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In the Supreme Court of Canada, On appeal from the Court of Appeal for British Columbia between Attorney-General… Canada. Supreme Court [1925?]

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NORTHWEST HISTORY
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JSP"   -  *\ *^'     ■ Js&f-  In the Supreme Court of British Columbia
On Appeal from the Court of Appeal for British Columbia
BETWEEN
ATTORNEY-GENERAL OF CANADA
—and—
CITY OF VANCOUVER
—and—
ALFRED GONZALVES
(Plaintiffs)
Appellants;
(Defendant)
Respondent.
CASE ON APPEAL
J. B. WILLIAMS, Esq.,
Solicitor for Appellants.
N. G. GUTHRIE, Esq.,
Ottawa Agent,
City of Vancouver.
MESSRS. McQUARRIE & CASSADY,
Solicitors for Respondent.
MESSRS. EWART, SCOTT,
KELLEY & KELLEY,
Ottawa Agents.
trs  fl1H\vn\)W)   %D CoFlSi INDEX
■*-»
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENTS
PART I.—PLEADINGS, ETC.
Endorsement on Writ of Summons .
Amended Statement of Claim	
Amended Statement of Defence'	
Reply and Joinder of Issue	
Reply to Demand for Particulars __.
Notice of Appeal of the Defendant,
Alfred Gonzalves, to the Court of
Appeal for British Columbia	
.Notice of Appeal to the Supreme Court of
Canada, by the Plaintiffs, Attorney-
General of Canada and City of Vancouver   ^ :	
Bond on Appeal	
Certificate of Registrar of Court of Appeal as to Filing of Security	
Order of the Honourable the Chief Justice of the Court of Appeal allowing
the Security  T
Agreement as to Case 	
Certificate of Registrar as to Case
PART II.—WITNESSES.
PLAINTIFFS' EVIDENCE
William Hall Powell-
Examination    i__.
Cross-Examination	
April 21, 1923
Aug! 11, 1923
Sept. 12, 1923
Sept. 24, 1923
Oct. 10, 1923
Feb. 5, 1924
Dec. 1, 1924
Nov. 27, 1924
Dec. 1, 1924
Dec. 4, 1924
Jan. 10, 1924
Nov. 5,  1923
I"
2
6
9
14
179
212
215
213
214
217
218
19
20    ——^ra^w*
III.
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENTS
DATE
PAGE
Extracts  from  Exam,   for  Discovery  of
Peter Smith              ..    	
131
Extracts from Examination for Discovery
141
Extracts from Examination for Discovery
of Edward Long      >.          4     - -
152
EVIDENCE FOR DEFENDANT
Father Bellot—
Nov. 5,  1923
53
54
Cross-Examination  _      ....   	
Thomas Fisher—
Nov.  5,  1923
Examination  	
55
60
Tom Abraham—
Nov.  5,  1923
67
72
80
Nov  6   1923
Celestine—
Nov. 6, 1923
81
83
Cross-Examination            	
Mrs. Emma Gonzales—
Nov. 6, 1923
84
86
Cross-Examination                _ _
Mrs. Annie Carrasco—
Nov. 6, 1923
88
Edward Trimble—
Nov. 6, 1923
90
Nov. 7, 1923
92
Recalled 	
113
Re Cross-Examination
114  IV.
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENTS
DATE
Joe Gonzalves—
Examination   	
Cross-Examination —
Recalled 	
Alfred Gonzalves—
Examination    	
Cross-Examination ...
Peter Smith—
Examination   	
Cross-Examination	
Captain George Marchant-
Examination   	
CrossrExamination _
Mrs. Martha Smith—
(Peter Smith Case)....
Examination  _.
Cross-Examination
Mrs. Mary Dunbar—
(Mary DeKosta Case)
Examination  	
Cross-Examination	
Mrs. Mary DeKosta—
(Mary DeKosta Case)
Examination  	
Cross-Examination .
Nov. 6, 1923
Nov. 7, 1923
Nov. 6, 1923
Nov. 7, 1923
Nov. 7, 1923
Nov.  7,  1923
Nov.  8,  1923
Nov.  8,   1923
PAGE
96
100
114
109
110
116
118
134
136
138
138
142
143
144
146  Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENT
PART III.—EXHIBITS.
/Exhibits Put in by Plaintiff
Field Notes of George Turner, together
with Instructions from Colonel Moody
Letter from the War Office to the Colonial
Office together with Schedule of Reserved Lands of British Columbia proposed to be surrendered to the Dominion Government ,	
Imperial Despatch, addressed by the Earl
of Derby, Secretary of State for the Colonies, to the Marquis of Lansdowne,
Governor-General of the Dominion of
Canada	
Order-in-Council of the Dominion Government . . .	
Order-in-Council of the Dominion Government  ^ 	
Order-in-Council of the Dominion Gov-
.......	
	
Lease from His Majesty the King to the
City of Vancouver of Stanley Park	
Certificate of Encumbrance showing the
state of the title to City of Vancouver
of Stanley Park 	
Map showing area occupied by Defendant
in Stanley Park        ,	
Map plotted from Turner's Field Notes
(.Exhibit 8)  :	
Instructions Dated
26th January, 1863.
Survey  of Field
Notes. Pursuant to
Instructions.
Dated Feb.  1863, to
March, 1863.
27th July, 1883
27th Mar., 1884
8th June,  18,87
31st August, 1906
13th August, 1908
1st November,  1908
16th October, 1923
14th April, 1923
154
161
163
165
166
167
168
171
Exhibits 7
and 9 in
Envelope
at back
of book.  VI.
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENT
PART IV.—JUDGMENTS, ETC.
Reasons for Judgment of Trial Judge—
Murphy, J.	
Formal Judgment—Trial Court	
Reasons for Judgment of Court of Appeal
Macdonald, C.J.A. 	
Martin, J.A.	
(Full Reasons)
McPhillips, J.A	
Formal Judgment—Court of Appeal 	
16 th Nov
, 1923
173
11th Dec.
1923
176
7th Oct.,
1924
181
7th Oct.,
1924
184
7th Oct.,
1924
184
7th Oct.,
1924
199
7th Oct.,
1924
210  VII.
ATTORNEY-GENERAL OF CANADA AND CITY OF VANCOUVER
v.
PETER SMITH
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENT
PLAINTIFFS' EVIDENCE
Thomas H. Boyd—
Examination —
Cross-Examination .
William H. Allen-
Examination   	
Cross-Examination .
James B. Williams—
Examination   	
Cross-Examination .
William Stanley Rawlings—
Examination   	
Cross-Examination 	
Extracts from Examination for Discovery
of Peter Smith 	
EVIDENCE FOR DEFENDANT.
Peter Smith—
Examination   	
Cross-Examination *	
Captain George Marchant-
Examination   	
Cross-Examination	
Mrs. Martha Smith—
Examination   	
Cross-Examination
Pleadings and other Documents in separate Case on Appeal, Attorney-General of Canada and City of Vancouver
v. Peter Smith.
Exhibits are the same as in Alfred Gonzalves Case and are set out in the Alfred
Gonzalves  Case on Appeal.
DATE
Nov. 7, 1923
Nov. 7, 1923
Nov. 7, 1923
Nov. 7, 1923
Nov. 7, 1923
Nov. 7, 1923
Nov. 7, 1923
PAGE
121
122
123
125
125
126
129
129
131
116
118
134
136
138
138  1
VIII.
ATTORNEY-GENERAL OF CANADA AND CITY OF VANCOUVER
v.
MARY DEKOSTA
Exhibit
No. or
Mark
DESCRIPTION OF DOCUMENT
DATE
PAGE
PLAINTIFFS'  EVIDENCE
Extracts from Examination for Discovery
of Mary DeKosta—
141
EVIDENCE FOR DEFENDANT
Mrs. Mary Dunbar—
Examination         	
Nov. 8, 1923
142
143
Mrs. Mary DeKosta—
Nov. 8, L923
144
Cross-Examination     —   . —	
146
Pleadings and other Documents in separate   Case   on   Appeal,   Attorney-General of Canada and City of Vancouver
v. Mary DeKosta.
Exhibits are the same as in Alfred Gonzalves Case and are set out in the Alfred
Gonzalves Case on Appeal.
'
ATTORNEY-GENERAL OF CANADA AND CITY OF VANCOUVER
v.
EDWARD LONG
PLAINTIFFS' EVIDENCE
Extracts from Examination for Discovery
of Edward Long	
Pleadings and other Documents in separate Case on Appeal, Attorney-General of Canada and City of Vancouver
v. Edward Long.
Exhibits arc the same as in Alfred Gonzalves Case and are set out in the Alfred
Gonzalves Case on Appeal.
152  I
Endorsement on Writ.
IN THE SUPREME COURT OF BRITISH COLUMBIA
No. 491/23.
BETWEEN:
ATTORNEY-GENEBAL OE CANADA
■—and—
CITY OE VANCOUVER
Plaintiffs
AND
10
ALFRED GONZALVES
Defendant.
WRIT ISSUED APRIL 21st, 1923.
ENDORSEMENT ON WRIT
The Plaintiff's claim is for the recovery of possession of ALL
AND SINGULAR that certain parcel or tract of land, beach,
foreshore, and tidal lands and premises, situate, lying and being
in the City of Vancouver, Province of British Columbia, and being
part of the peninsula lying to the west and north of District Lot
185, known as "Stanley Park," and which parcel is more par-
'20 ticularly known and described as follows, that is to say: Commencing at a point on a fence, which point is 18 feet from the
centre of the main roadway around Stanley" Park, and about
1107.4 feet easterly from a wooden post erected to mark a distance
of one mile, measured along the said main roadway from the
Georgia Street entrance to the said Park, which point is referenced by an iron post planted 5 feet north, thence easterly following the'line of a picket fence built at an approximate distance of 18
feet from the centre line of said main roadway a distance of 132.5
feet more or less to intersection with the line of another picket
30 fence; thence south-westerly along the line of said last mentioned
picket fence 83.5 feet more or less, thence following a crooked
picket fence 51 feet more or less, thence following the line of a
picket fence south-easterly 36 feet, thence west 101 feet more or
Jess to intersection with the production southerly of the line of a
picket fence, built south-westerly from the point of commencement, thence north-easterly along this production and along the
line of said picket fence 150.5 feet more or less to point of commencement, the whole containing an area of 0.354 acres and shown
colored yellow and marked Parcel 2 on Plan No. L. C. 22 (A), filed
4C in the office of the City Engineer, of the City of Vancouver, and.
which parcel is now occupied by the Defendant; and for a Declaration that the Plaintiff is entitled to possession of the said property, and that the Defendant is a trespasser thereon; and for an
Injunction restraining the Defendant from continuing in possession thereof.  Amended Statement of Claim.
Vancouver
Aug. 11/23
Registry.
No. 491/23
IN THE SUPREME COURT OE BRITISH COLUMBIA
BETWEEN:
ATTORNEY-GENERAL OP CANADA
—and—
10 CITY OE VANCOUVER
Plaintiffs;
AND
ALFRED GONZALVES
Defendant.
AMENDED STATEMENT OF CLAIM,
AMENDED PURSUANT TO ORDER OF
THE HONOURABLE MR. JUSTICE GREGORY MADE ON
THE 28th DAY OF JUNE, A. D., 1923.
1. The Plaintiff, the Attorney-General of Canada, repre-
20 sents His Maje'sty on behalf of the Dominion of Canada.
2. The Plaintiff, the City of Vancouver, is an incorporated
municipality incorporated under special Act of the Legislature of
the Province of British Columbia, being the "Vancouver Incorporation Act, 1921."
3. The Defendant is a labourer, residing at Stanley Park
within the City of Vancouver on the property and premises hereinafter more particularly described.
4. The Plaintiff, the City of Vancouver, is the Lessee and
Grantee of the Crown in right of the Dominion of Canada under
on grant by indenture of lease or agreement of date the first day of
November, A. D., 1908, in respect to all that certain property
and premises consisting of all that portion of the City of Vancouver and the foreshore adjacent thereto bounded by the western
limit of District Lot One Hundred and Eighty-five (185), Group
One (1), New Westminster District, as shown on the official
plan thereof filed in the Land Registry Office at the City of Van-  ■at
Amended Statement of Claim.
couver, and the low-water mark of the waters of Burrard Inlet,
the First Narrows, and English Bay, and being in particular all
that peninsula lying to the west and north of said District Lot
One Hundred and Eighty-five (185), more particularly known
and described as Stanley Park, which said grant, lease and agreement the Plaintiff craves leave to refer to at the trial of this
action.
5. The Plaintiffs say that Stanley Park is the property of
in the Crown in right of the Dominion of Canada, being a military
' reserve now owned by the Crown in the right of the Dominion
of Canada, and was transferred to the Crown in the right of the
Dominion of Canada by special grant from the Imperial Government on March 27th, A. D., 1884; and the Plaintiffs further say
that the Crown in right of the Dominion of Canada granted a lease
of all the said property more particularly known and described
as Stanley Park to the Plaintiff City of Vancouver on the said
first day of November, A.D. 1908, for the term of ninety-nine (99)
years as and for a public park, renewable perpetually on the same
on terms and conditions as in the said indenture of lease contained;
and the Plaintiff, the City of Vancouver, is now in actual possession, enjoyment and occupation of said property, and has been in
actual possession, enjoyment and occupation of said property
since the date of the said lease.
6. The Defendant is wrongfully and unlawfully and against
the will and consent of the Plaintiffs, in possession of and occupying a portion of said Stanley Park as a squatter and trespasser-
thereon, which said portion, wrongfully and unlawfully occupied
bj the Defendant, may be more particularly described as follows:
30
40
Being all and singular that certain parcel or tract of land
and premises situate, lying and being in the City of Vancouver,
Province of British Columbia, and being that certain part or
portion of all that certain peninsula lying to the west and. north
of District Lot One Hundred and Eighty-five (185), known and
described as Stanley Park, and which said part, portion or parcel of land may be more particularly known and described as
follows, that is to say:
Commencing at a point on a fence, which point is eighteen
(18) feet from the centre of the main roadway around Stanley
Park, and about one hundred and seven and four-tenths (107.4)
feet easterly from a wooden post erected to mark a distance of
one mile, measured along the said main roadway from the
Georgia Street entrance to the said park, which point is referenced by an iron post planted five (5) feet north; thence easterly following the line of a picket fence built at an approximate
distance of eighteen (18) feet from the centre line of said main  Amended Statement of Claim.
roadway a distance of one hundred and thirty-two and five-
tenths (132.5) feet, more or less, to intersection with the line
of another picket fence; thence south-westerly along the line
of said last-mentioned picket fence eighty-three and five-tenths
(83.5) feet, more or less; thence following a crooked picket
fence fifty-one (51) feet, more or less; thence following the line
of a picket fence south-easterly thirty-six (36) feet; thence
west one hundred and one (101) feet, more or less, to inter-
10 section with the production southerly of the line of a picket
fence, built south-westerly from the point of commencement;
thence north-easterly along this production and along the line
of said picket fence one hundred and fifty and five-tenths
(150.5) feet, more or less, to point of commencement; the whole
containing an area of 0.354 acres and shown colored yellow and
marked Parcel 2 on Plan No. J C. 22 (a), filed in the office of.
the City Engineer of the City of Vancouver, and which parcel is
now occupied by the Defendant.
7. The Plaintiff, the City of Vancouver,   has repeatedly
20 demanded that the Defendant vacate the said land and premises,
which the Defendant is now unlawfully occupying and in possession of, and to remove from occupying the said property and
premises, but the Defendant has so far refused to vacate such
property and premises, or to remove therefrom.
8. The Plaintiffs say that the Defendant is wrongfully and
unlawfully occupying and remaining in possession of the said
property and premises and is trespassing thereon, and is now,
and at all times has been, a trespasser therein and thereon; and
the Defendant has wrongfully refused, and still refuses, to remove
30 from or vacate the said premises and property.
9. The Plaintiffs therefore claim:
(a) Recovery and possession by the City of Vancouver
of the said premises;
(b) An order or declaration of this Honourable Court
that the Plaintiffs, according as their respective interests do
appear, are entitled to possession of the lands, property and
premises, free from any right, claim, or hindrance of the
Defendant therein or thereon;
(c). An order, for the eviction and ejectment of the
40 Defendant from occupation and possession of the said lands,
property and premises, and for the possession and occupation thereof;
(d) For an injunction restraining the Defendant from
continuing in possession or occupation thereof, or in any way
asserting any claim thereto, or from molesting the Plaintiffs
in their respective rights in and to quiet enjoyment and  possession of the said lands, property and premises;
(e) Ai^d for the costs of this action, and for such further and other relief as to this Honourable Court may seem
meet.
DELIVERED this 11th day of August, A.D., 1923, by
J. B. Williams, Solicitor for the Plaintiffs, whose place of business and address for service is at the City Hall, 425 Main Street,
Vancouver, B. C.
J. B. WILLIAMS,
Solicitor for the Plaintiffs.  Amended
Statement of Defence.
No. 491/23.
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
10
ATTORNEY-GENERAL OF CANADA
—and—
CITY OF VANCOUVER
Plaintiffs
AND
ALFRED GONZALVES
Defendant
STATEMENT OF DEFENCE PURSUANT TO AN
ORDER OF THE HONOURABLE MR. JUSTICE
GREGORY, DATED JUNE 28,1923.
1. The Defendant denies each and every allegation of fact
contained and set out in paragraph numbered. 4 of the amended
Statement of Claim herein.
2. The Defendant denies each and every allegation of fact
contained and set out in paragraph numbered. 5 of the amended
20 Statement of Claim herein.
3. The Defendant denies each and every allegation of fact
contained and set out in paragraph numbered 6 of the amended
Statement of Claim herein.
4. The Defendant denies each and every allegation of fact
contained and set out in paragraph numbered 7 of the amended
Statement of Claim herein.
5. The Defendant denies each and every allegation of fact
contained and set but in paragraph numbered 8 of the amended
Statement of Claim herein.
30 6. The Plaintiff, City of Vancouver, is not the lessee or
grantee of the Crown in the" right of the Dominion of Canada in
respect of the property and premises set out described in paragraph 4 of the amended Statement of Claim herein as alleged
therein or otherwise howsoever.
7. The Plaintiff, City of Vancouver, is not the lessee or
grantee of the Crown in the right of the Dominion of Canada
under grant, lease or agreement of the said property and prem- I BW
M
Amended .
Statement of Defence
ises, or of the property and premises particularly described in
paragraphs numbered 5 and 6 of the amended Statement of Claim
herein, or otherwise howsoever, and is not entitled to any rights
thereto.
8. If any grant of ^Stanley Park was made to the Dominion
of Canada by the Imperial Government as alleged in the amended
Statement of Claim, which is not admitted by denied, the same
did nT)t include the lands and premises occupied by the Defendant
10 and more particularly described in paragraphs 5 and 6 of the
amended Statement of Claim herein and such grant if any, was
subject in all respects to the right, title, use, occupation and possession, of the Defendant and created no right in the Plaintiff
Attorney-General of Canada, as representing the Crown.in the
right of .the Dominion of Canada, against the Defendant.
9. If any grant or lease from the Crown in the right of the
Dominion of Canada.of Stanley Park as aforesaid to the Plaintiff,
City of Vancouver, was made, as alleged in the amended State-
• ment of Claim, which is not admitted but denied, such did not
20 include the lands and premises occupied by the Defendant and
more particularly described in paragraphs 5 and 6 and such was
subject in all respects to the right, title, use, occupation and possession of the Defendant and created no right in the Plaintiff,
City of Vancouver, against the Defendant.
10. Neither of the Plaintiffs is now and neither of the
Plaintiffs has at any time been owner of or in actual possession,
enjoyment or occupation of the property particularly described
in paragraphs numbered 5 and 6 of the Statement of Claim.
11. The Defendant says that neither the lands and premises
30 described in paragraph 6 of the amended Statement of Claim
nor Stanley Park is the property of the Crown in the right of
the Dominion of Canada as alleged in the amended Statement of
. Claim, or otherwise howsoever.
12. The Defendant is in nossession of and occupies the property and premises particularly described in paragraph numbered
6 of the amended Statement of Claim and has been in possession
and occupation thereof for a period exceeding twentv years before
the commencement of this action and by himself and his predecessors in interest and title in occupation and possession of the
40 said property for upwards of sixty years and is not now and has
not been at any time a trespasser thereon.
13. The Plaintiff, City of Vancouver, has never at any time
demanded that the Defendant vacate the said lands and tiremises,
or to remove from occupving the same.
14. The Plaintiff, Attorney-General of Canada, as representing the Crown in the right of the Dominion of Canada alleged
right of action did not accrue if at all within sixty years next  MM
Mi
VPf
Amended
Statement of Defence
before the commencement of this action and was barred and is
now barred by the Statute of Limitations, being Chap. 145 of the
Revised Statutes of British Columbia, 1911.
15. The Plaintiff, City of Vancouver, alleged right of action
did not accrue if at all within twenty years next before the commencement of this action and was barred and is now barred by
the Statute of Limitations, bein'g Chap. 145 of the Revised Statutes of British Columbia, 1911.
10 16. The amended Statement of Claim herein shows no cause
of action against the Defendant.
DATED at- Vancouver, B. C. this 12th day of September,
A.D., 1923.
G. ROY LONG,
Defendant's Solicitor.
DELIVERED BY G. ROY LONG, Defendant's Solicitor, whose
place of business and address for service is at 801 Birks Building,
718 Granville Street, Vancouver, B. C.
To: The above-named Plaintiffs, and to
J. B. Williams, Esquire, their Solicitor.
k  Reply and Joinder of Issue.
491/23.
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
city of vancouver,
'and
10 alfred gonzalves
Plaintiffs,
Defendant.
REPLY AND JOINDER OF ISSUE.
1. In answer to paragraph 10 of the Statement of Defence
delivered herein, the Plaintiffs say that the said property in question as set out in the amended Statement of Claim delivered herein was the property of the Crown Imperial up to the date of the
transfer by the Crown Imperial to the Crown in the right of the
Dominion of Canada, and the Crown in the right of the Dominion
of Canada conveyed and transferred the same to the Plaintiff,
20 the City of Vancouver, by a grant as set out in the amended
. Statement of Claim herein, and the Plaintiffs deny that the Defendant has ever been in actual possession, enjoyment, and occupation of the said property sufficient to have acquired any title,
statutory or otherwise, in respect to the same; and the Plaintiffs
further deny that the Defendant has been in actual, continuous,
visible, open and uninterrupted possession of the said property
to the knowledge and with the acquiescence of the Plaintiffs or
the Plaintiff's predecessors in title thereto for a period, or at
all, to enable the Defendant to set iip and establish a statutory
30 title by statute or otherwise to such property.
2. In answer to paragraph 12 of the Statement of Defence
delivered herein, the Plaintiffs deny that the Defendant by himself or his predecessors in interest; or any of them, have been in
occupation and possession of the said property as required by law
for the full statutory period of twenty (20) years, or, alternatively, for sixty (60) years, as therein alleged^ or from time immemorial; and the Plaintiffs deny that the Defendant has been
in actual possession and occupation thereof of a continuous, open,
visible, and uninterrupted nature for such period, or at all; and  10
Reply and Joinder of Issue.
statutory or other
denies that the Defendant has acquired ai
title as required by law in respect thereto.
3. In the alternative and in further answer to said paragraph 12, the Plaintiffs say that the Defendant has acquired no
sufficient title by occupation or possession within the Statute of
Limitations or otherwise as required by law in respect to the said
property; and the Plaintiffs say that if there were any predecessors in interest in occupation and possession of the said property
10 prior to the occupation and possession by the Defendant, which
the Plaintiffs do not admit, but deny, then there was no privity
in interest or succession between such predecessors in title as
between themselves or with the Defendant in respect thereof; and
the Plaintiffs further say that each such predecessor abandoned
and vacated said property without remaining in occupation and
possession thereof for a sufficient duration of time, continuously,
openly, and uninterruptedly, to acquire any legal right, title, or
interest therein or thereto; and the Defendant is and has been at
all times a trespasser and squatter without legal right upt)n the
20 said property.
4. In further answer to said paragraph 12, the Plaintiffs
deny that the Defendant has any good, valid, or sufficient title,
. deed, or transfer of the said land and premises from any alleged
* predecessor in interest in respect to the said lands and premises.
In the alternative, the Plaintiffs say that if any alleged predecessors in interest of the Defendant ever enjoyed or possessed
any interest in the said lands and premises, which the Plaintiffs
do not admit, but deny, each such alleged predecessor in interest
abandoned or vacated the said lands and premises before aequir-
30 ing any legal title or interest thereto or therein as required by
■  law as against the Plaintiffs, or either of them, or the Plaintiffs'
predecessor's in title thereto—and the Plaintiffs further say that
any alleged transfer,  conveyance,  deed,  transmission, or title
transferred or transmitted to the Defendant by any alleged predecessor in interest in said lands and premises conveyed or passed
no legal interest in the said lands and premises to the Defendant;
and the Plaintiffs further say that any such conveyance, transfer,
or transmission of such alleged predecessors in interest to the
Defendant does not satisfy the provisions of the Statute of Frauds
40 in that behalf, and the Plaintiffs will object, in answer thereto,
that the Statute of Frauds has not been complied with in respect
to the same.
5. In answer to paragraphs 14 and 15 of the Statement of
Defence delivered herein, the Plaintiffs deny each and every
allegation of fact therein set forth, and deny that the right of
action of the Plaintiffs, or either of them, is barred by the Statute
of Limitations as alleged.  11
Reply and Joinder of Issue.
6. In answer to the whole of the Statement of Defence
delivered herein, the Plaintiffs say that neither the Defendant
nor any of the Defendant's alleged predecessors in title or interest
in the said land and premises ever occupied or possessed the
said lands and premises by continuous, open, visible, and uninterrupted possession or occupation for the full period required by
law to enable the Defendant or any of such alleged predecessors
in interest to claim or set up or acquire a statutory title or other
10 lawful title to the said lands and premises.
7. In the alternative, the Plaintiffs' say that if there were
any predecessors in interest to the Defendant, which the Plaintiffs do not admit, but deny, there was no privity existing between the Defendant and any of such alleged predecessors in
interest, or between any of the'said alleged predecessors in interest as between themselves and the first trespasser or squatter
on the said lands, or either of them; and the Plaintiffs further
say that any of the predecessors in interest in prior occupation
to the Defendant of the said lands and premises abandoned the
20 said lands and premises and vacated the same prior to the possession and occupation thereof by the Defendant before any of
the said alleged predecessors in interest had occupied the said
lands and premises for a sufficient time to acquire a title in law
or by statute to the said lands and premises.
8. In answer to the whole of the Statement of Defence delivered herein, the Plaintiffs say that no legal interest was conveyed or transferred by any of the said alleged predecessors in
•interest'to the Defendant or to one another at any time, and the
Plaintiffs say further that if any alleged transfer of interest was
30 made, which the Plaintiffs do not admit, but deny, any such transfer or conveyance was not a sufficient deed or transfer or other
memorandum in writing, or was legally sufficient within the
Statute of Frauds to convey or transfer to the Defendant or any
of the Defendant's alleged predecessors in interest any legal
right, title, interest, or estate in the said lands and premises, and
the same does not satisfy the Statute of Frauds, and the Plaintiffs will object, in answer thereto, that the Statute of Frauds has
not been complied with in respect of the same.
9. In the further alternative and in further answer to the
40 whole of the Statement of Defence delivered herein, the Plaintiffs
say that when the Defendant first occupied and took possession of
the said lands and premises, the said lands and premises were the
property of the Crown in right of the Dominion of Canada subject only to the interest of the Plaintiff, the City of Vancouver,
therein under a certain Indenture of Lease at said time, from the
Crown in right of Canada, pursuant to Order-in-Council of the
Governor-in-Council in that behalf, and no alleged predecessors  12
Reply and Joinder of Issue.
in interest to the Defendant were then in occupation or possession
thereof; but the said lands and premises were" at all times the
lands and premises of the Crown in the right of the Dominion of
Canada, subject only as aforesaid, and the Defendant, in entering
upon and occupying the said lands and premises, was unlawfully
trespassing thereon without the knowledge, sanction, or consent
of tne Crown in the right of' the Dominion of Canada or of the
City of Vancouver, and has remained in occupation thereof with-
10 out the knowledge, sanction, or consent of the Crown in the right
of the Dominion of Canada or of the Plaintiff, the City of Vancouver.
10. In the alternative and in further answer to the whole of
the Statement of Defence delivered herein, the Plaintiffs say
that prior to the year 1887 and for several years thereafter the
Defendant or any of the Defendant's alleged predecessors in interest was not in occupation and possession of the precise lands
and premises now occupied by the Defendant. But the Plaintiffs
say that whatever premises the Defendant or any of the Defend-
20 ant's alleged predecessors in interest then occupied at the said
time were at all times situate below high-water mark, and such
premises so occupied were not the same or identical premises
and property as the lands and premises now occupied by the Defendant.
11. In the alternative and in further answer to the whole
of the Statement of Defence delivered herein, the Plaintiffs say
that if there was any occupation or possession by the Defendant
or any of the Defendant's alleged predecessors in interest of said
lands and premises as at the year 1887, which the Plaintiffs do not
, 30 admit, but deny, such occupation was formally and deliberately
interrupted and disturbed in the year 1887 by formal act of the
City of Vancouver, as lessee of the said lands from the Crown in
the right of the Dominion of Canada, pursuant to Order-in-Council of the Governor-in-Council in that behalf, and with full authority and approval of the Crown in the right of the Dominion
of Canada, by the construction of a roadway through the said
lands and premises in the said year 1887, and which road was
built through the said lands and premises in question, and any
shack, fence, or other structure or erection on the said lands and
40 premises was moved therefrom and the quiet enjoyment thereof
formally interrupted and disturbed, and the Plaintiffs say that
if the Statute of Limitations ever commenced to run in favour
of the Defendant or any of the Defendant's alleged predecessors
in interest as against the Plaintiffs, or either of them, by reason
of the trespass and squatting upon the said lands and premises
by the Defendant or any of the Defendant's alleged predecessors
in interest on the said lands and premises, which the Plaintiffs  13
and Joinder of Issue.
do not admit, but deny, the period of occupation thereof was interrupted and disturbed, and the period of time required by the
Statute of Limitations thereby commenced to run over again in
said year 1887 by reason of such interruption and disturbance.
12. In answer to the whole of the Statement of Defence
delivered herein, the Plaintiffs deny that the Defendant or any
of the alleged predecessors in interest of the Defendant ever occupied or possessed the said lands and premises to the knowledge,
10 and with the acquiescence, notice, sanction, or consent of the
Crown Imperial or the Crown in right of Canada or of the City
of Vancouver; alternatively, if such lands were occupied or possessed by the Defendant or any of the Defendant's alleged predecessors in interest, as alleged, for the full period of twenty
years, or, alternatively, for the full period of sixty years next
preceding the commencement of this action, or alternatively, for
the full period of sixty years next preceding the 28th day of June,
A.D. 1923, which the Plaintiffs do not admit, but deny, the Plaintiffs say that the said lands, if so occupied, were at all times occu-
20 pied in ignorance of, and unknown to, the Crown Imperial or the
Crown in the right of the Dominion of Canada or of the City of
Vancouver.
13. In further answer to the whole of the Statement of
Defence delivered herein, the Plaintiffs say that the Defendant
has not acquired any sufficient title or legal interest in said lands
and premises by statute or otherwise at law to bar the right of
action of the Plaintiffs herein in respect to the said lands and
premises.
14. The Plaintiffs join issue with the Defendant on the
30 Statement of Defence delivered herein.
DATED at Vancouver,
A. D., 1923.
B. C, this 24th day of September,
J. B. WILLIAMS,
Solicitor for the Plaintiff. I 14   .
Reply to Demand for Particulars.
-     No. 491/23
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ATTORNEY-GENERAL OF CANADA,
and
CITY OF VANCOUVER
AND
ALFRED GONZALVES
Plaintiffs;
Defendant.
REPLY TO DEMAND FOR PARTICULARS.
In answer to the Plaintiffs' demand for particulars herein the
defendant says:—
1. The Defendant's predecessors in title commenced to
occupy and enter into actual possession of the said premises on
or about the year 1855.
2. The Defendant and his predecessors in title have been
in continuous and uninterrupted possession and occupation of the
20 said premises subsequent to the year 1855.
3. The Defendant entered into occupation and possession of
the said premises on or about the year 1886.
4. The Defendant's predecessors in interest were Joe Silva
and Joe Gonzalves, the said Joe Silva being in occupation and
possession of the same from 1855 to present date and my father.
Joe Gonzalves from 1865 to present date.
DATED at Vancouver, B. C, this 10th day of October, 1923.
30 To:—
G. Roy Long,
Solicitor for the Defendant.
The above-named Plaintiffs,
and their Solicitor,
J. B. Williams, Esq.  15
Proceedings at Trial,
November 5th, 1923.
IN THE SUPREME COURT OF BRITISH COLUMBIA
(Before the Honourable Mr. Justice Murphy)
'491/23 Vancouver, B. C, November 5th, 1923.
ATTORNEY-GENERAL OF CANADA, and
THE CITY OF VANCOUVER.
Plaintiffs,
10
GONZALVES.
PROCEEDINGS AT TRIAL.
Defendant.
Mr. G. E. McCROSSAN appearing for the plaintiff.
Mr. G. ROY LONG appearing for the defendant.
' THE COURT:   Which case are you taking first?
MR. McCROSSAN:   The Gonzalves one is first.
MR. FISHER:   I may say there are a number of these
actions and I am appearing for some of these Defendants who are
not appearing here today and I am just watching the case with
my learned friend Mr. Long.
20    '   THE COURT:   Air right.
MR. McCROSSAN: Before proceeding I was going to suggest that the witnesses be excluded in this case, because it is
largely a matter of recollection.
THE COURT: All witnesses except the parties are
excluded.
(Witnesses excluded)
MR. McCROSSAN!   I would suggest that that would include
any of the Defendants in the other actions if they are going to be
called as witnesses.
30        THE COURT:   Any witnesses in this action are to be excluded, but no one else.
MR. LONG: My lord, I may say—and I am speaking from
my own standpoint, because I am working under very serious
hardships in dealing with these people—there are certain questions arising here and I would suggest, as I represent six Defendants who are alleged to be squatters—there are three other
cases—it is a great hardship and expense on these people to hold
all these witnesses over for every case. For instance, I have a
man here from Oregon and it is impossible for me to hold these  16
Proceedings at Trial,
November 5th, 1923.
people for a period of two weeks until these other cases come on
and I would ask, in order to save expense, to have their evidence
taken in this one and let it be evidence as taken in the other cases.
My learned friend-is in the happy position of representing the
Dominion of Canada and the City of Vancouver and I would suggest that we could take the evidence of these witnesses together.
MR. McCROSSAN: In discussing that with my learned
10 friend, I endeavoured to get this case down for trial as quickly as
possible and to avoid any duplication wherever it was possible and
I suggested to my learned friend that it would certainly suit me
because I don't wish to bring the witnesses back either. Much of
this evidence will be general and as I understood the arrangement, it was that all the evidence in the Gonzalves case would be
taken as evidence in any case my learned friend is in so far as it
is applicable to those cases and then we would only call the evidence in the other eases that was particularly local I might say
and such as would not be called in the other cases.
20 MR. LONG: You see six of these properties are all adjoining each other, and the witnesses I will call in the Gonzalves case
can give evidence as to the adjoining properties too, and if I let
them go now and have to bring them back in another week or two,
it is going to be quite an expense and I cannot afford to keep them
here.
MR. McCROSSAN: There is only one adjoining property
that my learned friend is not interested in—and that is represented by Mr. Killam and Mr. Killam is not here.
THE COURT:   Well, I cannot mix up the cases.   What you
30 can do is this, in the first case, any evidence that is applicable to
the others can be accepted, but unless the cases are consolidated
I cannot go ahead and mix up the cases on account of expense.
MR. McCROSSAN: I take it that'much of my learned
friend's evidence will be the same as the Crown's evidence and
will be applicable to all the cases you are in.
MR. LONG: Exactly, but when I put my witness in the box
I want it understood if he has a recollection as to another owner
of an adjacent piece of property, if he can give that so that we can
use that in another case.
40 THE COURT: Well;I cannot do that because you will have
a new trial on your hands; unless it is consolidated I cannot allow
it in.
MR, LONG: Well, I suggest that they should be consolidated.
MR. McCROSSAN: This is a peculiar type of action. There
has to be a certain amount of specific proof and it is an eviction
action and I could not take any chance of a consolidated action m 17
Proceedings at Trial,
November 5th, 1923.
and take a test case, because the others would not be in the same
position.
MR, LONG: For the purpose of taking the evidence can't
we consolidate them?
MR. McCROSSAN:   I cannot see how you can.
THE COURT:   I cannot do that, because it is a matter of expense only—there is -no- reason why I should depart from the rule
10 —or you will have a new trial on your hands.
MR. LONG: But we can agree that any evidence taken here
in this trial, so far as it is applicable to the other Defendants, can
be used in those trials.
MR. McCROSSAN:   Yes, certainly.
MR. LONG: There is another matter that will arise and
that is with regard to the view. I think it would be of great assistance to the Court if your lordship could have a view of those
premises.
MR. McCROSSAN:   I think that is necessary.
20        THE COURT:   We will go into that by and by.
MR, LONG: And probably some evidence will have to be
taken there.
Address by Mr. McCrossan.
MR. McCROSSAN: For the purpose of proving the title of
the city and the Crown, in the right of the Dominion, I would put
in an Imperial Dispatch of March 27th, 18T4.
MR. LONG:   1884, isn 't it 1
MR. McCROSSAN:   1884.
THE COURT:   That will- be exhibit 1.   What is the date
30 of it?
MR. McCROSSAN: March 27th, 1884. There are really two
despatches but I will put them in as one.
MR. LONG: Are those the ones that we used in the Dead-
man's Island case?
MR. McCROSSAN:   Yes, precisely the same.
MR. LONG:   If they are that is all right.
MR. McCrossan: I will put them both in. One has the
schedule—that was decided in the Deadman's Island case by the
Privy Council to be the title to Stanley Park, in the Dominion.
40 The next document that I tender is a lease from the Dominion—
or in chronological order I had better put in certain Orders-in-
Council.
(DESPATCHES MARKED EXHIBIT NUMBER 1.)
Order-in-Council from the Dominion Government of the 8th
of June, 1887. Ik 18
Proceedings at Trial,
November 5th, 1923.
MR. LONG:   7th of June, isn't it?
MR. McCROSSAN:   This is dated the 8th of June, 1887.
(ORDER-IN-COUNCIL MARKED EXHIBIT NUMBER 2)
MR. McCROSSAN:   This gave possession of Stanley Park
.   to the city for park purposes.   A further Order-in-Council of the
31st of August, 1906—
(ORDER-IN-COUNCIL MARKED" EXHIBIT NUMBER 3)
10 —recommending a 99 year lease. The real title, however, is in the
next Order-in Council of the 13th of August, 1908, which ratified a
lease, in perpetuity, and the lease is dated the 1st of November,
1908.
(ORDER-IN-COUNCIL MARKED EXHIBIT NUMBER 4)
(LEASE MARKED EXHIBIT NUMBER 5)
That lease in effect is a 99 year lease renewable in perpetuity
for park purposes.   I also tender a certificate of encumbrance
showing the land is in the title of the King subject to the City of |
Vancouver.
20 (CERTIFICATE MARKED EXHIBIT NUMBER 6)
MR. LONG: I wish to point out the recitals in this lease of
the first of November 1908, are not in accord with the Order-in-
Council. They are of a different date, and I want to call that to
my learned friend's attention.
MR. McCROSSAN:   Which date are you referring to ?
MR. LONG:    Both of them.   The 7th of June is a recital in
your lease and you have given his lordship the 13th day of August.
And on that ground I am not prepared to go on at all.
30        MR. McCROSSAN:   That second one is right, my lord.
MR. LONG:    You said the 13th.
MR. McCROSSAN: And the third one is the 31st of August,
1908 that has been apparently turned around—just by clerical
error, but I don't think your lordship will have any trouble with it.
MR. LONG: What is the number of your first Order-in-
Council? You have it in the lease—7th day of June. I just want
to see that.
MR. McCROSSAN:   What is that ?
MR. LONG:   That is the 8th of June.
WW 1 Proceedings at Trial,
November 5th, 1923.
William Hall Powell-
19
-Direct Exam.
MR. McCROSSAN: This Order-in-Council is good enough
for me. The only Order-in-Council that applies to the lease is the
last one, so the recital of the first is entirely academic and it does
not effect the Order-in-Council at all. You have the certificate of
encumbrance, haven't you?
THE REGISTRAR:   Yes.
10        THE COURT:   What is the date of that?
THE REGISTRAR:   The 16th of October 1923, my lord.
MR. McCROSSAN: I next would put in for your lordship's
information a map of the locus in quo. I shall have to call a surveyor on that.
MR. LONG: Excuse me, is this lease you have put in as exhibit 5 the one that is referred to in this?
MR. McCROSSAN:   Yes.
THE COURT:   WehVwait,   Is the lease exhibit 5?
THE REGISTRAR:    Yes.
20        THE COURT:   What is exhibit 6?
THE REGISTRAR:    The certificate of encumbrance.
THE COURT:   All right.
MR. McCROSSAN:    You have one of those, haven't you?
MR. LONG:   Yes, it is the same.
WILLIAM HALL POWELL, a witness called on behalf
of the Plaintiffs, being first duly sworn testified
as follows:
DIRECT EXAMINATION BY MR. McCROSSAN;
Q.   You are a surveyor, I believe, Mr. Powell, duly qualified
30 practising in British Columbia?    A.   Yes.
Q. And are on the staff of the engineering department of the
City of Vancouver?     A.    Yes.
Q. Did you have occasion to prepare this map? I see it is
certified by you.    A.   Yes, this map was prepared by us.
Q. That is the map of what we could call the locus in quo of
the squatters' area in these squatters' actions? Is that right?
A.   Yes. .
Q.   What is number 2?   That is the Gonzalves one, is it not?
A.   Yes.
40        Q.   That map I presume is drawn to scale, is it?    A.   Yes, a
scale of 1 inch to 40 feet.
Q.   One inch to 40 feet.
(Map MARKED EXHIBIT NUMBER 7)  20
WiUiam HaU Powell-
William HaU Powell-
-Direct Exam.
-Cross Exam.
MR. LONG:   When was that made.    A.   In April.
MR. McCROSSAN: Q. When was that survey made? A.
In April of this year.
Q. Just be'fore these actions were started? A. Yes. Down
in the right hand corner you will find it—right down in the corner.
MR. LONG:   Oh yes.
MR. McCROSSAN:   Any questions?
10 CROSS EXAMINED BY MR..LONG:
. Q. Just about looking through the yellow area—which is
parcel 2—how did you find that mark which you call high water
mark? How did you indicate that? A. Just by the mark along
the shore.
Q. Was there any tide there ? A. No—just by the amount
of debris lying along the shore and the distance between that and
the high lands.
-   MR. McCROSSAN:   In other words, you took the high water
mark as indicated there by the practical evidence of what was
20 lying on the ground?.    A.   Yes.
(Witness aside).
MR. McCROSSAN:   The next exhibit is a certified copy of a
plan prepared under instructions given as attached to the plan, •
on the 26th of January 1863, which is certified to by the authorities in Victoria—and by E. B. Maekay, Surveyor General.
MR. LONG:   Are those the Turner field notes?
MR. McCROSSAN:   Yes, and it was used in the Deadman's
Island case.   Perhaps I had better read, my lord, for the purpose
of this case the instructions in writing.   This will be exhibit what?
30       THE REGISTRAR:   Number 8.
(DOCUMENT REFERRED TO MARKED EXHIBIT
NUMBER 8, plan)
MR. McCROSSAN: This is really what we call field notes
in surveying language of G. Turner, of the Royal Engineers. The
instructions are dated the 26th of January, 1863—to Corporal
Turner, of the Royal Engineers (reading same) For the purpose
of convenience of the Court I had the surveyor make a consolidation of those field notes all on one map which is much more convenient.   I will call Mr; Fountain.  21
George Frederick Fountain—Direct Exam.
James Taffendale—Direct Exam.
GEORGE FREDERICK FOUNTAIN as witness called
on behalf of the Plaintiffs, being first duly sworn,
testified as follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   You are in Mr. Powell's Department of the City Engineer's staff, Mr. Fountain?    A.   Yes.
Q.   And you are a qualified daughtsman?    A.   Yes.
10       Q.   You, I believe, prepared this map which I have in my
hand?    A.   Yes sir. ■
Q.   And that is what—a consolidation of Mr. Turner's field
notes?    A.   Yes.
Q.   Or what would you call that in surveying language ?.     A.
That is a map plotted from Mr. Turner's field notes.
THE COURT:   Yes, exhibit 9.
(MAP MARKED EXHIBIT NUMBER 9)
MR. McCROSSAN:   Q.   It is an accurate copy, is it?     A.
Yes, to the best of my ability.
20       Q-   And what is the scale?    A.   One inch equal to 4 chains.
Q.   Any questions, Mr. Long?
MR. LONG:   No questions.
MR. McCROSSAN: This map I would draw your lordship's
attention to shows a view of the occupations (reading same) There
is only one hut, which we admit to be the house of Aunt Sally who
died here shortly before these actions started, who was something
over 100 years of age, and on that map there is no other occupation
marked.
MR. LONG:   I think that is all a matter of argument and I
30 am going to make the same objection that was made before as to
the admission of this being evidence of anything other than a survey.   These notes were referred to by the Privy Council.
(Witness aside).
MR. McCROSSAN:   I will call Mr. Taffendale.
JAMES TAFFENDALE, a witness called on behalf of
the Plaintiff, being first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   What nationality are you, Mr. Taffendale?    A.   Well, I
40 am a resident of the United States and rive in California.  22
James Taffendale—Direct Exam.
Q. And you are of what race ? A. The Indian race. I was
brought up among you people ever since I was a babe—brought up
among the English.
Q.   When did you come, to British Columbia?     A.   I came
in 1859.
i
Q.
10 retired-
Q.
I
I
1859.    A.   Yes.
Where did you come from?    A.   San Francisco.
What is your occupation now?     A.    Now?   Well, I am
-I may say, I haven't anything special to do.
How old are you?    A.   Eh?
How old are you?    A.   78 last September.
Where did you land in British Columbia in '59 ?    A.   In
Esquimalt.
Q. How long were you on Vancouver Island? A. I was
there until spring of '64.
Q. And where did you go to from there? A. I came to
New Westminster.
Q.   New Westminster?   A.   Yes.
20        Q.   Had you been attending school in Victoria?     A.   Yes,
I was attending school when I was there.
Q. And you came to Westminster at what time ? A I arrived in Esquimalt on the 11th of October.
Q. No; to New Westminster. When did you get to Westminster?    A.   I could not tell you.   It was in the spring.
Q. In the spring of '64. A. It must have been in July because in the spring I was on the boat.
Q.   Who did you go to work for when you went to Westminster?    A.    Captain Irving—William Irving.
30        Q-    Now were you ever over on what we now know as Bur-
rard Inlet shortly after you came to Westminster?   . A.   Over on
what?
Q. Did you ever come over to the Inlet after you came to
Westminster?    A.   Oh, not until after the mill started.
Q. What mill* A. The Royal Mill—they were breaking
down the mill at that time and taking the machinery from there
over to Moodyville.
Q.   The Moodyville Mill?    A.   Yes.
Q:   What year would that be?     A.   They were taking the
40 machinery over in 1864.
Q.   When did you first come over to the Inlet ?     A.   In'65
Q.    '65?    A.   Yes.
Q. How did you come over from Westminster? A. Over
the trail from Westminster.
Q.   Over by land?     A.   Yes.
Q. And where did you hit on the Inlet—what point did you
come to on the Inlet?    A.   When I got there there was a canoe  23
James Taffendale—Direct Exam.
there and I went out in it.
Q.   Where do you mean by "there"?    A.   At Hastings.
Q. And where did you go from Hastings? A. I went over
to see some friends I had over there.
Q.   Where?     A.   At Moodyville.
Q.   That is across the Inlet—North Vancouver?    A.   Yes.
Q. Did you go over at any other time? Were you on the
Inlet at any other time?    A.   Yes.
10
i
Q.
Q-
then?
Q-
Yes.
Q.
boat.
I
Yes.
Q.
I
I
68?
When?    A.   In '66.
'66?    A.   No, '56.
No, '66 you are talking about.   Where did you come to
A.   I came to the same place.
You went over to visit your friends in Moodyville?    A.
When next after '66 were you there ?    A.   I was on the
On the Old "Re-
What boat are you referring to ?     A.
liance"—the schooner "Reliance."
20        Q.   Were you on the boat that came into the Inlet?     A
What year would that be?    A.   That would be in '68.
What boat were you on then ?   A. The steamer '' Hope.''
Now, were you in and around the Inlet much at that time
A.   Not at that time I was not much around—not until
I got .on the boat.
Q.   Well, that is what I am talking of.    A.    Yes, on the boat.
Q.   Were you familiar with the situation at Brockton Point?
Were you familiar with the land around Brockton Point in 68?
30 A.   Not in the fall—when we were working.
Q. I mean after you came in with the "Hope?" A. No,
not when I was on the "Hope," but I was working at Smith's Logging Camp at that time, but I would go out in a canoe.
Q. What were you doing out in a canoe? A. Well, you
know the boys of my nationality like to get out in a canoe and if
there is nothing else to do they just paddle around. My idea on
the boat was to see and locate a place for an anchor light.
Q. For anchorage? A. Yes, in case of storm or anything
like that—I could do that.
Q. And this was during the time you were on the "Hope?"
A.   Yes.
Q. Now, did you ever paddle around or go around in a canoe
around Brockton Point? A. Not in a boat outside the point,
but in a boat inside, as I tell you, inside the point.
Q. That is what I am talking about. Now, have you that
first map.   This is exhibit 1.
THE REGISTRAR:   No, exhibit 7.
»?i  ■WJ
24
James Taffendale—Direct Exam.
MR. McCROSSAN:   Yes, 7.
Q. Were you over here—this is the line of Brockton Point—
this is the gun marked "time gun," on this exhibit 7, and then it
runs down there as you know to Coal Harbor?    A.   Yes.
Q. Were you close to the shore atall when you were rowing
around there in '68? A. This is the Narrows, is it, (examining
map)?
Q.   No, this is Brockton Point.    The Narrows are away
10 around this way.  I will show you that on this map.     A.    Oh yes,
I see now where I am.
Q. You see there is the Point and there is the Narrows there
and this is Deadman's Island and this part on this map is along
the shore there.   Do you see?    A.   Yes.
Q. You see this is the point and that would be where the
gun was?    A.   Yes.
Q.   And. that is Coal Harbor?     A.   Yes.
Q.   This is the place here.   Now you have been out there recently where the squatters are?    A.   Yes.
20       Q.   And have been all along there?    A.   Yes.
Q. Now, were you rowing around the shore at all in 1868 on
any one of these trips that you took around there ? A. In 1868?
You see Deadman's Island here? I came around here and came out
there.   And I don't think I ever went there again until after.
Well, don't get too far ahead with your story.     A.   All
I
right.
I
shore.
You were aro.und Deadman's Island there and on that
Will you tell his lordship the situation and the condition
there with regard to any people living there, or any shacks or huts.
30 A.   Yes.
Q. Just take your time and describe what you can recall.
A. Deadman's Island (referring to plan)—all that I see since I
have been bringing it to my mind about my trips there—I went
around there and I seen one house and that is all I seen—you see,
but I don't know who was in that house or who that house belonged to.
Q. About where generally would that house be, having regard to the point where the gun is, or the causeway is now? A.
Right in line with Deadman's Island—J could not say exactly the
40 spot, but as far as my memory goes it is right in there—in line
with that.
Q. Well, what line are you talking of? Deadman's Island
is not very large, but there is a north and south side of it. Which
side would that be ?     A.    On the northerly side of it.
Q. And that is all you say you can recall that was there in
1868?    A.    Yes, one house.
Q.   Now, were you back there again?    A.   Well, I was not  ma
25
James Taffendale—Direct Exam.
back there again except on the boat. I went on the boat. I did
not go any more to make any special trip in there only when I
went around with those boys in the canoe I would go right out in
a canoe—for a canoe ride.
Q.   When did you notice any other house up there at all?
A.   Not until after I came back on the "Princess Royal," the
steamship I shipped on after I left there.   I was on the boat and
went back to Westminster and then after I went there I went and -
10 joined the "Princess Royal."
Q.   That was an ocean-going boat, was it?    A.   Yes.
Q. And you took a trip to where? A. I went to Valparaiso and when I got back from there—
Q. When did you get back? A. I was out about 11 months
on the boat, you see, and after I came back—
Q. What year did you get back? A. I think it was in
the latter end of '69.
Q.   The next year?    A.   Yes.
Q.    '69?    A.   Yes.
20        Q.   And. what did you notice then with regard to any changes
at Brockton, Point ?     A.   Then by that time there was a landing place.  You could see from this side and then I see two houses.
Q.   Two houses?    A.   Two houses.
Q. Where was the second one that had been put up in the
meantime ?     A.   Well, not very far from it.
THE COURT: Not very far from the first one, is that what
you mean?     A.   I am a little hard of hearing.
THE COURT:   Repeat it to him.
MR. McCROSSAN •   Not very far from the first house ?    A.
30 No, not very far.
Q. In which direction ? A. I think as far as my recollection
or my memory goes—I did not go to take a line of it, but I think
it was a little to the west.
Q. What do you mean by that? A. That is towards the
Point.
Q. The Point runs that way? A. Yes, east from where I
was taking, it—*- I was, taking it east towards the Point.
Q.'  Was it towards the gun or the other way ?    A.   Towards
the gun.
40       Q.   I would call it northwest, I should think.  I may be wrong
though.   And in '69, then according to your recollection there
were only the two?    A.   Yes.
Q.   The one that was up there where you noticed in '681
Yes.
Yes.
Q.   And the one that was up when you were away?
Q.   Have you any idea who was in either of them?    A.
A.
No,  26
James Taffendale—Direct Exam.
I have no idea who was in either of those buildings—not until—
Q. Now, where were these shacks located with reference to
the water? Where were they located? A. They were located
on the bank, you know.  The tidal water goes up.
Q. Well, they were right on the water-line, were they? A.
Right on the bank.
Q.   What style of building was it?    A.   I could not tell you.
One was larger than the other, but I could not tell you the style—I
10 could not tell you the size either.   But it was there and that is all
I know.
Q. Well, would you describe it as a house or a shack or what ?
A. Well, I would consider one a house, but the other one—the
second one that I see—I was not close to it—I seen it from Gas-
town—it was then Gastown when I came back from Valparaiso—
and it was a shack.
Q.   In'68 it was not Gastown?    A.   No.
Q.   I understand it got the name of Gastown from a man
named Dayton?    A.   Yes, John Dayton.   I know John Dayton
20 personally.
Q. Now, after that year of 1869, what were your movements
then? Did you go away from Vancouver? A. I had to take a
pleasure trip up country. I ran away from the boat—from the
ship and got away from here—I was a deserter and I had to go
away.
Q. You mean from the Valparaiso ship? A. Yes, and I
had to leave the country until the ship went—until it left here.
Q.   Well, when did you next notice Brockton Point?   When
were you down in Vancouver, or Gastown, when you took notice
30 of Brockton Point?   A.   I was over again to the mill, but I was
not out to Brockton Point, but I seen it from Gastown.   That is
when I seen the second house, after I got in from Valparaiso.
Q. Well, when next were you down in Gastown when you
took notice of Brockton Point, if at all? 'A. Not until after. I
did not see Brockton Point until '73. We had an excursion party
from Victoria on John Irving's boat. We brought an excursion
over on Dominion Day—the first excursion that was held here,
and I brought that boat over for Captain Irving—that was in '63.
THE COURT:    '73.     A.    '73 yes.
40 MR. McCROSSAN:    '73.   Well, was there any change that
you noticed in Brockton Point then.     A.    Quite a change.
Q. In what way? A. Well, the beach was cleared. You
know before it would be piled up with brush and logs all along,
but that was getting cleared away.
Q. Did you notice any more buildings? A. No more on
that reservation there.
Q.   No—any more of those shacks—did you notice any more I 27
James Taffendale—Direct Exam.
shacks?    A.   No more.
THE COURT:   Just the two shacks still?    A.   Eh?
Q.   Just two shacks still in '73?    A.   Inside; none outside.
Mr. McCROSSAN:   Inside the Point?    A.   Yes.
Q. Well, when did you observe, if at all, that there were any
more shacks there? A. After I came back from the Stiekene
River.  In the fall of 1874 I came back with John Irving.
Q.   What change did you notice then?     A.    Then I noticed
10 the place was getting a little cleared and I seen the building outside of that, but I don't know who it belonged to—but nothing else
—just a house.
Q. What do you mean by outside? A. We are talking of
inside here.
Q.   You mean around on the Inlet side ?    A.   Yes.
Q. Well, we won't bother you about that now. But what
change did you notice along Brockton Point—on the inside—did
you notice any other buildings ?     A.    No.
Q.   You just noticed two around there and one around on
20the Inlet side?    A.   Yes.
Q. Do you remember a man by the name of—a Portugese
by the name of Joe Fernandez, in those days? A. After I came
back I knew of him. I was not acquainted with him but I seen
him coming to Granville after I came back. •
Q.   You mean the old Granville townsite?    A.   Yes.
Q.   Or what we call Gastown?    A.   Yes.
Q. Did he have a store down in Gastown? A. I did not
know him then.   I was away when he had a store.
Q.   Did he have a store down in Gastown?    A.   I heard he
30 had a store, but I did not see him.
THE COURT: When was it—you haven't the date when he
first saw him.
MR. McCROSSAN: Q. Do you remember when you first
saw Joe Fernandez? A. That was when I came back from the
Stiekene—that was to see him—but I did not know him before.
Q. 1874. Now, these houses or shacks that you saw, which
were there as you told the Court in 1868 and '69 on this side of
the Point—on what you call the inside—did you notice any fence
around them. A. No.
40 Q. What was the state of the ground or country there. A.
Well, all I can remember is there was just brush there.
Q. It was all wild brush, was it? A. Just as crab-apple
and that kind of thing—that is the only thing I saw where those
buildings were up, you see.  28
James Taffendale—Cross Exam.
CROSS EXAMINED BY MR. LONG:
Q. Now, your first recollection as to what was there on that
point you say was in 1868, when you were working at Smith's
Logging Camp, is that right?    A.   What?
Q. The time you were working at Smith's Logging Camp in
1868, that is the earliest recollection you have of Brockton Point?
A.   Yes. *
Q. That is right? A. Yes.
10 Q. And that is the day you went out to look for an anchorage place in your canoe, is that right ? A. Well, I did not go out
to look for an anchorage, but I was out there looking while I was
out, but I did not go out there intentionally for to look for anchorage, you know, but while I was out I seen what I wanted to see,
in case I was anchored some place,
Q. Well, what were you out looking for in the canoe? ' A.
Well, as I tell you before that I was put with some of the boys that
I knew at the time—we were in a canoe.
Q.   And who was in the canoe with you?    A.   Well, some of
20 them are boys I knew then—one was Charlie Mayhew and another
one who is away from here now, Letreve.
Q.   Are any of these men here now?    A.   No, they are all
dead.
Yes.
Q.   But you did not go ashore that day?    A.   Oh no.
Q.   You just paddled around in Coal Harbor, did you?
A.
Q. And you did not go around Deadman's Island, did you?
A.   Not until afterwards.
Q.   When?    A.   I did not go around that time.
30        Q.   Well, you were not looking for anything on the shore at
that time, were you?    A.   No.
Q. The shore was heavily wooded, was it? A. Yes woods
and high logs all round.
Q. But there were high trees like there are now? But away
from the shore?     A.   Well, a lot of branches and shrubs.
Q. And Deadman's Island was all grown up with high trees?
A.   Yes, high trees.
Q.   You did not make a landing any place on that shore ?    A.
No, I did not make a landing on the shore at all.
40        Q-   Do you remember coming into my office about a month
ago ?   You know my name is Long.   I have an office in the Birks
Building.   You remember my office?     A.   Yes.
Q.   You came in there ?   A.   Yes, I remember now.
Q. And you remember me questioning you about your recollection as to the early settlers of Brockton Point. Don't you remember that?    A.   Eh?  29
James Taffendale—Cross Exam.
Q.   You remember me questioning you?     A.   Yes.
Q. Of your earliest recollection of the early settlers at
Brockton Point?     A.   Yes.
Q. And didn't you tell me at that time in 1867 Portugese
Joe was living there? A. Well, I might have told you that at
that time.
Q.   Well, didn't you tell me that?    A.   Well, perhaps I told
you that.
10        MR. McCROSSAN:   Just let him answer.
THE WITNESS: And I will tell you something after that
is different.
MR. McCROSSAN:   Let him answer.
THE WITNESS: But when I take that in my hand (referring to the Bible) I have been brought up to know that is the right
thing and when I kiss that I expect to tell the truth and it may
va"ry from the statement I made to you, but when I get on the
stand I tell the truth and it may be a little different—the statement I make then and the statement I make on oath is two differ-
20 ent things.
MR. LONG: Q. Well, apparently it does differ quite materially and T will lead you to that. But do you remember telling
me in my office that Joe Silva was there where Joe Gonzalves now
is in 1867?    A.   Yes.
Q. Do you remember telling me that in my office? A.
Yes.
Q. Why didn't you tell that to the Court today? Why didn't
you make that same statement to his lordship today in the Box?
THE COURT:   I don't think he hears you, Mr. Long.   You
30 had better go over to him.
MR. LONG:   I don't want to yell unduly.
Q.    Can you hear me?    A.     Yes, I can hear you.
Q. Now, I want to be fair to you in ease you did not hear me
and I will put that question to you again. You remember being in
my office?    A.   Yes.
Q.   In the Birks Building.    A.   Yes.
Q.   And do you remember telling me then when I was asking
you about the settlers at Brockton Point, that in 1867 Joe Silva
was living in the place where Joe Gonzalves now lives?   Do you
40 remember telling me that statement?     A.   If I told you so I
made a mistake.
Q. Do you remember telhng me that? A. I cannot remember word for word what I said.
Q. What then did you tell me? A. No more than I was
there and seen the place and I did not know the place at that time
and I did not know who was located on that place until after I
came to Gastown and Gastown was located and I then knew who  30
James Taffendale^-Cross Exam.
the place belonged to.   I did not know the man who located the
place, or did not know his name.
Q. What made you make that suggestion to his lordship
that you would probably tell a different story here under oath
than you would at any other time. What did you mean by that?
A. When I made that statement, I meant I might make a little
statement to you in one way but when you get me to kiss that Book
and I swear to. the truth and nothing but the truth, I may vary
10 from the statement I made to you, because that has been the guide
of my life, and it is guiding me yet and I will tell the truth.
Q. Well, you are a friend of Joe Gonzalves—we call him now
Portugese Joe. Do you hear me? A. Yes. I did not know
him by the name of Portugese Joe.
Q.   But you knew him by Joe?     A.   Yes, Joe.
Q. And you were in the office with him, in my office with
him—don't you remember?    A.   Not with him.
Q.   Yes, he came in while you were there—don't you remember that?    A.   I did not notice him at that time.   I came in with
20 Captain Marchant.
MR. McCROSSAN: Captain Marchant took you in? A.
Yes.
Q.   That is news to me.
MR. LONG. Q. Yes. Do you remember telling me then
in the presence of Captain Marchant and myself—you made the
statement that in 1867, where Joe Gonzalves now lives, that Joe
Silva had a store and lived there in 1867? A. I might have
made that statement to you, but I did not know whether he had a
store or not, or what the buildings were.
30        THE COURT:   A little louder.   What does he say?
MR. LONG: He might have made that statement, but he did
not know whether it was a store or what the other buildings were.
THE COURT: Well, do you say he was there in 1867 ? A.
Yes.
Q.   You told me that there was—    A.   In 1867?
Q.   Yes.    A.   Did I put that date, 1867?
MR. LONG: That is what I have on my notes. That is what
I am telling you now.
THE COURT:   Well, what do you say about that?   Was it
*40 in 1867, that you were talking about?    A.   Well, I shall have to
rectify that too.   1865 and 1866 I was out here, but in 1867 I was
on the boat steady.
MR, LONG: Q. Was Joe Silva there in '65? A. I was
not around there until '68 when I made a survey of that place.
After I got on the boat then I went around.
Q. You want to tell the Court now that he was there in 1868.
A.   I was there in 1868.  31
James Taffendale—Cross Exam.
Q. Was he there in 1868? A. Now that is another thing.
The'building was there, but I don't know whether he was there
or not. That is another thing. You see I just caught myself there
—the building was there, but I don't know whether Joe was there.
MR. McCROSSAN: It was known as Joe Fernandez' store.
I never heard about this Silva until now.
MR. LONG:   My learned friend knows different to that.
(Court adjourned until 2:30 p.m.)
10 Vancouver, B. C, November 5th, 1923.
2:30 p.m. (Court met pursuant to adjournment at 2:30 p.m.)
JAMES TAFFENDALE, Witness, resumed the stand.
CROSS EXAMINATION CONTINUED BY MR. LONG:
Q. You remember when you first came here in 1865, or so—
1864—you remember that time, do you? A. I remember that
time.
Q. Well, was Aunt Sally living there—my lord, I don't know
whether it is necessary—   '
THE COURT:   This may be proper cross-examination, but
20 you cannot use it in the other trial.
MR. LONG: There is no use going into it except by agreement that it can be used.
THE COURT: Well, I cannot allow it, because you will have
the trial upset.   I cannot possibly try two eases in one.
MR. LONG:   Very well.
Q.   Now going back to your visit in my office.
MR. McCROSSAN: I may say that I will recall any witness
my friend wants in any other case.
MR, LONG:   That is satisfactory then.
30        Q.   You remember coming into my office in the Birks Building?    A.   Yes.
Q. You came in there and told me that you were going to
give evidence in favor of Portugese Joe Gonzalves? A. No, I
didn't.
Q. What did you go in there for? A. Because Mr. .Marchant told me to come with him and I did not know where he was
taking me.
Q.   Well, you soon found out when you got into my office?
A.   Well, I did not take any consideration of it when you com-
40 menced talking to me and I did not know I was going anywhere.
Q. I told you I was acting for Joe Gonzalves, the squatter,
didn't I?    A.   Well, I did not understand you in that way.  32
James Taf f endale—Cross Exam.
James Taffendale—Re-Direct Exam.
Q. Whodidyouthinklwasfectingfor? For the City? A.
To tell you the truth I did not know where I was or who you were
acting for.   If I had known I would not have gone in there.
Q. Well, now in my office you will remember you were half
an hour or more there ?    A.    I remember.
Q.   Is that right?   You were there for a half an hour?    A.
Yes.
10        Q-   And do you mean to say that when you went out you did
not know any more than when you came in as to whom I was
acting for.    A.   Yes. ,
Q. That is- rather uncomplimentary to me, I think. That is
all.   That will do.
RE DIRECT EXAMINATION BY MR. McCROSSAN:
Q. Just a moment. My learned friend, Mr. Long, mentioned
to you the name of some man by the name called Silva. You heard
him ask you something about Silva.    A.   Yes.
Q.   Did you tell him that a man named Silva or Portugese
20 Joe lived in one of those shacks ?    A.   Yes.
Q. Who did you tell him—did you use the name Silva, or
Portugese Joe? A. I did not know Silva and I don't know
him now, you see.
Q.   You did not know him by that name ?    A.   No.
Q. Did you know he was inhabiting or living in either one
of those shacks ?     A.     No, I did not know that.
THE COURT:    He said that before.
MR. McCROSSAN:   Well, from hearsay did you know ?    A.
From hearsay I did not know anything.
30        Q-   Well, later you heard that Fernandez had a store there ?
A.   Yes.
Q. And he was known around Gastown as Portugese Joe,
wasn't he?    A.   Y.es. '
. Q. Now it was suggested that you got your dates mixed up.
You said in Court here 1868 was the time you fixed things and
you told Mr. Long 1867?     A.   Yes.
Q.   Did you mix them up telling me the same thing in the
office ?  If so straighten it out.    A.   You remember I told you I
was going to Westminster to see the dates.
40        Q.   Yes.    A.   After I made the statement to you.
Q. Yes, and that was after when—after you got a subpoena?
A.   Yes.
Q. And what did you say then? A. I said I had to go to
Westminster to see the dates and see what I was doing at the
time and I told you what I saw.  33  '
-  James Taffendale—Re-Direct Exam.
George W. De Beck—Direct Exam.
Q. Why did you tell me you wanted to do that? A. Well,
you asked me where I was going and I said Westminster.
Q. Yes, and why did you want to go to Westminster? A.
I think it was that gentleman there I told and I told him I was
going there to look up some dates.
Q.   And what were the dates you wanted to fix in your mind ?
What dates ?    A.   I wanted to know where I was in '70, '71, and
10 '72 '73 and '74 up to '78.   I was done with that—
Q   And did you find out by searching in Westminster the
dates you wanted to fix in your mind in order to be accurate ?    A.
Yes.
|  Q.   You did that?    A.   Yes.
Q.   And that was after you were subpoenaed to give evi-
• dence?    A.   Yes.
MR. LONG: Well, what books did you find these dates in?
A.   Eh?
Q.   What books or records did you find these dates in?    A.
20 They are all registered in the graveyard.
Q. The time you came there? A. No, what I wanted to
find out—'69, '70, '71 and '72 and '73.
MR. McCROSSAN:    '69?    A.   Yes, '69.
MR. LONG: Well, what do you'mean by registered in the
graveyard ? A. I could not tell you exactly where I was during
those years and all those people who I was working with at that
time and was associated with died in them years, and I know what
I was doing in them years and where I was. There was Captain
John Irving and William Hume and all those people and I got
30 those dates definite.
Q.   And had it not been for what you saw on those tombstones you would not have known any of those years at all?    A.
Eh?
Q. Had you not seen those tombstones you would not have
known those years? A. I would confound one date with the
other—that is all. I might say one year with another—and it
might be another year, you see.
THE COURT:   All right.   The next witness.
, (Witness aside).
4C
GEORGE W. DeBECK, a witness caUed on behalf of
the plaintiffs, being first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   You reside in Vancouver, Mr. DeBeck?   When?  34
George W. De Beck—Direct Exam.
Q.   Do you reside in Vancouver ?    A.   You mean first ?
Q.   Now.     A.   When did I first reside here?
Q.   No,  now?    You live in Vancouver?    A.   I  live  in
Greater Vancouver.   I live in Point Grey.
Q.   What  is   your   occupation  now?    A.   Well,   general
agent,
owner.
10     Q-
You are handling—   A.   The Tunstall Block for the
You were, I believe, Indian agent for the Dominion Government for some years at Alert Bay?   A.   Four years.
Q. How long have you been in British Columbia? A. I
came here in '68, the Fall of '68—in December to be exact.
Q.   How old are you, by the way ?    A.   74.
Q. Where did you come from originally? A. New Brunswick.
Q. And you came out to British Columbia from where ? A.
California.
Q.   Were you in Vancouver in'68 ?    A.   Yes.
20       Q-   Bo you recall the situation as to whether, if any, persons
were living at Brockton Point?    A.   Yes.
Q. At that time? A. Well, I don't know whether there
were any persons living there or not permanently, but there were
a couple of houses there—shacks.
Q.   Well, now, take the year 1868, what was the situation then
as you recollect it?    A.   Well, I don't remember much about it
in '(
'68.
Q.   By there what do you mean-
30 A.   In and around Vancouver.
Q. What were you doing then? A. I was hand-logging
on the North Arm.
Q.   With whom?    A.   With my brother and my father.
Q.   Your brother and your father?    A.   Yes.
Q. Well, did you pay any particular attention in '68, speaking as to your recollection, as to what development there was over
in Brockton Point at that time? A. No. I didn't pay much
attention—not in particular, except I remember in a vague kind of
way that there were a couple of houses there; but a little later on
401 remember being up there—going up there and seeing two houses.
Q.   When would that be?    A.   I think it was in 1870.
Q.    In 1870?    A.   Yes.
Q. What kind of structures were the're? A. Well, there
were two small houses—something like most Indian houses.
Q. Shacks, I suppose? A. Well, practically yes, one
seemed to be a little more pretentious than the other, but they were
! because I was only there a month—or less than a month, in
-in and around Vancouver ?  35
George W. De Beek—Direct Exam.
both practically shacks.
Q. Could you give any general idea as to the location of them
relative to one another? A. One of them was pretty close to
Deadman's Island, and the other was down towards the point a
little further—probably two rods further down.
Q.   Have you any idea who lived there ?    A.   No.
Q. Where were they with reference to the water? A.
They were right on the water practically—on the edge—practic-
10 ally built out—the upper one seemed to be resting on some posts
which would be down about the edge of high water.
Q.   Partially built on posts ?    A.   Yes.
Q. And where was the other one? A. The other one was
down further towards the Point—not very far—just a short distance. I cannot recollect or be exact about that, but it strikes me
now it would be probably 30 yards or 40. That is the way it occurs
to me now.
Q. Was it up on the land or close to the water ? What was.
its location with reference to the water ? A. Right close on the
20 water.
Q. Now did you know in those days a man by the name of
Fernandez, Portuguese Joe Fernandez ? A. Well, I was not personally acquainted with him that I know, but I have seen him a
number of times.
Q. Then you knew of him? A. Oh yes, I knew of him, he
kept the store.
Q. Where did he keep the store? A. Oh, it was somewhere down on Water Street—on the Inlet side—on the north
side—and I would say it was somewhere about Abbott Street.   It
-or maybe a little further
30 must have been about Abbott Street-
east.
Q.   But approximately Abbott Street ?    A.   Yes.
Q.   In what was called Gastown in those days ?    A.   Yes.
THE COURT:    That would not be on the north side—it
would be on the south side.     A.    The north side of Water Street.
MR. McCROSSAN:   That is on the Vancouver side of the
Inlet—not North Vancouver ?    A.    No.
THE COURT:   On the north side of Water Street?    A.
Yes on the north side of Water Street.
40       MR. McCROSSAN:   Do you know where Fernandez'store
was in the early seventies ?    A.   Yes.
MR. LONG:   Where, on Water Street?
MR. McCROSSAN:   Yes, in Gastown.
THE WITNESS:   Yes.
Q.   What is the earliest that you remember—that you recall
with regard to Fernandez' store in Gastown?    A.   Well, about  36
George W. De Beck—Direct Exam.
'71 or '72, but he might have been there in '68 for all I know.
THE COURT: No, we want your recollection—was it '71
or '72?    A.   Yes.
MR. McCROSSAN: At any rate, you know he was there in
'71 or "'72?    A.   Yes.
Q.   Did you know Punch, or this first witness ?    A.   Yes.
Q.    This first witness—he is known as Punch?     A.   Yes.
Q.   Mr. Taffendale?    A.   Yes.
10        Q.   You knew him in those days around there?    A.   I don't
know about there.   I knew him better on the Fraser River.   He
was a steamboat man on the Fraser River.
THE COURT: When? A. As near as I can recollect it
was '70 anyway—yes, in 1870.
MR. McCROSSAN: Do you know—just as a matter of fixing the date—do you know when the Hastings Mill started up in
Vancouver ? Was that going when you came ? A. It was going
when I came, but I understand it was started in the year—
MR. LONG:   No, no, you cannot-say what you understood.
20        MR. McCROSSAN:   No, you cannot say that.
Q. Now, you have told us about a couple of shacks that you
saw there in '69 or '70. Was there any change in the situation in
Brockton Point as to the people living there that you noticed?
A.   Yes, later oh.
Q. When? A. A little later Mr. Brew—I think he was
the Provincial Customs Officer here—he had a little house over
there
Q.   Mr. Brew?    A.   Yes.
Q.   Tompkins Brew?   A.   Yes.
30        Q.   When do you remember seeing that third shack ?    A.    I
don't remember seeing that first when I was there, but it was
there a little later on—in '72, maybe '71.
Q. Somewhere in the early seventies? When you first
noticed these couple of shacks there did you notice whether the3r
were properly fenced in and so on ? A. No, they seemed to be
just sitting there surrounded by the brush.
Q. Just on the shore, on the wild park land there? A.
Yes, so it seemed.
Q.   I don't want to go in the Brew matter, because you are
40 not interested in that.
MR. LONG:   No.
MR. McCROSSAN :   I shall have to recall him on the other  mO\
37
George W. De Beck—Cross Exam.
James Clendenning—Direct Exam.
CROSS-EXAMINED BY MR. LONG:
Q. Now, this observation that you made about the shore
line as you call it—how was it made ?    A.   By going—
Q. Going down into the Narrows? A. No, in the bay
up in Coal Harbor.
Q.   You did not go on Deadman's Island?    A.   No, that
was dry—I kept up close to the Point there.
10        Q.   You took your course then from a point to the east side
of Deadman's Island?    A.   Yes.
Q. Now, you say from '68 to '69, according to the best of
vour recollection, there were two houses there ?    A.   Yes.
Q.   That is right?    A.   Yes.
Q. One of them would be straight in from say the north side
of Deadman's Island? A. It would be on this side of Dead-
man's Island—out from the Point. There is a bar that runs out
from Deadman's Island.
Q.   And it would be a little north of that ?    A.   Yes, north
20 or northeast.
Q. Some distance north of the shore which runs between
Deadman's Island and the Mainland?    A.   Yes, pretty close.
Q. And then there was another shack you say about 30 rods
or 30 yards away? A. Yes, it might have been that—more or
less, I know it was a little distance from the other.
Q.    Further north ?    A.   Yes.
You did not go there to investigate this specially?   A.
No.
Q.
Q.
It was just from a casual glance from your canoe, I sup-
30 pose.    A.   Yes.
Q.   And from the evidence you have given the Court, they
were old looking shacks, were they ?    A.   Yes.
Q.   That will do.
(Witness aside).
THE COURT:   Next witness:
JAMES CLENDENNING, a witness called on behalf
of the plaintiff, being first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
40
Q.   You reside in Vancouver, Mr. Clendenning?    A.   Yes.
Q.   I believe you have been in the contracting business in
Vancouver for many years ?    A.   Yes.  38
James Clendenning—Direct Exam.
Q. When did you first come to this city? A. I came on
Christmas Day in 1885.
Q. '85. I understand you had some contracting business in
regard to making the road—or laying the road around Stanley
Park, is that right ?    A.   Yes, I was asked by the City to build
THE COURT:   Speak up, I cannot hear you.
A.   I was asked by the City to blaze or lay out the line around !
10 the whole park—around Stanley Park.
MR. McCROSSAN: Q. Now, when did you do that? A.
It was in '89.
Q.   When?    A.   It was in'89, wasn't it?
Q.   It must have been before then.
MR. LONG:   Get his own recollection.
MR. McCROSSAN: Q. Cheek up your dates in some way.
I am not referring to your contract, you see. Later on you had a
contract for a portion of it—to construct part of the road, hadn't
you? A. Yes.
20 Q.I am not referring to that, but I mean the year you blazed
the trail or laid out the line ? A. Well, it was the year before
I got the contract.
Q. Well, can you fix it from the incorporation of the City ?
A.   Eh?
Q. Can you fix it from the incorporation of the City? The
City was incorporated in '86—or from the fire, or anything like
that ?    A.   Well, I have got a record out here.
THE COURT:   Speak up, please.
THE WITNESS:   I could get the date quite easily out here,
30 but I have forgotten it practically.
MR. McCROSSAN: Well, can you refresh your memory
from something in Court ?    A.   Yes, if I can go out I can.
THE COURT: Well, what are you going to look at—witness, just wait. What are you going to look at ? A. Well, I am
going to ask my partner about.
MR. McCROSSAN:   Q.   Oh, you cannot do that.
THE COURT:   No, just give us your best recollection. You
came here in 1885.   How long was it after you came here?    A.
Well, I don't know.
40       Q.   You think it was in 1889, do you?    A.   Well, that is in
my mind.
Q.   All right, go on then.
MR. LONG:   That is when he laid out the road.
THE COURT:   No, when he blazed the trail.
MR. LONG:   He blazed the trail in 1889.
MR. McCROSSAN:   At any rate, whenever it was, Mr.  39
James Clendenning—Direct Exam.
Clendenning, Stanley Park up to that time when you were blazing
the trail, were there any roads through it at all ? A. None that
I ever seen.
Q. It was just a wild forest, was it ? A. On the north side
there was a kind of a trail along there for a certain distance and
there was an old Indian woman lived ther.e.
Q. We will just come to that. What was the situation at
Brockton Point? You know the place where the squatters are
10 now?    A.   Yes.
Q. You have been out there- recently and looked at it? A.
Yes, we started at the recreation ground—I started at the recreation ground and I went right around.
Q. As a matter of fact, who cleared the recreation ground ?
A.   I did.
Q. You and your partner, Mr. Boyd? A. Yes, but that
was long afterwards.
Q. Now, in laying out or blazing this trail—in laying out
the road line which you did through the forest, what did you
20 notice along Coal Harbor there and up around Brockton Point—-
in between Coal Harbor and the gun say, or where the gun is now?
A. Well, I don't remember seeing anything there but one house.
There was one house that I know there. It was very thick forest
there, or second growth.
Q.   And whose house was that?    A.   I beg your pardon?
Q. Whose house to your knowledge was that ? A. I have
no idea whose it was.   I seen nobody.
Q.   You saw nobody ?    A.   No.
Q.   Nobody spoke to you.   Where was that house situated?
It was on the right hand side of the trail that I cut through. -
Q.   That would be on the shore side?    A.   Yes.
Q.   On the water side ?    A.   Yes.
Q. Did you observe any fences there? A. No fences. I
don't remember any fences.
MR. LONG:   What does he say?
MR. McCROSSAN: He does not remember any,fences. I
draw your attention, Mr..Clendenning, to the situation now. The
fences practically parallel the road for a considerable distance
right up to approximately the line of the road. And there are
40 people living there. Now, was that the situation when you laid
out that line there ? You see your road line is within a foot or two
of all those fences. A. When I laid out this road there were
no fences there.
Q. That is the main roadway ? A. It was practically built
as I laid it out, because I tendered on it afterwards, but I did not
get the contract.  40
James Clendenning—Direct Exam.
James Clendenning—Cross Exam.
Q. Did you observe where this house was situated at all?
A. I could not go within hundreds of feet of it. I did not pay any
close attention to it. No, I know there was a house there, but I
don't know where.
Q.   Now, going around farther—you mentioned about an
Indian woman being there.   Where was that?    A.   Just where
the road crosses near the park.
10       Q.   Near the Lumberman's Arch, do you mean?    A.   Near
what?
Q.. Near what is now the Lumberman's Arch? A. It was
on the lefthand of that as you go over.
Q. On the outside of it? A. Yes. You see there was a
fence there.
Q. Did you have any conversation with Gonzalves? A. I
beg your pardon.
Q.   Did you have any conversation with Portugese Joe Gonzalves at that time ?   A.   Not that I know of, I never met any per-
20 son until I met that old woman around there, and she was complaining very much about her fence being taken down.    "Olah,"
she said—she talked nothing but Chinook.
CROSS-EXAMINED BY MR. LONG:
Q. You can hear me when I am talking like this, or shall
I come nearer?    A.   I don't hear you.
Q. That is all right. I will come nearer. Where is the map
that you just drew? For my information, Mr. Clendenning (referring to map), that is the main roadway as outlined there and
that is the asphalt where we drive around there? A. Yes.
30 Q. Now, the trail that you blazed in 1889, did that main
roadway, when put in later, follow that blazed trail? A. The
main roadway followed that blazed trail.
Q.   Exactly?    A.   Well, .yes.
Q. Now, when you blazed the trail—you did not cut any
trail but just blazed the trail—blazed the trees? A. I cut the
brush out of the way so that you could get through.
Q.   How wide a trail did you put in ?    A.   About 10 feet, or
probably in some places there was not that much.   It was just to
cut the brush out.
40        Q.   You were going right around the park, were you?    A.
Yes.
Q. Now, you say you could not get into this house—that you
could see through the bushes ?    A.   No.  41
James Clendenning—Cross Exam.
James Clendenning—Re-Direct Exam.
Q.   I thought you said, '' I could not get within hundreds of
feet of it,"?
THE COURT:   No, that was locating it on the map.
MR. LONG:   You could see it through the bushes, could
you?   A.   Well, yes, I saw a house there.
Q.   How far in ?    A.   I could not say.
Hundreds of yards ?    A.   I could not say.
Was there a roof on it?    A.   Yes.
You could see that through the trees ?    A.   Yes.
A very thick forest, wasn't i,t?    A.   Yes, trees and
Q.
Q-
Q-
brush.
I
Q.
And you did not go out to the shore line at all ?    A.   No.
You just kept on your trail around the park, keeping
away from the shore?    A.   Well, yes.
Q.   So then the path which you followed would be about 10
feet wide around that park where you blazed?    A.   Probably 10
feet wide and in some places wider.
20       Q.   How long did it take you?   Did you do it yourself or
superintend it ?    A.   No.  I had men with me.
Q. And how long did it take you to blaze that path—from
where you enter there, opposite Deadman's Island to around
where the gun is? How long did it take you to put that trail
through?    A.   I don't think we were more than a few hours.
Q. It was a pretty speedy job, was it? A. Yes, it was
pretty speedy. I went ahead and set a picket where I wanted to
make the blaze.
Q.   And you went around the park?    A.   Yes.
30        Q.   Doing that?   You were not looking for fences or for
houses, were you ?    A.   No.
RE-DIRECT EXAMINATION BY MR. McCROSSAN:
Q. What were your instructions with regard to laying it
out?
MR. LONG:   I object to that.
MR. ■ McCROSSAN j   That is in line with what he said.
THE COURT: It would not be evidence what his instructions were.
MR. McCROSSAN:   I did not get that.
40        THE COURT:   What he did would be evidence, but not
what his instructions were.
MR. LONG:   Yes, exactly.
MR. McCROSSAN:   Yes, I presume that is right.
Q.   Well, in laying out the road what did you do with refer-  42
James Clendenning—Re-Difeet Exam.
Thomas H. Boyd—Direct Exam.
enee to the water line or with reference to the shore line?    A.
Well, my instructions were—
THE COURT: Q. No, what did you do—never rhind what
your instructions were.    A.    I went ahead with the men.
MR. McCROSSAN:   Q.   No, just with reference to the
shore-line.    A.   I went ahead until I found where I had to make
another curve and then the men came to me there and I left them
10 and they took on the work—my boys—coming through the woods.
Q. No, with reference to the shore line you were laying out
the road in a certain way. What did you do with reference to the
shore line? A. My instructions were—I laid the roa,d out
according to get the best view of the water as I went around.
Q. And you were to keep as close to the water as you possibly could ? A. I was to keep as close to the water as was practicable.
Q.   And you did it?    A.   I did it.
(Witness aside).
THOMAS H. BOYD, a witness called on behalf of the
plaintiffs, being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   You live in Vancouver, Mr. Boyd?    A.   Yes, sir.
Q. I believe you have been in the contracting business for
a number of years? Don't shake your head. We have got to get
it on the notes.
THE COURT:   Say yes.
THE WITNESS:   Yes.
MR. McCROSSAN: Were you a partner of the last wit-
30 ness, Mr. Clendenning ?    A.   I was a partner with Clendenning.
Q. The firm name was known as what? A. Boyd & Clendenning.
Q. How long have you been in Vancouver ? When did you
first come here?    A.   I was in Vancouver in '84.
Q.   In '84?    A.   Yes.
Q. Did you have anything to do in the contracting business
in connection with building roads or clearing in Stanley Park in
the early days?   A.   Well, Clendenning and I had the contract.
Q. For what ? A. For half of the park road and the clear-
40 ing of Brockton Point.
Q. That is where the recreation grounds are now? A.
Yes, the recreation grounds.  43
10
Thomas H. Boyd—Direct Exam.
Q. When, by the way, did you clear the recreation grounds?
A.   In 1890.
Q.   In 1890?    A.   Yes.
Q. Can you tell his lordship when Mr. Clendenning laid out
the road originally before there was any contracting work done
on it?    A.   It was in 1887.
Q.   Were you here then ?    A.   No, I was not.
Q.   Where were you ?    A.   I was in Nova Scotia.
Q.   Well, you were on a trip back East?    A.   Yes.
MR. LONG:   How does he know ?
THE COURT:   Do you know that he did it in 1887
A.
Yes.
Q.   You saw him do it?    A.   No.
Q. How do you know it? A. Well, I came back in February, 1888, and he had already laid the road out.
Q. It had been done then ? A. Yes, it had been done then
and we were working—
MR. McCROSSAN: Did you have anything to do with this
20 cut-off road here ?
MR. LONG:   What is that?
MR. McCROSSAN: What I might call the cut-off road
here, for the purpose of distinction—the road that runs from the
main road near the recreation grounds and up to Brockton Point.'
A.   I built it.
Q.   When was that?    A.   In 1890.
Q. That is the road that runs right into the Gonzalves property practically? That is, it faces it. Now, do you recall Mr. Gonzalves' property—the location of Mr. Gonzalves' property—Por-
30 tugese Joe—at the time you were carrying out any of your contract work there? A. We had our camp there within, I suppose,
800 or 1000 feet of his house.
Q. Yes. A. And We were looking at it practically every
day.
Q. Did you pass in front of it at all on the water side? A.
In boats—we always had to pass in the rear of his house.
Q.   Yes.    A.   We would pass in the rear of it.
Q.   Where, to the best of your recollection, was Gonzalves'
property or shack situated at that time?    A,   Well, as I see it
40 now, and as I saw it then, as near as I can recollect it was close
to the water. It was standing high at the back—high next to the
water and low on the hillside.
Q. High on the water and low on the hillside. A. Yes,
resting on posts or rocks, as I remember it.
Q. Resting on posts ? A. Yes, and there were nets—fishing nets—I can see the nets now—hanging on the beach drying,  44
Thomas H. Boyd—Direct Exam.
Thomas H. Boyd—Cross Exam.
James B. Williams—Direct Exam.
by the house—and from the house over to our camp—fishing nets,
you know.
Q. And did you see him there yourself ? A. I have talked
to him on the road there. I was never in his house. I have seen a
woman there as near as I can recollect, and children.
Q. Do you recall whether there was any fence around it;
10 whether it was an inclosed piece of property or not? A. lean-
not recollect any fence.
Q.   You cannot, recollect any fence at that time ?    A.    No.
Q. Was there any particular incident in your camp at that
time that detained you there? A. Well, you know there was
the smallpox scare and I lived down town and I was quarantined
on Deadman's Island.
Q. You and some of your camp were quarantined on Dead-
man's Island?    A.   No one but myself.
Q. Just yourself? A. The patient that I went to see had
20 the smallpox and when I was there the Health Officer quarantined me.
Q.   How long were you on the Island?    A.   Two weeks.
Q. What year would that be? A. That would be the
year, I think, they hauled the water pipe across the Narrows. I
think it was in '92.
Q. Oh, in '92. That was a little later than you have been
speaking about?    A.   Yes.
CROSS-EXAMINED BY MR. LONG:
Q.    Now, your description of what you saw there in Joe Gon-
30zalves' place, you got that from the water—going by in a boat?
A.   Yes.'
MR. McCROSSAN: May I just call Mr. Williams on a
short point? He has a couneil meeting on and I do not wish to
detain him.
MR. LONG:   Certainly.
(Witness aside pro tern).
JAMES B. WILLIAMS, a witness called on behalf of
the plaintiffs, being first duly sworn, testified as
follows:
40 DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   You are city solicitor of the City of Vancouver, Mr.  45
James B. Williams—Direct Exam.
James B. Williams—Cross Exam.
Williams?    A.   Yes.
Q. Do you know Portugese Joe Gonzalves, the father of the
Defendant in this action ?    A.   Yes.
Q. Did you ever have any conversation with him in regard
. to his residence as squatting on Brockton Point, and if so when?
A. I had a conversation with Gonzalves on October the 25th—
October 20th, 1922.
10 Q- Where? A. In the corridor of the Police Station. The
City had brought an action against his son there for constructing
a house without getting a permit, and knowing Mr. Gonzalves I
spoke to1 him in the corridor afterwards, or he spoke to me; I have
forgotten which.
Q. Yes; what was the purport of the conversation? A.
He wanted to know why the City was prosecuting his son. He
said that they had occupied the property for around 50 years. He
was the first squatter there and he had been there ever since.
CROSS-EXAMINED BY MR. LONG:
20 Q. Did you take this down, Mr. Williams, at that time, in
writing ?    A.   I made a memo right after it, yes.
Q. For what reason? Was it in anticipation of this case,
or why did you make a memorandum? A. I can hardly say
whether the case was in contemplation at that time or not.
Q. Why, then, make a memorandum if you just had a casual conversation with a man in the Police Court? A. Well, it
was for the purpose of the Police Court action. I did not know
what might turn on it, you see.
Q. You had nothing to do with the City action, had you?
30 A.   Yes.
Q.   Wasn't the City Prosecutor acting on that?    A.   Yes.
Q. Did you give him that information? A. I don't know
whether I did or not.
Q.   You were getting it for your own particular purposes,
were you?    A.   No, I did not know what it would be useful for
except it was for the prosecution at the time, because I don't think
■   these cases were in contemplation at that time. I don't recollect it.
However, I made that memorandum.
Q. And did you preserve that written memorandum? A.
40 No, all I have is a typewritten memorandum of that.
Q.   You did nothing to preserve it ?    A.   Yes.
Q. You intended then to store it up for future reference,
did you? A. Well, there was a note, if I recollect, on either a
letterhead or part of the correspondence when I went back to the  46
James B. Williams—Cross Exam.
office, and I just made a note of that.
Q. Well, a man is apt to be very communicative with you
at that particular time likely, and he did not know that you had
any—I don't use it in an offensive way—but that you had any
ulterior motive in preserving that against him? You did not
give him any intimation of it ? A. No, he just volunteered that
statement to me.
Q.   Did you intimate to him that you would at any time on
10 behalf of the City oust him from there ?    A.    No.
Q. So he made quite a candid communication to you without knowing what you were going to do? A. A free and open
confession.
Q. Well, did you so regard it at the time? A. I did not
pay any particular attention to it, as a matter of fact.
Q. And yet you thought it of sufficient importance to make
a memorandum of it? A. Yes. You see there was some question as to their legal rights down there, on the question of the bylaw.
20 Q- That would not be as to the title ? A. Oh, yes, there was
as to title. It went right to the title in the first instance. I have
forgotten who it was who was appearing on behalf of Mr. Gon-
- zalves.
MR. McCROSSAN:   Mr. Rubinowitz.
THE WITNESS: Yes, and he raised a constitutional point
as to the status of his title and there was some argument in the
Police Court or in a subsequent proceeding.
MR. LONG: Q. Well, did. you interview Mr. Gonzalves in
the presence of his counsel at that time? A. No.
30 Q- Well, what justification do you give to me that you
should interview Mr. Gonizalves when his title was being investigated by the City? A. It was not an interview at all. He
came up and spoke to me and volunteered this information himself.
Q. Are you giving his exact words or just a summarization?
A.   I am just giving a summarization of what he told me.
Q.   Have you your original notes there ?    A.   No.
Q.   You are just relying-on your recollection of that casual
conversation now ?    A.   Yes.
40        THE COURT:   I thought you said something about type-
A.   Yes, I made a typewritten memorandum of
written notes ?
it.
Q.   When?
afterwards.
Q.   All right.
A.   Oh, it would be some considerable time  47
James B. Williams—Re-Direct Exam.
Thomas H. Boyd—Cross Exam.
RE-DIRECT EXAMINATION BY MR. McCROSSAN:
Q. That would be when these actions were in contemplation,
I presume? A. Yes, I presume so. As a matter of fact, I forget
when it was.
Q. Do you know who argued the case in the Police Court?
A.   Mr. Rubinowitz.
Q.   No, I mean for the City.   My friend suggests you hadn't
lOanything to do with it.    A.   Mr. Mackay in the first instance
and then yourself the last time it came up.
MR. LONG: That does not change the situation. He was
acting for the prosecution and interviewing the accused when he
was not representing him as counsel.
(Witness aside).
THOMAS H. BOYD, resumes the stand:
Q. Now, I asked you this question, Mr. Boyd. You have
told the court that you saw this house which appeared to be low
down on the hillside resting on posts or something to that effect.
20 Where did you make that observation from ? At what point ?
From a boat? A. From a boat or from our camp or from the
road.
Q. Wasn't there more than one house there? A. I think
so.
Q. So you don't know the character of this house that was
down on the water?    A.   I know Joe's house.'
Q.   Was it his dwelling house?    A.    He was living there.
Q. Are you sure of that ? A. I was never in the house, but
I have seen him there on the road.
30 Q- Are you sure he didn't have several buildings there at
that time ? A. I don't know. He might have had a lot of build-
ings'there, but that was what was called Joe's house—that house
that I described.
Q. You don't know which house he lived in? A. Yes, the
one next to our camp, that is what they call Joe's house.
Q. Didn't he have several buildings there? A. I don't
know. He might have owned the whole of Vancouver for all I
know.
MR. McCROSSAN:   I don't think anything turns on it.
40        Q.   Can you say from this plan, Exhibit 7, which one was
his ?   This is the Coal Harbor end and this is the time gun here,
you see.    A.   Well, this is where we were.  We were camped here
and this house was supposed to be Joe's.  48
Thomas H. Boyd—Cross Exam. •
Q. This is the first house next to your camp? A. The
first house to our camp.
Q. Yes, the first house to your camp. Well, now, is this the
house or that ? A. We were camped here and we used to come-
along in a boat here and we used to come on the road from town
along here.
Q.   And his house was next to your camp ?    A.   Yes.
Q.    This second one?    A.   Yes.
10       MR. LONG:   Were you camped on Deadman's Island?    A.
No.
Where were you  camped?    A.   Southwest  of  Joe's
Q-
house.
Q.
Q.
Well, you know where the Yacht Club is now?   A.   Yes.
Were you right near that?    A.   No, the Yacht Club is
this way, but we were right there—we camped right around Joe's
house.   We were camped right here.   Here is the road and we
were clearing there.   We were clearing the recreation grounds.
Q.   You did not come over here at all?   A.   We cleared
20 down to this road.-
Q. You did not come over to Joe's property at all? A.
No, we did not have anything on the water side of the road.
Q. You were not concerned with him or his property or anything else ?    A.    No, I did not know anything about it.
Q. What did you say? A. No, I said we were not interfering with Joe's property.
Q. And you had no concern with what he owned or what he
did?    A.   No.
(Witness aside).
30 MR, McCROSSAN: There are certain questions on Discovery I wish to tender of the Defendant, Alfred Gonzalves. This
Discovery, I might say, was taken on June 5th last and it was
agreed between my learned friend and myself that this goes in as
Discovery for the Attorney-General, too. We do not wish to take
out a second appointment.
THE COURT:   All right, go ahead.
MR. McCROSSAN: So I tender it on behalf of both the
Plaintiffs.   Questions 1 to 12, inclusive.
MR. LONG:   You might put in Question 13, too.
40       MR. McCROSSAN:   Question 15.
MR. LONG:   You had better put in Question 13.
THE COURT: I don't see that any of this is evidence. He
is swearing to something that occurred before he was born. It
means nothing as far as proof goes.  49
Extract from Examination of Discovery
of defendant Gonzalves.
MR. McCROSSAN: I submit it would be, as coming from
his father.
THE COURT: It is hearsay evidence. I don't see that this
is anv evidence—but however, go on.
MR. McCROSSAN: Questions 18 and 19; Questions 39 to
43, inclusive.
MR. LONG:   Just a moment.   Yes, that is all right.
10       MR. McCROSSAN:   Questions 39 to 43, inclusive; Questions 67 to 68 and 69; 78 to 102, inclusive; Questions 156 and 157;
Questions 162 to 179, inclusive.   That is the case for the Plaintiff,
my lord.
THE COURT:   Alright, Mr. Long.
MR. LONG: My lord, before calling any defence, so as to
protect myself, I would apply for a non-suit on the ground that
my learned friend has not made out a case, sufficient to eject me.
THE COURT:   Just state the point and then put in your
evidence.
20       MR. LONG:   Owing to the circumstances of this case I am
going to call these witnesses first as they are here at a great deal of
inconvenience.
EXTRACTS FROM EXAMINATION FOR DISCOVERY OF
DEFENDANT READ AND PUT IN BY COUNSEL
FOR PLAINTIFFS
1. Q.   You are the Defendant in this action, Mr. Gonzalves?
A.   Yes.
2. Q.   How old are you?    A.   I was born in 1891.   I will
be 33 my next birthday.
30 3. Q. You are now living in Stanley Park on the property
which, for the purposes of this action, we say you are squatting
on?    A.   Yes.
4.
5.
6.
7.
Yes.
8.
guese.
Q. You were born on the premises?    A.   Yes, sir.
Q. In 1891?    A.   In 1891.
Q. You are the son of Joe Gonzalves?    A.   Yes.
Q. He was the original squatter, I understand?
A.
Q.   What is his nationality, Portuguese?    A.   Portu-
40
A.
9.   Q.   When did your father come to British Columbia?
In 1874.  50
Extract from Examination of Discovery
of defendant Gonzalves.
10. Q.   In 1874?    A.   Yes.
11. Q. When did he take up his abode in Stanley Park on
this particular property? A.. When he first came there he
settled there. There was no town or anything, and that is where
he first settled.
12. Q.   In 1874?    A.   Yes.
13. Q.   That is on the precise spot, the premises where you
10are living now?    A.   Yes, sir.
15. Q. Since when has your father vacated the premises, or
left there? A. Sixteen or eighteen years, but he has been up
and down, and there has always been somebody living there.
18. Q.   Have you got the place fenced in?    A.   Yes, sir.
19. Q. Has it always been fenced in? A. Always fenced
in. He cleared the land. There was no road or anything when he
came there.   He cleared the land and f encd it.
39. Q. When did your father move in? A. When he first
came here, in 1874. '
20 40. Q. He took up a place of his own, apart from your uncle,
did he ? A. Yes, he took up and fenced a piece of land. There
was no town or anything else, and he raised a few vegetables, and
got a piece of ground and made a garden, and from that time to
this it has always been fenced, and we have always lived there.
41. Q. And he established his early home there? A. Yes,
and used to fish and smoke fish in the early days out there.
42. Q. So your father was the originator or the founder of
this property you are living on?
MR. LONG:   My client is only giving hearsay evidence on
30 that.
Mr. McCrossan:   He is the holder of the title, and he has to
say what title he has, and the history the title stands on.
43. Q. Your father, you say, was the originator, and the
original squatter on that land with the premises you are now in?
A.   I couldn't say.
Mr. Long:   If you don't know, don't answer.
Mr. McCrossan:   I understand that is what you did say.
A.   I tell you that is what I have heard him say.
67. Q.   Did your father give you any writing or anything of
40 that kind?     A.   No.
68. Q. You are just staying there because you were born
there, and lived there all the time since? A. The three generations raised right on that place.
69. Q. How do you make it the third, oh yes, your children?
A.   Yes, my children.  51
Extract from Examination of Discovery
of defendant Gonzalves.
78. Q. Is the house in the same condition now that it was
when you first lived there? A. No. The house was falling
down, and I put up a new addition to it last summer.
79. Q. On the same spot, or covering more ground? A.
Covering the same spot the other one was on.
80.   Q.   You never took out any building permit for that?
A.   They wouldn't give me any.
10        81.   Q.   You were up in the Police Court over it, were you
not?   A.   Yes.
82. Q. And were fined for building without a permit were
you not?   A.   Yes.
83. Q. Has the fence been renewed since you were living
there?   A.   Yes.
84. Q. How many times? A. I couldn't tejl you. Whenever the fence gets old, and the pickets- off, we renew it.
85. Q. Have you changed the boundary line in renewing
the fence ?   A.   No, the posts were put always where they were.
20 86. Q. Always in the same spot? A. Always in the same
place.
87. Q. How often have you left the premises during the
time you have been there? A. A man can't stay home all the
time, he has to be away, but I have been back and forth within the
month.
88. Q. Do you take the family with you? A. There has
always been somebody there. If I have not been living there,
my brother-in-law has been living there.
89. Q.   You have been away with your whole family, and
30 just left your relatives, your brother-in-law?   A.   I used to be
in the candy business, and the family was there. I used to be
away two weeks and come back, and they were there, and sometimes I used to take them away for a trip and come back.
90. Q. Have you taken your whole family away to go away
to work anywhere ?   A.   Not for long.
91. Q. Two or three weeks? A. Two or three weeks,
something like that.
92. Q. And the place was then shut up? A. No, there
was somebody living there.
40 93. Q. How do you know that? A. Because we always
thought there should be somebody stay there and live there all
the time, that is why we did it.
94. Q. Who did you get to occupy the premises when you
were, away like that with your whole family? A. There were
neighbors that lived next door, they would come in and stay at
the place.
95. Q.   And it has happened when you have been away,  52
Extract from Examination of Discovery
of defendant Gonzalves.
that you have asked neighbors to look after the place for you?
A.   Stay there, yes.
96. Q. When was the last time that happened? A. I
couldn't tell you. I never kept any dates of times when I was
away.
97. Q. What year would that be, have you any idea of that ?
A.   No, I have not.
10 98. Q. How often did that occur during the last several
years?   A.   I don't know.
99. Q. Several times, is that right? A. You should
know.
100. Q. I don't know. I want the facts from you. A. I
tell you I don't know.
101. Q. Did it happen several times during the last 20
years say?
MR. LONG: If you know, answer; if you don't know, say so.
A. I say I don't know.
20 MR. McCROSSAN: 102. Q. You would know if it happened once or half a dozen times, would you not? A. No, I
never kept track. I don't know how many times I went away
and came back. There is no use telling you I went away two of
three times when I went nrobably a dozen, I don't know, I tell
you.    That is clear enough, ain't it?
156. Q.   You are above the beach, are you?   A.   Yes, sir.
157. Q. You are on the high land above the high tide. A
Yes,
162. Q.   I ^resume you had some conversation with your
30 father when he was leaving there, about trying to keen this nron-
erty, did you?   A.   Yes.   We always thought we had some right
to it after living there so long.
163. Q. Did he give you instructions after he moved, out.
to be careful? A. Well we always had in mind somebody—
would live on it.
164. Q. When he moved out, what was the disposition of
the property, so far as he was concerned. What did he say to you?
A. He said we had always been raised there, and it should go on
from generation to generation and keep the place.
40 165. Q. And he turned it over to fou completely? A. Not
completely to me alone, because I have five sisters, whoever wanted to live there, we could all live there.
166. Q. Then even at the present time he has not turned
over to you the place, is that it? A. No, because he lives there
himself, occasionally stays there.
167. Q. There is no one else living there, treating it as their
home, except yourself and your father when he comes down to rl 53.
Extract from Examination of Discovery
of defendant Gonzalves,
Father Bellot—Direct Exam.
visit you.   A.   Yes.
168. Q. So none of your sisters or brothers claim any interest in it? A. It is very lately that they got married, and until
then they were all living there.
169. Q. Lately? A. Within five or six years back. My
brother got married.   He was living in town, and lived there.
10        170.   Q.   He is not in the City now though?   A.   He is not
here now, but we both lived there.
171. Q.   He is out of the City now?   A.   Yes, he is away.
172. Q. You are the one who really claims the title to it now
as having had it handed down to you from your father, is that it?
A.   I wouldn't say that; but I am living there.
173. Q. Has your father really given up his interest? A.
No, he has not.
174. Q.   He is sort of hanging on to it yet?   A.   Yes.
175. Q.   Just letting you live there, is that the idea?   A.   I
20 don't know what his intention is.
176. Q.   Did he tell you how long he has been there?   A.
Who?
177.
1874.
.      178.
179.
edin?   1
Q.   Your father?   A.   Why since he came there, since
Q.   On that exact piece of property?   A.   Yes.
Q.   And that is the one he originally laid out and fenc-
..   Yes.
DEFENCE.
FATHER BELLOT, a witness called on behalf of the defendant,
30        being first duly sworn, testified as follows:—■
DIRECT EXAMINATION BY MR. LONG.
Q.   Your name in full?    A.   Father Bellot.
Q.   You are?   A.   I am the Parish Priest from the North
Shore, of the Indian Reserve.
Q.   I want these witnesses to stand up so that he may recognize them.   Do you know this old Indian here?   A.   Yes.
Q.   Abraham?   A.   Yes, I have known him.
Q.   How long have you known him?     A.    The first time I
met him was 22 years ago.
40       Q.   And you have known him since then.   A,   Since then I
was away from the North Shore, but the last two or three years I  54
Father Bellot-
Father Bellot-
-Direet Exam.
-Cross Exam.
know him very well.
Q.   You know him since you came back?   A.   Yes, the first
time I met him was in 1901.
Q.   Now, do you know this woman, Celestine?   A.   Yes, I
met her at the same time.
Q.   And this other woman—what is her name—Emma Gonzales—a different name to this one here.     A.   Yes.
10        Q.   You have known these over all that period of 20 years?
A.   Well, it was the first time I met them.
Q.   Now what do you say as to their character?
THE COURT:   You cannot do that.
MR. LONG:   Well, it has been done in that Deadman's Island case.
THE COURT:   I never heard of character evidence in a civil
suit.
MR. LONG:   And to prove that they are credible witnesses.
THE WITNESS:   I think they are good.     You can trust
20 them—what they say.   They are good.
MR. McCROSSAN: y I object to that.
CROSS EXAMINED BY MR. McCROSSAN.
Q.   Just a minute, Father.   Did you know Chief Tom who
died here a few days ago ?   A.   Yes.
Q.   He was a good Christian Indian, wasn't he ?   A.   Yes.
Q.   A good reputable man in every way?   A.   Yes.
Q.   Would you believe what he said?   A.   Yes, I would
swear by what he said.
MR. LONG:   And the same way with these three Indians,
30 too?   A.   Yes, I would.
(Witness aside.)
MR. McCROSSAN:
MR. LONG:   No.
MR. McCROSSAN:
the Interpreter, my lord.
THE COURT:   Well, have you an interpreter?
MR. McCROSSAN:   No, I haven't, but I didn't anticipate
these witnesses being called to-day and I think we should have
someone to-interpret who is not connected with either one side or
40 the other.
MR. LONG:   Have you done interpreting in the Courts?
MR. JIM HARRY:   Yes.
MR. McCROSSAN:   I thought he was one of your men.
MR. LONG:   Oh no, he is a Court interpreter.
MR. McCROSSAN:   Well, do you act as interpreter in the
Do they speak English?
I would like to raise some question as to  56
Thomas Fisher—Direct Exam.
there at all?   A.   No, sir, not when I came here.
Q. Now, just tell his lordship—what were you doing when
you came here? A. When I came here—I will have to start
from the beginning.
Q. No, no, don't do that. When you came here in the beginning what were you doing—on the-water-front or what? A. I
came here to load a ship for Captain John Thains (?) in '67.
Q.   You know Brockton Point?   A.   Yes.
10        Q-   Where the gun is ?   A.   Yes.
Q.   And Deadman's Island?   A.   Yes.
Q. In the spring of '67 when you came here was there anyone living over there on Brockton Point?     A.   Yes.
Q. Just tell his lordship who was there. A. Well, the
party who was there—I would like to explain to you how I came
to go there.
Q. All right. A. You see when- we came up here to load
the ship the ship never arrived and we tried to get a job at Hastings Mill and they said it was full up and they said "you had bet-
20 ter go over to Moodyville.'' It belonged to Moody, Deeks and Nelson, and we went over there and found w.e could not get a job there
and we asked them if they knew where we could get a job and
Moody—they called him Mr. Moody, a partner of the mill—he said
"go up to the camp. I have a camp on Seymour Creek." And we
went up three and there was a man there by the name of Miller,
who I suppose you all know and who is The General Postmaster
here—he was the boss of the camp and he said, "Well, you men,
are you used to an axe?"
MR. McCROSSAN:   Don't give too much hearsay.
30       THE COURT:   You had a talk up there and what happened
.after that?
MR. LONG: Q. Did you go over to Brockton Point? A.
Well, this man at Hastings Mill they said he had dropped dead—
he died or dropped dead and a man there by the name of Ben Wilson he said, "boys, if you are doing nothing there is a 'little job
for you here,' and we said 'what is it?'. And he said, 'there is a
man here dropped dead and I will give you $3.00 apiece if you will
take him and bury him,' and we thought we would take that
chance, so I asked him "where shall we bury him?" "Well," he
40 said, "there is a good place over there on that point".
Q.   That is at Brockton Point?   A.   Yes.
Q. Is that near where the gun is now? A. Yes. There
was lots of land around without going there, but anyhow we went
there and when we got there to the Point and tied up there were
three little wharves there where these Portugese were and a float
on that side of logs and one on this side and we tied up there and
this man came down.   I did not know who he was.   He was a  57
Thomas Fisher—Direct Exam.
stranger to me.
Q. Did you find out afterwards who he was? A. No, we
never found out who he was. And he said, "what are you doing
here, boys?"
Q.   You cannot tell what he said to you—just what you did.
THE COURT: You had a talk with him. A. We had a
talk and he said, "what are you doing there?"
THE COURT:   We cannot have any more of that, Mr. Long.
10        MR. LONG:   No.
Q. His lordship doesn't want to have what anyone said to
you,—just what you did and what you saw with your own eyes,
you see. Did you bury the man? A. Yes, we buried the man.
We dug a hole and put him in.
- Q.   Near where the gun was?   A:   There was no gun there
at all.
Q. No, I mean near where the gun is now? A: Yes, just
about where the gun is now.
Q.   Now, where were these houses—to the north or south of
20 that gun.
THE COURT: He hasn't said anything about houses—just
three wharves.
MR. LONG: Well, the three wharves? A. Well, here is
Deadman's Island here and here is Brockton Point coming around
here.
Q. Just a moment until I get this. . Can you see without
your glasses?   A.   Well, I can see pretty well.
Q.   Now, this is a copy of a map, Mr. Fisher, which has
been put in here.   This is an old, old map you see.    This is sup-
30 posed to be out here—this is Brockton Point and this is Dead-
man's Island?   A.   Yes.
Q. Now, that is Deadman's ^Island. This is Deadman's
Island—it does not show here, does it—you see Deadman's Island
and this is the gun—it would be just'about here—just like that?
A.   Yes, somewhere around there.
Q. Now make a mark where you think the gun is as far as
your recollection is concerned? A. Well, I tell you it is about
there.
THE COURT:   What is he marking there?   Is that an ex-
40 hibit?   What plan is that that you are getting marked?
MR. LONG.   This is exhibit 4, is it not ?
THE REGISTRAR: That is exhibit 9, the one his lordship
has.
THE COURT:   Put it all on the exhibit.
MR. LONG: Q. Now, just mark with a pencil, will you,
with a cross, where you think the gun is. You have marked that
with a cross.   Now, just mark—you say it was near there whgre  58
Thomas Fisher—Direct Exam.
you buried this man ?   A.   Yes, right up on that point there. That
is where we buried him.
Q. Now, just mark to the best of your recollection where
you buried that man?   A.   Right here.
Q. Will you make a cross there—that will be cross-marked
2—the cross marked 1 is where you think the gun is ?   A.   Yes.
Q.   Now, mark, if you can, to the best of your recollection
where those three wharves were?   A.   The wharves?
10        Q.   Yes.   A.    Those were around here.
Q. Well, just mark them the best you can, you see. A. Yes
that was by here.
Q, Mark the three of them then. A. Well, it comes along
there,—comes around by Deadman's Island.
Q. They were somewhere around the cross marked number
3, is that right? Now, were there any houses there? A. On
Brockton Point?
Q.   No, around where these wharves were?   A.   Yes, they
were up on the hill there.
20        Q.   Right back of three?   A.   These wharves were down
this way and the houses were up here.
THE COURT:   How many houses?,
MR. LONG: How many houses were there? A. Well,
there' were four that I know of. There were four, but there was
one house—
MR. McCROSSAN: Just have him mark where he thinks
they were.
MR, LONG:   Mark where you think the houses were.   A.
Yes.
30        Q-   The four crosses?   A.   Over here—there was another
man there—he was in a shack.   I don't know who he was and I
never seen him.
Q. Mark number 4 cross where he says the houses were. And
you say there was another shack up in the woods?   A. Yes.
Q.   Mark that.   A.   There.
Q.   That is marked cross number 5.   A.   Yes.
Q.   Do you know who lived in any of those houses ?   A.   Yes.
Q. Just tell his lordship who lived in them? A. Well, this'
first house—
40 Q. Is that the first house nearest the point? A. Yes, right
here—there was a man named Portuguese Joe—, his right name
was Joe Fernandez and the next man who was living there was—
well, we called him Portugese Pete—that is Peter Smith.
Q.   Has he a son here?   A.   I don't know.
Q. Yes. A. And the next one up here was a man by the
name of Joe Silva; and this one here, I don't think there was anyone living in that at all, but there were four shacks there. Be 59
Thomas Fisher—Direct Exam.
MR. McCROSSAN: That is, the first one towards Coal Harbor way was vacant? A. Yes, I don't think there was anyone
in there.   I did not see anyone and this man he told me—
MR. LONG: Q. You cannot tell that. Now, on what date
was it that you buried this man? A. Well, that was about—let
me see, it was about two weeks after we came up here to go to
work on that vessel.
Q.   Well, that would be in May?   A.   Yes, somewhere in
10 May—sometime in'May.   I could not tell you exactly the date.
Q.  .Of '67?   A.   Of '67.
Q. Now, do you know the man we call Portugese Joe now—
Joe Gonzalves?   A.   Yes.
Q.   Who lives over there now? .A.   Yes, I know him.
Q.   Do you know where his house is over there now?  A. Yes.
Q.   If you were on the ground over there could you point out
on the ground where Joe Silva's house was?   A.   Well, I might
be able to, but I know at that time when this man told me he was
living there—I know at that time this here man who is a nephew
20 of Portugese Joe Fernandez_he was there.
Q. Well, did you get to know Joe Silva later on? A. Joe
Silva?
Q. Yes. A. I used to see him there all the time. He used
to go dog-fishing.
Q.   Did you ever go over to his house there ?   A. No, I. didn't.
Q. Do you remember when Joe Gonzalves came—you know
Joe Gonzalves—that is the father of Alfred here? A. Yes.
This is Joe Fernandez.' nephew?
Q. Yes, that is right, A. Yes.
30 Q. Do you remember when he came to Brockton Point? A.
Well I will tell you—just let me think of that. I was down to
the camp working for Jerry Rogers in English Bay. I went down
to work for him at Jericho and I came up there and I heard that
Joe Fernandez' nephew was up here—he told me—
Q. Well, you cannot tell that. A. Well, that is the only
way I can get at it I think.
Q. Now, taking those three shacks—those places that were
occupied by those three men, from your recollection what did they
look like? How old did the shacks look at that time? A. Well,
401 will tell you, I think by the look of those there shacks they must
have been there five or six years, because they were all weather-
beaten and the wharves looked as if they had been put up for
.sometime, that they had there.
THE COURT: What were they built of, logs or shakes, or
what?   A.    Sir?
Q.   What were they built of?   A.   Just lumber.
MR. LONG:   Shakes or lumber?   A.   Boards.  60
Thomas Fisher—Direct Exam.
Thomas Fisher—Cross Exam.
THE COURT: Boards? A. Boards. At that time the
Hastings Mill you see had no foreign market—no local market—
and they used to throw a lot of that lumber overboard.
MR. LONG:   They used to throw their boards overboard?
A.   Lots of lumber that had pitch seams in it,they would not take
them as cargo and what could they do with them?   There was no
local market.
10       Q.   Did you know Peter Smith ?   A.   Yes, I know him well.
Q. If you were out there with a party do you think you could
point out where he lived? A. Yes, I think I could point out
exactly where his-shack was.
Q. Well now, as I intimated this morning the only way I
can get this accurate is to take these people out there and getthem
to point out just where it was. It is purely a question of locality
and it is up to my client to have you go out there and have the witnesses go out.
MR. McCROSSAN:   Do I understand you want to go into
20 this Smith matter?   I have no particular objections.
MR. LONG: Well, this is a local man and I can bring him
there any time so I am not particular about him.
Q. Do you know if these men had done any clearing there at
the time? A. Well, they had a bit of a garden there and
there were a few little fences up there, but they were not fenced
altogether in—just a piece of a fence in an angle there.
CROSS EXAMINED BY MR. McCROSSAN:
Q. Now, I take it— you said Mr. Fisher, that in '67 there
were no white people or white population on this side, meaning,
301 presume, on the Gastown side of the Inlet ? A. Not from the
mill down, there wan't—from Hastings Mill down.
Q. Well, the Hastings Mill was there. I thought you were
either not clear about that or we were confused. The Hastings
Mill was running in 1867, wasn't it?   A.   Yes.
Q. And ships were then coming into the harbor to load lumber at the Hastings Mill? A. Well, there was just one ship expected there, but she didn't arrive for quite a while—for several
weeks. We came up here on purpose to work on her and they told
us that the ship had not left South America and so we had to rustle
40 ourselves another job.
Q. Now, you told Mr. Long that these four crosses would be
. about where you recollect the shacks were, and that is about where
you located them?   A.   Yes.
Q. Now, how many yards would that be from— A. From
the beach?  61
Thomas Fisher—Cross Exam.
Q.   From the beach.   You see, this is drawn now—
MR. LONG.   There is no scale on it.
MR. McCROSSAN:   I think there is a scale but it is prob-
■   ably On the original one.
MR. LONG:   Well, that is the exhibit.
MR, McCROSSAN:   How many yards would you say it was
from the beach or the water-line?   That would look to be 150 or
200 yards there?   A.    The inside of these wharves?
10       Q.   Well, take the house first.    A.   I suppose it was about
80 feet—it might have been a little more.
Q. Well, then, you are a long way from the water-front
there. The way you mark them on the map it would be a good
many yards from the water-front.    A.   Well—
Q. You are fully a third of the distance from the neck of the
Point there. A. I reckon if might have been about 80 or it may
have been 100 feet.
Q.   From the beach?    A.   Yes.
Q.   From the high-water mark?   A.   Yes.
It might have been 100 feet ?    A.   Yes.
20
Yes.
Q.
Q-
And they were only partially fenced in, you say?    A.
Q. There was not a fence all the way around? A. Well,
one of them, I believe, was fenced.
Q.   Which one?    A.   Where.
Q.   Where Fernandez was ?    A.   Yes.
Q.   He was the one nearest the gun?    A.   Yes, and the one
this way, Portugese Silva—Joe Silva,  his was  partly fenced.
There was a fence around his place partly, but not altogether.
30       Q-   Not on four sides ?    A.   No.
Q. And the one nearest the gun or to the Coal Harbor end,
was empty, you say?    A.   Yes.
Q.   It had the appearance of being empty ?    A.   Yes.
Q. Now, you say there were three little wharves ? Were they
at some distance from the house or were they right in front of the
house or what ? A. Yes, right in front of the house, from the
beach up. I would judge they were 24 or 30 feet long out in the
water.
Q. Well, now, you have marked the wharves down here
40 where the figure 3 is; that would be midway between the four of
them? A. Well, these wharves were divided up among the men.
They built their whraves to land their boats—and their fish. You
see they used to fish for codfish and dog-fish and they used to take
the livers out and throw them there.
Q. Yes, that is what they were really engaged in doing—
fishing?    A.   Yes.  62
Thomas Fisher—Cross Exam.
Q. Now, as a matter of fact weren't those shacks right down
on the beach on piles ?    A.   No, they were not.
Q. Where fishermen would naturally live so that it would be
convenient to the water? A. You would think they would be,
but they were not.
Q.   They were up on the land?    A.   Yes.
Q.   They might have been over 100 feet up on the land?    A.
Well, I never measured it.   I am just judging.
10        Q.   You are just guessing at it.    A.   Well, I guess there
would be 100 feet.
Q. And I also notice, Mr. Fisher—I would like you to be
clear on that—is there a ruler there ?
' THE REGISTRAR I   No, I haven't got one.
MR. McCROSSAN :> Never mind.   I will use this.
Q. All the crosses where you located the houses—the four
houses, they are all inside of the north side of Deadman's Island?
A.   Yes.
Q.   Here is Deadman's Island, and you have got them direct-
20ly in a direction perpendicular to the top of the ihap, from that?
-   That is right ?    A.   Well, they should go further over this way
by rights.
Q. Well, that is the way you fixed them for your own counsel?    A.   Yes.
Q. He drew your attention to Deadman's Island. Now do
you want to change them—or they were right opposite Deadman's
Island?. Is that right? This is the north or south line of Dead-
man's Island? A. Well, they may be a little further over this
way.
30 Q. Isn't your first impression the right one, that they are
inside of Deadman's Island? A. Well, that is what I thought—
just about there.
Q. I would like your lordship to take special notice of that
when you take a view.
MR. LONG: Well, as I said before, it is more or less of a
guess, because my learned friend is well aware he has to prove
possessio fecit?
THE COURT:   Let me have a look at that.
MR. McCROSSAN:   You mentioned a man named Ben
40 Wilson, Mr. Fisher.   As a matter of fact is he .the Wilson who
bought out Joe Fernandez' store down in Gastown?    A.   Yes,
that is the same man.
Q. Now, Fernandez had a store in Gastown in '69 or '70,
hadn't he, and you worked for him, didn't you? A. Well, I
done some work after he came up from the camp. I did some work
for him. 1 63
Thomas Fisher-—Cross Exam.
Q. And Fernandez was then living in his store whenyou
were working for him?    A.   Yes.
Q.   Down in Gastown ?    A.   Yes.
Q. And he abandoned the store at Brockton Point? A.
Well, I don't know whether he abandoned it or not; I could not
say. I know he came over here. That was quite a while after
he came over.   He was in Gastown.
Q.   Would he be in Gastown in '69 or '70—1869 or '70 ?     A.
10No, I don't think he was.  I think it was in '71 or '72 that he would
be there.
Q. He was in Gastown before his nephew came out, wasn't
he—quite a number of years—I mean the present Portugese Joe
Gonzalves ? A. No, I think he was over on the Point when his
nephew came out first.
Q.   Do you know this gentleman here, Mr. Lord?    A.   No.
Q. You never saw him before?' A. No, I don't think I
have, I might have.
Q.   Stand up and let him have a look.   Didn't he have two
20 conversations with you?    A.   Yes.
Q.   And he told you he came from the City Hall?    A.   Yes.
Q.   You remember him?    A.   Yes.
Q. Didn't you tell him on the 22nd—Monday, the 22nd instant, that Fernandez had his store down town in Gastown, when
you were working for him before his nephew came out here ? A.
No, I don't think I did tell him so..
Q.   I may tell you I got a statement that he dictated the moment he came back from the office.   Now, just recollect that carefully.    Take your time.    A.   I told him that he was over in
30 Gastown before his nephew came out?
Q. Yes. A. I might have. I was away in camp. He
might have been, too.   I could not say.
Q. He might have been? A. Well, yes, I would not swear
to it.
Q. Didn't you tell him that Portugese Joe Gonzalves
squatted on a different point than what his uncle had ? He took
up a place of his own? A. I might have said so, but the place
he went on there was Joe Silva's place.
MR. LONG:   We admit that.
40        THE COURT:   You say you were on Silva's place, do you,
Mr. Long?
MR. LONG: Oh, yes, we were on Silva's place. It may be
my mistake—there were three Portugese Joes.
MR. McCROSSAN: Q. Did you teU him this—that you
did not remember the exact location of any of the places except
that they were all situated very close to the water and the shore- Efc 64
Thomas Fisher—Cross Exam.
line ?    A.   Yes, that is what I told him—they were situate pretty
close to the water and up on the bank.
Q. Well, did you tell him you remembered Mr. Brew's place
being there ?    A.   Yes.
Q. And that was about 50 yards up from the water? A.
Well, it might have been that. His was on the right hand side
towards the Narrows—Brew's house was—
Q.   Towards the Narrows ?    A.   Yes.
10       Q.   He was away over towards the Narrows' side?   A.   Yes.
Q. On the Inlet side rather than the Coal Harbor side ? A.
Yes.
Q.   Now, Silva's place—
THE COURT: Silva's place is the third one along—the
vacant house, is that it?
MR. McCROSSAN:   Yes.
Q. Now, Silva's place is this one, the second from the Coal
Harbor end?    A.   Yes, that is the one.
Q.   Now, what part of that was fenced?    A.   Fenced?
20        Q.   Yes.   A.   There was a piece of fence around the back
of it—around here like that—that is where the fence was.
Q. Just a fence around the back of it ? A. Yes, the back
of the house.
Q. None down the sides? A. There was one piece on the
side—one piece.
Q. Around towards the vacant house on the side ? A. Yes,
on the side.
MR. LONG:   I don't think you should say that?   It isn't
quite accurate.   He said around this way.
30       MR. McCROSSAN:   You said there was a fence running
in a sort of semi-circle around the vacant house.
MR. LONG:   Just let him describe it.
THE WITNESS:   Around this part.
MR. McCROSSAN: Q. Around the back of the vacant
house?    A.   No.
Q. Running south, is that what you mean? A. No, between there—between the vacant house.
Q. But it was not completely fenced in'? A. No, it was
not fenced in altogether.
4C Q. Now, you say at that time that there were no houses along
this side of the Inlet—the north side of the Inlet—no buildings or
houses or shacks ? A. On the lower shore—but not on the south
shore.
Q. That is what I am talking about—the south shore—the
south side, that is all we are concerned with? A. On the Gastown side there were no houses at all.   I put the first house up  65
Thomas Fisher—Cross Exam.
myself.
Q.   Do you remember a man named Manion?    A.   Joe,
Manion, yes.
Q. He was here before you were, wasn't he? A. He was
at the mill and helped to build the mill.
Q.   He came in 1865, didn't he?    A.   Yes.
Q.   He was here before you?    A.   I don't know—it was'65
—I think it was '66 that Manion came up to build the Hastings
10 Mill.
Q. Well, would this be an accurate statement of the situation at that time. "I believe my first sight of the Inlet was in
"1865. Approaching it from the sea our first view revealed an
"inharmonious row of shacks. About 3 cables length from shore
"where the foot of Abbott Street now stands was a large square
rigged ship." And then he described a ship called the "Astarte"
—and then coming down here: "On the beach at the foot of
"Abbott Street there was a building that had just been abandoned
"by a coal prospecting company formed in New Westminster."
20 Do you remember that at all ? A. There was no building at all.
It was a shed where they prospected for coal at the foot of Abbott
Street near the water.
Q. Would this be correct: "There was a shack at the foot
" of where Thurlow Street looks on the Inlet." ? A. I beg your
pardon ?
Q. "There was a shack at the foot of where Thurlow Street
"looks on the Inlet and the remains of a brick kiln." Do you remember that ?    A.   No.
Q.   You never saw that in 1867 ?    A.   No.   That might have
30 been on the Brighouse Estate1, way down in Coal Harbor.
Q. Would you say this was not a true picture of Gastown in
the early days of Hastings Mill—in 1868 -and 1869 and somewhere
around there?   Do you recall any situation like that?    A.   No.
Q. Portugese Joe's store down here—number 7? A. That
was years after.
Q. Well, you said he was down there in 1869 or '70 ? Do you
remember Manion's Hotel?    A.   Yes.
Q.   That was in the early seventies, wasn't it?    A.   Yes,
just about that.
40       Q-   Well, would that be the situation about 1869 or '70, there
were apparently half a dozen shacks there in Gastown?    A.
Well, there would be of course at that time, but not in 1867.
Q.   Not in'67?    A.   No.
Q. Well, do you recall the building that Mr. Manion refers
to as seeing in 1865 oris he all wrong there ? A. Well, he didn't
build no mill in '65.   He didn't.  66
Thomas Fisher—Cross Exam.
Q. Well, do you say that there was not a building there at
the foot of Abbott Street and another one at the foot of Thurlow?
A. No, Thurlow Street? I don't know where abouts that is. I
don't know Thurlow Street. I know Abbott Street and I know
where that bit of shed is where they prospected for coal. I was
the first man who came to Gastown'to build.
Q.   Did you work in New Westminster?    A.    Eh?-
Q.   Did you work in New Westminster ?    A.   No sir.
10        Q.   You were around Gastown for how long after you arrived
here ?    A.   I had only been away from town this once.
Q. I mean in those early days. I understood you to say you
were back and forth and you were right around here ? A. When
there was no ship in I went down to the camps to work—at Jericho
—for Jerry Rogers, and when the ship came in we used to come up
and go to work at the vessel.
Q.    I think that is all.
MR. LONG:   That will do, thank you, Mr. Fisher.   Are,you
ready for me to go on with my witness ?
20       MR. McCROSSAN:   No, I am not.    I haven't my interpreter here, to check him up.
MR. LONG: Well, this is going to cause me rather serious
embarrassment. These people are not white people and they come
under considerable compulsion and I cannot go on like this keeping them here. That man is a very old man and if you will just let
me take his evidence, because he is very infirm.
MR. McCROSSAN: Possibly Cumyow could come. Com-
yow is the official interpreter at the Police Court.
THE COURT:    Does he talk Squamish?
30       MR. McCROSSAN:   I believe he does.
MR. LONG: Well, this man I have here is an official interpreter and I have a woman here to do the interpreting, but I
thought I was doing the best I could, getting someone who had
been doing court interpreting. It takes an enormous amount of
effort to get this old man here and keep him here and I don't like
to let him go without hearing his evidence.
MR. McCROSSAN: He is going to stay here all night, is he
not?
MR. LONG:   Well, I don't know what to do about it.
40 THE COURT i   Well, if this man is the official interpreter
I suppose we ought to use him.   Is that right ?
MR. LONG: Well, I can give you my word that I have not
had anything to do with him—I took him as being the court interpreter and thought I was doing the right thing.
THE COURT: Well, you can go along on that basis. Mr.
Long has attempted to get the official interpreter and apparently  67
Tom Abraham —Direct Exam.
he has got him, and unless there is some strong ground of objection I don't think I ought to rule him out.   You might go on, Mr.
Long, as far as the old man is concerned anyway.
MR. LONG:   All right.
TOM ABRAHAM, a witness called on behalf of the defence, being first duly sworn, testified as follows:
MR. LONG:   My lord, when was the Cariboo Gold Rush?
THE COURT:    '60 and '61, '59 was the discovery and then
10 '60 and '61—
INTERPRETER JIM HARRY, sworn:
DIRECT EXAMINATION BY MR. LONG:
Q. Ask him if he lives on the Reserve at North Vancouver?
A.   Yes, I live on it in North Vancouver.
MR. McCROSSAN:   Who is he ?
MR. LONG:   He is known as Abraham.
Q. Ask him where he was born. A. Up Seymour Creek,
on Number 3 Reserve.
Q.   Where?    A.   Above Seymour Creek.
20       Q.   On the north shore?    A.   Yes.
Q. Ask him if he knows how old he is ? A. He said it is
pretty hard to say. You know he is an old man, he says. You
people know he is an old man and it is pretty hard to say how old
he is.
Q. Well, do you know Aunt Sally? A. Yes, he knows
Sally.
Q. Ask him who was the older—Aunt Sally or himself ? A.
He is older, he said, Sally is younger than himself.
Q.   He is older than Aunt Sally ?    A.   Yes, that is what he
30 said.
Q.   She died last year?   A.   Yes, she died last year.
Q. Ask him if he remembers the first Gold Rush to Cariboo ?
A. Yes, he remembers the time the white people were there—
were rushing from Westminster to go to Cariboo.
THE COURT:   That was in '58, Mr. Long.
MR. LONG: Q. Ask him how big a man or how old a man
he was at that time?   A.   He was a big man then at that time.
Q.   A big man.   Now at that time when the Gold Rush to
Cariboo was on, ask him were there any white men here in Van-
40couver?    A.   No.
Q.   Were there any Indians living in the park?    A.   There  68
Tom Abraham —Direct Exam.
were people living there all the time—living there.
Q. Was there an Indian village out there called Whywhy
at that time? A. He said there were people lived there long
time ag* at Whywhy—for a long time—for generations.
Q. Were they living there in the time of the Cariboo rush?
A.   Yes.
Q.   Was that where Aunt Sally lived?    A.   Yes.
Q.   Now ask him if since that time he has lived all the time
10around the harbor here on the north shore?    A.   Himself?
Q.   Yes.    A.   Yes, he was living there all the time.
Q. Ask him if he remembers a Portugese named Joe Silva?
A.   Yes, he knows Joe Silva there.
Q. Ask him where he lived? A. They live in Stanley
Park.
Q. Ask him if he remembers where Joe Silva's house was?
A. Yes. It was somewhere down there in Stanley Park—somewhere down at Stanley Park he says.   He knows it.
Q.   Does he know who lives there now?    A.   Joe is living
20 there now.   His name is Joe.   That is all he says—Joe.
Q. Would he know him if he saw him? I don't think this
man can see, can he? Does he know his name—Joe Gonzalves?
A.   Yes, it is Joe lives in it—Joe Gonzalves lives there.
Q. Ask him if Joe Silva—is this Joe—can he see ? A. Yes,
that is the man who lives there (indicating Joe Gonzalves).
Q. You can go out—thank you addressing Joe Gonzalves.
Ask him if he remembers at the time of the Cariboo Gold Rush
when the people were all rushing from Westminster to the Cariboo, where Joe Silva was living there in Sanley Park? A. The
30 people came in there first—the fishermen, he says, first came into
Stanley Park, and then there was a big rush afterwards from
Westminster.
Q. Well, was Joe Silva living there at the time of the rush?
A.   Yes.
Q. What was the other man's name—does he remember the
names of- the other men who were there? A. The old man says
he doesn't know exactly the name, but there were two or three
houses there at the time. He says there was a white man living
in there—that'is what he says.
40 Q. How many houses were there at the time of the gold rush ?
A.   He says three or two—no, three or four, he says.
MR. McCROSSAN:   What did you say two for ?
THE INTERPRETER: No, he says three or four . I have
to say what he says.
MR. McCROSSAN:   You said two.
THE INTERPRETER:   I made a mistake—no, he says  69
Tom Abraham —Direet Exam.
three or four.  I made a mistake in saying two.
MR. McCROSSAN:   Why did the interpreter say two?
Why did you say two ?
THE INTERPRETER:   Four.
MR. McCROSSAN:   Just tell him to say how many there
THE INTERPRETER:   Well, I have just told him to show
to these people what he see. (Witness holding up fingers indicat-
10 ing four).   Four.
MR. McCROSSAN:   Now, he says five, is that it?
THE INTERPRETER: No, he says four. He puts up
four fingers.
MR. LONG: Does he mean that there were three or four
houses there near Deadman's Island?
MR. McCROSSAN: I think he should ask him where they
were.
MR. LONG: Well, ask him where those three or four houses
were. A. They were houses right in Stanley Park. .
20 THE COURT: Yes, ask him if he knows where. You can
direct his attention to it. Ask him if he knows where Deadman's
Island is and then direct his attention to the location of them witli
regard to that.
MR. LONG: Ask him if he knows where Deadman's Island
is? A. He says that is Island (indicating) and he says the
house is up here. (Witness indicating direction by use of cane).
THE COURT: About opposite the Island? A. No, no,
this is east.   That is the Island there.
Q.   The houses are in a straight line from the Island or east
30 of the Island?    A.   East of the Island; he says the Island is up
here.
MR. LONG: And were those houses there at the time of the
Gold Rush in Cariboo ?    A.   Yes.
Q. And was Joe Silva living there in one of those houses
at the time of the Gold Rush in the Cariboo? A. Yes, on the
west side, on the west side, on that side.
Q.   Well, I want to get that side—as between the gun—ask
" him if he knows where the gun is ?    A.   Yes, this side.
Q.   This side?
40       MR. McCROSSAN:   He says they were on the west side.
That was Silva's?    A.   Yes, he says the gun was on that side.
Q. That is, Silva's house was nearest the gun, is that what
he means? A. No, Joe Silva's house was on that side. That is
right.
Q.   You said west?    A.   That is west.
Q.   A row of houses ?    A.   Yes, it was on that side.  70
Tom Abraham —Direct Exam.
MR. LONG: Q. Ask him if he remembers Peter Smith—
Old Peter Smith ?    A.   Yes, he knows him.
Q. Ask him if he lived there at that time of the Cariboo Gold
Rush?    A.   Yes.
Q. Were there any Indians living between Aunt Sally's
house and Brockton Point at that time of the Cariboo Gold Rush?
A. You say between Aunt Sally's house—Aunt Sally's house and
Brockton Point—Were there any Indians living in the Park ? A.
10 There was a lady there living in there—a white woman. There
was a lady there—an aged lady living in the far side of Stanley
Park.
Q. Does he mean Aunt Sally or someone else? A. No, he
means there was a lady on the other side of the Point.
Q.   Between that and Aunt Sally?:   A.   Yes.
Q. If there is any doubt about it—because there is some
difficulty in dealing with this man—just ask him if he knows
where the gun is at Brockton Point.    A.   Yes.
Q.   He knows where Deadman's Island is—and where the
20gun is?    A.   Yes.
MR. McCROSSAN: He has already fixed the location east
of the Island and that tallies with Fisher's.
THE COURT: Yes, I gathered he was placing them where
Fisher was—
MR. McCROSSAN:   East of the Island.
MR. LONG:   Not east of the Island.
THE COURT:   Clear it up then.
MR. McCROSSAN:   That was the phrase he used and he
used it two or three times.
30       MR. LONG:   I want you to direct his attention to the two
points—to Deadman's Island and the gun.   Now, taking these two
points where were these four houses in relation to them?
MR. McCROSSAN: I object to that. ' He might as well
point to the map under his nose.
THE COURT-. I don't know. I think you "can say—here is
one point on Deadman's Island and one at Brockton Point and
ask him where they were in reference to those two points.
MR. McCROSSAN:   The best way to do would be to hand
him a map.
40 '     THE COURT:   Well, I think he would have a great deal of
difficulty in handing a map to an old man like that.
THE INTERPRETER:   He cannot see a map.
MR. LONG: Now ask him if he knows where Deadman's
Island and where the gun was ?    A.   Yes.
Q. Now, I ask you, to ask him—knowing those two landmarks, where those houses were that he has spoken of—where they  71
Tom Abraham —Direct Exam.
were situate at the time of the Cariboo Gold Rush? A. The gun
is on the north side of the Inlet and the Deadman's Island goes
west and the house is between.
Q.   Between?    A.   Yes.
Q.   Your witness.
MR. McCROSSAN:   Well, I will not cross-examine under
this interpreter.   I will want a check interpreter at least, if you
don't mind adjourning now until the morning when I can have
10 an interpreter here.
THE COURT:   Tell him to come back tomorrow morning.
THE WITNESS:   Do you want me to, he says?
THE COURT:   Yes, and you have to be the interpreter.
Mr. McCrossan is just going to get a check interpreter.
' MR. LONG:   We have another interpreter here, a lady.
THE COURT:   WeU, you come back tomorrow.
(Court adjournedtill 11 a.m. tomorrow).
I hereby certify the foregoing to be a true and accurate report
of the said proceedings.
20 E. BLYGH,
Deputy Official Stenographer.  72
Tom Abraham —Cross Exam.
IN THE SUPREME COURT OF BRITISH COLUMBIA
(Before the Honourable Mr. Justice Murphy)
491-23 Vancouver, B. O, November 6th, 1923
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
vs.
GONZALVES
Plaintiffs;
Defendant
CONTINUATION OF PROCEEDINGS AT TRIAL
10        GEO. E. McCROSSAN, Esq., appears for the Plaintiff.
G. ROY LONG, Esq., appears for the Defendant.
MR. McCROSSAN: I wish to ask, my lord, this morning, I
have discussed it with my learned friend and he says he is willing
that the interpreter be changed to Mr. Andrew Paul. Mr. Paul
does not want to check with me because he knows a lot of these
people and he does not want to be in a position of taking sides.
THE COURT:   If it is satisfactory
MR. LONG:   I want to meet my friend.
MR. McCROSSAN: Mr. Paul is secretary of aU the Indian
20 organizations in British Columbia—of the B. C. and Squamish
THE COURT:   All right.
MR. McCROSSAN: I take him because he at one time
worked for the Government.
THE COURT:   All right.   Put the old man in the box first.
ANDREW PAUL, sworn"as Interpreter.
MR. LONG:   What language you going to use
A.   Squam-
Yes.   I understand that is what the witness
ish?
MR. PAUL:
30 will speak.
MR. LONG:   He speaks several.
TOM ABRAHAM, resumes stand.
CROSS-EXAMINATION CONTINUED BY MR.
McCROSSAN:
Q.   What part of the country were you living in at the time  73
A.
A.
Tom Abraham —Cross Exam.
of the Cariboo Gold Rush?    A.   I was over on that reserve (re
ferring to Number 3 Reserve).
Q.   Is that what is known as the Capilano Reserve
No, that one is further up.
THE COURT:   That is the Seymour.
MR. McCROSSAN:   Q.   Is it the Seymour Reserve
Yes.
Q.   Were there any white people living around the Inlet at
10 the time of the commencement of the Cariboo Gold Rush?    A.
No.
THE COURT: He may be misunderstanding you there; he
told us yesterday there were four houses down here in which other
than Indians were living.
MR. McCROSSAN: That was what I wanted to be clear
about, I wasn't quite clear myself.
THE COURT:   Ask him that.-
Mr. McCROSSAN:   Were there any Portuguese living on
the Inlet at that time ?    A.   That is where they lived.
20        Q.   Where was that ?    A.   Across on the other side.
Q. Across the other side where, at .Gastown? A. On the
other side, where they were always.
Q,   Where was that?    A.   At the park.
Q. How many Portuguese people were living at the park at
the commencement of the Cariboo Gold Rush ?. A. I think about
four.
Q.   Who were they?    A.   I have forgotten their names.
Q. You don't remember the name of any of them? A. I
can remember Portugese Joe and Shwuthchalton's son-in-law.
30
Q.   That was Portugese Joe Fernandez, wasn't it's
Yes.
Q. Portugese Joe afterwards sometime ran a saloon at
Brockton Point, near the gun, didn't he, near where the gun is
now?    A.   No, a store.
Q.   Portugese Joe never sold any hooch ?    A.   No.
THE COURT: You had better interpret that if you go to
the Privy Council.
MR. McCROSSAN: What were the shacks made of that
you saw at that time? A. They put on boards on top of one
4C another like that.
THE COURT: Q. Were they boards or logs? A. The
ordinary fir, the ordinary material made for houses.
MR. McCROSSAN: Q. Was it sawn lumber? A. Mill
cut.
Q. Now, you living on the Seymour Reserve sometimes went
to Moodyville, I suppose ?    A.   Yes.  74
Tom Abraham —Cross Exam.
Q. You remember when the Moodyville Mill started? A.
I do know.
Q. Do you remember when the Hastings Mill started, that
is, what is now the present Hastings Mill, the one that sat on the
same place ?    A.   I do know.
Q.   Which started first?    A.    Moody's Mill.
Q.   Moody's Mill started two or three years before the Hastings, didn't it?    A.   It wasn't-long after when the mill on this
10 side got finished.
Q. Now, you mean—I have perhaps—possibly you are confused a little, it was a little before the mill on this side got finished
that the Moodyville "mill started to run, is that right?    A   Yes.
Q. Now, how long before—six months, one year, two years?
A. It wasn't long after Moody's Mill was finished that the mill
on this side of the Inlet was finished.
Q.   Very close together ?    A.   Yes, close together.
Q.   Now, the Hastings Mill, I suggest to you, was started in
1867—does that recall anything to your mind in point of time?
20 A.   Nothing.
- THE COURT:   Tell him it was nine years after—nine winters after the Cariboo Gold Rush—he may know then.
THE INTERPRETER: He acknowledges the information, yes.
MR. McCROSSAN:   Q.   Now, isn 't it a fact that the one or
! two or three Portuguese who came here about that time came here
in ships to load lumber and were deserters?    A.   There were
some of these went to the mill, those that you named Portuguese.
Q.   Wasn't Portugese Joe and Portugese Pete, weren't they
30 deserters from the ship that came to the Inlet to load lumber ?   A.
Repeat the question please.
Q. Were not Portugese Pete and Portugese Joe Fernandez
these men that lived at the park at that time, didn't they come to
the Inlet in ships that came to load lumber and deserted these
ships ?    A.   No.
Q.   You do not think so ?
MR. LONG:   He didn't say that, he said no.
MR. McCROSSAN:   Q.   Do you know Chief  Tom, who
died a few days ago ?    A.   Yes, I know.
40        Q.   Was he a good man ?    A.   He was a good man.
Q. Chief Tom lived here a long time, did he? A. He has
been residing at the Mission a long time.
Q. Chief Tom would know many things about the early days
and the people of the Inlet here ?    A.   He must know.
THE COURT: Q. Do you know what brought these
people to live out at the park here on the Inlet, what they came  75
Tom Abraham —Cross Exam.
for?    A.   They arrived here and immediately  resided  at  the
park.  •
MR. McCROSSAN: How did they arrive here, how did
they come here? A. They came by way of a boat and immediately resided here.
THE COURT:   A big boat or a row boat?    A.   A big boat.
MR. McCROSSAN:   Q.   The boat came to   take   lumber
from the mill, did it ?    A.   No.
10        Q.   That big boat came to trade, to carry goods and take
goods ?    A.   Yes.
THE COURT: Q. Do you know whether it belonged to
the Hudson's Bay or not?    A.   No.
THE COURT:   It did not.
MR. McCROSSAN: Q. But it did come to trade, to bring
goods and to take goods back?    A.   No.
Q. Why did you say it did? Perhaps you did not understand?    A.   No.
THE COURT:   Why did it come for, do you know?    A.
20 From town.
THE INTERPRETER: The Indians generally refer to
New. Westminster as town.
THE COURT: Q. It came from Westminster down here;
do you know what it was doing here, what it came to the Inlet at
all for? A. They came here for some work to do or for some
means of acquiring money.
MR. McCROSSAN: Q. What did the big boats come for?
A.    They were paddling it.
- Q.   No, you said they came in a big boat, not in a canoe ?    A.
30 You know very well you can call it a big boat and yet paddle or
come here by means of the wind, with the assistance of the wind.
Q. You were asked whether they came in a canoe, a small
boat or a big boat, what kind of a boat did they come in, one that
runs out to the ocean, or what kind of a boat ? A. No, it is not
what you would call a big boat, it is a boat that could be manned by
men and a sail hoisted up to convey themselves from one place to
another.
Q. They came from Westminster in that boat, did they ? A.
Yes.
THE COURT: Q. Were there white people at Westminster then ?    A.   Yes.
Q. Soldiers or men in uniform, I mean? A. There were
some soldiers further up the river and white people lower down
the river.
MR. McCROSSAN: Q. Now, Portugese Pete that you
mentioned married Shwuthchalton's daughter or went to West-
40  76
Tom Abraham —Cross Exam.
minster to Shwuthchalton's daughter?
MR. LONG:   There are three called Portugese Pete.
MR. McCROSSAN:   Q.   Portugese Pete Smith, I mean.
MR. LONG:    I beg your pardon, Peter Smith.
MR. McCROSSAN: Portugese Peter Smith, do you know
him, Portugese Pete Smith?    A.   Yes, I know him.
Q. . Didn't Portugese Pete Smith marry Shwuthchalton's
daughter, an Indian by the name of Shwuthchalton ? A. He be-
10 came the son-in-law of this man.
Q. Shwuthchalton lived somewhere near Westminster,
didn't he, or where did he live? A. He was residing in Stanley
Park.
Q. Before he was residing in Stanley Park, where did
Swuthehalton live? A. He was before up at Squami'sh River
and when his daughter came here he came here.
Q. I am reading from a statement made by Chief Tom—do
you agree with this or not?
MR. LONG: Just at this point, that goes in as evidence, or
20 goes down on the record as what Chief Tom said.
MR. McCROSSAN:   It is not evidence at all.
MR. LONG: Chief Tom is, not here to come and give a
statement.   You said Chief Tom said that.
THE COURT: Well, put it the other way, "if Chief Tom
said." It is not evidence, there is no jury here, it is difficult when
you have to do through an interpreter.
MR. McCROSSAN:   Q.   Do you agree with this statement
of fact, "After Hastings Mill was built, also Moodyville Mill,
there was a settlement of white people at the place they called
30 Gastown.''  Do you agree with that, is that right ?    A.   Yes, that
is correct.
Q. "There arrived what the Indians were told was a ship
from Portugal to load lumber from Hastings Mill." Do you remember anything like that ?    A.    I don't remember.
Q. '' Some of the crew left the ship, and among the crew was
one who was afterward Peter Smith.''
MR. LONG: That is a question you are putting to him, not
a statement.
MR. McCROSSAN: Q. Do you remember that? A.
40 Yes, there is lots of sailors deserted ships, but these were not the
men.
Q. If Chief Tom said that, Chief Tom' did not know, is that
right?    A.   Yes.
Q. It was some years after Hastings Mill was built that
Shwuthchalton—the present Peter Smith's grandfather—built a
house at about the present location of Peter Smith's house in the  77
Tom Abraham —Cross Exam.
park, is that right?    A.   No.
Q. At what time did Peter Smith take Shwuthchalton's
daughter for a wife ? A. They were residing there when he took
her as his wife.
Q. When Shwuthchalton was residing there he only lived in
between times and went away on his other business, didn't he?
THE COURT:    That is at the park?
MR. McCROSSAN:   Q.   At the park?    A.   Yes.
Q.   And isn't it a fact that Pete Smith had to go where
10 Shwuthchalton lived to get his wife and give him blankets according to the Indian custom ?    A.   I don't know.
Q. Isn't it a fact that all the houses you saw there, one, two,
three, how many did you see ?
MR. LONG:   When, at the time of the Cariboo Gold Rush?
MR. McCROSSAN: Q. At the time you say Shwuthchalton was living there for instance, who was living there at the
time, and how many houses ?    A.   I said four.
Q.   Was Swuthehalton living there, he was living there first,
was he ?    A.   It was after the time that Portugese Pete became
20 his son-in-law that he resided there.
Q. Well, now, you told us a little while ago after Portugese
Pete went to Stanley Park to get his wife—that Portugese Pete
went to Stanley Park to get his wife, and Shwuthchalton and his
daughter were living at Stanley Park.
THE COURT: No, I didn't understand that at all, so far
as I understand it he has stuck to his story straight through. I
did not understand him to make any statement of that kind.
MR. LONG: That Pete Smith was living there when he
married Shwuthchalton's daughter.
30 MR. McCROSSAN: Q. Did Shwuthchalton come there
after Pete Smith or before? A. It was after Portugese Pete
had been residing there. Portugese Pete came there first.
Shwuthchalton's residence was at Kitsilano, another residence
was at Kitsilano, it was after Portugese Pete came there that
Swuthehalton came there'.
Q. Now, at that time when you first knew that Portugese
Pete was there how many houses were there at the Park? A.
There were four houses there.
Q.   The earliest you remember, then, is that there were
40 always four houses there, is that right ?    A.   Yes.
THE COURT: Q. Did you see them building the houses ?
A.   At times when I came I could see them.
Q. MR. McCROSSAN: Q. Then your recollection is
that all four went up at the same time, is that right ?
MR. LONG:   He didn't say that.  78
Tom Abraham —Cross Exam.
MR. McCROSSAN: I am getting his recollection/that is
all.
THE WITNESS: Yes, they made those four houses and
those four houses remained.
Q. And they were all put up about the same summer, or the
same winter, I think it was? A. There was one at first and
then on the arrival of these others they would build the houses.
I
10 house ?
Q.
I
A.
A.
That is what I want to get clear; which was the first
A.   It was Shwuthchalton's son-in-law's.
That is Portugese Pete, is it?    A.   Yes..
Which was the next one?   Portugese Joe Fernandez?
Yes, and then he made a store.
Q.   And the store was one of these four that you talk about?
Yes.
Q. Now, what length of time—how many winters in between
Portugese Pete building a house and Fernandez, the second one ?
A.     I think about one winter.
MR. LONG:   I understand he said that, one winter and the
20 store was built.
.   THE INTERPRETER:   Yes.
MR. McCROSSAN:   Let us clear that up; was it one winter
after that the store was built from the time that Peter Smith put
his house up ?
MR. LONG:   No, he did not say that at all.
THE COURT:   First, did Peter Smith have the house and
the store separate, or were they together?
THE INTERPRETER:   The question was, Mr. McCrossan
asked, how many winters was it after Portugese Joe established
30 himself there that the store was built.
MR. McCROSSAN:   Yes, that is right.
THE INTERPRETER:   and the answer was, one winter.
THE COURT:   Did Portuguese Pete have a house and another building for a store, or were all in the one ?    A.   He had one
house.
Q.   And the Store?    A.   Portuguese Pete had one house.
Q.   Did Fernandez have a house and a store separate or were
they all in one building?    A.   The store and his place where he
lived was in the one, under the one roof, the place where he lived
40 adjoined the store.
Q. Did you count them as two or one when you said you saw
four houses there?    A.   I called that one.
Q.   So there were three others besides that, then.
MR. McCROSSAN:   Q.   When did the other two go up, how
many winters after? A.   It was when the mill was working that
these people arrived who have now died.  79
Tom Abraham;—Cross. Exam.
Q. I would like that a little clearer; I don't understand that.
It was after the mill was working that these people who are now
dead—who are you referring to—the other two who came? A.
I don't know their names.
Q. Is this what you mean; that the two that put up the other
two of the four houses—you said there were four buildings there
including the store as one of them—that Portuguese Peter was
first, and Fernandez was second with his store and his residence
10 as one building, and there were two other buildings is that the
two you refer to as coming after the mill was up and then died?
A. Yes, policeman Tom's son-in-law (referring to a man in North
Vancouver) Joe, his Brother-in-law, and himself.
Q. These two other of the four houses, you have referred to
the two that were already up, then there were two more, did they
come after the mill was up, when the boat came in?    A.   Yes.
THE COURT:   But you told me before the Cariboo gold
rush there were four houses out there.   The mill wasn't built for
nine winters after the Cariboo gold rush—how do you explain
20 that?    A.   I don't tell for nothing.
Q. It does not agree; I only want you to explain it. A.
What I have said in the first place is correct. I don't include
anything else.
" MR. McCROSSAN: Q. Which was the building closest to
the Inlet, that is, to the Narrows, the store or one of the other
buildings? A. The water was there and then the houses were
like this (indicating).
Q.   And which was the one farthest east, the one out towards
the Inlet, towards where the gun is now; which was the closest to
30 where the gun is ?    A.   I am talking about the Indian graveyards
on this side of the gun.
Q. Which of the four buildings was closest to the gun, was it
the store or one of the others? A. The man we refer to as
Shwuthchalton was this way a little bit but not very close.
Q.   That would be on the Coal Harbor Side or the other side ?
THE COURT:   Put the Bible there and tell him that is the
gun: ask him whose house was next; use a cup for the house.    A.
The gun is over here and this is the store, the others were just
about high water mark.   The store was a little bit above; the gun
40 is over here.
MR. McCROSSAN: Then the store was farthest away from
the gun is that right?    A:   Yes.
THE COURT: Get him to name the others if he can. A.
This belongs to Shwuthchalton's son-in-law, Portuguese Pete
Smith.
Q. That is nearest the gun? A. This man is dead and
this man is dead.  80
Tom Abraham —Cross Exam.
Tom Abraham —Re-Exam.
Q. Do you know their names? A. And this storekeeper
is dead and I think they are all dead.
Q. Do you know the names of the men who lived in the other
houses? A. I don't know, it is impossible for me to know the
English names.
Q.   Do you know what"the Indians called them?    A.   No.
THE COURT:   All right.
10        MR. McCROSSAN:   Q.   And this store was the Fernandez
store—Portuguese Joe Fernandez's store?     A.   Yes.
Q. You said this was about on the water line, these houses,
is that right?    A.   Yes, close to the water.
Q. Right close down to the water? A. The road was
back this way and the houses were out.
Q. I don't understand that. Take it from the water line,
where were the houses, right close to the water, right on the
water line ?
MR. LONG:   Well now—
20        MR. McCROSSAN:   Q.   High water mark 1   A.   Halfway.
Q. What do you mean by halfway; the buildings were half
way over the high water mark?    A.   Yes, I see them.
Q. If you don't remember say so. Were these houses part
way over the high water mark, on posts like? A. (Making a
line for high water mark) The high water would come about to
the middle of these houses.
THE COURT:   Now you have got it.
Q.   You said those houses were made of sawn lumber; do you
know where they got the lumber to make them?    A.   They went
30 to the mill.
MR. McCROSSAN: Moodyville, or Hastings. A. I don't
know if it was from this side or the other side.
Q. Meaning Hastings or Moodyville, is that right? A.
Yes.
THE COURT: Now look again; you said those houses were
there before the Cariboo gold rush. Those mills were not put in
until nine winters after that. If they got the lumber from the
mills, they could not have been there then. A. I have said that
and that is the truth, I am not going to change it.
40 RE-EXAMINED BY MR. LONG: Q. Do you remember
the time the Moodyville Mill was built? A. No, I don't remember.
Q. Do you know how many years before that mill was built
was the Cariboo gold rush, how many winters? A. It was no
business of mine to keep record of these things. White people
can go wherever they want to, and they went where they went.
(Witness aside)  81
Celestine—Direct Exam.
CELESTINE, a witness on behalf of the Defendants,
called and duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. LONG:
Q.   Do you live on the North Vancouver reservation?     A.
Yes, I live there.
Q.   How old are you?     A.    Seventy-seven.
Q.   Is this vour daughter (indicating) ?     A.    Yes.
Q.    That is Mrs. Carrasco?    A.    Yes.
10        Q.   Where were you born >.     A.    In this country.
Q.   Where have vou lived all vour life?    A.    I used to live
inWhawha(?).
Q.    That is the Indian village in Stanley Park where we have
now the Lumberman's Arch, isn't it!    A.   Yes.'
' Q.    How old were you when you married i     A.    15 years.
Q.   Where did your husband go after marriage?    A.   He go
to make his house down close,to the. water front.
Q.    Where was that, do you know the streets here now—
where you and your husband lived?     A.    On that creek.
20 Q.   Was it on Coal Harbor?     A.    Down at the water-front.
Q.    Do you remember the name of the street now? ,  A.    No.
THE COURT:   Who was her husband, is he concerned in
this thing?
MR. LONG:    No, he has been dead many years.
Q.   Do you remember the Cariboo Gold Rush?     A.    Yes, I
remember, I was a young girl.
Q.   Were you married at that time?     A.    No, I was very
small.
Q.   -How old is 3rour daughter?     A.    Fifty-eight.
30        Q.   Where was she born?     A.    Down there at the waterfront.
Q.   Do you remember at that time if there was any person
living in Stanley Park? A.,   Yes, I know.
Q.   Who was living there?
THE COURT:   What time are you referring to?
MR. LONG:   The time of the birth of this daughter of hers,
Mrs. Carrasco.
THE COURT:   That would be in 1865 if she is 58 years old
now.
40        MR, LONG:   Q.   At the time your daughter was born at
the water-front here, tell the Court who was living over in Stanley
Park?     A.   Peter Smith's grandfather.
Q.   Anyone else ?    A.   His daughtei* got married after me
to the Father of that man, Peter Smith.-
Q.   Was anyone else living there?    A.   I seen lots of white am 82
Celestine—Direct Exam.
people, but one was called Joe Silva.
Q.   Where did he live?    A.   On this side.
Q. Do you know where Deadman's Island is? A. Yes, I
know.
Q. Do you know where the gun is now in Stanley Park at
Brockton Point?    A.   Yes, I know.
Q.   At the time your daughter was born how many of these
houses were there over there ?    A.   There was those three houses
10 that were the first ones to be built.
Q. Were they built at the time your daughter was born? A.
At about the same time.
Q. Who were they? A. Joe Silva and Peter Smith and
another old man called Joe.
Q. Was that Fernandez? A. Yes that is the man they
called Fernandez, called bv that name.
THE COURT:   Q.   You say those houses were built about
the time your daughter was born?     A.    My niece was married
a little after me and it was about the time of her marriage that
20 that house was built.
MR, LONG: Q. Whose house was built? A. Peter
Smith's house.
Q. How long did you live down on the water-front after you
were married, I should-say after your daughter was born? A.
Two years.
Q. Do you know where the Immigration Sheds are now,
down on the water-front?    A.   You mean recently?
Q.   Yes, the present C.P.R. Immigration Sheds down on
Coal Harbor at the entrance there?    A.   Yes I know that.
30        Q-   Where was your house, where did you live—was it anywhere near where these sheds are now?     A.    On this side.
THE COURT: Q. Towards the Park or towards the City?
A.   Towards the Park, Yes.
MR, LONG: Q. You have told us you lived at the mouth
of the creek there? A. Therewasacreekthereandourhou.se
was on the top of the hill.
Q. Do you remember a brewery being built on the waterfront there some years after?    A.    Yes, I know.
Q.   Was the brewery right on that creek?     A.   Yes.
40        MR- LONG:   1  think it is common ground that that is
Seaton St.
Q. Did you live near where the brewery was afterwards
built?     A.   We were there before the brewery came there.
Q. Do you know where Peter Smith now lives in the' Park?
A.   Yes I know itv
Q. Do you remember when Peter was bom? A. Yes, I
know very well, and the older daughter.  83
Celestine—Direct Exam.
Celestine—Cross Exam.
Q. Did anyone ever live in the place where Peter now lives?
A.   Yes, those people I have named before.
Q. Do you know where Joe Silva lived over there? A.
Yes, I knew his house.
Q.   Does anyone live there now?    A.   Yes, his grandson.
Q. What is his name? A. I don't know what my grandson's name is, Joe's son.
10 CROSS EXAMINATION BY MR, McCROSSAN:
Q. Did I understand you to say that about 1865—that is
when your daughter was born—
THE COURT: She was born earlier than that, she was born
in 1862-^-well, we haven't had her—
MR. LONG:   No '65 my lord, 1865.
THE COURT:   Oh yes, all right.
MR. McCROSSAN:' Q. At the time your daughter was
born did I understand you aright to say that there were three
houses built about the same time as your daughter was born? A.
20 Yes, I say that.
THE COURT: Q. What were they built of, logs or sawn
lumber?     A.   Lumber from Moodyville Mill.
MR. McCROSSAN: Q. And' they belonged to Joe Fernandez., Joe Silva and Peter Smith, is that right? A. Yes, those
three men.
Q.. Now, was one of these three buildings a store ? A. Yes
a store.
Q.   Who owned the store ?    A.   Old man Joe.
Q. That is Joe Fernandez? A. Yes, the man by that
30 name.
Q. Now, where were the three buildings located, near the
high water mark?
THE COURT: Use the cups, it is much easier for her. Point
out the high water mark and the gun.
MR. McCROSSAN: Q. Indicate where they were with the
cups and the book for the gun and the tape for the high water
mark. A. That is Joe's, the storekeeper,, Joe Fernandez, that
is Peter Smith's and that is Joe Silva's house.
Q. How close were they to the water, just that close? A.
40 They were a little above.
Q. How far back ? A. They were right on top of the bank
not far from high water mark.
THE COURT: Q. Were there any posts underneath them,
did the water come under any part of them? A. Only Joe's
house the water would come around the posts a little bit.  84
. Celestine—Cross Exam.
Mrs. Emma Gonzales—Direct Exam.
Q.   That is Joe Silva's house?    A.   Yes.
Q.   That is the one we are concerned with in this?
MR. McCROSSAN:   Q.   And the water would not touch
any of the others, is that it?    A.   No.
Q.   How far up would the .water come up in Joe Silva's
house?    A.   The water would barely touch the posts.
in .      Q-   Then it was partly on posts, was it, to keep it dry?    A.
l« Yes they were on posts.
Q. And some of the posts were in the water? A. No, only
when the tide came in the water would touch them.
Q.   Now which house, did all these three houses go up at the
same time; did they all come to live there about the same time«'
A.   I think Joe was the first one.
Q. Which Joe? A. Silva Joe, and Peter Smith's house
was a little bit afterwards.
Q.   And when did the store go up?    A.   Pretty close.
on ™    **'   AU about the same time; k°w did Peter Smith and Joe
20 Fernandez and Joe Silva come to Vancouver, how did they get
here?     A.   Whichever way the white men came here I guess
that is the way they got here.
Q. That is the way I think they got here too. They came in
a boat, didn't they?
THE COURT:   You better ask if she knows.
MR. McCROSSAN: Q. Do you know? If you don't know—
A. Only Peter Smith I know came from Cariboo where these
people were looking for money.
Q.   Peter Smith came from Cariboo
30 over, did he?    A.   Yes.
THE COURT: Q. How many winters after the first people
went to Cariboo did he come back? A. One year that I know
of, one winter
MR. McCROSSAN: Q. Do you know how the others came
or where they came from? A. They came from Westminster
they were at Westminster when they came here.
Q. Isn't it a fact that they came and a well known fact at
that tune that they came in a big ship that came to load lumber
and they deserted as part of the crew ?    A.   That I don't know.
MRS. EMMA GONZALES, a witness called on behalf
.of the defence being first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. LONG:
Q.   Do you five on the North Vancouver Reservation?     A.
after the gold rush was  85
Mrs. Emma Gonzales—Direct Exam.
Yes, I do.
Q.   Where were you born?     A.   At Capilano.
Q. Have you lived around Vancouver all your life? A.
Yes, I have, I have never gone anywhere.
Q.   How old are jrou?    A.   Eighty years old.
Q. Do vou remember the Cariboo Gold Rush? A. Yes I
do.
Q.   At that time were there any people living'in Stanley
10Park?     A.   These people that resided eventually at Stanley
Park were those people that had been to the Cariboo.
THE COURT:   Who were they—ask her who they were.
-    A.   Peter Smith is one, Joe Fernandez, Joe Silva.
MR, LONG: Q. Did they build any houses over in Stanley
Park? A. Soon after their arrival from Cariboo they build
houses at the Park.
Q. Do vou know where Joe Silva's house was? A. Yes
I do.
Q.   Who lives there now?    A.   I don't know who resides
20 there just now, but there used to be a white woman living in there.
Q.    Do you know where Peter Smith lived?     A.    Yes, I do.
Q. How far from Joe Silva's place did he live? Probably
we had better illustrate again with these cups.
THE COURT:   Yes and use the tape.
THE WITNESS:   It wasn't very far—
MR. LONG: Q. Do you know where the gun is now in the
Point there?    A.   Yes, I do...
Q.   How many houses were there out there in Stanley Park
right after the gold rush?    A.   Three.
30        Q-   Whose were they?    A.   Old man Peter Smith was one.
Q. Taking this book as where the gun is now, Deadman's
Island is away over here^put these cups—
THE COURT:   The tape is the "high tide.
MR. LONG: Q. Put these houses there and tell whose they
are. A. It is this way, this house here is Joe Fernandez' house,
this is Peter Smith's house and Joe Silva.
Q. That is the gun, whose house was next to the gun? A.
Joe Fernandez.
Q.   Who was next?    A.   Peter Smith and Joe Silva was the
40 third one.
Q. Do you remember the time of the gold rush to the Cariboo when all the people went there from here? A. Yes, I do
remember.
Q. Were these three houses there then? A. Yes, they
were there.
MR. McCROSSAN: Let us get that clear, I don't understand that; that is at the beginning?  86
Mrs. Emma Gonzales
Mrs. Emma Gonzalei
-Direct Exam.
-Cross Exam.
THE COURT: She said these people built these houses after
they came back; now she says they were there before they went
up at all.
THE WITNESS: It is when they came back from the Cariboo Rush that they built these houses.
Q. What we're they built of, logs or lumber? A. There
was an Indian man that would split the cedar logs for them and
10 they used that to build their houses.
CROSS EXAMINED BY MR. McCROSSAN:
Q. Who was the Indian man you just referred to? A.
Shwuthchalton, Peter Smith's grandfather.
Q. Did Silva live in Shwuthchalton's house? A. No,
never.
Q. Who did Shwuthchalton live with then? A. His son-
in-law, Peter Smith.
Q.   He lived in Peter Smith's house?     A.   Yes.
Q.   Well, Shwuthchalton split all the cedar logs that made
20 these houses, is that right?    A.   Yes, he did.
THE COURT: Q. Did they use any lumber in them at all
to make doors or was it all split cedar? A. Yes that was all
made from primitive material, and it was after that they used
lumber from the mills.
Q. How long after the houses were built—was the mill here
when the houses were first built?    A.   No, no mill here then.
MR. McCROSSAN: Q. All the other witnesses said the
shacks were built of mill material.
THE COURT:   Sawn lumber,
30        MR. McCROSSAN:   Sawn I umber.    A.   I don't know anything like that.
Q. Might they be right and you be wrong? A. That is
the way I seen them as I am telling you.
Q. Isn't it a fact that these people who were there first
moved around a lot and changed houses, some left and went away,
isn't that a fact?     A.   No, I never seen them for that.
Q. For instance, didn't Peter Smith, didn't Shwuthchalton's
daughter die and he married again, isn't that a fact?     A.   No.
Q.   That is not a fact?    A.   No.
40        Q.   And that he built another house after he married again?
A.   No, his house is still there.
Q. Is that the same house that was there at the time you
are speaking about after the gold rush? A. You see when these
primitive boards became ancient they tore them down and built
another house of mill lumber right on the very same place.  87
Mrs. Emma Gonzales—Cross Exam.
Q. When did they build it of mill lumber, how many years
afterwards? A. It is about 50 years since the Hastings has
been here.
Q. What I mean—you don't understand—what I want to
know is, how many years after they first put up these three shacks
did they change them and rebuild them "with mill lumber? A.
You see they have been about like this 50 years and I think these
Indian made boards were there about 10 years.
10        Q.   About 10 years?
MR. LONG:   That is, the miU lumber has been there about'
50 years.
THE COURT: No, she says the mill has been here about 50
years and 10 years after the original building the lumber was substituted.
THE WITNESS: The mill lumber was there 50 years and
10 years before that it was primitive made boards.
THE COURT:   When was the first mill built?
MR. McCROSSAN: '65 the Moodyville, '67 the Hastings.
20 THE COURT: That couldn't be, you see, because the Cariboo gold rush was in 1858, the first time white people went up the
river at all, and they did not go to Cariboo until '61—she says
these people came back from being up the river and built these—
they cannot have done it in 1855.
MR. McCROSSAN: Q. Where were these houses with reference to the water—I don't think that was brought out?
THE COURT:   Not yet, no.
MR. McCROSSAN: Q. How close were the three houses,
of Smith, Silva and Fernandez, to the water, to the high water
30mark, using the tape? A. I haven't taken the trouble to find
out where they were in connection with the high water mark, I
only notice they are there now as where they were before, where
they have been all the time.
Q. That is not good enough; you took the trouble to remember that Shwuthchalton cut them out of cedar logs, etc., so you
paid rather close attention. I would like you to say what is your
best recollection as to just where these three shacks were situate
with reference to the water-line? A. Above the high water
mark.
40 Q. Was any part of any of the houses below high water
mark, were the houses on posts? A. Only Joe Silva's house
was a little bit below high water mark.
Q. What was the occupation—what was the business—what
did these people do, Smith and Silva and Fernandez.? A. They
were getting fish, fishing, and the}' would get the fish oil and sell
the fish oil—dog-fish.
THE COURT:   Q.   Where would they sell it?     A.   They  Mrs. Emma Gonzales—Cross.Exam.
Mrs, Annie Carrasco—Direct Exam.
would sell it to the mill.
MR. McCROSSAN: Q. Were they selling oil to the mill
when they put the houses up, right away? A. They were told
to get that.
Q.   Who told them?    A.   The men that owned the mill.
Q.   Did they sell oil to the mill the first year after they put
their houses up ?    A.   They have been there long ago before they
10 started to sell oil.
Q. What were they doing then, just fishing, or did they ever
work in lumber or logging camps? A. They were working
somewhere as everybody else was working.
Q. Did they ever work in logging camps ? A. I never seen
them in logging camps.
Q. In Joe Silva's house you say there used to be a white woman occupying it at one time—how long ago was that ? A. No,
I never said that, it was in Joe Fernandez' house.
Q.   You made a mistake when you said Silva?     A.   No, I
20 said the white woman lived in Fernandez' house.
Q. Did the white woman go away afterwards ? A. I think
she remained there.
Q.   Did she die there?    A.   I think she is alive yet.
THE COURT: Q. Was Peter Smith a Portuguese? A.
Yes, he was a Portuguese.
Q. The whole three of them were Portuguese, were they?
A.   Yes, they were all Portuguese.
(Witness aside)
MRS. ANNIE CARRASCO, a witness called on behalf
30 of the Defence, being first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. LONG:
Q. Your mother is Celestine who gave evidence here? A.
Yes.
Q.   You are an educated woman, are you?     A.   Yes.
Q. You have spent time in school and college? A. 13
years.
Q.   How old are you?    A.   I am 58 last May.
Q. Do you know where you were born? A. My father
40 told me right here, I don't know exactly the place, but about where
the C.P.R. is.
Q. Do you know the street now? A. Seaton Street, at the
foot of Seaton Street.
Q.   Do you remember the  creek?     A.   No, I  don't re-  89
Mrs. Annie Carrasco—Direct Exam.
member.
Q. Some of the witnesses say there was a brewery built
there ?    A.   Not a brewery, it was a fishery they said.
Q.   Spratt's wharf?    A.   That is it.
Q. Do you remember the buildings of the people who lived
in Stanley Park? A. Of course I was in school 13 years and
when I first came I was 10 years old.
THE COURT:   What year would that be?    A.   I don't re-
10 member exactly, I was three when I went into the school.
Q.   You say you are how old now?    A.   I am 58.
Q.   You were born in 1865 ?    A.   Yes.
Q. This time you-are telling us about how old were you?
A. When I came from school I was" only 10, when I came to my
mother the houses were there then.
Q.   That would be 1875.
MR. LONG: Who was living there then? A. Peter
Smith's father.
Q.   The present Peter Smith?     A.   Yes.
20        Q-   Do you know where the present Peter Smith now lives?
A.   Yes.
Q. Where did his father live ? A. He lived in a little old
house they built at the same place.
Q.   They built another place on it?    A.   Yes.
Q. Do you know where Joe Gonzalves lived? A. Yes.
where he lives now.
Q. Do you know who lived there before? A. No, they
were the only ones I knew, Peter Smith's father—
THE COURT:   The other houses were there?     A.   The
30 houses were there, but—
Q.   You don't know who lived in them?    A.   No.
MR. LONG: You remember Mrs. Peter Smith, do you? A.
The late one?
Q.   Peter Smith's mother?    A.   Yes, I remember her.
Q. Did she ever visit your home? A. She visited my
mother's home in North Vancouver.
MR. McCROSSAN: I don't know whether I can finish before lunch, my lord.
THE COURT:   WeU, we will adjourn.
40 (Court adjourned at 12.55 till 2:30 p.m.)
2:30 p.m. (Court met pursuant to adjournment)
MR. McCROSSAN: I do not wish to cross-examine the last
witness.
MR. LONG:   AU right.  90
Edward Trimble—Direct Exam.
EDWARD TRIMBLE, a witness called on behalf of the
Defence, being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. LONG:
Q.
Q.
1
middle.
Q.
10 Q.
I
I
Where were you born? A. In the State of Iowa.
How old a man are you? A. I was born in 1841.
What month?    A.   The 15th of December, right in the
So you are nearly 82?     A.   Yes.
When did you come to British Columbia?     A.   In '60.
In 1860?     A.   Yes.
Where did you come to ?     A.   I went to Port Hope, I
was on the trail there in the Similkameen, from Hope.
Q.   You went to work on the trail at Hope?    A.   Yes.
Q. When did you come down to this locality we now call
Vancouver?    A.   The first time I came over here was in '62.
Q. Can you remember what time it was? A. Yes, the
23rd of December.
Q.   On December 23rd, 1862.   Where did you come from on
20 that occasion?    A.   I came from Victoria.
Q.   Where were you going?    A.   I was going to Cariboo.
Q. Did you come into the harbor in here ? A. Not when I
went up, no, I went up in the steamer to Westminster.
Q. Now, then, did you come from Westminster to here, to
what we now call Vancouver? A. I did in the winter, in the
fall.
Q.   How did you come over?    A.   Came over afoot.
Q.   You walked over from Westminster?    A.   Yes.
Q.   What date would it be when you came over?'    A.   23rd
30 of December.
Q.    1862?     A.    1862.
Q. At that time were any white people living in what we
now call Westminster? A. There was the sappers.and miners
there.
Q. The engineers, the Royal Engineers, were they? A.
Yes.
Q.   You say you walked over to this place here?    A.   Yes.
Q.   Did you notice whether there was anyone living there
then, were there any mills here then?     A.   None.
40        Q.   Any white people living around here then?   A.   I didn't
see none.
Q.   Did you see any houses at all?    A.   I seen three houses.
Q. You saw three houses? A. I saw three over here on
the point and a few houses over on the north side about Capilano
Creek as far as I know.  91
Edward Trimble—Direct Exam.
Q. Where were these three houses you saw, have you been
out to Stanley Park lately, visiting that place? A. I have been
out there.
Q.
Oregon.
Q.
Q-
10       Q.
Where do you live now?    A.
Where is" your home now?
Me?
A.   My home now
Corvallis, Oregon?     A.   Yes.
How long have you lived there ?    A.   About 8 years.
You have been over Stanley Park?    A.   Yes.
Where were these three houses you saw in '62?     A.
Standing right where they are now.
Q.   Near Deadman's Island?     A.   Yes.
Q.   Do you know where the gun is?    A.   Yes.
Q. Do you mean between Deadman's Island and the gun?
A.   Yes.
Q. Who lives there now? A. There is Pete Smith living
there and Joe Gonzalves and his son Alf.
Q.   Did you come back to Vancouver, what we now call Van-
20 couver?    A.   I came back in '73.
Q. What time in '73? A. I landed here in Gastown on
the 4th day of May in '73
Q. What boat did you come on? A. I came over on the
"Grappler."
MR, McCROSSAN:   In '73.
MR. LONG:   Yes, in May, '73.
Q.   Were there any houses over there at the same place when
you came back?    A.   Yes the same houses were there as far as
I could tell.
30        Q.   Did you go over and visit that place then?    A.   I did on
Dominion Day.
Q. How long did you stay here around Vancouver after
that?     A.   I worked here until November, '73.
Q. During that time you beeame personally acquainted with
the people living over there? A. I did with Peter Smith and
Joe Gonzalves and I can't name—
Q. Who was living in these houses then? A. Pete Smith
was living in one.
Q.   Peter Smith?    A.   Yes.
40        Q.   Which house was that ?    A.   The middle one.
Q. Who was living in the one nearest the gun? A. Joe—
I forget—
Q. Was it Joe Fernandez? A. Yes, I know it is something like that.
Q. Who was living in the other house? A. Joe Ornando.
I think his name was— they called him Portuguese Joe.
Q.   Would the other man be named Silva?     A.   Yes, that  92
Edward Trimble—Direct Exam.
Edward Trimble—Cross Exam.
is right.
Q.   Joe Silva?    A.   I can't tell their names, you know.
Q.   Are yo usure he was living there then?    A.   Yes.
Q. Now, do you know where, if you were there now could
you point out where Joe Silva lived?    A.   Yes.
Q.   Who lives there now where Joe Silva lived then?    A.   I
have forgotten his name, I heard it, too.
10       Q-   Was it Gonzalves ?   A.   Gonzalves, yes.
Q. In '73 when you went there, you said you went there on
Dominion Day in '73.    A.   Yes.
Q.   You met these people then did you?    A.   Yes.
Q. What were the houses built of, do you remember? A.
Well, they were built out of lumber there, but there was one house
there I seen built out of split cedar.
Q. On whose property was this? A. It was on Peter
Smith's.
Q.   What did these houses you saw in '73, what did they look
20 like, new houses or old houses ?    A.   Well, they looked as if they
might be 10 or 12 years old.
Q. Did you see any fences? A. Yes, they have a fence
there from Peter Smith's down toward where the gun is now,
somewhere about there, because we landed the boat right down
there and came out.
Q.   You landed near where the gun is now ?    A.   Yes.
Q. Was there any clearing there? A. Yes, there was a
little clearing, they had gardens in there, there was some potatoes
and cabbage and such like growing.
30 CROSS EXAMINED BY MR. McCROSSAN:
Q.   You took a much closer view in '73, did you, than you
had an opportunity to take the first time, some years before?    A..
Oh, yes, yes.
Q.   Then there was just three houses in 1873?    A.   Yes.
Q.   And you said you then became personally acquainted—
A.   Yes.
Q.   —with Peter Smith and Joe Gonzales?    A.   Yes.
MR. LONG:   You said Joe Silva.
MR. McCROSSAN:   Q.   You met Silva then for the first
40 time in'73?    A.   Yes.
Q.   And this man you refer to as Joe Gonzalves was he running a store ?    A.   Yes, he was running a store then.
Q.   Well, his store at that time was down town in Gastown;
don't you remember that?    A.   Yes I know where it was.
Q.   And he was living down town .in Gastown, he wasn't liv-  93
Edward Trimble—Cross Exam.
ing at Brockton Point then?     A.   I don't know where he was
living at that time.
Q. Was his place vacant at the point then? A. Not to my
knowledge.
Q. When he had his store down town? A. Not to my
knowledge.
Q.   mo was living in it?   A.   That I can't tell.
Q.   You don't know.  You say Peter Smith's place was built
10 of old cedar at that time in '73.    A.   Split cedar.
Q.   That is not mill wood or sawn lumber.    A.   No.
Q. The other two places you say were built of mill wood or
sawn lumber? ,  A.   I didn't say that.
Q. I didn't get that clear, you made a distinction, I understood you to say the other two places were not built of split cedar,
one was built of split cedar, and the other two of mill wood—am I
wrong in that?     A.   I think you are.
Q.   What is your recollection, then, what were the other two
places built of?    A.   They were all built out of split cedar that I
20 could see, I didn't go near the other ones at all.
Q. They were all built—then' none of them were built of
millwood or sawn lumber in '73? A. I couldn't hardly say that,
it is so long ago.
Q. Then, as a matter of fact you cannot say whether they
were built of millwood or split cedar, you are indefinite on that?
A. Well, there is not much difference between sawn lumber and
split.
Q.   Oh yes, very much.   Can you give the Court any information as to that, or are you just hazy and cannot say definitely un-
30 der oath?    A.   No, I am pretty sure it was split cedar, Peter's
house was.
Q. And you think the other two were, too? A. They must
be because when they were built there was no mills near here.
Q. Don't argue yourself into it, we want your recollection.
I am talking about 1873. You see there were mills in Vancouver
in 1873, we all know that.    A.   Yes there were mills here then.
Q.   What was the situation in 1873, what was the construction of the buildings, what were they built out of?    A.   As far as
I can say they were built out of split cedar.
40        Q.    The whole three?     A.    Yes.
Q. Where were they situated with reference to the water-
line or high water mark? A. Well, they were a little back from
high water mark.
Q. Were they projecting over the water on posts or supports
at all?    A.   I couldn't see none.
Q. What business were those people engaged in that you
went to visit?    A.   Mr. Smith I know was fishing.  94
Edward Trimble—Cross Exam.
Q. They were all fishing, outside of Fernandez who had a
store down town?    A. . Yes.
Q. And how far back would you say they were from the
water? A. Well, I should judge it was about 40 feet away from
the bank there to the house.
Q.   Now, are you giving that as your recollection then, or
are you giving your intention as to what you think might be from
the position the houses are in today?    A.   I think—I am pretty
10 sure they stand now where they stood before when I was there, as
far as I can recollect right.
Q. There has been a good deal of evidence here saying they
were on the water, some of them over the water—are you clear
on that? A. I don't remember seeing any on the water.at all
or over the water.
Q. Other witnesses' have said they might have been 100 feet
or more back on the land? A. I don't think they were that far
back, I think about 40 feet is about as far back.
Q. Was each of these three back 40 feet? A. I didn't
20 measure it, I don't know, naturally they would be about that.
Q. We appreciate that fact, that is why I want to be fair
to you. How was each one situated relative to the other as to distance from the water-line ? A. They were just about the same
as far as I notice at that time.
Q. More or less all in a row you think? A. Just about as
near as I can remember.
Q. You are not arguing yourself into that just from looking
at it from the situation today?     A.   No, no.
Q. When you were here in December 1862, how long were
30 you here in and around the Inlet? A. I wasn't in here more
than about two hours.
Q. Well, then, how did you happen to be over, were you at
the point at all or just passing it? A. Just passing in a boat, I
could see.   .
Q.   What kind of a boat, a big steamer?    A.   Yes.
Q. How big ? A. The' 'Wilson G. Hunt,'' it came up from
'Frisco.
Q.   What burden would she be ?   A.   About 100 tons I think.
Q. What was she doing in this port in 1862? A. She came
40 in for mail and passengers from New Westminster and Victoria;
she belonged to the Hundson's Bay Company, she was an American boat, built on the Sacramento River.
Q. And you think—or do you know she was a Hudson's Bay
boat?     A.    That is what I learned at that time.
Q. What did she come into port for, what did she come into
Burrard Lolet for? A. On account of ice in the river, she
couldn't get in there, and she came in here.  95
Edward Trimble—Cross Exam.
Q. To land some passengers for Westminster? A. Passengers and the mail.
Q. And you took the boat and went out, you came over from
Westminster and got the boat and went out the Narrows? A.
No, sir, I was going out of the Narrows to Victoria.
Q.   You had come from Westminster over land and got on
this boat and went out through the Narrows to Victoria?     A.
Yes.
10        Q.   And all your knowledge is simply that you were on the
boat and passed out through the Narrows to Victoria?    A.   Yes.
Q.   Was it a steamer or sailing vessel?     A.   Steamer.
Q. And what day in December, the 23rd, did you say? A.
23rd of December, yes.
Q. At that time the whole of the point there in Stanley Park
was just a wild forest, wasn't it?    A.   It was all timber.
Q. Deadman's Island was all timber at that time, grown up
the same as Stanley Park?    A.   Yes.
Q.   Tall timber?     A.   Yes.
20        Q-   Of course wt that time you didn't know who was in any
of these three houses ?        A.   No, sir.
Q. There might have been Indians for all you know? A.
Yes.
Q. Do you know a gentleman referred to as Portuguese Joe
Gonzalves?   A.   Yes.
Q. You know him. He wasn't here in 1873, was he, or was
he?    A.   Yes, he was here.
Q.   Are you sure of that?    A.   Yes.
Q.   That would be in the spring of 1873, did you say?     A.
30 Yes, in May, I mean in July I saw them.
Q.   In the summer of 1873 ?    A.   On Dominion Day.
Q.   And you met Portugese Joe Gonzalves?   A.   Yes.
Q.   That is the father of Alfred Gonzalves?   A.   Yes.
Q.   You met him?    A.   I met him, yes.
Q.   Are you sure of that ?
MR. LONG:   Produce the man, sometimes he is confused on
"fcxlPSf1 H3.H1P S
THE COURT:   There was Joe Fernandez and Joe Gonzalves, both called Portugese Joe.
40        MR. McCROSSAN:   Q.   This gentleman (indicating) did
you meet him in 1873?    A.   No, sir.
THE COURT: It was the other, Joe Fernandez? A. I
forget the name.
MR. McCROSSAN: That is all right. How close were these
shacks or houses to where the gun is now or the point—do you
know where the gun is now?    A.   Yes.
Q.   How close would the nearest one be to that?     A.   I  96
Edward Trimble—Cross Exam.
Joe Gonzalves—Direct Exam.
didn't measure, I can't tell you.
Q. You can only guess? A. I would judge it was 200 or
300 feet anyway.
Q. And how close were they to one another? A. The
houses ?
Q. - Yes.     A.   The two first ones, west, were pretty close
together—I would not say more than 50 or 60 feet—
10        Q.   The two westerly ones, how far was the other one?     A.
It was considerably further off, I can't say.
Q.    A couple of hundred feet?    A.   Yes, more than that.
Q. More than that from the middle one? A. From the
Smith house.
Q.   Well, the middle one was the Smith house?    A.   Yes.
Q.   That is the one you didn't know who was in, is that right,
the one nearest the gun, you didn't know who was in that in '73?
A.   Well, I saw him but I had forgotten his name.   I am awful
forgetful of names; it is hard for me to remember names without
201 am real well acquainted.
Q. What was the horse power of the steamer you were on,
do you know? What speed did she travel? A. Travelled about
10 miles an hour.
(Witness aside)
JOE GONZALVES, a witness called on behalf of the Defence, being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. LONG:
Q.   Your name is Joe Gonzalves?   A.   Yes.
Q.   You are known as Portuguese Joe?    A.   Yes I did, he is
30 gone now, I used to know him.
Q.   Aren't you sometimes called Portuguese Joe?     A.   I
am Portuguese Joe, I guess because I am from the same flag.
Q.   You are a British subject?     A.   Yes, for a good many
years.
I
Yes.
I
And'the Defendant in this case is your son Alfred?    A.
4C
Q.
m
m
1
I
by the way?
ifornia.
How old is he?    A.   About 31 or 32.
Where was he born?    A.   Right there.
When did you come to Stanley Park.    A.    '74.
What time of the year?    A.    It was in July.
July of '74?    A.    '74.
Were there any people living—where did you come from
A.   I came from California, San Francisco, Cal-  97
Joe Gonzalves—Direct Exam.
Q.   Were there any mills around here then?    A.   Yes, two
of them, Moodyville and Hastings.
Q.   Where did you go when you came here ?    A.   I stopped
right there.
Q.   Where you are now living?    A.   Yes, I went there and
stopped there.
Q.   Who was living there at that time?    A.   Joe Silva was
there and Peter Smith and Joe Fernandez has been living there,
10 he was still in Vancouver at the time.
Q.   Was it Gastown then?    A.   Gastown at that time.
Q. I am referring to exhibit 7, Mr. Gonzalves. A. That is
my lot, where I am living.
Q.   That is parcel 2?    A.   Yes.
Q. That is where you are now living? A. Yes, I got the
place from Joe Silva right at this very corner.
Q. The place that is marked with the figure one? A. I got
that from Joe.
Q.   Are the remains of that place still apparent if we go out?
20 -A-   The place was so old, all falling to pieces, and I built a house
back about 30 or 40 feet from this place on the same lot and that
is where I am living now.
Q.   If we went out there could we see where Joep Silva's
house was?     A.   Yes, I can put you right on the foot of that
" ground where the house was.
Q.   Was Joe Silva any relation of yours ?    A.   No.
Q. Portuguese Joe was? A. Yes, the same, as we came
from the same* flag.
Q.   He was a relative of yours?   A.   No, no relation at all
30 of mine.
Q. You say you went in there and Joe Silva was in one of
the houses?   A.   Yes, and he told me he was going to leave—
MR. McCROSSAN: I object to that—declarations of history are admissable in cross-examination against interest but not
in support of interests.
MR. LONG: I will just say this, all I am going to say—I
want to show how my man succeeded to the possession of that
property. I have to take the best possible evidence I can give
the Court. It is quantum valeat, there is no jury here.
40 THE COURT: I think, subject to the objection—if it is of
any materiality we can hear argument as to whether it is od-
missible later.
MR. LONG: Q. Now, when you came through you say
Joe Silva was living there?   A.   Yes.
Q. How did you happen to live there? A. He said he was
going away from there—
MR. McCROSSAN:   Same objection.  98 f
Joe Gonzalves—Direct Exam.
MR. LONG: Q. Where was he going? A. He went
Howe Sound to a place called Gibson's Landing.
Q. Did you pay him anything for that place? A. No, he
says he didn't want anything, it never was no place he said, he
was a friend of my uncle's so he would give me the place.
Q. Did you go in there right away? A. I just got in there
a day or two before he left and he told me to wait two or three
days and I could have the place.
10 Q- When he left what did you do? A. I went into the
house as soon as he left. I lived there the first winter I stopped
in British Columbia.
Q. What did you do after that? A. I built a house on the
same ground, I am living in that place now.
Q.   That house is there now?   A.   My son built that, but
it is on the same ground the other house was, and besides the'
one my son built there is part of the other house now there.
Q.   After Silva moved out and you moved in did you do
anything to the ground?   A.   I never done anything that sum-
20 mer, but the summer after I repaired the broken fences and I
started a garden there.
Q. What had Silva done to that ground? A. He used to
have a little garden, I guess, before I came there—of course I
made a garden for myself.
Q. Did he have it cleared? A. It was cleared—and there
was fences, I repaired the fences.
Q. Were there any fences there? A. Well, it was part
fence, all along here it was broken down and—
Q.   When you say the part along here, that doesn't mean
30 anything on the notes—that would be to the west side, the west
fence?   A.   Yes, this part—
Q. On the north? A. It was falling down and I repaired
that myself.
Q. Now, there is a fence all around it, is there? A. Yes,
a man ^named Peter Smith and I have this fence.
Q. Is the father of the present Peter Smith living there?
A.   Yes, he was there, he was there years before I was.
Q.   What was Silva's house built of?   A.   Well, I believe ■
it was built of split cedar at the time I came in.   It was rebuilt
40 of boards 1 x 12 afterwards.   He told me at the time they came
in he could not get lumber and he split some cedar to finish the
house.
Q. What was Peter Smith's house? A. The time I came
there it was the same way, he then told me—
Q. I don't want what he told you. Was his house where his
son now lives—   A.   That is all lumber.
Q.   Is it the same place?   A.   It is the same place! it has  99
Joe Gonzalves—Direct Exam.
been all rebuilt before I came there, because it has been there so
long and we couldn't get—you see they couldn't get lumber at
first.
Q. These other buildings are more recent, on your property?
A. Yes, this is the one my son built and this is the place Silva
used to be in, and this is Smith's place (indicating).
Q. When you put up your fence there what did you folldw,
where did you put it? A. I put my fence right back to the
10 place where the road went through; the time they started to
put the road there they came through one morning and said they
were going to put the road there on this ground and the surveyors
ran the line inside of the fence so I said if, they would shift the
fence back they could go there. They changed my fence and
Peter Smith's fence just as well.
Q. When they put it back—they put it where it now is, did
they?' A.   Yes.
Q.   What year was that, do you remember?   A.   A little
before the fire, the fire was in '96.
20        Q-    '86.   A.   It was a little before that.
Q.   That is when they surveyed?   A.   Yes.
Q. Who was the surveyor? A. Lwould remember the man
if I saw him, but I don't think I remember his name.
Q. Was it Clendenning or Boyd? A. I can't say, I think
Hartney is the man that shifted my fence.
Q. How old would you say Silva's house was when you got
there? A. I can't give exactly the right age, must be 15 years
old the way it looked.
Q   What about Peter Smith?   A.   It looks about the same,
30 maybe more or less—the two houses looked pretty old when I
came there in '74.
Q. Both these men were fishermen, weren't they? A. Yes,
they were fishermen.
Q. Since that date, since 1874 who has been living continuously on that property, or have people been living continuously
on parcel two?    A.   Myself.
Q. You? A. Myself has been there and nobody else, and
my son and my daughter that is married, she lived there about
six years.
40 Q. Where do you make your home ? A. I make my home
there, since I came, but there are a few years back my daughter
and my wife were there, till about 13 years ago I took my wife up
to Pender Harbour. My daughter stayed six years and my son
came down, and I came down myself at times, and we reckoned
that to be our home, and I have my furniture there, I have a stove
and everything in the place—the place never has been abandoned, I always lived there, we reckoned that to be the home.  100
Joe Gonzalves—Direct Exam.
Joe Gonzalves—Cross Exam.
Q. You didn't take any writings from Joe Silva? A. No,
I didn't suppose there would be any use because he just said I
can have it if I want it.
Q. Was there anyone here to make the writings? A. No,
there wasn't anybody, I was a stranger when I came here and I
don't know anybody.
Q.   In running the fence around there how did you find out
10 where to place your fence, what did you fence in?   A.   I put the
fence as far as the place where this ground was cleared right back
against where the green timber is now.
Q. Where the fence is now? A. Yes, it was,back right to
the road, and when they put the road through they shifted it back.
Q.   Is the rest of the fence right there where it was?   A. Yes.
Q.   Has that been renewed?   A.   Yes, several times, oh yes.,
Q. Who is living on parcel 2 now? A. That is myself, it
is mine.
Q.   But who lives there?    A.   Just my son Alfred.
20        Q.   Has anyone else ever lived there on that place since?
A.   I have lived there since I first came until—I have the place
fenced and nobody ever lived there except my family.
CROSS EXAMINED BY MR. McCROSSAN.
Q.   You came in July 1874?   A.   Yes.
Q. And at that time your uncle Fernandez was down— A.
On Water street.
Q. —near Abbot or Water Street? A. In Gastown running a store, yes.
Q.   And he was living in his store at that time?   A.   Yes.
30        Q-   And he had been moved from Stanley Park some years
before that?   A.   He left there before.
Q.       When business got bad he moved down town? A. Yes.
Q.   And that was about 1870?   A.   I can't tell you the day.
Q. He had been in Gastown three or four years before you
came?,   A. .Probably so, I can't tell you anything about that.
Q. Silva was there, and Peter Smith when you came? A.
Yes.
THE COURT:   Q.   Nobody else?    A.   Nobody else.
MR. McCROSSAN:   Q.   Fernandez' place was vacant? A.
40 Excuse me, there was another party there called Mr. Tompkins
Brew, he was living in my uncle's place at the time.
Q.   In 1874?   A.   Yes.
Q.' Tompkins Brew went to work in Westminster in '74,
didn't he? A. I can't say, as far as I know, that is none of my
business, but as far as I know he went to Nanaimo.  101
Joe Gonzalves—Cross Exam.
Q. Wasn't he night watchman in Westminster in '74? A.
I don't know, I know he was in the Park in '74.
Q. When did he get out of the Park, when did he move?
A.   He moved quite a little bit after I came there.
Q.   A year or two?   A.   No, just a short time after.
Q. About '74, wasn't it? A. Probably the last of the year
'74, something like that.
Q.   And when you got there there was just Silva and Smith?
10 A.   And this Mr. Brew.
Q.   He moved away shortly after?   A.   Yes, shortly after.
Q. Now the place where your counsel made the figure 1 in
the little square—   A.   Yes.
MR. LONG:   I placed the 1 where he made the square.
MR. McCROSSAN: The figure 1 is in the middle of the
square; now that was the exact location of the shack that Silva
had when you came?   A.   Right there, I lived there.
Q.   Aid you said it was more or less tumbledown then?   A.
Yes.
20        Q.   So much so that you had, you built it as soon as you got
there, you sebuilt it?   A.   I shift from there and went back to
the new house.
Q. It was inhabitable at that time ? A. It was so open, it
wasn't fit to live in.
Q.   This was over the water line—   A.   No, it is'above the
highwater mark.
A.   It
Q.   It is practically to the highwater mark there?
was above the highwater mark.
Q.    Wasn't part of it on supports?   A.    No, no posts at all.
301 can take you there, your lordship, and you can look and I can
prove the place where the house was as plain as can be because
I lived in it.
Q.   That square is part of it touching the water mark?   A.
This line isn't exactly in the water mark, it is above.
Q.   How many feet?   A.   I did not measure it, but it is
'  above the line, I know.
Q.   It is right on the water compared with where the house
is today?   A.   It was about three feet from the high-water—
from the high bank where the water used to rise and the house
40 was the full length—
Q.   How big was the house?   A.   About 15 or 20, a small
house, it was above the highwater mark altogether.
Q.   Now, whatever fence was there you said was badly
tumbled down?   A.   Yes, it was an old fence.
Q.   And it wasn't fenced all around?   A.   Well,  it was
pretty near because you see it was wild timber up in there—
Q.   Not on this property here?   A.   This was all cleared.  102
Joe Gonzalves—Cross Exam.
Q.   Parcel 2 was all cleared?   A.   Yes.
Q. The stumps all out? A. A few stumps, not very many;
all the tall timber was taken away and nothing there—but in here
as far as I could see—
Q. Not as far as you could see, you could see that there was
a garden there, could you? A. I couldn't prove he was planting anything but the land was cleared.
Q.   That doesn't look as if there was a garden on it?     A.
10 Yes, I am sure there was a garden there.
Q. You only argue yourself into that—was that full of
stumps? A. They were forty or fifty feet apart, you can plant
all kinds of stuff in between stumps. There was a few stumps,
not many.
Q. Any undergrowth? A. Small grass, wild grass, no
brush at all.
Q.   Wasn't there a fence along the west side?   A.   Well,
that is as the water, the line runs pretty near north of that,   it
runs pretty near north, and this around here—
20       Q-   That is north there?   A.   That is pretty near north,
yes.
Q. Was there any fence on this west side? A. A little
fence all around pretty near, still it was all broken down.
Q. On what parts were there no fence? A. This part
there wasn't much, I put it up myself.
Q.   That is on-that corner?   A.   Yes.
Q. The northeast corner? A. As I told you, I pulled the
old fence out and put a new fence myself.
Q. There is a road there marked on this map and in actual
30existence today on the west side of your No. 2 road; was there
any road there then at all? A. There was a trail where we
walked from here, and a trail right across the north side where ■
we walked across, a trail probably two or three feet wide, before
the City put any road through it.
Q. You put all these sheds here marked "W.S." meaning
Woodshed? A. Yes, this is one shed and this is a chicken
house.
Q.   They are all below highwater mark?     A.   Yes, part of
it is still—that is in the water—that is above the highwater mark
40 (indicating).
Q. And you cleared the property afterwards, did you? A.
Yes, I did. That has been fenced a good many years, since I
came in there.
Q. When the city built the road Mr. Hartney was the contractor for building the road?   A.   Yes.
Q.   He moved your fence back?   A.   He did, sir.
Q.   That was in 1889?   A.    '89 or'88, might be a little more  103
Joe Gonzalves—Cross Exam.
or less—I never put anything down to prove but you are pretty
close to it, it was a little before the fire.
Q. How far did he move your fence back? A. The width
of the road.
MR. LONG: He says before the fire? A. Before the fire,
I said.
Q.   The fire was '86, wasn't it?
MR. McCROSSAN:   He is wrong on that.
10       THE WITNESS:   Before the fire,
Q. It was '89, nothing turns on that ? A. The daughter is
34 years old and the road was put through there and my fence
was shifted before that; I haye five daughters there and a boy,
a girl was 40 years old—
Q. When did you say it was moved back? A. After the
time they put the road there—your lordship told me what time
the city put the road there—that is the time.
Q.   I wanted to see how close your memory was you say the
city put the road through at a certain time, and. it was about '89
20 or '90 when they put the road through ?
Q. Well, I can't say, I never expected this was going to
come to any argument at all.
Q. That is quite frank. He moved the fence back the width
of the road?   A.   Yes, it is there today the same as he moved it.
Q. And it is now where he moved it? A. It is in the same
place.
Q.   That is where he moved it to ?   A.   Yes.
Q.   And he took off the width of the road?   A.   The width
of the road, yes.
30        Q.   And he did that with Peter Smith, too?   A.   The same
thing, his fence was cut when they put the road through.
Q. And he did that where Joe Fernandez was? A. Yes,
the same thing.
Q. So he took the width of the road off that? A. I think
that was the cheapest road the city put through, I think they done
well to put it through, it never cost the city nothing.
Q.   They never paid you for it at all?   A.   No.
Q.   And they never asked your leave or license at all?   A.
No, sir, nothing at all, sir.
40        MR. McCROSSAN:   Your lordship did not notice where he
marked the original location; right there where that square is.
THE COURT:   Yes.
MR. McCROSSAN: Q. Now, what was this man S^lva
doing then?   A.   Fishing.
Q. And he had his mind made up to leave, hadn't he? A.
Yes, he wasn't catch much fish and he said he was going to leave.
Q.   He had inteded to go away?   A.   Oh, yes, he did so.  104
Joe Gonzalves—Cross Exam.
Q. And wasn't he living down town? A. No, sir, he went
up Howe Sound afterwards, he was fishing there at a place called
Gibson's Landing.
Q. If it was all'tumbled down and not in good enough condition for you to live in couldn't he have slept somewhere else,
didn't he live somewhere else at the time—
MR. LONG:   That is not fair cross-examination, because he
said he lived there ajl that season and the next year he built, he
10 said he lived there that winter.
THE WITNESS:   I lived there all winter.
MR. McCROSSAN: Q. Did you live there that winter
without making any changes? A. No changes at all, I lived
there all winter.
,Q. I understood you to say it was tumbled down and you
changed it right away?   A.   No, I lived all winter there before.
Q. You have been away from there yourself for sixteen or
eighteen years living up at Pender Harbour? A. No, excuse me;
about nineteen years ago I bought a piece up the coast and I could-
20 n't live here at the time, my son-in-law and my daughter looked
after the place up the coast after I bought it about five or six
years, I used to go up once in two or three weeks and come right
back again, and my daughter came in there and lived there for
six years afterward the time I went up to Pender Harbour.
Q. But you have been in business up at Pender Harbour for
fifteen or sixteen years? A. Nineteen years—still I never was
living there all the time.
Q. You have been back and forward? A. Back and forward. And I was in Vancouver five years afterward I bought
30 the place, so I believe about thirteen or twelve years ago I took
my wife up there and we used to come down once in a while and
see the place, but my daughter was living there afterward, the
time I left the place. I had furniture and bedding and a stove
and everything in the place—the place never was abandoned and
the house was locked.
Q. Now, you have talked this whole matter over with your
son from time to time at different times about this place you
squatted on in the park? A. I have, of course, not always myself, he knows a lot of it himself, of course.
40 Q. And your son told me this when he was examined under
oath before; "Has it always been fenced in? A. Always fenced
in.   He cleared the land—"
MR. LONG:   What number?
MR. McCROSSAN: "Has it always been fenced in? A.
Always fenced in. He cleared the land. There was no road or
anything when he came there.     He cleared the land and fenced  105
Joe Gonzalves—Cross Exam.
it."   A.   There was no fence when I came in there.
Q. "Your father was the first settler there?" A. No, his
uncle had the first store in Vancouver, Joe Fernandez. A. I am
talking about Stanley Park, not about Vancouver. Your father
was the first settler in Stanley Park outside of Vancouver? A.
No, his uncle was there fifteen years before he came." A. I
think there must be some misunderstanding because my uncle
was there before, a long time ago.
10 Q. He was there about fifteen years before you came? A.
Yes.
Q. "Where was that? A. Right where we are living now.
He had the first store that was ever in here from the Hastings
Mill." Now, this was in the examination of your son Alfred and
he never mentions the man Silva—he says it was your uncle Fernandez who was living right there where you were living (21 and
22). A. He never was there, he wasn't born at that time and
he doesn't know anything about Joe Silva at all.
Q.   But your son says he talked the matter over with you
20 and got the information he gives here from you?     A.   I never
told him anything like that, he is there you can ask him.
Q.   He must have dreamed it, did he ?   A.   I never said it.
Q. There it is right there, that is what he said—what I have
read to you?   A.   Well, he is right there, you can ask him.
Then, question 24—""You say he lived on this particular
spot or premises before your father did? A. Just within a few
feet, just along there. All those places were just taken there
next to each other.
25. Q. Then he was not on the exact spot ? A. I couldn't
30 say about that.. It was before my time. From what I hear from
my Dad he was right there within a few feet." A. You can
call it a few feet, you call it more or less. I don't suppose I can
give you the foot where Joe Fernandez was from the place, but
where Joe Silva was in the very place where I am living now. Of
course, my son never was born then and he couldn't prove that.
MR. LONG: That is all cleared up in subsequent examinations for discovery.
MR. McCROSSAN:   I challenge my friend to show where
there was any mention of Silva in this examination.
40       MR. LONG:   You served me with a demand for my predecessor in title and I have given that.
MR. McCROSSAN: You gave it three 'days before the trial
and I had that discovery before.
MR. LONG: Alfred Gonzalves, the defendant, clears that up
plainly in subsequent examinations for discovery.
MR. McCROSSAN: I am quite prepared to allow his lordship to read the entire examination for discovery of the defend-  106
Joe Gonzalves—Cross Exam.
ant.   There is no jury here and it is not my business to keep anything back from the court.
MR. LONG:   If that is so I think it all ought to go in.
■   MR. McCROSSAN:   I do not tender it, but I am quite prepared to let his lordship read the entire examination.
MR. LONG: Because if you will read questions 30 to 34 it
clears that up.
MR. McCROSSAN: Q. In question 40 referring to you,
10"He took up a place of his own apart from your uncle, did he?
A. Yes, he took up and fenced a piece of land. There was no
town or anything else, and he raised a few vegetables, and got a
piece of ground and made a garden, as from that time to this it
has always been fenced, and we have always lived there.
41. Q. And he established his early home there ? A. Yes,
and used to fish and smoke fish in the early days out there.
42. Q. So your father was the originator or founder of this
property you are living on-—•
43. Q.   Your father, you say was the originator and the
20original squatter on that land with the premises you are now in?
A.   I couldn't say."
MR. LONG.   I objected there.
MR. McCROSSAN:   Yes.
Q. "44. Q. That is" what I have heard him say too" At first
there is the answer, "I tell you that is what I have heard him
say." Then "44 Q. That is what I have heard him say too?
A. Mary De Costa is 53 and she was there before me. Pete
Smith, he was 65 years and he was there before her, so he is an
older settler than we are." Is that true? A. What I know I
30 have told you, if he told you anything like that it is there.
Q. I am not questioning what your son told me, he could
only get it from you?   A.   I never told him anything like that.
Q. I am not saying your son is telling the truth at all, but
he says he got his information, naturally, from you? A. What I
told him was true, I don't think that is correct what you have
there.
Q.   He will be your main source of history, I
Yes.
Did he tell you how long he had been there?   A.
Q.   "148
suppose ?   A.
"176   Q.
40 Who?
177 Q.
since 1874.
178 Q.
Your father?     A.     Why since he came there,
On that exact piece of property?   A.   Yes.   The
matter was referred to two or three time?"     A.     That is the
place where I came, where I am right now, that part is correct.
Q.   Do you know Mr. Williams, the City Solicitor?   Probably I know him if anybody shows him to me, I don't know one  107
Joe Gonzalves—Cross Exam.
from another.
Q.   Bald-headed fellow?   A.   I can't say I do.
Q. Do you remember when your son was up for breaking
the by-law by building his house without a permit and you were
dawn at the Police Court in October last year, I think? A. I
don't think I do, I don't think I was there.
Q. Do you remember a conversation that you had with Mr.
Williams in the Police Court corridor, in the hallway? A. I
10 don't think I do, I don't recollect it.
Q. And you don't think you were down there at all? A.
If I was down I don't recollect it.
Q. ' Now, where did you build your house, Mr. Gonzalves,
when you didn't like the one that Silva had there, where did you
built the other one? A. Right on the same ground where you
see on the map there, that shack there.
Q. There .are so many shacks—you mean the one your son
has?   A.   Yes.
Q. The house was what? A. Twenty by thirty—that is
20 on the same ground that it was then. J have two additions to the
house and the other house was right in the centre, the house must
be 20 by 30 or 20 by 32 or something.
Q. When did you build that, in 1875? A. In 1874. I told
you that before, a little after that, in the spring, after you see,
because I was in Joe Silva's place all winter and built this in the
spring.
Q.   That would be in 1875?   A.   1875 in the spring.
Q.   Did you put up that shed that is now—
MR. LONG: He is referring to the one storey frame on
30 Parcel 2.
MR. McCROSSAN: Q. Did you put up the shed that is below the water line, this big long one ?   A.   Yes, I built that my
self.
Q.
myself.
Q.
is one on supports there?   A.   Yes, I built that
That is right over the water? A. Yes, right from the
water mark up, I used to repair boats and I kept my machinery
there.
Q.   Silva hadn't that there?   A.   No, I built that myself.
aq        Q.   Well, his lordship will observe when he is out there, it
is marked although not very clearly on the map, there is a pathway along the water line and a fence that runs through?     A.
Yes, right here (indicating) that is not exactly correct.
Q. Between the dotted fine marked high water mark and
the fence there is a beaten pathway running off the side road?
A. Coming down here running in here into Smith's place, (indicating) .  108
Joe Gonzalves—Cross Exam.
Q. Was that there when you came in '74? A. That place
was open like that, a little trail to this house, which Silva's house
was—this is my place (indicating), this is the water, there was a
little bit of a trail made by ourselves to pass back and forward.
Q. And there was a trail from the point where you marked
where Joe Silva's house was, following down the highwater mark
to where Smith's place was? A. Yes, it is there .now, the same
trail.
10 Q. Only, I suppose, more beaten? A. Of course, people
pass back and forward.
Q. That was running down right into Smith's house? A.
Yes.
Q. And Smith's house was on the waterfront then? A. No,
back from the waterfront quite a bit—back about ten or fifteen
back from the waterfront, the house was, but the ground has been
washed away and the house was further back quite a bit from the
water-mark—the place.
Q.   That is the Smith house?
20        MR. LONG:   Let him finish what he was saying.
THE WITNESS: The place was probably further out in the
water, I think it will be about ten or fifteen feet from the watermark—into the land.
MR. McCROSSAN: Q. Is that right where it was in '74?
A. The same, the place is there to prove it, the old house is there
still; it has been rebuilt probably several times, still the old house
is there to prove it.
MR. LONG:   That is what I am going to have the court see
if we can, but that house is marked, "One storey frame" on par-
30 eel 3.
MR. McCROSSAN:   Q.   That is the residence?   A.   Yes.
Q. But you say that this trail running across the front of
Silva's house is just the same today as it was then? A. Yes,
pretty near, not much difference.
Q. There would not be any fence at that time at the back of
it, would there ?   A.   Yes, there was a fence.
Q.     Do you mean to suggest there was a fence along the
waterfront leaving the trail there?   A.   Yes, I put that there
myself.
40       Q.   You put it there, that is what I thought?   A.   I put that
fence there.
MR. LONG: Except for the identification of that property,
the locus, Mr. Gonzalves will retire from the box.
(Witness retires.)  109
Alfred Gonzalves—Direct Exam.
ALFRED GONZALVES, the defendant, called as a witness on his
own behalf and duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. LONG.
Q. You are the son of the last witness and the defendant in
this action?   A.   Yes.
Q. Were you here, did you hear Mr. Williams yesterday
give testimony?   A.   Yes.
Q.   Mr. Williams, the City Solicitor?   A.   Yes.
10        Q.   Of a certain conversation which he alleges took place
between your father and yourself in October—on the 20th of October of last year?   A.   Yes.
Q. There was an information laid by the Police authorities
for building or altering your house without a license?   A.   Yes.
MR. McCROSSAN:   Permit.
MR. LONG:   Permit, I should say.
Q.   What do you say about your Father being at the Police
Station on the 20th of October last year?     A.   I have a little
memorandum here I had over there when   I   was   building   the
20 house.
Q.   Did you keep a diary?   A.   Yes.
Q. Were those entries made at the time? A. They were
made when I was working on my house and they were bothering
me and I made a little entry and I put in when my Dad came down
and when he went away.
Q. Was your father here then? A. He was at Pender
Harbour on the 20th of October.
Q.   When had he been here before the 20th of October, 19221
I am speaking from my notes that I took down when Mr. Williams
30 was giving evidence—was he here in the month of'.October, 1922,
at all?   A.   No.
Q.   Was he here in September of 1922?   A.   No.
Q. Was he here in the'month of November, 1922? A. No,
he wasn't.
Q. Was he here in the month of August of 1922? A. Yes.
He came down on the 10th of August and went back to Pender
Harbour on the 12th of August.
Q. Now, you have heard the questions from your examination for discovery which my learned friend has put to your father;
40have you anything to say in explantion of that? A. Well, I told
Mr. McCrossan when we were up there I wasn't of age and didn't
think my evidence was any good on that but my father was the
original man in there and I thought his evidence should be taken;
that I was only 33 years old and that this occurred sixty years ago
and I couldn't give evidence about it.  110
Alfred Gonzalves—Cross Exam.
CROSS EXAMINATION BY MR. McCROSSAN:
Did you tell me that when you were being examined be-
A.     It was when Mr. Long was there when I was ex-
Q.
fore?
amined.
Q. It will be down in the notes if you told me that, I presume.
You did tell me the information you gave me came from your
father, didn't you?   A.   Yes, you asked me whether—■
Q.   Just answer the question?   A.   Yes.
10        Q.   I suggested to you that you had discussed it frequently
with your father?   A.   Yes, and I spoke over it.
Q. And you told me he had told you he was the original
squatter and fenced the property and cleared it and laid it out
and planted his garden, didn't you and that is the information
you got from your father, didn't you tell me that? A. You remember me telling you I didn't know what he was doing, I was
only 32?
Q. Didn't you tell me that, that he was the original squatter. A. I told you, I explained my evidence was no good.
20 Q. Anyone knows if you were only 33 you would not know
things that took place prior to the time you were born, but you
got certain information from your father, and you would, have ho
purpose in telling me what was untrue, would you?   A.   No.
Q. And you did tell me that you got that information from
your father, didn't you? Didn't you? A. Yes, in the conversation.
Q.   And that was the examination that took place before
the Attorney-General of Canada had taken part in the action, the
City was the plaintiff at that time, isn't that true?   A.   I can't
30 say whether they were or not.
Q. That is the fact but you might not know that. Now, all
through the examination you never told me anything about this
man, Silva, did you?   A.   Because you never asked me about it.
Q. I asked you all the history of your title, who you were
claiming through, and at that time you told me your father was the
original squatter, who laid out the property and fenced it in? A.
If you had asked me where Silva was I could have told you' we
were living on the same place on the ground he was living on, but
I didn't know you wanted that evidence.
40 Q. I was asking you how you claimed you owned this property from the Crown?
MR. LONG: Refer to that again; where is that particular
question you put to him in that bald way.
MR. McCROSSAN: I touched on It three or four different
times.   In question 18 and 19.
"Have you got the place fenced in?   A.   Yes, sir. , - ~ ■ ■ ■ Ill
Alfred Gonzalves—Cross Exam.
10
20
Q. Has it always been, fenced in? A. Always fenced in.
He cleared the land. There was no road or anything when he
came there.   He cleared the land and fenced it.
20. Q. Your father was the first settler there? A. No,
his uncle had the first store in Vancouver, Joe Fernandez.
21. Q. I am talking about Stanley Park, not, about.
Vancouver. Your father was the first settler in Stanley
Park outside of Vancouver? A. No, his uncle was there
fifteen years before he came.
22. Q. Where was that? A. Right where we are
living now".
Then I touched on it two or three times later on and nowhere did
you mention Silva. You say that is because I didn't ask you
about Silva, is that your explanation?
MR. LONG:   Read on to 34, that is what I want.
MR. McCROSSAN: The last question I asked you in the
whole examination—question 176 "Did he tell you how long he
had been there?   A.   Who?
177.   Q.   Your father?   A.   Why since he came there, since
1874.
'178.   Q.   On that exact piece of property?   A.   Yes.
179.   Q.   And that is the one he originally laid out and
fenced in.   A.   Yes."   A.   You asked about my father, you
never asked about Silva.
Q. I am asking you about the property? A. You asked
when my father came. I would have told you if you had asked
about Silva.
Q.   You told me about Fernandez though I didn't ask you
30 about him—you admit that, don't you?    A.   Yes.
Q. In this Police Court prosecution in October last, that
came up several times and was adjourned from time to time? A.
Yes.
Q. Mr. McKay, the Police Court prosecutor, took part in the
argument and it was adjourned and I went over and argued it?
A.   Yes.
Q. And was adjourned several times before it finally came
on, wasn't it?    A.   Yes. •    p|
Q. And you told your learned counsel, I take it, that you
40 can say your father was not down here in October or at any of the
times of the adjourned dates of this prosecution because it is not
down in your diary, is that so, is that what you base your information on? A. Well, I have the time here that he came down, he
was down twice and I ha"ve the dates when he was here and he
wasn't here.
Q. You are relying on your diary for that? A. I don't
as a rule keep a diary, but I kept a diary when I was working and  112
Alfred Gonzalves—Cross Exam.
what I did and when I was building I kept a memorandum of it.
Q. And you simply base your information that he was not
down because you haven't got it written down? A. I know for
a fact he wasn't down.
Q. Mr. Williams knows for a fact he was down and swore
to it; is he stating what is not true or does he not recall correctly?
A. We can prove—when this case came on I was fined $25.00
and my counsel paid the fine and I was working that day and my
10 Dad was working at Pender Harbour and I didn't know until after I was fined. My Dad was with me on two occasions when I
was down there.
Q. When was that? A. He came down on a Sunday'and
went back to the Harbour on Wednesday.
Q.   In what month?   A.   In July.
Q. In July? A. Yes, July 30th, he came down, and he
went back to the Harbour on the 2nd of August.
Q.   Is that when you had the ease in court ?     A.   Yes.
Q. That is the.same case? A. Yes.
20 Q- And it extended over from July for some adjournments?
A. The next trial came on, he came down on Thursday and I
think the case was on Friday and he went back again on Saturday
—that is the only two times he was down. The first time I had
the trial he came down, and the following week when we had the
trial.
Q.   He was down twice during the same trial?    A.   Yes.
Q.   He was twice in the Police Court?    A.   Yes.
Q.   But that was in August, not in October?     A.   In July
and Augdst, yes.
30 (Witness aside)
MR. LONG: That, my lord, is the case for the Defendant
Gonzalves.
THE COURT:   Any rebuttal, Mr. McCrossan?
MR. McCROSSAN: I don't think so, my lord, I don't know
—there is a view being suggested and my learned friend has made
some reference that he may want some evidence taken there.
MR. LONG: Li the Smith case, Peter Smith who is living
there is a confirmed invalid suffering frOm very serious heart
trouble for years. I would not dare bring him into court and I
40 will have to take his evidence in his bed there at the Park, so I
thought we could combine his evidence, take it there, and have
our view at the same time.  113
Edward Trimble—Direct Exam.
THE COURT: I can quite understand, yes, that is all right.
You can take your evidence—if all your evidence is in in this case,
we will take the view and open the Smith case and take his evidence there.   We will meet here at 11 o 'clock tomorrow morning.
(Court Adjourned at 4 p.m. Until Wednesday, November 7th,
1923, at 11 a.m.)
I hereby certify the foregoing to be a true   and
accurate report of the said proceedings.
10 '' CELIA J. TIDERINGTON,''
Deputy Official Stenographer.
Stanley Park, Vancouver, B. C.
November 7th, 1923.
EDWARD TRIMBLE, Recalled:
DIRECT EXAMINATION BY MR. LONG.
Q. Mr. Trimble, do you have any recollection of where the
old Peter Smith house was ?    A.    The old shake house ?
Q.   Yes, the old shake house.    Where was that?     A.   I
think it stood a little that way from this house.   (Indicating)
20        Q.   How far from it?     A.   Well, I think it was a little
further back than this, a further eight or ten feet.
Q.    About eight or ten feet back ?     A.   Yes.
Q. Well, as you remember this property here, you said
yesterday about some fences. Where were they? A. Well, they
were a little further, I think, that way.
Q. Did they go down this way? A. Down that way towards the gun.
Q.   Do you remember this old tree here, this old cedar tree ?
A.   Yes.
30       Q.   Was there any clearing here then?     A.   All brushed
out, and we had little gardens here, planted in potatoes and some
other vegetables.
MR. McCROSSAN:   Are you through, Mr. Long?
THE COURT: This, of course, is in the other ease, the case
we are trying.  114
Edward Trimble—Cross Exam.
Joe Gonzalves—Direct Exam.
CROSS EXAMINATION BY MR. McCROSSAN:
Q. I didn't catch just what you said, Mr. Trimble. Do you
say this is the original house here you saw in 1872? A. No, it
was right on the other side. This is the house—I think the way
I get the lay of that tree and where the house stood, I think it
is where that one stands. That was a shake house. This is a
lumber house.
10 • Q. You see the verandah there is right on the beach. How
close was the old one you saw in 1873 to the water mark? A.
Well, it was further back, a little further back than this one
stands.
Q. Four or five feet further back, you think? A. Yes,
somewhere about that.
Q. Now you say the fence went at one time to the point
where the gun is.     A.   It used to be further back, you see.
Q.   That is the fence was further back into the woods.     A.
Yes.
20        Q.   It has been moved this way.     A.   It has been moved
this way.
Q.    That is, it has been moved to the water side of the road.
. A.   Yes, sir.
MR. LONG: Q. Do you remember the shore line here, the
shore line is right here. Do you' remember how the shore line
was in 1873? A. Well, I don't remember, not exactly. I could
not say. It seems to me like that is washed away considerably, to
what it used to be.   It used to be more slanting down there.
MR. McCROSSAN:   Q.   You say the fence was laid where ?
"0 A.   It was out there, I think it ran along about there.
Q.   The west side of the present main road ?     A.   Yes.
Q. And it has been moved back the full width of the road,
or more?     A.   Yes.
Q. And that applies all the way along? A. Yes, it ran
right along.   They set it back further.
(Witness aside).
JOE GONZALVES, Recalled
DIRECT EXAMINATION BY MR. LONG:
40
Q. I want you to locate this Silva property arid this tree.
A. Right there. There is the stump underneath this little house
here, and the house was over right in here.   This tree been planted
afterwards. (Indicating).  115
Joe Gonzalves—Direct Exam.
Q. Where is this big tree stump? A. Right here. Just
around them trees.
Q. Between those two was the shore line ? A. There was
a root right here.   This tree was growing right here.
Q.   It was right in the water ?    A.   Right in the water.
MR. McCROSSAN: Q. And it was right alongside that
tree, the old house. A. No. No, not like that at all. It was
in the other corner, not here. The house was where I told you
10 before, where that little child is standing there. That tree was
there the time I came in 1874. This tree had growed right away
out. It was a fir tree, and was growing there, and fell right into
the water before my time. The time I came here that tree was
lying in the same position as it is now.
MR. LONG: Q. It had been there for fifty.years? A.
That tree has been there probably fifty years for all I know. I
cannot give you the date, because it was there when I came.
Q. Where was the shore line? A. Right about that
stump. The tree growed right there, and fell, and the sea been
20 washing the ground away.
Q. How many feet is that from your fence now? A. That
must be about 25 feet.
Q.   From here ?    A.   Yes, 25 feet is good.
MR. McCROSSAN: Q. About sixteen? A. Oh, more
than sixteen.
(Witness aside)
I hereby certify  the   foregoing to be a true and
accurate report of the said proceedings.
30
D. G. Saunders.
Deputy Official Stenographer.  116
Peter Smith—Direct Exam.
IN THE SUPREME COURT OF BRITISH COLUMBIA
(Before the Honourable Mr. Justice Murphy)
490/23 Vancouver, B. C.
November 7th, 1923.
ATTORNEY GENERAL OF CANADA, and.
THE CITY OF VANCOUVER
vs.
PETER SMITH
10
PROCEEDINGS AT TRIAL.
G. E. McCROSSAN Esq., apearing for the plaintiff.
G. ROY LONG Esq., appearing for the Defendant.
(EVIDENCE OF DEFENDANT TAKEN AT HIS HOME IN
STANLEY PARK)
PETER SMITH, the Defendant herein, being first duly sworn,
testified as follows:
DIRECT EXAMINATION BY MR. LONG:  -
Q.   You are the Defendant in this action, Mr. Smith?     A.
Yes.
opT        Q-   Where were you born, Mr. Smith?
little house next door there.
A.   Right in the
Just where we are now.     A.   Right here.
What was the date of your birth ?    A.   48 past last May.
Q.   48 past last May.     A.    The 3rd day of May.
Q.   What was your father's name?     A.   Peter Smith.
Where was it he lived?     A.   Right here.
Right where we are now?    A.   Not this house, but the
one in the middle.
Q.   The one right next adjoining.   When was this house
30 built ?    A.   Eighteen years ago.
Q.   Who built that?    A.   I did.
Q.   Where have you lived all your life ?    A.    Well, I lived
in the little house there.
Q.
Q.
Q.
Q.  117
Peter Smith—Direct Exam.
Q. Right here on this piece of property? A. Yes,' and I
lived in town for a while.
Q. Did you ever leave this property? A. No. My father
always here.
Q.   When did your father die?   A.   Eighteen years ago.
Q. Do you know when your father came to this Province?-
A.   Was it a Province then in '58.
Q.   Yes, when did he come to British Columbia ? • A.   Yes,
10 in 1858.
Q.   Where did he go ?     A.   He went up the Fraser River.
MR. McCROSSAN:   Well—
MR. LONG: I will have to put that in subject to objection.
It is family history.
THE WITNESS:   He went up the Cariboo Country.
Q.   He went up in the Cariboo Gold Rush ?     A.   Yes.
Q. Did he come back ? A. . Yes, he came back here in '60,
built here in '60.
Q.   Built where?     A.   In this little house, something like
20 that, anyway.
MR..McCROSSAN:   I object to that evidence.
THE COURT:   Yes, it is taken subject to objection.
MR. LONG:    Yes, I understand that.
Q. How far back do you remember ? A. How far back ?
Well, some people say they can remember when they were six
years old. I can remember when I was ten or twelve years old,
ten years old.
Q.    There is a fence running around this property.   When
go you were a boy, was there any fence ?     A. , Yes, right-prom here,
behind this tree here. "
Q. This big cedar tree? A. Yes, went to the nine o'clock
gun there; there was a fence. -
Q.   Whose property was that?    A.   Well, my father's.
Q. Was it an old fence or a new fence? A. It was pretty
old when I see it that I can remember.
Q. What was the nature of the house, this old house. Was
this house built when you were born?     A.   This one here?
Q.   Yes.    A.   Yes.
40   '    Q-   Do you know if there was any house before that there?
A.   There were split shakes.
Q. Split shakes? A. I have seen some of them, pieces
of split shakes; don't come at me too hard.
Q. When your father died, did he leave any paper? A.
He left a will, a will.   Is-that the paper you want?
,  Q.   Yes, where is the will ?    A.   That paper was destroyed.
Q.   Just tell how it was destroyed.     A.   Fred Allen, the  118
Peter Smith-
Peter Smith-
-Direct Exam.
-Cross Exam.
10
Q.
Q.
Q.
Q.
Q.
man who kept a feed store in town, he kept it, and his safe was
blown open by somebody, and the paper was destroyed.
Q.   Did you see that will made ?     A.   I never see it.
Q.   You don't know what was in the will?    A.   I know the
witnesses.
Q.   Are they living?     A.   Yes, some living.
You don't know what was in the will?    A.   What will?
Your father's will.    A.   Willed t6 me.
What did he will to you?    A.   His rights.
You mean here?     A. .Yes, and a little money.
Now when you were a boy, did your father—take your
time—don't get excited.
THE WITNESS!   Give me a sip of water.
Q.   When you were a boy, did your father have any garden
here ?     A.   Yes.
Q.   Where?     A.   Around this way, all fenced in.
Q.   Did he have it cleared?     A.   Oh yes.
20       Q.   You have a sister, Mrs. DaCosta?    A.   Yes.
Q.   Who lives on part of this property ?    A.   Yes, she lives
at the far end.
Q. She is older than you ? A. Yes she is quite a bit older.
She is four years older. She was born here. She is 42 past—52 I
,mean; the 4th day of July, she was born.
Q. You say you have lived here continuously since you were
born, have you ?    A.   Yes.
Q.   And you claim through your father ?    A.   Yes.
Q.   Peter Smith?     A.   Yes.
*>0        Q,   Do you know who lived here before him?     A.   Before
Peter"lived here?
Q.   Yes.     A.   I don't know anybody.
CROSS EXAMINATION BY MR. McCROSSAN:
Q. You say Mr. Smith this is the same house you were
born in.     A.    That one next door.
Q.   The one next door?     A.   Yes.
Q. That is attached on to this ? A. Yes, I built it right
adjoining it.
And is that the one you remember, the earUest one, next
A.   That is the one I was born in anyhow.
Who lives next to you here.   Who is your next neighbor
A.   Which way?
This way, to the right.     A.   To the east?
To-the east, yes.     A.   Mrs. Dunbar.
Q-
door?
Q.
now?
Q.
Q.  119
Peter Smith—Cross Exam.
Q.   Mrs. Dunbar?     A.   Yes.
Q. When you were a boy—I see a fence there now—was
there a fence between? A. There was no fence in between
when I was a boy.
Q. You said it was fenced right to the gun when you were
a boy.     A.   Yes, fenced right up to the gun.
Q.   When they built the road here, the City, they moved
your fence back, didn't they?     A.   They moved one part of my
10 fence, one end of it.
Q. They moved part of the fence further up? A. Well,
that part, that was straightened out a little bit in places. Pardon
me, who is this gentleman talking to me now?
THE COURT.   He is counsel for the other side.
THE WITNESS:   I don't know him at aU.
MR. McCROSSAN: Q. Don't you remember when I examined you before ? A. I cannot see very good. You are better
looking now.
MR. LONG:   It is admitted, of course, Mr. McCrossan, we
20 are dealing with parcel number two.
MR. McCROSSAN:   Yes.
THE COURT:' Well this evidence is in the other case, is
it not?
MR. McCROSSAN:   This is in the Peter Smith case.
Q. You claim that your father was the original squatter on
this property?     A.   On this very property, yes.
Q. And that you are the one that succeeded him in possession of it.    A.   Well, he died, and I came in next day.
Q.   Mr. Brew once lived in the place right next to the house
30 that Mrs. Dunbar lived in.     A.   I remember him coming there
after a deserted place; he came in and cleaned up once in a while.
Q.   After he left it?     A.   Yes, not Mrs. Dunbar's place.
Q.   Well, it was Mrs. Dunbar's place, was it not?     A.   No.
Q. Well, it was on that property, was it not? A. The
house was on that property, yes, but not the same house. There
are two different houses there, you know.
Q. Brew lived on that property? . A. On that property,
further that way towards the east.
Q.   And of course Mrs. Dunbar put up her   own  house?
40A.   No.
Q.   Well, I won't bother you about that.   Had your father
any other name than Smith, do you know?     A.   Not that I
know of.   Oh, Portugese Pete; in them days they all had nick-
- names, the old timers.
Q. Your sister, Mrs. DaCosta said when she was examined
that your father and Mr. Brew came about the same time.   Do you  120
Peter Smith—Cross Exam.
know about that?     A.   I am telling you what I remember.
MR. McCROSSAN: Well of course, that is all you can say.
I don't think I will trouble you any more.
THE COURT:   That is all then, is it?
MR. LONG: Yes, except, my lord, I would like to ask Mr.
Trimble if he can identify—he knows where the location of this
property was.
THE COURT:   Well, you want to go outside for that.
10       MR. LONG:   Yes, we had better go outside.
(Witness aside).
I hereby certify  the   foregoing to be a true and
accurate report of the said proceedings.
"D. S. SAUNDERS"
Deputy Official Stenographer.
Vancouver, B. C, November 7th, 1923.
S
(Court met pursuant to adjournment at 2:30 p.m.
THE COURT:   Are we going to take the other case now?
MR. McCROSSAN:   This will be the Peter Smith case.
20       MR. LONG:   I want to call another witness.   You are not
through with the Peter Smith case ?
MR. McCROSSAN: We haven't finished with this other
case. I would like it on the notes, it is agreed between my learned
friend and myself that all the evidence in the Gonzalves case is
taken as read in this case, including the exhibits, which will be
numbered in the same order.
MR. LONG:   In the same order, yes.    There is only one
thing, Mr. McCrossan, and that is I want to call Captain Marchant
particularly on that matter which I referred to in my cross-
30 examination of Mr. Taffendale.   That is all.
THE COURT:   You mean in the Gonzalves case?
MR. LONG:   I don't know which one that would be.
THE COURT: That is the one of yesterday. We are
through with that.
MR. LONG: Well, it amounts to the same thing, because
they are all bound up so together and if I put him in the Smith
case it will be taken as being evidence in the other case as well.
THE COURT:   Now, as I understand it, any evidence that
is applicable to either of these eases will be taken as evidence in
4t both.
Mr. LONG: Yes, I would have called him in the Gonzalves
case. ;- ^-■■■'■■■- 121
Thomas H. Boyd—Direct Exam.
THE COURT: Well, it doesn't make any difference. This
is the Peter Smith case now—we have one witness this morning.
MR. McCROSSAN: I have two or three short witnesses.
And perhaps we had better have the witnesses excluded the same
as we had yesterday.
THE REGISTRAR: All witnesses in this case of Smith
must leave the Court-room.
(Witnesses excluded).
10 THOMAS H. BOYD, a witness called on behalf of the
plaintiffs, being first duly sworn, testified as follows-
DIRECT EXAMINATION BY MR. McCROSSAN:
Q. You are the same Mr. Boyd who was called in the case of
Mr. Gonzalves of yesterday or the day before ? . A. Yes—I think
so.
Q.    Do you recall, Mr. Boyd, at the time when you were
engaged in clearing Brockton Point for the recreation grounds,
and at the time of building the cut-off road that you have referred.
20 to, if there was any wharf or landing place for the use of the
public somewhere between the gun and Coal Harbor ?
MR. LONG: Isn't that rather a leading question, Mr. Mc-,
Crossan ?
THE WITNESS: Well, you know the city built a float, and
.the steamers coming over from the city here, or going over to the
point after the ground was made, used to call there.
MR. McCROSSAN: Q. Now, what time would that be?
Do you recall what year ?  A.   I think that was in '91.
Q.   In '91 ? A.   I think the year after the recreation grounds
30
40
were fixed.
Q. Now, have you got the colored map there? Could you
locate on this exhibit—what is this number—exhibit 7 ?-^approxi-
mately where that was. Here is the time gun now—just locate
approximately where you think that landing place was or that
city wharf that you referred to ?  A.   There (indicating the map).
Q. That is marked "toilet." That is in front of parcel 6.
A.   Some place about there, it seems to me.
Q.   About there would be—just below.
THE COURT:   Well, you had better mark it.
MR. LONG:     Here is a pencil.
THE WITNESS:  ,1 am not certain you know.
MR. McCROSSAN: Well, approximately—you put it
there, you say.   A. Well, draw a straight line from Lintoff's  Thomas H. Boyd-
Thomas H. Boyd-
122
-Direct Exam.
-Cross Exam.
boat-house.
Q. We don't know where Linton's boat-house is. A. And
it would lie exactly over the float and that would give you the
exact direction of the float.
THE COURT: You see I don't know where that boat-house
is.
MR. McCROSSAN:   You said about there and that would
10 be under the wood-shed ?   A.   I think about there.
Q.   Just make a little square there.
THE COURT: Yes, and write "wharf" alongside. A.
Float.
MR. McCROSSAN: Q. Yes, "float." will do. Where the
square and the word "float" is marked on exhibit 6 is where the
witness thinks it was?   A.  It might be further out there.
Q. Now, what was that used for? A. Well, it was used for
the public. It was a big float—I should think it would be 40 feet
by 100 feet long, and the steamer could land there and there were
20 piles driven all around. It was held there by piles, and the
steamer would come right over from the city side and land the
public there.
Q. Land the public there to go to Brockton Point grounds?
A. Yes. They walked up the hill to the road and there was a
fairly good road and I think there were steps there at that time.
I am not sure.
Q.    Did you go over that at any time yourself ?   A.  Oh, yes.
Q.   You had used it youself ?   A.    Oh, yes.
I had quite an experience there on that float.
30        Q.    What was that?   A.  Well, I had been newly married—
that would be in '92—and there was an awful lot of people waiting
to get on the boat, all at once, and they all got on that boat at the
same time, and it sunk and the men and women they all got wet.
Q.   Oh, I see.   I guess that is all.
CROSS EXAMINED BY MR. LONG:
Q. As you say, Mr. Boyd, your recollection is rather indistinct at this late date, isn't it, as to the location of that float? A.
Well, yes, in a way it is.
Q. It might have been 25 feet further east, as we would say
—north or east, might it not ?
THE COURT:   Nearer the time gun.
MR. LONG: Yes,.nearer the time gun? A. No, it was
further west.
Q.   Are you sure of that?   A.  Well, I am not sure of any-
40  123
Thomas H. Boyd-
William H. Allen-
-Cross Exam.
-Direct Exam.
thing now, but that is my. recollection.
Q.   It went up that vacant bank,
there, weren't there?   A.   Yes, there
Q.   All right.
MR. McCROSSAN:   That is aU,
There were some steps up
were some steps up there.
Mr
MR. McCROSSAN:   I will call Mr.
Boyd, thank you.
(Witness aside)
Allan.
10 WILLIAM H. ALLEN, a witness called on behalf of the
Plaintiffs, being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q.   You live in Vancouver, Mr. Allen ?   A.  Yes.
Q.   And are Clerk of this Court ?   A.  Yes.
Q. I understand you are some official in connection with the
Pioneers' Association of Vancouver? A. I am secretary-treasurer of the Association.
Q.   When did you come to Vancouver, by the way ?   A.  8th
20 of November, 1888.
Q. Do you recall the wharf which the last witness has referred to as being a landing place at Brockton Point in the early
days? A. I recall a float there—a float between poles—that
went up and down with the tide.
Q. What is your first recollection of that? What year?
A. Oh, I think it was either the fall of '90 or the spring of '91
that is was put there.
Q.   And what use was it put to ?   A.  Well, it was put there
to carry passengers who came there to see the bicycle races or the
30 football or whatever was going on.
Q. For access to Brockton Point? A. Yes. The Union
Steampship Company used to run boats across to it.
Q. And what was the location of it to your best recollection.
You might look at exhibit 7.
MR. LONG: Just excuse me—I would rather Mr. Allen
would not see this unless he has already seen where the other man
marked.
„ THE WITNESS:   Well, give me another map then.
MR. LONG:   Because it is just a question of recollection.
40 Of course I know you will do what is right, Mr. Allen.
MR. McCROSSAN: Yes, and then he can mark it on the
other one afterwards.
MR. LONG: Well, I would prefer you to look on the vacant
map:  124
William H. Allen—Direct Exam.
THE WITNESS: My recollection is it was just out here
—at the word "high" I should think.
MR. LONG:   Well, mark it there, please.
THE WITNESS: It might have been a little west of that,
but it was not any further east of that I am positive—that is from
the point.   The time gun now is much farther over than that.
MR. McCROSSAN:   Q.  It might have been a little further
west?   A. Yes, but it was not any further east than this point
10 here.
MR. LONG:   Well," mark that with your pencil.
MR. McCROSSAN:   It is an identical map.
MR. LONG: We will call that mark "float" over the word
"high."
MR. McCROSSAN: Q. Do you recall, Mr. Allen—it was
said this morning—there was some evidence taken at the Park on
this case—that there were fences, or a fence right up into the time
gun ?   A.   The present gun ?   The present time gun ?
Q.   To the present situation of the time gun?   A.  No, I
20 don't think so.
Q. Now what do you say your earliest recollection is as to
the extent of the fence, if any? A. My earliest recollection of
that location was the summer of '89.
Q. Now, how far do you say the fence went, if there was a
fence there? A. Well, I don't think the fence was so far east
then as it is now.
Q.   You don't think so ?   A.  No.   It seemed to me that there
was a house built after that time.   There was one built there—one
farther east was added there, in my idea. I was a continual visitor
30 there during the summer of '89, '90 and '91.
Q. Well, how far—just look at that map, exhibit 7—how
far do you say it extended ? What parcel would be the limit of
the fence that was there? A. Well, I could not say from the
map, but—
Q. You see the order they come in—the Cole property, the
Gonzalves property, Smith's property and the Dunbar property.
MR. LONG: I don't want, if Mr. Allen doesn't know, for
him to hazard a guess on it.
MR. McCROSSAN: No.
40 THE WITNESS: Well, I never had any measurement
made of it at that time or any other time. Even now I don't know
the measurement of that property, only what I saw this morning,
and from what I can remember, the house farthest east seemed
to be much further away from that point than it is now—the
house that was furthest east in 1889 especially, because I used to
be over there very much in the afternoons.   I was employed at  125
William H. Allen—Direct Exam.
William H. Allen—Cross Exam.
James B. Williams—Direct Exam.
10
night and my afternoons were free, and I did most of my courting
over there.
Q.  'That is aU.
CROSS' EXAMINED BY. MR. LONG:
Q. Of course the general view over there, or panorama—the
shore-line is quite different now than it was then, isn't it? A.
Well, the bank seems to have disappeared.
Q. I suppose the clearings are different and it was more
grown up at that time than now ? A. Oh, it is a good deal niore
cleared now on the east of the point, of course, and on the other
side of the road, and the beach seems to be more clear, and the
rocks seem to have been taken away.
Q. Well, looking back 20 years or more— A. It is over 30
years ago that I am speaknig of.
Q.    Thirty years ago.    Your recollection would be rather
indistinct as to where the fence ended and begun, wouldn 't it ?
20 a.  Yes—where it ended and begun, yes, it would be.
Q. And I suppose you would not like to contradict a positive
statement on that fact, would you, of people who live there ? A.
I would not like to contradict anyone who is on oath.
(Witness aside).
JAMES B. WILLIAMS, a witness called on behalf of
the Plaintiffs, being first duly sworn testified as
follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
30 Q. You are the same Mr. Williams who was called in the
Gonzalves case?   A.   Yes.
Q. Had you any conversation with Mr. Peter Smith, the
defendant in this action?   A.  Yes.
Q.   Before these actions were started?   A.  Yes.
Q.   On what date?   A.  September 13th, 1922.
Q. How did you happen to have a conversation with him
and who was with you?
MR. LONG: On what date? A. September 13th, 1922.
It might have been on September the 12th. It is the 13th here,
40 but that may be the date' I typed this out, but it was either the
12th or the 13th.
MR. McCROSSAN:     Q.   How did you happen to have a  126
James B. Williams—Direct Exam.
James B. Williams—Cross Exam.
conversation with him and who was with you ? A. Mr. Raw-
lings, Captain Jones, lighthouse-keeper, were both with me at the
time we went out there.
Q.   Who is Mr. Rawlings ?   A.  He is the Superintendent of
Parks, and we went out there for the purpose of getting such
information as we could.with a view to submitting it to Ottawa.
The Park Board had requested our Department to take up the
10 question of getting these squatters out of the park.
Q. Yes. A. And we deemed it advisable to get whatever
information we could relative to that and submit the whole matter
to the Department at Ottawa.
Q. Yes. Now, where did this conversation take place? A.
With Peter Smith?
Q.   Yes.   A.   In his house.
Q.   In his house in Stanley Park?   A.  Yes.
Q. What was the effect of it? What did he communicate
to you in the presence of Mr. Rawlings? A. We were talking
20 about the length of occupation there and he said that his father
had come there at the same time as Joe Gonzalves, and they had
occupied the premises continuously since that time; and in order
to establish fairly and accurately the time that they came there
he told me that about a year after they had come there—that is,
his father had come there—his sister had been born on the premises ; and she was at that time about 52 years of age.
Q. Which sister was that? Do you know her name? A.
Mrs— DeCosta?   A.  Yes, Mrs. DeCosta.
Q. And about a year before his eldest sister was born? A.
30 Yes.
Q. When he said his father came there? A. Yes, his
father entered into occupation there about a year before his sister
was born.
CROSS EXAMINED BY MR. LONG:
Q. Well now, Mr. Williams, what made him so communicative with you that afternoon on this particular point? A. I
don't know. He didn 't seem to show any'reticence at all. He was
quite free and frank.
Q. Did you give him to understand that you were getting
40 information with a view to probably considering an action of
ejectment against him?   A.  No.
Q. Why not tell him that. A. Because it was not in my
mind at the time.
Q.  I suppose you did not consider it advisable to be quite  127
James B. Williams—Cross Exam.
so candid with him, did you ? A. There was no idea of ejectment
in my mind at the time. What was in our mind was the submitting of facts to Ottawa for their consideration.
Q.   To see if on the submission of such facts they would
entertain the matter seriously of ejecting these people?   Isn't
that it?   A.  Well, I don't know that that really occurred to'me
• so much as the fact that we were pressing Ottawa to get the people
moved off there and we were trying to get Ottawa convinced to
10 move in the matter.
Q. In other words, you were interested in seeing whether
Ottawa would co-operate with you as representing the City of
Vancouver, in having these people removed as squatters—that
you regarded as squatters ? A. Well, they were regarded by us
as squatters, yes. But what, if I remember correctly, was in my
mind at the time, was to get information to impress the necessity
on Ottawa of doing something in the matter as soon as and as
quickly as possible.
Q.   Certainly.   A.  Up to that time we had no accurate in-
20 formation as to how long they had been there or anything about it.
Q. In other words, you went there to get ammunition, as we
call it, for the Federal authorities, didn't you? A. Yes," I went
there to get all the information I could.
Q. Certainly. And in antagonism to any rights, as you call
them, that the squatters claimed—antagonistic to their interests ?
A.  Well, I could not say that that was in my mind at the time.
Q.   Well, were you there in a purely friendly capacity, or
were you there to see if you could not get something to attack their
possessory interests—whatever that might be, in the Park?   A.
30 Xo.   What was'in my mind at the time was, if possible to get
Ottawa to move in a friendly way.
Q. And thentdo I take it as a result of the representations
which you made to Ottawa, that they decided then to move in a
decidedly unfriendly way, is that it? A. Well, I presume that
is what they ultimately arrived at.
Q. As a result of that information which you obtained? A.
Well, I could not say it was altogether on that information, I am
sure. They apparently had some other source of information as
well as what we gave them.
40 Q. At the same time in prefacing your approach to Mr.
Smith for information, you did not disclose to him—I say it not
in any offensive manner.   A.  Yes.
Q. —the ulterior motive which you had as a representative
—as the legal representative of the city—and of the town? A.
I think that during the conversation, in the early part of it at any
rate, that I had said something to Smith that we were desirous of  128
James B. Williams—Cross Exam.
getting them to move off, and we were approaching Ottawa in the
matter and I wanted to get all the information I could to submit
to Ottawa to see what they would da.
Q. However, I don't suppose you at all intimated to him
that you intended to take up arms against him ?   A.  No.
Q.   It would be purely in a conciliatory mood.   A.  Yes.
Q.   And I suppose you impressed him with the fact that you
went there with peace—as a matter of conciliation rather than
10of war-fare, wasn't it?   A.  Oh, I don't think there was any
thoughts in either of our minds going to that extent at all.
Q. At any rate he would feel quite friendly to you by virtue
of the manner of your approach to him—in that friendly way,
wouldn't he? A. Well, I didn't say anything that would make
him feel harsh towards me at all.
Q. You carefully avoided making any such reference? A'.
Not intentionally, no; not particularly, no, because there was
nothing in my mind at all at the time as to the ultimate results.
Q. Now be frank with me—as a counsel yourself—and as a
20 practitioner you know very well if you had approached him in
the other manner what wotuld have happened? A. If I went to
Smith and told him "I want to get all the information I can
"because we are going to fight you tooth and nail," he would not
give it to me.
Q. Now, I notice you have a document there in front of you ?
A.  Yes.
Q. Is that your original entry ? A. These are the original
notes I made.
Q.   On the ground as you took the information ?   A.   No.
30        Q.   Did you transcribe that as the conversation took place,
I mean?   A.  Yes—you mean to say if this 'was actually dictated
at the time there ?
Q.   You have in front of you a document?   A.  Yes.
Q. Which you apparently have been reading and refreshing
your memory on?   A.  Yes.
Q. You know as a solicitor yourself what I am referring to
and I want to know when that was prepared? A. This was made
from notes that I took a few minutes after talking to Mr. Smith
and then this was dictated afterwards and made up from those
notes that I made at the time—this was typewritten about the
40 morning afterwards.
Q. Now, where are those notes that you had? A. They
were shorthand notes.
Q.  Did you make them yourself ? ■ A.  Yes.
Q. And are you prepared to say that this is an exact copy
of the notes that you made there?   A.  Yes, exactly.
(Witness aside).  129
William Stanley Rawlings—Direct Exam.
William Stanley Rawlings—Cross Exam.
WILLIAM STANLEY RAWLINGS, a witness called
on behalf of the Plaintiffs, being first duly sworn,
testified as follows:
DIRECT EXAMINATION BY MR. McCROSSAN:
Q. What is your occupation, Mr. Rawlings? A. Parks
Superintendent.
Q.  Of the Parks of the City of Vancouver?   A.  Yes.
10       Q.  How  long   have   you   occupied that position?   A.  12
years. ■
Q. Twelve years. Do you recall having a conversation with
the Defendant, Peter Smith, in this action ?   A.  Yes.
Q.  Prior to the commencement of this action?   A.  Yes.
Q. Who was with you at the time and where did it take
place? A. Mr. Williams, and Mr. Jones of the Brockton Point
light-house, in the home of Peter Smith.
Q.  At Stanley Park?   A.  Yes, at Stanley Park.
Q.  What did Mr. Smith say, if anything, regarding the
90 time of occupancy of that particular property that he was then
on ?   A.  He stated that he had been in continual occupation since
1872.   That date was" fixed in his mind by reason of the fact that
his daughter, he stated, was 52 years of age.
Q. His daughter? A. His sister—I beg your pardon.- His
sister was 52 years of age and she had been born there within a
year of their occupation.
Q.  By whom ?   A.  Peter Smith.
Q.  Of Peter Smith, Senior?   A.  Of Peter Smith, Senior.
Q.  About when did that conversation take place, do you
30 recall?   A-  I think it was  September,  1922,  if I remember
rightly.
Q. How did you happen to be out there ? A. Under instructions from the Legal Department to accompany Mr. Williams
with a view to ascertaining what facts or information we could
gather in connection with that case previous to the matter being
taken up with Ottawa.
CROSS-EXAMINED BY MR, LONG:
Q.  In other words, to lay the foundation of an action against
these people for ejectment?     A.   Well, I don't know.   I could
4C not say that.
Q.  Well, have you a distinct recollection of that conversation?   A. Yes.  130
William Stanley Rawlings—Cross Exam.
Q. Did you make any notes of it ? A. No, but we did confer
about it afterwards and made a memorandum at the time outside
of the house.
Q. You made a memorandum?   A.  A memorandum was
made.   I did not personally, but I saw, the memorandum made.
Q. And have you seen that memorandum since?   A.  No.
Q.  Have you discussed it since ?   A.  No, not in particular.
Q.  In the preparation of this case haven't  you  discussed
10what took place on that day?   A.   Oh yes.
Q. With whom have you discussed it—Mr. Williams? A.
No.
■ Q.  Captain Jones ?   A.  No.
Q.  With whom have you discussed it?   A.  Mr. McCrossan.
Q.  Have you had access to the transcript of that memorandum which was made or supposed to have been made after you
got out of the house ?   A.  No, not that particular one, no.
Q.  Well, this memorandum was made after you had this
conversation.   You went outside and made a memorandum, did
20you?   A.  Yes.
Q.  Who made the memorandum?   A.  Mr. Williams.
What did he write it on ?   A.  Just a slip of brown paper,
as I can recollect.
Was it a very extensive memorandum ?   A.  No, I think
Q.
as near
Q.
not.
Q.
After your conversation was through you went outside
and made it?   A.  Yes.
Q.  Did you see it typewritten afterwards, or do you know
if it was typewritten?   A.  No, I have no recollection of it.   I
30 haven't seen it since.
MR. McCROSSAN:   That is all.
(Witness aside).
MR. McCROSSAN:   There  are a  few questions  on  discovery.
MR. LONG:   Just one question.
Q. Do you remember whether Mr. Smith was in bed at'the
time vou were there ?
MR. RAWLINGS:  Yes.
40        THE COURT:  Have you got that discovery here, Mr. McCrossan ?
MR. McCROSSAN: Yes. Questions 1 to 11, inclusive, of
the examination for discovery of Peter Smith, taken on June
12th, 1923. Questions 1 to 11, questions 57 to 59, inclusive; question 63.
. THE COURT:   What locality are you referring to there *
MR, McCROSSAN:  The Hastings Mill people, just before  131
Extracts from Examination for discovery
of defendant Smith
they put up the mill on the present site on this side had about 40
acres, which they cleared at Brockton Point.
MR. LONG: I object to that statement. I don't think you
should make that statement.
MR. McCROSSAN:   That is not in evidence here.
THE COURT:   This does not convey anything to me—the
questions you have read do not specify the locality which he is
• 10 talking about, and unless you have got it there it does not help me
any.
MR. McCROSSAN:  I may have jumped—
MR. LONG: I want to put in question 60 with that,—if that
is going in the record that should go in with it: "I understand
"he located after he moved off."
THE COURT: Well, it doesn't interest me, because it does
not show the location being spoken of there as being.the one in
question in this action and it is valueless unless I can connect that
up.
20 MR. McCROSSAN: Well, 55 and 56 show that we were
■ talking about that neighborhood,—his own property where he is
now—
EXTRACTS FROM EXAMINATION FOR DISCOVERY
OF DEFENDANT SMITH.
Q. You are the Defendant, Mr. Smith, in this action? A.
What do you say?
Q. You are the Defendant in this action? A. In this
action ?
Q.  Yes,   A.  Yes.
30       Q.  How old are you?   A.
—3rd of last May.
Q.  Where were you born?
Q. Where were you born?
Q.  In Stanley Park?   A.
time.
Q. It is what we call Stanley Park now? A. Yes, but
Brockton Point is where I was born.
Q. What   was   your   father's   name?   A.  Smith—Peter
Smith.
40        Q.  Well, he was Peter Smith, Senior, then, and you are Peter
Smith, Junior, I suppose?   A.  Yes.
Q.  Then you were born about 1875 ?   A.  Yes.
MR. McCROSSAN: 55 Q. Have you been in continuous
occupation of that property since your father died?   A.  Yes.
I am 48—48 years old last May
A.  I beg your pardon?
A. Born at Brockton Point.
It was not Stanley Park at that  132
Extracts from Examination for discovery
of defendant Smith
Since my father died I have been there all the time.   My family
lives there.
Q. Never at any time closed it up and went away? A. No.
It has never been vacant.
Q.  When^did the Hastings Mill move off there, do you
know ?   A.  Well, that I could not tell you.   I seen what they left
there—little shacks that they left there.   I can see where they
10 built little shacks there.   You see they cleared little spots.
Q. Yes, they cleared that and were going to put a mill up
there at one time   A.  Yes, I know.   So they told me.
Q. And your father did not locate there until after they
moved off, did he. Do you know anything about that? A. I
think my father located there while they were there. The Hastings Mill was there before.
Q. I understand that he located after they moved off. Do
you know anything about that at all?   A.  No.
Q.  What was his nationality?   A.  Portugese.
20        Q.  You were a Portugese?   A.  Yes.
Q. Well, are you the only one on the property within the
fence?   A.  Our family is there.
Q.  Well, is there just the one house ?   A.  Yes, just the one.
Of course my father had a boat-house further down that way.
. He built a boat-house where he kept the boats.
Q. Further down which way? A. Further down towards
Cole's place and I keep my boat there, too.
Q.  Have you got that now?   A.  The building is there.
Q. Is it still there?   A.  Yes.
30       Q.  But it isn 't on your property ?   A.  No.
Q. Now couldn't it be that your memory is. at fault. My
information is that your father came there in 1872?   A.  1872?
Q.  Yes, not in 1861.   A.  No.
Q. Well, I understand that your father located there just
about a year before your eldest sister was born. That would be
like 53 years ago. That rather dovetails' in with the information
that he settled there about 1872. I am just trying to refresh
your memory. A. Oh, I can tell you who gave you that. Of
4q course it is not my business to talk to you in that way, but I can
tell you who gave you that. That is some of old Jones, the lighthouse keeper's talk.   That is some of his talk, I know.
MR. LONG: Well, is it correct, Mr. Smith? A. No, it is
not correct.   It is absolutely wrong.
MR. McCROSSAN: Well, now, can you fix in your mind
when your father told you he came there in the sixties? Have
you any recollection as to when he told you that?   What age were  133
Extracts from Examination for discovery
of defendant Smith
you ? What were you doing or where did he tell you, or how did
it come up? What I think is you may have got confused in a
discussion with somebody else.   A.  No.
MR. McCROSSAN:   107 Q:   Then you say you have been
there, from what your solicitor refers to as time immemorial.
You mean then that you claim possession from the time you have
been there yourself and through your father, is that it?   A.
10Well, I suppose I claim my father's rights.
108 Q.  There is.no one else?   A.  No.
109 Q.   Except you and your father that claims the title?
A.  No.
■ 110 Q. And your father was the original squatter on that
particular piece of property ?   A.  Yes.
I had better put that in and that shows the connection.
MR. LONG:   No.
THE COURT:  "When did the  Hastings  Mill  move  off
there, do you know ? "  It is very hazy, Mr. McCrossan.   All right.
MR, McCROSSAN:   Questions 63 and 64; questions 69 and
70, down to 74, inclusive; and questions 107 to 110."
MR. LONG:   Now, my lord, I think in fairness to my client,
I should have questions 76 and 77 in.
THE COURT:   Well, you can put those in if you wish.
MR. LONG:   Yes, 76 and 77.
MR. McCROSSAN:   Questions 107 to 110.
THE COURT:  Yes.
MR. McCROSSAN:   That is the case for the Plaintiffs,
lord.
)        THE COURT:   All right.
20
my  134
Captain George Marchant—Direct Exam.
DEFENCE
CAPTAIN GEORGE MARCHANT, a witness called
on behalf of the Defence, being first duly sworn,
testified* as follows:
DIRECT EXAMINATION BY MR. LONG:
Q. How old are you, Captain? A. Well, I am in my
eightieth year.   I was born in—
Q.  You were the Captain of the old'' Beaver,'' were you not ?
10 A.  Yes.
Q, When did you come to British Columbia? A. I came
to British Columbia in 1867 in a British Man-of-war, and I was
born in Esquimalt in 1867—
Q. When did you come to this neighborhood? A. Then I
was transferred to the "Beaver"-—to the old "Beaver" of the
Hudson's Bay Company. They owned her and the British Government had her chartered for the purpose of making charts of
the coast and around Vancouver and I was on her for four years
surveying the coast. You can see my name in it. I have a rock
20named, after me, too. I haven't got the city or anything like
that—
Q. When did you come to Vancouver, or what we call Vancouver?   A.   '72.
Q. And was anyone living over in Brockton Point at that
time?   You know Brockton Point?   A. Yes.
Q. Was anyone living there ?   A. Yes, there was Tompkins '
Brew, a Customs House officer, and I think Joe Manion lived
there, and there was Portuguese Pete, or Joe—I forget his name
—but an old timer.   He had been there for years.   He had a store
30 there, and there was a man named Silva there.
Q. Was that Joe Silva ? A. Well, there were two brothers
I believe and which one it was I don't know.
Q.. Was Peter Smith living there then? A. Yes, Peter
Smith was there.
Q. Do you know where his son now lives ? A. Well, I have
been down there lately—about a year or two ago you know, and
that is the first time I was ever on the property, but I know it
was there because I was on a little steamer for the Moodyville
Company—working on it.. There was one man in Westminster
40 bad a threshing machine and another man had a scow and they
formed a partnership and made a steamship out of it.
Q. Well, now, what time in '72 do you remember Peter Smith
being in there ?   A.  Well, I did not come here until December of  135
Captain George Marchant—Dirdct Exam.
'72, but I heard them talking and heard his name mentioned there
—Mr. McCrossan knows all about that.   I told him of when I was
in False Creek and he won the ease through it I think—that is.
what I think anyway, and all he wanted to give me for my information was f.5.00 and I said no, that wasn't enough.
Q. Well, we are getting away from the beaten path. A.
Certainly.
Q.  In December of '72 you told his lordship—   A.  I was
10 there in December—we had Christmas Day in Victoria in '72 and
New Years Day in '73 at Moodyville.   I came there at that time.
Q.   Was Pete Smith living at the Park then?   A. I think
he was.   I am not certain, but I know shortly after that I knew
his name or heard of it; but coming in just on that one day I could '
not find out all on that one day.
Q. Do you remember being at my office and bringing a man.
named Taffendale in? A. I certainly do and I will tell you why
I brought him there.
Q.  Never'mind that.   This man named Punch—   A. Yes,
20 Punch.
Q. Have you got his statement—I took down a statement of
his which he made here on Monday. Do you remember any statement that he made in my office? I ask you this, Captain—-he
came there and I was inquiring from him was I not, as to his
recollection of the settlers at Brockton Point? A. Yes, yes, I
brought him up and introduced him to you.
Q. As a prospective witness on behalf of the defendant ? A.
Well, I thought he would be a good witness for you.
Q.  Well, that was about two months ago, was it not?   A-
30 Oh yes, yes, about that.   I could tell you I saw the morning Sun,
because I read it in the morning newspaper—I generally read
the paper in the morning and I saw about a missing man.
Q. Do you remember any statement Mr. Taffendale made to
me at that time regarding Joe Silva and Peter Smith? A. Yes,
I remember he told me he knew them well. He had been out there
often and seen them.
Q.   Do you remember him making any further statement
about having known when they were at the Park and seeing them
there?   A.  Yes.
40       Q.   And that they had been at the Park ?   A.   Yes, I remember him telling you a whole lot of business about it.
Q. Well, just remember if you can anything he did say. A.
He said he knew the whole of them and had been out there many
a time to them, and things like that.
Q. Do you remember whether he gave any dates or not? A.
Well, I won't be certain about that, but I know he told you that tns Captain George Marchant-
Captain George Marchant-
136
-Direct Exam.
-Cross Exam.
he was over here at the time the Moodyville was running and he
towed some logs or something from here over to Moodyville. That
would be before the seventies—before '72—before the seventies,
and he told me that he came,over here sometime in '57, or something—was it '57 or '58—oh, he told you a lot, I know. The reason
why I thought I would bring him to you—
' THE COURT:   Never mind that.   It all costs money and I
10 want to keep you down to just what is relevant.   Put the direct
statement to him, Mr. Long.
MR. LONG J I asked Mr. Taffendale whether he had not
told me in my office in your presence— A. I heard what he
said—
Q. Just a minute—that in 1867,1 think he said, he was—as
you have said—he was towing logs? A. Yes, taking -them to
Moodyville.
Q.  —that in 1867 he was towing logs around here somewhere
and he then visited the Park and Joe Silva and Peter Smith were
20 then living there ?   A.  Oh, I remember that well.
CROSS EXAMINED BY MR. McCROSSAN:
Q. You gave me some very valuable evidence you say, Captain, on that one case for the city a little while ago? A. Yes,
sure—the Deadman's Island case—not Deadman's Island—Industrial Island.
Q.  You are sure about that?   A.  Yes.
Q.   And it won the case for the City, you say?   A.  Yes.
30 And you wanted to give me $5.00 for it—
Q. For the two or three times you came in? Aj Two or
three times?
Q. Yes. A. I see; but you took three or four- big sheets of
notes on it.
Q. In other words, the ease never went to trial and you were
not even called as a witness and yet that is what you call winning
a case ? A. Well, it was about a year—and you told me I had to
wait until the dispute was settled between the Provincial Government and the Dominion Governments—
40 Q. But the case never went to trial? A. You have never
had a trial yet ?
Q. And that is what you call winning the case? A. Well,
have you won it yet?
Q. Now, you located Mr. Taffendale from an advertisement,
you saw in the Sun?   A.  Yes.
Q.  That advertisement was put in by the police, wasn't it,  137
Captain George Marchant—Cross Exam.
endeavouring to locate him?   That is the way the advertisement
read.  A.  I read of it in the'' Missing Persons'' and I saw it men-
.   tioned "Punch," and I said, "why I know Punch well."
Q. And that is how you got on to him and you took him up
to Mr. Long's office as soon as you got hold of him?   A.  Yes.
Q. And you were very keenly working for Mr. Long after
the city did not want your evidence ?   A.  They did not want it ?
Q.  You came in and offered your evidence to them?   A.  I
10 asked them if they knew where Punch was.
Q. You were there long before Punch was ever heard of,
and wanted to give evidence for the city ? A. No, I did not go
near any of you for that. Here is the dates I have got—and I said
"no, I will go to Long about it."
Q.  Didn't you offer your evidence to the city?   A.  No.
Q. And came in and wanted to be a witness for the city ? A.
No, I gave it to you freely and willingly without any price.
Q.  And didn't Mr. Williams, when you got abusive, order
you out of the office?   Isn't that so?   A.  No, that was another
20 time he ordered me out of the office.
Q. Now, what about this $5.00 that you say was offered
you?   A.  He offered me $5.00.
Q. About this $5.00 that Mr. Williams offered you as remuneration for your time for coming in and giving a statement about
this Industrial Island? A. He said, "that is all the money I
have in my pocket,'' and that is all he would offer me.
Q.   And then you came in later and put in a bill for $50.00
for that?     A.   Well, I said to him "you haven't got to pay it,
"It is the city."
30       Q.   Well, you finally put in a bill for $50.00 ?    A.   Yes, and
. that is a copy of it if you want it.
Q. And you went before the Finance Committee and they
gave you $50.00? A. Yes, but they would only give me $25.00
first, but I got the $50.00.   There was some more evidence I got.
THE COURT: You got the fifty anyway? A. Yes, but
they only wanted to give me the $5.00 and I saw Mr. Maitland,
the Harbour Commissioners' lawyer, and he said, "Oh, George,
"thev ought to give you $250.00 at least."
MR. McCROSSAN:   That is all.
4C       A.   If you want some more I will give some more.   But you
don't want me.   Can I stop here a little while?
MR. LONG:   Yes, you can sit down there, Captain.
(Witness aside).  Mrs. Martha Smith-
Mrs. Martha Smith-
138
-Direct Exam.
-Cross Exam.
MRS. MARTHA SMITH, a witness called on behalf of the defence, being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. LONG:
Q. Now speak up, Mrs. Smith. Mrs. Smith, you are the
wife of the Defendant in this action, Peter Smith?     A.   Yes.
Q.   Now just speak up, please.    Do you remember the
occasion of the visit of Mr. Williams and Mr. Rawlings to your
10 home?     A.   Yes.
Q. Just tell his lordship, will you, about that? A. Well,-
Mr. Rawlings and Mr. Williams and Mr. Jones both came to the
door and Mr. Jones introduced them to me. One was the city
solicitor and the other was the Park Commissioner or something
like that, and they wanted—well, they said something about buying the place or something to that effect, you know. And I said,
"You don't need to say anything to me about it because my hus-
"band is here and he is in bed sick." And they said'I was all
right—whatever information they wanted they would get it out
20 of me; and I said "You had better come in and see him." But my
husband was too sick. He was propped up in bed at the time—
I don't remember just what was said at the time, but of course
I was right in the room.   '
Q. Well, what was his physical condition at that time?
A.   Well, he had dropsy pretty bad at that time.
Q. And had,he just had a bad attack at that time? A.
Well, he was not fit to be seen or for anyone to visit him. There
was no one allowed to see him at the time.
Q.   Did they make any notes in your presence?     A.    No,
30 they had nothing.
Q. And they told you they had come there to see about
buying the place from you ?     A.   Yes.
CROSS EXAMINED BY MR. McCROSSAN:
Q. Your husband, Mrs. Smith, is rather what you might
call more or less of an invalid—chronically ill, is that right*
A.   Yes.
Q.   He has a bad heart?     A.   Yes, he has been sick for
two years and a half.
4fl        (Witness aside).
MR. LONG: My lord, excepting this phase of the matter
—your lordship has forced me into this position—I would have
to consult Mr. Smith about what occurred on that occasion.  139
Mrs. Martha Smith—Cross Exam.
MR. McCROSSAN: WeU, I asked him about that on discovery and he might put in what you might say is a denial.
MR. LONG: Well, I don't wish to pursue the matter any
further than is necessary because of his condition and I don't
want to irritate him—
MR. McCROSSAN: Well, I will gfet it for you in the discovery—he made a denial.
THE COURT: You can put that in, Mr. Long, the denial,
10 and Mr. McCrossan is willing to admit that he did deny it.
MR. McCROSSAN:   Yes, I could put that in for you.
THE COURT: Mr. McCrossan is willing to admit that he
did deny it on discovery.
MR. McCROSSAN:   I think it is questions 81 and 82.
THE COURT:   All right, put it in.
MR. MeCROSSAN: It is questions 81 and 82. You can put
it in as part of your case—no, 81. It is all part of the one question
and answer.
MR. LONG: Well, I think with the evidence that is now
20 in that is all, my lord.
THE COURT:   All right.
MR, McCROSSAN:   Well then, there was a suggestion—
THE COURT:   What about these other cases?
MR. McCROSSAN: There is a suggestion that the Long
and DeKosta eases should go on tomorrow.
MR. LONG: I am quite willing if your lordship could take
them in the morning.   We might as well clear them right up.
MR. MeCROSSAN ■    There are only the three.
THE COURT: Very well, bring them on in the morning at
3011 o'clock.   We will adjourn until 11 tomorrow.
(Court adjourned until 11 a.m. tomorrow)
"E. Blygh"  140
IN THE  SUPREME  COURT OF BRITISH COLUMBIA
(Before Murphy, J.)
Vancouver, B. C, 8th November, 1923.
11 a.m.
487/23
ATTORNEY GENERAL OF CANADA and
CITY OF VANCOUVER
V.
MARY DEKOSTA   nee MARY LONG, wife of
10 FRANK DEKOSTA
TRANSCRIPT PROCEEDINGS AT TRIAL
G. E. McCROSSAN, Esq.,
appearing for the Plaintiffs.
G. ROY LONG, Esq.,
appearing for the Defendant.
MR. LONG: My lord, Mrs. DeKosta's car broke down, or
something. She is not here yet, but we could go on with the other
case.
MR. McCROSSAN:   She will not be long, I don't suppose,
20 and I would prefer to take the DeKosta one first, because it saves
repeating quite a few questions.   She has the best memory.
THE COURT:   All right.   Let me know when she arrives.
MR. LONG:   Yes; she will be here in about ten minutes.
(Court adjourned and resumed at 11.15 a.m. on arrival of
Mrs. DeKosta).
MR. LONG:   Well, then, the DeKosta case my lord.
MR. McCROSSAN: The only additional evidence I propose putting in in that is to read some discovery of Mrs. DeKosta.
THE COURT:   Have you it there, Mr. Registrar—the dis-
30eovery?  141
Extracts from Examination for discovery
of defendant DeKosta.
10 years.
15.
Q.
Yes.
16.
Q.
17.
Q.
41.
Q-
20
EXTRACTS FROM EXAMINATION FOR DISCOVERY OF
DEFENDANT MARY DEKOSTA.
1. Q. You are the Defendant in this action, Mrs. DeKosta?
A.   Yes .
2. Q . How long have you been residing in this house
where you are now at in Stanley Park ?     A.   Over thirty.
3. Q.   Thirty years?     A.   Over thirty, about thirty-five
You are a daughter of Peter Smith Senior?     A.
He was a Portugese?     A.   Yes.
How old are you?     A.   52.
When did Mrs. Dunbar build here ? A. She built
it when he came there. I had nothing to do with that, though.
You can ask her.
42. Q. Well was that built when you were a little girl, the
Dunbar house?     A.   Yes, that was built.
43. Q.   As far back as you can remember?     A.   Yes.
44. Q. Is she an older woman than you ? A. Yes, she is
older.   SLe is sixty something years old.
45. Q. Well, when you were a little girl, who occupied it?
A. Some other people; a man named Mr. Brew used to be in
there.
46. Q.   Mr. Brew?    A. _ Yes.   She has been only there 35.
,   47.   Q-   Was not Brew, there before Peter   Smith?      A.
About the same time, I guess, because I seen him there.   He is
dead now though.
30        48.   Q.   When did Brew quit the premises?     A.   I think
he bought it off some other man.
49. Q. But when did he quit, Brew? A. I cannot tell.
He went away a long time, and some cfther people came afterwards.   I don't know their names, though.
50. Q. Then Brew quit and went away, and the property
was idle for a time, and then somebody else came and took it up,
is that right?     A.   Yes.
51. Q. Could you tell me about what time Brew left it?
A.   I could not tell you that.   I was only a little girl then.
52. Q. How old would you be then? A. Maybe around
six.   I can just remember him.
53. Q. Well that would indicate just what I suggested.
Peter Smith's property was just the original property that he
now occupies, and then Brew had some property next which he—
40  142
Extracts from Examination for discovery
of defendant DeKosta.
Mrs. Mary Dunbar—Direct Exam.
A.   He left.   He did not want it at all.
68. Q. Have you any written documents or will or deeds,
or anything from your father to you about your property? A.
No.
90.   Q.   You said you hadn't any documentary title deeds.
A.   No.
10        91.   Q.   Or anything of that kind, or will?    A.   No, I have
nothing.
MR. McCROSSAN: The same agreement extends to this
case—that all the other evidence in the other cases applicable to
this case is taken as read in this case, including exhibits; and
the numbering of the exhibits will be the same.
THE COURT:   Yes.
MR. McCROSSAN:   The examination of the Defendant
Mary DeKosta on June 15th, 1923-Q's 1 to 3; Q. 15 to 17 inc.; Q. 41
to 53, inc;
20       MR. LONG:   Well, this has no concern with this case, has
it?
MR. McCROSSAN: Well, it does apply generally to the
right of the title.
MR. LONG: This refers to the Dunbar property, and we
are not claiming that.
MR. McCROSSAN: No, but you are claiming property that
extends beyond it.   It is a matter of argument-t-that is all.
THE COURT:   Well, I will take it subject to objection.
MR. McCROSSAN:    (Reading Discovery)      And Q. 68;
30 Q. 90 and 91.   That is the case for the Plaintiff, my lord.
DEFENCE
MRS. MARY DUNBAR, a witness called on behalf of the defence, being first duly sworn, testifies as follows:
DIRECT EXAMINATION BY MR. LONG:
Q. Your name?   Mrs. Dunbar?     A.   Yes.
Q. Mary Dunbar?    A.   Yes.
Q. How old a woman are you ?    A.   I was born in 1857.
Q. That would make you 66.   How long have you lived in
Stanley Park ?     A.   A' year after the fire.
40        Q. That would be what year—since 1887?     A.   Yes.
Q. Thirty-six years ago.   You have lived on parcel 4—we  143
Mrs. Mary Dunbar—Direct Exam.
Mrs. Mary Dunbar—Cross Exam.
have referred to parcel 4—I think that is correct, Mr. McCrossan
—parcel 4 on the colored map, you see.
MR. McCROSSAN:   Yes, that is right.
MR. LONG: Q. Next to you, nearest the gun on Brockton
Point—next to you lives Ed. Long—is it not?     A.   Yes.
Q.   And then farthest out Mrs. DeKosta?   A.   Mrs. DeKosta, yes.
10        Q.    Some evidence was given here yesterday, Mrs. Dunbar,
of a pontoon or floating wharf which was moored there' to two
posts along that shore.   Do you remember that?     A-   Yes.
Q. You remember when it was put there ? A. Yes, I think
I can remember when it was put there. .
Q. Now, where was it along that shore-line? A. It was
just past Mrs. DeKosta's—where her house is now.
Q. Between her place and the gun? A. Between her
place and the gun.
Q.   Was that vacant property then ?     A.   Yes.
20        Q-   Now, there is a fence running to the north—that is
nearest to the gun ?    A.   Yes.
Q. A fence running bounding that part of Mrs. DeKosta's
property down to the shore ?    A.   Yes, it has always been there.
Q.   It is overgrown with vines and ivy and stuff ?    A.   Yes.
Q. And you say it has always been there ? A. Yes, it has
always been there to my recollection.
Q.    Since you went to the Park ?    A.   Yes.
Q.   And also a fence nearest the road, too?     A.   Yes.
CROSS EXAMINED BY MR. McCROSSAN:
30 Q. I thought you told me, Mrs. Dunbar, that it was '88 you
went there? A. I went there a year after the fire, Mr. McCrossan.
MR. LONG:   The fire was in 1886.
MR. MeCROSSAN: Q. I am pretty sure you told me on
your examination for discovery it was in 1888. You may be
right and I may be wrong. I will look that up—I had the particulars in your case as being '88—I thought you put it in your
discovery, two years after the fire? A. Well, it might have
been you know, because I was building, you see, the year after-
40 wards and I might have been there—
Q. Before that you lived down on the water-front towards
the old brewery, didn't you? A. Yes, in Sprat's house-
Sprat's place—the only house there was at that end.
Q.   Now, that wharf that my learned friend spoke about,  144
Mrs. Mary Dunbar—Cross Exam.
Mrs. Mary DeKosta—Direct Exam.
that was used by the public to bring passengers from town?
A.   Yes.
Q. -And go into the Park?     A.   Yes.
Q.   And to the recreation ground there, wasn't it?   A.   Yes,
but there was not much doing there then, you know, at that time.
Q. Well, it was used quite extensively around 1890, wasn't
it ? A. I guess it was used there all the time.
10 Q. Yes. This is what you said, before, "how long before
"the fire of 1886 was it that you went there?" "A. I came here
"—meaning to Vancouver—" two weeks after the fire and I lived
"over town two years."    A.   Yes, I guess I did.
Q.   "It would be sometimes in 1888 you think?    A.   Yes, I
"guess so."
A.   But I was building there before then, you see.   I was
building over in the Park before I,moved there.
Q.   Well, speaking from your recollection, I think your particulars say 1888, but however, there is nothing turns on it.
20        MR. LONG:   That will do, Mrs. Dunbar.
(Witness aside).
MRS MARY DEKOSTA, Defendant, being first duly sworn,
testified as follows:
DIRECT EXAMINATION BY MR. LONG:
A.
Yes.
Q.   You are Mary DeKosta, the Defendant in this action
"Yes.
Q.   You were formerly married to Edward Long?
A.
30
40
Q.   Who died in 1900?     A.   Yes.
Q.   And your son is Edward Long?     A.   Yes.
Q.   And he lives next to you ?     A.   Yes.
Q.   Between yourself and Mrs. Dunbar ?     A.   Yes.
Q.   How old a woman are you, Mrs. DeKosta ?   A.   52.
Q.' You are a daughter of Peter Smith, Senior?     A.   Yes.
Q.   Who died about 18 years ago?     A.   Yes.
Q. And where does you brother Peter live? A. He lives
down in the same place where we were born.
Q.   You were born there, were you ?    A.   Yes.
Q.   Now, do you remember the old home ?     A.   Yes, I do.
Q. When you were a young girl, what kind of a house was
it?     A.   Just made out of old split cedar—old split cedar.
Q. Well, was it—going back to the best of your recollection,
was it a new house, or what kind of a house was it ?     A.   It was  145
Mrs. Marv DeKosta—Direct Exam.
kind of an old house then.   I remember very well.
Q. Do you know the history of your fajnily and about your
father?     A.    Not very much.
Q. Do you know when he came to this country? A. I
think he was here in about '61.
Q.   Where had he gone before that, do you know?
MR. McCROSSAN:   That is not evidence.
MR. LONG:   Well, that is subject to your objection.
10.       A.   He went to the Cariboo Gold Rush.
Q.   He went to the Cariboo Gold Rush?     A.   Yes.
Q.   And came back from there to the Park?     A.   Yes.
Q. Now, what is your recollection about there being any
fence around the old property? A. I always noticed the fence
around there.   There has always been a fence there.
Q.   Was the property clear ?    A.   Yes, cleared.
Q. Well, your fence is the last fence nearest the gun, isn't
it?     A.    Yes, "sir.
Q.   And how long has that fence been there?     A.   As far
20 as I remember.
THE COURT: How long is that? A. That is quite a
long time.
MR. LONG: Q. How many years? A. Since I have
been a little girl I remember the fence there.
Q. Well, how old would you be when you remember that
fence there?     A.   I cannot tell you that.
. Q.   Well; was it a new fence or an old fence at that time?
A.   It was an old fence.
Q.   Do you know who put the fence there ?     A.   I suppose
30 my father put part of the fence along there.
Q. Well there has been some evidence about a float. Do
you remember that float ?    A.   Yes, I remember the float.
Q. Well, where was that float in relation to your fence?
A.   It was at the point, at the end near the gun.
Q. Well, from that point—from your property to the gun—
whose property was that?     A.    That was vacant.
Q.   That was vacant property, was it ?    A.   Yes.
Q.   Now when you were a small girl was your father using
that land where you and your son Ed live?     A.   Yes.
40        Q.   Was it cleared then?     A.   Yes, it was cleared.
Q.   Did he have any garden ?    A.   Yes, he had a garden.
Q.   How old is your son Ed ?    A.   Thirty-two.
Q. Well, is your brother Peter living on the site of the old
home?     A.   Yes, he is living there.
Q.   Your witness, Mr. McCrossan.  146
Mrs. Mary DeKosta—Cross. Exam.
CROSS EXAMINED BY MR. McCROSSAN:
A.
Q.   You were born Mrs. DeKosta, on your father's place?
I was.
Q. That is the particular property now where your brother
is living ?    A.   Yes.
Q. Now, was it in the same house that stands there today?
A.   Yes, the old one, yes.
Q.   Well, is there any house there now to what there was
,10 there when you were born?     A.   Yes.
Q. That is as far back as you remember when you were a
little girl. When was this change made—this new house?' A. I
don't know how many years ago. It was since my father died.
My brother was in the place there.
Q. This present place is not the one that was there when
you were a little girl ? A. Yes, the little one is, the little building.
THE COURT:   There are two there—an old building and
it was added onto.
20       MR.  McCROSSAN:   It was  the  enlargement that  your
brother built ?     A.   Yes.
Q. You have resided in your place where you are now living
since 1888, you said ?     A.   Let me see.
Q.    Thirty-five years, since 1888?     A.   Yes.
•Q.   That is what your particulars say ?     A.   Yes.
Q. You then built that house, did you ? A. No, that house
has been there 45 years—that old house there.
Q.    Oh, it was empty when' you moved in, was it?     A.    Oh
Mr. Long had it built there—he came there.
Q.   Oh, Mr. Long did?     A.   It was his house.
Q.    It was his house ?     A.    Yes.
Q.   And he was living there when you went there ?   A.   Yes.
Q.   And you were married to Mr. Long when you were about
A.    Seventeen.
Q. Now, I notice that you don't claim through Mr. Long in
vour particulars, Mrs. DeKosta—that you claim through vour
father?     A.   Yes, I do.
Q.   And I also notice that your son Edward Long—well, that
is a little ahead of the story.   Your son now lives on the property
! next—west to you, does he not ?     A.   Yes.
Q.   And there is now a fence in between the two ?    A.   Yes.
Q.   Between your place and his—is that right?     A.   Yes.
Q. And he put his house up in about 1917, didn't he ? A. I
guess something like that.
Q.   Just a few years ago?     A.   Yes.
no.
161
-"  147
Mrs. Mary DeKosta—Cross. Exam.
Q.   While the war was on ?    A.   Yes, when the war was on.
Q. Prior to that he was living with you in your place?
A.   Yes.
Q. Now, your son claims both through his father Edward
Long and through his grandfather Peter Smith I notice—but you
are not claiming through Edward Long, your husband, but you
are claiming through your father ?    A.   Yes, I do.
MR. LONG-: I don't think that is quite accurate, Mr. McCrossan.   You have stated it wrongly I think.
MR. McCROSSAN: And your son is claiming through Ed^
ward Long. At what point of time did your husband take control
of that place? Had he complete control of it before you moved
in?     A.   Yes.
Q.   You said yes to that?     A.   Yes, I did.
Q. And you moved in there, I presume, as any ordinary girl
would move, in marrying a .husband who had already a house?
A.   Yes.
Q.   Now Mrs. Dunbar's place was always in between your
20brother's—or your old home—your father's old homeland yours
—of the Long house ?    A.   Yes.
Q. That at one time was occupied to your -recollection by
Mr. Brew?     A.   Yes.
Q. Mr. Tompkins Brew, isn't that right? A. That is
right.
Q. And he moved away from there sometime about 1875,
didn 't he ?    A.   I don't know what time he left.
Q.   Well, it was sometime in the seventies.   Do you remember that ?;   A.   Yes, it must have been that.
30        Q.   And it was idle for a time after Mr. Brew moved out?
It was empty, wasn't it?   Don't nod your head; we have to get
it on the notes.     A.   Yes.   All right.
THE COURT:   Which property is tHat ?
MR. McCROSSAN: Parcel 4. The one of Peter Long's
and Peter Smith's.
Q.   Now when the road was built there, Mrs. DeKosta, they
' moved, you back the same as they did the others, didn't they?
A.   They moved the fence.
Q.   Well, they moved the fence?     A.   Yes, they did.
40        Q.   The width of the road?     A.   Yes.
Q. Your father never resided on your place at any time ?
A.   No.
Q. You don't remember, or do you, as far back as Portugese
Joe Fernandez? Do you remember him? A. I remember him
when he was in Gastown.
Q.   You remember him in Gastown?     A.   Yes, I do.  148
Mrs. Mary DeKosta—Cross. Exam.
Yes.
A.   Yes, it must be.
A.   Yes, he had a
Q.   When he had a-store there?     A.
Q.   That would be in the seventies?
I remember.
Q.   He was then living in Gastown?
store there.
Q.   Now, I notice that Mr. Gonzalves, in his examination at
question 106—referring to your property, I was asking him some
questions—says: "She was"—that is you—"the original squatter
10"on her property?     A.   I believe she was."
Now is that right, or is he wrong ? A. I guess he is right
—I don't know.
Q. Now, you don't understand the question, do you? A.
No, I don't understand what you say.
Q. I don't want you to make an admission that you don't
understand the effect of. When I was examining him, asking him
about your property, he said he understood—his understanding
was that you were the original squatter on your own property.
THE COURT:   That is, you were the first person there.
20        THE WITNESS:   Oh no, I was not the first person there.
He is mistaken.
MR. McCROSSAN:   Q.   He is mistaken?     A.   Yes.
Q. Now you told me Mr. Brew—I will just read: "Wasn't
"Brew there before Peter Smith"—that is your father— A.
"About the same time, I guess, because I seen him there/'
A. Well, I must say I was mistaken, because I didn't remember when my father came there.
Q.   No, you naturally would not remember that.
THE COURT:   Q.   Do you remember when Brew came
30 there? .   A.   No, I don't remember.
MR. McCROSSAN: He was there before you could remember ?     A.   Yes.
Q. And you remember him being there ? A. Yes, that is
it.
Q. Well then, after Mr. Brew left, if your father ever controlled that property he could only control it after Brew left,
couldn't he?     A.    Yes, that is right.
Q.   You also remember when Portugese Joe came—Joe Gonzalves, in 1874?   You said you remembered him coming there.
40You told me that on discovery?     A.   I couldn't say.   I guess
I did.
Q. And you also told me on discovery that you remembered
when Mr. Cole, Senior, came—Mrs. DeKosta. Do you remember?
A. Yes, I remember, but I don't know how long ago there. I
cannot tell you.
Q.   But you have quite a clear recollection of when Mr. Cole,  149
Mrs. Marv DeKosta—Cross. Exam.
Senior, came to that locality ?    A.   Yes, I remember.
Q. That is when you were a little girl. And it wasJVEr. Cole,
Senior, who built the house ?     A.   Yes.
Q. You also told me that you remembered when Mr. Manion
went away ?    A. - I did remember.   It is quite a long while ago.
Q. Mr. Joe Manion. That would be sometime in the
seventies, too, wouldn't it ? A. I don't know, I cannot tell you,
but I remember when he went away.
10 MR. LONQ: Might I just say, my lord—I did not bring my
brief over -this morning, but my learned friend referred to the
particulars—the reply ,1 made for Mrs. DeKosta, and there is
apparently a typographical error and it was certainly a mistake
because it was surely my intention to claim with her father and
her husband—through them.   She is certainly entitled to claim
' through her husband as well as her father and that is an omission
which was entirely an error.
MR. McCROSSAN: Well, I don't know whether it was an
error or not, my lord.
20 MR. LONG: It is in Edward Long's particulars and it was
intended to put it in her's as well.
MR. MeCRO S S AN: I appreciate my learned friend I difficulty, because he has had the same difficulty as myself in going
back into antiquity, but in switching the case from Fernandez to
Silva this -point may not have occurred to my learned friend, but
obviously from the trend of the evidence your lordship can see
that the claim is paramount coming allegedly through Peter
Smith.
MR. LONG:   Yes, certainly I agree to that.
MR. McCROSSAN: But my learned friend is now aslring
for an amendment.
THE COURT:   Well, | is only a link.
MR. LONG:   Yes.
THE COURT: I do not see that there can be any objection
to it.
MR. LONG: You cannot be prejudiced because in the next
case her son is claiming through his father and a fortiori she
would claim, too.
MR, MeCROSSAN:   Well, if my learned friend says it was
40 an absolute error on his part I will accept that statement and agree
to it.
30  150
Mrs. Mary DeKosta—Cross. Exam.
MR. LONG: It certainly is, because I did not notice it until
this moment when you drew this witness' .attention to it. That is
all.
(Witness aside).
(Concluded).
I hereby certify   the  foregoing to be a true and
accurate report of the said proceedings.
"E. Blygh"
10 Deputy Official Stenographer.  .151
IN THE  SUPREME  COURT  OF  BRITISH  COLUMBIA
(Before the Honourable Mr. Justice Murphy)
488/23 Vancouver, B. O, November 8, 1923.
ATTORNEY GENERAL OF CANADA,
and the CITY OF VANCOUVER
EDWARD LONG
10
TRANSCRIPT PROCEEDINGS AT TRIAL
MR. GEO. E. MeCROSSAN,
appearing for the Plaintiffs
MR. G. ROY LONG,
appearing for the Defendant.
MR. McCROSSAN: The Long ease is the next one and I
presume the only evidence I shall have is the evidence on discovery and that is very short. The same argument applies to
this as in the other cases and I would like to have it on the notes,
that all the evidence in the previous cases as applicable to this is
taken as being evidence in this case.
MR. LONG:   Yes, unless my learned friend wishes to ex-
20 amine Mr. Long.   He is only 31.   We could just use the examination for discovery—certain sections of that.
THE COURT: Have you that examination there?
Mr. McCROSSAN: And including the exhibits and renumbering the same as in the previous actions. (Reading) : Questions 1 to 5; questions 11 to 21; questions 27 to 36; questions 40
to 48, inclusive; question 70. That is the case for the Plaintiff.
MR. LONG: If you will consent to put in question 7 and 8
that will conclude my part also.
Mr. McCROSSAN:   Well, you can put them in.
30       MR. LONG:   Yes (reading same).   There is nothing to add,
my lord—there is nothing that I can add to them,
x (Concluded).
MR. McCROSSAN: And then the Cole case is the next one.
The Dunbar case will be tomorrow—Mr. Killam is appearing in
them.
I HEREBY certify the foregoing to be a true and
accurate report of the said proceedings.
"E.. Blygh"
Deputy Official Stenographer.  152
Extracts from Examination for discovery
of'defendant Edward Long.
EXTRACTS FROM EXAMINATION FOR DISCOVERY OF
DEFENDANT EDWARD LONG
1. Q.   You are the Defendant in this action, Mr. Long?
A.   Yes, sir.
2. Q.   You are now living in the property in question in
this section at Stanley Park, are you not?     A.   Yes, sir.
3. Q.   How long have you lived there?    A.   31 years past.
10        4.   Q.   I see.     A.' I was born and raised there.
5.   Q.   You were born there?     A.   Yes.
7. Q.   It has always been fenced ?    A.   It has always been
fenced in as far as I can remember.
8. Q.   In the same location?     A.   Yes, in the same location.
11. Q.
12. Q.
13. Q.
14. Q.
20        15. Q.
16. Q.
17. Q.
18. Q.
mother.
Where does she live?     A.   The same place.
In the same house, do you mean ?    A.   No, no.
Right next to you?     A.    Yes, right next door.
And you built a house for yourself ?     A.   Yes, for
A. ' Yes.
A.   Yes.
I mean.
You were born there, you say ?
Right on the same premises?
What year?     A.   1902—1892,
1892?     A-  Yes.
What was your father's name?
Edward Long?     A.   Yes.
Is he living?    A.   No, he died in 1900.
Is your mother living?     A.   Mrs. DeKosta is my
A.   Edward Long.
19
20.
21
27.
the family.
30        28.   Q
Q.
Q.
Q.
No, I tried to.
You did not get any building permit for that ?    A.
29.
30.
31.
' mother 1
32.
33.
A.   In 1917.
Q.   When did you build that?
Q.   In 1917?     A.   Yes.
Q. Well, previous to 1917 were you living with your
A.   Yes.
Q.   In the place where she is now residing ?    A.   Yes.
Q. Is that all really in between the one outside
boundary fence, or are there like two lots fenced separately?
A.   They are like two fences—two lots now where they are.
34. Q.    Since when or were they always that way?     A.
40 Well, as far as I can explain to you—I   built a ,house.     Our
property has been here as far as I can remember it and the house
was getting too small for one family and so I built one.
35. Q.   Inside the same property?     A.   Yes.
36. Q.   And since then you have put a fence down the  153
N
Extracts from Examination for discovery
of defendant Edward Long.
middle ?    A.   Yes.
40. Q. How long had your mother been there? A. As
far as I know she was born and raised there.
41. Q. What was her name before she was married? A.
Mary Smith.
42. Q. She was a daughter of Peter Smith, was she? A.
Yes.
10 43. Q. Well then, she could not have been born on this
property?     A.   Eh?
44. Q. She was born on the same property, wasn't she?
A.   Yes, in Stanley Park.
45. Q. So she must have taken this property up sometime
after she grew up, didn't-she? A. I could not say as to that.
I don't know anything about that part of it.
46. Q. Well, your mother was the original occupant of this
property where you are now and where she is? A. How do
you mean now?
20 47. Q. She was the original one who first occupied the
property where you are now and where she is ? A. I could not
tell you that.
48. Q. I don't mean your particular house, but the land
that your house and her house sits on? A. I could not tell you
that.
70. Q. Have you any documents of title handed down to
you from your father—any will or any deed, or any conveyance
of any kind?    A.   No.  154
Exhibit 8
NEW WEST. DIST.
Survey of Reserve at
English Bay & North of
1st Narrows.
181 to 185.   C.I—
Survey of Coastal Line
round Coal Peninsula
I, E. B. McKAY, Surveyor-General for the Province of Brit-
lOish Columbia, do hereby certify that the paper writing hereunto
annexed purporting to be Field Notes of George Turner of surveys made by him at Burrard Inlet, 1863 & contained in Field
Book 4 of Surveys of Royal Engineers, & which is a true and
faithful copy in words and figures of the original document recorded and on Jile in the Land & Works Department of the said
Province at Victoria and I do hereby further certify that I am
the officer to whose custody the original has been entrusted.
DATED at Victoria, British Columbia,   this   3rd   day   of
August, 1907.
20
E. B. McKAY
Surveyor-General  155
Exhibit 8
I, J. E. Umbaeh, Surveyor General for the Province of British Columbia, do hereby certify that the photostat prints and blue
prints hereunto annexed are true copies of documents which were
certified on August 3rd, 1907, by E. B. McKay, Surveyor General,
as true copies of the original documents and field notes on file
in the Lands and Works Department at Victoria, which original
documents are now apparently mislaid or lost.
VICTORIA, OCTOBER 5th, 1923.
10
J. E. UMBACH
Surveyor General.  Exhibit 8
156
Copied
Copy handed to
Corpl. Turner
W. W. Cook
S. R. E.
26 Jany 1863
MEMO for Captn. Parsons R.E.
I wish Corporal Turner and Party to proceed by earliest
opportunity to Burrard Inlet to Revise Posts of Govt. Reserve
10 for town near Entrance, Do. Do. Naval Reserve and then to survey
lands, property of R. Burnaby and N. P. P. Crease and from
thence to lay out claims or survey lands (160 acres East, narrow
side to shore point between such points and the Village which
has been laid out "En bloc" In carrying out above the party is
especially to mark on Plan and transmit the same as early as
possible to me showing any clearances or huts or other "occupations" recently made of any parties.
(Signed)
R. C. M. Col Comg.  157
Exhibit 8
Plan Number 6  158
Exhibit 8
Plan Number 19  159
Exhibit 8
Plan Number 21  160
Exhibit 8
Plan Number 22  161
Exhibit 1.
SEAL OF THE SECRETARY OF STATE
COLONIAL DEPARTMENT
I hereby certify that the within document is a true copy of a
letter dated the 27th of July, 1883, together with the schedule
transmitted therewith, from the War Office to the Colonial office.
C. T. DAIRS
Assistant Under Secretary of State
for the Colonies
10 9 August, 1923.
Canada 8.285.
Sir,
WAR OFFICE,
27th July, 1883
With reference to your letter dated 21st July, 1883, I am
directed by the Secretary of State for War to transmit for the
information of the Earl of Derby the accompanying "Schedule of
the Reserved Lands of British Columbia proposed to be surrendered to the Dominion Government," as therein requested.
20 I have the honour to be,
Sir,
Your obedient servant,
(Sgd.) "RALPH THOMPSON"
The Under Secretary of State,
Colonial Office.  162
Exhibit 1.
Canada. 8.285
Schedule of the reserved lands of British Columbia proposed
to be surrendered to the Dominion Government.
No.'
Area in Acres
Description                       Remarks
Esquimalt and Victoria Districts
5
About
30
William Head
6
it
70
Bentinet Island
7
it
80
Sooke Harbour
10 8
a
180
Mount Douglas
9
	
Chatham Island
10
	
Chain Island
11
—
Trial Island
New Westminster District
P&£
About
600
Between   north   arm   and
main   Branch   of   Fraser
River.
2
a
80
Inland     between     Fraser
20 3
River and Burrard Inlet.
a
640
Inland     between     Fraser
River and Burrard Inlet.
4
a
95
On   north   shore   of   Port
Moody, near the entrance.
5
tt
150
On   south   shore   of   Port
Moody, near the entrance.
6
tt
160
On north shore at mouth of
Port Moody.
7
tt
3,000
On south shore of Burrard
30
Inlet outside Second Narrows.
■8
it
300
On the south shore of Burrard    Inlet    near    Coal
Harbour.
9
tt
600
South Shore of First Narrows.
10
ti
800
South   Shore   of   English
Bay.
H
it
500
Point Grey.
12
a
480
On the north shore of the
40
First Narrows.
13
a
120
"J On each side of the entrance
and
Mo the North Arm of the
14
tt
90
JPraser River.
15
tt
120
Inland, south of the main
branch of the Fraser River. ^^^^^^^^^ 163
Exhibit 1.
SEAL, SECRETARY OF STATE
COLONIAL DEPARTMENT
I hereby certify that the within document is a true copy
of the original draft of a despatch numbered 39 and addressed
on the 27th of March, 1884, by the Earl of Derby, Secretary of
State for the Colonies, to the Marquis of Lansdowne, Governor-
General of the Dominion of Canada.
C. T. DAIRS,
10 Assistant Under Secretary of State
for the Colonies.
9 August, 1923.
My lord,
Downing Street,
' 27 March, 1884.
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,
20 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 through one of her Majesty's Principal Secretaries
of State; and, further, upon despatches from Sir G. B. Lytton,
dated the 31st of July and 14th of August, 1858, and giving him
instructions, as to the marking out of allotments for public pur-
30 poses and giving him provisional rules for his guidance in selling
land. These papers are contained in a Parliamentary Paper given
to the British Parliament in 1859 entitled "Papers Relative to
the Affairs of British Columbia" printed 18th February, 1859;
pages 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 been made conveying them to the Military or
Naval authorities, and I am advised that they may now, in like
40 manner, be surrendered without the formality of a regular deed
of conveyance.    It appears, therefore, sufficient to state that "mmimmm
I ; 164
Exhibit 1.
His Majesty's"Government are prepared to surrender the Military
reserves specified in the schedule to the War 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, if so, that I may also be in-
10 formed of the nature of the instrument which they would wish to
receive.
GOVERNOR GENERAL,
The Marquis of Lansdowne, G.C.M.C.
etc., etc., etc.  165
Exhibit 2.
P.C. 1321/86.
The following is a true copy of a Minute of a Meeting of
the Committee of the Privy Council, approved by his Excellency
the Governor General 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 Aldermen of the City of Vancouver,
British Columbia, praying that the Dominion Government Mili-
lOtary 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.
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.
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
20 required for Military purposes, but until this, he recommends
thatthe 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.
(L.S.)
G. G. KEZAR
Asst. Clerk of the Privy Council  166 L      j
Exhibit 3.
2M
P.O. 1521.
Certified copy of a Report of the Committee of the Privy Council,
approved by His Excellency the Governor General on the
31st August, 1906.
The Minister of Militia and Defence, recommends that the
Minute of Council of the 8th June, 1887, empowering the Minister
of Militia and Defence of that date to take the necessary steps to
10 hand over to the City of Vancouver, for park purposes, the military property now known as "Stanley Park," be cancelled.
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 said Council.
The Minister further recommends that the conditions of said
lease be made, generally, on the lines of those under which the
20 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 the Dominion Government be: Charles Doming, Brewer; Robert Kelly, Merchant; and Fred C. Wade, Barrister.
The Committee submit the same for approval.
G. G. KEZAR       (l. s.)
Assistant Clerk of the Privy Council.  167
Exhibit 4.
IH/L
P. C. 1803
The following is a true copy of a Minute of a Meeting of the
Committee of the Privy Council, approved by His Excellency
the Governor General on the 13th August, 1908.
N
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
10 " Stanley Park," was authorized 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 was empowered
to lease the said property to the 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 by the City
Council of Vancouver, and such lease to be made generally on the
lines of the Agreement under which His Majesty's Government
20 has leased Point Pleasant Park at Halifax, Nova Scotia, to certain Directors representing the City of Halifax.
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 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.
30
G. G. KEZAR,
Assistant Clerk of the Privy Council.  168
Exhibit 5.
(L.S.)
I HEREBY CERTIFY that this paper writing is a true
copy of an original document deposited in the Land Registry
Office at the City of Vancouver as Lease and filed under No.
22096 H.
DATED at the Land Registry Office, Vancouver, B. C, this
8th day of June A. D., 1923.
ARTHUR G. SMITH,
10 Registrar.
Compared by
M.W.M. and M.C.
Dept.
Militia & Defence
Oct. 6, 1908
H.G. 71-11-6
Canada.
S. St. G.
rCert. of L.R.O. '
20 I Dated June 8
1        1923
Utted.
THIS INDENTURE made the first day of November, 1908,
BETWEEN
HIS MAJESTY KING EDWARD VII. acting
through the Honourable the Minister of Militia and
Defence for the Dominion of Canada
of the FIRST PART
AND
30 THE CITY OF VANCOUVER
of the SECOND PART
WHEREAS by Order-in-Council of the 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 of August, 1906, amended by Order-in-Council dated 31st August, 1908,  169
Exhibit 5.
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 Scotia, of the other part,
whereby the said Point Pleasant Park was leased to the said
10 Directors representing the City of Halifax.)
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
One, 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."
20 NOW THEREFORE it is by these presents consented, covenanted and agreed and license is hereby given that said lands or
such parts thereof as shall not at any time or times hereafter be
required by His Majesty or His Successors for all or any military
uses pr 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 be 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
30 the same terms and conditions as herein contained) subject until
their determination to any existing leases of portions of said land
and to the conditions following, that is to say:—
1. The rent of One Dollar per annum shall be paid to the
Department of 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 now or hereinafter to
be erected thereon whenever it may be required in his judgment
for any military purpose whatsoever,  including  such portion
40 thereof as may be required to be occupied as gardens for any
troops quartered thereon.
3. His Majesty's Naval and Military Forces may at any
time the General or other Officer Commanding require it march
through, manoeuvre or otherwise exercise on the said lands or
encamp thereon.
4. The existing main road round  the  peninsula  together m 170
Exhibit 5.
with any new carriage roads that may be formed shall be maintained and kept in order by the City of Vancouver, PROVIDED
however that the use of any roads or any portions thereof may be
discontinued with the sanction of the Minister of Militia and
Defence.
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.
10 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 the pasturing or other occupation 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
20 day in each year against the use thereof by the public.
9. No stone shall be quarried on the said property nor any
trees be cut therefrom (except for the purpose of opening out
. 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 other apparatus on said
lands as may, in the opinion of the Council of the said City, be
necessary or expedient for the maintenance, amendment or exten-
30 sion 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 this agreement and all rights and interests of the City of Vancouver and
of the public thereunder shall immediately determine.
IN WITNESS WHEREOF the said the Honourable Min,
ister 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 Seal
Department of Militia
and Defence, Canada
Seal
City of Vancouver,
British Columbia
I
F. W. BORDEN,
Minister of Militia and Defence
for the Dominion of Canada.
ALEXANDER BETHUNE,  Mayor,
City of Vancouver.
WILLIAM MeQUEEN,   City Clerk.-  171
Exhibit 6.
No. 6
(Coat-of-Arms)
CERTIFICATE OF ENCUMBRANCE
LAND REGISTRY OFFICE
VANCOUVER, B. C.
No. 10/115 minutes past 10 o'clock 16th day of October, 1923.
I HEREBY CERTIFY that the following is the state of the title
to
City of Vancouver
Stanley Park.
10Registered Owner:   His Majesty The King
Volume 310.   Folio 86370 " I" Indef.
Registered Charges:   22096 H. 31/5/23.   11.15.   City of
Vancouver.
Lease for 99 years.
Applications for Registration:   None.
Receiving Order or Authorized Assignment under the "Bankruptcy Act":   None.
Assignment for benefit of Creditors:   None.   . *
Judgments:   None.
20Mechanics' Liens:   None.
To:
T. T. Chose
ARTHUR G. SMITH,
(L. S.) Registrar.
M.
H.G.  172
Exhibits numbered 7 and 9 are in Envelope
at back of Appeal Book.  173
Reasons for Judgment,
Murphy, J.
IN THE SUPREME COURT OF BRITISH COLUMBIA.
(Before the Honourable Mr. Justice Murphy)
Vancouver, B. C,
16th November, 1923.
THE ATTORNEY GENERAL OF CANADA and
THE CITY OF VANCOUVER
10
ALFRED GONZALVES
ORAL REASONS FOR JUDGMENT.
Apart from one point, the law applicable to all these cases
seems to be clear; that is, that the Defendants here must show
possession for sixty years, and they must show that by metes and
bounds, or as the term is "possessio pedis," and also continuity
of occupation, and identity of occupier. I think that is not open
to discussion. And I think also that the law is that the onus is
on the Defendants to prove these requirements.
Dealing first with the six eases, whose root of title is alleged
20 to be either in Smith or in Silva; on the first point, as to whether
it has been proven that possession has existed for sixty years,
the only evidence adduced to prove that, apart from the Indian
testimony, is the evidence of Trimble. He does say in sailing
out on a vessel here in December, 1862, he saw three houses; and
he says he came back in 1873. He visited the locus then and
found three houses, there, and he goes to the length of saying
that these houses are in the same position as the houses that he
saw in 1862 from the water. I cannot accept this as satisfying
the onus which rests upon the Defendants.   Three Indians give
80 evidence that these houses were there for a period that would
constitute sixty years adverse possession. Now with regard to
the Indian evidence I must say it was unsatisfactory. I don't
think the Indians intended at all to deceive the Court. Naturally
they were very old people and could only fix dates by the Cariboo
Gold Rush. They contradicted themselves—two of them at any
fate, very materially, because they said these buildings were made
of lumber and lumber from mills here.   They did not say they  174
Reasons for Judgment,
Murphy, J.
were from mills here, but it would be the only place where lumber
could be obtained. It is possible that lumber might have been
whipsawn, but I think no one would be justified in coming to the
conclusion that one would whipsaw lumber to build houses in
Stanley Park where cedar, which could be easily split, was available. As against that I have the map and it seems to me that is
evidence which, even if the onus were on the Crown, would con-
10elude this case, on the point of sixty years' possession. That map
was made under instructions to show any occupancy, by this man
Turner, and he does show the occupancy of Aunt Sally and shows
no other.
I hold on that first point that the case is not made out; but
if I am in error in that it is absolutely impossible for me to say
from this evidence that there has been any satisfactory proof—
not alone of fences, but of any clearing that dates back sixty
years. If there were any such extensive clearing as would justify
the Court in decreeing that these people own this extensive piece
20 of land, as shown by the map, it would be a physical impossibilty,
for a surveyor, such as Turner,' to have failed to see it. Then I
agree that it would not be necessary possibly to prove fencing but
some clear act of possession such as clearing must be proved. If
there were no clearing, or only small parcels of clearing, I cannot
say on this evidence where these houses were at all, or where the
clearings were, assuming they existed; and I think the onus is on
the Defendants to show me the metes and bounds of the property ,
they claim. They must show possessio pedis, and I hold that they
haven't done so.   On those two grounds I have to hold that the
30 Crown is entitled to recover possession. If I were not going away
from the city I would have written a judgment in this matter, but
I will be away for so long that it would throw the case over the
next session of the Court of Appeal, if it is going there.
I have perused the evidence and have drawn my conclusions
from it and I think it is in the interests of the litigants that I
should decide now so that they can go on with their appeal if they
want to.
With regard to West and Cummings, the same thing applies.
With regard to the sixty years' possession, that depends alto-
40 gether on Indian testimony. Their location is not shown on the
Turner map. But even if the Indian testimony were credited, I
have no evidence whatever as to any definite clearing having
taken place or any definite fencing, and here again I have to be
shown the locus and extent of the possessio pedis. That has not
been done. It is clear that the Manion House was not put up
there until 1865, so far as he could be made the root of title the  175
Reasons for Judgment,
Murphy, J.
sixty years adverse possession is not shown. The evidence shows
that Johnson abandoned the particular house in which he lived.
And because possessio pedis must be proven, and I hold that no
clearing and no definite fencing has existed for sixty years, I
must likewise hold that the Crown is entitled to recover those
parcels or property.
I am going to reserve the matter of the possession of the city.
10 That is a matter on which I feel I must look further into the legal
position and if counsel wish to give me any further authorities I
shall be pleased to have them—but I don't think it is really necessary—then I shall be able to give you my decision on that later.
The main issue here is whether the ejectment should take place
and because I think it is in the interest of all that the matter
should be speedily settled, I am now finding on the facts.
MR. McCROSSAN:   I may say we are not asking for costs,
any more than there may be some set-off costs.
THE COURT:   If the counsel want to send me any authori-
20 ties on the city's position I will give them my consideration on my
return.
ATTORNEY-GENERAL et al
vs.
GONZALVES et al
In my opinion the City, being the party interested in the
subject matter, was entitled to bring proceedings for a declaration
as to title by virtue of the provisions of Order 25, Rule 5. See
authorities cited in Yearly Practice 1923, pages 549, 550.
As the City does not ask for costs the point whether on the
30 record it would be entitled to recover them need not be determined.   This decision applies to all the squatter cases recently
tried by me.
D. MURPHY, J.
Vancouver, B. C,
11 December, 1923.  176
Judgment—Supreme Court
of British Columbia. 491/23
IN THE SUPREME COURT OF BRITISH COLUMBIA.
BETWEEN
10
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
AND
ALFRED  GONZALVES
Plaintiffs
Defendant
Before The Honourable
Mr. Justice Murphy
in Court.
Tuesday, the 11th day
of December A.D. 1923.
This action having come on for trial before the Honourable
Mr. Justice Murphy, without a jury, on the 5th, 6th, 7th and 16th
20 days of November, A.D. 1923; upon reading the pleadings and
proceedings herein; upon hearing the evidence adduced on behalf
of both the Plaintiffs and the Defendant; upon hearing Mr.
George E. McCrossan, of Counsel for the Plaintiffs, and Mr. G.
- Roy Long, of Counsel for the Defendant; upon hearing what was
alleged by the Counsel aforesaid; and judgment having been
pronounced in favour of the Plaintiff, the Attorney-General of
Canada, on the 16th-day of November A.D. 1923, and judgment
having been reserved as to the other parties to this action to this
day;
30 THIS COURT DOTH ORDER A^D ADJUDGE that the
Crown in the right of the Dominion of: Gianada, as represented in
this action by the Plaintiff, the Attorney-General of Canada, is
the lawful owner in fee-simple (subject to a certain indenture
of lease from the Crown in the right of the Dominion of Canada
to the Plaintiff, the City of Vancouver, bearing date November
1st, 1908, for the term and on the conditions therein set forth) of
ALL AND SINGULAR that certain parcel or tract of land and
premises situate, lying, and being in the City of Vancouver,-in
the Province of British Columbia, lying west and north of Dis-
40triet Lot 185, known and described as Stanley Park, and the beach
and foreshore adjacent and contiguous thereto, including all that
area of the said lands and premises and the beach and foreshore
adjacent and contiguous thereto of which the Defendant is now  177
Judgment—Supreme Court
of British Columbia.
in possession and occupation,
follows, that is to say:—
more  particularly  described  as
Commencing at a point on a fence, which point is eighteen (18) feet from the centre of the main roadway around
Stanley Park, and about one hundred and seven and four-
tenths (107.4) feet easterly from a wooden post erected to
mark a distance of one mile, measured along the said main
10 roadway from the Georgia Street entrance to the said park,
which point is referenced by an iron post planted five (5) feet
north; thence easterly following the line of a picket fence
built at an approximate distance of eighteen (18) feet from
the centre line of said main roadway a distance of one hundred and thirty-two and five-tenths (132.5) feet, more or less,
to intersection with the line of another picket fence; thence
south-westerly along the line of said last-mentioned picket
fence eighty-three and five-tenths (83.5) feet, more or less;
thence following a crooked picket fence fifty-one (51) feet,
20 more or less; thence following the line of a picket fence
south-easterly thirty-six (36) feet; thence west one hundred
and one (101) feet, more or less, to intersection with the production southerly of the line of a picket fence; built south-
south-westerly from the point of commencement; thence
north-easterly along this production and along the line of
said picket fence one hundred and fifty and five-tenths
(150.5) feet, more or less, to point of commencement; the
whole containing an area of 0.354 acres, and shown colored
yellow and marked Parcel 2 on Plan No. L.C. 22 (a), filed in
30 the office of the City Engineer of the City of Vancouver, and
which parcel is now occupied by the Defendant.
AND THIS COURT DOTH FURTHER ORDER AND
ADJUDGE that the Plaintiffs do recover possession of all the
said lands and premises and the said beach and foreshore adjacent
and contiguous thereto, including all that said area of which the
Defendant is now in occupation, free from any right, claim, or
hindrance of the Defendant;
AND THIS COURT DOTH FURTHER ORDER AND
ADJUDGE that the Defendant do forthwith vacate and deliver
40 up possession of the said lands and premises and the said beach
and foreshore adjacent and contiguous thereto and the appurtenances thereunto belonging and all of the said area of which the
Defendant is now in occupation to the Plaintiffs; and the Defendant is hereby enjoined from continuing in possession thereof, or
from interfering with or molesting the Plaintiffs or their law-  178
Judgment—Supreme Court
of British Columbia.
fully authorized agents in their right in and to the quiet possession and enjoyment of the said lands and premises and the said
beach and foreshore adjacent and contiguous thereto and the
appurtenances thereunto belonging and of all the said area occupied by the Defendant as aforesaid;
AND THIS COURT DOTH FURTHER ORDER AND
ADJUDGE that the Plaintiffs and the Defendant do respectively
10 Pay their own respective costs of and incidental to this action.
BY THE COURT.
"J.FM."D.R.
"DAM." J.
for DM. J.
Entered
Dec. 27,1923
Order Book Vol. 60, Fol. 141
20 per "A.L.R."
Seal of the
Supreme Court of
British Columbia
Vancouver Registry.
Vancouver
Dec. 29, 1923
'J. F. Mather"
District Registrar
30
Registry
B.C. L.S. $1.10,  179
Notice of Appeal to Court of Appeal.
IN THE SUPREME COURT OF BRITISH COLUMBIA.
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
AND
ALFRED GONZALVES
10
Plaintiffs
Defendant
NOTICE OF APPEAL
TAKE NOTICE that this Court will be moved at its sittings
at Vancouver on Tuesday the 4th day of March, 1924, at the hour
of eleven o'clock in the forenoon or so soon thereafter as Counsel
can be heard on behalf of the Defendant for an order that the
judgment herein of the Honourable Mr. Justice Murphy, dated
the 11th day of December, 1923, may be rescinded, and that judgment may be entered for the Defendant upon the following
grounds:—
20        1.   That the learned trial Judge should have held that there
was no entry by the Defendant upon the Crown.
2. That the learned trial Judge should have held that at the
time of the Defendant's entry the Crown had neither the possession nor the right of possession of the hereditaments in question
•in this action.
3. That the learned trial Judge should have held that at the
date of the issue of the writ in this action the Crown had neither
the possession nor the right of possession of the hereditaments
in question in this action.
30       4.   That the learned trial Judge should have held that the
period of limitation had run against the Plaintiff corporation.
5. That the learned trial Judge should have held that the
time was not running against the Crown.
6. That the learned trial Judge should have held that the
Crown had no cause of action.
7. That the learned trial Judge should have held that the
period of limitation had run against the Crown.  180
Notice of Appeal to Court of Appeal.
8. That the judgment is against the weight of evidence.
9. That the learned trial Judge improperly admitted the
alleged survey and field notes of George Turner.
10. That the learned trial Judge improperly admitted the
alleged instructions of the said George Turner.
11. That the learned trial Judge erred in his construction
of the said alleged instructions, survey and field notes.
12. That the learned trial Judge erred in the inferences
10 which he drew from the evidence.
1924.
DATED at Vancouver, B. C, this 5th day of February A.D.
McQUARRIE & CASSADY,
Solicitors for the Defendant.
To the Plaintiffs,
And to J. B. Williams, Esq.,
their Solicitor. l : 181
Reasons for Judgment,
Macdonald, C. J. A.
REASONS FOR JUDGMENT OF THE HONOURABLE
CHIEF JUSTICE MACDONALD.
' This is an action of ejectment. The land in question is part
' of a military reserve, the whole at present being known as Stanley
Park, one of the parks of the City of Vancouver.
In 1887 an Order in Council was passed authorizing the Minister of Militia to "hand over" the park to the City of Vancouver
10 on terms to be arranged by him. No lease was made at that time
but the city occupied the property, except portions occupied by
squatters, as a park. In 1906 another Order in Council was passed
authorizing a lease to the city. This was amended by order of
1908, and a lease was duly executed and delivered to the city.
The Defendant is the successor in occupation of a person who
squatted upon land lying within the limits of the park, and in
these proceedings he claims that he and his predecessors have
had over 60 years of uninterrupted possession. The action was
commenced on April 23, 1923, so that unless the Defendant is
20 able to shew possession from April 23, 1863, he must fail in this
defence.
I shall now refer to the evidence of the witnesses who deposed
to possession by the original squatter prior to that date. "The
first of these witnesses, Thomas Fisher, first saw the land in
1867. His evidence is of no value for the purpose of shewing possession of the original squatter prior to April, 1863. The evidence
of Thomas Abraham, an Indian, goes to shew that the house which
it is claimed was built on the land was made of sawn lumber got
from either the Moodyville or Hastings sawmill. Those mills were
30 built in 1865 and 1867 respectively, and therefore Abraham's evidence does not prove 60 years' possession. Celestine, an Indian
woman, says that the house was built by the original squatter
after what is called the Cariboo Gold Rush was over. She says it
was built of lumber got from the Moodyville mill. Emma Gonzales says that the house was built after the Gold Rush; she says
it was built originally of split cedar and afterwards re-built with
lumber from one of the mills. She says such replacement took
place 50 years ago and that for 10 years previously the split cedar
house was there. Giving full credence to this evidence it merely
40 shews that 60 years before the trial the house was.there, built
of split cedar. This does not shew 60 years uninterrupted possession.
Edward Trimble was another witness, a white man. This witness does not clearly fix the date when he first saw the locus in
quo. My interpretation of his evidence is that he left Victoria
on December 23,1862, for New Westminster on his way to Cari-  182
Reasons for Judgment.
Macdonald, C.J.A.
. boo. The vessel did not come into the harbour of what is now
Vancouver, nor did it come within many miles of that port. The
witness says that he walked to Vancouver from New Westminster
in the fall, which I take to mean the fall of 1863, presumably when
returning from the Cariboo. His evidence, while not in terms
quite as stated, is so, I think, by inference, but in any case it is
so hazy and uncertain as to be worthless. Trimble was in Van-
10 couver again in 1873, and on this occasion visited the locality of
the house which unquestionably was then in being.
On the evidence before me I am unable to find satisfactory
proof that the Defendant's predecessors in occupation or the first
of them had come upon the land 60 years prior to the issue of
the writ, or that the evidence is at all satisfactory of the boundaries or location of the land claimed to have been in possession.
The law requires that these matters should be made out with
a good deal of strictness, and that the. Court should be satisfied
that the occupation was as claimed.
20 Mayers also contended that if he should fail in shewing possession against the Crown for the full period of 60 years, yet
since as he contended, the city is now the lessee and is in full
possession subject only to the right of re-entry for military purposes reserved by the Crown, the Defendant has acquired good
title as against the city by reason of undisputed possession for
the full period of 20 years, a right which he is entitled to set
up against the city whose action he claims this in reality, is.
An action of ejectment is one to determine the right of the
Plaintiff to the immediate possession of the land. Mayers sub-
30 mits that the Crown is not entitled to immediate possession
having parted with that right to the city. The judgment is to
the effect that the Crown is entitled to the immediate possession
of the land and that the Defendant should deliver up possession
thereof to the Plaintiff.
The history of the city's rights appears by reference to the
Order in Council of 1887, which authorizes the "handing over"
as aforesaid of Stanley Park to the city and the subsequent
orders and acts of the parties to the lease. Although, as above
stated, no lease was then made, the city was allowed to take
40 possession, and eventually obtained a lease.
It was argued by respondent's counsel that this lease is a
mere license, but while it savours of such, I think it must be
regarded as, in substance, a demise subject to the conditions therein contained.
Again it was argued by appellant's counsel that even under  183
Reasons for Judgment.
Macdonald, C.J.A.
the order of 1887, the possession given to the city pursuant thereto was in law a demise, but .even if that was its true character,
which I do not agree, yet it would, I think, be a demise at will
merely. But however this may be, the prior rights or privileges
of the city were cancelled by the Orders in Council of 1906 and
1908, before the lease of 1908 was executed and delivered.
What then were the respective rights as amongst themselves,
10 of the Crown, the city and the Defendant in 1908? If I am right
in my conclusion above stated, that on April 23,1923, the Crown's
title had not become barred, then of course it follows that at any
time, at least up to the date of the }ease or even after the date
of the lease, where the conditions justified it, the Crown could
enforce its right to possession against the Defendant. The Crown
certainly had a right to possession in 1908, when it cancelled the
order of 1887. The cancellation of the order of 1887 must be regarded as an equivalent to a re-entry at that time, namely, in
1908.   But apart from all that, the Crown never put the city in
20 possession of the land now in dispute. That land was clearly
in the possession of the Defendant or his predecessors in occupation long before 1887. The Crown, therefore having made the
lease to the city was bound to deliver to it the possession of all
land included within its terms and was therefore, in April, 1923,
in position to bring an action for ejectment against the Defendant
for the purpose of performing its duty towards the city.
Therefore I think' the second submission of Mayers fails.
The appeal should be dismissed with costs.
Vancouver, B. G, October 7th, 1924.  m**-
184
Reasons for Judgment.
Martin, J.A.
REASONS FOR JUDGMENT OF THE
HONOURABLE MR. JUSTICE MARTIN
This appeal should in my opinion, be allowed and pending
the completion of my full reasons, which have been unexpectedly
delayed by press of business, I shall only now say, briefly, that
the appellants have established, to my satisfaction, 60 years'
possession. In coming to this conclusion I attach much more
10 importance than did the Judge below to the Indian evidence, and
I do not think that the Turner map that he largely relied upon
is admissible in evidence, and even if it is, it does not prove
anything of substance to support the case of the Plaintiffs.  185
Full Reasons for Judgment.
Martin, J. A.
"FULL REASONS FOR JUDGMENT, MARTIN, J. A."
Vancouver, B. C, 7th October, 1924.
This is an appeal from a judgment declaring the plaintiff's
right to, and ejecting the defendant from the possession of, a small
piece of property occupied by him in Stanley Park. Vancouver,
consisting of a little more than one-third of an acre fronting on the
main roadway through said park and running down to the fore-
10 shore of Coal Harbour, and shewn on ex. 7 as "parcel 2."
Among other defences the defendant alleges that he has, by
himself and his predecessors in interest and title, been in continuous possession and enjoyment of the said parcel for a period of
sixty years next before the commencement of the action on the
21 st April, 1923, and if this allegation can be established, it is conceded he has acquired a good title to his holding under the Statute
of Limitations, cap. 145, R.S.B.O, 1911. In Hamilton vs. The
King (1917), 54 S. C. 331, it was said by Mr., now Chief Justice
Anglin, p. 379, that:
20 "Sixty years' adverse possession continuously held b>
one person, or by several persons successively claiming one
under the other, extinguishes the title of the Crown, and as
against the Crown, establishes the title of the person, or the
i     last of the persons, so in possession."
In the view I take of the ease, it will only be necessary to consider this defence, because, with every respect for the judgment of
the learned judge below, I am of the opinion that it was sufficiently established in the circumstances, which are unusual in
several respects, as hereinafter noted.
80 The general principle upon which questions of possession of
this nature should be decided was laid down by the Privy Council
in a suit arising in this province in relation to a "patch'* of "wild
land" in the New Westminster district, K!irky vs. Cowderoy
(1912) A. C, 599; the question having arisen on the same statute
of limitations, and their Lordships said, p. 603:
"On the general subject of possession, the language of
Lord O'Hagan in The Lord Advocate vs. Lord Lovat (5 App.
Cas. 288)—language cited with approval by Lord Macnagh-
ten in Johnson.vs. O'Neill (1911 A.C. 583)—appears to be
10 applicable to the present case.   Possession must be consider
ed in every case with reference to the peculiar circumstances
—the character and value of the property, the suitable and
natural mode of using it, the course of conduct which the
proprietor might reasonably be expected to follow with a due
regard to his own interests; all these things, greatly varying  186
Full Reasons for Judgment.
Martin, J. A.
as they must under various conditions, are to be taken into
account in determining the sufficiency of a possession.' '
And this language has been adopted by the Supreme Court of
Canada in Tweedie ys. The King (1915), 52 S.C., 199, per Mr. Justice A'nglin at p. 215, and he adds:
"This restriction upon the nature of the possession requisite must be borne in mind in considering the sufficiency
10 of the case made out.''
In the case at bar, the title set up is that of a squatter upon
Crown lands upon what was then a military reserve (according
to the judgment of the Privy Council in the Deadman's Island
Case, i.e., Attorney-General of British Columbia vs. Attorney-
General of Canada (1906), AC, 552; 8 B.C., 242; 11 B.C. 258; but
is now Stanley park, containing about 900 acres (8 B.C. 243),
which is still very largely in its wild state, save for roads and a
few recreation spaces, and at the locality in question it was, according to the evidence, a very thick and heavily wooded forest
20 with very tall trees and dense underbrush down to the water's
edge.
In view of the admitted possession by the defendant "it was
for the respondent to shew title," as the Chief Justice of Canada
said in Hamilton vs. The King, supra, p. 339, or, as the present
Chief Justice put it at p. 374, the Crown properly assumed the
burden cast upon it of proving its title, and there can be no serious
question of defendant's continuous possession, within fences, or at
least thirty-seven years since the survey of 1886 (p. 142-5) and
since Clendenning, acting for the plaintiff corporation, cut a ten-
30 foot trail through the locus on substantially the site of what is now
the said main roadway, in the year 1887, as his partner, Boyd, tes
tifies (p. 61); Clendenning says he was only a few hours in so doing
as he had a gang of men with .him, and the distance in dispute
affected by his location of the road would, as scaled upon said exhibit 7, be only about 450 feet; and in keeping his trail as close to
the water as practicable (A.B., p. 60), and at the spot where he
says he noticed one house on his right hand, in going east, he kept
said trail about one hundred feet away from the high-water mark,
doubtless to avoid the house, which he did not examine, because
40 he says he "was not looking for fences or for houses" (p. 58). But
far more than that, in 1874, Gonzalves says (A.B.145) that he fenced the ground back in the clearing to the green timber, and that
the fence stood there till it was moved back as aforesaid by the
surveyors in 1886, which constitutes a continuous fenced occupation of forty-nine years, with the parcel all cleared (p. 147).
Beginning, then, with so long an occupation, the burden upon 1 187
Full Reasons for Judgment.
Martin, J. A.
the plaintiffs is not a light one, and in his reasons for thinking that
the plaintiffs have discharged that burden, the learned Judge
places great reliance, to the extent even of styling it as going to
"conclude this case," upon the map of Lance-Corporal Turner,
R.E., put in by the plaintiffs in support of their submission that no
houses were in existence at the locus in 1863. Speaking further
of said map, the learned Judge goes on to say:
10 "That map was made under instructions to show any occu
pancy, by this man Turner, and he does show the occupancy
of Aunt Sally and shows no other."
This unfortunately quite erroneous view (speaking with
every respect) of the object, scope, and effect of Turner's map,
adopts the statements of the plaintiff's counsel to that effect when
he put it in evidence at the opening of the trial, as follows (A.B.
28):
"MR. McCROSSAN:     This map, I would draw your
lordship's attention to, shows a view of the occupations (read-
20        ing same).   There is only one hut, which we admit is the
house of "Aunt Sally," who died here shortly before these
actions started, who was something over 100 years of age, and
on that map there is no other occupation marked."
This is a most important misconception about the situation of
the house of "Aunt Sally," the local aboriginal matriarch, who
died in 1922 (whose title was admitted), which I drew attention
to when the matter came up during the argument before us, viz.,
that her house, though admittedly very ancient, is not shown at all
upon the plan, as it would be if current "occupations" were prop-
30 erly noted thereon, because her house is unquestionably situate
near the Lumberman's Arch at the end of a cross road by the side
of the Old Indian Village, formerly called Wha Wha, anglice,
"Why, Why" (A.B., 56, 97, 117), yet the only house shown upon
the plan is that marked "Indian House," on Ex. 9, situate to the
west of Wha Wha a distance of three-quarters of a mile at least.
This strange misconception of the situation had to be admitted,
but no explanation of it was advanced despite its grave import.
But Corporal Turner did not, in fact, receive any instructions
to note '' occupations'' on this military reserve. Those relied upon
40 to support such a view are contained in the "memo, for Captain
Parsons, R.E.," of the 26th January, 1863, given him by Colonel
Moody, but when examined carefully and properly understood
they do not apply to this military reserve (now Stanley Park) at
all, but to the other localities therein mentioned which are quite
distinct therefrom, viz., the town reserve, the naval reserve, the
Burnaby and Crease properties, and claims or surveys to the east  188
Full Reasons for Judgment.
Martin, J. A.
up to "the village which has been laid out en bloc," not one of
which relates to this reserve, in regard to which what Corporal
Turner properly did was only to make a "survey of coast-line
round Coal Peninsula," as his endorsement correctly recites; and
a comparison, e.g., between his surveys of McCormack's claim (p.
7) and Brickmaker's claim (p. 15) and his coast-line survey of
Coal Harbour (p. 19) will show the very marked differences be-
10 tween the two classes of work that he was doing.
It follows that even if Turner's map is admissable in evidence
(which I doubt in view of the weighty objections that were advanced against its admission) it in no way supports the Plaintiff's
case. And, furthermore, in any. event, no practical reliance could
be placed upon it because the survey was made at the latest on the
7th to 19th of March, 1863 (as shown by the dates of the field-
notes, p.p. 17-21), which is nearly five weeks before the sixty
years began to run on the 21st April of that year, and within that
period the defendant's possession may well have begun to run—
20 in other words, the map does not attempt, at best, to bridge this
five weeks' gap in the evidence as it should to displace the defendant thereby, even if the fullest effect possible be given to it.
The fact that this greatly-relied-upon evidence of the principal witness for the plaintiff's has thus completely broken down
greatly influences consideration of the adverse view that the
learned Judge took of the evidence of the Indian witnesses, because he very largely discredits them on the ground that Turner's
map was "against" their evidence (A.B. 248), but if the evidence
sought to be derived from that map had been shown to him to be
30 based on no foundation, I feel sure he would have viewed the evidence of the Indians in a very different light. He correctly says
that three of them "gave evidence that these houses were there
for a period that would constitute-sixty years' adverse possession,
"which, if credited, really would "conclude this case," but he does
not regard their evidence as satisfactory because, though they did
not intend to deceive the Court, yet
' "Naturally they were very old people, and could only fix
dates by the Cariboo Gold Rush. They contradicted themselves—two of them at any rate, very materially, because they
40 said those buildings were made of lumber, and lumber from
the mills here. They did not say they were from the nulls
here, but it would be the only place where lumber could be
obtained. It is possible that lumber might have been whip-
sawn, but I think no one would be justified in coming to the
conclusion that one' would whipsaw lumber to build houses in
Stanley Park, where cedar, which could b'e easily split, was
available."  189
Full Reasons for Judgment.
Martin, J. A.
And then he proceeds to offset "as against" their evidence that of
Turner's map as follows:
"As against that, I have the map and it seems to me that is
evidence which, even if the onus were on the Crown, would
conclude this case, on the point of sixty years' possession.
That map was made under instructions to show any occupancy by this man Turner, and he does show the occupancy of
10        '' Aunt Sally'' and shows no other.''
In the first place, it is to be observed that while it is true that
the evidence of the Indians would be fixed by the first great gold
rush when the white man came into their midst, yet that gold
rush occurred in 1858, and not two and three years later, in 1860-1,
which were the years of the gold rush to Cariboo, hundreds of
miles away, and this point is of importance, because it throws
back the ages and memory of several witnesses at least two years
earlier than it has apparently been regarded below, though it is
quite sufficient, in my opinion, however regarded.
20 A brief record, from official reports, of the first great rush
of the gold-miners to the Fraser River (about twelve miles south
of the lands in question) is to be found in the preface to vol. 1 of
Martin's Mining Cases (1903), p.p. v-vi, "noting the great rush of
1858 to that region,'' which rapidly assumed such proportions that
it led to the speedy establishment of the new Colony of British
Columbia (as distinguished from "the old colony of Vancouver
Island") outof "certain wild and unoccupied territories on the
north-west coast of North America, commonly known by the designation of 'New Caledonia' as the 'Act to provide for the Govern-
30ment of British Columbia' (21-2 Vic.) constituting the new colony
and passed on the 2nd of August, 1888, declares. The first detachment of Royal Engineers, to cope with the new conditions
caused by the rush, arrived early October of that year, and the
Governor and Judge took their oaths of office at Port Langley on
19th November, thus officially inaugurating the first government of the new colony. The graphic circumstances of this first
rush to the Fraser River, from California chiefly, are well detailed
in Ho way & Seholefield's standard work "British Columbia:
Historical," vol. 1, p. 582, and vol. 22, cap. 1: at p. 41 of vol. 11 a
40 dispatch of the Governor is cited, stating that, in said month of
November, over ten thousand persons were engaged in mining
between Murderer's Bar and Fort Yale, on said river. It would
obviously be this first influx of white miners, and in particular the
advent of the soldiers for the first time (A.B. 108) to their vicinity
■ and hunting-grounds that would indelibly impress itself upon the
memory of the aborigines: rushes two and three years later far  190
Full Reasons for Judgment.
Martin, J. A.
away on the upper reaches of the river would not affect them to
nearly the same degree, if at all, and the failure to distinguish between the two historical events has led to confusion (such as appears, e.g., on p. 97-8) and indefiteness in examining witnesses'
evidence accurately and drawing conclusions, though the exact
truth is to the advantage of the defendant when clearly understood.
10 After a specially careful examination of the evidence of the
Indian witnesses (and speaking in the light of a judicial experience with witnesses of all kinds throughout this province of more
than twenty-six years) I know of no good reason in general for
placing the testimony of our native Indians at all on a lower plane
than that of others, and in particular I perceive none in this case
for doubting the substantial accuracy of their testimony in all essentials. Indeed, in some respects it is remarkable and beyond
expectation precise, one of them, e.g., Abraham, a patriarch of
over 100 years of age (being older than the said Aunt Sally, an
20 admitted centenarian who was a "big man" at the time of the first
gold rush in 1858, and living on the Inlet (Burrard) actually saw
these three Portuguese fishermen (as they were primarily) (Joe
Silva, Peter Smith, and Joe Fernandez) arriving at that time, and
in the way he describes—in a boat with sails and paddles from
New Westminster—and they immediately went to live in the Park
and put up four houses, which he saw" them building; and another
aged witness, Emma Gonzales, born on the same Inlet, gives the
. name of the Indian, Shuwthchalton (father-in-law of Portuguese
Pete Smith), who built the first house and cut the shakes (the
30 large shingles and boards of varying sizes split by hand from clear
cedar timber) out of which the houses or cabins of the new-comers
were first constructed. I say "first" advisedly, because an important misconception has arisen about the original construction
of these houses owing to some uncertainty caused by the evidence
of two of the Indian witnesses, Abraham and Celestine (aged 77).
The former doubtless, because of his great age, was obviously at
the end wearied and confused (e.g., p. 114-5-6) by the ordeal of a
public trial, and by his evidence having to be interpreted (to which
the Court alluded at (p.109) and to the way the questions were put
40 to him on this head, which left much to be desired in clarity and
exactitude.
The point taken by plaintiffs is that the first sawmill in that
vicinity was not built till 1865 (at Moodyville), and, therefore, if
the houses were built of sawn lumber, they could not have been
built before that date. But the obvious explanation was supplied
by the evidence of the said Emma Gonzales (aet. 80) who;
through the interpreter, in answer to the Court said (A.B.pp.124): 1 191
Full Reasons for Judgment.
Martin, J. A.
"THE COURT: Q: Did they use any lumber in them at all
to make doors, or was it all split cedar? A. Yes, that was all
made from primitive material, and it was after that they used
lumber from the mill.
Q.   How long after the houses were built—was the mill
here when the houses were first built ?   A.   No, no mill here
then.
10 MR. McCROSSAN:   Q.   All the other witnesses said
the shacks were built of mill material.
THE COURT:   Sawn lumber.
MR. McCROSSAN: Sawn lumber? A. I don't know
anything like that.
Q.   Might they be right.and you be wrong?   A.  That is
the way I seen them as I am telling you.
And at page 125:
A.   You see when these primitive boards became ancient,
they tore them down and built another house of mill lumber
20        right on the very same place.
Q. When did they build it of mill lumber, how many
years afterwards ? A. It is about fifty years since the Hastings has been here.
Q. What I mean—you don't understand—what I want
to know is, how many years after they first put up these three
shacks did they change them and rebuild them with mill lumber? A. You see they have been about like this fifty years,
and I think these Indian-made boards were there -about ten
years.
30 Q.   About ten years?
MR. LONG: That is, the mill lumber has been there
about fifty years.
THE COURT: No; she says the mill has been here about
fifty years, and ten years after the original building the lumber was substituted.
THE WITNESS:   The mill lumber was there fifty years,
and ten years before that it was primitive-made boards.''
To one at all familiar with the rude architecture of our pioneers, it is quite apparent that what happened is that the houses
40 were at first built entirely of the material available on the spot
according to the custom of the country, i.e., cedar shakes of various sizes for roof and sides, but while cedar shakes form the best
possible material for wooden roofing, being water-tight and almost
indestructible when built with a high pitch according to custom,
they are not nearly so well adapted, in the larger sizes, as
"boards" or slabs for the sides owing to shrinkage and difficulty
in joining and tight fitting, etc., and so after the mills were start-  192
Full Reasons for Judgment.
Martin, J. A..
ed and sawn lumber became available for that purpose, the squatters and others made use of it which they could readily do without expense, because one witness (A.B. 85) explains how ships
loading lumber at the mills would throw overboard, into the inlet,
all that did not come up to the exacting requirements of those
days when very fine clear lumber was abundant, and this free
supply, at their door, so to speak, the local inhabitants made use
10 of. This method of construction and re-construction explains
why different witnesses formed different opinions as to the varying stages of construction of the houses at various times—one
witness would notice the shake roof (high pitched) more than the
low rough board sides, or vice versa, and come away with a different mental impression of the same things, though they all might
be largely right because if a house is composed of a roof of shakes,
which is equal to half of its construction and the sides are boards,
a loose description would be expected. Trimble, e.g., (at pp. 134-
5), evidently was thus honestly affected by this aspect of the
20 matter in trying to describe exactly the state of the houses on his
second visit in 1873. What he saw, manifestly, was shakes or
combination of shakes and rough mill lumber which, in the course
of years, had got so much alike that .he, very naturally, could not
recall the exact distinction. I quite agree with the learned trial
judge in the inference he draws from local conditions and customs
that the sawn lumber in question had not been whip-sawn by hand,
and hence I have been at some pains to give what is in my opinion
the true explanation of a difficulty which has no real existence
when this Court takes that cognizance which it ought to take, and
30 has taken, of the manners and customs of people be they of poor
and lowly or rich and high estate—(Vide e.g., Welsh vs. Kracov-
sky (1919), 27 B.C., 170), on the modern application of the law of
distress to apartment-houses, and in the celebrated case upon the
Indian title of Johnson v.'Mcintosh (1823), 8 Wheaton, 21 U.S.
S.C., 543, the Supreme Court of the United States took cognizance
of "the character and habits of the people," Indians, in arriving
at its decision.
The use of shakes alone, or in combination with sawn boards
or logs, has from the earliest times been general in various forms
40 all over this province, and, in combination with rough lumber,
they may frequently be seen today in many localities not only on
Indian reserves but in white habitations—there are, e.g., numerous recent examples of it in the outskirts of Victoria, and across
the said Inlet (north side) at the Narrows, and even on Heather
Street in Vancouver may be seen several examples, almost a little
colony of them. It seems, if I may say so, somewhat strange that
though a view was taken of the land in question, and not only that  193
20
Full Reasons for Judgment.
Martin, J. A.
but a sitting of the court held there to take certain evidence, yet
no attention was,- so far as we are advised, directed to this important feature, though I should be surprised if some examples of
such construction could not be found in that place or vicinity, on-
the south side of the Inlet as well as the north, and the more so
because Joe Gonzalves, father of the defendant, who, in July,
1874, obtained the house and clearing from Joe Silva, the original
squatter, testifies that the old house occupied by Silva was of split
cedar, and looked fifteen years old, and that he lived in it that
winter, and built a new house in the spring of 1875 (p. 157); aiid
Peter Smith (aet.' 48), son of Portuguese Pete Smith (who died
in 1905), born on the adjoining parcel, says that he saw split
shakes of an old house when he was a boy, and Mai7 Dekosta (aet.
52), a daughter of said Portuguese Pete, also born there, confirms
her brother, and says she remembers the old house of her father,
and that it was "made out of split cedar." In the face of this
positive evidence, I find it quite impossible to reach any other
conclusion than that the houses were originally built of shakes in
1860 at the latest. Such a conclusion is entirely in accord with
the history of the architecture of the primitive times, and in Judge
Ho way and Schoefield's History, already cited, many valuable
historical views of old buildings, public and private, in the colony
are to be found showing this t^e of construction in various forms
—I refer, e.g., to vol. 11, pp. 53 (Fort Langley); 71 (Lytton);
76 (Yale); 111, 116, 118, 122, 135, 257, 258, 261, (Chief Justice
Needham on circuit in Cariboo in 1867 in the celebrated "Grouse
Creek War" case—Canadian Co. v. Grouse Creek Flume Co.
(1867), 1 M.M.C.3); 266, 272 (Cariboo Court House and Judge's
Residence at Richfield); 591 (Nanaimo); 554 (Port Simpson),
etc. Thus the apparent difficulty caused by the later use of
mi]l lumber becomes a simple matter to understand, and presents no real difficulty when the notorious customs of the people
at large are borne in mind, as they ought to be, that justice may
be done to all.
The Indian witnesses, however, are far from lacking support
from white witnesses in their account of the houses being built
long before the first mill was built in 1865. . Even DeBeck, called
by the plaintiff, admits that he saw two houses there in 1868, and
that they "were old-looking shacks" at that time (A.B. 48, 53)
though Taffendale (a very unsatisfactory witness), also for the
Plaintiff, saw only one in 1869. For the defence, Fisher (aet. 79),
in May, 1867, saw three shacks there which he describes as follows
(A.B.85).
"Q.   Now, taking those three shacks—those places that
were occupied by those three men, from your recollection  194
Full Reasons for Judgment.
Martin, J. A.
what did they look like ? How old did the shacks look at ttiat
time? A. Well, I will tell you; I think by the look of those
there shacks they must have been there five for six years, because they were all weather-beaten, and the wharves looked
as if they had been put up for some time, that they had there."
And Fisher had good reason to know the date, because he and
some others buried a man there (near the Time Gun on Ex. 7)
I o who had dropped dead at Hastings Mill, while Fisher was await-,
ing the arrival of a ship to( load lumber. Then there is the evidence of Trimble, (aet. 82), which, if credited, is of much consequence, because he says he saw three houses at the locus on the
23rd of December, 1862, when he was returning to Victoria from
Cariboo by Burrard Inlet, having walked over from New Westminster to what was afterwards Gastown, now Vancouver, because the ice on the Fraser River prevented the steamer from
reaching that customary port to and from Victoria. He says that
in going out of the harbour from the south shore the steamer, the
"Wilson G. Hunt," passed so near Deadman's Island and Brock-
20 ton Point that he could see the houses, and there is no reason why
he could not, as the distance is short, and from the height of a
steamer's deck there would be a clear view and the steamer would
doubtless be'proceeding slowly and taking the old customary channel inside Burnaby Shoal before the official change in navigation
to the outside thereof was made in consequence of the "Clallam"
disaster and the decision in "Bryce vs. Can. Pac. Rly. (1907-9),
13 B.C. 96; 15 B.C., 510; 13 Can. Ex. 394. Any observant man would
be likely to take note of the only habitations in a hitherto wild
locality that he saw on that side of the Inlet, which must have
come as a surprise to him, and I have no doubt after carefully con-:
sidering the evidence, though it is a-little obscure at the beginning
that the year was '62 and not '63, as suggested during the argument: '62 was accepted at the trial both by Judge and counsel
as being the year he was speaking of—the only real uncertainty
is as to when he went up country, not when he came "out" for
Christmas, after exceptionally cold weather had set in. No reasonable doubt can exist as to the accuracy of his general observation upon that occasion, because he verified it eleven years later
when he revisited the Inlet and went to the new settlement at
Gastown and over to visit the same houses on Brockton Point
40 on Dominion Day, 1873, that he saw there in '62, and gave further
particulars about them and clearings, etc., which I see no reason
for disbelieving in substance: his evidence as a whole, despite certain minor discrepanices and failings, is as strong as could be expected having regard to his age and the lapse of time, as to which
the language of the Privy Council in Horden v. Horden (1910)
30  195
Full Reasons for Judgment.
Martin, J. A.
A.C. 465, is instructive, their Lordships saying, p. 470, about the
evidence of witnesses as to a transaction of twenty-three years
before:
"They gave what was manifestly the best account they could
give, after the lapse of so many years, of what actually took
place."
I shall not attempt to review in detail the evidence as to the
10 actual extent of the clearing and fencing made by Joe Silva when
he first took possession, and'it would be impossible to do so because of the fact that since the survey of 1886 and the cutting of
the said preliminary trail in 1887 and the subsequent construction
of the main road upon that location, the defendant has accepted
that road as his northern boundary, which is one of the very
unusual features of this case before mentioned, thus defining both
. the northern and southern limits of occupation by said road and
the sea-shore, which, at the western boundary of the defendant's
claim, is only a distance of about one hundred feet from the road
20 to high-water mark as the scale on plaintiff's ex. 7 shows. Gonzalves, it is to be noted, moved his fence back in 1886, to where it
is now, at the time the surveyors came there to locate the road preceding the cutting of the trail, and Peter Smith's fences were moved back also (A.B.143-4-5).
The second unusual feature is the very small extent of the
area claimed by the respective squatters, the present defendants,
being only a little more than one-third of an acre, which moderation in the claim is not only in itself commendable but is an evidence of good faith, and once it has been established that Silva did
30 build a house there before April, 1863, it becomes, from the nature
of the case, almost impossible to restrict his claim to smaller limits
from the beginning, apart from Gonzalves' undoubted fencing
forty-nine years ago: Silva must, at least, have had a well some
distance from salt water and some sort of clearing and underbrush
about his house and the usual outbuildings, and not only that, but,
as a matter of safety and self-preservation, he must have cut down
the "very tall trees" (which means anything from 200 to 300 feet
high in that vicinity) near his house, because once the forest was
cut into and its natural state altered, opening it to the wind, he
40 literally lived in the shadow of death unless he cut down the tall
trees that probably would fall on his house, and that he did so is
not only that reasonable expectation of a "course of conduct"
which Kirby v. Corduroy, supra, says the Court should act on, but
a matter of fact, because Gonzalves testifies (A.B., p. 148) to the
prior clearing away of "all the tall timber," as he saw when he
took possession as aforesaid in 1874. And it is to be noted by applying a scale to said ex. 7 that not one of the various parcels has  196
Full Reasons for Judgment.
Martin, J. A.
a greater depth than 140 feet from the road to highwater mark; in
other words, much less than the height of a very tall, or even
moderately tall, fir or cedar tree, thus establishing a clearing ex
necessitate. I draw attention to this fact of the very small extent of these holdings because the learned Judge refers to them as
"extensive"; the reason why they were so small is because the
squatters were not tillers of the soil who required an extensive
10 area, but fishermen, primarily, who derived their living from the
sea in various ways.
The third unusual feature is that this clearing was originally,
and, indeed, barring the said road, still is, simply nothing more,
relatively, than a small niche, so to speak, chopped into a primeval
forest, which at the time and for many years after, till 1887, had
no communication other than by water with civilization, and hence
there would be little reason, in the earlier years at least for erecting fences or taking other steps to define possession against trespassers or adverse claimants, but simply some sort of rough defini-
20 tion of their claims as between the squatters themselves.   An 1
when the fence was set back in 1886, and re-erected where it now
unquestionably stands, along the south side of the present road,
that established the boundary and made certain and definite since
forty-nine years past that which may have been uncertain and indefinite theretofore.   The Ontario cases show that even in the
case of the occupation of surveyed wood lots, fencing-is not essential as against private owners—of.   Heyland v. Scott (1869)
19 U.C.C. p. 169; Davis vs. Henderson (1869), 29 U.C.R., 344; Kay
v. Wilson (1877), 2 A.R. 133; and Piper vs. Stevenson (1913), 28
30 O.L.R. 379; not one of the many cases that have been cited to us
resembles the present in this important respect, and hence the
principles hereinbefore quoted governing possession "with reference to the peculiar circumstances" of the case have special force.
And in approaching the consideration of this matter, I do so in
spirit set out for our guidance by the Supreme Court of our country, out of its wide knowledge of the conditions thereof, in the
case of Hamilton v. The King, supra, one relating to a squatter's
occupation of Ordnance lands in the City of Ottawa, wherein the
Chief Justice, at pp. 339-40, said:
40        "The Crown permitted the defendants or their predecessors
in title to remain in undisturbed possession for fifty-eight
years before taking action in 1890, and took no steps to enforce
the judgment then obtained during the ensuing twenty-four
years.   During this long lapse of time all parties concerned
have died.    The form of government of the country has been
repeatedly changed, and the then newly-founded and insignificant by-town has become a great city, the capital of the PS 197
Full Reasons for Judgment.
Martin, J. A.
10
Dominion of Canada. Under these circumstances, I think
the courts need not hesitate to require the strictest proof of
a claim to oust the defendants. Failing this, I think substantial as well as legal justice will have been done by leaving
them undisturbed in the possession which they have so long
held.
"This is a case in which we may recall what the Privy
Council has said concerning the difference in relation between
the Crown and the subject in this and in older settled countries. Such long periods of time as those prescribed in the
"Nullum Tempus Act" seem to consort more with the slowly
altering conditions in the latter than with those in a country
which has witnessed such phenomenal changes in Canada
during the past century. Without encroaching on the function of the legislature, we may endeavour to mitigate the
hardship of a rigorous enforcement of rules which change of
time and place render oppressive."
20 And in Tweedie v. The King, supra, Mr. Justice Anglin said, p.219•
"From a continuous user of upwards of forty years (such
as has been actually proved in this case) an earlier like user
may readily be inferred. Chad v. Tilsed (1821), 2 B. & B.,
403, at 408."
And at p. 220:-
"The evidence adduced by the defendant in support of his
possession' is as satisfactory as could reasonably be expected,
having regard to all the circumstances, and it should, in my
opinion, be held that he has established title to the foreshore
in question."
These observations are particularly appropriate to the present
case, because the title set up by the defendant begins with an impregnable possession of forty-nine years, and goes back to the very •
beginnings of law and order in the old colony of British Columbia,
to its birth in fajSt,,and whatever view the Courts may have taken
as regards the encroachments of squatters upon private property
or mere speculative squatters upon the public domain, in Western Canada at least, neither under the Hudson's Bay Company nor
under the Crown direct, has the squatter as a settler upon public
lands in the pioneer days of occupation been looked upon with disfavour, on the contrary, he has been favorably regarded by the
powers that be as a settler who was assisting in the building up of
the country though in an irregular manner at the start. The instructive history of the extensive and benevolent recognition of
squatters' claims in Rupert's Land and the North-west Territories is set out in Martin's H.B.Co.'s Land Tenures (1890), pp.
30
40  198
Full Reasons for Judgment.
Martin, J. A.
- 65-9, 103-6, and I see no reason why the Crown or the .Courts in
this Province should regard these ancient pioneers of Stanley
Park in a less favorable light than similar pioneers have been
regarded in other parts of Canada. The long and conspicuous
occupation by this defendant since the trail was cut through
Stanley Park of a piece of property fronting on what is the principal scenic road in the Canadian Pacific (over which innumer-
10 able persons have travelled, including myself, many scores of
times) has been so public and notorious that it is difficult to
believe it was contrary to the wishes of the Government.
Upon the consideration of all the evidence in the case, I can
only reach the conclusion that the defendant has established his
said defence, wherever the onus of proof may rest, and, therefore,
I would allow the appeal and dismiss the action.
(Sgd.)    "ARCHER MARTIN,.J.A.''  199
N
Reasons for Judgment.
McPhillips, J.A.
REASONS FOR JUDGMENT OF THE HONOURABLE
MR. JUSTICE McPHILLIPS
This appeal has relation to the title to a very small area
(0.354 acres) of land out of that very large area of land known
as Stanley Park in the City of Vancouver. The title shewn is
that originally the Crown (Imperial) was the owner owing
to the area being set apart in Colonial times as a Military
10 Reserve, (1858) and transferred by the effect of Imperial
Despatch (-1884) to the Crown (Dominion). The City
of Vancouver was authorized by the Crown (Dominion) by Order
in Council (8th June 1887) to use the Military Reserve as a park.
Later this Order in Council was cancelled by Order in Council of
August 31,1906, a lease was authorized of the Military Reserve—
i.e., "Stanley Park" for 99 years (renewable) to certain commissioners appointed by the Governor-in-Council and the City Council (Vancouver); this was followed by an Order in Council of
August 13, 1908, wherein the Order in Council of August 31,1906,
20 was amended to provide for the leasing to the City of Vancouver
of Stanley Park instead of to six commissioners. A lease followed
in due course under date of November 1,1908 for 99 years renewable perpetually to the City of Vancouver of Stanley Park with
power in the Minister of Militia and Defense to resume possession
of any portion of the park for any military purpose whenever required in his judgment, there being the further right to re-enter
on breach of any of the covenants contained in the lease.
The action is one for the possession of land and its commencement naturally imports that the defendant is in possession of the
30 land claimed by the Plaintiffs, (the 0.354 acres).
It must be admitted that in accordance with English law title
to land is founded on possession, and that being the case it is all-
important to scan the evidence carefully and give it its proper
weight bearing well in mind the existent conditions, the early
settlement before and at or about the time of the Cariboo Gold
Rush in 1858. (Bract, fol. 284, 435 b; Litt. s. 170; 3 Bl. Com., pp.
180,195; Holmes on the Common Law, pp. 244, 246; P. & M. Hist..
Eng. Law, vol. 2, pp. 46, 79.)
It must be conceded that the Defendant, who is acknowledged
40 to be in possession of the land is entitled to remain in possession
thereof against all except those who can shew a better title, and
can prove that they or their predecessors had earlier possession of
which they were wrongfully deprived (Bract, fol. 31 a, 52 a, 434 b,
435 a; Doe d. Hughes v. Dyeball (1829), 1 Mood. & M. 346, 3 Car. &
P. 610; .Doe d. Smith & Payne v. Webber (1834), 1 Ad. & El. 119,  200
Reasons for Judgment.
McPhillips, J.A.
110 E.R. 1152; Asher v. Whitlock (1865), L.R. 1 Q.B. 1; Perry v.
Clissold, (1907) A.C. 73).
The evidence is absolutely silent upon the point of the plaintiffs having been at any time wrongly deprived of possession.
It is admitted law that those who sue for the recovery of land
of which another is in possession must recover on the strength
of their own title and cannot found their claim on the weakness
10of the possessor's title. {Roe d. Haldane and Urry v. Harvey
(1769), 4 Burr. 2484'( at p. 2487, 98 E.R. 302; Cole on Ejectment,
p, 287; Danford v. McAnulty (1883, 8 App. Cas. 456, at p. 462.)
The Defendant being in possession gives a good title as against
all but rightful owners whose claim though, as we have seen,
must be founded on prior possession, but it must also be remembered that possession continually tends to bar the rights of all
who even have such prior title (Leach v. Jay (1878), 9 Ch. D.42, at
p. 44). Here, as I have said, there is the entire absence of there
having been eaiiier possession in either of the Plaintiffs to the
20 possession of the Defendant, in truth it would not appear that
it would be possible to make out any earlier possession. Then
proceeding to another view of the matter, even if it were admitted that the Crown (Imperial) up to 1884 and the Crown
(Dominion) from that time onwards, could be said to be rightfully entitled to the land and no steps were taken to assert those
rights within the period prescribed by statute, their remedies
would be barred and their title extinguished (Statutes of Limitations 3 & 4 Wm. IV., c. 27, s. 34; R.S.B.C. 1911, c. 145, ss. 41, 49).
Therefore, if it can rightly be said that the Defendant has
30 shewn possession of the land for the prescribed period, and here
that must be 60 years as against the Crown, that possession will
give a good title thereto as against all the world (Trustees, Executors and Agency Co. v. Short (1888), 13 App. Cas. 793).
- Notwithstanding, and with great respect to the judgment of
the trial Judge, I am clearly of the opinion that ample evidence
was led and adduced at the trial upon which it can reasonably
be found that title was acquired by the Defendant to the land in
question by continued possession adverse to and in derogation
of that of the Crown. There being no express extinguishment
40 of the Indian title in British Columbia the question whether
there was earlier possession in the Crown than that of the Defendant and those under whom he is entitled to claim possession,
is brought up somewhat graphically arid it might reasonably be
said that there could be no prior possession in the Crown to the
possession shewn by the Defendant, In any ease, the evidence
is ample in its terms to show that there was adverse occupation  201
"Reasons for Judgment.
McPhillips, J.A.
of the land in question for the full period of 60 years and more,
and there was that continuity of possession entitling the Defendant to insist upon and to be admitted to be the owner of
the land, the Crown being barred and the title in the Crown in the
land (0.354 acres) extinguished. I would refer to the reasons for
judgment of the trial Judge, and in particular the following excerpt therefrom:—
10 "Dealing first with the six cases, whose root of title is alleged to be either in Smith or in Silva: On the first point, as
to whether it has been proven that that possession has existed for
60 years, the only evidence adduced to prove that, apart from
the Indian testimony, is the evidence of Trimble. He' does say in
sailing out on a vessel here in December, 1862 he saw three houses;
and he says he came back in 1873. He visited the locus then and
found three houses there, and he goes to the length of saying that
these houses are in the same position as the houses that he saw in
1862 from the water.   I cannot accept this as satisfying the onus
20 which rests upon the Defendants. Three Indians give evidence'
that these houses were there for a period that would constitute
60 years adverse possession. Now with regard to the Indian evidence I must say it was unsatisfactory. I don't think the Indians
intended at all to deceive the Court. Naturally they were very
old people and could only fix dates by the Cariboo Gold Rush.
They contradicted themselves—two of them at any rate, very
materially, because they said those buildings were made of lumber
and lumber from mills here. They did not say they were from
mills here, but it would be the only place where lumber could be
30 obtained. It is possible that lumber might have been whipsawn,
but I think no one would be justified in coming to the conclusion
that one would whipsaw lumber to build houses in Stanley Park
where cedar, which could be easily split, was available. As against
that I have the map and it seems to me that is evidence which,
even if the onus were on the Crown, would conclude this case, on
the point of 60 years possession. That map was made under instructions to shew any occupancy, by this man Turner, and he
does show the occupancy of Aunt Sally and shows no other.
"I hold on that first point that the case is not made out; but
40 if I am in error in that it is absolutely impossible for me to say {
from this evidence that there has been any satisfactory proof—not
alone of fences, but of any clearing that dates back 60 years. If
there were any such extensive clearing as would justify the Court
in decreeing that these people own this extensive piece of land,
as shewn by the map, it would be a physical impossibility for a
surveyor, such as Turner, to have failed to see it. Then I agree
that it would not be necessarily possible to prove fencing but some  202
Reasons for Judgment.
McPhillips, J.A.
clear act of possession such as clearing must be proved. If there
were no clearing, or only small parcels of clearing, I cannot say
on this evidence where these houses were at all, or where the
clearings were, assuming they existed; and I think the onus is on
the Defendants to show me the metes and bounds of the property
they claim. They must show possessio pedis, and I hold they
haven't done so.   On those two grounds I have to hold that the
10 Crown is entitled to recover possession."
With great respect, I cannot agree with the trial Judge's view
as to the evidence of the witness Trimble, and the evidence' of the
Indian witnesses. It cannot be said that there is no evidence to
establish title by prescription in the Defendant. On the contrary, I am of the opinion, considering all the surrounding circumstances and the necessary period of- time that had to be
covered, namely, 60 years, that the evidence led and adduced
at the trial upon the part of Defendant forms a reasonable basis
upon which it can be said there has been 60 years of adverse
20 possession against the Crown. It is to be remembered that although the Crown is shewn to be the registered owner with an
indefeasible title of the whole of Stanley Park, yet that title is
no guarantee against any adverse possession. (See Land Registry
Act, 1921 (B.C.), c. 26, s. 37, s-ss. 1 (j) and 2.)
Here the onus probandi was on the Crown to make out its
title, i.e., the affirmative side of the question—(see Phipson on
Evidence, 6th ed., c. 4, pp. 30 et seq.)—a fact being asserted that
fact has to be proved to enable success in the action. It was not
necessary for the Defendant here alleging the negative, to prove
30 it in first instance. The affirmative in substance was upon the
Crown as admittedly the Defendant was and is in the actual possession of the land, and as we have seen the person who is in possession of land has a title to the land which is good against all ex-
• cept those who can show a better title, that is can prove that they
or their predecessors had earlier possession of which they were
wrongfully deprived. Now in the present case, if no evidence was
offered, who would be unsuccessful in the action? In my opinion the Plaintiffs would be—therefore the Plaintiffs had to make
out their case. (Amos v. Hughes (1836), 1 Moo. & R. 464; Bract.
40 fol. 30 b, 31; Cole on Ejectment, p. 287; Williams on Seisin of the
Freehold, p. 7; Holmes on the Common Law, p. 244; P. & M. Hist.
Eng. Law, vol. 2, pp. 22 and 40). Then even if prior title were
shewn that is not enough where there is adverse possession as
that possession may have been of such duratipn, i.e., the period
prescribed by statute that would result in barring and extinguishing the title, and that is the necessary inquiry in the present case.  203
Reasons for Judgment.
McPhillips, J.A.
The fact that the Crown has shewn a registered indefeasible
title, as we have seen, in no way establishes title to the land in
question as against title by possession, and in so far as the present
action is one for trespass the Crown is not entitled to have it
assumed that the Crown is or ever was in possession of the land,
i.e., the Crown will not be deemed to be in possession for the purpose of maintaining an action of trespass which is founded on
10 disturbance of the actual possession of the land. (Gilbert on
Uses and Trusts, p. 81 (p. 185, 3rd ed.); 2 Fonblanque on Equity,
p. 12; Harrison v. Blackburn (1864), 17 C.B.N.S. 678, 144 E.R.
272-r Anon. (1586), Cro. Eliz. 46, 78 E.R. 310; Heelis v. Blain
(1864), 18 C.B.N.S. 90, 144 E.R. 374; Hadfield's Case (1873),
L.R. 8 C.P. 306.)
By an Act of George HI, (9 Geo. III. (Imp.), c. 16) the
rights of the Crown in all lands and hereditaments are barred
after-the lapse of 60 years and that statute law is in force in
British Columbia by virtue of the Laws Declaratory Act, R.S.B.C.
201911, c. 133.
Now as to the triangulation survey of the shore line called
the Turner survey, carried along the foreshore where the land
in question is situate I cannot give the weight to it that the trial
Judge has. Further, it is admitted that there would be a space
of time of 2 or 3 months after the survey when the buildings said
to be on the land could have been built and there still would be the
lapse of 60 years—to accomplish title to the land by prescription.
The witness Fisher's evidence is valuable in that in 1867, 56
years before this action was commenced, buildings were upon the
,30 lands claimed by the Defendant in this action, and the lands
claimed in the three other actions, viz., against Peter Smith, Mary
DeKosta and Edward Long. The evidence of Fisher is in the
clearest terms and in 1867, the buildings in their appearance indicated that they had been up 5 or 6 years. I place little or no
stress upon whether the buildings have been said to have been
built of lumber as there is no conclusive evidence that sawn lumber was not obtainable in 1863 or before, the fact that there were
no mills then in the neighbourhood does not conclude the question,
the lumber could have come from some other point.   Further,
40 there is some evidence that split cedar might have been taken for
■   sawn lumber and there is evidence that about 10 years after the
buildings were first erected the buildings were renewed or repaired with lumber which was then obtainable from local mills.
Abraham's evidence is clear enough to indicate that the claimed
occupation and possession was at the time of the Gold Rush to
Cariboo in 1858, which would give possession for more than the mmtem 204
Reasons for Judgment.
McPhillips, J.A.
period of 60 years, and he (Abraham) says that there were at
that time 3 or 4 houses at the point in question, upon the land here
in question-and in question in the other three actions, and other
witnesses give evidence to the like effect.
I will refer shortly to some of the points in Abraham's evidence. The witness is clear upon it that there were four houses
upon the lands in question at the time of the Cariboo Gold Rush:—
10 "Q. And were those houses there at the time of the Gold Rush
in Cariboo ? A. Yes. Q. A row 'of houses ? A. Yes. Q. Ask
him (questions were put through an interpreter) if he remembers
Peter Smith—old Peter Smith? A. Yes, he knows him. Q. Ask
him if he lived there at the time of the Cariboo Gold Rush? A.
Yes. . . . The Court: He (Abraham) may be misunderstanding you there; he told us yesterday that there were four houses
down there in which other than Indians were living. . . . The
Court: Ask him that? Q. Were there any Portuguese living on
the Inlet at that time (Cariboo Gold Rush) ? A. That is where
20 they lived. ..."
Emma Gonzales dealing with the lumber put into the houses
said:—"There was an Indian man that would split the cedar logs
for them and they used that to build their houses." And further
said:—"You see when these primitive boards became ancient
they tore them down, and built another house of mill lumber right
on the very same place"—"the mill lumber was there fifty years
and ten years before that it was primitive made boards."
Trimble's evidence in my opinion is very complete and establishes the 60 years' possession, his evidence shews that the houses
30 existed in 1862, three in all, the house of the Defendant being
one of them. Trimble was later on the ground in 1873 and saw
the houses he spoke of seeing from the water in 1862, and he said
the houses "looked as if they might be 10 or 12 years old, three
in number," and he also spoke of fences and speaking of the material in the houses said:—
"They were all built out of split cedar that I could see. I
didn't go near the other ones at all. There is not much difference
between sawn lumber and split"—"As far as I can say they
were built out of split cedar. Q. The whole three? A. Yes."
40 Trimble fixes the time he first saw the three houses as being on
December 23, 1862, and that establishes that the buildings were
existent more than 60 years before action
Then there is the significant fact that when the roadway
was made around the park in 1889, the Defendant and the others
in the immediate neighbourhood in adverse possession to the
Crown and the City of Vancouver, were not proceeded against
as trespassers, all that took place was the moving back (towards  205
Reasons for Judgment.
McPhillips, J.A.
the sea) of the fences. This roadway was', buijt by the City of
Vancouver and is still maintained by the City of Vancouver.
It is clear that there has been 34 years of adverse possession as against the City of Vancouver of the land in question. Therefore it would not appear that the City of Vancouver
itself has any position enabling it to dispute the: title of the
Defendant as but 20 years are necessary to give title by prescrip-
10 tion against the City of Vancouver. The Crown however is
joined in the action and,the City of Vancouver attempts through
the Crown to displace the title of the Defendant.
I will later deal with the question as to whether the Crown
is entitled to bring an action of this kind haying dispossessed
itself of possession of Stanley Park to the City of Vancouver,
and having executed a lease thereof to the City of. Vancouver.
To now deal with the reasons for judgment of the trial Judge
and the value by him attributed to the testimony of the Indian
witnesses—the Judge said:—"Three Indians give evidence that
20 these houses were there for a period that would constitute sixty
years adverse possession."
The evidence is not confined to the testimony of the, Indians
alone. There is notably the very informative evidence of Trimble,
a very observant man whose testimony is entitled to the highest
weight. Further, with great respect, I differ entirely with the
Judge's view wherein he stated that the Indian evidence is unsatisfactory in its nature. To my mind it is conclusive. It must
be remembered that it had to be given through interpreters—the
salient and material facts are clearly sworn to.    There was the
30 occupation and continuity thereof establishing adverse possession
for 60 years—no break whatever in the possession—and I do
not see that the cross-examination of these very old witnesses
in any way shook the undoubted value of this testimony so clearly
given by the Indians. It will not do to 'sayi that the houses were
built of sawn lumber when the positive testimony is to the contrary, and well maintained, but even on this point some sawn
lumber might have been used, manufactured elsewhere than in,
Burrard Inlet. However, upon a careful reading of the evidence
as a whole, I am satisfied that the houses were constructed and
4Qin occupation well within the sixty-year period, and Trimble's
evidence is corroborative of this fact, also corroborative of the
material used in their construction. In cases of this character
it must be expected that there will be seeming variances or
inaccuracies in the testimony of aged witnesses, but I am satisfied
that the testimony is ample and sufficient to bear out the claim
of adverse possession fos the requisite sixty-year perKod.   It is  206
Reasons for Judgment.
McPhillips, J.A.
indeed a notorious fact, gleaned from all the evidence, that there
was unbroken settlement and occupation of the areas in question
throughout the whole period of time. The occupation once
established at a time which would admit of a prescriptive title
being claimed, with continuity of possession, the onus of displacement thereof unquestionably has not been discharged.
I cannot place any weight upon the triangulation survey and
10 no occupation be'ing shown thereon. Firstly, because in law I
do not consider it admissible evidence. I will later refer to some
of the authorities upon the,- point. Secondly, as- before pointed
out there was a period of time after the survey was 'made, which
would have admitted of the building of the houses and the claimed
occupation, some three months of time, quite sufficient to construct the houses out of the material at hand, viz., split cedar.
That circumstance alone, even if the 'map could be said to be
legal evidence, destroys its. efficacy and renders it valueless as
nn to the material point in issue in this action.
With great respect, I cannot follow the tr'ial Judged observation when he says:— "If there were any such extensive clearing
as would justify the Court in deciding that these people own
this extensive piece of land as shown by the map, it would be a
physical impossibility for a surveyor such as Turner not to see
it."
As we have seen the occupation and construction of the houses
could have been later in time, to that of the Turner survey, i.e.,
triangulation survey on the water front.   Further, the area of
on land in question cannot be said to be extensive, as in this action
all that is claimed is an area of( 0.354 acres, a very small parcel
indeed and at the time of the survey the area was primeval forest,
and occupation might pass unnoticed by a surveyor directing
his attention primarily to the coast line. It is not essential
at all to establish prescriptive title to prove fences, clearing and
cultivation, and I cannot agree with the trial Judge's conclusions
as to this phase of the matter. Further, there is no requirement
to establish precise metes and bounds (Davis v. Henderson
(1869), 29 U.C.Q.B. 344, at p. 355).   In any case no difficulty
40 whatever arises in the present case as the occupation and situation of the houses is clearly established by the testimony given
and well brought home to the City of Vancouver when the fences
were moved back, that is towards the sea, to admit, of the road
being constructed which is to-day the western boundary of the
land in question, and that road was built by the City of Vancouver
in 1889, and the City of Vancouver removed the fences and reconstructed them.   So it is apparent that there can be no diffi- lir-IIMHIffiW'-l 207
Reasons for Judgment.
McPhillips, J.A.
culty in delineating the area, as the land in occupation at that
time was the same land held in adverse possession throughout the whole sixty-year period. ■ (Also see Kay v. Wilson (1877),
' 2-A.R. (Ont.) 133, at p. 144; Piper v. Stevenson (1913), 12
D.L.R. 820, at pp. 826-7, 28 O.L.R. ,379.)
Now as to the admission of the Turner field notes, and map
under which it is claimed that occupation and adverse posses-
10 sions at the time thereof is displaced, and which the trial Judge
gave so much weight to, we have Lord Dunedin dealing with
this evidence in Att'y-Gen'l. of B. C. v. Att'y-Oen'l of Canada,
(1906) A.C. 552, at pp. 556, 557.   He there said:—
"First, there is the marking in Corporal Turner's field notes.
Corporal Turner was under Colonel Moody, and was.engaged in
1861-63 to survey the coast line at this place. Corporal Turner
is still alive, and was examined, and he produced the field notes
he made at the time. On these field notes Stanley Park is marked
as 'military reserve.' Their Lordships must here remark that
20 they think an entirely erroneous view of this evidence was pressed
on the trial judge in argument and accepted by him. It being
admitted that Corporal Turner had no power to make a reserve,
it was contended that such evidence was secondary and inadmissible. This seems a misapprehension. The evidence is not
evidence of the actual marking of the reserve; but it is perfectly
good valeat quantum as serving to refresh Corporal Turner's
recollection, and as showing that a man then on the spot put
down military reserve as the then existing designation of the
30 land in question.''
It is therefore apparent that the field notes and map would
not be evidence to establish the facts but useful to refresh the
memory of a witness. In this case there is no evidence from
Corporal Turner available, and with great respect, in my opinion,
the Judge erred in considering and giving effect to this insufficient evidence. (Bidder v. Bridges (1885), 54 L.T. 529, 34,
W.R. 514; Mercer v. Benne, (1904 2 Ch. 534, at p. 544, and Mercer
v. Benne, (1905) 2 Ch. 538, at pp. 563, 568.)
Then as to the weight to be attached to the trial Judge's
40 opinion when he passes over and does not give effect to the Indian
testimony, I would refer to what Collins, MR., said in Re Moulton
(1906), 22 Times L.R. 380, at p. 384:—
"On the other hand, the learned Judge has reflected unfavorably on the evidence of the Plaintiffs. . . We are aware
of the great weight properly attributable to the opinion of the
Judge who has heard and seen the witnesses; but an appeal is a
rehearing, and we cannot avoid the responsibility of forming a
—""  208
Reasons for Judgment,
McPhillips, J.A.
judgment on the matter for ourselves.   .   .'  ."
After full review of the evidence in the exercise of the responsibility that rests upon me in this appeal I have no hesitation
in stating that it has been sufficiently established that the houses
were built and were in occupation, constituting adverse possession for the full period of 60 years as against the Crown, and
there has. been that continuous possession called for. See
lOGwynne, J., in McConaghy v. Benmark (1880),f4 S.C.R. 609, at
pp. 632-3, "visible occupation by some person or persons (it
matters not, whether in privity with each other in succession or
not) to the exclusion of the true owner.    .    .    ."
Even were I in error as to the 60 years of adverse possession
this action could not succeed, as it is beyond question that the
20 years only which is necessary to be established in this are
made out, i.e., adverse possession of 20 years against the City of
Vancouver (B.C. Statute of Limitations, s. 16) the Crown having
demised the land to the City of Vancouver in 1887. In O'Connor
20 v. Foley, (1905) 1 I.R. 1, at p. 19, (also see 8 I.R. Reprint 1, at
p. 10) the Master of the Rolls said:—"That the Statute (of Limitations) should confer a title as against any other claimant to
the leasehold interest, is plain enough."
I am not deciding that upon the cessation of the term, the
Crown might not have the right if so advised, to dispute title,
if it is not finally maintained in this action that the title in the
Crown has been displaced. (Also see O'Connor v. Foley, (1906)
1 I.R. 20, at pp. 25, 26, 38, 39, 8 I.R. Reprint 607). It was held
in Ecclesiastical Comm'rs for England v. Treemer, (1893) 1 Ch.
30166, (headnote) that:—"a lease which passing an estate . . .
prevented the grantor, and-those claiming under him, from seeking to recover the lands till "that lease had expired." And see
Chitty, J., at pp. 170, 175, (Walter v. Yalden, (1902) 2 K.B.
304.)
In my view the whole case therefore resolves itself into this—
title has been effectively proved -by adverse possession for the
sixty-year period against the Crown—if though I should be in
error in this then assuredly title has been effectively proved by
adverse possession for 20 years against the City of Vancouver
40 and during the continuance of the term of the demise by the
Crown to the City of Vancouver, the Crown cannot take steps
to dispossess the Defendant. In Glenwood Lbr. Co. v. Phillips,
(1904) A.C. 405, at p. 408, Lord Davey said, "If the effect of
the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to  209
Reasons for Judgment,
McPhillips, J.A.
a restriction of the purposes for which it may be used, it is in
law a demise of the land itself," and that is the situation in this
case, the City of Vancouver so holds the land.
Upon' the whole .case I am of the opinion that the appeal
should be allowed.
I'')-*)■' Appeal allowed.
Vancouver, B. C, 7th October, 1924.  210
Judgment—Court of Appeal.
COURT OF APPEAL.
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
10
AND
ALFRED GONZALVES
PRESENT:
The Honourable the Chief Justice,
The Honourable Mr. Justice Martin,
The Honourable Mr. Justice McPhillips.
Plaintiffs
(Respondents)
Defendant
(Appellants)
Vancouver, 7th October, 1924.
This appeal coming on to be heard at Vancouver, on the 7th,
10th, 11th and 12th days of March, 1924, in the presence of Mr.
Mayers and Mr. G. Roy Long, of counsel for the Defendant
20 (appellant) and Mr. George E. McCrossan and Mr. A. E. Lord of
-   counsel for the Plaintiffs (respondents), UPON READING the
notice of appeal herein dated the 5th of February, 1924, and the
'   appeal book herein, and UPON HEARING what was alleged by
counsel aforesaid, this "Court did order this appeal to stand for
judgment, and this appeal coming on this day for judgment:
THIS COURT DOTH ORDER AND ADJUDGE that this
appeal be, and the same is hereby allowed, and that the Defendant
(appellant) do recover from the Plaintiff (respondent), the Corporation of the City of Vancouver, his costs of this appeal to be
30 taxed.
AND THIS COURT DOTH FURTHER ORDER AND
ADJUDGE that this action be, and the same is hereby dismissed,
and that the Defendant recover against the Plaintiff, the Corpora-  211
Judgment—Court of Appeal.
tion of the City of Vancouver, his costs of this action to be taxed.
BY THE COURT,
H. BROWN.
Deputy Registrar.
A.E.L.
J.A.M.
C.J.A.
J.O.M.
D.R.
10 Checked, A.H.C.
Entered Oct. 24/24, Order Bk, vol. 6 fol. 128, per A.L.R.
Seal, Court of Appeal, British Columbia.
B.C. L.S. $1.10,
Vancouver
Registry
Oct. 24, 1924  212
Notice of Appeal to
Supreme Court of Canada.
IN THE COURT OF APPEAL FOR BRITISH COLUMBIA.
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
10
AND
ALFRED GONZALVES
Plaintiffs
(Appellants)
Defendant
(Respondent)
NOTICE OF APPEAL TO SUPREME COURT OF CANADA
TAKE NOTICE that the Attorney-General of Canada and
the City of Vancouver, the above-named Plaintiffs, hereby appeal
to the Supreme Court of Canada from the judgment pronounced
in this cause by the Court of Appeal on the seventh day of October,
A.D. 1924, whereby the appeal of the Respondent from the judgment of the Honourable Mr. Justice Murphy, dated the 11th day
20 of December, A.D. 1923, was allowed with costs.
J. B. WILLIAMS,
Solicitor for the Appellants.
To the above-named Respondent
and to his Solicitors,
Messrs. McQuarrie, Cassady & McGowan,
510 Hastings Street West.
Vancouver, B. C.
Vancouver,
Dec. 1, 1924.
30    Registry.
B.C. L.S. 10c. r 213
Certificate of Registrar as to Security.
COURT OF APPEAL.
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
AND   .
ALFRED GONZALVES
10
Plaintiffs
(Appellants)
Defendant
(Respondent)
CERTIFICATE OF REGISTRAR.
I, THE UNDERSIGNED REGISTRAR of the Court of
Appeal at Vancouver, B. C, DO HEREBY CERTIFY that the
City of Vancouver, the above-named Plaintiff (Appellant) did
on the 1st day of December, A.D. 1924, duly file in this Court a
I Bond in the sum of Five Hundred Dollars ($500.00) as security
that the said Plaintiffs (Appellants) will effectually prosecute
20 their appeal to the Supreme Court of Canada from the Judgment
of the Court of Appeal for British Columbia dated the 7th day of
October, A.D. 1924, in this action and pay such costs and damages
as may be awarded against the said City of Vanc.ouver by the
Supreme Court of Canada.
DATED at Vancouver, B. C, this 1st day of December, A.D.
1924.
B.C.L.S. $1.00
30 Seal of the
Court of Appeal,
Vancouver,
Dec. 1,1924.
Registry.
J. F. MATHER,
Registrar.  214
Order Allowing Security.
COURT OF APPEAL.
BETWEEN:
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
AND
ALFRED GONZALVES
10
Plaintiffs
(Appellants)
Defendant
(Respondent)
IN CHAMBERS ■■      ,     IHHi       „
BEFORE THE HONOURABLE I T1™rsday the 4th day of
THE CHIEF JUSTICE      J     December> A-D- 1924-
ORDER ALLOWING SECURITY
UPON the application of the Plaintiff (Appellant) the City
of Vancouver, UPON HEARING the Notice of Motion herein
dated the 1st day of December, A.D. 1924, and the Certificate of
the Registrar of this Court dated the 1st day of December, A.D.
201924, and the Bond made by the Dominion of Canada Guarantee
and Accident Insurance Company, dated the 27th day of November, A.D. 1924, AND UPON HEARING Mr. A. E. Lord, of
Counsel for the Plaintiff (Appellant) the City of Vancouver,
and Mr. George Cassady, of Counsel for the Defendant (Respondent) Alfred Gonzalves;
IT IS ORDERED THAT the said Bond duly filed in this
Court, as appears by the said Certificate, as security that the
Plaintiff (Appellant) will effectually prosecute its appeal to the
Supreme Court of Canada from the judgment of this Court and
80 pay such costs and damages as may be awarded against it by the
Supreme Court of Canada be and the same is hereby allowed as
good and sufficient security;
AND IT IS FURTHER ORDERED that the costs of this
application be costs in the appeal.
J. A. MACDONALD,
C.J.A.
Approved
"G. C."
B.C.L.S. 60c
Vancouver,
Dec. 14,1924.
Registry.
Entered
Dec. 4, 1924.
Order Book, Vol. 6, Fol. 151,
Per"W. J. B." S&^V4B9 Bond on Appeal.
215
COURT OF APPEAL.
BETWEEN:1
ATTORNEY-GENERAL OF CANADA
and
CITY OF VANCOUVER
AND
ALFRED GONZALVES
10
Plaintiffs
(Appellants)
Defendant
(Respondent)
BOND ON APPEAL.
KNOW ALL MEN BY THESE PRESENTS that We, the
Dominion of Canada Guarantee and Accident Insurance Company, duly licensed to carry on business in the Dominion of
Canada and in the Province of British Columbia, and having its
head office in the City of Toronto in the Province of Ontario, and
the said City of Vancouver in the Province of British Columbia.
are jointly and severally held and firmly bound unto Alfred Gon-
20zalves in the penal sum of Five Hundred Dollars of good and
lawful money of Canada to be paid to the said Alfred Gonzalves,
his attorneys, executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves and each of us
binds itself our and each of our successors and assigns by these
presents.
SEALED with our seals and dated this 27th day of November, A.D. 1924.
"W. R. OWEN"
Mayor.
"WM. McQUEEN"
30 City Clerk.
'    "C. A. WITHERS"
Vice-Pres. <fe Mng. Dir.
"J. CECIL STUART"
Att'y for the Co'y.
Seal of the Company.  ' '.,;*;
Seal of the City.
m*  216
Bond on Appeal.
WHEREAS a certain action was brought in the Supreme
Court of British Columbia by the said City of Vancouver together with the Attorney-General of Canada as Plaintiffs against
the said Alfred Gonzalves as Defendant;
AND WHEREAS Judgment was given in the said Court
against the said Alfred Gonzalves who appealed from the said
Judgment to the Court of Appeal for British Columbia;
AND WHEREAS Judgment was given in said action in the
10 said last-mentioned Court on the 7th day of October, A.D. 1924;
AND WHEREAS the said City of Vancouver and the
Attorney-General of Canada complain that in giving the last-
mentioned Judgment in the said action upon the said appeal
manifest error hath intervened, wherefore the said City of Vancouver and the Attorney-General of Canada desire to appeal
from the said Judgment of the Court of Appeal for British Columbia to the Supreme Court of Canada.
NOW the condition of this obligation is such that if the said
City of Vancouver and the Attorney-General of Canada shall
20 effectually prosecute further said appeal and pay such costs and
damages as may be awarded against them by the Supreme Court
of Canada, then this obligation shall be void, otherwise to remain
in full force and effect.
SIGNED, SEALED, and DELIVERED
IN THE PRESENCE OF
30
Seal of the Company.
Seal of the City.
"W. R. OWEN"
Mayor.
"WM. McQUEEN"
City Clerk.
"CH. WITHERS"
Vice-Pres. & Mng. Dir.
"J. CECIL STUART"
Att'y for the Co'y
Vancouver
Dec. 11, 1924
Registry
B.C. L.S. 10c.  217
IN THE SUPREME COURT OF CANADA
BETWEEN:
ATTORNEY-GENERAL OF CANADA
—and—
CITY OF VANCOUVER
(Plaintiffs) Appellants,
AND
ALFRED GONZALVES,
(Defendant) Respondent.
10 AGREEMENT AS TO CASE.
WE, THE UNDERSIGNED, Solicitors of the (Plaintiffs)
Appellants and (Defendant) Respondent respectively, do hereby
agree that the following shall constitute the printed case in the
above appeal in the Supreme Court of Canada:—
1. Contents of Appeal Book on appeal to the Court of Appeal
for British Columbia.
2. Reasons for Judgment, Macdonald, C. J. A., Martin, J. A.,
and McPhillips, J. A.
3. Judgment Court of Appeal for British Columbia.
20        4.   Notice of Appeal to the Supreme Court of Canada.
5. Bond on Appeal.
6. Certificate of Registrar as to security.
7. Order allowing security.
8. Agreement as to case.
9. Certificate of Registrar as to case.
For the purpose of convenience and pursuant to agreement at
trial that all or any part of the evidence in this action and in any
of the actions of Attorney-General of Canada and City of Vancouver vs. Peter Smith, Edward Long and Mary DeKosta may be
30 used in any of the other actions so far as the same has any bearing
thereon or is in any way applicable thereto, proceedings at trial
and extracts from Examination on Discovery in the above cases
are incorporated in this case on appeal.
DATED at Vancouver, B. C, this 10th day of January, A. D.,
1925.
J. B: WILLIAMS,
Solicitor for (Plaintiffs)
Appellants,
40
W. G. McQUARRIE,
Solicitor for (Defendant)
Respondent.
By E. C. MAYERS.  218
CERTIFICATE OF REGISTRAR AS TO CASE.
N
I, the undersigned, Registrar of the Court of Appeal for
British Columbia, do hereby certify that the foregoing case from
page 1 to page 218, inclusive, is the case stated by the parties pursuant to section 73 of the "Supreme Court Act" and Rules of
the Supreme Court of Canada in an appeal herein by the Attorney-
General of Canada and the City of Vancouver, Appellants, and
Alfred Gonzalves, Respondent, to the Supreme Court of Canada.
AND I DO FURTHER CERTIFY that the said Appellants
10 have given proper security to the satisfaction of the Honourable
the Chief Justice of the Court of Appeal for British Columbia,
as required by section 75 of the "Supreme Court Act," that they
will effectually prosecute their appeal and pay such costs and
damages as may be awarded against them by the Supreme Court
of Canada.
AND I DO FURTHER CERTIFY that the said Case on
Appeal contains the Reasons for Judgment of all the members
of the Court of Appeal for British Columbia who were present
at the hearing of this appeal.
20 IN WITNESS WHEREOF, I have hereunto signed my
name and affixed the seal of the Court of Appeal for British Columbia this day of January, A.D. 1925.
Registrar. h    w,%
-JW ASK.
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