Ontario. Ontario. Alberta and wan. British Columbia. New Brunswick. Nova DISTRESS FOR TAXES (a). While the procedure for enforcement of payment of taxes may be an execution rather than a distress, as stated in the text, our Courts have no hesitation in giving damages for illegal distress where the procedure is incautiously applied (b). The following are some statutory provisions for this quasidistress. It is to be noted that the New Brunswick statute terms the procedure an "execution": 4 Edw. VII. c. 23 (Assessment Act), ss. 103-108. R. S. B. C. c. 179 (Taxes on Property), s. 87. R. S. M. 1902, c. 117 (The Assessment Act), s. 115, distress for poll tax; s. 129, distress for municipal taxes. R. S. M. 1902, c. 135 (The Provincial Licence Act), s. 30, distress for rents due to the Crown. R. S. M. 1902, c. 166 (The Railway Taxation Act), s. 9, distress. (for taxes) on goods of railway company. C. S. N. B. c. 170 (Rates and Taxes), s. 84, execution against ratepayer. R. S. N. S. 1900, c. 73 (Assessment), s. 93. (a) P. 321, supra. (b) E.g., Donahue v. Campbell, 2 O. L. R. 124; McKinnon v. McTague, 1 O. L. R. 233; City of Toronto v. Custon, 30 S. C. R. 390, distress in a subsequent year, when permissible; L'oyd v. Walker, 4 0. L. R. 112 (1902). Cf. TRESPASS consists in any unjustifiable intrusion upon a person's possession. Possession is the technical name given to the present Definition of enjoyment of a definite portion of the soil by a person intending to enjoy it as owner. without. Possession may be either with title or possession. without title. substantially A party claiming to have possession without title must, in Possession order to give him what the law understands by possession, and to enable him to bring an action of trespass, show that he has a de facto possession, that is to say, actual physical prehension of the particular portion of the soil, to the substantial exclusion of Must be all other persons from participating in the enjoyment of it. exclusive. What amounts to such a de facto possession must in all cases be a question of degree, but the physical prehension must extend over substantially the whole subject-matter over which possession is claimed. "If there were an inclosed field, and a man had turned his cattle into it, and had locked the gate, he might well claim to have a de facto possession of the whole field; but if there were an uninclosed common of a mile in length, and he turned one horse on one end of the common, he could not be said to have a de facto possession of the whole length of the common"(a). So one who works part of a seam of coal does not thereby acquire a de facto possession of the whole seam (b). (1871) 19 W. R. 444; Ashton v. Stock, (1877) 6 Ch. D. 719. (a) Per Bramwell, L.J., Coverdale v. Charlton, (1878) 4 Q. B. D. p. 118. (b) Earl of Dartmouth v. Spittle, It is obvious that two persons claiming adversely cannot be ir possession of the same portion of the land at one and the same time, therefore a person claiming without title cannot be said to have a de facto possession unless the true owner has been dispossessed. In one case a road, the soil and freehold of which was in the plaintiff, ran from a highway to a well, the land on each side of the road belonging to the defendant, and the public, by virtue of a dedication by the plaintiff's predecessor in title, exercised a right of passage over the road to the well. The defendant built a wall across the mouth of the road, leaving a stile for foot-passengers to the well, and levelled the fences on each side of the road so as to throw it and the adjoining fields into one close, and this state of things continued for upwards of twenty years, after which the defendant further obstructed the road. It was held that the plaintiff might, in virtue of his ownership of the soil of the road, maintain trespass for such obstruction, for that the public, by exercising the right of passage, which they derived under the freeholder, kept his title and possession alive, so that the defendant never had the exclusive possession of the soil, and consequently had not acquired a statutory title to it (a). Where, however, there is a right of way appurtenant only to a particular tenement a subsequent enlargement of the user of such way for the benefit of new buildings, will be restrained by injunction (b). Nor, apparently, does the public user of country field paths, by permission, raise any presumption from which dedication may be inferred (c). And a similar rule has been held to apply in spite of the fact that the terminus ad quem, to which the paths led, was admittedly a public gathering place for religious legislative or political purposes at a period long anterior to the date from which the present proprietor deduced his title (d). If, however, a person be in occupation without title of a strip (a) Tottenham v. Byrne, (1861). The decision of this case by the Exchequer Chamber is unreported, except in the judgments in Reilly v. Thompson, (1877) 11 Ir. Rep. C. L. 238; and see Littledale v. Liverpool College, (1900) 1 Ch. 19, A. C. (b) Harris v. Flower, (1905) 91 L. T. 816, C. A. (c) Behrens v. Richards, (1905) 74 L. J. Ch. 615. (d) Att.-Gen. v. Antrobus, (1905) 2 Ch. 188. of land, over which other persons are in the habit of using a way not by the dedication or permission of the freeholder but as trespassers, then user of the way by such persons does not, as matter of law, prevent such occupation of the land from amounting to possession, but it is matter of evidence for the jury that the occupation was not substantially exclusive (a). And the same principle seems to apply where the parties using the way do so under a title not derived from the freeholder. Thus, where a person for a long time enjoyed the exclusive pasturage over certain strips of grass at the sides of a private road, which had been set out under an enclosure award for the use of the owners of certain lands in the neighbourhood, the soil of which road apparently was vested in the owners of the adjoining lands or in the lord of the manor, it was held that the party enjoying the pasturage did not by such enjoyment acquire the possession of the strips so as to entitle him to sue another person for depasturing cattle there, seeing that the exercise by the parties entitled thereto of their right of passage over the whole width of the road, including the strips of grass, prevented his user from being exclusive (b); but the Court seems to have treated the question as one of fact, not of law (c). But further, in order that occupation may amount to what the law understands by possession, not only must it be exclusive, but it must also have been had animo possidendi: the party claiming to have had possession must have intended to deal with the land as owner. The corporeal act by which possession is acquired must be accompanied by a definite act of the mind in order to enable possession actually to arise" (d). “Apiscimur possessionem corpore et animo, neque per se animo, aut per se corpore" (e). 66 (a) Reilly v. Thompson, (1877) 11 Ir. Rep. C. L. 238; and see as to Possessory Right, Every v. Smith, (1857) 26 L. J. Ex. 344. (b) Coverdale v. Charlton, (1878) 4 Q. B. D. 104. (c) See judgment of Bramwell, L.J. This may possibly be the explanation of the decision of the Court of Appeal in Haigh v. West, ((1893) 2 Q. B. p. 31), that the churchwardens and overseers of a parish, who by their tenants had enjoyed for the statutory period the (d) Savigny on Possession, Bk. 2, s. 21. (e) Dig. 41, Tit. 2, s. 3. Must be had animo possidendi." Possession of surface primá possession of minerals. In Leigh v. Jack (a), the plaintiff had laid out a strip of land as a street, but for certain reasons had never dedicated it to the public, and it was never in fact used by the public. The defendant, who was the owner of an adjoining iron foundry, used the strip of land for upwards of twenty years for the purpose of depositing boilers and refuse from his foundry upon it, but did so knowing that the street was intended to be ultimately dedicated to the public, and that until dedication it was useless to the plaintiff, and merely used the soil in the interval as a temporary convenience, and not in the assertion of ownership, or with the intention of infringing the plaintiff's rights. It was held that the user by the defendant did not amount to possession, and consequently, though extending over upwards of twenty years, conferred no title (b). One who without title acquires possession of the surface of facie includes land, prima facie thereby acquires possession of the minerals also (c), even though they be unopened, for possession of the surface prima facie operates to exclude others from access to the minerals: but that presumption is always liable to be rebutted by showing that the possession of the minerals was in fact in somebody else, for the minerals may be worked from the adjoining land, and apparently even a wrongdoer may, by driving levels through a whole seam of coal, acquire possession of the unworked coal within the limits to which the levels extend (d). But this rule does not apply against other than subsequent tort-feasors in cases where the first wrongdoer originally obtained the possession by means of a concealed or fraudulent trespass, and where (owing to ignorance) there was no laches on the part of the true owners, against whom the Statutes of Limitation do not run (e). Although in order to constitute actual fraud, so as to prevent the Real Property Limitation Acts from running, the tort complained of must be something more than a mere negligent (a) (1879) 5 Ex. D. 264. (b) See judgment of Cockburn, C.J., p. 271. And in Coverdale v. Charlton, (1878) 4 Q. B. D. p. 122, Brett, L.J., to a great extent rested his judgment on the absence of an animus possidendi. (c) Per Parke, B., Smith v. Lloyd, (1854) 9 Exch. p. 574. (d) See per Hall, V.-C., Ashton v. Stock, (1877) 6 Ch. D. p. 726. (e) Bulli Coal Mining Co. v. Osborne, (1899) A. C. 351. |