I think, at that time; I think that was because there was no
bridge over Coal Harbour at that time.
Q. As time wore on, and there was a proportionate expenditure, how did
the island compare with the rest ? A. It got just the same attention as the
other : I think Deadman's Island was used as much as any other part of the
park in the early days; families used to go there and have a tea.
Q. It had quite a little clearing at the south end ? A. The south end of
Deadman's Island, there was quite a little picnicing done there in the early days.
Q. Subsequent, then, to the Ludgate claim turning up, and after the bridge 20
went out, was any person placed in charge of the ground—of this property,
Deadman's Island ?■ A. Mr. Hammersley.
Q. Did you know he was there as superintendent ? A. No; not at that
time; not previous to the bridge.
Q. At the time that he was chosen■? A. I remember the time.
Q. You knew at the time ? A. Yes.
Q. Who was it made the appointment ? A. Captain Tatlow.
Q. Is that in writing ? A. Yes.
Q. Now, Mr. Hammersley, who has been referred to, did he have anything
to do with you in connection with work in the park ? A. Yes ; he was 30
employed in the park for a number of years.
By the Court—Under you ? A. Yes.
Q. And you mentioned the fact that he was on the island you knew that?
A. Yes.
Q. These buildings that were on the island, were they on the shore of the
island or in the centre of it ? A. There was very little ; I think Mr. Hammersley
had a garden there, when I went down there; he had a little clearing there, and
another man, called Mr. Sager, had another small clearing there ; outside of them
I don't think there was anyone on the island; there were several on the foreshore ; my instructions were not to allow anyone on the island.
Q. Except those who were there, and you succeeded in doing that ? A
Yes. B
Q. But there were some along the foreshore ? A. Yes; four or five.
Q. Now, from the time that Mr. Ludgate was stopped, in 1899, up to the
present time, has there been any interference with your possession of that
property up to this spring ? A. Not until this spring.
40 53
Q. From 1899 to this spring there was no interference ? A. No.
Q. Who has looked after this property all that time ? A. Mr. Hammersley ;
of course I put out fires and used to have charge of the island.
Q. Has there been any interference at any time on behalf of the Dominion
Government that you know of? A. Not that I know of.
Q. Fr©m 1899 ? A. No, not to that time.
Q. As far as you know has there been any by or on behalf of Ludgate ? A.
Not that I am aware of.
Q. There was nobody made himself known to you ? A. No.
10 Q. Has any portion of that property, mainland or island been used for
military purposes ? A. No, none whatever, only just been a review there once
or twice at Brocton Point; a review of local militia.
Q. Up to the year 1899 can you say approximately the amount of money
what was spent on the whole park ? A. No.
Q. Prior to the Ludgate affair what would you say the whole expenditure
amounted to ? A. The expenditure would not amount to, I don't suppose, $5,000'
or $6,000.
By the Court—On the parks of the city ? A. This was the only park.
Mr. Macdonald—Before the Ludgate trouble ? A. There might have been
20 a little recreation ground at Cambie and Powell streets.
By the Court—Which would be included in that $5,000 ? A. Yes.
Mr. Macdonald—From 1899 to 1906 the city was growing? A. Yes.
Q. Up to 1906 can you give me an approximate estimate of the amount
spent on Stanley Park as a whole ? A. No.
Q. Now you say this spring there was an attempt made to change possession.
Do you know anything as to that personally ? A. Yes ; I was there at the time.
I had some men working there and our men were put off; I didn't see them put
off, but I took them back again.
Q. They were on there and they were off ? A. Yes, I took them back again.
30 (Adjourned to 2.15 p.m.)
Cross-examination by Mr. Davis—
Q. When were you last on Deadman's Island prior to May of this year ? A.
In April.
Q. How often have you been there during the last eight years since the
bridge went down ? A. I can't answer that question. I have been many times,
but can't say how many.
Q. Can't you give any idea ?' A. I may have been fifty or a hundred times,
I could not say.
Q. Do you say there have been no shacks gone up there since you were Park
40 Superintendent ? A. I don't say that; there were some gone up on the beach.
Q. There have been a number of shacks gone up on Deadman's Island since
you have been Park Superintendent ? A. Yes.
Q. You have not been able to stop them ? A. Of late years.
Q. Just the last years you protected it ? A. Yes, after the time the
improvements were made, we protected it; those were my orders,
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Examination
15th Dec.
1909
continued
Cross-
examination 54
RECORD
In the
Supreme
Court of
British
. Columbia
Defendants'
Evidence
No. 22
G. Eldon
Cross-
examination
15th Dec.
1909
continued
Q. That is the extent of it ? A. Yes ; I warned the people.
Q. But you never took any steps to get them off? A. Not since the
Ludgate question.
Q. Nothing but talk ? A. Not since Ludgate took possession.
Q. Did you ever do anything but talk, in regard to the squatters, before
Ludgate appeared ? A. Yes, previous to that did not allow them to come on, -
and if anybody went on we put them off.
Q. But you did not put off those who were on there ? A. No.
Q. As far as the squatters or settlers were concerned, prior to the Ludgate
lease you did not allow any new settlers to go on the island ? A. No. 10
Q. But you did not try to put off those who were already there ? A. No.
Q. Since the Ludgate lease the position as to these matters has been this :
You have not attempted to put those that were there off, nor have you done any
act to stop fresh ones going on ? A. Not any particular part, we have not.
Q. At the present time there are how many of these settlers on Deadman's
Island ? A. On the beach ?
Q. On the island—when I say the island I include Stanley Park—between
the island and the water ? A. On the water front, 18 or 20.
Q. How many on the island altogether ? When I say isknd I include the
beach, the part between the trees and the water ? A. Might be lO, or 22 or 23 ; 20
I don't know. There might be more or less.
Q. Are there as many as thirty ? A. I can't say.
Q. You can't say there are not that many ? A. No.
Q. And about ten on the island proper apart from the beach ? A. At the
present time eight or ten.
Q. You will not swear there are not as many as thirty on the beach ? A.
No.
Q. You won't swear there are not as many as ten on the island ? A. No ;
I didn't go and count them, in recent years.
Q. About how far is it in your opinion between Stanley Park and Deadman's 30
Island ? A. Do you want a correct answer ? I think I can tell you. I got a
man. to measure it. The distance where the bridge went over is about 550 feet.
Q. Is it not the case at all times except extreme low tides there is some
water between Stanley Park and Deadman's Island ? A.I have walked across
several times this summer ; there was mud, but it was perfectly dry.
Q. At extreme low tide? A. Yes, for three or four or five hours a
day in the summertime.
Q. Extreme low tide in June? A. In the summertime; I don't suppose
hardly a day at low tide in probably May, June, July, August and part of
September. 40,
Q. Will you swear it was ever dry in the month of August, between Stanley
Park and Deadman's Island? A. Oh, yes, I swear it was dry.
Q. Tell me what time it was in August that you walked across when it was
dry ? A. I can't tell you the date.
Q. How-do you know it was August ? A. In August it is very low tide- 55
Q. You are merely saying that at extreme low tides it is dry between
Stanley Park and Deadman's Island ? A. Yes.
Q. That is what you mean ? A. Yes.
Q. It is only when the tide is extreme low tide that it is dry ? A. Yes, low
tide.
Q. It is at extreme low tide that it is dry ? A. Yes; extreme low tide,
yes.
Q. You understand perfectly well when I ask you the distance between
Stanley Park and Deadman's Island, you understand my question perfectly ?
10 A. Yes.
Q. Deadman's Island was included in Stanley Park? A. We have always
included it.
Q. You have considered that Deadman's Island was part of the property
given to the city ; that is what you mean ? A. That is the meaning.
Q. You have no other reason for saying that Stanley Park included Dead-
man's Island than simply the general idea that the Park Commissioners had?
A. Yes.
Q. As a matter of fact when people talked of Stanley Park and Deadman's
Island you understood perfectly well the two distinct things they were talking
20 about? A. Well, we do not—yes.
Q. Since the bridge went down there has been nothing done on that trail on
Deadman's Island? A. We put out a large fire on Deadman's Island on the
18th of August, 1904, at a cost of $15.
Q. If you saw a fire on any property adjoining the park property which
would endanger the park, you would have put it out, of course? A. Yes.
Q. It would be part of your duty, whether park property and adjoining
park property ? A. Yes, if the fire threatened the park.
Q. Was there anything else done on the island? A. I didn't make notes
of every little fire, or brushing of trails.
Q. Was there anything else, to your knowledge ? A. There might have
been three or four small fires.
Q. Don't tell me what there might have been. Up to date, as far as I can
' find out, there has been no expenditure on Deadman's Island since that bridge
went down. Now I ask you whether you know of anything since the bridge
went down ? A. Do you include the bridge on the Island ?
Q. The foot bridge ; since the bridge went down ?
By the Court—In the last eight years ? A. I don't remember of anything
but that fire and what has been mentioned.
Q. You were telling my learned friend something about Ludgate claiming
possession ; didn't you know that it was the Province of British Columbia that
claimed Deadman's Island at that time and fought it to the Privy Council ? A.
Yes; I remember the time the Province put in a claim.
Q. And the Province carried on that litigation ?
Mr Davis—I suppose my learned friend will admit that'.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Gross-
Examination
15th Dec.
1909
continued 56
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 22
G. Eldon
Cross-
examination
15th Dec.
1909
continued
Mr. Macdonald—The City did put Mr. Ludgate off and afterwards the
Province intervened and put him off?
By the Court—Does it really matter ?
Mr. Davis—If my learned friend will admit that, the Deadman's Island suit
which went to the Privy Council was between the Provincial Government and
the Dominion Government ?
Mr Macdonald—Yes, Ludgate dropped out of this case when it went out
of the Province and the fight was between the two governments, the Provincial
and the Dominion.
10
No. 23
W. Hammersley
Examination
15th Dec.
1909.
No. 23.
WILLIAM HAMMERSLEY, Sworn :—
(Examined by Mr. Macdonald).
Q. What is your age ? A. Sixty-six.
1887.
Q. When did you first go on what is called Deadman's Island ? A. January,
A. I have been there ever
A. 20
Q. How long have you been on that Island ?
since.
By the Court—You are there now—living on it? A. Yes.
Mr. Macdonald—Until late years whom did you work for, at times ?
For the Park Commissioners.
Q. Under whom ? A. Mr. Eldon, the last witness.
Q. When did you first start to work for the Park Commissioners ? A.
Well about, it must have been twelve years ago when I first went to work in
the park.
Q. Can you say who was the first occupant of that Island ? A. Well, I
believe I was myself; there was no person there when I went there.
Q. What have you got there ? A. I have a house and garden.
Q. And you have been there ever since ? A. Yes.
Q. About twelve years ago you started to work for the Park Commissioners ? 30
A. Yes.
Q. Before that did you do any work for the City or Park Commissioners ?
A-w ■ j -. i -p , v %J •/
. Well, 1 was working under Mr. Eldon on the Reserve ground before that.
• Q. Did you have anything to do with the building of that bridge that has
been referred to ? A. No.
Q. You remember when it was built ? A. Yes.
Q. After it was built did you use it ? A. Yes.
Q. Can you say when that bridge went down ?
eight years this Christmas Day, at night, about 1902.
Q. How did that come about ? A. There was
bridge was knocked down during the night.
A. Well it went down
i severe storm and the 40 57
Q. Up to that time how did you get to the Island from the mainland ? Did
you use the bridge at all ? A. Yes.
Q. Did you know anything as to the trail being cut on the Island ? A.
Yes, there was a trail cut from the North to the South shore of the Island.
Q. Did you have anything to do with that work ? A. No, sir.
Q. After you started to work, at times, for the City, how long did that
continue ? When did you cease work ? A. It is about five years ago this coming
March since I ceased to do anything.
Q. After the bridge went out did you receive any appointment from the
10 Park Commissioners with respect to this park ? A. Well, as caretaker.
Q. Have you got that appointment ? A. Yes.
Q. Will you produce it please ? (Witness produced paper).
Mr. Davis—How is it this was not produced before?
Macdonald—We have nothing to do with this man's documents.
Macdonald—It is admitted that this is in the handwriting of Mr.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 23
W. Hammersley
Examination
15th Dec.
1909
continued
A. Yes, and have had it
Mr.
Mr.
Tatlow.
Mr. Davis—You received that from Mr. Tatlow ?
ever since.
Mr. Macdonald—Dated May 10th, 1903.
20 I Board of Park Commissioners, Vancouver, British Columbia.
I May 10th, 1903.
" Mr. Hammersley,
" Deadman's Island, Vancouver.
" Sir,
"■ I hereby appoint you as caretaker of Deadman's Island to hold
I the same on behalf of the Park Commissioners, with instructions to
'' hold the position until you receive orders to the contrary.
I Yours truly, R. G*. Tatlow."
Q. And you held that authority from that day until the present time ? A.
30 Yes.
Q. And you have been on the island ? A. I have been there ever since that
time.
Q. After you received that appointment did you do work more or less for
the City and were paid ? A. Yes.
Q. Considering your knowledge of that property what do you say as to
access to the island from the mainland at certain stages of the tide ? A. Well
you could go across at half tide from, the mainland every day of the year.
By the Court—Go across, how ? A. You could walk across at half tide
every day in the summer, and at night in the winter you could go across ; the
40 water is up in the day in the winter and down in the day in the summer.
Q. I take it from that, that generally speaking, durmg the summer time the
tide is low in the day time ? A. Yes.
Q. And in the winter time low at night ? A. Yes.
Q. Have you crossed on foot more than once ? A. Numerous times.
Q; After the bridge went down was there any other means of access except
by boat or foot ? A. No, except by boat or foot.
m 1
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 23
W. Hammersley
Examination
15th Dec.
1909 •
continued
•;" 58
. Q. When you were working for the Park Board did you hear of any other
person than the Park Board having any claim to the property?
Mr. Davis objects.
Q. Did you hear of any claim made other than by the City, up to the time
of the Ludgate lease ?
Mr. Davis objects.
By the Court—Objection sustained.
Mr. Macdonald—You say it was from Mr. Tatlow, as chairman, from whom
you received that appointment ? A. Yes.
Q. What position did he hold at that time ?
Mr. Davis—I admit that.
By the Court—He was chairman of the Park Board.
Mr. Macdonald—Can you speak as to the distance across from the mainland to the island ? A. It is about 450 feet, the length of the bridge what was
up there ; 450 feet from the island to the mainland.
Q. The bridge was the means of access at high water ? A. Yes.
Q. Or high tide; and as far as low tide was concerned you could walk
across? A. Yes. •
10
Cross-
examination
Cross-examined by Mr. Davis—
Q. You say you are living on Deadman's Island. An action was brought 20
by Mr. Ludgate claiming the place that you are on ? A. Yes.
Q. You claim that yourself? A. Yes.
Q. What are you being paid by the City as caretaker ? A. Well, I have
not received any wages really, any more than I work under the Park Commissioners.
Q. And what you have done as caretaker has been occasional employment
around that park ? A. Yes.
Q. And when you say "park" you mean as well, of course, Deadman's
Island ? A. Yes.
Q. The shack that you have you put up in January, 1887 ? A. Yes. 30
Q. You have always claimed to own the land it is on since that time ? A.
Yes, as I fenced in.
Q. You claim against the City as well as against everybody else ? A. Yes.
Q. At the time of the smallpox scare you refused the City officials a landing
there ? A. That was on my gangway.
Q. You refused to allow them to land ? A. Yes.
Q. You refused to allow the City officials to land and claimed it was your
property ? A. It was the landing of smallpox patients; it was not the City
officials.
Q. The City officials were doing it ? A. Yes. 40
Q. In 1892, somewhere about that; and you claimed to hold that property
as against the City and everybody else, and that has been the same from the time
you went there in January, 1887, down to the present time ? A. Down to the
present time. 59
Q. You say you could go aoross at half tide every day from Deadman's
Island to Stanley Park ? A. Yes.
Q. You say you could go across without getting wet ? A. Yes, not perfectly
dry, but there is no water.
Q. Are you positive about that ? Because we had Colonel Tracey examine
it ? A. Well, of course, you would get muddy, but no depth of water.
Q. But isn't there water there, right at the present time, during this last
week there would not be any water there at half tide ? A. No, last week I was
not over there, but I believe that you could walk over.
10 By the Court—It would be like an ordinary beach after a tide receded? A.
Yes, but no water.
Q. If you had a photograph of it it would not appear as a sheet of water ?
A. No.
Q. The soil exposed ? A. Yes, and mud.
Mr. Macdonald—It might be noted that the authority of Mr. Tatlow to
this witness is handed back to the witness by consent.
RECORD
In the
Supreme
Court of-
British
Columbia
Defendant's
Evidence
No. 23'
W. Hammersley
Cross-
examination
15th Dec.
1909
continued
No. 24..
WILLIAM SKENE, Sworn i
20 (Examined by Mr. Macdonald).
Q. You are Secretary of the Board of Trade ? A. Yes.
Q. Have you the minute book of the Board ? A. I have.
Q. Will you turn up minute of the Board meeting of 20th February, 1899 ?
Mr. Davis—I object.
Mr. Macdonald—I propose to put this in to show the concensus of opinion
with respect to Deadman's Island.
Mr. Davis—There was always a difference of opinion. How can anything
that the Board of Trade did, or anything that meeting did, affect the question of
title here.
30 Mr. Macdonald—This is part of the memorial presented to the Government
included in Exhibit " 40 " and it shows that the Government did have knowledge
of a certain position being taken by the City.
By the Court That is not disputed.
Mr. Macdonald—That the Government had knowledge at that time
that the City claimed the island, in question as their property on the 20th
February, 1899.
Mr. Davis—I think that is proved beyond all question.
Mr. Macdonald—I submit as one of the exhibits letter from H. W. Brown,
Private Secretary to the Minister of Militia, to the Deputy Minister of Militia,
40 dated 28th March, 1899, and letter from the Deputy Minister of Militia and
Defence to the Deputy Minister of Justice, 29th March, 1899, with the letter
from the Deputy Minister of Justice to the Minister of Militia and Defence in
reply.
No. 24
W. Skene
Examination
15th Dec.
1909 60
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 24
W. Skene
Examination
15th Dec.
1909
continued
10
Marked Exhibit " 25."
Mr. Davis—I object to that. I have no objection to them going in
subject to objection to be argued afterwards.
Me. Macdonald—This was in Return 68a.
Mr. Davis—The opinion in question was included in a public return printed
by order of the Dominion Parliament entitled "Correspondence and papers in
reference to Stanley Park and Deadman's Island, British Columbia," printed in
1899.
Mr. Macdonald—I now put in telegram from R. G. MacPherson to the
Honourable Mr. Borden, dated September 28th, 1904.
Mr. Davis—I object to this.
Mr. Macdonald—Also letter from the Deputy Minister of Militia to R. G'
MacPherson of October 3rd, 1904 ; also telegram from the Deputy Minister to
Mr. MacPherson of October 20th, 1904. All three in one exhibit.
Marked Exhibit "26."
Mr. Davis objects.
Received subject to objection.
Mr. Macdonald—I submit as part of the evidence for the defence the
evidence of Alfred Richard Howse, who was a witness called by the defence in
the Deadman's Island case and has since died, and can file an affidavit of death 20
if compelled to do so.
Mr. Davis—I don't dispute the death.
Mr. Macdonald—In the previous trial in which the Attorney-General of the
Province of British Columbia was plaintiff and the Attorney-General for the
Dominion, and Theodore Ludgate, the present Plaintiff were defendants, the
witness Howse was called on behalf of the defence ; he was called and examined
by Mr. Peters who appeared at the trial as counsel for the Dominion Government, and was cross-examined by counsel on behalf of the Province.
Mr. Davis—That is correct.
Mr. Macdonald—I put in the evidence of the witness Howse at page 14 of 30
the proceedings in the Privy Council Record, to page 42 inclusive, Marked
Exhibit 27.
Mr. Macdonald—And then in the Full Court he was called again at
page 343 to $77 inclusive.
Mr. Davis—Subject to objection.
Mr. Macdonald—Wherever his evidence appears in the records, it goes in ;
I am not cutting out any of it. 61
No. 25.
THOMAS MATTHEWS, Sworn
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 25
T. Matthews
Examination
15th Dec.
1909
(Examined by Mr. Macdonald).
Q. You have been a resident of the City for how long ? A. 23 years.
Q. Did you know the so-called Deadman's Island ? A. Yes.
Q. Have you been on it ? A. Yes.
Q. State what means of access there is between that island and the mainland ? A. At the present time ?
Q. From your experience ? A. There was a bridge there at one time, I
10 walked across there many times to the island. I mean I walked across when the
tide was low.
Q. You mean on foot ? A. Yes.
Q. I suppose you can begin to fix dates ? A. No ; but I remember walking
across at low tide several times.
Q. Speaking of your own knowledge extending over that number of years,
can you say whether or not this property was considered—
Mr. Davis objects.
Mr. Macdonald—You have been on the island ? A. Yes.
Q. How did you come to go there ?
20 By the Court—What is the object of this evidence 1
Mr. Macdonald—As to reputation.
Mr. Davis—I object to this line of evidence.
By the Court—The objection is well taken.
Mr. Macdonald—In what capacity did you go to this island ? A. As a
private citizen I considered it part of the park, and that I had a right to go
there.
Mr. Davis objects.
Mr. Macdonald—Did you ask for anybody's permission ? A. No, I thought
it was public property.
30 Cross-examined by Mr. Davis—■
Q. Were there other people there besides yourself? A. I have seen other examination
people there.
Q. Were you there more than once ? A. Yes.
Q. That would be during what period ? A. On from 1895.
By the Courts—Not earlier than 1895 ? A. Yes, I have been there in 1887
or 1888 ; I was there before the bridge was erected.
Q. Ajud after the bridge was erected ? A. Yes.
Q. You were there both before and after the erection of the bridge ? A.
Yes.
40 Mr. Davis—I may say that I am not going to call any evidence to contradict
the evidence that has been given along this line.
Cross- RECORD
la the
Supreme
Court of
British
Columbia
Defendant's
Evidence
No. 26
Sir P. Borden
Evidence on
Commission
taken
19th Nov.
1909
10
20
62
1 No. 26.
Mr. Macdonald—Before I proceed further, I ask for a direction of the Court
as to the mode of procedure of the trial. The pleadings are in this shape : The
Plaintiff simply sets up his lease ; the Defendant sets up a prior lease or licence;
their reply to that is that this other lease from the same landlord operated as a
surrender ; our reply to that is that it did not operate as a surrender; that
there was no such thing. I now desire a direction as to whether it is incumbent
on the defence at this stage to meet that reply set up as against the Order-in-
Council under which they claim ? I don't want to be met with the objection
later on.
Mr. Davis—My learned friend will be met with objection if he tenders any
evidence in our rebuttal. I will object to any evidence going in other than in
the main evidence at the trial.
By the Court—I don't see that I am called upon to decide that question.
Mr. Macdonald—I am about to reach the stage whether I have either got
to put it in now, or keep it for reply.
By the Court—Why not put in your evidence ?
Mr. Macdonald—I will put in the evidence. I put in the evidence of Sir
Frederick Borden taken on commission.
Mr. Davis—I object to certain portions of Sir Frederick Borden's evidence
going on, and I object to the whole of General Macdonald's evidence. Of course,
the commission as it stands can't go in. I would suggest that my learned friend
read it, and the stenographer take it down until objection is made.
By the Court—Exhibit | 28."
Mr. Macdonald reads :—
I Before Andrew Haydon, Esq., at Ottawa, November 19th, '09.
"Mr. F. H. Chrysler, K.C., and Norman G. Larmonth for Plaintiffs.
"Mr. Wallace Nesbitt, K.C., Mr. George H. Cowan, K.C., and Mr. J. F.
I Smellie, for the Defendants.
"The Hon. Sir Frederick Borden, K.C., Minister of Militia and Defence for 3*0
I Canada, sworn, examined by Mr. Wallace Nesbitt, K.C.
IQ. Sir Frederick Borden, you are the Minister of Militia and Defence for
"Canada? A. Yes.
IQ. When did you first become Minister of Militia and Defence ? A. In
I July, 1896. I do not remember the date ; the 13th of July, I think.
" Q. You became aware of an Order-in-Council which has been put in, dated
" in June, 1887, in reference to Stanley Park ? A. Yes.
" Q. I show it to you on page 15 of the printed report which we purpose
" putting in—that is right, Mr. Chrysler ?
" Mr. Chrysler—Yes. 4$
" Sir Frederick Borden (the witness)—It is a copy of a report of a Committee
" of the Honourable the Privy Council, signed John J. McGee; oh yes, I
" remember that paper.
" Q. Under that, _ the City, so far as you know, were in possession of
"Stanley Park as it is called popularly? A. Yes; I knew they were in
" possession of it, and I knew of no other document. 63
10
20
30 "
40"
!' Q. Then there was a second Order in relation to it on the 31st of August,
1906, has that been put in Mr. Chrysler.
i Mr. Chrysler—I think sc.
I By Mr. Nesbitt.
I Q. If it is not, we will put it in, Sir Frederick—so far as it is important
to the question, the Minister of Militia and Defence ; that was yourself at that
time? A. Yes.
I Q. It recommends that the minute of the Council of the 8th June, 1887,
empowering the Minister of Militia and Defence to take the necessary steps to
hand over to the City of Vancouver for park purposes the military property
now known as Stanley Park, be cancelled. Do you remember that ? A. Yes.
1 Q. Then it recommends the appointment of six commissioners ? A. Yes.
I Q. And it further recommends that the conditions of such lease be made
generally on the lines of those under which Point Pleasant Park, Halifax,
N.S., has been leased by the Imperial Government to the City of Halifax ; you
remember that ? A. Oh, yes.
I Q. Then, I believe, that was not acted on ? A. No ; there was a change
with reference to the Commissioners as I understand it; I think that was the
only change.
" Q. Then, on the 13th August, 1908, I find that on a report, dated the
10th of August, 1908, from the Minister of Militia and Defence, who was still
yourself ? A. Yes.
p Q. You have alwrays been Minister of Militia and Defence from the time
mentioned in 1896 until now? A. Yes.
"Q. That states that by Order-in-Council of the 7th of June, 1887, the
military property at Vancouver, known as Stanley Park, was authorised to be
leased, under certain conditions, to the City Council for park purposes, and that
by Order-in-Council of the 31st of August, 1906, the said lease was cancelled,
and the Minister of Militia was empowered to lease the said property to the
said City of Vancouver for park purposes for 99 years renewable ; the lease is
to be made to six Commissioners, three to be appointed by the Governor-
General in Council, and the remaining three by the City of Vancouver ? A.
Yes
" Q. And said lease to be made generally on the lines of the agreement
under which Her Majesty's Government has leased Point Pleasant Park, at
Halifax, N.S., to certain directors representing-the City of Halifax? A. Yes.
" Q. Then the Minister recommends that the Order-in-Council of the
31st of August, 1906, be amended to provide for the leasing to the Corporation
of the City of Vancouver of the property in question instead of to the six
Commissioners, the lease to be otherwise under the same conditions as contained
in the said Order-in-Council of the 31st of August, 1906 ? A. Yes.
" Q. The document I have just read ; the document first mentioned is*
Exhibit 3—then the lease was executed, I believe, on the 1st of November,
1908—has that been put in ? A. Yes.
" The Commissioner (Mr. Haydon)—I do not think so.
" Mr, Nesbitt—Have you a copy of that, Mr. Jarvis ?
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 26
Sir P. Borden
Evidence on
Commission
taken
19th Nov.
1909
continued
R 64
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 26
SirF.
Borden's
Evidence
on
Commission
taken
19th Nov.
1909
continued
was
I Mr. Jarvis (Assistant-Deputy Minister of Militia)—No; but a copy
I furnished.
I Mr. Nesbitt—That lease will'be put in and marked Exhibit
I Mr. Haydon—What is the date ?
"Mr. Nesbitt—The first of November, 1908."
(Sir F. Borden's Evidence continued on page 76.)
Mr. Davis—Now from that on, I object.
Mr. Macdonald—If your Lordship rules against me, that Sir Frederick
Borden's evidence is not admissible, then 1 will not call other evidence which I
have to show what was the intention with respect to the lease ; evidence on the
same line as Sir Frederick Borden's.
By the Court—I do not wish to shut out part of your case. You had
better go on with your evidence, and argue the objection afterwards. Allow it
in subject to objection.
Mr. Macdonald—I will call Mr. Alexander.
i
No. 27
R. H.
Alexander
Examination
15th Dec.
1909
No. 27.
RICHARD HENRY ALEXANDER, Sworn :—
(Examined by Mr. Macdonald).
Q. How long have you lived here? A. I came to
I came to Vancouver in 1877.
Q. You are now General Manager of the Hastings Saw Mill Company ?
the Province in 1862 ;
A.
Local Manager.
Q. Do you know this island in question ? A. Yes.
Q. When you first knew that island, did it have its present name ?
By the Court—" This Island" means Deadman's Island ?
Mr. Macdonald—Yes.
A. No.
Q. Did the property adjoining have any name in those days ? A. You
mean the whole peninsula ; it was known as " The Reserve."
By the Court—Including what is now known as Deadman's Island? A;
Yes. 30
Mr. Macdonald—There was a survey line at what point cutting off the
reserve? A. The West line of Lot 165.
Q. That is at present the line that cuts off the City from the park property ?
A. I don't know whether the City extends over the park property. 1 don't
know whether the reserve is included in the City boundary.
Q. As far as Lot 185 is concerned, from that on is used as a park ? A. Yes.
Q. You say this island was known with the peninsula as the reserve—what
reserve ? A. Well, it used to be spoken of some times as an ordinancu reserve
or military reserve.
Mr. Davis—And sometimes naval reserve ? A. I never heard it called a 40
naval reserve.
Mr. Macdonald—This island in question, was it occupied as a pre-emption ?
A. No, 65
Q. How soon did the pre-emption take up land along Burrard Inlet ? A.
There were certain pre-emptions—several of these lots that are now known as
181, 182, 183, 184, 185, were in existence when I came.
By the Court—Where are those lots—across the inlet ? A. No, east of
the land, the sawmill is on Lot 196.
Q. Do they form part of the City of Vancouver or lie east of the City ?
A. They form a portion of the City of Vancouver.
Q. Then this peninsular now termed Deadman's Island had no lot number ?
As far as you know it never had a district lot number ? A. No.
10 Mr. Davis—I don't dispute that.
Mr. Macdonald—Then from that time, 1879, as to the use of the property
in question known as Deadman's Island, you were one of the Park Commissioners ?
Mr. Davis—Does my learned friend think it necessary to call further
evidence on this line ? I am not going to call any evidence to contradict the
evidence given by the other witnesses on this line.
Mr. Macdonald—I want to show the use that was made of it generally ; not
only on one, two, or three occasions.
A. I was in the City Council in 1887 and 1888.
Q. You were one of the Park Commissioners ? A. Yes.
20 Q. How did you treat this particular piece of property as Park Com
missioners ?
Mr. Davis objects.
By the Court—Do not the minutes of the Board show that ?
Mr. Macdonald—The minutes of the Board don't show the details of what
they do.
By the Court—Would not the minutes be the best evidence of what they
did ?
Mr. Davis—Can Mr. Alexander give us any more than we already have.
The other witnesses stated that the City exercised control over Deadman's
30 Island; they built a foot bridge and a trail, and did some slashing and put out
some fires. I am not going to call any evidence to contradict the evidence of
that kind. Why are not six men as good as a dozen ?
Mr. Macdonald—If my learned friend will admit that the Park Board and
the public in so far as they could used the island for park purposes up to the
Ludgate incident ?
Mr. Davis—I won't admit that the public used it at all, any further than
the evidence has gone. I say I am not going to call any evidence to contradict
the evidence which has already been given by the witnesses Tatlow and Tisdall
which is practically the same as Mr, Alexander is giving. I don't think the
40 Court will disbelieve this evidence.
Mr. Macdonald—My learned friend wants to put the evidence to tw
three witnesses.
Mr. Macdonald—How did you treat this particular piece of property ?
Mr. Davis objects.
A. As a portion of the park.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 27
R. H.
Alexander
Examination
15th Dec.
1909
continued
ro or 1
1
66
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 27
R. H.
Alexander
15th Dec.
1909
Cross-
examination
A. I think until
Q. How long did you remain as a Park Commissioner ?
1888, the end of 1888.
Q. You can't say from recollection whether the bridge was completed before
your term of office or after ? A. It was not completed.
Q. Was it in progress ? A. It had been proposed and passed.
Cross-examined by Mr. Davis—
Q. The public, the small public there was prior to 1887, used to go over and
use the island for picnics before the Order-in-Council was passed at all ? A.
Well, I don't know whether they did. When any person got drowned here they
used to bury them there; that is how the island gets its name.
Q. That was prior to 1887 ? A. Prior to 1887.
Q. Prior to the incorporation of Vancouver as a City ? A. Yes.
Q. The public simply made use of it as if it were a public property ; you
sav they used it for a burying ground and there never was any objection, you
say, raised by anybody ? A. No.
Mr. Macdonald—That was in the early history of the property ? A. Yes.
Mr. Davis—Prior to 1887.
10
No. 28
G. S.
McOonnell
Examination
15th Dec.
1909
I was for a year in
A. I think
No. 28.
GILBERT S. McCONNELL, Sworn :— 20
(Examined bz Mr. Macdonald).
Q. You were one of the Park Commissioners ? A. Yes .
the early days.
Q. Who was your chairman at that time ? Mr. Fergusson ?
Mr. Alexander.
Mr. Davis—This whole evidence is objected to.
Mr. Macdonald—Did you have anything to do with that property that is
now in question, known as Deadman's Island ? A. Only in the ordinary way; it
was understood to be one parcel, Deadman's Island and Stanley Park.
Mr. Davis objects. 30 \
Q. Did you know what was being done with respect to it ? A. Not till I
left the Commissioners.
Q. During your term did you have anything to do with building the bridge ?
A. I put the by-law before the people which was carrii d for the purpose of
putting the trail around the island and making bridges.
Q. And among other bridges was that bridge? A. Both bridges were
included.
Q. Did you personally know anything as to the locality lying between the
island and the mainland ? A. Yes, was often over there and knew it very well.
Q. When there is no bridge what is the means of access-to the island ? A. 40
At low water you can walk over very easily. 67
tide.
Q. Have you done that more than once ? A. Several times.
By the Court—With ordinary walking boots ? A. Yes, that
is
at lo
w
Mr. Macdonald—Do you remember the occasion of the bridge going out ?
A. No, I don't remember the occasion.
Q. Have you been over since the bridge went out, from the mainland to the
island ? A. Yes.
By the Court—In the last eight years ? A. Yes.
Mr! Macdonald—There is some furth r documentary evidence I wish to
10 put in. It is in the return and starts with the letter—one of the letters which is
attached to the commission (Exhibit 28).
Mr. Macdonald—The first letter Earl Aberdeen, 25th August, 1898, to the
Honourable Dr. Borden, enclosing memorial of the City Council.
Mr. Davis—Are you putting in that memorial ?
Mr. Macdonald—Dated 1st August, 1898.
Then letter from the Honourable Mr. Borden addressed to G. R. Maxwell,
Esq., dated August 26th, 1898, and the letter of Brigadier Macdonald of the
same date.
Mr. Davis objects. If my learned friend puts in the letter from Mr.
20 Borden to Mr. Maxwell then he should put in the further letter from Mr. Borden
to Mr. Maxwell dated the 3rd of September, merely correcting a clerical error.
Mr. Macdonald—I think my learned friend's request is very fair.
Also the letter back from Mr. Borden to Mr. Maxwell of the 3rd of
September, 1898.
All marked one exhibit, "28."
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 2S
G. S.
McOonncll
Examination
15th Due.
1909
continued
30
No 29.
JOHN MoMILLAN, Sworn:—
(Examined by Mr. Macdonald.)
Q. You are one of the Aldermen of the city ? A. Yes.
Q. You were Alderman last year? A. Yes, 1906, 1908 and the present
year.
Mr. Davis—Is this evidence on the same line ?
Mr Macdonald—No ; in connection with the same objection raised on Sir
Frederick Borden's evidence.
40 Mr. Davis objects.
By the Court—I am reserving decision on these objections until we get to
the end of the case, and then they can all be dealt with nunc pro tunc. I am
trying to gather up all these objections to deal with them at one time and then
they can be wiped out or not as decided.
Mr. Maodonald—I would like to continue Sir Frederick Borden's evidence,
and have your Lordship's rulin
No. 29
J. McMillan
Examination
15th Dec.
1909 -
lS- 68
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 29
J. McMillan
Examination
15th Dec.
1 909
continued
By the Court—I prefer to deal with the documentary evidence all at once.
We might just as well have all the evidence taken and then discuss these
documents later.
Mr. Macdonald—In view of your Lordship's ruling, I will proceed with the
examination of this witness.
Q. In connection with this lease of Deadman's Island did you, as an Alderman,
intend that any rights you should have, should be lost under the new lease ?
Mr. Davis objects.
A. No.
Q. Was there any intention on your part or as far as you know on the part 10
of the Council to allow the Ludgate lease or any lease in ahead of the city's
lease? A No.
Mr. Macdonald—I am practically through, with the exception of Mr.
Buscombe, who was down at Ottawa, and had a personal interview with Sir
Frederick Borden in connection with the lease, in his capacity as Mayor.
By the Court—A conversation between the landlord and the person
claiming tenancy. Was Ludgate there ?
Mr. Macdonald—Our contention is Ludgate had no lease.
By the Court—This very document was in existence at that time ?
Mr. Macdonald—Yes. 20
By the Court—I will not admit that.
(Adjourned at 4.30 p.m.)
No. 30.
No. 30
P. Buscombe
1909
December 16th, 1909, at 11 a.m.
lamination FREDERICK BUSCOMBE, Sworn :—
1 ith Dec. I
(Examined by Mr. Macdonald).
Mr. Davis—My learned friend having intimated the nature of Mr.
Buscombe's evidence, I am going to object to it, and I presume one objection will
cover all the questions. Ft will not be necessary for me to repeat the objection. 30
By the Court—No.
Mr. Davis—-It goes in, in the same way as the evidence of Mr. McMillan ;
if your Lordship finally decides it is not admissible, then it goes out of the notes
altogether.
By the Court—Yes ; were it not that a considerable amount of this kind of
evidence has already gone in on these terms, I would not hesitate to exclude it.
I think it would be better to let it in on these terms.
Mr. Macdonald —On these terms ?
By the Court—Yes ; it does not prejudice you in the slightest way ; we
will receivethe evidence and discuss its admissibility later with the other 40
evidence objected to.
Mr. Macdonald—How many years have you been a resident of the City of
Vancouver ? A. Between 18 and 19. 69
Q. When did you first have an official position in connection with the city ?
A. 1905 as Commissioner.
Q. Prior to that, in 1899, you were one of the delegation that went down to
Ottawa in connection with the Deadman's Island affair ? A. Yes ; I was a member of the Board of Trade at that time.
Q. As I understand it the citizens met and appointed a delegation to go
down, and you formed one of them ? A. Yes, that is correct.
Q. Prior to that had you any knowledge of this property in dispute known
as Deadman's Island ? A. Nothing except in a general way as a citizen.
10 Q. In the early history of the city the park was understood to be part of the
western portion of the city ? A. I believe so.
Q. Do you as a citizen know whether that property was improved by the
city ? A. The park, yes.
Q. Up to the occasion of the Ludgate incident, in round figures, what would
you say was spent on the park ? A. I have no idea.
Q. The statement made in the memorial presented at Ottawa $100,000 spent
at that time ? A. I should think that quite reasonable.
Q. Up to 1899 on the park property ?
By the Court—Stanley Park ?
20 Mr. Macdonald—Yes, on the park property ; of which you do not know
how much was spent on this particular piece of property known as Deadman's
Island ? A. I do not know.
By the Court—Spent by the city ?
Mr. Macdonald—Yes.
Q. You became Mayor in 1905 ? A. Yes.
Q. You were Mayor for how many years ? A. Two years.
Q. Now, from the time that you first had knowledge of this piece of property
and up to the time of the Ludgate incident, how did you consider this property
with reference to the mainland ? A. I certainly considered it part of the park.
30 Q. How was it treated ? A. In no way particularly, except I happened to
know there was a bridge connecting the so called Deadman's Island with the
park.
Q. Now in 1905 when you were Mayor, was a decision yet arrived at with
respect to the litigation then in progress ? A. I am under the impression it was
still in motion.
Mr. Davis—It is admitted.
Q. In 1905 the then pending litigation between the Dominion and the
Province as to title, was not settled ? A. Exactly.
Q. In 1906 you were Mayor ; did you go to Ottawa at that time in conuec-
40 tion with matters of a private nature ? A. I did ; I went east, not to Ottawa ;
I went east on private business and went to Ottawa.
Q. Did you have occasion while in the east to see Sir Frederick Borden in
connection with the matter of the Island ? A. I did, not the island, but the park
lease.
Q. Was that before or after the decision of the Privy Council ? A. lam
not certain ; I can fix the date of my visit to Ottawa, approximately;
1906, that was the occasion.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 30
P. Buscombe
Examination
16th Dec.
1909
continued
N
ovemDer
bei 1
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
Evidence
No. 30
P. Buscombe
Examination
16th Dec.
1909
continued
70
Mr. Macdonald—At that time the decision of the Privy Council had been
rendered ?
Mr. Davis—Yes.
Mr. Macdonald—Now at that time did you ask for a lease again ? A. I
did.
Mr. Davis objects.
Q. Was there any discussion at that time as to the Ludgate Lease ? A. As far
as I can reflect, none whatever.
Q. Was there any discussion particularizing Deadman's Island ?. A. I think
not. 10
Q. Is this memorandum drawn up by Mr. Macdonald practically correct as
to the result of your conversation ? A. Practically correct, if it is what you
showed me.
Q. What was decided then as to the lease, as between the three of you ? A. .
The particular matter which we were discussing was the granting of a lease to the
Yacht Club of a portion of the foreshore included in that application ; the
question of area; as a matter of fact we had not yet received a complete park
lease ; the lease of the park had been sent up, but it was drafted in terms not
satisfactory to the Conine 1, and it had been returned. It had been drafted in a
mechanical way in one of the departments. 20
Q. The result, however, of the interview between the three of you was that .
there was to be a lease come along some time ? A. Yes.
Q. But during your term of office you did not receive any copy ? A. We
received a copy, which was returned ; we did not receive a completed lease.
Mr. Macdonald—I file letter from Mr. MacPherson to Sir Frederick Borden
of 27th November, 1906.
Mr. Davis objects.
(Marked Exhibit 29).
Mr. Macdonald (to Mr. Davis)—After looking at return on page 30, I ask
you to admit, without going into the evidence, that the address of Mayor 30
Oppenheimer on the 5th of January, 1891—(No. 6)—| During the past year a
considerable amount of work has heen done in the City parks."
Mr. Davis—If I knew it was so.
Mr. Macdonald—Will you admit that this was published in a newspaper ;
then we can di.-cuss whether it is evidence or not—in the 1 World" under date
of January 5th, 1891.
Mr. Davis—If my learned friend can make any use of the paper I will
admit this is the " Daily World," and it speaks for itself. I am quite content it
should go in on the same terms as the other.
Mr. Macdonald—In the "World" newspaper published in the City of 40
Vancouver on January 5th, 1891, containing a copy of the inaugural address of
Mayor Oppenheimer, the following statement appears :—
' PARK DRIVES.—During the past year a considerable amount of work
" has been done on the City parks. In Stanley Park the grounds leased
;' by the Brocton Point Athletic Association have been cleared and
'•' levelled and fenced ; a bridge has been built to Deadman's Island and a
,x new trail has been cut in order to make more accessible the beautiful
" spots in that lovely domain," 71
Mr. Macdonald—I put in question 96 of Mr. Ludgate's examination for
discovery—
:' Q. When did you first learn that the City of Vancouver had a written
"lease of this property ? A. Oh, I didn't know at all about that; I never
I paid the slightest attention to their position regarding it."
Mr. Macdonald—In order to show the character of the issue tried in the
case above referred to—Deadman's Island case—I propose to put in all the
pleadings, and the Appellant's case and the Respondent's case in the Privy
Council, and then of course refer the Court to the reasons for judgment in the
10 reports.
Marked Exhibit | 30."
Mr. Macdonald—For your lordship's convenience the case is referred to in
8 B.C.R., page 343 ; 11 B.C.R., page 2o8, and Privy Council Law Journal, 75.
RECORD
In the
Supreme
Court of
British
Columbia
Defendant's
Evidence
No. 30.
P. Buscombe
Examination
16th Dec.
1909
co ntinued
No. 31.
PLAINTIFFS' EVIDENCE IN REBUTTAL. piafntifS
__ _ T .p .. „. _. , . ~. rxi . Evidence in
Mr. Davis—1 put in first the letter of Colonel Pmault to the City Clerk. Rebuttal
Vancouver, dated April 15th, 1899, being Exhibit 47 in the other action. 1909 De°'
Mr. Macdonald—I object to this on the ground that it is a letter from the
20 Deputy Minister of Militia and Defence, written after the so-called Ludgate lease
was given. I claim that no letter written by the Department can be used as
evidence to support the Plaintiffs' case or offset the Defendant's case, even if
written before, and certainly not if written after the lease was said to be given.
Mr. Davis—My learned friend put in at considerable length evidence of a
petition to the Government; this is the answer of the Government to that
petition, and as he has put in one side, this should also go in. It can go in
subject to objection the same as the other.
By the Court—Yes.
Mr. Davis—The date of the petition which was presented to the Govern -
30 ment is 9th March, 1899, and this answer to that petition is dated 15th April,
1899. That was the petition to set aside the Ludgate lease.
Letter, April 15th, 1899, Exhibit 31.
Mr. Davis—I put in next exhibits in the other action, numbers 24 and 25
and 26. I will just put in these two, " 24 " and " 26," as one exhibit.
Marked Exhibit " 32."
Mr. Macdonald—I object on the ground that this Plaintiff cannot use as
evidence statements made by officials of the Department. But if they go in
Exhibit " 25 " should also go in here.
Mr. Davis—I put in certified copy of the Order-in-Council of the 31st of
40 August, 1906 (Exhibit 3 on the action).
Marked Exhibit "33."
Mr. Davis—I ask my learned friend to produce lease to the City of
November 1st, 1908. lean put in a certified copy. It is proved in connection
with the examination of McQueen.-
Mr. DavIs (to Mr. Macdonald)—Will you admit this ?
Mr. Macdonald—So far as the City is concerned; but the other is objected to. 72
RECORD
In the
Supreme
Court of
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Columbia
No 31
Plaintiffs
Evidence in
Rebuttal
16th Dec.
1909
continued
Mr. Davis—This is a certified copy.
Mr. Macdonald—So far as the signatures being what they purport to be
but I am reserving all rights as against the effect of the document.
By the Court—You admit the physical execution ?
Mr. Macdonald—Yes.
Lease dated 1st November, 1908, marked Exhibit | 35."
Mr. Davis—I ask my learned friend to produce letter to the City Clerk
from the Acting-Deputy-Minister of Militia and Defence of the 20th August,
1906 (Number 55 on the action).
Mr. Macdonald—That is objected to on the ground that it is a statement 10
made, not binding.
Marked Exhibit j 36."
Mr. Davis—I ask my learned friend to produce letter of 11th August,
1906, referred to in this last letter.
Produced and marked Exhibit | 37."
Mr. Davis—I put in letter ofthe Acting-Under-Secretary of State to Sir
Adolphe Caron, Minister of Militia, ofthe 25th June, 1886.
Marked Exhibit "38."
Mr. Macdonali:—I don't think this should be evidence, except as to the
fact of the letter; it is not as evidence of any facts in it. 20
Mr. Davies—This is a letter merely acknowledging receipt of the petition 9
to Ottawa; the one Mr. McQueen referred to as being sent. There is no fact in
it, except the receipt of the petition. It is only proving the receipt of this
particular petition.
Mr. Davis—I now put in ceitain correspondence between the City and the
Department of Militia and Defence in October, 1908, with reference to the lease
to the City, beginning September 28th, 1909, from McEvoy to Deputy;
telegram from the Mayor to McEvoy at Ottawa and letter from the Deputy
Minister of Militia to the City Clerk, 6th October, 1908, and the memorial
referred to in the telegram. 30
Memorial marked Exhibit "39."
Letter of October 6th, 1908, Exhibit 1 40."
Mr. Macdonald—It is not admitted that such a letter as that of October
6th, 1908, was received. I have not a copy of it. I have not that letter.
Mr. Davis—I ask my learned friend to produce minute books of the Citv
Council of September, October and November, 1908.
Produced by Mr. McQueen, City Clerk.
Mr. Davis—This is an extract from the minutes of the City Council
of September 28th, 1908, at a meeting of the Council, at which His
Worship the Mayor, and Aldermen Hepburn, Mills, Morton, McMillan, McGuigan 40
were present, and also Alderman McSpadden.
"Moved by Alderman Morton, seconded by Alderman McMillan, that
" application be made to the Dominion Government for a 99 years' lease of
" the reserve known as Stanley Park ; also make application to the Dominion
" Government for a perpetual lease ofthe Admiralty Reserve on the North
" Ann, near Barnett." 73
Also :
October 19th, 1908, at a meeting at which there were present His Worship
the Mayor, and Aldermen Calland, Hepburn, Campbell, Mills, Morton, McMillan,
McSpadden, McGuigan, Prescott and Stewart.
I Moved by Alderman Morton, seconded by Alderman McMillan—
I That His Worship the Mayor and the City Clerk be authorised to
I sign a lease for Stanley Park and the Admiralty Reserve at Barnett
I subject to the approval of the City Solicitor. Carried."
Also:
10 December 14th, 1908, there appears in the minutes of that meeting, among
the communications received from A. McEvoy enclosing—
Mr. Macdonald—Are you going to have the City Clerk sworn ?
By the Court—Mr. Davis is reading from the minutes in the books
produced by the City Clerk.
Mr. Davis—There appears in the minutes of that meeting among the
communications received one | from A. McEvoy enclosing perpetual lease to the
City of Vancouver of Stanley Park, duly executed by the Dominion Government. Referred to motions."
Also on December 28th, 1908, Meeting of Council—Finance Committee
20 Report of December 24th, this item: | From A. McEvoy enclosing an account
for $1,000 legal expenses and fees in connection with Stanley Park lease.
Recommended that account be paid."
Mr. Macdonald—I understand the witness has not been sworn, so I will
not be in a position to cross-examine him.
RECORD
In the
Supreme
Court of
British
Columbia
No. 31
Plaintiffs-'
Evidence in
Rebuttal
16th Dec.
1909
continued
I
No. 31A.
GEORGE F. BALDWIN, Sworn :—
(Examined by Mr. Davis).
Q. You are City Treasurer ? A. City Controller.
30 Q. You have heard the minutes read by me from the minutes of the City
Council recommending an account of Mr. McEvoy being paid in connection with
services re Stanley Park lease ? A. Yes.
Q. Was that $1,000 paid by the City? A. Yes; paid in two payments,
one of $50 and the other $950 ; two vouchers.
Mr. Davis—I don't care about filing the vouchers.
Q. When were they paid ? A. October 14th, 1908, $50; December 30th,
1908, $950. .
Q. Now, there was a recommendation of the Council to the effect that the
rental for Stanley Park lease for the next 99 years be paid. Was that rent paid
40 to the Dominion Government ? A. Yes,
No. 31a
G. P.
Baldwin
Examination
16th Deo.
1909
uni] -d
RECORD
In the
Supreme
Court of
British
Columbia
Plaintiffs'
Evidence in
Rebuttal
No 31a
G. F. |
Baldwin
Examination
16th Dec.
1909
continued
Cross-
examination
74
Q. $99.00 was paid to the Dominion Government as rental for 99 years ?
A. No, not exactly that; we tendered the amount, but they declined it;
returned it, and asked that it be paid each year.
Q. A cheque was sent to the Dominion Government, and they returned it,
and asked that it be paid each year ? A. Yes; there is the voucher for one
dollar for the year 1st of November, 1909.
Q. That would be the first year ? A. Yes.
Q. How are you paying it, in advance ? A. Yes.
Q. Then you have paid two 3Tears? A. Yes; first of November, 1909, up
to 1st November, 1910. 10
Cross-examined by Mr. Macdonald—
Q. How many years have you been a resident of the City ? A. Since
April, 1886.
Q. Have you known pretty well the history of this park property ? A.
Yes ; to a considerable extent.
Q. Have you been a City Official ? A. All that time.
Q. Now, at any time during your being a City Official, and from the time
that the Ludgate lease first cropped up, has there been any* intention to allow
the Ludgate lease to come in prior to the lease the City held ?
Mr. Davis objects. -^^H
A. No.
Q. Now, when this money was paid for the rent, and the money was paid 20
to Mr. McEvoy, was there any intention at that time to allow the Ludgate lease
to come in ahead of the City in any way ?
Mr. Davis objects.
A. No.
■ Mr. Macdonald—It is admitted that the condition always has been that
the City claimed the island.
Q. From your knowledge as a'City Official, has there been any claim made
upon that island from the time the Order-in-Council was passed ? A. On the
part of the City ?
Q. Yes. A. Yes; I always understood so. I understood that the City 30
claimed jurisdiction over that.
Q. Would you pass the vouchers for work done on the park property ?
A. Yes.
Q. Would the work done be referred to generally, or would it be segregated ?
A. Generally it is.
Mr. Davis-—I put in—although I don't think it is necessary. Perhaps my
learned friend will consent that the City of Vancouver Incorporation Act of
6th April, 1896, may be referred to, and the description ofthe City limits therein
contained ?
Mr. # Macdonald—Without formally putting the Act in. But you may as 40
well put it in though.
Mr. Davis—No, I am not; but I don't object to your doing so. There are
a number of private Acts which are really public Acts, and in a sense they prove
themselves. 75
By the Court—Of course judicial notice can be taken of them.
Mr. Davis—I draw special attention to Section 2 of that Act.
Mr. Davis—That is our evidence in reply.
No. 32.
Mr. Macdonald—I would like to know, before I proceed, as to what your
Lordship understands to be the arrangement with respect to Sir Frederick
Borden's evidence and General Macdonald's evidence which has been tendered
and objected to. My learned friend objected to certain portions of Sir Frederick
10 Borden's evidence, and the whole of General Macdonald's evidence, on the ground
that we were endeavouring to give evidence of intention with respect to a written
document. It is only fair to state that we submit that on two branches of the
case. I would like to know now, before deciding whether I will close my case or
not. I am tendering that not only on the ground of intention, but also as to
whether there was surrender or not.
Mr. Davis—I object to Sir Frederick Borden's evidence from that point—
where my learned friend stopped reading—"First November, 1908," and to all
General Macdonald's evidence.
Mr. Macdonald—I thought it would be better to show on the notes, the
20 questions.
By the Court—The stenographer might copy off the questions objected to.
Mr. Macdonald—The return at the end of Exhibit " 19 " to the Legislative
Assembly does not show on its heading what it purports to be. It is explained
by Exhibit No. 7 ofthe Deadman's Island case found at page 283 of the Record.
Under the head of § Return " it shows what it is there.
The following are the questions of Sir Frederick Borden's evidence (on
commission) and Brigadier-General Macdonald's evidence which have -been
tendered and objected to :—
" Q. That was intended to follow the Order-in-Council ? A. —
l' Q. Had you any notion of in any sense altering the Order-in-Council ?
30 "A. —
I Q. That was your sole authority for that lease ? A. —
" Q. I see in that, that it is made subject until their determination to
"any existing leases of portions of said land—what lease was referred to
"there? A. —
" Q. The Royal Yacht Club of Vancouver ? A. —
" Q. That is the only thing you were excepting ? A. —
" Q. Now, I want to ask you whether you were aware of a lease to
" what is known was Deadman's Island ? A. —
" Q. What was your notion as to whether that was included in Stanley
40 " Park or not ? A. —
" Q. You were not intending to make a lease ofthe Park subject to any
" Ludgate lease ? A. —
" Q. In other words, the lease of 1908 was supposed by you to carry out
"the original Order-in-Council of 1887 and the subsequent Orders-in-
" Council? A. —
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 32
Sir P. Borden
Questions of
Evidence
taken on
Commission
n 76
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 33
Brigadier-
General
Macdonald
Questions of
Evidence
taken on
Commission
No. 33.
£ BRIGADIER-GENERAL MACDONALD, Sworn :—
"(Examined by Mr. Nesbitt, KG, on commission).
I Q. General Macdonald, it is to you that Sir Frederick Borden referred
I as having had charge of this matter, and charge of the papers in the
I Department ? A. —
I Q. Have you heard his statement ? A. —
I Q. Do you corroborate everything he has said ? A. —
Court adjourned for argument.
No. 34
Sir P.
Borden's
Evidence
taken on
Commission
continued
No. 35. 10
Examination op SIR FREDERICK BORDEN for Discovery, taken under
Commission (Objected to):—
Q. That was intended to follow the Order-in-Council ? A. Based on the
Order-in- Council.
Q. Had you any notion of in any sense altering the Order-in-Council ? A.
No.
Q. That was your sole authority for that lease ? A. Yes.
Q. I see in that, that it is made subject until their determination to any "
existing leases of portions of said land —what lease was referred to there ? A.
Well, there had been a lease of a bit of the foreshore of the park, I suppose to a 20
yacht company.
Q. The Royal Yacht Club of Vancouver ? A. Yes, I meant a club.
Q. That is the only thing you were excepting ? A. So far as I know.
Q. Now I want to ask you whether you were aware of a lease of which was
known as Deadman's Island ? A. Yes.
Q. What was your notion as to whether that was included in Stanley Park
or not ? A. Well, —
Mr. Chrysler—Is not that objectionable ? Would it control the thing in
any way ? Suppose he was mistaken about it. Put it as objected to; it may be
for them out there to say. 30
Sir Frederick Borden (the witness)- Perhaps I had better state it in my
own way. I never have been in Vancouver or in British Columbia at that time
and therefore I knew nothing personally about it. But in the Department there
was an officer at that time who was a civil servant, now Brigadier Macdonald,
Quartermaster-General, who had the custody of all military lands, and I understood from him—it is the only source from which I could understand it—that the
park did not include Deadman's Island, that is, that there were two separate properties.
Q. You were not intending to make a lease of the park subject to any Lud-
A. The question never arose. 40
gate Lease ? Ifi
Q. In other words, the lease of 1908 was supposed by you to carry out the
original Order-in-Council of 1887 and the subsequent Orders in-Council ? A.
Perhaps I may say that it states that in the lease itself—the second Order-in-
Council was based on the first and our intention was to base the lease upon the
last Order-in-Council.
Mr: Chrysler—The lease that you referred to is exhibit 51.
Nesbitt—Yes.
Chrysler—That is all you want to ask Sir Frederick ?
Nesbitt—Yes.
This concluded the examination of the witness.
Mr.
Mr.
Mr.
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence •
No. 34
Sir P. Borden
Evidence
taken on
Commission
continued
10
No. 35.
Examination for Discovery of THEODORE LUDGATE :—
(Questions put in by Dependant's Counsel).
1. Q. You are one of the Plaintiffs in this action ? A. Yes, sir.
2. Q. I see that your co-Plaintiff is named the Vancouver Lumber Co. in
the style of the clause ? A. Yes.
3. Q. Who composes Vancouver Lumber Co. ? A. I do—The Vancouver
Lumber Co.
4. Q. And you have always been the sole member of the Vancouver
Lumber Co. ? A. Yes, sir.
5. Q. Then the name " Vancouver Lumber Co. " is really simply Theodore
Ludgate? A. Yes, sir.
20 6. Q. Who acted for you in applying for the lease under which you are
claiming this land in action, originally? A. Well, Mr. Maxwell, who was then a
member, presented the matter to the Government and I had some surveys—map
of surveys of the property which 1 presume I showed Mr. Maxwell and he
showed them to the Government. I may say, then I speak of the Government,
the Minister of Militia, then Frederick Borden and now Sir Frederick Borden,
and some Frenchman who is dead—I have forgotten his name—and a Colonel
Macdonald who is now a Quartermaster—I don't know just what he is.
7. Q. He is still in the same department ? A. Well, I don't know that
Mr. Macdonald ; he was Colonel D. A. Macdonald.
8. Q. But what solicitor did you have acting for you in pressing your
claim for this lease ? A. I had no solicitor at all.
9. Q. You just went yourself personally to Ottawa about the matter, did
30 you ? A. Yes, sir.
10. Q. You feel quite sure you had no legal solicitor acting for you at all
at that time ? A. Oh yes, quite satisfied. I had no occasion for a solicitor.
Mr. Macnelll—How does any question of this kind arise on this examination ? I must instruct Mr. Ludgate not to answer any questions of that kind;
No. 85
Examination
for discovery
of Plaintiff
T. Ludgate
BB RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued
78
they do not arise in either the Statement of Claim or Statement of Defence who
he employed or saw in connection with this lease at Ottawa, and (to witness)
you need not answer.
Mr. Macdonald—Have you the lease here? A. Well, I don't know
whether it is up in your office or not, Mr. Macneill. If it is not you can get it
any time you wire.
11. Q. Well, I am going to ask for an adjournment of this examination for
the production of the lease. I have never seen it yet.
Witness—At the time I was in the Police Court some months ago, Mr.
Marshall was there and the original was shown to the Judge and he accepted 10
what Mr. Marshall said was a copy of the lease and he gave the Judge in the
Police Court the copy and he said that the original lease had been so mauled
around it had become pretty frail and he would like to take care of it.
Mr. Macneill—The Statement of Claim sets it out verbatim.
Mr. Macdonald—I want to see the original lease.
Mr. Macdonald—Have you given notice to produce ?
Mr. Macneill—On this examination ?
Mr. Macdonald—Yes, on this examination.
Mr. Macneill—I don't think we got it back from Seattle.
Witness—You can get it any time you wire. . 20
Mr. Macneill—If you want the lease it must be only for the purpose • of
gaining time, because there is absolutely nothing on that lease or in it that is not
set out in the Statement of Claim.
Mr. Macdonald—I am not going to disclose the reason why, but I want that
lease—the original. In your affidavit on Production you speak of a copy of the
lease.
Witness—Mr. Macdonald, I think there is one thing that occurs tome now
that I had better make clear that might apparently conflict with what I have
already said : the first lease got from the Dominion Government was a 25 year
renewal lease carrying with it the right of confiscation. 30
Mr. Macneill—Both documents are set out in the Statement of Claim.
Witness—But here is the thing : Mr. D. G. Macdonald, who was going to
Ottawa the year following or some considerable time later, said that he would
take this down with my consent and put up the whole matter, with the result
that he got the lease widened and made more useable. Of course that is shown
on the next part in addition to the lease. I do not think of that when I said
first there was no lawyer. You see that he was thus at that time my solicitor in
getting that addition to the lease.
Mr. Macdonald—Q. How does it come that the affidavit on production only
speaks of a copy of the lease being produced and not the lease itself ? A. Are 40
you asking me ?
12. Q. Yes. A. I don't understand that question.
13. Q. Well you made an affidavit on production in which you stated that
you had certain documents which pertain tovthis action and amongst those you
referred to a copy of a lease. A. Oh, we can get the original lease here; not
to-day, you know. 79
Mr. Macneill—It is not in Mr. Ludgate's possession ; it is held by somebody else ; Mr. Ludgate can get it but he will have to borrow it, and if he gets
it up here he has got to give it back. It is in Seattle, and Mr. Ludgate has not got
possession of it, but they sent it up to us and we can get it again, for that matter.
Witness—Yes.
Mr. Macdonald—That means according to Mr. Macneill's statement that
some one else has the lease, or has a claim upon it in the meantime ? A. For
Court purposes the lease could be got there.
14. Q. Who is the party? A. That is a Bank, sir.
10 (To Mr. Macneill)—Who is the Bank ?
Mr. Macneill—I cannot tell you offhand.
Witness—Well, if I was wiring for the lease now, I would wire to Borden and
Gashan of Seattle.
Mr. Macdonald—Is that where the original lease is at present ? A. That is
where it is now, and they will send it up any time you want it.
15. Q. But you do not know the name of the Bank? A. No. I do not
know. I do not know whether it is in their own vaults in the New York Block
or whether it is, as Mr. Macneill says, in the bank.
16. Q. But at any rate this firm of Borden & Gashan know exactly where
20 it is? A. Yes.
17. Q. How long has this lease been in that position, that is, that somebody
else had control of it ? A. Just a few months.
18. Q. Before the commencement of this action? A. On the part of the
city?
19. Q. Yes, the commencement of this action, this present action?
Witness (to Mr. Macneill)—You know about that, Mr. Macneill.
(To Witness)—If you don't know, simply say so. A. Well, I don't know.
Mr. Macdonald—As a matter of date, would it be about the time you sold
the timber limits to Gashan ? A. Yes; I did not sell them, I simply got an
30 advance on the timber limits.
Mr. Davis—We will get you the lease any time you want it.
Mr. Macdonald—I want the original.
Mr. Davis—Well, we will get it for you.
Mr. Macdonald — (To Witness^—-Then you say that subsequent to the
getting of the original lease you got the lease extended by a certain clause being
rectified or changed ? A. Yes.
20. Q. That would be about a year after ? A. Well, sometime.
21. Q. Where is the amended agreement or amended lease ? A. Well, that
is all on the one.
40 22. Q. However, it was all one thing ? A. Yes, it is altogether, just the
same as this copy here shows, just the original—it is all on one paper. You
have a copy there, it shows the whole lease as it stands to-day.
23. Q. Your recollection is, you say, that the new lease so termed—follows
right on the old ? A. Well, it was made some—perhaps a year or so later.
24. Q. I do not mean that, but in the writing that contains the new lease,
so termed, it follows right on the same paper as the old lease ? A. Yes,
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued
m 80
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued
25. Q. Now when you obtained this original lease did you not have the
Hon. Jos. Martin acting for you ? A. No.
Mr. Davis—How can who acted for him be material ? There are certain
things that occurred at that time in connection with Mr. Joseph Martin, when he
was not acting for Mr. Ludgate.
Witness—I might say that Mr. Joseph Martin, of Martin and Deacon, first of
all I went with this case to Mr. Davis after I decided after seeing the island,
that I wanted to get it for a sawmill proposition. Mr. Davis was opposed to
having anything to do with the matter, and I then went by suggestion of one of
the people here in the city, who was an old timer and interested in timber, and 10
was desirous I would come through with this thing, as he had timber—it was
through him my attention was drawn to this property, and I went to Martin and
Deacon, and they wrote a letter. Mr. Martin was then Attorney-General for
B.C., if I remember, atid they wrote a letter to the Minister of Militia
regarding—j
Mr. Davis—That letter will speak for itself? A. Yes.
Mr. Macdonald—That would be this letter of the 20th of January, '99?
A. Well, he at that time was not my solicitor at all, Mr. Macdonald, and he had
nothing further to do with it; it was not very long after that.
26. Q. In this letter he refers to you as | being a client of mine." That is 20
incorrect, is it ? A. Yes, that is incorrect; that is, that he had no retainer from
me. I might be a client of any persons that I would go in and ask to write
a letter, but beyond that I would not be, I would judge, any client. The matter
ceased there.
27. Q. He said you represented a number of very large Canadian
and American capitalists. That is not correct either ?
Objected to by Mr. Davis as immaterial.
28. Q. Shortly after this letter then written by Mr. Martin, which we will
assume this date of January 20th is correct, you apparently went to Ottawa
about the question of this island ? A. Well, I went over there in the winter, I 30
presume it was after that; I do not remember the date now.
29. Q. I see a letter in here after the return dated the 3rd February, '99,
addressed by you to the Hon. Dr. Borden ? That presumably is correct ? A.
That is a letter written by me here.
30. Q. No, apparently Ottawa; it is dated there ? A. Well I have no
knowledge of the letter. Of course the letter is there to speak for itself.
31. Q. Well I find it in this printed return that is all? A. Yes, well—of
of course it is all right.
32. Q. On this question that you alone took this lease, I see in this letter
you say " my firm." Now what does that mean ? A. Well it would mean, I 40
presume, the Vancouver Lumber Co.
; 33. Q. And the Vancouver Lumber Co. you say was really no firm but an
individual ? A. Exactly.
34. Q. Then you say on the occasion of your visit to Ottawa you saw the
Minister of Militia and Defence then the Hon. Dr. Borden, and some other
officials of his department ? A. Yes, Mr. Macdonald and the Deputy, I have forgotten his name—he was a Frenchman—I think it was " Colonel ." SI
Mr. Macdonald—Napanet, how is that ?
Mr. Davis—No, I think it is Pinault; there are two of them.
Mr. Macdonald (To Witness)—You found at Ottawa that the piece of
property commonly called "Deadman's Island," was under what department?
A. Well, I don't know.
35. Q. Then why did you go to the Department of Militia and Defence and
not to the Department of the Interior about this ? A. Simply because Mr. Martin
said that property lay with Frederick Borden of the Military Department.
36. Q. That is, it was part of a military reserve ? A. Well, I don't know
lO about that.
37. Q. That is how it came up ? A. Yes, I did not know at the time.
38. Q. Ordinarily you know with respect to Dominion lands you would go to
the Minister of the Interior ? A. Well, I don't know I would know that at the
time. I was simply turned over—owing to Mr. Martin, whom I asked about the
matter, saying that Frederick Borden, the Minister of Militia, was the party to
see.
39. Q. When you got to Ottawa there were certain telegrams seemed to
have passed prior to your being given a lease, were there not ? Or do you know
what was done ? A. No, I do not.
20 40. Q. To put it shortly, did you go into the matter down there yourself,
or did someone else act for you—Mr. Maxwell ? A. Well, Mr. Maxwell put the
matter up to the people—the Government. I am not aware of any telegrams. I
don't know what occasion there would be for telegrams. Of course, if you have
telegrams I do not dispute them, but as I was there I do not see what occasion
there would be for wiring.
41. Q. Was there any necessity at that time for prompt action in the
matter or was it standing over ? A. Well, not particularly, except that I had
been here for—I came out here two days after the Westminster fire and I had
been looking round this place and advertising in the paper till I left for Ottawa
30 to see if I could get this island.
42. Q. How soon after you arrived in Ottawa did you sign this lease ? It
is dated the 14th of February, does that help you ? A. Well, I don't know about
the date there, but I judge I was there nearly three weeks before I got that
. lease.
43. Q. What you mean to say by that is the date does not help you in
2 A. No, I know that I was there at the hotel and up and down to
RECORD
In the
Supreme
Court of
British
Columbia
Defendants'
further
Evidence'
No: 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued
any way
No, I know that I was there at the hotel and up and down
the Department there back and forth, I should judge three weeks.
44. Q. Where, as a matter of fact, did you sign the lease ? A. In the
Parliament Buildings.
40 45. Q. Then did you personally get the lease in your possession before you
left Ottawa ? A. Yes.
46. Q. And you came back to Vancouver with the lease ? A. Yes.
6 82
RECORD
In the
Supreme
Court of
British
Columbia
Defendant's
further
Evidence
No. 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued
47. Q. Can you give me any idea when you returned, about the time ? A.
Well, no, I cannot. I came back, I suppose, the following ten days or less, than
that.
48. Q. And that would bring you back then somewhere about the
beginning of March ? A. You can tell that pretty well from some of the papers
if you take back to the file there.
49. Q. I am going to do that some day. A. I could not tell any dates
though.
50. Q. Because immediately after you came back something occurred ? A
Well, there was a great roar here you know. • 10
51. Q. With respect to this lease, what occurred ? How soon after you
got back did you go on this property which is referred to in this lease ? A. Well,
not for some time.
52. Q. Can't you fix it any nearer ? A. No, I could not. I may tell you
what happened, if it is all right, Mr. Davis.
Mr. Davis—Simply give the date as nearly as you can ? A. Well, it would
be probably about six weeks.
Mr. Macdonald—And at the end of that six weeks what did you do ? A.
I engaged a number of men and went over there. I purchased saws and axes
and peavies with a view to going on it to clear off the property to begin building. 20
53. Q. To clear the trees off ? A. Yes; to move the timber.
54. Q. From what had taken place, you expected opposition did you not ?
Objected to by Mr. Davis and witness instructed not to answer.
55. Q. Well, did you get possession of the property ? A. Well, I hold
that I have possession under the lease, yes.
§6. Q. No ; did you get actual possession of the property as a fact? A.
Well, of course ; I have legal possession.
57. Q. But I am speaking of the actual physical possession ? A. Physical
possession—well, no ; I did not want to see any bloodshed or crazy action in this
matter. During the time I was there Mayor Garden came over in the name of 30
the City or the Queen or something, and ordered me to refrain, and I peaceably
gave way.
Mr. Davis—You were there ? A. I was there on the property with my men
in the actual work of clearing the ground.
Mr. Macdonald—In other words, you were starting to cut down trees on
that property and he restrained you from doing so ? Well, that would be this
summer along in March or at latest in April, 1899 ? A. Well, of course, this is
merely—I would say offhand—it was along about that time. I never kept a diary
of the circumstances. I have no doubt you will get a good deal of that from the
old papers here, as a matter of hunting back. 40
58. Q. Then as I take it, you were trying to get possession of this island?
,A Yes, I wanted to go on and take up business here you know. 83
59. Q. Did you know at that time it was claimed—that that island was
claimed by the City ? A. Oh, no.
60. Q. It was not claimed by the City ? A. When I got the lease I never
dreamed that the City—
61. Q. I mean, at the time you attempted to take possession, did you
know it was claimed by the City ? A. Well, I presume that I did, from the
fact that there must have been something in the papers here, and it was not
strange to me. I know when Mr. Garden came over there with a number of
policemen and asked me to desist from further work on the property.
10 Mr. Davis (to witness)—Was not that at the instance of the Provincial
Government ? A No, that was later. The Provincial Government came later.
Mr. Macdonald—What was the next step then with respect to the island
that took place ? A. Well, I was resisted—at least, prevented from going on
there as I anticipated, and then as I remember it the Province came in and
claimed the property, and during that time I went back again with a number of
men and implements to go on clearing off the property, and was chopping 'down
some timber that was to be moved off, and Mr. Martin, then Attorney-General,
came over with Campbell—we had several small forces around there and quite a
number of men, and Campbell and Mr. Martin came over and ordered me to stop
20 further work upon the property, and Campbell—whether I did not just come
down or made some show of resistance I don't know, but Campbell—I think it
was Campbell—took me and threw me down to the ground, and I was manacled
and brought into this building and held for bail.
62. Q. That was not the City ? A. No, that was the Province.
63. Q. How long would that be after the time when Mayor Garden
prevented you from— ? A. Oh, I could not say, really I could not say about
that; perhaps it must be about a month or some other matter like that.
64. Q. Then, subsequently to that, what action was started with respect
to this property ? A. Well, as I remember it, the Government took injunction
30 proceedings.
65. Q. The Local Government ? A. Yes, the B.C. Government enjoined
me from further going on the property.
66. Q. And then there was the litigation between the Dominion Government and the Provincial Government over the question of the ownership of this
piece of property ? A. The title, yes.
RECORD
In the.
Supreme
Court of
British
Columbia
Defendants'
further
Evidence
No. 35
Examination
for discovery
of Plaintiff
T. Ludgate
continued 84
tfj
RECORD
In the
Supreme
Court of
British
Columbia
No. 36
Exhibit 11
Order-in-
Council
25th Feb.
1880
No. 36.
EXHIBIT 11.
Copy of a Report of the Committee of the Honourable the Privy Council, approved
by His Excellency the Governor-General in Council on the 25th February,
1880.
On a memorandum dated 16th February, 1880, from the Honourable the
Minister of the Interior, reporting that he is informed that a considerable area of
lands situate at important points along the Coast Line in the Province of British
Columbia, is held by the Imperial Government as military and naval reserves and
suggesting for the consideration of your Excellency in Council the expediency of 10
inviting the attention ofthe Imperial Authorities to the fact, and asking should
the same not be inconsistent with the views of Her Majesty's Government that
the lands in question, excepting such as may actually be required for military or
naval purposes, may be transferred to the Dominion, to be held and administered
in the same manner as the lands of corresponding character in the older provinces
formerly transferred by Her Majesty's Government to Canada.
The Committee submit the foregoing suggestions for your Excellency's
approval.
J. 0. COTE,
Clerk, Privy Council. 20
1
No. 37
Exhibit 12
Letter
R. Thompson
to Under-
Secretary
of State
27th July
1883
No 37.
EXHIBIT 12.
War Office to Colonial Office.
War Office, 27th July, 1883.
The Under Secretary of State,
Colonial Office.
Sir,
With reference to your letter dated 21st July, 1883,1 am directed by the
Secretary of State for War to transmit for the information of the Earl of Derby 30
the accompanying " Schedule of the Reserved Lands of British Columbia proposed
to be surrendered to the Dominion Government" as therein requested.
I have, etc.,
RALPH THOMPSON. 85
Schedule of the Reserved Lands of British Columbia proposed to be surrendered to the Dominion Government.
No.
Area in
Acres.
Description.
Esquimalt and Victoria District.
5
About
30
William Head.
6
»>
70
Bentick Island.
7
11
80
Sooks Harbor.
8
y
180
Mount Douglas.
. 9
Chatham Island.
10
Chain Island.
11
Trial Island.
New Westminster District.
1
About
600
Between north arm and main branch of Fraser River. Inland
between Fraser Eiver and Burrard Inlet.
3
>>
640
j Ditto.
4
)>
95
On north shore of Port Moody, near the centre.
5
ii
150
On south shore of Port Moody, near the entrance.
6
>i
160
On north shore of mouth of Port Moody.
7
ii
3,000
On south shore of Burrard Inlet, outside 2nd Narrows.
8
a
300
On south shore of Burrard Inlet, near Coal Harbor.
9
ii
600
South shore of 1st Narrows.
10
i>
800
South shore of English Bay.
11
it
500
Point Grey.
12
ii
480
On the north shore of 1st Narrows.
13
and
ii
120]
90)
On each side of the entrance of the north arm of the Fraser River.
14
>*
15
it
120
Inland, south of the main branch of the Fraser River.
RECORD
In the
Supreme
Court of
British
Columbia
No. 37
Exhibit 12
Schedule to
Letter
R. Thompson
to Under-
Secretary
of State •
27th July
1883
t] 86
RECORD
In the
Supreme
Court of
British
Columbia
No. 37
Exhibit 12
Letter
Admiralty
Office to
Colonial
Office
29th Feb.
1884
Sir,
The Admiralty to the Colonial Office.
Admiralty, 29th February, 1884.
The Under Secretary of State for the Colonies.
am
Adverting to my letter of the 14th August last, D.W., No. 2631, I
commanded by the Lords Commissioners of the Admiralty to inform you that they
have received from the Naval Commander-in-Chief on the Pacific station a report
on the subject of the surrender of naval reserves in British Columbia, to which
your letter of the 21st July last, and its enclosure, related.
I am now to state, for the information of the Earl of Derby, that my lords 10
are prepared to give up all the reserves belonging to the admiralty in that
colony with the exception of those which they occupy in Esquimalt, i.e., the
Naval Hospital and Cemetery, the Naval Yard, Thetic Island, Brother's Island,
Albert Head, Cole Island, and also the plot of 110 acres in Burrard Inlet marked
C in the accompanying plan.
This last-mentioned plot their lordships propose to retain as a site for a
possible future naval establishment, or in order to exchange it for a site suitableibr
the dockyard if it should at any time be decided to remove that establishment
from its present position.
I am, &c.y 20
G. TRYON.
Letter
Earl Derby
to Marquis
of Landsowne
27th Mar.
1884
The Earl of Derby to the Marquis of Lansdowne.
Governor General, the Most Honourable The
Marquis of Lansdowne, G.C.M.G., &c. &c. &c.
Downing Street, 27th March, 1884.
My Lord,
With reference to your dispatch, No. 207 of the 13th July, 1881, and to
previous correspondence respecting the proposed surrender to the Canadian
Government of certain lands reserved for naval and military purposes in British 30
Columbia, I have the honor to state that the power of Governor Douglas to make
reserves in British Columbia appears to have rested on the 2nd clause of this
commission dated the 2nd of September, 1858, directing him to execute his trust
according to powers, directions and authorities granted or appointed to him under
the Royal Sign Manuel and Signet or by Order-in-Council or by the Queen
through one of Her Majesty's principal Secretaries of State; and further upon
despatches from Sir E. B. Lytton dated the 31st July and 14th of August, 1858,
and giving him instructions as to the marking out of allotments for public purposes and giving him provisional rules for his guidance in selling lands. These
papers are contained in a parliamentary paper given to the British Parliament in 40
1859, entitled " Papers Relative to the Affairs of British Columbia," printed 18th
February, 1859, pp. 5, 45 and 49. And it has always been considered that
reserves made by him were valid and became effectual without confirmation by the
Secretary of State. 87
10
As regards the reserves now in question no formal deed appears to have been
made conveying them to the military or naval authorities, and I am advised that
they may now in like manner be surrendered without the formality of a regular
deed of conveyance.
It appears therefore sufficient to state that Her Majesty's Government are
prepared to surrender the military reserves specified in the schedule to the War
Office Letter ofthe 27th of July, 1883, a copy of which is inclosed, and all navy
reserves with the exception of those mentioned in the letter from the Admiralty
ofthe 29th ultimo, a copy of which is enclosed.
I request that you .will inform me whether the Dominion Government desire
to receive any more formal notification of surrender than this despatch, and, if so,
that I may also be informed of the nature of the instrument which they would
like to receive.
I have, &c.
DERBY.
RECORD
In the
Supreme
Court of
British
Columbia
No. 37
Exhibit 12
Letter
Earl Derby
to Marquis
of Lansdowne
27th Mar.
1884
continued
No. 38
Exhibit 23
No. 38.
EXHIBIT 23.
Victoria, Report of
20 J,6-4-85-, , 1 RiH SssL
Forwarded with report of D.A.G. of Dist. 16th April
I am strongly averse myself to the surrender of this island. It may prove 1885
to be of immense value when the general defences come to be considered.
(Signed) FRED MfDDLETON,
Major-General.
23-4-88.
Certified a true copy.
(Signed) E. F. JARVIS,
Assistant Deputy Minister,
30 Militia and Defence.
Ottawa, October 28th, 1909.
No. 39.
• M EXHIBIT 13. | • ^
House of Commons,
Ottawa, 24th March, 1886.
Sir Adolphe Caron,
Minister of Militia,
Ottawa.
40 Sir, . . ...
I enclose herewith map showing the military reserve at the entrance of
Burrard Inlet. It contains 950 acres, adjoining the terminal City of Vancouver,
on the Canadian- Pacific Railway. I would respectfully request that you would
grant the same to the City, reserving the right to use any portion of it for
military purposes or on occasion when required even the whole of it. The City
No. 39
Exhibit 13
Letter
A. W. Ross
to
Sir A. Caron
24th March
1886
mrmsa 88
RECORD
In the
Supreme
Court of
British
Columbia
No. 39
Exhibit 13
Letter
A. W. Ross
to
Sir A. Caron
24th March
1886
continued
to build a carriage road around the reserve and otherwise spend money on it to
make it attractive for a park. In my opinion it can be made one of the finest
parks in the world, and in connection with the proposed establishment of national
parks along the line ofthe Canadian Pacific Railway would be.quite an attraction
to tourists travelling over our national railway, and the above proposed arrangement would not in any way interfere with the right of your department to those
lands.
Please give the matter your, earnest consideration and. advise me of your
decision.
I have the honour to be, Sir,
Your obedient servant, 10
A. W. ROSS.
This military reserve piece of ground is the identical spot that Lieut.-Col.
Holmes, D.A.G., so strongly recommends for the site of our barracks and battery.
Would it not be better to suspend action in this regard until we have personally
inspected the spot ?
FRED. MIDDLETON,
Major-General.
W
No. 40
Exhibit 21
Letter
Deputy
Minister
of Interior
to Under-
Secretary
of State
19th April
1886
No. 40.
EXHIBIT 21.
20
Department of the Interior.
Ottawa, 19th April, 1886.
Grant Powell, Esq.,
Under Secretary of State,
Ottawa.
Sir,
In a letter received from the Honourable Mr. Trutch, dated the 30th ult.,
he encloses a clipping from the | British Columbia Gazette," being an advertisement of notification dated the 11th March, by Mr. Alexander Russell of his intention to make application within 60 days to the Chief Commissioner of Lands and 30
Works of that province, for permission to purchase an island containing 10 acres,
situated near the head of Coal Harbour, Burrard Inlet.
The island in question is included in the reservation for military purposes,
950 acres in extent, established in 1859, on the south side ofthe First Narrows,
Burrard Inlet, and I have, therefore, to request that you will communicate with
the Government of British Columbia calling their attention to the fact that this
land is a reserve, and not subject to sale by that agreement.
I have the honour to be, Sir,
Your obedient servant,
A. M. BURGESS,.
Deputy Minister of the Interior.
40 89
No. 41.
EXHIBIT 14.
RECORD
In the
Supreme
Court of
British
Columbia
No. 41
Exhibit 14
(Telegram).
Ottawa, 20th April, 1886.
J. W. Trutch, F
Victoria, British Columbia.
I am informed that a sale of lots on the military reserves in British Columbia sfrTcLm
is proposed to be held in two weeks. You must take measures to stop sale of jg^^*
any property belonging to the reserves, which belong to and are under the control 20th April
10 ofthe Federal Government.
ADOLPHE P. CARON.
1886
Victoria, B.C., 6th May, 1886.
The Hon. Sir Adolphe P. Caron, K.C.M.G.,
Minister of Militia,
Ottawa.
Sir,
I duly received your telegrams of the 20th and 21st ult. respectively,
directing me to stop sale of any portion of any reserved lands in this province
20 under the control of the Federal Government, and particularly of an island in
Coal Harbour, Burrard Inlet, forming part of the reserve for military purposes on
the south shore of the First or Outer Narrows of Burrard Inlet.
Those telegrams I acknowledged on the 24th ultimo, and subsequently on
the first opportunity I had an interview with the Hon. Mr. Smithe, Premier and
Chief Commissioner of Lands and Works of British Columbia, when I protested
as directed by you against the alienation from the Crown of any portion of these
reserves.
Mr. Smithe thereupon assured me that although an application had been
made to him for permission to purchase the island in question, the Government
30 had not entertained it and they had no intention at present of disposing of any
of the lands in this province which have been reserved for military purposes.
At that interview I discussed very fully with Mr. Smithe, as I already had
frequently done on previous occasions, the various questions connected with the
original establishment and present position of Government land reserves in British
Columbia.
The results of these interviews, as far as the expression of the views on this
subject of the Government of British Columbia as represented by Mr. Smithe, I
have embodied in a memorandum prepared in pursuance of instructions to me
from the Honourable the Minister of Public Works, to report upon certain
40 points in a letter on this subject to the Department of Public Works from the
Deputy Minister of Justice, a copy of which was forwarded to me.
Letter
J. W.
Trutch to
Sir A. Caron
6th May
1886 90
RECORD
In the
Supreme
Court of
British
Columbia
No. 41
Exhibit 14
Letter
J. W. Trutch
to
Sir A. Caron
6th May
1886
continued
I think it very desirable that the views of the Provincial Government, so
expressed, especially as far as they relate to lands in British Columbia reserved
for military purposes, should be at once brought to your notice.
I, therefore, enclose a copy of that part of my memorandum already forwarded
to the Department of Public Works, which relates to this portion of the subject
of lands in British Columbia reserved for public purposes.
I have the honour to be, Sir,
Your obedient Servant,
I JOSEPH W. TRUTCH,
Dominion Government Agent in
British Columbia.
10
1
No. 42
Exhibit 38
Letter
Under-
Secretary of
State to
Sir A. Caron
25th June
1886
H. Q. 71-11-6, Vol I.
No. 42.
EXHIBIT 38.
Ottawa, 25th June, 1886.
Si
ir.
I have the honour to acknowledge. the receipt for submission to His
Excellency the Governor-General of a petition from the Mayor and Corporation
of the City of Vancouver, B.C., praying that the Dominion Government reserve 20
in that city be handed over to the said petitioners for use as a public park and to
state that the matter will receive consideration.
I have the honour to be,
Sir,
Your obedient Servant,
(Sgd.) HENRY J. MORGAN,
Acting Under Secretary of State.
The Honourable
Sir Adolphe P. Caron, K.C.M.G.,
Minister of Militia and Defence,
Ottawa.
Certified true copy 30
(Sgd.) E. F. JARVIS,
Assistant Deputy Minister,
Militia and Defence.
Ottawa, October 28th, 1909. 91
No. 43.
EXHIBIT 24.
PETITION.
RECORD
In the
Supreme
Court of
British
Columbia
No. 43
To His Excellency the Most Honourable Sir Henry Charles Keith, Marquis ofExhi™24
Lansdowne, Governor-General in Council— Petition
The petition ofthe Mayor and Aldermen of the City of Vancouver, in theVa
City of
10 Province of British Columbia, humbly sheweth
Whereas an Act has been passed by the Legislative Assembly of British q
Columbia, incorporating the City of Vancouver 1
And whereas there is within our city limits a portion of land known as '' The
Dominion Government Military Reserve," near the first Narrows, and is
bounded on the west by English Bay, and on the e,ast by Burrard Inlet:
And whereas it is advisable that permission should be given to the Mayor
and Council ofthe said City of Vancouver to have control of said reserve in order
that it may be used by the inhabitants of the City of Vancouver as a park.
Your petitioners therefore pray that said reserve should be handed over to
20 the said corporation, to be used by them subject to such restrictions as to your
Excellency may seem right. To be and to be held by them as a public park.
M. A. MacLEAN, Mayor.
THOS. F. McGUIGAN, City Clerk.
to Lord
Lansdowne
overnor-
General
30
No. 44.
EXHIBIT 4.
ORDER-IN-COUNCIL.
Copv of the Report of a Committee of the Honourable the Privy Council,
approved by
His Excellency the Governor-General in Council, on the 8th June, 1887.
On a report dated 10th May', 1887, from the Minister of Militia and Defence
stating that he has had under consideration a petition of the Mayor and Alder-
40 men of the City of Vancouver, B.C., praying that the Dominion Government
Military Reserve near the First Narrows bounded on the west by the English
Bay and on the east by Burrard Inlet may be handed over to the said Corporation for use as a park.
The Minister reports that he sees no objection to this proposal, provided the
Corporation keep the park in proper order, and the Dominion Government retain
the right to resume the property when required at any time.
No^44
Exhibit 4
Order-in-
Council
8th June
1887 92
RECORD
In the
Supreme
Court of
British
Columbia
No. 44
Exhibit 4
Order-in-
Council
8th June 1887
continued
The Minister further states that he does not deem it advisable to recommend
that this property be transferred to class 2 as not available for military use as he
is of opinion that it will be required for military purposes, but until this he
recommends that the Corporation have the use of the same as a park, subject to
the provisions mentioned.
The Committee advise that the Minister of Militia and Defence be authorized
to take the necessary steps for carrying the same into effect.
(Signed)
JOHN J. McGEE,
Clerk,
Privy Council.
10
No. 45.
I No. 45
Exhibit 5
Letter
Col. Ppnet to
Mayor of
Vancouver
12th July
1887
EXHIBIT 5.
Department of Militia and Defence.
Ottawa, 12th July, 1887.
His Worship,
The Mayor of Vancouver City, B.C.
Sir,
With reference to the petition ofthe Corporation of the City of Vancouver, oo
for a grant of the Military Reserve at that place for the purpose of a park, I have
now the honour by direction ofthe Minister of Militia and Defence to transmit to
you the enclosed copy of an Order-in-Council, granting the desired privilege
under certain conditions. A copy of an Order-in-Council has also been
forwarded to the Deputy Adjutant General, in command of Military District No.
11 for his information and guidance.
I have the honour to be, Sir,
Your obedient servant,
• C. EUG. PANET,
Colonel, 30
Deputy Minister of Militia and Defence. 93
No. 46.
§|t y EXHIBIT 6.
Mayor's Office,
Vancouver, B.C., 27th July, 1887.
Col. C. E. Panet,
Deputy Minister of Militia,
Ottawa.
Sir,
Yours ofthe 12th instant received enclosing copy of a report of a Committee
10 ofthe Honourable and Privy Council granting the City of Vancouver for park
purposes, the military reserve between English Bay and Burrard Inlet with
conditions set forth.
The Citizens of Vancouver fully appreciate the kindness of the Government
in the matter, and request me to state that the conditions mentioned therein will
be strictly carried out.
Thanking you for your prompt action,
I have the honour to be, Sir,
Your most obedient Servant,
M. A. MacLEON, Mayor.
20
RECORD
In the
Supreme
Court of
British
Columbia
No. 46
Exhibit 6
Letter
Mayor of
Vancouver
to Col. Panet
27th July
1887
No. 47.
EXHIBIT 7.
Vancouver, B.C., 9th March, 1888.
Hon. Sir A. P. Caron, K.C.M.G.,
Minister of Militia and Defence,
Ottawa.
Sir,
On the 12th July (a.d.) 1887, a communication was received by the Mayor
of this city from the department of Militia and Defence informing him that by an
30 Order-in-Council dated 8th June, 1887, permission was given the Corporation of
the City of Vancouver to use the. Dominion Government Military Reserve within
the limits of the said Corporation for Public park.
Said Order further authorized you to take the necessary steps to carry its
provisions into effect, but nothing has been done in the matter.
What will be the character of the title to the said lands given to this city ?
A lease for a long period, subject to the conditions of the Order-in-Council will be,
I presume, a mode of conveyance.
Where will the necessary documents be prepared, and if by the department,
how soon will they be expected ?
No. 47
Exhibit 7
Letter
City Clerk to
Sir A. Caron
9th March
1888 RECORD
In the
Supreme
Court of
British
Columbia
No. 48
Exhibit 8
Letter
Col. Panet to
City Clerk
21st March
1888
94
It will be difficult for this corporation to deal with persons trespassing on
said reserve or to keep it in proper order until they can shew their right to same,
and I doubt if the Order-in-Council would suffice.
I have the honour to be, Sir,
Your obedient servant,
THOS. F. McQUIGAN,
City Clerk.
No. 48.
EXHIBIT 8.
10
Department of Militia and Defence,
Ottawa, 21st March, 1888.
The Ci*ty Clerk,
Vancouver City, B.C.,
Sir,
I have the honour by direction of the Minister of Militia and Defence to
acknowledge the receipt of your letter ofthe 9 th instant, inquiring what title
will be given to the City of Vancouver under Order-in-Council of the 8th June
1887, of the lands which the city is permitted to occupy as a park ; and I am to
inform you that the matter will be looked into and that you will be again 20
communicated with at as early a date as practicable.
I have the honour to be, Sir,
Your obedient Servant,
C. EUG. PANET, Colonel,
Deputy Minister of Militia and Defence.
m>7
No. 49
Exhibit 9
Vancouver, B.C.,
9th January, 1889. 30
No. 49.
EXHIBIT 9.
The Honourable Sir Adolphe P. Caron, K.C.M.G.,
Minister of Militia and Defence,
T | Ottawa, Ont.
Letter . '
Mayor and Sir,
Si* Aharon We have been directed by the Council of the City of Vancouver to forward
9th Jan. 1889 the following resolutions passed by the body on Monday, 7th inst.
" Whereas the Corporation ot the City of Vancouver has expended upwards
of $30,000 in making roads through the Government reserve of the city now
known as Stanley Park.
" And whereas said park is to be used by the Corporation only until the
Government of Canada require same for military purposes.
" And whereas said park in a state of nature would be impassable for troops. 40
or war material without a large expenditure of money and the roads and drives 95
made by the City being of a substantial character and permanent kind will enable
such troops and war material to move at once to any point of said park.
I And whereas it is the intention of the City to make other roads and drives
through said park from year to year, and are willing to make same to such points
as may be indicated by any military engineer appointed by the Government for
that purpose.
1 Therefore be it resolved by#the Mayor and Council of the City of Vancouver
in Council assembled that the Government be requested to make a grant on
account of the sums already expended by the Corporation, and make a yearly
10 grant for the purpose of further improving same from year to year.
I And be it further resolved that a copy of this resolution, signed by the
Mayor and City Clerk, with the corporate seal affixed, be forwarded to the
Honourable Sir Adolphe Caron, K.C.M.G., Minister of Militia and Defence."
We have the honour to be, Sir,
Your obedient Servants,
D. OPPENHEIMER,
Mayor.
THOS* F. McGUIGAN,
City Clerk.
20
RECORD
In the
Supreme
Court of
British
Columbia
No. 49
Exhibit 9
Letter Mayor
and City
Clerk to
Sir A. Caron
9th,Jan. 1889
continued
ill
I
No. 50.
EXHIBIT 10.
Department of Militia and Defence,
Ottawa, 26th January, 1889.
His Worship
The Mayor for Vancouver City, B.C.
Sir,
I have the honour, by direction of the Minister of Militia and Defence, to
inform you that the two propositions made in the letters of yourself and the City
30 Clerk of Vancouver, dated respectively 9th March, 1888, and 9th January, 1889,
have received due consideration and have been decided upon as follows :—
1st. With reference to the City Clerk's enquiry, what title will be given to
the city, of the land which the corporation is permitted to occupy as park, I am
to state'that no other document can be furnished than the copy ofthe Order-in-
Council ofthe 8 th June, 1887, officially furnished to you by this department.
2nd. As regards the request of the Corporation for a grant on account of
sums already expended in improving the property, and for an annual grant for a
similar purpose in future, the Minister regrets that there are no funds available
for any such purpose,
40 I have the honour to be, Sir,
Your obedient servant,
C. EUG. PANET, Colonel,
Deputy Minister of Militia and Defence.
No. 50
Exhibit 10
Letter Col.
Panet to
Mayor of
Vancouver
26th Jan.
1889 96
RECORD
In the
Supreme
Court of
British
Columbia
No. 51
Exhibit 32
Memorandum of
Lieut. Col.
MacPherso»
21st April
1896
No. 51.
f EXHIBIT 32.
(Memorandum)
With reference to the enquiry made by the Department of Marine and
Fisheries concerning the military reserve lands near the City of Vancouver,
British Columbia, known as § Stanley Park," with special reference to
1 Deadman's Island."
The undersigned has the honour to report that there is no plan of this
military property in the store branch, but a reference to the Admiralty plan No.
922 in the office of the Quarter-Master-General at headquarters indicates the 10
position of "Deadman's Island" as contiguous to the Government reserve, now
used by the City of Vancouver and known as | Stanley Park," and is therefore
military property.
Reference to Case A 7770 will show that an application was made to lease or
purchase " Deadman's Island," B.C., on behalf of R. P. Cooke, Ottawa, in a letter
dated 28th March, 1888. Upon this application the acting D. A.G. of the district
and the General Officer Commanding reported again at the lease or sale of this
island for anv private purpose :—" It is quite close to the most suitable barrack
site, and at low water easily got at from the mainland."
The General Officer Commanding at the time, 23rd April, 1888 (General 20
Middleton), reported also that the island in question | might prove to be of
immense value when the general defence came to be considered."
In the event of a private company trying to lease the island, as indicated in
the letter from the Marine Department ofthe 17th instant, it would be advisable
that steps be taken to protect the interest ofthe Government.
Respectfully submitted.
J. MACPHERSON, Lt.-Colonel,
Director of Stores, etc.
Ottawa, 21st April, 1896.
Memorandum of Gen,
Gascoigne
16th Sept.
1896
30
(Memorandum)
From the Major-General Commanding the Militia to the
Deputy Minister of Militia and Defence.
Ottawa, 16th September, 1896.
With reference to Deadman's Island at Vancouver, B.C., I am strongly of
opinion that it may and very likely will become of great value in connection with
the defence of Vancouver, and, therefore, I regret that [ am unable to recommend
that the whole or any part of it should be leased to any corporation or any
private individual.
W. J. GASCOIGNE, 40
Major-General Commanding Canadian Militia. 9?
No. 52.
EXHIBIT 28. .8
Stanley House, New Richmond,
25th A/ugust, 1898.
The Honourable Dr. Borden, etc.,
Minister of Militia and Defence,
Ottawa.
Dear Dr. Borden,
In transmitting to you officially the accompanying memorial and petition in
10 the form of a resolution which has been forwarded to my care by the City
Council of Vancouver, B.C., I desire to commend the request which it contains
for your favourable consideration.
Haying recently visited the park at Vancouver, I can testify to the fact that
the municipality have been giving attention to the care and improvement of the
resort, including the expenditure of a considerable amount of money in improving
the approach to the grounds, which, as of course, you are aware are of very
attractive description.
I remain, dear Dr. Borden,
Very faithfully yours,
20 ABERDEEN.
RECORD
In the
Supreme
Court of
British
Columbia
No. 52
Exhibit 28
Letter Lord
Aberdeen to
Sir P. Borden
25th Aug.
1898
s
ion
Whereas the reserve, being 950 acres, known as Stanley Park, situated to
the west of the City, is believed to be vested in the Dominion Government,
And whereas by a certain Order-in-Council dated the 8th of June, 1887, the Memorial
said reserve was handed over to the corporation of the City of Vancouver for use g* pef*fon
as a park, subject to the right of the Dominion Government to resume the Resoiutk
property when required at any time and subject to the City keeping the same in
proper order,
And whereas the corporation of the City of Vancouver has no power vested
30 in it further than the right to use the said reserve as a park,
And whereas there are a number of small dwellings of a very undesirable
character existing on the foreshore and other parts of the said park harbouring
squatters, undesirable characters, such being detrimental to the interests of the
public and unsightly,
And whereas there is now no power vested in the corporation to prevent the
continuance of the nuisances that exist and usefulness to the public of the park is
seriously affected thereby and in consequence thereof the citizens cannot use the
park to the same advantage as they could if such nuisances were repressed, and
there always exists a great danger of fire destroying the trees and beauty of the
40 park unless control is vested in the City,
And whereas the City has expended the sum of $100,000 in making roads
and annually improving the park, 93
RECORD
In the
Supreme
Court of
British
Columbia
No 52
Exhibit 28
Memorial
and Petition
in form of
Resolution
continued
And whereas the City annually 'expends a large sum in improvements
therein,
BE IT THEREFORE RESOLVED that it is in the interests of the City
and public generally that power be vested in the City that would enable the
corporation to put an end to the nuisances that do now exist, and to prevent the
occurrence of them in the future. That in order to place the corporation in such
a position that it would be authorized to further improve the park and keep the
same more strictly as a park and for the use and benefit of the public generally,
a petition be forwarded to the Honourable the Minister of Militia and Defence
praying that an Order-in-Council be passed vesting the said reserve in the 10
corporation to be held in trust as a public park and such deed of trust should
confer on the said corporation all the necessary powers to evict trespassers,
remove undesirable buildings and prevent nuisances, and all powers that may be
deemed necessary to empower the said corporation to keep and preserve the
reserve as a park for the City, in so far as may be consistent with the requirements of the Department of Militia and Defence, and that any lands taken for the
purpose of the Department of Marine and Fisheries for lighthouse purposes, be
done only by consultation between the Dominion and City authorities,—Carried.
JAMES F. GARDNER, Mayor.
T. F. McGUIGAN,' 20
Per Q. Cowderoy, City Clerk. • ^
Canning, N.S.,
Letter
Sir P.Borden G. R. Maxwell. Esq., M.P.
26th August, 1898.
to G. R.
Maxwell
26th August
1898
Vancouver, B.C.
Dear Maxwell,
I am in receipt of yours ofthe 16th inst. with inclosures. and have forwarded
the papers to Lt.-Colonel Macdonald who has charge of that branch of the
Department. I shall do my best to meet the views of the City Council, especially 30
as their request is so strongly endorsed by yourself. It occurs to me that perhaps
an amendment to the lease might be made which would meet the case.
Yours very truly,
F. W. BORDEN.
Macdonald
26th August
1898
Letter Canning, N.S.,
to LfcSSS Lt-Co1*.D* A* Macdonald, 26th August, 1898.
Chief Supt. of Stores,
Ottawa, Ont.
Dear Colonel,
I enclose papers which speak for themselves. Please look into this matter
carefully and see whether powers such as the City desires cannot be conferred by
an amendment to the lease. It would seem to me as if the difficulty might be
got over in that way.
Yours very truly, '■**
F. W. BORDEN.
40 99
Department of Militia and Defence, Canada,
Store Branch, Ottawa,
30th August, 1898.
The Honourable Dr. F. W. Borden,
Canning, N.S.
Re Stanley Park, Vancouver, B.C.
My dear Doctor,
The right given to the Corporation of Vancouver to transform this property
into a public park was given to it by Order-in-Council, 10th May, 1887, but no
10 lease was granted nor any authority other than the Order in Council, although
asked for from time to time.
While the properties in British Columbia belong to the Canadian Government, yet they have never been apportioned or classified; namely, those which
should go to the Department of the Interior, others claimed by the British
Government, and those which should come under the Department of Militia and
Defence. However, at the time this property was asked for it was considered
that it might become a valuable military one and hence the Department dealt
with it.
The whole matter was managed in the deputy's office and papers only seen
20 by me for the first time to-day.
After looking them over I considered that, in view of the former action of
the Department, it would be quite within its rights to grant a lease to the
Corporation of Vancouver for twenty-one (21) years, this by Order-in-Council,
giving them the control for park purposes, but possession to be resumed if
required and also containing a clause holding the Department harmless from any
trouble that might arise from dispossessing the squatters. To make sure that my
idea is correct I saw the Deputy Minister of Justice, who fully endorses it.
Pending the' passing of any Order-in-Council on your return to Ottawa, Mr.
Maxwell and the Mayor of Vancouver might be written to stating the intention
30 of the Department.
Faithfully yours,
D. A. MACDONALD.
RECORD
In the
Supreme
Court of
British
Columbia
No 52
Exhibit 28
Letter D. A.
Macdonald
to Sir P. W.
Borden
30th Aug.
1898
Canning, N.S.,
3rd September, 1898.
Mr. G. R. Maxwell, M.P.,
Vancouver, B.C.
40 My dear Maxwell,
With reference again to your letter ofthe 16th ult., I have looked into the
matter and find that no lease was ever given by the Dominion Government to
the City of Vancouver. The authority is simply contained in an Order-in-
Council. I am satisfied that the Department might give a lease for 21 years
renewable under which the City would have all the power they desire. The
Government woulcT, of course, reserve the right to take possession if necessary
Letter Sir
P. W. Borden
to G. R.
Maxwell
3rd Sept.
1898 100
RECORD
In the
Supreme
Court of
British
Columbia
for military purposes, and would put in a clause in the lease holding the Department harmless from any trouble which might arise from dispossessing the squatters
referred to.
If this will satisfy the City authorities I shall be very glad to have it carried
out as soon as possible, Will you kindly ascertain and let me know ?
Yours very truly,
F. W. BORDEN.
No. 53.
No. 53
i Exhibit 22
Letter
J. Martin to
Sir P. W.
Borden
20th Jan.
1899
EXHIBIT 22.
10
Vancouver, B.C.,
20th January, 1899.
The Honourable Dr. Borden,
Minister of Militia,
Ottawa, Ont.
Sir,
The Department of Militia and Defence are the owners under the clause of
the B.N.A. Act, which gives the Dominion all military reserves existing in a
province at the time ofthe union, and the property known as Stanley Park, in J*|
the City of Vancouver. 20
This park, as you are no doubt, aware, is a promontory bounded on one side
by English Bay, which is a small bay in the Gulf of Georgia, and on the other
side by Burrard Inlet, the entrance of Burrard Inlet being at the point of this
promontory. On the Burrard Inlet side there is a small projection which is an
island at high water, called Deadman's Island. This is a part of your reserve.
You have no doubt maps in your office which will show all this very plainly.
A client of mine, who represents a number of very large Canadian and
American capitalists, is desirous of purchasing this island from your Government
as a site for a large lumber mill. The people of Vancouver are, I understand,
very anxious that this mill should be erected in their city. Mr. Ludgate informs 30
me that he has seen the members of the City Council and that they all favour
this site.
Under these circumstances, would your Government sell it for this purnose
and at what price ? It seems to me that it would not in any way injure the
reserve to part with this small portion; it is really of no value to the reserve, and
it would be a great boon to the City of Vancouver to get an immense mill, such
as this would be, in their midst.
s fe I have the honour to be, Sir,
Your obedient servant,
JOSEPH MARTIN. - 40 101
10
20
30
No. 54.
EXHIBIT 2.
40
RECORD
In the
Supreme
Court of
British
Columbia
No. 54
THIS INDENTURE, made in duplicate the fourteenth day of February,
in the year of our Lord one thousand eight hundred and ninety-nine, in pursuance Ma'jSty6*
of the Act respecting short forms of leases. Queen
Between HER MAJESTY QUEEN VICTORIA, acting through the Honourable Vancouver
THE MINISTER OF MILITIA AND DEFENCE, the Honourable Frederick gjmbe^Co.
William Borden, of the City of Ottawa, in the Province of Ontario and Dominion 1899
of Canada, of the FIRST PART, and the Vancouver Lumber Company, of the
City of Vancouver, in the Province of British Columbia and Dominion of Canada,
of the SECOND PART.
WITNESSETH, that in consideration of the Rents, Covenants and Agreements hereinafter reserved and contained on the part of the said party of the
second part, his executors, administrators or assigns to be paid, observed and
performed, he, the said party of the first past, has demised and leased, and by
these presents doth demise and lease unto the said party of the second part, his
executors, administrators and assigns, all that certain island known as | Dead-
man's Island," situated in Coal Harbour in Burrard Inlet, near the City of
Vancouver, in the Province of British Columbia and Dominion of Canada, to be
used as a lumbering location with the right of erecting thereon a lumber plant,
and all such appliances as may be necessary for carrying on a general lumber
business, including wharves, etc.
TO HAVE AND TO HOLD the said demised premises for and during the
term of 25 years renewable to be computed from the first day of March, one
thousand eight hundred and ninety-nine, and from thenceforth next ensuing, and
fully to be complete and ended at the expiration of the said term, or until
determined as hereinafter mentioned.
YIELDING and PAYING therefor, yearly and every year during the said
term, unto the party of the first part, or his successors in office, the sum of five
hundred ($500) dollars current money ofthe Dominion of Canada, to be payable
on the following days and times, that is to say
Half-Yearly
in each and every year during the continuance of the said term, without any
deduction, defalcation, or abatement whatsoever:—the first of such payments
to become due and be made on the first day of September next, 1899.
AND the said Lessee covenants with the said Lessor :—To pay rent; AND
to pay taxes and to repair; AND to keep up fences; AND that the said Lessor
may enter and view state of repair; AND that the said Lessee will repair
according to notice; AND will not carry on any business that shall be deemed a
nuisance on the said premises.
AND will not assign or sub-let the said leased premises, or any part thereof,
without leave in writing, from the party of the first part. 102
RECORD
In the
Supreme
Court of
British
Columbia
No. 54
Exhibit 2
Lease Her
Majesty
Queen
Victoria to
Vanoouver
Lumber Co.
14th Peb.
1899
continued
The said Lessees to have the right to cut down and remove such timber as
may be necessary to provide space for the erection of all 'buildings in connection
with their industry—Her Majesty's men-of-war and Canadian Government vessels
to have the right to use all wharves, constructed by the said Lessees, for coaling
and watering purposes.
AND that he will leave the premises in good repair : proviso for re-entry by
the said party ofthe first part, on non-payment of rent or non-performance of
covenant;
The said party of the first part covenants with the said party of the second
part for quiet enjoyment; 10
PROVIDED ALWAYS, and it is hereby agreed that this demise may be
determined, by either party giving to the other a notice thereof in writing
months before the expiration of the first of any subsequent term, or the said
party of the first part may determine this demise at any time, by a demand of
possession of the said leased premises, or any part
[ if required for military or defensive purposes, and
thereof \ the said Lessees to have no claim for compensation
( for buildings erected or improvements made thereon.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written. 20
SIGNED SEALED AND DELIVERED jft-jgg LTJDGATE H
bv the nartv of the second part in the « x '
1
)y tne party of the second part
presence ofthe undersigned witness,
F. E. KNIGHT.
for
The Vancouver Lumber Co.
SIGNED, SEALED AND DELIVERED
by the party of the first part in the
presence of the undersigned witness,
D. A. MACDONALD, Lt.-Col.
F. W. BORDEN (L.S.),
Minister of Militia and Defence.
ENDORSEMENT ON BACK.
30
The party of the first part consents that the party of the second part and
Endorsement
on Lease of
1899Feb' assigIls herein mentioned should have the further right to use the land herein
mentioned for industrial purposes as well as general lumbering business.
Also to have the right to renew the within lease for the further term of
twenty-five years, from the expiration of this lease."
The party of the first part further consents and agrees that the said
proviso mentioned in the within lease, being :—
'Provided always and it is hereby agreed that this demise may be
" determined, by either party giving to the other a notice thereof in writing 40
months before the expiration of the first or any subsequent term, 103
| or the said party ofthe first part may determine this demise at any time RECORD
' by a demand of possession of the said leased premises, or any part thereof, in the
' if required for military or defensive purposes, and the Lessors to have no ^rtmfe
| claim for compensation for buildings erected or improvements made British
"thereon," Columbia
be eliminated and struck out from the within lease and to have no force or effect. No. 54
Signed in the presence of Exhibit 2
This Indenture, made in duplicate, on the fourth day of April, in the year of (Lease Her
10 our Lord nineteen hundred ; qS*7
Between Her Majesty Queen Victoria, acting through the Honourable the victoria to
Minister of Militia and Defence, the Honourable Frederick William Borden, of Lumb^Co.
the City of Ottawa, in the Province of Ontario and Dominion of Canada, of the ig'Lfpril
first part, and the Vancouver Lumber Company, of the City of Vancouver, in the
Province of British Columbia and Dominion of Canada, of the second part;
Whereas by an Indenture, bearing date February the fourteenth, in the
year eighteen hundred and ninety-nine, between the parties hereto of the first
and of the second parts, it is witnessed that the party of the first part did demise
and lease unto the party of the second part all that certain island known as
20 % Deadman's Island," in* the City of Vancouver, in the Province of British
Columbia, on the terms and conditions therein set forth and whereas one of the
said conditions is in the following words : | Provided always, and it is hereby
agreed, that this demise may be determined by either party giving to the other
a notice thereof in writing months before the expiration of the first
of any subsequent term, or the said party of the \ first part may determine this
demise at any time, by a demand of possession of the said leased premises, or any
part thereof, if required for military or defensive purposes, and the said lessees
to have no claim for compensation for buildings erected or improvements made
thereon."
30 And whereas it is deemed advisable to modify the said lease by removing
therefrom the said conditions above recited and also any instructions as to the lawful
uses of said premises and also to provide therein for the fixing of rent from time
to time, now therefore it is hereby declared and agreed between the parties
hereto as follows:
That the said lease shall be, and the same is hereby amended by the removal
therefrom of the conditions above set forth and any restrictions as to the purposes
for which the said premises may lawfully be used and by the addition thereto of
the following provisions:
Providing always that the said lease, at the expiration of the said first term
40 of twenty-five years and from time to time at the end of each renewal term of
twenty-five years shall be renewed for a further term or terms of twenty-five
years, at a rental for each renewal term to be then determined by way of arbi-
ft I
RECORD
In the
Supreme
Court of
Brjtish
Columbia
No. 54
Exhibit 2
Lease Her
Majesty
Queen
Victoria to
Vancouver
Lumber Co.
4th April
1900
continued
tration in case of any difference as to the amount of said rental, provided always
that no such renewal or further term shall be granted unless the rents reserved
shall have been paid :
It is hereby declared and agreed between the parties hereto that this said
lease shall be construed as if the said above recited condition for its determination
had not formed part of the said lease, and if said lease did not contain the
restrictions to user, therein contained, and as if the above mentioned condition
for renewal or renewals had formed part of the said lease at the time of the
execution thereof, and it is further declared and agreed that these presents and
the said lease shall in no way be held to deprive Her Majesty of any right which 10
she, Her Successors or Assigns, or they may now or hereafter possess to
expropriate the demised premises for the public use.
THEO. LUDGATE (L.S.)
for the Vancouver Lumber Co.
Signed in the presence of
John H. Powell.
F. W. BORDEN (L.S.)
Minister of Militia and Defence.
Signed in the presence of
D. A. Macdonald.
No. 55
Exhibit 1
Order in
Council
Approving
Lease to
Vancouver
Lumber Co.
16th Feb.
1899
Privy Council, Canada.
No. 55.
EXHIBIT 1.
Extract from a report of the Committee of the
Honourable the Privy Council, approved by His
Excellency on the 16th February, 1899.
20
On a memorandum, dated 10th February, 1899, from the Minister of Militia
and Defence, recommending that authority be given him to lease Deadman's
Island, situated in Coal Harbour, Burrard Inlet, British Columbia, to the Vancouver Lumber Company of Vancouver City, British Columbia, for a term of
twenty-five years, at an annual rental of five hundred dollars.
The Committee submit the same for your Excellency's approval.
Certified a true copy. 30
JOHN J. McGEE,
Seal of Privy Council, Clerk of the Privy Council.
Canada. ^ 105
No. 56.
EXHIBIT 20.
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Ottawa, 9th March, 1899. M^orand
Right Honourable Sir Wilfrid Laurier, Aldermen of
Premier, and President of the Privy Council. aJw11™*°
oir, Laurier
In reference to the interview held with yourself and other members of the 9th Mar" 1899
Government last Tuesday, relative to the lease of Deadman's Island by the
Government for saw mill purposes, at your request, the delegates representing
10 the citizens of Vancouver herewith submit a statement of their case :
1. That in 1863 a survey was made ofthe peninsula now known as Stanley
Park, and it was set aside as 1 military and naval reserve, said reserve being
bounded on the west by English Bay, and on the east by Burrard Inlet.
2. The survey made of this block of land, the original field notes, tracings
and traverse of the inlet, etc., which were produced by the delegates and
accompany this statement and marked X demonstrate that the aforesaid reservation embraces the whole of the said Stanley Park, including that portion known
as Deadman's Island, but which may be more properly designated as peninsula.
3. That at the request of the mayor, and aldermen and citizens of the
20 City of Vancouver, on the 8th day of June, A.D. 1887, an Order-in-Council was
issued granting to the City of Vancouver the use of the aforesaid reservation
for park purposes upon stipulations named in the said Order-in-Council, and
to be held as such by the citizens of Vancouver until such time as the said
reservation should be required for military or naval purposes.
I See the following letters :—
I
Sir,
Department of Militia and Defence,
Ottawa, 12th July, 1887.
30
With reference to the petition of the Corporation of the City of
Vancouver for a grant of the military reserve at that place for the purpose
• of a park, I have now the honour, by direction of the Minister of Militia
and Defence, to transmit to you the enclosed copy of an Order-in-
Council granting the desired privilege, under certain conditions. A copy of
the Order-in-Council has also been forwarded to the Deputy Adjutant
General in command of Military District No. 11, for his information and
guidance.
I have, &c,
C. E. PANET, Colonel,
Deputy Minister of Militia and Defence.
rj 106
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
9
FULL TEXT OF THE ORDER-IN-COUNCIL.
Copy of a report of a Committee of the Honourable the Privy Council
approved by His Excellency the Governor-General in Council, on the
8th June, 1887.
On a report, dated 10th May, 1887, from the Minister of Militia and
Defence, stating that he has under consideration a petition of the Mayor
and Aldermen of the City of Vancouver, B.C., praying that the Dominion
Government military reserve, near First Narrows, bounded on the west by
English Bay, and on the east by Burrard Inlet, may be handed over to the
said Corporation for use as a park. The minister reports that he sees no 10
objection to this proposal provided the Corporation keeps the park in proper
order, and the Dominion Government retain a right to resume the property
when required at any time. The minister further states that he does not
deem it advisable to recommend that this property be transferred to
Class 2 as not available for military purposes, and until this he recommends
that the Corporation have the use of the same as a park, and subject to
the provisions mentioned. The committee advises that the Minister of
Militia and Defence be authorised to take the necessary steps for carrying
the same into effect.
JOHN J. McGEE, 20
Clerk of the Privy Council.
4. That on the 9th day of March, A.D. 1888, the City communicated with
Sir A. P. Caron, Minister of Militia and Defence, asking for information as to the
character of the title which would be given to the City relating to the lands
named in the Order-in-Council, and in response thereto was informed that no.
other title could be furnished than the said Order-in-Council, and officially
furnished to the City Council.
See the following letters:—
Vancouver, 9th March, 1888.
Hon. Sir A P. Caron, K.C.M.G, 30
Minister of Militia and Defence,
Ottawa.
Sir,
On the 12th July, 1887, a communication was received by the Mayor
of the City from the Department of Militia and Defence informing him
that by Order-in-Council, dated 8th June, 1887, permission was given to the
Corporation of the City of Vancouver to use the Dominion Government
militarv reserve, within the limits of the said Corporation, for a public park.
Said order further notified you to take the necessary steps to carry its
provisions into effect, but nothing has since been done in the matter. What 40
will be the character of the title of the said lands given to the city ? A
lease for a long period, subject to the conditions of the Order-in-Council, will
be, I presume, the mode of conveyance. Where will the necessary docu- 107
10
ments be prepared, and if by the department how soon may it be expected?
It will be difficult for the Corporation to deal with persons trespassing on
said reserve or keep it in proper order until they can show their right to
same, and I doubt if an Order-in-Council would suffice.
I have, etc.,
THOS. F. McGUIGAN,
City Clerk.
Sir,
Department of Militia and Defence,
Ottawa, 26th Feb., 1889.
I have the honour, by direction of the Minister of Militia and Defence,
to inform you that the two propositions made in the letters of yourself and
the City Clerk of Vancouver, dated respectively 9th March, 1888, and
9th January, 1889, have received due consideration, and have been decided
upon as follows : (1) With reference to the City Clerk's inquiry what title
will be given to the City of the lands which the Corporation is permitted to
occupy as a park, I am to state that no other document can be furnished
than the copy ofthe Order-in-Council of 9th June, 1887, officially furnished
to you by this department. (2) As regards the request of the Corporation
20 for a grant on account of sums already expended in improving the property
and for an annual grant for a similar purpose in future, the Minister regrets
that there are no funds available for any such purpose.
I have, etc.,
C. E. PANET, Colonel,
Deputy Minister of Militia and Defence.
5. That relying upon the Order-in Council and correspondence with the
Government and in order to comply with stipulations in the Order-in-Council
the Corporation of the City of Vancouver by bye-laws raised a considerable sum
of money to be expended in the making of roads, construction of bridges,
30 including the bridge landing on to Deadman's Island, and trails thereon, culverts
and paths through other portions of the reserve. The total expenditure incurred
in connection with Stanley Park since the Order-in-Council was passed up to the
present time amounts to one hundred thousand dollars ($100,000). For the
present year (1899) the sum of six thousand five hundred dollars ($6,500) is
included in the civic estimates for expenditure on improvements on said park.
6. As showing that the City of Vancouver has always regarded Deadman's
Island as a portion of Stanley Park, we herewith submit an extract from the
inaugural address delivered by His Worship Mayor Oppenheimer on the
5th of January, a.d. 1891—it being his third term in succession of that office—
40 who in reviewing the work of the previous year under the heading of ■* Parks and
Drives," said:
" During the past year a considerable amount of work has been done on
" some of the City parks.
" In Stanley Park the grounds leased to the Brockton Point Athletic
" Association have been cleared, levelled and Fenced.
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
oontinued
I
h
-cmrm 108
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
!#'
IA -bridge has been built to Deadman's Island, and several new trails have
I been constructed in order to make more accessible and acceptable the beautiful
| spots in that lovely demesne."
7. The expenditure of the Deadman's Island section of Stanley Park has
been greater in proportion to its dimensions than any other portion, excepting
the recreation grounds and around the neighbourhood of the Zoo and flower
gardens.
8. The request of the City Council transmitted in August last through
His Excellency the Governor-General, the Earl of Aberdeen, and Mr. Maxwell,
representative for Burrard District, was not made because the City believed its 10
title to the lands for the use of park purposes to be defective, but that the City
might be vested with the power to evict squatters and abate nuisances.
See resolution of City Council and letter of Minister of Militia as follows :—
Whereas the reserve being 950 acres known as Stanley Park situated
to the west of the City is believed to be vested in the Dominion
Government,
And whereas by a certain Order-in-Council, dated the 8th June, 1887,
the said reserve was handed over to the Corporation of the City of
Vancouver for use as a park subject to the right of the Dominion
Government to resume the property when required at any time and subject 20
to the City keeping the same in proper order,
And whereas the Corporation of the City of Vancouver has no powers
vested in it further than the right to use the said reserve as a park,
And whereas there are a number of small dwellings of a very undesirable
character existing on the foreshore and other parts of the said park
harbouring squatters, undesirable characters, such being detrimental to the
interests of the public and unsightly,
And whereas there is now no power vested in the Corporation to
prevent the continuance of the nuisances that exist and the usefulness to the
public of the park is seriously affected thereby, and in consequence whereof 30
the citizens cannot use the park to the same advantage as they could were
such nuisances repressed, and there always exists a great danger of fire
destroying the trees and beauty of the park unless control is vested in the
City,
And whereas the City has expended the sum of $100,000 in making
roads and annually improving the park,
And whereas the City annually expends a large sum of money in
improvements therein,
Be it therefore resolved that it is in the interests of the City and of
the public generally that powers be vested in the City that would enable 40
the Corporation to put an end to the nuisances that do now exist, and to
prevent the occurrence of them in future. That in order to place the
Corporation in such a position that it would be authorised to further improve
the park and keep the same more strictly as a park and for the use and benefit
of the public generally, a petition be forwarded to the Honourable the
Minister of Militia and Defence praying that an Order-in-Council be passed 16&
vesting the said reserve in the Corporation to be held in trust as a public
park, and such deed or trust should confer on the said Corporation all the
necessary powers to evict trespassers, remove undesirable buildings and
prevent nuisances, and all powers that may be deemed necessary to empower
the said Corporation to keep and preserve the reserve as a park for the
City.
Canning, N.S.
3rd September, 1898.
My Dear Maxwell,
10 With reference again to your letter of the 16 th ultimo, I have looked
over the matter and find that no lease was ever given to the City of
Vancouver by the Dominion Government. The authority is simply
contained in an Order-in-Council. I am advised that the Department
might give a lease for twenty-one years renewable under which the City
would have the power they desired. The Government would, of course,
reserve the right to take possession if necessary for military purposes, and
would put in a clause in the lease holding the Department harmless from
any trouble which might arise from dispossessing the squatters referred to.
If this will satisfy the City authorities, I shall be very glad to have it
20 carried out as soon as possible. Will you kindly ascertain and let me
know.
Yours very truly,
F. W. BORDEN.
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
30
40
9. When part of Stanley Park was required for lighthouse purposes by
the Department of Marine and Fisheries, such Department always recognised
the fact that the property is held by the City of Vancouver under the terms of
the Order-in-Council, and that no part thereof could be interfered with except
by the consent of the City of Vancouver and the Department of Militia and
Defence.
10. We desire specially to direct the attention of the Government to
the letter of the Department of the Interior to the City Clerk, dated
3rd February, 1899, enclosing the reply of said Department to an application of
Messrs. Davis, Marshall & Macneill for the purchase, on behalf of a client, of
Deadman's Island, and the City's reply thereto.
These are as follows :—
Ottawa, 3rd February, 1899.
The City Clerk, - ^ jZ%
Vancouver, B.C.
Sir,
I am directed to send you herewith a copy of a communication which
has been addressed by the Department to Messrs. Davis, Marshall and
Macneill, of Vancouver, in reply to an application from that firm to purchase,
on behalf of a client, Deadman's Island, situated in Vancouver Harbour. I
am to ask that you will be good enough to submit the application in question
f] no
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
to the Mayor and Corporation of Vancouver for an expression of their views
thereon, and to kindly advise the Department of the result.
I am, etc,,
LYNDWODE PEREIRA.
Ottawa, 3rd February, 1899.
Messrs. Davis, Marshall & Macneill,
Gentlemen,
I am directed to acknowledge your letter of the 13th ult.,
stating that a client of yours desired to purchase, if possible, 10
Deadman's Island, situate in Vancouver Harbour, near Stanley
Park, for the purpose of a mill site. In reply, I am to say that it
cannot be ascertained from the maps in the Department that any such
island as that exists in Vancouver Harbour, but there is an island which
seems to be identical with Deadman's Island, just off the shore of Stanley
Park. This island, along with the lands surrounding the harbour, at one
time formed what is known as the naval reserve, made by the Imperial
Government, and handed over to Canada. As the portion of the point upon
which Stanley Park is situated is still the property of the Dominion, and as
the island forms a part of this property, it could not well be disposed of, even 20
were the Department inclined to grant the application you now make.
However, if you will furnish more definite information on the subject, I am
to say that the matter will receive further consideration.
Your obedient servant,
LYNDWODE PEREIRA.
Vancouver, 22nd February, 1899.
To the Secretary,
Department of the Interior,
Ottawa. 30
Sir,
In reply to your communication of the 3rd February, the Council of
the City has considered the subject matter of the communication, and also
the copy ofthe letter written to Messrs. Davis, Marshall & Macneill by the
Assistant Secretary, dated 3rd February, 1899, and beg to point out that
the area of land referred to, known as Deadman's Island, is, as stated in
your communication, part of the naval or military reserve and forms part of
the property known as Stanley Park, and is at low water absolutely
connected and part of the park enjoyed by. the public.
That by an Order in Council, dated the 8th day of June, 1887, this 40
property was granted to the Corporation of the City of Vancouver for use
as a public park. That the City has since that date occupied the said
property and spent considerable money in the improvement thereof. Ill
That the said property is now being used and enjoyed by the public of
the City as a public park, it being the best and only park available for the
public.
That numbers of citizens on Sundays and public holidays enjoy
recreation and open air in the park.
That it has always been considered, by the City, and approved of by
various members of the Crown, that the said Order-in-Council by virtue of
which the park was handed over to the City was a sufficient and reliab'e
tenure of the lands to be held by the City, and owing to such assurances
10 from time to time so given, the public have been satisfied and content in
expending moneys for the improvement thereof, and that the use of the
park by them would not be interfered with unless it became necessary to do
so for military purposes only.
That the park is now the property of the Dominion of Canada as a
|§|-- military reserve.
That the City of Vancouver holds under the said Order-in-Council all
the rights over the property held by the Dominion of Canada subject only
to its resumption for military purposes.
That the property being held by the City cannot be and should not be
20 dealt with except under the Order-in-Council, that is, when required for
military purposes.
That when part of this property has been used for lighthouse purposes
by the Department of Marine and Fisheries such Department and the
Council have always recognised the fact that the property is held by the
City under the above Order-in-Council, and that no part of it could be
interfered with except by permission of the City and the Department of
Militia.
That during such undisturbed occupancy by the City since June of
1887 certain parties built shacks and became trespassers on portions of this
30 property, particularly on that portion known as Deadman's Island.
That in the opinion of the Council of the City, and on suggestion of
His Excellency, then Governor-General, it was considered desirable that such
acts of trespass on the property by unauthorised persons should be stopped
and these persons ejected. In consequence thereof the Council forwarded,.
• in August, 1898, to the Department of Militia and Defence, a resolution
of the Council asking that the said park should be vested in the Corporation, so that the Corporation would be placed in a legal position to take
proceedings against trespassers.
That in consequence of such resolutions the Honourable the Minister of
40 Militia wrote on the 3rd September, 1898, to the Member of Burrard that
he approved of a lease being granted and would be happy to see it carried
out.
That the Council of the said City on receipt of the above communication from the Minister of Militia felt satisfied that a lease would be granted
and expected to receive such a lease.
RECORD
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued 112
RECORD
In the
Supreme]
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
10
20
That a lease has beea drawn and forwarded to the Minister of Militia
with a request that it be executed.
That as the Minister of Militia agreed to give a lease, it was anticipated
that one would be forwarded.
That it was never contemplated that any other disposition of the park
would be suggested after the correspondence that had passed.
That the Council receive the communication from your Department
with surprise.
That it is of the greatest importance for the welfare and future of the
City that this property should be maintained as a public park.
That for the above reasons, and that the interests of the City would be
very materially injured by acceding to the request contained in your letter,
the ("ouncil, on Monday, the 20th day of February, resolved that the
following answer be sent to your communication :—
I That the Council is opposed to the granting of the request contained
• in the letter ofthe 3rd February, 1899, and is opposed to the operation of a
saw-mill on Deadman's Island."
I remain, Sir,
Your obedient servant,
THOS. F. McGUIGAN,
City Clerk
11. The City has not made use of the island as a cemetery as the
following telegrams from His Worship Mayor Garden will show:—
Victoria, B.C.,
8th March, 1899.
James McQueen,
Russell House,
Ottawa.
City expended three hundred, cutting trail, besides bridge. City has
not used island as a cemetery. 30
JAMES F. GARDEN.
12. In reference to the movement for the building of a dry dock, at the
close of 1890 and the beginning of 1891, and the following extracts from the bye-
law submitted to the taxpayers will show that not only no reference was made to
the selection of Deadman's Island for the site of the dry dock and arsenal, but
the terms ofthe bye-law specified the limits within which the said dry dock and
arsenal were to be constructed and which precluded Deadman's Island.
See copy of extracts from bye-law as follows :—
CITY OF VANCOUVER.
Bye-law relating to a bonus for the construction and maintenance of a 40
graving (jock and ship repairing yards for the City of Vancouver as follows :
Section 1 said bye-law reads as follows:— 113
10
That the said individual, individuals or body corporates shall by the
30th day of August, 1891, commence the construction of a graving dock and
arsenal for the repairing of ships within the limits of the City of Vancouver,
between Burnaby Avenue and Chilco Street. The cost of the construction
and equipment of said graving dock and arsenal for the repairs of ships
shall amount to the sum of one million of dollars ($1,000,000).
Advertised and forming a part of said bye-law, section 2 is as follows :—
That the said Henry Bell, Perry Cutbillde Long & Co., or the company
by them to be formed will construct the said graving dock of the following
dimensions, that is to say, six hundred (600) feet long, eighty (80) feet wide
at the gates, with a depth of water of twenty-eight (28) feet on the sill and
of good substantial stone work in the most workmanlike and skilful manner
with all the necessary appliances for docking ships on the south shore of
Burrard Inlet in the limits of the City of Vancouver between Boundary
Avenue and Chilco Street and adjacent thereto, will construct an arsenal for
the repair of ships fully equipped with all the most modern and approved
appliances for using the same.
Section 3 ofthe agreement is as follows :—
That the said graving dock and arsenal shall cost, with all the improvements and equipments for successfully working same, the sum of not less
than one million ($1,000,000) dollars.
The foregoing by-law from which the extracts are quoted was submitted
to and voted upon by the duly qualified taxpayers of the City of Vancouver
on the 22nd day of January, a.d. 1891, and carried by a vote of 353 in
favour to 16 against.
13. Regarding the application made to the Provincial Government in 1895
for a lease of Deadman's Island by promoters of a marine railway company and
corporation of the City of Vancouver took no action to oppose this application,
being advised that no such lease could be granted except by the Federal Govern-
30 ment, and that no portion of the park lands would be leased to any one without
the consent of the sa;d corporation and the Department of Militia and Defence.
14. We, therefore, in view of the foregoing established facts and documents
herewith submitted, respectfully request that the Government will be pleased to
revoke the lease of Deadman's Island granted to Theodore Ludgate, dated 16th
February, 1899.
J. C. McLAGAN.
'•>"•■ JAMES McQUEEN.
H. J. SENKLER.
20
RECORD
In the
Supreme-
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
40
FRED BUSCOMBE.
HARRY COWAN.
Herewith are appended resolutions and letters :-—
1. From the Vancouver Board of Trade.
2. From the Art, Historical and Scientific Association.
3. From the Harbour Master of the Port of Vancouver. 5
RECORD
In the
Supreme
Court of
British
Columbia
No 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
114
From the Chairman and Secretary of the Brocton Point Athletic Club.
From Captain Adair, of H.M.S. | Imperieuse," Flagship to Captain
McLeod, Harbour Master, asking that a certain portion of the harbour
be reserved for berths for ships named.
Copy of Resolution passed at a Special General Meeting op the Vancouver
Board op Trade, held in Vancouver, on the 20th day of February, 1899.
LEASE OF DEADMAN'S ISLAND.
At a general meeting of the Vancouver Board of Trade, held in the Board
Rooms on Monday, 20th February, 1899, which was largely attended and 10
thoroughly representative in its character, it was resolved that the opinion of
this meeting is thoroughly averse to the leasing of Deadman's Island by the
Federal Government as a site for a. saw-mill or any other purpose.
The island is within the limits of Stanley Park and the citizens have always
regarded it as part of the park in accordance with Order-in-Council passed by the
Federal Government some time in 1887 ; and the locating of a saw-mill of
Deadman's Island would in case of fire be fraught with extreme danger to the
whole park. Further, having made improvements on the island, the citizens feel
that with the knowledge of these facts, the claim of the Council and citizens to
the island as a part of Stanley Park should be recognised.—Carried. 20
A true copy.
WILLIAM T. STEIN,
Secretary.
5
Vancouver, B.C., 28th February, 1899.
To Alderman McQueen, City.
Sir,
I beg to enclose a copy of the resolution passed at the monthly meeting of
the Executive Committee of the Art, Historical and Scientific Association, held
yesterday afternoon. 30
While sincerely desirous of promoting the industrial development of the City
of Vancouver in every reasonable way the General Committee ofthe Art,Historical
and Scientific Association are strongly opposed to the establishment of a saw-mill
on Deadman's Island.
Yours sincerely,
H. F. DEFOREST,
Secretary of the Art, Historical and
Scientific Association. 10
115
Vancouver, 1st March, 1899.
J. C. McLagan, Esq.,
Dear Sir,
Yours of the 28th ult., received asking me how a saw-mill on Deadman's
Island would affect the harbour of Vancouver. As Coal Harbour is confined to a
limited space of anchorage and the safest in this harbour, I am of the opinion that
it would be dangerous and inconvenient to ships laying at anchor by continual
floating of booms and rafts and also the only safe place to anchor small crafts and
coasters.
I am, yours truly,
MALCOLM McLEOD,
Harbour Master.
record
In the
Supreme
Court of
British
Columbia
No. 56
Exhibit 20
Petition of
Mayor and
Aldermen of
Vancouver
to Sir W.
Laurier
9th Mar. 1899
continued
Vancouver, B.C., 1st March, 1899.
Fred Buscombe, Esq.,
Vancouver.
Dear Sir,
As you are going to Ottawa with a deputation of citizens leaving to-day to
protest against alienation of anv part of Stanley Park for commercial purposes,
20 and more particularly against the proposed lease to Mr. Theodore Ludgate for a
saw-mill site, you will please act at the same time for the Brocton Point Athletic
Club and in its name do everything possible to prevent this action.
Being a member of the Committee of the Club, you are familiar with its
object and the work it has accomplished, and can forcibly point out to the
Minister of Militia the serious objections that exist to the establishment of such
industry within the park limits.
Yours truly,
C. S. SWEENY, Chairman.
L. S. C. SAUNDERS, Hon. Sec.
30
No. 57.
EXHIBIT 25.
H.Q. 71-11-6.
Minister's Office,
Ottawa, 28th March, 1899.
Memorandum for the Deputy.
The Minister desired you to refer the Order in Council of 1887, under which
the City of Vancouver holds Stanley Park, to the Minister of Justice for this
report as to whether Deadman's Island is embraced in the reserve covered by the
No. 57
Exhibit 25
Memorandum
from
Minister of
Militia and
Defence to
Deputy
Minister
28th Mar.
1899
ri H6
RECORD
In the
Supreme
Court of
British
Columbia
No. 57
Exhibit 25
said Order-in-Council. All papers bearing on this subject, together with the
memorial of the delegates sent to this Department from the Privy Council should
be submitted to the Minister of Justice.
(Sd.) H. W. BROWN,
Private Secretary.
Certified true copy.
(Sd.) E. E. Jarvis,
Asst. Deputy Minister,
Militia and Defence.
Ottawa, November 22nd, 1909. 10
Ottawa, 29th March, 1899.
I
«
Sir,
Letter I am directed by the Minister to refer to your Department the Order-in-
Minkter Council of 1887 under which the City of Vancouver holds Stanley Park for your
of Militia and legal advice on the following points
Defence to
Deputy
Minister of
Justice
29th Mar.
1899
1. Is Deadman's Island embraced in the Reserve covered by the said Order
in Council ?
2. Is the lease granted to T. Ludgate by the Government legal and valid ? 20
These points are in addition to these already submitted in my last letter
relative to the ownership of Deadman's Island and Stanley Park.
I have the honour to be, Sir,
Your obedient Servant,
'(Sd.) K. F. PINAULT, Lieut.-Colonel,
Deputy Minister of Militia and Defence.
E. L. Newcombe, Q.C.,
Deputy Minister of Justice, Ottawa.
Letter
Deputy
Minister of
Justice to
Deputy
Minister of
Milit:a
and Defence
14th April
1899
Department of Justice, 30
Ottawa, 14th April, 1899.
The Deputy Minister of Militia and Defence,
Ottawa.
Sir,
I have the honour to acknowledge the receipt of your letters ofthe 24th
and 29th ultimo, in which you ask for my opinion upon certain questions with
respect to the reserve for military and naval purposes at or in the vicinity of
Vancouver, B.C.
As to the first question stated in your last letter of the 24th ultimo, namely :
Was the property ever transferred by the Imperial Government of British 40
Columbia before confederation ? I beg to state that it does not appear from the
papers submitted and from the researches made in 1888 by Messrs. Dnake, 117
Jackson and Helmcken, the then agents of this department, that there was
any actual transfer. The title to the public lands of British Columbia is and
always has been in the Crown, 1 but the right to administer and dispose of the
ordinary Crown lands to settlers, together with all royal and territorial revenues
arising therefrom, has been transferred to the Province before its admission into
the federal union." So it is stated in the judgment of the Judicial Committee
of the Privy Council in the Precious Metals Case, and I think that the Imperial
legislation affecting such lands, which is referred to in the report of Messrs.
Drake, Jackson and Helmcken, must be taken to have recognized and confirmed
10 such a right on the part of the Province.
The lands now in question, however, are not ordinary Crown lands. They
were apparently reserved by the Imperial authorities for Imperial purposes and
it may be well doubted whether they were affected by the legislation referred to.
In order to come to a decision upon that point, the time and manner of the first
reservation and the object of it would require to be considered and the information before me .as to these particulars is not sufficient to enable me to form an
opinion. The lands in question were not, so far as appears, transferred to the
colony in any other way.
2. For the same reason I am unable to form any confident opinion upon the
20 second question in your letter of the 24th ultimo, namely : | Who is the actual
owner of this Imperial property and in virtue of what titles or Acts of Parliament ? " If the reserve belongs to Canada it must be under section 108 of | The
British North American Act," and item either 9 or 10 of the schedule therein
referred to, i.e., either an ordinance property or as lands set apart for general
public purposes. It would not, however, be the property of Canada by virtue of
that section unless at the time of the union it was the property of the Province.
3. As to the first question in your letter of the 29th ultimo, namely : " Is
Deadman's Island embraced in the reserve covered by the Order-in-Council of
the 8th June, 1887 ? " there is no information in the papers sent by you or in
30 Messrs. Drake, Jackson and Helmcken's report or the papers which accompanied
it, which would enable me to form an opinion on this point. In the letter which
Mr. Gemmill, acting on behalf of the City of Vancouver, has written to your
minister dated the 23rd ultimo, he refers to plans of the reserve, which he states
have been deposited with the Prime Minister. These I have not seen, and it is
possible that they might throw some light upon the question. Mr. Gemmill
refers to the lands in question, including Deadman's Island, as having been constituted a reserve for military and naval purposes. In your letter of the 24th
ultimo, you refer to the property, including the island, as having been " formerly
an Imperial naval reserve," and in the Order-in-Council of 8th June, 1887, the
40 property handed over to the City as a Park is described as " the Dominion
Government military reserve." If it can be shown, as I understand may be the
case, that the Island was set apart as a naval reserve, that would go a long way
towards showing that only the parcel on the mainland was intended to be handed
over to the City.
4. As to the second question in that letter, viz.: " Is the lease granted to
T. Ludgate by the Government legal and valid ? " I may say that this question
RECORD
In the
Supreme
Court of
British
Columbia
No. 57
Exhibit 25
Letter
Deputy
Minister of
Justice to
Deputy
Minister of
Militia and
Deforce
14th April
1899
continued
fl RECORD
In the
Supreme
Court of
British
Columbia
No. 57
Exhibit 25
Letter
Deputy
Minister
of Justice
to Deputy
Minister of
Militia and
Defence
14th April
1899
continued
118
depends to some extent upon the answer to the preceding ones. Assuming, however, that Canada has a good title to these lands, the authority of the Governor
in Council would be necessary to the validity of such a lease. It does not appear
from the papers whether any such authority was obtained before a lease was
executed. I may state further that the Act respecting Ordinance and Admiralty
lands has no application to lands in question, that Act dealing only with the
lands in the older provinces which are specified in the schedule to the Act. If
•the Government can dispose of them it is only by virtue of the royal prerogative,
or under section 3 of chapter 26 of the Statutes of 1894.
Papers returned herewith. 10
I have the honour to be, Sir,
Your obedient Servant,
E. L. NEWCOMBE,
Deputy Minister of Justice.
1
wi
No. 58
Exhibit 31
Letter
Deputy
Minister of
Militia and
Defence to
the City Clerk
15th April
1899
No. 58.
EXHIBIT 31.
Department of Militia and Defence, Ottawa,
15th April, 1899.
Thos. F. McGuigan, Esq., City Clerk, 20
Vancouver, B.C.
Sir,
Having reference to the claim by the corporation of Vancouver to Deadman's
Island as part of Stanley Park and the exercising by the above corporation of
jurisdiction over it.
I have the honour to inform your corporation, through you, that Deadman's
Island has never been considered by this department as in any way forming a
portion of the Military reserve granted to your corporation by Order-in-Council
in 1887. On the contrary, it has always been held as a separate reserve subject
to such disposition as the department might see fit to make of it. qn
I have the further honour to inform you that this department granted a
lease of this Island to the Vancouver Lumber Company, of the City of Vancouver, said company to have, by virtue of its lease, full control of it for the
purpose for which the lease was granted.
I have the honour to be, Sir,
Your obedient Servant,
L. F. PINAULT, Lt.-Col.
Deputy Minister of Militia and Defence, 119 j
No. 59. #
I ] EXHIBIT 30.
In the Privy Council.
No. 29 of 1905.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA,
Between
THE ATTORNEY-GENERAL OF THE PROVINCE OF
BRITISH COLUMBIA (Plaintiff) Appellant,
AND
10 THE ATTORNEY-GENERAL OF CANADA (Defendant), Respondent.
RECORD
In the
Supreme
Court of
British
Columbia
No. 59
Exhibit 30
Record of
Proceedings
in Action
of Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
16th May
1899
RECORD OF PROCEEDINGS.
ft No. 1.
IN THE SUPREME COURT OF BRITISH COLUMBIA
Between
THE ATTORNEY-GENERAL OF THE PROVINCE OF
BRITISH COLUMBIA, Plaintiff,
AND
THEODORE LUDGATE AND THE ATTORNEY-GENERAL OF
20 THE DOMINION OF CANADA, Defendants.
Endorsement on Writ.
The Plaintiffs claim is for an injunction restraining the Defendant, his
servants, workmen, or agents from cutting down trees or committing other acts
of trespass on the property known as Deadman's Island, being situate in Burrard <Writ)
Inlet in the County of Vancouver in the said Province of British Columbia, for
damages and for a declaration that the Plaintiff is the owner in fee simple of the
said Island.
Dated the 16th day of May, a.d., 1899.
E. J. DEACON,
30 Plaintiff's Solicitor.
ORDER FOR INTERIM INJUNCTION
(Before the Honourable the Chief Justice).
Tuesday, the 16th day of May, 1899.
Upon motion this day made to this court by the Honourable Joseph Martin,
Q C. representing Her Majesty the Queen, upon reading the writ of summons
herein the affidavit of the Honourable Joseph Martin and upon hearing what
was alleged by Counsel aforesaid, and the said the Honourable Joseph Martin,
Q C representing Her Majesty the Queen as Attorney-General for the Province
(Order for.
interim
Injunction)
f
l
1
I
>HIH)UUJrll 120
Record
In the
Supreme
Court of
British
Columbia
No. 59
Exhibit 30
Record of
Proceedings
in Action of
Attorney-
General of
British
Columbia
v. Attorney-
General ot
Canada
lGth May
1899
(Order for
interim
Injunction)
continued
of British Columbia, undertaking to abide by any order as to damages which this
Court may make in case it should hereafter be of opinion that the Defendant shall
have sustained any, by reason of this order and injunction, which ought to be
paid by her Majesty the Queen, represented by the Attorney-General ofthe
Province of British Columbia.
1. This Court doth order that the Defendant, his servants, workmen and
agents be and they are hereby restrained from removing, destroying, cutting
down or otherwise interfering with any trees, lumber, logs, underbrush, or from
trespassing upon the lands known as Deadman's Island situate in Burrard Inlet
and in or near the City of Vancouver, in the Province of British Columbia, until
the seventeenth day of May instant, at two o'clock in the afternoon, or until the
motion then to be made to continue this injunction shall have been heard and
determined.
2. And the Court doth further order that on behalf of her Majesty the
Queen further affidavits may be filed and read upon the return of the motion to
continue this injunction, serving a copy thereof with the said notice of motion to
continue the injunction.
By the Court,
J. 1 DOCKERILL,
Deputy District Registrar.
20
(Order adding
Attorney-
General of
Canada)
ORDER ADDING THE ATTORNEY-GENERAL OF CANADA
(Before the Honourable Mr. Justice Irving).
The Twenty-seventh day of May, a.d., 1899.
Upon motion made this day to the Court by Mr. Alexander Henderson,
Q.C., of Counsel for the Attorney-General of the Dominion of Canada for an order
that the Attorney-General of the Dominion of Canada be added as a defendant
herein, and upon hearing what was alleged by Counsel aforesaid and upon hearing
the Honourable Joseph Martin, Q.C., the Attorney-General ofthe Province of30
British Columbia, and Mr. W. J. Bowser, of Counsel for the Defendant, Theodore
Ludgate.
And it appearing that the said Attorney-General, of the Dominion of
Canada, ought to be joined herein in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions involved in this
action.
The Court doth order that the Attorney-General, of the Dominion of
Canada, be and he is hereby added as a Defendant herein and that the style of
cause in this action be amended accordingly and that the name of the Plaintiff be as
above. 40
By the Court,
J. C. DOCKERILL,
Dep. District Registrar.
(Seal). 121
STATEMENT OF CLAIM.
1. The Plaintiff herein represents Her Majesty the Queen on behalf of the
Province of British Columbia, and the Defendant the Attorney-General of the
Dominion of Canada represents Her Majesty the Queen on behalf of the
Dominion of Canada. The Defendant, Theodore Ludgate, is a manufacturer,
residing at the City of Vancouver, in the Province of British Columbia.
2. Her Majesty the Queen on behalf of the Province of British Columbia
iff the owner of a certain parcel or piece of land known as Deadman's Island and
situate in Burrard Inlet in the said Province of British Columbia.
10 3. Prior to the issue ofthe writ of summons herein the Government of the
Dominion of Canada, through the Honourable the Minister of Militia and Defence
purported to grant a lease of the said Island to the Defendant, Theodore
Ludgate.
4. The said Defendant, Theodore Ludgate, acting under the authority of
said lease, prior to the issue of the writ of summons herein, entered into
possession of this island and cut down a number of trees growing thereon, and the
said defendant, Theodore Ludgate, asserts his right to cut all the trees growing
upon this island in pursuance of said lease, until restrained by order of this
Honourable Court.
20 5, The trees which are growing upon said island are of very considerable
value, and if the same were cut down irreparable injury would be occasioned to
the said land.
6. Prior to the issue of the writ of summons herein the Plaintiff duly took
possession of the said land.
The Plaintiff therefore claims :—
1. The declaration that the title to the said lands is in Her Majesty the
Queen on behalf of the Province of British Columbia.
2. An injunction restraining the Defendant, Theodore Ludgate, from
cutting any trees, or otherwise trespassing upon the lands.
30 3. An order for immediate possession of said lands as against both
Defendants.
4. Damages for injuries done to said lands.
5. Such further and other relief as to this Honourable Court may seem
meet.
Place of trial: Vancouver, B.C.
E. J. DEACON,
Plaintiff's Solicitor.
Delivered 30th May, 1899.
RECORD
In the
Supreme
Court of
British
Columbia
No. 59
Exhibit 30
Record of
Proceedings
in Action of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
(Statement of
Claim) 12S
I
RECORD
In the
Supreme
Court of
British
Columbia
No. 59
Exhibit 30
Record of
Proceedings
in Action of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
(Statement of
Defence of
Ludgate)
STATEMENT OF DEFENCE OF THE DEFENDANT,
THEODORE LUDGATE.
1. The Defendant, Theodore Ludgate, admits the allegations contained in
paragraphs 1 and 4 of the Plaintiff's Statement of Claim.
2. The said Defendant denies the allegations contained in paragraphs 2, 5
and 6 of the said Statement of claim.
3. With respect to paragraph 3 of the said Statement of Claim the said
Defendant, Theodore Ludgate, says that prior to the commencement of this
action, to wit, on the 14th day of February, 1899, Her Majesty the Queen,
acting through the Honourable the Minister of Militia and Defence for the \q
Dominion of Canada, being the owner and entitled in that behalf to that certain
land known as Deadman's Island, situated in Coal Harbour, in Burrard Inlet,
near the City of Vancouver, in the Province of British Columbia, by an indenture
of lease made under seal (and to which when produced the said Defendant craves
leave to refer) duly demised and leased unto the said Defendant Deadman's
Island aforesaid for the term of twenty-five years from the 1st day of March,
1899, and renewable.
4. Acting under the authority of the said lease, the said Defendant,
Theodore Ludgate, long prior to the commencement of this action, and before
the alleged taking possession by the Plaintiff of the said Island referred to in 20
paragraph 6 of the Statement of Claim herein, entered into possession of the
same, he proceeded to make improvements thereon, and the said Defendant was
continuously in possession of the said island from that time, and he is now in
possession of the same, and submits that he is entitled to the possession thereof
and all the powers by the said lease conferred, including the right of cutting
timber and logs thereon, as therein set out.
Delivered this 27th day of June, 1899, by William John Bowser, Solicitor
for the said Defendant, Theodore Ludgate.
(Statement of STATEMENT OF DEFENCE OF THE ATTORNEY-GENERAL OF THE 30
DOMINION OF CANADA.
Attorney-
General of
Canada)
1. The Defendant, the Attorney-General of the Dominion of Canada,
admits the allegations contained in the first paragraph of the Plaintiff's
Statement of Claim.
2. The Defendant, the Attorney-General of the Dominion of Canada,
denies each and every allegation of fact contained in the second paragraph of the
said Statement of Claim.
3. The Defendant, the Attorney-General of the Dominion of Canada,
further says that the land known as Deadman's Island is not nor ever was owned
by Her Majesty the Queen on behalf of the Province of British Columbia, and 40
that the said land known as Deadman's Island formed part of land duly reserved
for and on behalf of Her Majesty's Imperial Government. 123
4. The said land known as Deadman's Island is the property of Her
Majesty the Queen in right of the Government of the Dominion of Canada.
5. The Government of the Dominion of Canada, represented by the
Honourable the Minister of Militia and Defence, duly leased the said lands
known as Deadman's Island to the Defendant, Theodore Ludgate, under and by
virtue of an indenture of lease, dated the 14th day of February, a.d. 1899, which
lease is a good and valid lease.
6. The Defendant, the Attorney-General of the Dominion of Canada,
denies each and every allegation of fact contained in paragraph 6 of the said
10 Statement of Claim, and further says that the Government of the Dominion of
Canada is in possession of the said lands by itself or by its tenant.
Delivere 1 the 28th day of June, a.d. 1899, by Alexander Henderson,
Solicitor for the Defendant, the Attorney-General of the Dominion of Canada.
Between
No. 60.
EXHIBIT 27.
THE ATTORNEY-GENERAL OF BRITISH COLUMBIA
AND
THE ATTORNEY-GENERAL OF CANADA.
EVIDENCE OF ALFRED R. HOWSE.
20 21st December, 1900.
ALFRED RICHARD HOWSE, sworn, examined by Mr. Peters :—
Q. What is your full name ? A. Alfred Richard Howse.
Q. Where do you live now ? A. North Arm, Burrard Inlet.
Q. When did you come out to this country ? A. In 1859. April, 1859.
Q. What was your occupation previous to the time you came out ? A. I
was in the Royal Engineers, and remained in the Royal Engineers—came out
with them.
Q. To what department of the Royal Engineers did you belong ? A. The
Survey Department.
30 Q. Were you on a survey in England ? A. Yes; for a considerable time in
Edinburgh.
Q. Was that the Ordinance Survey ? A. It was the Ordinance Survey.
Q. What was your rank in the service ? It was corporal.
Q. Who was in command ofthe detachment you came out here with ? A.
Col. Moody ; the officer immediately over us was Capt. Parsons.
Q. Col. Moody was the commander ? A. He was the commanding officer.
RECORD
In the
Supreme
Court of
British
Columbia
No. 59
Exhibit 30
Record of
Proceedings
in Action of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
(Statement of
Defence of
Attorney-
General of
Canada)
continued
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec,
1900
Q. How many men came out with you ? A.
150 altogether
O
n
n 124
i
i
9
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
V. Attorney-
General of
Canada
21st Dec.
1900
continued
10
Q. How many of them were surveyors ? A. I should think—my memory
fails me there—but I should think twenty (20); I should say so.
Q. What employment did you go into shortly after you came out ? A.
Engaged in the Lands and Work's Office, as clerk, having the records in charge.
Q. When did you begin that employment ? A. About three months after
we arrived, two or three months—I cannot say to a few days.
Q. How long did you remain in that office ? A. Remained there until 1878,
I think, 1878 I left.
Q. How long did Col. Moody remain here after you went into that office;
what year did he go away? A. Went away in October, 1863.
Q. Where was that office at that time ? A. At New Westminster, a place
known as the Camp.
Q. Was that the Engineers' Camp ? A. Engineers' Camp.
Q. Was that in New Westminster or near it. A. About a mile from it.
Q. Who was the head of that office? A. Captain Parsons, for the Survey
Department.
Q. Who was the head of the Land and Works Department ? A. Chief
Commissioner of Lands and Works, Col. Moody.
Q. That is the position he acted in ? A. Yes.
Q. Do you remember the fact of a proclamation as to pre-emptions being 20
issued here? A. Yes, on the 4th of January, 1850; made by Sir James
Douglas.
Q. You remember the proclamation;. the fact ? A. Perfectly well.
Q. At that time, did you or did you not know of there being reserves on
Burrard Inlet ? A. Yes.
Objected to by Mr. Duff. Question and answer allowed.
Q. Prior to the issuing of that proclamation, the pre-emption proclamation,
which you remembar, had there been any survey made of the land ? A. (No
answer).
Mr. Duff asks for a ruling on the question. 30
Q. I want to know, prior to the time that pre-emption proclamation was
issued, had there been any survey made of the land on the south side of Burrard
Inlet, including the shore around Stanley Park in that direction ? A. Referring
only to the inlet—no survey made.
Q. You have stated that you know of reserves being on Burrard Inlet 1 efore
that; now, I want to ask you whether it was known generally at that time that
there were reserve for military purposes, which included what is now called
. Stanley Park, and what is now called Deadman's Island, before the proclamation
was issued ?
Mr. Duff objects that the question is leading, and that reserves can only be 40
made by executive act, and there could apart from that be no reserve in fact, as
distinguished from even a reserve in law. The point really is, had the Governor
reserved from sale or pre-emption under Section 3 ofthe proclamation of 14th
February, 1859 ? Evidence of reputation on that point is not admissible. 125
Mr. Peters contends that here the fact of reservation can be proved by
evidence of reputation. The returns and correspondence now in showed that
there were reserves, for which no record of any executive act existed.
The Court observed that there is no evidence of executive acts in relation to
these matters, and suggested the Provincial Secretary be called before resort is
taken to proving of reserves by hearsay or common knowledge, and that the
Counsel has not brought himself within the rule laid down (in Taylor), but before
being forced to give a ruling would like the Provincial Secretary summoned, and
his evidence given to assist the Court to determine the matter.
10 Ultimately the Judge ruled that there was sufficient foundation for the
reception of hearsay evidence.
Examination suspended. Adjourned until 2 15.
At 2.15.
Argument resumed and examination ofthe witness Howse taken up at the
point reached before adjournment.
Q. I want to ask you, before the proclamation about the pre-emption, that
you remember, before that time, what have you to say, as to whether or not there
was known to be reserves at Burrard, military reserves at Burrard Inlet ?
Mr. Duff objects that it is one thing to give evidence as to the existence of
20 reserves, and another as to the character of the reserves, in which the public
could not possibly be interested. Objection sustained.
Q. Now then, Mr. Howse, I will ask you this question : before that proclamation was given—was made, as you remember that was in 1860, what have yon
to say as to there being reserves at what is known as Stanley Park and Dead-
man's Island ? What have you to say about that ?
Objected to on the ground that all Counsel can ask is as to what declaration,
if any, of deceased persons, were made, as to the right of the public to purchase
or pre-empt lands there ; what is to be considered in this case is the public right,
not evidence of specific facts.
30 After argument the Court held the question could not be asked, as to general
reputation.
Q. You knew Col. Moody, did you not ? A. Very well.
Q. Is he alive or dead ? A. Dead, I believe.
Mr. Dupe—How does he know ?
Mr. Peters—He is dead, several years ago.
Q. Did you ever have any conversation with Col. Moody, who is now dead,
as to the reserves on what is now known as Stanley Park and Deadman's
Island ?
Objected to by Mr. Duff as not coming in on this head; Col. Moody could
a a not be said to be a disinterested person : on the ground that an ordinary conversation with Col. Moody is not admissible as evidence of reputation. Question
allowed; repeated by Counsel as follows :—
Q. The question I asked you was : Were you present at any conversation
with Col. Moody with regard to the question as to whether the lands now covered
by Stanley Park and Deadman's island were reserved or not ? A. Not directly
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney
General of
British
Columbia
v. Attorney*
General of
Canada
21st Dec.
1900
continued
fl 126
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
on Deadman's Island, but generally I had frequent conversation with Col. Moody
on subjects of that kind.
Q. Where ? A. In the Land Office, sometimes in his private office and his
residence.
Q. Was there any talk as to the utility of any of these properties as reserves ?
A. Oh. frequently I have heard gentlemen, officers—
Mr. Duff objects that the witness says he has not heard any specially as to
Deadman's Island ? Sustained.
Q. Ihe question I want to ask you, Mr. Howse, is this : Have you heard
conversation with regard to the value of Deadman's Island or Stanley Park, or 10
both, or either of them, for military purposes ?
Mr. Duff objects that a conversation would be altogether too remote for the
purpose of showing Governor Douglas had exercised his power for the purpose of
reserving that property for military purposes. Sustained.
Q. Do you know of any instructions being given by Col. Moody with regard
to reserves at Burrard Inlet ? A. Do you mean with regard to survey ?
Q. Yes. A. Yes, 1 remember the surveys being made.
Q, You remember the surveys being made ? A. Yes, although not present;
I remember that being authorised.
Q. Who made that survey ? A, A man by the name of George Turner. • 20
Q. Is that the witness who was here ? A. Yes.
Q. After the survey was made, do you know what became of the field notes' ?
A. I have seen the field notes and there was also a plan.
Q. Where were the field notes filed ? A. In the Lands and Works Office.
Q. Were you in the Land Office at that time ? A.I was.
Q. Did you have charge of that department ? A. No, the field notes were
taken to the Survey Office, that is, the drawing office.
Q. Did you see the field notes ? A. I have.
Q. Were there plans made from these field notes ? A. Yes.
Q. There were plans made ? A. Yes. 30
Q. How many plans were made; do you know how many copies ? A. The
first, I remember distinctlv, was made on a chart, an outline chart from Capt.
Richard's survey of the inlet; that was the only means—
Q. I want to get the plans made from Turner's survey; how many copies
made from that ? A, I was about to show you how the plan was constructed.
Q. Go on about this one ? A. That was the only means we had, there had
been no triangulation or traversing by the Royal Engineers. The consequence
was a scale map, but—
Q. Was that before Turner's survey or afterwards ? A. What I am speaking
of was afterwards, and the plot then on Turner's survey was distinctly shown on 40
this plan that I speak of. There have been several subsequently, but they all
originated from that survey and those charts,
Q. There were plans then made, were made from Turner's notes
there? A. Certainly.
Q. In the drafting office ? A. Yes, sir.
Q. Do you know where these plans were sent to ? A. Were sent ?
were 127
Q. Who were they given to ? A. Captain Parsons ; they were made under
the authority of Captain Parsons.
Q. After they were made, what happened to them ? A. The notes have
been filed, and some of the charts are still in existence, that is, the official
charts. These charts will be found to bear the name of Colonel Moody, signed
"Colonel Moody," and stamped with the seal of the Land and Works
Department.
Q. Who were they sent to, what officials ? A. Kept in the office ; all kept
in the office.
10 Y. Who was the man in England who looked after the fortifications; do
you know ?
Mr. Duff objects.
A. The Inspector-General.
Q. Of fortifications ; were any of these plans sent to him ?
Mr. Duff objects.
A. Tracings of the plan were sent to him.
Q. Who else were the tracings sent to ; what other person?
Objected to by Mr. Duff that the witness can know nothing about that;
also to the method of proceeding to prove the sending of this plan to the
20 Inspector-General of Fortifications. fc
As far as he knows there is no letter sending the plan. Subject to further
argument, the court does not think this a proper thing to do.
Mr. Duff undertakes to have a thorough search for the letter made.
An adjournment is taken to 7th January, 1901.
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney.
General of
Canada
21st Dec.
1900
continued
7th January, 1901, at 11 a.m.
Mr. Bodwell and Mr. Duff for the Attorney-General of British Columbia.
Mr. Peters and Mr. Howay for the Attorney-General of Canada.
Mr. MacDonall for the Defendant Ludgate.
30 Mr. Peters—I gave my learned friend notice to produce all letters or copies
of letters from Colonel Moody, and any other official of the Government of B.C.
to the Governor of B.C., or the Inspector-General of Fortifications, covering the
enclosure of the plans, showing the Naval Reserve on Burrard Inlet.
Mr. Duff states that he has been unable to find any letter of that kind.
Mr. Peters also gives notice to produce letter book containing copies of
letters from Colonel Moody.
Mr. Duff states that will be here shortly, the two asked for will be here.
Mr. Peters also asks for the original instructions for surveying, issued to
George Turner, as he desires to put it in, and supposes there is no objection to
40 that.
Mr. Peters tenders the original, but will substitute copy (dated 26th
January, 1863) headed "Capt. Parsons" and signed "R.C.M." indent 20,
marked Exhibit 8. 128
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
i
10
20
Mr. Peters also formally tenders the field notes on the ground that they are
public documents coming from proper custody, and that they are public
documents which have been deposited as a matter of record and acted upon.
Mr Duff objects and understands His Lordship ruled on that before j unless
his learned friend can bring these field notes home to Governor Douglas in some
way, then he submits they are inadmissible.
After further argument, the field notes are marked for identification.
The original endorsement of them is as follows: | New West. Dist.
Survey of Reserve at English Bay and North of 1st Narrows, 181 and 185 G. I.
Survey of Coast Line round Coal Peninsula 4."
Mr. Peters enquires if Counsel produces plan of Deadman's Island made
from Turner's notes.
Mr. Duff does not know of any plans by that description.
Mr. Peters says the plan was in the Land Office as late as 1880, and if not
produced, he will give secondary evidence of it.
Mr. Duff has no information to enable him to judge whether any plan was
made by Landers. He now produces a plan marked by Landers.
Mr. Peters required plan of survey of Deadman's Island and vicinity made
from Turner's notes, about 1863, by J. B. Landers.
After further argument, the Court suggests it may be as well to say Mr.
Duff tenders a plan which for the purpose of indentification, is marked so and so,
and Mr. Peters that it is not the one he wants, or otherwise, they may be
at sea.
Mr. Peters is going to put the plan in.
The Court remarks that Mr. Duff produces a plan already in, marked ■' 4,"
and Mr. Peters that it is not the plan he wants.
Mr. Peters assents, and asks Counsel to produce the original commission of
Governor. Douglas.
Mr. Duff states they haven't it, a copy has gone in. As to Colonel Moody's
commission, they haven't it, and never had it. 30
The Court understands it was agreed between the Counsel that all book
Exhibit 6 should go in.
Mr. Peters now asks for production of plan marked | D" produced on
injunction.
Mr. Duff had mislaid it, but will let his learned friend have it.
Mr. Peters asked for admiralty charts of Burrard Inlet and vicinity, known
as Capt. Richards' or Admiral Baynes' charts, or any other name.
Mr. Duff produces the Admiralty plan.
Mr. Peters is not going to put in a chart that was issued by the C.P.R.
Mr. Duff submits that having produced it, it will have to go in. 40
Mr. Peters is not bound to put it in, and.refuses.
After argument, the Court decides it is material to a certain extent, but
does not say how much, and should be marked.
Mr. Peters points out that it is put in against -his wish.
Marked Exhibit 9.
Mr. Peters asks for production of all plans filed in the Lands and Works' 129
Department, or Deadman's Island and Stanley Park, signed by Colonel Moody,
Commissioner of Public Works.
Mr. Duff offers a plan : 1 Plan drawn and traced by Landers," showing
Stanley Park and Deadman's Island, referring to the one asked for before
(Exhibit 4).
Mr. Peters does not propose to put it in now ; (tracing handed Mr. Peters)
but wants to know whether plan offered shows the whole ofthe Park and Island :
complains of the ruling which does not allow him to look at the plans. In reply
to the Court, states that it is not the plan he wants; was asking for the plan
10 signed by Colonel Moody showing Stanley Park and Deadman's Island, the
" plan offered by Mr. Duff Was not the plan asked for. The plan now asked for is
signed Colonel Moody, showing Deadman's Island and Stanley Park. The rule
is he simply looks at it—
The Court—It seems to me that it puts you in a very equitable position.
Why should you call for one series of plans and look at another, and he (Mr.
Duff) says these are in the Public Works Office.
Mr. Peters points out that in this case you cannot get as full discovery as in
an ordinary case ; wants a plan showing the whole of Stanley Park.
Mr. Duff states that is all they have been able to find.
20 Mr. Peters reads from notice to produce from the words | Dominion Govern
ment allege " down to i Burrard Inlet" ; those tracings he required production of.
Mr. Duff states that they haven't any of those tracings. The documents
were shifted from New Westminster to Victoria, and it is possible that in very
early times, some of these documents might have been mislaid.
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
ALFRED RICHARD HOWSE, Examination resumed by Mr. Peters :-
30 Q. Do you remember, seeing Mr. Turner's field notes? A. Perfectly
well.
Q. Where were they filed—kept ? A. In the Lands and Works Office, in
the Survey Department.
Q. Who had charge of that particular department ? A. In early days,
Capt. Parsons.
Q. Were there any plans made ? A. Several.
Q. Did you see them ? A. I have seen them frequently.
Q. What were they made from ? A. One index plan was made from Capt.
Richards' Admiralty charts.
40 Q- What material was used in filling up the plans ? A. Double drawing
paper.
Q. From what source did they get the information to put in the plans ? A.
Very little information, excepting for the reserves.
Q. The reserves, what were they got from? A. From Capt. Richards'
Admiralty chart, or a copy of it.
Q. Mr. Turner's notes were filed in the Lands Office ? A. Survey.
I 130
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
Q. Were they used for any purpose ? A. They were Used, the reserves
were surveyed, and these notes were filed for future reference.
Q. In making the plans, was any use made of them ? A. Yes, sir,
certainly.
Q. What use was made of Turner's notes in making the plans ? A. Plotted
on the plans I referred to.
Q. Who by ? A. That I can scarcely say, but it must have been Mr.
Landers, Mr. Sinnett, or Mr. Armstrong—there were three of them ; nearly all
the men could do a little draughting.
Q. What became of the plans after the plotting was made of them ? A. 10
They were still retained in the Land and Works Office until Col. Moody went
away. Just previous to his going away they were signed in my office, that is the
record office down below the drawing office, in the presence of Capt. Luard,
myself, and I think Capt. Grant.
Q. Signed by whom ? A. Col. Moody.
Q. Anything else done but sign them ? A. I don't remember, there were
no witnesses to my knowledge.
Q. They were signed by Col. Moody; what happened to them then ? A.
Sealed with the seal of the Lands and Works Department.
Q. According to your recollection, how many plans were there shewing 20
Burrard Inlet ? A. Took the whole of them, 4 or 5.
Q. Relating to what part of the country ? A. Two of these plans relate' to
Burrard Inlet, and the land along west of New Westminster.
By the Court—Two of them ? The Witness—Yes, my Lord.
Q. And the others related to where ? A. The New Westminster district;
some across the river, and some at the Pitt River.
Q. So that the whole thing was not put on one plan ? A. Oh, dear no, a
box more of these, indeed all the surveys were isolated ; they were not under
triangulation, excepting two or three in the neighbourhood of New Westminster. 30
Q. And having been signed and sealed, what became of these plans ? A.
They were deposited in a file, not a file, just a drawer, specially put aside for them
in the Lands Department.
Q. Under whose charge ? A. I am speaking of Mr. Trutch, Sir Joseph
Trutch's time, and the two temporary commissioners before him.
Q. What particular official in that department had charge of those plans ?
A. I had chief charge of them.
Q. For how many years did you have charge of them ? A. Up to the
Federation.
Q. Just give us exact date you went out ? A. Up to about 1871. 40
Q. How long had you charge of the records; from what date ? A. From
either October or November, 1863.
Q. Did you leave the office in 1871 ? A. No, certainly not.
Q. Where did you go then ? A. Before I was in the Royal Engineers I
was then appointed clerk in the Land Office, and had charge of the deeds, made
up the tracings for the deeds, and things of that kind. 131
were.
Q. When did you actually leave the Land Office ? A. I think in 1878.
Q. When you left the Land Office were those plans there? A. They^
RECORD
Q. The plans that were signed and sealed ? A. Signed and sealed ; and not
only that, they were in a strong room of the Land Office, in a plan case, in the
In the
erne
Court of
British
Columbia
bottom drawer.
No. 60
Exhibit 27
Q. Now, Mr. Howse, have you seen these plans on many occasions, or not ? . —
A. Yes, on many occasions. A.^Howfe
Q. Have you had occasion to use them for any purpose when you were °n trial of
10 there—to refer to them ? A. I have had to refer to them frequently. GenemTof
Q. During that period you were there up to 1878, how often did you refer co1tisllb-
to them, and for what purpose would you have to refer to them ? A. For title I Attome -
deed for tracings on title deeds—grants in those days had a small tracing Canada! °f
attached to them, showing the plan to which they referred. 2ist Dec.
Q. What were those tracings taken from ? A. The generality of them from continued
the official plan.
Q. You say you have seen those plans often; now, I want to know whether
one of those plans signed there showed what is now known as Stanley Park and
Deadman's Island ? A. Yes.
20 Q. The whole of them ? A. Yes, I believe the whole of them to the best of
my belief.
Q. Can you tell me how Stanley Park and Deadman's Island—were they
coloured in any way on those maps ? A. Stanley Park in red, the military in red,
the naval reserves in blue, and the town sites—
Mr. Dupe—I object to that.
The Court—The answer is subject to objection, which is now taken, the
witness being deaf.
Mr. Duff points out there are two objections to the evidence of this witness :
submits that a general statement that the military reserves were in red and naval
30 in blue is not evidence, and cannot go in at this date, because there is no evidence
to show there were any military reserves; goes right to the crux of the question
and his learned friend ought to show this witness's knowledge before it can ^o in.
In addition, there is an objection to the admission of any evidence of plans, or
any statement contained in those plans as evidence, showing there was a reserve,
and if so, what kind of a reserve at Stanley Park and Deadman's Island. Mr.
Turner has been called, and in so far as he has got such knowledge as would
enable him to give evidence on that point, he can give that evidence; that for
that purpose the map will not be admissible.
Mr. Peters has already stated that he is not in a position to produce any
40 evidence in the point that Governor Douglas ordered this particular piece of land
should be made a reserve ; it is not necessary—the statute proclamation and
instructions contain no such statement that there must be a record ; it is common
knowledge in those days that records were not kept.
A Government of this Province may make admissions which bind them, and
may by their acts, make such an admission. Certain things may be proved
against them by their acts. To find out how these reserves stand, the proper
fi
ffl
i RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
132
place to go is the records of the Province, and particularly where things of this
kind would be found. They go, beginning about 1873, and at the instance ofthe
Prov. Government that office is applied to and asked to state what lands in the
Province, as a matter of fact, are reserved. A formal return is put in in 1873,
and gives the source from which that return is made, laying down the piece of
land we are dealing with, as a military reserve. You cannot start at the
beginning, anv more fhan where you presume a grant by lapse of time, here the
presumption arises by the way they deal with the matter.
At this point the Court called upon Mr. Duff for further argument upon the
admissibility ofthe return of the Provincial Legislature, dated 14th January, 10
1873, Exhibits 5 and 7.
After argument, the Court rules as follows : It is very clear to my mind
the return should go in, as it has at present some material effect which may be
nullified or detracted from later, this point is not clear as I should like it, but
some weight should be attached to such.a solemn document, though I cannot say
now how much. It is safer under all the exceptional circumstances to allow the
return to go in, than to rule it out.
Adjourned until 2.15.
At 2.15.
20
1
1
A. R. HOWSE, EXAMINATION RESUMED BY Mr. PeTERS :—
Q. Now, I asked you with regard to these plans that were sealed and signed
by Col. Moody ? A. Quite so.
Q. And you stated that on these plans naval reserves were coloured
Mr. Duff objects.
The Court points out that they have not got as far as that, but simply to
the point that the return is now in; part of the argument was based on the
assumption that the return was in ; Mr. Duff took exception that it was not in ;
that was ruled in Mr. Peters' favour. The next point comes up, and there is an
objection. 30
Mr. Peters states that he has proved by this witness a certain plan, showing
Deadman's Island and Stanley Park was filed in the office of the Lnnds and
Works Department; that the plan was signed by Col. Moody, and sealed with
the seal of the department, and had given the other side notice to produce that
plan. They produced one which did not contain Stanley Park, or only a small
portion of it; had given notice to produce another plan, and they could not
produce it; he now proceeds to give secondary evidence of it.
Mr. Bodwell states that the plan shows nothing more than that Turner's
notes are incorporated into it. The plan proves nothing as the man who
compiled it is here. It amounts only to this—that this was Turner's opinion, 40
but it does not show the executive authority for that opinion.
Mr. Peters replied that he is not putting in the map as having anything to
do with Turner's notes, but as being recognised by the proper department of the 133
continued
Provincial Government as a correct statement of the Government's rights in that REC(DRD
locality. In the
After further argument, the Court ruled that the map from which the oSSo?
return was made should go in following the return ; and. therefore in its absence British
secondary evidence might be given. Columbia
Q. I want to ask you if there is anything* on the plans to indicate naval or ,N?: £0
•v, 0 J J & r Exhibit 27
military reserves l. _
Mr. Duff objects that the question involves an inference. Sustained. A^iTwse
Q. Will you tell me what was on the plan ? A. On the plan I call the on trial of
10 Index Plan ? Attorney-
_ . General of
Q. No, no ; I want the plan you have referred to, showing Deadman s British
Island and Stanley Park ? A. Shown as a military reserve. «.°A*torney.
Q. What was shown as a military reserve ? General of
Mr. Duff objects that his learned friend is not entitled to ask that question; 21^ Dec.
it involves an inference.
The Court rules the question admissible, and suggests a different form for it.
Q. I simply ask you what was marked as a military reserve ? A. What is
now called Stanley Park and Deadman's Island.
Q. Will you tell me how they were marked ? A. In writing and by
20 colour.
Q. What was written on them ? A. Military reserve.
Q. On what part of the plan were the words " Military Reserve " written ?
A. On the place called Stanley Park.
Q. And on the other part called Deadman's Island was there anything ?
A. I think it was simply " R" for reserve.
Q. Written ? A. As the so-called Deadman's Island is an integral part of
a military reserve.
Q. Was there any colour on the plan ? A. Yes, sir; there was.
Q. With regard to the particular part of Deadman's Island and Stanley
30 Park, was there any colour on the plan ? A. Yes.
Q. What was it coloured ? A. Red.
.Q. How was that colouring put on? All over, or around, or how was it ?
A. AJ1 over the plan, within the boundaries of the park.
Q. What about Deadman's Island ? A. The same way.
Q. What colour was on Stanley Park ? A. Stanley Park was red.
Q. What colour was on Deadman's Island ? A. Red.
Q. Were there more than one set of these plans ? A. Tracings were made.
Q. Tracings were made from that plan ? A. From that plan.
Q. How many ? Do you know ? A. I think at least two—two sets.
40 Q. When they were made, what happened to them ; how were they marked
or identified in any way ? A. As tracings from the official plans.
Q. Were there any signatures put to them? A. It would be signed by
Col. Moody in his capacity, not as a military engineer, but as Chief Commissioner
of Lands and Works—the tracings.
Q. What became of those tracings ? A. One set would go to the Governor,
'A
%m\
5
h
1 134
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney*
General of
Canada
21st Dec.
1900
continued
Q. As a matter of fact, do you know what became of them ? A. I beg your
pardon.
Q. Do you know what became of those tracings ?
Mr. Duff : If my learned friend is going to ask him how he knows .
Q. How do you know what became of them ? A. Because they were sent
by letter to the Governor.
Q. Did you send them ? A. No; they were recorded in a book called the
letter book outwards.
Q. Who did send them ? A. Col. Moody, by his orders.
Q. Was there a letter book kept ? A. Yes. 10
Q. About what date would this be ? A. This must have been in the latter
part of 1863.
Q. Now, do you know, as a matter of fact, if there was a letter book ? A.
There was a letter book.
Q. Did you see it ? A. Oh, many times.
Q. Where was it kept? A. Kept in the Lands and Works Office, or
rather, the Works Department of the Land Office.
Q. Were the letters copied in that ? A. Letters outwards were copied •
letters inwards were indexed and pigeon-holed.
Q. Was that letter book there when you left ? A. Yes. 20
Q. That was in 1878 ? A. Yes, sir.
Q. Did that contain the letters from the Lands and Works Department to
the Governor ? A. To the Governor, under the different headings of | To the
Governor."
Mr. Peters—I ask my learned friend to produce that letter book.
Mr. Duff—Which do you want ?
Mr. Peters—Letter book of 1863, containing letters or- copies thereof,
from Col. Moody, and any other official of the Government to the Governor of
B.C., mentioning particularly, covering the enclosure of the plan showing the
military reserve. 30
Q. Have you any idea what part of the year it would be in ? A. When the
tracings were sent away would be sometime in October, 1863.
Mr. Duff—I am sorry I have not got October here; will send over for
October.
Mr. Peters—May be in September.
Q. Now, as a matter of fact, were there letters written to the Governor at
that time ? A. Yes.
Q. Relating to the tracings ?
Mr. Duff objects, and states that he will produce every document Mr. 40
Peters calls for. The witness has said that letter was copied in a letter book.
My learned friend shall have the letter book, and see the letter which never
existed in the wide world.
Q. There are two tracings ? A. Yes, sir.
Q. What became of the other one; did that remain in the Land Office ?
A. No 5 would go direct to the Supreme Government. rJL
Blue.
A. Yes, burnt sienna.
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
135
RECORD
Q. Did you ever see those tracings again ? Those two tracings, did you ever
see them any more ? A. Never. Supreme
Q. Now, on the plan you were referring to, you have stated that Stanley Court of
Park and Deadman's Island were coloured red ; any other colouring on the Columbia
plan ? A. Yes, sir.
Q. What colour was on the plan beside red ? A
Q. What parts were coloured blue ? A. Naval.
Q. Was there any other colouring on the plan ?
Q. That is brown, we may call it ? A. Brown.
10 Q. What did that represent ? A. Town sites.
Q. So that there were three colourings on the plan? A. Three colourings, cSumbia
Q. Do you happen to remember the date when the first Royal Gazette | Attorney
came out in this Province -Provincial Gazette ? A. I think it was in 1863—Canada
62 or 3, I could not say for certain. uSon1*80,
Q. Now, you know Colonel Moody very well ? A, Very well, indeed. continued
Q. How long was he Commissioner of Lands and Works ? A. He came out
in 1859, before the main body came out.
Q. The main body of the Royal Engineers ? A. The main body of Royai
Engineers ; and remained until October or November, 1863.
20 Q. Then he went back ? A. Then he went back. .
Q. He is dead, is he ? I think you swore that the other day. A. Yes, sir.
Mr. Duee —He does not know anything about it; he cannot swear that.
Q. Did you have conversation with Colonel Moody ? A. Very frequently.
Q. What was Stanley Park called in those days ? A. It was known as a
military reserve.
Q. Any other name ? A. Coupled with that of the First Narrows.
Q. Did you have any conversation with Colonel Moody, as to Deadman's
Island and Stanley Park, as to their utility for military reserves ?
Mr. Duff—That has been ruled out.
30 Mr. Peters—I don't understand that.
The Court—Did not that come in Mr. Turner's evidence ?
Mr. Peters—That is, as to general reputation; that was as to the question
of general reputation as to military reserves.
Mr. Duff—I don't think it was Colonel Moody, it was generally whether
he had conversation with officers, but Colonel Moody's declaration on the subject
cannot be evidence.
Mr. Peters—I am asking a question as to whether these were useful as
military reserves.
Mr. Bodwell—That is entirely immaterial; that is plainly irrelevant.
40 The Court—I have dealt with this in two branches. The first is the
question of its utility ; I think this clearly objectionable ; I sustain the objection
on that ground.
Mr. Peters—Your Lordship sees that it does not always follow, if you put
a question, you have got to stop there. I have the right to strengthen the
evidence on that point. I have the right to ask this witness what Colonel
Moody, a man interested in the whole matter, what he told him with regard to
6
mm 136
Record
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
. Attorney-
General of
British
Columbia
v. Attorney
General of
Canada
21st Dec.
1900
continued
being reserves there, and I have the right to strengthen the probability of that
being a correct statement by showing—
The Court—I have to rule of course some way that will not involve two
propositions in the same question. I might accede to one and disagree with the
other, I have to deal with them as they come.
Q. I ask you, did you have any conversation with Colonel Moody as to there
being reserves at Stanley Park or Deadman's Island ?
Mr. Bodwell- -The objection we take is that Colonel Moody's declaration
would not bind him to any subject. There is no foundation as yet as to Colonel
Moody's declaration on any point. His statement that somebody else had made 10
a reserve, would not be evidence, and the circumstances under which it was made
would have to be proved first.
The Court—Is not that a question of general reputation ?
Mr. Duff—Your Lordship will remember that a statement as to general
reputation must be made by a disinterested person.
After further argument, the question is repeated by the stenographer to the
witness, and the Court rules that the question is admissible.
Mr. Peters—I don't wish to ask that question.
The Court—You had better form a new question. .
Mr. Peters—I put that question using the word | Military." 20
His Lordship referred to his notes, and found that the question as taken
down and read to the witness by the stenographer agreed with the notes of the
court.
The question is ordered to be amended by the addition of the word | Military,"
and is again read to the witness by the stenographer.
The Court—The following ruling I gave the other day, I think the question
is admissible.
Q. Do you remember Sir Joseph Trutch ? A. Very well.
Q. What position did he hold ? A. Chief Commissioner of Lands and
Works. 30
Q. From what time did you know him holding chat position ? A. I think it
was in the early part of 1863.
Q. Until when ? A. Until Federation in 1871.
Q. Did he act after Federation; did he act in that capacity after Federation ?
A. A short time, I believe.
Q. He left that Province ; does he reside in this Province now.
Mr. Duff—I admit that.
Mr. Peters—It is admitted Sir Joseph Trutch resided in England. Subject
to that letter being produced. That is all I have to ask.
The Court-—Do I understand there is no cross-examination of this 40
witness ?
Mr. Peters—My learned friend has to produce the letter book, which I
would very much like to see before this witness is cross-examined.
Mr. Duff—I have the letter book down to the 9th of September, 1863.
I produce this under notice to produce..
Mr. Peters—I certainly don't put the whole book in evidence. 137
Mr. Duff—It is not in existence, that letter.
Mr. Peters—Now you make this general statement about it, it is not in £■ *J
existence. You said so about this signed and sealed plan.
Mr. Bodwell—You don't want this book ?
RECORD
In the
erne
Court of
British
Columbia
Cross-Examined by Mr. Duff—
Q. You lived in New Westminster ? A. Yes, sir.
10 Q. Until the union ofthe two colonies? A. Yes, sir.
Q. Did you know Burrard Inlet pretty well ? A. Oh, very well.
Q. You know the ground that is occupied by the site of Stanley Park pretty
well ? A. Very well, indeed.
Q. And Deadman's Island ? A. And Deadman's Island.
Q. There was some clearing there, was not there at Stanley Park ? A. In
the early days ?
Q. Yes. A. Oh, no, the only clearing I know of in the early days was
some of the loggers used to cut the timber.
Q. About 1865 to 1866 there was some clearing done there, was there not,
20 somewhere near Brockton Point ? A. 1865 or 1866—not that I am aware of.
Q. You don't remember that ? A. No.
Q. Now who was the Clerk of the Department ? A. What Department ?
Q. Lands and Works Department ? A. There were three; there was Mr.
Landers, a draughtsman; Mr. Lomas, an ex-Royal Engineer in the Works
Department, and myself in the Land Department.
Q. Lomas in the Works Department, and Mr. Howse in the Lands Department ; do you remember where the naval reserves were ? A. Yes.
Q. Where were they ? A. One was at English Bay; the other the next
one, was a little town site called Granville, but I believe that was done away with.
30 The third one was at Port Moody, at the end of the North Road, and the fourth
was nearly opposite.
Q. The third was at Port Moody, near the North Road ? A. Yes, sir,
North Road.
Q. When did you leave the department? A. I think it was in 1878 ; I am
not quite sure about that.
Q. The Naval Reserves had been done away with before that, I think, had
they not ? A. There is one now covered by the Vancouver Town site,
Q. That had been done away with before you left ? A. No, I don't think
it was.
40 Q. You don't remember about that ? A. No, I do not distinctly.
Q. Do you know how the letter books were kept in this department ? A.
Very well.
Q. Just tell us how they were kept? A. If there was anything particular
required it would be a rough draft that would be made, and a fair copy made by
the clerk, who would then, after the letter went away, take the rough draft, and
copy it into a book and index it—the letters inwards.
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney
General of
Canada
21st Dec.
1900
continued
M
s
a
I
n 138
Record
In the>
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney.
General of
Canada
21st Dec.
1900
continued
Q. I am speaking of letters outwards; the letters were all copied, I presume ?
A. All copied.
Q. One series or two series of books ? A. One series for each department.
Q. How do you mean one for each department ? A. The Governor for instance
—one book for him, and another book for works, such as roads, streets, bridges
and so forth, and another one for lands.
Q. Another one for general lands? A. Yes, anything relating to lands, was
entered in this book.
Q. I think you said one of these plans you spoke of was forwarded to the
Inspector of Fortifications ? A. Went to the Inspector of Fortifications. 10
Q. Who wrote the letter ? You did not write the letter yourself ? A. No.
Q. What did the letter contain ? A. Well, I have seen the letter, but I
really could not give you— It was simply showing where the reserves were.
Q. I mean the letter ; I am not speaking of the plan ? A. The letter and
the plans referred to one another, but the letter proper would be written by Col.
Moody.
Q. And copied by someone else in a book ? A. By someone else in a book.
Q. You saw it in the book afterwards ? A. Yes.
Q. Which book would that be in, in the Governor's book, or the other book ?
A. No, there is a book called | Military Correspondence " ; I think it would be in 20
that book ; it was copied.
Q. How was that signed by Col. Moody ? A. In writing to the Inspector-
General of Fortifications, as officer commanding.
Q. As Colonel Commander ? A. Or officer commanding.
Q. And in the other book he would sign " Chief Commissioner of Lands and
Works"? A. Yes.
Q. Which of these books would that be in? It would not be in the
Governor's book. A. I think you will find a letter to the Governor.
Q. I mean a letter to the Inspector-General of Fortifications ? A. Oh, no,
that is purely military. 30
Q. That would only be in the military book ? A. Might have been copied
in the other books ; it might, but that is where it should be. \
Q. How long was that book kept: that book of military correspondence ? A.
From the first, I presume.
Q. When was the last time you saw it ? A. There was no reference to it—
I could not have seen it, couldn't have much to do with it after 63 or 64.
Q. Col. Moody left with the detachment, did he not ? A. No, a few of
them went home; a number of them remained in the colony ; had the privilege.
Q. The Clhief Commissioner of Lands and Works after Col. Moody's departure
was not a military officer ? A. No. 40
Q. And the Officer of Land and Works had nothing to do with military
matters after that ? A. No.
Q. Did you ever see that book in the office of the Lands and Works after
the Colonel's departure ? A. Yes.
Q. Where ? A. In the office of Lomas; that was the clerk of the Works
Department. 139
A. I would say a month to his
Q. What became of that book ? A. It is impossible for me to say.
Q. You saw it about 1864 ? A. I should know the book if I saw it again.
Q. You saw it in 1864 ? A. Oh, I am certain of that.
Q. And you never saw it later ? A. I cannot remember.
Q. You cannot remember ever having seen it after 1864 ? A. I cannot
remember.
Q. Did you ever see it in the office in Victoria ? A. I believe I did.
Q. You think you saw it in the office in Victoria ? A. I believe I did.
Q. When and where ? A. That I cannot say, because I handled so many
10 books in the office. It is impossible to remember a think like that, unless your
attention was directed to that book.
Q. Now, there was a letter of a similar kind written to the Governor ? A.
Yes.
Q. There is no doubt about that ? A. Yes, sir.
Q. Where did you see that letter ? A. In the Governor's book.
Q. That is in the book of letters addressed to the Governor ? A. Letters
addressed to the Governor.
Q. You think that would be somewhere about 1863? A. The letter must
have been written before that, because it was signed by Col. Moody, and he went
20 home in October or November.
Q. How nearly can you fix the date ?
departure.
Q. About a month before his departure ?
Q. How many of these plans were there ?
and one smaller one, taken from Capt. Richards' Survey,
Q. How was the plan made from Capt. Richards' Survey : was it marked on
the chart ? A. It would be marked on the chart, but that is not the—(indicating
chart).
Q. This is the locality here (indicating to witness on the chart) ? A. That
30 would be across here ; that would show Stanley Park ; part of it.
Q. In what way would it be marked on that chart ? A. By a boundary line
across the narrow neck of land.
Q. The chart was copied as a whole ; the reserves were marked on the chart
itself? A. Oh, no. It was the outline taken from the chart.
By the Court—About this chart.
M!b. Duff—He is speaking of five plans, one made from Capt. Richards'
chart.
Q. Now, the other four consisted of what ? A. Of Mr. Trutch's survey.
Q, When was that survey of Mr. Trutch's made ? A. That survey was made,
40 I think, in April, '62 or '63.
Q. You think that was made in 1862 or '63 ; that was of what locality ? A.
Between the Fraser River and the boundary line was one part of it.
Q. You say a part of it was between the Fraser River and boundary line ?
A. Yes.
Q. Was there a separate plan for that ? A. Yes, I think a separate plan for
that.
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
A.
A.
Yes.
I think five
four large plans
W
m
'i
goal
I) 140
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney*
General of
Canada
21st Dec.
1900
continued
Q. That was one of the plans you speak of? A. Yes.
Q. We have got two, one from Capt. Richards' chart and one from Mr.
Trutch's survey, between the Fraser and the boundary line ; what others were
there ? A. One showing Lulu Island.
Q. What did that embrace besides Lulu Island ? A. Lulu Island and the
North Arm, and over as far as, I believe, the military reserve was included in
that plan ; I think it was that plan. There may have been two plans of it, but I
think it was all on one. At any rate, there was one plan that embraced the
military reserve at the Narrows, and came over.
Q. You say another plan was one embracing Lulu Island, and that extended 10
as far as Stanley Park ? A. I think there might have been another plan for
Stanley Park on the Meridian Line.
Q. You think that plan extended as far as Stanley Park ? A. I think so.
Q. Were there any other plans ? A. Yes ; there was a portion of it up at
Port Moody.
Q. That would nob include Stanley Park ? A. No.
Q. Were there any other plans? These official plans which were signed by
Col. Moody and stamped with the seal of the Department ? A. There might
have been a plan in those days ; beyond Mr. Trutch's there was no survey made ;
it was a piece here, and a piece there, as the settler required the survey of his 20
land to get his title deeds.
Q. There never was a survey of that part of the Province north of the
Fraser River up to the Inlet at that time ? A. Roads were laid out.
Q. I mean a complete survey of the whole country ? A. Roads; as
traversed, they could find the point, so as to fix an isolated survey.
Q. You told us of two plans showing Stanley Park ; do you know of any
others? A. Not on the official plans, specified as spoken, but there were
numerous other plans; there was one I saw in this Court.
Q. I am speaking now of plans signed by Col. Moody ? A. Col. Moody ;
no. Mr. Trutch's survey—it embraces that, and these isolated surveys 130
speak of.
Q. You had Col. Moody's signature, then, on only one plan ? A, Oh, yes;
all the plans were signed.
Q. Are y©u sure they were all signed ? A. Sure they were; that was
the five I speak of, the official plans.
Q. These five took in different parts of the country ? A. Yes; they were
all in the New Westminster District.
Q. They did not take in Stanley Park ? A. Oh, dear, no.
Q. How many plans taken in Stanley Park were signed by" Col. Moody ?
A. There was one, the Index Plan, showing the reserves, and one plan on which 40
Stanley Park was marked; not Stanley Park—Stanley Park is a new thing
altogether ; it was the military reserve.
Q. The Index Plan was the first; did that show the whole district ? A.
No ; only Burrard Inlet. Understand the Index Plan was taken from one of
the charts, and the charts don't extend more than half a mile inland ; they may
face a river inland, but simply refer to the coast and the sound, 141
Q. Why was it called the Index Plan ? A. Because there was a reference Record
to it, to show what were military and what were naval. in the
Q. That was all ? A. As I understand it. Court11?
Q. Had it " Index Plan" written on it ? A. Yes. British
Q. And it showed which was the naval and military reserves on Burrard Oolun^ia
Inlet ? A. Yes. No. 60
Q. Now, what appeared on that plan of Stanley Park, on the groundExhlb^27
occupied by Stanley Park ? A. That is the general chart of Burrard Inlet; it Evidence of
extends on here. %**%»
10 Q. That is the only part of it, you see (indicating) ? A. The outline was Attomey-
taken from another chart, if that is the official plan of Capt. Richards. British '
Q. You see that is Capt. Richards' here (indicating) ?
chart that has the whole of the
A. There is one Columbia
Q. One large chart, showing the whole inlet, is there ? A. I am sure of it.
Q. One by Capt. Richards ■? A. One by Capt. Richards.
Q. And it is from a chart like that this tracing was taken ? A. Yes.
Q. What was the mark on Stanley Park on that plan ? A. Military
reserve.
Q. Anything more | A. No. Military reserve was all that I can
20 recollect, and the colours that were used.
Q. What colour was on it ? A. Red.
Q. Was there anything marked on Deadman's Island ? A. I think it was
simply " R" ; I will explain why
Q. Was there anything on the English Bay Naval Reserve ? A. Yes ;
there was an inner piece ; what they were marked I don't exactly recollect;
there was an outside piece and an inner piece.
Q. What was marked on it ? A. Naval reserve was marked on it.
Q. And on the Granville Town site ; the naval reserve at Granville Town
site ? A. That was simply across the neck of land leading to False Creek.
30 Q. Were the words " Naval Reserve " written on it ? A. It was coloured
blue, and I think it more than probable
Q. Were there any other military reserves ? A. Yes.
Q. Where were they ? A. There is a military reserve here on this point
(indicating).
Q. There is a military reserve—now, you say there was a military reserve
at the point on the north side of the Inlet at the 3rd Narrows ? A. Yes.
Q. Just at this junction of the North Arm and the Inlet ? A. Yes ;
North Arm and faces on the 3rd Narrows.
Q. Faces on the North Arm and 3rd Narrows ? A. Yes,
40 Mr. Duff—That is just west of Port Moody ?
Q. How was that marked ? A. Military reserve.
Q. The words " Military Reserve " were written on it ? A. Yes.
Q. Was it coloured ? A. Yes.
By the Court—Marked red.
Mr. Duff—Yes; my Lord.
Q. Were there any other military reserves ? A. No,
v. Attorney-
General of
Canada
21st Dec.
1900
continued
th
on tne
I
n 142
3
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
Q. Sure there were none others marked on that plan ? A. No.
Q. That Index Plan then shows, as you say, a military reserve on Stanley
Park, and the one you have just spoken of, and the naval reserves ? A. Naval
reserves.
Q. Did it show anything else ? A. Shows two naval reserves in Port
Moody.
Q. Does it show anything in addition to that ? A. No ; except a town site
laid out there.
Q. Laid out where ? A. At Port Moody.
Q. Now, how was the town site coloured on that plan ? A. I think—I am 10
not quite sure about the colouring of that, or whether there was actually a town
site laid out then ; I am not quite sure ; I am under the impression that there
was a town site laid out at Port Moody.
Q. Did it show the reserve on the north side of the 1st Narrows ? A. The
north side ofthe 1st Narrows.
Q. Yes ? A. About the 3rd Narrows.
Q. Did it show any reserves on the north side of the 1st Narrows? A.
No, except Indian; there was an Indian reserve made by the Governor, I think.
Q. I want to know if this plan showed anything ? A. The plan, I don't
think did. 20
Q. Did the plan show anything on the north side of the 1st Narrows ? A.
No.
Q. When was the plan made ? A. That plan was made somewhere about
1863, the close of Col. Moody's career in this Colony.
Q. Was that the plan which was copied and sent to the Governor and
Inspector of Fortifications ? A. Tracings were made off that plan and sent to
the Governor and the Inspector-General of Fortifications.
Q. What was the other plan that showed Stanley Park ; what was the
other plan ? A. Contained the isolated surveys, that is to say, it was outside of
Mr. Trutch's survey. . 30
Q. It showed Lulu Island, you said ? A. Lulu Island was on Mr. Trutch's.
Q. Showed the ground north of Lulu Island ? A. Yes ; the other was an
isolated survey.
Q. That showed a survey on Stanley Park; did it show the naval reserves
as well ? A. The naval reserves I question that; I question whether it
went as far as the naval reserves, because that was taken up on the plan I speak
of, the Index Plan. The naval reserve was shown on the Index Plan.
Q. You mean to say it was shown on this plan you have been describing to
us; taken from Capt. Richards' survey ? A. Yes.
Q. Was there any other plan showing the naval and military reserves at 40
Burrard Inlet than the one you have spoken of ? A. You mean the official
plan ?
Q, Yes ? A. No ; there were no more as I know of.
Q. There is only that one that you have spoken of? A, No, 143
Q. You say there was a plan which did show Stanley Park as a military
reserve ? A. Yes; as a military reserve, and numerous other plans have been
made, based on that plan, but are not considered official.
_ Q. And on these plans Stanley Park was marked as a military reserve ? A.
Military reserve.
Q. Stanley Park was marked as a military reserve on all these plans? A."
Or initials that would make it.
Q. What would be the initials ? A. M.R.
Q. Stanley Park was marked as a military reserve on all the official plans ?
10 A. Yes, where it occurred ; Stanley Park was not known—merely refers to that.
Q. I suppose Deadman's Island was also marked as a reserve on all those
plans ? A. Deadman's Island was also marked.
Q. You are speaking of plans in the Office at the time you left in 1878, are
you? A. Yes.
Q. You are quite certain about that. Now, there was a military reserve
opposite Westminster, was there not ? A. Opposite New Westminster—no.
Q. You are quite positive about that ? A. Yes, sir, quite positive.
Q. Do you know anything about a military reserve at Hope ? A. No.
Q. Never heard of that ? A. No.
20 Q. As far as you know there was not any ? A. No.
Q. And there was nothing in your department to show that there was a
military reserve at Hope ? A. No.
Q. Do you know of a military reserve at Keremoes Bend in the Similkemeen
River ? A. There was a military reserve up there.
Q. Quite certain about that ? A. Quite certain about that.
Q. And then, according to your idea, as far as your recollection goes, the
only military reserve was the reserve at Stanley Park, and the one at the 3rd
Narrows ? A. The one at 3rd Narrows—but there were other Government
reserves made ; there was a reason for these reserves being made.
30 Q. You told my friend that there was a plan on which the military reserves
were marked red, and the naval reserves were marked blue, and the town site
reserves were marked brown ? A. Yes.
Q. Which was that plan ? A. On the index plan I am speaking of, marked
by colour, which gives it the name of index plan.
Q. Where were the town site reserves on the index plan marked brown ? A.
Granville, now Vancouver.
Q. You say there was on that index plan Granville Town site marked reserve
in brown ? A. Yes.
Q. Were there any words written over ? A. I believe " Granville Town
40 site." I think these were the words.
Q. Was there any other town site reserve on that index plan ? A. Yes,
Hastings; at the Second Narrows, a large reserve, too.
Q. Marked brown ? A. Yes.
Q. What do you call the second narrows ? A. I will show that to you, sir.
Q. Perhaps you would not mind marking them on this "Ex. 4" just as
well as on that perhaps ? A. That (indicating) is the second narrows.
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
m
I 144
1
31
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
A. '62 or '63 ; I am
Inlet ? A. Indian
Q. Between the words " Burrard " and j Inlet " on Ex. 4 ? A. The writing
there must be taken for granted as being official.
Q. Could you mark an "X" showing it; that would be right, would it ?
A. A little further this way, I think.
Q. Marked an | A " there ? A. I should say it comes to about there, and
extends down here (indicating).
Q. Mr. Howse, you don't understand me; I think a mark where the second
narrows are ? A. Here is the narrows.
Q. Where I put | X " you see, is that right ? A. Hereabouts, I would say
it is actually leaving only a small channel for the water. 10
Q. The town site you speak of. that Hastings town site, was just south of
the second narrows ? A. Yes, on the south side of the inlet.
Q. At the second narrows ? A. At the second narrows.
Q. The Gazette was published some time first in 1863 ?
not at all positive as to the date of the first Gazette.
Q. Do you know of any other reserves on Burrard
reserves.
Q. Excluding Indian reserves, do you know of any other reserves excepting— ?
A. There is a reserve here, I believe; made here on Bedwell Bay; does not show
it on this chart, but, however. Bedwell Bay is here (indicating). 20
Q. Do you know of any reserve between the second narrows and Granville
town site ? A. No.
Q. There never was any reserve ? A. No, not to my knowledge.
Q. I gather from what you said, Mr. Howse, that the practice in the
department maps was to mark the military reserve red and the naval reserves
blue ? A. Yes, and the naval reserves blue.
Q. I suppose that prevailed on all maps ? A. Yes, had been the rule out
here in Col. Moody's time; red and blue were used, one to denote military and
the other naval.
Q. And brown for the town sites ? A. Brown for the town sites. 30
Q. And that continued down to the time you left the department ? A.
Down to the time I left the department.
Mr. Duff—My Lord, I have not completed the cross-examination of this
witness j I am going to start a new branch.
Mr. Peters—Asks for letter book.
Mr. Duff—There was a mistake about that book
answer I got is there is no such letter.
Adjourned until to-morrow at 11 o'clock.
I sent for it, and the
8th January, at 11 a.m. 40
A. R. HOWSE—Cross-Examination resumed by Mr. Duff :—
Q. You said, Mr. Howse, there were only two military reserves on Burrard
Inlet ? A. Only two. 145
Q. And you said that on all the maps of the department, these reserves were
marked military reserves ? A. Military reserves.
Q. That is, the | military reserves " were written on them ? A. To the
best of my belief, that is so.
Q. That is your recollection ? A. Yes.
Q. Now, how were the naval reserves marked ; you told us that they were
marked in blue colour ; was there anything written on them ? A. It is invariable
for writing names that only black is used.
Q. You told us, Mr. Howse, that the naval reserves were marked in blue, I
10 think? A. Yes.
Q. Was there any writing on these reserves? A. I believe they were
precisely the same as the military reserves, but simply the word | naval." If not,
it will be found on the index plan; the naval, blue ; the military reserve, red ;
and the town sites, brown.
Q. You say that on the index plan there was an explanation ? A. Yes,
under the head of 1 reserves."
Q. And that showed that the red mark indicated military reserve ? A.
Yes.
Q. And the blue indicated naval reserves ? A. Quite so.
20 Q. And the brown indicated town site reserves ? A. Yes.
Q. Was there anything printed on the reserve areas themselves—on the
index plan ? A. No, I believe they were merely skeleton plans, skeleton outlines
coloured.
Q. Now, this plan (I am referring, my Lord, to Exhibit 4)—You might look
at this Exhibit 4 (witness inspects the Exhibit) now on the index plan, the
reserves are marked the same way as they are marked on Exhibit 4, are they
not ? A. As near as my judgment, they are marked the same, only there would
be the difference of the colour.
- Mr. Peters—I submit, your Lordship, if my learned friend intends to con-
30 tradict thiff witness with regard to anything on the index plan, he has got to
produce it and show it to him. He is asking him now to practically compare
from memory this plan with the index plan.
The Court—I suppose I rule on that when he attempts to contradict him
by the plan which, he refers to ; I cannot make a prophetic ruling, which may not
become necessary.
Mr. Duff—Of course your Lordship will see the difficulty we are in, is to
ascertain what plan it is this witness is referring to.
Q. So far as you recollect, the references were shown in this plan in the same
way that they are shown on Exhibit 4 ? A. Yes, if that is a correct copy of this
40 index plan.
Q. What I mean is this—that the reserves were marked in the same way ?
A. Oh, yes.
Q. Were coloured in the same way ? A. Coloured.
Q. And then the index plan had an addition, under the head of references,
an explanation ? A. Yes.
Q. On what part of the plan was that ? A.I cannot remember,
RECORD
In the
Supreme
Court of
British
Columbia
No 60.
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued 146
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec,
1900
continued
Q. You cannot.remember what part of the plan it was on? A. No ; it is
generally—
Q. Let us see if you can remember where that explanation was on that
index plan ? A. These references are generally put on at the taste of the draftsmen. There is no rule in the department that he should put it in a certain
place.
Q. The draftsman was Landers, was he not ? A. I cannot say ; different
room to mine altogether.
Q. You did not see the index plan drawn up ? A. No, I was differently at
work. I was formerly in that room, but had no control whatever. 10
Q. Do you know whether it was made after or before you went into the
office ? A. I was in the office from the commencement.
Q. But you were not clerk from the commencement, were you, chief clerk ?
A. In my military capacity I was clerk there.
Q. You were not in the Lands Department from the commencement ? A.
Yes.
Q. You were in the Lands Department from the commencement ? A. Trans-
' ferred from the Royal Engineers into a civil capacity.
Q. What was your capacity at the outset in the office ? A. In reference to
pre-emptions and afterwards deeds, filling in of the deeds. 20
Q. What did they call you ? A. Clerk of records at that time.
Q. Was that your first office, clerk of records ? A. Yes.
Q. Just leaving the question of your capacity ; in the meantime, I want you
to try and remember, Mr. Howse, if you can, whether or not these directions were
actually on that index plan, and where they were ? A. It would not have been
an index plan unless those references had been put in.
Q. What do you mean by that ? A. I mean that the references to the plan
should draw the attention of the person examining any portion of that plan to the
references—that is the index.
Q. You say these directions were on that plan, because you think they should 30
have been there ? A. May I enquire what you mean by these directions.
Q. References ? A. I understand that.
Q. You say the references were on the plan, because you think they should
have been there ? A. Yes, certainly.
Q. And you cannot actually remember seeing them on that document ? A.
I can remember perfectly well it being an index plan ; that they were referred to.
Q. But you cannot remember seeing these references, as you call them themselves, on this particular document ? A. Certainly, they were on that plan, and
it would not have been an index had they not been there.
Q. Which of the spots set out here on this Exhibit 4 were marked in brown 40
on that plan ? A. There was one place down at Granville that was marked, and
another place at Hastings.
Q. That is the Granville Town site and the Hastings Town site were marked
in brown ? A. Exactly.
Q. Those are the only places on that plan marked in brown? A. That is my
recollection. Hil
14?
RECORD
No. 60
Exhibit 27
10
Q. Now, down at English Bay, you told us, I think there was a small spot,
and then there was a larger boundary outside of that ? A. I think so. in the
Q. That was on the index plan too ? A. That would be shown on the index Supreme
1 "■ Court of
Plan. British
Q. The smaller one was marked in blue ? A. I don't kuow that was marked Columbia
in blue, but I fancy there was a small space inside that marked blue
Q. How was the outside marked ? A. In outline,
Q. I mean with what colour ? A. In black. Evidence of
Q. There was an outline in black ? A. Yes, all the plan is drawn in black. on?rM°oTe
Q. I have not made myself clear to you ; I understood you to say yesterday Attorney-
there is a space marked off on English Bay ? A. Exactly. British °"
Q. And then a larger space marked outside just the same as there is on ^°A^a^*
General of
T Canada
A. That I cannot say.
21st Dec.
1900
A. In blue. The fact is,continued
Exhibit 4 ? A. Yes.
Q. A smaller space was marked in what colour ?
think in blue.
Q. In what colour was the larger space marked ?
the outside line is declared a naval reserve.
Q. Do you. know what the extent of that reserve was? A. The figures, area,
I cannot say;
20 Q. Now, then, we come to the other maps that you have referred to ; all the
other maps have the words | Military reserves " marked on the area, had they
not, or had they ? A. Do you mean all subsequent maps ?
Q. No, you spoke of some, how many maps showed Stanley Park and Dead-
man's Island as a reserve ? A. The plans showing Stanley Park were numerous
in the office what I left.
Q. We will speak of the official map, the map signed by Col. Moody, with
the seal on it ? A. With the seal on it was the official map.
Q. How was Stanley Park marked there ? A. In red.
Q. Were the words | Military Reserve" written on it ? A. I believe the
30 words | Military Reserve " were on that plan, to the best of my belief they were.
Q. Will you swear to it ? A. Or at any rate, they will appear in the index
plan.
Q. Can you say positively that the words I Military Reserve" appear on
the plan you have last spoken of, on the area known as Stanley Park ? A. To
the best of my belief, yes.
Q. Can you do anything better than that ; is that as far as you can go ? A.
I believe that is the only way I could describe it. I have repeatedly said that
under the head of references refers to these places.
Q. I understand that, but I want to know what actually appeared on this
40 map ? A. I have already stated what actually appeared.
Q. What did appear ? Tell us what there was on it ? A. There were
Military Reserves, which is proved by the reference ofthe index.
Q. You say there were military reserves, and that it is proved by references
of the index plan ? A. Yes.
Q. And there were military reserves, because they were marked in red ? A.
Exactly.
m* 148
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v Attorney-
General of
Canada
21st Dec.
19001
continued
Q. And because the index plan showed that, because they were marked in
red, they were military reserves ? A. Yes.
Q. And you cannot say there was anything else on the plan showing that
they were military reserves ? A. No, not to my recollection.
Q. And on all the plans in the office, reserves marked in red were military
reserves? A. Yes.
Q. And reserves marked in blue were naval reserves ? A. Yes.
Q. And when you saw a plan, with a reserve marked in red, you knew it
was a military reserve ? A. Yes, or at any rate with regard to these points.
Q. Mr. Howse, was there any list of these maps kept ? A. That I cannot 10
say, but I believe there was.
Q. Was not there a book showing a list of maps in the office ? A. There
would be an inventory made of these at the time Col. Moody left.
Q. There would be an inventory of the plans made in the office ? A. Yes.
Q. At the time Col. Moody left ? A. Yes.
Q. When did you leave the office, Mr. Howse? A. I think it was in 1878.
I have lost the date when I left.
Q. Did you resign your office ? A. I did.
Q. Was it at the suggestion ofthe Chief Commissioner ? A. Certainly not'
my own act. 20
I
Re-Examination by Mr. Peters.
Q, You were asked with regard to an inventory of plans that was made
when Colonel Moody left ? A. Yes.
Q. Did you see that inventory? A. I must have seen it; passed through
my office.
Q. Who prepared it ? A. Very probably Captain Luard.
Q. Was it signed by anybody ? A. It would be signed by Captain Luard
and the Colonel.
Q. Colonel Moody ? A. Yes.
Q. Now you stated to Mr. Duff, that on all plans in the office, the military 30
reserves were marked in red, and the naval reserves blue ? A. Yes.
Q. Do you know anything about the custom of the office after you left it ?
A. Nothing whatever.
Q. You were speaking up to the time you were there ? A. I am speaking
of the time I was there, and more especially under Colonel Moody.
In reply to Mr. Peters, who repeated his request for the letter, transmitting the tracings to the Governor, Mr. Duff says \heve is no such letter in
existence—the letter book does not contain any such letter; and is willing to
tender the letter books under the notice to produce.
Mi. Peters does not want to search the letter books and asks for the par- 40
ticular letters to the Governor of British Columbia and the Inspector-General of
Fortifications.
Mr. Duff is referring to the letter to the Governor in regard to the other, .
Mh Peters has attempted to give evidence ; the proper way would be to produce i: -:-• f, 14& - ■
the letter from the office of the Inspector-General; but does not wish to raise
any technical objection.
Mr. Peters claims the right to give notice to produce any documents;
whether he can put it in evidence or not, is a question to be raised afterwards.
The Court does not see how Counsel can refuse to produce a letter which
the witness here has stated was sent by his commanding officer to the Governor.
Mr. Peters has shown there was a book, but has not shown it was in the possession of the Lands and Works Department, up till lately, yet it would be in
somewhat different light to the communication of the Department.
10 Mr. Duff's answers is that as far as the document is concerned, he has not
got it; it has been searched for; all the searches go to show there is no such
book or document in our possession.
Mr. Bodwell urges the document is not in the jurisdiction of the Court, and
he certainly can produce secondary evidence of it now ; has tried to get it, and
has been unable. The Dominion Government through whom the search was
made has reported that the English authorities were not able to find it.
Mr. Bodwell will take the letter of the Dominion Government as evidence.
Mr. Peters will put it in evidence later on.
Mr. Bodwell pressed his point that the secondary evidence (as already
20 mentioned) must go out of the record or the foundation be produced ; insists
upon the right in that respect; if Mr. Peters does not produce the information
from the Inspector-General of Fortifications, then that must go out of the record.
I am going to ask you what that book containing the military correspondence did contain, whether it contained all the correspondence relating to
military matters ?
Mr. Peters objects ; it is asking the contents of a document without producing
it; it was part of his learned friend's orginal examination.
The Court rules that Mr. Duff is asking the indulgence of the Court to clear
up a point.
30 The objection appeared to be pressed ; the Court for'information would like
to ask witness a question.
By the Court—
Q. What sort of correspondence was included or was copied into that
military book ? A. Mostly military letters to the Inspector-General of
Fortifications.
Q. Would there be any letters ? A. There were other letters; those letters
of a private nature, I presume, of Colonel Moody, he took home with him and
they were torn out of the book.
Q. This book, marked " Military Book" had two classes of letters, one
40 on purely military matters ? A. Yes.
Q. It has two classes of letters, one purely military, and the other, Colonel
Moody's private correspondence ? A. Not private correspondence—it was called
the "Confidential Book." The military and colony had nothing whatever to
do with it ; it rested entirely between Colonel Moody and the Inspector-General
of Fortifications. Those letters, I believe, were taken from the book.
RbcCrd
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Evidence of
A. R. Howse
on trial of
Attorney-
General of
British
Columbia
v. Attorney-
General of
Canada
21st Dec.
1900
continued
w
m 150
\4
i
RECORD
In the
Supreme
Court of
British
Columbia
No. 60
Exhibit 27
Q. What letters did Colonel Moody take from the book, when he went
away ? A. The military letters.
Q. What was left in the book, if it .was called j The Military Book" ?
A. Those were very likely such as reserves, and with reference to other matters
not purely military.
Q. Were any letters contained in that Military Book, which were —which
referred to the administration of other than colonial matters ? A. Yes, mixed
with matters—a sort of mixture of military and colonial.
Q. Do you mean to say there was correspondence in that book between
Colonel Moody and Governor Douglas ? A. No. I am under the impression 10
that entirely referred to England ; to the Old Government; the Governor's book
was a separate book altogether.
Witness stands down.
No. 61
Exhibit 26
No. 61.
EXHIBIT 26.
H. Q. 71—11—6. C. St. G.
(Telegram.)
To Hon. Sir F. Borden,
Telegram Ottawa, Sept. 28th, 1904.
McPherson to Prom Vancouver, B.C., Sept. 27th.
sir f. Borden Can you allow me to announce soon that the lease of Stanley Park to the
1901 City is accomplished along the lines proposed. Important to me.
(Sd.) R. G. McPHERSON.
Certified True Copy.
(Sd.) B F. Jarvis,
Assist. Deputy Minister Militia and Defence.
Ottawa, November 22nd, 1909.
20
C. St. G.
H. Q. 71—11—6.
DEPARTMENT OF MILITIA AND DEFENCE.
Ottawa, October 3rd, 1904.
Sir,
With reference to your telegram to the Minister of Militia and Defence of
the 28th ultimo, I have the honour to inform you that the Minister, in view of
3rd Oct. 1904 the suit pending as regards Deadman's Island, is unable to do anything to
further your wishes in this matter at the present time.
I have the honour to be, Sir,
Your obedient servant,
(Sd) I
30
Letter
Deputy
Minister of
Militia and
Defence
to R. G.
McPherson
R. G. McPherson, Esq.,
Vancouver, B.C.
F. PINAULT,
Colonel,
Deputy Minister of Militia and Defence.
40 151
Certified a true copy of a copy on file in the Department of Militia and Defence
(Sd.) E. F. Jarvis,
Assistant Deputy Minister of Militia and Defence.
Ottawa, November 22, 1909.
10
H. Q. 71—11—6. C. St. G.
Ottawa, October 20th, 1904.
To R. G. Macpherson,
Vancouver, B.C.
Minister willing grant City lease of Stanley Park, but cannot do so before
judgment is rendered in Deadman's Island case.
(Sd.) COL. PINAULT.
Certified true copy.
(Sd.) E. F. Jarvis,
Assistant Deputy Minister Militia and Defence.
Ottawa, November 22, 1909.
RECORD
In the
Supreme
Court of
British
Columbia
No. 61
Exhibit 26
Telegram
Deputy
Minister of
Militia and
Defence
to R. G.
McPherson
20th Oct.
1904
No. 62.
EXHIBIT 37.
No. 62
Exhibit 37
20 H. Q. 71—11—6.
Vancouver, B.C..
Letter
City Clerk to
Co, fi Minister of
. Ot. Lr. Militia and
Defence
August 11th, 1906. 5£Al*
The Honourable,
The Minister of Militia and Defence,
Ottawa, Ont.
Sir,
I am instructed by the City Council of Vancouver to respectfully request
that in the lease which you are making to the City of Vancouver of Stanley
Park military reserve, Deadman's Island be specifically included. In the original
30 Order-in-Council, passed on the 8th day of June, 1887, the Government military
reserve was handed over to the Corporation for use as a park—the Dominion
Government retaining the right to resume the property when required at any
time, but that, until it should be required for military purposes, it was recommended that the Corporation should have the use of same as a park.
The recent suit has determined that Deadman's Island was part of the
military reserve. The Island has always been considered as part of the park by 152
RECORD
In the
Supreme
Court of
British
Columbia
No. 62
Exhibit 37
Letter
City Clerk to
Minister of
Militia and
Defence
11th Aug.
1906
continued
the citizens of Vancouver, and, in fact, very shortly after the Order-in-Council
of 1887 was passed, the Island was connected with the mainland by a bridge, so
that it might be accessible at high tide. At low tide no water divides the Island
from the park.
I am, Sir,
Your obedient servant,
(Sd.) ARTHUR McEVOY,
City Clerk.
Certified true copy.
"E. F. Jarvis," 10
Assistant Deputy Minister Militia and Defence.
Ottawa, November 22, 1909.
1
/
i
No. 63
Exhibit 36
Letter
Acting
Deputy
Minister of
Militia and
Defence to
City Clerk
20th Aug.
1906
No 63.
EXHIBIT 36. :|
Department of Militia and Defence,
Ottawa,
20th August, 1906.
Sir,
I have the honour to acknowledge the receipt of your letter to the Minister 20
of Militia and Defence of the 11th instant, in which you state that you have
been instructed by the City Council of Vancouver to request that in the lease
from this Department to the City of Vancouver of Stanley Park Military
Reserve, that Deadman's Island should be specifically included.
I shall lay your letter before the Minister immediately on his return to the
City, for consideration] in connection with the proposed lease of Stanley Park to
your City, which question I may say is before His Excellency in Council.
I have the honour to be, Sir,
Your obedient Servant,
I E. F. JARVIS, 30
Acting Deputy Minister of Militia and Defence.
The City Clerk,
Vancouver, B.C. H. Q. 71—11—6.
153
No. 64.
EXHIBIT 33.
C St. G.
Extract from a report of the Committee of the Privy Council approved by
the Governor-General on the 31st day of August, 1906.
The Minister of Militia and Defence recommends that the Minute of Council
ofthe 8th June, 1887, empowering the Minister of Militia and Defence of that
date to take the necessary steps to hand, over to the City of Vancouver for park
purposes the military property now known as | Stanley Park " be cancelled.
10 The Minister further recommends that the said property be leased for park
purposes for a period of 99 years renewable to six Commissioners, three of whom
shall be appointed by the Governor in Council, and three shall be members of
the City Council, of whom the Mayor shall be one, and the remaining two
selected by the said Council.
The Minister further recommends that the conditions of said lease be made
generally on the lines of those under which the Point Pleasant Park, Halifax,
Nova Scotia, has been leased by the Imperial Government to the City of
Halifax.
The Minister further recommends that the three Commissioners to represent
20 the Dominion Government be : Charles Doming, Brewer; Robert Kelly,
Merchant; and Fred C. Wade, Barrister.
The Committee submit the same for approval.
(Sd.) JOHN J. McGEE,
Clerk of the Privy Council.
The Honourable
The Minister of Militia and Defence.
RECORD
In the
Supreme
Court of
British
Columbia
No. 64
Exhibit 33
Order in
Council
31st Aug.
1906
i
30 H. Q. 71—11—6.
Dear Sir Frederick,
No. 65.
EXHIBIT 29.
C !bt. (jr.
Ottawa, 27th November, 1906.
Re STANLEY PARK LEASE.
No. 65
Exhibit 29
Letter R, G
MacPherson
to Sir F.
Borden
27th Nov.
1906
New lease along lines of conversation with Mayor Buscombe and myself,
viz., the City to have full control—no Board of Trustees —the Park Commission
to be elected by the people. No street cars or railways. 200 feet to be exempt
for the Royal Vancouver Yacht Club and the Vancouver -Rowing Club. You 154
record r^ght exempt 250 feet altogether, and they could be afterwards allowed to
occupy the premises under a letter from you.
Yours sincerely,
(Sd I R. G. MACPHERSON.
Certified true copy.
(Sd.) E. F. Jarvis,
Assistant Peputy Minister Militia and Defence.
Ottawa, November 22nd, 1909.
In the
Supreme
Court of
British
Columbia
No. 65
Exhibit 29
No. 66.
10
No. 66
Exhibit 34
Order in
Council
13th Augt
1908
i
H. Q. 71—11—6.
EXHIBIT 34.
C. St. G.
Certified copy of a Report of the Committee of the Privy Council approved
by His Excellency the Governor-General, of the 13th August, 1908.
On a report, dated 10th August, 1908, from the Minister of Militia and
Defence stating that by Order-in-Council of the 7th June, 1887, the military
property at Vancouver, B.C., known as | Stanley Park," was authorised to be
leased, under certain conditions, to the City of Vancouver for park purposes, and
that by Order-in-Council of 31st August, 1906, the said lease was cancelled and
the Minister of Militia and Defence empowered to lease the said property to the CO
said City of Vancouver for park purposes, for a period of ninety-nine years,
renewable, the lease to be made to six Commissioners—three to be appointed by
the Governor-General in Council, and the remaining three J?y the City Council of
Vancouver, and such lease to be made generally on the lines of the Agreement
under which His Majesty's Government has leased Point Pleasant Park at
Halifax, Nova Scotia, to certain Directors representing the City of Halifax, of
which agreement is hereto annexed.
The Minister recommends that the Order-in-Council of the 31st August,
1906, be amended to provide for the leasing to the Corporation of the City of
Vancouver of the property in question instead of to six Commissioners ; the lease 30
to be otherwise under the same conditions as contained in the said Order-in-
Council, of 31st August, 1906.
The Committee submit the same for approval.
(Sd.) RUDOLPHE BOUDEAU,
Clerk of the Privy Council.
The Honourable
The Minister of Militia and Defence. 155
No. 67.
EXHIBIT 39.
RECORD
In the
Supreme
Court of
British
Columbia
No. 67
Exhibit 89
H. Q. 71—11—6.
~ _, Letter
G. if. A. McEvoy to
Ottawa, 28th September, 1908. SthSeptT
1908
E. F. Jarvis, Esq., Acting Deputy Minister,
Department of Militia and Defence,
Ottawa, Canada.
Sir,
ite71—11—6.
10 On behalf of the City of Vancouver, I beg to acknowledge with thanks
receipt of your communication of the 26th instant with enclosure stated therein.
1 herewith submit for consideration draft of lease of Stanley Park to the
City, and have the honour to request an appointment in order to discuss same
with you.
I have the honour to be, Sir,
Your obedient Servant,
(Sgd.) A. McEVOY.
Certified a true copy.
(Sgd.) E. F. Jarvis, jj
20 Assistant Deputy Minister of Militia and Defence.
Ottawa, 22nd November, 1909.
H. Q. 71—11—6.
COPY OF TELEGRAM.
G. P.
Telegram
Mayor of
Vancouver, B.C., 2nd October, 1908. ^McEyoy*0
2nd Oct. 1908
A. McEvoy, P.O. Box 393, Ottawa.
Council authorise you to act on behalf of the City, re lease of Stanley
Park and Admiralty Reserve. Memorial Stanley Park mailed Thursday.
(Sgd.) A. BETHUNE, Mayor.
30 Certified a true copy of file in the
Department of Militia and Defence.
(Sgd.) E. F. Jarvis,
Assistant Deputy Minister of Militia and Defence,
Ottawa, 22nd November, 1909, 156
RECORD
In the
Supreme
Court of
British
Columbia
No. 67
Exhibit 39
Memorial
28th Sept.
1908
MEMORIAL.
Moved by Alderman Morton.
Seconded by Alderman MacMillan.
And Resolved:
THAT WHEREAS that Reserve, containing nine hundred and fifty (950)
acres, known as Stanley Park, situate to the westward of the City of Vancouver,
is vested in the Dominion Government.
AND WHEREAS by a certain Order-in-Council, dated the 8th day of
June, 1887, possession of the said reserve was given to the Corporation of the
City of Vancouver for its use as a Public Park, subject to the right of the 10
Dominion Government to resume possession of the same at its pleasure.
AND WHEREAS the Corporation of the City of Vancouver has no power
vested in it by the said Order-in-Council, beyond it- right to use the said reserve
as a Park.
AND WHEREAS there are a number of small unsightly dwellings of an undesirable character existing on the foreshore and beside the public roads in the
said Park, harbouring squatters and undesirable characters detrimental to the
interests of the public, and greatly marring the beauty of the Park.
AND WHEREAS there is presently no power vested in the Corporation of
the City of Vancouver to prevent the continuation of the nuisances that exist 20
as above, and the usefulness of the Park to the public is greatly affected thereby,
and in consequence thereof the citizens cannot enjoy the Park to the same
advantage as they could were such nuisances repressed, and there always existing
a great danger of fire destroying the trees and the beauty of the Park by reason
of the dwellers and squatters as aforesaid.
AND WHEREAS the City has expended upwards of Two Hundred
Thousand Dollars ($200,000.00) in making.the roads and annually improving the
Park:
BE IT RESOLVED that it is in the interests of the City of Vancouver and
the public generally that power be vested in the City as that would enable it to 30
put an end to the nuisances that now exist and to prevent the recurrence of them
in the future, and that in order to place the Corporation in such a position as it
shall have power to further improve the Park and keep the same more strictly as
a Park for the use and benefit of the Public generally, a Petition be forwarded to
the Honourable the Minister of Militia and Defence, praying that a lease be
granted of the said Stanley Park for a period of ninety-nine (99) years, with
powers of eviction, and such powers as are necessary to secure to the City complete control thereof.
Dated at the City of Vancouver, in the province of British Columbia, this
28th day of September, 1908. 40
Certified a true copy,
(Sgd.) RUDOLPHE BOUDEAU,
C.P.C. 157
No. 68.
EXHIBIT 40.
H. Q. 71—11—6.
Sir,
Ottawa, October 6th, 1908.
RECORD
In the
Supreme
Court of
British
Columbia
No. 68
Exhibit 40
Qt P. Letter
E. F. Jarvis
to City Clerk
6th Oct. 1908
I have the honour to inform you that his Excellency in Council was pleased
on August 13th last to cancel the Order in Council of August 31st, 1906,
authorising the lease of the military property known as | Stanley Park " for park
purposes, to a commission representing the City of Vancouver, and to authorise
10 in lieu the lease ofthe said property to the City of Vancouver, under conditions
similar to those under which Point Pleasant Park, Halifax, is under lease to
certain directors representing the City of Halifax.
Advantage has been taken of the visit to Ottawa of Mr. Arthur McEvoy,
formerly Solicitor of your City, to draft the conditions of this lease, and I enclose
herewith, to be executed by His Worship the Mayor, a copy of the lease in
duplicate.
If the lease is satisfactory, kindly return both copies after they have been
signed by His Worship, in order that they may be signed by the Minister,
when a copy will be returned to you.
20 I have the honour to be. Sir,
Your obedient servant,
(Sd.) E. F. JARVIS,
Acting Deputy Minister.
The City Clerk,
Vancouver, B.C.
Certified a true copy of a copy on file in the Department of Militia and Defence.
(Sd.) E. F. Jarvis,
Assistant Deputy Minister of Militia and Defence.
Ottawa, 22nd November, 1909.
30 158
No. 69.
-7
EXHIBIT 35.
Board of Park Comissioners,
Vancouver, B.C.
THIS INDENTURE, made the first day of November, 1908,
BETWEEN
HIS MAJESTY KING EDWARD VII., acting through the Honourable the
i
RECORD
In the
Supreme
Court of
British
Columbia
No. 69
Exhibit 35
Lease His
Majesty King
Edward VII
to City of
Vancouver Minister of Militia and Defence for the Dominion of Canada, ofthe first part,
1st Nov. 1908 x
AND
THE CITY OF VANCOUVER of the second part, 10
WHEREAS by Order-in-Council ofthe 7th day of June, 1887, the military
property at Vancouver, B.C., known as " Stanley Park," was authorized to be
leased under certain conditions to the City of Vancouver for park purposes.
AND WHEREAS by Order-in-Council dated 31st August, 1906, amended
by Order-in-Council dated 31st August, 1908, the said the Honourable Minister
of Militia and Defence was empowered to lease the said property to the City of
Vancouver for park purposes for a period of ninety-nine (99) years renewable,
such lease to be made generally on the lines of the agreement dated 31st
December, 1873, between the Principal Secretary of State for the War Department of the one part and the directors of Point Pleasant Park, Halifax, Nova 20
Scotia, of tre other part, whereby the said Point Pleasant Park was leased to the
said directors representing the City of Halifax.
AND WHEREAS the said property consists of all that portion ofthe City
of Vancouver (and the foreshore adjacent thereto bounded by the western limit of
District Lot 185 Group 1 New Westminster District as shown on the official plan
thereof filed in the Land Registry Office at Vancouver) and the low water mark
of the waters of Burrard Inlet, the first Narrows and English Bay, and being all
that peninsula lying to the west and north of said District Lot 185. known as
"Stanley Park." NOW THEREFORE it is by these presents consented covenants and agreed and license is hereby given that said lands or such parts 30
thereof (as shall not at any time or times hereafter be required by His Majesty
or his successors for all or any military uses or purposes defensive, including the
erection of forts or batteries or other buildings whatsoever for all which the
exclusive possession and control shall remain in and belong to His Majesty as
heretofore) shall and may henceforward he used, occupied and enjoyed by the
City of Vancouver for its use as and for a public park for the term of ninety-nine
years (renewable perpetually on the same terms and conditions as herein contained)
subject until their determination to any existing leases of portions of said land
and to conditions following, that is to say :—
1. The rent of one dollar per annum shall be paid to the Department of 40
Militia and Defence for the use of the said park.
2. The Minister of Militia and Defence shall have full power to resume and
take possession without compensation of any portion of said lands or any buildings 159
RECORD
now or hereinafter to be erected thereon whenever it may be required in his _
judgment for any military purpose whatsoever, including such portions thereof jj£ *^ne
as may be required to be occupied as gardens for any troops quartered thereon. Court of
3. His Majesty's naval and military forces may at any time the General or oS^rnbia
other officer commanding require it, march through, manoeuvre or otherwise —
exercise on 1 he said lands and encamp thereon. Exhibit35
4. The existing main road round the peninsula, together with any new —,
carrying roads that may be formed, shall be maintained and kept in order by the Majesty ^Ong
City of Vancouver PROVIDED however that the use of any roads or any portions Edward yn
10 thereof may be discontinued with the sanction of the Minister of Militia and Vancouver
Defence. c"sn« °v'd19°8
5. No establishment for the sale of intoxicating liquors, etc., shall be
erected on the said lands in any form without the sanction of the Minister of
Militia and Defence.
6. The said Minister of Militia and Defence shall have power at any time
to exercise the right of quarrying stones or cutting down trees or other obstructions in case of military necessity and also of cutting sods for the repair of earthworks.
7. Any agreement by the City of Vancouver for pasturing or other occupa-
20 tion of the said lands shall be subject to the right of the Minister of Militia and
Defence to resume possession thereof if required for any military use or purpose.
8. The Minister of Militia and Defence and the City of Vancouver shall
severally have the right of closing the park one day in each year against the use
thereof by the public.
9. No stones shall be quarried on the said property nor any trees cut therefrom (except for the purpose of opening the roads thereon) without the sanction of
the Minister of Militia and Defence.
10. The City of Vancouver shall, with the consent of the Minister of Militia
and Defence, have the right to lay, make and maintain such reservoirs, pipes and
30 other apparatus of said lands as may in the opinion of the Council of the said
City be necessary or expedient for the maintenance, amendment or extension of
the water supply of the said City,
11. The Minister of Militia and Defence may re-enter on the said land on
breach of any of the covenants entered into as aforesaid by the City of Vancouver,
and thereupon thisagreement-and all rights and interests ofthe City of Vancouver
and of the public thereunder shall immediately determine.
IN WITNESS WHEREOF the said Honourable Minister of Militia and
Defence hath hereunto set his hand and seal and the City of Vancouver has hereunto set its corporate seal by the hand of its Mayor and City Clerk.
40 (Signed) Seal ofthe Department of Militia and Defence,
F. W. BORDEN,
Minister of Militia and Defence for the
Dominion of Canada.
(Signed) Seal of City of Vancouver,
ALEXANDER BETHUNE, Mayor.
WM. McQUEEN, City Clerk. 160
No. 70.
EXHIBIT 3.
Vancouver, B.C., June 7th, 1909.
RECORD
In the
Supreme
Court of
British
Columbia
No. 70
Exhibit 3
Demand for To the Corporation of the City of Vancouver.
possession
by Plaintiffs On behalf of Mr. Theodore Ludgate, at present of the City of Seattle, in the
State of Washington, U.S.A., and carrying on business under the firm name of
Vancouver Lumber Company, and the said Vancouver Lumber Company, WE
HEREBY DEMAND that you forthwith go out of possession of the whole of
Deadman's Island at present occupied by you, and we hereby give you notice that
unless you go out of possession at once proceedings will be taken against you to 10
recover possession.
DAVIS, MARSHALL & MACNEILL,
Solicitors for Theodore Ludgate and Vancouver Lumber Company,
Lessees from the Dominion of Canada.
No. 71
Reasons for
judgment of
Morrison J.
31st Jan.
1910
No. 71.
REASONS FOR JUDGMENT OF THE HONOURABLE
fift MR. JUSTICE MORRISON.
Stanley Park, which included Deadman's Island (see Attorney-General of
British Columbia v. Attorney-General of Canada, 1906, a.d., 552) and which, 20
then being an imperial military reserve, had been some years 'previously transferred by the Home Government to Canada, was, in turn, by Order-in-Council of
the 8th June, 1887, handed over by the Dominion of Canada, whilst still a
military reserve, to the newly-incorporated city of Vancouver for use as a public
park. Possession was immediately taken by the city pursuant to this authority,
and large expenditures of municipal moneys were, and are, being made periodically in improvements and maintenance. Possession has been held since,
continuously, by the city.
However, on the 3rd of February, 1899, the Plaintiff made application to the
Minister of Militia and Defence for a lease of Deadman's Island to be used for 30
industrial purposes, and on the 14th of February, following a lease of Deadman's
Island, which is described therein as being ■ near the city of Vancouver, was
executed by the Minister of Militia, and the Plaintiff acting for the Vancouver
Lumber Company. This lease was for a term of 25 years with the right by the
lessor to terminate the alleged demise at any time upon demand if required for
military purposes. At that particular date there was no Order-in-Council 161
m existence authorising such a lease, although on the 10th day of February,
1899, as appears from a Report ofthe Committee of the Honourable the Privy
Council, a memorandum from the Minister of Militia recommending that a lease
be given the Plaintiff of Deadman's Island for a term of 25 years at a rental of
$500.00 per annum was submitted to His Excellency the Governor-General for
his approval. His Excellency did not give his approval until the 16th. No
notice or intimation of the Minister's intention in this respect was given by him
or on his behalf to the Defendants. On the contrary, negotiations with the city
were then actually pending with a view to granting to them a lease pursuant to
10 the Order-in-Council of 1887 and later correspondence. On the 4th April, 1900,
at the request ofthe Plaintiff, the lease ofthe 14th February, 1899, was, as the
instrument recites, "modified," by removing therefrom the conditions as to
determining the demise and also any restrictions as to the lawful user of the said
premises as contained therein. This i modified " document further provided that
the said lease so modified should, after the expiration ofthe first 25 years, be
renewed for a further term of 25 years at a rental of each renewal term to be then
determined by arbitration in case of any difference as to the amount of rental.
The Plaintiff, however, it would seem, magnanimously consented to the reservations to the lessor of any right the Crown might then or hereafter possess of
20 expropriating the demised premises for the public use. Whatever view may be
taken of the validity of the lease of the 14th February, 1899, there was no
authority whatever upon which the Minister could alter its terms so fundamentally, so that it cannot be taken as any sort of ratification of the instrument of
February 14th, 1899. Armed with this equivocal title the Plaintiff, on the 7th
June, 1909, demanded possession of the premises in question from the city who
had by force resisted his intrusion. The city had in the meantime succeeded in
getting a lease from the Minister of Militia of Stanley Park in this way : Whilst
continuing in possession undisturbed and recognised by the Government, and
negotiating for what they claimed as better evidence of their title they were
30 advised at one time, in effect, by the Minister of Militia, that no instrument other
than the Order-in-Council could be given. Later on it appears that upon further
advice received from the department of justice the Minister in 1898 expressed his
consent to granting a lease, and although the city kept demanding one pursuant
to the Order-in-Council, 1887, it was not till 31st August, 1906, that an Order-
in-Council was passed purporting to cancel this Order-in-Council of 1887, and, in
the same order, authorising that a lease be given the city of Stanley Park, the
lease to be made to six commissioners. As this arrangement did not seem to meet
the desired requirements, a further Order-in-Council was passed on the 13th
August, 1908, amending that of 1906, and authorising that the park be leased to
40 the city instead of six commissioners, for 99 years, the lease to be made generally
on the lines of an agreement upon which the Imperial Government had leased
the military property known as Point Pleasant Park, at Halifax, Nova Scotia.
A copy of this agreement was annexed to the Order-in-Council, and it contains,
among other things, copied by the city word for word into its own form of lease,
this clause : " Subject until their determination to existing leases of portions of
said land."
RECORD
In the
Supreme
Court of
British
Columbia
No. 71
Reasons for
judgment cf
Morrison J.
31st Jan.
1910
continued 162
RECORD
In the
Supreme
Court of
British
Columbia
No. 71
Reasons for
judgment of
Morrison J.
31st Jan.
1910
continued
It appears that on November 27th, 1906, Mr. MacPherson, who then
represented the City of Vancouver in Parliament, wrote the Minister of Militia
recommending that from the proposed lease to the city there be exempted a
portion of the premises occupied by them for the Royal Vancouver Yacht Club
and also for the Vancouver Rowing Club—two distinct clubs. That Mr.
MacPherson's recommendation for a lease to those two clubs was kept in mind by
the department seems clear from the correspondence. On the 30th July, 1908,
an Order-in-Council was passed approving of a lease to the Royal Vancouver
Yacht Club. Whether a lease was in fact given pursuant to this Order-in-
Council does not appear. This briefly was the position of affairs when the 10
Plaintiff, having failed to get possession of the property in question, brought this
action for possession and trespass and damages against the city, resting his case
upon the instruments ofthe 14th February, 1899, and the 5th April, 1900. The
validity of the city's lease is not questioned by the Plaintiff. He contends, however, that it is specifically subject to his lease as above recited. I cannot go so
far as to agree that the Ludgate lease is specifically or at all referred to in the
city's lease. The clause in the city's lease relied upon by the Plaintiff is in
general terms, and there is some evidence as to how that clause was inserted and
to shew that the lessor at the time of executing the city lease had not the Ludgate lease in mind. It appears that the city had the control of the drafting of 20
the instrument and wrere then, and at all times previous thereto, taking a position
at entire variance with the contention that they were in any way a party to
recognising the Plaintiff as having any interest in the premises in question.
Even assuming there was an Order-in-Council upon which the lease of
February, 1899, was based, that Order-in-Council is ultra vires inasmuch as the
license granted the Defendants by the Order-in-Council of 1887 became, in my
opinion irrevocable before 1899. Plimmer v. Wellington, 9 A.C. 699, Jones v.
Tankerville (1909), 2 C.G 440. But it is contended by the Plaintiff
that by the Order-in-Council of 1906, the City waived the right they
previously might, have had. I do not agree. The action of the City in having 30
the Order-in-Council of 1887 cancelled (and in the same order receiving authorisation for a lease) was simply the act of passing one hand over the other in their
grip on the chain of possession in order to more firmly retain it. I cannot quite
understand the reason for such a superfluous act as this notional cancellation of
the original Order-in-Council, unless indeed it be accounted for by the inexactitudes of the departmental terminology, on the one hand, and the over-confidence
of the City in good faith of the department on the other. If the Plaintiff thought
he was securing a lease of a portion of Stanley Park, then the Minister and he
were never ad idem, for the Minister committed a fundamental mistake of fact
as to the identity of the property demised, and, as against the Plaintiff, the 40
language, if necessary, must be subordinated to the intent. There was at no time
any relinquishment, waiver, abandonment, or surrender of their position first
obtained in 1887 in full reliance upon the faith ofthe Government of Canada.
To hold otherwise on the evidence would be to assert a serious breach of public
faith by that ruling part of the Ministry to which alone is entrusted the practical
functions of Government Why the department came to deal at all with the 163
Plaintiff in respect to the locus under all the circumstances disclosed at the trial
is quite inexplicable to me except on the assumption that the Minister, upon
whose recommendation the lease to the -Plaintiff was made, was not aware of the
exact location of this property, and this assumption is borne out by the statements of the Honourable the Minister of Militia and Defence, Sir Frederick
Borden, in his evidence on commission. I admit this evidence not to vary or alter
the Ludgate lease, but to shew that it is not an agreement intended to relate to
any portion of Stanley Park. Pym v. Campbell (1856), 25 L.J., Q.B. 277 ; Doe
v. Needs, L.J., Exhibit 59.
10 Another ground upon which I think the Plaintiff fails is this : From the
dispatches between the Imperial Government and the Dominion, the land in
question was transferred to the Dominion of Canada by the Imperial Government
impressed with a trust, the recognition of which by the Dominion is manifested
in the Departmental correspondence and their dealings with the City. The
alienation or leasing of Deadman's Island as was sought to be effected by the
instrument of February 14, 1899, and the Order-in-Council of February 16th,
1899, would be a breach of that trust as well as of their grant of possession to
the Defendant in 1887. The Plaintiff was not a stranger to the circumstances
under which the City held possession. He knew, or must be taken to have
20 known, of the subsisting equities to which the property was subject and which
the Government in all conscience was bound to respect. But, parenthetically,
even if it be conceded that Ludgate had obtained thus a legal status, he cannot
invoke, as was contended he could, the doctrine qui prior est tempore potior est
jure. Bailey v. Barnes (1894) 1 ch. 223, Jared v. Clements, 72 L.J.,
ch. 291, C.A.
In Alcock v. Cooke, 5 Bing ,348, Best, C. J., held it to "be a principal ot
" common law that if the King makes a grant which cannot take effect according
" to its terms we must conclude that the King has been deceived in that grant
" and therefore that grant is void. * * * Having already leased the right of
30 " possession, he proposes by this grant to convey the same right of possession to
| another person. Now, if it would be consistent with the King's honour (and,
" as it is stated in a case to which I shall presently refer, the common law has no
I object that is dearer to it than to preserve that honour) it would be
"inconsistent with the King's honour that he should grant the right of
"possession in the same thing to two. And, therefore, the latter grant is
"altogether void. If the King is deceived in his grant, it is perfectly clear the
" grant is void. It cannot be supposed unless he is deceived in his grant that he
RECORD
In the
Supreme
Court of
British
Columbia
No. 71
Reasons for
judgment of
Morrison J.
31st Jan.
1910
continued
" would
grant
to
A that which he has already granted to B: that would be
ivu tg occasion to litigation, which it is always the object of the King to
40 " prevent." As to the nature of Orders-in-Council, and as to how they are now
substituted, in effect, for the old Crown prerogatives, I refer to the works of
Broom and of Dicey on Constitutional Law : Institute of Patent Agents vs.
Lockwood (1894), A.6. 347 and 359 et seq: and Sec. 37 of the Interpretation Act
(Canada), 1906. In the case at bar I do not think the Minister, in entering into
the lease in question which contains no reference to the Defendant's position in
the premises, took an accurate and deliberate view of all the circumstances, and in
i 164
RECORD
In the
Supreme
Court of
British
Columbia
No. 71
Reasons for
judgment of
Morrison J.
31st Jan.
1910
continued
»
dealing with the Plaintiff he must be held to have been misled and mistaken.
Alcock vs. Cooke supra Gledstane v. Earl of Sandwich, 4M and G. 995; and
Esquimalt and Nanaimo Railway v. Fiddick (a decision of the Full Court of
British Columbia not yet reported) are authorities which show that Crown grants
have been held void and in some cases upheld in actions in which the Crown was
not joined.
Mr. W. A. MacDonald invoked the provisions of an Act respecting Ordinance
and Admiralty lands, being chap. 55 ofthe R. S. Canada, 1886. But the lands
to which alone that Act applies are designated in the Schedule to the Act, which
does not include apparently the lands in question. Of course it does not appear 10
that the Dominion in their correspondence with the Imperial Government asked
to have the lands in question transferred as were the lands mentioned in the Act,
and in the later correspondence between the Department of Militia and Defence
and certain of the military reserve, references were made from which it may be
inferred that this property was treated as having been denominated as class one
or class two provided for in the Act (Reserves) in British Columbia in the same
way as they dealt with the Ordinance lands under the Act, which declares they
shall be retained by the Government of Canada for the defence of Canada, then,
if this property in question is still in class one, although there is no power to sell
it, there is power to lease it or use it otherwise as the Governor-General in 20
Council may think best for the advantage of Canada. Having regard to the
scope of the Act and the context, what is meant by leasing or otherwise using
lands of this nature to the best advantage of Canada ? Counsel have not dealt
with this question, and the only reference I can find to this clause of the Act is
that by Burbridge, J., in the Quebec Skating Club v. The Queen, 3 Ex. rep.
(Canada), p. 387. It may be inferred that the learned Judge considered that a
lease or grant to the Skating Club would be such a use. I certainly do not
think that handing over this portion of Stanley Park, known locally as
Deadman's Island, as claimed by the Plaintiff, is putting the property to a use
that is to the advantage of Canada as contemplated by the Act. 30
If, on the other hand, the property is in class two, then before sale (which
cannot, however, in any way prejudice the right acquired by any person) or other
disposal thereof where the property is in actual occupation of any person with
the assent of the Crown, and improvements have been made thereon, it must be
exposed to competition,- which was not done in this instance.
The action is dismissed with costs.
AULAY MORRISON, J. 165
No. 72.
JUDGMENT.
Monday, the 31st day of January, a.d. 1910.
This action coming on for trial on the 10th, 15th, 16th and 17th days of
December, a.d. 1900, before His Lordship Mr. Justice Morrison, without a jury,
in the presence of E. P. Davis, K.C., and Mr. D. G. Marshall of Counsel for
the Plaintiffs, and W. A. Macdonald, K.C., and Mr. C. F. Campbell of Counsel
for the Defendant.
WHEREUPON on hearing the witnesses adduced for the respective parties
10 and reading the evidence taken on commission herein, and hearing what was
alleged by the Counsel aforesaid, this Court was pleased to reserve its judgment
and this action coming on for judgment this day.
THIS COURT DOTH ORDER AND ADJUDGE that this action>tand
dismissed, and the same is hereby dismissed with costs.
AND IT IS FURTHER ADJUDGED that the Defendant recover
against the Plaintiffs its costs, to be taxed, including the costs of and incidental
to the said Commission.
By the Court,
"A. B. POTTENGER,"
20 District Registrar
Entered Vol. 4, p. 469
Feb. 9, 1910.
W.M.
(S. C. Seal).
RECORD
In the
Supreme
Court of
British
Columbia.
No. 72
Formal
Judgment
31st Jan.
1910 •
Vancouver, Feb. 9th, 1910, Registry
Approved, " D.G.M."
" A.B.P."
A.M.J." 166
RECORD
In the
Court of
Appeal of
British
Columbia
No. 73
Notice of
Appeal
3rd Feb. 1910
I
No. 73.
NOTICE OF APPEAL.
TAKE NOTICE that the above named Plaintiffs (Appellants) hereby
appeal to the Court of Appeal from the whole of the judgment delivered by the
Hon. Mr. Justice Morrison, in the Supreme Court of British Columbia, on the
29th day of January, 1910, whereby the Plaintiffs' action was dismissed with
costs.
AND FURTHER TAKE NOTICE that the said Court of Appeal will be
moved at' its sittings to be held at the Court House, in the City of Vancouver,
on Tuesday, the 5th day of April, 19i0, at the hour of eleven o'clock in the fore- 10
noon or so soon thereafter as Counsel can be heard, by Counsel on behalf of the
above-named Plaintiffs (Appellants) for an order setting aside the said judgment
and for judgment in favour of the Plaintiffs upon the following among other
grounds:—
1. The said judgment is contrary to evidence.
2. The said judgment is contrary to law.
3. The Order-in-Council of the 8th June, 1887, reserved to the Dominion
Government the right to resume possession, of any part of the land whenever
required.
4. The property never formed part of the Military Reserve petitioned for 20
by the Defendants, and was not even at that time within the limits of the
defendant Corporation, and was not intended to be included by the Dominion
Government in the said Order-in-Council of June 8th, 1887.
5. If the said Order-in-Council of June 8th, 1887, amounted to a lease of
the property in question to the Defendants then there was a surrender thereof
by operation of law by the acceptance by the Defendants of a new lease from the
Dominion Government to the Defendants, dated November 1st, 1908.
6. The Order-in-Council of June 8th, 1887, was not and did not have the
effect of a lease from the Dominion Government to the Defendants.
7. The said'Order-in-Council of June 8th, 1887, was cancelled. 30
8. The learned trial Judge erred in admitting certain evidence given on
commission at Ottawa by Sir Frederick Borden.
And on other grounds.
Dated this 3rd day of February, A.D. 1910.
D. G. MARSHALL,
Solicitor for the Plaintiffs (Appellants).
To Geo. H. Cowan, Esq., K.C.,
Solicitor for the Defendant (Respondent). 10
167
No. 74.
IN THE COURT OF APPEAL. >!?:
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA.
The Honourable the Chief Justice.
The Honourable Mr. Justice Irving.
The Honourable Mr. Justice Martin.
Tuesday, the 1st day of November, 1910.
BETWEEN
VANCOUVER LUMBER COMPANY and
RECORD
In the
Court of
Appeal of
British
Columbia
No. 74
Formal
Judgment
1st Nov. 1910
THEODORE LUDGATE
AND
THE CITY OF VANCOUVER
Plaintiffs (Appellants),
Defendants (Respondents).
The Appeal of the above-named Plaintiffs from the Judgment of the
Honourable Mr. Justice Morrison pronounced herein on the 31st day of January,
1)10, coming on to be heard before this Court at the City of Vancouver, on the
;.ft 27th, 28th and 29th days of May, 1910, and the same coming on this day for
Judgment, upon reading the Appeal Book herein, and upon hearing Mr. E. P.
Davis, K.C., and Mr. D. G. Marshall, of Counsel for the Plaintiffs (Appellants),
and Mr. W. A. Macdonald, KG, and Mr. C. F. Campbell, of Counsel for the
Defendants (Respondents).
THIS COURT DOTH ORDER AND ADJUDGE that the Appeal of the
said Plaintiffs (Appellants) be and the same is hereby allowed;
AND THIS COURT DOTH DECLARE that the Plaintiffs (Appellants)
are entitled to recover possession of all that certain Island known as " Deadman's
Island," situate in Coal Harbour, Burrard Inlet, City of Vancouver, and doth
QA Order and Adjudge the same accordingly.
4i) AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE
that the Plaintiffs (Appellants) do recover from the Defendants (Respondents)
their costs of the Appeal herein, and their costs of the action including the costs
of the Commission issued herein.
By the Court.
A. B. POTTENGER,
Registrar.
40
Entered Nov. 7th, 1910.
Vol. 7, p. 85.
"N.M." 166
RECORD
In the
Court of
Appeal of
British
Columbia
No. 75
Reasons for
Judgment of
Macdonald
C. J.
1st Nov. 1910
No. 75.
IN THE COURT OF APPEAL.
VANCOUVER LUMBER CO., AND THEODORE LUDGATE,
v.
CITY OF VANCOUVER.
JUDGMENT OF THE HONOURABLE CHIEF JUSTICE MACDONALD.
It is now settled by the decision of the Judicial Committee of the Privy
Council that what is now known as Stanley Park and Deadman's Island was an
Imperial military reserve, and was by despatch dated 7th March, 1884, transferred by the Imperial to the Dominion authorities. On the 18th June, 1887, a jq
Dominion Order-in-Council was passed giving to the City of Vancouver certain
rights or privileges in this reserve, and one of the questions raised before us is
whether or not this Order-in-Council embraces the whole reserve or only that
portion of it situate upon the mainland and exclusive of the island in question
in this action. The petition of the City to the Governor-General in Council,
presented in 1886, recited that " whereas there is within our City limits a portion
"of land known as the Dominion Government military reserve, near the First
I Narrows, and is bounded on the west by English Bay and on the east by
| Burrard Inlet, your petitioners therefore pray that the said reserve should be
i handed over to the said Corporation to be used by them subject to such restric- 20
"tions as to your Excellency may seem right to be and to be held by them as a
I public park."
It will be noted that the land is described to be within the City limits. The
City's limits were defined by 49 Vict., ch. 2, section 2, and this section was
amended in the following year shortly prior to the 8th June, 1887, so as to
extend the- boundaries of the City down to low water mark. This definition of
the City's boundaries would not in my opinion include the island in question
unless we give effect to the City's contention that the so-called island is in reality
not an island at all, but part ofthe mainland. This contention is founded upon
some rather unsatisfactoi y evidence that at low tide certain persons have been 39
known to walk across the tide flats between the mainland and the island. It is
to be noted, however, that the parcel of land in question is shown on all the maps
and charts referred to in the evidence as an island ; that it appears on Captain
Richards' Admiralty Chart of 1859-60 as an island, and is referred to prior to the
8th of June, 1887, in the correspondence between the Federal and Provincial
Governments, as Deadman's Island. Whether, therefore, the land is technically
an island or not, it was called an island and apparently treated as such at that
time.. Under these circumstances it is at least open to doubt that the City was
ever in a position to assert that the island fell within the description of the
property given over to its use by the said Order-in-Council. But in view of 40 169
what afterwards took place, and to which I shall refer presently, I do not think
that a decision on this point is necessary to the ascertainment of the present
rights of the City. It does appear, however, that the City assumed to use the
island as part of its park, and shortly after the date of the Order-in-Council built
a foot-bridge from the mainland to the island and made a trail across the island
itself. At a later period this foot-bridge was allowed to fall into decay, and no
further care was taken of the trail. I refer to these facts not as showing that
the City intended to abandon what it conceived to be its rights in the island, but
simply that it did not openly and publicly assert those rights in such a way as to
10 give notice to persons who might desire to acquire the island that it claimed it.
Matters remained in this position until 1898, when the Plaintiff applied to the
Dominion Government for a lease of the island. It appears from a letter written
by the Department of Militia and Defence, dated 3rd February, 1899, that the
City was notified that the Plaintiff was applying for such lease, and was asked
whether the City had any objection thereto. It is difficult to say whether the
department had in mind that the City might claim the island under the said
Order-in-Council, or simply wished to notify the City that it proposed to lease
for a site for a saw-mill an island close to the City. Such a disposition of the
island might be objectionable to the City quite apart from any possessory interest
20 which it might claim. No answer to that letter was made for over a month, and
in the meantime a Dominion Order-in-Council,. dated 16th February, 1899, was
passed authorizing the Minister of Militia" and Defence to let the island to the
Plaintiff for a term of twenty-five years, at a rental of $500. In the following
month the City sent a memorial to the Government protesting against this lease
and asserting its right to possession of the island under the Order-in-Council
ofthe 8th June, 1887,
Then arose a dispute between the Province and the Dominion with respect
to the ownership of this island. It was finally decided in the Privy Council in
favour of the Dominion. Thereupon the City began negotiations with the
30 Government of Canada for a lease of Stanley Park, and during these negotiations
the City Clerk, who was also City Solicitor, at the instance of the Council, wrote
to the Government asking that such lease should specifically include Deadman's
Island. Whatever vagueness there may have theretofore been with regard to
what was intended to be included in the Order-in-Council of the 8th June, 1887,
the City now sought to have eliminated by the new arrangement which it was
proposed to enter into. These negotiations resulted in the passing of the Order-
in-Council. dated 31st August, 1906, which authorized a lease of Stanley Park
to Commissioners, and at the same time purported to cancel the Order of the 8th
June, 1887. This was not satisfactory to the City, and as far as the evidence
40 goes the dissatisfaction seems to have been on account of the provision vesting
the park in commissioners, and after two years delay a second Order-in-Council
was passed on the 13th day of August, 1908, varying the one of two years before
by authorizing a lease direct to the City. In pursuance of this authority a lease
was on the 1st November, 1908, executed and delivered to the City. The terms
of the lease appear to have been settled between the parties, the City being
represented by a gentleman who had authority to act for the City, he who had
RECORD
In the
Court of
Appeal of
British
Columbia
No. 75
Reasons for
Judgment of
Macdonald
C. J.
1st Nov. 1910
continued 170
RECORD
In the
Court of
Appeal of
British
Columbia
No. 75
Reasons for
Judgment of
Macdonald
C. J.
1st Nov. 1910
continued
written the letter ofthe 11th August, 1906. In view of these facts and circumstances it seems to me that we must look for the rights of the City after that
date within the four corners of that lease. The property in it is described as
follows:—
I AND WHEREAS the said property consists of all that portion of
the City of Vancouver (and the foreshore adjacent thereto bounded by the
western limit of District Lot 185, Group 1, New Westminster District as
shown on the official plan thereof filed in the Land Registry Office at
Vancouver) and the low water mark of the waters of Burrard Inlet, the
first Narrows and English Bay, and being all that peninsula lying to the 10
west and north of said District Lot 185, known as ' Stanley Park.' "
A glance at the maps and charts in evidence will show that that portion of
the reserve on the mainland is aptly described as a peninsula. Having regard to
all the premises I am driven to the conclusion that the description in the lease,
"all that peninsula lying to the west and north of District Lot 185, known as
Stanley Park," does not include the island in question, and that the City having
accepted the lease following as it did the cancellation of the Order in Council of
the 8th June, must be held to have acquiesced in that cancellation and cannot
now rely upon that Order.
The City's lease also contained a clause as follows :— - 20
I Subject until their determination of any existing leases of portions of
said land."
It appears that there were a couple of leases to athletic associations of small
portions of Stanley Park. Both parties were aware of the existence of the
Plaintiff's lease, which had never been cancelled. Now it is contended on the
part of the City that the exceptions in favour of existing leases had reference only
to the leases firstly above-mentioned, and not to the Plaintiff's lease. That contention seems to support the conclusion to which I have come that the island was
not included in the City's lease, because it is difficult to understand that the
parties should ignore the Plaintiffs lease which is the most important one of all the 30
existing leases. The inference that I would draw is that it was only intended to lease
Stanley Park, using that term as applicable to the mainland, and that the City's
request that Deadman's Island should be specifically included not having been
acceded to, both parties quite well knew and intended that the description above
cited describing Stanley Park as a peninsula, was restricted to the mainland and
did not extend to the island. But if the other view be taken, and it be held or
assumed that the City's lease did embrace the island, then in view of the facts
already appearing above, I am of opinion that the Plaintiff's lease falls within
the description " existing leases " excepted from the lease to the City.
The next question is that of the validity of the Plaintiff's lease. The 40
objection was taken that the transfer of this reserve to Canada was not absolute
but was for military or public purposes only. ■ Canada applied for it "to be held
and administered in the same manner as the lands of corresponding character in
the older Provinces formerly transferred by Her Majesty's Government to
Canada."
The despatch already referred to specified no terms. If therefore there are No. 75
It was also
given at a time
existence
that the
of the
Crown
171
any limitations upon the use by Canada of this reserve, they must-be sought in —
the conditions, if any, attached to such previously transferred lands. There is ^^ot
nothing in the evidence to shew what those conditions, if any, were, but we are Appeal of
referred to the Ordinance and Admiralty Lands Act, as indicating how Canada Columbia
assumes to deal with them. It was indeed argued by Counsel for the City that
this Act is applicable to the reserve in question, but it is plain that this is not so.
.The Act, however, does shew that Canada assumes power to alienate for Reasons for
private as well as public purposes the lands transferred by the War Department Macdonald
mentioned in the schedule to the Act. As the disposition of the reserve in i J.
10 question is not governed by the said Act, therefore the classifications mentioned in continued
it are not applicable here. This reserve, in my opinion, can be dealt with or disposed of as provided in the Public Lands Grants Act, R.S.C., 1906, c. 57, sec.
2b, and sec. 4, which were in force in former-statutes at the date ofthe plaintiff's
lease.
urged against the validity of the Plaintiff's lease that it was
when the Government .had no power to lease owing to the
city's rights under the order of the 8th June, and it was urged
must have been deceived when it authorised a lease without
referring to the prior rights ofthe City; and the case of Alcock v. Cook, 5 Bing,
20 340, was relied on in support of this, Assuming that the island was embraced in
the order of the 8th June, still I do not see that the doctrine laid down in Alcock
v. Cook is applicable to the facts of this case. I say this with all deference to the
learned trial judge who came to the opposite conclusion. In Alcock v. Cook the
Court was careful to point out that it came to the conclusion that the Crown had
been deceived by reason of one essential fact, namely, that the prior title, in that'
case a lease, had been enrolled, and was therefore notice to all the world; that
the Plaintiff who obtained a grant subsequent to such lease, knew, or must be
assumed to have known, of the prior lease, and must have concealed the fact from
the King, and therefore deceived him into making the subsequent grant. I do
30 not think the facts in this case would justify me in saying that the Plaintiff knew
of the Order-in-Council of the 8th June, or that he even knew that the City were
making claims to the island. On the facts of this case it seems to me that we
ought not to presume, and cannot properly presume that the Plaintiff deceived
the Crown.
It was also urged that the Plaintiff's lease is not in accord with the Order-in-
Council of the 16th February, 1899, under which it was authorised. This is
true, but the provisions of the lease which go beyond the terms of the order are
severable, in which case the lease is good for the balance. In Hervey v. Hervey,
1 Atk. 561, Lord Hardwicke said :—
40 " Suppose a power to lease for 21 years and the person leases for 40,
" this is void only for the surplus, and good within the limits of the power."
See also Perry v. Bowen, Nel. 87 ; Alexander v. Alexander, 2 Ves., Sr. 644 ; and
Lord Sondtss Will, 2 Sm. and.Giff*2&l. «?4i6
Objection was taken by counsel for the Plaintiff to the evidence of several
of the Defendant's witnesses, and also to the admission of certain letters and
other documents. It seems to me that a considerable portion of the evidence
■
4
r.4\
I RECORD
In the
Court of
Appeal of
British
Columbia
No. 75
Reasons for
Judgment of
Macdonald
C. J.
1st Nov. 1910
continued
172
was inadmissible. An example is contained in the following extract from the
evidence of one of those witnesses :—
Q. In connection with this lease of Deadman's Island did you, as an alderman, intend that any rights you should have should be lost under this new
lease ?
Mr. Davis objects.
A. No.
Q. Was there any intention on your part or, as far
part ofthe Council, to let the Ludgate lease or any lease in
lease? A. No.
I do not propose, however, to go into an analysis of the
but simply say that I have paid no attention to evidence of
recited. Some of the correspondence objected to is also
while others of it have some bearing* as shewing* notice or
of one or other of the parties of circumstances which maj
preting the different leases and Orders-in-Council under rev
I think the appeal should be allowed.
(Signed) J. A.
Victoria, B.C.,
Nov. 1st, 1910.
as you know, on the
ahead of the City's
evidence objected to,
- the character above
clearly inadmissible,
knowlege on the part
be looked at in inter-
iew.
MACDONALD.
10
20
1
I
No. 76
Reasons for"
Judgment of
Irving, J.
1st Nov., 1910
* ? 16th Feb.,
1899
No. 76.
J; JUDGMENT OF THE HONOURABLE MR. JUSTICE IRVING. $i
I agree that the appeal should be allowed and judgment entered for Plaintiffs.
The dispute is as to the title to Deadman's Island, and the sole point is, did
the Dominion Government lease it to the Plaintiffs or to the Defendants.
That question, I must say, seems very simple if we read the documents under
which the parties make their respective claims.
On the 14th February, 1899, a lease for twenty-five years was issued to 30
the Plaintiffs. It is said that this lease is bad because the Order-in-Council
under which it was said to be executed bears the date two days later. That
seems to me to be immaterial for more than one reason, but in any event the
lease was recognised as being a good and valid lease by a subsequent document executed the 4th April, 1900, under authority ofthe Order-in-Council
of * 16th April, 1900.
The Plaintiffs, then, having shewn their title, in what way does the City
support its claim ?
First of all the City puts forward the Order-in-Council dated the 8th June,
1887. 40
Then, secondly, a lease to the City dated the 1st November, 1908.
The Order-in-Council of 8th June, 1887, is to a certain extent indefinite in
its description of the property proposed to be dealt with. The application for
the land uses the expression " a portion of land known as ' The Dominion 173
Government Military Reserve within our City Limits,''' but assuming that it
was intended to include the island, and that it conferred any title, that Order-in-
Council was wholly cancelled by an Order-in-Council dated 31st August, 1906. It
is argued that nothing was done under this Order-in-Council of 31st August,
1906. I do not understand exactly what is meant by that argument. If you
repeal an Act by another Act, there is an end of the first Act and the rights
conferred by it. If you cancel an Order-in-Council by another Order-in-Council
there is an end of the first Order-in-Council and the privileges granted by it.
The first Order-in-Council, granted to the City the use of the park, 1 subject to
10 the right of the Dominion Government to resume the property when required at
any time." The Order-in-Council of 31st August, 1906, was a resumption by the
Dominion Government, and when that was passed the privilege granted by the
Order of June, 1887, was at an end ; so it may be said that on the 1st September, 1906, the City had no title whatever to the property that had been handed
over to it for use as a park.
If the island fell within the reserve there described—and I do not think it
did—the right of the City thereto was gone, cancelled.
Then, on the 1st November, 1908, the City applied for a lease—but of what ?
"All that peninsula lying to the west and north of District Lot 185, known as
20 Stanley Park."
It seems to me to be unnecessary to go further than this. These words " all
that peninsula lying to the west and north of District Lot 185 known as Stanley
Park " are altogether inapplicable to Deadman's Island.
If one looks at the land itself or at a map or chart of the harbour and the
Narrows, or if you read the judgment of the Privy Council (1906), A.C. 552,
delivered in July, 1906, in the action brought by the Attorney-General of British
Columbia against Ludgate, or the letter of the 11th August, 1906, asking that
the island be specifically included in the new lease, one cannot help seeing that
the Dominion Government did not intend to include in the lease of November,
30 1908, the island. If any one will read the lease granted to the City in
November, 1908, he or she will see that they relate to two different properties
and are granted for different purposes. Ludgate has the island with power to
cut down trees with the right of erecting thereon a lumbering plant, wharves,
etc..
The City, on the other hand, has the peninsula for use as a public park.
The City is "to keep the existing main road round the peninsula in good order,
and no trees shall be cut by the City without permission of the Government."
Does not the use of the words " existing main road round the peninsula " shew,
beyond doubt, what Peninsula is meant ?
40 I would rest my decision on these few documents, and as they seem so
exceedingly plain I shall not deal with the many alternative propositions which,
in my opinion, only obscure the issue to be decided.
(Signed) P. E. IRVING.
fmm
Mm
HI
RECORD
In the
Court of
Appeal of
British
Columbia
No. 76
girl
m
Reasons for -
Judgment of
9JH
Irving J.
1st Nov. 1910
continued
Eg!
pal
:;l#5 tUP
WM
m 174
RECORD
In the
Court of
Appeal of
British
Columbia
No. 77
Reasons for
Judgment of
Martin J,
1st Nov. 1910
No. 77
JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTIN.
My view of this case is that the Order-in-Council of 8th June, 1887 (which I
think was a valid one), was not more than a licence to the City to use the property
for park purposes, which licence was revocable at will, being made expressly subject
to two definite conditions, one of which was the right of the Dominion Government I to resume the property when required at any time." There is no limitation of this right of resumption, and in my opinion it might be exercised, as it
plainly says, at 1 any time," and as to the whole or part of the property and for
any reason, good or bad, or, indeed, for no reason at all; it is quite outside our 10
province to inquire into this phase ofthe matter. The case of Plimmer v. Mayor,
etc., of Wellington (1884), 9 A.C. 699, really supports the Plaintiff's case and not
the Defendant's. I fail to see the application of Jones v. Tankerville (1909),
2 CD. 440, to the facts at bar.
The lease of the 14th February, 1899, to the Plaintiff Company of Deadman's
Island would, assuming it to be valid, of itself, apart from any other acts, have
the effect of a resumption of that small part of the park (assuming the Defendant's contention is correct that Deadman's Island is part of the park), which has
admittedly not been used by the public since the bridge was destroyed on
December 24th, 1901, and nothing happened between 1887 and the date of this 20
lease that had the effect of altering the rights of the Federal Government. As
to its validity, even if it could not be upheld because the Order-in-Council
authorizing it was not approved until two days after its execution, nevertheless
m the lease ofthe 4th of April, in the following year (which must be held to be
authorized by said Order-in-Council at least for the terms of 25 years), the first
lease is recited and treated as a valid instrument and amended as agreed to by
the same parties. In such circumstances I am of the opinion that the joint effect
of these two instruments is at least to place the Plaintiffs in such a position that
they are not open to attack from a party holding the status of the Defendant
Corporation, which in law was at the mercy ofthe Crown. I cannot accept the 30
view that in any event there was authority to resume for military purposes only,
in the face of the statute (cap. 55, R.S.C., 1886), which says that the lands in
class one " may be leased or otherwise used as the Governor in Council thinks
best for the advantage of Canada." This Court cannot substitute its view for
that of the Governor in Council.
The fact that more than eight years afterwards the corporation at last
obtained a lease (which I assume to be valid) of the whole area, cannot, in the
circumstances, have the effect of disturbing the Plaintiff Company in its vested
rights to the small portion already long before leased to it. Taking this view of
the main questions, it is unnecessary to consider the other points raised further 40
than to say that to my mind no element of a trust is present, and that section
6 of the rejoinder clearly should be struck out.
(Signed) ARCHER MARTIN,
November 1st, 1910. J. A. 176
o
o
No. 78.
AT THE COURT AT BUCKINGHAM PALACE,
The 4th day of March, 1911.
RECORD
No. 78
Order of
Privy
Council
giving leave
to Appeal
4th March
1911
s^f:
Present:—
The King's Most Excellent Majesty
Lord President Lord Sandhurst
Lord Denman Mr. J. A. Pease
Master of Elibank.
10
WHEREAS there was this day read at the Board a Report from the
Judicial Committee of the Privy Council dated the 28th day of February
1911 in the words following viz. :—
20
HIS MAJESTY having taken the said Report into consideration was
pleased by and with the advice of His Privy Council to approve thereof and
to order as it is hereby ordered that leave be and it is hereby granted to
the Petitioners to enter and prosecute their Appeal against the said
Judgment of the Court of Appeal of British Columbia dated the 1st day of
November 1910 upon depositing in the Registry of the Privy Council the sum
of 3001. as security for costs.
And the authenticated copy under the seal of the said Court of Appeal
of the Record pleadings proceedings and evidence produced upon the hearing
of the said Petition is (subject to any objections of the Respojadefi'ts) to be
accepted as the Record proper to be laid before His Majesty on the hearing
of this Appeal.
Whereof the Lieutenant-Governor of British Columbia for the time being:
and all other persons whom it may concern are to take notice and govern
themselves accordingly.
Si
ALMEEIC FITZROY. ftt tht fritrg (tmmol.
No. 17 of 1911.
On Appeal from the Court of Appeal o/{
British Columbia.
pty BETWEEN
CITY OF VANCOUVER # .
(Defendant), Appellant,
AND
VANCOUVER LUMBER COMPANY
M\ AND THEODORE LUDGATE .
(Plaintiffs), Respondents.
RECORD OF PROCEEDING
ARMITAGE, CHAPPLE & MACNAGHTEN,
80, Bishopsgate, E.C,
for AppellanU.i
BISCHOFF, COXE, BOMPAS & BISCHOFF,
4, Great Winchester Street, E.C,
for Respondents.
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[Deadman's Island Case] in the Privy Council, no. 17 of 1911, on appeal from the Court of Appeal of British… Ludgate, Theodore 1911
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