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British Columbia Historical Books Collection
Reports of mining cases
Martin, Archer, 1865-1941
269-572, lviii pages ; 26 cm
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PRICE SS7.5ff K^iJbc: MIIINilNllWflMK Wk&^Wrr' ^*^ • swxiflriRatt: 31.] MILLER v. CAMPBELL. 269 Miller v. CampbAkL N^v^o (Cout. Cas. 280.) Supreme Court of Yukon—Placer Mining Begulations of 1898 and 1901—Grant and Licence—Con- Canada.* fiicting Locations — Renewal Grant — Unoccupied Crown Lands — Staking, Adoption of Former—Status to Sue-'-Crown. 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, following St. Laurent v. Mercier, ante p. 46. Appeal from the judgment of the Territorial Court of the statement. ^ Yukon Territory, affirming the decision of the Gold Commissioner. The Gold Commissioner decided against the claim of the plaintiff, Miller, to a bench claim staked by him on Dominion Creek, Yukon, in August, 1899, and held that the ground had been properly taken up by the respondent, Campbell, while vacant and abandoned, and that it was his claim under a valid renewal. The Full Court affirmed the Gold Commissioner's decision and plaintiff ap- I pealed on grounds that the judgment was against the law governing ! staking and the weight of evidence, that boundaries of claims cannot be extended by mere renewal, and that no lapse of subsisting claims can enlarge another claim. Trovers Lewis (Smellie with him), for the appellant. J. A. Ritchie, for the respondent. The appeal was dismissed with costs: the only notes of reasons delivered Tf?eie the following:— ^Present:—Sir Elzear Taschereau. C.J., BlTT and Killam, J J. VOL. II. M.M.C —19 Sedgewick. Davies, Nes- u.] CENTRE STAR M'N'G CO. v. ROSSLAND-KOOTENAY M'N'G CO. 2fl ♦Centre Star Mining Co., Ltd., v. IIossland-Kootenay Mining Co., Ltd. 1905. April 15. 'rcspass—Wrongful Abstraction of Ore by Trespass Workings and Conversion —Measure of Damages for Abstracted Ore—Injury to Adjoining Mine by Accumulation of Water in Trespass Workings—Continuing Trespass—Liability of Company for Trespass of Predecessor in Title—Companies Act and tdcence to Extra-provincial Company—Costs of Issues Apportioned—Form of Order—Nominal Damages. not liable for the tort of its predecessor title unless' A company adopts it. Where a company after taking over a mining property discovers that certain ore lying on a dump and believed to be waste and of no market value was wrongfully taken by its predecessor, yet takes no steps to return .it, but does not deal with it in any way, that is not an adoption of its conversion by the original trespasser. The value of ore so situated as regards the successor in title is its market value as it lies and not its value before abstraction. Held, on the facts .(reversing Martin, J., in this respect), that the defendant company was liable for the accumulation of water in certain workings on the plaintiff's property, the flow of which water should have been stopped at the defendant's boundary, but nominal damages only were awarded, fixed at $10. Costs of issues apportioned. Form of order. Appeal by plaintiffs from judgment of Martin, J., reported ante p. 232. The appeal was argued at Vancouver on 15th and 16th Novem- Appeal, ber, 1904, before Hunter, C.J., Duff and Morrison, JJ. Gait, for appellants: The effect of the two agreements and the Argument, defendants' licence is to make defendants liable for the trespass committed by the Great Western Mines, Limited, for the licence is tantamount to a statutory obligation to .assume all liability of the old company; the agreements are recited in the memorandum of association and are a part of the Company's charter and the Company must s^et its licence subject to its charter and remain so subject; he cited Ecclesiastical Commissioners for England v. North Eastern Roihvay Co. (1877), 4 Ch. D. 845 at p. 857; Bulli Coal Mining Company v. Osborne (1899), A. C. 351, 364; the Companies Act, Sees. 123, 124, 127, 128, 139; Palmer's Company Precedents. 8th ed., 1,845, and Rolfe and the Bank of Australia v. Flower^ Salting & Go. (1865), L. E. 1 P. C. 27. 272 MARTIN'S MINING AND WATER CASES. [VOL. 1905 April 15. Full Cour Argument Defendants are also liable for the ore converted; they have in effect adopted the tort of their predecessors: see Hall v. Duke ofNor- ?• folk (1900), 2 Ch. 493; Pretty v. Bickmore (1873), L. B. 8 C. P. 401; Gwinnell v. Earner'(1875), L. E: 10 C. P. 658; Todd v. Flight (1860), 9 C. B. K. S. 377 and Gandy v. Jubber (1864), 5 B. & S. 78. As to the accumulation and drainage of water, the accumulation of a large body of water is a constant -menace to plaintiffs and keeps them from going on with their work, as by doing so they might let it loose and thus cause great damage and probably also loss of life; it constitutes a nuisance; he cited Pollock on Torts: Attorney-General v. Colney Hatch Lunatic Asylum (1868), 4 Chy. App. 146;** Humphries v. Cousins (1877), 2 C. P. D. 239;.Broder v. Saillard (1876), 2 Ch. D. 692; Kerr on Injunctions, 4th ed., 196; Lindley on Mines, 2nd ed., section 807; Garrett on Nuisances, 6; Broom's Legal Maxims, 281; Reg. v. Belford (1863), 3 B. & S. 662; Tipping v. St. Helens Smelting Co. (1863), 4 B. & S. 608; Harrison v. Great Northern Railway -Co. (1864), 3 H. & C. 231; Attorney-General v. Council of Borough of*Birmingham (1858), 4 K. & J. 528; Rylands v. Fletcher (1866), L, E. 1 Ex. 265 at p. 274, (1868), L. R. 3 H. L. 330; Westminster Brymbo Coal and Coke Co. v. Clayton (1867), 36 L. J., Ch. 476; Phillips v. Homfrey (1871), 6 Chy. App. 770; Hurdman v. North Eastern Railway Co. (1878), 3 C. P. D. 168; Holmes v. Wilson (1839), 10 A. & E. 503; Hudson v. Nicholson (1839), 5 M. & W. 437; Seton on Decrees, 6th ed., 574, and Ross v. Hunter (1881), 7 S. C. E. 289. Davies, K.C. (Hamilton, with him), for respondents: All the trespasses complained of were by the defendants' predecessors in title; if any ore belonging to plaintiffs was on the ground when defendants took it over they knew nothing about it. [Hunter, C.J.:—You had the same general manager as your predecessors and his knowledge would be your knowledge.] The question is, was there conversion by the new company? The new company did not receive under the purchase any ore which was on the ground and which came out of another mine; they had no knowledge of any ore there not belonging to old company; there was never a demand for that ore and therefore there was no conversion; at any rate the ore said to have been converted was valueless. [Per Curiam : You need not argue the question of devolution of liability.] Under the terms of the agreement defendants are to pay and satisfy the liabilities of the old company; that refers only to a money demand. II.] CENTRE STAR M'N'G CO. v. ROSSLAND-KOOTENAY M'N'G CO. 273 As to the so-called nuisance he cited Wilson v. Waddell (1876), A MJ5 2 App. Cas. 95; Hurdman v. North Eastern Railway Co. (1878), 3 C. P. D. 168 at p. 174; Smith v. Kenrick (1849), 7 C. B. 515; ^llCourt. Darley Main Colliery Co. v. Mitchell (1886), 11 App. Cas. 127 at p. 144, and Clegg v. Dearden (1848), 12 Q: B. 576. Cur. adv. vult. 15th April, 1905. Thev judgment of the Court was delivered by -The facts appear in the judgment of the learned ' Judgment. Hunter, C.J trial judge. So far as concerns the questions which were the subject of the main argument for the appellant, I agree with the decision of the learned trial judge. I see no ground on which the defendants can be made liable for the tort of their predecessors. The transfer between them stipulates, it is true, that the former's liabilities are to be assumed by the latter, but the idea that C, being a stranger to a contract between A and B which provides that B should settle A's liability to C, has a right of action against B, unless the transaction was such as to make B his trustee, was finally exploded in Re Empress Engineering Co. (1880), 16 Ch. D. 125. The case of Ecclesiastical Commissioners for England v. N. E. Ry. Co.' (1877), 4 Ch. D. 845, referred to by Mr. Gait, was that of a company being amalgamated by statute with another company, the first company being dissolved and its property and contracts transferred to, and its debts, liabilities and obligations being imposed upon, the other company, and it was held that there was thus a statutory liability available to the party injured by the first company's trespasses. With regard to the question of the conversion of the ore, it was not proved that there was any conversion Jby the defendant company, but on the contrary it was always at the plaintiffs' disposal so far as they were concerned. As to the injury and expense caused by the invasion of water, if it could be clearly shewn that the water came in through the tres- iss workings from the defendants' workings, there can be no doubt that the defendants would be liable on the ground that they were maintaining a nuisance which was created by their predecessors in title. It was, however, candidly enough admitted by Mr. Kirby that it was impossible to state the source of the water, that is to say, it might have seeped into the trespass workings and thence into the plaintiffs' mine from the Nickel Plate, in which case the defendants would be liable, or it may have come in from the plaintiffs' own property, or from the Ore-or-no-Go, in which case the defendants would Huntkr, c. J. 274 MARTIN'S MINING AND WATER CASES. - [VOL. 1905 _ not be liable, whether it came in through the trespass workings or ApriijL5. nQ^ ^ it may have come in from the Nickel Plate by natural drain- Full Court age and not through the trespass workings, in which case also the HuNT^Ta J. defendants would not be liable. It being impossible to trace how much, if any, of the water came in from the Nickel Plate through the trespass workings, the defendants cannot be made liable on this branch of the case. There is, however, a ground on which in my opinion the defendants are liable, which is that they have maintained a nuisance by allowing water to get into the trespass workings "from the Nickel Plate. ' It was not sufficient for them to have bulkheaded the workings at the Centre Star boundary—in fact they would have no business in these workings at all without the plaintiffs' consent, as the latter are the owners in fee of the Ore-or-no-Go subject to the right to mine vested in the defendants—but they should have bulkheaded the workings at their own boundary. There can be no doubt that to allow water to get into these workings from the Nickel Plate from which they became no doubt in large part filled up, was to render the nuisance a highly dangerous one, as great damage must necessarily have ensued to the plaintiffs, and probably loss of life, if they in the exercise of their right to mine their own ground had broken into the workings in ignorance of their existence. As it is, knowing of their existence they are, of course, precluded from mining the ore in their vicinity without going to the expense that will be necessary to prevent any damage or danger. I think that the plaintiffs were and are entitled to have the trespass workings kept protected against water coming in from the Nickel Plate, and' that there ought to be an injunction restraining the defendants from permitting these workings to remain open at the Nickel Plate boundary and from permitting any water to flow from the Nickel Plate through these workings into the plaintiffs' mine. As to the damage arising from the legal injury to the plaintiffs' rights and so constituting a menace for the time being to the lawful use and enjoyment of the plaintiffs' property, caused by Nickel Plate water being allowed to get into these* workings, it has not been shewn that the defendants have sustained any actual damage, and therefore there can be judgment for nominal damages only, which I am content to place at $10. Had the defendants failed to inform the plaintiffs of the existence of these workings before they allowed them to fill up with water from their mine, the question might have arisen as to whether the Court should not award exemplary damages, inasmuch as the defendants' general manager was the general manager of their predecessors in title by whose direction the tortious ex- ii.] CENTRE STAR M'N'G CO. v. ROSSLAND-KOOTENAY M'N'G CO. 275 cavations were made, and of course his knowledge was their know- m 1905 . , . April Id. ledge, but as it is, that question does not arise now. — The plaintiffs are entitled to the costs of the action less the costs ,|U£L CoV*T- of those issues on which they failed, together with the costs of this appeal. Judgment accordingly. Formal The formal judgment of the Full Court was as follows: - (1) This Court doth order and adjudge that the judgment of the Honour- j^merrc. able Mr. Justice Martin, disnrssing this action with costs, and be the same is hereby set aside. (2) And this Court doth further order and adjudge that the defendants, their servants, workmen and agents, be and they are hereby perpetually restrained from permitting water from the said Nickel Plate mineral claim to flow into the Centre Star mineral claim through the artificial openings at the Nickel Plate boundaries in question in this action or any of them. . (3) And this Court doth further order and adjudge that the defendants do pay to the plaintiffs the sum of ten dollars damages. (4) And this Court doth further order that the defendants do pay to the plaintiffs the costs of this action and the costs of this appeal forthwith after •taxation thereof, and that the plaintiffs do pay to the defendants the costs of those issues upon which the plaintiffs have failed. (5) And this Court doth further order that the injunction hereby granted be suspended for the period of six months to enable the defendants to consider and adopt the most convenient means available to them in order to comply with the said injunction. The defendant company obtained leave to appeal (App. 28, 1905, 11 B. C. 509), to the Judicial Committee of the Privy Council, but afterwards a settlement was arrived at. Note :—As to measure of damages for trespass and wrongful abstraction of ore and pay dirt, vide Last Chance Mining Co. v. American Boy Mining Co., ante p. .150; Kirkpatrick v. McNamee, post, p. 276: and Lamb v. Kincaid. post p. 449. 276 MARTIN'S MINING AND WATER CASES. [VOL. 1905, May 2. SUPRKME Court of Canada.* KlRKPATRICK V. MONAMEE. (36 S. C 153.) Placer Mining in Yukon—Trespass Workings—Pay Dirt—Measure of Damages for Abstraction—Negligence or Wilful Carelessness. Where the auriferous material (pay dirt) was abstracted not as the result of wilful carelessness but of the honest negligence of the trespasser, the milder rule of measuring damages will be applied, and he will be allowed the full cost of diggihg the said material in addition to the cost of washing the pay dirt after it is dug out. Decision of the Territorial Court of the Yukon reversed and that of Craig, J.* restored, Taschereau, C.J., dissenting. Statement Appeal from the judgment of the Territorial Court of the Yukon Territory reversing the judgment of Mr. Justice Craig, and dismis-; sing the plaintiffs' action with costs. The plaintiffs sued to recover damages sustained through trespasses committed by the defendants on fractional creek placer mining claim No. 20a, below discovery, on Hunker creek in the Yukon Territory, of which the plaintiffs were grantees from the Crown at the time the action was brought. The trespasses complained of consisted of the removal of the pay-dirt and gold-bearing gravel from a portion of the claim, covering an area of 964 square feet, and the washing up by the defendants and converting to their own use of the gold thereim The action was tried in June, 1903, before Mr. Justice Craig, who found that the defendants committed the trespasses complained of, and that they did so wilfully and deliberately, or at all events, that such gross carelessness was shewn by them in the operations from which these trespasses resulted that they must be accounted wilful trespassers. At the trial it was agreed between counsel, with the approval of the Court, that the issue being tried should not bear upon the quantum of damages, but that that should be referred to a referee later. Pursuant to this arrangement the judgment directed. a reference to the clerk of the Territorial Court to take an account of the plaintiffs' damages in accordance "faith the declarations as to the rights and liabilities of the parties set out therein. The referee made his report fixing the plaintiffs' damages at $14,993, for which amount and costs judgment was entered. From nt:—Sir E: qton, JJ. ?aschereau, C.J., and Girouard, Davies, Nesbitt, IL] KlRKPATRICK v. McNAMEE. 277 this judgment and report the defendants appealed, and the Territorial Court in banco, Craig, J., dissenting, reversed the judgment 'at the trial and dismissed the action. The plaintiffs now appeal. The case was argued on March 27th, 28th and 29th, 190o. Aylesworth, K.C, and Walsh, K.C, for the appellants. Auguste Noel^ for the respondent, Cur. adv. vult. 1905^ May 2. SUPREME Court op Canada. Appeal. Judgment Taschereau, C. J., dissenting. May 2nd, 1905. The Chief Justice (dissenting) :—I would dismiss this ap peal. Not that I am convinced' that there was error in the judgment of the trial Judge, which the Court in banco reversed, but because I am not convinced that there is error in the judgment in banco appealed from. The appellant, I am free to confess, has succeeded in creating considerable doubt in my mind as to its correctness, but I cannot reverse upon a doubt. That judgment must stand if the appellant has not convinced us that it is wrong, and that, as far as I am concerned, he has failed to do. It may be that, had I formed part of the court in banco, I would have affirmed the judgment of the trial Judge, because though doubting,#I would not have been clearly satisfied that he was wrong, but it is the judgment of the Court in banco that the appellant asks us to reverse, and we cannot reverse it, though doubting, if not clearly satisfied that it is wrong. In Hale v. Kennedy (1883), 8 Ont. App. E. 157, it was held in that sense that: The rule generally followed by the courts is not to review the finding of the I Judge of first instance where his decision depends upon a balance of testimony; I still, if the Court en banco has reversed that finding, the Court must be satis- II fied upon appeal that the Court en banco was wrong, before it will interfere with that judgment. We are concerned directly (said Lord O'Hagan, in Symmington v. Sym- mmington, (1875) LT R. 2 Sc. App. 424, an analogous case), not with the judg- I ment of the Lord Ordinary (the trial Judge), but with that which over-ruled J it; and the latter, we ought to affirm unless we are satisfied of its error:— followed in this Court in Demers v. The Montreal Steam Laundry Company (1897), 27 Can. S. C E. 537. Girouard, J.:—I would allow this appeal and restore the judg- Girouard, J ment of the trial Judge in toto, but, as the majority of the Court has come to the conclusion to send the case back to re-assess the damages, I will not dissent. Davies. J., concurred with Idington, J. Davies, j. Nesbitt, J., concurred with Idington, J. Nesbitt, J. 278 MARTIN'S MINING AND WATER CASES. [VOL. 1905 May 2 Idington, J.:—This appeal should be allowed and the judgment of Mr. Justice Craig restored upon amendment to be allowed. A careful consideration of the judgments of Mr. Justice Dugas and of Mr. Justice Maeaulay, and the evidence they respectively lay stress upon, and the rest of the evidence supporting defendants' view of the case, leaves no doubt in my mind but that the learned trial Judge is right in finding that the defendants had trespassed. Much of the confusion that exists arises from attaching too much importance to some answers of the witness Hovland, which if taken as literally and mathematically correct, may furnish an apparently good foundation for what the majority of the Court below have built thereOn. Such an interpretation of the witness's evidence is not warranted by it as a whole. He did not, though placing his finger at point " E " in exhibit H, intend to convey the meaning that there was at that point, as distinct from shaft No. 3 on same plan, another shaft with timber in it, and lagging leading from it towards or across the line dividing 21 from fraction 20a. If he had been for a moment so understood by Court and counsel, we would have had much more relating to this point E than we have been favoured with. The witness, quite honestly, put himself, by his speaking of the centre of the cut and distances he gave from that point, at another place than he would be, consistently with holding him as referring to shaft No. 3 in much of his evidence. It is to my mind just one of those obvious errors that occur daily at the trial ofv oases where a witness, however much he tries, may not be able to be absolutely correct in regard to either time or space, and especially when dealing with maps or plans which many intelligent men often cannot comprehend. The witnesses have been so numerous and the holes they refer I to have been in their stories multiplied so many times beyond what appear on the plans before us, as to render the case somewhat troublesome. The learned trial Judge, and counsel, I have no doubt, understood what each witness referred to, and when the witness happens to speak of " this" and • that," § here" and te there/5 without specifically identifying on the plan the point referred to, he was not confusing anybody at the trial. This furnishes to my mind (in addition to the usual reasons for so doing) abundant reason for here accepting the judgment of the learned trial Judge rather than that in appeal. I think it is not at all a case where there is any need for assuming wholesale perjury to have existed in any view one might take of the case. But there is needed in the trial Judge of a case like this, that keen discrimination that weighs the evidence by tests that separate, as the trial proceeds, the results of the accurate from the inaccurate witness, the candid, truthful one from the one less so. I am, there- J m KIRKPATRICK v. McNAMEE. 279 1905 May 2 Supreme Court op Canada. fore, slow to suggest that the learned trial Judge may have erred in his finding wilful carelessness. It is, however, by assuming that in the main the witnesses tried to give us the truth that we are here enabled «so to reconcile nearly all the evidence, with the result arrived at. In doing so we have Idington, J to assume the defendant and his witnesses, with one or two exceptions, honest, and if honest there cannot be that wilful carelessness imputed to the defendants that the law requires before assessing damages on the scale which has been adopted. I think the milder rule suggested in Trotter v. Maclean (1879), 13 Ch. D. 574, sbould be adopted and the defendant should be allowed in any event the full cost of getting out the gold in addition to the mere cost of washing after the earth was dug out. I think, too, the referee has been influenced by the severer rule having been adopted, into treating this piece of ground as exceptionally rich as compared with all the surrounding ground, apparently thinking the defendant should be punished ^"ith a very high average. I offer no opinion as to the proper result other than to say I am ■ of opinion the result arrived at is unreasonable and excessive, and is not supported by the evidence. It is not clear that in law the respondents who raised by their statement of defence the issue of title are precluded by their failure to press it at the trial from now taking the objection they have done as to Bonner not being a party. At all events the defendants are entitled to have the doubt removed, and Bonner, in whose name (with that of his partner) as one of the partners the licence stood when some of the trespasses were committed, bound by the recovery herein. I think, therefore, he should be added as a party plaintiff. He seems to have assigned his rights to his partner Kirkpatrick. That assignment may not so have transferred his right of action as to vest it in Kirkpatrick. But evidently he intended to sell all his interests to the remaining partner, and that sale carried with it the right to use his name. The case has been tried as if the defendants were liable therein for any of the trespasses that the licensees or any of them might have a right to complain of, and to give effect to this result let the suggested amendment be made; to carry out this let the Court below amend the record and the referee then re-assess the damage on basis indicated. The appeal then should be allowed with costs. See Harper v. Godsell (1870), L.'E. 5 Q. B. 422, at p. 428; Dawson v. Great Northern and City Railway Co. (1904), 1 K. B. 277; May v. Lane (1894), 64 L. J. Q. B. 236; Colonial Bank v. Whinney 280 MARTIN'S MINING AND WATER CASES. [vol. 1905 (1886), 11 App. Cas. 426; Job v. Potion (1875), L. E. 20 Eq. 84; May 2. Caldwell v. Stadacona Fire & Life Insurance Co-. (1883), 11 Can. Supreme Court op Canada. S. C. E. 212. Appeal allowed with costs. Idington, , r. - Note.—Contrast this case with the prior one, not cited, of Last Chance Mining Co., Ltd.. v. American Boy Mining Co., (1904) ante p. 150, and with Lamb v. Kincaid, post p. 449. See also Centre Star Mining Co. v. Bosslafid- Kootenay Mining Co., ante, p. 271. II.] SIMISTER v. MORGAN. 281 Simister v. Morgan. 1905 May 10. Coal Mines Begulation Act, sees. 32 & 98, and Bule 4—Non-gaseous Mine— Forin Co J. Inspection and Beport—" Competent Person " —Employment of Extra Fireman. It is not an offence against sec. 32 of the amended Coal Mines Regulation Act for a company to appoint for its own convenience and protection an additional though unqualified fireman to assist in carrying out the provisions of Rule 4 of said Act relating to the inspection of non-gaseous mines. Appeal by Charles Simister, superintendent of the collieries of Statement, the Crow's Nest Pass Coal Company at Carbonado, from a conviction by Police Magistrate Wjhimster at Fernie, B.C., on an information laid by the respondent, a Government Mine Inspector, for having unlawfully employed an unqualified person to act as fireman on one of the shifts contrary to section 32 of the Coal Mines Eegulation Act as amended by chapter 40, section 5, of the Amending Act of 1903-4.* The mine in question was non-gaseous and in order to comply with Rule 4f of the Coal Mines Eegulation Act the company had a competent fire boss detailed for that duty, who performed it, but in addition and for its own interests and convenience employed another man named Cook, who was not a qualified fireman. H. W. Herchmer, for appellant: These facts disclose no offence Argument, against the Act; what the company did was in excess of statutory requirements in this respect which only required one inspection and report in 24 hours, which was done. There is no penalty against the superintendent for having appointed an unqualified person. Harvey, for respondent: The putting into the mine an unqualified person thereby adding to the danger constituted the offence— • * " A person shall not be qualified to be a manager, overman, shiftboss, fireman or shotlighter of a mine to which this Act applies unless he is for the time being registered as the holder of a certificate under this Act." t " Rule 4. In every mine in which inflammable gas has not been found within the preceding twelve months, then once in every twenty-four hours a competent person or competent persons, who shall be appointed for the purpose, shall, so far as is reasonably practicable, immediately before the time for commencing work in any part of the mine, inspect that part of the mine and the roadways leading thereto, and shall make a true report of the condition thereof so far as ventilation is concerned, and a workman shall not go to work in such part until the same and the roadways leading thereto are stated to be safe. Every report shall be recorded without delay in a book which shall be kept at the mine for the purpose, and shall be signed by the person making the same." 282 MARTIN'S MINING AND WATER CASES. [VOL. 1905 see interpretation section 2 of 1903-4 for " competent person;" May io. though this man was an uncertificated "fireman" as defined in said Forin, Co.J. section he acted as a fireman; a broad and joint reading of Eules 4 and section 98* will uphold this conviction. Judgment. Forin, Co. J.:—This appeal is allowed with costs. Hule 4 re quires a competent person to report every 24 hours in a non-gaseous mine. It is admitted that the coal company kept this competent person employed, but also engaged, as a further security, and in their own interests, an extra fireman. I cannot find anywhere in the Coal Mines Eegulation Act that employing a person for such a purpose is an offence. Section 32, as amended by section 5, chapter 40, 1903-4, would read for the purpose of this appeal: " A person shall not be qualified to be a fireman of a mine, unless he is for the time being the holder of a certificate under,this Act." This cannot be read as the respondents contend by interpolating the words f employed as" after the words "to be" in the first line of the section; rather it must be read as qualified " to act as " and it is, if anything, a personal offence. Whether the fireman himself is liable, under section 98 of the Act, I am not now called upon to decide; but certainly under the present wording, the mine manager is not liable, and the appeal is allowed. Amount paid into Court to be returned. Appeal allowed. *98. Every person who is guilty of any offence against this Act shall be liable to a penalty not exceeding, if he is an owner, agent, or manager, one ^hundred dollars, and if he is any other person, ten dollars, for each offence; and if the Inspector has given written notice of any such offence, then in case of an owner, agent, or manager, to a further penalty not exceeding one hundred dollars and not less than ten dollars for every day after such notice that such offence continues to be committed, and in cases of other persons, to a further penalty not exceeding five dollars for every day after such notice that such offence continues to be committed. m WALLACE v. FLEWIN et al. 288 Wallace v. Flewin et al. (11 B. C. 328.) Water Clauses Consolidation Act, 1897, sec. 86—Appeal from Gold Commissioner—Proper Begistry for Taking Proceedings^—Change of Venue—Supreme Court Act, 1904, ch. 15, sec. 85—Inherent Jurisdiction of Supreme Court to Hear Causes and provide Procedure. The right of appeal given by section 36 of the Water Clauses Consolidation Act is in effect a right to a re-trial before a Judge of the County Court or a Judge of the Supreme Court; and the appropriate method of dealing with questions of fact on that appeal is by examination and cross-examination of witnesses viva voce. Said sec. 36 does not provide an exhaustive code of procedure for appeals; the Supreme Court having once become seised of the matter has inherent jurisdiction to bring the appeal to hearing and disposition. A motion to the Court to change the venue was properly made in Victoria though the petition had been filed in the Vancouver Registry, because an application to a Court is not a proceeding in a registry within sec. 35 of the Supreme Court Act. Boss V. Thompson, ante p. 79, defined. 1905 July 13. Appeal from the decision of the Gold Commissioner at Port Simpson, argued before Duff, J., at Victoria, in June, 1905. Flewin, as Gold Commissioner, issued a water record to Keith and Hamilton, and under section 36 of the Water Clauses Consolidation Act, Wallace applied to cancel this record. The petition was filed in the Vancouver Eegistry, but before the petition was set down for hearing, Wallace applied, ex parte, to the Chief Justice in Victoria for a change of venue from Vancouver to Victoria. The Chief Justice made the order. On the day set for the hearing Bowser, K.C, for Keith and Hamilton, moved to set aside the ex parte order on the following grounds: that under sub-section (d) of section 36, as the petition had been originally filed in the Vancouver Eegistry, the hearing must take place in that county, and that there was no jurisdiction in the Court or the Chief Justice to change the venue; but for section 36 there was no jurisdiction in the Supreme Court at all, and that that section laid down the procedure; that it was an exhaustive code so far as the hearing of the appeal | was concerned, and that the statute was explicit that the hearing 1 must take place in the county in which such petition is filed; that under section 35 of the Supreme Court Act, 1904 (chapter 15), the Argument. 284 MARTIN'S MINING AND WATER CASES. [vol. Dupi Argur ex parte application to change the venue should have been made at Vancouver and the order made thereon entered, there. Bodwell, K.C. (Oliver, with him), for Wallace: So far as the application was ex parte, there was no reason that it should not be, because at that time none of the respondents were properly before the Court. Flewin had not answered at all; the proper Keith had not then been served, and Hamilton had not appeared, having filed his answer at Vancouver, whereas he ought to have served it at the place for service mentioned in the* indorsement, and if he appeared at all, he appeared a day late. In any event, under sub-section (e) there was a right to apply ex parte whether the respondents appeared or not. Balance of convenience is in our favour, even supposing Hamilton had to be considered. The power of changing venue is a part of the Court's inherent procedure: Itchin Bridge Co. v. Local Board of Health of Southampton (1857), 27 L. J., Q. B. 128.] The procedure in case of appeal provided by section 36 is complete, | and that, in so far as it was incomplete the inherent procedure of the Court governed. Judgment. Duff, J.:—In giving judgment on this application I am ex-] pressing the views of both the Chief Justice and myself. The decision in Ross v. Thompson (1903), ante p. 79, 10 B. C. 177, settles this, namely, that the right of appeal given by section 36 of the Water Clauses Consolidation Act, is in effect a right to have the question disposed of by the officer appealed from re-tried before a Judge of the County Court or before a. Jud^fe of the Supreme Court; and further, that the appropriate method of dealing with questions of fact on that appeal is by the examination and cross-examination of witnesses viva voce. Now, the provisions of that section must be read that decision. the light of The contention made by Mr. Bowser is that the section referred" to provides an exhaustive code of procedure. I am unable to agree,! @ne sees at once, if one examines the section, that such a construe- I tion would lead to situations which one cannot suppose the Legislature contemplated. For example, there is a power conferred upon. the Gold Commissioner to summon and examine witnesses viva voce^ but under section 36 no such power is given to the Court of Appeal. But, as in accordance with the decision I have mentioned, the appropriate method by which before the Court of Appeal questions of fact are \o be dealt with is the examination and cross-examination of witnesses, viva voce, it obviously follows that unless the Court have some power of summoning witnesses the section would be en- II.1 WALLACE v. FLEWIN et al. 285 tirely nugatory in tions of fact. so far as it professes to give an appeal on ques 1905 July 13. One need not refer to all the difficulties arising on the construction proposed, But one more may be mentioned. Sub-section (b) provides that " the petition shall be intituled in the matter of this Act and of the particular decision appealed from, and shall name as respondents persons who, before the Commissioner, or Gold Commissioner, were adverse in point of interest to appellant, and the Commissioner, or Gold Commissioner, and shall along with the affidavit veryfying the same, be filed in the proper registry within the one calendar month aforesaid." This is an ambiguous provision. For the moment I am not prepared to say what the phrase " proper registry" means. But on any admissible interpretation of that phrase the construction contended for by the respondent here would go far 'to defeat the plain object of the section. Given that "proper registry" means the registry of the County, or the Judicial District-in which is situate the office of the Gold Commissioner from whose decision the appeal is taken—and it then occurs to one at once that (unless there be some power in the Court to change the place of hearing), the petitioner having filed his petition in that registry, might in many cases have to wait for a very long period indeed before the appeal could be heard; in other words, it would lead in many cases to that delay of justice which is so often a denial of justice. On the other hand, assume that " proper registry " means the registry in which the petition ought to be filed, in accordance with the rules of the Supreme Court for the time being with regard to the commencement of actions—the effect of the construction I am considering would be, that the petitioner would be entitled to file his notice in any registry in the Province; then if the Court were not competent to change the place of hearing, the petitioner'would have it in his power to drag respondents from one end of t^e Province to the other, and over that course of* conduct the Court would have no control. I conclude that the narrow construction contended for by Mr. Bowser is not the true construction. I think that the reasonable view to take of the section is that—the Supreme Court having once become seised of the matter—all the powers of the Supreme Court, at all events all the inherent powers of the Supreme Court, which may be necessary to attain the object of the petition, namely, the bringing of the appeal to an effectual hearing and disposition, may be exercised. The language of James, L.J., read by Mr. Bodwell from his judgment in Dale's Case (1881), 6 Q. B. D. 376 at p. 450, seems to be exactly applicable. " It was strongly urged that this ( VOL. II. M.M.C. 20. 286 MARTIN'S MINING AND WATER CASES. [VOL. 1905 July 13. DuPP', 5 J. was a new jurisdiction and a new procedure. According to my view of the case, that is not material, because if a new jurisdiction is given to an existing Court—that is to say, a jurisdiction to deal with some new matters in a different mode and with a different procedure —if that jurisdiction be so given to a well-known Court, with well- known modes of procedure, with well-known modes of enforcing its orders, it must, unless the contrary be expressly or plainly implied, be given to that Court to be exercised according to its general inherent powers of dealing with the matters which arex within its cognizance." The case cited, The Itchin Bridge Co. v. The Local Board of Health of Southampton (1857), 27 L. J., Q. B. 128, is authority, if authority be needed, that the control of the time and place of the trial or hearing of actions or proceedings pending before the Court is one of the inherent powers of the Court. Now, with respect to the further point raised by Mr. Bowser— that the petition having been filed in Vancouver, the order of the Chief Justice ought to be set aside because the application could only be made there. It has been held that a summons must be heard at the place where the registry is situated in which the action or proceeding is domiciled; that is based on section 35 of the Supreme Court Act, which provides that " a writ of summons for the commencement of an action in the Court shall be issued by a District Eegistrar when thereunto required, and in such action and in any cause or matter pending in his registry all such proceedings as may and ought to be taken by the respective parties thereto, and as are authorized to be taken in any action, cause, or matter of a like nature by Eules of Court, shall be taken and recorded in the registry out of which the writ of summons may have been issued." I am not prepared to* say that, if the matter were res integra, I should agree with the view that the hearing of a summons in Chambers is a proceeding in a registry. But assuming that to be so, it certainly cannot be said, in my judgment, that the hearing of an application to this Court is. a proceeding in a registry. In the case of Raser v. McQuade (1904), 11 B. C. 169, the contention was advanced that the action having been commenced, and the trial having taken place in Victoria, and notice of appeal having been given for a sitting of the Full Court at Victoria, the Full Court sitting at Vancouver had no jurisdiction to hear the appeal (the sug- i gestion being that the hearing of an appeal by the Full Court was a proceeding in a registry within the meaning of section 35, supra). That was, of course, the reductio ad absurdum.oi the proposition that a hearing before the Court is a proceeding in a registry; and it was I Note.—On the point of inherent jurisdiction this case follows tne principles laid down in the prior one (not cited) of In re Slocan Municipal Election, (1902) 9 B. C. 113. 288 MARTIN'S MINING AND WATER CASES. [VOL. 1905 November J GlNAOA ET AL. V. McKeE CONSOLIDATED HYDRAULIC, LTD. (11 B. C. 481.) Placer Mining—Water-right—Water Clauses Consolidation Act, 1897, Amendment Act, 1904—Leaseholder and Individual Miner—" Owner of a placer Mine." Under sec. 2 of the Water Clauses Consolidation Act, 1897, Amendment Act, 1904, a free miner who is a leaseholder of a placer claim is an " owner of a placer mine " within the meaning of said Act, and has* the same water rights as an individual placer miner. If a free miner has water rights on one creek he is not deprived of them merely because he obtains additional water rights on another. Said section 2 shows the clear intention to increase the benefits accruing to the free .miner and cut down the rights" of holders of water records; and also to secure to the occupants, being free miners, of placer ground that continuous flow of water which the section specifies. '* Mine," " fclacer mine," and " diggings" are synonymous terms under the Placer Act. Decision of Henderson, Co.J., affirmed, Irving, J., dissenting. Appeal from the decision of Henderson, Co. J. (Mining Jurisdiction), in an action tried by him at Atlin, on the 7th, 8th, and 9th of September, 1904. The facts are stated in the reasons for judgment of Martin, J. Kappele, for plaintiffs. A.D. Taylor, and Mason, for defendants. Appeal. The appeal was argued at Vancouver on the 13th of June, 1905. before Irving, Martin and Morrison, JJ. A. D. Taylor, for appellants. Kappele, for respondents. Cur. adv. vult. 8th November, 1905. Judgment. Irvim;, J., dissenting. Irving, J.:—The short question in this case is: NAre the plaintiffs, who are holders of two leases situate on McKee Creek (issued under the provisions of Part VII. of the Placer Mining Act), entitled as against the defendants to the benefits of section 29 of the Water ii.] GINACA et al. v. McKEE CONSOLIDATED HYDRAULIC, LTD. 289 Clauses Consolidated Act, 1897, E.S.B.C. Cap. 190, as re-enacted in , section 2 of Cap. 56, 1903-4, as follows: •' In any case where all the water in any stream has been recorded for mining purposes and placer mines, either before or after the date of such record, are located and bona fide worked either above or below the point of diversion, the owner or owners of such placer mines shall be entitled to the continuous flow in said stream past, or to divert into or upon or through, such mine or mines sixty inches if two hundred or less be diverted by such record, and ninety inches if three hundred inches be diverted by such record, but no more; and such owner or owners shall be entitled to the full use of such water for such distance above or below such mine or mines as shall be necessary for the continuous and economical workings of said mine or mines and the carrying away of tailings and debris arising therefrom: Provided, however, that such owner or owners may divert a greater quantity than above specified upon paying to the holder of said record compensation for the damage he may thereby sustain ; and in computing such damage the cost of the ditch shall be considered." The following clauses are found in section 2 of the Act: " Mine " shall include " claim " and " mineral claim," and shall mean any land held or occupied under the provisions of the mining laws of the Province, for the purpose of winning and getting therefrom minerals, whether precious or base; and whether held in fee simple or by virtue of a record or lease; and "owner of a mine" shall mean owner of a mine as above aefined. " In defining any word or expression used in this Act relating to mines and minerals and not by this section expressly defined, reference may be had to the interpretation section of the Mineral Act, 1896, and of the Placer Mining Act." There is no definition of a "placer claim.' Turning to the Placer Mining Act we find that "placer claims" are divided into creek claims, hill claims, dry diggings, bar diggings, bench diggings and hill diggings, and that leaseholds are not mentioned. Owing to the definition of the word " mine " above given doubt may exist as to whether or not a leasehold is included in the words I placer mine," but the expression " located" is inapplicable to a leasehold. A creek claim, or any of the other five classes of claims into which placer claims are divided is held by location and record, but a leasehold is not. A leasehold is held under a lease granted by the Gold Commissioner, and-the word." location " would not be properly applied to it in many respects. It is quite different from an ordinary placer claim. In the first place, an ordinary placer claim is taken up as of right; a lease, on the other hand, is a concession granted by the Government on the report of the Gold Commissioner, usually in creek diggings on the representation by the applicant that the ground is abandoned. This difference between a " lease " and a " placer mining claim " is clearly recognized in section 90 of the Placer Mining Act, which 290 MARTIN'S MINING AND WATER CASES. [VOL. 1905 requires the'applicant for a lease to post a notice on the post nearest November 8. to ^ piacer mining claim then being worked. Full Court. ^ thege reagong j think the iearned County Court judge was 1 mistaken, and that the appeal should be allowed. Maetin, J. Martin, J.:—The defendant company, the appellant, has a water record for 1,000 inches under the Water Clauses Consolidation Act, on McKee Creek, Atlin Mining Division, and the plaintiffs are free miners and leaseholders on the same creek under a mining lease granted by the Gold Commissioner on August 24th, 1903. under Part VII. of the Placer Act. The plaintiffs claim that by virtue of" section 2 of the Water Clauses Consolidation Act, 1897, Amendment Act, 1904, amending section 29 of the original Act, they axe entitled to a continuous flow of 90 inches of water out of McKee Creek, which claim the defendant company resists, the supply of water being insufficient for both parties. The first ground of appeal taken by the company is that said section relates only to individual miners and cannot be invoked by leaseholders, and weight is attached to the use of the words "placer mines " and " located " in that section, and to the original section 61 of the Placer Act of 1891 as shewing the intention of the Legislature to so restrict it, for it is argued that the language of section 61 can only apply to the case of a free miner's actual location of a placer claim. The section is none too clear and there certainly is cause for raising the objection, but the construction very largely depends upon the interpretation section of the Water Clauses Act, and there has been an important change in the language, e.g., the present section now declares that " the owner or owners of such placer mines shall be entitled to the continuous now," etc. The plaintiffs contend that they come within this language as being wide enough to cover lease-' holders who are " owners of a mine " under the definition of " mine " as given in the Water Clauses Consolidation Act. In my opinion, since the expression " owner of a mine" is " ex-. ; pressly defined," to quote the final clauses of the interpretation sec- tion, there is no necessity to resort to the Placer Act, and the expression in the present relation,." owner of a placer mine " is synonymous with " owner of a mine," and " placer mine " with " mine," for only placer mines are dealt with by said sections 29 and 2. I do not think, having regard to the whole section, that undue importance should be attached to the word "location,' for it is manifestly not used in the strict technical sense of that term. But even if we have to turn to the Placer Act we find that "mine," "placer mine" and " diggings" are synonymous terms, and that sufficiently covers the il] GINACA et al. v. McKEE CONSOLIDATED HYDRAULIC, LTD. 291 point, for it is laid down that " placer claim " shall mean " the personal right of property or interest in any placer mine." My view of the section is that the broad intention of the Legislature was to secure to the occupants, being free miners, of placer ground, whether they hold their " mines" as original locators or their assignees, or as leaseholders, that continuous flow of water which the section specifies; I cannot agree that it.was intended to favour actual locators as distinguished from other free miners. The second objection is that because the plaintiffs have, for use 1 on their claim, a water record on another creek they cannot concurrently hold on this creek what has been held to be an equivalent to a statutory record: Brown v. Spruce Creek Power Co. (1905), 11 B. C. 243, 2 M. M. C. 254. .'To my mind, this objection is untenable. Once a free miner obtains certain rights on one creek under the section he does not forfeit them simply because he obtains additional rights on another creek under another section. If he cannot obtain enough water under his statutory record to work his claim, surely he can do so from any other source by whatever lawful means is otherwise open to him under the Act. Simply because his rights are various they are not necessarily antagonistic. At the same time it may possibly be, as contended, that where a free miner has obtained a record on a creek he could not afterwards elaim his statutory amount of water on the same creek, but as to that I express no opinion, because the point does not directly arise. Finally, it is urged that since the defendants' record was issued under the old Act the plaintiffs have no right to more than the 60 inches allowed by that Act, and not the 90 inches authorized by the amendment of 1903-4. But the object clearly of the amendment was to increase the benefits accruing to the free miner, and the section itself is plain because it declares that it shall have application "in any case .... either before or after the date of such record." This is, to my mind, a clear intention to cut down the rights of the holders of water records, and the plaintiffs are entitled to the 90 inches which the court below has given them judgment for. The appeal should be dismissed with costs. 1905 November 8. Full Court. Martin, J. Morrison, J.:—I concur with Mr. Justice Martin. Morrison, J. Appeal dismissed, Irving, J., dissenting. 292 MARTIN'S MINING AND WATER CASES. [vol. 1905 November 8. Full Court. Argument First op May Mining Co. v. Cariboo Gold Fields Limited, et al. Placer Mining—^Water Bights — Mining Partnership, Action by — Foreman — • Unincorporated Company—Name—County Court Mining Jurisdiction—Summary Procedure—Begistrar's Discretion—Private or Public Act—Water Clauses Consolidation Act—Placer Mining Act, sec. 63—Incorporated Company, Appearance by in County Court—Managing Director—Solicitor—Cariboo Gold Fields Limited (Foreign) Act, 1896. Section 63 of the Placer Mining Act does not require an action on behalf of a mining partnership to be brought in the name of the foreman; and it may be brought in the name of the unincorporated company under which the partnership is working. Though in the Supreme Court an incorporated company can only be represented by its solicitor, and not by its chairman or managing director, yet in the County Court in view of the special summary procedure in mining cases it may be so represented, and will be bound by the defence filed by, and conduct at the trial of such officer: Brown v. Spruce Creek Power Co., (1905) anie p. 261, followed. An Act is not a public one because it contains a clause to that effect and is placed among public acts in the statute book. Held, on the facts and on the construction of the defendant company's private act that the plaintiffs had made out a prima facie case at the trial, and were entitled to an injunction. Decision of Cornwall, Co.J., affirmed. Appeal by defendant from a judgment of His Honour Judge Cornwall in the County Court of Cariboo, mining jurisdiction,-; granting the plaintiffs an injunction against the defendant com-1 pany preventing the latter from diverting certain water from Williams Creek in such a way as to infringe upon the plaintiff's right to 300 inches of water in said creek. Argued at Vancouver on 7th and 8th June,. 1905, before Irving, Martin and Morrison, J J. Charles Wilson, K.C, Attorney-General, and Oliver, for appellant. Dennis Murphy; for respondent. Cur. adv. vult. , 8th November, 1905. Judgment. Irving, J.:—The plaintiffs are a mining company, consisting of five partners, each of whom is a free miner. They own and work a claim on the west side of Williams Creek, about one mile from Barker- ville. Two of these partners hold a grant, dated 22nd June, 1900, for 300 inches of water to be used on the First of May Claim, to be n.] FIRST OF MAY M'G CO. v. CARIBOO GOLD FIELDS' LTD, et al. 293 taken from the west side of Williams Creek about 2\ miles above Barkerville, or \\ miles above their claim, and to be returned to the stream just below their claim. The defendants take from the east side of Williams Creek, about two or three hundred yards above the plaintiffs' point of diversion, a large quantity ^of water—so much that the plaintiffs are not able to obtain sufficient to pipe with. This water they use on the Eldorado Leasehold, in which they acquired (26th May, 1904,) a one-fifth interest in consideration of their supplying this water and a man's wages. It was not disputed that the water was being so used, nor was there any defence set up other than they had not wrongfully diverted tne water. In support of this they shewed that they were owners of a one-fifth interest in the Eldorado, and they put in a record of 1,000 inches of water granted on 6th November, 1891, to one Whittier; their lease from the Provincial Government, dated 8th October, 1902, and the Act of the Provincial Legislature entitled The Cariboo Gold Fields Limited (Foreign) Act, 1896, under which they obtained the lease. As to the 1,000 inches granted to Whittier, this grant was in respect of water to be taken above Barkerville, but it was a grant for ten years only. It therefore expired on the 6th November, 1901. The Attorney-General contended that this grant was renewed by the Company's Act or by the lease of 8th October, 19(t2. Turning to the Act first, ch. 6 of 1896, assented to on 17th April, 1896, we find that the Lieutenant-Governor in Council is, by sec. 1, authorized to . grant to the company a lease of certain properties mentioned in schedule A to the Act. The Eldorado lease is not one of these properties. By sec. 2 it is provided that:— ' " The water privileges set forth and described in Schedule B to this Act, now held by the Company, shall be held as appurtenant to the lands hereby authorized to be demised, and to the lands mentioned in Part II. of Schedule A. to this Act, which said lands are now held, by the Company, and may be used for any purposes connected with the Company s undertaking: Provided that no existing water rights shall be prejudiced by this Act." Schedule B mentioned the following water rights, 1,000 inches on Lightning Creek, with which we have no concern; 1,000 inches of water from Williams Creek—obviously the Whittier grant; 700 inches of water from Williams Creek, to be diverted below Barkerville-; and 800 inches from Jack of Clubs Creek, with which wo have no concern. 1905 November 8. Full Court. Irving, J. 291 MARTIN'S MINING AND WATER CASES. [vol. 1905 Sec. 2, therefore, declares that the 1,000 inches of water to be Novembers. jjjjjjgg| above Barkerville shall be held as appurtenant to the lands Full Court. set out in Schedule A, and "may be used for any purpose connected Trving~.i. with the company's undertaking: Pro video that no existing water rights shall be prejudiced by this Act." As the Eldorado Lease is not mentioned in Schedule A, the question arises do the words." and may be used for any purpose connected with the company's undertaking " confer any right on the company to use this water on Eldorado Lease, which was not acquired until four years after the Act had been assented to. The learned County Court: Judge decided that the word " undertaking" was limited to the undertaking in connection with the lands and claims passed or authorized to be passed to them under the Act. I am of the same opinion. The Act is a private Act. The fact that it is included in the list of, and numbered as one of the public Acts, makes no difference. I The learned Attorney-General drew our attention to the clause of the Interpretation Act declaring all Acts to be public Acts. In Dawson v. Paver (1847), 5 Hare, 434, Wigram, V.C., said that " Whether an Act is public or private does not depend upon any technical considerations (such as having a clause or declaration that the Act shall be deemed a public Act), but upon the nature and substance of the case." Acts obtained on the petition of the promoters, as this Act was obtained, are always construed most strictly. This principle, which was correctly applied by the learned County Court Judge, is strongly illustrated by the remarks of Lord Blackburn in his speech in the case of River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743, at p. 766. " If in a local and personal Act we found words that seemed to express an intention to enact something quite unconnected with the purpose of the promoters, and which the Committee would not (if it did its duty) have allowed to be introduced into such an Act. I think the Judges would be justified in putting almost any construction on the words that would prevent its having that , effect." It was then argued that the lease of the 8th October, 1902, established their right to this 1,000 inches to be taken from a point above Barkerville, but the lease limits the company to take 700 inches of water from a point below Barkerville, and it contains this proviso which is of the most importance to the plaintiffs, whose grant is dated two years earlier than the lease:— " Nothing herein shall prejudicially affect any existing right, nor to be held to limit the (Company's) rights as a free miner to apply for and acquire water rights independently of this lease." ii.] FIRST OF MAY M'G CO. v. CARIBOO GOLD FIELDS LTD, et al. 295 So far as I can see they have no right whatever to this water. ot 1905 November 8. It was argued that the procedure leading up to the trial-was so "court irregular as to' invalidate any or,der made at the trial. The procedure in mining jurisdiction is supposed to be a summary procedure, lRVING> J- but the statement of defence put in by the company's foreman shews that he clearly understood the true issue of the case, but the whole of this objection is answered by the principle followed in the case of Beaton v. Sjolander (1903), 9 B. C. 439. The plaintiff's right to maintain this action was also questioned, the objection being that the grant was -made to two members only, and that there was no assignment by them to the other company. But sec. 19 of the Water Clauses Consolidation Act, 1897, would justify the company or the other three partners being joined as plaintiffs. The appeal should be dismissed. Martin, J.:—This appeal arises out of an action respecting Martin, j. mining water rights, in the County Court of Cariboo, tried at Barker- |ville on the'27th of June, 1904. The season was short, the water was low and the plaintiff's piping operations were seriously hampered because of the defendants taking the water claimed by both. The situation, as any one familiar with mining operations will readily understand, was urgent, and consequently and in pursuance of the special and very appropriate powers conferred upon him by sec. 137 of the Placer Act, the Eegistrar exercised his discretion as to what was the "shortest reasonable time necessary in the interest of all- parties concerned," and made the summons, issued on June 23rd, returnable within four days. The trial was then proceeded with, and the plaintiff succeeded in obtaining an injunction preventing the defendant from interfering I with its water rights. It is now, contended that this judgment should be set aside, on several grounds. First, that the action is not properly constituted because it is brought in the name of the First of May Mining Company, which is not shewn to be an incorporated company; and that even if brought by such a company as being a mining partnership, the action should have been in the name of the foreman, and we are referred to sec. 63 of the Placer Act in support of this latter view. I take the latter point first. In my opinion this section does not require the action to be brought in the name of the foreman because it says that he " 'shall represent the partnership and sue and be sued in /the name of the partnership for assessments and otherwise." There is nothing here requiring the name of the foreman to appear on the 296 MARTIN'S MINING AND WATER CASES. [VOL. 1905 November Full Coub Martin, J record, but quite the reverse. It seems to me that if the legislature wished the name of the foreman to appear it would have said so, as it did in the Placer Amendment Act, 1901, sec. 20, in amending sec. 60 of the principal Act. Then, as to the former point: There is nothing requiring the names of the members of the firm or company to appear on the summons, for rule 9 of Order 5 of the County Court Bules -says that; " any t\vo or more persons claiming or being liable as co-partners may sue or be sued in the names of their respective firms, if any." And it goes on to provide that the Judge is given power on an application of any party to the action to order a statement of the names of the persons who are co-partners to. be furnished. That appears to be the only consequence of not setting out the names of the partners in- full in the first instance. Lindley on Partnerships, 1902, Vol. 2, p. 385, says, speaking of unincorporated companies:— " Where the company is carrying on business within the jurisdiction of the High Court, an action may be brought in the name of the company." And I find it is stated in both the Yearly County Court Practice, 1904, p. 230, and in the Yearly Practice of the Supreme Ctourt, 1905, p. 513, that in Hirschfeld v. Elton (unreported) even where a sole plaintiff sued in a firm name and obtained judgment, the Court of Appeal refused to set aside the judgment. The second objection is that though the managing director of the defendant company, after being duly served, entered a formal appearance for his company and appeared at and participated in the trial, yet an incorporated company can only be represented by a solicitor or counsel and is not bound by its manager's action; and we aree referred to the case of the London County Council & London TramA ways Co. (1897), 13 T. L. E. 254. In that case the Queen's Bench Division refused to hear the chairman of a company who appeared to' represent it, on the ground that "company must appear by an attorney who could instruct counsel on their behalf." Though this must be held, in the absence of contrary authority, to be the practice in the Supreme Court of this Province, yet in my opinion it has no application to the special summary procedure of the County Court in the exercise of its mining jurisdiction now under consideration. I refer* particularly to sees. 137 and 138 of the Placer Act as shewing this, and also to the recent judgment of this Court in Brown v. Spruce Creek Power Co, (1905), 2 M. M. C. 254, at p. 261, 11 B. C. 243, wherein it is said " by means of the special and simple procedure of its mining jurisdiction the County Court is enabled to try mining dis* putes much more speedily than the Supreme Court. Section 137 provides that—(section here). And sometimes it is of the first consequence to litigants to get judgment as soon as possible, other- I il] FIRST OF MAY M'G CO. v. CARIBOO GOLD FIELDS LTD, et al. 297 wise heavy loss will follow, of which this very case is an instance m ^r 19(J5 * • . ,, mn • i itt t i • , i • November 8. point." This language could have no stronger application than m —_ the case at bar for the reason stated in the opening paragraph of this FuLL CoURT- judgment. It is urged by the learned Attorney-General that owing Martin, J. to the remoteness of the place of trial, and its being without railway connection, the defendant company could not obtain legal assistance in time for the trial; but the answer to that is that (1) there is no evidence that there was any attempt to do so; and (2) that the circumstances of the case were so urgent that they must be taken to have been in the contemplation of the Legislature when it conferred the exceptional powers above mentioned on the Begistrar to shorten the time for the Court to hear the case. The truth is, of course, that all parties concerned were mutually anxious to have the Court dispose of* the matter at the earliest possible moment. If the appearance of the managing director at the trial was proper, then, as His Honour finds, it is admitted that there were no facts in dispute, and the sole question was one in regard to the construction of certain statutes, as to which I shall speak later—but I wish to say at this point that I accept the statement made at the bar by Mr. Murphy, who was the plaintiff's counsel at the trial, as to what occurred there, and I am satisfied that the proceedings were conducted in a legal manner, and that no application was made by the defendant company for an adjournment, and that there was no objection taken to the jurisdiction nor the form of the pleadings. Should, it be necessary to consider the question of waiver and jurisdiction, though I do not think it is, the case of Beaton v. Sjdlander (1903), 9 B. C. 439, should be referred to. Then as to the merits of the legal question raised on the documentary evidence. It appears that the plaintiff's rights depend upon the water record on Williams Creek dated the 22nd June, 1900, while those of the defendant company are founded on its special Act of Consolidation,, the Cariboo Gold Fields, Limited (Foreign) Act, 1896, and sec. 2 and Schedule B. thereof* in particular. The water record of 1,000 inches on Williams Creek mentioned in that Schedule is doubtless that of Whittier, set out on p. 11 of the Appeal Book. This record was only for a period of ten years, and consequently lapsed in 1901. Though by sec. 1 it was declared to be lawful for the Lieutenant-Governor to demise certain specified lands to the company, yet the lease was not issued till more than six years after the passing of the Act, i.e.. on 8th October, 1902, and in the meantime, and two years previously, the water record on which the plaintiff i relies had been acquired. In such circumstances I am quite unable ;o see that the defendant company has anything to complain of. It vould be going very far to allow it to take the position that it could .298 MARTIN'S MINING AND WTATER CASES. [VOL. 1905 November t Full Court Martin, J. lie by-for years and not take out the lease it was authorized to receive if it wanted it, and then after others had come in, seek to oust them under a lease subsequently granted. Sec. 2 does not contemplate anything of the kind; indeed, a fair construction of it is against it, for it says that " no existing water rights shall be prejudiced by this Act." True, though the plaintiff's rights did not exist at that time they did exist before the authorized demise referred to in the same section was made. And in any event in the lease itself it is declared that it shall not "prejudicially affect any existing water rights." The point as to the expiry of the record within ten years is not met, in my opinion, by the term of twenty years mentioned in the lease, or otherwise; nor is there anything to lead me to take the view that it was intended that by the lease the water rights mentioned in Schedule B were to be extended to correspond to the tenure of the lands demised; the two things are quite distinct and held in different ways under different statutes. The lease does not even refer to B, nor is there any definite power given in either sec. 1 or 2 to grant or extend water rights. The most that can be held in my opinion eveji after giving full effect to the preamble, is that so long as the water rights mentioned are in existence they shall be "held as appurtenant to the lands .... demised " as therein mentioned. There is a further objection which seems to me fatal, though it arises apparently from some mistake in regard to the locality. The water here is diverted above the town of Barkerville, but there is no power to do this, see lease (A. B. pv 17), which fixes the point of diversion at Dower's Cabin, but that point is declared by this statute, in Schedule B, to be below Barkerville. It is unfortunate that such an error, which is admitted, should have crept in, but when the effect of it is insisted upon," as it is, it is none the less serious. It is< admitted that the defendant company has been using the j water in question in connection with the Eldorado lease, which is not part of the lands demised. In my opinion it would be unduly straining the Act and conferring upon the company privileges which were never contemplated to permit this to be done, and the words hi j sec. 2, " for any purposes connected with the company's undertaking," | do not warrant it. The result is that the defendant has no record, statutory or otherwise, to the water in question, and, therefore, according to Brown v. Spruce Creek Power Co. supra, has no status from which it can attack the plaintiff's record. Other objections were raised by the plaintiff, but it is unnecessary; to consider them, for enough has been shewn to uphold the judgment,) and therefore the appeal should be dismissed with costs. ii.] FIRST OF MAY M'G CO. v. CARIBOO GOLD FIELDS LTD, et al. 299 So far I have been assuming that the entry of appearance by , 1905 au t ■ ,i t n , n , • i i n -, i , November 8. the managing director on the record and at the trial was lawiul, but assuming it was not, then the matter*could only have been considered Full Court. by the trial Judge, and can only now be considered by us in the light Martin, J. of there being no defence whatever to the plaintiff's claim, and it was the duty of the trial Judge to proceed at once to determine it as directed by said sec. 137. The evidence properly before us, then, is only that adduced by the plaintiff company, because we must disregard any evidence, documentary or otherwise, now in the appeal book which was put in by the defendant, for if it was not entitled to appear it was not entitled to give evidence; it cannot be allowed to evade the responsibility of its appearance and yet take advantage of any evidence it may have put in, improperly, as its counsel now contends, at the trial. After considering the learned Judge's notes of what took place at i the trial, and the documents and evidence then before him, I have i no hesitation in saying that it was his duty to give, as he did give, \ judgment for the plaintiff company. His notes of evidence are, as might be expected, and is usually the case in trials in the County [ Court held in remote districts, not so full as we could wish, but there [is ample before us to satisfy me that the plaintiff did shew that its frights had *been improperly interfered with. These notes shew that he was satisfied on the following main facts—(1) that the free miners' licences of all the plaintiffs were in order; (2) that the records, i.e., documentary title of the plaintiff company were also in order; and (3) that the f5es to the Crown for the water record had been paid; and the only inference from the evidence is that the members of the mining partnership were operating under the water record granted to two of tr^eir members, i.e., Beid and MacPherson, and had been interfered with in their lawful enjoyment of the same by the defendant company. I do not see what more was necessary to prove a prima facie case, and the learned Judge would not have been justified had he non-suited the plaintiff company, as he could have done under sec. 159 of the County Courts Act, which empowers him x> do so if " satisfactory proof was not given entitling the plaintiff >» the judgment of the Court." Morrison, J., concurred. Morrison, J. Appeal dismissed. Note.—5As to what is a private Act, see Esquimalt Water Works Co.. Ltd., '. City of Victoria, post, p. 480. 300 MARTIN'S MINING AND WATER CASES. [VOL. 1905 November 27 Duff, J. Statement. Judgment. Wallace v. Flewin et al. (No. 2). (11 b. c. 354.) Water Clauses Consolidation Act, 1897, sec. 86, and sec. «.^J^^^ from Commissioner under—Provisions of-Power of Commissioner to Amend Record—"Becord"—Functus Officio—Nullity. A Commissioner who has adjudicated upon an application for a record under se^ of the Water Clauses Consolidation Act (before its amendment m 1905) and has made the appropriate entry, is functus officio, and has no l?Zl ISenTbe made, it is a nullity, and cannot be reviewed in any proceedings under section 36. Petition under section 36 of the Water Clauses Consolidation Act, 1897, for cancellation of a water record. Flewin, Water Commissioner at Port Simpson, issued a water record in February to one Keith, and-subsequently, in March, at the request of Keith, amended said record to read as having been granted to Keith and Hamilton. Wallace applied under section 36 of the Water Clauses Consolidation Act for an order cancelling the said record, and the petition was heard by Dupe, J., at Victoria, on November 27th, 1905. Bodwell, K.C. (Oliver, with him), for the petitioners. Bowser, K.C, for the respondents'. Duef, J.:—By section 2 of the Water Clauses Consolidation Act, 1897, " record " is defined to be 1 an entry in some official book kept for that purpose." Prior to the amending Act of 1905 (cap. 55, sec. 2), the Commissioner having adjudicated upon an application for a record, and having made the appropriate entry, was in my opinion functus officio. li under the law as it then stood, the Commissioner had \ power to amend a record, it must have been by virtue of some implica- I tion capable of being derived from the provisions of the Act; and moreover as there is nothing in those provisions restricting the mode of its exercise—such a power, if it existed, must have been exerciseable by the Commissioner, after any lapse of time, with or without notice to persons whose rights might be affected, and indeed ex mero motu suo. The effectual exercise by the Commissioner of the powers expressly conferred by the Act does not depend upon the \ 302 MARTIN'S MINING AND WATER CASES. [VOL. Court c Canadj •Statement. DOCKSTEADER V. CLARK. (36 S. C. 622.) Mineral Claim—Location—Over-location on Valid Location—Unoccupied Crown Lands—Agent, Location by—Defect or Irregularity—Initial-Post— Location Line—Compass Bearing—Misleading—Finding of Fact by Trial Judge—Curative Provisions of sub-sec. (g) of sec. 16 of Mineral Act, 1898. I A mineral claim may be located by an agent. If the location line crosses other existing valid locations it does not invalidate the junior location unless in the circumstances it is calculated to mislead, i If the initial post is placed on an existing valid location it does not invalidate J the junior location unless in the circumstances it is calculated to mislead. The question as to whether a deviation from any of the formalities prescribed I by \the Act is calculated to mislead is one of fact depending on the nature i of the locus in quo. The learned trial Judge having found that an error in an approximate compass bearing of 77° 50" was in the circumstances calculated to mislead, his finding j would not be disturbed unless shewn to be clearly wrong. Discovery of mineral is the essential thing in securing the privilege from the | Crown of the exclusive right to mining ground, and therefore every reasonable intendment ought to be made to uphold the validity of a location wher^ there has been actual discovery and an honest attempt to comply with the directions of the legislature in staking and recording. Curative seci 16, sub-sec. (g), and Madden v. Connell (1899), 1 M. M. C.:| 359; and Manley v. Collom (1902), 1 M. M. C. 487, considered. Decision of Full Court of British Columbia affirmed, Idington, J., dissenting. Appeal from a decision of the Full Court of British Columbia (ante p. 193), affirming the judgment at the trial in favour of thej plaintiff. The action was brought by the owner of the Colonial mining claim to adverse the Wild Rose claim, owned by the defendant Clark.§ The trial Judge held that the Wild Rose claim was invalid, and oh appeal to the full Court and also on the present appeal the only question dealt -with was whether or not the Colonial was a good claim. The objection to the Colonial was that its initial post No. 1 was placed some 290 feet in on the Chicago; another claim located and held by grant from the Crown. The trial Judge and the Supreme j Court of British Columbia held that this was not, under the circumstances, calculated to mislead other prospectors in the vicinity; that the plaintiff had actually discovered mineral in place; and that he n.] DOCKSTEADER v. CLARK. 303 had bona fide attempted to comply with the provisions of the Min- 19^5 eral Act; therefore his claim was valid. The defendant then ap- pealed to the Supreme Court of Canada. , Supreme r r Court of Canada. W. A. Macdonald, K.C, for the appellant. Under the Mineral Argument. Act of British Columbia the initial post, No. 1, is the root of title to the claim: Madden v. Connell; and must be placed on the ground to be located: Madden v. Connell (1899), 1 M. M. C. 359, 6 B. C. 76, 531, 30 S. C. 109; Belk v. Meagher (1881), 104 U. S. 279. The defect in this case is not a mere formality which can be cured by sub-section (g) of the Mineral Act of 1898; Pellent v. Almoure (1897), 1 M. M. C. 134; Callanan v. George (1898), 1 M. M. C. 242, 8 B. C. 146; Coplen v. Callahan (1900), 1 M. M. C. 348. 6 B. C. 523, 7 B. C. 422, 30' S. C. 555; Collom v.' Manley (1902), 1 M. M. C. 487, 8 B. C. 153, 32 S. C. 371. Sub-section (/) of the Act of 1898 provides a means whereby the ^locator of a fractional claim could. make it valid notwithstanding such an error, which shews, by implication, that a full claim could not. Expressio unius est exclusio alterius. See Hamilton v. Baker (1889), 14 A. C. 209. S. 8. Taylor, K.C, for the respondent. The maxim expressio wiius est exclusio alterius cannot be applied as contended; see London Joint Stock Bank v. Mayor of London (1875), 1 C P. D. 1, 17; Thames Conservators v. Smeed, Dean S- Co. (1897), 2 Q. B. 334, 351; Broom's Legal Maxims, 493. As to position of the post see Lindley on Mines (2nd ed.), pp. 548-9, 656-8; Del Monte Mining Co. v.'Last Chance Mining Co. (1898), 171 U. S. 55; Sandberg v. Ferguson (1904), 2 M. M. C. 165, 35 S. C 476, 10 B. C 123. The Chief Justice :—I would dismiss this appeal. The finding judgment of at the trial, approved of by the Court in banco, that the position of Taschereau, the No. 1 post was not calculated to mislead other persons desiring to locate claims in the vicinity, cannot be reviewed here, and that puts an end to the controversy. Sub-section (g)- of section 16, as amended by the Act of 1898, must be given a liberal interpretation. It applies in express terms to all the preceding provisions of the section. I entirely agree with Chief Justice Hunter's reasoning. Girouard, J.:—The appeal should be dismissed with c^osts, for Girouard, j. j the reasons given by Chief Justice Hunter. Davies, nissed and J.:—I am of the opinion that this appeal should be dis- Davies,J. I the judgment of the majority of the Supreme Court of \ 304 1905 November % Supreme Court of Canada. Davies, J. MARTIN'S MINING AND WATER CASES. [VOL. British Columbia affirmed for the reasons stated by the Chief Justice ' of that Court speaking for the majority. I will add a few words only to those reasons which commended themselves to my mind as alike comprehensive and conclusive, and^ I do so only because of the differences in the opinions of the mem-' bers of this Court. The question before us is as to the true construction of sections 12, 15 and 16 of the Mineral Act of British Columbia, as amended by the Act of 1898, and the particular point we are asked to decide is whether a free miner in staking his claim under the 16th section invalidates and voids the claim in toto if he inadvertently places its initial stake within the legal bounds of another miner's claim or location, or whether the curative provisions of sub-section (g) of section 16 are applicable and can be invoked even in such a case so as to validate that part or portion of the claim sought to be located which did not infringe upon any other claim. The arguments against the curative section applying to correct an error arising out of an initial stake being placed inadvertently in another claim or location were that such latter claim was excepted by section 12 out of the waste lands of the Crown which a free miner could enter upon and locate, and, therefore, the mining locator could not place his stake there at all, it being " proscribed land" to him, that he was really trespassing in so doing/ and the provisions of the curative section could only apply to correct inadvertent mistakes in marking out a legal location selected and entirely within the area allowed by section 12. Reliance was placed upon the case of Madden v. Connell, supra-. decided before the curative section in question had been introduced •into the Act, where it was held that a location which had its No. 1 post on foreign territory is void. I see no reason whatever to call in question that decision or the principle on which it was based. The legislature of British Columbia had no jurisdiction whatever over the lands of a foreign country and none of the provisions of the Mining Act could by any possible intendment be held as applicable to a stake driven in* the soil of that country and indicating where a mining location was to be found and bounded in British Columbia. To my mind there is a marked and vital difference between such a stake and one set within the territory generally allocated to mining j prospectors in British Columbia, but which on a proper survey of the location turns out to be set within the legal limits of an adjoining j prior location; a totally different set of questions at once arises. Of course, no one could contend that the setting up of such a stake in an adjoining location operated to take away any of that location from its owner. All that is contended for is that under certain | II.] DOCKSTEADER v. CLARK. 305 well defined statutory conditions such a placing of the initial stake 191)5 is not necessarily fatal to the entire claim or location of the miner setting it up. Supreme 0 x Court of Then we were pressed with our decision in Collom v. Manley, Canada. supra. The curative section of the Act as it exists at present could Davies, j. not be invoked in that case, because it was not passed until after the disputes there had arisen, and I fail to understand how our decision in that case affects this one. In delivering the judgment of the court, Sedgewick, J., explaining what our holdings were in the previous case of Coplen v. Callahan, supra, said at p. 374:— We held that everyv direction of sec. 16 was imperative, that any deviations from or irregularity in respect to such directions were fatal to the location unless they came within the curative provisions of sub-sec. (g) ; that these were the only statutory provisions that could be invoked in favour of an otherwise invalid location. There is nothing, however, in that case putting any construction upon this curative section or attempting to place any limitation upon its provisions. We have, therefore, now to put a construction upon it for the first time and unfettered by any previous decision. To my mind the argument of the appelFant that the placing of the initial post of a location or claim within the limits of a prior location was fatal and could not be cured, must logically, under our decision in Collom v. Manley, supra, apply also to the second stake, because the placing of one as. of the other is by the same section 16 made imperative and the absence of either or the placing of either on " proscribed lands " would be equally fatal; and so I am unable to see why the logical conclusion of the argument would not extend to a location sought to be made where both stakes were placed properly enough upon waste lands of the Crown, but the line between the two embraced within it part of a prior location. Such part was equally "proscribed lands," and if the placing of one of the posts in such proscribed lands was fatal, so the crossing of such lands by the line between the posts and embracing them within the junior location must be fatal also to that location. The statute requires that such line shall be marked so that it shall be distinctly cutting underbrush. in timbered localities by blazing trees and Chief Justice Hunter has, I think, satisfactorily answered the argument that the placing of the initial post in located lands was a trespass. The limited nature of the locator's rights in' his location sufficiently shews that. If it was held to be a trespass as against a prior locator, so would be a similar placing of No. 2 post, and so 306 MARTIN'S MINING AND WATER CASES. [vol. 19Q5 would be the mining and marking out of a line across a prior location, November 27. eyen || ^ twQ p0gts were pr0perly placed. Supreme t p , ., . ,-, . .-, ■/, » ,-. . • An .• Court of In fact it seems to me that the result of the argument invalidating Canada, the entire location in any and every event and'condition because the Davies, J. initial post was in a prior location would be so to minimize the effect of the curative sub-section as to render it practically inoperative. Mr. McDonald, for the appellant, was obliged to concede that even if that post v/as placed on a prior location with the full consent of its owner, the result would be equally the same. Now what does the curative sub-section (g) say? It reads as I follows:— Provided that the failiire on the part of the locator of a mineral cfeim to :. comply with any of the foregoing provisions of this section, shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bona fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity. Now, one of the foregoing provisions of section 16 required both posts, Nos. 1 and 2, to be placed in waste lands of the Crown not previously located. That is the very contention of the appellant as to the meaning of- the section, and in the present case one of the posts was admittedly not so placed. But the trial Judge has found as facts on evidence which the Court below held, and which I hold, as fully satisfactory, that the locator had actually discovered mineral in place; and there was a bona fide attempt on his part to comply with the provisions of the Act. and his blunder —if it is a blunder—is of a character calculated to mislead other persons desiring to locate claims in that vicinity. I cannot, therefore, entertain any reasonable doubt that this finding brings the locator within the very object and scope of the subsection, and that his inadvertent mistake was not, under the circumstances and findings, a fatal one, though, of course, it did not and could not operate so as to take away any of the rights of the prior locator. Idington, J., Idington, J. (dissenting) :—If the British Columbia Act, known dissenting. ag rj^Q Mineral Act, had not been amended, since the case of Madden v. Connell, supra, arose, would that decision bind us here to allow this appeal? The judgments in this Court and in the Court below in that case are so brief and pointed that I do not think it difficult to apprehend their meaning. II.] DOCKSTEADER v. CLARK. 307 The initial stake in question there had been erroneously planted 19^ 289 feet beyond the boundary line between Canada and the United States. Supreme Court of Canada Mr. Justice Martin, in that case, which is reported in 6 Britis Columbia Reports at p. 531, sneaking; for the full Court, said:— Idington, J., ' L 5 ■ . dissenting. The Mineral Act of British Columbia does not contemplate the existence of a claim which takes its root, i.e., has its initial post, in a foreign soil, and, as I regard it, the whole situation is void ab initio, or, to put it in another way, there never was in law such a claim as the Sheep Creek Star. Sir Henry Strong, then Chief Justice of this Court, in delivering the unanimous judgment of the Court on the appeal from the above mentioned judgment, briefly stated the conclusion, and then said:— As Mr. Justice Martin says in giving jud British Columbia, the position is the same as claim. it for the Supreme Court of there had never been such a Did these judicial deliverances rest upon any legal impossibility of going across the line that divides the two countries, to verify the courses and length of boundaries that the claimant .of the location had thus mistakenly defined? I should think not. Neither international law, nor the relations between the countries at the time, had placed the. slightest obstacle in the way of verification of the boundaries of the location, and of rectification thereof, if the mining law of British Columbia had permitted of such rectification. It seems to me that these judgments were the result of a long line of authorities that treated literal compliance, with the requirements of the statutes in regard to mining locations as a condition precedent to the validity of any claim to a license to mine in a particular location. The miner locating had no right to invade the territory of another, whether that other happened to be a foreign state, or a neighbouring proprietor, or licensee, for the purpose of either selecting a place to plant, or of planting, an initial stake. The law clearly defined where he had a right to go to do so. It was on the waste lands, of the Crown, or lands over which the Crown had a right to license mining to be done. It was never supposed that the free miner would go elsewhere. It was indeed, I think, pre-supposed that he would not. And, as a result, when he did, and invaded, though only slightly, land in a neighbouring state, but yet held by no more sacred rights of ownership than that of any other neighbours, he never acquired, thereby, anv right of location. 308 MARTIN'S MINING AND WATER CASES. [VOL. 1905 November 27 Supreme Court of Canada . Idington, J. dissenting. It is upon the principle I thus indicate that I conceive the deci- ' sion of Madden v. Connell, supra, was rested. I, therefore, am constrained to hold that having regard to the principle that guided this Court to that decision, it is now here '. binding upon us, unless the law has been changed by the amendments that have been so elaborately discussed before us. What has since been done, is to repeal section 16 of the Mining Act, and substitute for it another which provided, first, for fractional mineral claims being located and described, by a plan that need not be rectangular; and then, secondly, at the end of the amended section, the curative provision that still remains part of the section, and to which I will hereafter advert, was added. Then the legislature in a year or two, apparently intending to restrict the liberty of description that the preceding amendment had given the free miner in regard to fractional claims, further amended this section by repealing and substituting an amended section, which directed that a fractional mineral claim shall be marked by two legal posts placed as near as possible on the Une of the previously located mineral claims and shall be numbered 1 and 2, etc., etc. This was a departure that imposed by law upon the free miner a duty, the proper execution of which involved some risk. If regard was to be had to the recognized legal methods of interpretation, and the same canons of construction were to be applied to these requirements as had hitherto for a long time been applied to such like enactments respecting posts for defining general mining locations, the free miner should in justice be protected against this risk. And he was by this amended section protected accordingly by providing for the Gold Commissioner of the District, moving in the case of an honest mistake the post that had been inadvertently placed on another previously located mineral claim, instead of on the line as required by the Act. Now, without pressing unduly the application of the maxim expressio unius est exclusio alterius, what does appear to me as very- singular, is, that if placing posts or selecting a place in which to place posts as means of defining a location is a mere formality, that the curative proviso of this section would be applicable to, why was this particular method of protecting against mistakes honestly made in regard to those posts, locating the fractional mineral claim adopted and specially enacted? I am unable to see any good purpose it could serve if the present contention of the respondent be well founded. The curative proviso stood in the section before this amendment. DOCKSTEADER v. CLARK. soy It remained word for word; as much more of the section did, when 1905 -, -. November ! amended. One thing from this is quite clear, that the legislature did not think lightly of the consequences of invading with such posts the territory of another. The legislature did not see fit to rely on the efficacy of this curative proviso, with serene confidence that it would protect all honest miners who had within the fraction discovered mineral. Of course, if the maxim of which so much has been said were to be strictly applied, there would seem to be an end of the respondent's case. But we i\re trying to get at the meaning of a complicated enactment that was not framed all at one time, but at many times, and, therefore, allowance has to be made in such cases. See remarks of Baron Martin in Miller v. Salomons (1852), 7 Ex. 475, 531. I think we must look at the curative proviso, and interpret it in the light of the history of the legislation in question and of the history of the judicial interpretation of such legislation, the probable wrongs such a proviso was intended to remedy and the measure of protection it probably was designed to give to honest discoverers, and adopt a result, if we can, that will not be fantastical. It is quite clear that posts properly placed have ever been intended to bind the discoverers as well as protect the prospectors. It is equally clear that the rigid interpretation of the minor and formal requirements of legislation, in relation to the nature of the post, and the markings thereon and in relation thereto, had harsh and unexpected results, and that a necessity arose for relaxing these. It is not so clear that this relaxation was^ ever intended to go the length of sweeping away everything but a discovery and honest intent. Much less could it be supposed that the place selected by the miner for his initial stake, which has been properly called the root of his title, might be chosen with impunity and be looked upon entirely as a formality. If that had been the purpose of the legislature I think the whole plan of legislation would have been changed, and the Act recast. And when we come to read this proviso, which is as follows: Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provisions of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bond fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity, Supreme ' Court of Canada. Idington, J., dissenting. we must read it as a whole. 310 MARTIN'S MINING AND WATER CASES. [VOL. 1905 And when we do that we must read it as dealing with " the for- November27. maiities» and not with the very essence of the whoje work or plan Supreme of action. Court*of Canada. It was never necessary to do so. Idington, J., The miner had ample means of fully protecting himself in mak- dissenting. • ft generai mining location. #The law provided that prior prospectors should not only erect posts, but also blaze lines or erect posts to mark clearly the ground already taken, so as to clearly distinguish it from, the remaining waste lands upon which the newcomers could operate. Thus the free miner could, with due - care, protect himself, by keeping well within the waste lands and clear of the established lines of prior locations, when selecting the place to plant an initial post; and to the right and left of that selected point, or the line drawn therefrom, he could claim as much as the law allowed him. And if by chance he overlapped, such overlapping and all else that followed in his work might or might not be of the nature of a , " formality." It is to be observed that the discoverers do not rest such claims I as are put in issue here, upon a grant from the Crown or any one else. At this stage the claimant prescribes, of his own motion, and to be effective must comply strictly with the requirements of the statute permitting him to prescribe such a right, unless the requirements be clearly qualified by some protecting proviso. To go so far as the respondent asks, in order to protect him, would savour, I venture with due respect to think, of legislation rather than adjudication. I think, therefore, the appeal should be allowed with costs, and the declaration be made that Mr. Justice Martin suggests in favour of the " Wild Rose " claim. Maolennan Maclennan, J.:—I am of opinion that the respondent's loca- tion is valid and that the judgment in bis favour to that effect ™ The contest is between two mineral locations coveting in great part the same ground. The respondent's location was made on the 7th of October, 1900, and that of the appellant on the 4th September, 1902. It is5 not disputed that but for the previous location of the respondent's location called the Colonial the appellant's location called the Wild Hose Fraction, would be in all respects valid. The" sole question, therefore, is the validity of the Colonial. The first objection made to the validity of the Colonial is that when it.was located the ground was occupied by a previous location H.] DOCKSTEADER v. CLARK. 311 called the Cody Fraction. The courts below all held unanimously 1905 that the Cody Fraction, was and always had been an invalid location, Nove^^r 27 for reasons in which I entirely agree, and that the validity of the supreme ri i • -i j xi i no 1 -i ' Court of Colonial was not thereby affected. Canada. The only serious question in this appeal is whether or not the Maclennan, Colonial is invalid on the ground that stake No. 1 was placed within J' the limits of another location called the Chicago, which had then been surveyed and Crown granted, at a point as much as 290 feet from the boundary; and that the line between stakes No. 1 and No. 2 passed on a part of its course a few feet within the limits of another location called the Freddie Lee. The Colonial, as described, is a tract 2,500 feet square lying to the left of the lino drawn between the posts 1 and 2,—that line being one of the sides of the square. According to one of the plans produced, the encroachment of this square upon the Chicago is in the form of an acute angled triangle containing about 2-J acres, and the encroachment upon the Freddie Lee is a long and very narrow strip, containing perhaps half or three-quarters of an acre of land. Now, there is no question that this encroachment was made in good faith and by inadvertence. The whole location contains 51% acres, of which about three acres overlap or encroach upon the Chicago and Freddie Lee, and the remaining 48% ^acres are upon perfectly lawful ground. Of course, the respondent could get or take nothing within the limits of the Chicago and Freddie Lee locations. Those locations had already been secured by others to whom grants had been made by the Crown. But why should his location not be good for the 48% acres? His description covered that perfectly, although it also covered a little more. If the Crown having granted . the Chicago and Freddie Lee had afterwards granted the Colonial by the very description adopted by the respondent, there can be no doubt the latter grant would be good for all not previously included ♦ in the other two. The object of the mining Acts is to promote the discovery of minerals in the lands of the Crown, and an inducement, is held out to persons to search for them by enabling them to secure the exclusive possession of ground or rock, in which they may have found minerals and to take the minerals for their own use. The essential thing to secure that privilege is the discovery of minerals, and the Act contains certain directions to enable the discoverer to describe "and to secure his location, and to obtain the reward offered by the legislature for his industry. Such being the object and purpose of the Act, I think in construing it every reasonable intendment ought to be made to uphold the validitv of a claim where there has been actual discoverv and an 312 MARTIN'S MINING AND WATER CASES. [VOL. 1905 November 27. Supreme Court of Canada. Maolennan, J. honest attempt to comply with the directions of the legislature in staking and describing the location of the discovery. Except the encroachment on adjacent locations the respondent has complied in every respect with the directions of the Act, and the learned Chief Justice of British Columbia in his judgment has pointed out how difficult it is in a mountainous region to ascertain with exactness the limits of locations, and how easily a person staking a claim might, notwithstanding the greatest care, place his post No. 1 over the boundary of another claim. Therefore, unless the Acts contain something which expressly or by implication declares a location to be invalid by reason of such an error as was committed by the respondents, I think we should hold it not to be fatal in this case. Section 16 of the Mineral Act, R. S. B. C. (1897) is that which prescribes the proceedings to be taken on the ground in locating a claim. It directs the planting of two posts 1,500 feet apart, and that the location is to be at right angles to the straight line between them. It directs certain particulars to be inscribed on the respective posts. No 1, among other things, to be marked Initial Post, and with a statement of the bearing or direction of post No. 2 therefrom. It is further directed that in the event of its being discovered on a survey that No. 2 is more than 1,500 feet distant from No. 1, it shall be moved to the proper distance. It is declared that it shall not be lawful to move No. 1. It may justly be said, therefore, that post No. 1 is a more important post than No. 2, but granting it to be so, I do not see why if it should happen to be placed a foot or even as many as 290 feet within the boundary of an adjacent claim, it should not still answer its purpose of defining the miner's location. The posts are to be placed as nearly as possible on the line of the ledge or vein of mineral which he has discovered, and, of course, to the extent, if any, that such vein^ or ledge is upon ground already located his location would be inoperative; but his posts would still serve their purpose of defining the ground which he claimed as the reward of his discovery. Now, section 16 instead of containing any declaration that the planting of an initial post beyond the line of another location is illegal and void, contains the following sub-section (g) : Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provisions of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bond fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity. II.l DOCKSTEADER v. CLARK. 313 Supreme Court of Canada . Maclennan, J. It is clear that the conditions which make the proviso applicable 1905 exist in this case. It is not disputed that the locator had discovered ovember 27- mineral in place on the location, and it is evident that he made a bond fide attempt to comply with the provisions of the Act, and I think that, although the contrary was Very strenuously argued, the fault in locating the initial post within the limits of the Chicago was not calculated to mislead other persons desiring to locate claims in the locality. ■ It was argued that the fault committed by the respondent was a violation of sections 12 and 15, and that violations of those sections are not cured by sub-section (g). Section 12 provides that a free-miner may enter, locate, prospect and mine upon any waste lands of the Crown with certain exceptions, one of which is " land lawfully occupied for mining purposes;" and section 15 provides that such miner may locate a claim 1,500 feet square " subject to the provisions of the Act." Now, what the respondent did was a literal compliance with section 12. He did, in fact, enter upon waste lands of the Crown and found mineral thereon, and the land on which he found mineral was not land then occupied for mining purposes. In making his discovery he had not committed any infraction of either section 12 or section 15. It was not until he came to comply with section 16 by defining and describing his location by marking it with posts that he committed an error. By mistake he planted his initial post outside of the waste lands of the Crown on which he had discovered mineral. That was something he did in endeavouring to comply with section 16, and his mistake, in my judgment, is cured by sub-section (g). It was argued also that this case is governed by that of Connell v. Madden, supra, in which the decision of the courts of British Columbia was affirmed in this Court. In that case the initial post was planted in the United States at a distance of 289 feet south of the international boundary, and it was held that the claim was thereby made utterly void, and that the position was the same as if there never had been such a claim. The location which was there in question was located in August, 1&94, before sub-section (g) was enacted. I think that is a very different case and not decisive of the present. A post planted-in a foreign country could be nothing whatever in this country. For these reasons, and those expressed in the opinion of the learned Chief Justice of British Columbia, in which I concur, I am of opinion that the appeal fails and should be dismissed. Appeal dismissed with costs. 314 MARTIN'S MINING AND WATER CASES [VOL. 1905 Wheelden v. Cranston. December 9. MarTin, J (12 B. C. 489.) Placer Claim—Location under Bepealed Act a Nullity—Belocation under Existing Act on Discovery of Error—Abandonment—Bepresentation—Work done on Adjoining Claim—" Miner-like work "—Placer Mining Act, B. S. B. C 1897, cap. 136; 1901, cap. 38—Trespass—Damages, Nominal. Where a placer claim has been mistakenly located pursuant to the provisions of a repealed statute such an attempted location is a nullity, *and the claim may be located de novo under an existing statute without formally posting notice of abandonment of the abortive location. Miner-like work done by a miner in making a cut through an adjoining claim, with the consent of the owners, for the bond fide working; of his own claim, is a representation thereof: Woodbury v. Hudnut (1884), 1 M. M. C 31, followed and applied. A post, on the common and co-terminous boundary line of two claims which has written on its opposite sides the names of the two claims facing the respective locations, may perform a joint duty. It is not necessary to have^two distinct sets of posts to mark the same boundary line. If a free miner has obtained the consent of other owners to construct a tunnel through their property, it is not necessary for him to obtain the consent of the Gold Commissioner under sec. 48 to do so. On the facts, the plaintiff was awarded nominal damages ($1) for the trespass. Statement. Trial before Martin, J., at Nelson, on the 8th of December, . 1905. On the 3rd of December, 1904, the plaintiff located a placer claim situate on 49 Creek near Nelson, B.C., which claim he called the Owl. This claim he recorded at Nelson on the 6th of December, 1904. * Upon the 11th of September, 1905, the defendant located over this claim a placer claim called Golden Dawn, which he recorded on the same day. The defence was that the plaintiff had located the ground covered by the Owl on the 1st December, 1904, under the same name, viz., Owl, which was in existence when the plaintiff on the 3rd of De- ' cember, 1904, located the Owl first above named. Further defences were set up on the trial as follows: that the plaintiff had not represented and bona fide worked the Owl claim since the location thereof, and it had lapsed; to which the plaintiff replied that while he had not been actually mining on the, claim he had built trails and a cabin upon the same, and was engaged in digging a cut through the adjoining claims with 'the consent of the owners, which cut was necessary in order that he might get a tail race .for his flumes, etc., WrHEELDEN v. CRANSTON. 315 and thus mine the Owl claim. In reply to the defence first named, '] 1905 • -,,! ,-, ^.ti -t nn i p t-n i -i t\r\A December 9. he said that the Owl located on the 1st of December, 1904, was j improperly located, and hence not a placer claim, and need not be Martin, J. formally abandoned in order that the Owl located on the 3rd of December, 1904, and now claimed under, might be located. S. S. Taylor, K.C, for plaintiff. A. M. Johnson, for defendant. 9th December, 1905. Martin, J.:—Several questions on the Placer Mining Act are raised herein, and I shall dispose of them in their order. First. It is objected that the plaihtiff has not "represented and bond fide worked .' . . continuously, as nearly as practicable during working hours " the placer claim, the Owl, in question, while he was engaged in building his cabin on the claim in which to live while working it. This point has already been answered in favour of the plaintiff by the judgment of this Cou*rt in Woodbury v. Hudnut (1884), 1 M. M. C. 31 at p. 34; 1 B. C. (Pt. 2) 39 at pp. 41-2, wherein it is laid down as follows: " It was said that the work to be done on a claim (which is to be worked continuously) must be miner-like work—that building a house is not miner-like work at all; and, moreover, that the house in question was not on the Kootenay Chief ground at all, though not far off. Now, of course, in Cornwall or Northumberland, building a house is not miner's work—it is not mining at all. In old and highly organized countries the landlord mines with hired labour, and puts up houses for his men. Yet the cost of those houses is just as much part of his mining capital invested in the mines, and the houses are just as useful for working the mines as pumps and furnaces with which the water is removed or the ore roasted. And among the hills of British Columbia the first thing a miner does (when he intends continuous working) is to secure, or build if necessary, a cabin in a spot convenient as possible to his claim. It is not neces- ■ sary that it should be actually on his ground. There may be overwhelming advantages in wood and water a quarter of a mile off. It is quite sufficient if it be in a place manifestly convenient for the workers. The building of »a cabin on first settling down to the serious working of a mineral claim is therefore just as much miner's work in reference to the holding and working the claim as is, afterwards, the sinking of a shaft or the driving a tunnel, or building a pump." That case was decided on the following sections of the Act of 1882 : " 48. Every free miner shall, during the continuance of his certificate, have the exclusive right of entry upon his own claim, for the miner-like working thereof, and the construction of a residence thereon, and shall be entitled exclusively to all the proceeds realized therefrom; provided, that his claim be duly registered, and faithfully and not colourably worked: but he shall have no surface rights therein. Provided, also, that the Gold Commissioner may, upon application made to him, allow adjacent claim-holders such right of entry thereon as may be absolutely necessary for the working of their claims, and upon such terms as may to him seem reasonable. 816 MARTIN'S MINING AND WATER CASES. [vol. 1905 December Martin, J. " 51. A claim shall be deemed to be abandoned and open to the occupation of any free miner when the same shall have remained unworked on working days by the registered holder thereof for the space of seventy-two hours, unless sickness or other reasonable cause be shewn. " 52. Every full sized claim pr full interest as defined in this Act shall be represented and bona fide worked by the owner thereof, or by some person on his behalf." Second. It is submitted that because the plaintiff had already located a claim covering the same ground, on December 1st, he could not relocate it subsequently (on December 3rd), without complying with section 7 of the Placer Mining Act Amendment Act, 1901, i.e., in this case he should have posted formal notice of abandonment on the four corner posts of his claim because it had not yet been recorded. What happened is peculiar. The plaintiff essayed to make a valid location of a " creek claim" under the repealed section 20 of the statute of 1897, which gave him a claim 100 feet square. What he did amounted to making a valid location under that Act, but when he came to record the location he found out *from the mining recorder that the law had been changed and that by the Act of 1901, then in force, he was entitled to a claim 250 feet square which could only be obtained by conforming to the formalities of that statute, which differed from the former under which he had made his location. He thereupon decided to proceed no further with his abortive attempt under the former statute, and proceeded to locate under the existing one. In such circumstances I am of the opinion that he did right in treating the result of his former misconceived efforts as a nullity, and consequently it was unnecessary to comply with said section 7. There was no bar ^o his doing so, because no valid claim had been located by him on that creek, and therefore he was justified in beginning de novo to locate one. Though it does not, in this view, strictly affect the question, yet I also point out that said section 7 provides that after observance of its conditions, the locator " shall thereupon be entitled to locate and record another placer claim upon other ground in lieu of the abandoned claim," etc. It would, I think, be found difficult to apply such language to the exceptional facts of this case, because it was the same ground that was relocated by the same locator. Third. It is urged that the relocated claim is invalidated because in placing a necessary post on and about the centre of the common boundary line between the Owl and the Eagle claims, which line was exactly co-terminjous in each claim, one post was used to do duty for both claims. On one side of the post was written the name of the Owl claim, and on the other that of the Eagle. It is contended that the Act requires the erection of a complete and distinct set of posts for each claim, and that no post can perform a joint duty. Before adopting such a very technical construction, such an intention II.] WHEELDEN v. CRANSTON. 817 of the Legislature must clearly appear, but I can find nothing in the Act which positively requires it. What was done was at once convenient and plain, and the notice on the post shewed the two claims it pertained to, so that the object of the Act in requiring due marking of the boundary had been accomplished. Finally, the claim is sought to be invalidated on the ground that it was not continuously worked, or worked at all, for many weeks while the owners were working on the rock-cut (drain) on the Hawk claim, , just below the Owl, on the same creek. It is clear from the evidence that it was necessary for the miner-like working of the Owl that a rock-cut and drain should be constructed through the Hjawk. ,That work was consequently undertaken by the Owl's owners on a grub stake agreement with the owner of the Hawk, and the plaintiff relies upon section 49 of the Placer Act which provides that " A tunnel or drain shall be considered as part of the placer claim, or mine held as real estate, for which the same was constructed." There was no necessity for the plaintiff to resort to section 48 and obtain and record the licence of the Geld Commissioner, for that sec-. tion was passed to protect the rights of other owners and the Crown, while here the plaintiff had obtained the leave and licence of the party concerned. If a drain is to be considered as part of the placer claim, then the miner-like and necessary work done on it applies to and must be held to be a representation of the claim. There is nothing new in the idea that certain work done off a claim and in con-, nection with, it must be so regarded, because in Woodbury v. Hudnut, supra, the cabin was not built on the claim in question. The principle was sought to be distinguished because here the plaintiff was also working the Hawk under the agreement as well as making the drain. But surely because the owners concerned took advantage of the occasion to work that part of the Hawk, through which the rock-cut and drain were constructed, and so save the gold therein*, the plaintiff has not lost his statutory right to have such drain regarded as part of his claim ? Of course if I were satisfied that this was merely a colourable scheme to work the Hawk* and let the Owl lie idle that would be a very different matter. It follows that the plaintiff's location, being a valid one, has been trespassed upon by the defendant, and for that trespass damages must be awarded, but only nominal, i.e., $1, according to Woodbury . Hudnut, as there is no evidence of special damage shewn, and there will be a perpetual injunction restraining future trespass, as prayed. Judgment for plaintiff. 1905 December 9. Note.—There is no curative section in the Placer Mining Acts respecting locations corresponding to that in the Mineral Act—sub-sec. (g) of sec. 16 as amended in 1898, ch. 33. VOL. II. M.M.C. 22. 318 MARTIN'S MINING AND WATER CASES. [VOL. 1906 January 20. Duff, J. Windsor v. Copp. (12 B. C. 212.) Mineral Claim—Location. Invalidity of—Official Administrator's Status Be- specting Estate of Deceased Free Miner—Assessment Work—Certificate of Work Evidence — Location of Lapsed Claim — Omission of Government Official—Irregularity in Declaration for Becord—Substantial Compliance- Curative Section 16 (g)—Discovery of Mineral in Place—Affirmative Evidence of Title—Mineral Act. Sees. 16 (g), 24, 28, 53; Mineral Act Amendment Act, 1898, Sees. 5 and 11. The Official Administrator administering the estate of a free miner dying intestate is a statutory officer simply, and his interest in or possession of a mineral claim is not an interest or possession vested in the Crown, but a trust in favour of private persons, and on his failure to do the annual assessment work the claim lapses and is open to location de novo. The recording of a certificate of work issued after a new location by another free miner does not revive the original location, for a third interest under the same Act has intervened between the Crown and the subject. Assuming^ the Official Administrator was a Government official within the meaning of sec. 53, the act of omission or commission relied on must be a failure to do something which a Government official ought to do. or a doing something which he ought not to do, of which there was no evidence in this ThTquestion of the defendant giving, affirmative evidence of title after the plaintiff's case has failed is to be determined on the assumption that no interest of any kind exists except that of the defendant and of the Crown, and certificates of work are in such case more than prima facie evidence of valid location. . . . . Failure to set out in the declaration for record all the words upon the initial post will not invalidate a location, because a substantial compliance with the statute is sufficient, the rule being that the words should be quoted with sufficient fulness'and accuracy to enable the record to be identified as that of the particular location to which it refers and to prevent fraudulent substitution of other language for that upon the posts. Here the omission of the words " initial post" Held not to invalidate. The declaration is not evidence to shew that the statutory conditions regarding the curative sec. 16 (g) have been complied with, though it is evidence of re- ThTexTstence of certificates of work extending over a long period coupled with proof of- actual occupation is not conclusive presumptive evidence of such compliance. n \ . \ . Held, on the facts that the evidence of discovery of mineral in place was in- sufficient. Peters v. Sampson (1898), 1 M. M. C. 247; Manley v. Collom (1902), lb. 48< ; and Cleary v. Boscowitz (1902), lb. 506. considered. Statement. Adverse action tried at Nelson on the 20th of January, 1906, be fore Duff, J., to determine the title of a mineral claim held under different locations. The plaintiff's claim, known as the June, was located on the 5th of June, 1899, and had been transferred by bill of II.] WINDSOR v. COPP. 319 sale to one John McDermott. McDermott died on the 29th of August, 1906 1901, and letters of administration to his estate were granted to the Official Administrator. No assessment work was done on the claim Pp»&^ by the Official Administrator, and on the 30th of August, 1902, the statement. Parkside mineral claim was located upon the same ground by the defendant's predecessor in title. On the 3rd of April, 1903, the Official Administrator sold the June mineral claim to the plaintiff, and conveyed the same by bill of sale, which was duly recorded. After purchasing the June mineral claim the plaintiff did the annual assessment .work and had the same recorded. The defendant applied for a certificate of improvements in respect to the Parkside, and this action was brought to adverse such application and to have it declared that the June mineral claim was a good, valid and subsisting mineral claim. In the affidavit to record the Parkside, the words ci initial post" were not stated to have been placed upon the No. 1 post, although the evidence shewed that as a matter of fact such, words were upon the No. 1 post. There was no evidence that the locator of the Parkside had discovered rock in place. R. M. Macdonald, and A. M. Johnson, for plaintiff. S. S. Taylor, K.C, for defendant. Duff, J.:—I think that the plaintiff must fail. It is not dis- Judgment, puted that the June mineral claim lapsed by virtue of the provisions of section 24 of the Mineral Act, and that the ground within its limits became by the provisions of that section " vacant and abandoned" prior to the location of the Parkside mineral claim, unless the validity of the June mineral claim at the date of the location of the Parkside i to be deemed to be established by the certificate of work granted to the plaintiff after that date; or secondly, unless the Official Administrator in whom after the death of John McDermott the June became vested was' excused from the performance of the duties imposed upon the holders of mineral claims generally by the provisions of section 24. To deal with the last question first:. it is contended by Mr. Macdonald that the possession of the Official Administrator is the possession of the Crown, and that the June, so long as vested in the Official Administrator, was held by the Crown in trust for the beneficiaries entitled to share in the estate. It is argued that section 24 of the Mineral Act binds the Crown only in so far as that section applies to the Crown expressly or by necessary implication; and that the section is not expressly or by necessary implication made applicable to an ; interest in a mineral claim held by the Crown through an official 'administrator as part of the estate of a deceased person; and conse- 320 MARTIN'S MINING AND WATER CASES. Lvol. 1906 January 20. Duff, J. quently that the provisions of that section are not obligatory upon an official administrator in respect of mineral claims vested in him in his official capacity. I am unable to agree that this elaim was held by the Official Administrator as a representative of the Crown in such a sense that his interest in or possession of it.can be treated as an interest or possession vested in the Crown. The Official Administrator is, I think, to be regarded as a statutory officer only. The legislation creating the. • office and prescribing the duties of it seems to have been framed with • the view of providing for cases, which must have been common in the I earlier period of the history of the Province, of deceased persons leav-1 ing within the Province nobody who, in accordance with the practice - of the Court, in respect to the administration of the estates of deceased ; persons, would be entitled to assume the administration of their estates, and nobody having any special interest in seeing that theirs property shall reach those who are entitled by law to receive the I benefit of it. There is nothing, so far as I can see, in the legislation I which supports Mr. Macdonald's contention as to the Official Ad-1 ministrator's relation to the Crown or as to the legal effect of his pos- I session of the property belonging to an estate in the course of administration. It would be a legal anomaly that there should be fastened j upon the Crown' obligations of the same character as those imposed I upon an administrator with relation to property in his possession as administrator. Our present system provides no machinery whereby! the Crown can be made amenable to those remedies in granting which | the Court acts in personam, and the officers of the Crown in so far as I they are under the control of the Crown and in respect of their acts j as servants of the Crown are within the necessary scope of that prin- ■ ciple which excludes the Crown itself from the control of the courts. J Mr. Macdonald did not shrink from the logical consequences of his argument and contended that the effect of the legislation to which I| have referred is to make the administration of an estate by an official! administrator a branch of the public administration of the Province;! and that in respect of his official duties the Official Administrator is not subject to the control of the courts to any greater extent than the| extent to which such control would apply to—for example—an officer, of the Department of Finance in regard to his duties as such officer a As I have said, I can find nothing in the Act which supports this: view; nor was any sufficient reason suggested for leading one to the conclusion that the Legislature in providing for the appointment of public officials in the circumstances that I have mentioned deemed if necessary to remove these officials from the control to which other in-* dividuals having the like duties are everywhere subject; or to deprive persons beneficially interested in estates coming into the hands dm * ii.] WINDSOR v. COPP. 321 these public officials of any of the remedies which have always been available to such persons for the protection of their interests. 1906 January 20. Duff, J. Let us test the contention by considering the consequences which would follow its adoption. Mr. Macdonald's contention would of course appty equally to all classes of property coming into the hands of an Official Administrator, and in every case in which such propertjs _ is held subject to statutory conditions the argument would be equally effective to exempt the Official •Administrator, and. through him the persons beneficially interested in the property, from the performance of these statutory conditions. Pre-emptions, coal leases, timber leases and licences, readily occur to one as examples of the various classes of property coming within the sweep of Mr. Macdonald's argument. A view leading to such conclusions should not, in my opinion, be ac cepted unless it is founded on very plain language. Those cases in which, it has been held that property held by the Crown or by servants of the Crown for public purposes, or in connection with the perform ance of public services, is not subject to taxation under the'English legislation relating to the subject of taxation, have been pressed upon me. With respect to these cases it is onlv necessary to say that the mineral claim in question here was held by the Official Administrator not for public purposes, nor in connection with public services, but in the exercise of public functions and under statutory authority, and fo» the strictly. private purpose of administering the mineral claim and other property of the deceased in accordance with the law govern ing the administration of the estates of deceased persons. It is per fectly clear that the decisions referred to have no application to the case of property held by a public official in trust for private persons. It is argued further that section 53 of the Mineral Act applies; that section reads as follows: ? No free miner shall suffer from any acts of omission, or commission, or delays on the part of any government official, if such can be proven." • I express no opinion on the question whether an Official Adminis trator is a government official within this section, nor upon the ques tion whether the plaintiff, as a purchaser from the Official Adminis trator, having no interest in the claim at the time when it is charged that the Official Administrator was guilty of an act of omission or commission in respect of this claim, is entitled to invoke the benefit of that section. Whatever else may be said about section 53 this seems to be clear, that an act of omission or commission to be within that section must be a failure to do something which a government official ought to do, or a doing something which a government official ought not to do. Now it is contended that the failure to do the assess ment work in this case is an act of omission on the part of a govern- 322 MARTIN'S MINING AND WATER CASES. [vol. 1906 January 20. Duff, J. ment official; but I am unable to say on the evidence before me that the Official Administrator ought to have done this work. Assuming that he had in his hands the funds to pay the costs of doing it, or was in a position to get them, there is no evidence before me to shew that he would have been justified in making the necessary expenditure. His failure to make it cannot therefore be said to be an act of omission within the provision in qu'estion. I have still to deal with the question whether by the operation of section 28 the plaintiff is relieved from the consequences of the failure on the part of the Official Administrator to comply with the provisions of section 24. The facts are that the certificate which is relied upon here was granted after the expiration of one year from the granting of the previous certificate, and after the time when the Parkside mineral claim was located. In other words, at the time of the location of the,Parkside claim, and before the granting of the certificate which is relied upon here, the June had lapsed, and the ground within its limits must, for the purpose of this litigation, be deemed to have become " vacant and abandoned," unless the effect of these things is obviated by the application of section 28. Section 24, which is the, section under which the granting of certificates of work is authorized, provides for the granting of certificates of work first within the period of one year from the time of location, and then within the period of one year from the granting of the last certificate of work. I am not at liberty to hold that a particular certificate of work is a certificate of work within the meaning of section 28 only when it is issued withJ™ one year after the last preceding certificate of work. In the case of Peters v, Sampson (1898), 6 B. C. 405, 1 M. M. C. 247, the decision of the Full Court is to the effect that the provisions of section 24 in that respect are not to be imported into section 28. Mr. Taylor has called my attention to section 5 of the Mineral Act Amendment Act, 1898, providing that if the free miner shall have done the work within the year and if he shall " within thirty days after the time for obtaining and recording said certificate, record the same and pay an additional fee of ten dollars ($10), such record shall have the same effect as if recorded within the year"; but I am inclined to think that that amendment after all does not affect the decision in Peters v. Sampson. For the purposes of this case, therefore, I must take it that a certificate of work issued after the expiration of a year after the last preceding certificate of work has the same effect under section 28 as a certificate issued within the year, providing the conditions existing at the time of the issue of the certificate are the same as the conditions which existed in the case of Peters v. §ampson. In this case I have already mentioned the fact that after the expiration of a year from the date of the last preceding certificate of work and before the . date of the certificate of work in question the Parkside mineral claim II.] WINDSOR v. COPP. 323 was located. In other words, unless Mr. Macdonald's contention can be given effect to, the ground had become vacant and abandoned, and had been taken up by a free miner under the provisions of the Mineral Act; and the question to be considered is whether in these circumstances it can be said that the certificate of work can be treated as one to which section 28 applies. To my mind there is in the nature of things the strongest a priori probability that the Legislature did not intend section 28 to apply in such cases. Looking at the case of Cleary v. Boscowitz (1902), 32 S. C. R. 417, 1 M. M. C. 506, we find that the judgment of the Supreme Court of Canada delivered by Mr. Justice Sedgewick expresses the views of the Court respecting the policy of the Legislature in the enactment of section 28. Now, reading section 28 in the light of this view as to its policy, I have no difficulty whatever in coming to the conclusion that that section does not apply to the circumstances here. So long as the only interests in the claim are those of the holder of the paper title, the person actually in occupation and working the claim, and the Crown itself, then it would not be at all unreasonable that the Legislature should hold that a certificate of work granted by the statutory officer with respect to the payment of rent should be conclusive evidence and have all the effect given to it by section 28. The Mining Recorder in one sense, according to the. view expressed in the language of Mr. Justice Sedgewick, just referred to, may be taken to represent the Crown, and that being the case, so long as the only interests are the interests of the Crown and of the person in occupation, there would seem to be no objection whatever to the adoption of such a rule. But where before the issue of the certificate a third interest has intervened, where a third party acting within his rights under the Mineral Act acquired an apparent title to the area in question, it would seem to be a singular policy to provide that the interest of this third person may be annihilated by the act of a government official which he is powerless to prevent. It would require, in my judgment, some very express language to establish the conclusion that the proper construction of section 28 leads to that result. The obvious injustice and inconvenience attend* ing such a construction seem to be conclusive against it. If Mr. Macdonald's contention be correct, then any mineral claim which has lapsed in consequence of a failure on the part of its holder to perform the conditions prescribed by section 24 may be revived after any period by the issue of a certificate of work by the Mining Recorder; and any free miner locating ground formerly occupied by a lapsed claim takes and holds his claim only subject to a liability to be divested of Ms interest in the ground at any time before obtaining his certificate of improvements, by the issue of a certificate of .work to some person claiming under the holder,of the lapsed claim. 1906 January 20. Duff* J. 324 MARTIN'S MINING AND WATER CASES. [VOL. 1906 January 2( Duff, J. For these reasons I think section >28 does not avail Mr. Macdonald and it follows that the plaintiff must fail. Section 11 of the Amendment to the Mineral Act of 1898 requires me, however, to consider the question whether the defendant's claim is valid. In the view I have taken of the plaintiff's rights this question must be considered on the assumption that at the time the Parkside was located the ground upon which it/ was located was open to location under the Mineral Act. The defendant's right to the Parkside then is to be determined on the assumption that no interest of any kind exists in respect of this ground except the interest of the defendant and the interest of the Crown. The defendant has received several certificates of work. Notwithstanding the decision of the Supreme Court in Collom v. Manley (1902), 32 S. C. R, 371; 1 M. M. C. 487, I see no reason why the evidentiary value of occupation and payment of rent in controversies relating to the title to land should not be given its full effect in cases respecting mineral claims; and there is nothing in that decision which affects the value of these certificates of work as such evidence. In m}r opinion these certificates' of work are more than prima facie evidence that the location of the Parkside mineral claim was a valid location and that the provisions of the Mineral Act in respect of location were fully complied with. Of course I do not say they are conclusive evidence, because in Collom v. Manley the Supreme Court of Canada decided that that is not the law. It appears from the evidence given here that the declaration filed by the locator of the Parkside does not set forth all the words which were put upon the initial post at the time of location; and it is contended that, this having appeared in the evidence, the defendant must by affirmative proof given at this trial shew facts bringing him within the scope of the curative provisions of sub-section (g) of section 16. Before considering the question whether the absence from the declaration of the particular words to which I have referred constitutes a substantial non-compliance with the provisions of section 16, I refer fly to. the question whether, assuming there has been such a very subs him antial non-compliance, tl elf within the provisions Mr. Taylor that the declaratic in place was discovered, and were complied with, is suffic opinion that contention ought would nullify all the conditior The declaration is admissible sions of section 11 but I see nothing in section 98 of the Mineral Act which would justify one in coming to the conclusion that the rules of evidence have been reversed to such an extent as to make a statement in this ex parte Le defendant has succeeded in bringing of sub-section (g). It is contended by *n itself, stating as it does that mineral that the other provisions of section 16 ient evidence in this respect. In my not to be accepted. It seems to me it s of sub-section (g) if it were accepted, in evidence as shewing that the provi- with regard to recording have been complied with, II.] WINDSOR v. COPP. 325 affidavit admissible as evidence, in support of the allegation that the conditions which the Legislature prescribed in sub-section (g) have been observed. Nor do I think the oral evidence given by the defendant is at all sufficient to lead to the conclusion that mineral in place was actually discovered within the provisions of that section. I refer to the judgment of Mr. Justice Sedgewick in Collom v. Manley, Isupra, on that point; it was there held that evidence of a very similar character was wholly insufficient for the purpose of establishing facts 'to bring the locator within that sub-section. Now the evidence given here was certainly no stronger than that under discussion by JJr. Justice Sedgewick, and I am not at all satisfied that the defendant has in fact any personal knowledge of the discovery by the locator of mineral in. place. I was at first inclined to think that where there are certificates of work extending over a considerable period, and proof of actual occupation during that period, these facts constitute presumptive evidence of a valid location of so weight}^ a character that the effect of that evidence could only be got rid of by proof, not only that the locator had failed to comply substantially with some of the provisions-of section 16, but that the facts necessary to bring him within the protection of sub-section (g) did not exist. I think, however, that the langrfage of sub-section (g) hardly permits this view. I have come to the conclusion that the defect complained of is not a substantial non-compliance with section 16—in other words, that in the location and recording of the Parkside the provisions of section 16 were complied with. The language relied on is as follows: "The words written on No. 1 and No. 2 posts shall be set out in full." Now, I think it is necessary in order to sustain this contention that Mr. Macdonald should make good the argument that the provisions require that the affidavit shall contain an exact copy of the words on posts Nos. 1 and' 2. The language in my opinion does not necessitate that construction, and if you look at the form of the affidavit referred to in section 16 the view that an exact copy is required is not borne, out. There seems to be no reason why an exact copy should be required. Of course there must be a minimum, there must be a limit to the variation permissible, and I think there is no difficulty whatever in fixing such a reasonable limit; that reasonable limit seems to me to be supplied by this rule, namely, that the words shall be quoted with sufficient fullness and sufficient accuracy to enable one to identify the record as the record of the particular location to which it refers, and to prevent fraudulent substitution of other language for the language placed upon the posts at the time of location. I ' think the object of the provision is to secure means for such identification, and to provide against the possibility of such frauds. Applying that test here there can be no doubt that the declaration fulfils 1906 January 20. Duff, J. 326 MARTIN'S MINING AND WATER CASES. [VOL. 1903 the requirements of the section, and it follows that the defendant's tnuarv 20 • : ' location is a valid location. The result is that the action will be clis- )uff," J. missed and it will be declared that the defendant's claim is sustained. Judgment for defendant. Note.—It will be observed that the curative effect of sub-sec. (g) was not invoked because it was held that there had otherwise been a substantial compliance with section 16. The opinion herein expressed as to the sufficiency of I a substantial as distinguished from an exact compliance is in accordance with the ruling in the prior case of Butherford v. Morgan, ante pp. 214, 221-2, I though it_was overlooked. For affirmative evidence of title see Voigt v. Groves, post p. 357. II. ] GROBE et al. v. DOYLE. 327 GrROBE ET AL. V. DOYLE. 1906 February 17. (12 B. C. 191.) D—iT. Mineral Claim—Contract to Purchase and Work During Option—Working Bond —Ore, *' Net Proceeds " and Ownership of—Construction of Contract—Surrounding Circumstances—Breach—Waiver. Where in an option to purchase a mineral claim and develop the same during the term of the option, one of the conditions is that " if any ore is shipped from the property the net proceeds are to be deposited to the credit of the vendors . . . and to be applied in part payment to the vendors," the purchaser is a trustee of the ore for the vendors pending the payment of the purchase price, and he does not become the owner of the ore he extracted subject only to the liability of depositing the net proceeds of merely that portion which he shipped. The deductions to be made from the value of the ore so shipped are only those that would be made at, the smelter in the ordinary course of business, including freight and smelter charges. The transaction dealt with by the .clause was the conversion of the ore at the place of conversion. Where in a written instrument there is language which is capable of more than one exclusive interpretation, it is always desirable to look at the circumstances, as distinguished from precedent discussions and negotiations, surrounding the execution of the instrument for the purpose of ascertaining which of the different possible interpretations most probably agrees with the intention of the parties. Held, on the facts, that there had been a breach of said condition, and that there had not been a waiver of the right of cancellation therefor. Action tried before Duff, J., at Nelson, on the 16th and 17th of. Statement. February, 1906, to rescind an agreement whereby the defendant was given an option to purchase the Yankey G-irl mine, with the right to develop and work the same during the term of the option. The plaintiffs further claimed the proceeds of ore mined and shipped by the defendant in his operations under the option, and alleged a number of breaches by the defendant of the agreement in question, among others, that the net proceeds of the ore mined had not been paid to their account as provided in the agreement. The defendant maintained that there were no net proceeds after deducting expenses of mining and marketing. W. A. Macdonald, K.C, and S. S. Taylor, K.C, for plaintiffs. R. M. Macdonald, and R. W. Hannington, for defendants Duff, J.:—The agreement between Lovell, G-robe and Macleod on the one"hand, and Doyle on the other, provides for the sale of certain mineral claims therein mentioned to Doyle, the defendant, in Judgment. 328 MARTIN'S MINING AND WATER CASES. [VOL. 1906 February 11 Duff, J. consideration of certain payments to be made on dates specified. In the meantime, according to the terms of agreement, the defendant became entitled to be put into possession of the mineral claims, and acquired the right to develop and work them subject to certain conditions as to the number of men to be employed and the manner in which the development work was to be done. The agreement also provides that " if any ore is shipped from the property the net proceeds are to be deposited to the credit of the vendors at the Canadian Bank of Commerce, and to be applied in part payment to the vendors." The agreement also contains a clause which may be described as a forfeiture clause, conferring upon the plaintiffs the right to cancel the agreement in case of breach by the defendant of- any of its stipulations. The plaintiffs claim that the defendant broke or committed a breach of the terms of the agreement and so brought the forfeiture clause into play at various times during the months of June and July following its execution. The breaches complained of are that the defendant in prosecuting development work and extracting ore from the mineral claims violated the terms of the agreement in respect of the manner in which the work was to be done; that the defendant failed to keep employed the number of men that the agreement provided he should keep employed for the purpose of prosecuting development work during the life of the agreement; that clause .7, relating to the disposition of the proceeds of ore shipped from the property, has been violated in that the net proceeds of a large quantity of ore shipped from the property have not been paid in accordance with the terms of that clause. It is not in my judgment necessary that I should decide upon the questions which, arise respecting the manner in which the defendant worked the mineral claims, or respecting the allegation that he failed to employ on development work the number of men required by the agreement. I have come to the conclusion that the defendant committed a breach of clause 7, and that is sufficient to dispose of the case. It is not disputed that a large quantity of ore was shipped from- the properties which are the subject of this agreement to the Hall Mines and Granby smelters, and that the proceeds of the smelting of these ores were received by the defendant and that these proceeds have not been deposited in accordance with the terms of that clause. It is contended on behalf of the defendant that the phrase " net proceeds " as used in that clause means a sum to be arrived at after deducting from the gross proceeds the, cost of smelting, the cost of? delivery at the smelter, and the cost of mining; and it is not disputed that on that construction there is nothing which can be described as net proceeds. That is a construction which in my judgment cannot be sustained. The plaintiffs offered evidence to J 11.] GROBE et al. v. DOYLE. 329 shew that in mining transactions this phrase has a fixed meaning, and it was sought to place a construction upon it by reason of usage among people engaged in mining transactions. I held at the beginning of the trial that I could not properly consider evidence of that character because of the fact that the contention was not properly raised in the pleadings. It may be conceded that the phrase "net proceeds " as it stands is open to more than one necessarily exclusive interpretation. The meaning to be attributed to the phrase depends in my opinion upon what is to be regarded as the subject of the transaction which is dealt with in that clause. Mr. R. M. Macdonald contends that the transaction is a transaction which begins with the taking of the ore from the mine. ■ The plaintiffs on the other hand contend that the transaction to which it relates is a transaction which begins with the shipment of the ore on the railway. In the one case of course, if Mr. Macdonald's contention were correct, the net proceeds would be arrived at by deducting the cost of mining as well as the other elements to which I have referred; in the other case it is of course obvious that the phrase imports the deduction of the cost of transportation and smelting only. Where in a written instrument you have language which is capable of more than one exclusive interpretation it is always desirable, for the purpose of ascertaining which of the different possible interpretations most probably agrees with the intention of the parties, to look at the circumstances surrounding the execution of the instrument. I do not of course mean that you are to consider discussions which preceded the execution of the instrument, or negotiations, as affording direct evidence of such intention; but you are to look at the situation of the parties, the nature of the subject-matter, the course of dealing between the parties, and the general course of dealing in the business to which the transaction relates so far^as known to the parties 'at the time, together with the language of the instrument, for the purpose of ascertaining what the parties had in view as the object of the transaction and what provisions they would most likely * agree to for the purpose of reaching that object. The plaintiffs were the owners of this property. They lived in Kootenay. The defendant came from Chicago, having, so far as the evidence shews, no interests of any kind whatever in'this country. The plaintiffs, through lack of means, were unable to proceed, with the development of their property and their policy, upon which they were all in agreement, was that they should attempt to sell; and these facts were perfectly well known to the defendant. The plaintiffs entered into the transaction with a view of selling the property to the defendant, or failing that, the procuring of such development 1906 February 17. 330 MARTIN'S MINING AND WATER CASES. [VOL. 1906 February 17. Duff, J. of the property as would exhibit its character to possible future purchasers. The agreement was entered into on the 13th of March, 1905. The first payment the agreement provides for was to be made on the 15th of September, 1905. The defendant acquired the right of immediate possession and the right to proceed immediately to work and ship ore from the property. The defendant entered into no obligation to work or develop the property. The obligations which he entered into were purely conditional; in the event of ore being shipped, then the proceeds were to be paid as I have mentioned; in the event of work being done, in so far as development work at any rate was concerned, it was subject to certain conditions, and the obligation to observe these conditions was the only obligation into which he entered. Mr. Macdonald contends that in these circumstances we must take it from the language of the agreement read as a whole that the arrangement at which the parties arrived was this: the defendant acquired the right to extract ore from the property; that the ore when extracted became the property of the defendant subject only to this, with respect to any ore which should be shipped to a smelter the net proceeds should be deposited in the bank according to clause 7; that in ascertaining the net proceeds the defendant should be entitled to deduct the cost of mining as well as the cost of conversion of the ore, • and further, that this privilege of extracting ore and shipping it from the property subject to this condition came into effect immediately upon the execution of the instrument six months before the date when by the terms of the agreement the defendant would be called upon to make up his mind whether he should act upon his option of purchase by making the first payment, or abandon it. It seems to me that it is a most unlikely thing that an agreement of that character would have been entered into by these parties in the circumstances. There is, as I have pointed out, nothing in the agreement which obligates the defendant to deal in any particular manner with the ore extracted from the mine. If it be true that the agreement conferred upon the defendant the right of property in the ore subject only to his liability to account for. the net proceeds in case of there being any, then the plaintiffs placed themselves in such a position that they had absolutely no protection, no kind of security whatever (except the bare personal covenant of the defendant) that the provisions of clause 7 would be observed. Is it to be supposed that these plaintiffs deliberately placed this defendant in a position in which, during the six months preceding the date fixed for the first payment, he would have absolutely untrammelled control over the disposition of ore extracted by him from the properties during that period, subject only to his liability to account for these proceeds ? It is perfectly II.] GROBE et al. v. DOYLE. 331 obvious that if the construction contended for be the true construction 1906 the defendant acquired under the agreement the right to hold the ore extracted until after the .lapse of his rights under the agreement and then proceed with the conversion of it. In such case it is not easy to see what would be the plaintiffs' remedy if the defendant should be minded to act dishonestly. Hiaving regard to the situation of the parties I cannot believe that the plaintiffs deliberately placed themselves in such a position. It is strongly contended by Mr. R. M. Macdonald that the language employed in this part of the agreement conferring upon the defendant the right to work the property imports in its natural meaning the right to appropriate to his personal benefit, and as his property, the ore extracted from the property. In my opinion that is not the necessary meaning of the language employed, and reading that part of the agreement with clause 7, and in the light of the circumstances, I have come to the conclusion that that is not its meaning. The true view is, I think, this: the defendant's rights in respect of the ore extracted from the property were limited to the right to ship the ore for the purpose of conversion and were subject to the condition that the proceeds of such conversion should be applied in accordance with the terms contained in clause 7. Pending the payment of the purchase price provided for in the agreement the defendant in my opinion acquired no right of property in the ore in situ and none after extraction from the mine The operation of developing the property was, pending the payment of the purchase price, to be done by the defendant for the owners of the property, and in shipping or dealing with the ore he was to deal with* it as a trustee for the plaintiffs, and. the proceeds in his hands would be in his hands as such trustee. If this view be correct very little difficulty meets us respecting the construction of the phrase "net proceeds." That the plaintiffs should agree that their property, through the mere process of conversion into cash, should as to the greater part of the proceeds become the property of the defendant, is altogether too violent a supposition. Apart altogether from these considerations there are considerations arising out of the language of clause 7 itself which appear to me to be conclusive. I have no doubt that the clause was adopted for the protection of the plaintiffs, not as Mr. Macdonald strongly argues, merely as a regulation to serve the convenience of both parties to the contract. I apprehend that there can be no doubt that as a measure of protection such a clause would be quite useless unless the sums required to be deposited should be sums readily capable of ascertainment. Now if the sums were to be ascertained in the manner contended for by Mr. Macdonald, not only are they not readily capable of ascertainment, but the plaintiffs would be in such case entirely at the Duff, J. AND WATER CASES. mercy of the defendant as to whether they should be ascertained at all except by means of legal proceedings. There is nothing in the agreement requiring the defendant to keep any accounts by which the cost of mining particular shipments of ore could be determined; there is nothing requiring him to submit his books for the inspection of the plaintiffs, nor to supply the plaintiffs with any information whatever which would enable them in any particular case to arrive al the extent of such cost; and if the application of this clause depends upon a preliminary ascertainment of this cost, it is obvious that as a protection to the plaintiffs it is quite useless. Now when we look at the structure of the clause itself we find that what it deals with is " ore shipped," or rather the net proceeds of ore shipped, not the net proceeds of the working of the properties, nor the net proceeds of ore mined from the properties, but the net proceeds of ore shipped. Moreover the clause obviously refers only to ore shipped for conversion, that is ore shipped from the property to a mill or smelter for conversion. The language is, I apprehend, quite clearly open to this construction, namely, that the transaction dealt with by the clause is the conversion of the ore at the place of conversion; and that the deductions which the parties had in mind are the deductions which in the ordinary course of business would be made at the smelter; these deductions according to the evidence including freight and smelting charges. All the considerations which I have mentioned lead me to the conclusion that this is the construction which should be adopted. The view I suggested during the course of the. argument, namely, that the deductions should include the cost of transportation from the mine to the railway, is 'open to Some of the objections to the construction contended for by Mr. Macdonald; in that case the sum required to be deposited would not be a fixed and ascertained sum, and moreover would not be capable of ascertainment, except by means of an account based upon information in the possession of the defendant, which under the terms of the agreement, the defendant is not bound to give to the plaintiffs, and the accuracy of which the plaintiffs would have no means of testing if given. There remains the question of waiver. The evidence of the plaintiff Grobe satisfies me that nothing has occurred which would justify me in coming to the conclusion that the right to cancel the agreement in consequence of the breaches which are complained of and which have been proved did occur. And with regard to the plaintiff Graham, about whose rights I had-some doubt in respect to the question as to whether or not he had waived his rights of cancellation, Mr. Taylor has satisfied me that in the circumstances of this case the payments made on the 1st of June and the 1st of July have not the effect which Mr. Macdonald contends. It remains only to refer to the fact that II.] GROBE et al. v. DOYLE. 333 the shipping clause in the agreement between Graham and the defendant is slightly different in its phraseology from that in the agreement to which I have just referred. The change in the language, however, is not substantial, and all the observations which I have made regarding the other agreement apply to Graham's agreement. The plaintiffs are entitled to a declaration that the defendant's rights under the agreement have been forfeited and to an order directing the payment of the moneys in question in the action in accordance with their respective interests. Judgment accordingly. 1 1906 February 17. Duff, J. Note.—Cf. Marino v. Sproat (1902), vol. i.. p. 481, a case in some respects similar to the above, though not cited. See Halpin v. Fowler (No. 2), post p. 422, for implied covenant. The Glossary of Mining Terms, vol. i, p. 874, defines the miner's familiar " Working Bond " as 'lAn option on a mine with the privilege of working it during the option at the bond-holder's expense, the net proceeds to go to the owners in reduction of the purchase price." For nature of a placer mining " lay " and form of, see Brown v. Spruce Creek Power Co., Ltd., ante pp. 254, 268. In the Yukon such a lay has been viewed differently: see the judgment of Ceaig, J., Sept. 22nd, 1905, in Glazy v. Myers, 22 Wes. L. R. 289, at 292, wherein he speaks as follows regarding the rights, and obligations of a layman:— ". . . . It is contended on behalf of defendants that the acceptance of the gold dust by the agent of the owner was a waiver of the forfeiture up to at least 29th May, when he accepted the last clean-up. I do not think the acceptance of gold dust under the conditions existing here operates as a waiver of forfeiture, in the sense in which acceptance of rent after it becomes overdue is a waiver of forfeiture for non-payment. It is an entirely^ different state of affairs. What a lay agreement in this Territory is has not yet been definitely settled by any judgment of this Court. Whether it may be called a lease or a working partnership or what, I do not need now to determine: but one must consider this, that the delivery of the product of the mine cannot be considered as a payment of rent. The agreement is a working agreement by which the owner allows the layman to go upon his placer ground and extract gold, taking as his share a certain percentage of the mineral extracted. That, as soon as it is recovered from the ground, is his property by the terms of the lease anb! by the custom of the country; in fact, it is his property all the time, the layman only exposing or recovering it. The owner or his agent attends on the ground, is present at the operation of washing up the gold, and takes, as a matter of right, directly from the pan or sluice boxes, the gold which is his share under the agreement. That he at once takes possession of as his own property. It does not pass into the possession of the lessee or layman, and if it does it is only held by the lessee or layman as the property of the owner, who is entitled to that absolutely. The very nature of the operations would indicate that any other arrangement would be disastrous to an owner. The operations, as they proceed, exhaust the entire value of the ground. There is no other value in the ground but the placer mineral contained in it, and the work is to extract that, allowing to the workman so much for his labour proportionate to the value or richness of the deposit. Even if I were to hold that these acceptances of gold dust constituted a waiver of forfeiture up to 29th May, yet defendants after that date continued to work the claim in the same shiftless manner as before. In fact they did less'work up to the issue of the writ from 29th May than before. During the month of June, when water was plentiful, as is sworn, VOL. II. M.]\f.C.—23. 834 1906 February 1 Duff, J. MARTIN'S MINING AND WATER CASES. [vol. the they were almost idle. They tried to explain delay in the operations loss of time, but could not give any satisfactory account of it at_ all It is contended that these men should have ample time to secure a plant and be*m operations; but that can be no defence whatever. Men who ™£^^ ^ enter into formal contracts to go on and commence mining operations< upon a claim, should either have the machinery and the means to beginam-should be in a position to get them. It is absurd to contend that an owner must stand by ISXen to waste time, which is valuable in ^^J**™* around and experiment and endeavour to/get necessary tools and mach^ It was not the intention that, these men should W a year or any otherAnne to do a little prospecting on the claim; the intention was■ that they should be gL mining operations after a reasonable time .^^. ^"^XSd^ best places to sink their shafts. And, therefore, if it could be held.at alt (and I StokttSffld not) that the acceptance of the gold dust up to 29th May was a waiver, certainly nothing was done after that time to create a waivei of tor feiture." West Kootenay Powee and Light Company Limiti CORPORATION OF THE ClTY OF NELSON. Water Becord—Biver—Grants of Water Bights to Power Company and Municipality, in Conflict—Biparian Bights in British Columbia—Apprehended Damage—Water Clauses Consolidation Act, 1897, B. S. B. C. 1897, ch. 190— W. C. C. Acts 1899, ch. 77, sec. 2, and 1900, ch. 44—Damages—Introduction of English Law in British Columbia and Legal History. To give a riparian owner a good cause of action for interference with the bed of a stream, it is not enough that there is any sensible interference therewith: there must be either actual damage or a reasonable possibility of damage. Bickett v. Morris (1866), L. R. 1 H. L. (Sc.) 47, considered and held to be subject in its application to the difference in size and character between the rivers in question. Held, on the facts that the defendant should succeed. Judgment of Ibving, J., reversed, Martin, J., dissenting. Observations by Martin, J., on the introduction of English law, and the early legal history of British Columbia. Appeal from the judgment of Irving, J., in a trial had before him at Nelson, August 8th, 1905. The facts are very fully set out in the judgment of the learned trial Judge, and may be coneisely stated as follows: Plaintiffs are a po^er company with certain rights on the Kootenay river. Defendants are a municipality, and are constructing above the plaintiffs' canal an electric plant to supply electricity to the City of Nelson. The plan of their operations includes the excavation of a quantity of rock. So much of this rock as they did not require for building purposes they proposed to dump into a pool immediately below, while a portion of the rock would, of necessity, through blasting, be thrown into the river both above and below the falls. This undertaking was authorized by an order in council passed under the provisions of cap. 44 of the statutes of 1900. The plaintiffs alleged that the dumping of the rock would be injurious to them by damming up the river and reducing their head of water; that at high water a large quantity of rock will be carried down to the plant at the lower falls, thereby filling up the canal, in- | jiiring the machinery and lessening the supply of water there, and I that their power site at the lower falls would be damaged by the deposit of rock and other material brought down at high water. 336 MARTIN'S MINING AND WATER CASES. [VOL. 1906 March 6 Full Couri Statement. The evidence established that the defendants were throwing the rock and other material excavated on the bank of the river in such a way that the toe of the embankment would be under high water, and they intended, unless restrained, to deposit the bulk of the waste in the river bed in the pool just under the upper falls. It was held by Irving, J., on the evidence before him, and following Bickett v. Morris (1866), L.E. 1 H.L. (Sc.) 47, that if there is reasonable prospect that the undertaking of the .defendant corporation will produce any damage to the lower riparian owner, then there is a right of action, although no actual injury is shewn to have resulted from it. A. 11. MacNeill, K. C, and Lennie, for plaintiff Company. Bodwell, K.C, and P. E. Wilson, for defendant Corporation Cur adv. vult. Judgment below. Irving, J. Aug. 8, 1905. Irving, J. : The plaintiffs are a jpower company incorporated by cap. 63 of 1897, and own all the land on the north bank of that portion of the Kootenay river now under discussion. By cap. 77, B. C. Stat. 1899, certain grants of water assigned to the plaintiffs were confirmed to them, and they were given all the , rights and privileges which they would have been entitled to if they had been incorporated under Part IV. of the Water Clauses Consolidation Act, 1897. They have now'in operation at the lower Bonnington falls an hydro-electric power plant consisting of a canal 25 feet wide, 15 feet deep, and 600 feet long, leading from the Kootenay river above the falls to a concrete dam situate below the falls, through which dam are placed chutes for the purpose of conveying water to three turbine wheels by which the electricity, some 5,000 horse power, is at present being generated. They are now constructing a.more extensive hydro-electric power plant on the north side of the river at the upper Bonnington falls. They are also the owners of a power site on the south side of thei river at the lower Bonnington falls. The side of ne mdants, the City of Nelson, is constructing on the south iyer, at the upper Bonnington falls,-some 3,000 feet above! laintiffs cavatior as thev mai, an nyaro ty of Nelson. The of 17,000 yards of i lo not require for bi of electricity! udes the ex-, :. This rock, or rather so much of it ing purposes, they propose to dispose I ctric plant for the su n of their operation! il] WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 337 1906 March 6. Judgment below. Irving, J. of by dumping into the Kootenay river in a pool situate below the upper falls. Some of the rock will of. necessity be. thrown in the blasting operations into the river as well above as below the upper Full Qourt. falls. The defendants' undertaking is authorized by an order in council (B.C. Gazette, 6th April, 1905, p. 634) made by the Lieutenant- Governor in Council under the provisions of Part IV. of the Water Clauses Consolidation Act as amended in 1900, cap. 44. A slight alteration has since been made in the plan by substituting vertical setting for the wheels in lieu of a horizontal setting intended. The plaintiffs allege that the dumping of rock will be injurious to them in some of the following three ways : First, that the rock will dam up the river at a point called the rapids, thereby reducing the head which they, the plaintiffs, would otherwise obtain at their new works at the upper falls. Second, that at high water a large quantity of rock and sand will be carried down by the current to the plant at the lower Bonnington. falls, and will cause the canal there to be filled with rock and sand, and thereby injure the machinery and lessen the supply of water at that place, or the rock will lodge in the narrow channel, and that the supply of water at the lower falls will be materially lessened. And third, that their power site on the south side of the river at the lower falls will be damaged by the deposit there of rock and other material which will be brought down at high water. The defendants' authority, derived by order in council/ does not touch the question of the disposal of this rock, permission to throw their waste into the river is not given, not is the order in council to be read as authorizing the work sanctioned, to be done negligently or in such a way as unnecessarily to cause damage to plaintiffs. The permission, however, does not contemplate a substantial dealing with the bed of the river above the falls, i.e., by constructing a canal to be formed partly in the river bed with a masonry retaining wall. That part of the work is not now in question. The complaint is limited to the disposition of the waste rock. The contentions raised by the plaintiffs depend to a-great extent upon the transporting capacity of the river at high water with reference to rocks and waste material placed in it. The plaintiffs say that in the years 1898 and 1899 little or no material was found in their canal, but in the following years, when a railway contractor in making improvements on the line of railway caused large quantities of rock to be dumped into the river, the quantity of material found in their canal after each high water was / very much increased. The figures after the high water of 1901 shew that thev took out 1,000 yards: after' 1902, 300 yards; after 1903, B38 MARTIN'S MINING AND WATER CASES. [VOL. 2,000 yards, and after 1904, 2,200 yards, and now, after the high water of 1905—I take it the high water is now over—something like Full Court, two feet of deiritus is to be found in their canal in front of their 19 Mar< Judgment below. Irving, J. racks. They called seven witnesses who deposed to the above, and, in the main, agreed with them that the dumping of rock would increase the tail water in the first pool and so spoil the head of water for their new works at the upper falls, or the rocks and other material would \t high water go down the river and enter their canal at the lower falls, and that some had already lodged in such a position as to injure their property on the south side of the river. With reference to these annual accumulations in the canal the plaintiffs must remember that it is to be expected that a deposit of silt, sand, stones and gravel will be made naturally by the.river. What the extent is of this natural deposit they have not informed me. They refuse to say what proportion of the material found in the canal was large rock and what was not. I do not think they are quite frank with me in that respect. I think the plaintiffs, perhaps unconsciously, are mistaken as to the amount of material actually taken out. Where the large piece of rock which was found in their canal came from I cannot say. It may have been a relic of the roughly finished work at the intake, or was never taken out, although I am quite prepared to believe that it rolled in from the bank. I am not satisfied that the banks tand sides of the canal have been cleaned off as thoroughly as Mr. Campbell would have me believe. The tremendous size of this rock would satisfy the ordinary labouring man, or even the conscientious foreman, that it could be safely left on the bank. Although I recognize the tremendous power of water, I can hardly believe that this huge piece of rock rolled down the bottom of the river and from a point some distance above the intake, and mounted up over the precipice left by Gallagher, and so reached the canal. The difficulty I have in dealing with the ease is that so much is left to .conjecture. No measurements of the depth of water in either of the pools below the falls, or in the rapids, have been taken. Nor have I evidence as to the direction of the sub-surface current. Nor have I definite evidence as to the rate of the current, during high water, below the first falls, nor as to the character of the bottom of the river between,, the two falls. These factors seem to me to he the most important in determining the transporting capacity of the river and therefore the question whether or not there will be injury to the plaintiffs. That a rapid stream such as the Kootenay will transport large quantities of silt, sand and gravel and shingle, and even pebbles, in suspension, &nd large stones by rolling along the bed of the channel, II.] WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 339 cannot be disputed. The rate of progress of any particular rock is quite uncertain; that would depend on its shape, weight, the character of the bottom, and the velocity of the stream. These four factors would themselves vary from time to time, as the shape becomes more rounded; the weight decreases as the rock becomes smaller, so the retarding forces diminish, but the tendency of the river to clear-its course by shoving all material down stream remains constant. What I will take place after a rock is thrown into the river is all surmise. What the effect will be of depositing this large quantity of rock on the bed of the stream there are no data to enable me to form a definite opinion. The witnesses for the plaintiffs, as well as the witnesses for the defendants, were either employees of the parties to the action, or were expert witnesses, and in that way are liable to be biassed. The experts do not appear to have more bias than that which experience shews us always operates on the minds of professional or scientific persons when called upon to give expert evidence as to matters relating to subjects in which they are skilled. The evidence establishes that the defendants are throwing rock and other material excavated1 on the bank of the river in such a way that the toe of the embankment will be under high water, and they intend unless restrained to deposit the bulk of the waste in the river bed in the pool just under the first falls. Their experts say that this embankment will remain there, that embankment's always remain unless put on a sand bottom; that the rocks deposited in the pool will not be washed out. They are of opinion that if any rocks could *by any possibility be washed out of the pool they would not lodge in the rapids but would be carried down. As they know nothing of the depth of the pool or of the nature of the bottom of- the river between the two1 falls, and as the velocity of the river below the falls is admittedly eight or ten feet per second (that is three times the velocity required to move shingle), their evidence does not convince me that no injury will result to the - plaintiffs. On the contrary it seems clear that if they deposit this waste in the river bed as they propose, a certain amount of gravel, etc., is bound to be carried down, and it cannot be positively asserted that small pieces of rock will not go down. . If carried down, it is not possible to say that it will ajl pass clear i of the plaintiffs' canal. The sudden drop which Gallagher says exists ; at the mouth of the canal will protect the canal to a certain extent, ; but what will happen in the course of time is impossible to conjecture. M 1906 \ aroh 6. Ful l Court .In b Irv igment elow. ING, J. 340 MARTIN'S MINING AND WATER CASES. [vol. 19Q6 March 6. Judgmei below. Irving, . In this state of uncertainty the question of onus of proof is of importance. In my opinion the onus is on the defendants. The Full Court, plaintiffs' certainty or high probability of a lasting source of water is not to be interfered with unless directly taken away by legislative authority. It is for the defendants to shew that the deposit of some 10,000 yards of material in the bed of the river will not prejudicially affect the plaintiffs' works. The case of Bickett v.. Morris (1866), L. B, 1 H. L. (Sc.) 47, decides that whatever sensibly interferes with the channel of the river is actionable, unless the court is satisfied that there will not be any injury resulting from it, either now or hereafter. If there is a reasonable prospect that it will produce any damage to the opposite or lower riparian owner, then that gives a right of action, although no actual injury is shewn to have resulted from it The plaintiffs have not satisfied me that they have received any injury, but the defendants have not satisfied me that there are no reasonable grounds for apprehending injury. On the contrary, I feel that the consequence of the defendants dumping their waste into the river will be to aggravate the trouble the plaintiffs now experience in dealing with the gravel and stones which are being swept into their canal by the current, and that there is a reasonable prospect of injury resulting. It was pressed upon me in argument that it was of public importance that the City of Nelson should be allowed to proceed with their work and that the plaintiffs should be left to sue for damages when they are able to prove that they have received any. It is of far more importance to the public that the sacred character which the law attaches to private property should be respected. Blackstone says: "So great is the regard of "the law for private property that it will not authorize the least violation of it; not even for the general good of the whole community. " ... The public good is in nothing more essentially interested than in the protection of every individual's private rights, as modelled by the municipal law." In connection with this last point I would call attention to the following remark made by the Lords of the Privy Council in the case .of Trinidad Asphalt Company v. Ambard (1899), A.C. 594 at pp. 602-3: " One argument was addressed to their Lordships which, perhaps, ought to be noticed. It was said that digging for pitch was the common industry of La Brea, and that if an injunction were granted the industry would be stopped altogether. In the first place there is no evidence that that would be the result. Whatever the result may be, rights of property must be respected, even when they conflict, or seem to conflict, with the interests of the community. If private property is to be sacrificed for the benefit of the public, it must be done ii. I WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 341 under the sanction of the Legislature, which can, and generally does, provide compensation. If the inhabitants of La JBrea cannot dig their own pitch without invading their neighbour's rights, it is quite possible that the hope of reciprocal advantage and the apprehension of mutual liability may lead to some arrangement for their common benefit, or the difficulties of the case may induce the Legislature to step in and regulate the digging of pitch and the management of the pitch lands." The injunction will be continued, and the plaintiffs will recover their costs of this action. Judgment accordingly. The defendant Corporation applied to the Full Court composed of Martin, Duff and Morrison, JJ., for leave to submit fresh evidence as to depths and the force and velocity- of the current, which was not before the trial Judge, and leave was given to do so on November 25th, 1905, Martin, J., dissenting. The appeal was argued at Victoria before Hunter, C.J., Martin and Morrison, JJ., on the 10th and 12th of January, 1906. Bodwell, K.C, for the appellants : This appeal is based upon three grounds1 :* (1) The respondents have not proved any actual damage to their property nor have they shewn that there is any reasonable apprehension of damage occurring to them; (2) The works-which the appellants aje carrying on are for the benefit of the inhabitants of the municipality of Nelson, and even if it is assumed that some damage may be suffered in the future by the respondents, in consequence of the construction of the appellants' works, this case is not one for an injunction. The respondents should be left to their action at law, since damages would be an adequate remedy ; (3) The learned Judge below was not satisfied that any damage would occur to the respondents, nevertheless he considered under the authority of Bickett v. Morris (1866), L.R. 1 H.L. (Sc.) 47, that they had a right to prevent the bed of the stream being obstructed. Bickett v. Morris, however, is based on the common law doctrine of riparian rights, which does not prevail in British Columbia, and the appellants therefore contend that actual damage, or a reasonable appre- - hension of damage to come, must be proved. The fact of the plaintiffs' canal filling up, and having to be cleaned out from year to year, . is the result of defective work on- their part rather than any act of the appellants. The appellants challenge the bona fides of the action, as by the construction of these works the respondents will lose a .customer worth $10,000 to $12,000 per annum, and the City will obtain an independent lighting system of their own. Only a portion of the 17,000 yards of rock proposed to be excavated by the City will find its way, by blasting, into the river, whereas for years the work of railway construction has been going on and thousands of yards of 1906 March 6. Judgment below. Irving, J. Appeal. 342 MARTIN'S MINING AND WATER CASES. [vol. 1906 March 6. Argument. rock have been thrown into the river. The contention of the plaintiffs that large pieces of rock from our works were carried down the river in suspension was so untenable that it was abandoned at the trial. It is unreasonable to suppose that pieces of jagged rock from blasting operations can be moved along the bed of the river ; boulders may possibly be moved along a clear surface. There are no boulders in plaintiffs' canal or intake, but there are large pieces of rock, and it is evident that these came from the plaintiffs' own works. The respondents claim that large masses of rock are carried by the force of the current a mile or so down the bed of the river, across the deep channel and the current of the river, and are carried up a steeply sloping bank into the canal. This suggestion is opposed to all the rules of natural law. The effect of Bickett v. Morris, supra, was very fully discussed in Orr Ewing v. Coiqunoun (1877), 2 App. Cas. 839 at pp. 854, 860 and 861.N He also referred to McCartney v. Londonderry and Lough Swilly Railway (1904), A.C. 301 at p. 304, where the case of Swindon Waterworks Company v. Wilts and Berks Canal Navigation Company (1875), L.R. 7 H.L. 697 at p. 705, is discussed; Embrey v. Owen (1851), 6 Exch. 353 at p. 368; Miner v. Gilmour (1858), 12 Moore, P.C. 156; Belfast Ropeworks Co. v. Boyd (1888), 21 L.B. Ir. 560 at pp. 565, 576 and 579; Withers v. Purchase (1889), 60 L.T.N.S. 819; Lux v. Haggin (1886), 10 Pac. 674 at pp. 753-763, where the leading English and American cases are cited; Sampson v. Hoddinott (1857), 26 L.J., C.P. 148. The respondents in this case have not shewn any real danger to their works arising from the acts of the appellants. Their case is one of speculation based upon an erroneous application of certain scientific laws relating to the power of water to move heavy bodies. Bickett v. Morris was also discussed in Palmer v. Persse (1877), Ir. B. 11 Eq. 616. In all these cases it is shewn that Bickett v. Morris was decided on the common law doctrine of riparian rights. The case of Doe Anderson v. Todd (1845), 2 IT.C.Q.B. 82 at p. 84, deals with the subject of the introduction of English law into a eolony. The early settlers of British Columbia had the idea, and put it into operation, that any person, whether land owner or miner, might divert water from a running stream and apply such water to a beneficial purpose, and streams were being constantly diverted and applied to mining purposes: see Martley v. Carson (1889)1, 20 S.C.R. 634 at p. 658. It was sanctioned in the beginning of legislation in this country, and the right to divert water for mining and agricultural purposes to lands away from the stream was always recognized. He referred to the Proclamations of the 14th of February, 1859, and WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 343 January, 1860; Land Ordinances of 1865 and, 1870; cap. 70 B. L. 1906 1871; cap. 1 14, B, L. 1871; the Water Privileges Act, 1892, sec. 2, • March 6- and the Water Clauses Consolidation Act 1897, sec. 2. Full Court. In this case no proprietary interest of the respondents is invaded. Argument. The appellants are performing a lawful act upon their own land. The respondents cannot be injured unless their right of access js disturbed, or their power to use the water for ordinary purposes is destroyed. They must shew by clear and satisfactory proof that the appellants are performing their work in a negligent maimer, and that some sensible, appreciable damage is occasioned to the respondents by» the methods employed. Such a condition will not be presumed. The injury must be a real injury and the fact must be clearly proved by the respondents, upon whom the onus of establishing the case now rests. They must further satisfy the court that the injury is of a character which cannot be compensated in damages. W. A. Macdonald, K.C, on the same side, cited Edleston v. Cross- ley and Sons, Limited (1868), 18 L. T. N. S. 15, on the application of Bickett v. Morris, supra. An injunction should not have been granted on apprehended damage in circumstances such as are present here. The que§tion of riparian rights is settled by the statute ; the Government could, under the .provisions of the statute, divert $ie whole of this stream. [Martin, J., referred to Dixson et al. v. Snetsmger (1873), 23 TJ. C. ('. P. 235.] As to the" limits of the land granted to the respondents, he cited Coleman v. Robertson (1880), 30 TJ. C. C. P. 609 at p. 621. In the case at baf, the Crown by its grant has defined the line of the land granted, and we submit that, according to this grant, the Crown owns the bed of the river. The respondents have not got any more land than is shewn in the grant: see Barthel v. Scotten (1895), 24 S. C. B. 367. [Hunter, C.J.: The question at issue is not so much as to riparian rights, but whether the river is being made the vehicle of possible damage to the plaintiffs by the operations of the defendants, which is entirely independent of the question of riparian rights.] A. H. MacNeill, K.C, for the respondents: As to the question of bona fides, or mala fides, in bringing this action, the plaintiffs have invested some $1,800,000 in their enterprise, and it should not be imperilled by the works of the defendants or by any other similar undertakings. On this point he referred to Goodson v. Richardson (1874), 9 Chy. App, 221; Cowper v. Laidler (1903). 2 Ch. 337. A power plant, supplying power for commercial purposes, which once 344 MARTIN'S MINING AND WATER CASES. [VOL. 1906 becomes subject to interruptions, is bound to suffer in reputation, and March 6. consequent loss of business. At a trifling extra cost per yard appel- Full Court, lants could safely dispose of the rock complained of. Argument. [Per curiam: It is not necessary for you to shew the cost, whether great or small, of disposing of this rock. If you are certain to be damaged by the appellants' works, you are safe within the doctrine of Bickett v. Morris.~\ Bickett v. Morris is the Magna Charta of our rights in this action. The doctrine in Bickett v. Morris, depends on the right to the use of the land and not the water ; see the language of the Lord Chancellor at p. 53. It is the encroachment affecting the natural flow of the water which is the injuria. He referred to Orr Ewing v. Col- . quhoun (1877), 2 App. Cas. 839. r [Hunter, C. J. : Lord Blackburn's remarks in that case tend to shew that it- is not ipso facto illegal to place an obstruction in the stream.] No ; it is ipso facto illegal, unless the party erecting it can shew that there is no possibility of damage. Palmer v. Persst supra, and the cases cited by Mr. Bodwell, are all cases dealing with the use of the water ; Bickett v. Morris is as to the use of the land ; it is a case* decided by English judges, and the English cases re-affirm Bickett v. Morris-, see Belfast Ropeworks Co. v. Boyd (1888), 21 L.B. Ir. 560 at p. 579 ; in Attorney-General v. Terry (1874), 9 Chy. App. 423, the obstruction complained of extended three feet into a stream sixty feet wide, whereas here ^t is proposed to go forty-five feet out into a pool seventy-five feet wide. [Hunter, C. J.: That was an interference with a navigable stream; this is a deep hole below a cataract in a mountain river. ] Withers v. Purchase (1889), 60 L.T.N.S. 819, was cited by ap- pellants. In that case defendants wanted to take away ; here they want to add to the bed of the stream. He also referred to Kensit v. Great Eastern Railway Co. (1884), 27 Ch. D. 122; Menzies v. Breadalbane (1828), 32 B. B. 103, at p. 106. As to the ownership of the bed of the stream, see Lord v. The Commissioners for the City of Sydney (1859), 12 Moore, P.C. 473, shewing that, unless the bed of the stream is specifically excluded, it goes with the grant: also The Queen v. Robertson (1882), 6 S. C. B, 52 at p. 79. Even admitting appellants' statement that the blasted rock complained of will remain where it is now being put, then they are infringing the rule in Bickett v. Morris by interfering with the stream. The rock may jam at the narrows and cause an obstruction there, and ir. 1 WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 345 the filling up of these pools or pot-holes will have the effect of re- 1906 ducing our head of water and thus interfere with our works. As to damages, he cited Shelf er v. City of London Electric Light- yuL^UBT- mg Company (1895), 1 Ch. 287; Martin v. Price (1894), 1 Ch. 276; Argument. Dreyfus v. Peruvian Guano Company (1889), 43 Ch. L. 316; Roberts v. Gwyrfai District Council (189-9), 2 Ch. 608; Hill v. Smith (1865), 27 Cal. 476 at p. 482, affirmed in (1867), 32 Cal. 166; Canadian Pacific Railway v. Parke (1899), A. C. 535. Appellants are not constructing the works they were authorized to construct. Bodwell, in reply, cited Ormerod v. Todmorden Mill Co. (1883), 11 Q.B.D. 155. Cur. adv. vult. 6th March, 1906. Hunter, C. J. : The facts as they appeared at 'the trial are stated Judgment, in the judgment of the learned trial Judge, and there is no need to repeat them. . The appeal coming on to be heard, the defendants applied for leave to bring further evidence which could not have been obtained for the trial owing to the river being too high to make it possible to take any soundings. The motion was granted, with the result that, in my opinion, they are now entitled to judgment. The action is for apprehended damage simply, and not for actual damage proved to have been done to the plaintiffs' property by reason of the operations of the defendants. There is no doubt that the learned Judge was quite right in his view that the nature and depth of the bottom of the river between the two falls was an important factor to be taken into account in coming to a conclusion as to the possibility of rock being delivered at the plaintiffs' intake or jamming the river at the first rapids, and so reducing the head of the upper falls. No accurate evidence was before .him as to the depth of the pools or the rapids, but the evidence taken since the trial is clear to the effect that the upper pool opposite the defendants' works is of sufficient depth and size to make it impossible, unless by a convulsion of nature, for any rock which falls into it by reason of the defendants' projected operations to reach the plaintiffs' intake. • It is a pool, roughly speaking, 400 feet in diameter at low water, and varies in depth from ten or twelve feet to fifty feet or more, being deepest near the south shore, on which side the defendants' works are being constructed. The plaintiffs are now forced to contend that angular pieces of rock which may get into this pool either by slipping 346 MARTIN'S MINING AND WATER CASES. [vol. 19U6 March 6. Judgment, Hunter, C. away from the embankment, or by being deposited by.the defendants on the shore of the river, or by (being discharged into it' by blasting, Full Court., and which, having regard to the quantity which the defendants propose to blast, cannot by any possibility raise the floor of the pool more J- than a foot or two, will climb up out of the pool on to the floor of the first rapids below, which is not more, than half the depth of the pool, and will either jam there or go on down and visit the plaintiffs' intake. Before the rock reaches the intake, however, it will first of all have to go down into a deeper and longer pool than the upper one; it will then have to mount another rapids, the floor of which is about twelve or fifteen feet higher than the bottom of that pool; it will then have to descend into another pool which is about 40 feet deep in the centre and.about 1,200 or. 1,300 feet long, then strike across the current and go up hill into the plaintiffs' intake. There is no evidence to shew that the rocks through which the Kootenay rolls are less liable to the laws of gravitation than other rocks, except that of the witness who talks of "rocks four feet under water travelling down and not touching anything," and therefore I must conclude that there is no appreciable danger that they will steeple-chase down the river in the alarming manner suggested by the plaintiffs. As to jamming up the rapids and so reducing the head, it will be time enough to complain of that when the defendants' operations are conducted on so gigantic a. scale as to threaten to raise the bottom of the pool to the level of the floor of the rapids. No doubt a river like the Kootenay carries, and will inevitably carry down a large amount of detritus from'different sources during the year, and especially at high water, and the plaintiffs will always have to make provision against it, but the quantity of matter that will be contributed by reason of the defendants' operations as explained to us will be so minute in amount as to make it easy to apply the maxim de minimis. ' I notice that the case is overloaded with the opinions of experts, but in view of the evidence, which was not before the learned trial Judge, I am glad to think they need now have no. terrors for us if we but resort to the knowledge which is common to us all. I may say I am not favourably impressed with the raison d'etre of this suit, and having regard to the fact that the establishment of the defendants' undertaking means the loss of one of the plaintiffs' largest customers, and that the plaintiffs were baffled in their attempts, under colour of the Mineral Act, to occupy the situs of the defendants' plant in order to obtain a monopoly of the power of the river, this last attempt to harrass the defendants should not receive any encouragement from this Court by a strained application of the rule ii.] WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 347 laid down in Bickett v. Morris. Taking the Lord Chancellor's opinion l • ' Ma as the ruling opinion, no doubt the Lords in that case laid down the. rule that any interference with the bed of the stream may give a cause Full of action to any other riparian proprietor who is likely to be injured jU( thereby, and that upon such* proprietor complaining of the inter-HuN ference, the onus is on the other party to shew that there is no real ground for apprehension. But like all decisions which lay down a general principle, the language of the Judges must be taken sub modo, and regard must be had to the circumstances of the particular case. It is obvious that an ejection which would create a serious obstruction in a creek like the Kilmarnock (which the official report says was not more than two feet deep in that part of its course under discussion, and the report in 14 L. T. N. S. says was 58 feet wide), would not be seriously considered in the case of a river like the Columbia or the Fraser, except under the most peculiar conditions. A large boulder, which would be lost in one of the abysses of the Kootenay, if thrown into the Kilmarnock at the spot dealt with in the decision, would split up the current with every probability that one or other bank would be eroded to the damage of the riparian owner. It is plain, therefore, that care should be taken in applying a decision which sprang out of litigation over a shallow creek to a river of the dimensions of the Kootenay, and in this case I think it is clear that the plaintiffs cannot reasonably apprehend any injury from the operations as at present conducted by the defendants. But Mr. MacNeill, relying on certain language to be found in the speeches of Lords Cranworth and Westbury, contended that Bickett ■ v. Morris in effect decided that he was only called upon to shew that the defendants had sensibly interfered with the bed of the river, and that such interference was ipso facto actionable. But having regard to Lord Blackburn's examination of that case in Orr Ewing v. Col- quhoun (1877), 2 App. Cas. 839, at p. 852 et seq.; and the remarks of Fitzgibbon and Barry, L.JJ., in The Belfast Ropeworks Co. v. Boyd (1888), 21 L. B. Ir. 560, I think the contention cannot be maintained -and that the law is not that any sensible interference is per se actionable, but that there must be either actual damage or a reasonable possibility of damage to give a good cause of action, and that in determining whether the defendant has discharged the onus, regard must be had to the circumstances of the particular case. In this case, as I have already said, the additional evidence has made it perfectly clear that the plaintiffs cannot reasonably apprehend any damage from the proposed operations, and the extra amount of silt which may be brought down the river as the result is so small that it may be neglected. It was contended by Mr. Bodwell that the common law in relation to riparian rights was not introduced into this Province, and that in gment, 'ER, C.J. 348 MARTIN'S MINING AND WATER CASES. [VOL. 1906 March 6. Judgment. Hunter, C. any event, having regard to the true construction of their grants, the plaintiffs were not riparian proprietors within the scope of the Lord's t. decision. It is, however, unnecessary for me to consider just now how far, if at all, these contentions are sound, as I am prepared to J- decide this case on the assumption that the common law as to the rights of riparian proprietors obtains in this Province except so far as altered by statute, and that the plaintiffs are riparian proprietors within the scope of Bickett v. Morris, and giving that decision, as I understand it, full force and effect. In my opinion, the appeal should be allowed, and the action dismissed without prejudice to any future action by the plaintiffs. Martin, J. di-sentin?. Martin, J.:—In the first place, it is necessary to determine whether or no the English law respecting the rights of riparian owners is or was " from local circumstances " inapplicable within the meaning of the English Law Ordinance, 1867, B. L. B. C. (1871), cap, 70, or rather of the original) Proclamation of November 19, 1858. That Proclamation is as follows: It is therefore hereby enacted and proclaimed by the Governor of British Columbia that the Civil and Criminal Laws of England, as the same existed at the date of the said Proclamation of the said Act, and so far as they are not, from local circumstances, inapplicable to the colony of British Columbia, are and will remain in full force within the said Colony, till such times as they shall be altered by Her said Majesty in Her Privy Council, or by me, the said Governor, or by such other Legislative Authority as may hereafter be legally constituted in the said Colony ; and that such Laws shall be administered and enforced by all proper Authorities against all persons infringing and in favour of all persons claiming protection of the same Laws." It was made at Fort Langley on the same day that the Governor, the Judge (Mr. Justice Begbie), and other high officials took the oaths of office at that Fort, when the new Colony of British Columbia was formally established. It should be remembered that the adjoining colony of Vancouver Island had a Governor since 1849 (Blan- shard) and that this Court was established on 2nd December, 1853: see Attorney-General v. E.„& N. Ry. Co. (1900), 7 B. C. 221, at pp. 233-4. The Colony of Vancouver Island was founded in 1843 by the Hiudson's Bay Company, with the erection of the Fort at Victoria, but long before that time the same company had many permanent establishments west of the Bocky Mountains in what is now the mainland of this Province; a list of them may conveniently be seen in the San Juan Boundary Arbitration Case, submitted to the German Em- Case itself, Colun other rts will I I mentio i was sui (1873), 2nd Statement, p.. xxv. Fort Langley of Government of the new Colony of British ed in 1827, and the dates of the founding of many ound in the British Columbia Year Book, 1897, lese facts to sh< n tt hi that th< bits or ( qut;& Lstom loes not de- miners, for ix.j WEST KOOTENAY P. c% L. CO. LTD. v. CORP'N OF NELSON. 349 English law was brought here by the early settlers long before the discovery of the precious metals, for the various dates of which see 1 M. M. C, Historical Preface, p. v. In the reference above given in the San Juan Boundary Case, at p. xxii., there is a note on the former jurisdiction of the Court of Upper Canada to the Pacific, and*in a series of articles on the rise of law in Bupert's Land in Vol. 1 of Western Law Times (1890), pp. 49, 73 and 93 (referred to in Clement's Canadian Constitution, 2nd Ed., 366) I have dealt at length with the same subject, and at p. 93, cite the case of La Pierre, who was transmitted from this side of the Bocky Mountains to Canada for trial under the Canada Jurisdiction Act, 1803, charged with cannibalism and murder committed near the source of the Columbia river. Later, further and more complete jurisdiction was conferred on July 2nd, 1821, by the "Act for regulating the fur trade and establishing a criminal and civil jurisdiction in certain parts of North America": 1 & 2 Geo. IV., cap. 68. This question of the introduction and application of English law was considered at length by Mr. Justice Killam in Sinclair v. Mulligan (1886), 3 Man. L. B. 481. affirmed on appeal (1888), 5 Man. L. B. 17, and applying it, and, inter alia, the cases of Doe Anderson v. Todd (1845), 2 U. C. Q. B. 82; and Jex v. McKinney (1889), 14 App. Cas. 77, to the hereinbefore mentioned' circumstances, I am of thei opinion that the English law respecting the rights of riparian owners was applicable to this country. It is interesting to note that the California case cited by Mr. MacNeill, Hill v. Smith (1865), 27 Cal. 476, shews that the Supreme Court of that State reached a similar conclusion in 1865. Then as to the right to the bed of the stream derived by the plaintiff from its Crown grant. The appellant contends that the grant should be construed as though the boundary was defined by metes and bounds to stop at the water's edge with nothing beyond. After an examination of the cases cited, I am of the opinion* that it was not the intention here to so restrict the grant, but that the conveyance, according to the small plans thereto attached, meant that the land was to extend generally to the river bank, in the'customary manner in the case of non-navigable streams, and that therefore the grantees should take to the middle of the stream, on the principle laid down in Lord v. The Commissioners for the City of Sydney (1859), 12 Moore, P. C. 473, and The Queen v. Robertson (1882), 6 S. C. B. 52, 2 Cartw. 65, particularly at pp. 102-6, in the judgment of Mr. Justice Strong, The nature of the Kootenay river at the points in question is even more in accord with this view than was the Miramichi in the latter case, as described by the Chief Justice at p. 86, and yet the Supreme VOL. II. M.M.C.—24. 1906 March 6. Full Court. Martin, J. dissenting. 350 MARTIN'S MINING AND WATER CASES. [VOL. 1906 . Court experienced no difficulty in applying to it the English common March 6. ^&w ruie< This case comes within the general principles stated by Full Court. Chief Justice Wilson in Coleman v. Robertson (1880), 30 U. C. C. Mamn, J. B 609 at p. 620: dissenting. "A| grant of land to the river, or margin or edge of it, or to the bank, or along the river, will prima facie carry the grant to the medium filum aquce." Coming then to the main branch of the case. The plaintiff relies on Bickett v. Morris (1866), L. B. 1 H. L. (Sc.) 47; 14 L. T. N. S. 835; but the defendant contends that this case is not within that decision and alternatively that the effect of the Water Clauses Consolidation Act is to deprive it of any force in the circumstances. Also, it is urged, that subsequent cases have explained that decision so that we must apply it in a more restricted sense than would appear from an unaided perusal of it. Several cases were cited and I have examined them all, and must confess I find it difficult to say what is the precise effect of them, so much do they vary in circumstances as well as in expression. In Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839, there is no doubt that some of the language used by Lord Blackburn would materially limit the effect of Bickett v. Morris; but one member of any Court could not in the guise of explaining a binding decision refine it away or narrow its scope. And in any event he is not by any means fully supported in his views by Lords Hather- ley and Gordon, the former of whom says " that case itself was of a totally different character from the case raised here" (p. 845), and the latter at p. 853, says: " And I understand the principle of Bickett v. Morris to be that where an erection is a present sensible injuria to the proprietary right of the owner of the other part of the alveus, or of the opposite bank of a running stream, he may have it removed on the ground that there is a present injury to the right of property, if it is impossible to predicate that it may not produce serious damage in future, though the complaining party is not yet in a position to qualify present damage." This definition of an injury, without present damage, to a right of property is in favour of the plaintiff. The case of Palmer v. Persee (1877), Ir. B. 11 Eq. 616, afterwards considered in Belfast Rope- works Co. v. Boyd (1888), 21 L. B. Ir. 560, places a construction upon Bickett v- Morris which is also in favour of the present plaintiff (p. 623), but it may be said that it does not consider what the effect of Orr Ewing v. Colquhoun may have been. Edelston v. Crossley and Sons, Limited (1868), 18 L. T. N. S. 15, is of no assistance because it does not state what Vice-Chancellor Wood thought the general principle was, and it was distinguished on the facts. In Withers v. Purchase (1889), 60 L. T. N. S. 819 at p. 821, Mr. Justice Keke- wich said that Bickett v. Morris " recognizes the de minimis rule while establishing the principle (see judgment j of Lord Westbury) that it is not necessary to prove that damage has been | u WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. £51 sustained, or is likely to be sustained. The real question here, as in every such case, is, whether, having regard to all the circumstances, the acts complained of may reasonably be considered to import injury present or prospective to the party complaining. There is no occasion for this purpose minutely to investigate the acts of the defendants." Perhaps the case most in favour of the appellants' contention is Belfast Ropeworks Co. v. Boyd, supra; but in my opinion uncertainty is introduced into the whole decision because of the remark of Lord Justice Fitzgibbon (p.'580), who, after stating his opinion on the real decision, excepts it " at least in any other case than that of ex adverso or immediately adjacent proprietors." Now, in the case at bar the plaintiff is proprietor in both these senses, and the ground affected by the alleged wrongful acts is building land of a peculiar and exceptional value, being the site of a very extensive and costly power plant. I mention this fact because some language in certain of the cases Seems inferentially to lay stress on a building value as being important in certain circumstances. My own view of Bickett v. Morris is more in accord with that of Vice-Chancellor Chatterton as expressed , in Palmer v. Persse, supra, but I quite realize that the point is»so far from clear that Mr. Bodwell may very plausibly, at least, argue the contrary, and I should be glad if a question of this importance and difficulty should be set at rest by a higher tribunal. To read that case .alone, it seems to be clear what the Court intended to hold as a general principle. Lord Westbury says, p. 838 : " My Lords, this is a case of very considerable importance, because, as far as I know, it will be the first decision establishing the important principle that a material encroachment upon the alveus of a running stream may be complained of by an adjacent or an ex adverso proprietor without the necessity of proving either that damage has been sustained, or^ that it is likely to be sustained from that .cause." And later on : l* It is wise, therefore, in a matter of that description, to lay down the general rule that, even though immediate damage cannot be alleged, even though the actual loss cannot be predicted, yet if an obstruction be made to the current of the stream, that obstruction is one which constitutes an injury in the sense that it is a matter the court will take notice of as an encroachment which adjacent proprietors have a right to have removed." is peculiarly applicable to th« ascertain earn so as damage may be occasioned to them. It is impossible to calculate beforehand what may be the effect of erecting any building in the ! to divert or obstruct its natural course." And again : I Lord Benholme says truly that what may be the result of any buil in the alveus no human being knows with 'certainty. The owners of the 1906 March 6. Full Court. Martin, J. dissenting. Some of Lord Cranworth's languag present case: " Rivers are liable at times to swell enormously from sudden floods and rain, and in these cases there is danger to those who have buildings near the edge of the bank, and indeed to the owners of the banks generally, that serious 352 MARTINS MINING AND WATER CASES. [VOL. 1906 March 6. Mart dissei i, J. ;ing. on the banks are not bound to obtain or to be guided by the opinions of engineers or other scientific persons as to what is likety to be the consequence of any obstruction set up in waters in which they all have a common interest. fl?here is in this case, as in all such cases there ever must be, a conflict of evidence as to the probable result of what is done. The law does not impose on riparian proprietors the duty of scanning the accuracy or appreciating the weight of such testimony. They are allowed to say, ' We have all a common interest in the unrestricted flow of the water, and we forbid any interference with it.' This is a plain, intelligible rule, easily understood and easily followed, and from which I think your Lordships ought not to allow any departure." He goes on to say that the Court would not "speculate on an infinitesimal obstruction,"- or as the Lord Chancellor puts it: "If the encroachment is not of a slight and trivial but of a substantial description, it must always involve some risk of injury. ' And 'again: " But any operation extending into the stream itself is an interference with the common interest of the opposite riparian proprietor, and therefore the act% being prima facie an encroachment, the onus seems properly to be cast upon the party doing it to show that it is not an injurious obstruction." Herein the obstruction extended somewhat, and would, if it had not been prevented by an injunction, have extended further into the stream itself, and admittedly upon what is the alveus thereof. It is impossible to say what the effect of the obstruction would have been upon. such a stream as the Kootenay. It is not what is to be expected at low water, but what may happen at ordinary high water that has to be taken into account, and one witness stated that he estimated the maximum flow as being thirty times greater than the minimum. Nor should I be at -all surprised if this were the case, though I wish more evidence was before us on this most important point. It is hard to conceive what would be the effect of such a terrific force and body of water. Applying the foregoing rulte to the circumstances, I am unable on all the facts now before us, as well as those before the learned trial judge, to hold that there is not a reasonable apprehension of danger^ resulting from the defendant's operations. Nor can I see that this view J of the plaintiff's right is altered by the sections of the Water Clauses Consolidation Act to which we are referred. In my opinion this . appeal really turns upon the question of onus. If Bickett v. Morris means that such is cast upon the defendant, then the plaintiff is entitled to succeed; but otherwise judgment should be in favour of the defendant. Morris* May, 1897, by chapter 63 plaintiffs were incorporated on the 8th of of the statutes of that year. tl.] WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 353 Water grants had been made in 1897 to certain persons named 1906 McAjthur at points kjnown as Bonnington falls, nearly midway between the Kootenay and Arrow lakes on the Kootenay river. FullCourt.* These grants were assigned to the plaintiffs and were confirmed to Morrison, j. them in 1899 by chapter 77 of the Acts of that year, and the plaintiffs now hold them as if they had been incorporated under Part IV. of the Water Clauses Consolidation Act, 1897. ■ Pursuant to their corporate powers the plaintiffs acquired land along the banks of the Kootenay river between the upper and lower Bonnington falls in 1900, and at present are operating a power plant erected at the lower falls and are constructing an 'additional plant at the upper falls on lot 1,396 on the north bank, some 3,000 feet distant from the lower falls. On lot 5,282 on the south bank opposite to and about 650 feet distant from the said lot 1,396, the defendant, the City of Nelson, a patron of the plaintiffs, is erecting a power plant of its own pursuant to powers in that behalf. conferred upon it by the Legislature. In the construction of this plant the plaintiffs allege that the defendants are proceeding so negligently and illegally as to create a menace to their works, and as their counsel stated in argument, they are depending in their action against the defendants not upon their right to the flow of water, but rather upon their rights as riparian owners to the soil or their portion of the alveus of the river. And applying, as they understand it, the principle in Bickett v. Morris (1866), L. B. 1, H. L. (Sc.) 47, they contend that the onus is upon the defendants to shew there is no injuria or no reasonable apprehension of damage. It seems to me, having regard to' the situation and conditions prevailing here and to. the scope of the legislation respecting the powers of the plaintiff corporation, that the cavse of Bickett v. Morris, supra, does not apply and is readily seen to be distinguishable. It may be well to recall in considering that case what the Earl of Halsbury, Lord Chancellor, said in the course of his judgment in Quinn v. Leathern (1901), A.C. 495 at p. 506, that "a case is only an authority for what it actually decides." In Bickett v. Morris, supra, there was not nor could there be any question as to the title to the bed of the stream, which, by the way, being only two feet deep, was susceptible of being wholly diverted. In the present case the title to the bed of the river is in question. The grants of land along the river bank to the plaintiff company were given by the government for the purposes of their corporate powers, and the company by 'its Act of Incorporation in dealing with realty is restricted to the acquisition of such lands as may be used for the purposes contemplated by the Legislature. 354 MARTIN'S MINING AND WATER CASES. 1906 " The presumption that, by a conveyance describing the land thereby con- March 6. veyed as bounded by a river, it is intended that the bed of the river usque ad medium filum should pass, may be rebutted by proof of surrounding circum- Full Court, stances in relation to the property in question which negative the possibility of M "~ T such having been the intention": Duke of Devonshire v. Pattinson (1887), moRRisoN, o. 2Q Q B D 263 ' This is an established doctrine not only in England but in the United States of America also: The Queen v. Robertson (1882), 6 S. S. B. 53 at p. 94, per Gwynne, J. What are the conditions here? The Kootenay river, particularly at the locus in quo, is a turbulent, powerful stream (and practically incapable of being wholly or substantially diverted owing to the topography of the country through which it flows and the character of the soil as well as the great volume of water), connecting the large river expansions known as the Kootenay and Arrow lakes in the mountainous portion of British Columbia. The Kootenay lake serves as a natural reservoir for the waters of the Kootenay river which finds its way down through gorges and canyons, and over falls and rapids to the lower waters of Arrow lake, a distance of some thirty miles. The general character of the banks of the river, particularly at the points in question herein, which are about midway between the' Kootenay and Arrow lakes, is precipitous and rocky, and the channel studded with projecting rocks. From the soundings made after the case had come to appeal, the river bed appears to be extremely irregular, some portions being of a depth of more than 60 feet. Owing to the turbid, inaccessible nature of the pools, as they are called, at the foot of the falls, the soundings could not be completed. The width of the river here varies from 800 feet to 75 feet. I gather from the evidence and statement of counsel that up to 1897 the water of the Kootenay at this point was unrecorded and the lands were Crown lands. Now the physical conditions existing in that locality preclude the idea that this river or those lands can be used for any purpose other than one over which the Legislature has primary and exclusive control, and for the acquisition or exercise of any right or title thereto^ the restricted leave, licence or grant of the Legislature must first be obtained. The plaintiffs were created for the purpose of developing water power at those points»on the river and disposing thereof, and incidentally they are granted certain lands on the banks of and adjacent to the river. In granting such lands in my opinion it was not necessary to express in terms that the grant does not cover the bed of the river. There is clearly an implied reservation based upon the situation and condition of the land as well as the purpose for which it was granted: The Queen v. Robertson, supra, at p. 94. it.J WEST KOOTENAY P. & L. CO. LTD. v. CORP'N OF NELSON. 355 There was no evidence before the learned trial Judge herein as to the depth of water in the pools below the falls or in the rapids, nor as to the character of the bottom of the river between the falls, F i.e., between ther operations of the defendants complained of and theM works of the plaintiffs at the lower falls, and in the absence of this evidence he could not find that there was likely to be any injury to the plaintiffs. This additional evidence which was ordered to be taken when the case was before us first on appeal, and which was not before the trial Judge, is now taken into consideration, and it satisfies me that the contention of the plaintiffs cannot prevail as to the likelihood of damage to them arising from the deposit of even the maximum quantity of rock into those deep pools by the defendants. But it is admitted by Campbell, the plaintiffs' superintendent, that now the defendants are depositing their rock along the bank of the river above low water mark, and then he speculates as to what may become of it in the event of high water. The soundings in the body of the upper pool range from 14 feet to 50 feet, and near the defendants' works, opposite theij dump, soundings could not be taken owing to the depth of water and other adverse conditions. At the outlet from this is a narrow rapid in which soundings could not be taken, and at the foot of the rapids the soundings ranged from 26 to over 60 feet. The river here has a very irregular bottom, shewing depths of over 60 feet and 26, 50, 40, 27, 37, 35, 25, 37, 23, 40 feet, and on the next rapid a little over three feet. At the foot of this second rapid the depths appear to be equally irregular, ranging from 7, 9, 23, 23, 15 to 40, 45 feet in the centre and then rising to 20, 28 feet, and just by the rapids to 20 and 23 feet, and opposite the intake, of the plaintiffs' canal, which is up against the north bank of the stream and is away from the thread of the stream or current which it overcomes, to 4, 6, 8, 15 feet, getting deeper towards the centre of the rapids and away from the intake. The current, opposite and running by the intake with a depth of 23 feet, is at the rate of 2.3 miles per hour. Even assuming that the current would be sufficiently strong to carry the large, heavy, jagged rocks which might be dumped into the upper pool along the stream's serrated bottom, yet it would be asking us to ignore every law of natural philosophy to hold that when those rocks are opposite the plaintiffs' works the current would relax its grasp and would permit them to glide to one side into plaintiffs' intake. The learned trial Judge did not find that the plaintiffs had received any injury from the defendants' operations. There is" no evidence to satisfy me of negligence on the part of the defendants. The acts complained of are the necessary result of the works autho- 1906 March 6. ull Court, orrison, j. 356 MARTIN'S MINING AND WATER CASES. [VOL. 1906 rized by the statute, and the possibility or improbability of injury is March extreme and remote. FullCour . »phe Court puts forth its powers only when substantial injury or Morrison, J. reasonable expectation of injury arises: Behrens v. Richards (1905'), 2 Ch. 614, and the onus in this case is on the plaintiff to shew that either exists. I would allow" the appeal. Appeal allowed, Martin, J., dissenting. Note.—An appeal was taken to the Judicial Committee of the Privy Council, but a settlement was later arrived at. ir.] VOIGT v. GROVES et al. 357 Voigt v. Groves et al.* o^Oia.B.C.i'fO 1906 AprU 20 Mineral Claim—Adverse Action—" Adverse Proceedings "—Mineral Act Amend- Full Court. ment Act, 1898, ch. 33, sec. 11—Affirmative Evidence of Title—Procedure and Jurisdiction of Trial Judge upon Admission of Failure of—Findings of Fact by Trial Judge—Duty of Court of Appeal in Beviewing—Be-hearing—Sham Proceedings-^Abuse of Process of Court—Waiver. If at the beginning of the trial of an adverse action, the plaintiff admits he can establish no claim to the ground in controversy, or if at the close of his case that fact appears, the defendant may thereupon move to dismiss the action, and the trial Judge should not then require him, under sec. 11 of 1898, to establish his own title affirmatively. Where adverse proceedings are a sham the Court will of its own motion .bring them to a summary end, for it will not allow itself to be made an instrument to effectuate a fraudulent design. Section 11 was designed, where there is a real controversy within said section 37, to get rid of the rule theretofore acted upon that the plaintiff must succeed on the strength of his own title, and that the defendant might rely on the weakness of his adversary's title: and to substitute as a new rule for determining the title to mining claims that each party is to bring forward the evidence of his own title, thereby putting both parties on an equality as regards the onus of proof. The section presupposes a real controversy, a genuine lis. and not a challenge by a party who comes into court and admits no title in himself. The phrase " adverse proceedings" means only those mentioned in sub-sec. 2 of sec. 37 of the Mineral Act. Held, on the facts that there had been no waiver of the point by the defendant's counsel. Per Duff. J. :—An appeal from a Judge without a jury is a re-hearing of the cause, and though where the question of credibility is based upon demeanour, the appeal is one in name only, yet if after giving to the views of the trial Judge the weight which is justly due to them, the Court of Appeal cannot reconcile his decision with the inferences to be drawn from admitted facts, or from facts proved by credible witnesses or documents, it should not generally regard itself as bound by his conclusions. Jugdment of Irving, J., reversed, Martin, J., dissenting. Adverse action. | Plaintiff claiming as owner of the -Victor 'and Mary V. mineral claims, adversed the application of the defendants Wright and Barron for a certificate of improvements to the Olympia mineral claim. At the close of the trial the learned Judge dismissed the action and also found that the defendants had not affirmatively proved their title to the Olympia claim, and against this finding the defendants appealed. ♦Partly reported in 12 B. C. 170. 358 MARTIN'S MINING AND WATER CASES. [VOL. 190£ April Full C< Statem The trial took place before Irving, J., at Kamloops, on the 17th 20 • and 18th of May, 1905. >urt. Before any evidence was given at the trial, it was stated by counsel ent. for the plaintiff that his position then was merely to ask for a declaration that the Olympia was an invalid claim, and that he would not be able to ask for a declaration that the Mary V. and the Victor were* valid claims; in other words, that the evidence on which the plaintiff relied to defeat the Olympia would also defeat the Mary V. and the Victor. Davis, K.C, and Denis Murphy, for plaintiff. J. A. Macdonald, K.C, and Nelson, for defendants. Appeal. The appeal was argued at Victoria, on the 16th and 18th of Jan uary, 1906, before Hunter, C.J., Martin and Dufp, JJ. The arguments on the point decided sufficiently appear in the reasons for judgment. J. A. Macdonald, K.C, for appellants (defendants). Davis, K.C, for respondent (plaintiff). Cur. adv vult. I 20th April, 1900. Judgment, ' EQunter, C.J.:—It was conceded both below and here that the plaintiff could not establish her title, and the sole question we have to consider whether the learned Judge was right in his finding as to the Olympia. ,The admission as to the plaintiff's title to the ground was made at the opening of the case, it being quite candidly stated by Mr. Davis that the evidence on which he relied to defeat the Olympia would also defeat his client's claims. The learned Judge, notwithstanding this admission, proceeded to hear evidence as to the defendants' right to the ground, apparently considering that section 11 of the amending Act of 1898 required him to do so. As soon as this admission was made, it was, I think, open to the defendants to move for dismissal for the reason that there was no ground in controversy within the meaning of the section, and that they were not bound to bring forward their title for investigation. In my opinion the section was designed, where there is a real controversy, to get rid of the rule theretofore acted on that the plaintiff must succeed on the strength of his own title, and that the defendant might rely on the weakness of his adversary's title; and to substitute as a new rule for determining the title to mining claims that each ! party is to bring forward the evidence of his own title. Before this ji.3 VOIGT v. GROVES et al. 359 enactment, it not infrequently happened that the defendant, who might have been the subsequent locator, was enabled by means of superior resources to push his claim to the stage of being enabled to F apply for a certificate of improvements before his adversary, and inH that way threw the onus on the latter to affirmatively shew that he had the best title to the ground; and the object of the enactment was thenceforward to put both parties on an equality as regards the onus of proof. The section, however, presupposes a real controversy, a 'genuine lis, and not a challenge by a party who comes into court and says he has no title himself. It was not designed to overthrow one of the most firmly rooted principles of our law that the holder of an interest in land can be called on to produce his title for investigation by a judicial tribunal only by some person who not merely claims to be entitled thereto, but has given some evidence of title in himself. In what different position, then, was the plaintiff after this admission from that of any stranger? As regards the suggestion that a plaintiff might lose something by being candid, I think that is not so, as if at the close of his case he had not produced some trustworthy evidence of title in himself, the Judge would be bound on motion of the defendants to dismiss the action. The defendants, however, do not seem to have taken the point at once, but delayed at least until after the close of the plaintiff's case. which of course was avowedly directed not to making out her own title, but to attacking their title. Mr. Macdonald says he did take the point at the close of the whole case, but there is no record of this having been done, nor is there any trace of it to be found in the stenographer's notes. Mr. Davis says he has no recollection of it, and our learned brother informs us that he has neither note nor recol- . lection of it. I therefore think we must take it that Mr. Macdonald submitted to have his client's title investigated by the tribunal, and that he cannot be heard to say now that it should not have been investigated. In my opinion it was too late to take it after the plaintiff had adduced her evidence, and even assuming that Mr. Macdonald did take it at the close of his own case, it is immaterial whether Mr. Davis objected that he had waived his right or not, as the question was no longer one between Mr. Davis and Mr. Macdonald, but between Mr. Macdonald and the Court. It seems to me a fundamental principle that if a party allows the Court to proceed with an investigation without objection, and takes the chances of a favourable issue, he cannot be allowed afterwards to say to the Court that it should not have made the investigation, and the point as to waiver is beside the mark. On the merits, however, I agree with my brother Duff, whose judgment I have had the advantage of reading. I also think, in view of the fact that these proceedings were a misuse of the statute for the 1906 April 20. ull Court. unter, C.J 360 MARTIN'S MINING AND WATER CASES. [vol. 1906 purpose of consummating a fraud, that the moment t1 e Court grasps ?!!__ ' their true nature, it is its duty ex mero motu suo to bring them to a Full_Court. summary end. Hunter,C.J. Further proceedings, if there are any, should be in another Court. The appeal should be allowed and the action dismissed. Martin, J. dissenting. Martin, J.:—There is first to be determined the question of fact respecting the location of the Centre Star mineral claim. Since the argument I have read over and carefully reconsidered all the evidence on that point, in deference to the strong contention of Mr. Macdonald that the finding of the learned trial Judge should be reversed, but I can only reach the conclusion that we should not be warranted in so doing. Then as to the decision of this Court in Gelinas v. Clark (1901), 1 M. M. C. 428, 8 B. C 42. It is quite clear to me that the view certain members of this Court expressed during the argument is the correct one—viz., that it has been over-ruled by Manley v. Collom (1902), 1 M. M. C 487; 32 S. C 371; 8 B. C. 153. I draw attention to the language at the foot of p. 501 in M. M. C And though the case at bar does not depend upon the curative provisions of -ub- sec. (g) of section 16, which were considered by the Supreme Court of Canada in the recent case of Docksteader v. Clark, Novembei 25, 1905 (unreported*) yet Mr. Justice Davies therein states what was the effect of the decision in Manley v. Collom, concluding thus:— | Where (there is) a location purporting to be made on ground already occupied by a valid and existing location, the junior location is invalid to at least the extent of the ground already covered, by the senior location." Therefore, as regards the failure of section 28 to, in effect, ci eate a new location, nothing more need be said. * But it is contended that apart from that section the doing of the work and the issuing of the certificate therefor create a new lease between the Crown and the free miner which no one is at liberty to question, not even the Crown, and the case of St. Laurent v. Mercier^ (1903), 2 M. M. C 46; 1 S. C 314, is relied upon, which purports to be founded upon Osborne v. Morgan (1888), 13 A. C. 227. The former decision is based on the distinctive placer, not lode (quartz) mining regulations of the Yukon, and a close perusal of these regulations and of the judgment shews that it is in no sense a safe guide to our decision in this case. The first and complete distinction that is to be observed.is that the whole decision turned on the renewal grant, obtained by Mercier after the lapse of the original location. That * Now reported ante p. 302. II.] VOIGT v.- GROVES et al. 361 grant was a formal lease from the Crown, in the same form as an original grant, issued under sec. 33 of the Placer Begulations of 1898 as follows:— " The entry of every holder of a grant for placer mining must be renewed and his receipt relinquished and replaced every year, the entry fee being paid each time." 1906 April 20. Full Court. Martin, J., dissenting. Bemarking on this peculiar provision, the Lords of the Privy Council said in The King v. Chappelle (1904), A. C 127 (cited in the note to St. Laurent v. Mercier, ante, p. 50) :— " Their Lordships, therefore, are of opinion that the placer miner on re- - newal holds under an annual grant in substitution for, and 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." In contrast to this, the free miner under section 24 of our Mineral Act has an absolute right to hold his claim from " year to year without the necessity of re-recording," on performance of the assessment' work or paying its equivalent under section 25. Mr. Justice Mills, in the St. Laurent Case, lays great stress, rightly or wrongly, it is not for me to say, on the fact that Mercier's claim was recognized in the Gold Commissioner's office as a valid one, and that | he had obtained a renewal of his original entry before St. Laurent's application," and held that it was not necessary for him to actually re-locate his claim before getting his renewal grant from the office of the Gold Commissioner. The following language is particularly significant as illustrating this:— " Here, Mercier has 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." It should be noted that Mr. Justice Mills was writing before the decision of the Judicial Committee above quoted, which gives greater force to Mercier's position under his renewal, though I concede that it is difficult to reconcile some of the statements of Mr. Justice Mills with the view of the Judicial Committee on the untenable position of the interloper referred to in the citation. It is quite clear from a perusal of his whole judgment that Mr. Justice Mills considered that the Gold Commissioner in the issuing of the renewal grant was exercising administrative and not merely ministerial functions. He says so, indeed, thus (p. 49) :— I The acts of the Gold Commissioner are administrative acts, and his decision should, as far as possible, be supported." 362 MARTIN'S MINING AND WATER CASES. [vol. 1906 April 20. Full Couri Martin, J. dissenting. I have been at some pains to consider the decision carefully because the learned counsel for the appellant so strongly relied on it, and of course if it were in point it would be our plain duty to give full effect to its conclusion because, as the Divisional Court of Ontario lately pointed out in Slater v. Laberee (1905), 6 Ont. Weekly Bep. 628:— It was not for the Judge, nor is it for us, to question whether a decision of the highest Court in Canada, is in accordance with the previous case. It is our duty, as it was his, to follow it." I am satisfied, however, that I am not in any way departing from their Lordships' judgment, and I am fortified in this belief by the fact that neither Gelinas. v. Clark nor Manley v. Collom was referred to, though Mr. Justice Sedgewick, who wrote the judgment in the latter case, was & member of the Court. Then as to Osborne v. Morgan. That is also a decision on certain. peculiar mining laws, clearly distinguishable from ours. At the outset, as their Lordships say, p. 232, " it is important to observe " that the appellants' free miner's right only authorized them to enter upon Crown lands, and the leasehold area of the respondents was excluded from that description. Therefore, as it'is said on p. 236, against such lands the holder of a miner's licence had " no right whatever." His status consequently would be that of a mere trespasser, just as though, a free miner here had presumed to locate upon an Indian reserve contrary to sec. 12 of our Act, or even upon Crown lands lawfully occupied for mining purposes, notwithstanding the trespass were unintentional, though now a bona fide mistake may be condoned by sec. 16, sub-sec. (g) as interpreted by Docksteader v. Clark, supra. Their Lordships' comment on the untenable contention of the appellant to dispossess the leaseholder Ci not only without aid, but without the wish of the Crown," and the unjust consequences that might result. " The right," they say, " to interfere with the possession of a tenant under a formal lease, independently of the lessor, and in derogation of his rights, is not one of the natural incidents of a mere licence, which carries no legal or equitable interest in the soil. An ex facie regular lease, followed by possession, and impeachable only upon such extrinsic grounds as are alleged in the appellants' declaration, is, as between the parties to it, not void but voidable; and, the lessees being willing to continue in possession and to comply with its stipulations, it is the privilege of the lessor to determine whether they shall be permitted to do so or not. The lessees are not liable to ejectment, except ■ in a suit brought at his ^instance or with his concurrence." And again, illustrating some results of the appellant's contention, 235, it is said:— " On that supposition, the lessees may have so conducted themselves that they cannot withdraw from their contract obligations: and the Crown may have so ratified the contract Ihat it cannot disturb the possession of its lessees; yec any one or more persons holding a miner's right may avail themselves of an original flaw in the lease, at any time during its currency. They may delay their «.] VOIGT v. GROVES et al. 363 challenge until the lessees have the faith of the le spent of money in preparing the land for mining operations, and may then intervene and appropriate the whole benefit of such expenditure, without the lessees being entitled either to^epetition of the rents which they have paid, or to compensation for their beneficial outlay. That may be a necessary, but it can hardly be described as a just, consequence of the statutory privileges implied in a miner's right." And again, p. #37:— " The whole tenor of the regulations is opposed to the inference that miners' right holders have a title to impeach possession held under a gold mining lease. It is only in one event, that of the lease becoming liable to forfeiture through I breach of the \ regulations, that the miner is allowed to intervene at his own hand." But in this Province " the whole tenor " of the Mineral Act is that free miners claiming adverse rights shall be at liberty to question the validity of opposing locations before Crown grants. It is only necessary to refer to sections 27, 28, 37, 47, 48, 131 and 132 of the Mineral 'Act, and sections 16 (g) 11 and 15 of 1898. And see also section 3.3 of the Placer Act and the ruling oh it in Tanghe v. Morgan (1904), 2 M. M. C. 178, 180. There are no sections corresponding to these referred to in either of the above cases, though, in the former, since Mercier's renewal grant was issued in 1900, the Yukon regulations have been amended and said section 27 now appears as section 28 of the placer regulations of March 13, 1901. It was not, however, cited on the argument, nor considered by the Court, doubtless because it was passed after the grant, and also six days after St. Laurent's over-location of March 7, 1901. Nor has,'under our Act, a gold commissioner or mining recorder any discretion in the matter of issuing a certificate, of work, because, according to sections 24 and 8^ he must do so " upon receipt of an affidavit setting forth a detailed statement of work," or, upon payment of $100, he must issue a receipt in lieu thereof; in this respect his functions are purely clerical, not to say mechanical. Other distinctions might be pointed out between the case at bar and Osborne v. Morgan, but it would be superfluous to do so for clearly it has no exact application, though it is interesting to note that its general principle was anticipated and applied in 1867 by Chief Justice Needham, of Vancouver Island, in an able judgment in the once celebrated case of the Canadian Company v. Grouse Creek Co., 1 M. M. C 3. The case of Hartley v. Matson (1902), 32 S. C 644; 2 M. M. C. 23, is another decision of a similar nature on an hydraulic lease under the Yukon regulations, decided before St. Laurent's ca.se; it also shews (p. 25) 'the importance the Court attached to the actual issue of a grant under the Yukon system. Finally, as to section 11 of 1898. The first time it was given effect to was, it happens, by myself in Ryan v. McQuillan (1899), 6 B. C. 431, 1 M. M. C. 289; and as the learned trial Jud^e herein says: 1 906 April 20. Full Court. Martin, J., 364 MARTIN'S MINING AND WATER CASES. [VOL. 1906 April 20. Martin, J. dissenting. " It has been the practice of tne Court here to permit the person filing the adverse claim, although shewn in the course of his case that his adverse claim is not a good one, to continue the contest. I do not see that the plaintiff, by • stating in opening his case that ne now knows that he cannot succeed, should be placed in any different position from that occupied by a plaintiff who attempts and fails to make a case. In continuing he does so at the risk of increased cost to himself." So far no difficulty has been experienced in enforcing its very useful provisions, and it has been held to extend to all adverse actions " which come before the Court for trial," Schomberg v. Holden (1899), 6 B. C. 419, 1 M. M. C. 290, wherein the amount of proof necessary on tbe part of a senior locator was considered; and see also the note to that case on the point of proof and onus, p. 291. In Dunlop v. Haney (1899), 7 B. C. 305, 1 M. M. C. 369, I had occasion to consider the effect of the section (pp. 370-1). The meaning of the words " adverse proceedings " was there considered, and also in Gelinas v. Clark, at p. 432, and Cleary v. Boscowitz (1902), 8 B. C. 225, 32 S. C. B. 417, 1 M. M. C 506. Subsequently, in Dunlop v. Haney (1899), 7 B. C. 300, 1 M. M, C. 344 at p. 347,1 again drew attention to another -unexpected effect of the section, and the Full Court in Caldwell v. Davys (1900), 7 B. C. 156, 1 M. M. C 387, held that it was the duty of both parties to insist on giving such evidence even when the learned trial Judge deemed it unnecessary, because it was the duty of the Judge to pass upon the title of both parties. In Rammelmeyer v. Curtis; Powers v. Curtis (1900), 8 B. C. 383, 1 M. M. C. 401, Mr. Justice Drake acted on the section; and in Cleary v. Boscowitz, supra, this Full Court held that where the defendant was the senior locator, the fact that the defendant had duly recorded certificates of work was of itself affirmative evidence of the defendant's title, and this decision was affirmed by the Supreme Court. In that case there is a remark by Mr. Justice Drake which was not concurred in by the rest of the Court, viz.— " I think that when it is shewn that the action is wrongly conceived, as *this is, and the certificates of work by the defendant have, been produced, the time has not arrived to call upon the defendant to prove any further title. The plaintiffs have to shew a prima facie title; having done so, the defendant* is then called upon to shew his title." This really means, of course, that the production by the plaintiff " of the defendant's certificate was sufficient evidence to discharge the onus on the defendant of making out a prima facie case. The learned Judge has, however, I speak with every respect, somewhat confused the point and treated the matter as though no evidence had in fact been given in support of the defendant's title, which evidence may in a proper case be given by admission from the plaintiff as well as otherwise. IL] VOIGT v. GROVES et al. 865 It is quite clear that the main object in passing the section was to 1906 obtain the assistance of the Court in determining the difficult and com- !p_ plicated questions that constantly arose in the Lands and Works De- I'ull Court. partment in applying for certificates of improvements under section Martin, J., 36; and by section 37 the Court was substituted for the Government dissentins- in the determination thereof. Section 11 is, indeed, supplementary to section 37, and has proved to be in practice a necessary piece of legislation. But it is now contended that where, on a case being called on for trial, the plaintiff admits that he has no evidence in support of his own title, there are no longer any " adverse proceedings," and all the Court can do is to make an order dismissing the action. To my mind, that is putting a strained and unwarrantably restricted construction upon the Act. It might just as well be said that there were no cc adverse proceedings" if, after the case had lasted say two days, and many witnesses had been examined, it unexpectedly appeared on cross-examination that the plaintiff had no free miner's licence, and consequently that, with the collapse of the plaintiff's case, the Judge's jurisdiction also vanished. To merely state such a contention is, in my opinion, to refute it. And I have no doubt that it would be the duty of the Court to call upon the defendant to prove his title even if the plaintiff did not appear when the case was reached on the list and called on for hearing. That there may exist difficulties in carrying into complete effect and upon all occasions the provisions of a statute is no reason for hesitating to enforce them to the full practical extent. It may very well be that nice questions will arise as to what effect, if any, can be given to the section in proceedings before trial, such as on a motion to dismiss for want of prosecution, but it is nevertheless, to me at least, beyond doubt that once the case is entered on the cause list for trial, or as the statute puts it, literally " brought before the Court," then the Judge ' is seized of the matter and the section attaches, and must be enforced. I Nor is his jurisdiction'affected by the failure of the plaintiff's case at the beginning, or at the middle, or at the end thereof, because it de- j pends not upon the plaintiff's action, but upon the fact.that the questions at issue are before the Court. It is for the Judge to satisf}^ himself as to what is sufficient " affirmative evidence of title " in the circumstances, and he may accept if he sees fit, as was done in Cleary v. Boscowitz, supra, the admissions of the plaintiff, -and also avail himself of the services of either party if counsel are willing to assist the Court in the discharge of a sometimes onerous duty. On the other hand, if he suspect collusion or deception, he would probably refuse the services of either counsel, adjourn the case, and call upon the Attorney- General, as the conservator of public rights, to aid in the performance VOL. LT. M.M.C- 366 MARTIN'S MINING AND WATER CASES. [VOL. 1906 April. 20. Martin, J. dissenting. of a public duty. Speaking as one who has held many such trials, I see no reason to anticipate any more insuperable difficulty in the future in giving reasonable effect to this salutary enactment than I have in the*past. Applying the section to the case at bar, I am of the opinion that the learned trial Judge adopted the proper course in the exercise of his discretion and jurisdiction. Hiolding the foregoing views, it is unnecessary to say anything about the question of waiver, and it follows that the judgment should be affirmed and the appeal dismissed. Duff, J. Duff, J.:—This action is ostensibly brought to enforce an adverse claim pursuant'to the provisions of section 37 of the Mineral Act. The defendants have applied for a Crown grant of the Olympia Mineral Claim, which is situated on Copper Mountain, in the Similka- meen district. The'plaintiff's claim is on its face made in respect of two mineral claims, the Victor and the Mary V., of which, by the statement of claim, the plaintiff is alleged to be the holder. At the outset of the trial it was admitted that the plaintiff could - not support the allegation that the boundaries of these claims embrace any part of the area within the limits of the Olympia; and consequently, that the plaintiff could not pretend to claim any right to any part of the land or minerals within the limits of the Olympia. I pass for the present the question whether in view of this admission, and of other circumstances to which I shall afterwards refer, the learned trial Judge had properly before him the question whether the Olympia is a valid mineral claim; and I proceed to consider whether the learned Judge's determination of this question (adversely to the defendants) can be sustained. The Olympia was located and recorded in March, 1900. Admittedly it is, with the exception of a small space, wholly within the boundaries of the Star mineral claim, located in March, 1899. In the meantime, I assume (against the defendants) that if at the time of the locating of the Olympia, the Star was a valid and subsisting mineral claim, the validity of the Olympia as a mineral claim' cannot be supported. Certificates of work in respect of the Star were issued at various times after the date of the recording of it, extending its life until March, 1903, that is to say, for a period two years after the date of the locating of the Olympia. The Star, therefore, if validly located and recorded, was a living claim at the time of the locating of the II.] VOIGT.v. GROVES et al. 367 .Olympia; and the determination of the question of fact we are con- 1996 sidering depends, consequently, upon the answer to be given to the —!_ question whether the Star was validly located and recorded. FullCourt. It is not contended that, in the locating and recording of the Star, 1)UFF> J- the requirements of the Mineral Act were not formally complied with. The attack upon the validity of the Star is based upon the allegation that at the time of its locating, the ground sought to be taken up was already occupied by another claim, the Centre Star. It is admitted that at the time of the locating of the Star, there was a mineral claim known as the Centre Star (occupying ground contiguous to the ground taken up by the Star) which was located on the 20th October, 1898, and recorded on the following 5th November. N~o suggestion is made against the validity of the Centre Star. The controversy between the parties is whether it occupied the ground afterwards taken up by the Star. In October,* 1898, Emil Voigt, the husband of the plaintiff, the defendant Wright, one Morgan and one Beaver, were members of an association formed for the purpose of prospecting and working mineral claims on Copper Mountain, which may with sufficient accuracy for our present purposes be referred to as a mining partnership. Beaver was a prospector, and had during the prospecting season of 1898 been engaged in prospecting for Voigt and Wright under a grub-stake' arrangement. Morgan was admitted into the association in August. Voigt was manager. In the early part ot October, Beaver engaged one Bate to work for the partnership at wages, and on the 20th October, four claims were located on Wolf Creek in the vicinity of Copper Mountain in the interests of the partnership. These claims were the Centre Star and the Agnes, both located on the 20th' October, 1898, and the Great Western and the Southern, located (as appears from the records) on the 24th and 25th days of the same month respectively. The defendants' case is that these four claims were located with the object of taking up the whole of the bed of Wolf Creek; that with this object they were so placed as to form a string of claims following the bed of the creek from north to south—the Great Western being the most northerly, the Centre Star adjoining the Great Western on the south, the Agnes adjoining the Centre Star on the south; the Northern in turn lying to the south of the Agnes, and separated from it by a small interval which was afterwards taken up by a fractional claim; that later for some reason which is not very fully stated, before the expirj' of the first year of the existence of these claims, it was decided by the persons interested to locate upon the same ground four new claims; and that this was done during the first few months of the 368 MARTIN S MINING AND WATER CASES. [VOL. 1906 April 20. Duff, J. year 1899. One of these new claims the defendants say was the Star, and that claim (they say) was located on the site of the Centre Star on the date I have already mentioned. I have come to the conclusion that the defendants have established this case. I do not forget the rule relating to the weight to be attached to .the finding of the trial Judge on questions of fact. Where one's view of the intrinsic credibility of individual witnesses is the controlling factor in a case, and where the estimate of such witnesses based upon their demeanour must largely determine the character of that view, an appeal on questions of fact, although given theoretically, is, generally, in practice an appeal in name only. But one cannot refuse to recognize that there is a right of appeal 6n such questions, and that on an appeal from a judgment after ^a trial by a Judge sitting alone, the hearing of the appeal is a re-hearing of the cause; and where, giving to the views of the trial Judge as to the credibility of particular witnesses the weight which is justly due to them, one finds that one cannot reconcile his decision with the inferences one. draws j from admitted facts, from facts proved by credible witnesses, by documents, from circumstances which are common ground, then I think I that generally one should not regard oneself as bound by his conclu- 5 sions: see Coghlan v. Cumberland (1898), 1 Ch. 704; Hood v. Eden (1905), 36 S. C B. 476 at p. 483; Rickmann v, Thierry (1896), 14 B. B. C 105, and Grahome v. Moulton (1906), 22 T. L. B. 380. . . The learned Judge took the view that by reason of section 11 of the Mineral Act Amendment Act, 1898, he was obliged to consider the, validity of the defendants' title. The learned Judge appears to have thought that, notwithstanding;! the fact that she had no interest in the subject-matter of the action cognizable in a court of law, the plaintiff was, under that section, f entitled, as of right, to press an attack upon the defendants' title. I do not think it necessary for the purposes of this case to lay down any| general rule respecting the application of that section. In my judgment this case is, by its circumstances, clearly differentiated from any class of cases falling under its operation. The evidence is conclusive that hefore V action the promoters of it knew that the cl sibly based did not, and could not, afford i able claim to any part of the Olympia. They knew that they ha&§' and could plausibly claim, no interest in the ground within the limits of the Olympia. The statutory plan filed with the Mining Becorder, a copy of which is in evidence, shews the Mary V. and the Victor encroaching on the Olympia. But the plaintiff knew when she made ommencement ot the on which it is osten- ndation for a colour- th< iavit verifying this plan as shewing the boundaries of the n.] GROVES et al. 369 adverse claim (as the surveyor who prepared the plan, by his own ad- 1906 mission, knew), that this claim, so defined, had not a shadow of foun- dation. The claim was a fiction; the statutory affidavit and plan a *ULLCouBT mere pretence. It was never intended (it is idle to suggest in the face Duff, J. of the facts that such an intention could ever have been entertained) that it should be prosecuted beyond the moment when the light of day should fall upon it. JEIad the defendants obtained discovery, the essential allegations in the statement of claim must have been struck out long before the trial. The failure to obtain discovery enabled the plaintiff to reach the stage of trial; but at the opening of her case, her counsel announced that he claimed no right of any kind in the property which was the subject of the defendants' application for a certificate of improvement. The object of the proceedings we are not left in the dark about; the plaintiff's counsel explained on the hearing of the appeal that the plaintiff seeks by impeaching the Olympia to clear the ground for a subsequent location. In my opinion, such proceedings cannot be brought within-section 11 without enlarging the words of the section. It js manifest that to bring section 11 into play this condition must be satisfied, namely, that there shall be adverse proceedings within the meaning of that phrase as it is used in the Mineral Act, To ascertain that meaning, one must turn to section 37 of that Act, and from subsection 2 of that section it is plain that those only are adverse proceedings in which the actor claims an adverse right of some kind "either to the possession of the mineral claim referred to in the application, for the certificate of improvement, or some part thereof, or to the mineral contained therein." Such proceedings necessarily involve an attack upon the title of the applicant; but the Legislature did not create the special procedure prescribed by section 37 with the object of exposing a person who under the provisions of the Mineral Act applies for a Crown grant of mineral lands to such attacks from persons claiming no interest in such lands. The affidavit and plan which the section requires shall be filed were obviously regarded as some measure of security against such attacks. The procedure is provided as a means whereby those asserting rights of the character described in the section may secure protection for such rights. To attempt, by means of proceedings under colour of the statute, to attack the validity of the applicants' title, where no adverse right is, or can be, claimed in the subject-matter of the application, is alike a fraud upor^ the enactment and an abuse of the process of the Court. The author of such a proceeding can by it acquire no status which can avail him for any purpose, once the real 370 MARTIN S MINING AND WATER CASES. [vol. 1906 April 20. Full Court Duff, J. nature of the proceeding is disclosed. To such proceedings section 11—which plainly pre-supposes a real adverse m proceeding within the meaning of section 37, and a real controversy between an applicant ' for a certificate of improvement and a real claimant to an adverse right—can have no application. It was argued that the proposed construction is required to bring the legislation into harmony with the object with which it was passed, viz.: to call the courts to the assistance of one of the departments of the Brovincial administration in the performance of its duty to pass " upon questions arising out of applications for certificates of improvement and Crown grants of mineral claims. I should have thought that if the Legislature intended to transfer to the Court the administrative functions of one of the departments of the Government, care would have been taken to express that intention in unambiguous words; but the answer to the suggestion is that the function which the Court discharges under section 11 does not, by the plain terms of the section, come into activity, except where the Court has before it parties who are engaged in a controversy as to the title to mineral lands which I both are claiming; and that it is only by doing violence to the language in which that section is* expressed that it can be held that the Court has any duty to perform under that section in the absence of such a controversy. There is another aspect of this question. I have sufficiently stated the terms of settlement between Voigt and his partners, to which the plaintiff was a party, to make it clear that the attempt to impeach the Olympia in this action is a gross fraud on that settlement. I do not think anythihg in the Mineral Act so far binds the hands of this Court as to compel it to suffer itself to be used by persons like Voigt in pursuing such plans as those disclosed in his correspondence with Braser by means of such proceedings as these. We are not concerned with the motives of persons who put in motion the process of the Court in accordance with the law.. But the Court will not allow itself, by means of sham proceedings, to be made an instrument to effectuate a fraudulent design.' Here we have glaringly displayed every element thi tect itself froi n such an imposition. the language of James, L.J., in E at pp. 482-3 ; approved by Lord (1898). A.»C 720, at p. 733. " It would, I think, be a shocking t lized country t o be made the instrumen which the Court interferes to pro^ It is a case, I think, for recalling ■ parte Griffin (1879), 12 Ch. 480 Watson in King v. Henderson ing for any Court of justice in a : of proceedings like these." One point remains to be considered in connection with this aspect of the case. It is said that the defendants, having invited the learned II.] VOIGT v. GROVES et al. 371 trial Judge to adjudicate upon their title, cannot now complain that 1906 he] i done so. In my opinion, this point is not well taken. It is not April 20. a case in which the parties have submitted themselves to an adjudica- FullCourt. tion extra cursum curies, like Bickett v. Morris (1866), L. B. 1 H. L. Duff, J. (Sc.) 47 at p. 53; Burgess v. Morton (1896), A. C 136; Canadian Pacific Railway Co. v. Fleming (1893), 22 S. C. B. 36; for, at all events, before the learned Judge gave his decision, as is quite apparent from his reasons, counsel for the defendants objected that this case was not a case justifying the exercise of the jurisdiction of section 11; and the learned trial Judge, in point of fact, dealt with the question of title as in the exercise of a jurisdiction conferred on him by section 11. It is argued, however, that the objection to the exercise of the jurisdiction came too late, inasmuch as the defendants' counsel had, without objection, permitted the plaintiff to give evidence, and had offered evidence himself upon the defendants' title. There was some dispute between counsel as to what occurred at the trial. Counsel for the defendants stated that at the conclusion of the plaintiff's case he had taken the point that in the circumstances he was not called upon to give evidence in support of his title. This was disputed by counsel for the plaintiff, and the stenographer's notes disclose no such objection. On consultation with the learned trial Judge, it was found that his note-book contained nothing indicating that any such objection had been ma<Je. It is plain, however, that when counsel for the defence in argument at the close of the trial took the position that section 11 was not applicable to the proceedings, counsel for plaintiff argued the point, and did not object that the defendants' counsel had, by his failure to take the objection earlier, waived it; and moreover, that the point was dealt with on the footing that the objection had been taken in time. After full consideration, I have come to the conclusion that in such circumstances waiver, if it was to be relied upon, should have been advanced at avtime when the circumstances were fresh m th« recollection of everybody, and before the Judge, whose personal knowledge would have enabled him to dispose of it at once. Such an objection cannot, I think, be taken for the first time in the Court of Appeal. For these reasons, I think that point is not now available to the plaintiff. Moreover, holding the view that these proceedings are an abuse of the process of the Court, and a fraud upon those provisions of the Mineral Act dealing with adverse proceedings, it would, I think, be our duty in any case now to give effect to that view, and to direct that the action be dismissed as of that 372 MARTIN'S MINING AND WATER CASES. [VOL. 1906 April 20. character. No stage of the action is too late, I think, to call into exercise the power of the Court to purge its records of proceedings Full^Court. so tainted: see Davey v. Bentinck (1893), 1 Q. B. 185. Duff, J. Appeal allowed, Martin, J., dissenting. Note.—For the evidence necessary to establish affirmative, evidence of title under, said sec. 11, see Windsor v. Copp, ante p. 318. As to reversing a trial Judge's findings of fact in a mining case, see Syndi- cat Lyonnais du Klondyke v. Barrett (1905), 36 S. C. 279, at p. 299 and at p. 307, wherein Nesbitt. J., says that the appellate Court before doing so must be satisfied that the trial Judge is " clearly wrong," which is the rule which, in practice, has been recently followed by the Full Court of British Columbia, e.g., in Parks v. Blackwood (1893), 2 B. C. 346; McKay Bros. v. Victoria Yukon Trading Co. (1902), 9 B. C. 37, 45-7; and Johnson v. Appleton, Jan. 17, 1905, per Hunter, C.J., Martin & Morrison, JJ. m BAKER et al. v. SMART et al. 373 *Baker et al. v. Smart et al. Leckie et al. v. Watt et al. 1906 April 20. jFull Court. Coal Mining Law—Coal Mines Act, B. S. B. C. 1897, ch. 137, sees. 3, 9, 12— ' Prospecting Licences — Leases — Conflicting Licences for the Same Area — Powers of Chief Commissioner of Lands and Works—Minister of Crown and Statutory Officer—County Court, Jurisdiction of under Section 9—"Dispute " —Prohibition. and 3 of the Coal Mines Act exclusive A prospecting licence under sees. over the area covered thereby. The Chief Commissioner cannot modify the conditions precedent prescribed by sections 2 and 3, and has no discretion in the granting of a licence. In performing their functions under the statute, the Chief Commissioner and the Assistant Commissioner do not act as agents of the Crown, but as mandataries of the statute, and therefore are not beyond the control of the Courts. Section 12 does not contemplate the granting of licences by the Lieutenant- Governor in Council, but the application to and the granting of a licence by the Chief Commissioner under sections 2 and 3. It does not authorize any regulations or restrictions which would deprive a licence of its exclusive character. The powers of the Lieutenant-Governor in Council do not extend to the prohibition of the grant of licences over reserved lands. The power to regulate . or to impose conditions or restrictions does not import a power to prohibit. A petition alleging that the petitioner has a special licence to an area for which other licences have been issued under the Act to opposing parties raises a I dispute " betAveen rival claimants under sec. 9 which the County Court may entertain. The question as to whether a " valid objection has been substantiated" is a I dispute " within said section, though question^ might arise which would be beyond the jurisdiction of the County Court. Decision of Martin, J., reversed, Irving, J., dissenting in the Leckie case. Appeal by B. G. E. Leckie and others from orders made by Statement. Martin, J., at Victoria on the 3rd of June and the 31st of July, 1905, prohibiting the County Court Judge of the County of Kootenay and the appellants from further proceeding with the prosecution or consideration of certain petitions presented by the appellants severally to that Court, alleging that a dispute had arisen respecting the right or title to a prospecting licence over the several areas described in those petitions, and asking a determination nnder section 9 of the Coal Mines Act that the appellants were severally. entitled to prospecting licences over those areas. ♦Partly reported in 12 B. C. 129. 374 MARTIN S MINING AND WATER CASES. [VOL. 1906 April 20. Full Court Statement. The petitioners, with a view of securing a licence to prospect for petroleum, complied with the statutory provisions in that behalf as .required by the Coal Mines Act, and in due time made the necessary application therefor to the proper official, which was refused. Watt et al. applied for licences to prospect over the same lands and they also were refused. On the 16th of June. 1904, subsequently to those applications, the Chief Commissioner of Lands and Works caused a notice to • be published in the British Columbia Gazette that licences to pros- ; pect for coal and petroleum upon and under the lands in question would be issued to all persons who had made proper application under the Coal Mines Act, upon payment of $100. The petitioner did not apply for this licence. Watt et al. did on the 18th of June, 1904, apply, and on the 3rd of August, 1904, licences were issued to them to prospect for petroleum over those lands. The form of licence, which is as follows, was a special one, framed to meet the particular circumstances which had arisen: I Owing to the number of applicants for licences to prospect for coal and petroleum, and the peculiar circumstances surrounding the application for and issuance of these licences, and the well known fact that the issuance has been^ unavoidably suspended for so many months, the Government of British Columbia finds it impossible to determine the equitable rights of the numerous applicants. Therefore, for the purpose of enabling all persons to go before the < proper tribunal for the determination of their respective rights and priorities, this licence is issued and accepted subject to such prior rights of other persons as may exist by law, and the date of this licence is not to be taken or held as in any sense determining such priority, and further, it shall not be taken or held to waive enquiry by the courts into the proper performance of all conditions precedent as between adverse claimants; and further, on the understanding that the Government shall not be held responsible for, or in connection with any conflict which may arise with other claimants of the same ground, and that under no circumstances will licence fees be refunded. "And the holder hereby waives any claim or demand against the Government, and expressly agrees not to take any steps or proceedings, or present any petitions to enforce any alleged claim or demand against the Government of the. Province of British Columbia arising out of the issuance of this licence or of any other matter or thing appertaining thereto. " The land being under reserve from pre-emption and sale, this licence does not include any right other than the right to prospect for coal and petroleum. " The duration of this licence is for one year from the 3rd August, 1904." On the 5th of November, 1904, the petitioner herein applied to His Honour Judge Forin, County Court Judge at Nelson, for and obtained an order calling upon all persons who might be interested in the subject-matter of the petition which sought a settlement of the disputes arising over the matter of the licences granted and amplications for licences over the ground in question, to appear before him and state their claims or grounds of objection to granting the relief asked. IL] BAKER et al. v. SMART 375 Counter petitions were then filed and the learned County ( Judge made an order restraining the Chi^f Commissioner of I and Works from issuing leases to Watt et al., and ordering tha disputes raised by the several petitions be heard at Cranbrook ii County Court on the 5th of July, 1905. An application was then made May 29th on behalf of Watt v. Leckie et al., to Martin, J., to prohibit the County Court Judge from further proceeding with the petitions. Sir C H. Tupper, K.C. for Baker et al., and Leckie et al. R. T. Elliott, for Srhart and Watt. Cur. adv. vult. June 2nd, 1905. Martin, J.: On further consideration of this matter, I can come to no other conclusion than that sec. 9 does not apply to the proceedings before the Assistant Commissioner under see. 3, and it is for that.official only to determine whether or no a " valid objection has been substantiated" against the application for a prospecting licence. Nevertheless the petition is essentially one based upon and complaining of a refusal to grant a licence, as appears particularly by paragraph 3 and the prayer thereof, and the only relief that could be had thereunder, even admitting all the allegations to be true in fact, would be in the nature of a mandatory order to the official in question to grant a licence to the petitioner. Such being the case, it is clear on the authorities cited that the learned County Court Judge had and has no jurisdiction in the premises, and1 the want of it is apparent on the face of the proceedings. It follows that the order nisi for prohibition must be made absolute. Order accordingly. In Baker et al. v. Smart the defendants' motion for prohibition came on before Martin, J., on June 23rd, 1905. Elliott for the motion. Sir C H. Tupper, K.C, contra. Maclean, K.C, D.A.G., for the Chief Commissioner of Lands and 1906 April 20. Full Court. Statement. Judgment below, Martin, J. Work Cur. adv. vult. 376 MARTIN S MINING AND WATER CASES. [VOL. 1906 April 20. Full Court Judgment below, Martin, J. July 31st, 1905. Martin, J.: This application differs from that of Leckie et al., in which I delivered judgment on June 3rd last, in that all the parties concerned already hold prospecting licences under the Coal Mines Act for the same area of land. At the outset it is to be remarked that though Baker and the five other petitioners whose petitions are identical with his, allege that five other licence holders, mentioned in paragraphs 3 and 8, including the present applicant, Smart, are applying for leases, yet it is not alleged that Baker et al. are doing so or are in a position to do so. The petitioners ask that the opposing licences be declared void and no' leases granted thereunder because of the non-observance of statutory formalities; and . that their own licences be declared to be prior to the others. It seems necessary, I think, for a proper understanding of the subject, to decide the question raised as to whether or no the Chief Commissioner is given power by the statute to issue more than one licence for the same area. After a careful consideration I am of the opinion that he does not possess "that power, and that the intention and effect of the Act is that a licence shall confer upon the holder thereof the exclusive right for the purposes of the Act, to the area covered thereby. This is shewn all through the relevant sections, but I particularly refer to the following expressions: "before entering into possession' of the particular part of said coal lands he or they may wish to acquire and work for coal," followed by directions for location in section 1: " the plot of land over ^rhich privilege is sought." In section 3: " piece of land sought to be acquired" and its dimensions, in section 4: "lands held under his licence" and " covered by prospecting licence," in section 5 the " new licence over the same lands " to a new applicant in section 6; the extension provided by section 7, and the right to "use the timber and stone on the land included in such licence for the purpose of his mining operations," and for the "erection of building on said land " under section 3. Though it is not suggested that any department of Government can advance its powers beyond a statutory limitation (of Peck v. Reginam (1884), 1 B. C (Bt. 2) 11, 1 M. M. C. 13 and cases cited in the supplemental notes thereon in 2 M. M. C in additional notes), yet for reasons set out in the notice respecting Coal and Petroleum Lands in South East Kootenay published in the British Columbia Gazette for June 16th, 1904, a special form of licence was authorized and issued on the 3rd of August, 1904, to many persons representing conflicting interests in the same area, which it is stated by Sir Charles Hibbert Tupper} the petitioners' counsel, has led to the J II.] BAKER et al. v. SMART et al. 377 present difficulty, and he consequently contends that " a dispute as to the right or title to a prospecting licence " has arisen under section 9 which it is the duty of the County Court to determine summarily as thereby directed. The situation so-created is undoubtedly unforeseen and could not have been contemplated by the framers of the statute because on the principle that " the KJhg can- do no wrong," it must have been1 presumed that the powers of the Crown would not be exceeded; nevertheless if the language of the statute is wide enough, effect will have to be given to it. The objection is taken that no relief can be granted the petitioners which does not in effect involve the granting of an appeal to the County Court from the action of the Chief Commissioner under section 3,' or the Lieutenant-Governor in Council under section 5, and further, that because the Crown is not named in section 9 it cannot extend to it, but should be restricted to disputes between subjects. Many cases were cited on both sides, butT find I am unable to derive much assistance from them because of the special provisions of this statute, and the peculiaryand different proceedings under sections 3 and 5 that section 9 must be considered in relation to. There is here a dispute between conflicting licence holders for the same area, and such being the case at first blush I might be disposed to hold that section 9 has application, even though the Crown is not directly mentioned, on the principle that, having regard to the other sections, it might be held to be included by implication. But a more careful consideration of the whole statute satisfies me that this cannot be, because both sections 3 and 5 presuppose that there is only one licence for such area and therefore the granting of the lease under section 5 is something which depends solely upon the question as to whether or not said exclusive licensee " produces satisfactory evidence " of his discovery to the Lieutenant-Governor in Council, who alone determines the sufficiency thereof. It would be, in. my opinion, as impossible to substitute the County Court for the Lieutenant-Governor in Council, under this section, as for the Chief Commissioner under section 5, which I have already decided cannot be done. If that is not so then the licensee in case of being dissatisfied with the way in which the Lieutenant-Governor in Council had rejected his proffered proofs, might, though no one else was concerned except the Crown and himself, appeal from the Council by invoking the assistance of the County Court to get his lease on the ground that there was a "dispute" or "claim" under section 9, and not only this, but also after the lease was granted he could compel the Crown to sell the lands to him at the end of five years; in short, 1906 April 20. Full Court. Judgment below, Martin, J. 378 MARTIN'S MINING AND WATER CASES. [VOL. April 20. Full Court. Judgment below, Martin, J. completely oust the Council and the Chief Commissioner as well, and wipe out all the exclusive or discretionary powers clearly conferred upon them by various provisoes—(a), (c) and (d) of section 5. And the same remarks apply to the subsequent proceeding under section 7. While it is difficult from the looseness of the language, and also unnecessary, to endeavour to say exactly what«disputes or claims section 9 can apply to, yet on the other hand it is not difficult to suggest some it may relate to, e.g., questions of boundary, of title, as in the case of other lands, and of rights under section 8. But it is clear to me that, after giving due effect-to the peculiar provisions of sections 3 and 5, it has no relation to the special proceedings there authorized, and though the unforeseen issue of conflicting licences has brought about unexpected disputes, yet that does not alter the principle of statutory construction which I have already applied to the case of section 3 as hereinbefore stated. On the subject of attacking Crown leases generally I refer to Canadian Company v. Grouse Creek Flume Co., Ltd. (1867), 1 M. M. C 3; Hartley v. Matson (1902), 32 S. C B. 644, 2 M. M. C 23, and St. Laurent v. Mercier (1903), 33 S. C. B. 34, 2 M. M. C 46. As to the formal objection raised to the grouping of the petitions it is only necessary to say in the circumstances, and having regard to the form of the order of the County Court made at the request of the petitioners which directly compelled -this application to be made, that I am unable to give effect to it. The result is, therefore, that the County Court has, on the face of the| petitions, no jurisdiction in the premises and the order nisi 1 must be made absolute. Order accordingly. Appeal. The appeal was argued at Victoria on the 19th and 22nd of January, 1906, before Irving, Duff and Morrison, JJ. The points raised in the argument material to the decision are sufficiently set out in the reasons for judgment. Sir C H. Tupper, K.C, for appellants. R. T. Elliott, for respondents. Cur. adv. vult. 20th April, 1906. rving, J., dissenting. ! Irving, J.: This is an appeal from Martin, J., who on the application of John Watt, issued an order prohibiting His Honour John A. Forin, Judge of the County Court of Kootenay, from pro- n.] BAKER et al. v. SMART et al. 379 ceeding further in certain petitions of Edward Leckie and others, purporting to be lodged under section 9 of the Coal Mines Act, B. S. B. C. 1897, Cap. 137. By the Coal Mines Act provision is made for issuing licences good for one year over a definite area of land not exceeding 640 acres. The' essential preliminaries to the obtaining of a licence are staking, posting notices on the land, advertising and making application in writing to the Assistant Commissioner of the district. That officer reports on the application to the Chief Commissioner, who shall if no valid objection has been substantiated, grant the licence as aforesaid. " As aforesaid" I understand, means over the particular piece of land staked and applied for. By the fifth section, provision is made for the granting of a lease to a licensee who shews that he has discovered coal on the land held by him under his licence. Such lease shall be confined to the lands covered by his licence, and shall not be issued until after a survey has been made. The licences are granted by the Chief Commissioner, the leases by the Lientenant-Governor in Council. The Chief Commissioner and Assistant Commissioner are, in my opinion, acting as agents of the Crown. The licences may be granted on unreserved Crown lands, leased Crown lands, and also on reserved lands on terms to be prescribed by the Lieutenant-Governor in Council. Section 9 is as follows: " In case of any dispute as to tne right or title to a prospecting licence or to any claim under this Act, the same shall be decided by the County Court or a Judge thereof, upon petition, in a summary way, who shall nave full power to order what shall be done in the premises, and as to the costs thereof." Section 9, in my opinion, does not authorize the County Court or Judge to give directions to the Assistant Commissioner, the Chief Commissioner or the Lieutenan1>Governor in Council. One cannot suppose that the language in section 9 was intended to confer upon a judicial tribunal authority to control the Chief Commissioner in the administration of public lands. For an alteration so sweeping one would expect to find a specific enactment. In my opinion, the section is limited to disputes between adverse claimants in respect of (1) the right or title to a licence acquired or sought to be acquired; or (2) in respect of the right or title to any claim acquired or sought to be acquired under the Act. The word 1906 April 20. Full Court. Irving, J. dissenting 380 MARTIN'S MINING AND WATER CASES. [VOL. " claim" stands, I think, for "area of land," and the expression " claim" t is equally applicable to the area of land included in a Full Court, licence as it is to that included in a lease. 1906 April 20. Irving, J., dissenting. In ihe appeal now under consideration, Leckie, on the 15th of November, 1904, presented a petition to His Honour Judge Forin in which, after stating that he had complied with all the requirements of the Act as to staking, etc., alleged that the Assistant Commissioner of Lands and Works refused his application (10th December, 1901) on the ground that the land had been granted to the B. C. Southern Bailway. The petition then sets out various • orders in council relating to the land in question, and complains that no authority statutory or otherwise exists whereby the lands in question were reserved or withdrawn from the operation of the Coal Mines Act in so far as prospecting licences for oil were concerned, and no valid objection was or could be substantiated to justify the Chief Commissioner of Lands and Works in refusing to grant his application. Stopping there for a moment, it seems to me that this is an appeal from tile Chief Commissioner, and section 11 has conferred no jurisdiction in respect of this matter. The petition then goes on (par. 11) as follows: " It has been alleged by or on behalf of the Honourable the Chief Commissioner of Lands and Works that other persons than the applicant above-named have staked and applied for the ground staked and applied for by the applicant or portions of it and it is alleged by your applicant that the applications of such other persons are invalid and void by reason of non-compliance with the provisions of the Coal Mines Act in that behalf." With respect to this part of the petition, there is' a dispute within section 9, but the petition does not shew in Leckie any right to take part pi it, as he refuses to take out the licence in the form in which the Chief Commissioner proposes' to grant it. In a word, the petition is demurrable, as the petitioner has no locus standi. Is this a ground for prohibition or appeal? It is not easy to say when a matter that can be corrected on appeal should be dealt with by prohibition. But as this case could have properly been the subject of prohibition prior to the passing of the Act of 1905, Cap. 14, I think the writ can still issue notwithstanding the provisions of section 116 (e). I would dismiss this appeal. With regard to the formal objection raised to the grouping of several petitions'in one application, I agree with my brother Martin, that having regard to the form of the order made by the County Court Judge at the request of the petitioners, this objection cannot be sustained. II.] BAKER et al. v. SMART et al. 381 Duff, J.: -The application as presented to Mrs Justice Martin 1906 was an application for an order prohibiting further proceedings in pri respect of any or all of these petitions, and the order was granted Full^Court. in that form. Duff, J. In the view I take of the questions raised by the appeal, it is not necessary to deal with the point raised by Sir Hibbert Tupper that the practice does not warrant a consolidation of a number of proceedings instituted by distinct individuals and relating to distinct matters (though involving the same general questions) for the purpose of an application for prohibition. I shall, for convenience, take the petition of Leckie as typical of the petitions involved in this appeal, and make no further reference to the persons whose names are associated with his in the proceedings. Leckie's petition alleges that after compliance with the provisions of sections 2 and 3 of the Coal Mines Act, he applied to the Assistant Commissioner of Lands and Works at Fort Steele for a prospecting licence over certain lands described in the petition, and situate in East Kootenay; and that, on the 10th of December, 1901, his application was refused for the reason stated in a letter of that date by the Chief Commissioner of Lands and Works to be that I The Department of Lands and Works has decided that the application cannot be granted as the land embraced therein has been Crown granted to the British Columbia Southern Railway." That the Legislature of British Columbia in the session of 1903 passed an Act confirming an order in council which had been previously passed by the Lieutenant-Governor in Council on the 18th of March, 1902, cancelling the grants referred to in the letter of the Assistant Commissioner, and declaring that these grants were void and of none effect. The petition further alleged that it was stated by or on behalf of the Chief Commissioner of Lands and Works that persons other than Leckie had staked and applied for the area referred to, or portions of it, under the Coal Mines Act, and that on the 16th of June, 1904, there appeared a notice, signed by the Chief Commissioner of Lands and Works, in the British Columbia Gazette, to ^ the effect that licences to prospect for coal and petroleum upon and under lands within block 4,593 South East Kootenay, which includes the area in question, would be issued in a form referred to in the petition. The petition concludes with a prayer that the Chief Com- Imissioner of Lands and Works may be ordered and directed to grant the petitioner a prospecting licence over this area on the payment of the fee of $50, and that the petitioner may have such further relief as to the Judge of the said Court might seem fit. This petition was filed on the 5th of November. 1904. VOL. II. M.M.C.—2.6. 382 1906 April 20. Full Court Duff, J. MARTIN'S MINING AND WATER CASES. [VOL. On the 23rd of February, 1905, an order was made by the Judge of the County Court of Kootenay directing that all persons having any objections to the prayer of Leckie's petition should file with the Begistrar of that Court, at Cranbrook, a petition or statement setting forth his claim and the grounds of his objection; that notice should be given to all interested persons for four weeks in the British Columbia Gazette and in certain local newspapers; and that copies of the petition should be forwarded to any party interested on application being made for the same to the Begistrar. On the 17th of April, 1905, a petition was filed on behalf of A. W. McVittie in the County Court of Kootenay at Cranbrook, asking that Leckie's petition be disallowed, and.claiming a declaration that McVittie was a prior applicant for a prospecting licence. This last named petition alleged that McVittie had obtained a licence on the 3rd day of August, 1904, to prospect for petroleum on the lands in question for one year. Counsel for the respondents maintained his right to prohibition on two grounds. It was contended, first, that the class of disputes over which by section 9 of the Coal Mines Act the County Court is given jurisdiction is limited to disputes respecting the right or title to a prospecting licence in esse or respecting an area defined by an existing prospecting licence; and second, that before the presentation of the appellant's petition, namely, on the 3rd day of August, 1904, the respondent Watt had acquired, under the Coal Mines Act, a prospecting licence over the area to which Leckie's petition relates; and that since the Coal Mines Act authorizes the granting of one prospecting licence in respect of a given area, the powers conferred by section 9 of the Act cannot be brought into play respecting the area in question except, at all events, for the purpose of deciding some dispute between the* holders of prospecting licences which may be alleged to affect that area. In substance, I think the questions to be determined upon the appeal are fairly presented by these two objections. ♦ The Act provides that any person who has complied with the provisions of sections 2 and 3 shall be entitled, if no Valid objection has been substantiated, to a grant of a prospecting licence under the Act. I entirely agree with the view expressed by Mr. Justice Martin, with which counsel for both the appellants and respondents con- , curred, that a given area cannot be subject at one and the same time to more than one valid licence under the Act; and that in that sense the licences which the Act authorizes are exclusive licences; and it is very essential, I think, to keep this in view in construing the p o-j visions of the Act. Mr. Justice Martin held that the question j J n.] BAKER ET AL. v. SMART et al. 388 whether a " valid objection has been substantiated " within the meaning of section 3 is exclusively a question for the Assistant Commissioner, and consequently that any dispute raised by such an objection is not a dispute -within section 9 of the Act. I cannot agree with that view. The Act does not, I think, reserve to the Assistant Commissioner, or to the Chief Commissioner, any discretion respecting the granting of a prospecting licence. An applicant, who has complied with the provisions of the Act is, I think, subject to the existence of any prior right, entitled to a licence provided that the area in respect of which the application is made is one to which the provisions of the Act apply. The objections referred to in the phrase which I have quoted from section 3 must, I think, be confined to objections going to the rights of the applicant under the statute. There is nothing in this view of the Act which conflicts with the general design of the British Columbia legislation respecting the disposition of the public lands. The Legislature has, by the statutes relating to minerals other than coal, and by the statutes relating to Crown lands, speaking generally, thrown open *all unoccupied and unreserved Crown lands of the Brovince to the acquisition of rights 'in them through the performance of statutory conditions. A person desiring to acquire a pre-emption under the Land Act is entitled to . an entry of his pre-emption upon compliance with the provisions of that Act. A free miner likewise acquires such interests in the mineral lands of the Brovince as the statute in that behalf authorizes by compliance with the prescribed statutory conditions. The Mining Ordinance of 1869, which first authorized the granting of coal prospecting licences, provided that on satisfactory proof of compliance with the conditions leading to the grant of the licence, the applicant should be entitled to the granj;, provided no valid opposition should be substantiated. That Ordinance (by section 29) committed to the Assistant Commissioner of Lands and Works the duty of hearing and determining all cases of dispute between adverse claimants to prospecting licences, and that the Assistant Commissioner was to determine these disputes judicially is shewn by the fact that he was entitled, and in certain cases required, to summon a jury to assist him in the decision of questions of fact. The Act of 1883 declared that the purpose of the Legislature in passing it was to encourage prospecting for coal; the same condition was imposed upon the right of the applicant to acquire a prospecting licence; and by section 11 of that Act, there was for the first time enacted the provision which appears in the present Act as section 9. The Legislature, in other words, by the Act of 1883, substituted for the Assistant Commissioner the County Court or a Judge thereof, as the tribunal to determine the question -whether the condition that no 1906' April 20. Full Court. Duff, J. 384 MARTIN'S MINING AND W;ATER CASES. [VOL. 1906 April 20. Full Couri Duff, J. valid opposition had been substantiated liad been complied with. By the Act of 1892, which mainly reproduced the provisions of the Act of 1883, " valid objection," the phrase which appears in the present Act, was substituted for " valid opposition." I see no reason for thinking that a dispute raised by such an objection, at all events when founded on some adverse right or claim, is not a dispute as to the right or title to a prospecting licence within the language of section 9. That language is certainly broad enough to embrace such a dispute, and there seems to be no ground for restricting its natural meaning. Having regard to the history of the legislation, the operation of the section may, perhaps, be held to be limited to such disputes, i.e., disputes between rival claimants to a given area, or a prospecting licence over a given area; but it is not necessary to the determination of the questions before us actually to decide the point. The petitions referred to disclose a dispute between rival claimants under the Act which must, I think, first be decided before the appellant can effectually press his claim for the grant of a licence; and he has, I think, brought this dispute before the forum charged by the statute with its determination. It is not necessary for the purposes of this appeal to decide the question whether the County Court Judge has power to issue a mandatory order against the Assistant Commissioner or the Chief Comiriis- sioner. If the disputes committed to his jurisdiction are limited to those falling within the class I have mentioned it would seem that many questions might arise on an application for a licence which it would be beyond his jurisdiction to decide; and consequently that (exercising a limited jurisdiction) he would, in making such an order, be acting beyond the limits of his powers. It does not follow that the right to a prospecting licence under the statute is not a right enforceable by legal process. In performing these functions under the statute, the Chief Commissioner and the Assistant Commissioner do not act as agents of awn, the C a mere comi courts. \Yh< a given area the objectioi objection co: tion must, yut as the mandataries of the statute; and as such, it is nonplace to say they are not beyond the control of the ;re there are disputed claims to a grant of a licence over , there will always be the preliminary question whether i giving rise to the dispute can be sustained; and if the nes within the class I have mentioned, then that ques- before the powers of a Court of general jurisdiction can be called section 9. mt exercise be first decided under the provisions of II.] BAKER et al. v. SMART et al. 385 It was hardly disputed, that the second contention must fail, unless the respondent Can make good his position as a licensee under section 12, I do not think that the respondent has established the contention based upon section 12. That section, in my opinion, merely provides for the application of the preceding sections to lands held under reserve, subject, with respect to the licence itself, to such restrictions, conditions and regulations as the Lieutenant-Governor in Council may impose. The section does not contemplate the granting of the licences by the Lieutenant-Governor in Council; it contemplates the application to and the granting of the licence by the Chief Commissioner of Lands and Works under sections 2 and 3. The words, " it is lawful," therefore, must be read as extending the function of the Assistant Commissioner and Chief Commissioner, under those sections, to lands held under reserve. So read1, they effect no abatement from the obligatory character of the duties of those officers as prescribed by these sections; Julius v. Lord Bishop of Oxford (1880), 5 App. Cas. 214 at pp. 222, 223, 235. As regards these duties, they are the .creatures of the statute only: Mott v. Lockhart (1883), 8 App. Cas. 568. The functions of the Lieutenant-Governor in Council under the section, too, are limited. His powers do not extend to the prohibition of the grant of licences over such lands. A grant of the power to regulate or the power to impose conditions or restrictions does not import a grant of the power to prohibit :■ Municipal Corporation of City of Toronto v. Virgo (1896), A. C. 88; River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743; Attorney-General for Ontario v. Attorney-General for the Dominion (1896), A.C. 348 at p. 363. He cannot, as I read the section, modify the conditions precedent prescribed by sections 2 and 3; he is, I think, by the terms of section 12, empowered to act only upon the licence as granted; and the purpose of the section being apparently to secure the carrying out of the object of the-reserve, one does not see the necessity of more enlarged1 powers. Nor do I think that section authorizes the imposition of such conditions as would deprive the licences to which they apply of their character as licences under the Act and actually tend to defeat the object of the Act. As I have pointed out, the Act plainly contemplates the granting of a licence which confers exclusive rights over the areas to which it applies. As the object of the Act of 1883, the parent of the present Act, was expressed to be the encouragement of the prospecting for coal, the necessity of this is apparent. Moreover, the term " prospecting licence " was, when the Act of 1883 was passed, a term in British Columbia legislation having a well-understood signification; it meant a licence conferring rights to prospect 1906 April 20. Full Court. Duff. J. £86 ^MARTIN'S MINING AND WATER CASES. 1906 April 20. Full Court Duff, J. which excluded all other such rights under any other such licence from the area to which it applied, and the term as used in that Act and in the present Act must, I think, be so construed. In my opinion, the Legislature has not, by section 12, authorized the establishment. of any regulations, conditions or restrictions depriving the licences of this characteristic of exclusiveness. There is ample authority for limiting the scope of general words contained in a legislative enactment to prevent a construction which would defeat the object of the enactment as disclosed by an examination of its provisions as a whole: Cox v. Hakes (1890), 15 App. Cas. 506. Nothing, I apprehend, can be more clear than this: that the granting of a vast number of 'licences over the same area would defeat the object which, as I have said, the Act of 1883 declares to be the object of that legislation—to encourage the prospecting for coal. If these views be correct, it follows that the respondent does not stand in the position of a licensee under the Act. His licence contains the following conditions: [as set out in statement]. This document is not and does not purport to be an exclusive licence; the right is reserved to the Chief Commissioner to issue other licences conferring the right to prospect over the same area. The right of the respondent has neither been determined nor considered by the Commissioner. The document is not, either in form or in substance, a licence under the statute and the act of the Chief Commissioner in issuing it was not, in my opinion, an exercise of the power conferred by section 3. It follows, for the reasons I have'given, that it must be treated as a document without statutory validity. It follows, moreover, that if the appellant is entitled by reason of compliance with the statutory conditions to the grant of a licence under section 3, the Act of the Lieutenant-Governor in Council in assuming to impose the conditions referred to in the notice mentioned in the petition, which are the same as the conditions above set out, cannot afford a justification for the refusal by the Chief Commissioner to exercise his powers under section 3, and grant a licence of the character authorized by that section, subject to such conditions, restrictions and regulations as may be imposed by the Lieutenant- Governor in Council in the lawful exercise of his powers under sec-1 tion 12. I am unable, therefore, to give effect to the contention that the notice referred to, or the granting of licences under it, in any waya deprives the appellant of his rights under sections 2 and 3. The appeal should be allowed, with costs. BAKER et al. v. SMART et al. 387 Morrison, J. [after reciting the facts] : By an order of this 1906 Court His Honour Judge Forin was prohibited from further proceed- ing in the said petitions in the County Court, as were also the peti- FullCourt. tioners Leckie et al. Morrison, J. From this order the present appeal comes up, and I gather that the short point for determination now is, as to the construction of section 9 of the Coal Mines Act. Has an applicant for a prospecting licence upon compliance with the statutory requirements acquired a right to such licence in respect of which, if a dispute arises, it may be heard in the County Court? To aid in construing this section the state of the law before the Act was passed may be considered. The words of this section are sufficiently intractable to justify an historical investigation of the enactment: The Queen v. Most (1881), 7 Q. B. D. 244; The Queen v. Bishof of London (1889), 24 Q. B. D. 213 at p. 224. Beginning with the Mineral Ordinance Act, 1869, I find the object of that legislation to be, as appears in the preamble, to develop the resources of the Colony by affording facilities for the effectual working of . . . coal, etc. An applicant for a prospecting licence was obliged to furnish to the Assistant Commissioner proper plans with his application, which was to be in duplicate; one of those was filed as of record in the Commissioner's office. Upon compliance with the statutory requirements, the Commissioner was empowered and- required to issue a licence to the applicant. Section 15 provided that "in case of any dispute £he right "or title to or in a prospecting licence and the possession of any claim or privilege under this Ordinance will be recognized according to the priority of record or registration with the Assistant Commissioner, subject to any question which may be raised as to the validity of the record itself." By section 3 the record, it seems, consisted of the application and plan filed. Section 30 empowered the Assistant Commissioner to decide those disputes, etc., and he is given all powers, etc., possessed by the ■ County Court Judges in the Colony. The next enactment is found in the statutes of 1888, cap. 3, and from the preamble there it is declared to be " expedient to offer inducements for the discovering and opening up of coal mines." It contains the same provisions as the last Act for filing the application and plan as of record, but the manner of settling disputes is changed by section 11. which is similar to that of section 9 of the present Act. It mav be fair to assume that at, this time the County Courts had 388 MARTIN'S MINING AND WATER CASES. [vol. 1906 become more fully and adequately established, and that the depart- ?!!_ ' mental business had increased, thus necessitating a division of work Full Court. ana responsibility. Morrison, J. The Act of 1883 was included 'in the*consolidation of 1888 and was amended in.1890 and 1892. By the amendment of 1892 provision is made for making application in duplicate, but nothing is said about filing the duplicate as of record. The tribunal for the settlement of disputes remains the same as provided by the Act of 1883. Then came the revision of 1897 and the amendments of 1903-4. I refer to the Interpretation Act, B! S. B. 0. 1897, cap. 1, sec. 10, sub-sec. 49, which enacts that the preamble of every Act shall be deemed a part thereof, intended to assist in explaining the purport and object of the Act. Looking at these various enactments as disclosing the state of. the law as it previously stood, it would seem that the object of the Legislature was to encourage the development of Brovincial coal areas, and with that laudable end in view facilities were given the public to come forward and explore for minerals, creating a right to a prospecting licence in such applicants as complied with the easy conditions precedent referred to. In case of disputes under the Mineral Ordinance Act, 1869, rights or claims were decided according to priority of record, which presupposes that there would be different claimants for the same area. These disputes were then heard by the Assistant Commissioner. In 1883, the Legislature changed this method, substituting therefor the County Court, but there was no change made as to the nature or class of disputes to be so referred.. I am of opinion that there is here a dispute as to the right to a prospecting licence which should be heard by the County Court Judge. I would allow the appeal. Appeal allowed, Irving, J., dissenting. Baker Smart. In the Baker v. Smart appeal, which differed from the preceding case only in that the parties herein had obtained the special licence : referred to. the following decision was given: Judgment of Irving, J. Irving, J.: This is an appeal from Martin, J., who, on thei application of one Smart, issued an order prohibiting His Honour | John A. Forin, Judge of the County Court of Kootenay. from proceeding further in certain petitions purporting to be lodged under! section 9 of the Coal Mines Act. II. 1 BAKER et al. v. SMART et al. 389 In these proceedings Smart represents certain persons who are 1906 •A- i • -r- , -,- . ■ j. £ i April 20. seeking to obtain coal areas m Kootenay district; Baker represents _ — the petitioners, who are adverse applicants for the same lands. Full Court. The petition after setting out that Baker had complied with the Judgment of . . Irving, J. statute' relating to the staking of the land, etc., and had obtained a special licence to prospect a certain area, alleges that Smart and those associated with him had also obtained' a licence under the same Act over the same area. This seems to me a dispute within the meaning of section 9, that is to say, a dispute between rival applicants upon which the County Court Judge ha.s power to adjudicate. The County Court Judge in giving judgment between these two parties will not in any way control the Chief ^Commissioner. I would allow this appeal. Duff, J.: The views I have expressed in the Leckie appeal are Duff, J. sufficient for the determination of this appeal in favour of the appellant. I would allow the appeal with costs. Morrison, J.: I would allow the appeal. Morrison, J. Appeal allowed. Note.—Cf. the " Coal Mines Act Amendment Act, 1907," for important changes. See later in this volume for a decision of the County Court of East Kootenay arising out of these claims, sub. nom. In re the Coal Mines Act and In re Baker, Leckie, Watt et al., applications for licences. 390 MARTIN'S MINING AND WATER CASES. [VOL. 1906 Morton et al. v. Nichols. JuIy_16- (12 B. C. 9, 485.) Full Court. Mineral Claim—Agreement for Sale of—Option—Time Essence of Contract m Unilateral Contract—Creditor and Debtor—Place of Payment — Tender— Specific Performance—Equitable Belief—Intoxication. In the case of options and unilateral contracts stipulations as to time are of the essence though not so expressed. The same rule applies to the sale of any property which is of a peculiarly fluctuating character, such as mineral claims. Where no place to pay is agreed upon it is the duty of the payer to seek out and find the payee if he is within the jurisdiction and make the payment, or a tender, unless the payee makes it impossible for him to do so, e.g., by deliberate evasion. Equitable relief from stipulations of this class is afforded only on the ground that the conduct of one of the parties raises an equity which entitles the other to prevent him from insisting that the condition has not been performed, and Held, on the facts not to apply to the case. ' Held, also, that the defendant was not in such a state of intoxication when he signed the contract that he did not understand its nature. Decision of Hunter, C.J., affirmed. Statement. Appeal by plaintiffs from judgment of Hunter, C.J., dismissing an action for specific performance of an option to purchase certain mineral claims, dated 30th June, 1905, made between the parties hereto. It acknowledged the receipt of $40 paid by the plaintiffs, and provided that the balance of the purchase price of the property should be paid as follows: $1,000 on the 7th of July, 1905, and $8,960 on or before the 30th of June, 1907. And1 there was a proviso that after the payment of the $1,000 the intending purchasers might examine the property for the purpose of satisfying themselves as to its value, etc. The defence was, firstly, that the defendant was drunk when he signed it; secondly, in the event of that defence failing, that the plaintiffs had not complied with an essential condition of the option, namely, the payment of the $1,000 on the 7th of July. The action was tried before Hunter, C.J., at Victoria, on the 25th and 26th of February, 1906. R. T. Elliott, for plaintiffs. W. J. Taylor, K.C, and Twigg, for defendant. 26th February, 1906. Judgment Hunter, C.J.: As to the first defence. I am of the opinion Hunter^ J "^at $ caimot be maintained. There is no doubt undeniable evidence to shew that Nichols on the 29th of June had got into a state of intoxi- I u:j MORTON et al. v. NICHOLS. 391 below, Hunter, C.J. cation at about six o'clock, and that on the 30th he was indulging 1906 freely during the whole of the day, principally in company with a man named Atkinson. And there can be no question that he was in Full Court what I may possibly best describe as a condition of semi-intoxication Judgment when, on the evening of that day, he went into the saloon of one of the ^plaintiffs, Morton, and signed a document dated on that day, which was drawn up by Morton, and the terms of which are practically the same as the terms of the document on which the action is brought. I have come to the conclusion with respect to that document of the 30th, that while, as I say, the defendant Nichols was undoubtedly in a state of semi-intoxication, he was not incapacitated to the extent that I could say that his mind did not go with the agreement, and that he did not understand1 the nature of the transaction with which he' was concerned. I find on inspection of the signature that there is nothing in it that would suggest to me that he was in a condition of complete intoxication, or that the intoxication had proceeded to such an extent as to enable me to say that he was not understanding the nature of the instrument that,he was signing. The same may be said, only o fortiori, of the document which is being sued on. On that day, the 3rd of July—as a matter of fact this document was executed on the 3rd of July—he had in compliance with the request of the plaintiffs proceeded down to Mr. Higgins' office for the purpose of having this former arrangement -of the 30th §l*awn up in some kind of legal shape. It is not in dispute that at that interview there was a discussion between all the parties to the suit, at which Mr. Higgins was present, over the plaintiffs' desire to have the time extended within which to pay the $1,000, that Nichols steadfastly, in fact peremptorily, refused to give any extension; that he desired to consider the proposition, to use Ijis own language. to sleep on it; that thereupon the plaintiffs, rather than lose the benefit of the option, consented to have the thing drawn up as it was originally drawn up in the document of the 30th. And the agreement was so drawn up. On inspecting the defendant's signature to this document, I find there is nothing in it to suggest in the slightest degree that he was so far intoxicated as not to understand fully the nature of the transaction which he was entering into. Comparison of that signature with the signature he gave in Court satisfies me that he was just as competent to sign at that time as he was before me, as the signatures are as much alike as they can be. And I saw nothing in his conduct in Court to suggest to me that he was in the slightest degree under the influence of liquor. The signature is in exact alignment with the typewriting which is above it; in no sense can it be said to be a sprawling signature, and so far as I can see the man that wrote that 392 MARTIN'S MINING AND WATER CASES. [VOL. 1906 signature has a pretty firm pen, although he is evidently a man of not U_L_ ' very much education, in fact possibly to some extent illiterate. Now, Full Court, j consider that that is a circumstance which is more weighty than Judgment any of the evidence given by the parties; in fact, inspection of the HunteiTc J signature, coupled with the admission on all sides as to the discussion about an extension of time, satisfies me that while no doubt he had been imbibing freely, his will was still with him, and that he understood well enough what he was about. Therefore, the defence of intoxication cannot prevail, and I do not think it requires any reference to authority to establish the proposition that before a defence of this kind can be sufficient, the Court must be clearly shewn that the intoxication had proceeded to such an extent as to make it reasonably certain that the party was not able to understand the transaction, or had not his will with him in the transaction, and that he was subject either to duress, or to be taken an undue advantage of by the other party. Then, turning to the option itself, there is a clause which provides that the sum of $1,000 shall be paid on the 7th of July. Now, of course by the provisions of the Judicature Act, stipulations as to time are to receive the same construction by the Court as they did formerly in the courts of equity. As far as I can gather from the cases referred to by the learned counsel on both sides—in fact, it has always been my understanding of the matter, the cardinal principle is that stipulations as to time are not treated in courts of equity as being prima facie of the essence of the contract. But where there is something in the nature of the property, such as for instance, reversionary interests, or where the property is of a wasting character, or in England, in connection with the sale of public houses, as going concerns, or where the property is of fluctuating value, and I think also in the case of options and unilateral contracts, there is this exception carved out of the rule, that is to say, that such stipulations, although not expressly made of the essence, would be deemed to be of the essence in a court of equity. Now, this is a contract for the sale of property which is of a peculiarly |luctuating value, namely, mineral claims. There is no class of property that is of more fluctuating value, I presume, than mineral : claims. So, although there is no stipulation that time shall be of the essence of the option, yet by the very nature of the property dealt j with, it is clear that time shall be of the essence. And I would say that having regard to the fact that it is an option or a unilateral contract, for that reason I would have come to the same conclusion, that I is to say, that time was intended to be of the essence. But I think I the matter is settled beyond peradventure by the admissions of all par-1 ties to this suit. The evidence is clear to the effect that there was al II.] MORTON et al. v. NICHOLS. 393 request to have the extension of that particular time for thevpayment 1906 of that particular sum; and it is just as expressly admitted on all ' JL, ' hands that the request was refused. In other words, there can be Full Court. nothing more certain than this, that all the parties to this contract judgment understood perfectly well that time was to be of the essence, and that uu^^fc j the $1,000 was to be paid on that particular day. I might point out. too, that for some peculiar reason, there is not the latitude allowed for the payment of that sum of $1,000, that there is for the larger sum of $8,960, because the stipulation is that that $1,000 is to be paid on the 7th, not on or before the 7th, and the balance of $8,960 is to be paid on or before the 1st of June, 1907. So that all the facts and circumstances point but one way, and that is that it was the clear intention of the parties that the $1,000 was to be paid on the 7th of July. That being so, we have to consider what was the duty of the plaintiffs under those circumstances. Now, the law is clear, and as I understand it, it has been settled ever since the time of Queen Eliza- ' beth that where there is a stipulation to pay money on a particular day, and no place is agreed upon, it is the duty of the payor to seek out and find the payee if he is within the jurisdiction. This, indeed, I seems somewhat obvious, because if it is the payor's duty to pay in legal tender it must be handed to the payee in order that he may have a chance to count over and1 object, and if it is to be handed to him he must be sought out and found. So far as I know the rule is absolute j and unqualified, with this one exception, that where the payee by his own conduct makes it impossible for the covenantor to' fulfil the I covenant, then a court of equity will not allow him to complain and to I set up the non-fulfilment of it in a suit. Where the payee deliberately I evades the payor, for the purpose of rendering the performance of the I covenant 'impossible, then of course it is his will that the covenant t should not be performed, and it is only reasonable under such circum- I stances that the Court should prevent him from insisting on the non- I performance provided the covenantor makes the tender within a j reasonable time according to the circumstances after the evasion ceases, j and satisfies the Court that he was ready and willing to pay the money • at the stipulated time. That brings us to this, is there anything in the circumstances pf this case which enables me to say that there was nothing done by the defendant to render it impossible for these plaintiffs to carry out the covenant to pay upon the 7th? Now, the undoubted facts are that the defendant was first of all within the jurisdiction, that during a portion of that day he was out at Saanieh, only a short distance away from the city. I am of the opinion that if he had been- at Saanieh the whole day, unless he was there for the purpose of evading the tender, 394 MARTIN'S MINING AND WATER CASES. [VOL. 1906 July 16. Full Court. Judgment below, Hunter, C.J it would have been the duty of the covenantors to have hunted him up and paid him the money there, or at all events tendered it to him there. But the fact is that he was not there during the whole day, that he was in "Victoria after about 11 o'clock that morning, that he was frequently at his then usual place of abode, the Western hotel, that he was on the principal streets during a portion of the day; and so far as I can see there is not a shred of evidence to suggest to me the conclusion that he was in any way, shape or form endeavouring to evade the performance of the covenant. On the other hand, it is admitted by the plaintiffs that they did not get the money together until about 3 o'clock on that day, that is to say, at the time when banking business is at an end for the day; and not only that, but they made no attempt whatever to find this man with the money; it is true that they had messengers a short time before, in the earlier part of the day, trying to hunt up his whereabouts; but they made no attempt to approach this man with the money until about 10 o'clock that night. Now, there is some suggestion made to me that about a quarter to 12 that night they made another visit to the Western hotel, and that they were informed by the proprietress, or by some party there in charge, that he was there, but they were not allowed in. Well, I have no recollection of that evidence being given at the trial, and it may possibly have been that there was some evidence of that given in discovery, but I will assume that to be the case, and that they were informed that Nichols was in the hotel, and that he was in his room. I am still of the opinion that that is not a finding within the legal duty; that to use the language of Baron Barke, it was their duty to find him at their peril. In other- words, to get in touch with him in such a fashion that they were able to tender him the money in a sufficient time before the expiration of the 24 hours to enable him to properly check up the money. I have come to the conclusion that the covenant was not performed within the time imposed upon the covenantors, and that there was no attempt made by the covenantee to render the performance impossible. That being so, unless it could, be made out to my satisfaction that there was some equity raised to prevent the defendant from holding the plaintiffs strictly to their covenant, I do not see how I can interfere. There is no doubt that the primary rule of all courts of equity is to hold the parties to their intention—to give effect to their intentions just as much as in a court of law. Now, I accept without reserve the statement of Lord Cairns in TilleyY. Thomas (1867), 3 Chy. App. 61 at p. 67. My conception of that, however, differs from the view taken by Mr. Elliott. I can see nothing on which I can ground any interference. Lord Cairns says: m MORTON et al. v. NICHOLS. 395 " The legal construction of the contract is, in my opinion, such as I have }$qq expressed, and the construction is and must be, in equity, the same as in a July 16. court of law. A court of equity will indeed relieve against, and enforce, speci- fie performance, notwithstanding a failure to keep the dates assigned by the Full Court . contract, either for completion, or for the steps toward completion, if it can j ^ . do justice between the parties, and if (as "Lord Justice Turner said in Boberts ' V ]^fn v. Berry), there is nothing in the 'express stipulations between the parties, Hunter C.J. the nature of the property, or the surrounding circumstances' which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the * essence of the contract." Now, I understand that to mean simply this, that where it is apparent from the stipulation itself, from the nature of the contract, such.as I think to be the case in this suit, or where it appears from the . surrounding circumstances that there was an express understanding between the parties that time was to be of the essence, the Court has no power to interfere, unless the performance of the covenant is deliberately made impossible by the act of the covenantee. In this case the failure was entirely on the part of the covenantors, and not in any respect upon the part of Nichols. That being the ease, I think it follows that the action must be dismissed with costs. Action dismissed. The plaintiffs appealed and the appeal was argued at Victoria on the 19th of June, 1906, before Irving, Duff, and Morrison, J J. Bodwell, K.C, for appellants. W. J. Taylor, K.C, for respondent. Cur. adv. vult. 16th July, 1906. Appeal. Irving, J.: The learned Chief Justice found as a fact that there had been no attempt on the part of the respondent to avoid the plaintiffs on the day appointed for payment, and he held as a matter of law that time must be considered of the essence of the contract, and dismissed the action. Having regard to the fluctuating nature of the property (Macbryde v. Weekes (1856), 22 Beav. 533; Parker v. Frith (1819), 1 Sim. & S. ^J00), and to the fact that the plaintiffs were seeking to exercise an option (Barrell v. Sabine (1684), 1 Vern.'268; Lord Ranelagh v. Melton (1864), 2 Dr. & Sm. 278; Dibbins v. Dibbins (1896), 2 Ch. 348), I am of the opinion that his decision as to the law was right, and as I see no reason to differ with him on the question of fact, I think the appeal should be dismissed. Judgment, Irving, J. 396 MARTIN'S MINING AND WATER CASES. [VOL. 1906 July 16. Full Court Irving, J. Mr. Bodwell called our attention to Fry on Specific Berformance, and asked us to relieve against the consequence of the plaintiffs' de-" lay, but the same reasons which compel us to regard time as of the essence prevent us, in the absence of any facts raising an equity in the plaintiffs' favour, from entertaining . any application to. extend the time. Duff, J. Duff, J.: In contracts between vendors and purchasers, that is to say, where 'such contracts consist of reciprocal promises, stipulations as to time are not generally deemed to be of the essence of the contract. This rule has, however, no application to eases where the performance of the condition in respect of which the limitation as to time is imposed is required to bring into being the relation of vendor and purchaser. It has long been settled that time is of the essence of such a stipulation when it forms part of a condition imposed on the exercise of an option to purchase land; and, consequently, if the conditions be not complied with by the day fixed, there is no contract of sale binding the vendor, and the option is lost. Of the many' statements of the principle I select a passage from . the judgment of Kindersley, Y.-C, in Lord Ranelagh v. Melton (1864), 2 Br. & Sm. 278 at p. 281: " I apprehend the rule of law applicable to cases like the present is perfectly clear. No doubt, if an owner of land and an intending purchaser enter into a contract constituting between them the relation of vendor and purchaser, and there is a stipulation in the contract that the purchase money shall be paid and the contract completed on a certain day, this Court in ordinary cases has established the principle that time is not of the essence of the contract, and that the circumstances of the day fixed for the payment of the money and completion of the purchase being past does not entitle either party to refuse to complete. On the other hand it is well settled that where there is a contract between the owner of land and another person, that if such person shall do a specified act, then he (the owUer) will convey the land to him in fee: the relation of vendor and purchaser does not exist between the parties unless and until the act has been done as specified. The Court regards it as the case of a condition on the performance of which the party performing it is entitled to a certain benefit; but in order to obtain such benefit he must perform the condition strictly. Therefore, if there be a day fixed for its performance, the lapse of that day without its being performed prevents him from claiming the benefit. Applying* that rule to the present case: if the agreement fixes a day for the payment of the money, then it is clear that if that day is past without the payment, the right to compel a conveyance is lost." And another from the speech of Lord Cottenham in Joy v. Birch (1836). 1 CI. & F. 57 at p. 89: " It is a well-established rule, that under a clause of repurchase of this description, being for the purpose of determining an interest, the terms of the proviso of repurchase must be strictly complied with. That doctrine was clearly laid down in Barrel! v. Sabine (1684), 1 Vern. 268, and it was confirmed in a case, in this House, of Ensworth v. Griffiths (1706), 5 Bro. P. C. 184. In Davis v. Thomas (1830). 1 Russ. & M. 806, Sir, John Leach said: m MORTON et. al. NICHOLS. 397 . "' Where there is no stipulation for penalty or forfeiture, but a privilege is conferred, provided money be paid within a stated time, there the party claiming that privilege must shew that the money was paid accordingly.' In Barrell V. Sabine it was held ' that where there is a clause or provision in the conveyance for the vendor to repurchase, the time limited for that purpose ought to be precisely observed.' It was therefore necessary for the party claiming the right to repurchase strictly to comply with the terms of the provision; he was bound to give a regular notice, and he was also bound to pay according to that notice, unless he was prevented from doing so by the situation of the party to whom the notice was given, or who was to receive the money. He was bound therefore to shew that he paid the money, or did do that which was equivalent in law to payment." By this situation of the parties Lord Cottenham obviously refers to his absence beyond the four seas. And at p. 91: " It was incumbent on the plaintiff to prove not merely that the notice was left at the house of the defendant, but to shew something more, namely, that he did make a payment, or that he did that which the law considers equivalent to payment, namely, that he had made a sufficient* tender of the money; that he had done all that it was incumbent on him to do to entitle himself to the benefit of his contract." See also Barrell v. Sabine (1684), 1 Vern. 268; Ensworth v. Griffiths (1706), 5 Bro. B. C 184; Davis v. Thomas (1830), 1 Buss. & M. 506; Brooke v. Garrod (1857), 2. De G. & J. 62; Weston v. Collins (1865), 11 Jur. N. S. 190; Dart's Vendors and Burchasers, 7th Ed., 272-3. The plaintiff must therefore shew either that he paid or tendered to the defendant the sum stipulated for on the day fixed, or that something has occurred since the contract relieving him from the exigency of the stipulation as to time. There was no payment or tender in fact, and the learned Chief Justice has found (and with his finding I agree) that the plaintiff failed to prove facts justifying the inference that the plaintiff was prevented from complying with the condition . by the acts of the defendant. Counsel for the appellant mainly rested his case upon the contention that the facts afforded a ground for equitable relief. Now, courts of equity have often afforded relief from the stringency of such stipulations, but it is important to remember that this relief is afforded, not on the ground that the strict enforcement of the conditions of the contract would bear hardly on one of the parties; not on any ground of mercy, or on the grounds upon which the Court acts in relieving from penalties and forfeitures; in other words, a court of equity has no jurisdiction to make a new contract between the parties. Such relief is afforded only on the ground that the conduct of one of the parties raises an equity which entitles the other to prevent him insisting that the condition. has not been performed. The course of conduct between the parties, for example, may be such that from jt the VOL. II. m.m.c.—27. 1906 July 16. Full Court. Duff, J. 398 MARTIN'S MINING AND WATER CASES. [VOL. 1906 Julv 16. Full Court. Duff, J. Morrison, J. Court will imply an agreement to extend the time: Const v. Harris (1824), Turn. & B. 496 at p. 523. Fraud, or intentionally misleading, or other acts preventing the party bound by the condition complying with it, may found the equity; Brooke v. Garrod, supra, <at p. 67. Again, one of the parties may, by the conduct of the other, without any fraud or misconduct, be led into the belief that the rights of the other party will not be strictly enforced; and in such a case, if it be inequitable that these rights should not be enforced, the Court will not give effect to them: Bruner v. Moore (1904), 1 Ch. 305; Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439, per Lord Cairns at p. 448; Birmingham and District Land Company v. London & Northwestern Railway Co. (1888), 40 Ch. D. 268. It cannot be argued that in this case there was any agreement to extend the time fixed for the performance of the condition in question, or that the plaintiff had any belief or expectation that the condition would be strictly enforced; and the facts do not I think supply any foundation for the contention that the defendant acted inequitably in insisting that it should be literally complied with: The decision of Spragge, V.-C, in McSweeney v. Kay (1868), 15 G-r. 432, may be sustainable on the facts; but the observations of the Vice-Chancellor, in so far as they indicate that in his opinion in contracts of sale providing for repurchase the Court has a general power to modify the rigour of the provisions as to time upon which the privilege of repurchase is conditioned, are obviously at variance with the decisions to which I have referred, which, indeed, do not appear to have been brought to his attention. The observations of Lord Cairns and of Sir John Bolt in Tilley v. Thomas (1867), 3 Chy. App. 61, have, for the reasons already indicated, no application to an agreement of the character now^ under consideration. Morrison, J., concurred in dismissing the appeal. Appeal dismissed. Note.—Quaere—Would the rule apply to the sale of a mine, properly so called? For other cases on sales of mineral claims, see Webb v. Montgomery (1897), 1 M. M. C. 129, and Pope v. Cole (1898) ib. 257, and notes thereto. And for measure of damages for deceit in sale of mineral claims, see Syndicat Lyonnais du Klondyke v. Barrett (1905), 36 S. C. 279, in which Nesbitt, J., says, p. 305:—" It cannot be the law that if I purchase five undivided mining properties and in developing the first one at a large expense I find I have been swindled and an action of deceit lies against the seller, that I cannot recover the damages I have suffered frQm such fraud in respect of that property. I think the rule would be in such case that if I could prove what the fair proportionate value of such property was to the other properties included in the purchase, and so establish what my loss was in respect of that one, I am entitled I think to assume that the representations as to the others ; are correct and that there is no loss to me in regard to them. . . ." Miner's Lien—Mechanics' Lien—Consolidated Actions—Appeal in Claims of Full Court. -Mechanics Lien Act, sees. 13, 14, 15 and 22, and Amendment of 1900, sees. 16, 24 and 26—Joint or Several Judgment—Distinct Adjudication. Though several lien holders may bring suit on their respective and distinct claims in one action and judgment may be entered for the whole amount of said claims, yet for purposes of appeal each claim is deemed to be severable, and the adjudication thereon is a distinct one, and not appealable unless it amounts to $250. Appeal by defendant company from a judgment of His Honour ♦Judge Forin in the County Court of West Kootenay in favour of the lien of the plaintiff and several other miners against the defendants' mining property. The lienholders had voluntarily joined their claims, nearly all of which were under $250, in one suit under sec. 13 of the Mechanics' Lien Act, and joint judgment was recovered for one total sum of $3,670.40, but in the formal judgment it was provided that " This Court doth declare that each of the above named plaintiffs . . . has and is entitled to a mechanic's lien . . . for the amount claimed' by each of the said plaintiffs respectively in the plant herein . . §? and the said claims were set out in a schedule to the judgment. The appeal came on to be heard at Vancouver on the 9th of November, 1906, before Irving, Martin and Morrison, JJ. W. A. Macdonald, K.C, opened the appeal, whereupon S. S. Taylor, K.C, for the respondents objected that under sec. 24* of the Mechanics Lien Amendment Act, 1900, there was no appeal in the case of those lienholders whose claims were less than $250. Though for purposes of convenience the judgment is joint in form, yet it is distinct and severable in nature, <and in each case is an individual adjudication, and must in practice be construed distributively to carry out the intention of sees. 13 and 22. Macdonald, K.C, in reply:—It is all one action; the suits were not consolidated by order under sees. 14 or 15, in which case it might be different. See sees. 16 and .26 of 1900. *24. Where in any action for a lien the amount claimed to be owing is \ adjudged to be less than two hundred and fifty dollars the judgment shall be i final, binding and without appeal. 400 MARTIN'S MINING AND WATER CASES. [VOL. 1906 November 9 (Martin, J.: Your position must be then that because these lienholders voluntarily complied with sec. 13 by joining in one suit to Full Court. save expense and delay, they are in a worse position than if they had Judgment, not done so, or if their claims had been consolidated by order: that view seems certainly against the spirit of the Act.) Per Curiam. We think that sec. 24 applies to these cases separately, and the appeal can only proceed as against the claims of $250 and over. Objection sustained. Note.—As to liens by miner and cook against a mine worked by a bondholder, see Anderson v. Godsal (1900), vol. 1, p. 416. Extra-lateral Bights—Apex—Trespass Workings—Vein, Fault in—Discovery— Full Court. Inspection—Experimental Work—)'iew—Evidence—Bejection of Evidence by Trial Judge and Remission Back to Him—New Evidence on Appeal—Costs —Order, Form of—Practice. In an action to determine the question as to whether a particular vein was continuous or faulted by another, the trial Judge, after inspection of the mine in presence of an engineer chosen by each party, ordered certain work to be done with a view to ascertain which theory was correct, and afterwards found against the plaintiff company on the facts, refusing its application to have further work done to prove its contention, but Held, on appeal, that in the facts and circumstances of the case the application should have been granted, and the order was made therefor. Form of order in such case'given. Decision of Hunter, C.J., reversed. Appeal by plaintiff from a judgment of Hunter, C.J., in favour Statement, of defendant in an action for an injunction and damages for trespass in the exercise of alleged extralateral rights in taking ore from the Babbit Baw and Heber Fractional mineral' claims. The action was tried at Nelson in February, 1904. For the purposes of this report the facts are sufficiently stated in the judgment of Hunter, C.J. Davis, K.C, and S. S. Taylor, K.C, for plaintiffs. Bodwell, K.C, and Lennie, for defendants. 23rd November, 1905. Hunter, CJ.: This is an action for damages, and an injunction .arising from the taking of ore by the defendants from the Babbit Hu Baw and Heber fractional mineral claims, owned by the plaintiffs. The ore was admittedly taken from within the limits of the said claims, 'but the defendants justify under the law governing their claims (known as the Slocan Star and the Silversmith), that is to say, they allege that they are entitled to the ore as belonging to a vein, the apex *of which is on their own claims, and which they have in due course of mining followed down into the plaintiffs' ground. The mountain on which the claims are situate looks towards the north, and the.vein works backward with depth towards the south. *A report of the trial proceedings is to be found in 12 B. C. 162 402 MARTIN'S MINING AND WATER CASES. [VOL. below. HUNTBR, C.J 1906 The defendants sank a shaft from their fifth level, and worked thence " westerly into the defendants' ground, as they contend along their vein, Full Court. ^^ jjj j^ from this drift that most of the ore in question has been Judgment taken. The plaintiffs claim that in so doing the defendants have not been pursuing the Slocan Star vein, but that this vein is cut off by what they term the Black Fissure, which extends from a point at or near the head of the shaft on the fifth level in a north-westerly direction to the point B on the plan affixed to the defendants' model, and beyond into the slates.- At the trial a large mass of evidence was given in support of the respective theories, the plaintiffs claiming that the Slocan Star vein was cut off, as already stated, by the Black Fissure, and the defendants maintaining that the Slocan Star vein continues around point B to a point C on the model, and connecting with the Silversmith vein which they were working at the same level, and in fact that the Silversmith and Slocan Star constitute one and the same vein. Difficulties having arisen as to the selection of an indifferent engineer to inspect and report upon the condition and appearance of the workings, I considered it advisable to inspect them myself in conjunction with an engineer chosen by each of the parties, and counsel were invited to attend the inspection, which, however, they both agreed was unnecessary. The plan adopted was that each engineer was to point out and explain upon;the ground the principal facts in support of his contention, and that the other was then to explain them from his point of view. The result was that as the connection of the two veins between points C and D-27 on the fifth level was not apparent to the eye, it was ordered that such work should be done as would, if possible, shew the continuity of the vein through that distance. This work having been done and a second view having been had, I have come to the conclusion, after hearing further evidence and what was urged, that the defendants' contention is correct, and that the fifth level shews a continuous vein traversing the Silversmith and Slocan Star. With respect to the origin of this vein I incline to accept the defendants' theory in preference to that of the plaintiffs. The former was that the remarkable curve which the vein takes at the point where the work was ordered to be done arises from the fact that the fissure passes around the nose of a large dyke of porphyry (which had long before intruded in a heated condition through the slates which there constitute the country rock), in preference to traversing it, the porphyry being a much harder and denser material than the surrounding slates; and I do not consider that the theory is weakened by the tt.] STAR MINING & MILLING CO. v. BYRON N. WHITE CO. 408 fact that the fissure does traverse small tongues of that material. The defendants' theory was that the Black Fissure cutting off the Slocan Star vein was caused by the contraction of the heated por- * phyry, but it seems difficult to reconcile this with the fact that small tongues of porphyry are found cut by the fissure, and that spathic h iron or siderite which is found close to the porphyry cannot exist in the presence of any considerable degree of heat. However this may be, I do not think I am called on to definitely decide as to the correctness of either theory, as I consider there is abundant confirmatory evidence of the contention that the Silversmith and Slocan Star veins constitute one and the same vein. Mr. Elmendorf, the defendants' engineer,, pointed out several places in the east portion of the fifth level which is admittedly on the Slocan Star vein—notably three—one being at the face, the second in the rise 75 feet east of the cross-cut, and the third at the junction of the level and the cross-cut—where identically the same material and appearance is to be found as that which composes the barren portion of the Black Fissure which Mr. Sizer, the plaintiffs' engineer, admitted to be the case. And although he admitted that there were many spots in the different levels of the Slocan Star which were %barren and composed of the self-same material as the Black Fissure, he maintained there was less evidence of crushing movement in the Star vein than in the Fissure, but I do not see how any distinction can be based on this ground alone to differentiate different por'ions of a vein which is continuous in fact. It is true that at one or two points, notably at and beyond B, the material composing the vein and the adjoining slates appeared to be more compressed, shattered and contorted than usual, but I think this was to be expected owing to the sharp curve taken by the fissure and the weight of the'superincumbent mass of porphyry. Inspection of the fifth level disclosed the fact that ore is found between stations 19 and 20, as well as all around the "horse" or shaft (i.e., where the vein widens out at the western boundary of the Slocan Star and commences its north-westerly course in the Heber fraction); and also for a distance of 280 feet from the shaft as far as station 27, that is to say, for 280 feet in the Black Fissure, and there is nothing to distinguish this ore from that in the Slocan Star vein. Mr. Sizer explained the existence of ore in this 280 feet by saying that for a distance of 80 feet up to the cross-cut it was the Slocan Star vein broomed out, as it were, and butting up against the Black Fissure; and that, since for the next 30 feet there is little or no trace of ore, but from that on to the uprise in the Babbit Baw ground (a distance of about 40 feet), ore is found to occur, these circumstances 1906 ivember 15. Judgment below, UNTER, C.J. 404 MARTIN'S MINING AND WATER CASES. [VOL. Judgmer below, HVntbr, C point to the L5.- . , ! vein, and also T- and, in exph t ing 90 feet up tc j that the Black I therefore, on the xistence of another vein separate from the Slocan Star cut off by and brooming out against the Black Fissure; lation of the fact that ore is found in the remain- tation 27, invokes the theory of drag ore, or suggests sure has been mineralized for that distance. I have me hand, the contention that the presence of ore in this 280 feet indicates continuity of vein, and, on the other, a theory which has little to commend it except the ingenuity born of despair and which the fact that the ore is found over the entire width of the vein is of itself sufficient to demolish. Certain places were visited which Mr. Sizer claimed supported his theory, and would demonstrate it if exploratory worjj were ordered to be done. Mr. Sizer contended at the trial that evidence* could be found at the angle of the stope near station 19, about 25 feet above, the fifth level, in support of his theory of cut off (Exhibits D and 69), but a shot having been put in since the trial, has wiped out any appearance of junction or cut off. In the stope above, where Mr. Sizer contended at the trial a similar appearance could be observed (Exhibits E and 70) the ore has dropped down since the trial and shews the vein continuing on the course shewn by Exhibit 70, and has also uncovered a clear hanging wall of porphyry. At the west> face of the Intermediate above No. 5 level, there was before the trial an angle as shewn in Exhibit G-, and Mr. Sizer contended that if this were removed a clean cut off would become apparent. Work has been done and the level continued for a distance of 23 feet, with the result that the vein appears to proceed in the course shewn in Exhibit 71, and there is a good ore body now shewing in the face. .In the presence of this debacle all that Mr. Sizer could suggest was that the level was not run far enough, and that the vein might be 70 or 80 feet in width, and that it broomed out in the same way as below. There was| also a place in the angle of the Intermediate below five, where Mr. Sizer stated at the trial that a crack 18 inches in depth was to be seen which supported his contention that the Black Fissure cut off the vein and proceeded on beyond; but this spot was not then open to examination as the shaft was full of water. Silversmith level No. 4 was then examined. This is entered through a horizontal tunnel which penetrates the nose of the dyke for about 50 feet, when vein matter in place becomes observable, and-at a distance of 126 feet Mr. Elmendorf pointed out ore, and it.was- re was found nearer the mouth of the tunnel 50 feet. I have no doubt that this tunnel wnward bulge in the porphyry, and that if it t would have followed ore or vein matter all the plyc 1 folk way. the trial tl tance of ab its through wed this b\i in from th< Igeit j exit. II.] STAR MINING & MILLING CO. v. BYRON N. WHITE CO. 405 The outcrop was next inspected, where a series of pits (over 50 in 1906 a distance of about 1,300 feet) had been dug shewing the apex round- - ing the dyke, its lowest point being at the nose of the dyke. Mr. Sizer FullCourt. candidly admitted that he could not dispute the fact that the Silver- judgment smith vein continued its way easterly around the point of the dyke, TTrTX™l^Wn T J J sr J HUNTER, \j.0. but that at a short distance east of the mouth of the tunnel, it was intercepted by the Black Fissure. He could not, however, pretend to fix the exact place, nor say which pit was the most easterly of the Silversmith outcrop, or which was the most westerly of the Slocan Star. In fact, such a feat was obviously impossible, for the simple reason that in all the pits identically the same vein matter was visible. Evidence was given at the trial that ore in place had been found in the top of pit 19, i.e., the mouth of the shaft which communicates with the fifth level, and this was not successfully impeached by the plaintiffs. The significance of the fact that ore in place is to be found? in and near pit 19 lies in the circumstance that this pit is, roughly speaking, the corresponding point on the apex to the middle point of the Black Fissure as it appears in the fifth level. The work ordered to be done between C and D-27 was inspected in May last, and the locus shewed in places a clearly defined hanging wall and the characteristic vein filling present in the Silversmith and Slocan Star veins.. Mr. Fowler, the engineer who attended on the inspection on behalf of the plaintiffs in the absence of Mr. Sizer, stated that he was unable to see how this wall could be connected with the hanging wall of the Slocan Star vein, and no doubt it would be difficult for a stranger on a cursory view to be satisfied that there had been any connection by reason of the curvature and width of the workings at this point (the former drift having cut diagonally across the hanging wall), and by reason of the fact that the hanging wall throughout this portion of the vein frequently changes its dip, and that, as already stated, the slates around the point of the dyke are much contorted and shattered. Inspection in presence of #Mr. Elmendorf and Mr. Fowler was also had of the place in the Intermediate below five, not accessible on the former inspection, where Mr. Sizer had discerned a crack, and which he claimed, if opened up, would shew the Black Fissure cutting off the Slocan Star vein. I am satisfied that this is a mere slip in the vein * filling, and that it is only one of a number of such instances in the mine. I might add that ore occurs here and there in this level west of the shaft, the last occurrence being about 125 feet from the shaft, and about 12 feet from the face. This second inspection having been had, further evidence was heard in July last, and the only matter developed which calls for any 406 MARTIN'S MINING AND WATER CASES. [VOL. 1906 comment was that Mr. Sizer seemed to be uncertain as to what width ' he would assign to the butt-end of his so-called No. 2 vein and as to Full Court. ^h^ portion of the ore found in the alleged Black Fissure he would Judgment call drag ore. below, Hunter, C.J. Lastly, it should not be overlooked that the fact that this so-called Black Fissure was followed up unerringly for a distance of over a thousand feet without cross-cutting into the adjoining rocks as far as point B, is a strong argument to shew that the defendants were successfully following the Slocan Star vein in its various turnings, an argument which is better appreciated when one has been underground and seen the locus in quo. Much stress was laid upon the fact that the Black Fissure as seen in the fifth level was barren for over 1,100 feet, but in my opinion, there is nothing in this to militate against the contention for continuity. Other instances of veins being barren for long distances were cited and there is nothing to guarantee that this portion of the fifth level may not improve with depth, until a point is reached when the ascending solutions were less subject to the influence of the overhanging porphyry, and there is, however, the difficult fact to contend with that, as already stated, assay ore was found in pit 19. . I was accordingly at the close of the evidence of the opinion that this so-called Black Fissure is a myth, and that the Slocan Star and Silversmith veins constitute one and the same vein. After the evidence was closed, Mr. Davis applied for an order that further work be done on the ground—that not enough had been done to establish his theory, and that without fresh work it was useless for him to continue, that there was no object, in arguing the case as it stood, and that unless more work was done, the case was practically settled. As I was satisfied on what I had already seen and heard that his theory was false and could not be demonstrated to be true, I refused the application, but left the question open until after I had heard argument on the whole case. The argument was fixed for November 6th last, but on that day Mr. Macneill appeared for the plaintiffs and informed the Court that he was instructed merely to formally renew the application, which being formally refused, he withdrew from the proceedings. Nothing, then, having been urged by Mr. Macn&ill as to why I. should change my opinion and order further work done, I remain of that opinion, and consider that it would be only imposing a-serious burden on the defendants without any advantage to the plaintiffs if I were to order any more work to be done in support of a theory which did not keep its original form, but grew with the litigation, and from time to time shewed great elastic powers in accommodating itself to the facts. J II. ] STAR MINING & MILLING CO. v. BYRON N. WHITE CO. 407 Judgment. There is, therefore, nothing left for me to do but to dismiss the 1906 j • .ii November 15. action with costs. -»rr>7 77 noil • Full Court. Mr. Bodwell pressed for a declaration as to the nature and extent of the rights of his clients, but as there is no counterclaim praying JbtioTnt for such a declaration, it is not open to me to do so. Even if there Hunter, C.J. were, it would not necessarily be incumbent on me to do so. As matters stand, the dismissal of the action determines all the issues in favour of the defendants. Action dismissed. An appeal was taken by the plaintiff both from the judgment Appeal., and the refusal to allow further work to be done^and it came on to be heard at Vancouver on the 12th, 13th, 14th and 15th of November, 1906. Davis, K.C, and S. S. Tatylor, K.C, for appellant. Bodwell, K.C, and Lennie, for respondent. Per Curiam:—We are all of the opinion that the application of the plaintiffs at the beginning of the second hearing, for further work to be done should have been acceded to. The work which had been done so far did not s in any way explain or develop the theory put forward by the plaintiffs, who were acting bona fide in making the application. Bodwell, K.C, asked for a written judgment to be handed down, which was promised, and after a discussion regarding the terms of the order, the matter was adjourned for further consideration on that point. Later in the same day the, following judgment was handed down by Martin, J.: A careful perusal of the proceedings at the'con- Martik, J. elusion of the first trial (A. B. pp. 1627-33) satisfied me that it was then conceded by the Court and counsel that it was necessary to do a considerable amount of work under the direction of a skilled mining man in order to elucidate the intricate questions involved because, as the learned trial Judge remarked: "As the evidence stands at present the Court would simply be called upon to speculate;" and again at page 1630: "I want all the light I can get as to whether that vein is continuous or not and will have to see Mr. •Parrish and (hear) what he says." Having regard to the circumstances, I think, with every respect to contrary views, that the only course to have adopted after Fairish could not act was to appoint some expert in his place, and I agree with the appellants' contention that the view of the mine had by 40S MARTIN'S MINING AND WATER CASES. [VOL. 1906 November Full Cou Martin, the learned trial Judge was not a satisfactory substitute for the course ' originally contemplated. While it may very well be, and doubtless RT- sometimes is the case, that a view by Judge or jury would be en- J. titled to weight, varying in degree according to the circumstances, yet in such a case as this which requires special knowledge of a highly technical and scientific nature, I am of the opinion that we would not be justified in giving any material effect to it. This Court ought now to make the order which should have been made on the second trial, i.e., for the doing of the work (thereafter to be defined by us), under direction of the Chief Justice, and it follows that the appeal must be allowed, the judgment set aside, and the case remitted to the learned trial Judge for further hearing and disposition. vThe question of costs of the trial and form of the order to be spoken to. 20th November, 1906. On this day, on the matter again being called on, Irving, J., announced that the direction the Court had given remitting the action to the Chief Justice must be changed for the Chief Justice has said to him that he thought it would be a farce for him to hear it, having made up his mind and pronounced judgment, and'that he had been so-prejudiced by some of the evidence that he could not do justice between the parties if ;he were to take further- evidence and have to give judgment. Bodwell, K.C, asked that this should, notwithstanding, be done, and also whether or not the Chief Justice could not be brought to' reconsider his decision on the point, for the matter was a serious one. Irving, J., said it would be useless to ask him for he had said he would not do it; all the Court were of opinion that the rule was to remit to the trial Judge, but the circumstances, in his view, were special. Martin, J.: In my opinion it is the duty of the Chief Justice to proceed with the hearing of this matter, and he ought to do so; it is the duty of any Judge of this Court to do so, and I would do so in such circumstances if I were the trial Judge. Bodwell, K.C, and Taylor K.C, then suggested that all that could be done Was to have the hearing continued before this Court and the appeal adjourned. Martin, J., retained his view that the original direction of the; Court remitting the matter be adhered to, but the majority of the 1 Court held otherwise and ordered that further evidence after the m STAR MINING & MILLING CO. v. BYRON N. WHITE CO. 409 doing of the work be heard by this Court, and the appeal adjournc for that purpose. Draft order then taken up clause by clause and settled. Taylor, K.C, asks for the costs of the motion and cites precedents, particularly Hopper v. Dunsmuir (1906), 12 B. C 18. The situation is the same as if a new trial had been ordered for the rejection of evidence. Bodwell, K.C, contra.: The order for costs should not be made now but reserved till after the hearing of the appeal as adjourned. After further discussion: Bodwell, K.C, asked that the Court should direct the evidence to be taken and give judgment on it itself, and submitted that the Court had no power to order a new trial for rejection of evidence in a case tried by a Judge without a jury. [Martin, J.: That view of the practice is not correct; it has been frequently done.] Per Curiam: The costs of this motion must be paid by respondents and it will be so ordered now, though the taxation will be postponed till after the hearing of the appeal. 1906 November 15. Full Court. Martin, J. Form of Order. The order of the Court, as finally settled, and in pursuance of further agreement between the ^parties, was as follows: (Style of Cause.) Thursday, the 15th day of November, A.D. 1906. This appeal from the judgment of the Honorable the Chief Justice, delivered the 25th day of November A. D. 1905, and the order of judgment thereon, dated the 25th day of November A. D. 1905, and the -notice of motion asking leave to do experimental work and to adduce further evidence, coming on for hearing together on the 12th, 13th, 14th and 15th days of November A.D. 1906, at Vancouver, B.C., upon reading the Appeal Books and the said Notice of Motion, and upon hearing Mr. E. P. Davis, K.£J„ and Mr. S. S. Taylor, K.C, of counsel for the plaintiffs (appellants) and Mr. E. V. Bodwell, K.C, and R. S. Lennie of counsel for the defendants (respondents.) This Court doth order and adjudge:— 1. This Court doth not see fit,to make any order as to the issues in this action, but this Court doth order that the work hereinafter described be performed, and that for the purpose of performing the said work and adducing the evidence hereinafter referred to the said judgment be and the same is hereby set aside and that the further hearing of this appeal be adjourned. 2. That work be done for the purposes of this action and appeal in the " Slocan Star," " Silversmith," " Windsor." " Heber Fraction," and " Rabbit Paw," mineral claims under the direction of this Court, and under the supervision and management of W. E. Zwicky of Kaslo, B.C.; the said work to be as follows :-r- 410 MARTIN'S MINING AND WATER CASES. [vol. 1906 November 15 Full Court. Order. (a) Cross cut the "Black Fissure" (so called) in the hanging wall stope situate 35 feet above No. 5 level at the bend, namely, at the point where the Slocan Star Works enter the " Heber Fraction" mineral claim, and at the most westerly point where ore has been found in that stope; then drift in a southerly direction on the Black Fissure (so called) carrying the foot wall of the same in the middle of the drift; continue this drift to a distance of at least fifty (50) feet or so much farther as the plaintiffs may desire, but not to exceed one hundred and fifty (150) feet; then cross cut the Black Fissure (so called) at the end of the said work so as to expose the full width of the same. (6) Cross cut in a westerly direction the Black Fissure■ (so called) at the point marked on number 5 level as shown on plan No. 1, so as to expose the full width at that point of said Black Fissure (so called) ; (c) Drift in an easterly direction on the course of No. 2 vein (so called) at about Station No. 23, on said No. 5 level, as shewn on said plan No. 1, following the strongest quartz seam that may be exposed and keeping within the vein so as to leave either the hanging or foot wall on one side of the drift; and continue said drift a length of 50 feet in the direction of said No. 2 vein (so called) ; 3. That the work above specified shall be done by using No. 5 level and No. 5 cross cut to the portal thereof, as shewn on said plan No. 1, and by using . the car.track and cars in the said level; and by using the surface tracks and dumps of the defendants (respondents) : and as to the work specified in subparagraph " a " of paragraph 2 above, by using in addition for the purposes of ingress to and egress from the said stope to and from said No. 5 level, the passages and raises at present provided from No. 5 level to the said stope; and for the purposes of letting down to No. 5 level all the waste or other material mined, or for other mining purposes incidental to the said work, by using the chutes and raises shewn on plan No. 1 between stations 19 and 20 of No. 5 level, and the defendants shall give all other reasonable facilities for the pur\ poses of the said work: 4. That the plaintiffs by their officers or any of them, their solicitors, surveyors, engineers or representatives, not exceeding five at any one time, may be; at liberty at all reasonable times up to and during the further hearing of this appeal, upon giving twelve hours' notice in writing signed by the plaintiffs or their solicitors, to the Manager or Superintendent or other person in charge of the defendants' works at Sandon, B.C., or to the defendants' solicitors or their 'agents at Nelson, B.C., to enter into and upon the " Slocan King,"", " Slocan Star," " Jennie," " Windsor," " Silversmith," " Rabbit Paw," and " Heber Fraction " mineral claim, and inspect, examine, make surveys and plans of any and all tunnels, drifts, shafts, winzes, stopes, raises or other works or mining operations of the defendants, including the work directed above so far as may be necessary for the purposes of this action; and to take samples and make observations and surveys as may be necessary to accomplish the purposes of this action, or to obtain full information, or evidence respecting any of the matters in issue in this action, and for any or all of the said purposes, and in order to ascend and descend, to use the defendants' ways, work and appliances. 5. That all parties be at liberty to adduce before this Court upon the adjourned hearing of this appeal such further evidence as they may be advised respecting the isshes as developed at the trial, and respecting the work hereby ordered. 6. That the plaintiffs in the first instance shall bear the expense of the said work specified above, subject to the further disposition thereof by the Court. 7. That the plaintiffs do on or before the 10th day of November, A.D. 1906, pay into the Bank of Montreal at New Denver, B.C., to the credit of a trust account in the name of the said W. E. Zwicky, the sum of one thousand dollars ($1,000) to be used and applied by him in the payment of the ex- 412 MARTIN'S MINING AND WATER CASES. [VOL. 1906 December 11. Supreme Court of Canada* Klondyke Government Concession v. McDonald. (38 ||1 C 79.) Placer Mining in Yukon—Hydraulic Lease—Hillside Claim—Mining Begula- tions—Water Bights of Biparian Owners and Miners—Miner-like User of Water. Lessees on a creek operating under^ a Crown hydraulic lease made subject f to the Yukon mining regulations of 3rd December, 1898, cannot divert even within the area of their lease the water of the* creek from its natural channel so as to prevent its authorized user in a reasonable and miner-like manner by a placer miner, lawfully working hillside claims on the same creek, and within the same area, under a subsequent grant. Where a particular matter is dealt with by said regulations the rights of the lessee in the same are governed by said regulations. Said regulations, with the exception of the special right conferred upon placer miners to use so much of the water flowing through or past the claim as the mining recorder shall see fit to allow, constitute a code, since 3rd August, 1898, governing the acquisition of the right to divert and use water for mining purposes generally, and grants made under them are not subject to the common law rights of riparian owners. Object of the various Yukon mining regulations considered. Decision of the Territorial Court of the Yukon affirmed. Statement. Appeal from the Territorial Court of the Yukon Territory affirming the decision of the Gold Commissioner of the Yukon Territory, which maintained the plaintiffs action with costs. The circumstances in which the action was instituted and the questions at issue on the present appeal are stated in the judgments now reported. The judgment of the Gold Commissioners, which was affirmed by the judgment appealed from, ordered and adjudged that the plaintiff, McDonald, was entitled to the first 200 inches of water flowing into Hunker Creek, at the point in question, under his grant of August 9th, 1904, and that the defendant had no standing to raise the question whether or not the plaintiff was wasting water until the said defendant became the holder of a water-grant; that the defendant's counterclaim asking for an injunction enjoining the plaintff from maintaining a dam on the lanjd of the defendant and penning back the waters of Hunker Creek, and from maintaining a power-house and other buildings and a flume on their lands should be Present:—*Fitzpatrick, C.J.. and Davies, Idington, Maclennan and Duff, JJ. tl] KLONDYKE GOVERNMENT CONCESSION v. McDONALD., 413 Supreme Court of Canada. dismissed; that the defendant, its servants and agents, should be re- 1906 strained from diverting and conveying below the plaintiff's said dam the first two hundred inches of water from Hunker Creek at any place above or upstream from the point at which the plaintiff is entitled to divert water and from interfering in any way with the statement. plaintiff's rights in virtue of his grant to divert water; that the defendant should permit at least two hundred inches of the said water of Hunker Creek to flow uninterruptedly to the point at which the plaintiff is entitled to divert water, and that the defendant, its servants, working men and agents, should be and were thereby restrained from destroying the dam used by the plaintiff under his grant and from interfering with his line of flume. The appeal was argued on the 31st October and 2nd JSTotember, 1906. Ewart, K.C, and Chrysler, K.C, for the appellant. There is no Argument, question that the defendant was entitled to the water under the first lease. That lease has never been surrendered, except so far as a surrender is implied by the acceptance of the second lease, as the acceptance of a new lease is a surrender of a former lease of the same property, but if a lease covers two properties, acceptance of a new lease of one of them is not a surrender of the lease of the other. So here an acceptance of a new lease of the land is not a surrender of the right of the defendant to the water which is held under the first lease, unless by the second lease the Water is re-granted to the defendant. Lyon v. Reed (1844), 13 M. & W. 285; Baynton v. Morgan (1888), 22 Q. B. D. 74; the cases cited in foot note to Beach v. King (1905), 9 Ex. 324; 12 Encyc. Laws of England, 56. By the second lease the defendant has a right to use the water on • or flowing over the land covered by the lease. There is in such lease no reservation of the water, although it has a provision by which the things demised are to be held subject to certain regulations. If the water is not granted by the second lease, then the defendant falls oack upon the first lease and submits that his rights under it to the vater have never been surrendered and that as to the water, it still sists. In any case, the plaintiff has no right to build a dam on the lefendant's land, and by it to spread the water of the stream over the efendant's land. We refer to the following authorities, in addition to those quoted y Mr. Justice Craig : Blackstone's Commentaries at p. 18; IAggins v. nge (1831), 7 Bing. 692, per Tindal, C.J.; Mason v. Hill (1833) . & Ad. 24, per Denman, C.J.; Embrey v. Owen (1851), 6 Ex. 353; rr-Ewing v. Colquhoun (1877), 2 App. Cas. 839; Bradford v. Fer- VOL. II. M.M.C.—28. 414 1906 December 11. MARTIN'S MINING AND WATER CASES. [vol. rand [1902], 2 Ch. 661, per Farwell, J., as to flow of stream, and Bailey v. Clark, [1902] 1 Oh. 649; Sandwich v. Great Northern Ry. Supreme g^ (1878), 10 Ch. D. 707 ; Miner x. Gilmour (1858) Vi Moore, 131: Court of l_ Canada, per Kingsdown, L.J., at p. 156. Argument. A. Noel, for the respondent. Judgment, The Chief Justice and Davies, J., concurred for the reasons Fitz Patrick, , , -, ■> -,->. T o.j. stated by Duep, J. Davies, J. Idington, J. Idington, J.: The appellants accepted, on 12th February, 1900, from the Crown, a lease of mining lands in the Yukon, in substitution for another lease of which they were then the assignees. I think they thereby surrendered the latter lease. The lease of the 12th February, 1900, in its operative part, reads as follows:— Now this indenture witnesseth that in pursuance of the premises and in. consideration of and subject to the rents, covenants, provisoes, exceptions, restrictions and conditions hereinafter reserved and contained, and by the lessee to be paid, observed and performed, Her Majesty doth grant, demise and. lease unto the lessee the said tract of lands and the exclusive right and privilege of extracting and taking therefrom, by hydraulic or other mining process, all royal or precious metals or minerals from, in, under or upon the tract of lands hereby demised and leased, with regard to which the said rights and privileges are hereby granted, which said tract is described as follows; that is to say: .... Then follows a description of the land thus demised and the usual habendum and redendum clauses. Many provisions follow next after this redendum, but none of them save that-1 am about to quote, need, I think, be noticed, though ; touched upon in the argument. The one I refer to is the following: Provided, also, that this demise is subject to all other regulations contained ] and set forth in the said Order in Council of the third day of December, A.D. | 1898, as fully and effectually to all intents and purposes as if they were set 1 forth in these presents. Amongst those thus explicitly incoi follows: igulations of the 3rd day of December, 18.98, < )rated into this document, is one which reads as| 10. The lessee's right of water on his location or to the diversion of wat in connection with his operations thereon shall be subject to the regulatio approved by Order in Coiincil of the 3rd August, 1898. Let us now read this demise (with the restrictive and excepting! words), which are part of the sentence constituting it, together witll this clear and explicit regulation, as if inserted next after the redenf II.] KLONDYKE GOVERNMENT CONCESSION v. McDONALD. 415 ( an we do so and find any difficulty m this case? The questions 1906 -., -, -.. ,. \ „ „ A December 11. raised' anent the ordinary presumptions m favour ot a lessee or grantee of land upon or over which is running water, can have little or no Supreme r . -. t • T m Court of existence or effect m such,a document as this reading presents. These Canada. presumptions are, at any time, but prima facie evidence of the mean- iDINC^r j ing of the contract. When the question raised is whether or not the water on the land demised went b}^ virtue of such a restricted demise as this with the land as against all persons who might, by licence from the Crown, procure under the water regulations then and there in force, the right to use the same, let us ascertain what water is referred to in the regulation just quoted. Can it, when forming part of this document, refer to water elsewhere than on the land described in the document of which it forms a part ? Why should any one concerned in such a lease provide for anything as to water elsewhere than on the land the lease covered? If private waters were to be found-elsewhere by these lessees, and brought on to this land, the Crown could have nothing to say to that. And if the waters of the Crown to be got elsewhere were intended to be referred to: Why, we may ask, should they be referred to? The waters of the Crown were the subject of acquisition only by and through the law of the land. It was entirely unnecessary to refer to sneh waters beyond the land in question. It is clearly because the waters on this land so demised and no others are meant, that there is need to refer to them and thus lay down | the rule that is to govern their use in relation to this contract a^id make clear that the usual presumptions relative thereto in an unrestricted demise must not arise. * Reading this exception in this wa}T,-and I think it can be read in no other way, the Avater that is thus to be applied for is not given without a further application in which the lessees, just as any other person concerned, must define what quantity they desire to use. I confess that for a time, having only read the words of absolute demise , at the top of the.page"" of the case where they appear, and the words of explicit exception and restriction having escaped my notice, it seemed as if an absolute demise followed bj such restrictions as are contended for was an absurdity. Indeed, if that which I supposed had been so, the repugnancy would have been such as to render it doubtful what was intended.by the instrument. The rule that in case of clear repugnancy the latter part must give way to the former might have been'successfully invoked. Or in other ways, needless to dwell upon, doubt might, have arisen by reason of such repugnancy, as to the effect of the document as a whole. 416 MARTIN'S MINING AND WATER CASES. [VOL. 1906 December 1 SUPREMK Court of Canada. In the light of the clear restrictions put in.this lease and probably all such leases in the Yukon, and of the nature of the general regulations of December, and the water regulations of August, which together constitute, in that regard," the law of the land there, no diffi- j culty or misapprehension can arise. The lessees may not have thought it worth while getting a licence to use this water on the land demised if they were to bring or expecting to bring water on a large scale from the Klondyke River. At the same time, though this water on the land demised may not have been thought worth while appellants applying for the use thereof, it was much too valuable to be let remain idle if needed for developing neighbouring Crown lands or lands in the development of which the Crown was interested. In view of these considerations, which are not all so apparent at first sight, there is no injustice done the appellants by the Crown. though a serious loss to the appellants may arise* from the granting of the water in question to their neighbour. The appellants have only themselves to blame. They knew of the applications that had resulted so injuriously for them. The only step pretended to have been taken by the appellants for their protection is denied by the officer on whom blame was attempted to be put. In none of the cases referred to on the question of presumption- were the operative part of the grant or demise restricted as here. In the case of Lord v. The Commissioners for the City of Sydney (1889), 12 Moore P. C. 473, there is a very instructive branch of it that deals with rights springing out of a Crown grant where the Crown had reserved, for specific purposes, and limited time, the right to use or apply the use of a part of the water that would have passed to the'grantee but for the reservation. It was held this "had. the effect of preventing the grantee from claiming any compensation therefor though getting allowed compensation for riparian rights held by the same grantee by virtue of an unrestricted grant further down the same stream. The-case exemplifies both phases of such rights and also at page 497 lays down the rule to .guide us in the interpretation of such grants, that intention should be the supreme rule. Having no doubt of the intention in this case, I think the appeal I should be dismissed with costs. OLENNAN, J. Maclennan, "J. missed with costs. I am of opinion that this appeal should be dis- Duff, 3iamtir Yukor T'errit Df SI e niilside claims on nder the regulations ii.] klondyke government concession v. Mcdonald. 417 relating to placer mining. For the purpose of mining these claims he acquired on the 9th August, 1904, under the law in force in the territory (embodied in the regulations passed 3rd August, 1898) a grant of the right to divert, at a point named in the grant, 200 miner's inches of the waters of the creek. The "defendant is the lessee ot a location for hydraulic mining extending two and a half miles along the valley of the same creek, including both of its banks, and embracing the point of diversion referred to, under a lease dated the 12th February, 1900, issued, pursuant to the regulations governing the leasing of such locations, passed in December, 1896. The plaintiff, having constructed a dam and other works and machinery to divert the waters of the ,creek and convey them to the place of his mining operations, the defendant's manager, at a point above the point of diversion (but within the defendant's location), was proceeding to divert the creek from its natural course, in such a way as to prevent it flowing into the plaintiff's flume when this action was commenced, and an injunction was granted by the Gold Commissioner of the territory restraining the defendant from effecting the threatened diversion. * The principal question in controversy between the parties is, whether or not the plaintiff's grant confers upon him the right, as against the defendant, to divert the waters of Hunker Creek at the place referred to for use in mining his hillside claims. That he has such a right is undisputed, unless by virtue of its lease the defendant has a better right. The defendant's lease provides: that this demise is subject to all other -regulations contained and set forth in t the said Order in Council of the third of December, A.D. 1898, as fully and effectually to all intents and purposes as if they were set forth in these presents. Efy the regulations referred to it is enacted that leases granted under them may be in such form and contain such conditions, not inconsistent with them, as may be approved of by the Minister of the Interior. It is not necessary to decide whether this clause authorizes the Minister of the Interior, by any such lease, to grant any right in respect of the Crown lands within the limit of the location demised 'egarding which the regulations themselves are silent. This much, . think, is clear, viz.: that where a particular subject matter is dealt vith by the regulations, the rights of the lessee> as regards that utject matter, are governed by the provisions respecting it contained Q the regulations. The tenth clause of the regulations is as follows: 10. The lessee's right to water on his location or to the diversion of water l connection with his operations thereon shall be subject to the regulations pproved by Order in Council of the 3rd August, 1898. 1906 >ecember 11. SUPREMK Court of Canada. Duff, J. 418 MARTIN'S MINING AND WATER CASES. [VOA December 11. If, therefore, this clause applies- to water flowing through or past an hydraulic location, it is to the regulations referred to in it Suupreme tiiaj- we limst have recourse to ascertain the conditions to which Court of Canada, the defendant is subject in diverting the waters of Hunker Creek J DufiT".t ^or use in working its property and particularly for the purpose of ; determining the relative priorities of the defendant's rights under its lease and the rights of the plaintiff in respect of those waters under his grant. 11 is argued on behalf of the defendant that the clause applies : only to water brought upon the location from outside sources; and has no application to water flowing through or past it. It is sufficient to say, I think, with regard to this" contention that all such flowing water is plainly within the language used, and no satisfactory reasoaB has been suggested for restricting its natural import in the manner proposed. The view of Craig, J., who delivered a dissenting judgment. 3B the Court below, requires a fuller examination. The law-makmjj authority could not, the learned Judge thinks, have intended to deprive the lessee of an hydraulic location of the right to divert and use such water for the purposes of mining his location; and must, therefore, in the absence of express reservation, be held to have left "him the rights of a ripariah proprietor in respect of such water subject to any rights granted under the regulations referred to in clause 10. • Turning then to the grant on which the plaintiff rests his right to divert the water in question here—I (which, following the form prescribed by the regulations, contains the proviso, it is expressly the-condition of this water right that the same is issued subject entirely to all rights subsisting at this date to the water in respect to which this right is issued). the learned Judge concludes that, since the defendant's riparian rights were in existence at the date of the plaintiff's grant, the riparian rights are, by virtue of the proviso quoted, paramount. This view, I think, proceeds upon an inadequate appreciation of the scope and object of the last mentioned regulations. At the time these regulations came into force, the law provided i for the acquisition by free miners of rights to mine, by various methods, the Crown lands in the Yukon Territory. One set of regulations (providing for the acquisition of " mineral 1 claims"), conferred upon holders of such,claims the right to mine J them for mineral in place, and the exclusive right of entry upon j them for the purpose of such mining. A second set of regulations relating to placer mining, conferred the right upon holders of claims! ji.] KLONDYKE GOVERNMENT CONCESSION v. McDONALD. 419 located under them, to mine alluvial deposits for the precious metals 1906 ' December 11 within the limits of their claims. A third set of regulations author- ized the leasing of beds of creeks and rivers, and conferred upon the Supreme - ° . '. r Court of lessees the right to mine the alluvial deposits in such beds by the Canada. process of dredging for the precious metals. And a fourth set, tjuff- j those relating to the grant of the leases of locations for hydraulic mining, already referred to, became law a few months later. The efficient exercise of any of these rights of mining would depend, in almost any given case, upon the existence of an available supply of water; and it was to secure the application of"the water found in natural streams and lakes to practical use in mining and in the treatment of the products of mining, as well as its equitable distribution among those engaged in that industry, that the regulations of the 3rd of August, 1898, were passed. From that date those regulations, I think^ constituted a code, subject to the exception presently to be mentioned, governing the acquisition of the right to divert and use such water for the purposes mentioned. One exception is recognized. By the regulations relating to placer mining, the holder of a ^placer claim was given the right to use so much of the Vater flowing through or past his claim as the mining recorder, should think sufficient to enable him to work his claims. These provisions the regulations of August 3rd do-not displace, and the rights of the grantee of a water privilege are by them expressly made subject to the rights of placer miners working on occupied creeks above or below the point of diversion at the date of his grant. But I do not agree that the language of the regulations justifies the view that grants made under them were intended to be subject to the common law rights of riparian owners respecting the flow of the waters to which such grants should apply. The learned Judge bases his view upon the proviso which I have already quoted from the form of grant prescribed by the regulations. This proviso has not, I think, any application to the rights of riparian proprietors as such. The natural rights of a riparian proprietor as such are not primarily rights of user (says Cotton, L.J., in Kensit v. Great Eastern By. Co. (1884), at page 133), but rights incidental to the ownership of property; and such rights are not, I think, aptly described by the words of the proviso. Moreover, the language of clause 5 of the regulations indicates, 11 think, that, both in the proviso and in the clause, the law-making authority was dealing with substantive rights of user and not such 420 MARTIN'S MINING AND WATER CASES. [VOL. 1906 December 1' Supreme Court of Canada. rights in respect of the flow of a stream as are merely incidental to a ' riparian proprietorship,. . Substantive rights of user of the waters of particular streams may well have been vested in individuals at the time the regulations came into force. The regulations relating to quartz mining, for example,—the provisions of which in this respect were displaced by the last mentioned regulations—provided for the acquisition of such ; rights in connection with the working of quartz claims or operations incidental thereto. And there may have been other cases. Such vested rights—at least so long as they are in exercise for a beneficial purpose—are protected. And, of course, prior grants under the regulations themselves are within the clause and the proviso. The language of the provisions in question may, therefore, be, given its full effect without extending it to embrace riparian rights j ■—a class of rights, as I have said, to which it does not fitly apply. It must be apparent, moreover, that if the rights of grantees of water privileges under the regulations are in every case subordinate j to the existing common law rights of riparian owners, the purpose of ; the regulations must in the practical administration of them be4 largely, if not wholly, frustrated. We ought not, unless compelled by intractable language, to attribute to the legislative authority an Intention to promulgate a scheme so obviously futile; and a construction leading to that result must, I think, be rejected. See Salmon v. j Buncombe (1886), 11 App. Cas. 627; and Martly v. Carson-(1889), '20 Can. S. C. R, 634, at page 658. In this view of the regulations, on which the plaintiff's grant is based, no difficulty, I think, arises in. the construction or application a of clause 10 of the regulations respecting the leasing of hydraulic locations; that clause can only be read as a recognition that, notwithstanding the provisions of any lease of an hydraulic location,; the natural waters on or flowing through or past such a location are' subject to be dealt with under the regulations of August, 1898, relating to the diversion and use of water; and consequently that the; rights conferred by such lessees are subject to rights in respect of such waters granted under the last mentioned regulations. A minor question arises upon the defendant's counterclaim, that is to say: whether or not the defendant is entitled to an injunction compelling the plaintiff to remove his dam flume and certain buildings and machinery he has erected within the limits of the defendant's location ? As to the buildings, the^ plaintiff alleges they were erected with the consent of the defendant's manager, and although upon this there is some conflict of evidence, there is, I think, so much in the ti.] KLONDYKE GOVERNMENT CONCESSION v. McDONALD. 421 Supreme Court of Canada. Duff, J. circumstances pointing to acquiescence on the part of the defendant 19,06 „ that we should not, as against the view of the two courts below, be justified in granting a mandatory injunction to compel the plaintiff to remove them. As to the flumej the construction of it appears to be expressly authorized by the plaintiff's grant. The penning back of the water of the creek presents a case not quite so obvious. If it clearly appeared that, in constructing the dam, the plaintiff was exceeding the rights conferred by his grant, and there had been no other answer to the defendant's claim under this head, it might have been necessary to consider the question whether or not the defendant, by its lease, acquired any rights of occupation other than those defined by clause 9 of the regulations, and whether so long as its mining operations a,re not interfered with it has a.ny rights of which th^ erection of such a structure would be an invasion. That question is, however, in my opinion, not presented by this appeal. The grant of the right to divert the waters of the stream at a. place within the defendant's location, as well as a right to convey the water so diverted by flume through that location, would seem to involve the grant of the subsidiary right to use such reasonable means as may be necessary to turn the water from the bed of the creek into the plaintiff's flume. It is quite clear that the dam complained of does not affect the defendant's mining operations; and I am not satisfied that the plaintiff has done more than is necessary to enable him to take the benefit of his rights under his grant. In these circumstances the Cold Commissioner acted rightly in refusing the relief asked. Appeal dismissed with costs. Note.—Cf. McLean v. The King, post, p. 466. 422 MARTINS MINING AND WATER CASES. [VOL. 1907 January 21. Full Court. Halpin v. Fowler (No. 2). (12 B. C. 447.) Mine—Agreement to Work Part of Vein—Lease, Licence, or Working Contract^ on Percentage—Implied Covenant for Necessary Use of Timber, Ore Bins, Tramway and Trestle—Ore Mined and Shipped, Property in—Jury—Charge.I An agreement purporting to lease a certain portion of a working mine giving ■ the height and length, but not the width of an area from which ore might be taken and shipped on certain conditions whereby the plaintiff did not:; obtain the property in the ore, but not demising the ore in situ, is not a. lease, because it lacks the essential feature of exclusive possession, nor a licence coupled with a grant, but a contract to win the ore for a sliding percentage of the returns. There being in such case no implied covenant for quiet enjoyment, and the.:; document being silent concerning the use of the timber, track, trestle, and ore bins, the plaintiff had no right to the timber in default of a distinct collateral agreement, though in the case of the track, trestle and bins lie would be entitled to use such plant so long as it was maintained, and to equally . advantageous facilities if it were removed so as to materially prejudice him in the performance of his contract. Charge to jury in such case outlined. Judgment of Forin, Co.J., reversed, Martin, J., dissenting in part. Appeal from a judgment of Forin, C.J., in an action, tried before him and a jury at Kaslo, on the 23rd of September, 1906. The appeal was argued at Vancouver on the 19th and 20th of November, 1906, before Hunter, C.J., Martin and Morrison, JJ. R. M. Macdonald, for appellant, on the construction of the lease, cited Midland Iiaihcai/ Co. v. London and North-We stern Railway Co. (1866), 15 L. T. N. S. 264; Churchward v. The Queen (1865), L. R. 1 Q. B. 173 at p. 195. Plaintiff, to succeed, must satisfy the Court that the necessity. for these rights was absolute for his purposes under the lease: The Earl of Cardigan v. Armitage- ^(1823), 2 B. & C. 197. The implied power given in the mining lease is a reasonable access to the demised premises to get out the mined product. [Martin, J.: He is to do the work in a miner-like manner.] That refers to the manner of working. He must provide his own powder and tools and therefore his own timber. There is a covenant that he is to timber. If it had been contemplated by the parties that he was to have the timber off the claim, they would have said so. The right to take timber is not necessary to the lease, and 11.1 HALPIN v. FOWLER (No. 2) 423 therefore cannot be implied; if such right does exist it is appurten- 1907 ,,,,., ,. P ,-, . -, s January 21. ant to the whole claim, but not to a portion ot the mine when sub- leased: Archibald v. The Queen (1891), 2 Ex. C. R. 374. Full Court. Davis, K.C, for respondent: The finding of the jury is conclusive. ' Ar*gument- These rights go with the lease, although they are not specifically mentioned. The business of mining involves putting Himber into the mine in accordance with the proper and regular way of mining: see Jones v. Hunter (1896), 1 N. B. Eq. 250; Woodfall on Landlord and Tenant, p. 150. Macdonald. in reply: There is no such condition here as there was in Jones v. Hunter, supra. Cur. adv. vult. 21st January, 1907. Hunter, C.J.: The amount involved in this appeal is not large, Judgment, but the principles are important. The defendant entered into an UNTEB' • • agreement under seal with the plaintiff, whereby he purported to lease a portion of a quartz mine to the plaintiff, the term commencing November 22nd, 190&, and ending June 30th, 1906; and among other covenants entered into by the plaintiff were covenants to open and maintain in good repair one hundred feet of No. 6 level from the mouth inwards; to remove all broken ore, and to sort out and preserve for shipment such material as could be profitably sorted, and place all concentrating ore on the dump as directed by the defendant, to. work the area in a good and miner-like manner to the* satisfaction of the defendant, and to insure by means of timbering, or stowage of waste, or both, as required from time to time by the defendant, the safety of the workings and their permanency, etc. The plaint, among other things,* seeks to recover damages from the defendant for preventing him from using the timber on the surface of the claim to do his timbering, for tearing up and removing the ore-track and trestle, alleged to be the only means provided 'for working the ore in question, and also for preventing the plaintiff using the ore-bins and track in connection therewith at the mouth of said level. The defence was that the agreement or lease gave none of the rights contended for, and denied doing anything which prevented the plaintiff from carrying out his contract. The learned Judge held as a matter of law that the plaintiff had all these rights under the instrument, and that he was denied their enjoyment, and left to the jury only the computation of damages, which they assessed at $400. 424 MARTIN'S MINING AND WATER CASES. [vol. 1907 January 21 In so dealing with the case I think he was in error. The first thing to determine is.the nature of the instrument. It is styled an FullCourt. agreement, and then purports to lease Hunter, C.J. " For the purpose of mining and taking ore therefrom, that part of the property of the Whitewater Mines, Ltd., described as follows: Beginning at a point in the roof and at the mouth of number six level, thence westerly along the roof of No. 6 level 580 feet; thence upward and due north to the floor of No. 5 level; thence easterly along the floor of No., 5 level to the surface; thence downward along the apex of the vein to point of beginning, out of all of which area the lessor reserves a pillar six feet high up the dip from roof of number six level, excepting such openings as may be necessary to gain access to the ground above such pillar." It will be observed that only the length and the height of the area to be mined is given, and nothing is said as to the width, so . that there is so defined area gm^land of which exclusive possession is given. If, on the other hand, it is intended to demise the ore as it lay in situ for a certain distance and height of the lode, nothing would have been easier than to say so. But it is evident from the other portions of the instrument that the property in the ore was not intended to be given to the plaintiff, as he is to "sort out and preserve for shipment such material as can be sorted to a profitable grade, and place all concentrating ore on the dump, as shall be directed by the lessor, such concentrating ore to become the property of the lessor"; and also "to remove to Whitewater station, the ore prepared for shipment, load the same into cars, and, using all diligence in this respect, ship such ore to such consignees as the lessor may, from time to time, direct, handing to lessor at the time of shipment a copy of the shipping bill." The defendant is also to receive the returns from all ore shipped, and is first to make certain deductions, and keep certain percentages according to a scale from the amounts received and then pay the balance to the plaintiff. It seems to me that these provisions are inconsistent with the essential feature of a lease, whether, of the land or the ore, i.e., exclusive possession, and it is perhaps needless to say that the presence of words of demise does not of itself determine the question, but the instrument is to be taken as a whole: see e.g., Taylor v. Caldwell (1863). 3 B. & S. 826. Further, the instrument cannot be construed as a licence coupled with a grant, as the ore is always in the control of the defendant. It seems to me, therefore, that the instrument is essentially nothing more than a contract to win the ore for a sliding percentage of the returns; and if this is so, then 'we need not concern ourselves with any question about implied covenants for quiet enjoyment, there being no express covenant of that sort in the • document. n.] HALPIN v. FOWLER (No. 2). 425 Now, the document is absolutely silent concerning the use of the timber, track, trestle or ore-bins which the plaintiff complains he was prevented from using. That being the case, it should have been left to the jury to find whether there • was a distinct collateral agreement Hi concerning these matters, and if so, what it was: see Lindley v. Lacey (1864),. 17 C. B. N. S. 578, per Erie, C.J., at p. 5"85; Taylor on Evidence, 10th Ed., s. 1,135; Leake on Contracts, 5th Ed., pp. 125-6, and cases cited. Had the jury found that there was no such agreement, then that would settle the question as regards the timber. But as regards the track, trestle, and ore-bins, they should then have been further asked whether the acts complained of in relation to these things materially prejudiced the plaintiff in the performance of his contract, it being at the same time explained to them, if they found there was no collateral agreement, that the plaintiff had no legal right to the maintenance of the status quo in respect of these appliances, and that he could not complain if other facilities equally advantageous were provided. As I think for those reasons that there ought to be a new trial, it would not be advisable to comment on any - of the evidence. I The appellant should have the costs of the appeal, and the costs of-the former trial should abide the result. 1907 unary 21. ll Court. NTi£R, C.J. Martin, J.: First, so far as the finding of damages is con- di^entm/m cerned, no good cause has been shewn for interfering with the view part, the jury took of them, subject to the legal objection that follows. Second, as regards the learned trial Judge's ruling on the point of law on the implied covenants in the lease relating (a) to the timber; (b) to the tramwaj?"; and (c) to the ore-bins, as complained of in grounds 3, 4 and 5 of the notice of appeal. As to (c), having regard to claruses 3 and 9 of the lease, I think the learned Judge was right, for they distinctly contemplate the use of the ore-bins—the words "sort"out and prepare for shipment" in clause 3, and " remove to Whitewater station the ore prepared for shipment," etc., in clause 9, point to such user. The case of Jones v. Hunter (1896), 1 N. B. Eq. 250 at p. 256, and the authorities cited later, generally support my view on this head and on the next one. As regards (b), the matter is not so clear, and I have some doubt about it, but not enough to disturb the view of the learned trial Judge, particularly when the amount involved is so small, only $25. Having regard to the circumstances, I think it may fairly be said that the use of the tramway for the purpose of the lessee getting timber into the mine under his lease must necessarily be appurtenant thereto. 426 MARTIN'S MINING AND WATER CASES. [VOL 1907 January 21. Full Court. Martin, J., dissenting in part. Then as to (a), the use of the timber. That raises a much wider and more difficult question. The lessor here is himself the lessee of all this extensively developed property which we understand is a Crown granted one, and therefore the owners have the "use of all the timber thereon, for the purpose of winning and getting from and out of such claims the minerals contained therein . . ": Mineral Act, see. 26", and there is no evidence that the elarhi was located on land occupied under a timber lease, in which case the timber is reserved—section 45. It is not in evidence that the lessor is himself entitled to the timber, but his counsel stated that it was assumed he was, and no objection was taken to the statement. Mr. Macdonald cited in support of his main contention against implication the following cases: Earl of Cardigan v. Armitage (1823), 2 B. & C. 197 at pp. 324-7, 26 R. R. 313; Churchward v. The Queen (1865), a L. R. 1 Q. B. 173 at pp. 194-5; Midland Railway Co. v. London'^ and North-Western Railway Co. (1866)- 15 L. T. N. S. 264; Archi-l buhl v. The Queen (1891). 2.Ex. C. R. 374, and Hill y. Ingersoll Road Co. (1900),.32 Ont. 191 at p. 201. The respondent's counsel conceded that if the case were being tried in England he could not succeed, but asks for a different judg- ■ ment here on two grounds: (1) that by our said Act the timber*is now a statutory appurtenance to a mine; and (2) that the plaintiff has already given two leases of substantially the same area to the defendant, and that in working them he had been allowed to use the timber without hindrance, and therefore the same course should be presumed here.^and he should not have been prevented, as he undoubtedly was, from that user under this third lease. But this is not the exact position, because on p. 27 the plaintiff admits that the last lease he had was not from the plaintiff personally, but from the Whitewater Mines, Ltd., though the plaintiff was manager thereof at the time. I note that although the plaintiff's counsel cross-examined on one of these leases,' full, or even necessary, particulars are not before us of either of them, and the evidence being so indefinite on this point (2) I cannot safely found my judgment on if. Then as to (1). Said section 26 in its latter part also extends the said timber rights conferred upon Crown grantees to " the lawful holder by record of a claim . . . during the continuance of his record," but I fail to see that because the grantee or lawful holder has certain statutory rights they necessarily enure to the benefit of his lessee, and also further descend to his sub-lessee. . No such custom in this Province was sought to be proved, and it certainly is not necessary for the working of mines such as the one in question, that it should be so. Where, as here, portiohs of the mine are leased to different persons all carrying on their operations .simultaneously, II.] HALPIN v. FOWLER (No. 2). 427 including a portion being worked by the lessor, it would not be even 1907 in the reasonable /contemplation of all concerned that they all should have an unfettered right to cut timber at discretion. I say this with FullCourt. every respect to the contrary opinion of the learned trial Judge, whose Martin, J.. large experience in a mining country gives weight to his view. And lsSpartng m at the same time I acknowledge I can imagine circumstances where it would be a necessary implication that timber on the claim should be cut by a lessee. The question is an interesting one on which I cannot say I have as strong an opinion as I should lil^e, and the said unusual features of this lease render it more difficult to say what should be implied than in the case of a lease of an entire mine to one person, cases on which are to be found in the books, but they throw no light on the exact point here, though I have vainly consulted many authorities for that purpose, including those of the mining States of America. . The matter is still, further complicated hj the fact that many necessary things, even the use of the tunnel, are manifestly left to implication in the meagre and one-sided lease now before us, which contains many covenants by the lessee but none by the lessor, so the rule to restricting the parties to their express agreement cannot be wholly enforced: Aye v. The Philadelphia Company (1899), 20 Morr. 177. A covenant for quiet enjoyment, for example, must be implied, as well as for the, right of entry: Knotts v. McGregor (1900), ib. 432; and compare one not to mine coal so as to injure the surface: Mickle v. Douglas (1888), 17 Morr. 137:- There is "also much to be said, especially in the formative conditions of a new countrw, in favour of the opinion of the Court in McNish v. Stone (1879), ib. 22, that a lease (there to bore for an oil well) "must be construed with reference to the Toiown character of the oil business, and the evident intention of the parties." But the result in the present circumstances must, in my opinion, for the reasons first mentioned, be that the damages awarded, $125 on this head, for timber, cannot stand, and the appeal should be allowed to the extent»of reducing the verdict by that amount. Morrison, J., concurred in the reasons for Hunter, mo C.J. New trial ordered, Martin, J., dissenting. Note.—Cf. contract. nte p. 428 MARTIN'S MINING AND WATER CASES. [VOL. McGregor v. The Canadian Consolidated Mines Limited. (12 B. C. 116, 373.) Metalliferous Mines Inspection Act Amendment Act, 1901, sec. 12, r. 21 A—~ " Machinery Hereinafter Mentioned," Meaning of—Statute. Construction of Penal—" Section " or " Bule." The phrase " machinery hereinafter mentioned" in r. 21a of section 25 of the Inspection of Metalliferous Mines Act as amended by ch. 37 of 1901, means " any of the machinery hereinafter mentioned." The rule of strict construction as applied to penal statutes has been much. relaxed in recent years. In construing such statutes, one rule to be followed is that that sense of the words is to be adopted which best harmonizes with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object in construing penal as well as other statutes, is to ascertain the legislative intent; and the rule of strict construction is not violated by permitting the words to have their full meaning or the more extensive of two meanings, when best effectuating the intention. The word " section " may be read as " rule" where it is manifestly used in that sense. Decision of Duff, J., affirmed. Case stated by Mr. Nelson, police magistrate for Rossland. The facts and arguments are sufficiently set out in the judgment of Duee, J. R. M. Macdonald, for McGregor. A. H. MacNeiXl, K.C, for the Company. Judgmenb below, Dupf, J. June 6th, 1906. Dufe, J.: The following questions are submitted: (a) Whether emp tion of the provisions ous Mines Act, 1901, ing of Rule 21b of st (b) Whether 21b apply to the (c) Whether direct-acting, gea power and a stat ment for\wages to perform duties which are in viola- Rule 21a of section 25 of the Inspection of Metallifer- nstitutes an inducing or persuading within the mean- he words "preceding section" in the third line of said Rule.- aatters referred to in Rule 21a. he provisions of said Rule 21a apply at all unless both a ed, or indirect-acting hoisting engine, exceeding fifty horse mary engine or electric motor (exceeding fifty horse -power) are operated in the same mine. The first two questions are answered in the affirmative, and I think it not necessary to add anything to what was said during the argument on the points raised by them. m MoGREGOR v. CANADIAN CON. MINES, LTD. 429 Judgment below, Duff, J. The rule referred to in the third question is as follows: ]9°7 | January 30 "21a. Every person who, after the first day of January, A.D. 1902, being Full~Court. employed in or about a metalliferous mine, in which the machinery hereinafter mentioned shall be operated for more than twenty hours in any twenty-four (1) operates any direct-acting, geared, or indirect-acting hoisting machine exceeding fifty horse-power, or (2) operates any stationary engine or electric motor exceeding fifty horse-power, and shall perform any such duties for more than eight hours in any twenty-four, shall be guilty of an offence under this Act." The construction of this rule presents difficulties. The reading contended for by Mr. MacNeUl, however, namely, that a constituent element in the offence created by the rule is that all the different kinds of machinery mentioned shall be in the mine in question, and be operated for more than twenty hours in any twenty-four, leads to a result which it is highly unlikely the Legislature contemplated; and, although a possible construction is, 1 think, a less reasonable view of the • meaning of the words than that contended for by Mr. Macdonald. It is difficult to believe, for example, without imputing to the Legislature the desire to be absurd, that it was intended that as a condition to the liability to prosecution under the rule, there must be at one and the same time, in one and the same mine, a direct-acting hoisting machine exceeding fifty horse power; a geared hoisting machine exceeding fifty horse power, and an indirect-acting hoisting machine exceeding fifty Korse power. But Mr. MacNeill's view, if acted upon, inevitably conducts us to that conclusion. It is not necessary, in order to support Mr. Macdonald's contention, to introduce any words into the section. " Machinery hereinafter | mentioned" may^ I think, be quite naturally read as meaning the machinery described in the language hereinafter appearing; and with this paraphrase it becomes obvious that the words " hereinafter mentioned " import the distributive conjunction " or," as appearing in the latter .words of the section, into the description of the classes of I machinery with which the Legislature is dealing; in other words, I that the phrase " machinery hereinafter mentioned " means any of the I machinery hereinafter mentioned. The rule of strict construction, as applied to penal statutes, has I been much relaxed in recent vears: " The rule of strict construction, however, whenever invoked, comes attended I with qualifications and other rules no less important; and it is by the light which each contributes that the meaning must be determined. Among them is I the rule that that sense of the words is to be adopted which best harmonizes I with the context, and promotes in the fullest manner the policy and objects of [the Legislature. The paramount object, in construing penal as well as other I statutes, is to ascertain the legislative intent: and the rule of strict construction is not violated by permitting the words to have their full meaning, or the I more extensive of two meanings, when best effectuating the intention. They are, ■ vol. n. m.m.c.—29. 430 MARTIN'S MINING AND WATER CASES. [VOL. 1907 January 30. Full Court . Judgment below, Duff, J. Appeal. Argument. indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy." Maxwell on Statutes (1905), pp. 412, 413. Applying these principles. I come to the conclusion that Mr. Mac- NeilVs contention cannot be sustained. The third question will be answered in .accordance with this opinion. Judgment accordingly. The company appealed to the Full Court and the appeal was argued at Victoria on the 11th January, 1907, before Hunter, C.J., Martin, and Clement, JJ. A. H. MacNeill, K.C, for the appellant company, cited In re Miles (1906), 8 0. W. R. 817; Nicholson v. Fields (1862), 7 H. & N. 810 at p. 811; Underhill v. Longridge (1859), 29 L. J., M. C. 65; Coex. Lnirrence (1853), 1 El. & Bl. 516; Abbey v. Dale (1851), 11 C. B. 378 at p. 391, and Downie v. Vancouver Engineering Works (1904), 10 B. C. 367 at p. 369. Maclean, K.C, D.A.-G., for the Provincial Government. The Attorney-General for the Dominion was not represented. Cur. adv. vult. Judgment, Hunter, C.J. Hunter, C.J., concurred Clement, J. 30th January, 1907. in the reasons for judgment of Martin, J. Martin, J.: So far as question (b) is concerned my view is the same as that about to be expressed by my brother Clement. As regards (c) I have reached the conclusion, not without some hesitation, that the view of the learned Judge appealed from should be affirmed. The appellant's case would be stronger were it not that in order to give due effect to his argument it is necessary to read the word " or " in the beginning of the sixth line as " and." This as it were balances the difficulty the respondent has to meet in asking us to construe the words "the machinery" in the second and third line as meaning " any of " the same, in order to fully support his contention. Such being the case, and reading the section as a whole, I am not prepared to say that the learned Judge has gone too far in adopting the more extended of the two interpretations fairly open, bearing in mind that the prime intent is to protect workmen, though I confess I think the rule of construction invoked has been extended to its utmost limit. The appeal should be dismissed. 432 MARTINS MINING AND WATER CASES. [VOL. 1907 February 22 McMeekin v. Furry et al. Mineral Claim—Interest in. Transfer of in Writing—Mineral Act, Sees. 50 and 130—Statute of Frauds—Party to be Charged—Signature. The interest of a free miner in a claim is " an interest in land." A signature deliberately made in another's name, and not as agent for such other, is sufficient to bind the signer as a party to be charged, if he intended to be bound thereby so far as possible. Per. Irving, J.: Section 130 of the Mineral Act is intended to prevent a locator being divested of his interest unless there is a written document. Held, on the facts, that sec. 50 of the Mineral Act was a bar to the contention that a locator had divested himself of his admitted original half interest in the three mineral claims in question. Decision of Hunter, C.J., reversed, Martin, J., dissenting. Appeal by defendant from a judgment of Hunter, C.J., in an action tried before him at Vancouver on the 28th, 29th and 30th of May, 1906. The facts will be found stated in the judgment. The action was for a declaration as to what interest in the proceeds of the sale of certain mineral claims the plaintiff and defendants were entitled to respectively, the defendant Furry claiming an undivided1 one-half interest in the Empress, Queen and Yictoria mineral claims, or the proceeds of the sale of the same, while the defence set up was that he was entitled only to a one-fifth of the proceeds of the sale of said claims together with an additional claim called the Barbara fraction. On the facts at the trial it was declared that Furry was entitled to 20 per cent, 'of the proceeds of sale. Davis, K.C, and Marshall, for plaintiff. Martin, K.C, and Craig, for defendant Furry. L. G. McPhillips, K.C, for defendant Turner. Bowser. K.C, for defendants Boscowitz. 19th November, 1906: Judgment Hunter, C.J.: This is an action for a declaration of the Court as Hunter. 6.J. to what interests in the proceeds of sale of certain mineral claims the "plaintiff and defendants are respectively entitled, the Furry estate claiming an undivided one-half interest in the Empress, Queen and Yictoria mineral claims, or their proceeds; while it is alleged on the contrary that it is only entitled to a fifth of the proceeds of j sale of these claims together with another claim called the Barbara "fraction. II.] McMEEKIN v. FURRY et al. 433 At the trial the only question, about which I was in doubt was the question of fact, namely, as to whether Oliver Furry had exchanged his undivided one-half interest in the yictoria, Queen and1 Empress * claims, for an undivided fifth interest in those claims together with the Barbara fraction. H According to the testimony of David Boscowitz, he was present at an interview between his brother Leo and Furry, at the Commercial Hotel, Vancouver, in 1900, in which Leo agreed to give Furry a 20 per cent, interest in the three original claims and the Barbara fraction and1 three or four other claims in lieu of Furry's half interest in the three original claims; that the reason for this arrangement was that, as Leo told Furry, he could not sell the claims in the position they were, that Furry agreed to this arrangement, that they then went to the office of Davis, Marshall & Macneill; that Mr. Weart, who was then a clerk in that office, and his brother talked the matter over, and that Mr. Weart drew the document of June 2nd, 1900; that it was shewn to Furry, and that Leo signed it in Furry's presence; that the document was in duplicate, but that he does not recollect whether it was signed in duplicate; that Furry took one away with him; that he then departed, leaving Leo and the witness in the office. (Here the learned Judge further discussed the evidence, and1 finds that Furry did exchange his interest as alleged, and concludes) . . . The document of the 2nd of June was in fact drawn up, and was, I find1, taken away by Furry after it was -signed by Boscowitz, and there is no independent evidence to shew that it had ever left his possession, and I am unable to see how his insisting that the escrow of 1903 should be drawn up so as to shew that he still retained his original interest can be relied on to shew that l he had not accepted the interest thus created1 in 1900. Nothing short of prompt disclaimer would! have prevented that interest from vesting in him as from the delivery of the document. Of course, it may be that his reason for insisting on, the escrow being drawn up so as to shew that he still retained his original interest was that he [conceived that the failure to build, the trail entitled him to repudiate I the transaction of the 2nd of June, but as to that, obviously his only [remedy, if he had any, was by action. Mr. Martin contended that Furry already had a legal interest in I the claims, and that before he could be held to have surrendered it for a different interest, some writing by him would' have to be produced and proved. The short answer to this is that Furry had no legal interest; that he had only a right in equity to a conveyance of the half interest under the agreement of the 20th of May, 1899, and ;as already intimated, I think the weight of evidence preponderates in favour of the view that he accepted the declaration of trust of the 2nd 1907 sbruary 22. ull Court. Judgment below, unter, C.J-,. 434 MARTIN'S MINING AND WATER CASES. [vol. 1907 ^ of June, 1900, in substitution of the obligation which was created l____ * by the document of the 20th of May. ull_court. There will therefore be a declaration that Furry's estate is en- • Judgment titled to 20 per cent, of the proceeds of sale. Other questions re- below, n Hunter, C. J. Served. Judgment accordingly. Appeal. The appeal was argued1 at Vancouver, before Irving, Martin, ' and Clement, JJ., on the 29th, 30th and 31st'of January, 1907. Argument. Martin, K.C, for appellant (defendant Furry) : We submit that the learned trial Judge has given the plaintiff judgment for something he never asked for, and made us pay the costs. His Lordship also charged us up with the costs of a partner with whom we had no dispute. We say it is not permissible to change the agreement of the 20th of May, except by another document, as this is an agreement respecting land, and we are unable to find a case where an agreement which, by the Statute of Frauds must be in writing, can be varied verbally: Marshall v. Lynn (1840), 6 M. & W. 109; Stow ell v. Robinson (1837), 3 Bing. N. C 928; Goss v. Lord Nugent (1833), 5 B. & Ad. 58; Sanderson v. Graves (1875), L. R. 10 Ex. 234; Chitty on Contracts, 14th Ed., 113; Leake, 5th Ed., 566: Jloofstetter v. Rooker (1895), 22 A. R. 175 at p. 189 (1896), 26 S. C. R. 41. As to the question of signature, that referred to in the statute is not necessarily the man's own signature. It has been held that a mark or a figure is good, so long as the person signing puts it there as his own signature: Durrell- v. Evans (1862), 1 H. & C. 174; Torret v. Cripps (1879), 27 W. R. 706; In the Goods of Susan Glover (1847), 11 Jur. 1,022; In the Goods of C Redding (1850), 14 Jur. 1,052; Pryor v. Pryor (1860), 29 L. J. P. 114; In re the Goods of William Olliver (1854), 2 Spinks, 57; Lobb v. Stanley (1844), 5 Q. B. 574. Davis, K.C, for respondent (plaintiff) ; The strongest case shewing the reasons which will move the Court of Appeal to interfere with the decision of the trial Judge is Montgomerie & Co.. Limited v. Wallace'-James (1904), A. C 73 at p. 83. See also Camsusa v. Coigdarripe (1904), 11 B. C 177 at p. 192; Colonial Securities Trust Company v. Massey (1896), 1 Q. B. 38 at p. 40. There was no enforceable interest existing in Furry on the 2nd of June. The document of the 20th of May, 1899, was not recorded by the recorder on the 2nd of June, 1900. [Clement, cent, interest.] J.: You start out with an admission of a 50 per II.] McMEEKIN FURRY ET AL. 435 No; we state in the pleadings what the fact is. As to an interest in a mineral claim not being an interest in land see Wells v. Petty (1897), 5 B. C 353. On the principle that the Statute of Frauds cannot be used as a cloak for fraud, the evidence shews that he spent several thousand dollars on these claims, and! when he got them into a position in which he could find a buyer for them, theh this man says " I will set up the Statute of Frauds." This the Court will not permit: In re Cooke's Trustee's Estate (1880), 5 L. R. Ir. 99. The man was induced to change his position: Lincoln v. Wright (1859), 4 De G. & J. 16. As to section 4 of the Statute of Frauds, here, Boscowitz is not bringing an action, but the whole case arises on the counterclaim of Ira Furry in which he asks for a declaration that he has an undivided half interest. Plaintiff has no right to set up the statute: Miles v. New Zealand Alford Estate Co. (1886), 32 Ch. D. 266 at pp. 278 and 296; Lavery v. Turley (1860), 30 L. J., Ex. 49; see also Stussi v. Brown (1897), 5 B. C 380. At the time the agreement, which culminated in the document of the 2nd of June, was consummated, this man had absolutely no interest in either the Queen or the Victoria claims, and no enforceable interest in the Empress, under section 50 of the Mineral Act. All that was done was to substitute a verbal agreement by which he was to have a 20 per cent, interest for this vague, shadowy interest which he had in the Empress claim. The Statute of Frauds and section 50 of the Mineral Act deal only with interests which cannot be enforced in a court of law. As to the signature, we plead sections 50 and 130 of the Mineral Act; and then we say, alternatively, that if there was such an agreement, it was substituted by a 20 per cent, interest for a 50 per cent. They took their choice of a signature, and. therefore took their chance under the statute. If a person signs a name in mistake, intending to sign his own name, then he is bound, but if the person -with whom he is dealing says another signature is preferable, then that person gets the benefit of that signature and nothing more: In the Goods of Leverington (1886), 11 P. D. 80; In the Goods of Maddock (1874), L. R. 3 P. & D. 169. Martin, K.C, in reply, cited Hood v. Eden (1905), 36 S. C R. 476, on the point of the Court of Appeal interfering with the finding of the trial Judge. Cur. adv. vult. 1907 <bruary 22. ull Court . Argument. 436 MARTIN'S MINING AND WATER CASES. [VOL. 1907 February Judgmen Irving, J 22nd February, 1907. Irving, J.: The late Oliver Furry in his lifetime, in particular I in July, 1903, and1 from then until his death, claimed that by virtue of a writing dated 20th May, 1899, and given to him by Leopold a Boscowitz, he was the owner of an undivided non-assessable one-half interest in three mineral claims, namely, the Empress, Victoria and Queen, which then formed part of the Empress group of mineral claims. Leopold Boscowitz on the other hand contended that Furry had on 2nd June, 1900, relinquished the above mentioned half interest for something which amounted to a one-fifth assessable interest in a the said three claims and the Barbara mineral claim, also part of the Empress group, and certain other claims which were or which'a might afterwards be brought into the Empress group. In consequence of these disputes, an action was commenced in January, 1905, by McMeekm, who was the holder of an interest in r the three said claims, against Furry, Turner, Leopold. Boscowitz, Joseph Boscowitz, David Boscowitz and F. M. Leonard, also interested in the said claims, in order that the rights of the plaintiff and I defendants in and to the said three mineral claims and also the Barbara claim might be declared and1 for a partition or sale of the said claims. Before the pleadings were closed, Oliver Furry died, and Ira Furry, his administrator^ was substituted in his place. In anI amended counterclaim set up by Ira Furry he asked that it should be declared that his interest in the said three claims was an undivided one-half interest. The ease put forward by the three Boscowitz' and the plaintiff in opposition to this counterclaim was the matter discussed in the argument before us. Their contention is that on the 2nd of June,. 1900, when the property in the said three claims was vested in David, Leopold and David met Furry in Vancouver, and Leopold arranged with him that he should surrender the one-half non-assessable interest in the said three claims which he had1 acquired by virtue of the document of the 20th of May, 18£9, and accept in lieu thereof a one-fifth interest in the proceeds to be derived from the said three claims and from the Barbara mineral claim and three or four other claims constituting the Empress group. This agreement, they say, was carried into effect by the document of the 2nd of June, 1900, and in their reply to the counterclaim they set up sections 50 and 130 of the Mineral Act and the Statute of Frauds. . McMEEKIN v. FURRY et al. 437 cent, and not the 50 per cent, intere inglv, and condemned Furry's estate i Furry in his turn, to defeat the operation of the document of the 2nd of June, 1900, claims the benefit of section 50 of the Mineral Act and. also of the Statute of Frauds. The Chief Justice who heard the trial found Leopold a most unsatisfactory witness, but thought that the weight of evidence preponderated in favour of the view that Furry had accepted the declaration of trust which was created by the document of the 2nd of June, 1900, and that therefore Furry's estate was entitled to the 20 st. He gave judgment ac- n all the costs of the plaintiff's action and counterclaim and' ordered him to pay the other defendants their costs of the defence and of the counterclaim. From that order the administrator appeals on the ground that the learned Chief Justice was wrong in his facts as well as in his law; add that in any event he should not have condemned Furry to bear the whole expense of the litigation. It appears beyond question that Leopold gave to Furry the two documents of November, 1898, and May, 1899, purporting to give Furry a non-assessable half interest in the three said claims. It is also established beyond doubt that in June, 1900, a two-day conference did take place between Furry and Leopold and David in which the question of Furry's surrendering his 50 per cent, interest in the three said claims for the 20 per cent, interest was discussed. That at that time all three claims were vested in David, the Barbara claim only being vested in Leopold. That on the 2nd of June, Leopold, David and Furry went to the office of Messrs. Davis, Marshall & Mac- neill, and there the document of the 2nd of June, 1900, which had been previously prepared under the direction of Leopold, was read over and explained to Furry by Weart. Weart says the explanation was that it- was a gift to him from Leopold of a 20 per cent, interest, and nothing was said as to its being a reduction from 50 per cent, to 20 per cent. Weart says he did not know that Furry was surrendering anything. The document was executed by Leopold, whether in duplicate or not is not clear, but the original, or, if executed in duplicate, one of the originals, was retained by Leopold. A copy (or the duplicate) may have been taken away by Furry, but the evidence on this point is contradictory. That immediately afterwards, viz., on the 11th of July, 1900, David transferred to Leopold the three said claims and Leopold then proceeded to deal with them as follows: On the 11th he gave a one-fifth interest to David; on the 13th he executed' a declaration of trust in favour of Seifert as to 15-100; on the 13th he transferred to one H. C. Walters a fifth interest, and on the 16th he made an arrangement with the defendant Turner as to one-eighth. These allotments and the expenditure of $8,000 which Leopold then 1 907 ebr uary 22 ULL Court IRV ING, J. 438 MARTIN'S MINING AND WATER CASES. [VOL. 1907 February22 Full Court Irving, J. made, it is said, are only consistent with the theory that Furry had agreed to accept a l-20th interest, but it may be observed as to the ■ $8,000, that sum might have been expended even if the original agreement between him and Furry still remained in force, as under the original arrangement Leopold was to advance all the money necessary to develop the claims. Furry, who was examined for discovery, swears that he never executed -nor accepted any agreement in reduction of his one-half interest; that he never went to the office of Messrs. Davis, Marshall -& Macneill, but at the same time he admits that Leopold wanted him to reduce his interest to 20 per cent, and that had Leopold constructed a trail up South Valley to the mine he might possibly have accepted the proposed1 reduction. Furry's evidence does not satisfy me that he was perfectly frank when being examined. Underlying the whole of his evidence is an acknowledgment that there was an arrangement between him and" Leopold, by which, possibly, under certain conditions, he would accept the reduction proposed. There are expressions used by him that convey to me the idea that he thought there was reserved to him the right to accept the document of the 2nd of June, 1900, if he was satisfied with what Leopold was doing, or to reject it, as he did, if he thought fit. I refer to his evidence, p. 218, as put in by Mr. Bowser. Before referring in detail to the evidence on the other side, it may be convienient to call attention to the fact that this really is a claim against a dead man's estate. Nominally the administrator is the plaintiff in the counterclaim, but a perusal of the pleadings will shew that the action is really by Leopold Boscowitz and his assigns to enforce the document of the 2nd of June, 1900. Our Evidence Act Amendment Act/ 1900, enacts (sec. 52) that: " In any action or proceeding by or against the heirs, executors, administrators, or assigns of a deceased person, an opposite or interested, party to the action shall not obtain a verdict, judgment, or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence." Prior to the passage of this Act it was a rule of prud'ence as distinguished from one of law, that this Court would not act upon the uncorroborated testimony of claimants to the property of deceased persons unless convinced that such testimony was true. If the evidence given by the living man brought conviction to the tribunal which had to try the case, that was sufficient, although said Sir J. Hannen, " it is natural that in considering the statement of the survivor we should look for corroboration in support of it"—see on this j point In re Garnett (1885), 31 Ch. D. 1 at p. 9, where Brett, M.R., j said: II.] McMEEKIN FURRY et 439 " The law is that when an attempt is made to charge a dead person in a 1907 -matter, in which if he were alive he might have answered the charge, the evi- February 22 dence ought to be looked/a£ with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be first of all, in a state of suspicion." i'ull Court. Irving, J. Having regard to that rule I think the defendants to the counterclaim have failed to establish that Furry did agree to accept the document of the 2nd of June in substitution for the former document. (Having further considered the evidence the learned Judge concludes) . . . It is not possible for me on this evidence to come to the conclusion that Boscowitz and Furry were agreed on the 2nd of June that the document of that date should govern their relations in place of the previous document. It is admitted that the document of the 2nd of June should have included certain other claims, either staked or to be staked, also some land to be used apparently as a depot or landing place at the foot of the trail, also provision should have been made as to doing assessment work by Boscowitz upon the claims. The document of the 2nd of June mentions none of these. It is extraordinary that so many inducements should have been omitted if Weart understood that he was drawing up a document for the surrender of an interest by Furry. For these reasons I am not able to agree with the conclusion reached by the learned Chief Justice. Now assuming that the one-half interest claimed by Furry was vested in him by the document of the 20th of May, 1899, recorded on the 10th of April, 1901, I do not see how the defendants can get over section 50 of the Mineral Act. That section enacts: I No transfer of any mineral claim, or of any interest therein, shall be enforceable unless the same shall be in writing, signed by the transferror ,or by his agent in writing, and recorded by the Mining Recorder. * * *." Are not the defendants to this counterclaim trying to enforce' the transfer of a one-thirtieth interest from Furry to Boscowitz? There remains the question whether the document of May, 1899, signed by Leopold with the signature. of " J. Boscowitz & Sons " at a time when one only of the three claims was in the possession of Leopold is, in view of section 130, and the Statute of Frauds and sec. 50 of the Mineral Act, sufficient to give Furry a claim to any of the mineral claims. Section 130 was passed in consequence of the decision in Wells v. Petty (1897), 1 M. MT C 147; 5 B. C 353. It is intended to prevent the locator being divested of his interest unless there is a written document. The section can have no application as it is admitted 440 MARTIN'S MINING AND WATER CASES. 1907 Full Court Irving, J. in paragraph 2 of the amended reply that Furry located these three claims. In my opinion the document of May, 1899, is not touched by section 130. As to section 50 and the Statute of Frauds: the signature "J. Boscowitz & Sons" Leopold says he intended as his own." That being so, no question arises as to the Queen claim which stood in his name: cf. In re Ventral Klondyke Gold-Mining Co. (1898), 5 Man- son, 282, where a person who applied for shares under an alias, was- held estopped from denying his liability as a shareholder. As to the other two claims recorded in the names of Joseph and David, respectively, Leopolcl! says these names were merely used by him as he knew that he could rely on them to reconvey to him whenever he wished. As a matter of fact they did convey back to him, and in those circumstances Leopold is precluded from denying that he was their agent to sign for them. Further, David' stood by on the 2nd of June and permitted Leopold to say that the agreement of November, 1898, was valid. Again, the estate which Leopold acquired in the Empress and Victoria by the conveyance by them at a subsequent date feeds the estoppel and Furry became entitled as if Leopold had himself originally possessed the interests which he represented he hadsa right to assign by using their names. The agreement of the 20th of May, 1899, "We hereby agree to give," etc., in the opinion of the learned Chief Justice, conferred on Furry no. legal interest, but merely a right in equity to a conveyance of the half interest. This document in my opinion was twofold; it gave an equitable interest which took effect at once. It also expressed a promise (quite unnecessary) to convert that equitable estate into a legal estate by the necessary documents. The lands and interests therein being specified, the agreement was no longer merely executory. It was, in fact, a conveyance of a one-half interest to Furry. In Cruise's Digest, Vol. 4, at p. 376, the difference between a covenant relating to lands of a certain value and a covenant dealing with particular lands is pointed out. The first is a general covenant and does not bind any particular lands, but the latter is a specific covenant- and binds the lands mentioned. Boscowitz having on the 20th of May, 1899, specified the land's, thereby gave a one-half interest in the claims. In my opinion the judgment should be reversed and the administrator declared entitled^ to the one-half interest in the said three claims, with costs here and below. Martin, J. Martin, J. (after discussing the Statute of Frauds) :— . . . Some discussion arose on the question as to whether or no the inter- II.] McMEEKIN v. FURRY et al. 441 est of a free miner in his claim is " an interest in- land," and I am 1907 clearly of the opinion that Mr.. Martin's contention to that effect 1 is correct: see Williams Creek Bed Rock Flume & Ditch Co., Ltd. FullCourt. v. Synon (1867), 1 M. M. C 1; Wells v. Petty (1897), 5 B. C 353, Martin, J. 1 M. M. C 147; Stussi v. Brown (1897), 5 B. C 380, 1 M. M. C 195; Fero v. Hall (1898), 6 B. C 421, 1 M. M. C 238; Sunshine, Limited v. Cunnmgham et al. (1899), 1 M. M. C 286; and section 2 of Mineral Act, definition " mine" and " mineral claims." Cf. also, Brown v. Spruce Creek Power Co. (1905), 11 B. C 243, 2 M. M. C 254 at p. 266. The result is that on all the said authorities I am of the opinion that Furry's case fails on the Statute of Frauds, and that consequently he has no interest in the said mineral claims. His appeal therefore must be dismissed. (Question of costs then discussed.) Clement, J.: (After dealing with certain facts and conclusions Clement, j not material to this report, proceeded) :— ... On the law: assuming for argument's sake that full effect should be given to the finding of fact by the learned Chief Justice, I am of opinion that both the Statute of Frauds and sec. 50 of the Mineral Act are a fatal bar to the enforcement of the document of the 2nd of June, 1900; and that, on the other hand, neither of them stands in the way of the enforcement of the earlier document of May, 1899, under which Oliver Furry took a half interest (non-assessable) in the Empress, Queen and Victoria mineral claims. To deal with this last question first. The Furry half interest under the document of May, 1899, is asserted in the plaintiff's statement of claim (paragraph 4), and is admitted by Leopold Boscowitz in his statement of defence (paragraph 2). If, nevertheless, he may now attack that document, I think his attack must fail. The only point taken against it, so far as the Statute of Frauds is concerned, is that it was not signed by the party to be charged therewith. It was signed by Leopold Boscowitz thus: " J. Boscowitz & .Sons." The facts were that the three claims stood recorded in the names of Joseph, David and Leopold Boscowitz respectively, and that " J. Boscowitz & Sons " correctly described and included them all. But the sole beneficial owner of the claims was Leopold, and he saj^s positively that realizing his sole ownership he intended the signature " J. Boscowitz & Sons" as his signature. As a further matter of fact, Leopold afterwards got in what one may call the paper title: and in my opinion he cannot be heard to say that he was not the agent of Joseph and David so as to make the signature theirs as well 442 MARTIN'S MINING AND WATER CASES. [vol. 1906 February' Full Coui Clement, as his, if it were necessary to go that far. Moreover, he impliedly contracted with Furry that he was their duly authorized agent: Starkey v. Bank of England (1903), A. C 114, 72 L. J., Ch. 402, and should therefore make good to Furry any loss in interest which the latter might suffer by reason of the absence of authority to bind Joseph and David. What then was the effect of the document? The learned Chief Justice says that it gave Oliver Furry no legal interest, but " only a right in equity to a conveyance of the half interest." With all deference I cannot concur in this view. The still earlier document of November, 1898, uses the words " we hereby give," and the later document of May, 1899, was not intended in any way to weaken the operative effect of the earlier, but was intended merely to make specific mention of the claims covered by the general words of that earlier document. The words " we hereby agree to give " in the- later document must therefore, I think, be held to be words of present transfer: see Hoofsteiter v., Rooker (1895), 22 A. R. 175; and Leopold was, estopped from saying otherwise. The estoppel was fed when Leopold afterwards got in the " record" title, following upon which Furry duly recorded the transfer. In this view we have here an attempt to enforce in the teeth of the 50th section of the Mineral Act an instrument which, if effective at all, must be effective as a transfer from Furry of a 30 per cent, interest in certain mineral claims, and which is not signed by the transferror nor recorded. But even if the agreement of May, 1899, is to be treated as an executory and not, as I think it is, an executed contract, the right in equity to a conveyance, as the learned Chief Justice puts it, is an interest in land within the Statute of Frauds. In my opinion, the interest of a free miner in his mineral claim is an interest in land and it can make no difference, so far as the Statute of Frauds is concerned, whether that interest is legal or equitable: see Kelly v. Webster (1852), 12 C B. 283, 21 L. J., C P. 163; Ex parte Hall. In re Whitiing (1879), 10 Ch. D. 615, 48 L. J. Bk. 79. That an executory agreement in writing satisfying the Statute of Frauds may be absolutely waived and abandoned by parol seems to be the law: see Robinson v. Page (1826), 3 Russ. 114, "but such a, defence must be established with the greatest clearness and precision, and the circumstances of waiver and abandonment must amount to a total dissolution of the contract placing the parties in "the same situation in which they stood before the agreement was entered into": Robinson v. Page, ubi supra; and see also Price v. Dyer (1810), 17 Yes. 356. Here there is no case, either on the pleadings or the facts, of a total abandonment of the agreement of May, 1899. All that is alleged is that that agreement "was sud- n.j McMEEKIN FURRY ei 443 sequently varied by a document under seal dated the 2nd day of June, 1900, whereby the interest of Furry . . was reduced and changed," etc. Such a document, not signed by Oliver Furry and * so not satisfying the Statute of Frauds, cannot be set up to defeat, c vary or modify Furry's rights under the agreement of May, 1899: Price v. Dyer, ubi supra; Noble v. Ward (1867), L. R. 2 Ex. 135, 36 L. J. Ex. 91; Goss v. Lord Nugent (1833), 5 B, & Ad. 58, 2 L. J. K. B. 127; Hickman v. Haynes (1875), L. R. 10 C P. 598, 44 L. J. C P. 358, The proof which the Statute of Frauds renders indispensably necessary is not forthcoming: see Madduson v. Alder- son (1883), 8 App. Cas. 467 at p. 473, 52 L. J. Q. B. 737. Nor do I see any justification for treating this as a case .of accord and satisfaction, for the document of June, 1900, is still executory; in other words, assuming a broken obligation under the agreement of May, 1899, there may have been accord, but there certainly has been no performance of the later agreement accepted in satisfaction of the earlier: see Bayley v. Homan (1837), 6 L. J. C P. 309; Gabriel v. Dresser (1855), 24 L. J. C P. 81; Smith v. Trowsdale (1854), 23.L. J. Q. B. 107. If it be argued that the obligation under the later document was accepted in lieu of the obligation under the earlier, the short answer is that the later document cannot be enforced against Furry by reason of the Statute of Frauds, and so the earlier must stand: Noble v Ward, ubi supra. Lord Blackburn in Maddison v. Alder son, ubi supra, speaks of the established rule "that a contract within the 4th section was not enforceable unless signed by or on behalf of the party to be charged, even though signed by the one party and accepted and kept by the other who was sought to be charged." At the trial all parties united to storm the Furry position, apparently leaving all questions inter se open. At all events no argument was addressed to us on any question other than the Furry interest. I think therefore we should merely set aside the judgment pronounced at the trial, declare the defendant Ira Furry, as administrator, etc., entitled to a half interest (non-assessable) in the Empress, Queen and Victoria mineral claims, and reserve liberty to all parties to. apply. The defendant Ira Furry is entitled to his costs of the action and of this appeal. Appeal allowed, Martin, J., dissenting. 444 MARTIN'S MINING AND WATER CASES. [VOL. 1907 April 24. Full Court Eastern Townships Bank et al. v. Vaughan et al. (13 B. C. 77.) , Water-record for Agricultural Purposes—Joint Becord Held by Partners—Preemption—Abandonment of Becord by Abandonment of Pre-emption—Becord^ Appurtenant to Land—Status to Attack Becord—Land Act, 1884, sees. !i3-l, and Amendment of 1886, ch. 11, s. 1. A water record cannot, under the Land Act, 1884, be held apart froha lands. If lands to which a water record is appurtenant are abandoned, the water a: record lapses. Such an abandonment is not in any sense equivalent to a transfer of convey- : ance. The holder of a water record may, in asserting his rights thereunder j assert and prove that another alleged water record has ceased to exist. Decision of Morrison, J., reversed. Appeal by plaintiffs from the decision of Morrison, J., in an action tried before him at Grand Forks on the 15th and 16th of May, 1906, respecting conflicting water records. The material facts on which the decision of the full Court turns sufficiently appear in the judgment of Martin, J. The appeal was argued at Yictoria,on the 17th and 18th of January, 1907, before Hunter, C.J., Martin and Clement, JJ. S. S. Taylor, K.C, and H. C. Hanington, for appellants ^plaintiffs). Davis, K.C, for respondents (defendants). Cur. adv. vult. Judgment, Hunter, C.J 24th April, 1907. Hunter, C.J.:—There being no material facts in dispute, the decision of this appeal turns on the nature of the records which are the subject of the suit. It was held by Begbie, C.J., in Carson & Eholt v. Clark & Mart- ley (1885), 1 B/ C (Pt.~2) 89 at p. 195, that where a pre-emptor abandons his pre-emption he cannot continue to hold a water right recorded for use in connection therewith in gross, and so far as I can see this view was not dissented from by any one of the appellate judges, and is of the greater weight as his judgment was delivered prior to the passing of the amending Act of 1886. It is indeed somewhat difficult to see how the Legislature could ever have been supposed to have intended to allow any person who was not a riparian , II.1 EASTERN TPS. BANK et al. v. VAUGHAN et al. 445 owner to abstract water from a stream to the possible disadvantage of 1907 riparian owners, except for such necessary purposes as cultivating some specified land bond fide occupied by the holder of the right FullCourt. which could not otherwise *be cultivated. It is, I say, difficult to Hunter, C.J. suppose that the Legislature ever intended that such persons should retain such rights as separate assets, and it would be in violation of the first principles of statutory construction to hold that the common law rights of riparian owners were thus destroyed or impaired beyond what the reasonable interpretation of the statute calls for, and in my opinion nothing turns on the first section of the Act of 1886, which was only declaratory so far as concerned the nature of the right. Accordingly it follows that when Vaughan and Mclnnes abandoned their pre-emptions, the water records obtained in connection therewith lapsed, and therefore it becomes unnecessary to discuss the other points. A somewhat analogous" case may be found in The National Manure Company v. Donald (1859), 28 L. J. Ex. 185. The plaintiffs are entitled to a declaration of priority with costs here and below. Martin, J.:—To the grounds upon which the plaintiffs attack Martin, Jj the validity of the defendants' water record objection is primarily taken that the plaintiffs have no status, but whatever may be said on this point it has no application to the contention of the plaintiffs that, even admitting the original validity of the record, it ceased j to exist when the defendants abandoned their pre-emptions on the 28th of October, 1889. This is the most important point in the ease, and it depends upon the meaning that is to be given to the I group of sections 43-7 under the heading " Water " in the Land Act, 1884, cap. 10, and sec. 1 of the Land Act, 1886, cap. 11. The defendants Vaughan and Mclnnes held separate pre-emption I records, and, as partners, a joint water record, dated 20th January, I 1888. On October 28th, 1889, they formally recorded their aban- t donment of their individual pre-emptions, relocated the same area I as partners, and on the same day applied for and recorded it as a I new pre-emption in their joint names to be enjoyed in partnership. I No proceedings were taken in regard to the water record, which was I allowed to stand in the name of " Vaughan and Mclnnes/' The affi- I davit they took and recorded at the time on applying for the new pre- lemption record stated that the land was "unoccupied and unreserved Crown land within the meaning of the Land Act . . . and we have staked off and marked such land in accordance with the provisions of the Land Act . . . ," etc., etc. VOL. II. M.M.C.—30. L 446 MARTIN'S MINING AND WATER CASES. [VOL. 1907 April 24. Full Court . Martin, J. Section 12 of the Land Act, 1884, provides that: The occupation in this Act required shall mean a continuous bond fide personal residence of the pre-emptor, his agent, or family, on land recorded by such settler. * * •* In the affidavit to be taken by sections 5 and 6 of said Act is this clause: "My application to record is not made in trust for, on behalf of, or in collusion with any other person or persons, but honestly on my own behalf for - settlement and occupation," which occurs in the said affidavit of defendants. • By said sections 5 and 6 it is provided that " if the applicant shall in such declaration make any statement knowing the same to be false he shall have no right at law or in equity to the land the record of which he may have obtained by the making of such declaration." 9 cite the foregoing to shew the importance that is to be attached tOA the statements in the affidavit and in view of them, and of the evidL ence of Vaughan, it is impossible to say that the original pre-emp-- tions were not as a fact abandoned. The appellants' contention is that the defendants' water record could only exist in connection with their pre-empted lands, even granting that a joint water record could be used for distinct pre- . emptions standing in individual names; in other words, that no one under the Act in question could hold a water record without' holding lands under section 43, and that upon his abandoning all his interest in lands, his water record lapsed. The whole tenor of the said group of sections is relied upon as establishing the intention of the statute in this respect. In answer, it is urged that though- there was a technical abandonment yet the hardship would be so great that the Court should avoid if possible giving full effect to appellants' contention; that once a statutory water record comes into existence the intention to make it appurtenant to the land must be clear; and that there was no intention in those days when water was abundant and settlers few to restrict its use to any particular parcel of land or for any limited period, or a continuous period; that section 1 of 1886, if it applies, is in favour of the defendants because the abandonment was tantamount to a conveyance to the Crown, and upon the issuing of the new pre-emption record ' to the defendants the old water record would vest in them; but that the section does not apply, and what happened in effect was a transfer of equities from the individuals to the partnership, or to the Crown with a transfer back and a recognition by the Crown, in which no one else is concerned, that each of the defendants had a mutual interest in said record as well as. in the lands. pi EASTERN TPS. BANK et al. v. VAUGHAN et al. 447 After a careful consideration of the said sections I have come 1907 to the conclusion that it is impossible to disguise the. fact that it p!1.._ was the manifest intention of the Legislature to restrict the holding FullCourt. of an agricultural water record to those persons mentioned in the Martin, J. opening words of section 43, viz.: " Every person lawfully entitled to hold land under the Act . . . and lawfully occupying and bond fide cultivating lands," arid the whole enactment is framed on that assumption^ Indeed it is otherwise impossible to give due effect to such expressions as: "divert so much and no more unrecorded . . water . . from . . any stream, lake or river adjacent to or passing through such land"; "reasonably necessary for such purposes "; " constructed a ditch for conveying the water to the place where it is intended to be used "; " lawfully occupying and bond fide cultivating as aforesaid," etc., etc. And the test of this view may perhaps be found in section 47, because, even assuming that a person other than a land-owner had obtained a water record he could not have the right of entry on the lands of others to effectuate said record, for that only "may be claimed by any person lawfully occupying and bona fide cultivating as aforesaid." The whole of this section, and indeed the 45th, clearly contemplates the ownership of some land on which the record is dependent. The word "divert" also is a somewhat peculiar one in that it has a continuous signification, and differs" in this respect from the act of recording which is done once and for .all. So that any person who has once exercised the right to record water in connection with his land given him under section 43, has done all in that respect that he ever can do, but in exercising the right to divert he is continuously invoking the assistance of the statute for the preservation of rights based upon occupation and cultivation. Again, take section 45. Only full effect to it can (in a case like the present of user for agricultural purposes) be given to the holder of a water record who is also a landowner, for the ditch conveying the water to the land (place) " where it is intended to be used " could not be enlarged as therein provided if the land in connection with which the ditch had been originally constructed was abandoned, for there was no longer in existence an}?- place (land) where the water was "intended to be used"—(cf. section 44 as to the notice u specifying all particulars . . including direction," . . etc.) Otherwise the ridiculous result would be that though a former owner would have no land, yet he would be able to keep in existence a water record reduced by his own act to possibly a mere nominal efficiency. And a further like result would be that a pre-emptor could record a water right in connection with his pre-emption, abandon that pre-emption the following day, and though not doing one hour's 448 MARTIN'S MINING AND WATER CASES. [VOL. 1907 April 24. Full Court Martin, J work in furtherance of the water record, keep it alive indefinitely to harass his neighbours and compel them or intending settlers requiring water to buy him out, who would be at his mercy, for, by section 46, "priority of right to any such water privilege in case of I dispute shall depend on priority of record." It seems to me that before recognizing rights so detrimental to the public welfare as being created by this statute we should have some language to shew that the Legislature contemplated them, but everything points to theC contrary view I have before expressed. As was said by the Supreme Court of Canada in a recent water case from the Yukon—Klondyke Government Concession v. McDonald (1906) ante p. . . ; 38 S. C E. 79, per Duff, J., at p, 91: " We ought not, unless compelled by intractable language, to attribute to the legislative authority an intention to promulgate a scheme so obviously futile, I and a construction leading to that result must, I think, be rejected." With respect to section 1 of 18*86, it is not necessary, from my standpoint, to consider it; but I may say that I should find some difficulty in applying it to this case for an abandonment of an interest is not, in any way that has been suggested, tantamount to a transfer or conveyance of it. A man who intends to transfer his property I necessarily maintains his interest therein up to the very moment the other party acquires that interest; but when he abandons his property he does so because it is his desire that all his interest therein may then and there terminate. In my opinion, therefore, the defendants' record ceased to exist on the abandonment of the pre-emptions and the plaintiffs are entitled to a declaration of the validity of their record and an injunction against the defendants. Nothing was said about damages before us. The appeal should be allowed with costs. Clement, J. Clement, J., concurred with Hunter, C.J. Appeal allowed. Note.—For other cases on irrigation, see Appendix D. Placer Mining in Yukon—Trespass Workings—Wilful Trespass Pendente Lite— Pay Dirt, Abstraction and Mixing Thereof—Colour of Bight—Measure of Damages—Boundary—Survey—Onus of Proof. Where pay dirt is abstracted by a trespasser who, pending litigation and without a bond fide belief in the validity of his title, deliberately invades an adjoining placer claim, and mixes its pay dirt with that of his own claim and keeps no accounts, he is not entitled to even the expenses of removing and washing- said dirt, for he has made it impossible to ascertain them. One who by his deliberate tortious act destroys the evidence necessary to ascertain the extent of the injury he has inflicted, must suffer all the inconvenience which is the result of his own wrong, and in this case the onus was upon the trespasser to account for all mixed material which he could not strictly prove had come from his own claim. Boundaries of placer claims in disputed areas should be marked by a surveyor where possible. Observations upon wilful trespass and bond fide belief in validity of title. Decision of the Territorial Court of the Yukon affirmed, Davies, J., dissenting. Appeal from the judgment of the Territorial Court of the Yukon Statement Territory affirming the judgment of Dugas, J., for the plaintiffs. The action was brought, under the circumstances stated in the judgments now reported, to recover damages for the invasion of the plaintiffs' placer mining location by the defendants and the value of a quantity of gold which the defendants had removed therefrom and converted to their oWn use. At the trial His Lordship Mr. Justice Dugas decided against the defendants, on the grounds that the trespass had been wilful and that there' had been no account kept of the gold taken or the cost of getting it, and awarded the plaintiffs, as damages in pcenam, the. value of all the gold shewn to have been taken from the plaintiffs' location and declined to make any deductions for the necessary cost of the workings and winning the gold from the material taken. Upon appeal to the Court in banc, His Lordship Mr. Justice Craig agreed with the trial Judge, while His Lordship Mr. Justice Macaulay considered that. the damages should have been assessed according to the milder rule applicable to trespasses committed under bond fide * Present: Duff, JJ. FlTZPATRIGK, Girouard. Davies. Idixgton 450 MARTIN'S MINING AND WATER CASES. [VOL. 1907 May 7, Supreme Court of Canada . belief in validity of title. The trial Court judgment, therefore, stood affirmed and the defendants appealed to the Supreme Court of Canada, and the appeal was argued on 11th March, 1907. Ewart} K.C, for the appellants. The element of a wilful taking Argument, with sinister intention is entirely absent in this case: Livingstone v.. Rawyards Coal Co. (1880), 5 A. C 25; McArthur v.. Cornwall (1892), A. C 75; BuBi Coal Mining Co. v. Osborne (1899), A. C 351, at page 364. Hilton v. Woods (1867), L. B. 4 Eq. 432; Jegon v. Vivian (1871), 6,Ch. App. 742; Ashton v. Stock (1877), 6 C D. 719; Kirkpatrick v. McNamee (1905), 36 S. C 152; Mayne on Damages (7th ed.), pages 46, 47, 418-419. The word "wilful," as applied to trespass to land, has been explained, in a recent case, by Wetmore, J., as meaning a trespass committed deliberately and intentionally, with a knowledge that there was no right whatever to do the act: Fleming v. H. W. McNeill Co. (1903), 23 Can. L, T. 312, at pages 314 and 315. The onus of proving that a trespass is fraudulent or unscrupulous is in each case upon the plaintiff: Trotter v. Maclean (1879). 13 C, D. 574. at pages 586, 587. There is no objection to refrain from dealing with property which one believes to be his own merely because somebody else claims it, and it cannot be asserted that there is a duty of abstention when a Judge has decided in his favour merely because the claim Continues to be asserted on appeal. In this case, abstention would have been detrimental to the defendants and would, have entailed inconvenience and expense. The plaintiffs did not ask for an injunction against the proposed operations, but stood by, allowed the defendants to proceed without protest, and now claim that the defendants were " wilful trespassers." It cannot be contended that, during the thirteen months between the judgments, the defendants should have abstained from using the disputed property in conjunction with their workings in that which it adjoined. If the courts below had decided the first point in the defendants' favour, they would not have awarded exemplary damages merely for -absence of an account of takings and expenses. Aggravation is immaterial. Whether an account is or is not kept, an unscrupulous trespasser receives no consideration, but the fact that an honest trespasser does not keep separate that which he firmly believes to be his own from his other property does not make him an unscrupulous trespasser. Holman, K.C, and Gwillim, for the respondents. The evidence justifies the findings of the trial Judge and "the damages are not ex- J m LAMB v. KINCAID. 451 1907 May 7. Supreme Court of Canada . cessive and should not be disturbed by this Court. Montreal Gas Co. v. St. Laurent (1896), 26 S. C 176; Senesac v. Central Vermont Ry. Co., ib. 641. The contention that. the trespass was " innocent" or " inadvertent " is completely negatived and all presumptions must go against Argument the defendants, who deliberately omitted to keep accounts .necessary to establish what quantities might come from the disputed area and the costs of getting out the dirt and separating the gold. Attorney-General v. Boyd, 3 Aust. Jur. R. 99. The doctrine of per con- fusionem applies: Lupton v. White (1808), 15 Ves. 432; Attorney- General v. Lansell (1884), 10 Vic. L. E. 84; Band of Hope and Albion Consols v. Young Band Extended Quartz Mining Co. (1882), •8 Vic. L. E. 277; Morrison on Mining Eights, pp. 280, 292. The trespasser prevents the owner working his own mine in his own way; Munra v. Sutherland, 4 Aust. Jur. E. 75, 139. The English rule as to cases of trespass in coal mines cannot be applied to placer mining claims; the former are uniform in production while the latter are variable and the whole methods and systems complicated both as to cQst, quantity and value of the gold recovered. This is pointed out in Attorney-General v. Lansell; supra. We also refer to Wild v. Holt (1842), 9 M. & W. 672, per Parke, B.; and Armstrong on Cold Mining (7 ed.), p. 88. The Chief Justice.- DUFF. -I agree with the reasoning of Mr. Justice . Judgment, i'lTZPATRICK, C. J. Gtrouard, J.:—I agree in the opinion of Mr. Justice Duff. Girouard, j. Davies, J. (dissenting).—The question we have to decide is as to Davies, J., the measure of damages to. be applied to the trespasses committed lssen ing' by the appellants on the plaintiffs' mining area, and for which they were sued. Are these damages to be assessed according to the severe rule, the rule in pwnam, whereby the trespasser is to be held liable for the full value of the gold taken by him out of the property trespassed upon, without making any allowance whatever for the cost either of taking out the pay dirt or afterwards of washing and -mining the gold from this pay dirt, or are they to be assessed according to the milder rule by which the necessary expense which it would have cost the plaintiff to obtain the gold had he mined and obtained it himself, would be allowed to the trespasser ? The trial Judge declined to make any allowance to defendants for these necessary expenses, and upon appeal, the Court was equally 452 MARTIN'S MINING AND WATER CASES. 1907 May 7. Supreme Court of Canada. Davies, J.: dissenting. divided, Craig, J., holding with the trial Judge, and Macaulay, J., deciding in favour of the application of the milder rule and allowing these necessary expenses. The grounds upon which Craig, J., supports his judgment are that the trespass was a wilful and deliberate invasion of the plaintiff's property. He proceeds upon the assumption that plaintiff was a wilful trespasser, and incorporates, from Armstrong on the Law of Cold Mining, a definition of wilful trespasser as one not in possession under any colour of title and not under any mistake as to facts though misapprehending the law. In another place he says that after reading Lamb's (defendant's) evidence carefully he had reached the conclusion that * * * he deliberately made up his mind to have this ground in spite of anybody and that with wilful intent to obtain an unfair advantage,, he entered upon this ground, took out the pay dirt, and deliberately confused it with his own. Having reached such a conclusion that the trespass was simply a deliberate fraud, of course there could not be any doubt as to the proper rule to apply in measuring the damages. I have, bearing in mind the very strong language of Craig, J., read carefully over Lamb's evidence, but I have not been able to reach any such conclusions from it as the Judge seems to have done. On the contrary, I think his evidence, read with all the other evidence in the case, shews that so far from ..being a wilful trespasser without any colour of title, the defendants entered upon the disputed claim, only after it had been judicially determined-by the Cold Commissioner, after a trial, to have been their property and within the bounds of their mining lease; that they carried on their operations of taking out the pay dirt from the disputed territory during the winter and spring after judgment had been given in their favour, tunnelling into the territory across a tunnel of plaintiffs, and that these operations must have been known to the plaintiffs who stood by and saw the property being worked by defendants, and contented themselves simply with appealing from the judgment of the Cold Commissioner, without applying for an injunction restraining the defendants from ■ working the disputed territory. It is true the judgment of the Gold Commissioner was more than a year afterwards reversed by the Court of Appeal, Craig, J., stating on that appeal that it was "merely a question of boundaries and consideration of the weight of evidence." Before this appeal was determined all that is complained of by the plaintiffs was done. It dees not, therefore, seem to me proper to speak of the plaintiff as a wilful trespasser, or deal with him as one in possession "not under any colour of right." II.] LAMB v. KINCAID. 453 He was in possession under .the judgment of a court of competent jurisdiction which declared the disputed territory to form part of his mining claim, and I cannot see that he ought to be treated as acting fraudulently or dishonestly, simply because he went on exercising rights declared to be his without any attempt to restrain him from doing so by his opponent who had appealed from the judgment simply. In the absence of any positive evidence to the contrary, and drawing reasonable inferences from the facts proved, I would conclude that what defendants did was done openly under a claim of right and bond fide, though in the ultimate result proved to be wrongful. In his judgment in the case of Trotter v. MacLean, supra, Ery„ J., at p. 587, after reviewing the different classes of cases in which the milder rule or the punitive rule was applied, citeoi with approval from the observations of Lord Hatherley in Jegon v. Vivian, supra, the following: I think that the milder rule of law is certainly that which ought to guide this Court subject to any case made of a special character which would induce the Court to swerve from it; otherwise on the one hand a trespass might be committed with impunity if the rule in pcendm were not insisted upon; so on the other hand persons might stand by and see their coal worked, being spared the expense of mining and getting it. 1907 May 7. Supreme Court of Canada. Davies, J., dissenting. Fry, J., then goes on to say: These observations are material in two ways. In the first place, they express the view of the Lord Chancellor that the milder rule is to be assumed when the propriety of applying the contrary rule is not shewn, and they throw the burden on him who asserts that the severer rule ought to be applied; and so his language has been interpreted by V.-C. Bacon, in, I think, more than one case. In the next place, Lord Hatherley points out that* the milder rule should be applied where persons stand by and see their coal worked. I think the plaintiffs here have failed to discharge the burden cast on them and that they should, under the circumstances, be classed with those who stand by and see their property worked. In the case of Livingstone v. Rawyards Coal Co., supra, in the House of Lords, Lord Blackburn stated the general rule where an injury is to be compensated, by damages to be that you should as nearly as possible get at that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. That must be qualified by a great many things which may arise, such for instance as by the consideration whether the damage has been maliciously done or whether it has been done with full knowledge that the person doing it was doing wrong. I can see no evidence whatever of malicious action on defendants' part and cannot, as before stated, reach the conclusion that the de- 454 MARTIN'S MINING AND WATER CASES. [vol. 1907 May Supreme Court OF Canai da. Davies, J., dissent ng. fendants, with the judgment of the Court of first instance in their favour, and with the plaintiffs ,in the position of persons looking on at defendants' operations and contenting themselves with a. simple? appeal, must necessarily be Held to have had " full knowledge " that they were doing wrong at the time the only Court that had passed^ upon the question had determined they could legally do what they were doing. Until evidence is given forcing the Court to that conclusion of wilful wrong-doing the plaintiffs have not discharged, the onus which Lord Hatherley thought lay upon them. My attention has been called by my brother Duff to the case of Peruvian Guano Co. v. Dreyfus. Brothers & Co. (1892), A. C 166, at p. 167, decided in the House of Lords. In that case it was held by Lords Watson and MacNaghten, after an elaborate and instnutive review by Lord MacNaghten of many of the cases like at common law and equity bearing upon the question now under discussion, that on general principles the defendants, though they had illegally detained- the plaintiffs' property, were entitled to repayment of the expenses properly incurred by them on account of freight and landing charged Whatever strength there might have been in the argument denying the right of the defendants to have any expenses allowed them for taking the pay dirt out of the disputed territory into the dump heap, I can see no just rule or reason which should preclude them from the reasonable expense of washing the gold out of the dump? heap. In any event that would have had to be incurred by plaintiffs^ if they themselves had taken out the pay dirt, and the cost can easily be estimated. To confirm the judgment appealed from would deny even that to the defendants. I do not think the explanation of the reasons why they did not keep a separate account of the working of the portion of the mining area under dispute, or why they mixed the pay dirt from that area with that from their undisputed area, unreasonable as was contended. It would no doubt have been better, and proper, had it been possible, to keep these accounts and not to have mixed the pay dirt with other, uncontradicted so far as I can see of the ; of dumping ground which defendants had, parating the pay dirt from the disputed disputed area, I am unable to draw the of the two was necessarily a wilful mix- ished by the application of the punitive >'ht have been some difficulty in reaching whole expenses to be properly allowed e already in, and without a further refer- he plaintiffs, respondents, pressed us, if t the defendants were entitled to be al- B.ut on the statem extremely limited extent o and the great expense of s area with that from the u conclusio ing whic rule of d a propel defendan that this ought to mages. estima ^ from of th eh ounsei opinion II.] LAMB v. KINCAID. 455 lowed such expenditure as it would undoubtedly have cost the plain- 1907 tiffs if they had mined and won the gold from the disputed area, '_iL ' not to refer the case back for further evidence but to make such Supreme Court of estimate from the evidence already in, I think we may under that Canada consent adopt the conclusion of Macaulay, J., and allow them 40 dav^~ j per cent, of the gross proceeds, as and for such necessary expenditure, dissenting, and as being under the evidence a fair, just and reasonable allowance. I would, therefore, allow the appeal with costs to that extent. Idington, J.—I agree in the opinion of Mr. Justice Duff. Idington, j. Duff, J.—The appellants and one Eandall were, in 1901 and Duff, J. .1902, the owners of a placer claim known as the Miller on Bonanza Creek in the Yukon Territory adjoining a claim known as the Krober owned by the respondents. A dispute as to the boundary between the claims was determined in February, 1903, by a judgment given in favour of the respondent by the Territorial Court of the Yukon Territory, reversing the judgment of the Gold Commissioner which had been delivered 11th January, 1902. Between the last mentioned date and the date of the delivery of the judgment of the Territorial Court, the appellants entered upon the area in dispute and abstracted large quantities of auriferous material, from which, after intermixing it with similar material taken from the Miller, they extracted the gold which it contained. The respondents brought this action to recover damages for the invasion of their claim by the appellants and the trial Judge awarded them $7,306.56, which the learned Judge found to be the value of the gold recovered by the appellants from the respondents' claim. On appeal. Craig, J., agreed with the trial Judge, while Macaulay, J., took the view that this sum should be reduced by a deduction equivalent to the expenses incurred by them as well in separating the gold bearing material from its natural bed as in removing it from the mine and in recovering the mineral it contained. Before us, the appellants' principal contention was that, not having entered upon the disputed area until they had first obtained the decision of the Cold Commissioner in their favour, they are entitled to the benefit of an allowance in accordance with the view of Macaulay, J. - It has for some years been the settled law applicable to eases of coal mining trespass, where the trespass is not wilful, that in estimating—when that forms an element in the damages to which the plaintiffs are entitled—the value of the coal abstracted, the coal is to 456 MARTIN'S MINING AND WATER CASES. [vol. 1907 May 7. Supreme Court of Canada. Duff, J. be treated as i/n sM and from its value at the mouth of the pit is to be deducted the cost of severing it from its natural bed and of bringing it to bank; where the trespass is wilful, the cost of severance is not allowed although as a general rule the cost of bringing it to bank is. 'it was not argued and, I think, cannot be maintained, that a trespasser upon a placer mining claim held under the mining regulations of the Yukon Territory is in a position more favourable than a coal trespasser under this rule. Whether he is in a less favourable position, it is, in the view I take of the facts, unnecessary to consider. I have come to the conclusion that, assuming the rule to apply in its entirety, the appellants are within that branch of it which governs cases of wilful trespass and are, consequently, not entitled to the benefit of the allowance claimed. No attempt, so far as I can find, has yet been made to define with precision the circumstances in which the Court will trea\ a trespass as wilful within the meaning of the rule; but this much is' sufficiently clear upon any examination of the cases—that, upon that point, the existence or non-existence in the mind of a trespasser of a belief in his title to the locus is not necessarily conclusive. In the leading case Wood v. Morewood (1841), 3 Q. B. 440 (n.), for example, the test which Baron Parke instructed the jury to apply was:—Did the defendant act fairly and honestly (not honestly only) in the bond right to do what he did, de belief that he had (not merely that he owned the coal taken). If the title is in dispute and the dispute is in course of active litigation an abstraction of mineral may be innocent or non-innocent, according to the circumstances; according, for example, to its effect upon the trespasser's adversary in respect of his position in the dispute, or upon the ad^- versary's rights, in the event of his success in litigation. If, in-that event—the adversary's success—the trespasser can compensate him fully in money and if the trespass places him at no disadvantage either in the dispute itself or in the ascertainment of compensation or otherwise, then the trespass may be perfectly innocent in all but a legal sense. Apparently such a case, in the opinion of Lord Hatherley, was disclosed by the circumstances of Jegon v. Vivian, supra, 6 Ch. App. 742; although I venture to think there will be few cases in which the appropriation by one party to a litigated dispute of the subject matter of the litigation, will not place upon that party a heavy burden of explanation. If on the other hand the act is an adverse act, designed to put the adversary at a disadvantage in the dispute, the mere fact that the II.] LAMB v. KINCAID. 457 trespasser believes he is acting within his legal rights will not, I think, bring him within the category of the innocent. Peruvian Guano Co. v. Dreyfus Bros. & Co., supra, per Lord Watson at p. 171. At least as effectively, would it appear to me, is he excluded from that category, if his act of trespass is designed, in the event of his own defeat, to deprive his adversary of, or to embarrass him in obtaining the whole or part of that to which he shall prove to have been entitled. In such a case he cannot be said to act "fairly and honestly," to use the language already quoted from the charge of Parke B. in Wood v. Morewood, supra; or % wholly ignorantly and innocently," in the language of Loi\ Blackburn in Livingstsone v. Rawyards Coal Co. supra, at p. 40; or without any "sinister intention," in the language of Lord Cairns, in the same case at p. 31. He is, in a word, a wrong-doer, in foro conscientice— not in the eye of the law merely. That the design of the defendants in committing the trespass complained of was to frustrate the plaintiffs' appeal hy depriving them, in the event of their success, of the fruits of success, is in my opinion the only view fairly consistent with the whole of the facts in evidence. A glance at the salient facts in the history of the controversy respecting the boundaries of the Miller and the Krober is necessary to enable us fully to appreciate the bearing of the evidence on this question. The controversy began in the year 1900. The Miller had been located by one J. A. Miller on the 11th June, 1898, and the Krober on the 21st of the same month. The Miller being the senior location, and the whole of the disputed territory being admittedly within the lines of the Krober, the question of title to that territory necessarily rested upon the determination of the boundaries of the Miller as originally located. In October, 1899, the owners of the Miller (of whom the defendant H. I. Miller was then one) had a survey and plan of it made by one T. D. Green. The plan, which so placed the boundaries of the claim as to embrace only a part of the area in question, was signed by J. A. Miller, the locator, and filed in the office of the Gold Com: missioner. In May, 1900, J. A. Miller, the locator, the present defendant H. I. Miller, and one Bowhay, who were then the owners of the Miller, commenced in the Gold Commissioner's Court a proceeding against the present plaintiff Krober, as owner of the Krober, claiming to have the boundaries of the Miller established in accordance with the survey. A date was fixed for the hearing, which, however, never took place, and the proceeding was afterwards dis- 1907 May 7 Supreme ,. Court of Canada . Duff, J. 458 MARTIN'S HIKING AND WATER CASES. [vol. May SUPRBl Court Canada Duff, J continued. In the same year—the precise date is not disclosed by the evidence—the same persons made an attempt to establish the e same boundaries through the procedure provided by a regulation promulgated in March of that year; under this regulation, if, after public notice of a survey of a placer claim for the period and in the manner prescribed by the regulation, there should be no protest against it lodged with the Gold Commissioner, the boundaries of the claim became defined for all purposes in accordance with the survey. Green's plan and survey were advertised; but a protest being lodged, the plan and survey were withdrawn. A fact of cardinal importance in connection with this survey is that it was based upon the theory that the initial post of the Miller as located by J. A. Miller,-was a post (described in the subsequent proceedings before the Gold Commissioner as post B.) which had already been placed, in locating the Newman, an adjoining claim; on the same theory another survey of the Miller, made by one Bar- well, apparently in 1900, at the instance of the same person, seems to have proceeded. On the 15th June, 1901, a third survey was made at the instance of the present defendants—then the owners of the claim—by Bar- well. This survey proceeded on a new theory. Barwell took as his starting point a place pointed out to him on the ground by J. A. Miller, the locator of the claim, as the situation of the initial post; and the claim as surveyed from that starting point embraced an area within the limits of the Krober (the area in dispute, that is to-'., say) very much larger than that falling within the lines of Green's* survey. On the day following the completion of this survey the action was commenced in the Gold Commissioner's Court by the present defendants against the present plaintiffs, which resulted* in the judgment of the Gold Commissioner of the 11th January, 1902, already^ referred to. The plaintiffs on the same day gave notice of appeal to the Territorial Court. The defendants having in the preceding November begun mining on the Miller—which had up to that time remained unworked—extended their operations after the Gold Commissioner's decision into the disputed territory, and before the hearing of the plaintiffs' appeal (on the 17th September, 1902,) had removed from it the mineral bearing material it contained. The defendants kept no account of this material (as to either its quantity or its value), or of the cost of mining, removing or washing it. On the contrary, they—as I have already mentioned—-intermixed it with similar material taken from parts of the Miller not in dispute and appropriated the gold recovered from the whole mass. On the 28th Sep- J II.l LAMB v. KINCAID. 459 tember, 1902, the day after the hearing of the appeal, the defendants having completed the washing of this material, discontinued operations and afterwards sold the unworked part of their claim for $10,000.00. Quo animo then did the defendants commit these trespasses ? I We have here no question of inadvertence or negligence. That the I defendants deliberately invaded the .territory* in litigation is now I conceded. One of two things must therefore be clear. The defend- I ants either rested on the decision of the Gold Commissioner as con- I ferring on them a title of absolutely assured validity and proceeded I with no misgiving as to the result of the appeal; or they disposed of I the product of the property with a clear perception that, if the plain- I tiffs should succeed, that would happen which has happened, namely, I that the plaintiffs in spite of their success would find that the subject I matter of the litigation had disappeared and with it all reliable evi- I dence of its extent and value. The first of these alternative propositions, Mr. Ewart, if I under- I stood him, asked us to adopt. The facts, I think, make it clear that it should be.rejected. This view of the state of mind of the defendants seems hard to I reconcile with the nature of the case presented before the Gold Com- I missioner. The case turned in substance upon the point whether J. I A. Miller in locating the Miller had taken as his initial post the I post " B." to which I have referred, or had placed an initial post in I the situation pointed out by him to Bar well for the purposes of the I third survey, in June, 1901. The plaintiffs' success depended upon I their ability to maintain the latter proposition. The Gold Commis- I sioner had accepted that view; but considering the evidence as dis- I closed by the materials before us in the light of the previous history I of the dispute, one finds little pointing to bond fides on the part of I the defendants; on the contrary, I regret to say there is much to sug- jgest a case inherently unworthy of credit. The record of the trial is. ■ not in evidence; but we have the reasons given by Craig, J., for his Ijudgment on appeal, in which .Macaulay, J., concurred; and from Isome observations made in the course of the judgment of Craig, J., I in this action, I assume that the view expressed by him had also the concurrence of Dugas, J., although it appears that the last mentioned Judge proceeded also on the ground that the defendants, by^ their course of action respecting the Green survey, were estopped from disputing the plaintiffs' contention, respecting fhe position of the initial post. The learned Judges in appeal did not of course see the witnesses; but subject to that, we may. I think, assume—otherwise doubtless the record would have been put in evidence—that, so 1907 May 7. Supreme Court of Canada. 460 MARTIN'S MINING AND WATER CASES. [vol. 1907 May 7. Supreme Court of (Janada. far as it could be got from the record, the effect of the evidence is • fairly stated by Craig, J. The learned Judge says: I have read the evidence in this case most carefully, and I have come to the conclusion that I cannot follow the learned Gold Commissioner on his finding on the facts. Miller, the first witness, is a most unsatisfactory witness, hesitating and uncertain and contradictory; he was on the ground once for a short time after he was sick, and the staking was done, and he paid very little attention to what he did. Christie, the important witness against him, was on the ground for a long time prior, knew it intimately, and had gone over it, and marked out the features of the ground. Warren, who confirms to a certain extent, is forced to admit upon examination that an affidavit made by him is untrue, and that he will not now support it, proving either that he was willing to sign anything laid before him without reading it, or that, having read it, he was willing to swear to it anyhow, in either case being a most unscrupulous witness. Then, again, Warren, in his evidence, swears that he can recognize a stake after it has been cut off by seeing the stem five inches from the ground. Any man who will swear to that state of things is not worthy of belief. Bow-I hay, who confirms Miller as to the stakes, was willing to have the plan of; Green and Barwell adopted, which is not the contention which he now sets up, and it is singular that he should have done that if he knew better at the time.^ Miller himself signs the Green plan and approved of the Barwell plan. Against this we have the direct evidence of Hawkins, who made the first survey and found post B. with Miller's name upon it, being the only post which had the name. We have Sinclair's evidence of conversation where Miller draws a plan and shews the claims exactly as Krober now contends they are, with the Newman claim jutting up into the Miller claim. We have the evidence of Green who found the post B. We have the evidence of Jephson, who found that post. We have the evidence of Krober who saw the post. We have also the evidence of Kincaid, Ware and Rost, who either saw the post or had conversation with Miller and admitted the evidence is preponderatingly in favour of Krober's contention as to what the Miller survey was. With the transactions of 1899 and 1900 in their minds—the Green plan signed by J. A. Miller, the Barwell plan approved by him, the proceedings (in the Gold Commissioner's office and by public notice) to establish Green's survey—can we assume that Miller and Lamb regarded as inexpugnable the. case described by the learned trial Judge in the passage I have quoted? At least it would seem that their conduct in disposing of the product of the encroachment as they did calls for some explanation in addition to the suggestion that they acted on a blind faith in an unimpeachable title. Two explanations are offered by counsel. It was impracticable, it is said, first, to distinguish the material removed from the disputed area; and secondly, either to deposit it a separate mass on the dump or separately to sluice it. It is not necessary I think to consider the exculpatory validity of these explanations; they fail because they have no basis of fact. As to the first, the evidence shews clearly that the defendants' workings crossed at three places only the boundary between the territory admittedly within the Miller and that in dispute. It is obvious that every carload of material excavated from the last mentioned territory must II.] LAMB v. KINCAID. 461 have passed one of these three points. That the points could have been ascertained with exactitude and marked on the ground by any competent surveyor is also obvious. Lamb, having in his examination in chief sworn that in order to distinguish the cars proceeding from the disputed area the constant attendance of a surveyor under ground would be necessary, in cross examination admits—what must be very plain—that the marking of the underground boundary would have involved very little expense or trouble. As to the. other explanation offered, there is, some evidence given by Frank Miller in support of it; but we are relieved from considering in detail the evidence of this witness by the admissions made on cross-examination on this point also by the defendant Lamb himself, who says that the sole obstacle in the way of the suggested precaution was a little additional expense. It is to be observed that while these explanations are put forward by counsel to account for the action of the defendants in blending the material, we have no such explanation from the lips of the persons who were directly concerned in it. There are three persons whose bond fides in committing the trespasses under consideration is in question. No one of these offers any explanation of his conduct. The defendant Miller and Eandall (who owned a one-fourth interest and acted as foreman in charge of the operations down to 22nd July, 1902), were not called as witnesses; they were both, it seems, absent from the territory during the trial; but why was their evidence not taken in the way usually followed in such cases? Lamb, the only one of these persons who gave evidence at the trial, not only attempts no justification of the trespass, but professes ignorance of the fact of the trespass. The proceedings in the present action indeed seem to me to afford some light upon this question of intention. A scrupulously honest man, having in full belief that he was exercising his rights, taken that which has proved to belong to another, would, speaking generally, evince some desire to make restitution. The defendants—being as they say in that case—first, by their pleadings denied their act of trespass; then, to shew that this was no formality of pleading, by their counsel at the trial, in answer to the Court, said that the fact of the trespass was seriously put in issue; and the defendant Lamb in the witness box thus fences with the question: Q. What was done with the gravel and other pay material taken from the ground in question? A. If we had anything to do with it, it was sluiced with the rest. SUPREME Court of Canada. Q. The first ground taken out would be the ground nearest the encroachment or the encroachment if you took itf vol. ii. m.m.c.—31. 462 MARTINTS MINING AND WATER CASES. [vol. 1907 May 7. Supreme Court of Canada. Duff, J. A. Yes, it would be the first to come out. Q. What was done with the first, ground that was taken out? A. Sluiced. Q. When? A. I think somewhere about June. Q. 1902? A. Yes. Q. Had you then finished your operations in the vicinity of the ground in dispute or .did you continue them on after June ? A. They worked continuously right along. Q. Was the ground included in the disputed ground worked out up to June? A. I don't know anything about it. This conduct lends no support to the theory that the defendants acted without any sinister intention. Indeed the course of the defendants throughout the whole controversy, the proceedings in 1900 —the volte face of 1901—the nature of the case before the Gold Commissioner—the intermixture of the products.—the failure to keep separate accounts—the conduct of the present litigation—would- appear not to be reconcilable with the hypothesis that they acted with the intention of taking the benefit of that only which should prove to be rightfully theirs. But it is contended that the plaintiffs are within the principle stated by Lord Hatherly in Jegon v. Vivian, supra, and by Fry, J., in Trotter v. McLean, supra, which, it is said,, precludes the owner from disputing the defendants' right to deduction for the expenses of severance, where he, having a knowledge of the trespass, has taken no steps or has been dilatory in taking steps to stop it. It is said that the failure of the plaintiffs to apply for an injunction brings them within these cases. - It is plain that the conduct of the owner in standing by inactive while the trespass proceeds may bear upon the trespasser's right to claim the deduction in one or both of two ways. The owner's inactivity or dilatoriness may, in the circumstances of particular cases, be an element of some importance to be considered in deciding upon the character of the trespasser's intention. On the other hand, independently of any. question of the trespasser's intention, the owner may by his laches disentitle himself to the full measure of relief which the Court might otherwise award. In Trotter v. McLean, supra, Fry, J., found that the conduct of the owners during a certain 1 period amounted to acquiescence in the trespass, but he held that | this period of acquiescence came to an end upon a simple notice to | the trespasser unaccompanied by legal proceedings. In Jegon v. Vivian, supra, the trespass was held in the circumstances not to be a wilful trespass; and the actual decision turned; upon that, although no doubt the dilatoriness of the owner's pro-j n.] LAMB v. KINCAID. 468 ceedings was an element which influenced Lord Hatherly's mind in the consideration of the question of bond fides. On the. other hand, Lord Hatherly does lay down or suggest w\);\\ seems to be a clear principle—viz.: that where the owner has stood b}r inactive and allowed a trespass to proceed, especially if it is proceeding under a bond fide belief in title, it would be wrong to refuse the. trespasser the benefit of the allowance. ^My difficulty is to apply to the circumstances of this case anything decided or any principle enunciated by Lord Hatherly or by Lord Fry. The plaintiffs did not stand by inactive; on the contrary they promptly launched their appeal and it cannot be suggested, nor is it, that the prosecution of the appeal was dilatory. Such a case is, I think, very remote from anything within "the scope of Lord Hatherly's language. Still less can it be maintained that there is any evidence that anything done by the defendants misled the plaintiffs into the belief that the defendants were acquiescing in the course taken by the plaintiffs. The evidence upon which the fact of the defendants' knowledge of the trespass} rests is meagre, and not without ambiguity. But .if that evidence proves anything, it proves this, that Randall, a co-owner with the defendants and the foreman in charge of the operations, informed the plaintiff Kincaid that the defendants did not intend to work the disputed territory until after the determination of the appeal. Had it been suggested at the trial that the plaintiffs ought to have proceeded in the manner now suggested, it is impossible to say what might have proved to be the explanation of the fact that the plaintiffs did not so proceed. Many explanations occur to one, but such speculation is profitless; and I do not think the plaintiffs can be called upon properly at this stage to justify their course from the evidence upon the record. A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it. Browne v. Dunn (1894), 6 E. 67, at p. 76; Connecticut Fire Ins. Co. v. Kavanagh, (1892), A. C. 473, at p. 480: The Tasmania (1890), 15 A. C. 223, at p. 225; Ex p. Firth (1882), 19 C. D. 419, at p. 429; Karunoratne v. Ferdinandus (1902), A. C. 405, at p. 409; Loosemore v. Tiverton and North Devon Ry. Co. (1882), 22 C. D. 25, at p. 46; Page v. Bowdler (1894), 10 T. L. R. 423; Borrowman Phillips & Co. v. Free and Hollis (1878), 48 L. J. Q. B. 65, at p. 68. But it is contended that the defendants are, at least, entitled to the expenses incurred in removing and washing the product of their trespasses. It is, I think, for the purposes of this appeal, a 464 MARTIN'S MINING AND WATER CASES. [vol. 1907 May, 7 URT OF INADA. sufficient answer to this contention to say—in accordance with the view of Macaulay, J.—that the defendants have, by their own wrongful acts, made it impossible to ascertain these expenses. • The Court is not called upon to speculate in such a case for the benefit of deliberate wrong-doers; they come within the wholesome rule, that if a man by his deliberately "tortious act destroys the evidence necessary to ascertain the extent of the injury he has inflicted, he must suffer all the inconvenience which is the result of his own wrong. Armory v. Delami/rie (1721), 1 Str. 505. In such a case, to quote the language of Sir Lancelot Shadwell, V.C., in Duke of Leeds v. Amherst (1850), 52 Eng. 595; 20 Beav. 242, at p. 596:— In my opinion, this case is to be judged not merely by the simple circumstances of evidence which are found in it, but the reference to those great principles of justice, which, as -I apprehend, have always governed mankind, and have been acknowledged from the earliest times. It apjpears to me that it is a very right thing to hold in one's contemplation, on deciding such a case as this, - what has been the uniform opinion of mankind upon such a general case as the - one now presented in this cause. I take it, that the general wisdom of mankind has acquiesced in this; that the author of a mischief is not the party who is to complain of the result of it, but that he who has done it must submit to have the effects of it recoil upon himself * * * "All those who take the sword shall perish by the sword." " The mischief-maker shall suffer for the mischief he has created." I do not overlook the method followed by Macaulay, J., but in having regard to the views I have expressed, it is obviously inapplicable. The allowance of 40 per cent, made by the learned Judge must, be taken to include the cost not only of removing and treating the deposits, but of drifting and digging as well; and further indeed— if the analogy of the terms uupn which the laymen worked was consistently pursued—of all the excavations required to work the ground1". There is absolutely nothing before us by which, assuming that in the view taken by the learned Judge his method of ascertaining the whole cost of working the deposits is a valid method, one can distinguish the cost of removing or washing from the other expenses. The case calls for a further observation. The learned trial Judge seems to have proceeded on the assumption that the burden was upon the plaintiffs to prove the value of the mineral taken from their claim. The burden which by this course was placed upon the defendants was much lighter than, in the circumstances of this case, they had a right to expect. In the view I have taken of their conduct, they were, under the long settled doctrine of the English law, accountable for as much of the mixed products of the two claims as they did not strictly prove to have come from their own. Warde V. Aryre (1615), 2 Buls. 323; White v. Lady Lincoln (1803), 8 Ves. 363; Lupton v. White (1808), 15 Yes. 432; 2 Rent 466 MARTIN'S MINING AND WATER CASES. [VOL. 1907 May 7. Supreme Court of Canada.* McLean v. The King. (38 S. C. 542; 10 Ex. 390.) Placer Mining—Yukon Mining Regulations—Subaqueous Mining — Dredging Lease—Conflict with Grant to Placer Miners—Exclusive Possession—Demurrer—Damages—Pleading—Petition of Bight. A petition of right is not demurrable which alleges that the Crown, after granting a dredging lease to the petitioners giving them exclusive mining rights in certain cases but subject to the rights of other free miners under the mining regulations, subsequently, and while said lease was in full force, granted to said free miners, and placed them in possession of the same areas. 'The allegations in said petition do not involve the further allegation that the areas had been granted to free miners pursuant to the mining regulations to which the lease was subject. The fact stated by the petition was that the Crown through the Gold Commissioner granted the areas in question to free miners and maintained them in possession in derogation of the petitioners* right of peaceable enjoyment, which averment supported the petition. Decision of the Exchequer Court reversed,,Davies and Idingtot., J J., dissenting. Statements Appeal from the following judgment of the Exchequer Court of Canada, Burbidge, J., sustaining a demurrer to a petition of right. The material facts appear in the judgments. Judgment bel >w, Burbidge, .1 October 1st, 1906. This case comes before the Court on a demurrer to the petition of right, the ground of demurrer alleged being that the petition does not disclose any cause of action against the respondent. The petition sets out a lease made on the 23rd day of March, 1898, by Her late Majesty Queen Victoria, as represented by the Minister of the Interior, whereby Her Majesty, subject to certain rents and conditions, granted, demised and leased to the suppliant for a term of twenty years the exclusive right and privilege of taking and extracting by subaqueous mining and dredging all royal and base metals, other than coal, from certain lands covered by water therein mentioned. The demise was made subject to the regulations of the 18th day of January, 1898, respecting the issue of leases for minerals in the beds of rivers in the Provisional District of Yukon, a copy of which was appended to the lease, and the terms of which are set out in the petition of right filed. From these it appears, *Present:—Fitzpatrick, C.J.. and Girouard, Davies and Idington. JJ. II.] Mclean v. the king. 467 among other things, that the lease in question was granted subject to the rights of all persons who had received or who might receive entries for claims under the Placer Mining Eegulations. The suppliant's complaint is that lie has never been put in possession of the lands leased to him, and this complaint he states in this way: " 2. That subsequent to the granting of the said lease, and while the same ] was in full force, the Crown, through the Gold Commissioner at Dawson, granted to free miners the said area covered by said suppliant's lease as placer mining claims, and had placed in possession of same the said placer mines. " 3. Although your suppliant paid a yearly rental as mentioned in the said lease, at the dates _and times 'mentioned, and has demanded possession of said areas mentioned in the said lease, and was entitled to the same, yet Her Majesty, represented by the Minister of the Interior of Canada, refused to give up the same to your suppliant, whereby your suppliant was deprived of the same by granting of the same to the placer miners and has sustained damages thereby." And then the petition concludes with a prayer that the suppliant I recover such damages as were sustained by reason of the lands mentioned in the said lease being granted to free miners as above mentioned." The substance of the complaint, as I understand it, is that the suppliant has been unable to get possession of the lands in question because entries for claims therefor have been allowed to be made under the Placer Mining Eegulations. But that, as has been seen, was provided for in the lease, and one of the conditions on which it was granted. Therefore it seems to me that the demurrer to the petition should be sustained. In that view of the case it is unnecessary to consider the further question as to whether the petition could have been maintained if there had been no express stipulation that the lease was to be subject to the rights of persons who might thereafter receive entries for claims under the Placer Mining Eegulations. There is another provision of the lease to which reference ought perhaps to be made, by which it was provided as follows: "Her Majesty does not in any way warrant that there shall be a sufficient quantity of water in the said portion of the said river to admit of operations under this lease, and that the lessee, his executors, administrators and assigns shall have no right to compensation should it be found impossible for that or for any other reason to carry on such operations, it being hereby declared and agreed that this lease is taken by the lessee entirely at his own risk." The petition shews that the reason the suppliant did not get possession of the lands leased to him, and in consequence was prevented from carrying on operations under the lease, was that the areas covered thereby were granted to placer miners under the Placer Mining Eegulations. But that contingency was provided for by the express terms of the lease, and having happened the suppliant is not entitled to any compensation by reason thereof. 1907 May 7. Supreme Court of Canada. Judgment below, •URRIDGE, J. 468 MARTIN'S MINING AND WATER CASES. [VOL. 1907 May 7. Supreme Court of Canada There will be judgment for the respondent upon the demurrer to the petition of right, and the costs will follow the event. Mr. Latch ford asked that in case the demurrer was sustained the suppliant should have leave to amend his petition of right, and such Judgment leave is given upon the usual terms. below, BURBEDOE, J Judgment accordingly. Petition dismissed. Appeal. The suppliant appealed and the case was argued on the 11th and 12th of March, 1907. Shepley, K.C, for the appellant. Chrysler, K.C, for the respondent. Cur. adv. vult. 7th May, 1907. Judgment, The Chief Justice.—This is an appeal from a judgment of the O.j, ' Exchequer Court maintaining a demurrer to a petition of right in which the petitioner (now appellant) alleges that: 1st. By indenture made in duplicate 23rd March, 1898, at Ottawa, Her late Majesty did grant, demise and lease unto the petitioner (now appellant) for a period of twenty years, the exclusive right and privilege of taking and extracting by subaqueous mining and dredging.all royal and base metals other than coal to be found within a certain defined area on Dominion Creek in the. Yukon Ten it cry. 2ndly. The grant was made subject to the* mining regulations of January 18th, 1898, which are incorporated in it; and also provides that if that portion of the creek covered by the lease is subsequently found to have been granted to another tnen there shall be priority according to the record. There is also exclusion of warranty as to sufficiency of water, and there is to be no claim for compensation if it is found impossible for that or any other reason to carry on operations under the lease which is declared to be taken entirely at the lessee's risk. After setting out the lease and regulations in full the petitioner alleges: That subsequent to the granting of the said lease, and while the same was in full force, the Grown, through the Gold Commissioner at Dawson, granted to free miners the said area covered by the said suppliant's lease as placer mining claims and had placed in possession of the same the said placer miners. J n.] McLEAN v. THE KING. 469 The petitioner further alleges that, having paid the stipulated rental Her Majesty refused his demand to give him possession of the areas granted. To this petition the respondent chose to plead by way of demurrer. By the judgment of the Exchequer Court the demurrer was al- *1j lowed and the petition dismissed with costs. In effect the judgment appealed from decides that: The mining regulations incorporated in the lease permitted a grant to be made to placer miners of the areas covered by the lease, and if the result of the alleged grant to the placer miners was to prevent the suppliant from carrying on his operations, the petitioner had no right to any compensation under the final paragraph of the lease which provides that: Her Majesty does not in any way warrant that there shall be a sufficient quantity of water in the said portion of the said river to admit of operations under this lease, and that the lessee, his executors, administrators and assigns shall have no right to compensation should it be found impossible for that or for any other reason to carry on such operations, it being hereby declared and agreed that this lease is taken by the lessee entirely at his own risk. With this judgment I cannot agree. The demurrer assumes and is predicated upon the assumption that all the facts alleged in the petition are true. It cannot, therefore, be argued in this proceeding that the act of the Gold Commissioner was the unauthorizd act of a public servant for the consequences of which the Crown is not responsible. The fact which njust for the purposes of this appeal be taken to be as stated by the appellant is, that the Crown, through the Gold Commissioner, granted the areas in question to free miners and maintained them in possession. By the pleading the action of the Gold Commissioner in the premises is not repudiated—it is, on the contrary, adopted by the Crown. In my opinion it is equally impossible to hold, with the Judge of the Exchequer Court, that a conflicting subsequent grant would be a reason ejusdem generis with insufficiency of water sufficient to defeat the suppliant's claim under the last paragraph of the •lease. What is the true effect of the document declared upon, whether it be called a lease, a grant or a licence? Considered in its entirety it is in my opinion clearly an exclusive grant made for good and valid consideration of all the royal and base metals except coal which the grantee might extract during twenty years by subaqueous mining and dredging from the submerged beds or bars in the river below low water-mark with a licence to go upon the premises for that purpose, and also to cut such ungranted timber belonging to the Crown as was necessary to carfy on his operations. 470 MARTIN'S MINING AND WATER CASES. [vol. 1907 May 7. Supreme Court of Canada. Fitzpatrioi C.J. The complaint is that the Crown in derogation of the right of peaceable enjoyment, during the continuance of the agreement, interfered with rights vested in the suppliant by transferring the areas' granted to placer miners who were put in possession of them by the Crown, the grantor, to the detriment of the suppliant, the grantee. On the issues raised by this demurrer, and these are the only issues before us, w<> are not called upon to consider whether or not it was as a fad. possible hi carry on dredging operations because of the insufficiency of the water. The suppliant's complaint—that the Crown has disposed of the area embraced within his lease in the manner described1—does not, I think, involve an allegation that the area has been granted to free miners under the regulations relating to placer mining or by the Gold Commissioner professing to act under them. It is, therefore, unnecessary to consider how far the suppliant's rights under this lease are subject to those of free miners holding placer mining claims under those regulations. The general policy of the Act of Parliament and regulations is to encourage gold mining by giving a certain fixity of tenure t all persons who are willing under a lease to occupy Crown lands for that purpose,- and to carry on their operations efficiently and continuously, and this policy would obviously be defeated if the exclusive r ghts granted to the suppliant for a valuable consideration, payment of rent and royalty, might be revoked or impaired at any time during the continuance of the grant at the will of the minister. In the WVtfidsor & Annapolis Railway Company v. The Queen j and the Western Counties Ry. Co. (1883), 10 S. C 335. at p. 366, Chief Justice Eitchie said: I think the true intention of th( i pa have, the full, jene granted for a c ontir be disturbed by the the agreement t o op implied underta king from its grant SO t( to act in deroga tion a breach of its agre ;onstruction of this agreement or grant is, and the clear! irties as indicated thereby was, that the suppliants houldl ficial and continuous enjoyment of the privileges thereby! iuous period of twenty-one years, and that they should not! Crown in such enjoyment, and as a consequence, to enable! >erate according to the intention of the parties, there is an! on the part of the Crown not to do anything to derogate! o enjoy, the Crown, in my opinion, being no more entitled! of its grant or to defeat its own act and not to be liable foi| eement, expressed or implied, than a subject. I am of opinion that the appeal should be allowed with costs. Girouard. J. Girouakd, J., agreed with the Chief Justice. Da vies, J., Davies, J. (dissenting).—The regulations under which th leas J i8s«n ing. ^n question in this action was expressly issued provide that it II.] McLEAN v. THE KING. 471 was subject to such regulations and should be deemed to contain all such stipulations, provisos' and conditions on the- part of Her Majesty and the lessee and all such exceptions and restrictions as are provided and contemplated by such regulations. One of these stipulations and restrictions provides that the rights granted by the lease extend f only to the submerged beds or bars below low water-mark" within the area generally described in the lease. The petition does not allege that there were any such submerged beds or bars within the leased area, or that, if there were, that the placer miners' grants complained of covered them or parts of them. I think, under any circumstances, the absence of such an allegation would be fatal. But, apart, from that altogether, I think the appeal must fail and the judgment of the Exchequer Court be confirmed, because of the absence of any allegation of active interference by,or on the part of the Crown or with its authority in the doing of the acts complained of by the suppliant. He took the lease expressly, as it says, at his own risk. It covered an area or disconnected areas which might or might not be capable of being operated. In my opinion the Crown would not be liable in damages because some placer miners' licences granted subsequently to such a lease as that of the suppliant overlapped or impinged upon some or more of the areas which suppliant might be entitled to the exclusive right of dredging in. The suppliant had his remedy against such placer miners if they interfered with his prior rights of exclusive dredging in any such areas leased to him. The Crown did not remove suppliant from or interfere with his possession of the areas demised by the lease. It would be a novel and dangerous doctrine to lay down that the mere giving of a subsequent lease or licence to a placer miner under cover of which the subsequent licensee might occasion prejudice to a prior grantee, entitled the latter to sue the Crown for all damages he might suffer. The result in all cases of overlapping, if such a doctrine was upheld, would be, I venture to •think, without precedent and productive of the greatest and gravest injustice. The lessee would probably conclude that an action for damages against the Oown in any such case for alleged damages would be much more profitable than carrying on the operation of dredging the river. The Crown acts and must necessarily act through its officers. For their personal wrongdoing it is not responsible, and I do not see how we could, consistently with the uniform jurisprudence of this Court, hold the Crown responsible in damages if the officials authorized to act within the law and the regulations, by error, in- SUPREWE Court of Canada. Da vies, J., dissenting. 472 MARTIN'S MINING AND WATER CASES. [VOL. 1907 May 7. Supreme Court oj Canada Davies, J. dissenting! advertence or sheer negligence in violation of the regulations, gave a second lease or licence to a miner the boundaries of which overlapped a prior licence, without any further act or interfeience by the Crown-..- The remedy of the holder of a legal licence against a trespasser or wrongdoer or subsequent lessee of the lands leased to him is plain. But his rights do not embrace a right of action for damages against the Crown simply and merely because one of its officials wrongfully or inadvertently granted licences to miners containing descriptions of areas in whole or in part already granted. Such subsequent licences to the extent that they infringe upon prior legal ones and as against them are simply inoperative and of no legal force. In this case it is not alleged that the Crown actively or directly interfered with any rights the suppliant had under his grant. It is not alleged that the Crown gave any special or other authority to the Gold Commissioner in the Yukon to give placer mining leases of any part of the area of the river or stream granted to the suppliant. If it had done so a question of its liability would of course have at once arisen, as it did arise in the case of the Windsor and Annapolis Railway Co. (1886), 11 A. C 607. But no allegation of the kind is alleged in suppliant's claim demurred to. The Gold Commissioner who is alleged to have granted the placer mining leases complained of must be held to have done so by virtue of his general powers and subject to the regulations by which he was bound. The petition does not contain any statement of any special action, authority given or interference by the Crown in the matter. If the Gold Commissioner acting under his general powers and subject to the regulations inad- vertehtly or negligently violated these regulations and gave placer mining licences on areas previously granted for subaqueous mining, that would not make the Crown in any way liable. It would simp y be the tortious act of the Crown's officer for which the Crown wou d not be liable. In the Windsor and Annapolis Railway Case, supra, which I venture to think has no application #at all to this case before us, Lord -Watson delivering the judgment of the Privy Council, at page 615, after reciting the facts shewing that the forcible taking of possession : of the road was not simply the tortious act of Mr. Brydges alone, as contended for by the Crown, said: It is plain, therefore, that Mr. Brydges acted with the full authority of the Government, and merely carried ont their instructions, which were issued in j the belief that it was within their legal right to put an end to their agreement | with the appellant company. It is not possible, in my • opinion, on the statements made n | the suppliant's petition, to make any such contention with rega d that the appeal should be dismissed and the judgment below cc firmed. Idington, J. (dissenting),—This is an appeal from the Exche-iD1N(^ quer Court against a judgment maintaining a demurrer to a petition dissen of right. The petition set forth at length a lease made by Her late Majesty granting, demising and leasing to the petitioner lit and privilege of taking and extracting by subaqueous mining royal and base metals, other than coal, from the la by water * * * commencing at a stake planted at the mouth of Sulphur Creek, where it" empties into Dominion Creek, thence down stream five miles. This grant and demise was made "subject to the rents, stipulations, provisos and conditions" thereinafter " reserved and contained," and was to be held for twenty years from 23rd Marcl A.D. 1898. The instrument in the very first sentence of it, states that it is made under and by virtue of the regulations of January 18th, 1898, governing the issue of leases to dredge for minerals in the beds of rivers in the provisional district of Yukon. And immediately following the habendum and redendum clauses were the following provisos: Provided always that this demise is subject to all and every the provisions of the said "regulation of January 18th, 1898, a copy of which is hereinundei appended and shall be deemed to contain all such stipulations, provisos i ditions on the part of Her Majesty and the lessee, and all such exce] restrictions as it is provided or contemplated by the last mentioned regula tions, that leases issued thereunder shall contain which regulations for purpose shall be read, so that the word " lessee " therein shall be taken to elude the executors, administrators and assigns of the lessee. Provided further that if in consequence of any cause whatsoever a lease is found to comprise a portion of a river included in another lease, the lessee whose application was first recorded in the Department of the Interior shall take priority. Provided further that Her Majesty does not in any way wa that there shall be a sufficient quantity of water in the said portion j river to admit of operations under this lease, and that the lesse administrators and assigns shall have no right to compensation should it be found impossible for that or for any other reason to carry on it being hereby declared and agreed that this lease is taken by the lessei at his own risk. The regulations thus above referred to and incorporated into the lease are set out in the petition. 474 MARTIN'S MINING AND WATER CASES. Lvol. 1907 May 7. Supreme Court ov Canada. I dington, J dissenting. Nos. 3 and 4 of the said regulations have an important bearing on the questions raised herein. They are as follows: 3. The lessee's right of mining and dredging shall be confined to the submerged beds or bars in the river below low water mark, that boundary to be fixed by its position on the first day of August in the year of the date of the lease. 4. The lease shall be. subject to the rights of all persons who have receive^ or who may receive entries for claims under the placer mining regulations. The second and third paragraphs of the petition contain the suppliant's grievances, and are as follows: 2. That subsequent to the granting of the said lease, and white the same was in full force, the Crown, through the Gold Commissioner at Dawson, granted to free miners the said area covered by said suppliant's lease as nlacer mining claims and had placed in possession of same the said placer miners. 3. Although your suppliant paid a yearly rental^, as mentioned in the sai||| lease, at the dates and times mentioned, and has demanded possession of said areas mentioned in- said lease, and was entitled to the same, yet Her Majesty, represented by the Minister of the Interior of Canada, refused to give up the same -to your suppliant, whereby your suppliant was deprived of the same by granting of the same to placer miners and has sustained damages thereby. The prayer is that he recover such damages as were sustained by reason of the lands mention&Km in the said lease being granted to free miners as above mentioned. A careful consideration leads me to conclude that the lease gives only that which cannot be granted by law to others under the placer mining regulations. I have set forth above the material parts of lease, regulations and pleading that I think justify my coming to that conclusion. To discourse upon these extracts to one reading them with the eyes of a lawyer would seem a waste of time. If my conclusion is the result of an erroneous reading I cannot j cure it—by more words. That brings us, however, only part of the way. The question then arises, .do the paragraphs Nos. 2 and 3 of the petition mean in law more than that grants to free miners have j been made since the lease was given to the suppliant? The presumption is in favour of the Gold Commissioner having acted' legally. If anything further occurred to rebut this, it should be set forth so that the Court, asked to pass upon this pleading, might understand wherein the officer of the Crown had erred, and how the Crown might be held responsible for such error. Much stress 1 h&,s been laid upon the words " the said area covered by said suppliant's lease." II. 1 McLEAN v. THE KING. 475 It may, for aught set forth in the pleading, have been found out on the 1st of August, 1898, when the five miles of the river came to . be delimited as provided by the regulation No. 3, that there was then no river; or at all events, no "submerged beds or bars below low- water-mark," in that part of the river now in question. j The beds in the river may have become subjects of operation for a placer miner. How are we to interpret this pleading? Must it not be against the pleader? If the systems that the names of Stephen and Mitford respectively. stand for are inapplicable, and ancient rigidity is not to be applied, surely the pleader must yet set forth his claim with a reasonable degree of certainty. If we use the words "area covered by the suppliant's lease" in the popular sense, it might fairly be read as that area which, at the execution of the lease, was covered by a large stream and was supposed by all partie's concerned as likely to have on the first of the then ensuing August a volume of water wherein dredges might move or be moved about and usefully operate. If that is to be taken as the area meant in the pleading, as it reasonably may be in the plain ordinary meaning, then it may in the legal result have vanished and given legal place to another use and right that could legally be created over the same supposed area. The taking possession, even physical possession, of the same area' might be in such case justifiable. But the word U possession" does not always in law mean physical possession. ' If we are to read the words "granting" and "granted" in their original strict legal meaning together with the meaning that the word ""possession" in such a connection bore, then it meant any thing but land in possession. It was some incorporeal hereditament that lay in grant. A reversion, for example, might He in grant. Such I take it, is all the appellant is strictly entitled to claim as the meaning here of the words " granted . . . possession " in this paragraph 2. The meaning of the word " possession " being thus properly restricted, when we are asked, without any facts set forth in the plead1- ings to justify us in doing so, to impute to the officer or officers of the Crown an improper and illegal course of conduct, the appellant must fail to. derive any benefit from the word " possession" used in this paragraph. He fails, if the popular meaning is given some of the words relied .on, and fails when the strictly legal meaning is given others. And if he can claim throughout a popular meaning for all he still fails. Supreme Court of Canada. UNGTON, J. dissenting. 476 MARTIN'S MINING AND WATER CASES. [VOL. 1907 May 7. Supreme Court of Canada. Idington, J dissenting. Again, paragraph 2 may be fairly read as counsel for the appellant seemed willing to concede, as if the word " thereby" had been inserted in the third line before the words " had placed in possession." The prayer being only for damages by reason of the lands . . . being granJted ... as above mentioned, seems to make this clearly so. Assuming that to be the correct reading, I cannot find any claim for damages that can be founded on issuing such a licence as a placer miner is entitled to get—even if over the same area. It would only operate therein when the appellant's rights, if any, ceased, and so far as they ceased. It would be just what the 4th Eegulation incorporated into the lease allowed the Crown to do. The 2nd proviso above quoted covers what this 4th Regulation may not in this regard. The line of cases cited by appellant's counsel seem distinguishable, if not quite inapplicable to such a grant, as this so called lease more aptly described I venture to think as a licence, implies; unaccompanied by any actual physical possession, taken by anybody, or if supposed to have been taken, yet not shewn to have been either directed by or adopted by the Crown in derogation of the appellant's rights. Paragraph 3,1 think, must fail with paragraph 2, for the essential part of it relies on paragraph 2 in using the words whereby your suppliant loas deprived of the same by the granting of the same to placer miners, etc. It is useless unless rested upon paragraph 2, or shewn that the Crown was bound to put appellant in possession. No authority was cited for binding the Crown, merely by the force of the grant or demise to free land granted or demised from mere trespassers. I would, however, if I found Coe v.. Clay (1829), 5 Bing. 440, followed by Jinks v. Edwards (1856) 11 Ex. 775 (cited for this purpose and pressed upon us), at all applicable to this case and this instrument (even if treated as far as possible as a demise) with the implied covenant that word carries. with it in a lease, have to consider the foyce and binding effect of these cases in relation to such an interest as created here. The express language of the first proviso above quoted, relieves me from all such necessities and considerations. It plainly says that .the regulations shall be deemed to contain all such stipulations * * * on the part of Her Majesty * * • * at it is * * * contemplated * * * that leases issued thereunder shall contain. J 478 MARTIN'S MINING AND WATER CASES. [VOL. 1907 L J une 11. Full Court, Stephenson v. Stephenson. Placer Mining—Hydraulic Lease—Pleading—Dispute Note—Special Defences— I Free Miner's Certificate — Becording Interest — New Defence on Appeal- Jurisdiction. Defences setting up failure to comply with the provisions of the Placer Mining Act must be specifically pleaded, e.g., lack of a free miner's certificate, and failure to record interest. Unless exception is taken at the trial to the jurisdiction of the County Court it^will not be entertained on appeal. Gelinas V. Clark (1901), 1 M. M. C. 428, followed. Decision of Calder, Co. J., affirmed on the facts. Statement Appeal by defendant from the judgment of His Honour Judge Calder, in the County Court of Cariboo, Mining Jurisdiction, delivered on 2nd November, 1906, in favour of, the plaintiff. The appeal came on to be heard at Yictoria, on 11th June, 1907, before Martin, Morrison and Clement, JJ. The action arose out of conflicting interests in an hydraulic mining lease on which certain findings of fact were upheld, but the case is reported only on certain legal points. The only dispute note filed was this: DISPUTE NOTE. I intend to defend this action on the following grounds. That the complainant abandoned his interest in the property, also there never was any agreement re payment of any wages except bedrock payment. Dated this 27th day of September, 1906. G. E. Stephenson,. Defendant. Argument. Bloomfield, with him Wilson, ~K.G.y for the defendant, appellant: —The judgment, cannot stand because, inter alia, it is not shewn that the plaintiff had a free miner's licence which is the root of his right to any mining interest, and the Court will of its own motion require this proof; each party must give " affirmative evidence of title;" nor can he have any interest in the subject matter of this j action because he has no recorded interest in writing as required by cap. 38, sec. 31 of the Placer Act Amendment Act of 1901. Martin, K.C.:—You have not set up these defences in your dispute note and cannot do so now—Hogg v. Farrell (1895), 1 M. M. C. 79, 6 B. C. 387, and all the cases mentioned in the note j thereto at p. 83 of 1 M. M. C. 480 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. *Jud. Com. < Privy Council . Esquimalt Waterworks Co., Ltd. v. City of Victoria. [12 B. C. 305; 23 T. L. R. 763; (1907) A. C. 499.] Water and Watercourses—Biparian Bights—Water Clauses Consolidation Act, 1897—Water Privileges Act, 1892—Esquimalt Water Works Act, 1885. and Extension thereof in 1892—-Water Becord—" Unrecorded Water "—" Unappropriated or Unoccupied Water "—" Diversion or Appropriation "—Water " Ascertained Set Out or Appropriated"—Statute—Construction of Public and General Act as against Special and Private One—English Law, Intro- duction of into British Columbia. The Water Clauses Consolidation Act has no application to the undertaking of the Esquimalt Water Works Company as authorized by its private acts. By constructing dams, artificial channels, pipe lines, a reservoir, collecting water, making plans and surveys and similar works, varying according to circumstances, in connection-with certain authorized streams, the said water company sufficiently " ascertained, set out, or appropriated" the waters in question under its said Acts. The said Acts are private Acts in the sense that they confer special rights and impose special obligations upon a particular company for special purposes, and a subsequent general statute, the application of which might seriously interfere with the rights granted by special legislation and prevent the fulfilling of statutory obligations, cannot have been intended to override said special legislation. The waters so collected by +he water company are vested therein and do not cease to be so at any point within the limits of ascertainment, and therefore such water at present supplied to the power house of an electric company at a p'bint on the water company's property is not after it passes the' power house " waste" or " unappropriated or unrecorded" water, though no use is now made of it thereafter, and therefore the defendant municipality could not record it on plaintiff's lands under s. 40 of the Water Clauses Consolidation Act. The term " unrecorded water " in sec. 2 of the Water Clauses Consolidation Act, means " all water which is not held under and used in accordance with a record under this Act, or (with a record) under the Acts repealed hereby, or (is not held) under a special grant by public or private Act." The expression " and shall include all water * * * unappropriated or unoccupied or not used for any beneficial purpose," does not refer to water already declared to be outside +he definition of unrecorded water. Sec. 4 is clearly meant to preserve existing rights of appropriation or diversion under former Acts. The present dispute was not subject to the decision of the Commissioner under . said Water Clauses Consolidation Act, and the appellant was entitled to an adjudication upon its contention that it was altogether outside the said Act. A water record is a " record " or entry in an official book kept for the purpose by the Commissioner giving necessary particulars. Decision of the Full Court of British Columbia reversed^ and that of Duff. J., restored. Per Duff, J.—The English law of riparian rights was introduced into this Province by the early settlers. Appeal from the judgment of Duef, J., in an-action tried before him at Victoria on the 4th, 5th, 6th, 7th, 8th, 9th, 11th, 12th and * Present: Lord Robertson, Alfred Wills. Lord Collins, Sir Arthur Wilson and Sn J ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 481 13th of December, 1906, wherein the plaintiff Company obtained an injunction restraining the City from recording under the Water Clauses Consolidation Act, 1897, any of the waters of Goldstream river for municipal purposes, and declaring that the. waters of the said river are, by virtue of the Company's incorporating Act of '1885, and amendments, vested in the Company. The action arose upon an application of the City for a record of water under the Water Clauses Consolidation Act, 1897; a record was attempted to be made by the City mpon Goldstream at a point below the power house of the Tramway Company, whither the water is carried by pipes, and from which point the waters of Coldstream flowed again into the bed of Coldstream and thence into Saanieh inlet. The Water Company applied for and obtained an injunction restraining the City from proceeding with this application for a record. The Water Company was incorporated in 1885, and by its Act of incorporation became entitled to divert the waters of Thetis lake and Deadman's river for the purpose of supplying the inhabitants of Esquimalt and surrounding peninsula and with power to supply along the pipe line, and the district in the Act mentioned with water. In 1892, the Water Company obtained a further Act, authorizing it to divert the waters of Coldstream. The City had, in 1873, obtained an Act authorizing the appropriation of water at any point within a radius of twenty miles of the City for the purpose of supplying the needs of the inhabitants of Victoria. When, in 1892, the Water Company obtained its extending Act, provision was made protecting the prior rights of the City. This provision was set forth in the Water Company's Act of 1892, in two sections. Section 1, after giving power to the Water Company to i appropriate the waters of Coldstream, stated that this power was I " subject, however, to any grant of rights, privileges or powers arising under the provisions of the Corporation of Victoria Water Works Act, 1873 "; and in section 9 of the Act it was declared that "nothing in this Act shall be construed as in any way limiting or derogat- [ing from any grant or privilege accorded to the Corporation of the [City of Victoria under the provisions of the Corporation of'Victoria Water Works Act, 1873." The "Water Company's Act of 1892 extended the field within which the Company might obtain water in order to supply the needs of the inhabitants of Esquimalt and peninsula surrounding. On the 10th of May, 1892, the Water Company made a contract with the National Electric Tramway & Lighting Company for a supply of water to that company for power purposes. This contract 1907 July 31. Hrivy Council . 482 MARTINTS MINING AND WATER CASES. [vol. 1907 July 31. Privy Council. dealt with the question of power entirely. Thereupon the Water Company constructed a reservoir. By reason of defaults in the National Electric Tramway Company the water was never taken by that company. • On the 25th of September, 1897, another contract was ; made by the Water Company, this time with the British Columbia Electric Eailway & Lighting Co., the successors in title of the National Electric Tramway & Lighting Company. This latter contract dealt entirely with the question of the supply of water for power purposes. The Tramway Company were thereby enabled to generate polwer )Eor distribution within* the City of Victoria. The Water Company constructed further reservoirs, so that they were enabled, in August, 1898, to furnish tjie Tramway Company with power at the Company's power house on Goldstream, just above the point where the City sought to obtain a water record. The waters of /Qoldstream had never been utilized by the Water Company between 1892 and August, 1898> for any purpose, except as aforesaid. The Water Company's original Act of incorporation authorized that Company to regulate the distribution and use of water " on all places " and " for all purposes " by section 12. The plaintiffs' evidence went to shew that the Water Company had constructed its works (1) with a view to augmenting its supply to the peninsula; (2) to meet an obligation their 1892 Act imposed on them of supplying water to the City of Victoria; (3) that the pipes were not laid to bring in the water to the peninsula, because if the City required the supply, they were entitled to larger pipes, and a more extensive outlay would be necessary than if the water were brought to the peninsula alone. The point taken by the City was that up to August, 1898, the waters of Goldstream *had never been put to a beneficial use by the Water Company within the meaning of the Water Clauses Consolidation Act, 1897. In June, 1897, the Water Clauses Consolidation Act became law. After reciting that jyater not then held under Acts of the Legislature then existing, or thereafter to be passed, had been vested in the Crown in 1892; that water privileges might be obtained under various statutes of the Province, and that water and water-power in the Province not under the exclusive jurisdiction of the Parliament of Canada, so far as such water-power remained unrecorded and unappropriated on the 23rd of April, 1892, was declared to be vested | in the Crown in the right of the Province, the Act proceeded to declare that it was necessary and expedient to provide for the due I conservation of all water and water-power so vested in the Crown, j and to provide means whereby such water and water-power might be I ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 483 1907 July 31. Privy Council . made available to the fullest possible extent in aid of the industrial development and of the agricultural and mineral resources of the Province. This Act still further recited that it was expedient to enact an exclusive and comprehensive law governing the granting of water rights and privileges and to provide and regulate the mode Statement- of acquisition and enjoyment of such privileges, and the royalties payable to the Crown in respect thereof. The Act gave a definition of unrecorded waters as follows: " Unrecorded water shall mean all water which for the time being is not held under and used in accordance with a record under this Act or under the Acts repealed hereby, or under special grant by public or private Act, and shall include all water for the time being unappropriated or unoccupied or not used for a beneficial purpose." Luxton, K.C, and Peters, K.C. (R. T. Elliott, with them), for plaintiff company. W. J. Taylor, K.C, and Bodwell, K.C.5 for defendant corporation. Cur. adv. vult. 23rd May, 1906. Duff. J.:—The plaintiff Company sues to restrain the defendant municipality from proceeding with applications to the Lieutenant- Governor in Council for a grant of water records authorizing the diversion of water from Goldstream river and its tributaries, under the Water Clauses Consolidation Act, 1897, for the purpose of supplying water to the inhabitants of the municipal area. The Company's case necessarily rests upon the contention that it has acquired rights in these waters which would be invaded by the grant of such records, and that there is no authority under the statute to make any grant having that effect. It will be necessary to discuss fully the bearing of the Water Clauses Consolidation Act, 1897, and of the Water Privileges Act of 1892, upon the rights of the parties to this action; but I proceed first to consider the nature and extent of the rights acquired by the Company in the streams in question as if those rights fell to be ascertained without regard to the provisions of either of these enactments. The Company was incorporated in 1885 by an Act of the Legislature of British Columbia. By that Act it was, inter alia, provided in section 8: ;t The Company and their servants may, and shall have full power to desig ve, hold and generally maintain, manage ai construct, build, purchase, improve, conduct water works and all building., of Esquimalt and the peninsula adjacent therewith connected in the tov materials, machinery and appliances Judgment be ow, Duff, J. 484 MARTINTS MINING AND WATER CASES. [vol. 1907 July 31. Privy Council .- Judgment below, Duff, J. thereto, bounded by the -Victoria Arm and Harbour, the Straits of Fuca and Esquimalt Harbour, and other parts as hereinafter provided. " 9. It shall be lawful for the Company, their servants, agents and workmen, from time to time, and at all times hereafter, as they shall see fit, and they are hereby authorized and empowered to enter into and upon the land of any person or persons, bodies politic or corporate, in the town of Esquimalt, or within ten miles of the said town, and to survey, set out and ascertain such parts thereof as they may require for the purposes of the said water works; and to divert aVid appropriate the waters of Thetis lake and Deadman's river, and its tributaries, as they shall -judge suitable and proper, and to contract with the owners and occupiers of the said lands, and those having an interest or right in the said waters, for the-purchase of the same respectively, or of any part thereof, or of any privilege that may be required for the purposes of the I Company, and for the right to take all or any timber, stone, gravel, sand and other materials from the aforesaid land or any lands adjacent thereto, for the use and construction of the said works. [Provisions as to arbitration proceedings in the event of dispute.] " 10. The lands, privileges and waters, which shall be ascertained, set out, or appropriated by the Company for the purposes thereof as aforesaid, shall thereupon and forever after be vested in the Company * * * and all such I water works, pipes, erections and machinery, requisite for the said under-1 taking, shall likewise be vested in and be the property of the Company." This Act was in 1892 amended by a statute which enacted in section 1: " The Esquimalt Water Works Act, 1885, shall be so construe.! as to give power to the Esquimalt Water Works Company to divert and appropriate so much of the waters of Goldstream river and tributaries as they may deem suitable and proper, subject, however, to any grant of rights, privileges or powers arising under the provisions of the Corporation of Victoria Water . Works Act, 1873." In section 3: " All the rights, powers and privileges conferred on the said Company by the Esquimalt Water Works Act, 1885, shall extend and apply to the appropriation and diversion of the waters-of the Goldstream river and its tributaries, and also to the conveying of sUch water .from-the place or places of diversion to the town of Esquimalt and the peninsula adjacent thereto, as defined by section 8 of the said Act, in the same way and to the same extent as if such. rights, powers and privileges had been originally conferred by the said Esquimalt Water Works Act." And in section 10: " The rights and privileges conferred by this Act are subject to and have been conferred only upon the following conditions: | (a) Should the Corporation of the City of Victoria at any time so desire, the Council of the Corporation may, by resolution, notify the Esquimalt Water Works Company to furnish them with a supply of water from the works of the Esquimalt Water Works Company, and it shall thereupon be obligatory upon such Company, within fifteen months after the service of such notice on the Company, to supply and deliver, at some point west of Victoria Arm, within the limits of the City of Victoria, into the water mains of the City of Victoria, under a pressure (at sea level) of not less than one hundred and ten pounds to the square inch, such quantity of pure water up to the amount and for the period specified in such resolution, or any subsequent reso- ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 485 lution of a similar nature, as will satisfy the needs of the Cc the City of Victoria, the Corporation paying the Company thereto of six cents per thousand gallons; and the Company shall supply Corporation of the City of Victoria for the purpose of fire prob rate of $4 per month for each fire hydrant which the Corporatioi to connect with the Company's pipes, and shall supply water for washing gutters, or for the filling of tanks for fire protection puri charge." (b) [Proviso as to quantity per diem, and period of supply.] (c) [As to right and liability of the Corporation in .taking such quantity.] or not taking Privy Council. Judgment below, Duff, J. .Since the passing of the amending Act of 1892, the Company bas purchased the lands (except some small areas still vested in the • Crown) traversed by the streams mentioned in the third section; the lands occupied by the lakes which are the headwaters of these streams, and (except the areas mentioned) the whole of the watershed drained by them. Shortly after the passing of the Company's amending Act, the Company entered into a contract with the National Electric Railway Company, binding itself to supply to the Railway Company at a point on Goldstream river, certain quantities of water at a fixed minimum head for the generation of electric energy, and partly to equip itself to carry out this contract, partly to provide for a possible advance in the demands of water to supply the district served by the Company's system, partly to provide means to meet the inchoate obligation imposed by, section 10 of the Company's amending Act, in the event of that obligation becoming operative, the Company proceeded to establish a reservoir at the lower of a series of lakes which formed the headwaters of s Goldstream river proper, and this work was completed in the year 1893. The Railway Company having passed into liquidation, the arrangements with that Company lapsed; but in 1897 the Company entered into a contract with the British Columbia Electric Railway Company, binding itself to provide water for the same purposes, in increasing-quantities, up. to 15,000,000 gallons daily, as the Electric Company should require it, at that company's power-house at Gold- stream river, having a specified minimum head. In consequence of that contract the Company has spent large sums of money in establishing reservoirs at the remainder of the series of lakes mentioned,. and providing for works necessary to enable the Company to fulfil the requirements of the contract. Down to the present time no part of the waters of Goldstream river or its tributaries, has been applied by the Company for the purpose of supplying the inhabitants of the district referred to in the Company's principal Act with water for consumption; and in point of fact, with the exception of the application to the purposes of the contract mentioned, these waters are not actually applied by the Company to any beneficial purpose. Before 486 MARTINTS MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment below, Duff, J. discussing the question as to the rights in respect of these streams acquired by the Company under these Acts, it is necessary to deal with a point raised by Mr. Bodwell, which bears generally upon the ques* tions arising in this case. It is argued that the English law relating to riparian rights never became a part of the law of this Province. The first Imperial statute relating to Vancouver Island appears to be 12 & 13 Vict. cap. 48, which is reprinted in the Revised Statutes of British Columbia of 1897. The Act does not contain, nor does there appear to have been passed before the union of the colonies of British Columbia and Vancouver Island in 1866, by Parliament or other law-making authority, any enactment containing any express provision for the establishment of the law of England as the law of the last mentioned colony. In these circumstances, we must apply the common law rule relating to the introduction of English law into colonies acquired by settlement. That rule is authoritatively stated by the Privy Council in Cooper v. Stuart (1889), 14 App,. Cas. 286 at pp. 291 and 292. Now, the rule of law which regulates the rights of riparian owners in so far as we are concerned with it may be stated in the language of Lord Wensleydale in Chasemore v. Richards (1859), 7 H. L. Cas. 349, at p. 382. This rule, founded, as pointed out by Farwell, J., in Bradford Corporation v. Ferrand (1902), 2 Ch. 655, at p. 661, in the jus natures, and worked out on the principle of cequm et bonum, in my opinion cannot be said to be less applicable to the circumstances of the colony of Vancouver Island in 1849 than the circumstances of other colonies into which it has never been doubted it wa^ carried by the settlers who established those colonies. By the operation of the common law rule it was carried into the Australian settlements: Lord v. The Commissioners for the City of Sydney (1859), 12 Moore, P. C. 473; into the American settlements: Tyler v. Wilkinson, 4 Mason 397; Lux v. Hag gin (1886), 69 Cal. 255, 10 Pac. 674, and by the Act of 1792, which but enacts the common law rule in express terms, it was introduced into Upper Canada: Booth v. Ratte (1890), 15 App. Cas. 188. So far as I can ascertain, it seems never to have been -doubted that with the general body of | English law it was introduced into all the colonies forming the Dominion of Canada, except Quebec. By an ordinance promulgated in 1867, after the union of the colonies pf British Columbia and Vancouver Island, it was enacted' as follows: " From and after the passing of this ordinance, the civil and criminal aws of England, as the same existed on the 19th day of November, 1858, and so far as the same are not from local circumstances inapplicable, are and shall be in force in all parts of the colony of British Columbia." I ; II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 487 I see no reason for thinking—even supposing the municipality's contention can, as regards the mainland of the province, be supported —that this ordinance made inapplicable to Vancouver Island any part of the body of English law which theretofore was the law in that colony; indeed, if not from local circumstances, inapplicable to that colony, it must, in my opinion, be treated as coming within the ordinance. I am unable, moreover, to' agree with Mr. Bodwell that even as regards the mainland the rule in question comes within the language of the exception. I do not find that the point has been the subject of express decision, although in a dissenting judgmem in West Kootenay P. & L. Co. v. Nelson (1906), 12 B. C. 34 (the majority of the Court expressing on this point no opinion) Martin", J., states his view to be that the rules of English law on this point have been, since 1870,* the law of the whole colony of British Columbia; and the judgment of Drake, J., in Columbia River Co. v. Yuill (1892), 1 M. M. C 64; 2 B. C 237, proceeds upon that view, although the point was not argued. The judgment of Gwynne, J., mMartley v. Carson (1889), 20 S. C R. 634 at pp. 658 and 659, is addressed to the construction of the Land Act, and does not touch the point. Mr. Bodwell, indeed, relied upon certain provisions of the Land Act first appearing in the B. C. Ordinance of 1865 authorizing the diversion of natural streams and lakes for specified purposes in support of his contention. As to these enactments, omitting for the present the consideration of the legislation of 1892 and 1897, it is sufficient to say in this connection that whatever modification of the rights of riparian proprietors they should be held to have effected, they clearly cjo not amount to a declaration of the non-existence of such rights, and in my opinion they cannot fairly be regarded as affording any indication that the view of the legislative authority accorded with that now" advanced on behalf of the municipality. By their transactions, the Company acquired in the streams in question the riparian rights incident to the ownership of the lands purchased, subject, as to some of the parcels, to certain reservations in the grants from the Crown, which I shall refer to more particularly later. But I do not think that as regards its rights in respect of the streams in question, the Company can be treated as a riparian proprietor simple. The Company's Acts, in my judgment, treat Goldstream river and its tributaries as entities which are the subjects of proprietary rights. The principal Act provides for the purchase 1907 July 31. Privy Council. Judgment be jw, Duff, J. *Note.—By reference to that case (reported herein, ante. pp. 335, 348) it will be seen that there is a misapprehension here respecting " since 1870." A.M. 488 MARTIN'S MINING AND WATER CASES. [vol. 1907 July 31. Privy Council. Judgment below, Duff, J. by the Company of the rights and interests of persons having rights and interests in these streams as streams. In other words, it provides for that which at common law, would be a legal impossibility: Stockport Waterworks Co. v. Potter (1864), 3 H. & C. 300; the severance of the right of ans owner of land traversed by a natural stream in the stream itself from his proprietary interest in the land. This interest, once acquired by the Company for the purposes of its statutory undertaking, either by contract or by compulsory appropriation under the provisions of the Act, becomes, in my opinion, vested in the Company, and is thenceforward held under a statutory title, the nature and extent of which must be ascertained from the provisions of the statute itself. The statute, in short, to use the language of Brett^ L.J., becomes the charter of the Company's rights. The Legislature, in other words, for the purpose of enabling an undertaking of public interest to be effectually carried on, conferred upon the Company the power to acquire for the purposes of that undertaking, rights which, as separate from the ownership of land, are unknown to the common law, namely, the whole sum of the rights of a riparian proprietor in, or in respect of a natural stream, of water flowing through or past his land, and gave to the Company in respect of the rights so acquired, a parliamentary title. In the language of the Act itself, the waters so appropriated by the Company for the purposes thereof, were thereupon and forever to be vested in the Company. I was, at first^ strongly impressed with the force of Mr. Bodwell's contention that to effect an appropriation within the language of the statute there must be a severance of some definite portion of water from the stream itself, or that, at all events, an appropriation can take effect under the .provisions of section 10, from which I have just quoted, only to the extent to which it is accompanied by a reduction into possession of a definite quantity of water. This contention harmonizes fully with the use of the word " appropriate" in the earlier cases, which proceed upon the principle that running water is entirely publici juris, and subject to be made the property of the • first occupant who reduces it into possession by abstracting from the stream; and with the principles governing the acquisition of water rights in natural streams in many of the Pacific States of the United States of America. But the contention, I have come to the conclusion, is not well founded. It is true that exclusive property in I water in a running, stream, as so many pints or so many globules pf fluid, can only be acquired by the abstraction of the- fluid from the stream. In Embrey v. Owen (1851), 6 Exch. 353, Parke, B., at p. 369, uses this language: ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 489 " The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the wate'r itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and. that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it." And in Lyon v. Fishmongers Company (1876), 1 App. Cas. 662, at p. 683, Lord Selborne says: " The title of the soil constituting the bed of a river does not carry with it any exclusive, right of property in the running water of the stream, which can - only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it." And see John White & Sons v. J. & M. White (1906), A. C 72, at p. 80. But there is a sense in which a stream as a stream may properly be spoken of as the subject of ownership. In Williams v. Morland (1824), 2 B. & C 910, at p. 914, Holroyd, J., said: " Running water is not in its nature private property. At least it is pri- vate property no longer than it remains on the soil of the person claiming it." ■ In Bush v. Trowbridge Waterworks Company (1875), L. R. 19 Eq. 291, at p. 293, Sir George Jessel, M.R., referring to the language of the 6th section of the Waterworks Clauses Act, 1847, says: " Meaning, as it appears to me, the owners or occupiers of the portion of the stream with which the company are interfering." Also see in the same case on appeal, 10 Chy. App. 459, per James, L.J., at p. 462. [Reference to Stone v. Corporation of Yeovil (1876), 2 C. P. D. 99, at p. 108; Girdwood v. Belfast Water Commissioners (1877), 1 L. R. Ir. 28, per Chatterton, V.C] And the Legislature can, of course, create a new species of property : Medway Co. v. Romney (1861), 9 C B. N. S. 575. In that part of the 10th section which I have quoted, the statute seems to me to be dealing with the appropriation of the streams themselves. It is to be observed that the Legislature speaks of the appropriation of waters and of interest in waters, not an appropriation of water. I agree with the view expressed by Chatterton, V.C, in the case I have just quoted, p. 40,^ that the "word " waters " in the plural would mean something different from the actual water passing through the streams. But aside from this that part of section 10 seems to me to be merely the complement of those parts of section 9 which provide for the acquisition by the Company of rights in land and in the streams in question. The principal Act first authorizes the Company Judgn beloi Duff, 490 MARTIN'S MINING AND WATER CASES. [vol. 1907 July 31. Privy Council . Judgment below, Puff, J. to acquire these rights, and provides means by which, in the absence of an agreement, they may be acquired compulsorily; and then proceeds to declare in section 10 expressly that these rights, purchased by agreement, or compulsorily taken, shall be vested in the Company forever. The word " appropriate" itself, in its natural meaning, signifies to make one's own, that is, to take to oneself to the exclusion of others: Imperial Dictionary. One does not readily see why I an interest ,or right in a stream taken under section 9 is not an appropriation of that right or interest. The Company takes it to itself to the exclusion of the former proprietor; in the fullest sense appropriates it. A flood of light has been thrown upon the construction of this statute by a' decision of the Judicial Committee of the Privy Council, reported since the argument: Saunby v. London (Ont.) Water Commissioners (1906), A. C 110. The Act which the Court had to construe in that case is, in terms, almost identical with that now under consideration, that is cap. 102 of the Statutes of Ontario (1873). The plaintiff in the action, who was a mill owner, complained that the water-power of his mill was interfered with by the water commissioners, who, at a point on the River Thames, below his millsite, had penned back the river for the purposes authorized by their enabling Act. The commissioners sought to justify under their Act, contending that the plaintiff's only remedy was to invoke the compensation clauses. Lord Davey, in delivering the judgment of the Judicial Committee, at p. 114, said: [which his Lordship read]. This opinion manifestly proceeds upon the view that under the statute in question, the commissioners were not authorized to deal with the streams in question in such a manner as to invade the legal rights of others. This is the view expressed by Sedgewick and Killam, JJ., who dissented from the opinion of the majority of the Supreme Court of Canada in opinions founded largely upon the fact, it would seem, that the statute makes no provision for the compensation of persons whose property is merely injuriously affected as distinguished from persons whose property is taken. [The learned Judge quoted the Temarks of Sedgewick, J. (1904), 34 S. C. R. 650, at p. 657.] In short, before doing anything which will injuriously affect the rights of others in land, or in the waters in question, the Company must acquire such rights. The Act does not authorize the Company to divert these waters, or sensibly to diminish their flow until it has first acquired the rights of the riparian proprietors, of which, apart from the statute, such Acts would be an invasion. The Company, that is to say, does not acquire the right to divert as against the lower n.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 491 righ t to the 1907 wat er of the July 31. ation jr,th of any- s acquir- Privy Council . r th 3 statute Judgment below, pord " appro- Duff, J. riparian until it has first appropriated that riparian's flow of the stream, and no abstraction or diversion of th stream in itself can, under the statute, effect an appropr body's rights. It is, in the sense I have mentioned, namely, ing of rights in the streams and waters referred to linde for the purpose of the Company's undertaking, that the wc priated " is used in the passage I have just quoted from Lord Davey's judgment; and I quote from Sedgewick, J., at pp. 656, 657 and 658, of the report of the judgment in the Supreme Court of Canada, in further confirmation of my view: [which the learned Judge proceeded to do]. As I have pointed out, it is not open to dispute since the decision in Saunby v. London (Ont.) Water Commissioners, supra, that without the consent of riparian proprietors., the Company cannot, under its statutory powers, divert any of the waters in question for the purpose of supplying the district of Esquimalt, or for the purposes of carrying out any obligation to supply* the City of Victoria, which might arise under section 10 of the amending Act of 1892, without first acquiring the rights of the riparian .proprietors below the point of diversion; and, indeed, it is equally apparent that as against non-assenting riparian owners below its reservoirs, the use of the waters of Goldstream river in the manner in which they have been used since 1897, for the purpose of supplying water for conversion into electric energy to the B. C. Electric Ry. Co.—'-involving the impounding of the sources of supply, the checking of the flow at some ; seasons, and the augmenting of the flow at others—would be a wrongful interference with the rights of such proprietors. It is not, I . think, material for our present purposes whether the statutory powers of interference with the flow of Goldstream river authorize such interference for the purpose of carrying out an arrangement like that rftade between the Company and the B. C Electric Ry. Co. It is not open to dispute that* since 1898 the Company has, in the bond fide belief that in so doing it was acting within the limits of its powers, controlled and altered the flow of the river from time to time, to suit the necessities imposed by these arrangements. In the absence of evidence it may be assumed in respect to the lands acquired since 1898, that the Company acted with the assent of the proprietors; but with respect to all of the.lands, the legitimate inference, in my opinion, is that they were purchased by the Company in order to give it such control of the streams in question as will enable It to carry out its statutory undertaking. We are not, I think, to suppose that the Company was not aware of the nature of its rights, or of the conditions upon which alone it could legally exercise its powers.' Finding that it has taken the steps necessary to satisfy these conditions, we 492 MARTIN'S MINING AND W^TER CASES. [VOL. 1907 July 3J . Privy Council . Judgment below, Duff, J. must, I think, assume that the steps were taken with that end in view. Indeed, I have heard nO suggestion, and one does not occur to me, other than the desire to obtain control of the flow of the streams, in order to apply them to the purposes authorized by its Acts, which would account for the purchase of these lands. Are the Company's rights in the waters then affected by the circumstances, first, that the rights of the riparian proprietors were acquired by contract, and not by the exercise of their compulsory powers; and secondly, that they were acquired as incidents to the ownership of the lands themselves, and were not in the process of appropriation severed from that ownership? The Act requires that before the compulsory powers of the Company may be put into exercise with respect to any rights in waters or lands, the Company must first endeavour to contract for the purchase of those rights with their owner; and I do not stop to argue the question whether if an agreement is arrived at, the provisions of the Act apply to the rights of purchase in any less degree than if the prices were settled by arbitration. The second branch of the question at first sight presents greater difficulty.* But. on consideration, I have come to the conclusion that a similar answer must be given to it. I repeat that the Company as a condition to putting its powers to divert into operation, must acquire the rights of the lower proprietors. It is quite obvious that in many cases the value of the riparian rights themselves, apart from the land, severed from the land, might be difficult of ascertainment. In some cases, these riparian rights might constitute the sole value of the land, and altogether one could readily conceive that it would be less costly to purchase the proprietor's holding complete, than to proceed to arbitration with respect to the value of his water rights. Now, under the Company's principal Act, it had no power to deal with real estate generally, but if for the purpose of enabling it to control the flow of Deadman's river, it deemed it advisable to pur^ chase the land traversed by that, river, rather than confine itself to the purchase of the rights of the riparian proprietors in respect of it, couloj. it be maintained that the provisions of the statute apply in any less degree to rights so acquired as incident to the ownership 'of the land than to rights acquired by severance from the ownership of the land? Let us apply one test. The power to dispose of its property is, in the case of a quasi public corporation, created by special Act of Parliament, such as the plaintiff Company (see Proprietors of Staffordshire and Worcestershire Canal Navigation v. Proprietors of Birmingham Canal Navigation (1866), L. R. 1 H. L. 254, and Reg. v. South Wales Railway Co. (1850), 14 Q. B. 902, a limited power. It 4s limited by this rule, namely, that apart from authority expressly ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 493 given or appearing by necessary implication from its incorporating Act such a corporation may not dispose of its property if by such disposition it should disable itself from carrying out its objects (in which the public have an interest), for which its special powers were conferred upon it. The introductory words of section 10, which I have quoted, constitute, in my opinion, an express legislative application of that principle to the undertaking of this Company. The lands appropriated by the Company under its statutory powers for the purpose of its undertaking, are declared to be vested in the Company forever. I am unable to bring myself to think that under the Act of 1885, riparian rights, acquired through the purchase of the land to which they were incident in order to enable the Company in the lawful exercise of its powers, to divert the waters of Thetis lake for the purpose of carrying out the object of its undertaking, could legally be alienated from the Company in such a way as to put it in the power of any individual to stop the operation of its works. Section 4 of its amending Act confers upon the Company certain express powers with reference to the disposition of its real estate, but that does not, I think, materially affect the point before us. I conclude, therefore, that the several interests of the proprietors of the lands traversed by Goldstream river and its tributaries in the waters of these streams, became vested in -the Company by its purchase of those lands under section 10 of the Company's Act, 1897. I come now to consider the effect of the legislation dealing with water rights. From the earliest times the law-making authorities of the Province reserved to the Government the power to grant, through specified officials, rights in respect of the diversion of the waters of natural streams for use in agriculture and in mining; and I think (on the true construction of the legislation) subject to the payment of compensation, for use in other lawful ways. It is not very clear whether these grants (called " records ") empowered the grantees to interfere with the common law rights of riparian proprietors except in the case of grants made for use in mining or agriculture. With regard to persons holding lands under grants from the Crown, the circumstance that the form of grant prescribed by the Land Act reserves to the Crown the right to take water privileges for mining and agricultural purposes only, affords strong support for the view that except for these purposes the grant of a water record conferred no power tov interfere with such rights. It is not necessary, however, in my view, to determine that question. Riparian lands held by the Company issued under a title based upon a grant issued under the provisions of the Land Act, have annexed to them, 'subject to the reservations to which I have referred, the full rights of riparian VOL. II. m.m.c.—33 1907 July 31. Privy Council. Judgment below, Duff, J. L 494 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment below, Duff, J. ownership; while the rights incident to the lands acquired through grants from the E. & N. Railway Company are limited by no such reservation; and subject to the effect of the special legislation of 1892 and 1897, to which I shall presently come, it is not disputed that these rights remained unimpaired at the time the lands were acquired by the Company. Now, the statutory power to grant a water privilege, or a record authorizing the diversion of water, prior to the Act of 1897, applied only to unappropriated water. It appears at once from a consideration of the language in which the enactments I am referring to are expressed, that the phrase 1 unappropriated water " as used by the Legislature, cannot be limited to unrecorded water; and if I am correct in my views as to the rights acquired by the Company under its enabling Acts, then the waters which are subject to these rights obviously cannot be described as " unappropriated waters." Riparian rights which became vested in the Company, moreover, and were - thereafter held by it under its statutory title, became, in my opinion, removed from the operation of the existing legislative provisions permitting water privileges for lawful purposes generally to be acquired, in unappropriated waters. It is not necessary to consider whether in view of the reservation in the Crown grants in favour of the Crown and its licensees, this statutory title remained, in case of lands, the title to which was acquired through grant under the Land Act, subject to any rights which, under existing or future legislation, might be acquired under a record granted for mining or agricultural purposes, because in this action we are not concerned with any such grant, or any application for such a grant. This much seems, at all events to my mind clear, that save only to the extent to which these reservations might support it, and subject to any question as to the effect of the Acts of 1892 and 1897, no water record granted under the laws that existed at the time of the passing of the Company's amending Act of 1892, could authorize any interference with the rights of the Company acquired under that Act. Let us now consider the effect of the Water Privileges Act of 1892 and the Water Clauses Consolidation Act of 1897 on the Company's rights. And first of the Act of 1892. The contention of the municipality is that this Act effects a statutory annulment of all riparian rights in this Province. The first observation I have to make < is that if that was the object the Legislature set before it in pas ing the Act it is most unhappily framed for that purpose. The natural , rights of a riparian owner as such are rights not of user, but rights incidental to the ownership of property: Kensit y. Great Eastern \ Railway Co. (1884), 27 Ch. D. 122, per Cotton, L.J., at page 133. They are proprietary rights incident to the ownership of the land1, J II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 495 and yet section 2 of the Act, which is the section chiefly relied on in support of this contention, makes no reference whatever to such proprietary rights, but deals only with the right to the use of water. The opening sentence of the section which declares that the right to the use of all water is vested in the Crown in the right of the Province must, of course, be taken with the qualifications imported by the rest of the section. It obviously does not apply to the rights of user held under water records or express statutory grants and the general right of all persons to use water for domestic supply and for cattle, at places of public access to natural streams, is expressly saved. One does not readily see why this general public right should be saved if the like right of the riparian owner was to be taken away, and it seems to me quite plain that that right is not taken away, but is clearly saved by the clause in the middle of the section, " save in the exercise of any legal right existing at the time of such diversion or appropriation." This latter clause, indeed, it is difficult to find any application for, unless one is to take it as applying to the rights of the class we are considering. All other rights seem to be expressly provided for in the latter parts of the section. The third section provides some light to help us to arrive at the meaning of the second section. This section is obviously conceived with the object of preventing in the future the operation of some rule by which it was supposed that rights to the permanent diversion of natural streams and lakes might be acquired without the sanction of legislative authority. The reference to the rights acquired by a riparian owner by prescription give, I think, the key to the section. There seems to be nothing at common law to prevent any riparian owner, with the consent of the riparian proprietors below him, from permanently diverting a natural stream for any purposes whatever. The consent of the lower proprietors would not confer upon him any property in the water flowing in the stream, but there being none to dispute his right, in practice such a consent, in effect, would amount to a grant of the right to divert the stream itself. I am speaking, of course, apart from any question which might arise upon the public rights of navigation and public rights of fishing. The Crown at common law, except as riparian owner, would, in such case, have no power to interfere. The combined operation of sections 2 and 3 is clearly such, that, after the passing of the Act of 1892, such a diversion, unless proceeding under statutory authority, could be prevented at the instance of the Crown. It may very well be, too, that the Legislature thought well to declare in express terms, that the rule prevailing in many of the Pacific States of the United States, by which the right to divert the waters of the natural streams may be acquired by the diversion of such waters and the application of them Privy Council. Judgn 496 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment below, Duff, J. to a beneficial purpose does not prevail in this Province. It is sufficient to say, however, upon this point, that the Act does not in unambiguous terms declare or enact that the pre-existing riparian rights, in respect of lands already granted by the Crown, are abrogated, and the settled principles of statutory construction require, where the intention to affect prejudicially a pre-existing right or status is not declared expressly or by necessary implication, to hold that the legislation has not that effect: Main v. Stark (1890), 15 App. Cas. 384, Reid v. Reid (1886), 31 Ch. D. 402, and Young v. Adams (1898), A. C. 469, at p. 473. It is necessary to keep firmly in one's mind, in viewing this aspect of the question as to the construction of the Water Privileges ^ict of 1892, that the right of a riparian proprietor is not a mere privilege, but a right incident to his ownership of the land, " parcel of the inheritance," as it is commonly put by the text writers on the- subject. See Coulson and Forbes on Waters, 2nd ed., 112; Angell on Watercourses, 96 and 98; Woolrych on Waters, 146. In respect of lands granted by the Crown prior to the passing of this Act, which description comprehends all the lands under discussion, except those acquired from the E. & N. Railway Co., the riparian rights annexed by law to the ownership of the lands subject to the reservation in respect of mining and agriculture contained in the grants themselves passed to the gpantee under grants authorized by an Act of the Legislature. The fact that these rights were subject to curtailment by reason of grants of water records under existing legislation did not, in the absence of such records, affect the validity or scope of the rights. The wide difference between the \ rights and status of a riparian proprietor under the law as it stood prior to the passing of the Act of 1892, and the rights and status of such a proprietor when (according to the construction contended for) his interest "in the flow of the stream has been taken from him and vested in the Crown, is at once apparent. That construction would, if adopted, lead to this result: that the owner of property bordering on a stream would be left without any remedy whatever I against a wholly wrongful and unauthorized diversion of the stream, I even to the extent of depriving him of its use for ordinary domestic J purposes. The principle I have just stated applies, with specia cogency, against such a construction. As regards the Act of 1897, it cannot, I think, be maintained! that it does not, indirectly, interfere in a most substantial way with pre-existing riparian rights; but it is not, I think, necessary to conclude that that Act, any more than the Act of 1892,. abrogates those! rights. It makes provision by which persons complying with the! conditions prescribed by it may acquire rights to divert water in cir-| ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 497 cumstances under which such diversion, apart from the provisions of the Act, would be a^ wrongful invasion of the rights of riparian proprietors. But because to that extent the Act is retrospective in its 1 operation, one is not bound to give—indeed, one is bound not to give' —to it any further retrospective operation, unless that be necessary in order to give effect to its provisions. See Reid v. Reid, supra, per Bowen, L.J.^ at p. 408. No records have been granted in respect to any of the waters in question, and the rights to these waters incident to the ownership of the lands purchased by the Company remained in the owners of these lands, unimpaired, as acquired by virtue Of the original grants from the Crown at the time these rights were appropriated by the Company. Does the Act of 1897, then, authorize any interference with these rights? To my mind, it does not. The Legislature having, by the Company's principal Act, conferred on the Company certain rights in respect of the waters of Thetis lake and Deadman's river, it could hardly be contended that the Water Privileges Act of 1892 should be construed in such a way as to derogate from these rights; and the Legislature having contemporaneously with the passing of the Water Privileges Act of 1892 passed the Company's amending Act extending the application of its principal Act to the waters in question, there can, I apprehend, be little doubt that the powers and rights conferred upon the Company by that Act in respect to these waters are to be ascertained therefrom without regard to the* provisions of the Water Privileges Act: see The City of Vancouver v. Bailey (1895), 25 S. C R. 62 at p. 67. An analogous principle protects, I think, the Company's rights under its amending Act of 1892 from invasion under the colour of the provisions of the Water Clauses Consolidation Act, 1897. If my view of the effect of the Company's Acts is correct, namely: that these Acts are to be regarded as the charter of the rights of the Company acquired1 under them, and that rights in the streams in question have become vested in the Company under the provisions | of these Acts, which would be interfered with by the grant of the records which the Municipality is now applying for, J then it seems apparent that no such grant can lawfully be made unless it appear that the Water Clauses Consolidation Act of 1897 has in some way repealed or modified,the provisions of the Company's Acts. That I am not at liberty to hold, on the principle that I have just quoted from Mr. Justice Sedgewick, unless the intention to effect such a modification or repeal is to be found expressed in, or appears by necessary implication from the language of the later Act. The principle is well-settled, but it applies with especial force where such a repeal or modification would affect proprietary rights 1907 July 31. Privy Council . Judgment below, Duff, J. 498 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment below, Duff, J acquired under the earlier Act; and with still greater force where the powers under which these rights were acquired have been conferred upon a corporate body for public, or quasi public, purposes. [References to Maxwell on Statutes; Garnett v. Bradley (1878), 3 App. Cas. 944 at pp. 968 and 969, per Lord Blackburn; Seward v.' " Vera Cruz " (1884), 10 App. Cas. 59 at p. 69; Fitzgerald v. Champ- neys (1861), 2 J, & H/ 53; and The London and Blackwall Railway Co. v. The Limehouse District Board of Works (1856), 3 K. & J. 123 at p. 126]. In the Act of 1897 there is no express reference to the Company's Acts, and I can find nothing in the Act of 1897, or in the Company's Acts, or in both together, affording any justification to exclude the application of this principle. On the contrary, there is much in the history of the legislation relating to water rightSj and particularly the legislation providing for the supply of wateiA for consumption in municipalities and unorganized localities in the Province, which'fortifies the contention that the Company's rights, were not abrogated by the Act of 1897. In the year 1892 a number of Acts were passed conferring upon corporate bodies the right to take water from natural streams and lakes for various purposes. In every one of these Acts, so far as I have observed, with the exception of the Company's Act, a provision was inserted making the rights granted subject to any future legislation, relating to the subject-matter of the Act conferring. Between 1892 and 1897 it was the settled, if not the uniform, practice of the Legislature to grant privileges of a like character only upon a like condition, and in Centre Star v. Rossland (1903), 9 B. C 403, it was held that a i provision of this nature, which was found in the special Act thefe i under consideration, was sufficient to exclude the application of the principle; and the rights acquired under the special Act were held to be subject to the conditions of the Water Clauses Consolidation | Act. That "iihis legislative policy, expressed in provisions of the I character to which I have referred, stopped short of interference I with rights acquired under the Company's Act is, to my mind, I forcibly indicated by the absence of anjy corresponding provis on I in the Company's amending Act of 1892. Further, Part III. of] the Water Clauses Consolidation Act of 1897 (which provides fori the establishment of systems of waterworks and the granting of] records to municipalities, and to companies specially incorporated J under the Act, authorizing the diversion of water for the purposes] of such systems) affords positive evidence of a cogent character that! the Legislature did not intend that Act to apply to the Company's undertaking. The Company's Act of 1885 was one of a series of! IL] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 499 Acts by which the Legislature made provision for supplying the inhabitants of various municipalities and districts in the Province with water. All are in their essential provisions framed very much after the same pattern, and provide for the establishing of waterworks systems for the supplying witlu. water the inhabitants of Victoria, Vancouver, Nanaimo, New Westminster and Esquimalt District. In the case of Victoria, the powers were conferred directly upon the municipality. In the other cases, they were vested in corporate bodies. Coming to Part III. of the Act of 1897, by section 44 (which by section 46 is made applicable to such specially incorporated companies, as well as to municipalities), it is enacted that: [the mere bond fides of a municipality is sufficient; and that there is no lapse from non-user.] The Legislature here proceeds upon the assumption that any such system of waterworks is likely to be a system of expanding requirements, and makes provision accordingly. The municipality, or a specially incorporated company (that is to say, a company specially incorporated under the provisions of the Water Clauses Consolidation Act), may obtain a record without regard to the present needs of the system to be established; and with respect to the unused or superfluous water, subject to the record, no rights jean be acquired by record under the Act which are not subject to automatic reduction to meet the advancing needs of the waterworks system. Now observe the effect of the contention we are considering upon the rights of companies of the class to which I have referred (that is, to say, companies incorporated by special Act for the purposes of the same character as those designed to be secured by the provisions 'of Part III). The contention is, notwithstanding the Company may have complied with the conditions of its Act by purchasing all the rights in a given stream to which they apply, and thus have acquired the same right to use the waters of the stream for the purposes of its waterworks system as that conferred by a record under Part III.— that such of these waters as remain unused because not needed for the present requirements are to be regarded, by reason of the opera- tion of the interpretation clause, as " unrecorded water" within the meaning of the Water Clauses Consolidation Act; and therefore subject to the grant of records under sections 9 and 44 of that Act. The protection afforded by sub-section (a) of section 44 has no possible application to such a company; because it applies only to companies specially incorporated under the Water Clauses Consolida- ' tion Act; and, in short, the logical effect of the contention is that by the operation of the Water Clauses Consolidation Act, the rights acquired under these special Acts for the purposes of operating the 1907 July 31. Privy Council. Judgment below, Duff, J. 500 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment below, Duff, J. systems long established under them are swept away in the sense that they are no longer held under statutory title, but subject to administrative discretion, while these systems are at the same time excluded from the protection carefully devised by the framers of the Act, for the benefit of new systems to be established by companies specially incorporated under the provisions of the Act itself. In this connection, it is not unimportant to consider the effect of section 10 of the Company's Act of 1892; the Legislature in imposing the obligation embodied in that section must be taken to have granted by implication the powers necessary to enable the Company to discharge it; and if the Company has been swept within the control of the administrative functionaries exercising the powers conferred by the Act of 189 7„ one would naturally have expected to see some provision analogous to sub-section (a) of section 44, securing for the Company some protection to rights acquired to enable it to I perform that obligation. There will be a declaration, therefore, that no grant can lawfully be made pursuant to the Municipality's application under the Water Clauses Act, and an injunction as prayed for. There remains to consider the counterclaim. The decision in Saunby v. London (Ont.) Water Commissioners, to which I have referred, disposes of Mr. Bodwell's contention that by virtue of the Municipalities Act of 1873 (which corresponds in material particulars with the Act there dealt with) the Municipality has 'an interest in the waters in question to which the rights of the Company are I subservient. No right can be acquired except through the proceedings prescribed by the Act. As no such proceedings have been taken, it would not be in accordance with the course of the Court to I make a declaration respecting the powers conferred oh the Munici^l pality by that Act. Such a declaratory judgment can only be pro- I . as " ancillary to the putting in suit of any legal ? v. North's Navigation Collieries (1889), Limited 44: at p. 49 (1906), A. C. 136 at p. 144, and North Engineering Company v. Leeds Forge Company 34 at p. 329. The counterclaim will, therefore, be osts.. Judgment accordingly. . perly pr onounce right": Willian (1904), 2 K. B. Eastern Marine (1906), i Ch. : dismisse I with ( Appeal to The defendant appealed and the. appeal was argued at Victoria on ,URT" the 5th, 6th and 7th of December, 1906, before Hunter, C.J., Irving and Morrison, JJ. Argument jf j. Taylor, K. C, for appellants: The "beneficial purposeI on appeal to . A . . Full Court, mentioned, in the definition of unrecorded water, meant a purpose lawful and in the case of the Water Company a purpose authorized II.] ESQUIMALT WATERWORKS CO., CITY OF VICTORIA. 501 by its statute of incorporation. The supply of water for power purposes as distinct from an ordinary water supply to the inhabitants of Esquimalt, was not authorized by the Water Company's Act. The Water Clauses Act repealed all the then existing law of the Province relating to the appropriation of water, and provided a new system * whereby water might be appropriated or diverted. Section 4 of the I Act enacted that "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 appropriate any water from any river, watercourse, 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." Section 5 of this Act further declared that "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." The policy of this Public Water Act is obvious. Many charters had been granted authorizing various companies to appropriate water. Very many of the companies so authorized had utilized their powers to a certain extent; many of such companies had made no attempt whatever to appropriate water. The Act protected and preserved the rights of companies which had embarked capital into their undertakings. Beyond that point, however, companies were not protected. In other words, such waters as any of these companies had appropriated and had then actually in use for a beneficial purpose the companies could continue to use for such purposes. The Esquimalt Water Company did not at this time use the waters of Goldstream for , a beneficial purpose within the purview of its charter; in fact did not use the waters at all. The Water Company had a privilege of taking water from Goldstream. So far as it had exercised that privilege prior to January, 1897, it was protected. After that date its right to take under its Act expired. The Water Company had, it was true, acquired a title in fee between 1892 and 1898 to the lands bordering upon Goldstream with a few exceptions. The ownership of the land, however, did not increase the powers of the Water Company under its Act, Privy Council . Argument n appeal to 502 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31* Privy Council . The fact of the Company having constructed reservoirs upon its ' own land for the conservation of water might give the Company a j right to the water while in the reservoirs, but could not give the| Company control over such water when it escaped from the reser- Argument yojrs {ni0 ^e ^q&j 0f the stream. The clause in the Water Com- Full Court, pany's Act declaring that water appropriated by the Company " should thereupon and forever after be vested in the Company," only vested a proprietary right in the Company for the purposes of the Company, viz., a water supply for the inhabitants of Esquimalt and surrounding peninsula. Once that water escaped into the body of the stream dominion and control over it by the Water Company was lost. Bodwell, K.C, op the same side, submitted that the order in pursuance of the trial Judge's judgment should not have been made. There was no doubt that there was water in Goldstream, but on the admitted facts it was clear that it had never been attempted to be used except for power purposes, and this purpose is outside the scope of the Company's powers. Whether or not the amount of water in Goldstream would be sufficient to be beneficially used by the City was immaterial, but the City should not be enjoined as to that water, as such an order carried with it the declaration that the water was vested in the Company, which of course is disputed. The order should - be limited to the amount of water that has been appropriated by the Company, and which is passing through the Company's works, but not to the water which is flowing down Goldstream, and which the Company exercise no control over, and cannot control. The learned trial Judge evidently overlooked that point when making the order, but the point was taken on the argument. [Hunter, C.J.:—Would not any other declaration be useless to the Company, because it would leave the question always open as to what water they had appropriated? Is not the real point of their suit to establish their title to all the waters in those streams?] The Company cannot place their claim on any higher right than their right to the waters which they have appropriated and are actually using; they cannot claim water under a constructive appropria- , tion. The City contend that all waters which the Company have not under control, and which they have not appropriated, are open to record. They rely on section 10 of their Act of 1885, and the effect given to that section by the trial Judge was to give them an absolute right to all the waters of Goldstream. The moving reason on the part of the Company for the Act of 1892 was the contemplation of supplying power to the Tramway Company. Section 10 provides that " the lands, privileges and wafers, which shall be ascer- ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 503 tained, set out or appropriated by the Company . . . shall thereupon and forever after be vested in the Company." As to the meaning to be given to the term " vest" as here used, he cited Hinde v. Chorlton (1866), L. R. 2 C P. 104, at p. 114; Stracey v. Nelson (1844), 12 M. & W. 535; Brumfitt v. Roberts (1870), L. R. 5 C P. 224; Rolls v. Vestry of St. George the Martyr, Southwark (1880), 14 Ch. D. 785, at p. 796; Coverdale v. Charlton (1878), 4 Q. B. D. 104, at p. 110. The Company obtains no more right to the water than is sufficient to carry out the purposes of their Act. It is not a paramount nor an exclusive right: Mayor, &c, of Tunbridge Wells v. Baird (1896), A. C 434, at pp. 438 to 442; Finchley Electric Light Company v. Finchley Urban Council (1903), 1 Ch. 437, at p. 443. [Hunter, C.J.:—By section 9, it shall be lawful for the Company I from time to time, and at all times hereafter," to do certain things.] We do not dispute that, but it must be for the purposes outlined in the Act, and they had not diverted the water in question here for the purposes of the Act, but for an entirely different purpose. Even if the Water Clauses Consolidation Act does not apply, then when they did from time to time divert water, that water became their property, but the property they get in the water so diverted is limited to the use they make of it, and must be for the purposes for which they were incorporated: Harrison v. Duke of Rutland (1893), 1 Q. B. 142.. The supplying of water for the inhabitants of the City of Victoria is not a purpose of this Company. Until the corporation of the City of Victoria give the Company notice that the City requires a supply of water from them, the Company has no power to come • into Victoria, so that they were anticipating things when they say they were preparing to supply Victoria with water. Supplying water for domestic purposes is what was contemplated by the Legislature in framing their Act, and for that purpose no doubt they could have appropriated the waters of Goldstream if the necessity had arisen. Suppose the contention of the appellants is wrong in all other particulars except in respect to the supply of water to the City of Victoria, even then there has been no appropriation of the waters of Goldstream except for power purposes. Therefore, after the water passes through their power house, and escapes from them into the bed of the stream, it again becomes waste water of the Crown. The water is abandoned, and their right over it is lost when it once more finds its way. into the stream. But the City claims no right to the water until it gets back into the stream: Farnham on 1907 July 31. Privy Council. Argument on appeal to Full Court. 504 MARTIN'S MINING AND WATER CASES. [VOL. 1907 Jaly31. Privy Council. Argument on appeal te Full Court Waters, pp. 2,017 to 2,091; Cache La Poudre Reservoir Co. v. Water Supply & S. Co. (1898), 53 Pac. 331, at p. 333. The trial Judge was in error in finding that the Company had obtained the right to the water of Goldstream by purchasing certain surrounding lands. It was never contemplated by the Legislature that there should be any monopoly in water, especially water of this kind, required for public purposes; in any event the Company by purchasing the lands surrounding Goldstream Would only acquire the titles and rights of the previous purchasers. It was not set up or contended in any way that these prior owners had any exclusive right to the waters in those lands. As to the effect of the Water Clauses Consolidation Act, 1897, the position of the appellants is that this water is all unrecorded! water, waste water of the Crown; and even if it had not been un-3 recorded water in the beginning, having been allowed to escape from control, it becomes abandoned and reverts to the Crown. Gne of the purposes of the Water Privileges Act of 1892, of which the Water Clauses Consolidation Act, 1897, is the successor, | was that of regulating the powers and privileges of water companies, I and to exclude the possibility of a monopoly in water. The interpretation clause of the 1897 Act shews that when a man has a water record and does not use it, the water goes back to the Crown; in other words, that there should be no water " held up " from use of the public. [Hunter, C J.:—Have you any rights there which are liable to be overridden by this Company at any time?] We submit that the Act of 1897 takes all the powers of administration over unused waters and vests those powers in the Crown. Whatever rights of appropriation of water the Company had in the i past, they lost them on the passing of the Act of 1897, and instead of I having an unrestricted right of appropriation for all time, they must now come in under the Water Clauses Act. Again, unless the provisions of the Water Clauses Act are overridden, the City has the right to appropriate so much of that water as they require, and the Company have only a secondary right, because J under the 1897 Act, the municipality comes first, with the added ad-f vantage that they heed, not even specify for what purpose they require the water. As to what if any compensation should be given to the Company for their works and improvements in the event of the City deciding to take over the whole of the water of that area, we submit that the Company certainly had no right to the water, and the question of ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 505 compensation for the works might be considered; but in any event, in view of the.language in the 1892 amendment to the Company's < Act, whereby the rights of the City of Victoria were especially protected and preserved, the Company took a gambling chance. Therefore, the City must be right either under the old statute of 1873, 2 or under the Water Clauses Consolidation Act, 1897. If the conten- ] tion of the City be right, then both the Company and the City have lost the right to appropriate the water, the City under the 1873 statute, and the Company under the Water Clauses Consolidation Act, 1897, and under this Act the City has the prior right of appropriation. Luxton, K.C, for the respondent Company, submitted that the corporation had no authority to post the notices of their application on the Company's land; the Company under their Act of incorporation own the land and the waters upon them absolutely, and the Water Clauses Consolidation Act, 1897, does not apply. 1907 July 31. Privy Council . i-rguinent on appeal to 'ull Court. [Hunter, C.J.:—Why then trouble yourself about the form of the notices at all?] Sections 8, 9 and 10 of their 1885 Act, give the Company power to supply water anywhere on their lands between the springs or sources of supply and the points where the water is distributed in Esquimalt. Then the word "vest," referred to in section 8, does not bear the restricted meaning given to it by counsel for the corporation. This is apparent from the way the word is used in another connection at the end of the section, and if it were intended that the word should have that restricted meaning when applied to the water, and . not when applied to the other property of the Company, i^ie Legislature would have defined it accordingly: Metropolitan Railway Co. v. Fowler (1893), A. C 416; Tiverton and North Devon Railway Co. v. Loosemore (1884), 9 App. Cas. 480, at p. 491; Medway Co. v. Romney (1861), 9 C B. N. S. 575. Section 12 of the Act deals with the purposes to which the water may be applied; it regulates the use and distribution "for all purposes," instead of being limited to supplying domestic needs. In fact, long ago, when the Company were using only the Thetis lake supply, they furnished water to operate a Pelton wheel at the naval yard at Esquimalt. The corporation seek to record water which the Company by its works have stored, after collection, in reservoirs. [Hunter, C.J.:—No; water which you allow to escape; it is not under your control. The strongest argument which I can see in your favour is the contention that this water has been granted to you; 506 MARTIN'S MINING AND WATER CASES. [vol. 1907 that it goes with the land. If the waters mentioned in section 10 U_L_ ' mean something more than waters reduced into possession, then it Pmvy means the streams. Waters which have been ascertained and set out, " it speaks of. The section speaks not only of the land, but of the Argument on waters and some meaning .must be given to the term waters, it appeal to -} ° ° Full Court, seems to me. [Irving, J.:—That, to me, also, is the strongest argument which 1 have heard yet for you. You must shew that you are entitled to prevent anyone from recording the water which you have allowed to escape from those reservoirs into the bed of the stream again.] We have done everything we oan possibly do in the direction of ascertaining and setting out the waters. We are entitled to rely not only upon our statute, but upon our common, law rights. Having acquired these lands, we have put ourselves in possession of them and the waters upon them. [Hunter C.J.:—As a matter of fact, have you acquired the entire bed of Goldstream river?] Yes; we have; also the whole source of these lakes in the Mala- hat district. The Company disputes the statement that they have acquired the Goldstream waters for the purpose solely of supplying power to the Tramway Company. As a matter of fact, the evidence shews that the Thetis lake supply was insufficient, and in 1892 the Company had to look elsewhere for water to meet their requirements. Then as to the status of the Tramway Company, their works are on the Water Company's pipe line; they are occupants within the meaning of the statute, and the Company is not only entitled, but bound to supply them. The Acts of 1892 and 1873 gave the City no right to the waters of Goldstream. [Hunter, CJ.:—The Act of 1897 would seem to refer to waters not u&ed; it seems to cut off all dormant rights; and unless you can shew that you have under your Act something in the shape of a grant, you may find you are in the same position as other companies which have not made use of their privileges.] No; the intention of the Legislature was that, after April, 1892, when that Water Privileges Act came into force, any company which wanted to get power or incorporate for the purpose of maintaining water or electrical works, could only do so by virtue of this Act; but it did not interfere with any company incorporated by special Act or otherwise before the coming into force of the 1892 Act. Section 2 of the Act shews that clearly. The City's position was not extended by either the 1892 or the 1897 Act; there is nothing in that statute li.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 507 to divest companies already incorporated of the title to or the use of the waters which they had acquired. The water dealt with was water on the public domain. 1907 July 31. Privy Council. [Hunter, CJ.:—There is a distinction between the man who Arfun^}fcto°n owns water and the man who has a right to divert water. This Full Court. Act seems to intend to sweep away the rights of the non-user. Now, you have to shew that you have something in the nature of a grant, and a strong argument in your favour is the presence of the word "water" in section 10. It looks to me, subject to what is brought out in argument, as if that was a grant of waters quo waters.] We submit that it is; our rights are saved, as we hold rights granted prior to the passing of the Water Clauses Consolidation Act, 1897, and there is nothing in that Act to take our rights from us. The water in question now before the Court is not unrecorded water within the meaning of the 1897 Act. Such water was then (1897) held under plaintiffs' Acts, and the definition of "unrecorded water" does not read, so as to include, water not "held and used," but only " held " under a private Act, and the latter words of the definition apply only to water recorded under the Act and not used: compare sections 7 and 18. Again, there is no water in the stream except in winter; therefore the application of the City is not a bond fide application under section 44. They cannot put themselves into possession of a supply of water for municipal purposes if the water is not there. Further, the water going down there now is not recordable water, because it is water stored up artificially by the Company, who, being owners of the watershed, have the right to store and keep all the waters of that area. In fact, if they chose, they could divert that water- in an entirely different way, and allow none of it to flow down the stream bed: Arkwright v. Cell (1839), 5 M. & W. 203; Brymbo Water Co. v. Lest ers Lime Co. (1894), 8 R. 329; | Mayor, &c, of Bradford v. Pickles (1895), A. C 587. Then a portion of this watershed comprises the E. & N. Railway belt, which was Dominion property, and the Province has no control over it so as to grant it away, or grant the waters on it. [Hunter, C.J.:—According to that the Province could not expropriate any land there for the purposes of a school house.] [Irving, J.:—The land was not withdrawn from the power of the Legislature in general, or from the administration of justice.] They cannot touch that subsidy. The City under the Act of 1873 have no power over Goldstream. What was contemplated there was one waterworks, and although they had a certain area set out in the 508 MARTIN'S MINING AND WATER CASES. [VOL. Ju p Cc Argu ap Fuli 907 ly 31. 'RIVT UNCIL. ment on peal to . Court. Act, they chose to erect those works at Elk lake. Therefore, they have exhausted their rights: Taylor v. Corporation of St. Helens (1877), 6 Ch. D. 264; Blakemore v. The Glamorganshire Canal Navigation (1832), 1 Myl. & K. 154. [Irving, J.:—Section 6 of the Act of 1892, I should think, disposes of your argument that they have exhausted their rights under the Act of 1873.] The Acts of 1885 and 1892 together give the Company power to go to Goldstream and acquire the waters there. The Act of 1873 did not prevent the Company from going there, and the City had not- gone there when we went. The City had no night to expropriate our works: Regent's Canal City and Docks Company v. School Board for London (1885), W. N. 4; Bristol and North Somerset Railway Co. v. Somerset and Dorset Railway Co. (1874), 22 W. R. 601; Manchester, Sheffield an\d Lincolnshire R. Co. v. Great Northern R. Co. (1851), 9 Hare, 284; Regina v. South Wales Railway Co. (1850), 14 Q. B. 902; Dublin and Droghedo Railway Co. v. Navan and Kingscourt Railway Co. (1871), 5 Ir. R. Eq. 393. Peters, K.C (R. T. Elliott, with them), on the same side: There is no authority for the City to go to Goldstream and prevent the Company forever from carrying on their works according to the requirements' of the district which they have to supply under the terms of their Act. To deprive the Company of all the water that now remains there would be to say that the Company shall never improve or be able to enlarge their operations when the requirement call for it. Bodwell: We are merely asking for the right to apply to the Chief Commissioner for a record. [Irving, J.:—And the Chief Commissioner will adjudicate upon your application.] Peters: By the statutes of 1885 and 1892 the Company had a right to go to Goldstream and appropriate all the waters there. That right had to be exercised by their in some way becoming the owners of the property, owners of the waters and the lands. When they had appropriated those waters, the Company became the absolute owners of them, and they were vested in the Company so that neither the City nor anyone, else, except those entitled under old statutes, could take one drop of that water. The Company has a statutory grant of those waters. Having that grant, neither the Water Privileges Act of 1892 nor the Water Clauses Consolidation Act, 1897, can interfere with it. II.] ESQUIMALT WATERWORKS CO., LTD. v- CITY OF VICTORIA. 509 As to the meaning to be given to the term " vest," as used in the 1885 statute, the cases cited by Mr. Bodwell all refer to instances where an understood restricted meaning was given to the word; they are all cases where a limited control only is given over the property in dispute. In the present ease, absolute ownership is plainly in-2 tended. Appropriation and use are not one and the same thing. The Company appropriated the waters long ago, and all at once; they acquired all the watershed from the source of supply to the sea. The building of reservoirs by the Company was not the act of appropriation; it was merely an incident in making use of the lands for the Company's purposes. As to conflict between general and special Act, see Bailey v. Vancouver (1895), 4 B. C 433. As to the intention or effect of the Water Privileges Act of 1892, it was a mistake to suppose that the idea was to obviate the non-user of water privileges or the locking up of public water, as at that time there were but five companies in existence with w,ater privileges by special statutes, and there was only one of these companies which was not. making use of its jrights. The Ecquimalt Company not only has riparian rights by virtue of acquiring the title of previous holders or owners, but they have a parliamentary title to these waters: ; Metropolitan Railway Co. v. Fowler (1893), A. C 416. Further, ad- j mitting that the City had the rights under the 1873 Act to go to Goldstream, they did not do so; the Company yrent there first, and therefore the rights of the City, whatever they were, are gone. The Company's works are not intended for present needs, hut for those of the future. It is incumbent upon them as a water Company to look out for this. In any event, even supposing the Company are travelling outside of their statutory powers, it is not the City who may complain, but some person injured, or the Legislature; perhaps the Attorney-General. The question is, not what cause has the City to complain, but has the Company acquired these rights wrongfully or illegally? The rights of the City of Victoria are not rights of appropriation but of expropriation, and if they choose to exercise that right, the value they would have to pay would be the value at the time they exercise that right, not the value before the Company took over and improved the lands by conserving the water and erecting works: Tyson v. Mayor of London (1871), L. R. 7 C P. 18. 1907 July 31. .rgument on appeal to ?*ull Court. 'Cur. adv. vult. vol. n. M.M.C.- 510 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . 8th January, 1907. Hunter, C.J.:—Thanks to the exhaustive judgment of the learned trial Judge, as well as to the efforts of the learned counsel Judgment of on both sides of this appeal, the questions for decision have been Hunter, C.j', narrowed down to a comparatively small compass, there being, as I dissenting, understand it, no material facts left in dispute. By section 9 of the Company's charter of 1885, they, were empowered from time to time and at all times thereafter to survey, set out and ascertain such parts of the land within a prescribed area as they might require for the purposes of their undertaking, and to divert and appropriate the waters of Thetis lake and Deadman's river and its tributaries as they should judge suitable and proper, and to acquire any interests in the said lands or waters, viz.: Thetis lake and Deadman's river, or any privileges that might be required for the purposes of the Company. By section 10 of the same Act, " the lands, privileges and waters which shall be ascertained, set out, or appropriated by the Company for the purposes thereof as aforesaid, shall thereupon and forever after be vested in the Company," etc. By the amending Act of 1892, the provisions of the principal Act as to appropriation, diversion and conveying were extended so as to embrace Goldstream river and its tributaries, except that there is-njij vesting clause similar to that contained in said section 10. It is also provided that the power to divert and appropriate water from this river and its tributaries is to be subject " to any grant of rights, privileges or powers arising under the provisions of the Corporation of Victoria Water Works Act, 1873 "; and by section 9, that nothing in the Act is to be construed as in any way limiting or derogating from any grant or privilege accorded to the City under the provisions of the said Act. Then by section 10 it is stated that the powers as to Goldstream are conferred only on the condition that the Company will supply, on terms which are specified, a maximum quantity of 5,000,000 gallons per diem to the City if so required. Much of the argument was devoted to the true meaning of section 10 of the principal Act, i.e., as to what is the nature of the grant as regards the water, particularly as regards Goldstream; the City contending that there is only a right to use it for the purposes of the Company, and that such as goes to waste is recordable under the I provisions of the Water Clauses Act, 1897; while the Company main-1 tains that it has an absolute grant of the water, and that therefore | no one can interfere with it. Both contentions have difficulties to I cope with. On the other hand, if the Company has only a right to use| the water, so much of section 10 as vests the "waters" in the Com-] II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 511 1907 July 31. Privy Council pany is at least, surplusage, as by section 9 it was already given the right " to divert and appropriate," if indeed, it would not be an absurdity to "forever after vest" only the water which is diverted and parted with to the consumers in pursuance of the undertaking. Nor, apparently, does it do to say that what is "forever" vested,huSer°cRJ.' is a theoretical quantum, as the quantum is constantly varying in dissenting, volume. On the other hand, if we were to hold that there was an absolute grant of the " waters " themselves, i.e., that this word was a general comprehensive term including all streams, creeks and bodies of water existing over the area acquired, there would then be the anomaly of a different construction being placed on the same language to be found in the same legislation passed on the same day respecting a similar undertaking, viz.: the Nanaimo Waterworks Company. That Company's charter empowers it to divert and appropriate so much of the water from Nanaimo river at a certain point as it might consider suitable, and " forever after vests " the waters appropriated in the company, but it is of course hardly conceivable that the Legislature meant to make an absolute grant of a particular cross-section of the water in the river. It would also appear to be too fantastic a conception to consider that the Legislature intended that there should be successive grants in proportion to the amount diverted as the undertaking developed from' time to time. The difficulty of holding that there was intended to be an absolute grant is also enhanced in the case of Goldstream by reason of the fact that there is no corresponding vesting clause in the amending Act of 1892. On the whole, I think the best solution of the problem is to be got, by not dissecting any portion of the legislation too minutely, but by surveying the whole together. Treating it in this way, 1 think that the Legislature intended not to make a grant in terms of the "waters"—which of course it could do if it chose—but, what for most purposes amounts to the same thing, to confer an exclusive licence to use them from time to time and at all times for the purposes of the undertaking, which took effect in relation to any particular water £rom the time that all outstanding interests in respect of such water were acquired by the Company, and I think a strong ; argument in favour of this view is the presence of the conditions imposed in favour of the City in the Company's Act of 1892. It is obvious that so long as those conditions remain in force no one else could be permitted to interfere with the waters unless they were also to be permitted to put the Company in jeopardy of losing its franchise under the Act, and of having its undertaking destroyed because of its*inability to carry out the conditions by reason of the interference. It certainly could not have been the intention of the Legislature to leave it open to any person to come in and say to the 512 MARTIN'S MINING AND WATER CASES. [VOL. J907 July 3 Priv* COUNCl Full Cot Hunter, < dissentii Company that it must take its water from" Goldstream from above a certain point to supply the water that might be demanded by the City, because he intended to take water from below that point. There is nothing in the Act to say where or how the water is to be taken, and it seems clear that the option as to these matters is left entirely to the Company; in other words, it is given the exclusive use and control of the stream. But even if these conditions had not been inserted, I think the Legislature must be taken to have known that to establish waterworks plants requires large sums of money, and that unless there is a sufficient source of supply reserved to provide for expansion and development, few, if any, capitalists would embark on such an enterprise, and therefore the Court should be slow to hold, in the absence of clear language, that the Legislature intended that after those who had obtained the franchise had proceeded to expend large sums of money on the faith of its being a reality, any corporation or person should have the right to come forward on the plea that the franchise was not an exclusive one, and claim to interfere with the streams which have been bona fide appropriated, and thereby seriously cripple, or perhaps destroy, the undertaking. If then it is given the exclusive use and control of the stream, it would be contrary to sound legal principles to hold that the Water Clauses Act of 1897, being a later general Act, was intended to enable any person or corporation to interfere with the rights and obligations created by this special legislation in respect of these particular waters in the absence of plain and unmistakable language, and on this vpoint I entirely agree with the remarks of the learned trial Judge. I will assume, however, that the franchise does not amount to the exclusive use and control,-but that there was only a right to divrert and appropriate the water conferred. Even then, I think that the City's claim to record the so-called waste waters under the Act of 1897 is not well founded. ict declares all " unrecorded" water to be vested in the ivhich of course once vested cannot be divested without a d or grant) and proceeds to provide a general code by which sr is to be obtained, depending on the char- id the circumstances. Unrecorded water is 1 water which for the time being is not held under rdance with a record under this Act or under the r under special grant by public or private Act, 11 water for the time being unappropriated or sed for a beneficial purpose." T Crown (w new record the right t acter of th defined to appj jatio Acts repealed hereby, and shall include al unoccupied or n II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 513 This definition appears to be not altogether free from ambiguity, for in addition to water held and used under the Act and the Acts thereby repealed, it may mean to exclude water merely held under special Acts; or, on the other hand, it may mean to exclude only water held and used under special Acts. If it is ambiguous, then j again of course well-known rules of construction would prevent us from holding that the Act was intended to have any application to particular streams dealt with by special Acts. But I will assume that by reason of the presence of the last member of the sentence the ambiguity in the former portion is removed. Even then, I think, the fallacy in the argument for the City lies in assuming that the water which it alleges is going to waste below the power house is water which is not "used" within the meaning of the above definition. In my opinion, the word " used " in this definition does not mean " consumed," but means " made available "; in other words, that the holder of the right is using his right in respect of the water, but not necessarily altogether consuming it. In short, the language is hot to be read literally, but the meaning is that the holder of the right must have been exercising his right; and the intention was to 'extinguish rights that had fallen into disuse (whether acquired before or after the Water Privileges Act of 1892) at the time of the coming into force of the Act, which was delayed a sufficient time after its passage to enable all holders who wished to do so to prevent the extinction. For instance, take the case of a miner holding at the time of the coming into force of this Act an ordinary water record for 100 inches, and suppose that some days prior to its passage he was using 90 inches, then later 80 inches, and on the day of its coming into force, 50 inches; could it be maintained that the coming into force of the Act had ipso facto cut down his record to 50 inches and vested the other 50 in the Crown? I think it must be clear that his right was left intact. Then in what worse position can the Company be which has what amounts to a special statutory record of all the water in the stream? Then again, assuming that the right to use all the water remained vested in the Company on the passing of the Act of 1897, under what provision has the City any status to obtain a record, interim or other, of the so-called waste waters? Not under section 18, as that section applies only to an " owner of land or a mine," wl^o is seeking a record for ordinary domestic, agricultural or mining purposes, as indeed is shewn by the caption to Part II. of the Act—in fact the notices themselves purport to be given under Part III. of the Act—• nor under the latter part, as the provisions of that part apply only to the case of "unrecorded" water. 1907 July i Privy Council 514 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July. 31. Privy Council. Full Court Hunter, C.J. dissenting. It is hardly necessary to notice the Water Privileges Act of 1892, as there is nothing in terms in that Act which purports to affect rights conferred by former special Acts, and as it was obviously meant to provide a general scheme of regulations to apply to future specially incorporated companies, which scheme was. replaced by the more extensive Act of 1897.. Then there is the circumstance that when the City was obtaining a revision and amendment of its powers in relation, inter alia, to the waters in question at the same time that it was securing the insertion in the Company's Act of 1892 of concessions in its interest, and a declaration of its rights under its franchise of 1873, no permission was given to the City to make either permanent or temporary use of such of the waters as were not being turned to account by the Company, and even assuming that the City did not seek the permission, it seems a reasonable inference that the Legislature, hav- a ing, as it did, the needs and desires of the City brought.to its attention, considered that to give such permission was impracticable and inexpedient. There is also the circumstance to be taken into account, referred to by the learned trial Judge, that while the Company's Act of 1892 makes no reference to future legislation, all the other private Acts passed in that year empowering the applicants to divert and appropriate water for sundry purposes, provide that the rights granted are to be subject to future legislation. To recapitulate. I think the question is reducible to a very narrow one. Did the Legislature, having regard to the nature of the undertaking and the conditions imposed, when it conferred the right " from time to time and at all times hereafter " to divert and appropriate the waters of Goldstream, grant an exclusive licence subject only to the right conferred on the City by its Act of 1873 and amending Act? I think it did..and I find nothing in either of the subsequent general Acts referred to which is conclusive to shew that it intended to enable anyone under colour of those Acts to interfere with this franchise. If, however, the licence was not exclusive, it certainly became coupled with a constantly increasing interest, and we should not hold in the absence of clear and unmistakable language, that the interest having sprung into existence, was intended to be prejudiced by any subsequent legislation. It was strenuously argued for the City that the Company were and are using the waters of Goldstream for a purpose not authorized by its charter, namely, the supplying of water which is used by the B. C Electric Railway Company to develop electric energy, and that this fact gave it a status to record the water under Part III. of the Act of 1897. J ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 515 This seems clearly untenable. The plaintiff Company is empowered to construct, manage and maintain waterworks, and there is no limitation on the purposes for which the water may be supplied, or to which it may be devoted by the consumer. It is no concern of the Waterworks Company what is done with the water after it is delivered to the consumer. But even if the Company were exceeding their powers, the City has for that reason alone no more status to complain than any private person; the remedy for a misuse or an unauthorized use of the Company's powers being an action at the instance of the Crown, or some shareholder of the Company, or the interference of the Legislature. For these reasons, in my opinion, the City's claim cannot be sus- ,tained, and therefore the appeal, so far as it concerns the claim, must' be dismissed. Then as regards the counterclaim. The learned trial Judge dis- ■. missed it with costs; and had1 he done so without prejudice to any proceedings that the City might take in respect of its rights under the Act of 1873 and amending Act, and the Company's Act of 1892, we might not perhaps have interfered. But as the matter stands, the dismissal might be found to embarrass the City in the prosecution of those rights, and I do not think that we ought to leave any uncertainty on the subject. It being therefore proper for this reason to open up the judgment to that extent, at least it seems to me that it is competent to us to exercise our own discretion. The counterclaim asked, among other things, for a declaration as to the right of the City to divert and appropriate under the above mentioned Acts. It is to be observed that there are no facts left in dispute to enable the Court to give such a declaration, and that the question is wholly one of statutory construction, and there can be no object after the facts have been ascertained by a long and expensive litigation, in leaving the City to commence another one for the purpose of ascertaining rights which could have been declared in the former suit. As far as concerns those rights, I think it clear, and in fact it was not disputed by Mr. Peters, that notwithstanding the rights granted to the plaintiff Company, the City's franchise under the Act of 1873 and amending Act remains in force; but it is equally clear that such franchise can now be lawfully exercised only by resorting to the powers of expropriation conferred by those Acts. The counterclaim, however, also asked for a declaration that the City had a right to appply for and obtain a record under the Water Clauses Act, and this claim was rightly rejected by the learned trial Judge. 1907 July 31. Privy Council . Full Court, Hunter, C.J. dissenting. 516 MARTIN'S MINING AND WATER CASES. [VOL. *1907 July 31. Privy Council. Full Court Hunter, C.J dissenting. Irving, J. In the result, the respondents remain entitled to the costs of the action, and should have the costs of the appeal on the claim, while each party should pay their own costs of the appeal on the counterclaim, and the judgment should be varied as indicated. Irving, J.: (After stating the facts)—It seems to me to be clear that whatever the rights of the City may be to these waste waters which they propose to acquire without paying the Esquimalt Waterworks Company for collecting there (at the power house), the City has, under its Act of 1873, as amended in 1892, the right to ac- quiie, by the compulsory powers contained in those Acts, the whole ' of the interest of the Esquimalt Waterworks Company in the Gold- stream waters. That seems abundantly clear, and having regard to the pleadings, I think that a declaration on that point should have been made. Now, as to the acquisition of the surplus or waste waters, the question is more difficult. The Esquimalt Waterworks Company by their Act of 1892, acquired (subject, etc.), a licence to take the waters of Goldstream. This privilege enabled them to appropriate waters in advance of their requirements and possibly (see Wilts and Berks Canal Navigation Company v. Swindon Waterworks Company (1874), 9 Chy. App. 451), to supply water for power purposes to the Tramway Company; but does their Act of 1892 confer on them such a property or ownership in the waters flowing in the natural bed of the Gold- stream river as to prevent any other person from acquiring that water under the provisions of the Water Clauses Act of 1897? That question must be answered by considering the objects which were contemplated by the Act of 1892, and the scope of the Water Clauses Consolidation Act, 1897. The preamble to the Act, .after referring to the Water Privileges Act of 1892, goes on to say: "And whereas, it is necessary and expedient at the present Session, to provide for the due conservation of all water and. water-power so vested in the Crown as aforesaid, and to provide means whereby such W(ater and water- power may be made available to the fullest possible extent in aid of the industrial development, and of the agricultural and mineral resources of the Province; " And whereas, for the furtherance of the purposes aforesaid, it is expedient to enact an exclusive and comprehensive law governing the granting of water- rights and privileges, and to provide and regulate the mode of acquisition and enjoyment of such privileges, and the royalties payable to the Crown in respect thereof." The Act then provides for the appointment of a set of officials to whom (under the supervision of the Lieutenant-Governor in Council) the administration of all the water by the Act vested in the Crown, is committed. ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 517 Provision is made for the acquisition of water for ordinary, domestic, agricultural and mining purposes, and the supplying of water by waterworks systems to cities, towns and unincorporated localities. As a consequence of the passage of the Act, the necessity of obtaining the sanction of the Legislature by Private Bill ho longer exists. The Act deals with the acquisition and expropriation of "recorded" water and "unrecorded" water. "Recorded" water is not defined, but we can learn what it is by reference to "unrecorded" water, which is defined as follows: [Already set out.] Much reliance was placed by the counsel for the City on the words "not used for a beneficial purpose," and having regard to the preamble, and the scope of the Water Privileges Act, 1892, and Water Clauses Act, 1897, I do not see how the contention of the City that the waste waters of Goldstream are "not used for beneficial purposes" can be resisted, provided the Act of 1897 applies. It may seem unjust or unfair on the part of the City to avail themselves of all the work of the Esquimalt Waterworks Company, but that cannot affect the plain words of this section. The question then is, whether the Act of 1897 is applicable? By the Act of 1892, passed on the 23rd of April, 1892,^ that is, some weeks before the Esquimalt Waterworks Company made any appropriation under their statute, there was vested in the Crown the right to the use of all the water in Goldstream. The plaintiffs' Act of 1892 gave them power to divert and appropriate so much of the said waters as they should deem suitable and proper. If these two sections are compared, it will be seen how much more comprehensive is the language used in the Public Act than that found in the Private Act. In my opinion, the statute of 1897 Was intended to control the acquisition and use of the waters not appropriated on or before the 1st of June, 1897. The rule that a later general Act shall not interfere with an earlier special Act is not being infringed. It is not in point. The Company's Act of 1892 did not give to the Esquimalt Waterworks Company the exclusive use of Goldstream water from its source to its mouth. Nor .can the Company by taking possession of the source of the stream confer on itself any greater rights than those conferred by the statute. Their Act merely granted a licence to take what was necessary. By a public statute of the same date the Crown reserved to itself the rest of the waters in that stream, and in 1897 the Legislature prescribed a method by which the right to use these waters, as well recorded as unrecorded, could be obtained, that is to say, by application to a commissioner, from whom, instead of from the Legislature, a right to permanently divert water can be obtained. In making that grant the Commissioner must have regard to exist- 1907 July 31. Privy Council. Full Court, Irving, J. 518 MARTIN'S MINING AND WATER CASES. [vol. 1907 July 31. Privy Council" Full Couri Irving J , ing rights (section 15). His adjudication is subject to revision by the Lieutenant-Governor in Council (section 42b). In short, he can take into consideration all those matters wKich the Private Bills Committee would consider; in dealing with a petition for a Private Bill. Under the scheme of the Act the Lieutenant-Governor in Council can see that no injustice is done to the plaintiffs, and at the same time see that the waste waters are made available for the defendants' requirements. For these reasons I would allow the appeal and set aside the judgment. The plaintiffs' application for an injunction should be dismissed. The defendants are entitled to a declaration that they have the right to take the unrecorded waters under the JVater Clauses Consolidation Act, 1897; also the right to take the waters of Gold- stream under the Act of 1873. After making these two declarations, it seems unnecessary to make any declaration as to the plaintiffs'" rights. Morrison, J. Morrison, J. (after stating the facts): The Water Privileges Act in its preamble states that the intention is to define and regulate the powers of companies, incorporated under special Act or otherwise, for constructing and maintaining waterworks and electrical works and having power to divert, appropriate and use streams of water for motive purposes. Section 2 enacts that the " right to the use of all water at any time in any river water-course, lake or stream, not being a navigable river or otherwise under the exclusive jurisdiction of the Parliament of Canada, was 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 appropriate any water from any river, etc., excepting under the provisions of this Act or some other Act already or hereafter to be passed." When this Act was before the Legislature, the rights of the plaintiff Company had not been extended to Goldstream. Doubtless the fact that the Legislature proposed passing such an enactment being known to the plaintiffs led them to secure the subsequent amendments of 1892. The preamble to the Company's amending Act of that year, shews the intention of the Legislature to be to give the Company power to improve their waterworks system by an extension of their operations to Goldstream, and to divert and appropriate its waters for conveyance to the town of Esquimalt and the peninsula described in their original Act, but in sections 1, 9 and 10, the rights of the City of Yictoria in those waters are recognized, and those of the Company are subordinate thereto. Again, there does not. appear in the amending Act any vesting clause similar to J ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. that in section 10 of the Company's original Act. The amendment to the City Water Works Act, passed also at this session, being chapter 51 of the Acts of 1892, does not cut down any rights given the City in 1873. In section 6 power is given the City to lay pipes and carry water through Goldstream district. And by section 14,-^ the City is prohibited from distributing water within the area where the plaintiff Company have the right under their Act to distribute water, thus again shewing the limits within which. the plaintiffs are confined in their operations. Upon the passing of the amendment to their Act, the plaintiffs purchased from the riparian owners on Goldstream their lands and proceeded to build reservoirs, etc. From 1892 until 1897 the Legislature did not deal with the water question. In the latter year a comprehensive and exclusive law was passed governing the granting of water rights and privileges and regulating the enjoyment and use thereof, known as the Water Clauses Consolidation Act, 1897. Section 2 attempts to define "unrecorded water." Included in that definition is water " not used for a beneficial purpose." Doubtless, water may be used beneficially in a number of ways, but in whatever beneficial way it is used, say by the plaintiff Company, it must be in manner authorized by their Act of incorporation. The plaintiff Company not being a power company, are precluded from performing the functions of a power company. So that any use of the water of Goldstream by the plaintiffs pursuant to their contract with the B. C Electric Railway Company is ultra vires, and the water so used cannot be said to be used for a beneficial purpose. The learned trial Judge finds that no beneficial use is or was made of the Goldstream water, except under their contract with the Tramway Company in 1898. That the Legislature did not intend to confer any such power upon the plaintiffs as they are exercising on Goldstream, seems to me manifest. The doctrine of ultra vires as enunciated in Attorney-General v. Great Eastern Railway Co. (1880), 5 App. Cas. 473 at p. 481, was followed in a very recent case, Attorney-General v. Mersey Railway Company, decided by the Court of Appeal on the 4th of December, 1906, and reported in 23 T. L. R, 129. That principle is that " Where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited." And Vaughan Williams, L. J., in the latter case at p. 136, says: 1 You ought to give a wider construction to the words of a memorandum of association creating and defining the powers of a purely commercial company 519 1907 luly 31. 520 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council Full Cour' Morrison, having no compulsory powers and no monopoly than you would give to the words of a statute creating a company like the railway company, having compulsory powers of land purchase* and a practical monopoly." Were the plaintiffs' contention to prevail, the Company would T* have a practical monopoly. Applying those principles to the Company's "charter of its rights," it must be held to be confined to the main purpose of its Act, and restricted in its operation to the area defined thereby, The supplying of water from Goldstream to an electric tramway company to enable it to operate its line of railway beyond those prescribed limits is to my mind, clearly ultra vires. (See sections 15 and 24 of the plaintiffs Act, 1892). If this view be right, and coupling it with the fact that the plaintiffs have made no use whatever of the water of Goldstream for a period of thirteen years, i.e., from 1885 to 1898, I cannot discern' what status they have to seek an injunction or even a declaration of their rights in this respect. The Legislature has made ample provision for the protection of the public as well as private corporations in circumstances such as exist in this case. True, the Company instead of exercising its powers of expropriation in respect to Goldstream, purchased the riparian lands, and therefore claim they have acquired an absolute right to or property in the water. The purchase of lands gave the Company no greater rights than the owners possessed, viz., the right to the uninterrupted, undiminished, unpolluted flow of the water past their land, so that it could be enjoyed for the purposes incidental to their ownership. The Company purchased those lands solely by virtue of the limited authority given them by their Act of incorporation, and for no other purposes, however varied the other purposes to which the lands and water could otherwise be put. The position of the Company, as compared to that of the riparian owner as to the use of the water, is reversed. The riparian owner had the water as an incident to his right to the land. The Company have acquired the land as an incident to their right in the water. But in the present case, those incidental rights in this particular water are subject to that of the City. The rights or licence claimed are not absolute and exclusive as against the defendants. The Company in dealing with realty are restricted to the acquisition of such lands as may be required for the purposes contemplated by the Legislature: Duke of Devonshire v. Pattinson (1887), 20 Q. B. D. 263; The Queen v. Robertson (1882), 6 S. C R. 52 at p. 94, per Gwynne, J. II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 521 In the view I take, the waters of Goldstream are "unrecorded 190: waters!." It follows that the City may apply under the provisions July 31. of the Water Clauses Act for a record of water in Goldstream. The Pbivy Council . Commissioner, in considering that application, must have regard to all the circumstances intended by the Legislature, including any rights Morrison * J of the plaintiffs there. The City in making this application are, in my opinion, pursuing just such a course as was contemplated by the Legislature in passing the Water Clauses Act, viz., complying with the obligation to recognize the right of the Legislature to preserve their departmental supervision over the disposition of such an important public utility as water. The state of the law before 1897 respecting water was unsatisfactory and by passing the Water Clauses Consolidation Act the Legislature attempted to Temedy existing defects therein. They must therefore be held to have intended to limit existing companies very strictly to their corporate powers. I would allow the appeal. Appeal allowed, Hunter, C.J. dissenting. The plaintiff appealed to the Judicial Committee of the Privy Appeal to I Council and the appeal was argued on the 5th and 9th days of July, Council. 1907. Sir R. Finlay, K.C, Luxton, K.C, and Rowlatt, for the appel- Argument. I lants,, contended that the judgment of the trial Judge wafe right, I and ought to be restored. They contended that the waters in suit I were absolutely vested in the appellants under their, Acts of 1885 I and 1892, the evidence shewing that they had fulfilled all the prescribed conditions necessary to their appropriation. Upon the true construction of the two Acts, the provisions of the former Act ap- I plied to the additional lands, privileges, and waters which the de- I fendants were authorized to acquire by the later Act; and accordingly the appellants have a special property, in, and the exclusive I right to use the water in question/which was acquired under these 1 Acts. They referred especially to sec. 10 of the later Act, which Iwas inserted in consequence of an agreement come to between the appellants, respondents, and other companies claiming riparian rights in the waters in suit. It imposed an onerous and perpetual ■ obligation on the appellants at the option of the respondents, and obliged them in that view to incur heavy expenditure in storing and conveying the said waters. This obligation cannot be fulfilled if they are deprived of the waters in suit. The respondents claim title to them under the Water Clauses Consolidation Act of 1897, as waters'which they were entitled to have recorded in their favour; 522 MARTIN'S MINING AND WATER CASES. [vol. 1907 July 31. Privy Council. Argument. also, that at the date of the Water Privileges Act, 1892, the appellants had not then lawfully appropriated them, and had not since got them recorded in their favour. Those two Acts, it was contended, vested the said waters in the Crown, and the appellants could not use them until recorded. But the Water Privileges Act of 1892 is a general public statute passed on the same day as the appellants' private j^ct of 1892. It could not have been intended to take away rights by the one statute which had been granted on the same day by the other. On its true construction, read with the later Act of 1897, which repealed and to some extent re-enacted it with variations, it expressly reserves and maintains the appellants' rights: see sees. 2 and 3 of the Act of 1892, sees. 2, 4 and 5 of the Act of 1897. The rights of the appellants are created by their private Acts, and'the waters so vested in them are not unrecorded waters within the meaning of the Act relied on by the respondents, and are unaffected by their provisions. C. A. Russell, K.C, W. J. Taylor, K.C., and Schiller, for the respondents, contended that under the true construction of the Water Privileges Act, 1892,-sec. 2, and under sees. 2, 40, 41 and 42 of the Water Clauses Consolidation Act, 1897, the waters in suit must be deemed to be unrecorded waters. They had never been duly and effectually appropriated by the appellants. Their right to appropriate was not disprfted, but it was subject to the paramount right of the respondents to apply under the general Act of 1897 for a record of these waters in their favour. Section 9 of the appellants' Act of 1892, provided that nothing therein should be construed as in any way limiting or derogating from any grant or privilege accorded to the respondents under their own Corporation of Victoria Waterworks Act, 1873 (36 Yict. cap. 20). See also sec. 1 of.55 Vict., cap. 51. They were entitled under their own Acts of 1873 and 1892, subject to the limitations therejn specified, to acquire all water which they might deem necessary for the purpose of providing the water supply which they were thereby empowered to provide. Accordingly they served the notices complained of within the area mentioned in their Acts. They were in proper form, as was undisputed, and therefore they were entitled to have the waters in suit recorded in their favour. Luxton, K.C, replied. Cur. adv. vult. 31st July, 1907 Judgment This action was brought to restrain the respondents from enter- SirV1!lfred ing upon certain lands of the appellants and from posting thereon Wills, notices under the Act of British Columbia, intituled "The Water n.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. Clauses Consolidation Act, 1897," and the. substantial question is whether the respondents can appropriate for the purposes of the municipality certain waters flowing from two different sources, Gold- stream River and Niagara Creek, which waters the appellants claim to be theirs under the Esquimalt Waterworks Act, 1885, and ( the Esquimalt Waterworks Extension Act, 1892. { At the trial before Duff, J., judgment was given for the appellants. This judgment was reversed upon appeal to the Full Court, by Irving and Morrison JJ., Hunter, C.J., dissenting. From that judgment the present appeal is brought. By the Esquimalt Waterworks Act, 1885, the appellants were incorporated and empowered to construct waterworks and all appliances connected therewith in the town of Esquimalt and the adjacent peninsula lying to the east of Esquimalt Hjarbour. By section 9 they were empowered to " divert and appropriate the waters of Thetis Lake and Deadman's River and its tributaries, . . . and to contract with the owners and occupiers of " lands taken for the waterworks, " and those having an interest or right in the said waters for the purchase of the same respectively," with provisions of an ordinary character for compensation. By section 10 "the lands, privileges and waters which shall be ascertained, set out or appropriated by the Company for the purposes thereof as aforesaid shall thereupon and for ever afterwards be vested in the Company." It is then provided that it shall be "lawful for the Company to construct, erect and maintain . all such reservoirs " and works " requisite for the said undertaking and to convey the water thereto and therefrom, in, upon and through " any land " intermediate between the said reservoirs and waterworks and the springs, streams, rivers, bodies of waters or lakes from which the same are supplied and the Town of Esquimalt and the said peninsula . . .by one or more lines of pipes as may from time to time be found necessary." Powers are further given to execute any works and occupy any land that may be nec'essary for distribut- , ing water to the inhabitants of the Town of Esquimalt and the peninsula. By section 12 "the Company shall regulate the distribution and use of the water on all places and for all purposes," and shall fix tbr price for the use of the water. By section 27 certain sections of the Land Clauses Consolidation [ Aot, 1845, are incorporated, but as they are not set out in the joint 528 524 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy COUNOII Judgment appendix nor referred to in the judgments of the Courts below, their Lordships assume that they have no bearing upon the questions raised by the present appeal. By the Esquimalt Waterworks Extension Act, 1892, section 1, delivered by the Act of 1885 "shall be so construed as to give power" to the 'Wills. appellants to divert and appropriate so much of the water of Gold- stream River and its tributaries as they may deem suitable and proper, subject, however, to any grant of rights, privileges or powers arising under the provisions of the Corporation of Victoria Waterworks Act, 1873." By section 3 "all rights, powers and privileges conferred on the said Company by the Act of 1885 shall extend and apply to the appropriation and diversion of the waters of the Goldstream River, and its tributaries, and also to the conveying of such water from the place or places of diversion " to the Town of Esquimalt and the peninusula aforesaid," in the same way and to the . same extent as if such rights, powers and privileges had been originally conferred" by the Act of 1885. The Corporation of Victoria Waterworks Act, 1873, gave powers to the Corporation of Victoria at any time thereafter to appropriate any lands or waters within 20 miles of Victoria which they might require for the purpose of establishing waterworks of their own, and provided machinery for ascertaining the compensation to be paid in such case to any person or body politic with whose rights they might interfere. They, however, have not proceeded under this Act for the obvious reason that, if they did so, they would have to pay for what they contend they can get under a later general Act without paying for it, and it is mentioned only to clear it out of the way. The Esquimalt Waterworks Extension Act, 1892, further provided by section 10 that the Corporation of Victoria might at any time require the appellants to deliver into the water mains of the City of Victoria at a stated pressure and at prices fixed by the Act, any quantity of water not being less than 500,000 and not more than, 5,000,000 gallons per diem, together with water for fire protection at a fixed price, and water for flushing and washing gutters and for filling tanks for fire protection free of charge. Gn the same day that this Act received the Royal assent it was given also to the Water Privileges Act, 1892, by section 2 of which it is enacted that " the right to the use of all waters at any time in any river, watercourse, lake, or stream, not being a navigable river or otherwise under the exclusive jurisdiction of the Parliament of Canada is hereby declared to be vested ip. the Crown in the right of the Province, and save in the exercise of any legal right existing at the n.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 525 time of such diversion or appropriation no person shall divert or appropriate any water from any river, etc., excepting under the provisions of this Act or of some other Act already or hereafter to be passed," and with some other exceptions not material to the present question. This Act, however, was repealed by section 154 of the Water Clauses Consolidation Act, 1897, by section 4 of which the right to the use of all " unrecorded water "—a term to be explained presently —at any time in any river, lake, or stream is declared to be vested in the Crown "in the right of the Province." The rest of the section is a re-enactment in the same words of the portion of section 2 of the Water Privileges Act, 1892, beginning " and save"—already set out, with similar exceptions with which this case is not concerned. Under this Act, persons desirous of using water in excess of ordinary riparian rights, may by a procedure which it is unnecessary to detail, obtain from the Commissioner appointed under the Act a "record," or entry in an official book kept for the purpose, of the water which he seeks to appropriate—of its sources, extent and other I necessary particulars, and upon obtaining such record may divert and appropriate the water described in the record. By section 40 1 any municipality may from time to time obtain one or more records | of the unrecorded water in any streams or lakes as a source or sources" of supply for a projected waterworks system." It is under this provision that the respondents are seeking to pro- I ceed, treating the waters of Goldstream River below a certain point land the waters of Niagara Creek as "unrecorded water" .within the I meaning of the Act. But before discussing the interpretation of I unrecorded water given by the interpretation section of the Act, it I will be convenient to state the facts relating to the waters in ques- Ition, and to what the appellants have done under their statutory ■ powers. * Goldstream River took its origin, in 1885, and before any works ■were executed by the appellants, in a series of swamps rather than ■lakes. In winter it was a stream, apparently of considerable dimensions. In summer it dwindled to a thread, or died out altogether. ILts origin lay to the west or north-west of Esquimalt and Victoria, put as it approached Esquimalt Harbour (though at a considerable pistance from it) near a point where it was joined by one of its Tributaries, called Waugh Creek, it took a turn to the north and finally entered an arm or inlet of the sea called Finlayson Arm rr Saanieh Inlet. Near its embouchure it was joined by a tributary vol. ii. m.m.c.—35 1907 July-31. Privy Council. Judgment delivered by Sir Alfred Wills. 526 MARTIN'S MINING AND WATER CASES. [VOL. 1907 July 31. Privy Council . Judgment delivered by Sir Alfred Wills. called Niagara Creek, which has its origin in a small lake to the west of Saanieh Inlet called Niagara Lake. The appellants have constructed dams and other works upon the upper waters of the Goldstream River, the effect of which is to add several hundred acres to the natural storage capacity. They have also bought the land on both sides of the river forming the watershed, have constructed an artificial channel more than a mile long, and laid down a pipe about half a mile long to carry the waters to a reservoir which they have made. From this reservoir they have laid down another pipe about a mile long, and have expended upon these works several hundred thousand dollars. These works would appear to have been necessary in some considerable measure in consequence of the obligation imposed upon them by section 10 of their Act of 1892 to supply within 15 months after notice, if required, 5,000,000 gallons per day to the City of Victoria. No doubt the appellants hoped also to have an increasing demand for water in Esquimalt itself and the Peninsula, but these expectations, if they1 existed, have not been realized, and at present the only use that has been miade of the water and of the artificial works for its collection and distribution has been to supply a large quantity to the power-house of the British Columbia Electric Railway Company, Limited, situated on the Goldstream River about a mile and a half before it turns to the north and some miles from the City of Victoria. From the power-house it is discharged into the Goldstream River, and if the City of Victoria required a supply under section 10 of the Act of 1892, it would be necessary to construct at the point of discharge another reservoir and to lay down far larger pipes tha*n would be wanted for Esquimalt, at a cost of about 300,000 dollars. No demand for any supply has been made by the respondents, and as the supply from Thetis Lake and Deadman's River is at present adequate to the demands of Esquimalt and the Peninsula, the appellants have not yet made this reservoir or laid down any pipe, and the discharged water simply runs down into the old bed of the river and is so carried away to the sea. In respect of the water from Niagara Creek the appellants have made surveys to ascertain the nature and extent of the supply and, have had plans prepared to carry the water—storage in Niagara 1 Creek being impossible—in a ditch to the Goldstream River, and i ^across it to Waugh Creek, whence it would fall into and become part of the general supply. They have also canalized Waugh Creek for | about a mile. The respondents claim that the waters from the Goldstream res-| ervoirs and river after its discharge below the power-house, and alsow j ii.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 527 1907 July 31. Privy Council. Judgment the whole of the waters of Niagara Creek, are " unrecorded " water and can be recorded in their favour under the Act of 1897. The first question is whether that Act has any application to the appellants. In their Lordships' opinion, it has none. The Esquimalt Waterworks Act of 1892 has imposed upon the delivered by ,-.,,.. . r \ Sir Alfred appellants a perpetual obligation of very serious extent, and it would Wills. seem natural that the means granted them to comply with that obligation should be correspondingly perpetual. It is clear" from section 3 of their Extension Act of 1892 that their rights are exactly the same, provided the conditions of section 10 be observed, as if they had been conferred by the Act of 1885. We have therefore, from - the passing of the Act of 1892, a private Act dating back to 1885 by which the appellants are placed under obligations as to which the natural inference from the Acts themselves and from the history of the ease is that they could not be certain of being able to perform them without the two sources of supply in question. One of the reasons for executing the extensive works on the Gold- stream River must have been that.it was necessary for them at once to be in a position, with the help of such minor works as could be constructed at any time within 15 months, to supply the maximum quantity of water which the respondents could demand. The neces* sary works in connection with Niagara Creek were very much simpler, ftand when the necessary surveys ar^d plans had been made there was no reason why the appellants should not wait, as to them, till the need actually arose. It is true that by section 10 of the Appellants' Act of 1885, in order to vest in them the waters they were entitled to appropriate, it was necessary that these waters should be " ascertained, set out, or appropriated." In the case of the Goldstream River every act was done by which not only one but each of the three of these conditions was fulfilled, and it is difficult to see what more they could have dorie to vest these waters in the Company " for ever," according to the terms of section 10. As to the waters of Niagara Creek, there is in their Lordships' , opinion abundant evidence to shew that the " privileges and waters " now in question were ascertained and set out by the appellants, which is quite sufficient to satisfy the section. The vesting is not made subject to ascertainment or payment of compensation, and as in respect of Niagara Creek no person's enjoyment, whether rightful or not, has at present been interfered with, it is not surprising that the provisions for compensation have not been resorted to by any one. Nor can their Lordships agree that because the water below the ipower works on the Goldstream River is not yet used by the appel- 528 MARTIN'S MINING AND WATER CASES. [VOL. 1907 lants that it has ceased to be theirs. The Act of 1885 is not am- UZ_ ' biguous. It vests in them such waters as have been ascertained, set Privy out or appropriated, and their Lordships fail to see how the.waters — which have been collected by the appellants cease to be their waters dSveSd'by a^ any P'0^ within the limits of ascertainment. The deeds put in Sir Alfred evidence shew that the lands on each side of the whole course of the Goldstream River were bought by the appellants, and there can be no doubt that the waters of Goldstream River 'from their source to the discharge into Saanieh Inlet are comprehended under the vesting enactment. It is equally clear that the waters of Niagaf a Creek became under the same enactment vested in the appellants and they must remain so unless they can be dealt with by the respondents under the Act of 1897. It is a sufficient answer to any such contention to say that the Appellants' Act of 1885 and 1892 are private Acts, in the sense that they confer special rights and impose special obligations upon a particular company for special purposes; and to hold that a subsequent general statute, the application of which might seriously interfere with the rights granted by special legislation to the appellants and might prevent them from fulfilling statutory obligations, can • have been intended to override the special legislation, would be contrary to sound and well established principles; and if ever there was a case in which these principles ought to be observed, the present is such an instance, for the result of the respondents' contention might be that the appellants could not perform the obligations of section 10, and in that case, the condition being violated, the rights and privileges which had involved the costly outlay above mentioned would be gone. Their Lordships are further of opinion that the waters in question do not fall within the definition of unrecorded water in section 2 of the general Act of 1897. The definition runs as follows:—" Unrecorded water shall mean all water which for the time being is not held under and used in accordance with a record under this Act, or under the Acts repealed hereby, or under special grant by public or private Act, and shall include all water for the time being unappropriated or unoccupied or not used for a beneficial purpose." The term I record" was not new. It appears first in the Land | Act, 1888 (repealed by the Act of 1897), and the procedure by which it was obtained and the nature of the rights secured thereby were practically the same in three of the Acts repealed by section 154 of the Act of 1897 as under that Act. II.] ESQUIMALT WATERWORKS CO., LTD. v. CITY OF VICTORIA. 529 The first -part of this definition is clear enough. It can have no other meaning than,—"unrecorded water" shall mean all water which is not held under and used in accordance with a record under this Act, or [with a record] under the Acts repealed hereby, or [is not held*] under a special grant by public or private Act; for the words "under special grant," &c, if supposed to be attached to "a record/' would be hardly intelligible and they must therefore be read as connected with the earlier words " is not held." Such'Water as that now in question is held under special grant by what is called in the clause a " private" Act, and is therefore not within the meaning of " unrecorded water " at all, and the subsequent expression " and shall include all water . . . unappropriated or unoccupied or not used for any beneficial purpose," whatever its application may be, cannot in their Lordships' opinion be intended to refer to water already declared to be outside the definition of " unrecorded water." This view is borne out by section 4 of the same Act, which is clearly meant to preserve any right of diversion or appropriation existing under the provisions of any Act already passed. The respondents raised yet another point, which was but feebly pressed in argument—that under the Act of 1897 all such questions as the present were intended to be decided, subject to certain rights of appeal, by the Commissioner to be appointed under the Act. Their Lordships, however, can see in the Act no ground for saying that the appellants, who contend that they are outside the Act altogether, should not be entitled to apply to a Court having jurisdiction to give effect to that contention, in limme, if well founded. Their Lordships will therefore humbly advise His Majesty that .this appeal should be allowed and the judgment of the Full Court reversed with costs, and the judgment of the trial Judge restored. The respondents must pay the costs of this appeal. F Co RIVY UNCI Juc IR Alfr rILLS BE Note.—As to what is a private act, see also First of May Mining G Cariboo Gold Fields, Ltd., ante. p. 292. 530 MARTIN'S MINING AND WATER CASES. [VOL. 1907. November 4." Wilson, Co.J. In re Coal Mines Act: Re Baker, Leckie, Watt et al. Coal Mines Act and Amendments of 1903-4 and 1901—Prospecting Licences for Coal and Oil (Petroleum) and Lease of—Overlapping and Conflicting' Areas and Licences—Location Lines, Defects in—Compass Bearing and Variation—Tree Stump used as f Stake or x'ost." Where applicants for a prospecting licence over locations under the Coal Mines Act and amendments take no step to- enforce their; alleged right thereto for a period of nine years after the refusal of the proper* officer to entertain their application, they will be deemed to have abandoned it, and the obtaining of a special licence issued under Order-in-Council of Ith June, 1904, does not assist them. Location lines must run true north and south and true east and west. A tree stump properly squared may be used as a " stake or post" under sec. 2 of said Act in making location. Held, on the facts, that the locations covered by the Watt Group of licences were invalid, and not made as alleged. Statement. Petitions to the County Court of East Kootenay by opposing claimants under the Coal Mines Amendment Acts, 1903-4 and 1907, for adjudication of their rights of priority and otherwise under licences to prospect for coal and oil (petroleum) over certain lands I on Sage and Kisheneenah Creeks, in East Kootenay, in regard to which certain proceedings, reported ante p. 373, had already been taken. One group of claimants, hereinafter called the Bowman-Leonard group, had staked its locations in. 1895, but no,licence had been applied for till 1904, when it was granted. The Watt group of locations was staked in July, 1900, and a licence applied for and granted in 1904. The Cranbrook group was staked iri August, 1900, and a licence applied for and granted in 1900. The Tupper-Leckie group was staked in September, 1901, and a licence duly applied for, but on being offered the special form of licence (ante p. 374), the applicants refused to accept it and demanded unsuccessfully the authorized statutory form of licence. The Greenwood group was staked in 1902, and a licence applied for and granted in 1904. These various groups overlapped, and the question was to determine who was entitled to the over-located area, which largely turned upon the fact as to whether or no the Watt group had been located at the time alleged. The hearing took place at Cranbrook before His Honour Judge Wilson, on the 26th and 27th days of(August, and on the 18th, 19th and 20th days of September, 1907. II.] In re COAL MINES ACT: Re BAKER, LECKIE, WATT et al. 531 Sir Charles Hibbert Tupper, K.C, for the Tupper-Leckie group of claimants. S. 8. Taylor, K.C., for the Greenwood group. J. A. Harvey, for the Cranbrook group. R. T. Elliott, for the Watt group. M. A. Macdonald, for the Bowman-Leonard group. Cur. adv. vult. 1907 November 4. Wilson, Co.J. Statement. 4th November, 1907. Wilson, Co. J.:—Certain applications herein have been brought before me under the' Coal Mines Act,, and as a result of those applications five sets of claimants appeared at the hearing. These claimants, for convenience, I will classify as follows: (1) The Tupper-Leckie group; (2) The Bowman-Leonard group; (3) The Greenwood group; (4) The Cranbrook group, and (5) The Watt group. Tne application in regard to the last group only is for an order leading to a lease tinder the amendment of 1907. I will, therefore, first deal with the facts as alleged by the claimants in each group. The first in priority is the Bowman-Leonard. The facts as alleged by the claimants are that they located their ground (long previously discovered by them to be oil bearing) in August, 1895; that after proper location they immediately started for the Government office at Donald some 200 miles away, in order to have the necessary applications filed, and notices posted and advertised; that on the way they were informed that the Government agent for the district was then in the lower county, and that they immediately went to his camp and tendered him the necessary fees and the applications for their licence; that they duly mailed copies of the notices to the Government agent's office for posting under the Coal Mines Act. The Government agent refused the applications and tender on the ground that the land was undei; reserve and could not be staked as oil lands, or otherwise dealt with. The applicants, after repeated attempts to have their applications accepted, bowed to the inevitable, and did nothing further at that time in regard to their applications. In 1904, however, hearing that the country was open and that applications were being made for licences there, they, without re-staking, applied in the usual course and took all proper, necessary steps by advertising and otherwise, and had granted to them the licence in the form provided by the special order-in-council approved June, 1904, and that the same have been renewed from year to year. The facts as alleged, I find, as a fact, to be true. This location only covers certain ground on Sage Creek. J udgment. 532 MARTIN'S MINING AND WATER CASES. [VOL. 1907. November 4. Wilson, Co.J. Judgment. 2. The second location as alleged was that of the Watt group in July, 1900. The facts as alleged are that the applicants properly located; that they made the usual applications and tendered the necessary fees to the department at Yictoria, B.C.; that they were informed that the land was under reserve, and that they attended on the officials of the department on numerous occasions and had further correspondence from that time until 1904; that in 19 04 the applicants duly advertised their notices, filed the applications in the office of the Government agent at Fort Steele, posted notices in the Government office and had the special licence under the 1904 ojder-in-eouncil granted to them, and the same have been renewed from year to year. The only fact in dispute in this matter is the question of proper staking, or for that matter, staking at all. On that point a great mass of evidence has been tendered. I must find as a fact that Watt did not make proper stakings in 1900. It is inexplicable to me how a man could go into a rough country, such as this is, and stake out the groups of claims this man did without leaving any fractions, or having any claims short. In other words, he made an absolutely perfect staking, to, in each case, take in every inch of ground he required, and not go an inch further. If it had been suggested that the ground had been surveyed beforehand, and he had placed his posts guided by that survey, he could not have done more perfect work. I certainly must be governed by the evidence of surveyors such as McVittie and Leckie on this point, that it was absolutely impossible for Watt to have done any such staking. In addition, dealing with the question apart from the expert evidence, it certainly appears incredible to me that such staking could be done up mountain sides and across valleys. On this . point much has been said as to the evidence of the witness Brown, in contradiction to that of McVittie. Brown went in with McVittie I when the Cranbrook group were located and acted as guide. I am convinced that McVittie's evidence on this point is correct, and the kindest thing I can say of Brown's story is that he is mistaken, or has forgotten. Many credible parties were over the ground apart from McVittie and Brown, and no sign of these posts spoken of by Brown were ever seen by any of them. But the result, in my mind, as to this staking, is governed by several material facts, as follows: 1. Its perfect accuracy, when the staking was done by a layman with inaccurate instruments over a rough country. 2. The fact that all the posts from the claims have disappeared, except two, which were the two key posts. 3. That no other posts were on the ground when the surveyor went there, ^and he was only shewn points to start from. ii.] In be COAL MINES ACT: Re BAKER, LECKIE, WATT et al. 4. That, no evidence exists of the making of any posts in the locality in whicli they were claimed to be, such as chips, tops of trees or stumps. 5. Watt, according to his own evidence, claims that he located on a compass variation* of twenty-three degrees, thirty minutes, while his surveyor's field notes filed shew a survey based on a variation of twenty-four degrees, forty minutes, while the survey in each case corresponds exactly with the staking. Such being mjf finding, I conclude that the staking was at the least not properly done, nor was it done at all in 1900. 3. I come then to the next staking, as alleged in point of time, namely, the Cranbrook group, and the James Baker, Ida Baker, W. F. Gurd and C. Hutchison claims of the Greenwood group, all staked in August, 1900. It is alleged that these claims were properly staked on the ground; that all proper notices were posted on the ground and in the proper offices; t^at the necessary advertising was forthwith done and all necessary documents filed with the ^proper officer and proper fees paid; that the applicants had issued to them on October 3rd, 1904, prospecting licences, and that they performed the necessary statutory work and paid the requisite fees for renewals, and have had renewals granted them from year to year to date, and I find such matters as a fact. 4. The next staking in order is that of the Tupper-Leckie group, which was done in September, 1901. It is alleged that these claims were properly staked on the ground; that all proper notices were posted and advertised forthwith, and all necessary fees tendered for licences; that the applications for the licence under the Act were refused; that the petitioners have consistently, insistently and persistently pressed for the statutory licences (instead of the licences issued in pursuance of the order-in-council); that they were, and are now, entitled to the same. These petitioners have'brought the fees for the licences into Court. I find as a fact that the petitioners have taken all neeossary steps as alleged for obtaining licences. In my opinion the licences should have been granted (subject to conflict with the Cranbrook group and for other claims named), and these applicants are now entitled to the same for such ground as is not covered by other applicants prior in time, which point I will deal with later. 533 * Sec. 4. Every piece of land sought to be acquired under the provisions this Act shall be of a rectangular shape, and each licence shall include within the general limits therein defined^ land not exceeding six hundred and forty acres for each licensee, and such land shall be in one block. Six hundred and forty acres shall measure eighty chains by eighty chains, and all lines shall be run true north and south, and true east and west. 534 MARTIN S MINING AND WATER CASES. [vol. 1907. November 4 Wilson, Co.J. Judgment. 5. I then come to the last group, the Greenwood claims. The first four of these, i.e., James Baker, Ida Baker, W. F. Gurd and C. Hutchison, I have dealt with in the Cranbrook group. , As to the others, it is alleged, and I find as a fact, that all necessary legal steps were taken to entitle the parties applying to have licences granted under the Act if there was any vacant ground to which they could attach. Turning then to the standing of each group. The Bowman-Leonard group must, I think, be treated as being abandoned. WThen the applicants ascertained, in 1895, that the Government agent would not accept their applications, in my opinion they accepted that decision, and their conduct for the next nine years bears out that contention. They took no further step and made no attempt to obtain title till .1903. Surely they could not stand by'during that period and consider that they still retained or ever had any rights. In my opinion ' in 1895 they accepted what they thought was the inevitable and abandoned all their rights.' I cannot see that section 2 of cap. 28, 1907, which validates and confirms all licences issued under the special order-in-council of June 4th, 1904, can in any vay assist them,'as the very licence issued in pursuance of that order-in-council states Jf that for the purpose of enabling all parties to go before, the proper tribunal for the determination of their respective rights and priorities, this licence is issued and accepted subject to such prior rights of other persons as inay exist by law, and the date of this licence is not to be taken or held as in any sense determining such priority; and further, it shall not be taken or held to Waive enquiry by the Courts into the proper performance of all conditions precedent as between adverse claimants." That, in my opinion, leaves the whole question open for determination by me and in no way affects the status of the parties. In that view, the Bowman-Leonard group must fail. 2. The next group in order is the Watt group, but in the face of my finding of sfact, I must decide against its validity without even dealing with the question of abandonment. 3.. The next group is the Cranbrook group, and I find these claims to be valid and entitled to priority. Here it may be convenient to < deal with the question of validity to staking raised by Mr. Elliott, in regard to all the groups. The evidence shows that each claim w staked by using the stump of a tree cut down to meet the requirements of the Act as to size, and that, Mr. Elliott claims, is not placing a stake as required by the Act. He cites the definition of legal post as given in the Mineral Act, the Placer Mining Act, and the Land Act, which contain express provision that a stump or tree may be used, and | therefore in the absence of such statutory provision here, the expies- n.] In re COAL MINES ACT: Re BAKER, LECKIE, WATT et al. 535 sion stake or post must receive its ordinary interpretation. From that view I differ. Undoubtedly in the Minerals Act and Land Act it has been deemed necessary to define a " legal post," and has been made to include a stump or tree, but because the definition there is made specific as to a stump or tree being included, I do not think it affects, the Coal Mines Act. Surely the intention of the Act is to have some noticeable mark on the ground to show a prospector that the land is taken up. Once the tree is cut down into a post as required, it, for the purpose of the Act, becomes a stake or post, no.matter how it is fastened to the earth. The only difference between it and the post or stake, as Mr. Elliott contends it should be, is the manner it is held in the ground. In my view the prospector has placed his post once he makes the stump into the post on which he places his notices as fully as has the man who plants a post in the earth. I therefore find A. W. McVittie, E. L. McVittie, H. H. McVittie, A. E. Watt, James Baker, Ida Baker, W. F. Gurd and C. Hutchison claims are entitled to priority. As to the Tupper-Leckie group, I find that they had, and still have, rights to prospecting licences for such of their claims as do not conflict with the foregoing claims, and they will be to that extent entitled to priority. As to .the Greenwood group,, they will have priority for such ground, if any, not covered by the foregoing groups. I will hear argument on the question of costs. 1907. November 4. Wilson, Co.J. Judgment. Note:—As to abandonment see Peck v. Beginam (1884) 1 M. M. C. 13 and cases cited sub nom. in Index-Digest to Vol. 1: also Eastern Townships Bank v. Vaughan (1907) ante p. 444. As to tree stump being used for a post, see Butherford v. Morgan (1904) ante pp. 214, 218. As to compass variation, see Docksteader v. Clark (1904-5) ante pp. 192, 302; Manley v. Collom (1902) 1 M. M. C. 487; Callaghan v. Coplen (1900) Ib. 348; and Francwur v. English (1897) Ib. 203. 536 MARTIN'S MINING AND WATER CASES. [VOL. 1907. November 20. Supreme Court of Canada. McMeekin v. Furry et al.* (39 S. C. 378.) Note :—Since the report hereof, given ante p. 432, was in the press, the appeal by the plaintiff and the defendant Leopold Boscowitz from the judgment of the Full Court of British Columbia to the Supreme Court of Canada was, on the 20th of November, dismissed by that Court, which dealt with the case solely on the question of the Statute of Frauds, as appears by the following conclusion of the reasons of Mr. Justice Idington, who delivered the judgment of the Court, composed of Fitzpatrick, C.J., and Girouard, Davies. Idington and Maclennan, JJ.:— ". . . The objection is taken that the registration was, for want of the written authority of the principals required by section 50 of the Mineral Act, void. In the view I have just expressed, that it is not a case of agency at all, but of one man using as his own a firm name, this objection falls to the ground. The claim is made that this interest of one-half was reduced to twenty per cent, by a later agreement. The objection is taken that this agreement for a reduction of this interest from one-half to one-fifth is not evidenced by the necessary writing under the Statute .of Frauds. I agree that the objection is fatal to this claim. A clear case may be made by oral evidence of accord and satisfaction, or even of a substituted agreement in some such cases, cannot find either here. Elaborate and able argument on either side has left, so far as I am j concerned, the deepest distrust. I am glad there was a small writing, however unsatisfactory in some respects^ to guide us in the part of the case I have been thus far enabled to form an opinion upon. It would serve no good purpose now to analyse the mass of contra-1 dictions and improbabilities on either side and show why I am unable ] to form an opinion; much less one that I ought to feel clearly established before giving effect to it as against the admitted writing. A deeper cut than either party chose to take might have opened up 1 a satisfactory solution. Also reported below in 13 B. C. 20. \mM-?i'\ 538 MARTIN S MINING AND WATER CASES. [voi.. 1907. November Full Court Star Mining and Milling Co. v. Byron K Whitk Co. Extralateral Bights — Apex — Trespass Workings — Vein, Fault in — Experimental Work—View—Evidence—New Evidence on Appeal—Onus of Proof —Presumption—Bejection of Evidence by Trial Judge and Bemissiow Back to Him—Practice—New Trial. A miner who seeks to justify his encroachment upon another's ground by asserting extra-lateral rights must clearly establish them by preponderance of testimony, for the onus of proof is on him because the presumption is that a locator within his own lines and ground is the owner of all valuable deposits of mineral. Where new evidence is heard by the Full Court which should have been received by the trial Judge, all issues of faGt found by him which are affected by such new evidence cannot stand, and said issues and the judgment thereon are re-opened for determination by the Full Court, and the appellant is relieved from the onus of shewing that the judgment appealed from is wrong. Held, on all the facts now before the Court that the finding of Hunter, C.J., for the defendant should be reversed, and judgment entered for the p]aintnp> for the trespass complained of, Morrison, J., dissenting. Statement. Continuation of the hearing of the appeal herein pursuant to order of the Full Court, made on November 15th, 1906 (ante p. 401). On the 8th April the Court, Irving, Martin and Morrison, JJ., sat, and counsel announced that the work ordered to be done under the superintendence of William E. Zwicky had been finished as directed and as set out in his written report filed in Court. Davis, K.C-., and 8. S. Taylor, K.C, for the appellant. Bodwell, K.C, and Lennie, for the respondent. It was suggested by Davis, K.C, that the Court, of its own motion, should call Zwicky to state under oath what he had done, as he was really in the position of an officer of the Court for the time being, and also his foreman, leaving it to the parties to cross-examine them. As a matter of precaution the appellant had served subpoenas on the said persons to insure their attendance, but had refrained from questioning them with regard to their evidence. Bodwell, K.C, said he would leave the matter to the Court, whereupon, after a short adjournment to consider the matter, it was declared, Per Curiam.—We have looked at the order of November 25th, particularly sees. 2 and 5, under which the work was "directed to be ] J I n.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 539 I done, and are of the opinion that since it is admitted said work has 1907 I been duly performed, it is not necessary for the Court to call Zwicky, °vem I but it is-open to either of the parties to call him as a witness. Full Court. Counsel for appellant thereupon reviewed the proceedings and pro- Statement- I ceeded to call witnesses who testified with respect to the new work, and I its effect on the evidence and theories already before the Court. I Counsel for the respondent did likewise, and the witnesses were not I confined to those who had already testified below. The examination I of witnesses and argument continued up to and including the 23rd of I April, when * Cur. adv. vult. 23rd November, 1907. Irving, J.:—This is, in one sense, an appeal from the Chief Justice, but owing to the turn events took after he had delivered his judgment, we are called upon to decide the case upon evidence not adduced before him. The plaintiffs, who are the owners of the Babbit Paw and Heber Fraction mineral claims, issued a writ on 31st July, 1901, to restrain the defendants from trespassing on their claims, and for damages. The defendants justified the trespass complained of under the authority of section 31 of the Mineral Act, 1891, which conferred upon I them certain extra-lateral rights in respect of a vein which extended through their two claims, called the'Slocan Star and Silversmith re- l spectively. The plaintiffs'5 case, as put forward at the trial held in February, 1904, was that this vein, in respect of which the defendants claimed their extra-lateral rights, had been " faulted * by a fissure vein near the westerly end line of the Slocan $tar mine, and that the defendants' J vein, instead of being a continuous vein, consisted of two separate [ and distinct veins, viz., the Slocan Star vein, broken as already stated I at the westerly end of the Slocan Star claim, and the Silversmith' vein; [ the connecting or intermediate portion running north and south, they I said, was a fault fissure, which, from the colour of its filling, they I called the Black Fissure. There is also another section of the defendants' alleged vein to be I mentioned, viz., that portion lying to the west of the so-called Black Fissurei and connecting it with the Silversmith vein. This portion, the plaintiffs say, is not vein matter, nor mineralized in any way. The trespass complained of was committed in June, 1900, and con- l sisted of taking ore from the stopes to the west of the end line of the i Slocan Star mineral claim. 540 MARTIN S MINING AND WATER CASES. [vol. Irving, J. 1907 The defendants alleged in evidence that they were not aware that November 23. they had g(me beyond their end line u:Qtil October, 1900. At that date Full Court, little or no work had been done on the Silversmith claim; on the Judgment, Slocan Star claim the apex pits had not been continued to the northwest beyond Pit 19; levels 1, 2 and 3 were as they are to-day; No. 4 tunnel had not been run into the Silversmith, nor had the upraise to. Pit 19 on the surface from No. .4 been ran. No. 5 level had only reached a short distance into the Heber Fraction, say about station 21, and the winze was being sunk from the No. 5 level below, for prospect->: ing purposes. When* therefore, the Slocan Star people were informed that they were outside of the westerly end line of the Slocan Star in an ore- bearing vicinity, we can assume that there was some consideration given as to how this apparent trespass was to be justified. The statute conferring extra-lateral rights which would justify them going outside of their side lines gave them no excuse for going beyond the end line" of their claim. Their justification must therefore be sought in shewing that they were following down on the dip of the Silversmith vein through the side lines of that claim. With a vifew. to establishing this connection they, in the spring of 1901, commenced to trace the outcrop by digging the surface pits from Pit 19 on, in a north-westerly direction, so as to connect up, on the surface, the Slocan Star vein with the Silversmith vein, and in June they started to run No. 4 Silversmith tunnel in from station 48 in a south-westerly direction, and they continued to drift on their No. 5 level so as to connect the two claims underground. At the date of the issue of the writ, 31st July, 1901, No. 4 level of the Star had reached station 18; the face of No. 5 level was at 21; No. 4 tunnel on the Silversmith would be in only some 100 feet or so. Looking at the case, as of that date, I cannot see that the defendants had at that time any evidence upon which they could substantiate the defence which they subsequently set up,, viz., that they, as owners of the Silversmith mineral claim, were entitled, under the extra-lateral rights given to that claim by section 31, to the veins or lodes in the Heber Fraction lying to the west of the Slocan Star end line. I think this is a fact of some importance, because work done after writ ' issued, or after trespass committed, should be scanned with some degree of suspicion. I do not want to press this principle too far, but in considering an argument put forward by the defendants' leading^ exponent, Mr. Elmendorf, in support of his contention that the Slocan Star was a continuous vein, viz., that the best proof of continuity was that the ore bodies in the Silversmith had been reached by the miners running No. 5 drift without any connection from above to guide them and no knowledge of where the ore existed (at 52-3 on No. 5 Silver- il] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 541 smith), notwithstanding the very irregularity of form of the drift 1907 itself, one should remember that although the workings in a mine ove™^r 23- (Morrison, p. 417, cap. 318), made in mining operations and not in -^l^otrt. support of litigation, are generally important as evidence of any facts Judgment, which may be inferred from them; that inference cannot be drawn lRVING> J- with confidence where the work has been done after litigation for purposes of the action. After the writ was issued there was an application for an injunction and some affidavits filed. Those proceedings have been referred to in connection with Mr. Oscar White's credibility. As that matter will be dealt with later, it will be sufficient to state now, that in resisting that application, he (Oscar White) on the 31st August, 1901, made an affidavit that the total amount of ore taken from the ground claimed by the plaintiffs did not exceed the net value of $500 (p. 1528), and that Byron White, in an affidavit of same date (p. 1622), said the amount of ore excavated in all from the ground of the Babbit Paw and Heber Fraction amounted to, in his belief, the sum of $500. This statement by Byron White, as to value, was based on information furnished by Oscar White. In the autumn of that year the defendants discovered considerable ore in No. 4 Silversmith, about 140 feet from the portal, between stations 11 and 13 (885). At that time the drift which was being run in a northerly direction from the Heber Fraction had reached station 29, on No. 5 level. The pleadings closed on the 28th November, 1901. They were of the most general character and gave no indication of the theory that the plaintiffs intended to set up at the trial, but, during the examination of Mr. Harris, for discovery, in October, 1903, before trial, an indication of the plaintiffs' line of attack was given; he then expressed an opinion that the Slocan Star vein, instead of turning to the north, continued on in a straight line across the porphyry dyke, and that the Babbit Paw claim had in this way caught the Slocan Star vein. According to his theory the Silversmith vein was an independent parallel vein some 850 feet to the north (1291, [ 1063-4). After the plaintiffs' experts had obtained inspection of the mine (viz., on 4th February, 1904), the theory that the Slocan Star vein continued straight on westerly was abandoned, and at the trial which opened on the 12th February, 1904, the new theory of a fault fissure occurring at the bend was set up. Their theory is that the defendants have, by turning the levels, run on the Slocan Star vein proper into the black fissure at the south turn, and at the north, by following non-ore-bearing planes and the VOL. II. M.M.C. 36. 542 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November 23. Full Court. Judgment, Irving, J. stratification of country rock, have given to their No. 5 level an appearance of continuity on ore or in vein matter between mineralized walls from east to west where in fact there is no real continuity. The plaintiffs say that the wall* of material in which the defendants ran their drift, between the winze and station B on the 5th level, is the filling of the black fissure. On the other hand, the defendants say the drift om No. 5 level, between the winze and B, is in their vein, that the Slocan Star vein continues from the winze to B and there turns. The filling, they say, is vein matter, and that its crushed appearance is the result of movement in the vein, but the movement has not interfered with the continuity of the vein which they claim they have following in their workings. The defendants contend that there may be a fault in the vein," but that a fault in the vein does not necessarily prevent the vein from being continuous (1497). When the trial opened,, on the 12th February, 1904, the defendants (upon whom the onus of proof is) began, and gave evidence of the stopes in question being on the dip of their vein and of the continuity of their vein; but the pleadings being vague, Mr. Bodwell found some difficulty in dealing with his witnesses on re-examination. He examined, on behalf of the defendants, Mr. Bruce White, the first superintendent of the defendants' mine; Mr. Oscar White, who succeeded Mr. Bruce White in October, 1898, and who was superintendent when the trespass complained of was committed; Mr. Cavanagh, a relative of the Whites, and an assistant in the defendants' mine; Isaacson and Fox, two miners employed in the mine; Mr. Drewry, a land surveyor in the employ of the defendant company; Mr. Twigg, another land surveyor; two foreign experts, Mr. Elmendorf, retained in September, 1903, and Mr. Parks, retained in September, 1901; and two local mine managers of experience in the j Slocan district; Messrs. Sharp and Davys. With the exception of Mr. Twigg and the two local mine managers, the others were interested, either by direct pecuniary interest or sympathy in the success I of the defendants' case. The evidence of the defendants was directed to shewing the un-1 broken continuity of the vein from Sandon Creek to the westerly I workings in the Silversmith claim. They -represented that the hanging wall of the vein could be I followed on No. 5 level very plainly all through—Parks (p. 404). I Elmendorf (p. 97). however, was more guarded; that coming north! they were following their own vein; that their vein turns to thei west at B; that at point C the hanging wall crosses the drift from! J II.] STARiMINING AND MILLING CO. v. BYRON N. WHITE CO. 543 the left or south side to the north, right-hand side, and comes out 1907 at D, and that their drift continues all the way from E to station 52 between mineralized walls. , Full Court. The plaintiffs' contention was that the Slocan Star vein was cut Judgment, off by the black fissure which extended to the south and beyond the hanging wall of the Slocan Star vein, and that it was the black fissure that the defendants were following; that the black fissure does not turn at B but continues on to X; that the material difference from the country rock that the defendants saw in running from B to C was black fissure material which they had to break through; and that there is no connection on ore between B and 52; and that the walls followed by them from B to 52 were mere non-mineralized planes. On the opening of the plaintiffs' case, counsel stated that he would shew that from the winze or turn at the south end of No. 5 level, to X'at the extreme north, there existed a separate and distinct fissure, separate from the fissure containing the Slocan Star vein and separate from the fissure containing the Silversmith vein. It was not an ore-bearing fissure, but contained a filling having for its main constituent a soft crushed slate of. dark colour, on account of which they had designated it the black fissure; that in this fissure there was a 1,200-foot barren stretch; that the line run by the defendants as their vein was formed by uniting these three fissures into one; that this union brought about the peculiar contortions shewn in the northern and western parts of their level; that the defendants had neither walls nor ore to establish the continuity of their vein. Then, after the cross-examination of Mr. Sizer had proceeded a certain distance on the 25th February, counsel for the plaintiffs referring to the issue of fact which had been gradually developed during the trial, and fully stated by Mr. Sizer, proposed that certain work should be done and that that work should determine the issue (1092.) This was agreed to, in a more or less indefinite way, but the examination of witnesses proceeded. Like the evidence on behalf of the defendants it was, in the main, the testimony of experts and persons interested in the result, and at the close of it the Judge seems to have felt that he was not then in a position to give a decision and that therefore some further work was necessary. It was accordingly arranged that some work should be done under the superintendence | of a Mr. Parish^ but owing "to illness, Mr. Parish had to resign, and I so matters remained at a standstill until December, 1904, when the Chief Justice himself, accompanied by the leading experts on each side, paid a three days' visit to the mine. This inspection by the Judge, accompanied by the experts, I see by the decree, was a consent I arrangement. I think it is to be regretted that counsel did not also attend, for, instead of adhering to the plan originally agreed upon, 544 MARTIN'S MINING AND WATER CASES. [VOL. 1907 member 23. Judgment, Irving, J. viz., that work should be done to test the soundness of Mr. Sizer's : • contention that there existed three separate fissures, the Chief Justice Full Court, thought it would be sufficient to enable him to reach a conclusion if a drift was run from C to a point 27 feet east of D, or as it has been called, D minus 27, that is, instead of testing Sizer's black fissure I theory, which test required a drift through the Star hanging wall with cross-cuts at the south and a cross-cut at X (two experiments I which Mr. Sizer said would either prove or disprove his theory), a wholly different piece of'work was directed to be done. As to this work and why it was ordered at this particular place I shall refer later. To the substitution of this one piece of work for that origin- I ally agreed upon, objection was taken at once by the plaintiffs. In January, 1905, while the new work, i.&,, the drift from C to 27D.^ was being run, an application for other work was made and that I application was renewed in May, 1905, about which date the Chief j Justice, accompanied this time by Mr. Oscar White, the defendants^ manager, and Mr. Fowler, an expert retained by the plaintiffs, made j a second examination of the mine. To both of these applications^ there was a refusal, with the result that on the 25th July, 1905, when^ the case came on again for what has been called the second trial, the work, for the doing of which the hearing in February, 1904, had- been adjourned, was still undone. Once more the plaintiffs applied for further experimental work, but this was not granted and the trial proceeded and judgment reserved. At the close of the trial the same application was made for more experimental work, with the same result; and in the end judgments was given in favour of the defendants (12 B. C, 62). The learned Chief Justice proceeded on the ground that the 5th level shews that the vein was continuous (p. 2059), and that between^ C and D27 there was a clearly defined hanging wall and the characteristic vein filling which was to be found in the Slocan Star and Silversmith was to be found in the cross-cut run between those points by his direction in December, 1904. From that judgment an appeal was taken to this Court and at the same time an appeal from the interlocutory decision refusing to allow the experimental work to be done, was also taken. After argument, this Court came to the conclusion that the plaintiffs should have been allowed to have the work done which they contended-was necessary for the proper presentation of their case, and we therefore set aside the judgment of the learned Chief Justice and directed the work to be done, as the places mentioned by Mr. Sizer in his examination in February, 1904. The parties to the action selected a Mr. ZwiCky as a proper person to have the management of the work, and under him it was proceeded ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 545 and the case came on before 1907 November 23. Judgment, Irving, J. with and finished about February, 190 us in April last. Some question has been made as to the convenience of the course FuLL GolJRT adopted. Perhaps it has thrown on this Court a greater amount of work than we expected, but it seems to me to have been the only satisfactory solution of the problem we have had to deal with, and as for precedent,* we have our own action in Hopper v. Dunsmuir ^(unreported) and also the Stanley Park Case (1904), 11 B. C 258. And I see that the Judicial Committee of the Privy Council has, instead of remitting a case to the Court at Shanghai, allowed evidence (taken it is true on commission) to be presented to them in the first instance: see Bank of China, &c, v. American Trading Co. (1894), A. C. 271. Looking back now, I feel that we would have experienced the very greatest difficulty in following the complicated details of this case, if we had proceeded in the ordinary way. Befoie proceeding with the statement of facts of the case as developed1 before us, I would like to observe with reference to a contention mentioned by Mr. Bodwell that he had a judgment in his favour and that it was for the plaintiffs to upset it. I do not look at it in that way. In our ^opinion the case before the learned Chief Justice had not been fully tried, and, therefore, we directed that there should be practically a new trial. It would be altogether out of reason to regard a judgment which had been reached, at any rate in our opinion, without full opportunity to plaintiffs to establish their case, as a judgment shifting the onus from the defendants, on whom it was originally cast, on to the plaintiffs. From the reasons for judgment given by the learned Chief Justice i it is apparent that he relied very much on his own inspection of the premises, as he was, after having made such an examination, able to decide which of the experts was right and which was wrong. Now, since then, we have had the advantage of the additional work and verbal evidence on both sides, and although we should pay due regard to the opinion of the witnesses formed by the Chief Justice, yet it is for us to form our opinion as to their credibility. The new work consisted of three separate undertakings, one at the south where the plaintiffs had said the Slocan Star vein was cut off and terminated by the black fissure. The middle piece where the defendants had asserted the No. 2 vein would be found, to which vein they attributed certain ore found in the black fissure. *See note at end of this case. 546 MARTIN'S MINING AND WATER CASES. [vol. 1907 \- And the northerly piece of work which the plaintiffs had said ' would demonstrate that the wall of crushed material did not stop or turn at B, but continued on to X and beyond. N« Full Court Judgment, Irving, J. The new work at the south in my opinion completely established the theory contended1 for by the plaintiffs as to the separate existence i of the black fissure. It shewed positively beyond question that the i hanging wall on No. 5 level and the stopes immediately above it, was not continuous, but that a fissure with a filling similar to that found in the black fissure ran out to the south. Mr. Elmendorf. admitted (p. 523) that the plaintiffs had exposed by the new work a fissure^ 28 feet broad and some 98 feet in length, running through the hang-; ing wall of the Slocan Star vein. This fissure was exposed (546) at a point where a certain amount of ore had been left in a corner, and where Mr. Elmendorf had pointed out to the Chief Justice on his first visit that there was no evidence of a fissure extending out' to the south. The new work at the north in my opinion demonstrates beyond question that a fissure extends from B to X, and as it confirms the testimony given by the plaintiffs' experts on that point, I see no reason for not accepting their opinion that it is the same fissure which is exposed by the new work to the south. It completely disposed of the evidence given by -the defendants' witnesses that the cross-cut B to X was driven in country rock, 413, 727, 813. Had the Chief Justice heard the testimony adduced before us, I feel sure that he would not have felt confident in accepting Mr. ElmendoTf's expert testimony as more reliable than that given by Mr. Sizer. Elmendorf's action in persuading the Chief Justice not to accede to Sizer's request to have certain work done, in my opinion is cogent evidence of partisanship. An opinion on a technical matter formed under such guidance can be of little value, and when in the light of subsequent evidence that guide admits that he was mistaken, still less. I have therefore no hesitation in saying that in these circumstances we are not bound, in any degree, by the opinion formed at the view taken by the learned Chief Justice. The contention put forward by the defendants at the trial that the vein turned at B, was also in my opinion disproved. Mr. Boehmer, a new expert introduced by the defendants on the hear ng before us, thought that the real turn was at station 38, and that the vein indications seen in the neighbourhood of B, C and D43 were foot fractures of the same vein; but his evidence has not shaken my confidence in Messrs. Sizer and Fowler, a confidence reached a ter hearing their oral testimony before us and reading their evidence before the learned Chief Justice, ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 547 In view of some of the expressions used by the Chief Justice in his reasons for judgment, I thought it proper to go through the evidence taken before him with the very greatest care, and to make some observations with regard to the witnesses examined before him. In considering that testimony it will be necessary therefore to refer to the evidence given at the trial before him in February, 1903, and again before him at what has been called the second trial, held in July, 1905, and also to the evidence given before this Court in April, 1907. At the point where the A drift was afterwards run, the plaintiffs' expert (Sizer) at the first trial had insisted that the wall running into the angle on the hight hand or west side was different from that on the left or north side. The Chief Justice was not able to recognize the difference, nor did Mr. Elmendorf at the time, but I understand now that he (Elmendorf) admits he was mistaken: p. 552, and 562. Parsing along the 5th level we come to B. In February, 1904, Mr. Oscar White had said that he knew that he was at the turn of the vein (812, 891, 817), that he really began to turn at A (812), 30 feet south of B, but in order to shew that there was no*sign of a vein or anything "out there," that is to the north of B, he continued the drift to X. He said that he expected (this is in December, 1902) that it would be contended at the trial that there was a vein running in from the north-east across the line BX, and to meet that contention he determined to run this cross-cut BX (812). Now the distance from B to X is 35 or 40 feet (692); the pleadings had been closed for nearly a year, and the trial was liable to take place at any time. They knew (8*15) they had a large body of ore, 12 feet wide, . on No. 4 Silversmith about station 9, but Mr. Oscar White says that they decided on 15th December, 1902, to discontinue the turn commenced at A and to run the cross-cut B to X some 40 feet in length. They abandoned something that would affirmatively establish their case, to disprove by negative evidence some contention they anticipated the plaintiffs might set up. This story does not commend itself to me, nor does it" appear to have found favour with the learned Chief Justice when it was told at the trial. He seems to have received the impression that the defendants had " fumbled " in tracing their vein at this point, and that offer over-running the scent they had harked back to 41, which is about 100 feet north of the spot Oscar White says he recognized as the turn of the vein, and ran the drift 41 to 43 to connect with the Silversmith ore which they knew existed on No. 4 level. I do not know why it was that station 41 was selected as the starting place for the tunnel that was run to the west from 41 to 43, but the reasons given'by Mr. Oscar White for 1907 Dvember 23. Judgment, Irving, J. 548 190 Novemb FullC Judgn Irvin MARTIN'S MINING AND WATER CASES. [VOL. going on to X, and subsequently turning to the west at 41 instead of ' at B, do^ot satisfy me. To me it looks as if they saw no indication )urt. g£ a tUTT\ at B. But this inconsistency alone is not sufficient to ient, justify me in rejecting Oscar White's evidence. », J. . This cross-cut B to X the defendants at the first trial said was | not in the vein (236) but was in hard slate (413). Having completed that evidentiary work, by timbering it up (692), they took their men out and started them, about the end of December, 1902, at station 41, running 140 feet westerly to station 43, not on the vein (235). This work took about two months to run (902), so that in February, 1903, they were at 43, but as yet they had not shewn any connection on ore (by following the vein, which they said turned at B), so they ran back from station 43 to B (reaching B in March, 1903) and at the same time continued drifting, first to the south, then to the south-east, then to the south-west, then to the south or south-west from station 50 to station 52, where sometime about September, 1903 (645), they struck a large body of ore (579). At the first trial (February, 1904,) the defendants' witnesses were strong in their assertion that the vein turned at B. The plaintiffs on the other hand insisted that at B there was no sign of a turn; that the soft fissure filling continued down past B on the left hand upper side, 1018, 1207 and 1029, and that a cross-cut at X would establish that fact; that cross-cut was made by. Zwicky, and Elmendorf (p. 510) found there a seam of the softer material 18 inches wide. , Cavanagh (p. 432') before us was not prepared to deny that the fissure extends to X. Mr. Oscar White thinks .the black fissure does not extend to X. That there is two feet of crushed material, he will admit (p. 464), and that there is a well defined wall running north and south. Now, it must be remembered that from 41 down to X was run under Oscar White's superintendence, and the lagging erected from B to X was put up by him in order to prevent this very filling coming in on him and his men. I have carefully read the evidence in this case, and I have come to the conclusion that I can -place no confidence in Mr. Oscar White's testimony. I have already referred to his explanation, or excuse, for running down to X past B, where they subsequently made the drift turn, and I now mention some other incidents. His statement in an affidavit used in resisting the application for an injunction that they had not taken ore from the ground in dispute to an amount in value of $500 net, was misleading, as he could only reduce it to that sum by making deductions, i.&., cost of development and cost of mining and il] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 549 cost of concentrating—he was hot warranted in making, unless he expressly stated that he was making such deductions, p. 1528. Again, his statement that he was not aware that there was ore in the ] bottom of the winze is past belief. Again as to the intermediates below 5 (p. 1530) he was not candid. Again, his explanation of his reading the Ruth map (484) is more than nonsensical. I accept Harris' story that Oscar White told him there was no ore between levels, and I do not accept Oscar White's explanation. I, therefore, refuse to believe- his story that when he was at B he thought that the vein or materialhe had been following up front the south, turned to the west at B. It is my opinion that when he ran past B he was still seeking the turn in the fissure, and that he harked back only when he found he was getting so far to the north that he could not expect to connect with the ore which he knew existed in the Silversmith. In my opinion his evidence is not entitled to any credence and I reject it; and all work carried on by him, or done under his orders, I regard with suspicion. The ability of his men to carry into execution his designs is shewn by the way in which they covered up the gaping mouth of a cross-cut so that, so far as the eye was concerned, it was impossible to tell that there ever existed anything but solid wall and lagging in front of it. It is unfortunate for him that a pile of dirt was left at the entrance of the cross-cut B to X (1926) when so much turned on the question of the continuation of the wall of material along that line. Again, it is unfortunate that the lagging should have been so tight in the intermediate below 5 (p. 209) that it hadrto be removed in order that the plaintiffs' experts might point out the crevice they expected to find there—and still more unfortunate that they did ! find it. Again, it was unfortunate that a considerable quantity of ore (546) was left in a corner and that subsequently this very place | should be selected to establish the fact that the hanging wall of the •Slocan Star was cut by the wall of soft black fissure material. Another circumstance to be noted-is that just prior to the trial fixed for July, when an inspection of the premises might reasonably be anticipated, the intermediate below 5 was so blocked up with ore that Mr. Sizar was not able to examine it. It was on this occasion also that the pile of dirt before referred to prevented Mr. Fowler examining from B to X. These extraordinary things have occurred too frequently to be undesigned, and I have reached the conclusion that under the man- Judgn 550 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November 23. Judgment, Irving, J. agement of Mr. Oscar White the ore was manipulated in two places at least to shew an apparent turn in the walls where there was in fact" no turn. How Mr. Elmendorf came to say, as he did, that the vein turned at B, and that the drift run from B to X was wholly in country rock, and that there was no continuation beyond B of the material they had.' been following up to B, I cannot understand. It is possible that he was deceived by the appearance of the turn of the drift at B and did not examine the extension from B to X with due care. However that may be, his evidence before us as to the turn at B is not satisfactory." In my opinion the wall of material through which the defendants ran their No. 5 level continues on to X without any turn at B and the drift 44, E, D, C, and B is not in ore, there is no ore in it. It is a mere fracture or fissure in the slates; see Boehmer, pp. 339, 340. I am satisfied that when Mr. Oscar White and his men passed B they saw no indication of a turn at B. That point was adopted later when having run the drift 41 to 43 they found a non-mineralized fracture or cleavage leading in a north-easterly direction, which fracture being followed to D minus 27, brought them out at B. Beturning to the inspection by the Chief Justice: passing on from B, they entered the drift that was driven back from 43, that is, it was driven from the west to B. Mr. Fowler has taken a photograph of the roof here, Ex. 36, shewing that there is no indication of any turn. Mr. Elmendorf at the trial in February, 1904, was not positive that he saw the vein between B and C, but between C and D he did (p. 238). He saw the hanging wall of the vein. When the Chief Justice visited the mine in December, 1904, he was not at all satisfied with what he saw' in this drift; he was, as I understand it, following up the indications of vein matter and after he had passed some feet into the B, C, D drift, he observed a change, and as a consequence a new drift or level was run to the north of the old drift. Mr. Sizer had, in February, 1904, said, speaking of the old drift: " The drift from B to C goes through the black fissure and passes on into country rock." This would indicate that there would be a radical change to be found as soon as you got some feet to the west of B, and1 there can be no doubt but that that change was plainly visible to the Chief Justice; and the fact that in December, 1904, he ordered the new drift shews that Sizar's evidence given in February, 1904, as to the condition of things there, was more accurate than Elmendorfs, who said that the vein (237) was more or less visible all the way between C and D. Irving, J. il] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 551 The trace of the vein having been lost, the new drift was ordered. 1907 It began on the east in black fissure material and j was carried to a ove^_er ' point 27 feet east of D—D minus 27 as it is called. FullCourt. That point would be selected as the place where in the opinion of Judgment, the Chief Justice the vein would again be visible in the old drift. Now, at the trial in July, 1905, the Chief Justice seemed to think that Sizer had agreed to* point D minus 27 being selected. Sizer says he had not, and from Mr. Elmendorf s evidence (p. 1709) it is clear that Sizer did not take any part in selecting D minus 27, because Elmendorf mentioned station D, which is some 27 feet to the west of the point selected, as one of the places Sizar said there were no indications of vein. Well, leaving that disagreement of recollection between the Chief Justice and Sizer, I come to another: Elmendorf says (after speaking of the ordering of this new drift C to D minus 27) — I We passed along in the direction of D, and at some point between E and 43 (or D and 43) the question of continuing on (westerly) into the Silversmith workings came up, and Mr. Sizer acknowledged from that point on to the end was Silversmith. For that reason it was not considered necessary to visit that portion of the mine, so that portion was not visited by His Lordship." This acknowledgment, if proved, I would regard of considerable importance. In the first .place it was a complete backdown from the position sworn to at the first trial. If the leading expert admitted that from station 43 on the 5th level on to the west was Silversmith vein, it would only be necessary for the defendants to prove the connection between station 43 and B to dispose of what the plaintiff called a series of cross-cuts through country rock. This is very clearly pointed out by Mr. Elmendorf at p. 1712. Now turning to Sizer's evidence (p. 1800) I find that he does not deny that, at a certain place, he did admit that from that point, whichever point it was, he believed the 5th level was run in vein material which he called the Silversmith. But that point he fixes at 50 or 51—51 he thinks. He asserts that all round from station 43 to 50-51 was not in the vein; he re-stated the view he had expressed at the first trial, viz., that the drift was in no sense any part of the vein (1800, 1803, 1854, 1855). At p. 1803 the Chief Justice puts this question: Q. His Lordship: The Silversmith vein you are satisfied exists from D27 inwards ? A. No, my Lord, I did not make that acknowledgment, and I don't make it now. I don't think there is any evidence of vein all round that turn, which is all the way from D to station 50. His Lordship: How is it point D27 came to be chosen as the point to which this work was to be done? 552 MARTIN'S MINING AND WATER CASES'. [VOL. 1907 November 21 Full Court Judgment, Irvtng, J. Witness: Because Mr. Elmendorf, as I understand it, convinced your 3. Lordship that the vein was to be found up to that point connecting from the other direction. His Lordship: My idea, Mr. Sizer, is that you hadn't any doubt of it at. that time? Witness: I had the greatest doubt about there being any vein whatever at D, or at D27 and around that turn. Q. You mean this turn running from 44 to 50? A. Yes, I tried to point out without being impertinent in the matter that a vein could not take that circular shape and connect by any possibility on its dip with the same vein in No. 4 Silversmith, and the work that has been done since in the way of mining is convincing proof to me that that portion from 44 around to 50 is entirely outside of the vein. Q. You are speaking now of this new work in the Silversmith? A. The new work on the Silversmith that was put on the map yesterday. Now, this is.a very unfortunate position of affairs. One expert says the admission was made with reference to all the drift west of some point between E and 43 or D and 43, both of which are at some distance west of D27. The other expert (the person who is alleged to have made the admission) says the admission was made as to the drift west of station 50-51 (the next turn of the drift to the south). The Judge seems to have been of the opinion that the admission was made as to a third place, viz., D27, for he very pertinently asksS Sizer, " How is it that D27 came to be chosen as the point at which this work was to be done?" See p. 1804. Now how is this dispute to be settled? Not by the Judge's recollection, as he does not agree with either-of the experts. The con-* flict between them must be determined by their own. evidence. On the face of it Mr. Elmendorf's statement seems extraordinary because Mr. Sizer had at the trial in February, 1904, taken such strong grounds, asserting that there was anothe^ black fissure at 43. Mr. Elmendorf's story is that (1693) the original plan was that after examining the eastern portion of the Star mine they were to inspect the western portion of No. 5 level around this drift into the Silversmith. In the extract I have given from his evidence (1710) it will be seen that he states they did not proceed on No. 5 level further west than station 43. From his evidence I find that on the second day's inspection there is nothing to establish that they went any further than 43. On the third day they went, as arranged, to the Silversmith tunnel and that portion of the mine. In the cross-examination by Mr. Bodwell of Mr. Sizer we find the following (1852), no doubt with reference to the place where the admission was made:— Q. Will you say on your inspection with His Lordship the Chief Justice and Mr. Elmendorf you went on to point 50? A, Yes. Q. That you went beyond 45? li.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 553 A. That is my recollection, that tsre went as far as 50. Q. Have you a note of that? I A. No, I made no note of it. Q. You are not in a position to speak definitely? A. I am depending on my recollection. Q. My instructions are different. But you are positive of this that you did not admit that from D27 on there was a vein and that it was the vein you have called the Silversmith? His Lordship: Where is point 52? Mr. Bodwell: Point 52 is in that new drift. His Lordship: Don't you remember being at 52? Witness: I went to 52 and saw that new drift at the time of the inspection, but my recollection is that you did not go there. His Lordship: My recollection is different. Witness: I did not make any positive statement about that, I said we went as far as 50 anyway, if we went to 52 we certainly passed 51. His Lordship: There is ore to be found at 52 to 15 at the face of the drlk Witness: Then that proves we did go there (p. 1853.) That piece of evidence evidently taken from the Chief Justice's notes taken on the spot (1818), seems to shew that they did not stop at 43, but proceeded as far as 51 or 52, where ore was found at the face of the drift. This corroborates Sizer's contention that they went on to 51 (1800), and as both experts are agreed that when the admission was made it was determined not to go any further (1800), I have come to the conclusion that the admission made by Sizer was applicable only to the portion of No. 5 level west of station 50, and that Mr. Elmendorf is mistaken. This is a matter of considerable importance, because the defendants, relying on this admission, gave no further evidence as to the drift being in the vein after passing D or E going westerly. I am not satisfied that it is. The learned Chief Justice does not refer expressly to this incident in his final judgment, but at p. 2026 he says in effect that in selecting D27 as the westerly point for his cross-cut he was guided by what the two experts, Sizer and Elmendorf, had said when he made the examination in December, 1904. As I have already said, that was, in my opinion, a misapprehension on his part, and I cannot help thinking it was in consequence of these two disagreements that Sizer's testimony was regarded by the Chief Justice as too elastic to be reliable. From questions interposed by the learned Chief Justice at the hearing held in July, 1905, it would seem that the presence of slicken- sides in the drift from C to D minus 27 was strong evidence that that drift was run in the vein. I refer to his questioning Elmendorf, p. 1769; Sizer, 1803; and Fowler, 2002, as to this. Now, if that was his idea, I think he was in error. It is true that Elmendorf in February, 1903, spoke of slickensides being found in 1907 lovember 23. .1 udgment, Irving, J. 554 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November 23 Full Court. Judgment, Irving, J. veins, p. 281. But Fowler' and Sizer both said in July, 1905, that slickensides can be found in any place of movement in the country rock, p. 1885, and p. 2002; and Cavanagh at p. 433 says the same thing. Elmendorf at p. 1768 does not rely on slickensides. Slickensides is a miner's term for the striae, furrows, or polished surfaces covering the walls of fissures and sometimes the surface of bed rock. They result from the friction of two portions of rock moving one against the other under great pressure. The phenomenon seems to be not uncommon. It may result from the friction of the mass of a vein moving in a fissure. Slickensides are not necessarily an indication of vein matter. In the following example noted by James D. Dana, not only the fissure walls but small bits of rock are slicken- sided. "In the Triassic of East Haven, Conn, (on the borders of New Haven), the successive beds of red granite sandstone . . . have been shoved over, one another upward along the plane of bedding, producing great slickensided surfaces; and these surfaces have generally a very thin and hard white coating, apparently due to ground up feldspar. In the same region . . . there are also ordinary faults with slickensided walls; and in many places the rock is in fragments, and all the fragments, even those no larger than the hand, indicate participation in the movement by the slickensides which cover them." See Jas. D. Dana's "Manual of Geology" (1895). Having regard to the statement at p. 2059 of the learned Chief Justice that after having viewed this work between C and D27 and after, hearing further evidence, he was satisfied that the 5th level shews the continuous vein, it is of importance that attention should be drawn to this point. If the learned Chief Justice had conceived the idea that the presence of slickensides necessarily indicated vein matter (see p. 1802, Q. 4) he would no doubt regard this drift as in vein matter, and would have another reason for disbelieving Sizer's testimony. Before us, Mr. Sizer gave his evidence in a satisfactory way, and the conclusion I have arrived at with reference to him is that he is a close and accurate observer of facts, and of good memory, and not desirous of misleading the Court. Leaving that subject, and turning to Mr. Fowler's testimony as I to the work from C to D27, which he visited in July, 1905, just a day or so before giving his evidence at the second trial, he says, 1927: " From B to C you are cross-cutting the black fissure. The new drift has j on its left hand side going in, a wall or plane, and between this wall and the old drift there is a pillar some 6 or 7 feet (separating the old from the new drift). Near the east end of this pillar is the hanging wall of the Black I Fissure." This hanging wall In goes on to the north. says passes across the old and new drifts and 555 1907 vember 23. Judgment, Irving, J. ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. Now I turn to Mr. Oscar White on this point. It is another instance of his willingness to mislead the Court and will be found at pp. 1687 and 1688. Full Court. He was being cross-examined (July, 1905,) as to the new work, C to D27, and having stated (1675) that there was only one wall, which was on the left hand side going in, that is on the south side. Then at p. 1687, he is asked—"Are you sure the wall is not on the right side of the drift as you go in ?" To which he replies, " Yes, I am sure." I now give the questions and answers:— Q. There is no wall on the right hand side as you go in from C? A. What kind of wall? Q. Well, you have said there was only one wall, I want to know what side it is on? A. On the left hand side from C going in. Q. And that is the only wall? A. Where we started at C there is— Q. There is a wall on the right hand side as well as the left? A. Yes. Q. And when you get a little way in the wall on the right hand side disappears ? A. We didn't follow that. Q. When it disappears on which side is it? A. The right hand side. Q. It goes out on the right hand side? A. Yes. Now, why did he deny that there were two walls revealed by this work ? The significance of his suppression of the existence of this wall was shewn to some extent when Fowler and Sizer gave their evidence in July, 1905. Sizer's is as follows:— Q. You heard Mr. White's evidence in which he said there was something that had the appearance of a wall running off out of that new drift to tht north. What is that? A. That is the hanging wall of the black fissure. In connection with this subject it will be convenient to give Mr. Elmendorf's evidence, p. 1765:— Q. Did you find any other wall going off to the south in that drift? A. Going off to the south in that drift? Q. Yes, north I mean. A. At what point? Q. At any point? A. No sir; there is nothing I consider a wall crossing that drift to the north, if that is what you mean. Q. You saw nothing that looks as much like a wall as what you call a wall? A. No sir, there is a block of porphyry in there, but nothing that looks like a wall going in that direction. Oscar White saw the wall, denied its existence, but afterwards acknowledged it. 556 MARTIN'S MINING AND WATER CASES. [vol. November 23. • Full Court. Mr. Elmendorf, after demanding particulars, is able to say " there is nothing there that I consider a wall." The evidence given before this Court after the work was done by IrviwTJ*' Zwicky shews every reason for believing that there was a wall. And it is by the light of fhat evidence that I think it was so unfortunate that Mr. Oscar White allowed the cross-cut B to X to be blocked up, right oh the eve of the trial in July, 1905. There seems to me to be .established an absolute cut-off between . this wall which the plaintiffs call the hanging wall of the black fissure and all west of it. Mr. Fowler's evidence is most clear on that point, and I accept it. To.the Chief Justice at the mine in July, 1905, he said:— " There is absolutely no connection between the plane under which the new drift has been run, and what was to the east of the hanging wall of the black fissure." To the Chief Justice at the trial he said in answer to the ques tion: Q. What in your opinion negatives conclusively the theory that this is a continuous vein C? A. As far as I have seen the absolute disconnection between what lies west of point C and what lies east of point C by reason of that limiting plane which I find to continue across the old drift and the new drift ordered to be made by your Lordship. That to my mind is the chief disconnection between everything to the west of what we call the black fissure and everything to the east. He denies that there is any vein matter to be found west of C, although admitting that the new drift is run on a plane and that something in the nature of slickensides is to be found there. He was then asked as to 43 to 50, and replied, p. 1931:— * I didn't examine it particularly closely. I didn't see anything that was remarkable or worthy of any special attention at the time; I didn't see any vein matter. Q. From 43 to 50 in that tunnel or drift, that work from 43 to 50, is that in your opinion any part of the fissure which has been followed down from the turn which we call the black fissure? A. Certainly not. Q. Is that work from 43 to 50 any part, in your opinion, of the Silversmith vein shewn over on these workings in the Silversmith ground? A. Certainly not. It may not be out of place to mention that this examination of Fowler followed that of Sizer, who had just denied making the damaging admission imputed to him by Mr. Elmendorf, the order of events being as follows:— December, 1904, alleged admission by Sizer. J ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 557 May, 1905, inspection by Chief Justice and Fowler and Oscar White. J July, 1905, inspection by Elmendorf, Fowler and Sizer. Whether Elmendorf and Sizer visited this mine together I cannot say, but Sizer and Elmendorf did (1900). It is impossible to suppose that Sizer would not have communicated to Fowler the fact that he had made the admission attributed to him, if he had indeed made it. 26th July, Elmendorf gives evidence of alleged admission "as he understands it." Sizer denies having made such admission. 28th July, Fowler gives this answer as to the drift from 43 to 50: 11 didn't examine it particularly closely." This answer to my mind shews that Fowler had not been made aware until.after his inspection of the mine in July that this alleged admission had been made by Sizer. That fact and the simplicity of the answer strengthen my belief that Mr. Sizer never made, or even supposed that he had made, the admission imputed to him. Mr. Fowler, a mining engineer, residing in this province since 1889, with nine or ten years' experience in the Slocan countiy, and who at one time was familiar with the workings of the Ruth mine—a mine only a few hundred feet to the north of the mine in question in this action— is, of all the witnesses, except Mr. Oscar White and Mr. Harris, whose experience in the Slocan country is also considerable, by virtue of his long familiaritjr with the surrounding country, entitled to speak with most weight. For these reasons I think the defendants' case has failed. Judgment should, therefore, be reversed, with costs here and below. The judgment should direct an enquiry as to the amount of ore taken, and contain a declaration that the Slocan Star location does not give to the defendants any rights to the west of the west end line of that claim, and that the vein or lode on the Silversmith location lias not been shewn to extend to the Babbit Paw or Heber Fraction. There should be an injunction also, but the terms of the judgment had better be spoken to later. Martin", J.: Two questions are submitted by the defendant company (appellant) for our consideration, one of fact and one of law. If the former is determined in its favour the latter becomes immaterial, therefore I shall deal with the former. At the outset I find myself in an unusual position, for though nominally sitting as a Judge of Appeal, yet this Court has for many days been discharging the functions of a Court of first instance, of a VOL. ii. iu.m.c.—37. 1907 vember 23. Full Court. Judgment, Irving, J. 558 MARTIN'S MINING AND WATER CASES. [vol. 1907 November Full Court Martin, J. jury in fact, during the hearing before us (from the 8th to the 23rd * of April, inclusive), having taken a great mass of oral evidence, amounting when extended to 675 type-written pages. This, from every point of view undesirable, and I trust not-to-be- repeated, departure from the practice in the case of non-reception of evidence by the trial Judge, places the parties and the Court in a peculiar position, for we have no finding pf fact to assist us because the evidence we took, and which is quite inextricably interwoven with that taken at the trial, was not before the trial Judge, so the issues are open and must be found by us. Such an unusual state of affairs affects the case seriously, because the usual onus thrown upon the appellant to " shew the judgment appealed from is wrong," is absent (see Inverarity v. Hanington, April 27th, 1907, not yet reported, and the authorities therein cited*), and on the other hand the original onus cast upon the defendant in actions of this class to - justify its encroaching workings, is as strong as ever, and as important. The* extent to which. this latter onus goes in cases of this nature has been considered in many American cases to which we have been referred, and which we must look to for guidance since this difficult 1 and distinct branch of our mining law came direct from that country, and there has been some difference of opinion m applying it to various circumstances. But in a case such as the present I adopt, the following remarks of Hallett, J., in Leadville Mining Co. v. Fitzgerald (187^), 4 Morr. Min. B. 381, cited in Lindley on Mines, 2nd ed., vol. 2, sec. 866, wherein the whole question is ably considered: " Within the lines of each location the owner shall be regarded as having full right to all that may be found, until some one can shew a clear title to it as a part of some lode or vein having its top or apex in other territory. In other words, we may say that there is a presumption of ownership in every locator as to the territory covered by his location, and within his own lines he shall be regarded as the owner of all valuable deposits until some one I else shall shew by preponderance of testimony that such deposits belong to another lode having its top or apex elsewhere." In Snyder on Mines (1902), vol. 2, sec. 783, it is, I think, accurately stated after a review of the cases, "While, as we ha ve seen, this ext ra estate is given to every locator of a mineral vein and c( mfirmed by the p stent, if he obtains one. it is strictly upon the condition that he so establish lis lines upon the surface as to include whatever portion o ! his vein he desi res to mine outside the vertical planes of his surface ground, for however righ t or wrong the law may be, and notwith- standing there is a l severance of es tate, as we have seen, the rule is firmly established that th e common law m axim applies, and that agreeably thereto until a better righ t is shewn, he w ao owns the surface is presumed to own all beneath." *Viz. i—Montgor nerie v. Wallace (1904), A. C. 73, 83; and Coles v. Ravenshear (1906) 76 L. J. K. B. 27. J ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. 559 And in Barringer & Adams on Mines (1900). the conclusion is reached (pp. 442-3) that:— • " The presumption in the first place is that all minerals found within his boundary planes belong to the owner of the claim. And upon a stranger , claiming the right to mine inside of these planes rests the burden of proving that he is mining upon the dip of a vein whose apex is outside of the claim, and within a claim belonging to him. That is, in order to establish his right and justify the apparent trespass, he must prove that he is the legal possessor of the vein which he is following. If he fails to establish both of these points he is a trespasser." And see also p. 458. The circumstances of the case at Bar are such that, as Lindley says, sec. 866, p. 1592, "It devolves upon the defendant company to establish:— "(1) The existence of an apex within the boundaries. "(2) The identity and continuity of the vein from its top or apex within such boundaries to the point in dispute." In regard to No. (2) Lindley observes, sec. 615, p. 1112:— " The legal identity or continuity of a vein on its downward course, as well as on its longitudinal course underneath the surface of adjoining lands, presents at times the most serious questions encountered in the administration \ of the mining law. It is impossible to prescribe any definite rule as to what [ degree of continuity or identity in a legal sense the miner must establish i when he invades property adjoining the location containing the apex of the vein. Each case presents its own peculiar features. Reports of adjudicated [ cases rarely present general discussions of this feature of the mining, law, I nor are the facts usually stated with such detail as to enable the practitioner I to utilize the case as a precedent. The infinite variety of structural condi- | tions encountered in the practical operation of mines renders it highly im-. I probable that a case in one locality can be safely relied upon as a precedent j in a case arising in another place." I And he goes on to discuss certain general principles as illustrated [by leading cases. At a trial of this kind in the American Courts I these questions of fact are left to a jury, and the Judge's charge is I frequently given in full in the law reports. Our duty, therefore, I acting as a jury, is to charge ourselves on the facts before us and [return a verdict thereon. In such circumstances, as I have before [now stated, I do not think it is a good practice or otherwise profitable I to attempt to give here a critical analysis (and anything short of [that would be quite useless) of all the great mass of conflicting evi- [dence of fact and theory that has been adduced, and on this point I (refer to Leadbeater v. Crow's Nest Pass Coal Co. (1904), 2 M. M. C. 1145, wherein I said, in a coal mining case;— I In support of these conflicting theories a great body of evidence was [adduced in a trial lasting more than three consecutive weeks, and even if it [were desirable for me to do so when discharging the functions of a jury on [pure questions of fact (and I do not think it is), it would be almost an im- 1907 rember 23. ull Court. Iartin, J. 560 MARTIN'S MINING AND WATER CASES. [VOL. ,1907 November 22 Full Court. Martin, J. possibility to attempt to review in detail all the evidence which I have listened , to and weighed in a trial of such duration and complexity of fact, though not of issue." All, therefore, that I propose to say in the present case, is that the defendant company has failed to discharge the onus cast upon it to satisfy me, as a jury, regarding the identity and continuity of the vein in question. Though Mr. Bodwell presented his case to the best advantage, yet his able argument did not carry me beyond the doubt-. ful stage, and consequently I think the only safe course to adopt is to confine the defendant to its own ground as against the plaintiff. The appeal should, in my opinion, be allowed. J. Morrison, J.: This is an action for damages and an injunction against the taking of ore from the plaintiff's mineral claims, known as the Babbit Paw and Heber Fraction. Markedly divergent theories were advanced at the trial, and when it was deemed advisable that the workings and condition of the mine should be inspected, the learned trial Judge, accompanied by two engineers selected by the respective parties hereto, visited the mine, ordered certain additional work to be done, and then had a second view. From the voluminous evidence before us, I gather that a thorough inspection was made. At the close of the evidence following this view of the locus in quo, counsel for the plaintiff requested that further work be done on the ground that not enough had been done to establish his theory, and that without additional work, as indicated by him, it was useless for him to proceed with his case, This was refused, and the learned Judge then gave the judgment appealed from, which is *a restilt mainly of his inspections. Upon appeal to this Court such leave, however, was given the plaintiff to have certain further work done, and to adduce, if necessary, such further evidence as the parties might be advised respecting the issues as developed at the trial. Pursuant to this leave, the work was done by a Mr. Zwicky, and in due course his evidence *and that of the chief witnesses at the trial, as well as the evidence of a Mr. Boehmer, an American expert, was given before us on this appeal. From a close reading of the proceedings on appeal, I cannot discover any tangible evidence. It is all highly theoretical, not to say rhetorical, and the arguments of counsel were equally vituperative. With regard to the position in which the plaintiff's counsel considered he stood at the close of the trial, it seems to me necessary for him to adduce evidence of a nature much stronger than before, to establish his theory. If this new evidence does not add to, but | simply reaffirms the previous evidence, it is not enough. .ii.] STAR MINING AND MILLING CO. v. BYRON N. WHITE CO. Giving otherwise the fullest effect to both sides apart from the question of onus, which I submit is now on the plaintiff, the net result would be as before, one theory opposed by the other. But with this difference that the defendant is supported by the opinion of the learned trial Judge, based mainly upon his inspection, and so should prevail with us. I joined in the.order for the performance in the belief created by the strenuous argument hew work would clearly demonstrate the content and had I anticipated that the result would be t< spell for a resumption of the wonderful displav )f theo: clever experts, I the new work, solely of counsel, that the f the plaintiff, rd a breathing ories as to the should have formation of the earth's interior hesitated before concurring. The leading respective experts appear to be men of ability, who ^advanced diametrically opposite scientific theories. They assumed that position before the trial Judge and maintained it steadfastly in giving their evidence on appeal. The trial Judge, however, not only heard their theories, but, as it were, saw those theories worked out. One who hears a man tell how he performed a certain piece of work • is not in so favourable a position to determine the nature of the work performed as if he saw him do it, or saw the work after it was done. For my part, I find it as difficult to appreciate the value of the mountainous evidence in this case as it is to understand the extent, trend and course of the different subterranean formations by handling the small fragments of "rock" produced as exhibits, and about which there is such a hopeless divergence of scientific opinion. The proof must be clear and unmistakable—and in respect to this new work ordered by us to be done, I do not think it is either. The evidence is so perplexing that, taking it alone, one must arrive at the conclusion urged upon us by the plaintiff by a process of guess work and surmise. Indeed so inconclusive is this new evidence, that a view by this Court is as necessary as it was by the trial Judge. This may not 'be an inopportune time to emphasize the necessity for a change in the law whereby a view by the Judge and two assessors shall be conclusive as to questions of fact, leaving an appeal only on questions of law. I would dismiss the appeal. Note :—As to the precedents subsequently invoked by Mr. Justice Irving to justify his change of view with regard to the Pull Court taking the evidence itself on this appeal instead of adopting the usual course in the case of rejection of evidence, of sending the case back to the trial Judge (ante p. 401), an ; examination of the two cases in tnis Court which the learned Judge cites, vie.: Hopper v. Dunsmuir and Attorney-General of British Columbia v. Ludgate and 562 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November Full Col- Morrison, the Attorney-General of Canada, generally known as the Deadmanfs Island 23. Case (part of Stanley Park) (1904) 11 B. C. 258, shows that in the former it was impossible to take the usual course because the learned trial Judge, Mr. RT- Justice Drake, had resigned his office long before the order of the Full Court j Was made on December 2nd, 1904, nor did the Full Court examine witnesses," their evidence being taken on commission, with the exception of one witness who was examined before the Chief Justice on March 3rd, 1905. And in the latter case, though two witnesses were examined by the Full Court, yet it was not because of the wrongful rejection of their evidence by the trial Judge, whose ruling was correct as a matter of law, but in the special circumstances of the case, it being between two Governments, the Full Court, ventured to relax the rules of evidence as explained by Drake, J., at p. 268, thus:— " This is not an issue between subject and subject, but an inquiry as to,. whether the Crown in right of the Province is entitled to this land as against the Crown in right of the Dominion; and any properly authenticated document bearing on this question should be examined and admitted. We therefore called both Mr. Turner and Mr. Howse before us, and have had the advantage of their viva voce testimony." In the third case cited by the learned Judge—The Bank of China and Japaxj^ v. American Trading Co. (1894), A. C. 271—their Lordships of the Judicial* Committee of the Privy Council did not hear evidence themselves, but allowed, under very peculiar circumstances, the further hearing of the appeal before them to stand over till a commission could issue from the/Court appealed from (the Supreme Court of China and Japan, sitting at Shanghai) to London to take evidence which was then in the same place where their Lordships were sitting, viz., London, as they explain, p. 272:— " Seeing that the evidence which the parties were prepared to offer was to be found in London, their Lordships thought it right, instead of remitting the case to Shanghai, to allow a proof to be taken by commission." ii.] CRANBROOK E. L. CO. LTD. v. EAST KOOTENAY P. & L. CO. LTD. 563 Cranbrook Electric Light Co. Ltd. v. East Kootenay Power ^ and Light Co. Ltd. Water Clauses Consolidation Act—Water Becord and Definition of—Point of Diversion — Powers of Commissioner and Lieutenant-Governor-in-Council— Jurisdiction—Falsa Demonstratio non nocet. A Commissioner has jurisdiction to entertain an. application to change the point of a diversion fixed by the water record of a power company. The reference in sec. 84 to sec. 9 of the Water Clauses Consolidation Act is within the maxim " Falsa demonstratio non nocet," and should be treated as including all those sections of Part II. which deal with the application for, and the acquisition and use of, water records. The Lieutenant-Governor-in-Council has no power to grant a water record. A " Record " consists of entries in a book kept for that purpose. 1907 vember 25. Clement, J. hibit James'F. Armstrong, as a Commissioner under the Water Clauses Consolidation Act, from taking further proceedings in the application of the East Kootenay Power and Light Co. Ltd., to change its point of diversion of water, under a record dated 8th May, 1907, for 25,000 inches of water out of St. Mary's Biver, on the grounds, (1) lack of jurisdiction, and (2) that having already dismissed the application for lack of jurisdiction, he had no jurisdiction to rehear. The matter was heard before the Commissioner at Cranbrook on 9th August, 1907, and on the 10th he gave the following decision respecting his jurisdiction:— In considering the question of jurisdiction under the Water Clauses Consolidation Act, it is well to notice the different procedure under Parts II., III. and IV. In the case of an application under Part III. the wording is different from what it is under Part IV., section 84. Section 42 reads,— (reads section). It is further provided that until this application is completed, by the approval of the Lieutenant-Governor-in-Council, all other applications for water which/ conflict with it, are stayed. The Commissioner proceeds to adjudicate thereon, but before issuing the record, transmits certain documents to the Lieutenant-Governor-in-Council, and the Lieutenant-Governor-in-Council then either confirms or amends the adjudication, and returns it to the Commissioner, who then issues the record. Under section 84 the words used are " shall apply for and may acquire* and use records of unrecorded water in manner provided by section 9 of this Act for obtaining records of unrecorded water for domestic, mining and agricultural purposes." If we turn to section 9 we will see that it applies principally to the notices which shall be given, but it also refers to the making of the record, which is to be done at least thirty days after the posting of these notices, and from the notices it appears that this application has to be 564 MARTIN'S MINING AND WATER CASES. [VOL. EMENT Argument. made to the Commissioner, so that section 9 of itself would not give all the . authority that is necessary for applying for, acquiring and using the records. I think, therefore, that the scope of the section is to be extended at least to the making of the record. There is no provision for objections to be filed to the granting of the record except with the Commissioner under the other sections of Part II., and I hold that the section in Part II. referring to the making and use of the record will apply, and that the jurisdiction of the Commissioner does not expire until the power company file with the Clerk of the Executive Council the documents mentioned in section 85. I would not undertake to say to what extent that record is subject to all the conditions and requirements of Part II., but I hold that I have jurisdiction to change the point of diversion, until my jurisdiction is voided under section 85. The hearing was then proceeded with, subject to renewed objection, but in the course thereof, it later appeared that an application by the East Kootenay Power and Light Co. was then pending before the Lieutenant-Governor in Council, whereupon the Commissioner, as set out in the stenographer's notes:— " States that when he decided he had jurisdiction h^ was under the impression that no application had been made to the Lieutenant-Governor-in- Council, but thinks that the application to the Lieutenant-Governor has voided his jurisdiction as Commissioner." The hearing was thereupon adjourned, and an appeal was taken by the East Kootenay Power and Light Co. to the .Judge of the County Court of East Kootenay, but which appeal was abandoned on 28th September, and later said company also withdrew its application to the Lieutenant-Governor, whereupon the Commissioner notified all parties that he intended to proceed with the original adjourned application of said company to him for change in point of diversion, and appointed the; 28th of October for that purpose, Then, on the 23rd of that month, the Cranbrook Electric Light Co.' gave notice of the present motion for prohibition, which came on to be heard at Vancouver on 22nd of November, before Clement, J. S. S. Taylor, K.C, for the motion, referred to the Water Clauses Consolidation Act, sees. 3-5, 9, .23, 24, 26, 33, 35 (5), 36, 78, 84, 90, 92, 94, 100-2, 104, 144; and to Wallace v. Flewin (1905), ante pp. 283, 300, 11 B. C. 328, 354; and In re Water CI. Con. Act (1904), ante p. 135; 10 B. C. 356. A. G. Smitli, contra, referred to sees. 9, 12, 27, 92 and 132, and to Reg. v. Judge of the Soutliompton Co. Ct. (1891), 65 L."T. 320. Taylor; K.C, in reply. Cur. adv. vult. 25th November, 1907. Judgment. I agree with the Gold Commissioner, and substantially for rea sons advanced bv him, that he has jurisdiction to entertain an appli- ii.] CRANBROOK E. L. CO. LTD. v. EAST KOOTENAY P. & L. CO. LTD. 565 Clement, J. Judgment. cation for a change in the point of diversion fixed by the water record 1907 of a power company. The contention put forward by the applicants practically amounts to this, that in the case of a new record—as distinguished from one obtained by purchase or expropriation—the application therefor, when made by the power company, must be made to the Lieutenant-Governor in Council; in other words, that sec. 84 of the W. C. C. Act, which purports to deal with such applications, - incorporates into Part IV. of the Act only sec. 9 of Part II., and sec. 9 has regard only to the giving of notice of intention to apply. Certainly the reference to sec. 9 can hardly be called a happy one. • Section 84 speaks of it as a section dealing not only with the application for, but with the acquisition and use of, water records; amongst others, of water records for mining purposes. Strictly speaking, sec. 9 does not deal with any of these matters. It has reference, as "already noted, solely to the giving of notice of intention to apply. There seems, therefore, nothing for it but to treat the reference in sec. 84 as a reference to all those sections of Part II. which deal with' the application for and the acquisition and use of water records. Falsa demonstrate non nocet. The reference in sec. 84 is, I think, as I have stated, and the falsa demonstratio is in pointing to sec. 9 as a section covering the matters really referred to, when in truth it is merely introductory to the 'grourj of sections which deal with those matters. In giving this construction to sec. 84 I am, I think, adopting the only course which will make the provisions of Part IV. work out in harmony. Section 84 being thus, construed, sec. 27, which gives the Gold Commissioner power to change the point of diversion, is, to my mind, clearly a section dealing with the u use of a water record. j Section 9, it may be noted in passing, has reference to an application I to the Gold Commissioner, and no modification of it is suggested by sec. 84 to fit the view put forward by the applicants that the application in a ca^e such as this must be made to the Lieutenant-Gover- I nor in Council. I Of course, if Part IV. contained clauses dealing with these matters, the position might be different. But as I read sees. 85, 86 and 87, the Lieutenant-Governor in Council is nowhere given power to grant water records. He may (sec. 86) firstly, approve the undertaking as submitted, or, secondly, may limit (a) the area within which, etc., or (b) the amount of unrecorded water which the power company may record, etc., and (c) generally may impose such terms, etc. Nothing here about granting a record; but if the terms imposed in and by the certificate of the Lieutenant-Governor in Council 566 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November 25. Clement, J. Judgment. necessitate a change in the water records, sec. 89, sub-sec. 2, directs the Gold Commissioner to make the necessary amendments in c$ the water records acquired by the power company." This all comports with the idea that the a record " consists of entries in a book kept for that purpose by the various Gold Commissioners in the different sections of the province: see sec. 2. Then again, if the record is to be granted by the Lieutenant-Governor in ; Council, one would expect to find provisions as to notice being given by public advertisement or otherwise of the time and place when-and where the application would be heard; instead of which the first public notice is by advertisement of the certificate after its issue. Then, and not necessarily before then, interested parties may come forward and get a hearing before the Lieutenant-Governor in Council^ under sec. 92. All this, I think, shews clearly that the Lieutenant-Governor in Council does not deal with applications for water records under Part IV. All matters connected with the application for, and the aequi-| sition and use of water records, remain to be dealt with by the Gold Commissioner under the appropriate sections of Part II., subject only to the possible imposition of modifying terms by the Lieutenant- Governor in Council when his certificate of approval is sought for the undertaking. The application must be dismissed with costs. Water Clauses Consolidation Act, sees. 86, 38 & 39—Appeal from " Decision " full Court of County Judge—Jurisdiction—Preliminary Objection—Supreme Court Act, sec. 94 (1). The " decision " of a Judge under sec. 39 of the Water Clauses Consolidation Act means his final disposition of the appeal brought before him. An objection to the jurisdiction is not a " preliminary objection " under sec. 94 (1) of the Supreme Court Act. Appeal from certain rulings of His Honour Judge Cane, sitting in the County Court of New Westminster, on an appeal, by way of petition, from a decision of a Commissioner under the Water Clauses Consolidation Act, sec. 36. The rulings complained of were:—(1) That the learned County Judge overruled an objection to his jurisdiction to entertain said petition: (2) that on the hearing of the appeal he erred respecting the proof of posting notices; and (3) in rejecting certain evidence. It was admitted that otherwise he had given no decision on the appeal, which was still before him for consideration. Harris, K.C, opened this appeal, whereupon Martin, K.C, objected that it was premature and should not be entertained because no decision had been arrived at under sec. 39, and, therefore, this Court could exercise no appellate jurisdiction in the premises. Harris, K.C: You have not given proper notice of this "pre- liminaiy objection" as required by sec. 94 (1) of the Supreme Court Act. Martin, K.C.: I have given a notice, but I admit it is insufficient; nevertheless this Court had held that an objection to the jurisdiction is not, properly speaking, a "preliminary objection" of which notice is required. (Martin, J.: Yes, we have repeatedly so ruled.) Per Curiam: In such case we must hold that notice is unnecessary. Objection of Hams, K.C, overruled. Martin, K.C.: To resume, I submit that since this is a purely statutory 'appeal, and all the rulings of the learned County Judge 568 MARTIN'S MINING AND WATER CASES. [VOL. 1907 November 28 Argument. have happened in the progress of a hearing still undisposed of, con- ' sequently there has been no a decision " which this Court can review: Belcher v.. McDonald is clearly distinguishable. Harris, K.C.: Section 39 requires us to appeal from a decision, within 21 days, and if we had waited we should have been out of time, as was the case in Belcher v. McDonald (1902-3), 9 B. C 377, 33 S. C 321; (1904) A. C 429. See also Long v. Victoria (1898), 6 B. C 117. Especially is this the case with respect to the first ruling on the question of jurisdiction; we had to appeal from that, though we objected; nevertheless we had to go on and there might be a waiver. (Martin, J.: Your objection to the learned County Judge's lack of jurisdiction was a continuing one, and would have just as much weight against his last act in the proceedings, viz., his final decision, as his first one. If your present contention is correct, it means, pushed to its logical conclusion, that it is possible to appeal every day that, in the course of the hearing, he gave a ruling unsatisfactory to you, and therefore you might have an unlimited' number of concurrent appeals.) Martin. K.C, in reply—Belcher v. McDonald is clearly distinguishable. Judgment, Irving, J. Irving, J.: I think the objection well taken. The case of Belcher v. McDonald was a case of appealing from a judgment where there were separate causes of action, and has no application to this case, in which only an interlocutory ruling is objected to. The words "may appeal," etc., in sec. 39, mean there shall be an appeal from the final disposition of the case, and that such appeal shall be taken , within 21 days from such final disposition or decision. I think reason and convenience require that we should read for g final decision," " final disposition," and this is borne out by the words at the end of sec. 39, that such appeal shall be dealt with by this Court "as near as may. be in the case of an ordinary appeal" from a final judgment. This appeal is premature. Martin, J. Martin, J.: I think, reading sees. 38 and 39 together, the statute contemplates that there shall be but one decision on the whole matter. Clement, J. Clement, J.: I also agree. Objection sustained, appeal dismissed. Mine—Owner—Option Holder—Working Bond—Workmen's Compensation Act, 1902—Solicitor and Client—Negligence—Master and Servant. A working bondholder, or option holder, of a mine is not the " owner" thereof and consequently is not subject to the liability imposed on employers by the Workmen's Compensation Act, 1902. v Action for damages against a solicitor for breach of contract in statement, failing to bring an action against the plaintiffs employers under the Workmen's Compensation. Act, 1902, cap. 74, and otherwise. The case is reported only on the point of the liability' of the holder of an option of purchase, here a working bond, under the said Act, the plaintiff being employed in. the mine by such option holder and not by the owner of the mine. J. A. Macdonald, K.C, and Winn, for the plaintiff. 8. 8. Taylor, K.C, and Hamilton, K.C, for the defendant. At the close of the plaintiff's case, Taylor, K.C, objected that with respect to the bringing of an Argument, action under the Workmen's Compensation Act, such could not, on . the facts, have been done, because it was only maintainable, under sec. 8 of that statute, in the case of " employment by the undertakers as hereinafter defined, on or in or about a railway, factory, mine, quarry or engineering work, etc.," and in the definition of "undertaker " it is provided that it " in the case of a mine means the owner thereof," merely, differing in this respect from the corresponding sec. 7 of the English Workmen's Compensation Act, 1897, wherein it is directed that " undertakers ... in the case of a mine means the owner thereof within the meaning of the Coal Mines Regulation Act, 1887, or the Metalliferous Mines Regulation Act, 1872, as the case may be . . ." Turning to those Acts, "owner," as denned by sec. 75 of the former, and by sec. 41 of the latter, extends to lessees and" occupiers, and would include a working option holder; but though corresponding provisions are to be found in our Coal Mines Regulation Act, cap. 138, R, S. B. C, sec. 2, and not merely owners, but agents, managers and lessees of mines are subject to the penalties of our Inspection of Metalliferous Mines Act, cap 134, R. S. B. C, yet the wide English definition of "owner" has been rejected by our Legislature in enacting the Workmen's Compensation 570 MARTIN'S MINING AND WATER CASES. [vol. 1907 Act, and as was said by Drake, J., in Anderson v. Godsal (1900), 1 ' M. M. C. 416, 7 B. C 404 (a mechanic's lien case against a working Martin, J. bond-holder), the word in its primary sense "means the person in Argument, whom the property on which the work was done is vested." Macdonald, K.C a In this case we are not bound to shew that the defendants were owners; on the pleadings the action is otherwise maintainable. Per Curiam: It seems clear that the Act imposes no liability upon the holder of an option on a mine as distinguished from the owner thereof; the intention seems to have been to relieve the working bond-holder from liability in this respect, wherein there is a marked distinction between our Act and the English Act. Objection sustained. The argument proceeded upon the other points, and the action was ultimately dismissed. Note:—As to working bond see Grobe v. Doyle, ante p. 327. II.] CAMPBELL v. BROWNLEE et al. 571 Campbell v. Brownlee et al. 1907 December 20. Water Becord—Conflicting Becords and Priority of—Insufficiency of Water to Mokrison J Satisfy Becord—Irregularity—Water Clauses Consolidation Act. Where there is not sufficient water in a stream to satisfy the number of inches granted to various record holders, the holder of a prior record is entitled to take water to the full amount thereof before the holder of a subsequent record can take any. Action tried at Kamloops on May 6th, 1907, before Morrison, J., to establish the plaintiffs prior rights to 800 inches of water from Campbell's, otherwise Leonard's Creek, on the South Thompson River, under three water records, dated respectively the 26th October, 1866, the 29th of July, 1869, and the 2nd of September, 1878, which it was alleged had been interfered with, and the flow of water obstructed and diverted by the defendants. They, in addition .to traversing the allegations of fact, relied on three separate water records for one hundred inches each in their own favour on Shuiri- way or Bonaparte or Carden Lake, and Napier and Trapp Lakes, under the Water Clauses Consolidation Act, two dated the 13th of September, 1901, and the other dated 24th March, 1902, and also disputed the validity of the plaintiffs records. Davis, K.C, and Macintyre, for plaintiff. Joseph Martin, K.C, and Swanson, for defendants. Statement. C> r adv. vult. 20th December, 1907. Morrison, J.: Campbell Creek takes its rise in the highlands Judgment, back from the Thompson, of which river it is a tributary, and in its meandering course to the parent stream there are three expansions known as Napier Lake, Trapp Lake and Shumway or Carden Lake. ' I find as a fact that those expansions or lakes are not independent bodies of water. About a mile from the Thompson this creek passes through a canon, and at one time entered that stream by two mouths or branches known respectively as Campbell Creek and Kettle River. Owing to a congestion of debris the branch called Kettle River was at the time of the trial dry. Campbell, the plaintiff, settled on Campbell Creek near its junction with the Thompson in the year 1865, and has resided there ever since. 572 MARTIN'S MINING AND WATER CASES. [VOL. 1907 December Morrison, Judgltieil In the years 1866, 1869 and 1875 the plaintiff secured water ' records aggregating 800 inches in all on j the said stream and said ,L branches thereof. ;- The defendants, in 1901, obtained water records on Campbell Creek. The defendants' counsel raised several objections to the plaintiffs records, to which, in view of authorities extant, I cannot give effect. The defendants, by virtue, as they allege, of their records, have dammed up, stored and abstracted the water in Campbell Creek, in reality reduced the water into their possession, depriving* the plaintiff of the quantity to which he claims he is entitled under the prior records. I am satisfied, after hearing the respective parties and their witnesses, that the plaintiff, by reason of the defendants'^ acts, was deprived during the years 1905 and 1906 of the water in Campbell Creek as alleged. In my opinion the plaintiff is entitled to the water in that creek up to the full limit of this record, and that the defendants should be enjoined from so using the waters of Campbell Creek as to interfere with the plaintiff's rights therein. There will be judgment for the plaintiff accordingly with costs. There will be a reference to the Registrar at Kamloops as to the amount of damages sustained by the plaintiff. The costs of the reference reserved. The counterclaim is dismissed with costs. p Note :—The | authorities extant" on the objections to the records are doubtless those given in Appendix D. q.v.. viz.. Carsow v. Martley (1899), 1 B. C. Pt. ii. 189, 281; 20 S. C. 634; and Covert v. Petti John (9 R*. C. 118.) I J Since the statutes, etc., reprinted in Vol. 1, Appendix A., ending at p. 857 (which includes those passed in 1902), the following have been enacted and should be added to the Table of Proclamations and Statutes at p. 531, Vol. 1:— 1903, June 4 (Chap. 5) V Bureau of Mines Act, 1895, Amendment Act, 1903," May 4 (Chap. 17) " Coal Mines Regulation Act Further Amendment Act, 1903." I May 4 (Chap. 18) " Department of Mines Act, 1899, Amend ment Act. 1903." II Dec. 12 (Chap. 37) " Coal Mines Act Amendment Act, 1903." 1904, Feb. 10 (Chap. 38) | Coal Mines Regulation Act Amend ment Act, 1903." (sic.) I Feb. 10 (Chap. 39) "Coal Mines Regulation Act Amendment Act, 1904." I Feb. 10 (Chap. 40) " Coal Mines Regulation Act Further Amendment Act, 1904." 1905, Apr. 8 (Chap. 35) "Coal Mines Regulation Act Amend ment Act, 1905." I Apr. 8. (Chap. 36) " Coal Mines Regulation Act Further Amendment Act, 1905." 1 Apr. 8 (Chap. 49) "Coal Tax Act 1900 Amendment Act, 1905." *1906, Mar. 12 (Chap. 29) " Placer Mining Act Amendment Act, 1906." I Mar. 12 (Chap. 30) "Coal Mines Regulation Act Amendment Act, 1906." 1907, Apr. 25 (Chap. 28) " Coal Mines Act Amendment Act, 1907." * Of the above Acts'one only is re-printed, infra, for the reason given in Vol. 1, p. 535. Whenever any particular section of those not printed has been referred to in a case, it has been given in the report of it. 6 EDW. VII.—CHAPTER 29. * An Act to amend the " Placer Mining Act." [12th March, 1906.] R. S. 1897, 136. . IS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. 1906. 2. vised 1901, This Act may be cited as the " Placer Mining Act Amendment Act, Short title. Section 16 of the " Placer Mining Act," being chapter 136 of the Re- Ajnends s. 16. Statutes, 1897, as enacted by section 8 of chapter 38 of the Statutes of Size of pla< is hereby amended by striking out all the words in lines two, three and c " VOL. II. M.M.C.—A MARTIN'S MINING AND WATER CASES. [vol. il] Placer Amdt. four after the word " claim," in line two of said section 16 as re-enacted, and Aot, 1906. substituting therefor the following words: " Shall be two hundred and fifty feet long, measured in the direction of the general course of the stream, and shall extend in width frdm base to base of the hill or bench on each side; but when the hills or benches are less than two hundred and fifty feet apart, the claim shall be two hundred and fifty feet square, and when the hills or benches are more than one thousand feet apart, the width of, the claim shall be limited to one thousand feet." Amend Costs in mining cases in County Court 140 3. Section 140 of said chapter 136 is hereby amended by striking out all the words of said section after the word " Rules," in the third line thereof. Table of Proclamations, Ordinances and Statutes of the Colonies of Vancouver Island and British Columbia, and of the Province of British Columbia, relating to Water Rights in addition to those Mining Proclamations, etc., already tabulated in Vol. I., Appendix A. (Exclusive of Private Acts.) 1859, Feb. 14 1860, Jan. 4 1861 ~" 1862, 1865; British Columbia Land Proclamation. British Columbia Land Proclamation. Feb. 19 (No. 27) Vancouver Island " Land Proclamation." Aug. 27 (No. 9) British Columbia " Pre-emption Consolidation Ordinance Act. 1861." Sept. 6 (No. 59) British Columbia " Pre-emption Consolidation Ordinance Act, 1862." Apr. 10 (No. 27) * British Columbia " Land Ordinance, 1865." June 1. . (Chap. 144 R.L.B.C. . " Land Ordinance, 1870." Apl. 11 (Chap. 31) « Land 18.. Feb. 21 (Chap. 1) « Land 1873." 1874, Mar. 2 (Chap. 2) «« j,and Act? 1374 » 1875, Apl. 22 (Chap. 5) « Land Act, 1875." 1870, 1872, 1882, Apl. 21 (Chap. 1886, Apl ' Land " Land (Chap. 16) .(Chap. 10) "An Act to 1884.' " Apl. 6 (Chap. $4) ' An Act Providing for the Election and Defining the Duties of Water Viewers." Apl. 28. ..... (Chap. 16) - An Act to Amend the Land Act, 1884." (Con. Stat.) (Chap. 66). (Con. Stat.) (Chap. 117)... Apl. 20. ' Land Act.' ! Water Viewer . (Chap. 16) " Land Act Amendment Act, 1891 1892, Apl. 23 (Chap. 47) " Water Privileges Act ' Water Clauses 1897." ' Water 1897, May 8. * I Rev. Stat, . (Chap. 45) .. (Chap. 190) . . Clauses 1897." *1899, Feb. 27 (Chap. 77) "An Act to Amend the Water Clauses Consolidation Act, 1897." (Chap. 43) " An Act to Amend the Water Clauses Consolidation Act, 1897." (Chap. 56) " Power Companies Relief Act, (Chap. 72) " Water Clauses Consolidation 1897, Amendment Act, 1902." (Chap. 28) " Water Courses Obstruction Act, * 1900, Aug. 31 *1902, June 21 *1902, June 21 1903, May 4. *1904. Feb. 10 . (Chap. 56) "Water _189'r * 1905, *1906, *1907, Apl. Mar. 12. Apl. 25. . (Chap. . (Chap. . (Chap. 55) " Water 189r 47 47). ' Water 189' ' Water 1891 Clauses Consolidation Amendment Act, 1904." Clauses Consolidation Amendment Act, 1905." Clauses Consolidation Amendment Act, 1906." Clauses Consolidation Amendment Act, 1907." * Printed infra. Note.—For the statute law on the maintenance of boundary fences and water courses see the " Line Fences and Water Courses Act, R. S. B. C, 1897. c. 76, and amendments; and for that relating to drainage, dyking and incidental and local irrigation, see the " Drainage, Dyking and Irrigation Act," R. S. B. C. 1897, ch. 64, and amendments; the "Public Dyking Act, 1898"; and the " Ditches and Watercourses Act, 1907." A general scheme of irrigation, properly so called, is now (Sept., 1907) under consideration by the Government of British Columbia, and legislation on the subject is expected in the approaching session of the Legislature in January, 1908. MARTIN'S MINING AND WATER CASES. [vol. Water CI. Con. Act, 1897. Interpretation. "Chief Commissioner of I ..ands aud Works." "Commissioi "Crown lands." REV. STAT. B. C, CHAPTER 190. An Act to confirm to the Crown all unrecorded and unappropriated Water and Water-power in the Province, and to consolidate and amend the law relating to the acquiring of Water-rights and Privileges for ordinary domestic, mining and agricultural purposes, and for making adequate provision for municipal water supply, and for the application of water-power to industrial and mechanical purposes. WHEREAS by the "Water Privileges Act, 1892," all water and water- power in the Province, not under the exclusive jurisdiction of the Parliament of Canada, remaining unrecorded and unappropriated on the 23rd day of April, 1892, were declared to be vested in the Crown in right of the Province, and it was by the said Act enacted that no right to the permanent diversion or- exclusive use of any water or water-power so vested in the Crown should after the said date be acquired or conferred, save under privilege or power in that behalf granted or conferred by Act of the Legislative Assembly theretofore passed, or thereafter to be passed: And whereas the " Land Act," the " Placer Mining Act, 1891," and the *' Mineral Act, 1896," contain provisions authorizing the diversion and use of water from natural water-courses and the acquisition of rights to the use of water upon the conditions as to such acquisition and diversion in the said Acts contained: And whereas it is necessary and expedient at the present session to provide for the due conservation of all water and water-power so vested in the Crown as aforesaid, and to provide means whereby such water and water-power may be made available to the fullest possible extent in aid of the industrial development, and of the agricultural and mineral resources of the Province: And whereas for the furtherance of the purposes aforesaid, it is expedient to enact an exclusive and comprehensive law governing the granting of water-rights and privileges, and to provide and regulate the mode of acquisition and enjoyment of such privileges, and the royalties payable to the Crown in respect thereof: Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— Short Title. 1. This Act may be cited as the " Water Clauses Consolidation Act, 1897." 1897, c. 45, s. 1. Interpretation. 2. In the construction and for the purposes of this Act (if not inconsistent with the context or subject-matter) the following terms shall have the respective meanings hereinafter assigned to them:— " Chief Commissioner of Lands and Works" shall mean and include the Chief Commissioner of Lands and Works, and any person for the time being lawfully acting in that capacity: " Commissioner " shall mean the Chief Commissioner of Lands and Works of this Province, or the person acting as such for the time being, and shall include every Stipendiary Magistrate for the time being in charge of any district, and every person duly authorized by the Lieutenant- Governor in Council to "act as and for the Chief Commissioner of Lands and Works, as Assistant Commissioner of Lands and Works in any district in which the land that may be referred to lies, other than that in which the chief office of the Lands and Works Department is situated, and any other district or districts for which, no such Assistant Commissioner of Lands and Works as aforesaid has been appointed: " Crown lands " shall mean all lands of this Province held by the Grown without encumbrance: n.] APPENDIX C—WATER ACTS. " Gold Commissioner" shall mean and include the person for the time being holding the office of Gold Commissioner by appointment of the Lieutenant-Governor in Council under the " Mineral Act," and having territorial jurisdiction: " Water" or " streams" shall include all natural water-courses whether usually containing water or not, and all rivers, creeks, and gulches, and all water-power, not being waters under the exclusive jurisdiction of the Parliament of Canada: " Unrecorded water" shall mean all water which for the time being is not held under and used in accordance with a record under this Act, or under the Acts repealed hereby, or under special grant by Public or Private Act, and shall include all water for the time being unappropriated or unoccupied, or not used for a beneficial purpose: " Ditch " shall include a flume, pipe or race, or other artificial means for conducting or diverting water: " Ditch-head " or " point of diversion " shall mean the point in a natural stream or lake, or other source where water is first taken into a ditch: " Record " shall mean an entry in some official book kept for that purpose: " Mine" shall include " claim" and | mineral claim," and shall mean any land held or occupied under the provisions of the mining laws of the Province, for the purpose of winning and getting therefrom minerals, whether precious or base, and whether held in fee simple or by virtue of a record or lease, and " owner of a mine " shall mean owner of a mine as above defined: " Owner of land" shall include pre-emptor or other' lawful occupant of Crown Lands; " Municipality " shall include municipal corporation : " Unincorporated locality" shall mean and include any portion of the Province not exceeding two thousand acres in area, and not being or comprising a municipality, or portion thereof: " Specially incorporated company" shall mean a . company incorporated pursuant to the provisions of section 132 hereof." In defining any word or expression used in this Act relating to a municipality or to municipal matters and not by this section expressly defined, reference may be had to the interpretation section of the " Municipal Clauses Act." In defining any word or expression used in this Act relating to mines and minerals and not by this section expressly defined, reference may be had to the interpretation section of the " Mineral Act, 1896," and of the " Placer Mining Act." 1897, c. 45, s. 2. Water CI. Con. Act, 1897.. "Gold Commissioner. " "Water." t "Streams. ' " Unrecorded water." "Owner of land." "Specially incorporated company." Words relating to municipalities. Words relating to mines and minerals. Division of Act. 3. This Act is divided into six parts, relating to the following subject- Division of matters:—• Act. Part I.—Confirming to the Crown all unrecorded water: Part II.—The acquisition of water by record for ordinary domestic, agri- . cultural and mining purposes: Part III.—The supplying of water by water-works systems to cities, towns and unincorporated localities: Part IV.—The acquisition of water for industrial or manufacturing purposes by Companies entitled under their terms of incorporation to avail themselves of the provisions of this Part: MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1897. Part V.—Procedure for tlie expropriation and acquisition of land in aid of the exercise by Municipal Corporations, or incorporated companies, of the privileges and powers conferred and created by Parts III. and IV. of this Act. Part VI.—Regulations, and repeal of former enactments. 1897, c. 45, s. 3. Unrecorded water vested in Crown. PART I. Confirming to the Crown all Unrecorded Water. 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 appropriate 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. 1897, c. 45, s. 4. Riparian and 5. No right to the permanent diversion or to the exclusive use of the other owners, 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. 1897, c. 45, s. 5. Lieut.-Governor may impose rents tolls, &c. 6. The Lieutenant-Governor in Council may from time to time impose and-reserve to the Crown, in right of the Province, such rents, royalties, tolls and charges in respect of the waters, or of the lands of the Crown and of the powers, rights and privileges, which may be acquired in pursuance of this Act, as by the Lieutenant-Governor in Council shall be deemed to be just and proper, and may likewise make and pass such regulations and rules as may be deemed necessary and advisable for the collection and enforcement of such rents, royalties, tolls and charges, or any of them: (a) Provided, that where by Order in Council such rents, royalties, tolls and charges are fixed in respect of any power, right or privilege, the same shall be permanent for the space of three years next succeeding the passing of .such Order in Council fixing the same, and thereafter shall be subject to triennial adjustment, increase or decrease. The Acquisition of Water by Becord for Ordinary Domestic Agricultural, and Mining Purposes. Condition of reasonable use. Mortgagee, &c. 7. Every right, power, and privilege conferred by and acquired under this Aet shall be subject to and conditional upon the reasonable use for the purposes for which such right, power, or privilege i^ conferred and acquired: (a) Provided that a mortgagee or encumbrancer shall, notwithstanding abandonment or non-user on the pa*± of the mortgagor, under his mortgage or encumbrance, hold all records and water rights appurtenant to the lands or mine charged for such period as may be reasonable to enable him to realize his security; and the question of what is a reasonable time shall, in each case, be a question of fact dependent on the special circumstances, and to be determined by the Commissioner or Gold Commissioner. 1897, c. 45, s. 7. m APPENDIX C—WATER ACTS'. IX 8. Every owner of land may secure the right to divert unrecorded water Water CI. from any stream or lake for agricultural, domestic, or for mechanical or in- Con. Act, dUjS-trial purposes, and purposes incidental thereto, to an amount reasonably 1897. necessary therefor, upon obtaining a record thereof in manner hereinafter ap-p. i.~7~ pointed. 1897, c. 45, s. 8. owners of land to obtain 9. Thirty days previous to the making of the Record the applicant shall record for post, at the following places, a notice in writing of his intention to apply agriculture, for the record therein referred to, viz.: At the point of proposed diversion; on &c- the ground on which such water is intended to be used; on each person's land Notice ofap- to be crossed by the water in course of transit to the place of user; and the office of the Commissioner for the District. . lication for, record to be given. Contents of notice. 2. Such notice shall contain the following particulars: (a) The name of the applicant: (6) The name, or, if unnamed, a sufficient description of the stream, lake, or other source from which such water is intended to be taken: (c) The point of diversion or intended ditch-head where the water is diverted from any stream for the purpose of developing power; the applicant shall also state the point at which it is to be returned, and the difference in altitude between the point of diversion and the point where it is to be returned; where the water is to be used for mining purposes, the point where the water is to be returned to the stream shall be given: (d) The means by which it is intended to store or divert the same: (e) The number of inches of water applied for: (/) The purpose for which it is required, stated with reasonable particularity : (g) The land upon which the water is to be used: (h) The date of the posting of the notice, and the date on which application will be made to the Commissioner for the granting of the record. 1897, c. 45, s. 9. 10. Every owner of a mine may secure the right to divert unrecorded Mine owners water from any stream or lake for any mining purpose, or other purposes for mining, incidental thereto, or for milling, concentrating or other purposes in connec- &c. tion with the working of his mine, to an amount reasonably necessary there-, for, upon obtaining a record thereof in manner hereinafter provided. 1897. c. 45, s. 10. 11. Thirty days previous to the making of the record the applicant shall post at the following places a notice in writing of his intention to apply to the Gold Commissioner for. the record therein referred to, at the following places, viz.:— 1. At the point of proposed diversion, on the mine on which such water is intended to be used; on each mine or person's land to be crossed by the water in course of transit to the place of user; and in the office of the Mining Recorder for the District; and shall forward a copy of his notice of application to the Gold Commissioner: 2. Such notice shall contain the following particulars:— (a) The name of the applicant: (b) The number of the applicant's free miner's certificate: (c) The name, or if unnamed, a sufficient description of the stream, lake, or other source from which such water is intended to be taken: (d) The point of diversion or intended ditch-head; where water is diverted from any stream for the purpose of developing power, the applicant shall also state the point at which it is to be returned and the difference in altitude between the point of diversion and the Notice of Application for record. Conten notice. MARTIN'S MINING AND WATER CASES'. [VOL. Water CI. point where it is to be returned; where the water is to be used Con. Act, for mining purposes the point where the water is to be returned 18^7. to the stream shall be given: (e) The means by which it is intended to store or divert the same. (f) The number of inches of water applied for: (g) The purpose for which it is required, stated with reasonable particularity : (h) The mine upon which the water is to be used: (i) The date of the posting of the notice, and the date on which application will be made to the Gold Commissioner for the granting of the record. 1897, c. 45, s. 11. Application 12. On the day mentioned in the notice of application, or at a subse- to attend on quent day and time to be fixed by the Commissioner or Gold Commissioner, day mention- as ^e case may j^ application shall be made by or on behalf of the applicant, either by attendance in person or by agent, or ,in writing, for a record in accordance with the terms of the notice. 1897, c. 45, s. 12. Hearing by Commissioner or Gold Commissioner of application. 13. The Commissioner or Gold Commissioner shall at such day and time proceed to adjudicate upon the application, and upon proof to his satisfaction of the publication of notice in manner aforesaid, and of the right of the applicant to apply for a record under the foregoing provisions of this Act or any of them, and of the volume of unrecorded water available for diversion, having regard to existing rights and records, whether held by land owners or mine owners, and to pending applications, may grant to the applicant a record of such amount of water and for such purposes as in the discretion of the Commissioner or Gold Commissioner shall be reasonably required by the applicant for the purposes specified in his notice of application. 1897, c. 45, s. 13. 14. The Commissioner or Gold Commissioner may adjourn such adjudication from time to time as circumstances may render expedient, and shall have jpower to take evidence by statutory declaration and to summon and examine witnesses upon oath, and to hear all parties whose rights are or may be affected by the application. 1897, c. 45, s. 14. Entry to be 15. The record granted upon such application shall be forthwith entered made in Book Dy the Commissioner, or Gold Commissioner, in the Book of Record of Water of Records of Rights, and shall contain the particulars required to be contained in the Water Rights. tt0tice of application as confirmed by or modified upon the adjudication and any other particulars directed to be inserted therein by Regulations in that behalf, with such additions and variations as circumstances may require: Adjo •py 2. A certified copy of the record shall be furnished by the Commissioner, or Gold Commissioner, to the applicant, and shall, without proof of the signature of the Commissioner, or Gold Commissioner, be evidence in all courts and proceedings of the matters in such record set forth: Gold Com- 3. The Gold Commissioner shall forthwith forward a certified copy of every missioner to record made by him to the Mining Recorder of the district or place in which forward copy the water comprised in such grant is to be used, and the Recorder shall, with- to Mining ont fee, transcribe such copy into his Book of Record of Water Rights. 1897, c. 45, s. 15. Certified a to be Oliver applicant. Recorde Priority of 16. On any dispute arising prior to record, priority of notice of applica- record, how tion shall constitute priority of right. 1897, c. 45, s. 16. determined. Time from 17. A record shall speak from the day on which it is made. 1897, c. 45, Which record s. 17. speaks. II.] APPENDIX C—WATER ACTS'. 18. Any owner of land or owner of a mine who would be entitled to apply for a record of the water in any stream or lake, if the same were unrecorded, and who is desirous of obtaining a record of the same, but is prevented, wholly or in part, by the existence of prior records, whether obtained under this or pj any other Act, may apply ex parte to the Commissioner, or Gold Commissioner, pi for leave to apply for a record, notwithstanding the existence of such prior ed records, and upon the furnishing to such Commissioner, or Gold Commissioner, wl of prima facie proof that the water allowed to be diverted by any or all of *n such existing records is wholly, or in part, unused thereunder, or unnecessary ur for, or in excess of the requirements of the purposes specified therein, such Commissioner, or Gold Commissioner, shall, by writing under his hand, authorize such owner to give notice of his intention to apply, and to apply, for a record of the water of such lake or stream, and such owner may thereupon apply for a record accordingly, and shall post up and forward notice of his application, and proceed therein in form and manner hereinbefore provided for the making of an application for a record of unrecorded water. (2) The Commissioner, or Gold Commissioner, in adjudicating upon the Cc application of such owner, shall, after hearing all parties in interest and their er< witnesses, if any, or, if any party in interest do not appear, upon its beingsu proved to his satisfaction that such party has had notice of the terms ofv such *" application and of the date and time on which it is made, either refuse the application,' or, where it is proved to his satisfaction that he is justified in making a cancellation or reduction as hereinafter mentioned, grant a record for such amount of water as, in his discretion, is reasonably necessary for the purposes specified in the application, and may, for the adjustment of the supply of available water, cancel any existing record obtained under this Act, or any Act hereafter to be passed on the ground of abandonment or non-user, and reduce any such existing record in part, either as to the amount of water or as to the times of using such water, where it is proved to his satisfaction that the amount of water thereby recorded is in excess of the amount required for the purposes specified in the record, or- that such water is necessary for such purposes only during certain periods, and may during the intervals be applied to other purposes, and may: (3) In respect of any existing record obtained under any Act hereto- in fore passed, in respect of which prima facie abandonment or non-user, in whole re or in part, is proved to his satisfaction, grant to the applicant an interim record entitling the applicant to the use of the water comprised in such existing record, in whole or in part* until the owner of such existing record, upon giving notice of his intention in that behalf at the time and in manner fixed by the Commissioner (to be not less than three months' notice in any case) shall, if entitled by law so to do, bona fide resume under his original record the use of the water comprised in such interim record, or such part thereof as he may reasonably require, to be ascertained by the Commissioner, or Gold Commissioner ; and the rights of the holder of the interim record shall, at the expiration of the period fixed in such notice, and in respect of the water therein specified, absolutely cease and determine, and he shall have no claim or right to compensation for any loss or damage caused to him by such resumption of use under the original record. 1897, c. 45, s. 18. 19. Every record obtained by the owner of land or the owner of a mine Records a shall be deemed as appurtenant to the land or mine in respect of which such purtenant record is obtained; to land or (2) All assignments, transfers, or conveyances, permitted by law of any ^ppurtem mine or of any pre-emption rights, and all conveyances of land in fee, whether water rec( such assignments, transfers, or conveyances were or shall be made before or deemed to after the passing of this Act, shall be construed to have conveyed and trans- included ii ferred, and to convey and transfer, any and all recorded water privileges appur- transfers, tenant to the premises assigned, transferred or conveyed, and shall pass with any of the premises aforesaid upon devise or descent. 1897, c. 45, s. 19. MARTIN'S MINING AND WATER CASES. [VOL, Water CI. Con. Act, 1897. Records to cease when mine worked out. Appo ment rtion- of water Where mines or lands consolidated, water records may also be consolidated. Work on ditch, &c.,vl be commenced in ( days. Passage ove mines and lands of others, security to given. Compensa- 20. Whenever a mine shall have been worked out or abandoned, or a preemption cancelled or abandoned, or'whenever the occasion for the use of the water upon the mine or pre-emption shall have permanently ceased, all records appurtenant thereto shall be at an end and determined. 1897, c. 45, s. 20. 21. Where any record authorizes the diversion of water for two or more purposes, or to be used in two or more places, or where the holder of the record desires to apportion the water in specified proportions between two or more parts of the land or mine on which the water is authorized to be used, the Commissioner, or Gold Commissioner, upon application made to him for that purpose by the holder of the record, or any person claiming through or under him by assignment or otherwise, and upon its being proved to his satisfaction that the rights of third parties will not be prejudiced by such apportionment, shall make a record apportioning the water authorized to be diverted in accordance with the terms of the application for apportionment, and shall indorse upon the original record a memorandum of and reference to the record of such apportionment. 1897. c. 45, s. 21. 22. A corresponding record and references may be made upon similar application where mines or lands are consolidated or pass into a single or joint: ownership, and it is proved to the satisfaction of the Commissioner, or Gold Commissioner, that it is expedient for the purpose of the more effectual and beneficial use of the water authorized to be diverted that the original records be consolidated in accordance with the terms of the transfer or consolidation of the lands or mines. 1897, c. 45, s. 22. 23. Within sixty days after the record is made, or within such further time as the Commissioner, or Gold Commissioner, may in his discretion, upon proof to his satisfaction of special circumstances rendering further time necessary, by writing duly recorded in the book of the record of water grants, the holder shall commence the excavation and construction of the ditch, flumes, and works in or by means of which he intends to divert, convey or utilize the water, and shall prosecute the work diligently and uninterruptedly to comple- I tion: Provided always, that the Commissioner, or Gold Commissioner, may, in his discretion, allow such work to cease for any necessary or reasonable I /time, upon cause being shown. Upon the non-fulfilment of any of the conditions of this section, the Commissioner, or Gold Commissioner, may, upon I notice, cancel the ^cord. 1891, c. 45, s. 23. 24. The right of entry on and through the mines and lands of others for carrying water upon, over, or under the said mines and lands, and for the construction of all necessary works in connection therewith, may be claimed i and exercised by any holder of a water record, upon giving, previously to such I entry, adequate security to the satisfaction of the Commissioner, or Gold Commissioner, for any loss or damages which may be caused by reason of such entry: such security to be tendered to the Commissioner, or Gold Commissioner, for approval with a notice, a copy of which shall be served on the owner of mines or lands affected, that at a day and time to be specified in such notice, application will be made to the Commissioner, or Gold Commissioner for approval of security, and upon such application, upon hearing what is alleged by all parties in interest, the Commissioner, or Gold Commissioner, may either accept or reject such tendered security, in whole or in part, and .so from time to time, until adequate security is tendered and approved. (a) After such entry, the holder of the water record so entering shall make full compensation to the occupant or owner of such mines or lands for any loss or damages which may be caused by reason of such entry; and for the recovery of such loss or damages, the owner of the mines or lands entered upon, or other person damaged by such entry and works, may sue upon the security so given to the Commissioner, or Gold Commissioner, irrespective of the form and manner in which security may be made and given. 1897, c. 45, s. 24. i,] APPENDIX C.—WATER ACTS. 25. Whenever, in pursuance of the power conferred by the preceding - Water Cl. * section, it is intended to enter upon mines or occupied lands, three days' notice . ?o*tACt' of such intention shall be given to the owner or occupant. 1897, c. 45, s. 25. ■ Notice of 26. The holder of a water record may enter mines and lands for the pur- entry. pose of repairing and maintaining the ditches, flumes and works for convey- Entry for ing water under his record, but shall, if such mines or lands are occupied, give purpose** of three days' notice to the occupant of intention to enter, except in cases of repair, &c. emergency, when immediate entry may be made. 1897, c. 45, s. 26. 27. The holder of any record may obtain permission from the Commis- Change of sioner, or Gold Commissioner, to change the place of diversion or the course place of of his ditch or flume, on giving such notices and complying witn such terms diversion, as the Commissioner, or Gold Commissioner, may require or impose. 1897, c. 45, s. 27. 28. Every holder of a record shall take all reasonable means for utilizing Record-holder the water granted to him; and if he wilfully waste any water, or take a quan- not to waste tity of water in excess of his actual requirements, the Commissioner, or Gold water. Commissioner, may, upon notice, cancel or reduce the record or impose all necessary conditions. 1897, c. 45, s. 28. I 29. If, after a record of all the water in any stream has been made, for Allowance to mining purposes, any placer mines are located and bona fide worked below the placer mines point of diversion on the stream, the owner of such placer mines shall be m ^ase a11 I entitled to the continuous flow in the stream past the mines of forty inches of e(j above water if two hundred inches be diverted, and sixty inches if three hundred them, inches be diverted, and no more, except upon paying to the holder of the record compensation equal to the amount of damage sustained by him on account of the allowance to the claim of such extra quantity of water; and, in computing such damage, the cost of the ditch shall be considered. 1897, c. 45, s. 29. 30. The owner of any ditch, flume, or pipe shall, at his own expense, con- Owner to struct, secure, and maintain all culverts necessary for the passage of waste and secure over- superfluous water flowing through or over any such ditch, flume, or pipe. A*w' waste> 1897, c. 45, s. 30. ' &c. 31. The owner of any ditch, flume,, or pipe shall construct and secure the Ditches, &c, same in a proper and substantial manner, and maintain the same in good con- to be condition and repair to the satisfaction of the Commissioner, or Gold Commis- strueted and sioner, so that the same shall, at all times, be of sufficient strength and capa- condition0* city for the fulfilment of the purposes for which it was constructed and is used, and so that no damage shall occur to any road or work in its vicinity from the use of such ditch, flume, or pipe. 1897, c. 45, s. 31. 32. The owner of any ditch, flume, or pipe shall be liable for and shall Making good make good, in such manner as the Commissioner, or Gold Commissioner, shall of loss for de- determine, all damages which may be occasioned by or through such ditch, fective ditch, flume, or pipe breaking or being defective in construction, or out of repair, or of insufficient strength and capacity for the purposes, or any of them, for which it was constructed, or is from time to time used. 1897, c. 45, s. 32. 33. Any person heretofore or hereafter engaged in the construction of any Crossing of road or work may, with the sanction of the Commissioner, or Gold Commis- ditches, &c., sioner, cross, divert, or otherwise interfere with any ditch, water right, or yroacls« &c other mining rights whatsoever, for such period and upon such terms as the said Commissioner, or Gold Commissioner, shall direct and impose. 1897, c. 45 s. 33. 34. Nothing herein contained shall be construed to limit the right of the Public roads Chief Commissioner of Lands and Works to lay out, from time to time, the MARTIN'S MINING AND WATER CASES. [vol. Wat Con. Act. 1897. CI- public roads of the Province, across, through, along, or under any ditch, water right, or mining right, in any Crown lands, without compensation, provided that as little damage as possible shall be done. 1897, c. 45, s. 34. Record for benefit of Indians on reserve. Proceedings to obtain same. Chief Commissioner may vary terms, &c. Chief Commissioner to be satisfied as to notice, &c. Chief Commissioner's power to hear and determine questions of compensation. 35. The Chief Commissioner of Lands and Works, with the approval of the Lieutenant-Governor in Council, may, upon such terms and conditions as to compensation to persons affected as the Chief Commissioner may think proper to impose, authorize the record for the benefit of all or any of the Indians located on any Indian reserve, of so much and no more of any unrecorded water from any stream or lake, for domestic and agricultural purposes, as may be reasonably necessary for such purposes: (2) No water shall be recdrded under this section unless and until— (a) The provisions of this Act relating to notice of application to divert and record water have been satisfied: (b) The notice required by the provisions of this Act relating to notice of application to divert and record water has been published for one month in the British Columbia Gazette, and in a newspaper (if any) published in the district, and if there be no newspaper published in the district, then for one month in some newspaper published in the Province: (c) The Commissioner of the district has served upon or forwarded by registered letter to each person who may be affected by the proposed diversion a copy of such notice: (d) The Commissioner of the district has reported thereon in writing to the Chief Commissioner as to the volume of water in the stream or lake from which the water is proposed to be taken; the damage or benefit likely to accrue from such diversion to the land owners or other persons having water rights on such stream or lake from which it is proposed to divert the water; that the amount of water asked for is necessary and reasonable, and as to such other particulars as the Chief Commissioner may from time to time require: (3) The Chief Commissioner may, with the approval of the Lieutenant- Governor in Council, alter, vary, or cancel any record made under this section, upon such terms and conditions as he may deem proper: (4) No record under this section shall be granted unless and until the Chief Commissioner has been satisfied that the terms and conditions as to notice have been satisfied and compensation (if ordered) has been paid: (5) All questions connected with the diversion of water under this section, compensation for damages, quantity of water required, shall be decided iu a summary manner by the Chief Commissioner, and the Chief Commissioner may, in writing, direct any Commissioner or Justice of the Peace to take, on oath, the evidence of any person who can give evidence on or whose evidence is material to the decision of the matters in question; and such Commissioner or Justice of the Peace shall have full power and authority to take such evidence and to summon before him such persons. 1897, c. 45, s. 35. Appe Supi Coun from of C« sione Com ty Court decision •mmis- r or Gold 36. Any person affected by any decision of a Commissioner, or Gold Commissioner, under this Part of this Act, may appeal therefrom to the Supreme Court or to the County Court in a summary manner by filing, within one month after the day such decision is rendered, a petition as hereinafter provided :— (a) The appeal srfall be in the form of a petition to any Judge of the Supreme Court, or the Judge of the County Court appealed to, verified by affidavit, and setting forth the matters and points of fact and of law relied upon: (6) The petition shall be intituled in the matter of this Act, and of the particular decision appealed from, and shall name as respondents the persons who, before the Commissioner, or Gold Commissioner, were II.] APPENDIX C—WATER ACTS. adverse in point of interest to the appellant, and the Commissioner, Water CI. or Gold Commissioner, and shall, along with the affidavit verifying ^Jf-0^' the same, be filed in the proper registry within the one calendar ' month aforesaid: (c) A copy of the petition and of the affidavit verifying the same shall, within ten days of the filing thereof, or within such further time as a Judge of the Court appealed to by indorsement thereon allows, be served upon the respondents named therein, with a notice indorsed thereon that the answer of the respondents thereto must be filed in the proper office named therein, and a copy of such answer served upon the petitioner, whose address for service shall be stated within fourteen days from the service of such petition: (d) Upon being served with the answer, or upon the expiration of the time allowed for filing and serving the same, the petitioner shall set down the petition for hearing at the next sittings of the Court appealed to, within the county in which such petition is filed, to be held not less than fourteen days from such service or the expiration of such time, and shall give to the respondents ten days' notice of the same having been so set down for hearing: (e) Provided that any party may ex parte apply to a Judge of the Court appealed to, to fix a day for the hearing of the petition, and all other parties to the petition shall receive ten days' notice of the hearing upon the day so fixed: (f) Any person who is affected, or who claims to be affected, by the deci sion appealed from, whether served with the petition or not, may, with the permission of the Judge, appear and be heard on the hearing of the appeal, and may, with the like permission, file affidavits relating thereto. 1897, c. 45, s. 36. 37. Upon being served with a petition any respondent may apply to a Respondent Judge of the Court appealed to for an order requiring the appellant to give may apply for security for the costs of the appeal, and the Judge may direct the giving of security for security in such manner, within such time, and to such amount as he maycosts ■ think fit, /and that in default of the giving of such security the appeal shall be dismissed, and that in the meantime all proceedings be stayed. 1897, c. 45, s. 37. 38. Upon the hearing of the appeal, the Judge of the Court appealed to Order of may either confirm or reverse the decision appealed from, and either in whole Judge, or in part, and may add to or vary such decision, and may make such order ia relation to the matters dealt with in the decision appealed from, and respecting the rights of all parties in interest, and affected by the decision appealed from, whether named in the petition or not, as he deems just, and may direct the doing of all necessary acts, and the making of all necessary entries and records to give effect to such order, and may make such order as to costs as he thinks just. 1897, c. 45, s. 38. 39. Any person dissatisfied with the decision of a Judge of the Supreme Appeal toFi or County Court, in respect of any such appeal, may appeal to the Full Court, Court, provided that notice of appeal be given to the opposite party within twenty- one days from such decision; and provided, also, that the appellant give within such period such security for costs as a Judge of the Court appealed from may approve; and such appeal shall be dealt with as near as may be as in the case of an ordinary appeal to the Full Court from a final judgment in an action in the Supreme Court. 1897, c. 45, s. 39. MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, _ 1897. PART III. The Supplying of Water by Water-works' Systems to Cities incorporated Localities. Towns, and Un- Municipality 40. Any municipality may, from time to time, obtain one 01 more records may obtain of the unrecorded water in any streams or lakes as a source or sources of water record, supply for a projected water-works system, or branch of a system, or to augment any existing system, or branch of such system, in manner hereinafter provided. 1897, c. 45, s. 40. Right of 41. Any municipality shall from time to time, where a sufficient supply ot municipality unrecorded water is not available within reasonable limits of distance and propriate expenditure, have, subject to the approval of the Lieutenant-Governor in Council, the right of expropriation over recorded water and all works in connection therewith to the extent deemed necessary by the municipality to obtain a proper and sufficient source of water supply for ordinary household purposes. 1897, c. 45; s. 41. record- water. Proceedings to obtain unrecorded water by municipality. 42. A municipality desiring to obtain a record of unrecorded water shall proceed in manner provided by sections 9, 12, 13, 14 and 15 of Part II. of this Acffc; save in so far as said section 13 is modified as to pending applications by sub-sections (a) and (c) of this section, and as to quantity of water by section 40 hereof: (a) Upon compliance, by the municipality, with section 9 of this Act, all pending applications to the Commissioner and Gold Commissioner for records of water comprised in whole or in part within the application of the municipality shall be stayed until the adjudication upon the application of the municipality: (6) Upon application made by a municipality for a record of water under this section, the Commissioner shall adjudicate thereon, but shall, before making or refusing a record, transmit to the Lieutenant-Governor in Council the notice of application, a transcript of the application and of all evidence received by him for or against the same, and his adjudication thereon and his reasons therefor, and the Lieutenant-Governor in Council may either refer the matter back to the Commissioner for further evidence and report, or may confirm or reverse his adjudication in whole or in part, and if the decision of the Lieutenant-Governor in Council be in favour of granting a record the Commissioner shall, upon receipt of a certified copy of an Order in Council in that behalf, make a record in favour of the municipality in accordance with the terms of such Order in Council: (c) If the application of the municipality be granted and a record made thereupon, the same shall speak from the date of the compliance by the municipality with the provisions of section 9, and all applications pending as aforesaid on that day shall be subject to the record and rights acquired by the municipality, and shall, where necessary, abate accordingly. 1897, c. 45, s. 42. >ropns ands. itled to exercise the right of expropriation over re- n manner hereinafter provided for the expropriation upon completion of such expropriation a record shall be made by ommissioner, in favour of the municipality in ac- :ordance with the terms of the conveyance obtained upon such expropriation, made, to the extent of the rights acquired by the ticipality proved to his satisfaction. 1897, c. 45, s. 43. 43. A municipality < r corded water may proceed of land., the Commissioner, or Gold Com .nee with the terms c ; no such conveyance _J II.] APPENDIX C—WATER ACTS. XV11 44. Upon any application by a municipality for a record of unrecorded Water CI. water, it shall not be necessary for such municipality to prove that such water Con. Act, applied to be recorded is actually required for the present use of such munici- 1897. pality, but it shall be sufficient for such municipality to allege that such ap- whaAs~ plication is made bona fide, and for the purposes of such municipality alone: necessary for (a) No record made' in favour of a municipality for a water-works system municipality shall lapse or become void by reason of non-user thereof in whole or in part, .lDDiv;rL- for but the existence of a prior record in favour of a municipality shall b3 no bar record. toi the grant of a subsequent interim record to an applicant therefor, except Non-user, in so far as the municipality may, at the time of such application, be actually using the water; and such interim record shall only entitle the holder thereof to Interim use the water, in whole or in part, until the same shall be actually diverted by record, the municipality under their record. 1897, c. 45, s. 44. 45. A municipality desiring to construct and operate a water-works system, Kight of entry or branch of such system, or to augment or extend any existing system, oron and ex- branch of such system, and to perform and construct all such acts and works Pr0?natl01} as may be-necessary or incidental thereto, and either within or without th( limits of the municipality, may, from time to time and at such time as the . municipality may see fit, enter into and upon any lands either within or without the limits of the municipality, and may survey, set out, and ascertain such parts thereof as are required for the purposes of such water-works system, branch or extension, as any engineer, surveyor, or other person authorized in this behalf by the municipality, shall* judge suitable and proper for the said purposes, or any of them, and may exercise powers of expropriation over such lands in manner hereinafter provided. 1897, c. 45, s. 45. land, &c, by municipality. 46. A specially incorporated company incorporated for the sole object of Specially •constructing and operating a water-works system within a municipality, and incorporated for purposes necessary and incidental thereto, and obtaining from the munici- water-works pality a consent, pursuant to the " Municipal Clauses Act," to the construe- companies tion and operation of such water-works system, shall have and may exercise all n?ay ex?r^se ,, . , , ... , ... - , ..,.,. , above rights, the rights, powers, privileges and priorities conferred upon municipalities by sections 40, 41, 42, 43, 44 and 45 of this Act; and shall, subject to the conditions, if any, upon which the consent of the municipality is given, have exclusive rights in this behalf within the municipality: (a) Such company may apply for records of unrecorded water in accord- When such ance with section 9 of this Act upon the day, or at any time after the day upon company may which its Memorandum and Articles of Association shall be executed, in ac- proceed, cordance with the provisions of the " Companies' Act, 1897," and may proceed with such applications, subject only to the obtaining of the consent of tne municipality as aforesaid: Provided that all such applications and all proceedings consequent upon, and incidental thereto, shall be null and void if the company fail to obtain the consent of the municipality as aforesaid before the time appointed for application to the Commissioner for adjudication upon such applications, or within such further time as may be fixed by the Commissioner, upon proof, to his satisfaction, of special circumstances rendering an extension of time necessary. 1897, c. 45, s. 46. 47. Where a company has been duly incorporated under and in compliance with the provisions of the preceding section ol' this Act, for the supplying of any municipality with a water-works system, and has acquired a source of •supply, by record or otherwise, and constructed in whole or in part a waterworks system, such municipality may, on giving twelve months' notice, in writing, to the company, acquire the source of water supply, and all the records of the company and the water-works system, and all lands and works connected with and appertaining thereto, whether within or without the limits of the municipality, on payment therefor to the company of the value of such waterworks system, lands and works (without any reference to or payment for the value of the said records, except the actual cost thereof, if any, to the company) Power to municipality to acquire from existing water-works company water-works system. MARTIN'S MINING AND WATER CASES. [VOL. Water CI. to be ascertained in manner hereinafter provided, for the ascertainment of the T8<T *' va^ue °f lands upon expropriation, with the'following additions thereto:— 1. If the water-works system has been in operation less than five year's, a compensation. Company may, in lieu of above amounts, claim actual costs, &c. Mode of estimating value thirty per cent, bonus upon such value: If in operation more than five and less than ten years, a twenty-five per cent, bonus: If in operation more than ten and less than fifteen years, a twenty per cent, bonus: If in operation more than fifteen and less than twenty years, a fifteen per cent, bonus: If in operation twenty years or more, a ten per cent, bonus. 2. Provided, however, that should such municipality desire to exercise its right of expropriation* before the expiry of ten years from the date of the formation of the company, the company may claim, in lieu of payment of the actual value of their works and bonus additional, as above provided, repayment, of the amount actually expended in construction and preliminary expenses, and such sum as, after taking into account all revenues received and all reasonable expenditure on account of working expenses and maintenance, will amount to ten per cent, per annum on such amounts. 3. In estimating the value of such water-works system, lands and works, the arbitrators shall take, as the basis of their valuation, the amount which would be required to construct such works at the date of the arbitration and th'1 condition in which the works are, and shall not allow anything for the value of the franchise. 1897, c. 45, s. 47. When profits of company exceed 20% per annum. 48. If in any year during the operation within a municipality of a system of water-works by a company, under and by virtue of the provisions of the two next preceding sections of this Act, the net profits earned by and divided from the said water-works system shall exceed twenty per centum per annum on the paid up stock of the company, the rates charged by the company for water shall, when required by the municipality by notice in writing, and within thirty days after service of such notice on the company, be reduced so that the said profits shall not exceed the aforesaid rate of twenty per centum per annum on the paid up stock of the company. 1837, c. 45, s. 48. Municipality 49. If at any time during the period in which any such company may en- may require joy said exclusive privileges, by this Act or by consent of the municipality con- extension, ferred in manner aforesaid, in the opinion of the municipality, it is necessary repair, &c, ot desirable that an extension of the water service to other parts of the muni- works by such npany. Applicatic to Court. App€ cipality should be made, or if in the opinion of the municipality the mains, water-pipes, and works of the said company are incapable of sustaining a pressure of water adequate for use in the event of fire within any portion of the said municipality in which the safd works may be in existence, then the municipality may give notice to such company to make such extension, changes, or repairs in or to the said works as may be specified in the said notice, and within a period of time to be specified in the said notice. In the event of such company omitting or declining to make such extension, changes, or repairs in accordance with the said notice, it shall be lawful for a Judge of the Supreme Court, upon application by motion made to him on behalf of the municipality and upon hearing evidence, to determine whether such extension is reasonably necessary for the requirements of the inhabitants of the municipality, or whether such changes or repairs are necessary for the reasonable protection of such portion or portions of the municipality against fire, and, if so,' to direct within what time such company shall effect the said extension, changes or repairs : Provided that either party may appeal from such order to the Full II.] APPENDIX C—WATER ACTS. Court of the Supreme Court of British Columbia, conforming in such appeal to Water CI. the procedure of the said Court in that behalf. 1897, c. 45, s. 49. ^0?™^ot' .< ±S9t. 50. If no such appeal be taken, or if upon appeal the decision of the Judge Company to of the first instance be affirmed, then such company shall effect the extension, obey order of changes, or repairs within the time limited by the order of the said Judge of the Court, &c, or first instance, or within such extended .time as the Court of Appeal may think rights to proper; and in-the event of a failure to obey such order of the Judge or of the CPase> Court of Appeal, as the case may be, the exclusive rights by this Act or by the consent of the municipality granted to the said company shall absolutely cease and determine. 1897, c. 45, s. 50. Companies for supplying unincorporated localities may exercise rights, &c, under sees. 40 to 45. Time at which company may proceed with application. 51. A specially incorporated company incorporated for the sole object of constructing and operating a water-works system for the supplying of an unincorporated locality, and for the purposes necessary and incidental thereto, and obtaining from a Judge of the Supreme Court the certificate in section 55 of this Act specified, shall have and may exercise all the rights, powers, privileges and priorities conferred upon municipalities by sections 40, 41, 42, 43, 44, and 45 of this. Act, in the same manner and to the same extent as if the said unincorporated locality were a municipality. • (a) Such company may apply for records of unrecorded water in accordance with section 9 of this Act, upon the day or at any time after the day upon which its Articles and Memorandum of Association shall be executed in accordance with the provisions of the " Companies' Act, 1897," and may proceed with such applications, subject only to the obtaining and filing of the certificate aforesaid: Provided that all such applications and all proceedings consequent upon and incidental thereto shall be null and void if the company fail to obtain the certificate aforesaid before the time appointed for application to the Commissioner for adjudication upon such application, or within such further time as may be fixed by the Commissioner upon proof to his satisfaction of special circumstances rendering an extension of time necessary, or within such further time as the Judge of the Supreme Court, before whom the petition of the company is pending, may by order appoint and direct. 1897, c. 45, s. 51. 52. A company desiring to obtain and exercise the powers in the preceding Such section mentioned, shall proceed as follows :— company shall prepare state- 1. The company shall cause to be prepared a statement, verified as to sub- ment shewing stance and figures, by a statutory declaration of the person or persons prepar- certain paring the statement, shewing : ticulars. (a) The unincorporated locality, describing it by metes and bounds: (I) The approximate number of persons actually resident, and the number of inns, dwelling-houses, and buildings and works occupied for industrial purposes within the unincorporated locality: (c) The amount of unrecorded water for which the company has made application, or intends to make application, the estimated quantity of unrecorded water available, and the quantity and head of water required for the operation of and the extent of stream or lake to be affected by the proposed system: (d) A description of the lands, if any, sought to be taken by the company under powers of expropriation, for the purposes of the undertaking, and, so far as may be, of all lands to be affected thereby: (e) And, generally, every circumstance necessary to fully and fairly set forth the facts relating to the proposed undertaking of the company : 2. The company shall obtain from the proper Land Registry Office a certi- Certificate of ficate shewing the names of the registered owners of the lands, and from the owners of Commissioner or Gold Commissioner, a certificate shewing the names of the land, holders and the particulars of all water records sought to be taken by the company under powers of expropriation for the purposes of the undertaking: VOL. IT. M.M.C.—B MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1897. Surveys, levels, &c. File statement, plan, &c, in Supreme Court Registry.. 3. The company shall cause surveys to be made and levels to be taken of the unincorporated locality, and also of all lands sought to be taken or acquired, held or used, for the purposes of the undertaking, and also, so far as possible, of all lands to be affected by the undertaking, and from such surveys and levels shall cause to be prepared a map or plan showing, as fully as may be, particulars of the matters in this sub-section referred to and the intended location of the proposed undertaking and works: 4. The company shall file the said statement, plan, and the- said certificates in the District Registry of the Supreme Court for the county within the limits of which the unincorporated locality, or any part thereof, is situate, together with a copy of the Memorandum and Articles of Association of the company, certified under the hand of the Registrar of Joint Stock Companies. 1897, c. 45, s. 52. On compliance with above, company may peti tion Judge. 53. Upon the filing of the requisite documents in accordance with sub-section (4) of the preceding section, the company may present a petition to a Judge of the Supreme Court for the granting of the certificate in section 55 hei eof mentioned; such petition shall set forth the material facts relied upon by the company as justifying the construction and operation of the proposed undertaking and works; a statement of the estimated cost thereof, and a statement of the amount of subscribed capital of the company, and shall be verified as to substance and figures by affidavit of the directors or provisional directors of the company. 1897, c. 45, s. 53. Notice to be published. In case whei no resident Judge. 54. Upon the filing of the petition in the preceding section mentioned, a notice shall ba published for two weeks in the British Columbia Gazette, and in some daily or weekly newspaper published or circulating in the unincorporated locality, setting forth as succinctly as may be the substance of the application to be made by the company, the day, time and place at which such application is to be made, which time shall not be less than thirty days from the date of . the first publication of such notice, which date shall be stated in each publication thereof: s 2. In the case of any petition relating to an unincorporated locality within a county in which there is no resident Judge of the Supreme Court, the. Company may, at any time after the filing of the petition, enter the same for hearing before a Judge of the Supreme Court in any other county, and the petition and all documents filed therewith shall remain in the registry where filed until it is necessary to transmit the same by mail, when the same shall be transmitted to the district registry of, and the petition be heard and determined by a Judge of the Supreme Court in said last-mentioned county. 1897. c. 45, s. 54. Hearing. Certificate. Adjournm and notice parties. 55. Upon the hearing of such petition, a Judge of the Supreme Court shall, > if it appear to his satisfaction that the company has complied with the provisions of section 52 of this Act, and that the facts made to appear to" the Court by the company are such as to justify the construction and operation of the proposed undertaking and "Works, and the doing and exercising of all acts and statutory powers in connection therewith, grant to the company a certificate in such form as is provided by regulations in that behalf; therein ascertaining and fixing the amount of capital which shall be subscribed for before the company shall be authorized to exercise its corporate powers; the time within which such capital is to be subscribed, and the time within which the undertaking is to be commenced by the company: provided that the aggregate of the times fixed for the subscribing of such amount of capital, and the commencing of the ] undertaking shall, in no case, exceed twelve months from the date of the certificate : (2) Upon the hearing of such petition, the Judge may order adjournm nts from time to time, and may direct the giving of notice of the hearing to such . persons, and in such manner as he may think proper, and may fix a time within which such persons may appear and be heard and may require the furnishing j of such further evidence, and may direct such references to be had and inquiries j to be made as he may think proper, and may hear a est by the proposed undertaking and works, and th (3) In the granting of such certificate the Judge conditions and restrictions, including the maximum n company, as he may, upon the facts made to appear 1 ing of the petition, deem necessary in the fmblic interest, of any person or class of persons to be affec tion of the proposed undertaking and works. 1897, c. 45, i 56. Every such certificate shall forthwith, upon thereof, be transmitted to and filed with the Registrar panies, and by him attached to the memorandum and arti tbe company: and such certificate shallt as soon as possible at least two weeks in the British Columbia Gazette and which the notice of application to the Court was publish* certificate shall also be published with, and attached articles and memorandum of association of the published: 2. Upon the granting and filing of such certificate every part and condition thereof, be read with and be the articles and memorandum of association of the company, shall as from the date of such\ certificate be deemed to be, in the exercise of its corporate powers, a company incorporate with the powers taken under the articles and memorandum o undfcr this Act. subject only to the terms and conditi 1897. c. 45, s. 56. 57. Upon the granting by a Judge of the Sup rem under the provisions of section 55 of this Act, and u terms thereof by the company, and upon the filing of •under the seal of the Supreme Court with the District with the Commissioner and the Gold Commissioner of limits of which such unincorporated locality is situate, and may exercise all the rights, powers, privileges and I municipalities by sections 40, 41, 42, 43, 44 and 45 of conditions, if any, upon which such certificate is grante powers, privileges and priorities are, in the discretion sary for the purposes of the companv in the construct proposed undertaking and works, and all acts and wo dental thereto. 1897, c. 45, s. 57., 58. Where an incorporated company has constructed, a system of water-works for the supply of any unincor such unincorporated locality shall be incorp municipality shall be incorporated, the limits whereof sh* the area of such unincorporated locality, equal the municipality may, upon giving company, acquire the source of water supply, and all the pany, and the water-works system, and all lands with and appertaining thereto, whether within or witho municipality, on payment therefor to the company of the works system, lands and works (without any reference tc value of the said records, except the actual cost thereof, pany). to be ascertained in manner hereinafter provided of the value of lands upon expropriation, 1. If the water-works system has be< thirty per cent, bonus upon such value: If in operation more than five an( cent, bonus: vith the follow a in operation MARTIN'S MINING AND WATER CASES. [VOL. Water CI. If in operation more than ten and less than fifteen years, a twenty per ^°is9'7^Cfe' cent, bonus: If in operation more than fifteen and less than twenty years, a. fifteen per cent, bonus: If in operation twenty years or more, a ten per cent, bonus. Companies' 2. Provided, however, that should such municipality desire to exercise its right to claim right of expropriation before the expiry of ten years from the date of the for- actual cost, &c, instead of bonus. Basis of valu* ation. mation of the company, the company may claim, in lieu of payment of the actual value of their works and bonus additional, as above provided, repayment of the amount actually expended in construction and preliminary expenses, and such sum as, after taking into account all revenues received and all reasonable expenditure on account of working expenses and maintenance, will amount to ten per cent, per annum on such amounts. 3. In estimating the value of such water-works system, lands and works, the arbitrators shall take, as the basis of their valuation, the amount which would be required to construct such works at the date of the arbitration and the condition in which the works are, and shall not allow anything for the value of the franchise. 1897, c. 45, s. 58. cipality te construct works, &c. Right of coin- 59. Any municipality and any company entitled to construct and operate pany or muni- a water-works system in any municipality or unincorporated locality, and to have and exercise the powers in that behalf in this Part of this Act contained (in the subsequent sections of this Part referred to as " The municipality or company"), may construct, erect and maintain in and upon the lands held or used in connection with such water-works system, and in and upon any stream or lake from which water is to be diverted for the supply of such water-works system, all such reservoirs, water-works, and machinery requisite for the undertaking, and for conveying the water thereto and therefrom, in, upon and through any lands lying intermediate between the said reservoirs and water-works and the streams or lakes from which the same is procured and the points of distribution in the municipality or unincorporated locality, by one or more lines of pipes, as may from time to time be found necessary. 1897, c. 45, s. 59. Right of entr on lands, &c. Restoration property to original condition . Setting out, Ac, of necessary lands. Laying dowi of pipes, &c. •y 60. The municipality or company, and their" servants under their authority, may for the said purposes enter and pass upon and over the said lands, inter- ' mediate as aforesaid, and the same may cut and dig up, if necessary, and may lay down the said pipes through the same, and in, upon, through, over, and under the highways, streets, lanes, roads, or other passages whether within or without the limits of the municipality or unincorporated locality, and in, upon, through, over, and under the lands and premises of any person or body corporate or politic, within the municipality or unincorporated locality, f 2. All lands not being the property of the municipality or company, and all highways, roads, streets, lanes, or other passages so dug up, or interfered with, shall be restored to their original condition without unnecessary delay : 3. The municipality or company may set out, ascertain, purchase in manner hereinafter provided for the expropriation of lands, use and occupy such parts of the said lands as the municipality or company may think necessary and proper for the making and maintaining of the said works, or for the opening of new streets required for the same, and for the purchasing of any lands required for the protection of the said works or for preserving the purity of the water supply, or for taking up, removing, altering or repairing the same, and for distributing water to the inhabitants of the municipality or unincorporated locality, or for the uses of the municipality or company, or of the proprietors or occupiers of the land through or near which the same may pass. 1897, c. 45, s. 60. 61. For the purpose of distributing water as aforesaid the municipality or company, may sink and lay down pipes, tanks, reservoirs, and other conveniences, and may from time to time alter all or any of the said works, as well II.] APPENDIX C—WATER ACTS. in the position as in the construction thereof, as they may consider advisable. Water CI. 1897, c. 45, s. 61. Con. Act, 1897. 62. The municipality or company shall do as little damage as may be in g , • I ~- the execution of the powers by this Act granted to them, and shall make reason- .IJ* ™ "*" , . - _ . _ 7 OI U drill ctgB able and adequate satisfaction to the owners and others whose property is en- done, tered upon, taken or used by the municipality or company or injuriously affected by the exercise of its powers, to be ascertained as provided in cases of the expropriation of lands. 1897, c. 45, s. 62. 63. All such water-works, pipes, erections and machinery requisite for the Water-works, said undertaking shall be vested in and be the property of the municipality or pipes', &c, company constructing the said works. 1897, c. 45, s. 63. property of company or 64. The municipality or company may lay down in, through, across, under, nmmcipa i y. or along the railway and lands of any railway, street railway, or tramway com- ^y111^ of • i_ i ^ L-'--' i i • * j.i pipes across pany, any main pipe belonging or necessary to any water-works which the rauwavs &c municipality or company is authorized to construct, and may enter"upon, break up, take or use any such land in any way necessary or convenient for the said purpose, but without interfering with the operation of such railway, street railway, or tramway, or subject to the payment of the value of any lands so taken to be ascertained in manner hereinafter provided for ascertaining the value of lands upon expropriation. 1897, c. 45, s. 64. 65. All service pipes which may be required shall be constructed and laid Mode of lay- down up to the outer line of the street by the municipality or company, and i^g pipes on the municipality or company shall be solely responsible for keeping the same sfcree.ts< in repair: repair, &c. 2. In all cases where a vacant space intervenes between the outer line of the street and4 the wall of the building, or other place into which the water is to be taken, the municipality or company may, with the consent of the owner, lay the service pipes across such vacant space and charge the cost thereof to the owner of the premises, or such owner may himself lay such service pipes, provided the same is done to the satisfaction of the municipality or company, or person appointed by them in that behalf. 3. The expense incidental to the laying and repairing, as hereinafter provided, of such service pipes, if laid or repaired by the municipality or company (except the repairing of the service pipes, from the main pipe to the outer limit of the street as aforesaid, which shall be borne solely by the municipality or company), or of superintending the laying or repairing of the same if laid or repaired by any other person, shall be payable by the owner on demand to the municipality or company, or, if not so paid, may be collected forthwith in the isame manner as water-rates: Provided that in no case shall the said expense of superintending the laying or repairing of such service, if laid or repaired by any' other person as aforesaid, exceed one dollar. 1897, c. 45, s. 65. 66. The service pipes from the line of street to the interior face of the Service pipe outer wall of the building supplied, together with all branches, couplings, stop- from street cocks, and apparatus placed therein, by the municipality or company, shall be line to interior under their control, and if any damage is done to this portion of the service of onfcer waU • pipe or its fittings, either by neglect or otherwise, the occupant or owner of the lands shall forthwith repair the same to the satisfaction of the municipality or company; and in default of his so doing, whether notified or not, the municipality or company may enter upon the lands where such service pipes are, and by their officers, servants, or agents repair the same, and charge the same to the owner of the premises, as hereinbefore provided: 2. The stop-cock placed by the municipality or company inside the wall of Use of stop- the building shall not be used by the water tenant, except in cases of accident, cock. or for the protection of the building or the pipes, and to prevent the flooding of the premises: MARTIN'S MINING AND WATER CASES. [VOL. Water CI. 3. All parties supplied with water by the municipality or company may be Con. Act, required by the municipality or company to place only such taps for drawing and shutting off the water as are approved of by the municipality or company. 1897, c. 45, s. 66. 189 Per<= arrth com or i zed by pany to ight of and tion. 67. Any person authorized by the municipality or company for that purpose, shall have free access, at proper hours of the day, and upon reasonable notice given and request made, to all parts of every building or other premises in which water is delivered and consumed, for the purpose of inspecting or repairing as aforesaid, or for placing meters upon any service pipe or connection within or without any house or building, as may be deemed expedient, and for this purpose, or for the purpose of protecting or of regulating the use of any such meter, may set or alter the position of the same or of any pipe, connection or tap, and may fix the price to be paid for the use of any such meter, and the times when and the manner in which the same shall be payable, and may also charge for and recover the expenses of such alterations; and such price and the expense of such alterations may be collected in the same manner as water rates. 1897, c. 45, s. 67. Power to company or municipality to regulate distribution and use of water. Collection of rates by ■ municipality. 68. The municipality or company shall regulate the distribution and use of the water in all places and for all purposes where the same may be required, and from time to time shall fix the prices for the use thereof, and the times of payments; and they may erect such number of public hydrants, and in such places as they shall see fit, and direct in what manner and for what purposes the same shall be used, all which they may change at their discretion, and may fix the rate or rent to be paid for the use of the water by means of hydrants or fire plugs, and by public buildings: 2. Such sum payable by the owner or occupant of any house, tenement, or lands for the water supplied to him there, or for the use thereof, and all rates, costs and charges by this Act to be collected in the same manner as water-rates, shall, if due the municipality, be a lien and charge on such house, tenement, or lands, and may by the municipality be levied and collected^ in like manner as municipal rates and taxes are by law recoverable, and if due to the company may be recovered as a debt by suit in any Court of competent jurisdiction. 1897, c. 45, s. 68. Making and 69. The municipality or company may from time to time make and enforce enforcement all necessary by-laws, rules and regulations for the general maintenance or the of By-laws. management or conduct of the said waterworks, and of the officers, and others employed in connection with them, not inconsistent with this Act, and for the collection of the said water-rent and water-rate, and for fixing the* time and times when and the places where the same are payable: 2. And also for allowing a discount for prepayment, and in case of default of payment may enforce payment by shutting off the water. 1897,.c. 45, s. 69. Attempt to collect not to invalidate lien. Uncollected rates may be realized by sale of land. 70. The attempt to collect the said rates by any process hereinbefore mentioned shall not, in any way, invalidate the lien upon such premises as hereinbefore provided: 2. And in the event of any such rate remaining uncollected and unpaid, and continuing a lien upon the said premises as aforesaid, the amount of such rate so in arrears shall be returned by the collector to the treasurer of the municipality annually, at such time as may be fixed by the municipality by by-law in that behalf, and the same, together with interest at the rate of ten per cent, per annum thereon, shall thereupon be collected by such treasurer by the sale of the lands and premises in the same manner and subject to the same provisions as in case of the sale of lands for arrears of municipal taxes, 1897, c. 45, s. 70. II.] APPENDIX C—WATER ACTS. Water CI. Con. Act, 1897. Liability for damage by breaking of pipes. Exemption of certain goods from execution. Supplying non-residents. 71. The municipality or company shall not be liable for damages oaused by the breaking of any service pipes or attachment, or for any shutting off of any water to repair mains or to tap the mains, if reasonable notice of the intention to shut off the water is given whenever the same is shut off more than six hours at any one time. 1897, c. 45, s. 71. 72. All materials procured or partly procured under contract with the municipality or company and upon which the municipality or company shall have made advances in accordance with such contract, shall be exempt from execution. 1897, c. 4."). s. 72. 73. The municipality or company shall have power and authority to supply upon special terms, any corporation or persons with water, although not resident within the municipality, or unincorporated locality, and may exercise all other powers necessary to the carrying out of their agreement with such corporation or persons, as well without as within the municipality or unincorporated locality, and they may also from time to time,7 make and carry out any agreement which they may deem expedient for the supply of water to any railway company or manufactory, whether such water be supplied within or without the municipality or unincorporated locality. 1897, c. 45, s. 73. 74. The municipality or company may dispose of any real or personal property acquired for water-works purposes when no longer required, and until sold, may rent or lease the same; any property so sold shall be free from any charge or lien on account of any debentures issued by the municipality or company, but the proceeds of the sale shall be added to and form part of the fund for the redemption and payment of any debentures constituting a charge thereon, or should no such debentures then exist, then the said proceeds shall form part of the general funds of the said municipality or company, and may be applied accordingly: 2. In case credit is given for any portion of the purchase money of such real property the said municipality or company may take security, by way of mortgage to secure the same, and the municipality or company, shall have all the rights, powers and remedies, expressed in or implied by any mortgage given, as fully as if such mortgage had been given to a private person, and every such mortgage, and the proceeds thereof, shall stand as security for any debentures, constituting a charge on the real property, at the time of sale. 1897. c. 45, s. 74. 75. The municipality or company may, from time to time, make by-laws power t0 for regulating the time, manner, extent and nature of the supply by the water- make by-laws works, the tenement or parties to Which and to whom the same shall be fur- and rules, nished, the price or prices to be exacted therefor, and each and every other - matter or thing related to or connected therewith, which it niay.be necessary or proper to direct, regulate, or determine, in order to secure to the inhabitants of the municipality or unincorporated locality a continued and abundant supply of pure and wholesome water, and to prevent the practising of frauds upon the municipality or company with regard to the water so supplied. 1897. c. 45, s. 75. 76. If any person does or commits any of the following acts :— Wrongful (a) Wilfully or maliciously hinders or interrupts, or causes, or procures to ac*s- be hindered or interrupted the municipality or company, or their mana- Hindering gers, contractors, servants, agents, workmen, or any of them, in the workmen> &G- exercise of any of the powers and authorities in this Act authorized and contained: (b) Wilfully or maliciously lets off or discharges any water, so that the Wasting same runs waste or useless, out of the said works: water. (c) Being occupant, tenant, or inmate of any house or otherwise supplied Ditto, with water by the municipality or company, sells or disposes of the .rower to sell property no longer required. Mortgage security. MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1897. njury to hydrant. Fouling water. Alteration of meter. Wrongful appropriation of water. Penalty. Fire hydrants. water thereof, or gives it away, or permits it to be taken or carried away, or uses it or applies it to the benefit of others, or to any othea than his own use or benefit, or wrongfully neglects or improperly wastes the water: (d) Not being in the employment of the municipality or company, and not being a member of the fire brigade and duly authorized in that behalf, wilfully opens or closes any hydrant, or obstructs the free access to any hydrant, stop-cock, chamber, pipe, or hydrant chamber, by placing on it any building material, rubbish, or other obstruction: (e) Throws or deposits any injurious, noisome or offensive matter into the water or water-works, or upon the ice, in case such water is frozen, or in any way fouls the water, or commits any wilful damage or injury to the works, pipes, or water, or encourages the same to be done: (f) Wilfully alters any meter of the water-works placed upon any service pipe or connected therewith, within or without any house, building, or other place, so as to lessen or alter the amount of water registered thereby, unless specially authorized by the said municipality or company for that particular purpose and occasion: (g) Lays or causes to be laid any pipe or main to communicate with any pipe or main of the said water-works, or wrongfully takes or appropriates to his own use any water from any public or private tap, or in any way obtains or uses any water of the said water-works without the consent of the said municipality or company: (h) Bathes, or washes, or cleanses any wool, cloth, leather, skins or animals, or places any nuisance or offensive thing within or near the source of supply for any water-works system in any lake, river, stream, source or .fountain from which the water of the said water-works system is obtained, or conveys, or casts, causes, throws, or puts any'filth, dirt, dead carcasses, or other noisome or offensive thing therein, or causes, permits or suffers the water of any sink, sewer or drain to run or be conveyed into the same, or causes any other thing to be done whereby the water therein may be in anywise tainted or fouled: Such person shall, for any such act, upon summary conviction, be liable to a penalty not exceeding two hundred and fifty dollars, together with the costs and charges attending the proceedings and conviction. 1897, "c. 45, s. 76. 77. It shall be the duty of the municipality or company to provide a sufficient supply of water for the use of the municipality or unincorporated locality in the prevention and extinguishment of- fires, and for such purpose to provide, equip, place and maintain a sufficient number of hydrants in such places as may be most readily available for such purpose, and the same to keep supplied with a sufficient quantity and force of water. 1897, c. 45, s. 77. PART IV. The Acquisition of Water for Industrial or Manufacturing Purposes by Companies Entitled under their Terms of Incorporation to avail themselves of the Provisions of this Part. " Power 78. Any specially incorporated Company throughout this Part of this Act company." referred to by and included in the expression "power company" may acquire, have, hold and exercise the rights, powers, privileges and priorities in and by this Part of this Act created, provided and conferred, upon and subject to the terms and conditions in this Part of this Act contained. 1897, c. 45, s. 78. Powers and 79. The power company shall be incorporated for and the objects of the restriction company shall be restricted to the acquisition of water and water-power by of such records of unrecorded water or by the purchase of water records or water privi- companies. leges for, and the application of such water and water-power to all or any II.] APPENDIX C—WATER ACTS. recting i, divert- fluming, of the purposes, and in any of the manners and methods following. 1897, c 45, W; s. 79. Cc 80. For rendering water and water-power available for use, application and distribution by ejecting dams, increasing the head of water in any exist- ^y ' ing body of water, or extending the area thereof, diverting the waters of any f*™ Stream, pond, or lake into any other channel or channels, laying or erecting &<?' any line of flume, pipe, or wire, constructing any raceway, reservoir, aqueduct, weir, wheel, building, or other erection or work which may be required in connection with the improvement and use of the said water and water-power, or by altering, renewing, extending, improving, repairing, or maintaining any such works or any part thereof. 1897, c. 45, s. 80. 81. The use of water or water-power for hydraulic mining purposes, for For hydrauli general irrigation purposes within a defined locality or district, and for mill- mining ing, manufacturing, industrial and mechanical purposes, other than the gen- purposes. eration of electricity. 1897, c. 45, s. 81. 82. The use of water or water-power for producing any form of power or Generating c for producing and generating electricity, for the purposes of light, heat and electric and power; and for other power. (a) Constructing, operating, and maintaining electric works, power houses, generating plant, and such other appliances and conveniences as are necessary and proper for the generating of electricity or electric power, or any other form of developed power, and for transmitting the same to be used by the power company, or by persons or companies contracting with the power company therefor, as a motive power for the operation of motors, machinery or electric lighting or other works, or to be supplied by the power company to consumers for heating or as a motive power for propelling tramways, or for driving, hauling, lifting, pumping, lighting, crushing, smelting, drilling and milling, or for any other operations to which it may be adapted, or to be used or supplied for or in connection with any other purposes for which electricity or electric power may be applied or required: (o) Placing, sinking, laying, fitting, maintaining, and repairing electric lines, accumulators, storage batteries, electric cables, mains, wires, pipes, switches, connections, branches, electric motors, dynamos, engines, machines, or other apparatus or devices, cuts, drains, water-courses, pipes, poles, buildings and other erections and works; and erecting and placing any electric line, cable, main, wire or other electric apparatus above or below ground: {c) Constructing, equipping, operating and maintaining electric, cable, or other tramways or street railways for the conveyance of passengers and freight : (d) Constructing, equipping, operating and maintaining telegraph and telephone systems and lines. 1897, c. 45, s. 82. 83. The supplying of compressed air, electricity and electric power, or any Supplying other form of developed power, to consumers for any purposes to or for J^0*™0 ^ which compressed air, electric power, or any other form of developed power ier po may be applied or required. 1897, c. 45, s. 83. 84. The power company may, upon the day or at any time after the day Power coin- upon which its Memorandum and Articles of Association shall be executed in pany may accordance with the provisions of the " Companies' Act, 1897," apply for, ap?~y } d and may acquire and use records of unrecorded water in manner provided a£ter execu.v by section 9 of this Act for obtaining records of unrecorded water for domestic, tion of mining and agricultural purposes. Memorandur and Articles of Associa- MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1897. 2. It shall be sufficient, for the power company in posting and forwarding the notice of application by said section 9 prescribed, in lieu of describing the lands on which the.water is intended to be used, to insert a statement that the water applied for is to be used for the proposed undertaking and work of the power company subject to the approval thereof by the Lieutenant-Governor in Council. 1897, c. 45, s. 84. Certa m ( locu ments >,pl ans andd atato be furnii- hec Clerk of Ex- ecutn re Coun M;h efore comp •Hiy con struct wc rks. 85. The pov their works, file ments: mpany shall, before proceeding with the construction of the Clerk of the Executive Council the following docu- Lieut.-Gov- ernor may cause inquiries, impose limitations, conditions, <fec. (a) A copy of the Memorandum and Articles of Association, certified under the hand of the Registrar of Joint Stock Companies: (b) A description by metes and bounds of the locality, place, or district within which the corporate powers of the power company in respect of its undertaking and works are to be exercised: (c) A plan of such locality, place or district, showing, so far as may be, the intended situation of the undertaking and works of the power com" pany: (d) A statement in detail of the amount of unrecorded water applied for, or intended to be presently applied for by the company, with the names, or, if unnamed, with a sufficient description of the streams and lakes from which it is intended to be diverted, and the points and modes of diversion ; where water is diverted from any stream for the purpose of developing power, the applicant shall also state the point at which it is to be returned and.the difference in altitude between the point of diversion and the point where it is to be returned: (e) A statement of the estimated total available supply of water in such streams and lakes: (/) A statement certified as correct by the Commissioner and Gold Commissioner having jurisdiction within such locality, place or district, of the records of water to be diverted from such streams and lakes existing r at the time of the applications by the power company, and the purposes for which such records have been obtained: (g) A statement of the existing records and a description of the lands, the purchase of which records and lands the power company deem necessary for the purposes of the proposed undertaking and works: (h) A statement of the works, the construction and operation whereof is to be presently undertaken by the power company • (i) A statement of the estimated cost of the undertaking and works, includ- ' ing water and lands to be purchased, the construction and operation whereof is to be presently undertaken by the power company: (j) And generally a complete statement of all facts and matters necessary to fully inform the Lieutenant-Governor in Council as to the purposes and undertaking of the power company, and of all matters and, things affected by or relating thereto. 1897. c. 45, s. 85. 86. Upon the filing of the documents aforesaid, the Lieutenant-Governor in Council may either require further evidence or may direct references to be had or inquiries to be made, and may approve the proposed undertaking of the company as submitted, or may limit to such an extent as may 'in the public interests be deemed advisable the area within which the corporate powers of the power company with respect to its undertaking and works are to be exercised, or- the amount of unrecorded water which the power company may record, or the amount of recorded water or of lands which the power company may purchase, and generally may impose upon such power company all such restrictions, limitations and conditions as the Lieutenant-Governor in Council may deem necessary or exped'ent. lc97. c. 45. s. 86. 87. The Lieutenant-Go to. certificate setting forth pany, as submitted, has b subject to t forth and contained: 2. The certificate shall fix the amour which shall be duly subscribed before struction of its undertaking and works and e: that behalf, in this Part of this Act contained: shall be so subscribed in respect of any specif! and works, and the further amount of capita actually available above the cost of such first-onent to the remainder or of each further specified works, before the same is commenced: 3. Such certificate shall also fix the time within which the portion of the capital is to be subscribed in respect of the specified portion of such under- fix taking and works in such certificate dealt with, and the time within which such wr portion is to be commenced, and also the time within which such works shall be to in operation: Provided that the aggregate of the times fixed for the subscribing ™t of such amount of capital in respect of. and the commencing of, the first speci- ^ fied portion of the undertaking and works in such certificate dealt with shall not exceed twelve months; and in respect of the remaining portions of the undertaking and works shall not exceed such times as shall be prescribed by the Lieutenant-Governor in Council in that behalf: 4. A copy of such certificate, certified under the hand of the Clerk of the Certified copy Executive Council and the seal of the Province, shall be filed in the office of certificate to the Registrar of Joint Stock Companies, and shall be by him attached toDe ^}e^ with the Memorandum and Articles of Association, and a copy of such certificate j e&™ Xar cj* shall be printed with and form part of every copy of such Memorandum and Qomnanies Articles of Association published or issued after the granting of the certificate: 5. A copy of the certificate shall be published f'u* one month in the Br Columbia Gazette and in a newspaper published or circulating within in which the undertaking and works are to be carried on and situate: 6. A copy of such certificate, certified as aforesaid, offices of the Commissioner and Gold Commissioner ha diction in respect of the said area. 1897, c. 45, s. 87. 88. Upon the granting and filing of such certificate the same shall as to Such certi- every part and condition thereof be read with and be deemed to form part ficate de of the Memorandum and Articles of Association of the company, and the com- r pany shall, as from the date of such certificate, be deemed to be in so far as du regards the exercise of its corporate powers, a company incorporated by special Act with the powers taken under the Memorandum and Articles of Association, and under this Act, subject only to the terms and conditions of such certificate. 1897, c. 45, s. 88. 89. Upon the granting by the Lieutenant-Governor in Council'of a cer- Compa tificate under the provisions of section 87 of this Act, or of a further certi- granting of ficate under the provisions of section 90 hereof] and upon the publication and such certifi- filing thereof with the Registrar of Joint Stock Companies, and subject to c^l to have compliance with the terms and conditions thereof, the company may acquire p0weyS .&c and shall have, hold and exercise all the rights, powers, privileges and priorities in and by this Part of this Act granted and conferred, so far as such rights, powers, privileges and priorities are under the Memorandum ArFicles of Association, and in the discretion of the power company necessary for the purposes of the power company in the construction and operation of MARTIN'S MINING AND WATER CASES. [vol. Water CI. Con. Aot, 1897. Gold Commissioner to v amend water records to comply with certificate. Company may apply for further certificate. the proposed undertaking and works of the power company, and all acts and works necessary and incidental thereto: > 2. Forthwith upon the filing in his office, in accordance with the provisions of section 87 hereof, of a certified copy of any such certificate, the Commissioner and Gold Commissioner shall, wherever necessary, amend the water. ; records acquired by the power company so as to accord with the provisions of such certificate. 1897, c. 45, s. 89. 90. From time to time, as occasion may require, after the granting of a first certificate in manner aforesaid, the power company may apply to the Lieutenant-Governor in Council in manner provided by section 85 of this Act, for a further certificate in respect of the remainder or of any further specified portion of the undertaking and works of the power company, the construction and operation whereof is then intended to be presently undertaken by the company, and the Lieutenant-Governor in Council may grant to the power company a further certificate in manner and to the effect in sections 86, 87, 88, and 89 of this Act. mentioned and provided; and every such further certificate shall be filed and published in manner provided for the filing and publication of the first certificate: 2. The first aggregate period of twelve months hereinbefore provided in respect of the first specified portion of the undertaking and works shall not be extended under any circumstances, and no period of time fixed by any certificate granted to the power company shall be extended upon application made after such time has elapsed, except on condition that such extension shall be subject to any intervening record acquired, or any record thereafter acquired Upon an application, notice whereof was given after the expiry of such time and before such extension: 3. Upon any application made under this section, and before the expiry of the time fixed in that behalf by the said first certificate, or, subject to the provisions of sub-section (2) of this section, the Lieutenant-Governor in Council may vary, add to, abridge, alter .or amend the terms and conditions of the said first certificate, and may extend or abridge the times fixed and appointed therein. 1897, c. 45, s. 90. 91. The rights, powers, privileges and priorities which shall be acquired, vested in com- had, exercised, and enjoyed by the power company for the purposes of its pany as long undertaking and works shall, so long as the same are used for such purposes, First period of 12 months not to be extended. Lieu b. -Governor may vary terms of certificate. Rights, &c, *ed. be vested in the power company. 1897, c. 45, 91. Objections to works by per sons affected Hearing. 92. Any person throughpor upon, whose lands the undertaking and works of the company are intended to be placed or constructed, in whole or in part, or any company whose works will be paralleled by the proposed works, may, within the time and in the manner appointed by the Lieutenant-Governor in Council in that behalf by rules and regulations under this Act, give notice in writing, stating that he objects to the construction and operation of the proposed undertaking and works of the power company, in whole or in part, and such objection shall be heard by the Lieutenant-Governor in Council, who shall, after hearing evidence, upon oath if required, determine the same, and may in respect of the matters made to appear upon the hearing of such objection, impose upon the power company such conditions, if any, as he sees fit. A certified copy of the Order in Council determining the objection shall be transmitted to the Registrar of Joint Stock Companies, and to the Commissioner and Gold Commissioner having territorial jurisdiction in the locality or place affected thereby. 1897, c. 45, s. 92. Company maj avail itself of 93. The power company shall, subject to and under and pursuant to the terms and conditions of its Memorandum and Articles of Association, and also subject to and under and pursuant to the terms and conditions of every certificate and Order of the Lieutenant-Governor in Council in respect thereto, be entitled to avail itself of and be subject to all the provisions hereinafter in II.] APPENDIX C—WATER ACTS. this part of this Act contained so far as the same are applicable to, and may be applied to the undertaking and works of the power company, in whole or in part, and to the exercise by the power company of its corporate rights, powers, privileges and priorities, or any-of them. 1897, c. 45, s. 93. 94. The privileges and powers by this Part of this Act granted, are subject to the following provisions:— (a) The power company shall not interfere with the public right of travelling on or using any roads, streets, highways or watercourses, and shall not do any unnecessary damage, nor in any way obstruct the entrance to any door or gateway, or free access to any building erected in the vicinity. The power company shall not affix within or without the corporate limits of any municipality any wire less than twenty feet above the surface of the street or road, nor erect more than one line of poles along any road or street without the consent of the municipality. In every municipality the poles shall be as nearly as possible straight and perpendicular, and shall be painted, if so required by any by-law of such municipality: (6) Whenever, in case of fire, it becomes necessary for its extinction, or the preservation of property, that the poles or wires should be cut, the cutting under such circumstances of the poles or any of the wires of the power* company, under the directions of the chief engineer or other officer in charge of the fire brigade, shall not entitle the power company to demand or claim compensation for any damage thereby incurred. The power company shall be responsible for all damage which its agents, servants, or workmen cause to individuals or property in carrying out or maintaining any of its undertakings and works: (c) Within the limits of any municipality, the opening up of streets for the erection of poles, or for carrying the wires underground, shall be subject to the direction or approval of the engineer or such other official as the municipality appoints, and shall be done in such manner as the municipality directs; the municipality may also direct and designate the places where the poles are to be erected in such municipality; in an unincorporated district such works shall be subject to the supervision and approval of the Chief Commissioner of Lands and Works: (d) The surface of the street shall, in all cases, be restored, as far as possible, to its former condition by and at the expense of the powder company. 1897, c. 45, s. 94. Water CI. Con. 189' *ot, Memora ndun and Art of Assoc icles tion, to ficate ar certi d orders o Lieut.- Governc Restrict ons. Public h igh- ways. Wires. Poles. Cutting off wires in of fire. case Supervision by engineer of municipal-' ity of erection of poles. In unincorporated districts. Surface of street to be restored. 95. The power company may and is hereby authorized and empowered to Authorizes transmit and distribute compressed air, electric power, light and heat. 1897, transmission * c. 45, s. 95. °f compressed air, electri- 96. The power company shall have power to construct, maintain, complete, °J y' c* and operate a single or double track tramway, or an aerial or other tramway of^amwavs1 or tramways, with the necessary side-tracks and turnouts for the passage of &c cars, teams, carriages, and other vehicles adapted to the same, and to build bridges, and erect, acquire, and maintain telegraph and telephone poles upon, Telegraph and and along, and above any lands or highways in the said Province which are telephone in the line of the tramway intended to be built by such power company, sub- P°les- ject, in so far as the same passes over or along any highways, to the permission and under the supervision of the Chief Commissioner, who, if he shall see fit to give permission to operate on any highway, shall fix the location of the tramways over the said nigh ways between the said points, and may direct the paving, macadamizing, repairing, and grading of such highways, and the construction, opening up, and repairing of ditches or drains along or across the said highways, and from time to time may give such directions as he may see fit and proper for the due protection and convenience of the public, and the maintenance and preservation of public roads and highways, but in so far as the tramway, telegraph or telephone passes through or lies within the limits MARTIN'S MINING AND WATER CASES. Water CI. Con. Act, 1897. Passengers and freight. Telegraph telephone Buildings an other neces- General powers for erecting and carrying cm electrical an< other power works. Subject to control of of any municipality, to the assent of the Council of such municipality, and to j such regulations and conditions, modifications, changes, matters, and things ? as such municipality may, from time to time, by by-law enact. The powers company shall have power to take, transfer, and carry passengers and ore, minerals and freight, upon their tramway by the force or power of animals, orI such steam, electric, water or other motive power as the company may deem expedient. 1897, c. 45, s. 96. id 97. The power company shall have power to construct telegraph and telephone lines, and may establish offices for the transmission of messages for the public, and make rates and collect tolls for the use thereof by the public, and to do such other things as may be necessary to fully and completely carry on and operate such works, and for the purposes of erecting and working such telegraph and telephone lines the power company may enter into a contract with any other company, foreign or domestic, or may lease any of the company's lines or any portion thereof. 1897, c. 45, s. 97. 98. The power company shall^have power to construct and maintain buildings, erections, reservoirs, wheels, weirs, dams, raceways, aqueducts, viaducts,; tramways, and all other necessary works connected therewith for making the*, water-power available and utilizing and improving and increasing the water privileges from time to time acquired, held and used by the power company. 1897, c. 45, s. 98. 99. The power company shall have power to erect, construct, operate and maintain electric works, power houses, generating plant, and such other appliances and conveniences as are necessary and proper for the compressing of air, the generating of electricity or electric power, and for transmitting such compressed air, electricity or electric power to be used by the power company as a motive power for the operation of motors, machinery, or electric lighting or other works of the company, or to be supplied by the company to consumers for heating, or as a motive power for propelling tramways, or for driving, hauling, lifting, pumping, lighting, crushing, smelting, drilling and milling, or, for any other operations to which it may be adapted, or to be used or supplied for or in connection with any other purposes for which compressed air, electricity or electric power may be applied or required, and tor any of the above purposes the company is hereby authorized and empowered, by its servants, agents, contractors and workmen, from time to time, to make and ereot such electric works and sink, lay, place, fit, maintain and repair such electric lines, accumulators, storage batteries, electric cables, mains, wires, pipes, switches, connectionsy-branches, electric motors, dynamos, engines, machines, cuts, drains, water-courses, .pipes, buildings and other devices, and to erect and place any electric line, cable, main wire or other electric apparatus above or below ground, along, or over, or across any road, street, or bridge, and to ."erect poles for the purpose of placing the same in such manner as the power company shall think fit, necessary or proper for the purpose of carrying out the operations of the power company in respect of and incidental to the generating or supplying vof electricity: and also for all such purposes break up the soil and pavement of the roads, streets or bridges, and md break up any sewers, drains or tunnels within or under such roads, ts and bridges, and to erect poles, posts, pillars, lamps, globes or other ratus in or upon the said roads, streets or bridges, or against any wall alls erected on the same or adjoining thereto, and to dig and sink trenches lay electric lines, cables and mains, and to put electric lines, nd connection boards from such "electric lines, cables and across or along such roads, streets and bridges, and from t, remove, alter, repair, replace and relay such electric lines, is, switches, and connection branches, or other apparatus: hall, so far as regards any lands in- ted as a municipality, be subject to malum to -opei to oper streets ar and drains and t( mains, in, under hies, mains, (a) Provided that all such eluded within the area ch onditi the municipality may impos provided, however, II.] APPENDIX (.—WATER ACTS. that the company shall have the right of appeal, in a summary manner Water CI. by petition, to a Judge of the Supreme Court of British Columbia from Con. Act, the conditions imposed by any municipal council, or from any regula- 18ffl. tion thereof, and the Judge shall thereupon prescribe under what regulations and conditions the company shall be allowed to exercise the powers hereby conferred within the limits of such municipality: (6) And provided also, that in places other than municipalities such powers Or Chief Con shall be subject to such regulations as the Chief Commissioner of Lands missioner of and Works may impose. 1897, c. 45, s. 99. Ji?n<?s anc* Works. 100. The power company shall have power, and the power company, its Expropriate workmen, servants and agents are empowered and authorized to enter into and of lands, upon any lands of any* person or body politic or corporate, to survey, set out, ascertain and take, expropriate, hold and acquire such parts thereof as it may require for the purposes of the undertaking and works of the power company, in whole or in part; subject, however, to making compensation therefor in manner hereinafter provided for the expropriation of lands: (a) The power company may also, by its workmen, servants or agents, Clearing rig! enter into and upon any lands adjoining the works of the said company, of way, &c. whereupon any line or lines of pipe, fluming or viaducts have been laid or erected by- the power company in connection with its undertaking and works, and clear the said lands of timber and underwood to such width on each side of the said undertaking and works as the power company may deem necessary for the proper protection of the same: subject, however, to making compensation in manner hereinafter mentioned for such clearing or any damage done. 1897, c. 45, s. 100. 101. The power company shall have power and it shall be lawful fo power company, their servants, agents, and workmen, from time to tir enter into and upon the land of any person or body politic or corporate, in the line of the tramway intended to be built by such company, ai survey, set out and ascertain such parts thereof as they require for the undertaking and work, and to contract with the owners and occupiers o lands lying between the said points and those having any interest in the for the purchase of the same, or any part thereof, or of any privilege may be required for the purposes of this Act, and for the right to take ber. stone, gravel, sand and other materials from the aforesaid lands o: lands adjacent thereto, for the use and construction of the said undert and work. 1897, c. 45, s. 101. thep( 102. Subject to the approval of the Chief Commissioner in unincorporated Pow< districts and to the approval of the municipality in incorporated districts, it ject 1 "shall be lawful for the power company to divert or alter the course of any provj •road or way crossing the tramway, or to raise or sink any road or way, inalter order to more conveniently carry the same over or under, or by the side of the *ram tramway, and if in the course of making the tramway the power company shall interfere with any road or way, they shall, with all convenient speed, make good Rep* to the satisfaction of the Chief Commissioner or the municipality, as the case may be, all damage done by1 them to such road or way. And all rails laid by the power company shall be of a description approved by the Chief Commissioner. 1897. c. 45, s. 102. 103. It shall be lawful for th; owners or occupiers of any rn by the tramway of the power company to lay down upon their mine any collateral branches of tramway to connect with the pow tramway, for the purpose of bringing trams to or from such com way, and the power company shall, on such terms and condition agreed upon by the power company, and the owner or owners o make such switches as may be necessjary for effecting such comrnu make contracts for the carriage of freight and ore by the power < traversed Mil n land or ma; MARTIN'S MINING AND WATER CASES. [VOL. Water CI. for the supply of electricity by the said company. And the powers in this Con. Act, section may be exercised by any mining company working or owning any mine, whether such powers are or are not contained in the memorandum of association or partnership articles of such company.' 1897, c. 45, s. 103. 1897. nies break-up road- ys, sewers, i., to repaii 104. When the power company opens or breaks up the roadway or pavement of any highway, street, or bridge, or any sewer, drain or tunnel, it shall with all convenient speed, complete the work for. which the same shall be broken up, and shall fill in the ground, reinstate and make good the road or pavement, or the sewer, drain or tunnel so opened or broken up, and carry, away the rubbish occasioned thereby; and shall at all times whilst any such roads or pavements shall be opened or broken up, cause the same to be fenced and guarded, and shall cause a light sufficient for the warning of passengers to be set up and maintained against or near such road or pavement where the same shall be opened or broken up every night during which the same shall be continued open or broken up. 1897, c. 45, s. 104. Tramways passing through canyons too narrow for two. 105. Where it shall so happen that.any tramway constructed by the power company shall pass through any narrow pass, which is too narrow for the passage of another line of tramway, without entailing great expense, any other company proposing to run a tramway line which would pass through the same pasiS or canyon shall be entitled to run their engines, cars, trucks, or other vehicles over, and have all other running powers over, the said first-mentioned line of tramway through such pass or canyon for such a distance as will enable such second company to carry out the intention of its promoters, without any unnecessary expense from the fact of the said pass or canyon being already occupied by such first-mentioned line of tramway. 1897, c. 45, s. 105. Compensation 106. The exercise of any such running powers over any tramway, line by one com- through such a pass or canyon shall entitle the company owning such line to pany for using compensation; and in case the parties interested therein cannot agree upon the nanv'6!00111' amount to be paid, such amount shall be ascertained in manner hereinafter such narrow provided for ascertaining the value of lands upon expropriation. 1897, c. 45, pass. s. 106. One power 107. The power company shall have power and is hereby authorized and company may empowered to acquire by purchase or otherwise the right to use and to use use Power de- an(j employ power already developed by others, at any point or points, and veloped by whether the same be in the form of electrical power or otherwise. 1897, c. 45, anotner. w „—. s. 107. Power to contract for street railways and- lighting. 108. The power company shall have power to enter into contracts with any person or corporation, and with any municipality, for building and equipping street railways or tramways, and for lighting the streets of any municipality and supplying it or them with power and heat, and any such contract shall be valid and binding for the term of years thereby agreed upon by the company and any such person, municipality or corporation so contracted with. 1897, c. 45, s.*108. Power to lease 109. The power company shall have the power to enter into and conclude and sell t° any agreement with any other power company, tramway, or railway company, or any corporation, for leasing or selling to them the property, real or personal rights, contracts, privileges, powers and franchises of the company, or any part thereof, or for the working or managing of any of its undertakings or works, or for running powers over the same, or any part thereof; provided that, such agreement shall be approved of by two-thirds in value of the shareholders at any special meeting called for that purpose. 1897, c. 45, s. 109. other com panies proper ty, running powers, &c. Power to 110. The power company shall have the power to purchase, take over, purchase, lease or otherwise acquire, all or any part of the property, real and personal, acquire and rights, contracts, privileges and franchises of any other person, power company, II.] APPENDIX C—WATER ACTS. or company, and shall have, when the same are acquired, all the powers, contracts, privileges, priorities, rights and franchises of any such person or company that may have been conferred upon any s;uch person or company by concession, agreement, charter, Acts of incorporation, by-laws or contracts with any municipality, so that the same shall be held, exercised and enjoyed by the power company as fully as if specially conferred hereby, and the power company in the exercise of its undertaking, and in the exercise of any of its powers of acquirement, shall become possessed of all the property, rights, contracts, privileges, and franchises of such person or company, and the right to exercise all such powers and franchises, and to operate the undertakings and works so acquired, and after having acquired the property, rights, contracts, privileges, priorities and franchises of any such person or company, by purchase under any power of sale or trust for sale contained in any trust deed securing debentures, or having purchased from any person or persons, or corporation or corporations, who may have been the purchaser or purchasers at any such sale or otherwise, shall stand possessed of the title to all the property, rights, contracts, privileges, and franchises as previously held by such person or company so purchased or acquired, with all the powers, statutory, municipal and otherwise, for the due operation of the same, and the power company shall have power to carry on the business of such person or company so acquired in the name or names of such company so acquired (where acquired from a company) if thought fit. Provided, that the power company may lease the property, rights, contracts, privileges and franchises of any other company, from any such purchaser or purchasers, under the power of sale, or trust for sale contained in any trust deed, securing debentures, and in such case the power company as lessee shall have the right to exercise all the powers, rights, contracts, privileges and franchises conferred originally upon any such other company. 1897, c. 45, s. 110. Water CI. Con. Act, 1897. take over property rights, &c, of other 111. Any municipality and the power company are hereby respectively p0 we r to en ter authorized, to make and to enter into any agreement or covenant relating to into agree- the construction of the undertaking and works of the power company in whole ments with or in part, and for the paving, macadamizing, repairing and grading of the municipalities streets or highways, and the construction, opening of and repairing of drains construction or sewers and the laying of electric lines, cables, and water pipes in the said Qf WOrks, re- streets and highways, the location of any tramway, and the particular streets pair of streets, along which the same shall be laid, the pattern of rails, the time and speed of &c. running the cars, amount of fares to be paid by passengers, the time in which the works are to be commenced, the manner of proceeding with the same and the time for completion, and generally for the safety and convenience of pas- I sengers, the conduct of the agents and servants of the power company, and the non-obstructing or impeding of the ordinary traffic. 1897, c. 45, s. 111. 112. The power company is hereby authorized and empowered to take, trans- Power to port and carry passengers and freight over the tramways of such company, and carry freight to make rates and charges for the carriage and transportation thereof. 1897, an" , 45, s. 112. passengers. 113. On any and all of the lines of tramways of the power company a fare Payment of shall be due and payable by every passenger to such company on such pas- fares, &c. senger entering the car or other conveyance, and any person refusing to pay the fare, when demanded by the conductor or driver, and refusing to quit the car or other conveya'nce when requested so to do by the conductor or driver, may be ejected from the car, and shall, upon summary conviction, be liable to a fine of not exceeding twenty dollars with costs. 1897, c. 45, s. 113. 114. The cars and carriages of the power company while running on the Tramways said tramway of such company, or any of them, shall have the right to use the have *h© right said tramways as against all other vehicles whatever; and all other such vehi- {^"g^t i ^t 1 cles using the said tramways, whether meeting or proceeding in the same direc- ^^ther"" tion as the said cars or carriages,* shall turn out of the said track of the said vehicles VOL. II. M.M.C.—C MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1897. Directors' power to make bylaws, &c. tramways and permit the said cars and carriages to pass, and shall in no case and under no pretence whatever obstruct or hinder the passage thereof and the, free use of the said tramways by the said cars and carriages of the power company. 1897, c. 45, s. 114. 115. The directors of the power company shall have full power to make— (a) By-laws, rules and regulations to be observed by the officers and servants of the power company and by all other persons using the tramways, rails, electric lines, electricity, electrical appliances, or any property of the power company: (6) Also rules and regulations for the maintenance and management of the power company's undertakings and works and for the collection of I tolls for freights or ores, fares for the carriage of passengers, rates for electricity supplied, and rents for electric lines and appliances let for hire, and for fixing the time or times when and the places where the same" shall be payable, and in case of default of payment to enforce payment by cutting off the electricity, or by suit at law, or both; and (c) For the collection of the power, lighting and heating, rates or rents, and for fixing the time or times when and the places where the same shall be payable, and in case of default in payment to enforce payment by cutting off the electricity, or by suit at law, or by both. Provided, always, that such by-laws are not in conflict with any of the provisions of this Act. 1897, c. 45, s. 115. Certain dangerous things not to be carried on tramways. 116. No person shall carry, or require the power company to carry, upon its tramway aqua fortis, oil of vitriol, gunpowder, nitro-glycerine, or any other goods which in the judgment of any agent of such company are of a dangerous nature; and every person who sends by the tramway any such goods without, at the time of so sending the same, distinctly marking their nature on the outside of the package containing the same, and otherwise giving notice in writing to the station master or other servant of the power company with whom the same are left, shall forfeit to such company the sum of twenty dollars for every such offence, to be recovered in an action as for a debt in any Court of competent jurisdiction. (a) The power company may refuse to take any package or parcel which any agent of such company suspects to contain goods of a dangerous nature, or may.require the same to be opened to ascertain the fact, and the power company shall not carry, any such goods of a dangerous nature, except in cars specially designated for that purpose, on each side of which shall be plainly painted in large letters the words " dangerous explosives;" and for each neglect to comply with the provisions of this sub-section, the company shall incur a penalty of five hundred dollars, which shall be recoverable by any person who sues for the same. 1897, c. 45, s. 116. Power to con- 117. The power company shall have power to enter into and conclude any tract with agreement with the proprietors of carriages for passengers or freight, or ex- owners ot car- pPesg conveyances, for the delivery of passengers, freight or express, or to pur- expre^s^con- chase or equip passenger, freight, mail or express conveyances for the afore- veyances. said purpose. 1897, c. 45, s. 117. P< to rations, &c. r supply of jctrio power jctricity, &c 118. It shall be lawful for the power company to contract with any person, corporation or company for supplying with electricity or electric power any such person, corporation or company upon or in any roads, streets, ways, lanes, passages, tramways, railways, manufactories, shops, warehouses, public or private houses, buildings and places, and for such purposes may, from time to time, lay down, carry, fit up, connect and furnish any electric accumulator, storage battery, electric line, cable, wire, pipe, switch, connection, branch, i burner, lamp, meter, or other apparatus, for or in connection with any electric J II.] APPENDIX C—WATER ACTS. premises, for line, main, lead or cable, or to lay down any new electric line, main, lead or Water CI. cable which for such purposes may be required, and to let any such apparatus Con. Act, for hire or for such sum as may be agreed upon. The company shall, from time 189^' to time, supply electricity and electric power to any premises lying within fifty yards of any main supply wire or cable, suitable for that purpose, on being required by the owner or occupier of such premises: Provided, however, the power company, before supplying electricity and electric power, or making such connection, or as a condition to the power company continuing to supply the same, may require any customer to give reasonable security for the repayment to the power company of the costs of making such connection, and for the payment of the proper charges for electric supply and for rent of instruments: Provided, also, that all parties supplied with electric light by the power company may be required to place and use only such lamps as may be approved of by the power company. 1897, e. 45, s. 118. 119. If any person neglects to pay any charge for electricity, or any other Cutting or dis- sum due from him to the power company, either in respect of the supply of connection of electricity to such person, or in respect of the rent reserved by the power com- lmes on non- pany for the use of electric lines, meters, accumulators, transformers, motors, Payment of distribution boards, lamps, fittings, works or apparatus lent or supplied forc ar#es' hire to such persons, the power company may cut or disconnect any electric line or other work through which electricity may be supplied, and remove such articles and works above mentioned as were let for hire to such person. 1897, ^ c. 45, s. 119. 120. Where any electric lines, accumulators, transformers, motors, meters, Fittings, generators, distribution boards, lamps, fittings, works or apparatus belonging to apparatus, the power company are placed in or upon any premises not being in possession <*c of the power company for the purpose of supplying electricity, such electricpr , lines, accumulators, transformers, motors, meters, generators, distribution eiectricitv not boards, lamps, fittings, works or apparatus shall not be subject to distress for liable to ex- rent for the premises where the same may be, nor be taken in execution under ecution, &c. any process of law or equity against the person in whose possession the same may be. 1897, c. 45, s. 120. 121. Any person appointed by the power company may, at all reasonable Power to times, enter on any premises to which electricity is or has been supplied by the servants to power company, in order to inspect electric lines, accumulators, fittings, works, ®nter premises and apparatus for the supply or application of electricity belonging to the power ourDose^m company therein, and for the purpose of ascertaining the quantity of electricity consumed or supplied, or where supply of electricity is no longer required, or where the power company is authorized to take away or cut off the supply of electricity from any premises, for the purpose of removing any electric lines, accumulators, transformers, motors, distribution boards, meters, fittings, lamps, works or apparatus belonging to the power company. 1897, c. 45, s. 121. 122. The power company may receive, take, hold, enjoy, or lease from any Gives corn- government, person, corporation, municipal or otherwise, any lands, bonuses, pany power to donations, loans, gifts of money, bonds, guarantee of bonds, or interest guaran- receive and tees, exemption from taxes, or other impost, or any or all of the same, and gen- nal" £x"s> erally any benefit or advantage to the power company or in aid of the same, of f!on?lg &c any nature or kindx whatsoever; and may sell, lease, or otherwise dispose of the sfame, either conditionally or absolutely, or for any limited estate or interest therein, and upon such terms and conditions as the Directors may deem 'proper, and the generality of the latter part of this clause is not to be held to be restricted by the specific mention of the foregoing ways and means. 1897, c. 45, s. 122. 123. Any person who shall maliciously or wilfully injure, molest or destroy Persons wil- any of the lines, posts, or other material or property of the power company, or fully injuring post up any advertisement, or print anything on any of the posts or other pro- lines, &c. MARTIN'S MINING AND WATER CASES. [vol. Water CI. Con. Act, 1897. perty of the power company, or in any way wilfully obstruct or interfere with the undertaking and working of the said electric plant or property, shall, on summary conviction thereof, be liable to a penalty for every-such offence not exceeding one hundred dollars, together with costs. 1897, c. 45, s. 123. Actions for damage to be brought in 12 months. 124. All actions or suits for indemnity for any damage or injury sustained by reason of the tramway, or the works or operations of the power company, shall be commenced within twelve months next after the time when such supposed damage is sustained, or if there is continuance of damage, within twelve months next after the doing or committing of such damage ceases, %and not afterwards, and the power company and any other defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act. 1897, c. 45, s. 124. Powers her granted de clared subj< to rights of Crown and future legislation. Rents, &c. by 125. 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, ecb and also subject to any future legislation regarding the subject-matter of this Act, or of the powers and privileges hereby conferred, which the Legislature may see fit to adopt; and this Act is passed upon the express condition 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, tolls 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 power company, or are conferred by this Act, as by the Lieutenant-Governor in Council shall be deemed to be just and proper; and may likewise make and pass such regulations and rules as may be deemed necessary and advisable for the collection and enforcement of such rents, royalties, toHs, and charges, or any of them, - but that no increase in the amount of any such rents, royalties, etc., fixed by any such Order in Council, shall be made within the space of three years from the passage of the Order in Council fixing the same. 1897, c. 45, s. 125. Application B.C. Railway Act. f 126. The following clauses of the "British Columbia Railway Act" shall, mutatis mutandis, and in the absence of any provision in this Part of this Act expressly relating to the subject matter of any such clause, be incorporated with this Part of this Act, and apply to any power company formed hereunder, which includes among its objects of incorporation the construction or operation of tramways, when and so soon as the power company in exercise thereof proceeds to construct or operate a tramway, viz. * 10, 21 to 28, both inclusive; 31; 41, 42, 43, 78, 79 and-80. 1897, c. 45, s. 126. PART V. Procedure for the Expropriation and Acquisition of Land in aid of the Exercise by Municipal Corporations or Incorporated Companies of the Privileges and Powers Conferred and Created by Parts III. and IV, of this Act. No municipal work cr record, &c, purchased without— Consent of municipality ; Or under authority of Order in Council. 127. No undertaking or work of any municipality and no record or privilege appurtenant thereto shall be taken or purchased by any other municipality or by any incorporated company under this Act, except: (a) With the consent of the municipality owning such undertaking or work; or (o) Under authority of an Order in -Council-made by the Lieutenant-Governor in Council upon its being made to appear to him that such taking or purchase is necessary or expedient in the interest of the public. 1897, c. 45, s. 127. II.] APPENDIX C—WATER ACTS. 128. No undertaking or work, and no record or privilege appurtenant thereto of any incorporated company under this Act, shall be compulsorily purchased by any other company engaged in constructing or operating any undertaking or Water 01. Con. Act, 1897. work of the same kind and nature, except under authority of an Order in Council made by the Lieutenant-Governor in Council upon application made to Ia ----» &< him for that purpose, and upon its being to be corn- made to appear upon such application pUiSOrily pur- that such compulsory purchase is necessary or expedient in the public interest, chased except 1897, c. 45, s. 128. under Order in Council. 129. In the event of the compulsory purchase of any undertaking or work In case of under authority of an Order in Council made by the Lieutenant-Governor in compulsory Council, under and by virtue of section 127 or 128 of this Act, the purchasing Purchase» now company shall pay to the municipality or company from which such compulsory p^J^tobe purchase is made the cost of construction and a sum sufficient to make up the ascertained, interest on the capital invested in cost of construction and maintenance to the amount of fifteen per cent, per annum to date of purchase, after taking into account any profit that may have been made up to that time, and a further sum equal to a -bonus of thirty per cent, on the capital actually invested: (a) In arriving at the sum to be paid by such purchasin words " cost of construction " shall be deemed to include:— company, the What "cost of construction" includes. (1) All sums of money actually and bona fide spent in and about the or ganization of the company, including all engineering, legal and clerical expenses; and all sums of money actually and bona fide spent by the municipality in securing powers, rights, privileges or priorities, in respect of or relating to the undertaking or work purchased: (2) All sums of money actually and bona fide spent in and about the con struction and maintenance of said undertaking or work up to date of purchase of the said works and property: (3) All sums paid by the municipality or company as and for damages, value, and compensation, to any person for the purchase or -expropriation of lands, records and privileges passing with or appurtenant to the undertaking or work purchased: (4) All or any sum or sums reasonably and actually paid by the munici pality or company to any person in respect of the undertaking or work purchased, and not hereinbefore enumerated. 1897, c. 45, s. .129. 130. Wherever in any provision in Part III. or Part IV. of this Act a municipality or incorporated company is authorized to acquire, take and expropriate lands, records, franchises, powers and privileges for the purposes of any undertaking or work entered upon and to be carried out under the provisions of the said Parts of this Act or any of them, the exercise of such powers shall be governed by the provisions of the "Lands Clauses Consolidation Act, 1897," and the rules of law and procedure therein laid down and established, and the said " Lands Clauses Consolidation Act, 1897,'' shall apply to such municipality or incorporated company and to the undertaking and works thereof: (2) For the purposes of this Act in that behalf, the expression " the Special Act" wherever the same occurs throughout the said " Lands Clauses Consolidation Act, 1897," shall, in addition to and extension of the meaning in - the said Act ascribed to such expression, mean and include the letters patent of a municipality, and the constitution of an incorporated company as constituted under section 46, section 56 and section 88 of this Act: and the expression " land " wherever the same occurs throughout the said Act shall, so far as relates to the method and procedure to be adopted and followed in ascertaining value and purchase price, and for the purpose of giving effect to the provisions of the said Parts III. and IV. in that behalf, include water, water power, water records and all powers, privileges and priorities relating or appurtenant Inexpropr tion of lane "Lands Clauses Co solidation Act, 1897,' apply. Meaning "the Spe Act." xl MARTIN'S MINING AND WATER CASES. [vol. Water CJ. Con. Act, 1897. Expropriation of Crown lands. thereto, and all franchises, property, chattels, effects and rights, s. 130. 1897, c. 45, Reserved Crown lands, 131. Wherever throughout this Act power is conferred upon any municipality or company to enter, take and expropriate lands, such power to take and enter shall extend to and authorize the entering and taking of Crown lands, save as hereinafter excepted, but the provisions of the " Lands Clauses Consolidation Act, 1897," shall not, unless expressly applied by an Order in Council, apply to the taking of Crown lands, but, in lieu thereof, the manner of fixing the compensation to be paid upon the taking of Crown lands shall be such as the Lieutenant-Governor in Council may from time to time, and whenever necessary with regard to the circumstances of each particular case, by Order in Council appoint: (2) The aforesaid power of entering and taking Crown lands shall not extend to lands which shall be expressly reserved by the Crown for any purpose I whatever; and such lands may only be acquired for purposes under this Act, upon such terms and conditions as the Lieutenant-Governor in Council may from time to time appoint by Order in Council. 1897, c. 45, s. 131. PART VI. How company may be specially incorporated under "Companies Act, 1897." " Companies Clauses Act, ■ 1897." Begulations and Bepeal of Former Enactments. 132. A company may, subject to and by observance of the provisions of this section and of sections 9, 10, 11, 14, 15, 16, 17, 18, 19, and 20 of the " Companies Act, 1897,'' become specially incorporated for the purpose of exercising the rights, powers, privileges, and priorities in and by Part III., or in and by Part IV. of this Act, created, granted and conferred: (1) The company shall, in and by its memorandum of association, provide for, assume, and take the following matters, powers and regulations:— (a) That the company shall, upon and after its incorporation, be governed by the provisions of the " Companies Clauses Act, 1897," to the exclusion of all the provisions of the " Companies Act, 1897 ": (6) That the company may, upon the conditions, and to the extent, and in the manner prescribed in such memorandum, exercise the powers contained and referred to in sections 5, 21, 43, 44, 55, 70, 75, 78, 103, 114, 115 and 118 of the said " Companies Clauses Act, 1897." 1897, c. 45, s. 132. Table A in First Schedule not to apply. Additional meaning of "the Speoia Act." 133. The provisions of Table A in the First Schedule to the " Companies Act, 1897," shall not apply to any company incorporated pursuant to the provisions of the preceding section, but any such company may adopt such regulations not repugnant to or inconsistent with the provisions of the " Companies Clauses Act, 1897," as may be demeed expedient for the proper management and conduct of the business and affairs of the company. 1897, c. 45, s. 133. 134. For the purposes of this Act in that behalf, the expression " the Special Act," wherever the same occurs throughout the said " Companies Clauses Act, 1897," shall in addition to and extension of the meaning in the said Act ascribed to such expression mean and include: (a) In the case of a company incorporated to provide water-works for a municipality, the conditions governing and the constitution of such company as provided by and designated in section 46 hereof: (6) In the case of a company incorporated to provide water-works for an unincorporated locality, the conditions governing and the constitution of such company as provided by and designated in section 56 hereof: and H.J APPENDIX C—WATER ACTS. xli (c) In the case of a company incorporated as a power company, the con- Water CI. ditions governing and the constitution of such company as provided by Con. Act, and designated in section 88 hereof. 1897, c. 45, s. 134. 1897. 135. In order to incorporate with any other Act a part only of the pro- M visions of this Act, it shall be sufficient in any such other Act to enact that the incc parts of this Act with respect to the matter so proposed to be incorporated*"18 (describing such parts by the numbers of the Parts, or by the numbers of theany sections in this Act contained) shall be incorporated with such other Act, and thereupon all the Parts and sections of this Act with respect to the matter so incorporated shall, save in so far as they shall be expressly varied or excepted by such other Act, form part of such other Act, and such other Act shall be construed as if the substance of such Parts and sections were set forth therein, with reference to the matter to which such other Act shall relate. 1897, c. 45, s. 135. le of jrporatirig Act with other. 136. The Lieutenant-Governor in Council may at any time, by notice signed Lieut. - by the Chief Commissioner of Lands and Works and published in the British Governor may Columbia Gazette, reserve the unrecorded water in any stream or lake, or any plaee reserve portion thereof, for the use of the Crown or for municipal purposes, or foron unrecorded the purposes of making provision, wherever it appears expedient, as a source nr0wn or of supply for a water-works system, or for such other purposes as may be municipal deemed advisable: purposes. (2) An Order in Council establishing a reserve of water shall contain a direction for a record of the amount of water reserved, with all necessary particulars ; and the Commissioner and Gold Commissioner shall make the necessary records to give effect thereto: (3) Such reservation and record thereof shall not prevent the acquiring of records subject thereto, and for the purpose of diverting and using the water in the interim prior to the establishment of such a system; but no rights to compensation shall be acquired by virtue of any such interim record: (4) Where any reservation of unrecorded water is made as aforesaid, the Lieutenant-Governor in Council may, in the Order in Council making such reserve, or in any subsequent Order or Orders, specify and declare the terms and conditions upon which the unrecorded water so reserved shall be available and may be acquired from the Crown for use in respect of the purposes for which it has been so reserved. 1897, c. 45, s. 136. 137. The Lieutenant-Governor in Council shall have power to cancel any Cancellation reservation of unrecorded water made under the preceding section, but the0* su°h Order in Council providing for the cancellation shall not take effect until notice reserve • thereof shall have been published for three months in the British Columbia Gazette, and in some newspaper circulating in the county in which the unrecorded water proposed to be affected is situate. 1897, c. 45, s. 137. 138. The rights, powers, privileges and priorities created and conferred Rights, &c, by, and to be hereafter acquired, held, and exercised under, this Act by any hereby person, municipality or company shall be acquired, held, and exercised subject f^^Tt*re to and conditional upon the compliance with and observance by such person, "Health Act.' municipality or company, with the provisions of the " Health Act," applying to the acquiring, holding, and exercising of such rights, powers, privileges and priorities, and any or either of them. 1897, c. 45, s. 138. 139. Where under any record the right is acquired and held, to divert and Water use water for the purpose of generating power either by direct application of diverted for the water to machinery, or by the procuring or generating of electricity or other generating power, the company Or person acquiring and holding such record shall, except P°wer to be where natural circumstances render it impossible or the terms of the record p^^ted. otherwise permit, return the water so diverted and used under such record to xlii MARTIN'S MINING AND WATER CASES. [vol. Water CI. the water-course or channel from which it is diverted and used; and such water Con. Act, shall, as far as possible, be so returned, unpolluted and undefiled: 1897 -*% . _' (2) If any company or person contravene the provisions of this section, In default, the water rights and records and all privileges and priorities in connection with rights for- . or appurtenant thereto shall, at the option of the Lieutenant-Governor in feited. Council, upon proof to his satisfaction of such contravention, be forfeited and absolutely cease and determine, or may continue to be held by such Company or person upon such terms and subject to such conditions as the Lieutenant- Governor in Council may by Order in Council declare and impose. 1897, c. 45, s. 139. In case of 140. In any action or suit for determining the rights of adverse claimants adverse to records of unrecorded water and for the protection of rights to the use of claimants, all ^^ records of unrecorded water, and generally in any action or suit for deter persons mining the right to divert and use the water of any stream or lake, the plain- water may be ^ may ^oin as defendants all persons diverting and using or claiming the joined, and right to divert and use the water of such stream or lake, and the Court may, other power of in one judgment, settle the relative priorities and rights/of all the parties to Court thereon, such action : tl water power (2) When in any such suit or action damages are claimed for the wrongful diversion of water, the same may be assessed and apportioned by the jury in their verdict, or the Court in its judgment, and judgment may be entered for or against one or more of several plaintiffs or defendants, and the Court may, in its judgment, determine the ultimate rights of the plaintiffs as between themselves, and of the defendants as between themselves: (3) In any action or suit concerning joint water records or rights, or joint rights in water ditches, or other works for the conveyance of water, unless partition is claimed in the action, the Court shall hear and determine the action or suit as if such records and rights were several as well as joint. 1897, c. 45, s. 140. Companies to 141. Any company having the right to use, and any company having the let others vise right to use, sell, or dispose of water or water power, or power procured or s generated by means of water or water power, and having a surplus of water, water power, or power procured or generated therefrom as aforesaid not used or sold, is hereby required to, and such company shall, upon the payment or tender thereto of the amount of the charges or tolls legally chargeable in respect thereof, convey and deliver to any person or company desiring to use the same such surplus of water, water power, or power procured or generated therefrom as aforesaid, or such reasonable part thereof as may be required, and shall continue to so convey and deliver the same so long as said surplus exists and said payment or tender be made as aforesaid: On refusal or (a) If any company shall refuse or neglect to comply with the provisions neglect. of this section, all the water records of such company, and all privi leges and priorities in connection therewith, shall, at the option of the Lieutenant-Governor in Council, upon proof to his satisfaction of such refusal or neglect, be forfeited and absolutely cease and determine, or may continue to be held by such company upon such terms and subject to such conditions as the Lieutenant-Governor in Council may, by Order in Council, declare and impose: (6) Any person or company desiring to exercise the right by this section conferred of obtaining the "use of surplus water, water power, or power procured or generated therefrom as aforesaid, must procure and furnish all necessary means of conveyance and all necessary appliances for the taking and using of such surplus water, water power or other power as aforesaid. 1897, c. 45, s. 141. Lieut.- 142. In order to provide an adequate and uniform method of procedure for Governor may (the carrying out of the provisions of this Act, and for the performance by all make rules, officers, officials and persons named therein of all powers and duties conferred &c. and imposed upon such officers, officials and persons by, and to give due and II.] APPENDIX C—WATER ACTS. full effect to the meaning and intent of this Act and any amendment thereof, the Lieutenant-Governor in Council may, from time to time, make and discharge such rules and regulations as may, in his opinion, be necessary or desirable for carrying out the spirit, intent, and meaning of this Act in relation to the matters aforesaid, or any of them, and to matters for which no express provision has been made, or for or in respect of which only partial or imperfect provision has been made; and any such rules or regulations shall be published in at least one issue of the British Columbia Gazette, and shall have the force of law. 1897, c. 45, s. 142. Water 01. Con. Act, 1897. 143. In measuring water in any ditch or sluice, in the absence of any rules Measuring in that behalf established, by Order or Orders in Council, and applied to any water, record or any class of records, the following rules shall be observed:—The water taken into a ditch or sluice shall be measured at the ditch or sluice head. No water shall be taken into a ditch or sluice except in a trough placed horizontally at the place at which the water enters it, and which trough shall be extended two feet beyond the orifice for the discharge of the water. One inch of water shall mean the quantity that will pass though an orifice two Inches high by half an inch wide made in a two-inch plank, the water to have a constant head of seven inches above the upper side of the orifice, and every additional inch of water shall mean so much as will pass through the said orifice extended horizontally half an inch. In cubic measurement, one inch of water shall mean a flow of water equal to 1.68 cubic feet per minute. 1897, c. 45, s. 143. 144. Every Commissioner and Gold Commissioner shall, with respect to all Powers con- rights to divert and to use water, acquired and held under Parts III. and IV. ferredonCom- of this Act, have the like powers in regard to the adjustment of water supply missioners un- and the equitable distribution thereof between rival claimants in order to pro- der section *** cure the greatest beneficial use of the entire available water supply as are vested them under* in and possessed by such Commissioner and Gold Commissioner under the pro- parts m. and visions of section 18, and under all other sections in the like behalf in Part 11. IV. of this Act contained. 1897, c. 45? s. 144. 145. The Chief Commissioner, and every Commissioner and Gold Commis- Commissioner shall have power to enforce compliance with the provisions of this Act, sioners' pow- and with all rules and regulations from time to time in force thereunder, and |rs of en- for the purpose of enforcing such compliance may give notice in writing to any forcing com- municipality, company or person contravening, or refusing, or neglecting to carry out any of the provisions of this Act, or of any rule or regulation in force thereunder, requiring immediate compliance with such provision, rule, or regulation, as the case may be, and if such municipality, company, or person neglect or refuse to comply with the demands and directions in such notice contained, or any of them, the water-rights and records and all privileges and priorities in connection with or appurtenant thereto, of the municipality, company or person so neglecting or Refusing shall, at the option-of the Lieutenant- Governor in Council, upon proof to his satisfaction of such neglect or refusal, as aforesaid, be forfeited and absolutely cease and determine, or may continue to be held and enjoyed by such municipality, company, or person, upon such terms and subject to such conditions as the Lieutenant-Governor in Council may by Order in Council declare and impose. 1897, c. 45, s. 145. 146. Any holder of any water record, or other person who shall wrongfully Penalty waste any quantity of water heretofore or hereafter acquired by record* or other- wasting wise, by diverting any more of it from its natural course, through any ditch Or water, otherwise,, than the quantity actually required by him for the purposes specified in the record by virtue of which such water has been diverted, or for any other purpose for which such water may° lawfully be used, shall, upon summary conviction before a Commissioner, or Gold Commissioner, who shall, for the purposes of this section, have all the powers of a Stipendiary Magistrate, be liable XI1V MARTIN'S MINING AND WATER OASES. [vol. Water 01. to a penalty not exceeding one hundred dollars for each such offence. 1897, Con. Aot, c. 45, s. 143. 1897. •— 147. No holder of any water record or water right shall have any right to Keoora- Interfere with or prevent the construction of any dams, breakwaters, or other interfere with improvements made or hereafter to be made for the purpose of saving or econ- (i:imis \' i-. omizing the water of any stream or lake: Provided, 'that the construction or use of such dam or breakwater or improvements does not nor will divert such water from its proper channel, at the point or place where such holder takes the water used by him Into his ditch or works: Provided, also, that the, construction and use of such dam or breakwater or improvements shall not injure the source from which such water is taken, or the property of any person, by backing Settlement of water, flooding or otherwise: Provided, also, that all disputes arising upon any disputes un- matter or thing in this clause contained, shall be decided in a summary manner der this before the Commissioner, or Gold Commissioner, who shall have power to render olause. such decision as shall seem to him just and equitable. 1897, c. 45, s. 147. Water reoords 148. In all cases where the validity of any water record made before the made before k 6th day of April, 1886, may be called in question, and the Court or Judge before * whom the case is pending shall be of opinion that such record was bona fide m,adet the same shall be held to be good and valid so far as the making and entry thereof are concerned, and effect shall be given thereto according to the Intent thereof, 1897, c. 45, s. 148. April, 188< &c kpc s, 149. Every by-law, resolution or minute of any power company under this'; *d lAct fixing, and every other schedule or proceeding which fixes or determines the tolls, fares, rates, rents or charges to be made, levied and collected by such 'tob« power, company, shall, within thirty days after the passing or making thereof, bv'Lieut " kQ submitted to the Lieutenant-Governor in Council for approval, who may Cfovernor. approve or disapprove of the sjune, in whole or in part, and may adjust, in«|| crease or decrease such tolls, rates or charges as he may deem expedient in thej public interest: (a) Every schedule or scale as approved pursuant to this section shall be ^published in form and manner directed in any rules and regulations for the time being in force under this Act, or as may from time to time be directed by the Lieutenant-Governor in Council, £nd in any action brought against any person in respect of non-payment of any charge thereunder, such person may plead as an answer to such action that such publication has not been made as aforesaid. 1897, c. 45, s. 149. Water Com- 150. The Lieutenant-Governor in Council may, from time to time, appoint misaioner may any person to act as Water Commissioner under this Act, and such person for be appointed, the purposes of such appointment, shall have all such powers under this Act vested in the Lieutenant-Governor in Council, and in a Commissioner or Gold Commissioner, as may be conferred upon such person by Order in Council, or by any rules and regulations for tie time being in force under this Act 1897, c. 45, s. 150. ake and iblish sea offe • 151. The Lieutenant-Governor in Council may, from time to time, by Order in Council establish a scale of fees payable on any proceeding taken under this Act, and provide'regulations for the payment and collection thereof. Every such scale of fees shall be published for one month in the British Columbia Gazette. 1897, c. 45, s. 151. " Alien 152. In case of companies incorporated under provisions of this Act, and Labour Aot, jn case of companies incorporated at the. present or any future Session whose 1897,"to Act of Incorporation shall be subject to the "Water Clauses Consolidation apply to Act, 1897," or any part thereof, the same shall be, and the same are hereby ~v«!!1"«j^ declared to be. subject to the "Alien Labour Act 1897." 1897, c. 45, s. 152. 153. This Act shi 1897. 1897, II.] APPENDIX C—WATER ACTS. xlv Bepeal. 154. The following Acts and parts of Acts are hereby repealed:— (a) Sections 59 to 79, both inclusive, 128, 129, 130, 131, 132, 133, and ] of the "Mineral Act, 1896." (o) Section 54 and sections 56 to 78, both inclusive, of the " Placer Min Act, 1891:" (c) Section 2 of the "Placer Mining Amendment Act, 1894:" (d) Sections 39 to 52, both inclusive, of the "Land Act:" (e) Section 9 of the " Land Amendment Act, 1891:' (f) "An Act providing for the election and defining the duties of Wfi Viewers," being chapter one hundred and seventeen of the " Cons dated Acts, 1888:" (g) The "Water Privileges Act, 1892." (2) Provided that such repeal shall not affect any rights acquired, or i liabilities or penalties incurred, or any act or thing done under any of the s Acts or parts of Acts. 1897, c. 45, s. 154. H 62 VICT. CHAP. 77. An Act to amend the " Water Clauses Consolidation Act, 1897." [27th February, 1899.} ER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. Notwithstanding anything contained in sub-section (a) of section 6 of Amends chapter 190 of the Revised Statutes of British Columbia, 1897, the Lieutenant- of s. 6. Governor in Council may, at any time, alter the rates chargeable for rents, royalties, tolls and charges in respect of the waters or of the land of the Crown and of the powers, rights and privileges which may be acquired under the said Act, but that such change shall not until the lapse of three years thereafter affect records acquired prior to such change being made, unless the holder of such record consent to same. ' 2. It is declared that under and by virtue of certain grants of water rights Declarat dated the 19th day of July, 1897, made by the Chief Commissioner of Lands to power and Works in favour of Joseph Benjamin McArthur and Prescott Campbell West Kc McArthur, respectively, and subsequently assigned to the West Kootenay Power en*y_■?°^ and Light Company, Limited, the said West Kootenay Power and Light ^om~<^^pJjL pany, Limited, is entitled to hold, have, exercise and enjoy all and singular the rights, powers and privileges which the said West Kootenay Power and Light Company, Limited, would be entitled to if the said West Kootenay Power and Light Company, Limited, had been incorporated as a power company under Part 4 of the " Water Clauses Consolidation Act, 1897," and had obtained under the said Part 4 of the said Act a record of said Water. This section shall not come into force until proclaimed by the Lieutenant- Section c Governor in Council. in£ lnt° * MARTIN'S MINING AND WATER CASES. [vol. Water CI. Con. Act, 1900. R. S. B. C, c 190. 64 VICT. CHAP. 44. An Act to amend the " Water Clauses Consolidation Act, 1897." [31st August, 1900.] HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. The " Water Clauses Consolidation Act, 1897," is hereby amended by inserting after Part IV., in the said Act, the following clauses: The acquisition of Water for Certain Purposes by Municipal Corporations. I Acquisition of 126a. Whenever a municipal corporation shall have passed a by-law water or by-laws under the provisions of sub-sections (11), (12) and (14), of privileges by section 50 of the " Municipal Clauses Act," or any of them, and shall be desir- municipahties. ous of aCqUjring any water privilege for the purposes of the undertakings so acquired, purchased or constructed by the municipality, the said municipality may acquire, have, hold and exercise the rights, powers, privileges and priorities hereinafter created, provided and conferred, upon and subject to the terms and conditions hereinafter stated. Erection of dams, etc. 126b. The said municipality may, on observing the regulations hereinafter set forth, acquire' the right to render" water and water power available for use, application and distribution by erecting dams, increasing the head of water in any existing body of water, or extending the area thereof, diverting the waters of any stream, pool, pond, or lake into any other channel or channels, laying or erecting any line or flume, pipe or wire, constructing any raceway, reservoir, aqueduct, weir, wall, building or other erection or work which may be required in connection with the improvement, and the use of the said water and water power, or by altering, renewing, extending, improving, repairing or maintaining any such works or any part thereof. Production of 126c. The said municipality may, subject to the conditions hereinafter power. stated, also acquire or use the water or water power for producing any form of power, or for producing and generating electricity for the purposes of any undertaking for which a by-law has been passed as aforesaid. Municipality 126d. The municipality may, on the coming into force of any such by-law, may apply for apply for and acquire and use records of unrecorded water in manner provided water records by section 9 of this Act for obtaining records of unrecorded water for domestic, under " Wat Clause mining and agricultural purposes. It shall be sufficient for the municipality in > posting and forwarding the notice of application by said section 9 prescribed, in lieu of describing the lands in which the water is intended to be used, to insert a statement that the water applied for is to be used for the proposed undertaking, subject to the approval thereof by the Lieutenant-Governor in Council. Documents to 126e. The municipality shall, before proceeding with the application to the be filed with Lieutenant-Governor in Council hereinafter referred to, file with the Clerk Clerk of 0f the Executive Council the following documents: Executive Council. (a) A copy of the by-law or by-laws, duly certified by the clerk of the Certified copy municipality, under the provisions of which the municipality intends to of by-law. carry on the proposed undertaking: Description of (o) A description by metes and bounds of the locality within which the locality. powers of the municipality in respect of its undertaking and works are to be exercised: II.] APPENDIX C—WATER ACTS. (c) A plan of such locality, showing, so far as may be, the intended situation of the undertaking and works of the municipality: (d) A statement in detail of the amount of unrecorded water applied for, or intended to be presently applied for by the municipality, with the names, or, if unnamed, with a sufficient description of the streams and lakes from which it is intended to be diverted, and the points and modes of diversion; where water is diverted from any stream for the purpose of developing power, the municipality shall also state the point at which it is to be returned, and the difference in altitude between, the point of diversion and the point where it is to be returned: (e) A statement of the estimated total available supply of water in such streams and lakes: (/) A statement certified as correct by the Commissioner and Gold Commissioner having jurisdiction within such locality, of the records of water to be diverted from such streams and lakes existing at the time of the application by the municipality, and the purposes for which such records -have been obtained: (g) A statement of the existing records and a description of the lands, the purchase of which records and lands the municipality deem necessary for the purposes of the proposed undertaking and works: (70 A statement of the works, the construction and operation whereof is to be presently undertaken by the municipality: (i) A statement of the estimated cost of the undertaking and works, including water and lands to be purchased, the construction and operation whereof is to be presently undertaken by the municipality: (j) And generally a complete statement of all facts and matters necessary to fully inform the Lieutenant-Governor in Council as to the purposes and undertaking of the municipality, and of all matters and things affected by or relating thereto. Water 01. Con. Act, 1900. Plan of locality. Statement of amount of unrecorded water applied for. Statement ■ of available supply of water. Statement, certified by Commissioner, of records of Water to be diverted. Statement of existing, records and description of lands. Statement of works. Statement of cost. Statement as to proposed undertakings. 126f. Upon the filing of the documents aforesaid, the Lieutenant-Governor Lieut.- in Council may either require further evidence or may direct references to be Governor in had or inquiries to be made and may approve the proposed undertaking of the Council may municipality as submitted, or may limit to such an extent as may in there^^ire r public interests be deemed advisable, the area within which the powers of the municipality with respect to its undertaking and works are to be exercised, or the amount of unrecorded water which the municipality may record, or the amount of recorded water or of lands which the municipality may purchase, and generally may impose upon such municipality all such restrictions, limitations and conditions, as the Lieutenant-Governor in Council may deem necessary or expedient. 126g. The Lieutenant-Governor in Council may issue to the municipality Certificate a certificate setting forth that the proposed undertaking of the municipality as that proposed submitted has been approved, or that the same has been approved subject to ""dertaking the restrictions, limitations and conditions in such certificate set forth and contained. . has been approved. Such certificate shall also fix the time within which the said works shall be Time to be in operation, and shall contain a description in general terms of the rights, fixed within powers, privileges and priorities which have been conferred upon the said which works municipality in pursuance of the application hereinbefore referred to. to be in operation. A copy of such certificate, certified under the hand of the Clerk of the Certified copy Executive Council, and the seal of the Province, shall be filed in the office of °f certificate the Registrar of the district in which the said undertaking is situate, and shall ^all be filed be published for one month in the British Columbia Gazette, and in a news- a ,,i if !a • paper published or circulating within the area in which the undertaking andj^ej} A m works are situate, and a copy, certified as aforesaid, shall be filed in the offices Gazette, etc. xlviii MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1900. Another copy to be filed in Commissioner's office. Municipality may acquire rights, powerSj etc., mentioned in certificate. Commissioner shall amend water records. Municipality may from time to time apply for further certificate. Such further certificate to be filed. Amendment of first certificate. Objections to proposed undertaking. of the Commissioner or Gold Commissioner having territorial jurisdiction in respect of the said area. 1261i. Upon the granting by the Lieutenant-Governor in Council of a certificate under the provisions of section 126g of this Act, or of a further certificate under section 126i hereof, and upon publication and filing thereof as aforesaid, and subject to compliance with the terms and conditions thereof, the municipality may acquire and shall have, hold and exercise all the rights, powers, privileges and priorities in such certificate mentioned and referred to. Forthwith upon the filing in his office in accordance with the provisions of section 126g hereof, of a certified copy of any such certificate, the Commissioner and Gold Commissioner shall, wherever necessary, amend the water records applied for by the municipality so as to accord with the provisions of such certificate. 1261. From time to time as occasion may require, after the granting of the first certificate in manner as aforesaid, the municipality may apply to the Lieutenant-Governor in Council for a further certificate in respect of the remainder or of any further specified portion of the undertaking and works of the municipality, the construction and operation whereof is then intended to be presently undertaken by the municipality, and the Lieutenant- Governor in Council may grant to the municipality a further certificate in manner and to the effect hereinbefore mentioned and provided; and further, such further certificate shall be filed and published in manner provided for the filing and publication of the first certificate. Upon any application made under this section and before the expiry of the time fixed in that behalf by the first certificate, or subject to the provisions of section 126i, the Lieutenant-Governor in Council may vary, add to, abridge, alter, or amend the terms and conditions of the said first certificate, and may extend or abridge the times fixed and appointed therein. 126j. Any person through or upon whose lands the undertaking and works of the municipality are intended to be placed or constructed, in whole or in part, or any company whose works will be paralleled by the proposed works, may, within the time and in the manner appointed by the Lieutenant-Governor in Council in that behalf, by rules and regulations under this Act, give notice in writing, stating that he objects to the construction and operation of the proposed undertaking and works of the municipality, in whole or in part, and such objection shall be heard by the Lieutenant-Governor in Council, who shall, after hearing evidence upon oath, if required, determine the same, and may in respect of the matters made to appear upon the hearing of such objection, impose upon the municipality such conditions, if any, as he sees fit. A certified copy of the Order in Council determining the objection shall be transmitted to the Commissioner and Gold Commissioner having territorial jurisdiction in the locality or place affected thereby. Power Co.'s 2 EDW. 7, CHAP. 56. 1902. ! An Act to enable Power Companies to Exercise the Powers set out in Part IV. of the " Water Clauses Consolidation Act, 1897," without becoming specially incorporated. [2l8t June, 1902.] Preamble. TTTHEREAS divers companies having for their objects, inter alia, the acqui- VV sition and operation of power plants are incorporated and licensed to carry on business within the Province: And whereas Part IV. of the " Water Clauses Consolidation Act, 1897," contains provisions whereby such companies are compelled to again incor- II.] APPENDIX C—WATER ACTS. porate under the provisions of such Act in order to enable them to acquire and Power Co.'s utilize water records : Relief Aot, . , . . . : 1902. And whereas it is cumbersome and expensive to companies already incor- porated or licensed and having the necessary powers in that behalf to compel such companies to re-incorporate and maintain separate and distinct organizations merely for the purpose of acquiring and retaining the benefits of water rights acquired by record, purchase or otherwise: And whereas it is advisable in order to simplify the internal operations of such companies to relieve them from the requirements and conditions of the 1 Water Clauses Consolidation Act," so far as the same relate to incorporation: \ Therefore, His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. This Act may be cited as the "Power Companies' Relief Act, 1902." Short title. 2. Any company heretofore or hereafter duly incorporated or licensed to Power corn- carry on business in the Province of British Columbia, which company by its Ponies may memorandum of Act of incorporation, is authorized to acquire, operate or carry °j?!^f • • on the business of a power company, may, notwithstanding the provisions of the 0f <• Water " Water Clauses Consolidation Act, 1897," relating to the incorporation of Clauses Con- companies thereunder, acquire, hold, utilize and obtain the benefit of any solidation water records lawfully acquired by the company by record, purchase or Act," without otherwise in the same manner, to the same extent, and with the same bene- remcorpora- fits and advantages to all intents and purposes as if the said company had been lon" duly incorporated for any or all of such purposes under the provisions of the ." Water Clauses Consolidation Act, 1897," and amending Acts: Provided always, that any such, company so incorporated, or licensed, shall in all other respects observe and perform the terms and conditions of the " Water Clauses Consolidation Act, 1897," so far as applicable as fully and effectually as required by said Act. 3. Before any company may obtain the benefit of the provisions of this Certificate and Act, it shall pay to the Registrar of Joint Stock Companies the fees that must fees. be paid by a company for special incorporation to exercise the powers set out in Part IV. of the said Act, and the charges for publishing the certificate mentioned in this and the following section, and must obtain from said Registrar a certificate that the Company has complied with the provisions of this Act, and is in the same position as if it had been specially incorporated as required by Part IV. of the "Water Clauses Consolidation Act, 1897." 4. A copy of the certificate mentioned in the preceding section must be in- Publication of serted in four successive issues of the British Columbia Gazette. certificate. Water CI. 2 EDW. 7, CHAP. 72. C°?9o£Ct' An Act to amend the " Water Clauses Consolidation Act, 1897." R. S. B. C, < 190. [21st June, 1902.] HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. This Act may be cited as the " Water Clauses Consolidation Act, 1897 Short title. Amendment Act, 1902." MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 1902. Amends s. 58. Acquisition by municipalities of water works constructed by incorporated companies. Water 01. Con. Act, 1904. 2. Section 58 of Chapter 190 of the "Revised Statutes, 1897, being the " Water Clauses Consolidation Act, 1897," is hereby amended by striking out the words " equal to at least one moiety thereof," in the sixth line thereof. R. S. 1897, c. 190. 3 & 4 EDW. 7, CHAP. 56. An Act to amend the " Water Clauses Consolidation Act, 1897." [10th February, 1904.] HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. This Act may may be cited as the " Water Clauses Consolidation Act, 1897, Amendment Act, 1904." Re-enacts i 29. Allowance t placer mine; in case all water recorded. 2. Section 29 of the " Water Clauses Consolidation Act, 1897," being chapter 190 of the Revised Statutes, 1897, is hereby repealed, and the following substituted therefor:— " 29. In any case where all the water in any stream has been recorded for mining purposes and placer mines, either before or after the date of such record, are located and bona fide worked either above or below the point of diversion, the owner or owners of such placer mines shall be entitled to the continuous flow in said stream past, or to divert into or upon or through, such mine or mines, sixty inches if two hundred or less be diverted by such record, and ninety inches if three hundred inches be diverted by such record, but no more; and such owner or owners shall be entitled to the full use of such water, for such distances above or below such mine or mines as shall be necessary for the continuous and economical workings of said mine or mines, and the carrying away of tailings and debris arising, therefrom: Provided, however, that such owner or owners may divert a greater quantity than above specified upon paying to the holder of said record compensation for the damage iie may thereby sustain; and in computing such damage the cost of the ditch shall be considered." Water CI. Con. Act, 1905. R. S. 1897, c. 190. 5 EDW. 7, CHAP. 55. An Act to amend the " Water Clauses Consolidation Act. 1897." [8th April, 1905.] HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. This Act may be cited as the " Water Clauses Consolidation Act Amendment Act, 1905." S. 39 A. added Correction of records. 2. Chapter 190 of the Revised Statutes, 1897, being the "Water Clauses Consolidation Act. 1897," is hereby amended by adding thereto the following section:—■ 39a. (1) Whenever a water record -has been issued in the name of the wrong person, or contains any clerical error or wrong description of the water granted, or which the original applicant sought to have granted, of its point of diversion, place of user, or of the direction in which it is to be taken from point of diversion to point of user, the Commissioner of the District may. upon II.] APPENDIX C—WATER ACTS. the application of the holder of such defective record, amend the said record, or may cancel the same and may grant a new one in its stead, which corrected record shall relate back to the date of the one so amended or Cancelled, and shall operate as if issued at the date of such cancelled record. (2) The person intending to apply to have a water record corrected, under the provisions of this section, shall give sixty days' notice of his intention in the British Columbia Gazette and in a newspaper circulating in the district in which the record was granted, and shall give ten days' notice to all record- holders and applicants for records of water upon the same stream or lake, such notice to be personal, or where personal service cannot be made, then in manner directed by the Gold Commissioner. (3) The Commissioner of the District shall hear all persons who .object to the correction of the record, and from his decision, either for or against the applicant, there shall be an appeal. (4) Sections 36 to 39, both inclusive, of this Act shall apply to such appeals. Water CI. Con. Act, 1905. H 6 EDW. 7, CHAP. 47. An Act to amend the " Water Clauses Consolidation Act, 1897." ] [12th March, 1906.] IS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— Water CI. Con. Act, 1906. 1. This Act may be cited a's the "Water Clauses Consolidation Act, 1897, Short title Amendment Act, 1906.'' recorde water f« 2. Section 41 of chapter 190 of the Revised Statutes, 1897, being the " Water Clauses Consolidation Act, 1897," is hereby repealed and the following section substituted therefor :—■ 41. Any municipality shall, from time to time, where a sufficient supply of unrecorded water is not available within reasonable limits of distance and expenditure, have, subject to the approval of the Lieutenant-Governor in Council, the right of expropriation over recorded water, and all works in connection therewith, to the extent proved by the municipality to the satisfaction of the Lieutenant-Governor in Council to be necessary to obtain a proper and suffi-fire purposes, cient source of water supply for ordinary household purposes and fire protection purposes. 3. Sub-section (3) of section 60 of the said Act is hereby amended by strik- Amends s-s. ing out the words "for the purchasing of," in the sixth line thereof, and by (3), s. 60. substituting therefor the words " may purchase." 7 EDW. 7, CHAP. 47. Water CI. Con. Act, 1907. An Act to amend the "Water Clauses Consolidation Act, 1897." R, s. 1897, c 190. [25th April, 1907.] BIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:— 1. This Act may be cited as the " Water Clauses Consolidation Act, 1897r Short title. Amendment Act, 1907." VOL. II. m.m.c.—D MARTIN'S MINING AND WATER CASES. [VOL. Water CI. Con. Act, 2. Section 51 of chapter 190 of the Revised Statutes 1897. being the " Water Clauses Consolidation Act, 1897," is hereby amended by inserting after the figures "55 ' in the fifth line of said section, the words and figures "or 55a." Section added. Case of company constructing water works system without obtaining certificate required by section 55, provided^or. Amends s. 57 3. The said Act is hereby amended by inserting after section 55 thereof the following section :— " 55a. (1) Where an incorporated company has heretofore constructed and put in operation a system of water-works for the supply of an unincorporated locality, before having obtained a certificate under the provisions of section 55 of this Act, a Judge of the Supreme Court shall have power, if it appears to his satisfaction that the company has complied with the provisions of sections 52, 53 and 54 of this Act, and the facts made to appear to the Court by the company are such as to justify the construction and operation of the undertaking and works and the doing and exercising of all acts and statutory powers in connection therewith, and if it be shown that the system and works are in full operation and fully paid for, to grant to the company a certificate in such form as he may deem proper. " (2) Upon the hearing of such petition the Judge may order adjournments from time to time, and may direct the giving of notice of the hearing to such persons and in such manner as he may think proper, and may fix a time within which such persons may appear and be heard, and may require the furnishing of such further evidence, and may direct such references to be had and enquiries to be made as he may think proper, and may hear all persons affected in interest by the undertaking and works, and their witnesses. " (3) The Judge may insert in such certificate such conditions and restrictions, including the maximum rates to be charged by the company, as he may, upon the facts made to appear to the Court on the hearing of the petition, deem necessary in the public interest, or for the protection of any person or class of persons affected by the construction and operation of the undertaking and works. 4. Section 57 of said Act is hereby amended by inserting after the figures " 55," in the second line of said section, the words and figures " 55a." APPENDIX D. Alphabetical Digest of those British Columbia Cases relating Water Rights which are not already Reported in these Reports.* 1906 ATTORNEY-GENERAL OF BRITISH COLUMBIA v. CAN. Feb. 27 PAC. RLY. CO. (11 B. C, 289; 1906, A. C. 204.) Jud. Com. of Privy Council. Public Harbour of Vancouver—Foreshore—Obstruction by Can. Pacific Bailway Terminals—Powers of Dominion Parliament over Provincial Crown Prdperty—Terms of Union—Street—» Public's Bight of Way—44 Vict., cap. 1 (Dominion)—Brit,. N. Am. Act, sees. 91, 92, 108. Held, in an action by the Attorney-General of British Columbia ex rel. the City of Vancouver against the Canadian Pacific Railway, for a declaration that the public has a right of access to the waters of Vancouver harbour through certain streets, that the streets at the time of the construction of the Canadian Pacific Railway were public highways extending to low water mark, and that the public right of passage over said highways existed at the time of the admission of British Columbia into Canada, but that these public rights have been extinguished or suspended by reason of the construction of the said railway. The foreshore of Vancouver harbour is under the jurisdiction of the Parliament of Canada, either as having formed part of the harbour at the time of the union of British Columbia with the Dominion, or by reason of the jurisdiction of the Dominion attaching at the Union. The Parliament of Canada has power to appropriate Provincial public lands for the purposes of a railway connecting two or more Provinces. ATTORNEY-GENERAL FOR BRITISH COLUMBIA ET 1900 AL. v. ESQUIMALT AND NANAIMO RLY. CO. Jan. 15. (7 B. C, 221.) Full Court. Public Harbour and Bight to Minerals Beneath Waters and Bed of—Nanaimo Harbour—Foreshore—Brit. Nortft, Am. Act. Claims of Canada and British Columbia to minerals beneath waters and bed of Nanaimo Harbour considered by Martin. J., at pp. 240-6 in a dissenting judgment; the point not being dealt with by the rest of the Court owing to the case being otherwise decided. * Since March 1st. 1905, all such cases are herein reported, and before that date all those relating to mining and under the Water Clauses Consolidation Act and amendments are so reported. liv MARTIN'S MINING AND WATER CASES. [VOL. 1895 April 20. Full Court. ATTORNEY-GENERAL OF CANADA MUNN. EWEN AND (3 B. C. 468.) Tidal Biver—Bight of Dominion of Canada to Restrain Pollution of—Nuisance—Fish Offal—Injunction. The Crown, in the right of the Dominion of Canada, has the right to take proceedings to restrain by injunction the pollution of tidal rivers, which right co-exists with the right of the Provincial Attorney-General to restrain any public nuisance, caused by the improper conduct in question. The fact that a statute makes the conduct in question an offence, and imposes fines and imprisonment for its commission, does not derogate from the right of the Court at the motion of the party injured to restrain its commission by injunction. An injunction may be granted although the defendant makes affidavits that he has taken precautions against the recurrence of the injury complained of. 1889 April. Crease, J. ATTORNEY-GENERAL OF CANADA v. KEEFER. (1 B. C. pt. ii, 368.) Public Harbour—Obstruction in Tidal Waters of—False Creek Harbour—B. N. A. Act—Injunction. The franchise of public harbours and the ownership of the soil within the limits of public harbours in Canada are both vested in the Dominion Government by sec. 108 of the B. N. A. Act, and False Creek, British Columbia, is such a harbour. 1899 Feb. 22. CANADIAN PACIFIC RLY. CO. v. McBRYAN. (5 B. C. 187; 6 B. C. 136; 29 S. C. 359.) Supreme Court of Canada. Water—Irrigation—Flooding from Embankment—Nuisance— Land Owner Protecting Himself from Injury without Be- gard to Neighbour—Sic utere tuo, etc.—Damage. Where the owner of land is threatened with damage by water used for irrigation purposes coming down from a higher level, he has the right to protect himself against such injury by all lawful means, such as raising an embankment, without regard to any damage that may thereby result to the land oi his neighbour. 1899 June 17. Jud. Com. of Privy Council. CANADIAN PACIFIC RY. CO. PARKE et al. (1899, A. C. 535.) Water—Irrigation—Powers of Commissioner—Land Slides from Percolation—Silt—Statutory Powers, Permissive—Damages —Brit. Col. Land Ordinances, 1870, 1871; C. S. B. C. 1888, Cap. 66. Wherever, according to the sound construction of a statute, the Legislature has authorized a proprietor to make a particular use of his land, and the authority given is in the strict sense of law permissive merely, and not imperative, the Legislature must be held to have intended that the use sanctioned is not to be in prejudice of the common law right of others. II.] APPENDIX D.—DIGEST OF WATER CASES. lv Metropolitan Asylum District v. Hill (1881), 6 kpp. Cas. 193, approved, Where the effect of British Columbian legislation was to authorize the respondents to irrigate their soil by the compulsory diversion of water from any adjacent stream, lake, or river, by conveying it over lands which do not belong to them, and to run the surplus water after irrigation through adjacent lands by means of flumes, ditches, or drains, all subject to provisions for compensation, and the respondents brought water upon their land in such manner as to be the substantial cause of damage to the appellants' line of railway by causing a slide of their land: Held, reversing the judgment of the Supreme Court of British Columbia, that in the absence of provisions shewing an intention on the part of the Legislature to take away the appellants' right to protect their property from invasion, they were entitled to an injunction to prevent the respondents' user of the water in disregard of their common law obligation to do no damage to the appellants' land. " In the present case the irrigator is at liberty, subject only to the consent of a commissioner, who is not charged with the duty of seeing that no injury results to lands adjacent to those which are to be irrigated, to determine the quantity of water he desires to appropriate, the means by which it is to be conveyed to his land, and the means by which surplus or waste water is to be discharged. When the water has been conveyed to his land he is authorized to use it for purposes of irrigation; but it is left to his discretion to determine whether, as circumstances permit, he will use in irrigation the whole, or part, or none of it. These provisions are certainly consistent with the view that no part of it was meant to be employed to the injury of neighbouring lands." 1899 CARSON v. MARTLEY. April 30. (1 B. C. Pt. II., 189, 281; 20 S. C. 631.) Supreme Court of Canada. Water Bights—Irrigation—Ditch—Biparian Owner—" Unoccupied." " Unrecorded " and " Unappropriated Water "—Becord —Notice, Defects in and Validity of—Irregularity—Directory Statutory Provisions—Commissioner, Powers of—Ministerial Officer — Land Ordinance, 1865; Land Act, 1875—Grant— Easement—" Adjacent" Lands—Common Law — Priority of Becord. The Brit. Col. Land Ord., 1865, was not passed for the benefit of riparian owners only, but any cultivator of land could obtain a grant of water thereunder, as could also the riparian owner. The water of a stream may be unoccupied under the ordinance even though there may be a riparian proprietor upon a part of it, The provisions of s. 45 as to posting notices, etc., are merely directory, but if imperative a grantee of water under the ordinance who has used the water granted to him for several years would not be required, in an action for damages caused by interference with such user, to prove that he gave the notices required by that section, as it would be presumed that the same were given before recording the grant. Per Gwynne, J., at p. 654-5:—" Instead of contemplating an addition to the common law right of riparian proprietors to the natural flow of the waters in a stream flowing through their properties, the design of the statute was to make provision for enabling all persons requiring the use of water for agricultural or other purposes to obtain it from all neighbouring streams or lakes from which it could advantageously be brought, thus qualifying the common law right of riparian proprietors by substituting therefor those, statutory rights which the conformation of the country made absolutely necessary to the I .beneficial use of. . . . The provisions made by the statute do no prejudice to the riparian proprietors who can avail themselves equally with all other lvi MARTIN'S MINING AND WATER CASES. [VOL. persons of the benefits of the act, priority of a grant, recorded under the act, of water not otherwise occupied or appropriated alone giving precedence to any one. . . . " That the statute should be construed as an encroachment upon that venerable embodiment of all wisdom, the common law, is really no hardship, but quite the reverse in a country of such modern origin and of such peculiar conformation as British Columbia. The legislature of that country are the best judges of what is most suitable to the condition of the country, and they have, in my opinion, in clear language enough expressed their intention to be as above stated, and that authority to determine in what manner the waters in all the streams, lakes and rivers in this mountainous country shall be distributed among all persons requiring the use of such water, whether for mining or any other lawful purpose, is confided to the discretion of the Stipendiary Magistrate of the district in which such water is, acting in his capacity of Assistant Commissioner of Lands and Works which, as well as Stipendiary Magistrate, he is. I Now, although the form adopted for recording these water grants might certainly have been more perfect than- that which by the record book appears to have been originally made use of, we cannot for imperfections in form, pronounce the record to be void. In a new colony having a very sparse population, and whose tofficials have had little experience, imperfections of this nature which time and experience remove are very common and should be regarded leniently, and we must be careful not to frustrate manifest intention by too acute verbal criticism. There can be no doubt that the entries made in this book were intended to serve as a record, and the only record of grants of water intended to have been made by the officer having sole authority under the statute to make them. ". . . The present is the case of a grant made by the ministerial officer of the government authorized by a statute to make the grant, which grant when made and recorded cannot be questioned upon an allegation that notices which he was directed to see had been given before he should make and record the grant, had not been given. To such a case the old rule of pleading mentioned has no application. " . . . The term ■ unoccupied,' in my judgment, on the contrary plainly means what the terms " unrecorded and unappropriated" mean in the Land Ordinances of 1870 and 1875, and the term ' unoccupied water ' in the Gold '. Fields Act, and so read, the Land Ordinance becomes, what it was intended to be, sensible and operative." Meaning of term " adjacent lands " considered by Full Court of Brit. Col., supra, pp. 284-5. 1902 COVERT v. PETTIJOHN. April 22 (9 B. C. 118). Full Court. Water Record—Validity of-—Irregularity—Directory Statutory Provisions — Place of Diversion — Ditch Crossing International Boundary in United States and Be-crossing into Canada—Ministerial Officer—Land Act. C. S. B. C. 1888, c. 66. ss. 39 et seq. A water record is not invalid because it does not precisely state the place of diversion; the provisions of the statute being directory in this respect, and the error being that of " the ministerial officer of the Government authorized by statute to make the grant"—following Carson v. Martley, supra. Because a ditch beginning in British Columbia (constructed under s. 41 of the Land Act, C. S. B. C. 1888) runs partly through United States territory, and returns to British Columbia, the owners' water rights are not thereby invalidated. II.] APPENDIX D.—DIGEST OF WATER CASES. 1899 Jan. 20. Full Court. HORNBY v. NEW WESTMINSTER SOUTHERN RY. CO. "(6 B. C. 588.) Bailway—Waters and Watercourses—Flooding of Adjoining Land Caused by Construction of Bailway Embankment—■ Ditch—Damages—Negligence—B. C. Stat. 1887, c. 36. The plaintiffs were the owners of land having a slope and natural drainage 'towards the sea. The defendants under authority of an Act of Parliament had constructed a line.of railway through this land (which was then owned by the plaintiffs' predecessors in title) and had thereby cut off the ditches which had been constructed on the lands in question for the purposes of drainage. The defendants, for the purpose of protecting their line, cut a ditch parallel with the embankment on which the line was built and cuttine- across the ditches on the plaintiffs' lands, which thereafter emptied into the defendants' ditch. The defendants constructed a flood gate "for their ditch, and the flood gate being insufficient to carry off the water which accumulated in the defendants' ditch, the plaintiffs' lands were flooded. Held, that under the defendants' special Act (incorporating- section 16 of the Railway Clauses Consolidation Act, 1845) the construction of the embankment and ditch were authorized by the Legislature, and that the plaintiffs could not complain of the flooding of their lands caused by the construction of the embankment. Held, also (reversing the judgment of Irving, J.), that no duty or obligation was imposed on the defendants to see that the plaintiffs had an outlet through their ditch 'for the water which collected on their lands. 1905 9 KENNEDY v. THE " SURREY. Dec. 29. (10 Ex. 29; 11 B. C. 499.) In Admiralty. Martin, Lo.J. T idal B iver—Navigable Waters—Nuisance- -Interference with Navigation—Boom of Logs—Beasonable Use of Biver Bank' for Logging—Ship—Collision. Nothing short of legislative sanction can take from anything which hinders navigation the character of a nuisance. Where an interference with navigation is established it is a public nuisance which any one specially injured or damnified by it has a right to remove. While no person has the right to continuously appropriate#to himself any portion of the water, or bank or shore of navigable waters for the purpose 'of making up a boom of logs, the use thereof in a reasonable manner and for a reasonable period, having regard to local conditions, will not amount to an interference with navigation. 1886 March 23 Gray, J. McEWEN v. ANDERSON. (1 B. C. Pt. II. 308.) Obstruction in Public Harbour—Navigable Waters—Obstruction of Owner from his Water Frontage—Foreshore—Nuisance— Trespass—Grant—Description—Victoria Harbour. Every subject of the realm has a right to the user for legitimate purposes of public navigable waters within the realm, where the tide ebbs and flows. lviii MARTIN'S MINING AND'WATER CASES. [vol. He cannot*be deprived of that right, except by Legislative authority, duly exercised. If his land fronts on tidal waters, and access thereto is obtainable by the user of such waters, no mere license or permission from the Crown to another, to obstruct that user, can be sustained; and any plea to that effect is bad. The right to continue such an obstruction cannot be acquired by the Statute of Limitations, because there can be no presumption of a grant. Remedy for personal loss sustained by obstruction to such right may be materially affected by party's presumed acquiescence, or silence with knowledge. Such an obstruction inflicting private injury cannot be justified by the allegation that the obstruction itself is a public benefit; nor is the remedy lost by the allegation that the private injury is merged in the greater public wrong. In such cases the Crown acts for the public, the individual for himself. The description " having a frontage of 40 feet, more or less, on Store Street, and running back to the harbour,'' is sufficient to include all land within the parallel side lines, extending from Store Street to the harbour or bay, according to the curvature of the shore line, up to which the tide flows. Semble, the Crown could not, in British Columbia, at the time "the titles herein were originated (viz., in 1858), or at any time since, by subsequent license, legalize any addition to, or the continuance of an obstruction which it had not the power to authorize in the first instance ; and any leave or license to that effect would be inoperative. 1892 April. Drake, J. PEATT v. RHODE. (2 B. C. 159.) Water Course—Ditch—Drainage—Injunction to Prevent Apprehended Injury—Quia Timet Action. Where a person is commencing lawful operations for the purpose of enabling him to utilize his own property, the mere fact that such operations may be injurious to another is not enough to induce the Court to interfere by injunction. There must at least be proof not only of imminent danger, but also that the damage, if it comes, will be irreparable. The owner of land may make use of any natural water-courses on his property for the purpose of improving its drainage, and if damage arising from the increased flow of water ensue to another proprietor it is damnum absque injuria. Remarks on the nature of quia timet actions. Nov. 25. Full Court 1902 In re SMITH AND THE RIVERS AND STREAMS ACT. ov. 25. (9 B. C. 329.) Bivers and Streams Act, s. 12—"Party Interested" Bight to Appeal. A " party interested " who may, if dissatisfied, appeal from the judgment of the County Judge under s. 12, means one who was a party to the proceedings before the Judge appealed from. 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