advertedly uttered; for imagining which I can imagine no excuse; to the contrary, having regard to the importance of that case and to the stubbornness with which it was contested throughout, it is at least highly improbable that such dicta were not relied upon in argument, or otherwise made known to the learned members of the Committee, and, if so, the words so much in point in this case would carry even greater weight; it may be that they were so deliberately used. There is no incongruity in the rule when applied to waters which are navigable; incongruity arises only from misconceptions or forgetfulness, or misapplications, of it. The fact that the stream or other body of water is navigable, or, in other words, a highway, obviously cannot take it out of the rule, for that would take every highway, on land or water, out of it, which no one can contend for. The magnitude of the stream or other body of water may, equally obviously, sufficiently shew a contrary intention, not contrary to the rule, but as the rule expressly provides. It is not without its amusing features to have the super-tidal waters of Great Britain and Ireland treated as if they were but mere ponds and rivulets when this question is discussed here. It ought not to be, though it may be, necessary to bring to mind the fact that some of the inland waters of the United Kingdom are really not so insignificant, even when compared with such "magnificent water stretches" as the east or the west branches of the Winnipeg River at the Lake of the Woods, though at the place where the dam is to be built the former may have the "magnificent" width of about sixty feet: see Dwyer v. Rich (1870), 4 Ir. R. C.L. 424. It is to be hoped that "spread-eaglism" or bombastry, however much it may naturally infest a new and fresh country in other fields, will not be permitted to invade the domain of its law. I would allow the appeal on this branch of the case. On the question whether or not the stream in question is in fact navigable, I agree with the trial Judge, though I find it difficult to understand how any of the parties to this action, or the Crown Lands Department, can very reasonably contend, among themselves, that it is, and least of all the defendants, in the face of the fact that the latter are acquiring the bed of the stream for the purpose of erecting works-including a dam across the C. A. 1908 THE KEEWATIN POWER CO. V. THE TOWN OF KENORA. Meredith, J.A. C. A. 1908 THE KEEWATIN POWER CO. V. THE TOWN OF KENORA. Meredith, J.A. stream-for a purpose entirely inconsistent with any notion of the existence of a public right of way; and the whole conduct of such parties is opposed to any such right, the object of the defendants being solely to adapt and apply the stream to the productions of water-power for generating electricity, and of the other parties to obtain as much money as possible from them for such of their rights as the defendants may acquire for that purpose. Real navigation in the stream is out of the question; legal navigation to obtain, on the one hand, and to avoid, on the other hand, payment of as much money as possible, is all that there is in it. And upon the last question, whether the writing itself shews that the parties themselves intended that the rule should not apply, or, more correctly speaking, that a title to a moiety of the bed of the stream should not pass, the defendants have, in my opinion, more than failed to establish the affirmation of the proportion. So far as the plaintiffs the Hudson's Bay Company are concerned, there is, I think, more in support of the presumption than against it, if really the words relied upon ought to have any effect upon it. They are contained in a very common general form of reservation in Crown grants, and probably were inserted without any regard to the actual circumstances of the case, but simply because it was the usual thing to insert them-a perfunctory adhesion to precedent. However, had they been inserted with a view to the circumstances of this particular grant, the more important words would tell very considerably in the grantee's favour. They reserved a right of way over all navigable waters upon the land granted, and as the only navigable waters which apparently could come within the grant are those in question, the conclusion must be that land under them was intended to be included in the grant. On the other hand, they also reserve right of access to the shores of the rivers, streams and lakes, together with the right to use so much of the banks thereof, not exceeding one chain in depth from the water's edge, as may be necessary for fishing purposes. I would have thought that this again excluded the notion of any ownership of the land remaining in the grantees; but it is said that a right of fishing is to be implied, and, because it is implied, there is to be a further implication that, contrary to the rule and the deed, the bed of the C. A. 1908 THE KEEWATIN POWER CO. v. stream was to remain in the grantor, because the right of fishing generally belongs to the owner of the land. But why go so far? Is not the broadest possible implication satisfied by giving the grantors the right of fishing, and, beside that, the reservation is not limited to the stream in question, but covers all the rivers, streams and lakes, whether navigable or not, and it can hardly be contended that the grantees were not to take any land covered by water. It is to be borne in mind, too, that these are but reservations, Meredith, J.A. out of the thing granted, to the Crown, and not to the public. In In regard to the other grants, the questions do not arise out of any general form of words, but out of words directly applicable,. and applicable only, to that particular grant. Two things are relied upon by the defendants: first, the expressed grant of an island, which, it is said, would go to the grantees if they took title ad medium filum, and, therefore, it appears that they were not so to take. But that is taking very much for granted. the present state of the authorities one would be rash to say that all islands pass with the bed of the stream, and so it would be but a most obvious precaution to provide in express words for the title to this land, not covered by water, passing. This point, therefore, falls to the ground. But, then, it is said that there is, as unquestionably there is, an express grant of part of the bed of the west branch, along the forty-acre parcel, which under the rule would pass without such a grant, and that, therefore, it is plain that the rule was meant not to apply to any of the parcels granted. If the facts were as so stated, I am not very sure that such a conclusion would follow in this case. The Crown had granted moiety of the bed of the stream to the other plaintiffs by the other patent; by this patent it was expressly granting the whole of it in a contiguous place; what object could there be in retaining a useless strip of one-half of the bed of the stream in one place, and why treat one grantee differently from another? Public interests could not have been the object, for then the whole bed must have been retained, and it is difficult to perceive how a retaining of the whole bed would materially affect mere rights of navigation. But, unless I am very much mistaken, these considerations are quite immaterial, and, in truth, this express grant of part of the bed of the river, considered conclusive against the application of the rule, is very much more like a conclusive THE TOWN OF KENORA. C. A. 1908 THE KEEWATIN POWER CO. v. THE TOWN OF KENORA. fact to the contrary. It may, of course, be that I am very much mistaken, and that is the more likely as the point upon which my opinion turns is one which, as far as I am aware, has not before been mentioned. It is this, that under the grant of the forty acres no part of the bed of the stream could pass, and, therefore, it was necessary to expressly grant it, and it would follow that there was no intention to retain the bed of the river, Meredith, J.A. and that it was not mentioned in regard to the other parcel because it passed under the rule of the law of England in question. That the bed of the river adjoining the forty acres did not pass with the grant of them seems to me to be as plain as can be. It is conveyed by minute inetes and bounds. It begins at "an iron post planted at the water's edge" of the river, and then runs in numerous courses until it again reaches "the water's edge," and thence runs "along the said water's edge, following turnings and windings, through to the place of beginning”—that is, the iron post at the water's edge. It is difficult for me to understand how it could ever have been imagined that this rule could be applicable to such a grant: see Plumstead Board of Works v. British Land Co., L.R. 10 Q.B. 16. That the whole of the bed of the stream, instead of merely the half of it, is thus expressly granted has no very great significance. The appeal should, I think, be allowed generally, and it should be adjudged that the plaintiffs are each entitled to one half of the bed of the stream in question, subject to whatever public right of way there may be, and for whatever it is worth, over the The defendants should pay the plaintiffs' costs. stream. OSLER, GARROW and MACLAREN, JJ.A., concurred. G. F. H. [IN THE COURT OF APPEAL.] THE CORPORATION OF THE CITY OF TORONTO V. THE TORONTO Street Railway-Removal of Snowfalls Electric Sweeper Construction of The agreement with the plaintiffs under which the defendants' railway is operated provides that the track allowances shall be kept free from snow at the expense of the defendants, so that the cars may be in use continuously; and that if the fall of snow is less than six inches at any one time, the defendants must remove the same from the tracks, and shall, if the city engineer so directs, evenly spread it on the adjoining portions of the roadway, but should the quantity of snow at any time exceed six inches in depth, the whole space occupied as track allowances shall be at once cleared of snow, and the snow removed and deposited at such points on or off the street as may be ordered by the city engineer. 55 Vict. ch. 99, sec. 25 (0.), passed to construe the above, enacts that the defendants shall not deposit snow on any street, square, highway or other public place in the city of Toronto without having first obtained the permission of the city engineer: Held, that there was nothing in the above to prevent the defendants from sweeping the small snowfalls or the large to the sides of the road by means of an electric sweeper, and (MEREDITH, J.A., dissenting) the purpose of the application being to prevent the use of the sweeper altogether, the appeal should be dismissed." Per OSLER, J.A.-When the snowfall was less than six inches at a time the company might leave it at the side of the road unless that would create a nuisance. Per GARROW, and MEREDITH, JJ.A.—In all cases the company was bound to remove the snow and ice after sweeping it aside unless the city engineer directed that it be spread there. THIS was an appeal by the corporation of the city of Toronto from the judgment of the Railway and Municipal Board, under the circumstances set out in the judgments. The appeal was argued on November 14th, 1907, before Moss, C.J.O., OSLER, GARROW, MACLAREN and MEREDITH, JJ.A. J. S. Fullerton, K.C., for the appellants. H. S. Osler, K.C., for the Toronto R.W. Co., the respondents. January 22. OSLER, J.A.: This is an appeal by the city from the judgment or order of the Railway and Municipal Board made, on an application by the city, to compel the railway company to desist from throwing the snow which falls upon their track allowances on to the sides of the street adjacent thereto without the permission of the city engineer, in alleged violation of clauses 21 and 22 of the agreement under which the railway C. A. 1908 Jan. 22. |