Vo~.. XX.1.. EXCHEQUER COURT REPORTS. 246. 1922 BETWEEN JanuAry 14. HIS MAJESTY THE KING, ON THE IN$ORA AT1Ol`I QP THE ATTQRNEY- PLAINTIFF; GENERAL. OP CANADA ANIa THE COMPANY FOR THE PROPAGATION OF THE GOSPEL IN NEW ENGLAND AND THE, PARTS ADJACENT IN AMERI-CA, COMMONLY CALLED THE DEFENDANTS. NEW ENGLAND COMPANY; AND, EDMUND SWEET,, TRVsTEE UNDER . THE LAST WILL OF THE 1f REVEREND ABRAHAM NELLES, DECEASED Crown lands—License of occupation-12 Vict. (Prov. Can.) c. 9, sec. 1— 16 Vict. (Prov. Can.) e. 159, sec. 6—interpretation—Powers of corn- , rnissioner, qf,. Crawn lands exercised try, (keel-Roy Q_.engrai—Yaliditv., By 12 Vict. (Prov. Can.) c. 9,. sec. 1 and 16 Vict. (Prov. Can.) e. 159, see. 6',. the Commissioner of Crown Lands was. . empowered to issue, under his hand and seal, a license of occupation: tç; any person wishing to purchase and become a settler on any public land, such settler upon the• fulfilment of the terms and, conditions Qf, the license, to be, entitled; to deed in fee of the land. 13y. see. 15 of the last mentioned Act the Governor in Council was authorized to extend the provisions of this Act to the Indian lands under the vanagerapnt of the; Chief SuPepiptendent of IndiauA Affairs e41.4 when, sktgha lançis were, sQ deçlttrect to be, WAder the oPeratian of the Act, the Chief Superintendent was entitled to exercise the same 29244--17i
• 246 EXCHEQUER COURT REPORTS. VoL. XXI. 1922 powers as the Commissioner of Crown lands had in respect of the THE KING Crown lands. The Governor General, on the 7th April, 1859, v. purported to grant a license of occupation in respect of certain Crown lands to N. "for and on behalf of" the defendant company, COMPENY FOR THE under his hand and seal at arms. PROPAGATION Held, that inasmuch as the license in question was granted by the • OF THE GOSPEL IN Governor General under his hand and seal at arms instead of by NEW the Commissioner of Crown lands, such license did riot comply ENGLAND AND THE PARTS with the provisions of the statutes in that behalf; and was therefore ADJACENT IN invalid and conveyed no legal right or interest in the lands to the AMERICA, COMMONLY defendant company. CALLED THE NEW ENGLAND INFORMATION of Intrusion exhibited by the Attor- COMPANY ney-General of Canada seeking to recover possession S WEET. of lands granted to the defendants under License of Occupation. December 20th, 1921. Case now heard before the Honourable Mr. Justice Audette, at Ottawa. R. V. Sinclair K.C. and A. G." Chisholm, K.C., for plaintiff. W. S. Brewster, K.C., for The New England Company. The facts are stated in the reasons for judgment. AUDETTE J. now (this 14th January, 1922) delivered judgment. This is an Information of Intrusion exhibited by the Attorneÿ-General of Canada, whereby the Crown, inter alia, seeks to recover possession of the lands mentioned in the said information, and which have been in the ,possession of the dèfendants for upwards of sixty years, under the license of occupation herein-after referred to.
VoL.- XXI. EXCHEQUER COURT REPORTS. Counsel at bar waived and abandoned the claim of $10,000 for issues and profits from the 7th April, 1859, • and further declared and expressed their willingness that the defendants be at liberty to remove, at their expense, all buildings erected upon the said premises. In . consideration of the yeoman services rendered to Great Britain by the Six Nations Indians during the THE war of the Revolution, the British Crown felt, when M the war was over and when these Indians had thereby been thus deprived . of the lands of their habitat— ENGLA in what is now the United States—that these loyalists • (so to speak) Indians should be given some lands within the Canadian territory and six miles on each side of the Grand River was granted them, after having obtained a surrender of the same by the Mississagua Indians. On the question of title it suffices to say that the origin of the same goes as far back' as 1784 and 1792. and that the title—the license of occupation—of part of the lands above mentioned upon which the whole case turns, bears date the 7th April, 1859—long before Confederation. The whole case rests upon the validity of this License of OccupatiO n, and it is. found unnecessary to go beyond the date of the same for the disposal of the present issues under controversy and as set out in the . pleadings—and if I were—a consideration which would carry us far afield—I would again be led to find in favour of the plaintiff under the titles produced and filed. This license reads as follows, namely: "Province of Canada. "By His Excellency the Right Honourable - Sir Edmund Walker Head, .Baronet, one of Her Majesty's Most Honourable Privy Council, Governor of British North America and Captain General and Governor 247 1922 THE KING CiO T M H P E A NY POR THE PROPAGATION OP THE ~x OBPEL IN NEw ENGLAND A ND A D P J A AC R EN T T $ I N A CO ER CA, MM O I 1vI,Y CALL E D THE N n w ND COMPANY s ANE ET. Reasons for Judgment. Audette J.
24$ EXCHEQUER COURT REPORTS. VOL. XXI. 1922 in Chief in and over the Provinces of Canada, Nova THE' KING v. Scotia, New Brunswick, and the Island of Prince THE Edward and Vice Admiral of the same, etc., etc., etc. COMPANY FOR THE "To all to whom the presents shall come. Greeting. PROPAGATION OF THE "Know ye that I have granted antd do hereby grant GOSPEL IN NEW ENGLAND AND unto the Reverend Abraham Nelles, of the town of THE PARTS Brantford in the County of Brant, for and. on behalf ADJACENT IN of the New England Company for all that parcel of , COAMMEROINCLAY, CALLED THE land ." Here comes the description of the premises NEW ENGLAND and then the habendum clause which reads as follows: COMPANY AND "The said license of occupation being granted on SWEET. Reasons for the express condition that the New England Company Judgment. shall hold possession of the same so long as they keep Audette ,r. up Manual Labour School for the use of the Six Nations Indians, and no longer. "Given under my hand and seal at arms at Toronto, this seventh day of April, in the year of Our Lord one thousand eight hundred and fifty-nine and in the twenty-second year of Her Majesty's Reign." By Command. (Sgd.) Edmund Head. (Sgd.) C. Alleyn. Secretary. The defendant Sweet, trustee under the last will of the Reverend Abraham Nelles—in the said license mentioned —having filed no defence to the Information, judgment by default was entered against him on the 15th March, 1921. Under the provisions 12 Vict., ch. 9, sec. 1 (1849) and 16 Vict. ch. 159, ss. 6, 15 (1853) (1) it is, among (1) Reporter's Note:—By sec. 15 of the last mentioned Act the Governor in Council was authorized to extend the provisions of the Act to the Indian lands under the management of the Chief Superintendent of Indian Affairs; and when such lands were so declared to be under the operation of the Act the Chief Superintendent was entitled to exercise the same powers as the Commissioner of Crown Lands had in respect of the Crown lands.
Vol... XXI. EXCHEQUER COURT REPORTS. other things, enacted that a license Of occupation shall be issued by the Commissioner of Crown lands. Therefore, the issue of • a license by the Governor General "under his hand and seal at arms" is in direct contravention to the statute and it must therefore oP ;$E be found that the license was nothing passed thereunder. This license of tion, which the Governor General assumed to issue • under his seal at arms could not, in violation of the statute, constitute a legal and binding document. Doe ex Dem. Jackson v. Wilkes (1) ; Doe Dem. Shel- don v. Ramsay et al (2); The Queen v. Clarke (3). By this license of occupation the lands in question, Judgment• as was- contended at bar, became practically tied up in perpetuity and it being found to be detrimental to the Indians, the present information of intrusion has been resorted to with the object of using these lands to a better advantage for the Indians. Queen v. Hughes (4) . ' On the other hand during the whole period that the defendants have been in occupation, that is for 'over 60 years, there is not a tittle of evidence establishing ' they ever failed to discharge their part of the obligation arising out of the license. Have not, however, the Indians the right' to represent to their trustees that their land could be used to better advantage to them? Should â trustee be allowed to tie up lands for an indefinite period to the detriment of the cestui que trust 'when the law, wôuld . afford a remedy to cure such detriment? It would seem that land vested in the Crown can only be dealt with either by a patent under Great seal or under ,statutory authority. (1) 4 Up. C.Q.B. 142, 149, 150. (2) 9 Up. C.Q.B. 105. 249 1 922 THE KING côNY TOR THE PROPAGATION' G08P,EL rN ab initio invalid and that ENGN N AND occupa- TSia PARTS ADJACENT ix AMERICA, COMMONLY CALLED THE NEW ENGL AND coA ND . SWEET. Reasons for Audette J. The (3) 7 Moore P.C. 77. • (4) L.R. 1 P.C. 81.
250 EXCHEQUER COURT REPORTS. VOL. XX!. 1922 There will be judgment ordering and adjudging THE KING v. that nothing passed under the said license of occupation c ô rE>,rr and that the plaintiff recover possession of the lands POR THE in question. PROPAGATION OF THE No costs are asked by the prayer of this informa - GOSPEL 1N NEW tion and this is, however, a case where there should be ENGLAND AND TH E PARTS no costs to either party. A DJACENTIN AMERICA, COmMONLY It having appeared at trial that some of the lands CALLED THE covered by the license of occupation had been since its NEW ENGLAND issue, about 63 years ago, disposed of and sold under COMPANY AND expropriation for railway purposes or otherwise, the SWEET. Reasons for judgment will apply only to such part now in the It dgment. hands of the defendants. If the parties fail to agree Audette J. as to the metes and bounds of the said lands, leave is hereby reserved to either party to apply, upon notice, for further direction in respect of the same. The • judgment by default obtained against the • trustee Sweet will go no further than the condemnation against the defendant company. The defendants are furthermore at liberty, at their expense, to remove from the premises in question all buildings thereon erected. Solicitor for plaintiff: A. G. Chisholm, K.C. Solicitors for defendant, The New England Company: Brewster & Heyd.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.