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[Reports of mining cases decided by the courts of British Columbia and the courts of appeal therefrom… Martin, Archer, 1865-1941 1903

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Page 505. To the reference list of Supreme Court of Canada cases, mostly
from other Provinces, and more or less relating to mining, add the
Fieldmg v. Mott (1886), 14 S. C. 254;  (1885)  18 Nov. Sc. 339.
On conflicting mining leases, right of entry, and statutory conditions
directory and imperative.
Grant v. Acadia Goal Go.  (1902), 32 S. C. 427;- (1901) 34 Nov. Sc 319.
On statutory mining regulations, and negligence.
Briggs v. Newswander (1902), 32 S. C. 405;   (1901) 8 B. C. 402.
On agreement to sell mineral claims and form company to work,
and stock therein. And as a complement to this case see Briggs v.
Fleutot, decided by the Supreme Court on 24th November, 1904 (25
C. L. T. 7; 41 C. L. J. 24), affirming B. C. Full Court  (1904), 10
B. C. 309.
The King v.  Ghappelle;  The Kmg v. GarmaeJc;  The King v.  Tweed and Woog
(1904), A.  C. 127;   (1902)   32 S.  C  587;   (1902)   7 Ex. 414.
On Yukon mining regulations, and the publication and constitution-
• ality thereof relating to payment of royalty, and on placer mining-
licences and grants and right to renewal thereof.
Calf/urg & Edmonton By. Go. v. The King (1904), 20 Times L. R. 770; (1904)
A. C.   110;   (1903)  33 S. C. 673;   (1902)  8 Ex. 83.
On the reservation  of mines and minerals in Crown grant of land
subsidy to railway.
Creese v. Fleischman (1903), 34 S. C. 279.
On   Yukon    mining   regulations   respecting    gulch   claims,   and   on
Ontario Mining Go. v. Seybold (1903), A. C. 73;   (1902)  32 S. C. 1;   (1900)
32 Ont. 301;   (1899)  31 Ont. 386.
On title to minerals in Indian reserves, and on Indian title, and on
the alienation of Crown lands, and unauthorized acts of departmental
To Peck v. Reginam, vol. i., p. 30, add this note:—
As to inoperative acts of departmental officers unauthorized by the
proper executive, see Quebec Skating Glub v. The Queen  (1893), 3 Ex.
387; Ontario Mining Go. v. Seyoold  (1903)/, A. C. 73;   (1902), 32 S.
C. 1; (1900), 32 Ont. 301; (1899), 31 Ont. 386; Minister of Public
Works v. Hart (1904), A. C. 259; Newfoundland Steam Whaling Go.,
Ltd. v. Government of Newfoundland, lb. 399. Where there is a certain
description of the coal area applied for and the application and fee
appropriated thereto, the location of the area cannot be changed by
the Commissioner of Mines: In re Barrington (1902), 35 N. S. 426. MARTIN'S   MINING  CASES.
To Nelson & Fort Sheppard Ry. Go. v. Jerry, vol. i., p. 194, add this note :—
The view expressed herein that the provision requiring security to
be given by a free miner before entry upon lands under sec. 10 is
for the benefit of the landowner and directory only, and therefore,
inferentially, can only be invoked by the landowner, receives confirmation by the case of Fielding v. Mott (1886), 14 S. C 254; (1885) 18
Nov. Sc, 339. i At p. 346 the right of entry of those holding prospecting licences is recognized. In that case the defendants who
successfully set up non-compliance with entry conditions were the
owners of the lands over which the plaintiffs obtained mining leases.
Booker v. Wellington Colliery Co.   (9 B. C. 265) :—
The following note on this case appeared at the end of Vol. 1, and is reproduced for reference:
1902, Nov. 6. On appeal to the Supreme Court of Canada the decision of the Full Court of British Columbia was affirmed, judgment
being delivered orally at the close of the" argument dismissing the
appeal. This case, arising out of an accident in a coal mine, was
originally tried by Martin, J., and a special jury at Nanaimo, on
December 19 and 20, 1901, and resulted in a verdict for the plaintiff
for $1,424. An appeal was taken to the Full Court, and judgment
was delivered on June 27, 1902, dismissing the appeal. At the trial
the case was given to the jury solely as one of negligence under the
Employers' Liability Act in regard to the defendant running a trip
of cars down the slope during prohibited hours. The only reason
why the case, which is not properly speaking a mining one, is now
noticed, is because it might possibly be inferred from some remarks in
the judgment of the learned Chief Justice of British Columbia that
Rule 11 of sec. 82 of the Coal Mines Regulation Act had been under
review at the trial, but though that i Rule was referred to yet the
course of the trial so shaped itself that it became unnecessary to and therefore the jury were not instructed thereon.
Pages 348-359—Callahan v. Coplen. The year of the Supreme Court judgment (incorrectly given in 30 S. C. R., p. 555, as 1899), should be
Page 369.v  For (7 B. C.'l, 305) read  (7 B. C. 305).
Page 681. Min. Amdt. Act of 1892, sec 2, should read "sections 18, 30," etc,
instead of "1, 30," etc IaS^
Page 771, line 15 from foot   (sec 39).    For "criminal" read "mineral." MARTIN'S MINING CASES.
Paulson v. Beaman et al.
(32 S. C. 655.)
November 17
Court of
Adverse Action—Map or Plan — Survey — Affidavit—Jurat—Condition Precedent to Bight of Action—Provincial Land Surveyor—Oaths Act—Mineral
Act, sec. 37 and Amendments.
It is not a condition precedent to a right of adverse action that an affidavit and
plan should be filed, as required by the Mineral Act, sec. 37 and Amendments.
Such plan if properly made and signed by a provincial land surveyor need
not be based on a survey made by the same surveyor.
The provisions of the Oaths Act, sec. 16, apply to affidavits filed under said
sec 37, and the omission of the date in the jurat is not a fatal defect.
Judgment of the Full Court of British Columbia' reversed, and that of Martin, J., restored;  Taschereau,  J.,  dissenting.
Appeal from the judgment of the Full Court (1 M. M. C. 471; Statement.
9 B. C. 184) reversing the  decision  of the trial  Judge, Martin,
J., and dismissing the plaintiffs action with costs.    The facts appear
in the prior report and in the judgments which follow.    The appeal
was argued on October 28th and 29th, 1902.
8. 8. Taylor, K.C, for the appellant.
Davis, K.C, for the respondents.
Taschereau, J.  (dissenting) :—I am of opinion that the iudg-   Judgment.
ment of the Full Court of British Columbia should be affirmed.   The j., dissenting,
appellant's action was rightly dismissed upon the ground that the
map or plan required in an adverse action as a condition precedent
by sec. 37 of the Mineral Act of British Columbia, as amended in
1898 and 1899, was not filed by the appellant.
The contention that any surveyor can, upon his oath of office, make*
a map to be used in a court of justice of any lot of land that he has
never seen seems to me untenable. Why would he be required to
make a plan at all, if, as Mr. Justice Irving calls it, a picture by one
of the parties would have been sufficient to all intents and purposes,
* Present—Taschereau,   Sedgewick,  Girotjard, Davtes and Mills. J J.
VOL. II.  M.M.C.—1 CZI_„J
. 1902.
November 1
C- >urt OF
J., dissenting
if the appellant's contention prevailed. An order from the Court to
• a surveyor to make a plan of certain premises necessarily implies, it
seems to me, that the surveyor must make that plan from actual
survey or personal inspection of the premises. I would think that
this enactment implies the same thing.
I utterly fail to see why the intervention of a surveyor is at all
required by the statute, if all that he has to do is to copy one of the
parties' sketches and sign it. That sketch would have been as good for
the purposes of the statute, without the surveyor's re-copy and signature. When the statute requires a plan made by the surveyor it
must mean that the surveyor must make an actual survey. Otherwise
his intervention would be futile.
I would dismiss the appeal with costs.
Sbdgewick, J        Sedgewick, J., concurred in the judgment allowing the appeal
for the reasons stated by His Lordship Mr. Justice Davies.
Girouard, J.        Girouard, J.:—This appeal should be allowed with costs for the
reasons given by Chief Justice Hunter.
Davies, J. Davies, J.:—Two questions only were argued on this appeal, and
both arise out of the proper construction to be given to the thirty-
seventh section of the Mineral Act, ch. 135, E. S. B. C. (1897), as.
amended by sec. 9 of ch. 33 of the statutes of 1898.
The respondents (defendants in the action), contend (1) that
under the above section it is necessary for the plaintiff bringing the
adverse suit or proceedings to file with the' mining recorder a map
or plan made by a provincial land surveyor and based upon a prior
and actual survey made by him; (2) that the jurat of the adverse
affidavit filed with the recorder along with the plan not having been
dated makes the affidavit bad, and there has therefore been no compliance with the statute.
The learned Judges in the Courts below were equally divided in
opinion, the Chief Justice, who held that a previous personal survey,
by the land surveyor who made the plan was not necessary, and that
the absence of a date in the affidavit was not fatal, agreeing with Mr.
Justice Martin, who had tried the adverse action, on both points,
while Mr. Justice Irving and Mr. Justice Walkem held that a
previous personal survey was necessary to make the plan a compliance
with the statutory requirements.
I concur in the judgment of the learned Chief Justice and think,
for the reasons given by him, that this appeal should be allowed. I
think it is clear from the wording of the section itself and from the
object the Legislature evidently had in view, that no previous actual
survey by the land surveyor was contemplated, but only the filing of O. C.BASS
PAULSON  v.   BEAMAN   et  al.
Court of
a plan  properly made   by one  presumably competent  to  make   it,       1902.
namely,  a  land    surveyor.    The  filing  of   the  adverse  writ   and November 1
the affidavit and plan proved nothing and settled nothing.    They    Supreme
simply shewed to the mining recorder the particular claim the plaintiff was making so far as the claim he was adversing or contesting
was concerned, and obliged the mining recorder to stay his hand and
withhold from the defendants whose claim was being adversed or contested, the certificate of improvements he was demanding under the
thirty-sixth section of the same Act.
These papers, then, amounted to nothing more than a caveat
which stayed the recorder's hands until judgment in the adverse suit
was delivered and filed with him. All this, I think, is quite clear
from an examination of the two sections.
It is not necessary to set out the section at length. Its material
words, so far as this controversy is concerned, are contained in the
amendment of the year 1898. Previous to that amendment, if any
person desired' to " adverse " or contest a claim being made by any
miner for a certificate of improvements, which was practically the
equivalent of a Crown grant and could only be impeached for fraud,
he had, within certain prescribed times, to begin an action in the
Supreme Court of British Columbia and file a copy of the writ in
the action with the mining recorder of the district. The amendment
required that he should also
file an affidavit to be made by the person asserting the adverse claim and setting forth the nature, boundaries, and extent of such adverse claim, together
with a map or plan thereof signed by a provincial land surveyor, and a copy
of the writ, etc
The section says nothing about an actual survey being made, while
the previous section, where it was necessary to deal with the question
of survey for the purposes of Crown grants, most clearly requires an
actual survey and sets out in detail how it shall be made. The affidavit of the boundaries is not required from the surveyor, but from
the adverse claimant himself. To yield to the argument of the
respondent, we would require to import into the section language
which the Legislature has not used, and impute to it an intention
which I do not think it had.
With regard to the absence of the date from the jurat, I do not
think that defect a fatal one. The test as to whether or not it is an
affidavit is whether an indictment for perjury would lie upon it. The
authorities are clear that it would, and evidence as to the time when
is was sworn would be admissible aliunde.
Even if the absence of the date were a fatal defect at common law
in an affidavit, which I controvert, I think that The British Columbia MARTIN'S    MINING    CASES.
1902.       Oaths Act (1)  and rule 415 of the Supreme Court rules of 1890 of
November 17. British Columbia cure the alleged defect.
Courtof ^e aPPeal should be allowed with costs in this court and in the
Canada.     Court of Appeal in British Columbia, and the case should be remitted
D\v7es J.   back to the trial judge to complete the trial of the adverse action.
Mills, J.
Mills, J.:—This case arose from a controversy in respect to a
mining claim in the Province of British Columbia. It is situated in
the Ainsworth-mining division of the province east of Duncan River
and north of Dunn Creek.
One John Hastie, on the 15th day of June, 1898, recorded a
mineral claim called the ■" Iron Chief," in the office of the mining
recorder at Kaslo. On the 26th day of August, 1898, he transferred
to one P. A. Paulson an undivided one-half ' interest in the said
claim, and Paulson by a writing dated the 30th of June, 1899, transferred to the plaintiff this undivided one-half interest in the claim.
rJohn Hastie was a free miner of the Province of British Columbia,
and so also was P. A. Paulson. On the 22nd of May, 1899, the
plaintiff obtained from the mining recorder at Kaslo a certificate of
work being done in compliance with the provisions of the Mineral
Act for the year ending June the 15th of that year; and on the 15th
of June, 1900, the plaintiff paid the mining recorder at Kaslo the
sum of $100,
The defendants claim to be the owners of 38.68 acres of the lands
and minerals comprised within the said claim which they maintain
was located by the defendant Hendrix on the 16th of May, 1899, and
recorded at- Kaslo on the 1st of June following, named the " Pearl"
claim, which embraces 38.68 acres of the mineral claim comprised
within the claim known as the "Iron Chief." The plaintiff affirms
that they applied for a grant within sixty days after the publication
in the British Columbia Gazette of the notice of the defendants that
upwards of 38 acres of the said " Iron Chief" mineral claim wa&
comprised in the " Pearl" claim previously located by them.
The plaintiff maintained that the " Pearl" claim has always
been an invalid location. It was not marked by two legal posts placed
as near as.possible on the line of the ledge or vein of mineral; that
Hendrix did not blaze or mark the line as required by the Mineral
Act; that he did not place a discovery post on the said claim; that
he did not furnish the mining recorder the particulars required to be
put on posts Nos. 1 and 2; that he did not make affidavit that the
legal notices and posts had been put on the claim, nor that the
ground applied for was then unoccupied.
(1) R. S. B. C. c 3, s. 16. O.C.BASS.
PAULSON   v.   BEAMAN   bt  al.
Court of
The defendants denied the plaintiff's* allegations and affirmed that       1902.
the " Iron Chief" mineral claim was a nullity.    They also deny November 1
that the plaintiff's statement of claim discloses a cause of action    Supreme
against the defendants.
The case went down for trial before Mr. Justice Martin on the
19th of February last.
It was argued that section 37 of the Mineral Act as amended by
the provincial legislature requires that a map or plan made by the
Provincial Land Surveyor from a survey and measurement made
upon the ground shall be filed with the recorder, and that, in this
respect, there has been no sufficient compliance with the statute.
The judges of the British Columbia courts were equally divided
upon this question; the Chief Justice and Mr. Justice Martin held
that the plan must be prepared by the Provincial Land Surveyor,
but he might do this from information supplied by the plaintiff, and
it need not be from actual survey and measurements made by a competent land surveyor. Mr. Justice Irving and Mr. Justice Walkem
held the contrary.   Mr. Justice Irving in his judgment said:
A map to be made by a Provincial Land Surveyor, in my opinion, :oaust be
something more than a picture prepared by a Provincial Land Surveyor from
data supplied to him by one of the parties to the action. The filing of such a
document is not in my opinion within the spirit or letter of the Act.
The Chief Justice says:
I am of opinion that it is not correct to say either that a plan must be
based on a survey by a Provincial Land Surveyor, or that the filing of the
affidavit and plan is a sine qua non of the right to prosecute the action.
It is proper to look at the provisions of the statute in controversy.
By section 36 of the Mineral Act (1) it is provided that, whenever
the lawful holder of a mineral claim shall have complied with the
following requirements, to the satisfaction of the Gold Commissioner,
he shall be entitled to receive from the Gold Commissioner a certificate of improvements in respect of such claim unless proceedings by
the person claiming an adverse right under section 37 of this Act
have been taken. The lawful holder is required by sub-section (b)
of section 36 to have
had the claim surveyed by an authorised Provincial Land Surveyor, who shall
have made three plans of the claim, and who shall have accurately defined
and marked the boundaries of such claim upon the ground, and indicated
the corners by placing monuments or legal posts at the angles thereof, and
upon such monuments or posts shall be inscribed by him the name and official
designation of the claim, and the corner represented thereby, and who shall
have on the completion of survey, forwarded at once the original field notes
and plan direct to the Lands and Works Department,  &c MARTIN'S   MINING   CASES.
Court of
Now, under section 37, provision is made in respect to an adverse
right, and it provides:
In case any person shall claim an adverse right of any kind, either to
possession of the mineral claim referred to in the application for certificate
of improvements, or any part thereof, or to the minerals contained therein,
he shall within sixty days after the publication in the British Columbia
Gazette of the notice referred to in section 36 hereof (unless such time shall
be extended by the special order of the court upon cause being shewn) commence an action in the Supreme Court of British Columbia to determine the
question of the right of possession or otherwise enforce his said claim, and
shall file an affidavit to be made by the person asserting the adverse claim,
and setting forth the nature, boundaries and extent of such claim, together
with a map or plan thereof made and signed by a Provincial Land Surveyor,
and a copy "of the writ in said action with the Mining Recorder of the district, or mining division in which the said claim is situate within twenty days
from the commencement of the said action, &c.
Now this proceeding is not for the purpose of acquiring any
right, but for the purpose of setting out the limits of a mining
location already surveyed under section 36, and for the purpose of
indicating in what way, and to what extent, it is in conflict with
some other claim. If there was no other prior survey under section
36 by one of the parties, he could not under section 37 set up a claim
adverse to one who had such claim by obtaining a surveyor to make a
plan of a plot which had not been surveyed. It could never have been
the intention of the legislature to permit one party who had made
a plan, but no survey, to successfully set up a elaim under the Mining
Act against one who had made both.
The facts in this case not being fully disclosed in the papers
before us, I am of opinion that the case should be remitted back to
the trial Judge to be tried out before him.
Appeal allowed with costs. O. C. BASS.
McNaught v. Van Norman et al.
(32 S. C. 690.)
Mineral Claim—Interest of Co-owner—Free Miner'
Bight to Renew—Sheriff—Execution—Judgment—
Amendment of 1899, sec. 4«
s  Certificate,
Mineral Act,
Lapse   of—
sec.  9,  and
November 17.
Court of
A sheriff in possession of a free miner's interest in a1 mineral claim has no
power on behalf of a judgment creditor to take out a special free miner's
certificate, under sec. 4 of the Mineral Act Amendment Act of 1899, in the
name of the owner of the interest under seizure; neither has the sheriff
power to renew a certificate before lapse.
Where one of the co-owners of a mineral claim allows his free miner's certificate to lapse, his interest at once vests pro rata in the remaining co-
own ers^
Decision of Irving,  J., affirmed.
Decision   of   the   Full   Court   of
British   Columbia  affirmed,   Sedgewick,   J.,
Appeal from the judgment of the Supreme Court of British   Statement.
Columbia, Full Court (1 M. M. C. 516; 9 B. C. 131), affirming the
judgment of Irving. J., on the trial of an interpleader issue declaring that the plaintiff was entitled to the interest in the mineral
claims in question as against the defendants.
On the 29th of March, 1901, a seizure was made by the sheriff on
executions issued by a number of creditors against a free miner
named McKinnon of an undivided one-fourth interest in the
<eHampton Group" of mining locations in the Slocan Mining Division, in British Columbia, held by McKinnon in co-ownership with
the plaintiff, also a free-miner. McKinnon's free-miner's certificate
lapsed, on failure of renewal, on the 31st of May, 1901, and the plaintiff claimed that, thereupon, McKinnon's interests became absolutely vested in him as the co-owner of the claims under the provisions of the " Mineral Act" as amended" by the " Mineral Act
Amendment Act, 1899." On the 5th of June, 1899, the defendants,
through the sheriff, procured the issue of a special free miner's
licence in McKinnon's name and it was claimed on their behalf that,
thereby, the interest seized had become revived, under the provisions
of section 4 of the Act of 1899, and re-vested in the execution
debtor subject to the executions.
On the trial of the interpleader issue the plaintiff was declared
to be the owner of the interests in dispute as against the defend-
* Present—Taschereau,  Sedgewick,  Girouard,  Davies  and Mills,  .T.T. MARTIN'S    MINING    CASES.
November 17.
Court of
ants, and this appeal is asserted against the judgment of the full
Court affirming that decision.
The questions raised on the appeal appear from the prior report
and judgments now reported. The appeal was argued on Oct. 31st,
and Nov. 3rd, 1902.
Argument. Peters, K.C, and Lennie for the appellants.
8. 8. Taylor, K.C, for the respondent.
Nov. 17, 1902.
The judgment of the majority of the Court was delivered by:
Taschereau, J.:—I would dismiss this appeal. It seems to me
incontrovertible, first, that McKinnon's certificate lapsed on the
thirty-first day of May, 1901; secondly, that thereupon (if section 9
means what it says), his interest in that claim became vested in
McNaught, his co-owner, leaving the seizure out of question for the
present; and thirdly, that McKinnon had not, thereafter, at any time,
the right by taking a special free miner's certificate to re-vest the
title in himself.
But, would contend the appellants, though McKinnon had lost
all his interest in that claim, yet the previous seizure of it we had
caused to be made in execution of our judgment against him had
the effect of keeping that interest in him, or of giving us the right
to revive it after it had ceased to exist, so that it never passed to
McNaught, or, if it passed, it re-vested in us as execution creditors
of McKinnon, upon our taking out a special free miner's certificate5
five days after the lapsing of his certificate. That contention cannot prevail, in my opinion.
Section 4 of the Act of 1899 enacts that any one who allows his
free miner's certificate to expire may, under certain conditions,
obtain a special free miner's certificate which will have the effect of
reviving his title to all mineral claims which he previously owned,
either wholly or in part, except such as, under the provisions of the
Mineral Act, had become the property of some other person at the
time of the issue of such special certificate.
Now, I entirely fail to see why the exception in that clause does
not cover McNaught's case. Whenever anyone else but the Crown
(for if applied to the Crown the enactment would be nugatory, a
special certificate could never be issued) has by the operation of
the statute become the owner of the title, the first owner has no
right to a special certificate and to a revival of his lost ownership.
That is what the statute unequivocally says. Now, here, McNaught
had, by the operation of the statute, become the owner of McKinnon's
interest; consequently, the execution creditors had no more right to
a special free miner's certificate than McKinnon himself would have ii.] McNAUGHT v. VAN NORMAN et al.
had.    They had the right to seize it at the time they did, but that       190:
right was a defeasible one, as their debtor's was.   Their seizure could iNovem er
not give it more vitality than it had in  their  debtor's   hands nor    Supreme
prolong its duration beyond the period affixed to it by the statute.     Canada.
He could not have given a non-defeasible lien; and the appellants,
likewise, cannot have secured-a non-defeasible lien by their seizure. iipuj
Had they renewed the certificate on or before the thirty-first of May,
assuming their right to do so, McNaught would have had no right
to McKinnon'c interest.   But they did not do so, and that is not the
case before us.
The words " wholly or in part" in section four of the Act of 1899,
whatever construction they are susceptible of, cannot be read as
defeating the clear, unambiguous enactment of section nine, that,
when a co-owner's interest lapses by his failure to keep up his certificate on the thirty-first day of May of each year, his interest is not
forfeited to the Crown, nor to be considered as abandoned, but that
it shall, ipso facto, be and become vested in his co-owners.
The appellants in one branch of their arguments at bar did not
seem to controvert the proposition that McKinnon's interest passed
to McNaught, but they argued that this interest was then subject to
their execution as a lien upon it. That is the same question over
again. McKinnon's whole interest came to an end by the operation
of the statute on the thirty-first of May. The eventuality provided
for by the statute upon which his interest passed to McNaught having
happened, the appellants who had seized that interest, knowing then
of this possible eventuality, had seized it subject to it. If the sheriff
had sold, had it been possible, before the thirty-first of May, would
not the purchaser's share, had he failed, as McKinnon did, to renew
on the thirty-first of May, have passed to McNaught? Clearly so, it
seems to me. Now why? Because the sheriff had sold a defeasible
right. Then, how can it be argued that he had seized anything
else than a defeasible right ?
Sedgewick, J., dissenting.—I regret to have to differ from my sedgewick, j.
brothers in this case. In my view the obvious, as often happens, has dissenting,
been overlooked, and, as a consequence, the vested interests of the
judgment creditors have, by an erroneous interpretation of the
Mineral Act and the Execution Acts of British Columbia, been confiscated and transferred to the respondents who have paid nothing
for them and who have no more right to them than I have.
I admit that under the Mineral Act no one but a free miner can
take or hold an interest in a mineral claim, but I contend that
under the Execution Act, a judgment creditor having levied and
seized through the instrumentality of a sheriff under execution
against the interest of a judgment debtor (being then a free miner), 10
November 17.
Court of
Sedgewick, J.
in a mineral claim that creates an interest or ownership in a mineral
claim which is not forfeited or destroyed or transferred to co-owners
of other interests upon the subsequent loss of the judgment debtor's
status by reason of his default in not renewing his free miner's
Section nine of the Mineral Act, so far as it relates to this case
is as follow^:
9. Subject to the proviso hereinafter stated, no person or joint stock company shall be recognized as having any right or interest in or to any mineral
claim, or any minerals therein, or in or to any water-right, mining ditch,
drain, tunnel or flume, unless he or it shall have a free miner's certificate
unexpired. And, on the expiration of a free miner's certificate, the owner
thereof shall absolutely forfeit all his rights or interests in or to any mineral
claim, and all or any minerals therein, and in or to any and every water-right,
mining ditch, drain, tunnel or flume which may be held or claimed by such
owner of such expired free miner's certificate, unless such owner shall on or
before the day following the expiration of such certificate, obtain a new
free miner's certificate;
Provided, nevertheless, should any co-owner fail to keep up his free
miner's certificate, such failure shall not cause a forfeiture or act as an abandonment of the claim, but the interest of the co-owner who sbnll foil to keep
up his free miner's certificate, shall, ipso facto, be and become vested in bis
co-owners pro rata, according to their former interests;
Provided, nevertheless, that a' shareholder in a joint stock company need
not be a free miner, and, though not a free miner, shall be entitled to buy,
sell, hold or dispose of any shares therein;
And provided, also, that this section shall not apply to mineral claims for
which the Crown grant has been issued.
And section 12 of the Mineral Act is as follows:
12. Any interest which a free miner has in a mineral claim before the
issue of a Crown grant therefor, or in any mining property as defined in the
Mineral Act, and any placer claim and mining property, as defined in the
Placer Mining Act, may be seized and sold by the sheriff, under and by virtue
of an execution against goods and chattels.
The Mineral Act does not give a definition of the word " owner "
as many English Acts do, but it provides that the words "mineral
elaim" shall mean the "personal right of property or interest in
any mine."
It does not appear difficult to me to place a reasonable and proper
construction upon clause nine of the Mineral Act. It provides for
two classes of cases. First, where a free miner having a sole and
absolute interest in a mineral claim, no other person, partnership, or
company having any title to or any incumbrance, charge, or lien on,
or other interest in it or any part thereof, allows his certificate to
' lapse. In that case, his absolute and undivided interest (or ownership, if you will), is forfeited to the Crown and the area, which
theretofore formed the mineral claim, becomes again vacant land of
the Crown. And secondly, inasmuch as the Crown is not solicitous of
co-ownership or co-tenancy or co-partnership or co-interests with any II.]
of His Majesty's denizens or subjects in a mineral claim, inasmuch       1902.
as such, joint interests might in many possible and even probable L ove r
cases lead to conflict and litigation between the Sovereign and his    Supreme
t      •, . -,   t   .,    ,    ° Court of
people, it was provided that Canada.
should any co-owner fail  to keep up his free miner's certificate, such failure Sedgewick J.
shall not cause a forfeiture, or act as .an abandonment of the claim, but the     dissenting,
interest of the co-owner who shall fail to keep up his free miner's certificate,
shall ipso  facto be and become vested in his co-owners pro rata according
to their former interests.
Now what, upon his loss of status—his ceasing to be a free miner
—becomes vested in his co-owners? Only the interest in the claim
which at the time of his loss of status he had—no more, no less.
What was that interest?
He had, previously, at the time of the levy and seizure by the
sheriff before referred to, the part interest in the respective mineral
claims as set out in the pleadings and evidence. That was the
interest which, under section 12 of the Execution Act, the sheriff, by
virtue of an execution issued against the goods and chattels of the
judgment debtor—then the holder of the interests mentioned—seized
and had a right in due course to sell.
(It was on the 29th of March, 1901, that the seizure was made,
and on the 31st of May following the judgment debtor's free miner's
licence expired.)
The effect of the sheriff's seizure was to diminish the interest
of the judgment debtor or to charge that interest with the amount
of the judgments together with subsequent costs and expenses. The
interest of the judgment debtor became charged with these sums and
if, after this but before hisx loss of status, he had voluntarily sold his .
interest, as he might have done, to a free miner, the purchaser could
only take subject to the satisfaction of the judgment creditors'
claims. So that the value of the judgment debtor's interest, after
the seizure, was its value before the seizure minus these claims.
And I submit that it was that lesser and diminished interest alone
which under the ninth section of the statute passed to the co-owners
pro rata in proportion to their former interests.
Then to whom does the defaulting co-owner's (the judgment
debtor's), interest go? I answer—To all co-owners of any interests
in the claim. They may be absolute transferees or mortgagees or
holders of any lien or charge on the lapsed interest of the disenfranchised free miner. They each are owners of his former interest pro
rata according to their former interests, and the judgment creditors
will participate accordingly.
It was admitted at the argument that if, before the seizure, McKinnon had absolutely transferred his interest to a free miner, it 12
1902.       made no difference to the latter whether he, McKinnon, renewed or
November 17. ^ n0£ renew fog certificate.   It could I think be admitted, too, that
Supreme    had the sheriff sold to a free miner before McKinnon lost his status
Canada.     the purchaser would take.    Any other contention would be absurd.
—       I, a free miner, buy from the sheriff or a free miner the latter's in-
dissenting,   ter est in a mineral claim.   Am I, in order to hold my claim, obliged
to see that the man whose interest I bought continued to be a free
miner for ever ?
But it is said that McKinnon did not transfer to anybody. I
think he did. In this respect there is no difference between a
voluntary and an involuntary alienation. His submitting to a judgment and execution against him and to the sheriff seizing his interest
is equivalent to a voluntary charging or hypothecation by him and,
as the Execution Act authorises the sheriff to seize and sell his interest, it is just as if he had sold his interest to the sheriff and the
sheriff, though not a free miner, sold it to one who was.
To conclude, I affirm that no interest which the holder of a
mineral claim has, whether voluntarily or involuntarily parted with
to another—entitled to receive it—can be deemed or considered,
under section nine of the Mineral Act, as other than the interest of
that other and, therefore, cannot be confiscated upon the transferee's
loss of his status as a free miner. Sections 32, 34, 43 and 50 of the
Mineral Act all throw light on the questions I have here discussed.
Appeal dismissed with costs. O.C.BASS.
McKelvey v. Le Roi Mining Co., Ltd.
(32 S. C. 664.)
Mines (Metalliferous) Inspection Act—Employers' Liability Act—Accident to
Miner caused by Falling Cage—" Falling Material "—Bulkhead—Pentice—
Statutory Duty of Owner—Negligence—Proximate Cause—Practice—B. S.
B. C. 1897, ch. 134, sec. 25, rule 20, and Amendment of 1899, sec. 12—
Appeal—New Point on—Jurisdiction.
November 17.
Court of
Apart from the question of statutory obligation under sec. 25, sub-sec. 20
of the Inspection of Metalliferous Mines Act, on which the Supreme Court
of British Columbia founded its judgment dismissing the action, the finding of the jury supported an action of negligence under the Employers'
Liability Act.
Per Mills J.—The Court below was right in holding that the statutory provisions had been complied  with.
A question of law appearing upon the record, but not raised in the Courts
below may, if no evidence in rebuttal could have been brought to affect
it had it been taken at the trial, be taken for the first time before the
Supreme Court of Canada.
An objection that the trial judge had no jurisdiction to deliver judgment from
which an appeal was taken is not one which may be taken to the jurisdiction of the appellate court to entertain the appeal.
Decision of the Full Court of British Columbia* reversed.
Appeal from the judgment of the Supreme Court of British   Statement.
Columbia (1 M. M. C. 477; 9 B. C. 62), affirming the judgment of
the trial Judge, McColl, C.J., dismissing the plaintiff's action with
The action was to recover damages for personal injuries sustained
by the plaintiff while working in the defendants' mine at Eossland,
B.C., known as the Le Eoi Mine. The facts are stated in the prior
reports and judgments now reported.
At the trial the following questions were left to the jury: (1)
" What was the immediate cause of the injury?" (2) "If the plaintiff is entitled in law to damages, at what amount do you assess the
same ?"
The jury returned the following answers: (1) " That the approximate cause of the injury was) the non-continuance of the guide-rails
which, in the opinion of the jury, caused the safety-clutches to fail
in their action and, therefore, allowed the cage to fall;" (2) "Three
thousand dollars."
*Present:—Taschereau, Sedgewick, Glrottard, Davies and Mills, J J. 14
November 17
Court of
Judgment on
The learned Judge did not direct any judgment to be entered,
but left the parties to move before the Full Court as they might be
advised, and a motion and cross-motion were accordingly made by
the plaintiff and defendants, respectively.
After hearing the motions the Full Court gave judgment declaring that it had no jurisdiction to hear the motions and giving
the parties liberty to move before the Chief Justice as they might be
advisled. Subsequently, on a motion to enter judgment made by the
plaintiff, the Chief Justice ordered judgment to be entered dismissing
the action with costs, as already reported. This judgment was
affirmed by the decision of the Full Court now under appeal.
On the appeal coming on for heariiig on Nov. 3rd-4th, 1902,
Daly, K.C, for the respondents, moved to quash the same on the
ground that McColl, C.J., had no jurisdiction to hear the case a
second time, and also objected that questions of law not raised in
the Courts below could not now be relied upon for the first time
before this Court, as apparently intended by the appellants, and taken
in their factum. Ex parte Firth, In re Cowburn (1882), 19 C. D.
419, was cited.
The ruling of the Court on these objections was as follows:
Per Curiam.—That the Chief Justice of British Columbia had no
jurisdiction to hear the case is, upon the face of it, not an objection
to our jurisdiction. If the Chief Justice had no jurisdiction, that
would be a reason to set aside his judgment in favour of the respondents, but it is not an objection to our jurisdiction to entertain
the appeal.
The established practice of this Court on the second point is
stated by our present Chief Justice in Gray v. Richford (1878), 2 S.
C. 431, at page 456, and this is also the practice followed in the Privy
Qounoil. See also in the Privy Council, the' case of Scott v.
The Phoenix Assurance Company, Stu. K. B. 354. We therefore,
on an appeal, cannot refuse to entertain questions of law appearing
upon the record although they may not have been raised in the Court
below and are relied upon for the first time here, where no evidence
could have been brought to affect them had they been taken at the
Motion dismissed with costs.
Argument. »phe appeal was then heard upon the merits.   The questions then
at issue are stated in the judgments reported.
Aylesworth, K.C, and A. H. MacNeill, K.C, for the appellant.
Daly, K.C, for the respondents. II. J
Taschereau, J.—I concur in the judgment allowing the appeal       1902.
with costs and granting the appellant's motion for judgment with
costs for the reasons stated by His Lordship Mr. Justice Davies.   The    Supreme
Courts of British Columbia were wrong in disregarding the verdict
of the jury.*
Sedgewick, J., concurred in the judgment allowing the appeal sEDGEWI0K j.
for the reasons stated by His Lordship Mr. Justice Davies.
Girouard, J.—I am inclined to allow the appeal.   I think there Girouard, j.
is some evidence in support of the verdict of the jury that the
approximate cause of the injury was the non-continuance of the guide-rails
which, in their opinion, ca"used the safety-clutches to fail in their action, and
thereby  allowed  the  cage  to  fall.
The witness Hughes, one of the miners working on the railway,
A. The safeties are arranged that when the rope breaks loose they are supposed to turn to and catch the guide-rails.
Q. When the cage is attached the safeties are open?
A. Yes, and when it breaks loose they close and catch.
Q. They turn automatically and catch on the guide-rails?
A. Yes.
Q. So that, when there is no guide-rail at the point at which the rope breaks,
what becomes of the safeties?
A. They are useless.
Q. This cage was fitted with safeties?
A. Yes,  sir.
Q. But having fallen from a place where there were no guide-rails the
safeties would not act?
A. No,   sir.
Q. You say that you think the safeties would probably have acted if the
guide-rails had been there?
A. Yes, they would have had more of a chance.
Even the trial Judge found that there was no dispute as to the
evidence in respect to the guide-rails. I do not feel, therefore, inclined, to disturb that verdict, and there being evidence of negligence
at common law the company should be held liable and condemned to
pay the sum of three thousand dollars, being the amount of the
damages assessed by the jury, the whole with interest and costs.
Davies, J.—This   action   was  brought to recover   damages for   Davies, j.
injuries sustained by the appellant, a workman, while engaged in the
defendants' mine.   The injuries sustained were serious and the jury
assessed the damages at three thousand dollars.
' See note at end. 16
November 17
Court of
Davies, J.
The plaintiff was working in company with other miners at the
bottom of a large shaft, referred to as a five-compartment or combination shaft, and was engaged in sinking this shaft so that a depth
of nine hundred feet should be reached. At the time of the accident
the shaft was about forty to forty-six feet below the eight hundred
foot level. The mine was operated down to the eight hundred foot
level by means of two cages which were in the two westerly compartments1 of the shaft. There were no cages in the three other compartments. Drifts had been opened out from the shaft at the three
hundred and fifty, five hundred, six hundred and seven hundred foot
levels, both east.and west, and from the east at the eight hundred
foot level, and ore was being "stoped " and general mining carried on
from all these levels. A platform had been placed in the westerly
compartment of the shaft over the eight hundred foot level and the
place where the plaintiff and others were working was underneath
this platform, some forty or fifty feet. The plaintiff was injured by
the fall of the iron cage operated in the westerly compartment, from
the sheave wheel at the top of the shaft down to the eight hundred
foot level, where it struck and smashed through the platform constructed there and fell down upon the plaintiff.
At the time of the accident the cage which fell was being used
for bringing timber to the six hundred foot level and hoisting waste
rock therefrom.
It is not contended that the platform was built or intended as a
protection against the fall of so heavy an article as the iron cage. It
was only intended to protect the workmen from any ordinary material, such as pieces of rock or ore, falling down the shaft from the
sides or from the several tunnels and, in the event of the cage falling
from the breaking of the rope which was attached to it and by
which it was raisied and lowered, unless its fall was prevented by the
dogs or safeties with which it was provided seizing and holding the
guide-rails, there was no protection of any kind for these workmen at
the bottom of the shaft.
At the trial the plaintiff contended, amongst other reasons, that
the defendants were liable because they had failed to comply with the
provisions of The Inspection of Metalliferous Mines Act, as amended
by The Inspection of Metalliferous Mines Act Amendment Act,
Section twenty-five of the principal Act, ch. 134, is as follows:
The following general rules shall, so far as may be reasonably practicable,
be observed in every mine to which this Act applies.
(20) Each shaft, incline, stope, tunnel, level or drift and any working-
place in the mine to which this Act applies shall be, when necessary, kept
securely timbered or protected to prevent injury to any person from falling
J II.]
By the Act of 1899, ch. 49, sec. 12, it was enacted as follows:       ^,   1902.
J November 17.
Sub-section 20 of said section 25 is hereby amended by adding    supreme
thereto the f ollowing: Court of
° Canada.
No stope or drift shall be carried on in any shaft which shall have attained Davies, J.
a depth of two, hundred feet unless suitable provision shall have been made
for the protection of workmen engaged therein by the construction of a bulkhead of sufficient strength, or by leaving at least fifteen feet of solid ground
between said stope or drift and the workmen engaged in the bottom of the
It was conceded that fifteen feet of solid ground had not been
left in the body of the shaft in the nature of a pentice. And also
that the bulkhead, or platform which had been put in at the eight
hundred foot level was insufficient to protect against a falling cage.
And also that, had the fifteen feet of solid ground (the pentice),
been left, the accident would have been prevented; that the sjhaft was
more than two hundred feet in depth, viz., eight hundred and forty-
six feet, and that stoping or drifting was carried on in the shaft.
The learned Chief Justice was of opinion that these statutes did
not govern or apply to this case, that the cage of the hoist could not
be regarded as " falling material" within the sense of these words
as used in section twenty-five above quoted, and that the 'amendment
of 1899, though somewhat indefinite in its language, did not mean
that fifteen feet of solid ground or a sufficient bulkhead in lieu thereof
should be left or constructed within the shaft itself as a protection
to the workmen, but that the proper construction of this section is
that, in the event of the owner of a mine wishing to drift or stope
ore on any side of the shaft that he shall leave for the protection of
the workmen in the shaft a solid pillar of rock at least fifteen feet
deep, so as to constitute a wall of the shaft, lying between the shaft
and the stope or drift, or, in the event of such pillar of rock being
ore of a very high grade and his desiring to make use of the same
and to recover the precious metal therefrom, that he is then at
liberty to replace the same by bulkheads of timber which would form
a solid wall for the shaft sufficient to withstand the vibrations caused
by the work and blasting necessary for the drifting and stoping;
and that the evidence showed compliance on the defendants' part with
the section as so construed.
At the close of the plaintiff's ease, and again when the evidence
was all in, the defendants moved for a nonsuit on the grounds that
there was no evidence to go to the jury of any defect in the ways,
works or machinery for which they were liable at common law or
under the statutes regulating their operations, and that the evidence,
shewed  the   accident to have   been   caused by the negligence of a
VOL.II.  m.m.c.—2 18
1902.       fellow-workman of the plaintiff, the engineer who had the control of
November 1'
the working of the cage, and for which they were not liable.
The learned Chief Justice who tried the case refused to non-suit,
Court of
Canada,    holding that the only point open was whether there was negligence
Davies J.   on defendants' part in not continuing the guide-rails up to the wheel
sheave.   He submitted the following question to the jury:—
What was the immediate cause of the injury?
To which the jury returned answer:
5 of the injury was the non-continuance of the guide-
ion of the jury, caused the safety-clutches to fail in
The approximate can
rails, which, in the opi
their action and, therefore, allowed the cage to fall
The learned Chief Justice declined to order any judgment to be
entered on this verdict and on application being made to the Supreme
Court to enter a verdict on the jury's findings for one party or the
other, that Court decided that it had no jurisdiction to do so and
remitted the cause back to the Chief Justice, who thereupon directed
judgment to be entered dismissing the plaintiff's action. From this
judgment an appeal was again taken to the Supreme Court of British
Columbia, which affirmed the Chief Justice's judgment, and from
this latter judgment an appeal was taken to this Court.
We have not had the advantage of having the reasons for the
judgment delivered by the Chief Jusjtice, entering the judgment for
the defendants, and those of the Full Court are very meagre.* They
turned almost, if not entirely, upon the true construction to be given
to the twenty-fifth section of the Inspection of Metalliferous Mines
Act, and the amendment to the twentieth sub-section of that section
enacted in 1899, Mr. Justice Irving expressing himself as "not
feeling any great degree of confidence in the correctness of the construction placed upon that section by the Chief Justice," but, on the
other hand, being " unable to say that he was wrong," and Mr.
Justice Martin adhering to the decision that he had given when the
case came first before the Full Court, that neither the twenty-fifth
section of the Act above referred to nor its amendment in 1899
applied to the facts of the case.
In the view I .take, however, of the whole case it is unnecessary
to express any opinion as to what is the true construction of that
section or its amendment.
The jury have found that the proximate cause of the injury to
the plaintiff was the defective construction and condition of the
guide-rails along which the cage ran, in their non-continuance to the
sheave-wheel, " which caused the safety-clutches to fail in their action
and, therefore, allowed the cage to fall."
* See note at end. O.O.BASS.
If there was any evidence which could properly sustain this finding then it is clear that the defendants are liable at common law,
and quite irrespective of the statutes, for the injury sustained by the
plaintiff. The substance and meaning of the finding of the jury are
that the accident was due to the neglect of the defendants to take
proper precautions for the protection of their employees from the
possible consequences of a failure to provide machinery and appliances fit and proper for the working of the cage. Such neglect
would clearly render them liable at common law for injuries sustained
by any of their workmen and of which it was the proximate cause.
The exact nature of this neglect is found by the jury to be the
non-continuance of the guide-rails' up to the sheave-wheel fixed in the
timbers set in the shaft about sixty feet above the three-hundred-
and-fifty-foot level or tunnel from which the cage was operated and
around or through which sheave-wheel the rope attached to and
guiding the cage ran. The necessity for such a continuance of the
guide-rails was a pure question of fact and especially one proper for
the jury to find.
It was admitted, on both sides, that the guide-rails did not run up
to the sheave-wheel but stopped about twelve or twenty feet below it.
This cage was operated from what was called the three-hundred-and-
fifty-foot tunnel or level. The shaft was an inclined one, about
seventy-four degrees from the horizontal, and the cage ran on rails
resting on wall or shaft timbers. In addition to the rails there were
what were called guides to assist the rails and, in case of necessity,
for the cage-safeties to work upon. These safeties were appliances
attached to the cage for the purpose of stopping it in case the rope,
which held and guided the cage, and which passed around the sheave-
wheel, broke. This sheave-wheel was fastened to timbers in the shaft
about sixty or sixty-five feet above the three-hundred-and-fifty-foot
tunnel, called by the witnesses the Black Bear Tunnel. These guide-
rails ran up above the tunnel and towards the sheave-wheel, a distance variously estimated at from thirty-seven to fifty feet. There
remained, therefore, between the place where the guide-rails ended
and the sheave-wheel, a space without guide-rails variously estimated
at from ten to twenty feet; and if the cage ran up to the sheave-
wheel, and the rope broke, there would be nothing for some distance
on which the so-called safeties could operate and the cage must necessarily fall at any rate till it struck the guide-rails.
It was contended on behalf of the plaintiff, that this was. just
what happened at the time of the accident, and that, owing to the
absence of guide-rails, the falling cage, weighing over a ton, obtained
such an impetus before it reached the place where the guide-rails
began, that the dogs or safeties on the cage were unable to act and
were reversed and broken and s*> the cage fell to the bottom.
November 17
Court of
Davies, J. 20
November 17
Court of
Davies, J.
The superintendent of the defendants' mine, Mr. Long, in his
' examination, explaining the methods of operating the cage and the
uses of the guide-rails, and dogs or safeties, stated that the guide-
rails were continued up within ten or twelve feet of the sheave-wheel,
and that they are used for steadying the cage and for the cage-dogs
or safeties to work upon, but that he did not think, if "these rails
had been continued up to the timbers on which the sheave-wheel was
set, it would have prevented the cage or skip from falling.
Other witnesses called for the defence expressed the same opinion
and placed the blame for the accident upon the engineer running the
cage. Munro, on the other hand, who was) one of the stationary
engineers of the mine, stated that it was customary to run guide-rails
as far up as the skip or cage could run, and that, if it was not done,
he did not know of any other appliance in use which could prevent
accident in case the rope broke. He stated that, in his opinion, it
was necessary they should run to the top in order to be a safeguard.
Other witnesses gave similar testimony, stating, what is in fact almost
self-evident, that without these guide-rails at any particular point the
safeties are useless.
A large mass of testimony pro and con, in support of the rival
contentions of the parties, was given, and now that the jury have
found that the absence of the guide-rails at the top was the proximate cause of the accident, and of the plaintiff's injuries, we are
asked to set the finding aside and to sustain the judgment of the
Court below entering judgment for the defendants.
As I have already remarked, the question as to whether or not
the finding of the jury should be set aside does not appear to have
been argued in the Court below, and no reference is made to this
branch of the case in the reasons for their judgment given by the
learned Judges.* The whole case turned upon the application of the
sections of the Inspection of Metalliferous Mines Act and its amendment to the case, and the Court, agreeing with the Chief Justice, held
that they were not applicable.
The more recent authorities on the rule with respect to setting
aside the findings of a jury have been considered in a case lately
decided in this Court and we have determined, in accordance with •
these authorities, that before doing so the Court must be satisfied
that the finding is one which the jury, viewing the whole evidence,
could not properly find. In such a case only should the finding be
interfered with.
I am of opinion, after careful examination of the evidence in this
case, and for the reasons hereinbefore stated, that the jury's finding
is not one which, under this rule, we ought to interfere with.
* See note at end. II.J
Court of
Canada .
Davies, J
That would appear to me to end the case. It is not denied that, ^ 1902.
as a matter of law, a master who employs a servant in. work of a November 17
dangerous character, such as1 in mining at the foot of a shaft eight
hundred feet deep, is bound to take all reasonable precautions for
the workman's safety. In this case the proximate cause of the accident is found to be the defendants' neglect to do so in an important
The finding standing, the appeal should be allowed with costs in
all the Courts, and judgment entered accordingly.
Mills, J.—In this case the plaintiff was working at the bottom Mills,
of a mining shaft upwards of 800 feet in depth. The cage which was
used for raising the product of the mine and for the ascent and
descent of the men employed fell, from the breaking' of the cable at
the sheave-wheel, upon the timbers in the shaft through which it
passed, and seriously injured the plaintiff. There were guide-rails
along which it ran which extended to within thirty feet of the sheave-
wheel. The engineer in charge had carelessly run up the cage to
the sheave-wheel quite above the guide-rails, and this seems to have
been done with so much violence as to break the cable, so that it fell
all the way to the bottom of the shaft. It fell several feet before it
reached the guide-rails, and had thereby acquired so much momentum that the safeties which were intended to check its downward
progress were bent back and no longer served the purpose for which
they were intended.
There are certain provisions of the Act known as the Inspection
of Metalliferous* Mines Act, which are intended to prevent persons
working in the bottom of a shaft from being injured by falling
material, and an attempt was made during the argument to show that
proper precautions had not been taken in this regard. But it was
pointed out by Mr. Daly, the counsel for the company, that the provisions of the Act were in this regard sufficiently complied with. The
law requires that the workmen in the shaft shall be protected against
falling material; that where mining operations are being carried on
away from the shaft there would be danger arising from rock or
mineral being blown out and falling down unless there was a protecting wall of solid ground or the construction of a bulkhead above
the workmen of sufficient strength to guard against falling material.
In this case, from the carelessness of the engineer in running up the
cage, which weighed about two tons, much further than was necessary, the cable was broken and the cage precipitated to the bottom of
the shaft. The trial Judge was of opinion that the accident was
wholly due to the carelessness of the engineer, but the jury were of
opinion that the company had failed in their duty in not extending
the guide-rails  as high up  as it was possible for the  cage  to.go. MARTIN'S    MINING    CASES.*
ember 17
Court of
Mills, J.
There is no doubt that had the  guide-rails been  so  extended the
' accident might not have happened,   and men employed in. such dangerous operations! as there are in mines are entitled to all the protection which can be reasonably given them.
I cannot say that the finding of the jury is not one which the
evidence did not warrant, and I think, therefore, that the verdict
ought not to be disturbed.
Appeal allowed with costs.
Note.—Leave to appeal was refused, Feb., 1903.
The reason why neither the Pull Court of British Columbia nor the defendant's counsel dealt with the question of the defendant company's
liability under the Employers' Liability Act is because that branch of the
appeal was deliberately abandoned by the appellant's counsel in answer to a
question from the Court on that head—see prior report, Vol. I., p. 479. This
fact was evidently not brought to the attention of the Supreme Court of
Canada by the respondent's counsel, who was not before the Full Court, otherwise the abandoned ground could not have been entertained, for, as the House
of Lords said in the late case of McCartney v. Londonderry and Lough Swilly
Railway (1904) A. C. 301, "the appellant must be held to the concession
made on his behalf." And to the same effect see Hamelin v. Bannerman (1901),
31 S. C. 534. The result is that not only has the decision of the Full
Court not been disturbed on the question of statutory compliance, but it has
been affirmed by Mr. Justice Mills.
For other cases on this Act, see Stamer v. Hall Mines (1899), 1 M. M. C.
314; 6 B. C. 579; McDonald v. Can. Pac. Ewplor. Co. (1899), 1 M. M. C.
379, 7 B. C. 39; Hosking v. Le Boi (No. 2), post,, p. 100; and cf. Gunn v.
Le Boi Mvning Co., post, p. 53; and Hastings v. Le Boi (No. 2), post, p. 81;
Leadbeater v. Crow's Nest Pass Goal Co., post,, p. 145. O.C.BASS.
Hartley v. Matson.
(32 S. C. 644.)
Yukon Placer Mining Begulations of 1898—Lease—Grant—Claim—Status of
Claim Owner.
Where a placer miner has staked a claim on ground held under an existing
hydraulic lease, but has not obtained the usual grant for such claim, he has
no status to attack said lease.
Quaere.—Even if he has obtained such grant, should the Attorney-General
be a party to an action against the leaseholder?
Judgment of the Territorial Court of the Yukon affirmed.
Appeal from the judgment of the Territorial Court of the Yukon
Territory sitting as the Court of Appeal constituted by the Ordinance of the Governor-General-in-Council of the 18th of March, 1901,
respecting the hearing and decision of disputes in relation to mining
lands in the Yukon Territory, which affirmed the decision of the Gold
Commissioner dismissing the plaintiffs' action with costs.
In this case the respondents' motion to quash the appeal on the
ground of want of jurisdiction was dismissed (1902) 32 S.. C. 575,
and the questions in issue on the merits are stated in the judgment
of His Lordship Mr. Justice Davies now reported.
The argument was heard on Nov. 8th, 1902.
Peters, K.C, for the appellants.
Latchford, K.C, and /. Lome McDougall for the respondents.
November 17.
Court of
Taschereau, J.—I entirely agree with Mr. Justice Davies in   judgment,
his conclusions and the reasoning upon which he has reached those Taschereau
Sedgewick and Girouard, JJ., concurred in the judgments]
dismissing the appeal with cosits for reasons stated in the judgment G
of His Lordship Mr. Justice Davies.
Davies, J.—This is an action instituted by the appellants in the Davies, J.
Gold Commissioner's Court of the Yukon Territory for the purpose
of obtaining a judicial declaration that certain placer mining claims
alleged to have been staked by them were not within the boundaries
! Present:—Taschereau, Sedgewick, Girouard. Davies and Mills, JJ. 24
1902.       of the defendants' hydraulic mining lease, and that such lease was
November 17. « null an(j Void," and should be cancelled.   This latter is the leading
Supreme    conclusion of the plaintiffs' claim, their other claims being conse-
cTnadT    quential merely and depending upon their right to have the lease
Davies, J.
The only question argued before us, and on which this appeal
must be determined, was whether the plaintiffs had any status
entitling them to have such declaration made in this action, or
whether they were mere volunteers! without interest. This case came
before the Territorial Court of Appeal and comes before us practically as if on demurrer, and the appellants have a right to have the
statements of fact alleged in their statement of claim assumed as
The claim of the plaintiffs', about sixty in number, is based upon
the statement, which must be assumed as true, that they are free
miners, and that, in 1901, they duly staked certain placer mining
claims on the left limit of Bonanza Creek and duly applied at the
Gold Commissioner's Office for grants of the same. There is no
statement that any such grants were given, but on the argument it
was common ground on both sides that their applications had all
been rejected because of the existence of the respondents' lease. The
Gold Commissioner has full jurisdiction under the regulations to
hear and determine judicially all matters in difference in regard to entries for
mining claims under the regulations,
and power to adjudge any patent or lease from the Crown of any
mining property void on the ground that it was issued in error or
through improvidence or had been obtained by fraud. He has" also
special power given to him to " grant an order in the nature of
mandamus," and generally is invested, so far as such matters are
concerned, with all the powers of a territorial Judge. In the case at
Bar, no application was made for a mandamus to compel the mining
recorder or other proper officer to issue to the appellants the placer
mining grants for which they had applied, nor is that officer made
a party to this suit. The appellants come into Court simply as free
miners who had staked out certain claims which were either within
or without the boundaries of a certain hydraulic mining lease from
the Crown, and for which placer mining claims they had not
obtained any grant or licence. Their only excuse for bringing the
defendants into Court at all was that the placer claims they had
located were within, or claimed as being within, the boundaries of
the defendants' leasie which they desired to have cancelled.
If their claims were outside of this lease they could not possibly
be entitled to any such declaration as that sought by them.   As free II.]
miners not having or claiming any grant or claim within the boundaries of lands included in a hydraulic mining lease they would not
have a vestige of right to attack that lease or ask the Court to make
any declaration concerning it.
On the other hand if they fell back on their alternative position
and claimed that their placer locations were within the bounds of the
defendants' prior lease and asked for a declaration from the Court
to have it declared null and void, they surely were bound to allege^
and prove that they were entitled to some interest legal or equitable
in the lands.
I agree substantially with the judgment of the Gold Commissioner,
Mr. Senkler. I do not think that the mere fact of the appellants,
as free miners, entering upon lands already leased by the Crown and
professing to locate claims there gave them any right or interest
in the lands, or any status to come into Court and ask for any
declaration with respect to the validity of a prior lease from the
Crown of those very lands.
To attain such a status mere staking is not sufficient. They must
go further and obtain from the mining recorder their placer grants.
If for any reasons he refuses to issue such grants then their remedy
is by way of mandamus to compel him to do his duty. Ulntil they
have obtained such grants they are not in a position to attack the
defendants' lease. They have neither title nor colour of title and
have no interest legal or equitable in the lands, such as is necessary
to enable them to maintain this action. If having obtained their
grants they desire to have defendants' lease declared void it was
open to them to take the necessary steps.
It was contended on the part of the respondents that to any
such proceedings the Attorney-General should be made a party. But
it is not necessary for us to determine this point in the view we
take of this appeal and we do not therefore express any opinion
upon it.
Mr. Peters raised the question as to the power of the Crown to
grant hydraulic leases, under the fourth article of the regulations of
1898, until after the lands had been withdrawn from placer mining
under the thirteenth article of the same regulations.
It does not appear to me that this article or section bears the
construction he sought to have put upon it. The power of the minister
to grant leases and the limits, conditions and terms under which he
may grant them are defined and complete in the first three sections
of the regulations. The thirteenth section has1 no reference to the
granting of such leases and was never intended to create an antecedent condition to their being granted. It had reference to a
different thing altogether, namely, the policy of proclaiming or
setting apart a large area of country which would not be open to
>vember 17.
Court of
Davies, J. 26
November 17
Court of
Davies, J.
placer mining. Such proclaimed area might, as a matter of policy,
be leased afterwards or not, as circumsitances determined, or it might
afterwards be thrown open to placer mining. But the proclamation
withdrew it from placer mining in the meantime until it was determined whether hydraulic leases should be given or not.
However a lease granted either under the third or fourth section
is not affected, in my opinion, by the fact that the lands leased had
not been previously withdrawn from placer mining. Placer miners
who had properly located claims before the lease are of course not
affected by it.
But whether I am right or not in my construction of these regulations cannot affect the conclusion I have reached that the plaintiffs
(appellants not having obtained their placer grants) have no status
to enable them to attack an existing Crown lease.
The appeal should be dismissed with costs.
Mills, J. Mills, J.—I have had the perusal of the judgment of my brother
Davies in this case. In that judgment I entirely concur. As the
law in the case is effectually settled by the decision of their Lordships of the Judicial Committee of the Privy Council in Osborne v.
Morgan (1888), 13 A. C. 227, at pp. 239, I do not feel that I can
usefully add anything.
Appeal dismissed with costs.
Note.—Though-this case is from the Yukon Territory, and is decided on
the system there in force of making actual grants from the Crown, yet it is
and will be of much assistance regarding mining leases in this Province, and
in general it confirms the decision of Needham, C.J., in Canadian Company
v. Grouse Creek Flume Co., Ltd. (1867), 1 M. M. C. 3.
As to conflicting Yukon mining grants and mode of location thereof, see
St. Laurent v. Mercier, post, p. 46, and Victor v. Butler (1901), 1 M. M. C.
438, 8 B. C. 100. And cf. Fielding v. Mott (1885), 18 Nov. Sc. 339; (1886)
14 S. C. R. 254.
As to renewal of grants and licences, and payment of royalty, see The
King v. Chappelle (1902), 7 Ex. 414; (1902), 32 S. C. 587; (1904), A. C.
As to gulch claims and amendment: see Creese v. Fleischman (1903),
34 S.  C. 279.
Acts imposing forfeiture for non-compliance with terms of mining leases
will be construed strictly against the Crown, and where there has been a substantial compliance forfeiture will be relieved against. Attorney-General v.
Waverley  Gold Mining  Company   (1902),   35  Nov.   Sco.   192. ii.]      CENTRE STAR MINING CO., LTD. v. CITY OF ROSSLAND.
In Ee Water Clauses Consolidation Act—Centre Star
Mining Co., Ltd., v. City of Eossland.
January   6.
Water Becord—Grant of under Private Act—Paramount but not Exclusive
Bights—Unused and Waste Water—Jurisdiction of Gold Commissioner
under section 18 of the Water Clauses  Consolidation Act.
Under section 11 of the Rossland Water and Light Company Incorporation
Act, 1896, the rights of the City of Rossland, which purchased the water
works system of the Company, to the waters of Stoney Creek, are paramount
but not exclusive, and the Gold Commissioner has jurisdiction to adjudicate
on an application under section 18 of the Water Clauses Consolidation Act
for an interim record of the surplus water not used by the City.
Appeal from the decision of Hunter, C.J., on a petition by the
Company by way of appeal from a decision of the Gold Commissioner at Eossland.
The petitioning company claimed that they were entitled, under
the Water Clauses Consolidation Act, to an interim record of the
surplus water of Stoney Creek which the City of Eossland did not
need and with its existing plant could not use. On the application
for the interim record, Mr. Kirkup,, the Gold Commissioner, dismissed the application.
The petition by way of appeal was argued at Eossland before
Hunter, CJ.   The facts appear fully in the judgments.
Gralt, for the petitioning Company.
Abbott, for the City of Eossland.
Hunter, CJ.:—These are petitions by way of appeal from the
decisions of the Gold Commissioner at Eossland refusing the peti-1
tioners' applications under the Water  Clauses   Consolidation Act,
1897, for interim records of fifty inches of water for mining purposes
on Stoney Creek above the elevation of 3,021 feet above the sea.
The Commissioner held that the city had the exclusive right to
the waters of Stoney Creek, and therefore that he had no power to
entertain the applications.
By chapter 61 of the Statutes of 1896, the Eossland Water and
Light Company were incorporated for the purpose of supplying
water, electric light and electric power to the then town of Eossland
and the mines thereto adjacent, and were empowered by section 11
Iunter, C.J. 28
Hunter, C.J.
1903. for water works purposes, "to divert and appropriate so much of the
January 26. waters of Stoney Creek, Little Stoney Creek and Little Sheep Creek
Full Court, as the Lieutenant-Governor in Council may deem necessary and
proper, above the elevation of 3,021 feet above the sea," and by
section 12, for electric purposes, to divert and appropriate so much
of the waters of the said creeks as it should judge suitable and
desirable, conditional on the. approval of the Lieutenant-Governor in
Council of the plans, etc., and on publication of notice of intention
to apply for his authority, etc.
By indenture dated August 2nd, 1899, the company transferred
its water works and appurtenances to the city and also gave the city
an option on its electric light plant, but I need not say anything
more as to this latter, as the case involves only the consideration of
the rights of the city with regard to the waters of Stoney Creek.
By order-in-council dated September 25th, 1899, it was ordered
" that the diversion and appropriation by the Eossland Water and
Light Company or their assignees, of all the waters of Stoney Creek
and Little Stoney Creek above the elevation set out in their Act of
'incorporation (59 Yict. cap. 61), for the purposes of the company, be
and the same is hereby approved and confirmed pursuant to section
11 of the said Act."
By chapter 32 of the statutes of 1900, the transfer to the city
was confirmed and the city has since had whatever rights in the
premises that were possessed by the company.
The question then for decision is, whether the city has the sole
and exclusive right to the waters of Stoney Creek or whether its
right is paramount but not exclusive, and in my opinion the latter
view is correct.
To begin with, the incorporating Act is careful throughout to
guard the interests of the Crown and the public by making the
powers of the company subject to future legislation and existing
rights, as by section 42, it is enacted " The powers and privileges conferred by this Act, and the provisions hereof, are hereby declared to
be granted, subject to the rights of the Crown, and also subject to
any future legislation regarding the subject-matter of this Act, or
of the powers and provisions hereby conferred, which the Legislature
may see fit to adopt; and this Act is passed on the express conditions
that the Lieutenant-Governor in Council may from time to time
impose and reserve to the Crown, in right of the Province, such
rents, royalties, toll and charges in respect of the waters, or of the
lands of the Crown (if any), rights and privileges, which shall be
set out, appropriated, or enjoyed by the company, or are conferred
by this Act, as by the Lieutenant-Governor in Council shall be deemed
to be just and proper, etc."   And by section 45 it is) enacted " This it.]      CENTRE STAR MINING CO., LTD. v. CITY OF ROSSLAND.
Act shall not be deemed in any way to authorize any interference
with or abrogation of the powers, rights, and privileges of any person
or corporation heretofore granted or acquired."
In the next place the language of section 11 does not in terms
confer the exclusive right to divert and appropriate the water, nor
are there any other words to be found in it which would amount to a
grant of the stream or water course in question. Even in the case
of a deed from A. to B. the right given to divert and appropriate
water without more, would not confer the exclusive right to divert
and appropriate the water, but A. would have it in his power if he
chose, to grant a similar right or licence to others, subject of course,
to the right already given to B. The question as to whether a particular right of licence granted by a subject was or was not exclusive
has arisen in numerous cases.
For instance, in Duke of Sutherland v. Heathcote (1891), 3 Ch.
504 at p. 517, on appeal (1902), 1 Ch. 475, Lindley, L.J., speaking
of a reservation to get coal, says at page 485, " An exclusive right to
all the profit of a particular kind can, no doubt, be granted; but such
a right cannot be inferred from language which is not clear and
explicit;" and again " Lord Mount joy's Case has always been regarded
as a leading authority for the proposition that a grant in fee of
liberty to dig ore does not confer on the grantee an exclusive right H
to dig them, even if the grant is in terms without any interruption
by the grantor."
In In re Haven Gold Mining Company (1882), 20 Ch. D. 151
at p. 160, Jessel, M. E., speaking of a licence to sink shafts or tunnel
for gold says, " It was not an exclusive licence, and therefore if this
New Zealand savage was the owner of the property there was nothing
to prevent his granting licences to other people, and, as I said
before, there is no grant of the gold itself to Mr. Eicke."
In Carr v. Benson (1868), 3 Chy. App. 524, at p. 532, Wood,
L. J., speaking of a power to dig fire clay, says, " The plaintiff's licence,
it is conceded, is not an exclusive licence, and it has been held from
the earliest period that a man taking a licence where he is under no
obligation to work, cannot exclude his licensor from granting as many
more of those licences as he thinks fit, provided always that they are
not so granted as to defeat the known objects of the licencee in applying for his licence;" and again at p. 534, "the licence cannot be
reasonably construed to operate as a grant to the plaintiff of as much
of this particular mineral as he can possibly make use of in the
course of his business. What the plaintiff could raise and get he was
to have, but he could not bring trover against the lessor for removing
the remainder."
.In Newby v. Harrison (1861), 1 J. & H. 393 at p. 396, the same
learned Judge speaking of a liberty to take ice from a canal says,
January 26.
Full Court.
UNTER, C.J. 30
"The first question that arises upon the plaintiff's leases is,
whether there is an exclusive licence. It appears to me, that I can-
• not hold it to be an exclusive licence, because, if it were intended so
to be, it would be framed with words of an exclusive character. That
may I think, be assumed, unless I find something in the deed which
compels me to come to a different conclusion. The distinction is well
known between an ordinary licence and an exclusive licence, and in
the latter you expect to find something of that nature expressed."
In Ross v. Fox (1Q67), 13 Gr. 683, Spragge, V.C, decided that
a power to dig for mineral was not an exclusive right, and in support
of his view, referred to the fact that there was no compulsion on the
licencee to work the minerals, aneT it is needless to add that the city
is under no compulsion to maintain any water works system at all,
although by section 32 of the Act, if it does maintain it, it must
supply applicants on certain conditions.
In Sinnott v. 8coble (1884), 11 S. C. E, 571, it was decided that
a licence to cut timber was not exclusive, and that it did not give the
licencee any property in the standing trees or interest in the land.
And I apprehend that so far as concerns the determination of
the question as to whether the particular right claimed is exclusive
. or not, or such as to amount to a grant of the thing itself, it makes
no difference whether the right is of the nature of a licence, or
privilege, or an easement, or a profit a prendre. In fact these cases
proceed on the plain principle that an instrument giving a right to
dig ore, cut timber or take ice, etc., as the case may be, means
exactly what it says, i.e., gives only a right and not the sole or
exclusive right unless the context clearly shews otherwise.
These were cases as between subject and subject, so that a fortiori
in a case of such a right conferred by the Crown or the legislature,
it would require apt and explicit language to uphold its exclusive
Then again, even if there were no such saving clauses as section
42 in the Act, and there was any doubt as to the intention of the*
legislature, two rules of construction in relation to statutes would
require me to hold that the city's right is not exclusive; the first
being that the Act should be construed in favour of the right of the
Crown through the Gold Commissioner to dispose of the unused
water, and the second, that enunciated by Strong, C.J., in the St.
Hyacinthe Case (1895), 25 S. C E. at pp. 173 and 174, which I have
already quoted in Calder v. The Law Society (1902), 9 B. C at
p. 58.
For these reasons I am of the opinion that the city's right to take
the water from Stoney Creek is paramount but not exclusive, and ii.]     CENTRE STAR MINING CO., LTD. v. CITY OF ROSSLAND,
that the Gold Commissioner's ruling was wrong, and therefore that       1903.
the applications must be referred back to him for further consider- JanT^y  6-
ation. ■ Full Court.
The petitioners will have their costs of the appeals.
The city appealed to the Full Court and the appeal was argued at
Victoria on the 22nd of January, 1903, before Walkem, Drake?,
Irving and Martin, JJ.
Duff, K.C, for appellant: The Water Clauses Consolidation Act
has no application to the water already dealt with by the special Act
passed in 1896. The company applied for an interim record under
section 18 of the general Act, but section 18 cannot apply to rights
such as have been granted the City of Eossland; this water is not
subject to be taken under the general Act, therefore the term
"unrecorded water" cannot sensibly be applied to it and the definition in the interpretation clause does not apply. Section 18 refers
only to unused recorded water; if not, the application for an interim
record would have been made under section 10. A grant of water
under a private Act is not dealt with by the statute as a "record."
A subsequent general statute does not interfere with a special
statute: see Garnett v. Bradley (1878), 3 App. Cas. 944; Barker v.
Edger (1898), A. C 748, and Seward v. Vera Cruz (1884), 10 App.
Cas. 59; Tracey v. Pretty & Sons (1901), 1 K. B. 444 at p. 470, and
Maxwell on Statutes, 3rd Ed., 242-3. A clear indication that the
rights under the special Act were intended to be in any way derogated
does not clearly appear.
Gait, for respondent, referred to Blackstone's Commentaries, p.
18, shewing that there is no such thing as a proprietary interest in
water itself, but only a usufructuary interest. Section 42 of the
special Act shews that the legislature in 1896 had in view the
intention of passing a general Act dealing with water and which was
passed the next year. Section 4 of the general Act vests unrecorded
water in the Crown, and section 2 says " unrecorded water" shall
include water not used for a beneficial purpose.
All we want is the water not being used. The key-note of the
Water Clauses Consolidation Act is equitable distribution and
greatest beneficial use of all available water supply: see sections 7,
13, 18, 28, 144 and 146. It is against the policy of the Act to
allow parties to say " we own the water, but we need not use it and
may waste it if we please." Section 44 (a) clearly recognizes the
right of an applicant to obtain an interim record where, as in this
ease, a municipality holds a prior record, but is not using all the
Duff, replied.
Cur. adv. vult. 32
January 26.
Full Court
Walkem, J.
26th January, 1903.
Walkem, J.—I agree with the judgment appealed from, and am
of the opinion that the appeal should be dismissjed with costs.
In coming to this conclusion, I wish it to be understood that I
only intend to hold with the learned Chief Justice, that Mr, Kirkup
had jurisdiction to deal with the matters brought before him.
Drake, J.—The Eossland Water and Light Company was incor-'
porated in 1896 on a private Act, and in the preamble the objects
stated are to supply the Town of Eossland with water, and the power
to be taken from Stoney Creek, Little Stoney Creek, and Sheep
Creek. T% section 11, the company were authorized to enter upon
Crown lands and to divert and appropriate so much of the waters of
Stoney Creek and the other creeks mentioned, as the Lieutenant-
Governor in Council may deem necessary and proper above the elevation of 3,021 feet. The Governor in Council on the 25th day of
September, 1899, gave the company'all the water in Stoney Creek
and Little Stoney Creek above the altitude indicated. In 1897 the
Water Clauses Act was passed. The preamble of that Act is to confirm to the Crown all unreserved and unappropriated water, and water
power. Unrecorded water in this Act means water which for the
time being is not held and used in accordance with the record under
any public or private Act, and includes all water for the time being
unappropriated or unoccupied or not used for a beneficial purpose.
The above-named company are not using the whole of the water
granted to them by the order in council. The order in council is a
record. Mr. Duff contended that as the general Act which was
passed subsequent to the special, arid which did not in terms mention the special Act, could not be held as interfering with the grant
of all the waters in these creeks, and cited Garnett v. Bradley
(1878), 3 App. Cas. 944, at p. 950; Barker v. Edger (1898), A. C.
748 at p. 754 and Seward v. Vera Cruz (1884), 10 App. Cas. 59.
These cases are distinguishable from the present case inasmuch as
the Act under review does not in words affect past legislation.
The definition* of unrecorded water includes water granted under
any public or private Act, unappropriated or unoccupied or not used
for a beneficial purpose, and therefore includes the water granted
to the Eossland Water Company running to waste. The incorporating Act is also by section 42 made subject to any further legisla-
* " Unrecorded water " s
not held under and used in
the Acts repealed hereby, or
shall include all water for
not used for a beneficial pi
l11 mean all water which for the time being is
3ordance with a record under this Act, or under
ider special grant by public or private Act, and
e time being unappropriated or unoccupied, or SffiffiM^
tion regarding the subject matter of the Act, or of the powers or
provisions thereby conferred.
The learned Chief Justice discussed the various authorities which
refer to the question whether the grant is an exclusive one or not.
The law thus referred to shews clearly that a licence from the
Crown is not an exclusive right unless the language used is clear
and definite. If the Water Company were using all the water granted
to them there would be nothing left on which a further grant could
operate; but all that the applicants ask for is liberty to use the unappropriated water, and this, as it does not affect the corporation
user, can in my opinion be given; and such being the case I think
the appeal should be dismissed with costs, and the judgment of the
Chief Justice confirmed.
January 26.
Full Court.
Drake, J.
Irving, J.—The application for an interim record is resisted on   lRVING> J-
the principle that a later general law does not abrogate an earlier
special one.
The principle is limited to thosie cases in which the later Act does
not in itself or its history shew that the Legislature, at the time of
the passing of the later Act, had its attention turned to the earlier
special Act.
At p. 250 et seq., in Maxwell on Statutes, 1896, Ed., a number of
instances are cited.
If the general Act deals specifically with the special Act, the
principle of course would not be applicable. The same result occurs-
if it is plain either by anticipatory words inserted in the special
Act, or by the history and language of the general Act; or where
both these grounds for the non-application of the principle exist.
If we turn to the private Acts passed in the same session in
which the Water Privileges Act of 1892 was pas|sed, we will find
several private water Acts in which language similar to that used
in section 42 of the Eossland Electric Light Company Act, occurs.v
Again, in 1893, 1895 and 1896, the same language is inserted.
In short, in all Acts, with one or two exceptions, passed in 1892, and
afterwards, until the Water Clauses Consolidation Act, 1897, was
passed, we find the same anticipatory words, which occur in section
42 of the Eossland Electric Light Company Act.
Then in 1897 came the Water Clauses Consolidation Act with
its preamble, its far-reaching definition of " unrecorded " water, and
its fourth section.*    I am of opinion that the Eossland Waiter and
* " 4. The right to the use of the unrecorded water at any time in any
river, lake, or stream, is hereby declared to be vested in the Crown in the
right of the Province, and, save in the exercise of any legal right existing at
the time of such diversion or appropriation, no person shall divert or appro-
VOL. II. M.M.C.---3 34
January 26.
Full Court.
Martin, J.
Light Company is within the sweep of the Water Clauses Consolida-r
tion Act, and that the appeal should be dismissed.
Martin, J.—The right of the city under its record to the water
not at present being " used for a beneficial purpose" is not lost, but
only dormant, and can be revived if the necessity arise for the use
of the water now going to waste.
Appeal dismissed with costs.
Note.—For other cases under this Act: see War Eagle Consol. Ming. Co.
v. Brit. Col. Southern By. Co. (1901), 1 M. M. C 422, 465; Centre Star
Ming. Co. v. Brit. Col. Southern By. Co., lb. 421, 460; Boss v. Thompson,
post, p. 79; In re Water Clauses Consol. Act and Bossland Power Co. Ltd.
post, p. 135. And cf. also Byron N. White Co. v. Sandon Water Works Co.,
post, p. 240; Brown v. Spruce Creek Power Co., Ltd., post, p. 254.
Riparian rights are thus restricted by the 5th section of this Act:
*' 5. No right to the permanent diversion or to the exclusive use of the
water in any river, lake, or stream shall be acquired by any riparian owner,
or by any other person, by length of use or otherwise than as the same may be
acquired or conferred under the provisions of this Act, or of some existing or
future Act."
A railway company, the owner of a tenement adjoining a natural stream
has no right to divert water to a place outside the tenement, and there consume it for purposes unconnected with the tenement: McCartney v. Londonderry & Lough SwUly By. Co.  (1904), A. C. 301.
priate any water from any river, water-course, lake, or stream, excepting under
the provisions of this Act, or of some other Act already or hereafter to be
passed, or except in the exercise of the general right of all persons to use water
for domestic and stock supply from any river, lake, or stream vested in the
Crown, and to which there is access by a public road or reserve." NOBLE FIVE MINING CO. v. LAST CHANCE MINING (X).
Noble Five Consol. Mining and Milling Co., Ltd..
Last Chance Mining Co.. Ltd.
B. C.
ET AL., V.   February 6.
Full Court
Practice—Trial of Action Bespecting Extra-lateral Rights—Postponement of
Trial—Peremptory Order—Mineral Act, 1891, sec. 31—Appeal, Notice of—
Extension of Time—Jurisdiction.
between the o\>
lateral rights,  the parties
trial without being given
as may be necessary to del
tion.    A peremptory orde:
In an action between the owners of adjoining mineral claims respecting extra-
iming such rights will not be forced on to
r opportunity of doing such development work
ne the position of the apex of the vein in ques-
trial should not be made.
Quaere.—Should the Full Court question its own decision in Sung v. Lung
(1901), 8 B. C. 423, holding that it had no jurisdiction to extend the time
for bringing an appeal?
Appeal from an order of Drake, J.
The plaintiffs were the owners! of the World's Fair mineral claim Statement.
in Kootenay District, and brought an action claiming damages and
an injunction against the defendants, who they alleged were running
a tunnel from an adjoining claim on to their (the plaintiffs') claim.
The defendants in their statement of defence pleaded that they
owned the Last Chance and Blue Jay claims, which were located
under the provisions of the Mineral Act, 1891, and so were entitled
to extralateral rights, and that the apex of the vein oh which the
said work in the World's Fair mineral claim was done is found upon
the surfaces of the Last Chance and Blue Jay claims, and that in its
course downwards departs from the perpendicular and extends into
the World's Fair claim.
The trial was fixed for the July, 1902, sittings' in Victoria, but
the Full Court (on an appeal from the order of Walkem, J., who
refused defendants' application for an adjournment) granted a
postponement until the October sittings, with liberty to defendants to
apply before aaid sittings for a further postponement on producing
proof to the satisfaction of the Court or a Judge that a postponement was necessary, and that they had complied with the terms of
the order, the term of which material to be stated here being that
work on their claims be prosecuted with due diligence by the defendants' for the purpose of supporting their claim to extralateral
rights as alleged in the pleadings. In October, on the defendants'
application, the trial was further adjourned until the December,
1902, sittings.    In November, the defendants applied for a further MARTIN'S    MINING    CASES.
adjournment and shewed by affidavit that they had commenced the
work ordered by the Full Court as soon as it could conveniently be
commenced and had prosecuted it with diligence until stopped by
snow; that it would not be possible to do any more of the work before,
the 1st of June, 1903, and in some places before about August,*
1903, and that the work still necessary to be done to establish
definitely the continuity of the vein from the apex would take three
or four months or more. For the plaintiffs it was contended that
defendants were then mining in their ground and taking ore there-
On the 20th of November, an order was made by Drake, J., as
''It is ordered that the trial of this action be and the same is hereby
postponed until the session of the Court to be held at the City of Victoria, in
the month of July, 1903, peremptory;
" And it is further ordered, that the defendants do pay to the plaintiffs
such damages as they shall suffer by reason of the delay caused by the postponement of the trial hereby ordered;
" And it is further ordered that the costs of this application be costs to
the plaintiffs in any event of the cause."
This order was not settled until the 1st of December, 1902. On
24th November, defendants served a notice of appeal against so
much of the order as ordered the date set for the trial to be peremptory, the grounds of appeal being, that the learned Judge should not
have imposed the term complained of and that the term complained
of is contrary to the direction contained in the Full Court order,
dated the 30th day of June, 1902.
On the 1st of December, defendants served an additional notice
of appeal against so much of the said order as ordered that they
should pay to the plaintiffs such damages as the plaintiffs might
suffer by reason of the postponement, the grounds of appeal being
the same as in the former notice.
The appeal came on for argument on the 5th of February, 1903,
before Hunter, C.J., Irving and Martin, JJ.
Bodwell, K.C, for appellants.
Luxton, for respondents, took the preliminary objection that the
second notice of appeal was out of time as the time begins to run
from the time of the pronouncement of the order.
Bodwell.—If it is held that the notice was given late I ask for I
leave to extend the time.
[Martin, J., referred to 8ung v. Lung (1901), 8 B. C. 423, and
said the Court had already held it had no jurisdiction to extend
the time.]
wm ex c.
point as it seems to me the Court has
e; the matter mav still be reconsidered.
February 6.
Full Court
I would like to argue th
the power to extend the tin
[Hunter, C.J.—Where the Court is the Court of ultimate appeal
it can set aside a former decision, as we are not bound to perpetuate HuNTER> CJ-
error; there are numerous examples of it in the Privy Council, in
the Appeal Courts and in the Supreme Court of the United States.]
The argument on that part of the appeal of which notice had
been given in time was then proceeded with, the Chief Justice
announcing that if it became necessary to consider the other part of
the appeal the Full Bench would be summoned to consider whether
or not the Court had power to extend the time.
. Bodwell.—The peremptory clause should not have been put in the
order; it will be impossible for us to go to trial in July, and we
should have an opportunity to apply for an adjournment again in
Luxton.—The Judge's discretion should not be interfered with:
see r. 356. They are not entitled to the extralateral rights claimed—
if a vertical plane extended were drawn through the easterly end
lines of the Blue Jay extended, the workings in the World's Fair
would be beyond.
an  appropriate way of   getting that
[Hunter, C.J.—There
I can mention it here to shew that the appellants wish to delay us.
Cur. adv. vult.
6th February, 1903.
Hunter, C.J.—It is not necessary to consider the second branch
of the appeal, because the defendants are entitled to the postponement and it should not have been made peremptory, because the
peremptory postponement till July was useless to the defendants.
By the time of the October sittings the defendants will probably
have had ample time to ascertain the necessary facts and a strong
case will have to be shewn by them in order to get a further postponement. The whole order falls. The appeal should be allowed
with costs.
Irving, J.—The appeal should be allowed in terms of the first   iRVING j.
Martin, J.—I agree.   Eule 683 renders it unnecessary for us to Martin, J
consider the second notice at all, and in any event the whole order
stands or falls together, nor can there be any separation of its terms.
In any event a direction for payment of damages is now inconsistent 38
1903. with the order we are making on this appeal; if defendants- are
February 6. titled to an adjournment till October without paying damages it
Full Court, would be absurd to say that they should pay damages for an
Martin J. .adjournment till July, which is worse than useless.
Ordered that so much of the order as ordered that
the date set for the trial of the action be peremptory be set aside and., that the respondents
pay to the appellants the costs of the appeal.
Note.—As to the Full Court overruling its own decision in Sung v. Lung:
see Jordan v. McMillan (1901), 8 B. C. 28, wherein the Full Court (McColl,
Drake, Irving and Martin, JJ.), decided that "the only point having been
decided by a majority of this Court, we are bound by its decision. It would
not be so if some enactment had not been brought to the attention of the
Court, and there may be other cases, but as this Court is constituted it would
introduce the wildest uncertainty in the administration of justice if we were
to hold that a former decision is not binding merely because due consideration
may not have been given to a question of this kind.
Since this question of the extension of time is an important one, particularly in mining litigation, it is desirable to give for the first time a report
of the case of Clabon v. Lawry, which Sung v. Lung follows.
Clabon v. Lawry,
Full Court.]
[January 20th, 1898.
Held:—The Court has no jurisdiction to extend the time for giving notice of
appeal under sees. 7, 8 and 12 of the Supreme 'Court Act Amendment Act,
Carroll v.  Can. Pac.  Battway  Co., followed.
Judgment was given in favour of the plaintiff by His Honour Judge
Spinks in the County Court of Kootenay, at Rossland, on the 22nd day of
May, 1896. On the 1st day of October next thereafter, the defendant served
a notice of motion for leave to enter and set down a notice of motion to
appeal from the said judgment " notwithstanding there has already been a
sittings of the Full Court since the trial of the action."
In support of the application the defendant's solicitor filed an affidavit
swearing to merits and setting forth that the reason why the appeal had not
been set down for the intervening sittings in July was because he had been
unable to obtain the Judge's notes of evidence which it was necessary for
him to have in order to proceed with the appeal, though he had made several
verbal applications to the Judge therefor, and also three subsequent written
In the meantime, and on the 21st of November,' the plaintiff gave notice of
appeal and on the 27th of November set it down for hearing.
The motion came on for argument on the 9th of December, 1896, before
McCreight, Walkem and McColl, JJ.
Archer Martin for* the motion.
Jay, contra.—A preliminary objection is that the appeal is out of time
for notice has admittedly not been given for the prior sittings of the Court
in July, as required by sec. 18 of the Supreme Court Amendment Act, 1896,
which directs that " Notice of appeal to the Full Court from any final judgment or order or decree shall not be less than a fourteen-day notice, and, if the.
judgment, order, or decree is made more than fourteen days before the sittings
of the Full Court, shall be for the then next sittings of the Full Court, etc.,
etc." n.]
Martin, in reply:—By virtue of Rule 684 the time of one year there given
within which to appeal from a final judgment had not expired, and sec. 16
has not the effect of shortening it. But if it has, then the error here has
arisen from a general misapprehension of this new and ambiguous statute
relating to procedure, and the time for appeal should in this special case and
unusual circumstances, where the solicitor has done everything possible to
perfect his appeal, be enlarged under Rule 743, thus following the practice
laid down in similar circumstances by the Court of Appeal in Ontario, in
Graham v. Temperance and General Life Assce. Co. (1896), 17 Prac. 271;
and I rely also on McFeeters v. Dixon (1870), 3 Ch. Ch. 84, 88; In re
Good Friday, etc., Mineral Claim (1896). 4 B. C. 496; In re Manchester
Economic Bldg. Soc. (1883), 24 C. D. 488; Collins v. Vestry of Paddington
(1880), 5 Q. B. D. 368; Cusack v. Lond. & N. W. By. Co. (1891), 1 Q. B.
347; EsdaUe v. Payne (1889), 40 C. D. 520; In re Watson (1887), 19 Q.
B. D. 234; Be Arbenz (1887), 35 C. D. 248.
The Court reserved judgment on the preliminary objection, and the appeal
"was proceeded with on the merits subject to such objection, and after considerable argument by both counsel further hearing was adjourned pending a reference back to the trial Judge for an explanation of the presence among the
papers of two certain documents which were not identified as having been
produced at the trial, and also for his reasons for judgment.
On the 30th of December, 1897, the learned trial Judge gave his reasons
for judgment in writing, and the matter finally came on for further argument
on the 18th of January, 1898, before Walkem, Drake, and Irving, JJ.
Jay, for plaintiff, renewed his former objection and relied additionally on
sees. 7 (5), 9, and 12 (1) of the "Supreme Court Amendment Act, 1897,"
and the recent decision of the Full Court (McCreight, Walkem, and Drake,
JJ.), thereon in Carroll v. Can. Pac. By., unreported, November 5th, 1897,
that unless notice of appeal was given within the time specified by the Act
the Court had no jurisdiction to extend it.
Martin, in reply, relied on sees. 11 and 12* of the said Act of 1897, and
on the authorities already cited, and further submitted that it would be a
great hardship to give effect at this late stage to an intervening decision,
seeing that the appeal had already been largely argued on the merits long before
the decision in Carroll v. Can. Pac. By., and the reasons of the trial Judge
sent for by this Court were at last forthcoming and the matter could now
be disposed of after such long delay.
Cur. adv.  vult.
January   20th,  1898.
Per Curiam :—The giving of due notice of appeal is a pre-requisite to the
right of appeal, and because of the failure in this case to give that notice
the Court has no jurisdiction to entertain the appeal.
Appeal dismissed with costs.
For other cases on postponement of trial seeHanna v. Morgan, post, p. 142,
and Tanghe v. Morgan, post, p. 178.
February 6.
Full Court.
Martin, J.
*Secs. 11 and 12
Act, 1903-4.
are the same
s. 98 and 94 of the pre
Court 40
February 6.
Full Court.
Star Mining and Milling Co., Ltd. Lby., v. Byron N".
White Co.
(9 B. C. 422.)
Practice—Inspection—Underground Workings — Extralateral Bights—Plans,
Bight to Inspect and Copy—Enforcing Order—Discovery—Privilege—Bule
The right to inspect underground workings in a mine carries with it the
right to inspect and make copies of the plans of such workings.
Per Martin, J.: (1) The practice respecting inspection under r. 514 is distinct from the practice in obtaining discovery and a claim of privilege
set up in an affidavit in answer to a motion to compel inspection is not
(2) It is a proper and convenient practice to apply to the Court to enforce
an order for inspection.
Motion to compel defendant company to produce for inspection
certain working plans and drawings which it was alleged the plaintiff compan}^ was entitled to inspect and make copies of under an
order of Court dated the 11th of December, 1901, and affirmed (save
in one particular not material to this report) by the Full Court on
the 10th of January, 1902.    See vol. i., p. 468.
On the return of the motion, the defendant company set. up a
claim of privilege.   The facts appear in the following judgment of
at trial,
Martin, J.
31st May, 1902.
Martin, J.—By an order of this Court made on the 11th day of
December, 1901, the plaintiff company was, inter alia, given leave to
" inspect and make copies of the working or mining plans, drawings,
charts, or surveys of the defendants at any time made or used and
any number connected with any and all of their said workings and
mining operations in or upon" certain specified mineral claims owned
and worked by the defendants " so far as may be necessary to ascerr
tain whether the defendants have worked or are working into and
under the surface of the plaintiffs' claims and the nature and extent
thereof and the quantity of mineral or ore (if any) removed therefrom, and also so far as may be necessary to ascertain the apex and
location or position thereof as to the lodes or veins or ore deposits
which may have been or are being operated or mined by the defendants under the surface of the plaintiffs' claim." II.]
This order was affirmed, save in one particuiar not at present
material, by the Full Court on the 10th of January, 1902—9.B. C. 9;
1 M. M. C. 468.
The present is a motion to compel the defendant company to
produce for inspection certain working plans and drawings which it
is alleged the plaintiff is entitled to inspect and make copies of
under the said order of the 11th of December, 1901, and in support
of the application are filed affidavits of two surveyors and of the
' manager of the plaintiff's mines. The result of my consideration of
facts set out in these affidavits, and of the accompanying plans and
of the affidavit of Oscar Y. White, filed in reply, is that for the purposes of effectuating the true intent of the said order the plaintiff is
entitled to the production and inspection asked for unless the defendant's contention in regard to the construction to be placed upon r.
514; by virtue of which 'the order was made, is correct.
That contention is founded on the affidavit of the said White,
the defendant's mine superintendent, which sets up a claim of privilege and objects to the production of any plan (other than one
tracing which is of practically no assistance) because as White
deposes, the defendants"" have been advised by their solicitor, and I
verily believe that the said maps or plans' are not documents material
to this action, that they do not contain any information which the
plaintiffs are entitled to obtain for the purpose of their suit, and do
not disclose any fact or circumstance which is detrimental to the defendants' case or which would in any manner support the plaintiffs'
claim in this action."
It is argued that a claim of privilege can be so set up under r.
514 in the same manner as in proceedings for discovery, and that
the affidavit is conclusive unless it comes within one of the excepted
cases which are conveniently set out in the Yearly Practice, 1902,
pp. 319-20. I find myself unable to take this view of r. 514, and
have come to the conclusion that said rule authorizes a procedure
distinct from discovery in the general acceptance of that term. If
this be not so, then the defendant would have been able to prevent
the surveyors from making surveys and plans of the mine, as authorized by said order, and would have justified its action by simply filing
an affidavit in termst almost precisely similar • to that here relied
upon. But it must, I think, be apparent that such an affidavit would
under such circumstances be no answer to an application to compel
the defendant to allow surveyors to enter its mine for said purpose;
hence it follows that r. 514 does, differ from the rules relating to
discovery in this essential particular, and if the principle relied on
does not apply to a survey it cannot apply to an inspection directed
by the same rule. The cases of E. & N. Ry. Co. v. New Vancouver
Coal Co.  (1898) 1 M. M. C. 223; 6 B. C. 194; Centre Star v. Iron
February 6.
at trial,
Martin, J. 42
1903.       Mask (1898), 1 M. M. C. 267; 6 B. C. 355, and Iron. Mask v. Centre
February 6.  Sfar (^99^ 1 M> M- q 362;-7 B. C. 66, sustain this view.
Eule 514 provides a most useful and beneficial procedure, particularly in mining cases, but if the contention of the defendants'
counsel is correct it is liable to be defeated by the simple statement
of the mere belief of the immateriality of documents. I am of the
opinion that such is not the practice, and that the application should
be resisted by submitting such facts as will enable the Court to decide
the question as one of fact in each particular case.
Though I have dealt with the matter as one of substance as regards all the plans, yet I point out that technically the plaintiff would
in one respect be entitled to succeed in any event because the
original of one admittedly relevant plan has, by an oversight as explained, not been produced, but merely a copy.
I might add that as a matter of practice the course that has been
adopted of moving in the present way seems a proper and convenient
manner of enforcing the order, there being no question of contumacious resistance on the part of the defendant company.
The application is granted; costs to the plaintiff in any event.
Appeal to The defendant company appealed and the appeal was argued at
Victoria on the 9th and 10th of January,  1903, before  Hunter,
C.J., Drake and Irving, JJ.
The ground on which counsel for appellant based his argument
was not taken in the Court below.
Bodwell, K.C, for appellant. Eule 514 does not give the Court
power to direct the production of plans, and the order of McColl,
C.J., and the judgment of the Full Court on appeal were given in
error; although not able now to rescind its former order, the
Court will refuse to carry out a wrong order. Eule 514 applies
to property and not to title deeds; if a piece of property is the
subject of an action it may be detained, or inspected, a mine
may be entered and a plan must be produced, but these things
are done under the ordinary rules of discovery. It will be argued
that we cannot take this ground now, but the Court should not
enforce an order known to be Wrong—it will not perpetuate error.
He cited O'Connell v. McNamara (1843), 3 Dr. & War. 411; Hamilton v. Houghton (1820), 2 Bligh. 169, at p. 193; and4Eng. Eep. 290,
at p. 299; Commercial Bank v. Graham (1850), 4 Gr. 419 at p. 424;
Mitford's Chancery Pleas, 116; Morgan v. ■   (1737), 1 Atk.
408; White v. Parnther (1829), 1 En. 179 at p. 221; Lawrence Manufacturing Co. v. Janesville Mills (1891), 138 H. S. 552 at p. 561, and
Reg. v. Victoria Lumber Co. (1897), 5 B. C. 288. II.]
[Hunter, C.J.—But there the causes of action were different       1903.
although identical, but here the orders are in the same suit.] ebruary 6.
In some of the cases cited there had been no appeal from the -FuLL CouRT-
decrees, but the Court held it was not bound to enforce a wrong Hunter, C.J.
Davis, K.C. (8. S. Taylor, K.C, with him), for respondent:
Inspection alone is not sufficient for us as we allege some old workings have been closed up so it is necessary for us to see the plans.
Liberty to see the plans of the workings is a necessary part of an
order for inspection and leave to make copies of plans is ancillary
to inspection: inspection includes taking extracts: Boord v. African
Consolidated Land and Trading Co. (1898), 1 Ch. 596. He cited
Daniell's Chy. Forms1, 5th Ed., 950-1; Seton on Decrees, 6th Ed.,
574; Bevan v. Webb (1901), 2 Ch. 59; Lewis v. Earl of Londesborough
(1893), 2 Q. B. 191, where bills of exchange were photographed
under Order 50, r. 3, which is'the same as r. 514.
He was stopped.
. Bodwell, in reply: The form in Seton is only the form of an ordei
after judgment in an action for trespass to underground workings;
the form in Daniell is only the form of- a notice of motion. In the
cases cited there was a clear right to see a book and the notes and so
there was a right to make a copy and take photographs, but here
there is no right to see the plans.
Cur. adv. vult.
6th February, 1903.
Hunter, C.J.—In my opinion we cannot accede to Mr. Bodwell's judgment,
contention that we should not enforce the former order of this Court
on the ground that it is erroneous, as I think it was quite within the
jurisdiction and discretion of the Court to make it. With regard to
the power to order inspection, Order L., r. 3, is practically only
declaratory of the jurisdiction which has long been well settled in
the case of mines, machines, etc. (see Earl of Lonsdale v. Curwen
(1799), 3 Bligh, 168, at p. 171), and which was gradually developed
in the case of property generally (see Bray on Discovery, p. 577, et
seq., and cases cited), and is in fact little more than the application
to the matters of practice dealt with therein of the doctrine that
equity expands to meet the justice of new-arising cases.
In the case of underground workings it is a common practice
for the order to allow access to the plans, for the simple reason that
without such assistance the inspection would often be futile by
reason of the concealment, obliteration, or inaccessibility of some of
the workings.   This beina: so, it follows that it would be unreasonable 44
to expect those who make the inspection to carry the plans in their
heads, and to say that they should not have a copy to assist them both
in making the inspection, and to prepare their case with the aid ef
tthe results of the inspection. The forms given in the standard
works sustain Mr. Davis' contention that the inspecting party may be
allowed access to the plans and to take copies: see Daniel!'s Chy.
Forms, 4th Ed., p. 786; 5th Ed., pp. 950, 951; Seton on Decrees, 6th
Ed., p. 574; and in Chitty's K.B. Forms, 13th Ed., at pp. 226, 227,
I find a form of application "to enter and inspect the (defendant's)
mine and mining operations at . . . and to inspect the working
plans relating thereto, and to make measurements and drawings of
the said mine and mining operations, and copies of the said plans,
so far as may be necessary or proper in order to ascertain whether,"
I am quite free to admit that the order appears to have gone
further than was necessary, and that it might have contained an
undertaking by counsel not to use the information gained by the inspection, or the copies, for any other purpose than that of the litigation, but these were matters which should have been brought to the
attention of the Court when the order was being settled.
The present appeal is virtually an attempt to have the order reheard, which, in the case of a perfected interlocutory order is seldom
if ever allowed, even when made on the heels of the decision: see
Birmingham and District Land Company v. London and North
Western Railway Co. (1886), 34 Ch. D. 261 at pp. 277 and 278. The
appeal should be dismissed with costs.
Drake, J. Drake, J.:—In this   case   the  plaintiffs   obtained  an order to
ascertain by inspection whether or not the defendants had worked
or were working into and under the surface of the Heber Fraction
and Babbit Paw mineral claims, and the amount of mineral if any
removed therefrom. There is no dispute as to the validity of this
portion of the order, but what the defendants1 object to is the
further part of the order that allows them for any or all of the said
purposes to inspect and make copies of the working or mining plans,
drawings, charts or surveys of the defendants at any time made or
used in any manner connected with any and all of their said workings and mining operations in or upon any or all of the said above
mentioned mineral claims.
Mr. Bodwell contended that r. 514 did not sanction thisl latter
part of the order, that it was a new procedure not contemplated
thereby. The Court of Equity has frequently made orders for inspection, and making plans of the workings of mines, and for the
removal of obstructions to enable the inspection to be effective, but II.]
he contends that the use of the defendants' plans is something novel,
and infringes the right, which every litigant has, not to produce
his muniments of title, and plans come within that category. The
production of working drawings is apparently contemplated by the
forms given in Daniell and Seton on Decrees, and it is undoubtedly
an advantage to both parties. The form of order given in Earl of
Lonsdale v. Curwen (1799), 3 Bligh 168, at p. 171, and in Walker v.
Fletcher (1804), in the same volume, 178, compel the defendants to
remove all obstructions which would interfere with an inspection of
closed up ways and workings, the cost of which might be very serious.
The production of working plans would obviate this necessity. In
my opinion the order as regards the production of the working plans
limited to the ground under the surface of the Heber and the Eabbit
Paw mineral claims is correct. It is I think clear that this was all
that the original order intended to give. Perhaps the language used
might be construed as giving the right to see the plans of the mines,
but that is not the intention, and the defendants are right in restricting the plans to those under the land in dispute. If the working
plans cover more ground than the disputed claims, the*other portions
can be sealed up. I also consider that the persons making copies
of the plans should make a declaration not to disclose anv evidence
that might come to their knowledge from the inspection, except for
the sole purpose of the action; and I am further of the opinion that
every order made under this r. 514 should depend on the facts shewn
to the Court, and that this judgment is not to be considered as laying
down any general principle that plans should in all cases be produced.
I think that the costs of this appeal should be costs in the cause.
February. 6.
Full Court.
Drake, J.
Irving, J., concurred with Hunter, C.J.
Irving, J.
Appeal dismissed with costs.
Note.—In addition to the cases cited by Martin, J., on discovery, see
also, on the point of compelling mine managers to answer questions on examination for discovery, the same case, post, p. 96. 46
April 29.
Court of
St. Laurent v. Mercier.
(33 S. C. 314.)
Yukon—Placer  Mining Begulations of 1898 and 1901—Gran-
Conflicting Locations—Benewal Grunt—Unoccupied Cri
Where in the Yukon a renewal grant is obtained from the Crown of a location which includes an area which was not properly within the original grant
because it formed part of an existing valid location, but which had lapsed
before application for renewal, the title to such renewal grant cannot be
questioned by subsequent over-locators on the re-granted area, but only by
the Crown.
Seeing that the applicant for the renewal grant had been in continuous occupation of the whole ground as originally staked by him, including the lapsed
portion, it was not necessary for him to have gone through the form of
re-staking the identical ground and then making application de novo for a
new grant; he was justified in the circumstances in adopting his original
staking and making application for a renewal grant which was valid for the
whole area embraced thereby.
Judgment of the Territorial Court of the Yukon affirmed, Davies, and Armour,
JJ.,   dissenting.
Appeal from the judgment of the Territorial Court of the
Yukon Territory, sitting as a Court of Appeal constituted by the
Ordinance of the 18th of March, 1901, respecting the hearing and
decision of disputes in relation to the mining lands in the Yukon
Territory, which affirmed the decision of the Gold Commissioner
maintaining the plaintiff's action with costs.
The principal facts of this case are shortly as follows:—Creek
claim No. 245, below Lower Discovery, on Dominion Creek, in the
Yukon Territory, was recorded by one Waite, on the 29th January,
1898, renewed by him in January, 1899, but reverted to the Crown
in January, 1900. The plaintiff recorded a hill-side claim opposite
the upper half limit of No. 245, below Lower Discovery, on August
15th, 1899, and applied for and obtained a renewal grant of the
same in August, 1900. The defendant, Trinque,.staked bench-claim,
No. 245, on the first tier, on the 7th March, 1901, and recorded on
the 18th March, and the defendant St. Laurent staked bench claim
IsTo. 245, on the second tier, on the 10th March, 1901, and obtained a
grant for the same on the 19th March, 1901. The other circumstances material to the issues are set out in the judgments now
All these claims were subject to the regulations, by order in council, governing placer mining of the 18th of January, 1898,f and sections 13 and 14 of the regulations of the 13th of March, 1901.
* Present:—Sir Elzear Taschereau, C.J., and Sedgewick, Davies, Mills,
and Armour, JJ.
t See Victor v. Butler (1901), 1 M. M. C. 438. II.]
J. Lome McDougall for the appellants. Under all the regulations
staking and location constitute the root of title: See 1894-
1899 Eegulations, section 4; 18th January, 1898, Eegulations,
section 15; 13th March, 1901, Eegulations, section 14;
Atkins v. Coy (1896), 1 M. M. C 88; 5 B. C 6. A sine qua non
of valid location, staking or grant, under all the regulations, is that
the ground staked should be vacant unrecorded Dominion lands at
the time of staking. 1894-1899 Eegulations. See Form H., 18th
January, 1898, Eegulations, sec. 8 and Form H., 13th March, 1901,
Eegulations, sec. 8; Belk v. Meagher (1881), 1 Morr. M. E. 510, 522;
Cranston et al. v. English Canadian Co. (1900), 1 M. M. C. 394; 7
B. C 266; Victor v. Butler (1901), 1 M. M. C 438; 8 B. C 100;
Lindley on Mines, p. 363; Barringer & Adams on Mines-, p. 306;
Coplen v. Callahan (1899-1900), 1 M. M. C 348; 7 B. C 422; 30 S.
C 555.
If by reason of a prior valid location the staking is ineffectual as
to the whole or a part of the ground staked, the subsequent abandonment or forfeiture of the proper location cannot inure to the benefit
of the person claiming under the ineffectual location. Free miners
have no right to enter upon nor to locate any ground lawfully
occupied for mining purposes. A lawful location cannot be made on
ground comprising part of a subsisting placer claim, nor will a
subsequent abandonment or forfeiture of such subsisting claim make
valid such location. Ground once lawfully occupied by a free miner
must revert to the Crown before a valid re-location can be made on it.
The appellants do not seek to set aside nor curtail the grant
issued to the respondent, but to have it declared that such grant
did not include the ground which was, at the. time of his staking, lawfully occupied as a placer mining claim, and that the extent of the
respondent's grant was not added to nor otherwise altered by the
renewal grant.
J. A. Ritchie for the respondent. When the plaintiff located in
1899, the ground was open for location. There is no evidence to the
contrary. Even if the ground was not open for location, the defendants had no right to come and locate on ground, lawfully occupied
by the plaintiff.
Eeference was made to Osborne v. Morgan (1888), 13 A. C 227;
Williams v. Morgan (1888), 13 A. C 238; Scott v. Henderson (1843),
3 N. S. 115; and to Williams on Eeal Property, (18th ed.) p. 540.
April 29.
Court of
The Chief Justice, and Sedgewick, J., were of the opinion   Judgment
that the appeal should be dismissed with costs. Taschereau,
Sedg-ewick, .1.
Davies, J.   (dissenting.)—This was a boundary action brought Davies, J.
before the Gold Commissioner to determine the boundaries of the 48
April 29.
Court of
Davies, J.
Mills, J.
respective adjoining placer mining locationsi of the litigants. The
Commissioner found as facts; (1). That the location of the respondent, Mercier, was staked in August, 1899, partially over a then
legally existing creek claim and that such staking included the locus
in dispute which was not then unoccupied Crown land; (2). That
when Mercier obtained his renewal licence in 1900 the said creek
claim had lapsed and the lands in dispute were then unoccupied
Crown lands, but Mercier did not re-stake or make any new application for a licence, relying upon his former staking and application; (3). That, after Mercier's renewal licence has issued, viz., on
March 7th, 1901, St. Laurent staked his bench claim covering the
lands in dispute' and applied for and obtained a grant or licence for
the same.
Undej these 'facts I am of opinion that the appeal should be
allowed. I agree with the judgment of Mr. Justice Craig that the
staking of a claim on unoccupied Crown lands is essential to the
obtaining of a legal grant or licence. It is the root of title, as has
been so frequently determined under the law of. British Columbia.
The staking by Mercier of the locus in August, 1899, was invalid
because, at that time, the lands in question formed part of the creek
claim, No. 245, below Lower Dominion. After this creek claim
lapsed these lands became unoccupied Crown lands and were never
again staked. or located until staked by St. Laurent, the appellant.
His was the only staking or locating on which a legal grant or
licence could issue and the renewal to Mercier of his original, but
so far as the locus is concerned invalid, licence or grant could not
operate to give him any legal rights in the lands in dispute.
Mills, J.—The matter in dispute here between the parties
related to a mining location in the Yukon Territory. One Waite
had acquired a certain location in 1898. Subsequently, Mercier
acquired a location which overlapped that of Waite by six hundred
feet. Waite's location being first in point of time Mercier acquired
nothing of that portion of the land embraced within it. Waite's
claim lapsed and Mercier, subsequently, applied for a renewal, embracing precisely t he same area which he had at first staked out
and which he had applied for on the first occasion and he obtained
entry for the same. St. Laurent made application for the location
that had been previously held by Waite and he did this some time
after Mercier's second entry.
It has been argued befo
application when there wa
he ought to have re-staked his claim, although the stakes which he
had previously placed were still standing, and the limits which he
had on the first occasion marked out, while Waite's claim stood in the
e us that, if Mercier desired to renew his
no longer any impediment in his way, n.]
way of his obtaining a valid entry of a part of what he claimed. I
do not think this is so. I think the limits of the grounds which he
required being well known from what he had done, that his making
application for a renewal of what he had then staked out was sufficient, as there was, at the time this entry was made, no legal impediment in the way of his getting that part of the area which he
had marked out and of which he desired to obtain a valid entrance.
I do not think it was necessary that he should have gone upon the
ground a second time, pulled up the stakes which he had previously
planted and put them again in the same places in order to obtain a
proper entry for his claim in the Gold Commissioner's office. I
think this would have been, under the circumstances, an altogether
unnecessary proceeding and I think that the Gold Commissioner was
right in recognizing the claim which Mercier had made as a valid
one. He had been in possession ; he had done work on the ground;
he had obtained a renewal of his original claim, and there was no
power in any one to make a second valid entry. At all events, if
there was any irregularity in what he had done that irregularity was
not one that St. Laurent could question.
In Osborne v. Morgan, supra, I think the law is settled, that the
party who had received here an entry after that obtained by Mercier
had no right to try the validity of Mercier's claim, that this could
only be questioned by the Crown. The statute, it was there said, gave
no right whatever as against the land held by the Crown, and no
title to try the validity of Crown leases relating thereto.
Here, Mercier had possession, and was recognized by the Gold
Commissioner as having a valid claim to carry on mining operations
within the area which he had marked out. When he obtained the
second entry no one stood between the Crown and himself with any
prior claim. The claim subsequently made was by a party who had
knowledge of the claim which Mercier held under the authority of
the Gold Commissioner and the recognition of such a proceeding
would furnish facilities for illegal practices in those distant regions.
The acts of the Gold Commissioner are administrative acts and his
decisions should, as far as possible, be supported. It would be a misfortune to have parties, many of whom are uneducated men, deprived
of their claims on some technical ground and in this way pass into
the possession of others. Such a course would lead to dishonest
practices and sometimes to violence, and in a country so distant from
the settled parts of the Dominion, it is desirable, as far as possible,,
to enable men who have honestly undertaken to mark out claims for
themselves and to obtain entry to succeed.
Here, there is no doubt that Mercier's stakes were standing; that
the limits of the ground claimed by him could be easily ascertained
vol. n. m.m.c.—4
April 29.
Court of
Mills, J. 50
April 29.
Court of
Armour, J.,
or seen. This ought to have been sufficient to have warned the party
who was seeking to oust him from a claim which had already been
recognized by the Gold Commissioner, that he could not acquire a
title to any portion of the claim.
Armour, J., dissented from the judgment dismissing the appeal
for the reasons stated by Davies, J.
Appeal dismissed with costs.
Note.—See Hartley v. Matson, ante, p. 23.
The following observations of the Privy Council in The King v. Chappelle
(1904), A. C. 127, on Yukon regulations are of importance in this relation:
" The Regulations of 1889 dealt both with quartz mining and placer mining,
and, as might be expected, they dealt with the two methods in a different
manner. The quartz miner having complied with the prescribed conditions,
and having paid the required fee, obtains from the agent of Dominion lands
a receipt according to Form B. in the schedule, authorizing him to enter into
possession of the location applied for, and subject to its renewal from year,
to year as " thereinafter" provided during the term of five years from its
date to take therefrom and dispose of any mineral deposit contained within
its boundaries, " provided that he expends during each of the five years a sum
of at least $100 in actual mining operations on the claim." Thereupon, subject to the payment of the prescribed fee, the agent issues another receipt
in Form C in the schedule, which entitled the claimant to hold the claim
for another year. At any time before the expiry of the five years the claimant is entitled to purchase the location at so much per acre on proving that
he has complied with the requirements of the regulations in that behalf. As regards placer mining, the forms of application for a grant for that purpose^and
the grant for the same were to be thoSe contained in Forms H and I in the
schedule, and it was provided by s. 20 that " the entry of every holder of a
grant for placer mining must be renewed, and his receipt relinquished and
replaced every year, the entry fees being paid each time." According to Form
I the Minister of the Interior grants to the claimant " for the term of one
year . . . the exclusive right of entry upon the claim " as described, " for
the miner-like working thereof, and the construction of a residence thereon,
and the exclusive right to all the proceeds realized therefrom." Form I then
proceeds to state that the grant does not convey any surface rights in the
claim or any right of ownership in the soil covered by the claim, and that the
rights granted are those laid down in the Mining Regulations and no more,
and are subject to all the provisions of the said regulations, whether the same
are expressed  in the grant or not	
Their lordships, therefore, are of opinion that the placer miner on renewal
holds under an annual grant in substitution for, but not in continuation of,
his original grant. He has no absolute right to renewal. He has no doubt
a preferential right of renewal, because no interloper can be in a position to
make the affidavit required to entitle him to a grant of the claim so long as
the original occupant complies with the requirements of his grant and applies
in due time for a renewal.
Their lordships are further of opinion- that a placer miner obtaining a
renewal grant in due course, holds his claim subject to all such regulations as
may be in force at the date when the renewal grant comes into operation.
In some cases it appears that for the convenience of the miner a renewed
grant was issued during the currency of an existing grant. It was argued
that the miner, having got possession of a renewal grant, was not liable to be
affected by regulations not then in force, but coming into operation before the
expiry of the existing grant. Their lordships , are unable to accede to this
argument. Their lordships think that a renewal grant must be subject to all
regulations in force at the date when it comes into operation." BRITISH LION GOLD MINING CO. v. CREAMER.
British Lion Gold Mining Co. v. Creamer.
Mineral   Claim—Over-location—Misnomer—" Swinging "   Claim—Fraud—Misleading—Curati/oe Section, s.-s.  (g)  of sec. 16 of Mineral Act.
A claim which is located under one name and recorded under another is
invalid, and such a defect in location being necessarily calculated to mislead other locators in the vicinity, cannot be cured by s.-s. (g) of sec. 16 of
the Mineral Act Amendment Act, 1898.
Adverse action tried before Martin, J., at Nelson, between two
conflicting and over-lapping mineral claims, the Aberdeen, the
senior location, being the property of the defendant, and the Highland Chief, the junior location, being the property of the plaintiff
company. The Aberdeen was attacked on the grounds (1) that
it did not occupy the same position as that in which it had been
originally located, i.e., that the location had been " swung;" and (2)
that it was a re-location of its owner's former claim, the Salsberry,
without the permission of the Gold Commissioner.
8. 8. Taylor, K.C, for the plaintiff. Our claim, the Highland
Chief, has been shown to be a valid location. I submit that apart
from other objections to .the Aberdeen location, the evidence
establishes the fact that the ground now covered by that claim was
located as the Salsberry, and that since then the location of the
Salsberry claim has been changed, i.e., " swung," and the name on
all the posts changed to Aberdeen. This involves a grave charge
against the defendant, who has not seen fit to come here to meet it,
■ though he could have done so. In any event it is established beyond
question that there has been a misnomer of this claim, for even
assuming it was by mistake that the name was changed in the cotfrse
of the various shuffles resorted to in trying to hold the ground without doing assessment work, yet there cannot be a valid location
which has one name in the Mining Recorder's office and another
name on the ground, and it is impossible to cure such a defect because it must necessarily mislead all others seeking to locate in that
vicinity. And further, assuming that the Aberdeen was' merely an
over-location of the Salsberry, when once it appears that that is
the case the onus is on the other party to show that he obtained the
consent of the Gold Commissioner before he made such re-location,
which is otherwise illegal.
W. A. Macdonald, K.C,  for the  defendant.   The Aberdeen  is
| the  senior  location, and we  having  given   formal   proof    of the
validity thereof, the onus is on the plaintiff to establish his objections
Argument. 52
Argument, to our title. It has not been clearly proved, as it must be, that the
Aberdeen was fraudulently " swung," and the most that can be
said is that there was a mistake in the name—a misnomer—which
can be cured by sub-section (g) as, in the circumstances, it was not
calculated to mislead. As to the Aberdeen being a re-location of
the Salsberry without permission, it is not open to the plaintiff to
attack us on that ground without joining the Attorney-General as a
party, and further the consent of the Gold Commissioner must be
shewn to be wanting because it will be presumed in our favour that
it was obtained.
Per Curiam :—Apart from any question as to re-location without
permission, I find as a fact that the location called the Aberdeen as
now surveyed was, at the time of the location of the Highland Chief,
located as the Salsberry, and the record of the claim in the Recorder's
office and the notice on the posts on the ground are consequently in
conflict. It is alleged that the Aberdeen claim has been fraudulently
" swung," and the posts changed so that it now covers the ground
located as the Salsberry, and the Court is asked to declare it invalid
on that ground also. For the reasons given by myself in Callahan v.
Coplen (1899-1900), 1 M. M. C. p. 349; 6 B. C. 523; 7 B. C 422,
I should shrink from finding that the defendant has been guilty of
a gross fraud unless it is necessary to do so and the fact has been
clearly established.* I must say that to meet such a grave charge I #
should certainly have expected the defendant to be here. It is, how-1
ever, not necessary to decide it because in any event the location is
invalid both because of the misnomer and of failure to duly record
it in its true name, and the irregularity is one which cannot be ■
cured by sub-section (g) of section 16, because on the face of it
nothing could be more calculated to mislead other prospectors than
a misnomer of a mineral claim and a conflict between the record •
and the notices on the posts.
The Highland Chief is declared to be a valid location and the
Aberdeen as now surveyed declared to be an invalid location so far
as it conflicts with the Highland Chief.
Judgment for plaintiff with costs.
Note—In Wise v. Christopher (1900), 1 M. M. C. 413, the location was
held to have been swung and consequently invalid.
For list of other fatal defects in location: see Vol. 1, p. 504; and also
Snyder v. Bansom, post, p. 77; Sandberg v. Ferguson, post, p. 165; Dock-
steader v. Clark, post, p. 192; and Butherford v. Morgan, post, p. 214.
*Cf. Docksteader v. Clark, post, p. 192, at 194, Irving, J. Master and Servant—Unsafe Mine—Negligence—Employers'   Liability  Act—
Place of Danger—Duty to Warn  Workmen of.
Where a workman is put to work in a place in a mine where there is an
imminent danger of a kind not necessarily involved in the employment and
of which he is not aware, but of which the employer is aware, it is the latter's duty to warn the former of the danger.
G. had been working in the defendants' mine on the floors immediately below
the 600 foot level, and on the night of the accident when he was going to
work he was told by the shift whom he was relieving that the place was
in " pretty bad shape," and to look out for it. He proceeded to make an
examination, but while thus engaged the mine superintendent directed him
to do some blasting, and while doing it a slide occurred and he was injured.
The principal indications of the probability of a slide were in the two
floors beneath the 600 foot level, and of these the superintendent was aware,
but G. unaware. The jury found that the superintendent was negligent
inasmuch as he did not warn G. of the probable danger.
Held, in an action under the Employers' Liability Act, Martin, J., dissenting, that the defendants were liable.
This was an action under the Employers' Liability Act. The Statement,
plaintiff had been working in the Le Roi mine in Rossland on the
floors immediately below the 600 feet level. On the night of the
accident he went on shift at eleven o'clock, and when near the place
where he was to work was told by the shift whom he was relieving
that the place was in "pretty bad shape" and to look out for it;
he then proceeded to make an examination of the timbers along the
sill floor of the 600 foot level to ascertain the extent of the danger;
while engaged in this examination the defendants' superintendent
came along and directed him to blast away the lagging, which was
sustaining a large amount of waste rock above the 600 foot level. It
was shewn at the trial that some twelve hours before the plaintiff
went to work the timbers in the stope underneath the 600 foot level
had begun to crack and get out of position and give other evidences
that a slide was inevitable.
The defendants' superintendent was aware of all the evidences of
the coming slide, but the plaintiff was unaware of the same except
in so far as they could be observed on the sill floor of the 600 foot
level. The principal indications of the coming slide were in the two
floors beneath the 600 foot level, and these were not visited by the
plaintiff.    The plaintiff and the man who  was  engaged  with him 54
June 16.
had blasted twice in conformity to the order of the superintendent
without bringing down the waste rock; while they were preparing
Full Court, the third shot the slide came and the plaintiff was severely injured.
Dunkle, the superintendent, was killed.
Irving, J.
The action was tried <at Rossland in February, 1903, before
Irving, J., with a jury, who returned the following verdict:
(1) Was the injury to the plaintiff caused by the negligence of
any person in the service of the company who had superintendence entrusted to him, whilst in the exercise of such superintendence? Yes, inasmuch as Superintendent Dunkle did not advise the
plaintiff of the probable danger.
(2) If yes, who?    Superintendent Dunkle.
(3) Was the injury to the plaintiff caused by reason of the negligence of any person in the service of the company to whose orders the
plaintiff was bound to conform and did conform? No; we have no
evidence to shew that such accident was caused by the order given
for blasting.
(4) Did the injur}- result from his having so conformed? We
have no evidence to shew that it did.
(5) Did the plaintiff, knowing the nature and the condition of
the ground and fully appreciating the risk of accident he ran by
working in the stope referred to, under the circumstances voluntarily
assume to take such risk upon himself?   No.
(6) Was the injury of which the plaintiff complains caused by
reason of any defect in the condition or arrangement in the premises .
by reason of any defect in the construction of the scaffolds or other
erections erected by defendants or in the material used in the construction thereof ?   We do not think so.
(7) If you say in answer to question 6 that there was any negligence in making the erection or in not discovering the defects or in
not remedying the defects, in what did such negligence consist?
We believe the necessary precautions were taken to remedy the
defects on the 11th and 12th floors.
(8) Amount of damages?   $2,000.
Judgment was entered for plaintiff accordingly.
Appeal. The defendants appealed, and the appeal was argued at Vancouver
on  the  20th   of   April, 1903, before   Hunter,   C.J., Drake and
Martin, JJ.
Argument. Davis, K.C, for appellants: Under the circumstances' there are
only three classes of negligence which the jury could find and on n.]
which the plaintiff could hold a vetdict:    (1) they might find antecedent negligence in superintendence in allowing the mine to get in
such a dangerous condition; (2)   they might find a negligent system Ft
of timbering; or (3) they might find that the superintendent's order Hu
to go in and blast was a negligent order because the place was too
There is no such finding; the whole finding is negligence because
superintendent did not warn. It is no part of a superintendent's
duties to warn workmen and thus give them a chance to decide for
themselves; he is to decide whether it is safe or not, and then either
send them in or keep them out. There is no answer to the question
as to whether or not the order was a negligent one.
A. H. MacNeill, K.C, for respondent: Employers are bound to
warn their workmen when they are sent into a dangeous place. The
superintendent was a young man and he wanted to make a reputation
by getting the mine out .of its dangerous condition, and in consequence was reckless. That there is a duty to warn, see Farrant v.
Barnes (1862), 11 C B. N. S. 553; section 3 of the Employers' Liability Act; Saxton v. Hawksworth (1872), 26 L. T. N. S. 851; Beven,
746; Aitken v. Newport Slipway Dry Dock (1887), 3 T. L. R. 427;
Osborne v. Jackson (1883), 11 Q. B. D. 619; Smith v. Baker & Sons
(1891), A. C 325 at p. 338, judgment of Lord Halsbury; Davis v.
England and Curtis (1864), 33 L. J., Q. B. 321; Roberts v. Smith
(1857), 26 L. J., Ex. 319 and Cowley v. Mayor, &c, of Sunderland
(1861), 6 H. & NT. 565.
Davis, replied.
Cur. adv. vult.
16th June. 1903.
Hunter, C J.:—I think the appeal ought to be dismissed, and
that there is nothing to be gained by sending the case to another
jury. The evidence clearly shews that the plaintiff was put to work
in a place where there was obviously imminent danger that he would
be either killed or injured by falling rock. The cave-in, which the
superintendent knew had begun several hours before he put the plaintiff to work, occurred an hour and a half afterwards, and the circumstances clearly raised a duty on his part to tell the plaintiff the
nature of the risk, so that he would have an opportunity of saying
| whether or not he would take it.
In my opinion, the law is too clear for argument that the master
cannot expose his servant to an obvious danger which is unknown to
the latter, and which is of a kind not necessarily involved in the
employment without warning him beforehand of its nature, and it
i is, perhaps, needless to add that the servant's life has a higher claim
to preservation than the master's property. 56
June 16.
Full Court.
Drake, J.
Drake, J.:—This is an action under the Employers' Liability
Act, the claim under the common law having been abandoned by the
The facts are the plaintiff was working in a floor above the 600
foot level; the object was to bring the dirt which had accumulated
above the 600 foot level down so as to make a solid foundation, and
relieve the pressure on the timbering of the mine; there were thirteen
floors above the 600 foot level, and the plaintiff was engaged in blasting above this level. While so doing, the floor on which he was
working gave way and precipitated him below, whereby he was injured. The only point which Mr. Davis, for the defendants, argued,
was whether the defendants could be held responsible without shewing that, there was negligent superintendence in allowing the mine
to get into a dangerous condition, which includes negligent timbering, and whether Dunkle's order, who was superintending the plaintiff's operations, was negligent in ordering the plaintiff to do the work
he did. The blasting which was done was not the cause of the accident. The jury found that Dunkle did not advise the plaintiff when
he gave the order of the probable danger existing. Mr. Davis' contention is that Dunkle could not leave the question of danger or no
danger to the workmen; he must take the responsibility on himself,
and he should refuse to send the men in where there was danger; if
he knew there was danger and then sent them in, he gave a negligent
order. The question is, was the order Dunkle gave a proper order
or not ? If it was an improper order the defendants are liable. The
facts shew that there was evidence of great pressure in the timbering,
and the previous shift considered the work dangerous from fear of a
The plaintiff himself made a careful examination of a portion of
the timber and saw signs of pressure; Dunkle also made examination,
and after that he told the men to go on with the work, and remained
with them looking after them. The reasonable deduction is that
Dunkle did not think there was any immediate danger, for it
is not to be presumed that Dunkle, who was a competent
man, would run a risk which caused his death as well as
injury to others. This brings us to the question, whether it is
the duty of a superintendent to notify the employees of any
special danger; this involves the question of whether there was any
special danger beyond the ordinary risk of a miner's employment.
Dunkle thought there was none, at least that is the presumption,
because he placed himself in such a position that any cave-in
must have injured him if it took place. The cave-in occurred
much sooner than was anticipated. The plaintiff obeyed the order
to go to work at the place where the accident occurred, and Dunkle O.C.BASS.
was the person to whose orders he was to conform. Such being the
case, although Dunkle niight have committed an error in judgment,
the company will be liable for an accident under section 3 of the
Employers' Liability Act, if it isi caused by some negligence of a
person to whose orders the plaintiff is bound to conform, or by reason
of any defect in the condition or arrangement of the plant, or by
reason of a defect in the construction of any creation erected by or
for the employer. Was there negligence in Dunkle giving .the order
to the plaintiff? Dunkle had satisfied himself there was danger of
a cave-in. Such being the case, he should have warned the plaintiff.
The evidence discloses that a great pressure was imposed on the timbering of the mine, so that the defendants thought it absolutely
necessary to put more timbers to prevent a collapse; the mine was
in reality dangerous owing to this pressure on the timber sj, which
were getting out of plumb. The defect was being remedied at the
time of the accident.
In this case the jury have found that Dunkle was negligent because he did not advise the plaintiff of the probable danger; and they
further find there was no defect in the construction of the scaffold
and other erections, or in the material used. The jury having found
negligence, not because Dunkle gave a negligent order, but because
he did not advise the plaintiff of the probable danger, I think
whether the order given was with a knowledge of the danger or not is
not the question. I will suppose Dunkle thought there was no
serious danger, but he was mistaken, and the plaintiff was bound to
conform to his directions or lose his job. Under these circumstances,
the plaintiff was doing that which he was ordered to do when the
accident occurred, and he is, in my opinion, entitled to held his verdict and the appeal should be dismissed.
June 16.
Full Court.
Drake, J.
Martin, J.:—A further consideration of this case confirms the Martin, j.,
opinion I formed during the argument, which was, that seeing it dissentms«
clearly appears by the evidence that the nature of the accident was
such that after the plaintiff was ordered to go in and blast where he
did a warning of the pending danger would have been useless to
him, because by no additional caution or alertness could he have
protected himself from it, therefore, in view of the other findings, the
only remaining question was, and still is, was the order a negligent
one under the circumstances? Until that question is answered no
progress can be made in the determination of the real issue herein,
nevertheless there was no finding thereon though much evidence was
directed to it. Where the circumstances are such that a warning
given after an order would enable the workman to avert an accident
or even lessen its consequences, it would be negligent not to give it,
but that is not the present case. 58
June 16.
Full Court.
Martin, .1.,
It is plain that an employer cannot escape liability for the consequences of an improper order of his foreman directing workmen to
go into a place of known danger merely by the foreman adding,
after giving the order, that there was danger there. In such case the
mind of the workman would be oppressed by the fear of probable
dismissal for disobedience, and also, most likely, fired by a spirit of
bravado because of the disinclination of being laid open to a charge
of cowardice.
In the case at bar, what must be determined by the jury is, was
the foreman in the exercise of the reasonable judgment of a competent man justified, under all the circumstances, in giving the
order? That is the basis of this whole action, and the only point
meriting consideration on this appeal. The learned trial Judge instructed the jury on. the very point, but there is so far no finding
on it. Consequently there should, I think, be a new trial, the costs
cf which and of the former trial will abide the event, and this appeal
should be allowed with costs.
Appeal dismissed, Martin, J., dissenting.
Note.—For some other cases on accidents in mines: see note to Stamer v.
Hall Mines (1899), 1 M. M. C. 314; and McEelvey v. Le Boi No. 2, Ltd.,
ante, p. 13; Hastings v. Le Boi, No. 2, post, p. 81; and Hosking v. Le Boi,
No. 2, Ltd., post, p. 100; Leadbeater v. Crow's Nest Pass Coal Co., post, p.
Full Court.
Le Roi Co.  No. 2, Ltd., v. Northport Smelting & Refining    jUne22.
Co., Ltd., and The Le Roi Mining Co., Ltd.
(10 B. c. 138.)
Smelting Contract — Sampling Ores — Automatic or Hand Sampling—Mine-
Owner's Bepresentative at Smelter—Authority of—Ores Improperly Sampled
—Method of Estimating Values of—Principal and Agent.
A contract between mine owners and smelter owners provided inter alia that
the ores supplied by the former to the latter should be sampled within one
week after shipment. The evidence shewed that " automatic " or machine
sampling had displaced the old method of " grab " or " shovel" sampling
and had been in vogue for  about twenty years:—
Held, (Walkem, J., dissenting), that the contract permitted either mode of
sampling so long as it was so done that the true value of the ore was arrived  at.
Per Curiam :—A mine owner's representative at a smelter for the purpose of
watching the weighing and sampling of ores so that the mine owner may be
satisfied as to the.correctness of the weight and sampling, has no authority
to consent to a method of sampling not allowed by the contract.
Where the smelter returns of ore of average character sampled either negligently or in a manner not contemplated by contract, shew a value below
the average, the probable value of the ore will be estimated by the Court
by taking the average value of a certain number of lots immediately before
and after the lots in dispute.
Decision of  Hunter,  C.J., reversed  in part.
This was an appeal from a judgment of Hunter, C.J., delivered   Statement-
5th February, 1903, ordering that the plaintiffs should recover from
the defendants, the Smelting Company, the sum of $3,974.70 and
The action was tried at Rossland in October, 1902.
The facts appear from the judgments-.
/. A. Macdonald, for plaintiffs. Argument.
Hamilton, for defendants.
5th February, 1903.
Hunter, C J.:—On the 16th of August, 1901, a contract was   Judgment
drawn up between the plaintiffs and the two defendants for the smelt- hunteiTc. J.
ing of the plaintiffs' ores at the smelter of the defendant company
at Northport.   The contract was drawn up by Bernard MacDonald,
who was at that time general manager of all three  companies,  but
through inadvertence, as he says, was not executed, on behalf of the 60
Hunter, C.J
1903.       Le Roi Mining Company, and they were therefore dismissed out of
June22.    q^q suit as the action is, brought on the contract.    Notwithstanding
Full Court, this, they  remain  the  real  defendants in interest as they are the
owners   of 999,995   out of   the   1,000,000   shares cf the Northport
Smelting Company.
The contract provides, inter alia, for the' sale of the output of the
plaintiffs' mines for two years, to the Smelting Company at certain
figures for the constituent metals therein named,, after deducting $6
per ten for freight and treatment, that weekly statements shall be
furnished by the smelter shewing the weight and assays and amounts
due to the mine, and provides for payment to be made within three
days from date of statement.    It further provides as follows:
" That the ores shall be sampled within one week from date of shipment
from the mine of the party of the second part. It is understood and agreed
that the party of the second part (the mine), through its representative, shall
have access at all times to the smelter of the parties of the first part, and
the weighing and sampling of the ores to the end that they may satisfy themselves as to the correctness of the weights and sampling, and that they shall
be allowed a control sample for assay purposes. A sample shall also be taken
by the parties of the first part so that in the event of the assays made by the
parties hereto not agreeing, an umpire assay can be made by a party mutually
agreeable to the parties hereto. A final settlement shall be made by the
parties of the first part on the umpire assay so determined; the cost of such
umpire assay to be borne by the party whose assay is the farthest away from
assays as shewn by said umpire."
The plaintiffs allege that in May last certain car-loads of ore
composing lots 295, 296 and 297, were sampled in a manner net
authorized or contemplated by the contract, that is to say, they were
shovel or grab sampled without their consent or permission instead
of being automatically sampled, with the result that they have been
allowed an amount far short of their real value. While the defendants admit that part of the ore wasi so sampled, they say that it
was done with the assent of the plaintiffs' representative, and contend that in any event the contract does not say that only automatic
or mechanical sampling shall be resorted to.
First, as to the meaning of the contract. Taylor on Evidence, at
p. 761, says:
" It is, however, also a principle that, parol evidence may in all cases of
doubt be adduced, to explain the written instrument; or, in other words, to
enable the Court to discover the meaning of the terms employed, and to apply
them to the facts. Such a - doubt' as is here meant may arise from one or
both of the following causes; either the language of the instrument may be
unintelligible to the Court, or at least, be susceptible of two or more meanings," etc.
It was practically conceded on all hands that the old method of
grab or shovel sampling has been displaced for about twenty years by
automatic or mechanical sampling, and that every properly equipped
smelter is provided with one cr more mechanical samplers*.    More- n.]  LE ROI CO. NO. 2, v. NORTHPORT SMELTING & REFINING CO.
over, MacDonald, who drew up the contract and executed it on behalf     T1903-
of both signatories, and who was, as already sitated, the general       	
manager of all the companies concerned, testified that he had in his ?FuLL Court.
mind the mode in general use and which was in use at the smelter.
Therefore, I have no difficulty in coming to the conclusion that this
contract was entered into on the footing that the ores should be
automatically or mechanically sampled.
But the defendants say that even if this is so, Luce, the plaintiffs'
representative, had authority to, and did, sanction the shovel sampling
of the ere in question. I do not think so. All that Luce had
authority to do under this contract was to watch the weighing and
sampling, nor do I see anything in the contract itself which would
warrant him in consenting to the mode of sampling being altered,
and so far as any instructions to him are concerned, MacDonald
and Thompson both testified that he had no authority to permit any
deviation from the contract without first obtaining their instructions to do sc. It cannot reasonably be held to have been in the
minds of the-parties that the smelter could use any mode of sampling, no matter how perfunctory it might be, to suit its pleasure or
convenience, subject only to the chances of it being discovered and
objected to by the mine's representative, both because the ore was bek>w,nt
being smelted day and night, and of course the representative could Hunter, C.J.
not always be on hand, and because it is beyond controversy that to
properly sample ore by the grab or shovel method is much more
tedious and costly than by the mechanical method. Nor can I find as
a fact that Luce did authorize the sampling complained of. He
himself says that on the 21st of May he discovered that ore was
being taken to the high line bunkers and thence to the roast heaps
without being passed through the crusher to which the automatic
sampler was attached; that he hunted up Cray, the. yard foreman,
and said to him, "I see you are running some No. 2 (i.e., plaintiffs'
ore) to the high line," to which Gray answered " Yes, the railroad
company and the mines were hollering for cars and I couldn't see
any other way to move them except to run part of it up here," that
he (Luce) then said "I don't like this at all. I'm afraid it will not
be satisfactory;" that Gray replied, "I don't know; I think we are
getting a good sample of it, aren't we ?" to which he said, " Possibly,
so far as a grab sample goes, and as it has been done, I suppose it
can't be helped now, and I suppose I will have to make the best
of it, but I am afraid there may be trouble about it," and that he
reported the matter by telephone to Thompson, who came down the
next day and prohibited any more ore from being smelted unless put
through the crusher in the usual way.
Some time before this, in February, Thompson had given instructions to Luce to allow portions of a lot or lots, but not entire lots, to 62
June 21
go through to the furnace without crushing when it became absolutely necessary by reason of the crusher getting out of order, and to
see that a proper sample was taken, but obviously this would not
warrant the smelter in adopting this course of their own motion,
especially in a wholesale way, and without having secured Luce's
permission, which it was admitted was not done' on this occasion,
nor would it warrant the smelter in running the ore direct from the
bunkers to the roast heaps, which was admittedly done with a large
portion of the ores in question. Luce's evidence is in part corroborated by Szontagh, the smelter manager, aa he says that Luce said
that " under the circumstances the lots could' not have been sampled
in any different way," that is that Luce conceded that, on account of
the congestion in the yards and the disabled crusher, they could only
be shovel sampled. But I do not see how this can be construed into
a ratification by Luce of the perfunctory way in which the. shovel
sampling, as shewn by the evidence, was carried out, even if he had
power to ratify, which I think it is clear he had not. He is also
corroborated by Gray, the yard foreman, who admits that Luce did
not know about the ore being taken up to the high line until he found
part of the ore run out on the roast heaps, and he does not dispute
that Luce said he was afraid it would not be satisfactory. Crist,
q j the sampler, also corroborates Luce, because he says he remembers
Luce saying to him that "this method was not satisfactory to his
I, therefore, find the facts to be that Luce was not asked for permission to shovel or grab sample any of these ores; that he discovered that this was being done only when it was too late to stop
operations, and that he warned the smelter that this method was not
likely to be accepted as satisfactory. I find further, that his author-
- ity extended only so far as to give permission when absolutely necessary by reason of the crusher being out of order, to shovel sample
portions of lots, and not entire lots, and to take such portions to the
furnaces to prevent them from " freezing," but not to put them on
the roast heaps.
With respect to the lots themselves: according to the defendants'
contention lot 295 was mechanically sampled, because it appears from
Gray's yard book that this lot was all sent to the crusher. But it
does not follow from this that it was all mechanically sampled, as
it was admitted that although the sampler had been connected with
the Blake crusher, the Comet crusher which was commonly used
having broken down, the Blake crusher could not receive any piece of
ore that, was larger than eight inches in diameter, so that part of the
coarser ore was not sent through the sampler, but was hand sampled
if  sampled  at  all, and it  was  proved to  my satisfaction that the ii.]   LE ROI CO. NO. 2, v. NORTHPORT SMELTING & REFINING CO.
" coarse " ore of this mine ordinarily carries higher values than the
r* fines."
If, therefore, I am right in concluding that the plaintiffs' ores
could only be shovel or grab sampled under this contract by express
permission to be got from them or their representative, Luce, then
there was an unauthorized mode of sampling adopted in connection
with a portion of this lot, and therefore the true contract value of
this lot has not been ascertained or accounted for.
As for lots 296 and 297, the defendants practically admit that
these were not automatically sampled, and that parts of them were
put on the roast heaps without the knowledge or permission of the
plaintiffs or their representative.
The defendants sought to prove that between January 19th and
March 6th, portions of a number of lots were hand sampled without objection by the plaintiffs, but even if this were so, this goes only
to corroborate the contention of the plaintiffs, which is that the permission to hand sample, when given, extended only to portions of lots,
and not to entire lots, and in the next place, even if no express permission was given in these instances the plaintiffs may have considered the results sufficiently fair so as not to make it worth while
to object to the returns in respect of these lots. But even if the
contract could be construed so as to allow shovel or grab sampling,
I think it cannot be gainsaid that on the evidence the sampling of
these lots was of a very perfunctory and careless character. It was
shewn in the case of lots 296 and 297 that the proportion taken was
not more than (three) pounds out of 1,000 pounds, indeed it was
generally less, and that the larger pieces, which carried the higher
values, formed no portion of that set aside for the sample, and the
same thing occurred, although perhaps in a lesser degree, with that
part of lot 295 which did not go through the sampler, assuming that
what did not go through the sampler was sampled at all, as to which
I feel very much doubt. It was also shewn as much by the candid
evidence of the defendants' manager, McKenzie, as by any other,
that the mode of sampling employed was far different from the standard mode in use in the days of sampling by hand or by shovel.
My conclusion then is, even assuming that the defendants were
empowered either under the contract or by permission to use the
shovel or grab sample method (which I think they were not) that
they did not sample the plaintiffs' ores in the manner which the
plaintiffs had a right to expfect, and that it would have been a
miracle if anything like accurate results had been attained.
But Mr. Hamilton seeks to lessen the liability of the defendants
by contending that there is no room for complaint as to one-half of
the ore, as it was composed of " fines," and that the values returned
June 22.
Full Court.
Hunter, C.J 64 MARTIN'S   MINING   CASES. [vol.
1903.       might be adopted as the,true value of the "fines," and because some
June 22<    of the ore was automatically sampled.    It seems to me that this is
Full Court, obviously fallacious as a careless and insufficient sampling would
clearly be just as unreliable in the case of the " fines" as of the
" coarse."
Then what method should I adopt in order to estimate the
probable value of this ore? I think that the fairest and most equitable way is to take the average value of say 10 lots immediately
before and after the lots in question, especially as it has been sworn
by the plaintiffs that so far as they know the ore was of the same
character as that shipped immediately before and after, and no good
reason has been suggested for supposing that there was any unusual
difference, and it is quite impossible to suppose that the plaintiffs
could have foreseen the breakdown, and taking it for granted that
the ore would be improperly sampled, knowingly shipped practically
worthless ore.
Then taking such average I find it to be $8.58 net per ton, so
that the account would stand thus:
Lot 295    219.888 tons at $8.58  $1,881.69
Less paid on account      508.75
Hunter, C.J. Bal. due  $1,372.84
Lot 296    226.155 tons at $8.58 $1,940.41
. Less paid on account       266.86
Bal. due    $1,673.55
Lot 297    215.574 tons at $8.58 $1,833.62
Less paid on account      905.41
Bal. due    $  928.21
Total amount due  $3,974.60
I think the plaintiffs are entitled to judgment for this amount
with costs, subject to the correction of any errors in the calculation.
Appeal. The defendants appealed and the appeal was argued at Victoria
on the 4th and 5th of June, 1903, before Walkem, Drake and
Irving, JJ.
Argument. Hamilton, for appellant: Lot 295 was sampled automatically;
the Chief Justice in finding to the contrary confounded the two
crushers, as the Blake crusher could receive larger pieces of ore than
the Comet.
The contract does not require automatic sampling; under it the
samples may be taken in any way; MacDonald's evidence of what il] LEROI CO. No.
sort of sampling he had in his mind at the time the contract was
entered into should not have been admitted. A crusher was broken
down and it became necessary to hand sample some of the ore; this
had been done on previous occasions without objection: see Harrison
v. Barton (1861), 30 L. J., Ch. 213. In any event, Luce, the plaintiffs' representative, had authority to sanction and did sanction hand
The measure of damages should be the difference between the
value of the coarse and fine ores, and as half was fine and half coarse
and the fine was satisfactorily sampled, the value of only half of the
lots has to be settled.
J. A. Macdonald, for respondents!: Extrinsic evidence is admissible to shew that the contract was made subject to the usage or
custom of the business of smelting: see Leake on Contracts, 4th Ed.,
127; automatic sampling has been in vogue for twenty years; it was
what all the parties expected would be used and that on which we
have a right to insist. Luce was not a skilled man; his duties were
mechanical, and he had no authority to consent to any deviation,
from the contract; at any rate he did not consent to the hand
sampling; before adopting another method of sampling, Luce, or the
plaintiffs, should have been notified. The defendants cannot escape
liability for their wrongdoing by saying there was a breakdown. He
referred to Jordon v. Money (1854), 5 H. L. Cas. 185, and Chadwick
v. Manning (1896), A. C 31.
As to measure of damages, the rule should be that where a
smelting company improperly samples ores it should be presumed
as against the company that the ores improperly sampled were of
the highest value: see Armory v. Delamirie (1821), 1 Str. 505;
Clunnes v. Pezzey (1807), 1 Camp. 8; and Duke of Leeds v. Earl of
Amherst (1850), 20 Beav. 239.
As to lot 295 there is doubt as to how it was sampled, and in
j estimating the values of lots 296 and 297 the value of 295 should
not be taken as a basis of value.
June 22.
Full Court.
Walkem, J.
Hamilton, replied.
Cur. adv. vult.
22nd June, 1903.
Walkem, J.:—The Le Roi Company No. 1 has been dismissed
from the action by the learned Chief Justice.
This is an appeal by the Smelting Company from his decision.
I agree with him that the ore sent to the Smelting Company was
to be automatically sampled, and not hand sampled. According to
the evidence, the smelter was a " custom smelter " and its attraction
VOL. II. M.M.C- 66
Tune 22
Full Cour
Walkem, «
for business was its automatic process for sampling ore instead of
the process of hand sampling, which had been discarded for. more
■ than twenty years, as the new process was more expeditious and more
productive to the owner of the ore. The written agreement between
the parties to the action does not specify which kind of sampling was
to be adopted, and this has occasioned the present litigation.
As it happens, the Smelting Company's crusher broke down during
the process of crushing. It has, therefore, been contended that as
no special process of sampling has been provided for, the Smelting
Company had the right to hand sample the plaintiff company's ores
as it did, and apparently from the figures before us1, at a loss to the
plaintiff company..
But, it must be borne in mind that the Smelting Company held
itself out to the mining community as being a company that would
give its customers the most profitable results by means of automatic
Usage in smelting is subject to the same rule that applies to usage
in any other business. On this point Mr. Macdonald has referred us
to the following passage in Leake on Contracts, page 127:
" Extrinsic evidence
made subject to a usagi
relates, impliedly bindi
conditions not mention*
and partly in writing,
of the terms introduce
contract. . . . The
or to vary its effect, n
sible for that purpose."    ....
Consequently, if the Smelting Company had intended to resort
to hand sampling in case of an accident to the company's machinery,
it should have had a provision inserted in the contract which would
have enabled it to do so.
This, is, however, immaterial, as I think my brother Drake's
figures with respect to what the plaintiff company is entitled to are,
for the reasons he gives, correct.
The appeal should be dismissed with costs.
: is admissible to shew that a contract in writing was
s or custom of the trade or business to which the contract
ig the parties to certain usual or customary terms and
d in the writing. The contract in truth is partly express
partly implied or understood and unwritten. The effect
1 by usage is the same as if they were written in the
intention of the parties to exclude a usage of trade,
ust appear in the writing; parol evidence is not admis-
ly question in dispute herein is one of fact.
*ing to the defendant company broke down,
pled the ores in lots 296 and 297 by hand
; that is, they took a sample either by shovelv
nail ore car, which contained about three-
quarters of a ton. The ore was then crushed, not automatically, and
a sample taken, the result of which proceeding is that the- fine or
small ore is assayed, and not the lumps over three inches in diameter. I
Drake, J.-.—The
The large crusher bel
and the defendants s
instead of automatica
or hand out of each G, B.A.00.
ii.] LE ROI CO. No.
The fine ores are not so rich in mineral as the larger pieces, which
are all hand picked at the mine, and in consequence the general
average is reduced. It was quite possible to take the larger pieces F
and break them up by hand and then put them through the crusher,
but this was not done.
It is admitted by Luce, the representative of the mine, that the
fine ores were not improperly sampled, but the question is did this
mode of sampling give a return equal to the return given by the
automatic crusher? The evidence is clear that it did not. MacDonald says, at p. 32, that "ore sampled in this way would not be
a representative sample." It would be impracticable to get a good
sample unless all the coarse ore was broken up, and this apparently
was not done.
The defendants contend that under the contract made on the 16th
of August, 1901, the term "sampling" includes any mode of sampling by which the value of the ore is arrived at, and is not limited to
sampling automatically; and I think that is the true meaning of the
contract.    But if sampling is done otherwise than automatically, it
- should be done in such a manner as to give a similar or nearly
similar result. The cars 296 and 297 shew a great falling off in
values—$8.30 and $10.20 as against $14.20, the previous car 294,
and $15.99 for car 298.
With regard to car 295, the evidence is conflicting whether it
went to the crusher or not. Luce, whose duty it was to watch on
behalf of the plaintiffs, was not apparently attending to his duties,
j and is unable to say what became of this lot, except what somebody
told him. According to the yard book kept at the smelter, lot 295
went to the crusher; so did part of 296 and 297, but there is no evid-
June 22.
ull Court.
Drake, J.
from the automatic sampler, or from the shovel or hand samples; and
ir my opinion, as the defendants1 had the control of the sampling,
and could have divided it, if they so pleased, the learned Chief
Justice was justified in estimating the damage to the plaintiffs based
on average returns, although it is not improbable that such an estimate might give an excess to the damage sustained by the plaintiffs.
' This is unavoidable, as it was not possible to make a check assay from
other portions of the j
analysis of the mode in
should be estimated, has 1
that lots 296 and 297 wi
here is evidence from t]
pies.    Mr.   Hamilton,   in   his   careful
eh, from his* point of view, the damage
sight of the fact that there is no evidence
assayed from other than hand samples.
ard book that some portion of these lots
ere crushed, and he therefrom deduces the fact that it is only the
difference between the amounts that were automatically sampled and
hand-sampled that can be looked at to ascertain the shortage.   As to
lot   296,   consisting   of   141.346   tons,   84,809   were   automatically 68
June 22.
Full Couri
Drake, J.
sampled; and as to lot 297, half hand-sampled and half automatically.
There ought in such case to be produced the assays from each class
of samples. This was not done, and there is therefore no criterion
of actual values. In my view I think I should give $14 a ton for
296 and 297, and as regards 295, the evidence I think is sufficient
to shew that this lot went to the crusher in the ordinary way, and
although the proceeds are low, I do not think that reason sufficient
to overweigh the evidence produced by the yard book, which appears
to have been kept in the ordinary way, and Luce, who apparently
was not in the smelter at the time, cannot dispute the evidence
The result, in. my opinion, varies but little from the amount which
the   Chief   Justice   has arrived  at.    He has added   $8.58   to  both
lots, although lot 296 realized $8.30, while 297 realized $10.20.   This,
would make the return for lot 296, $16.80,  and 297, $18.78.    I
think the damages should be reduced to $2,550^98.
Irving, J.:—From the evidence, in particular from the entries
in the yard book, it appears to me to be beyond question that lot
295 was passed through the crusher, so that we only have lots 296
and 297 to deal with.
In my opinion, the contract permitted samples to be selected in
either way, but there was an implied term that by whichever way it
was to be done, they were to be selected honestly and fairly, and a
reasonable opportunity given the Le Roi Company to be present if
not selected automatically. I agree with the Chief Justice that the
defendants did not. sample lots 296 and 297 in the manner in which;
the plaintiffs had a right to expect. I also agree with the Chief
Justice that there was a breach on the part of the defendants of the
concession granted by the plaintiffs that the defendants might (in
the absence of the plaintiffsi' officer) take ore when actually necessary
to prevent the furnaces from freezing.
Lot 296 consisted of eight cars, of which five cars were hand
sampled and three cars automatically sampled; the total tonnage
being 226 tons. Lot 297 consisted of eight cars, of which four were
hand sampled and four automatically; the total tonnage being 215
tons. The plaintiffs contended that the proper system to be followed
in adjusting the prices to be paid for these lots is to deduct the
amount paid by the Smelter Company from the average values on
all shipments made during the month of May, that is to say, $15.05"
per ton. The Chief Justice thought it fairer to confine the average
to the ten lots crushed automatically immediately before and imme- j
diately after the lots in question. The amount payable by the
plaintiffs to the defendants would be, under the plaintiffs' contention, ii.] LEROI CO. No. 2 v. NORTHPORT SMELTING & REFINING CO. 69
$2,825.38, according to the system approved by the Chief Justice,       1903.
$2,601.    But in selecting' his method the learned Chief Justice had     ' ^!_
not accepted as a fact that lot 295 had been proved, by automatic Full Court,
sampling, to be only of the value of $9.65 per ton.    I think that any   Irving, J.
method of striking an average of value in which that drop in value is
not considered, would be misleading.    I have come to the conclusion
that by adding the values of say two undisputed lots immediately
before and after lot 295 to the known value of that lot, and dividing
by five, would not be an unfair estimate of the probable value of the
ore in lots 296 and 297.
Taking that average, which, is $8.75, the account would stand
thus :
Lot 296—226.155 tons at $8.75   $1,978.85
Less paid on account      266.S6
Lot 297—215.574 tons at $8.75 $1,886.27
Less paid on account        905.41
Total amount due to adjust  $2,692.85
This I see turns out more advantageous to the plaintiffs than the
method adopted by the Chief Justice, but nevertheless, I think the
method is as fair a system as can be devised. The defendants cannot
complain, for in my opinion, the rule laid down in Armory v. Dela-
mirie (1821), 1 ;Str. 505; Clunnes v. Pezzey (1807), 1 Camp. 8; and
Hammersmith, etc., Railway Co. v. Brand (1869), L. R. 4 H. L. 171
at p. 224, is applicable to this case.
I think the judgment should be reduced as I have indicated to
2,692.85, but for the sake of uniformity I shall say $2,550.98.   As
the defendants have been successful to a certain extent, I think there
should be no costs of this appeal to either side.
Appeal dismissed. 70
a   }90i'  -./» Attorney-General v. Wellington Colliery Co.
September 16.
Full~Colrt. (10 B. C. 397.)
Coal Mines Regulation Act—Bule Prohibiting Employment of Chinamen Below Ground—Colliery Company Infringing Bule—Injunction to Bestrain—
Held, on a motion by the Attorney-General for an injunction to restrain a
colliery company from employing Chinamen below ground in contravention
of r. 34, section 82 of the Coal Mines Reg. Act, that the matter was not one
affecting the public, or likely to affect it to such an extent as to call for the
granting thereof.
Statement. Motion for an injunction to restrain the defendant company
from employing Chinamen below ground at their mines at Union.
By the Coal Mines Regulation Act Further Amendment Act, 1903
(ch. 17, sec. 2), rule 34 of sec. 82 of ch. 138 R. S. B. C was repealed, and the following substituted therefor:
" No Chinaman or person unable to speak English shall be appointed to or
shall occupy/ any position of trust or responsibility in or about a mine subject to this Act, whereby through his ignorance, carelessness or negligence
he might endanger the life or limb of any person employed in or about a
mine, viz.: As banksman, onsetter, signalman, brakesman, pointsman, fur-
. naceman, engineer, or be employed below ground or at the windlass of a sinking-pit."
On the return of the motion the affidavit of Thomas Morgan,
Inspector of Coal Mines, was read, in which he deposed as follows:
(1) and (2) That he had been inspector since 1898, and that
one of his duties1 was to investigate all mine accidents on Vancouver
" (3) At the time I received the above mentioned appointment
I had had twenty-nine years experience as a miner in the coal mines
at Nanaimo, in this Province.
" (4) The defendant company at the present time is operating
three coal mines at tJnion aforesaid, known respectively as No. 4
Slope, No. 5 Shaft and No. 6 Shaft.
" (5)  The defendant company at the present time employs below I
ground in No. 4 Slope, 95 white men and 92 Chinamen; in No. 5
Shaft, 36 white men and 86 Chinamen; in No. 6 Shaft, 6 white men |
and 43 Chinamen.
" (6) The defendant company always employ below ground in]
No. 6 Shaft more Chinamen than white men. n.]  ATTORNEY-GENERAL v. WELLINGTON COLLIERY CO.
" (7) On 15th July, 1903, an explosion occurred in No  6 Shaft,       1903.
resulting in the death of 16 Chinamen; the cause of the explosion he September16,
was unable to determine, but he was inclined to think it must be Full Court.
attributed to the negligence or ignorance of the Chinese miners.
" (8) On 17th April, 1879, an explosion of gas occurred in the
Wellington Colliery, by which 7 white men and 4 Chinamen lost
their lives. An inquest was held upon the bodies recovered, and the
verdict of the coroner's jury was that the explosion was caused by a
Chinaman passing towards the face of No. 10 level. If the accident
was caused in this way, in my opinion, it was due to the gross
ignorance or carelessness of the said Chinaman.
"(9) My experience gained as inspector and miner has led me
to the firm conviction that the employment of Chinese below ground
in coal mines endangers in a high degree the lives and limbs of the
other miners employed in such mines. While many Chinese miners
can speak some English, one never can be sure that, at the time of
danger, they will clearly understand orders given to them, which
need to be exactly carried out in order to avert a catastrophe.
* (10) My experience also is that Chinese miners, as a class,
stubbornly adhere to their own ways of working in coal mines notwithstanding all efforts to convince them of their danger, of which I
will give same samples:"
(a) In 1897, a Chinaman was killed in No. 4 Slope by the cars,
he persisting in walking between the rails.
(b) In 1902, a Chinaman was killed in No. 5 Shaft by stupidly
knocking away a post supporting a rock overhead.
• (c) In 1900, while a white fireman in No. 6 Shaft was putting
up some brattice which had been knocked down by a shot in a stall,
a Chinaman, through ignorance or carelessness, took his light to the
return side of the brattice where gas had accumulated, the result
being an explosion, by which both fireman and Chinaman were
(d) In 1902, in No. 5 Shaft, a Chinaman although warned not
to use a naked light in a certain place, did so, with the result that
he was so badly burned that he died.
(11) and (12) After the passing of the Act he notified (on 18th
July) the company to cease employing Chinamen below ground, but
notwithstanding his notice the company persisted in so employing
(13) On an information laid by him against the company's manager, charging him with employing Chinamen below ground contrary
to the Act, the manager was convicted and fined, but notwithstanding said conviction the company persists in employing in its mines
the number of Chinamen mentioned in paragraph 5. 72
1903. " (14)  In my opinion, based upon my experience as inspector and
p. ember 16. -naiIiej-^ unless the defendant company is restrained from employing
Full Court.  Chinamen below ground in said mines, there is imminent danger of
accidents occurring which may cause the loss of many lives."
The motion was argued at Victoria on the 16th of September,
1903, before Irving, J.
A. E. McPhillips, Attorney-General (D. M. Rogers, with him),
in support of the motion: The rule is intended for the protection of
life and enacts that a Chinaman per se, should not be employed below
ground in coal mines; the Legislature—and it is the paramount
authority in this case—has undertaken to say that Chinamen are not
to be employed below ground palpably for the reason that they are
dangerous workmen as such—from their very nationality they are
dangerous workmen—and hence any analysis as to whether they are
as good miners as white men is not a matter for investigation.
[Irving, J.:—You have an injunction from the highest Court in
the land now standing in the books forbidding these people from
employing Chinamen underground. When you have got that, why do
you come to this Court for a further injunction?]
Because of the non-respect and non-observance of this defendant
company of the law of the land.
[Irving, J.:—But the highest Court in the land has provided a
remedy, and a penalty for refusing to obey their mandate; there may
be an indictment, fine and imprisonment.]
But I have a right as Attorney-General to come to this Court and
ask the Court to see that the law is observed.
[Irving, J.:—It is laid down in the case of the Emperor of
Austria v. Day and Kossuth (1861), 3 De G. F. & J. 217, that a
Court will not grant an injunction to enforce moral obligations, or
to prevent people from breaking the criminal law.]
There is no evidence of the infraction of the criminal law here;
this is a law passed which is passed within the rights that exist in
this Province with regard to property and civil rights. We have
passed a certain law or regulation, which we say must be observed;
and I submit to your Lordship that when my learned friend's clients
are entitled to mine coal in this Province, they are only entitled to
do so under the laws of this Province; and if they transcend those
laws, transgress them in any respect, I am entitled to come here in
the public interest and ask that they should be compelled to live
within those laws: see Kerr on Injunctions, 531, and Cooper v.
Whittingham (1880), 15 Ch. D. 501 at p. 506.
[Irving, J.:—That judgment speaks of protecting a right: does
it sav what kind of a right?! II.]  ATTORNEY-GENERAL v. WELLINGTON COLLIERY CO.
Well, a right of the public; the company employs both white men       1903.
and Chinamen and the protection to the white men is that no China-   epfcem er b"
men shall be employed underground. Full Court.
[Irving, J.:—That is not a protection to the public; it is designed
for the prevention of accident and the protection of those persons
who go down to work there.]
It is a protection for a portion of the public; I am not confined
necessarily to the whole of the public: see Attorney-General v. London
and North-Western Railway (1899), 1 Q. B. 72. Surely somebody
has a right to protect the miners in such a case as this; they could
come here themselves and ask the Court to restrain the company;
I come here in equally as strong a position if not stronger.
[Irving, J.:—I think probably stronger. I do not think any Court
in the world would listen to an employee of a company asking for an
injunction to restrain the company from working their coal with
Chinamen. And the reason of it is just what I have'been trying
to point out; it is not a public matter. The answer to them would
be, if you. do not like to incur the risk, you need not go there; you
have got no right nor are you compelled to go there.]
Take the case of a white miner working under contract, who finds
out that in contravention   of   the   Act   the   company is employing   Argument.
Chinamen, and thus endangering his life; he would have the right
to move to restrain the company from carrying on its operations in
such a way that he could not safely carry out his contract.
[Irving, J.:—He never would get an injunction. He would be
told at once, if you have any remedy it is in damages.]
But damages would not be the only remedy. These particular
mines are situated in the Town of Cumberland, and the effect of
an explosion might be to destroy life to a very great extent: See
Bonner v. Great Western Railway Co. (1883), 24 Ch. D. 1 at p. 8;
Mayor, &c, of Liverpool v. Chorley Water-Works Co. (1852), 2 De G.
M. & G. 852 at p. 860, and Ware v. Regent's Canal Co. (1858), 3 De
G. & J. 212, in which the Lord Chancellor at p. 228 says, "Where
there has been an excess of the powers given by an Act of Parliament,
but no injury has been occasioned to any individual, or is imminent
and of irreparable consequences, I apprehend that no one but the
Attorney-General, on behalf of the public, has a right to apply to this
Court to check the exorbitance of the party in the exercise of the
powers confided to him by the Legislatures." If a number of persons is endangered, it is an injury to the public. It is not necessary
for me to shew any actual injury to the public: see'Attorney-General
v. Shrewsbury (Kingsland) Bridge Co. (1882), 21 Ch. D. 752 at p.
754; Attorney-General v. Oxford, Worcester and Wolverhampton Rail- 74
1903. way Co. (1854), 2 W. R. 330, and Attorney-General v. Cockermouth
September 16. ^oc^ Board (1874), L. R. 18 Eq. 172, where an injunction was
Full Court, granted to restrain defendants from polluting the water of a river
because it was expressly prohibited by Act of Parliament: Attorney-
General v. Great Eastern Railway Co. (1879), 11 Ch. D. 449 and
(1880), 5 App. Cas. 443; Attorney-General v. Ely, Haddenham and
Sutton Railway Co. (1869), 4 Chy. App. 194 at p. 199, where Lord
Hatherley says, " The question is, whether what has been done has
been done in accordance with the law; if not, the Attorney-General
strictly represents the whole of the public in saying that the law
shall be observed."
[Irving, J.:—This affidavit of Mr. Morgan does not suggest any
danger to the people above ground by the employment of Chinese
underground; it does not suggest as you mentioned just now in
argument, that this mine is situated in the heart of Cumberland and
that an explosion in the mine was likely to cause an eruption which
would destroy the whole town. I think you must shew that the
public are affected. As long as your affidavit is confined to the question of employing Chinese below, your material is insufficient. I
have no doubt if you, as Attorney-General, were to come here and
make an application that parties be restrained from blasting in the
streets of, say, this city, they could be restrained, because it was
Argument    likely to cause injury to the public]
All I am obliged to shew is that there is a contravention of the
law; the company has been seized upon by the general law of the
Province as being a public company which must carry on its works
according to law; the Court has the inherent power to compel it to
stop its illegal acts; if in the labour market there should be employment for white miners who can fulfil the provisions of the law, why
should they be deprived of that right ?    This affects the public.
The right to labour is the highest form and highest class of
[Irving, J.:—I do not think that is a property at all in any
Where the Legislature says Chinamen shall not be employed
below ground surely there is the right in others to object if they are
so employed.
The decision of the Judicial Committee in Cunningham v. Tomey
Homma (1903), A. C 151, is in our favour; if the Legislature can
take away from a man the right to vote, surely it can prohibit him
from working below ground.
If the company thinks the legislation is ultra vires then it is a
matter for agitation in the Courts, but the law as it stands must be
obeyed.   He cited Stevens v. Chown (1901), 1 Ch. 894; Attorney-Gen- n.]  ATTORNEY-GENERAL v. WELLINGTON COLLIERY CO.
. eral v. Ashbome Recreation Ground Co. (1903), 1 Ch. 101, and Attor-       1903.
ney-General v. Great Eastern Railway Co. (1879), 11 Ch. D. 449, and ePtfc^J,r
particularly the judgment of Lord Justice James at p. 484 dealing KullCoust.
with the question of transgression of statute law. Irving, J.
Luxton, for the company, was not called on to argue.
Irving, J.:—In the affidavit before me there is no statement as Jud&ment-
to where this mine is situated, beyond " at Union;" there is nothing
to shew, nor is it suggested in the affidavit, that there is any danger
to the public by reason of the proximity of the mine to that settlement, or by reason of the mining operations being conducted so close
to the surface as to become a nuisance or likely to injure people in
the neighbourhood. The case rests simply on this, that a statute
prohibiting the employment of Chinese underground is being
violated. And there is a suggestion contained in the affidavit that
the lives of other people employed underground are endangered.
In granting injunctions, especially where there is a going concern, such as a colliery, the Court has to proceed carefully. It is
a very serious matter to interfere with any person's business.
There are cases over and over again where the Court has refused to
grant an injunction against a colliery on that ground. In that
sense, the public are interested in seeing that the thing is carried
on. But that does not by any manner of means make the system of
carrying on the mine a matter of public concern. Now the Attorney-
General contends that the system on which this mine is carried on is
a matter of public concern. I am not able to see that it concerns the
public in any way whatever. It is not a public question. Certainly
it is not a question affecting the public or likely to affect the public
to such an extent as to call for the allowance of an injunction—which
is a very extraordinary remedy. This Court does not grant an injunction for the purpose of enforcing moral obligations, nor for
keeping people without the range of the criminal law. There usually
must be some right—a right of property, or some right at any rate
—infringed, or likely to be infringed. The miner who is
employed in that mine has no right to come here and ask
for an injunction, because he has no right of property; he has
no proprietary right which is being infringed. The Attorney-
General is not entitled to obtain an injunction from this Court,
because there is no public right being infringed' or likely to
be infringed. The public are not concerned in this particular
matter. To use the language that is referred to in some of the cases
—the affidavit does not shew that the public interests are so damnified as to warrant the issuing of an injunction in this case. The
motion will be dismissed.
Note.—See In re The Coal Mines Regulation Act, post, p. 112. 76
October 13.
Full Court.
Woodbury Mines, Limited v. Poyntz.
(10 B. c. 181.)
Hunter, C.J. pree   joiner's   Certificate,   Expiration   of—Special   Certificate—Mineral   Act,
sec. 9 and Min. Act Amendment Act, 1901, sec. 2.
On the expiration of a free miner's certificate any mineral claim of which/
the holder thereof was the sole owner becomes open to location.
The obtaining of a special certificate under section 2 of the Mineral Act
Amendment Act, 1901, does not revive the title if in the meantime the
ground has been located as a mineral' claim.
statement. Action tried before Hunter, C.J., at Rossland, on the 13th of
October, 1903, in which the plaintiff' company adversed the defendant's application for a certificate of improvements to the Sunrise
mineral claim. The plaintiff claimed the ground in dispute under
two locations known respectively as the Sunset and Mayflower
mineral claims. These locations of the plaintiff were valid up to
the 31st of May, 1901, upon which date the plaintiff allowed its free
miner's certificate to expire without renewal. The defendant's claim
was located upon the 8th of July, 1901. On the 25th of October,
1901, the plaintiff, by paying a fee of $300, obtained a special free
miner's certificate in accordance with the provisions of sec. 2, ch. 35
of the Statutes of 1901, and relied upon that section as reviving its
rights, notwithstanding the intervening location of the defendant.
The regularity of the locations, and all other facts, were admitted.
Argument.        MacNeill, K.C, for plaintiffs.
MoAnn, K.C, and P. E. Wilson, for defendant.
Judgment. Hunter, C.J.:—The effect of Mr. MacNeill's contention is that
the property was locked up for six months after the lapse of the
plaintiffs' certificate. That is not my view at all. The Legislature
had no such intention, or it would have said that after the certificate
had lapsed, the property should not be open to location until after
the six months had elapsed, just as it has provided that in the event
of the owner's death his claim should not be locatable within twelve
months without the permission of the Gold Commissioner.
Judgment for the defendant with costs.
Note.—See McNaught v. VanNorman, ante, p. 7. Fractional Mineral Claim—Location Line—Be-location by Agent of Original
Locator—Permission of Gold Commissioner under sees. 32 and 108 of Mineral Act—Principal and Agent.
Where the holder of a mineral claim which is the subject of an adverse action
causes the same ground to be re-located by another free miner from whom
he purchases for a small consideration, the provisions of sec. 32 of the Mineral Act, requiring the Gold Commissioner's permission to re-locate, do not
The location, line of a fractional mineral claim must be marked in the same
manner as that of a full sized claim.
These were two adverse actions consolidated and tried at Nelson
during the October Sittings of the Supreme Court, before Irving, J.
The defendants Ransom et al. advertised, pursuant to the Mineral
Act and amendments thereto, for a certificate of improvements to
the Bellevue fractional mineral claim, located by Ransom on the 9th
of July, 1901, and the plaintiffs Snyder et al. brought their action to
adverse such application, claiming the same ground under a senior
location known as the Parrott mineral claim, located on the 29th
September, 1898:
The defendants thereupon caused the same ground to be re-located
as the Redress Fractional No. 2, on the 13th of January, 1903, by
one Nelson, from whom they the same day purchased it for a small
consideration. The plaintiffs had in the meantime advertised for a
certificate of improvements for the Parrott mineral claim, and the defendants commenced action to adverse that application. In the
latter action the defendants claimed the ground covered by the
Parrott under the Bellevue Fraction location, and in the alternative
under the Redress Fraction location.
Whealler and Wragge, for the plaintiffs, Snyder et al., contended
that the Bellevue Fraction was invalid, because its location line was
not blazed, and that the Redress Fraction was invalid because the
owners of the Bellevue had caused the ground to be re-located without
the sanction or permission of the Gold Commissioner, as required by
sec. 32 of the Mineral Act.
8. 8. Taylor, K.C, for the defendants, Ransom et al., contended
that because the Bellevue Fraction is a fractional mineral claim, 78
blazing    of    the    location    line   is    not   necessary   under    either
sub-section   (c)  or   sub-section   (d)  of   section  16 of  the Mineral
Full Court. Act as amended in chapter 33 of 1898, and in this particular a frac-
October 29.
Irving, J.
tional mineral claim differs from a full claim. That, in the alternative, the ground could be held by Ransom et al. under the Redress,
Fraction, and that Ransom et al. could procure Nelson to locate the
same for them, particularly when it is held that the Bellevue Fraction
is invalid.
Judgment. Irving, J.:—(After referring to the evidence regarding the loca
tion of the Parrott and finding on the facts, that that claim was invalid, proceeded:) I find that the Bellevue Fraction located on the 9th
of July, 1901, by Ransom, was in all respects a proper location, except
no blazing was done. This, I think, was necessary. Although
blazing is not mentioned in sub-section (c) or (d) of section 16 of
the Mineral Act as amended in 1898, it is mentioned in the Form
T, referred to in that section.
The Redress Fraction No. 2, located on the 13th of January, by
Nelson, I find is good in all respects.
With reference to the argument raised by Mr. Whealler against
the Redress Fraction No. 2, namely, that there was no permission
to relocate it as provided in section 32 of the Act, I do not think
that that section deprives the present owners of the Redress Fraction
No. 2 of their title, because it was located by Nelson and afterwards
transferred to them. In my opinion, a person may escape from the
provisions of section 32 in the way these owners have done.
There will be a declaration that the Redress Fraction No. 2 is a
valid claim in all respects and that the others are invalid.
The following order was made as to costs: prior to consolidation, no costs to either party, subsequent to consolidation, defendants
Ransom et al. to be paid two-thirds of their taxed costs.
Note.—This decision cannot be wholly reconciled with that of the earlier
one in Granger v. Fotheringham, to which the learned Judge's attention was
not directed. There ttie re-location by another person was upheld because there
was no previous binding agreement to convey to the original locator, and
agency was not established. But in the present case the agency of Nelson is
clear according to the report, and also the re-location was effected during the
pendency of the action.
For a list of defects in locations see Vol. i., p. 504, and also Brit. Lion
Gold. Co. v. Creamer, ante, p. 51; Sandberg v. Ferguson, post, p. 165; Dock-
steader v. Clark, post, p. 192; and Butherford v. Morgan, post, p. 214.
rmission of Gold Commissioner: see also sec. 108 of
sases of Dunlop v. Haney  (1899). 1 M. M. C. 369;
(1894),  1 M.  M.  C.  71 ;* and Pellent v. Almoure
As to re-location by p
the Mineral Act, and the
Granger' v. Fotheringham
(1S9T), 1  M.  M.  C.  134 II.]
Ross v. Thompson et al.
November 4.
Drake .1
Water Bights—Decision of Gold Commissioner—Appeal from—Evidence on— FullCourt.
The appeal under section  36 of the Water Clauses Consolidation Act from
the decision of the Gold Commissioner is a trial de novo.
Appeal to the Full Court from a decision of Forin, Co.J., on
an appeal under section 36 of the Water Clauses Consolidation Act,
from a decision of the Gold Commissioner at Fort Steele, in respect
to the validity of a water record. The learned County Court Judge
held that the appeal must proceed on the evidence before the Gold
Commissioner and was not a trial de novo and on the material before
him dismissed the appeal.
The appeal came on for argument at Vancouver on the 4th of
November, 1903, before Drake, Irving and Martin, JJ.
The only ground of appeal argued by counsel for appellant was     r£ume»t.
that the appeal to the County Court Judge was a trial de novo.
8. S. Taylor, K.C, for appellant.
Wilson, K.C, for respondent.
Drake, J.:—I think the point taken by Mr. Taylor is a good one.
I think when you look at that section 36,  although it does not
specify how the appeal is to be taken, still what is the good of having
• a petition, when all the facts may be denied by the respondent when
[ he puts in his answer ?    How are you to arrive at the truth without
j you   have    evidence   before    you  and  without   evidence  is  to  be
taken ?     You   may   raise   other   points   than   those   that   came
before   the   Water   Commissioner,   and   on   those   evidence   must
be taken.    I think the    learned County Court Judge should not try
these matters except in the ordinary way.    My opinion is that, looking at the whole of that section, there must be evidence to satisfy
I him that the grounds of appeal are substantial and well taken.
[Wilson:—Do I understand your Lordship to say that the trial
I before the County Court Judge should be by parol evidence ?]
Judgment. 80
November 4.
Full Codri
Drake, J.
The appeal comes up by petition and affidavit; these state the
facts, and then an answer is put in which may be a bare denial of
the facts stated in the petition, or of some of the facts. As soon as
that is answered, how are you to arrive at which is correct without
evidence is taken in the most convenient way, i.e., viva voce; but
whether the County Court Judge takes evidence by affidavit or not,
he will have to satisfy himself as to the correctness of the decision
of the Water Commissioner.
Irving, J. Irving,  J.:—I think this must go back.    When you compare
the provisions of section 36 of the Water Clauses Act with the appeal
given by section 95 of the Crown Lands Act, you find in the latter
Act that the appeal is confined to questions of law only. I think,
therefore, the Water Clauses Act does not limit the appeal to questions of law, but allows an appeal upon questions of law and fact.
The whole matter ought to be taken de novo. I think the proper way
to proceed is to take oral evidence, but I think it would be quite
proper if affidavits were accepted, if the parties wish it.
Martin, J. Martin, J.:—I concur with what my learned brothers have said.
I only point out, after reading section 39, that section 36, when it
says a straight appeal, means a straight appeal; there is nothing said
about "petition" when it speaks of an appeal. I think the statute
is perfectly simple and clear.
Appeal allowed, with costs.
Note.—For other cases .under this Act, see In re Water Clauses Consolidation Act, Centre Star Mining Co. v. City of Bossland, ante, p. 27; Be W. C.
Act and Bossland Power Co., Ltd., post, p. 135; Byron N. White Co. v. San-
don W. W. Co., post, p. 240, and Brown v. Spruce Creek Power Co., Ltd.,
post, p. 258. II.]
Hastings v. Le Roi No. 2, Ltd.
(34 S. C. 177; 10 B. C. 9.)
Master and Servant—Mine-owner and Miner—Contract for Particular Mining
Operation—Negligence—Common Employment—Independent Contractor—
Control of Workmen—Statutory Obligation—Metalliferous Mines Inspection
November 30,
Court op
H. & M. contracted to sink a winze in defendant's mine at a certain price
per foot, and by the terms of the contract the direction and dip of the
winze were to be as given by the defendant company's engineers; the defendant was to provide all necessary appliances, etc.; H. & M.'s workmen
were to be subject to the approval and direction of the defendant's superintendent, and any men employed without the consent and approval of or unsatisfactory to such superintendent would be dismissed on request.
A hoisting bucket hung on a clevis was supplied to H. & M. by defendant, and
through the negligence of the defendant's superintendent, master mechanic,
or shift boss, a hook substituted by defendant for the clevis, at the request
of H. & M., got out of repair, in consequence of which the bucket slipped off
and in falling injured the plaintiff, who was one of H. & M.'s workmen
engaged in sinking the winze.
Held, the plaintiff being subject to the control of the defendant was acting as
its servant and the doctrine of common employment applied, and consequently the action was not maintainable. The question of control is the
decisive test in such a case.
Decision of the Full Court of British Columbia affirmed; Taschereau, C.J.,.
Appeal   by  plaintiff  from   a   decision   of  the Full   Court   of i Statement.
British Columbia reversing the judgment of Mr. Justice Irving in
favour of the defendant company.
This was an action at common law for damages for personal injuries sustained by the plaintiff while working as a miner in the
Josie mine, owned by defendant. The plaintiff while working for
Hand & Moriarity, who were under contract with the defendants to
sink a winze in the Josie mine from the 700 foot level, was injured
by the fall of an iron bucket used for hoisting waste rock.
The defendants and Hand & Moriarity had entered into a written
contract for the sinking of the winze; by the contract the direction
and dip were to be as given by the defendant's engineers; the defendant was to provide the contractors with all necessary appliances,
explosives, etc.; all the men employed in carrying out the contract
should be subject to the approval and direction of the defendant's
* Present:—Sir Elzear Taschereau, C.J., and Sedgewick, Davies, Nes-
bitt and Kill am, JJ.
VOL. II. M.M.C.—6 82
Court op
1903. superintendent, and any men employed without his consent and
' approval or unsatisfactory to him would be dismissed on request.
The superintendent also had control of the increase or decrease in
the scale of pay and hours of labour where there was any change
from the regulation and lawful number of hours for underground
The defendant supplied the contractors with the bucket hung
on a clevis, but at the request of the contractors the clevis was
changed for a hook, and subsequently, on account of a broken catch,
the bucket slipped off the hook and fell and struck plaintiff injuring
him, a