VAN DIEMEN'S LAND Co. v. MARINE BOARD OF TABLE CAPE. Hawkins, for the respondents.-The title to a foreshore belongs prima facie to the Crown, and can only be displaced by plain words in a grant or continuous adverse possession for sixty years under the Nullum Tempus Act. Evidence of user can only be adduced to support an ancient grant; in a modern grant it is for the grantee to displace the prima facie ownership of the Crown; and evidence of user cannot be used to clear away ambiguity in a modern grant. The burden of proof lies on the claimant. Mere general words will not sufficeParmeter v. Gibbs [1813]. The language of the grant reasonably construed confines it to high-water mark; express words would be needed to extend it to low-water mark. There is no evidence of adverse possession for sixty years, and no theory of a lost grant can be sustained in presence of an actual modern grant.

the locus in quo of the alleged trespass is included in a grant dated July 27, 1848, made in pursuance of that legislation.

Haldane, K.C., in reply.

THE LORD CHANCELLOR (EARL OF HALSBURY) delivered the judgment of their Lordships:

The action out of which these appeals arise was an action of trespass practically to try the right to a part of the foreshore of Emu Bay, in Bass's Straits. Their Lordships are not able to acquiesce in the suggestion that the decision of this case has so wide and important a result as some of the learned Judges seem to have supposed. Nevertheless, it is, of course, important to the parties in its immediate result and the consequences which follow from them.

The facts which lead up to the question in debate may be shortly summarised. An Act of Parliament was passed in the sixth year of King George 4 (6 Geo. 4. c. 39) for the purpose of encouraging the cultivation of waste lands in what was then the penal colony of Van Diemen's Land. It contemplated the granting of a charter to certain persons, and the appellant company was accordingly incorporated by charter dated November 10, 1825. Subsequent legislation (10 & 11 Vict. c. 57) having authorised the grant to the company of tracts of land, the real question now in debate is whether (9) 10 Price, 412.

The action was tried before Mr. Justice Clark and a jury at Launceston, in Tasmania, and a verdict was found for the defendants, the present respondents. The argument appears to have wandered over a very wide field; but the direction of the learned Judge to the jury, which must have had great weight with them, was that the acts of user proved to have taken place over the locus in quo were of no importance, and in fact were not evidence at all, since they were acts which were antecedent in date to any grant made by the Crown. To understand the relevancy and importance of this direction it is only necessary to observe that both the Act 10 & 11 Vict. c. 57 and the subsequent grant recite that the company had taken possession of the lands intended to be granted and incurred expense in the improvement thereof, and the grant is assumed to be of such a character that it neither expressly excludes nor expressly includes the locus in quo. It can hardly be doubted, in view of the recital to which reference has been made, that it was intended to authorise by the statute of Victoria the granting of a title to the company of lands of which they had taken possession and upon which they had expended money; neither can it be doubted that the grant itself, when made, was intended to confer a title to what the company had taken possession of; and, so far from not being evidence, their Lordships consider user was very cogent evidence of what was intended to be granted. It certainly was not evidence, as the learned Judge points out, of possession against the Crown, neither was it evidence of a lost grant. learned Judge very satisfactorily disposes of both these suggestions, but it is difficult to understand why it was not evidence to identify the place the title to which the Crown intended to confirm to the company.

The

It is quite true that if the language of the grant itself were absolutely plain and unambiguous, no amount of user would prevail against the plain meaning of the words (see North-Eastern Railway v.

VAN DIEMEN'S LAND Co. v. MARINE BOARD OF TABLE CAPE. Hastings (Lord) 7). It is, however, impossible to contend that the language of this instrument can be so represented. The language is very wide, but when one finds such a recital as this-"the Company have been authorized to take possession of several portions of land, and have ever since been and now continue in possession thereof, but no grant thereof has been made to the Land Company"-when these are the circumstances under which the grant is actually made-why is it not evidence, and cogent evidence, when the taking possession of the particular piece of land is proved, and the continuance in possession before and after the grant is proved? The time when, and the circumstances under which, an instrument is made supply the best and surest mode of expounding it; and when the obvious intention is to give a title to what has been taken and retained before the actual grant, it is manifest that what has been so taken and retained is cogent evidence of what is granted. When evidence of this character has been practically withdrawn from the jury, it is impossible to allow the verdict thus obtained to stand.

circumstances which can tend to shew the intentions of the parties, whether before or after the execution of the deed itself, may be relevant, and in this case their Lordships think are very relevant, to the questions in debate.

The circumstances under which modern user may be proved to explain a written instrument are treated of with great precision by the learned Judges who advised the House of Lords in Waterpark v. Fennell [1859].10

The learned Judge stated, and stated quite correctly, that you cannot say that acts of user were acts of user under a grant when they were done before the grant existed. It does not follow that such acts were not relevant to be proved when, as in this case, they lead up to and explain what is afterwards granted.

It would be a singular application of the maxim quoted by Coke, 2 Institutes, 11, contemporanea expositio est fortissima in lege, to suggest that the proof of user must be confined to ancient documents, whatever the word "ancient" may be supposed to involve. The reason why the word is relied on is because the user is supposed to have continued, and thus to have brought us back to the contemporaneous exposition of the deed.

Another direction given by the learned Judge to the jury, and calculated to mislead them, was his direction in relation to the leases of some part of the land in question. He suggested, not very obscurely, that the lease of part of the jetty which was leased and which extended over the foreshore, was only evidence of an easement, and that the lessor of such a structure need not own the land over which such a structure was erected. That such a division might in point of law exist is nothing to the purpose. There was no evidence of any such severance of interest, and the effect of such an observation was well calculated to mislead the jury, who ought to have been told that such evidence was clearly evidence of seisin in the locus in quo.

Their Lordships do not think it desirable, as this case is to be tried again, to deal more minutely with the facts of the case, though they think it right to say that, as to the question of lost grant, or possession against the Crown, they would have been prepared to affirm the judgments under appeal; but, reluctant as they have been to order a new trial where so much time has been spent and expense incurred already, and where so much learning and care have been bestowed upon the argument, they are unable to say that the question has been properly left to the jury. They will accordingly humbly advise His Majesty that the judgments of the Supreme Court ought to be discharged, and that there should be a new trial, and that the costs in the Supreme Court ought to abide the result of the new trial. The respondents will pay to the appellants the costs of these appeals.

Solicitors Bischoff & Co., for appellants;
Bircham & Co., for respondents.

[Reported by J. Eyre Thompson, Esq.,
Barrister-at-Lan,

CURTIS v. OLD MONKLAND CONSERVATIVE ASSOCIATION, H.L.

words shall be understood to include several persons as well as one person, females as well as males, bodies politic or corporate as well as individuals, and several matters or things as well as one matter or thing, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction." The appellant contended that the exemption did not extend to an unincorporated society; the respondents' argument was that the exemption was co extensive with the charge.

Quebec-Company-Sale of Land to Company-Invalidity of Resolution Authorising Sale-By-laws of Company.

The invalidity under the by-laws of a company of a resolution purporting to authorise the purchase of land by the company cannot affect the rights of the vendor in the absence of notice to him, the by-laws being matters of internal management to which those who deal with the company have no means of access.

Appeal from a decision dated January 19, 1905, of the Court of King's Bench for the Province of Quebec (Appeal Side). The facts sufficiently appear in the judgment of the Board.

Sir R. T. Reid, K.C., and R. C. Smith, K.C. (of the Colonial Bar), for the appellants.

MacMaster, K.C., Lafleur, K.C., G. G. Foster, and J. E. Martin (all of the Colonial Bar), for the respondent.

LORD MACNAGHTEN delivered the judgment of their Lordships:

By deed dated July 18, 1901, and made between the respondent, Edmund Arthur Robert, and the appellants, the Montreal and St. Lawrence Light and Power Co., Robert conveyed to the company a lot of land known as Buisson Point, situated at the Cascade Rapids on the River St. Lawrence, in the county of Beauharnois and Province of Quebec, with the right of fishing in the river opposite and attached thereto. The consideration for the purchase, as stated on the face of the deed, was 66 one dollar, and other good and valuable consideration." The deed was prepared by, and executed in the presence of, Maître Perodeau, Notary Public, who was the company's notary. It bore the company's seal. It was signed by Mr. Porteous, the president, and Mr. Kitto, the secretary, of the company. Attached to it was a verified copy of

* Coram, Lord Macnaghten, Lord Davey, Sir Ford North, and Sir Arthur Wilson.

VOL. 75.-P.C.

a resolution purporting to have been passed at a meeting of the directors on July 17, and purporting to authorise the president and secretary" to complete the transaction and sign the necessary documents."

By another deed dated the same day, and made between the same parties, it was declared that the real consideration for the sale was the sum of 15,000 dollars paid in cash, and an agreement to pay the further sum of 260,000 dollars on November 30 then next. It was, how

ever, declared that the purchaser should have the right at any time before November 30 to abandon the purchase by forfeiting the said sum of 15,000 dollars, and by reconveying the property to the vendor, in which case the sale was to be dissolved to all legal intents and purposes.

On January 4, 1902, the company brought an action against Robert praying for a declaration that the two deeds of July 18, 1901, were null and void, and asking that the Registrar of the county of Beauharnois might be ordered to cancel all entries of the same in the registration books of the county, and that the vendor might be ordered and adjudged to repay the said sum of 15,000 dollars to the company.

On January 7, 1902, Robert brought an action against the company seeking to recover 260,000 dollars, as the balance of the purchase-money alleged to be overdue.

The two actions were consolidated, and came on to be heard on June 30, 1903, before Mr. Justice Davidson. The learned Judge maintained the action of the company except so far as it asked for repayment of the 15,000 dollars, and dismissed the action of the respondent Robert. The Superior Court sitting in review reversed the judgment of the trial Judge, and dismissed the company's action. Their decision was affirmed by the Court of King's Bench for the Province of Quebec. From appeal has been brought. the judgment of that Court the present

The argument on the appeal before this Board resolved itself into two questions:

(1) Had the company power to buy

Buisson Point?

E