1999 S.H. No. 150869
IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: Nickerson v. Canada (Attorney General), 2000 NSSC 9
BETWEEN:
JERRY E.A. NICKERSON
PLAINTIFF
- and -
THE ATTORNEY GENERAL OF CANADA
DEFENDANT
D E C I S I O N
HEARD BEFORE: The Honourable Justice David W. Gruchy
PLACE HEARD: Halifax, Nova Scotia
DATES HEARD: April 18 & 19, 2000
DECISION: June 6, 2000
COUNSEL: Alan G. Hayman, Q.C. and Kenneth Winch
for the plaintiff
M. Jean Beeler and Brian Willcott
for the defendant
GRUCHY, J.:
I INTRODUCTION
[1] The plaintiff is a businessman who resides at North Sydney, Nova Scotia. Through a series of transactions from 1978 to 1989 he acquired lands on the shore of Sydney Harbour, within the City of Sydney. The property consists of several shore lots and one “water lot”. The shore lots which abut on the water lot also extend into the water of the harbour. The water lot was at one time entirely covered by water but is now partly occupied by a wharf or pier.
[2] The property is located within a commercial area of Sydney. The shore lots are vacant. There is a warehouse built on the pier extending from the shore lots into the water lot. The pier and the warehouse are on or largely on the water lot but do not totally occupy it. This was the state of the lot for many years before the plaintiff acquired it and which continues to exist today.
[3] The property is known locally as “the Robin Hood property” as small Newfoundland boats used to come there in the 1940's and 1950's to load Robin Hood flour. The plaintiff used this and other nearby properties to repair and build small vessels.
[4] In 1993 and 1994, the plaintiff and the Department of Public Works of Canada entered into negotiations for the sale and purchase of various properties of the plaintiff. That Department owns a large wharf immediately to the north of the Robin Hood property and immediately to the south of other property of the plaintiff. The plaintiff and the Department failed to come to financial terms and negotiations ceased.
[5] In 1997 the Province of Nova Scotia became interested in the possible purchase of the property. On proceeding with the transaction, however, the Province objected to the titles. For the purposes of this decision I will deal only with the objection to the title of the water lot. The essence of the objection is that the title to the water lot is derived from a provincial Crown grant to a predecessor in title to the plaintiff, Rhodes Curry and Company Ltd., in 1901, when the Province did not in fact have ownership of the property. This objection was based on the fact that the Constitution Act, 1867 had vested all property beneath the waters of harbours in the federal Crown and, consequently, the Province had no jurisdiction over or ownership in the water lot.
[6] The plaintiff testified that the federal and provincial authorities had attempted to resolve this problem, but the federal government ultimately refused to convey or release any interest it may have in the water lot or otherwise facilitate the sale of it to the Province.
II PLEADINGS
[7] The plaintiff has taken this action for a declaration that the federal Crown’s title of the water lot has been extinguished by virtue of The Act for the quiet of the Subjects in their possession of Lands, Tenements and Hereditaments with this Province S.N.S. 1837, c. 93, and its successor Acts including Of The Limitations of Actions Act R.S.N.S. 1851, c.153, s.14. Title to the shore lots was also initially at issue, but the federal Crown has now agreed that it has no interest in that property. Paragraphs 11.-13. of the plaintiff’s statement of claim, filed October 9, 1998, read as follows:
11. The Plaintiff also says that pursuant to The Act for the quiet of the Subjects in their possession of Lands, Tenements and Hereditaments with this Province S.N.S. 1837, c.93, and its successor Acts including Of the Limitations of Actions Act R.S.N.S. 1851, c.153, s.14, which were continued in force beyond 1867 by s.129 of the Constitution Act of 1867, (30 & 31 Victoria) c. 3 (U.K.), the Plaintiff had, by 1950, established title to the water covered portions of the Shore Lots as against the Defendant by virtue of more than sixty years of uninterrupted, open, notorious, adverse, and continuous possession by the Plaintiff’s predecessors in title. The Plaintiff further says that the water covered portion of the Shore Lots is subject to the doctrine of constructive possession as the Plaintiff’s predecessors in title entered into possession of the Shore Lots by virtue of a deed that covered both land and water covered portions of said Lots.
12. The Plaintiff also says that pursuant to The Act for the quiet of the Subjects in their possession of Lands, Tenements and Hereditaments with this Province S.N.S. 1837, c.93, and its successor Acts including Of The Limitations of Actions Act R.S.N.S. 1851, c.153, s.14 which were continued in force beyond 1867 by s.129 of the Constitution Act of 1867, (30 & 31 Victoria) c.3 (U.K.), the Plaintiff had, by 1950, established title to the Water Lot as against the Defendant by virtue of more than sixty years of uniterrupted, open, notorious, adverse, and continuous possession by the Plaintiff’s predecessors in title.
13. The Plaintiff also says that, in view of the acquiescence of the Defendant to the 1901 Provincial Grant, the Defendant’s Ninety-Seven year silence in the face of the considerable investment in the Water Lots and Shore Lots by the Plaintiff and his predecessors in title, and its explicit act of recognition of the Plaintiff’s title in 1996, it would be inequitable for the defendant to insist on any right to the title of the Water Lot and Shore Lots whatsoever.
[8] The defendant’s position is that s.91(1) of the Constitution Act, 1867, as it then read:
... granted legislative authority to the Parliament of Canada to legislate in relation to, inter alia, the property which became the property of Canada pursuant to s.108 of the Constitution Act, 1867. The property in issue in this proceeding is part of
the property which became the property of Canada pursuant to s.108 and in particular, pursuant to item 2 in the Third Schedule to the Constitution Act, 1867.
[9] The defendant denied the acts of possession alleged by the plaintiff to have been in existence since 1850 and continuously thereafter. The defendant does not dispute the plaintiff’s title to such of the plaintiff’s property whose title is derived from pre-Confederation grants - the shore lots.
III AGREEMENT
[10] My task herein has been greatly simplified by the co-operation of counsel. They have agreed on certain aspects of the matter which I will either summarize or set forth in full.
(a) Abstracts of Title: The abstracts of the titles of the various lots were produced and exhibited on consent. Only the title to the water lot is of direct concern, but the titles to the shore lots are of value and interest as they show ownership of properties adjacent to the water lot leading to an inference of access to it.
The earliest title document to the water lot (referred to as L.U.S. 2(2)) is a Crown grant dated October 28, 1901 to Rhodes Curry and Company, Ltd. In it the lot is described as being “covered with water”, ... being on the eastern side of Sydney Harbour and is more particularly described as follows:
Beginning on the eastern side of Sydney Harbour at the north west angle of water lot number one in front of Block “M” thence running south seventy-five degrees west two hundred and seventy-five feet; thence south fifteen degrees east two hundred and seventy feet more or less, thence north eighty-one degrees thirty minutes east two hundred and seventy-seven feet to the south west angle of lot number seven; thence north fifteen degrees west two hundred and ninety-five feet more or less to the place of beginning.
The abstract traces the title identifying certain potential defects, but which need not concern me in the issues in this action.
The plaintiff’s position is that while the paper title originates in 1901, the properties, including the water lot, had in fact been owned and occupied by various predecessors since 1850. Notably, among those predecessors was Senator John Bourinot, one of the members of the founding Senate of Canada, who died in 1884. More will be said concerning the Bourinots’ occupancy of the properties below.
(b) Agreed Statement of Facts: Counsel for the parties have entered into the following agreement:
Agreed Statement of Facts
1. Shore Lot #1 (P.I.D. #1560 6874) is comprised of lots 5, 6, & 7 in front of lots 10, 11, & 12 in Block “C” on the Plan of the Town Sydney. These lands were part of a Crown Grant in 1820 and were acquired by the Sydney Foundry and Steel Works Limited in 1935. The Defendant Claims no interest in these lands.
2. Shore Lot #2(1) (P.I.D. No. 15606882) is comprised by lots 1, 2, 3, 4, 5, and 6 being situated opposite Block “M” and a Water Lot bounded on the north by Block “C”, east by the Esplanade, south by Lot 1 and west by the waters of Sydney Harbour. All of the lots in 2(1) were acquired by Crown Grants which pre-date Confederation. The Defendant claims no interest in these lands.
3. Water Lot #2(2) consists of lands covered by the waters of Sydney Harbour. It’s boundaries were established in 1901 by Provincial Crown Grant and it borders Lot 2(1) to the east. It was granted by the province to Rhodes Curry and Company in 1901.
4. John Bourinot leased lot 2(1) from Richard and Anne Gibbons in 1861 and acquired deeds for the property from the Gibbons family between 1866 and 1869. The property included a house and wharf facilities.
5. John Bourinot was French Vice Counsel and his house and wharf were used to entertain the visiting French Squadron during its visits. The Newfoundland squadron was also anchored in the waters adjacent to the Bourinot house.
6. The Bourinot house and wharf was fully contained within the boundaries of Lot 2(1).
7. John Bourinot died by 1884 and was survived by his wife Jane Bourinot. John Bourinot left all of his property by will to his wife. His estate was not Probated.
8. There was no estate or Will recorded for Jane Bourinot.
9. In 1901, Elise Bourinot conveyed Lot 2(1) to Rhodes Curry and Company Ltd.
10. In 1901, Rhodes Curry and Co. demolished the Bourinot house and wharf and built a larger wharf which extended into the water lot which it acquired by Provincial Grant.
11. the Plaintiff and its predecessors in title have occupied and used the Water Lot continually since 1901.
12. In 1993 the Federal Crown entered into negotiations with the Plaintiff with the intention of purchasing the Plaintiff’s property including the Water Lot for $525,000.00. The negotiations failed.
13. The Federal Crown has never attempted to exercise any control or ownership over the Water Lot. The Federal Crown has never attempted to have the Rhodes Curry or Robin Hood Wharf removed or demolished. Until 1998, the Federal Crown had never complained to the Plaintiff or his predecessors in title about their occupation of the Water Lot or objected to their title.
14. The Plaintiff, in his dealings with Crown officials in 1993-1994, was never given the impression that the officials had actual knowledge of the Crown’s interest in the water lot until these proceedings were commenced
(c) Legal/Historic Opinion: Plaintiff’s counsel obtained an opinion on the history of the law pertinent to the issues herein. The author of the opinion is Philip Girard, Ph.D., a Professor of Law and former Dean of the Dalhousie Law School. The defendant has accepted the accuracy of this opinion, as I do as well. Doctor Girard’s expertise is properly (in my view) unquestioned in this area of law. His qualifications are set forth in an appendix to his opinion which I need not recount. His opinion, however, is now set forth in full:
Burchell Hayman Barnes
1801 Hollis St
Suite 1800
Halifax, NS
B3J 2L4
25 January 1999
via fax: 420-9326
Dear Sirs,
You have asked me to determine if a person can obtain title to a water lot in a Nova Scotia Public Harbour as against the Federal Crown assuming that possession has existed to the extent required by law for sixty years prior to 1950. I have reviewed this issue and have concluded that title to such a water lot can be acquired against the Federal Crown if the prerequisite period of possession is met. You asked me to conduct this research, and I have done so, in my capacity as a Professor of Law at Dalhousie University with a special expertise in legal history and not in my capacity as a non-practising member of the Nova Scotia bar.
1. Was adverse possession against the Crown permitted in Nova Scotia prior to Confederation?
At common law adverse possession against the Crown was not possible, as expressed in the maxim nullum tempus occurrit regi. The Nullum Tempus Act, 9 Geo. III, c.16 (1769) provided that the Crown would be barred from asserting claims to land which were more than 60 years old. If one accepts that the reception date in Nova Scotia is 1758, which is the generally accepted date today, this statute was thus not received into Nova Scotia through the common law process of reception.
That is not the end of the story, however, since there are two other ways by which adverse possession against the Crown might have become part of Nova Scotia law in the pre-Confederation period. One is by considering the 1769 statute as an imperial statute, and the second is by local re-enactment: i.e., the local legislature passing a statute to that effect. I will consider each of these in turn.
The Parliament at Westminster had the authority to legislate for the Empire as a whole or for particular colonies on certain topics. Any such statute would be effective in a colony not because it was received into the colony, but simply as an aspect of the sovereignty of the Westminster Parliament over that colony. These statutes were called imperial statutes to distinguish them from statutes directed purely to English concerns. There is some authority to the effect that the 1769 act was regarded in Nova Scotia as an imperial statute. In vol. III of his Epitome of the Laws of Nova-Scotia, published in 1833, lawyer and treatise-writer Beamish Murdoch addressed briefly the question of the applicability of the Nullum Tempus Act in Nova Scotia:
An English act 9 G. 3, c. 16, sec. 1-10 (See also 21 Jac. 1, c. 14) has established sixty years possession as an effectual bar against the king or his patentees, as respects real estate. This act has not been re-enacted here, but it would probably be considered as a legislative declaration of the proper period at which the presumption of title as against the crown must necessarily arise, or as an abandonment by the crown of any claims that were of longer standing, and as affording a rule for our courts to govern themselves by.
The argument here is not that the statute was received as such, but that the provincial courts could and should apply it as an imperial statute. Murdoch could reason in this way because before confederation there was no concept of “the Crown in right of Nova Scotia” to be contrasted with the Crown in right of the United Kingdom or anywhere else. There was only one Crown. Murdoch’s thinking would have been that if Parliament had declared that 60 years’ possession was to be effective against “the Crown,” that provision should bind the Crown with regard to any of its estates, whether in the U.K. or in the colonies. Imperial statutes did not have to mention the colonies expressly to bind them. As Murdoch stated in hs 1863 Essay on the Origin and Sources of the Law of Nova Scotia, a colony might be bound by a post-1758 British statute “where there are clear words in it, or an inevitable implication from its tenor, shewing the intention of the Imperial Legislature to extend its operation to the dominions of the Crown in general.” To conclude on this point, in the opinion of Nova Scotia’s most eminent pre-Confederation jurist, the Nullum Tempus Act was applicable in the province because it was an imperial statute, which affected the real estate of the Crown throughout the Empire by necessary implication.
Shortly after Murdoch wrote the above passage, the provincial legislature in 1837 passed An Act for the quiet of the Subjects in their possession of Lands, Tenements and Hereditaments, within this Province. This statute was virtually a verbatim re-enactment of the Nullum Tempus Act, and shows clearly that the 60-year rule for adverse possession against the Crown was formally adopted in Nova Scotia. The statute was passed with a suspending clause-i.e., it would not come into force until “His Majesty’s pleasure be known” -no doubt because of the possibility that it infringed the royal prerogative. However, on 18 November 1837 an order-in-council was passed in London confirming that the Queen in Council had no objection to the statute. The substance of this act was carried over into the title “Of the Limitation of Actions” in the first Revised Statutes of Nova Scotia of 1851. Fortunately its wording was much simplified at that time. S. 14 read:
No claim for lands or rent shall be made by her majesty, but within sixty years after the right of action to recover such lands or rent shall have accrued.
This provision is found in the Revised Statutes of 1864 and 1873, and thus it is clear that such was the law when Nova Scotia entered Confederation. Justice Wallace Graham reviewed the history of the 1837 statute in 1913 in a passage which confirms the above chronology, although it contains one typographical error. He states:
We had a nullum tempus Act passed in Nova Scotia in 1837, Statutes of 1837, c.93, which was continued until 1841, when it was repealed by the first series of Revised Statutes. At that time a simple provision was included in the Statute of Limitations, c. 154, s. 14 [he quotes s. 14 as reproduced above].
That provision has been continued in that Statute of Limitations in those terms ever since, and is now section 20 of the R.S.N.S. [1900], c. 167.
It is not saying too much that when the eminent lawyers who revised the statutes in 1841 recommended the repeal of the very long provincial Nullum Tempus Act, they thought, at least, they had sufficient for our purposes in the section just quoted. In these revisions a statute is not prima facie to be construed as changing the previous statute.
The reference to the Revised Statutes makes it clear that 1841 should read 1851. There were no revised statutes passed in 1841, nor is there any act of the
legislature repealing the 1837 act in 1841. Graham E.J. is saying that the 1837 statute, having been in force until 1851, was repealed and replaced by the new statute of limitations passed as part of the Revised Statutes passed in that year. S. 14 or its equivalent had then remained in force “ever since.”
2. What was the impact of Confederation upon the provincial law?
S. 129 of the British North America Act, 1867 provided for the continuation of all provincial laws until repealed, abolished or altered by Parliament. In other provinces, where the Nullum Tempus Act was either received or re-enacted before Confederation, this section has been held to continue its application against the federal Crown as respects federal Crown lands in that province. There appears to be no reason for Nova Scotia to be treated differently in this respect given the existence of local pre-Confederation legislation.
Yours sincerely,
Philip Girard, Ph.D.
Professor of Law
Based on this opinion the parties agreed it was possible to obtain title as against the federal Crown by virtue of 60 years’ possession. I will say more below about the quality of possession required.
As previously stated, the paper title commences with the Crown grant of 1901; but the plaintiff’s position is that the actual use and occupancy of the water lot commenced in approximately 1865. In fact, the titles to the shore lots are traced back to 1788, 1811 and 1820.
On June 1, 1950, the federal government enacted the Public Lands Grants Act. S.C. 1950, c.19. Section 5 of that Act reads:
5. No right, title or interest in or to public lands shall be acquired by any person by prescription.
The result of this Act is that in order to establish ownership by adverse possession or prescription as against the federal Crown the period of possession required to be shown to have existed is 60 years prior to 1950.
[11] Crown Grant:
In the years following Confederation (1867) there was a federal-provincial dispute concerning the ownership of and jurisdiction over foreshore and land covered with water in public harbours. The Supreme Court of Canada in Holman v. Green (1881), 6 S.C.R. 707, (per Strong, J.) ruled with respect to land in the harbour of Summerside, Prince Edward Island, that “... the land in question formed part of the demesne lands of the Crown belonging to that province, but then by virtue of section 108 of the British North America Act it was vested in the Dominion Crown.” Accordingly, the Court held that a provincial grant of lands covered by the water of a public harbour was void. Similarly, the Supreme Court of Nova Scotia, en banco, found in Fader v. Smith (1885), 18 N.S.R. 433, that a provincial Crown grant of foreshore subsequent to Confederation conveyed nothing. (In this latter case, the plaintiff also failed to show sufficient adverse, notorious and exclusive possession to obtain title.)
[12] The intergovernment dispute was considered by the Privy Council of the House of Lords in Provincial Fisheries, Re, [1898] A.C. 700. In that case the law lords found:
With regard to public harbours, their Lordships entertain no doubt that, whatever is properly comprised in this term, became vested in the Dominion of Canada. The words of the enactment in the third schedule are precise. It was contended on behalf of the provinces that only those parts of what might ordinarily fall within the term “harbour,” on which public works had been executed became vested in the Dominion, and that no part of the bed of the sea did so. Their Lordships are unable to adopt this view. The Supreme Court in arriving at the same conclusion founded their opinion on a previous decision in the same court in Holman v. Green (1), where it was held that the foreshore between high and low watermark on the margin of the harbour became the property of the Dominion as part of the harbour. Their Lordships think it extremely inconvenient that a determination should be sought of the abstract question, what falls within the description “public harbour.” They must decline to attempt an exhaustive definition of the term applicable to all cases. To do so would in their judgment be likely to prove misleading and dangerous. It must depend, to some extent at all events, upon the circumstances of each particular harbour, what forms a part of that harbour. It is only possible to deal with definite issues which have been raised. It appears to have been thought by the Supreme Court in Holman v. Green (1) that if more than the public works connected with the harbour passed under that word, and if it included any part of the bed of the sea, it followed that the foreshore between the high and low watermark being also Crown property, likewise passed to the Dominion. Their Lordships are of opinion that it does not follow that because the foreshore on the margin of a harbour is Crown property it necessarily forms part of the harbour. It may or may not do so, according to circumstances. If for example it had actually been used for harbour purposes such as anchoring ships or landing goods, it would no doubt form part of the harbour, but there are other
cases in which, in their Lordships’ opinion it would be equally clear that it did not form part of it.
[13] Holman v. Green and Provincial Fisheries, Re and Fader v. Smith were considered and followed in Kennelly v. Dominion Coal Co. (1904), 36 N.S.R. 495, a decision of the Supreme Court of Nova Scotia en banco.
[14] It seems now clear that in 1901 when the grant of the water lot was executed there still existed a federal-provincial dispute which was ultimately and definitively settled in 1904 by Kennelly v. Dominion Coal Co. Accordingly, the 1901 grant of the water lot conveyed no valid title.
[15] The obtaining of the grant, however, was an exercise of ownership which must be considered with all other evidence of possession to determine whether the plaintiff and its predecessors in title had obtained a possessory title prior to 1950 and the passage of the Public Lands Grants Act.
[16] Evidence of Possession:
The defendant’s pretrial brief puts the matter of the possession of the water lot in the following terms:
The third lot is a water lot and is located in Sydney Harbour immediately adjacent to the shore lots. This lot is referred to as the “water lot” and is numbered #2(2) in the Abstract of Title. In 1901 the water lot was created by survey and was conveyed by the provincial government to the plaintiff’s predecessor in title. The plaintiff and its predecessors in title have had continuous use and possession of the water lot since 1901 and continuing to the present day.
[17] Two questions arise from this position:
(1) What possession was exercised over the water lot for the 11 years prior to 1901, so as to establish possession for the 60 years required prior to 1950? and
(2) Was the quality of possession throughout the period of 60 years sufficient to acquire ownership?
[18] The plaintiff was faced with the difficult task of establishing a possessory title acquired over a period prior to living memory. It is my conclusion that the plaintiff has succeeded in displacing that burden. He did so largely by obtaining the research and opinion of Dr. Robert James Morgan, a teacher, archivist and historian now of the University College of Cape Breton. I was impressed by his qualifications, his deep knowledge of his subject and the thoroughness of his investigation.
[19] Dr. Morgan prepared a report for the plaintiff. While the defendant took issue with some aspects of this report, I accept it (perhaps with some explanations) and I now set it forth in full. I will not reproduce the documents to which Dr. Morgan referred, but I will mention such aspects of them as I found most persuasive in forming my conclusions. The report reads as follows:
January 4, 2000
Burchell Hayman Barnes
1801-1800 Hollis St.
Halifax, NS
Gentlemen
Re: Rhodes Curry/Robin Hood Wharf
You have asked me to summarize the results of research conducted at the Beaton Institute during the month of June, 1998 and subsequent research since that date.
In this letter I refer to the following documents which are held in Nova Scotian archives. (all references are to the Beaton Institute unless otherwise indicated)
a. Harrington Papers, excerpt ref: MG 12.3A p.26
b. Chappel Papers, excerpt The History of Old Sydney Wharves: ref: MG 12.75 E3
c. Map of Sydney by A.F. Church PANS ref V7/239-1877
d. Picture of Rhodes Curry Wharf ref: 77-557-691, Transport Ships and Shipping Wharves,
e. Picture of Rhodes Curry Wharf ref 89-471-18666, Transportation-Wharves-Sydney
Background on Documents:
The Harrington Papers are a collection of papers donated to the archives by the Harrington family. “MG” refers to the manuscript group; “MG-12" refers to private documents: “3A” refers to the third collection. In this case, the designation “MG 12.3A” means it is a fairly early collection and has been around for a while. Papers which have been donated are reviewed by institute staff and indexed to facilitate cross-referencing.
In one of the Harrington Papers is a cutting from a newspaper. I have concluded that it was from the Advocate newspaper because the only newspaper published in Sydney between 1872 and 1901 was the Advocate.
The Chappel Papers are also collection of papers similar in nature to the Harrington papers, but donated by the Chappel family.
Discussion
Based on these documents and my previous research into the history of Sydney and Cape Breton, the following conclusions can be reached.
a. A house was originally constructed on this property in or about the year 1800. In or about the year 1850 the property was acquired by John Bourinot, later Senator John Bourinot, and amongst other improvements, wharf facilities were added. (Source: The Harrington Papers and the A.F. Church Map)
b. John Bourinot made extensive and “conspicuous” use of the wharf and adjacent water area in conjunction with his residence. In particular, while he was French Vice Consul, John Bourinot used his home, by that time really more a mansion, and wharf to entertain the visiting French Squadron during its annual visits. While the squadron was visiting John Bourinot at Sydney, the wharf was used “extensively for a landing by the crews of ships of the French Navy” This was, by its very nature, a highly visible practice and continued apparently uninterrupted “for a long period of years.” According to a contemporary authority, during these regular visits the ships were placed only a short distance off the Bourinot wharf and were actually anchored “within a stone’s throw” of the Bourinot mansion. This practice was not unique to the French Squadron and ships from the Newfoundland squadron also anchored in the same position while using the Bourinot wharf faciltities. (Source for above including quotations: The Harrington Papers) With the wharf providing access to the mansion, the harbour waters adjacent to the Bourinot’s wharf formed an integral part of the Bourinot property by providing the necessary anchorage spots for visiting ships.
c. The house, wharf and property belonging to the Bourinots were purchased by Rhodes Curry and Company Ltd during the period 1892 to 1901 (the actual deed dated 1901) at which time the company demolished the existing structures and built improved wharf facilities. (Source: The Harrington Papers) At the time of sale, the wharf was a private wharf and considered to be a “fine property and kept in good repair.” (Source: The Chappel Papers)
d. A Provincial Crown Grant dated the 28th day of October 1901
conveys a water lot measuring 270' x 277' x 295' x 275' to Rhodes Curry and Company Ltd. It appears that the water lot described
in that Provincial Grant is the same water lot that was used by John Bourinot in conjunction with his residence.
e. Rhodes Curry and Company Ltd. completed the construction of their wharf measuring 300' in length and 100' in width sometime prior to 1900 as pictures of the Rhodes Curry Wharf around 1900 show it being used as a shipping site. (Source: Pictures of Rhodes Curry Wharf)
f. Since its construction, the Rhodes Curry or “Robin Hood” Wharf as well as its large warehouse and water lot have served several purposes over the ensuing years being used, for example, as a point of transport for Robin Hood products to Newfoundland outports, as a site for the loading of construction equipment and materials, and as a base for the Canadian Navy during the First World War (Source: Chappel Papers supra).
Dr. Robert Morgan
[20] While the first conveyance of the water lot was the provincial Crown grant of 1901, there is evidence of use of the harbour prior to that date. Dr. Morgan’s reasons for his conclusions are well documented.
[21] John George Bourinot, Sr., was born in 1814 and died in 1884. He was a mercantile Jerseyman who, when he came to Cape Breton, first resided at Arichat, then a significant seaport and centre of commercial activity. The precise date of John Bourinot’s move to Sydney is not known, but Mr. Murray Hannem, the lawyer who searched the title of the properties for the defendant, mentioned that there was documented evidence that he occupied the shore lot adjacent to the water lot in the 1860's. He reported to the defendant:
One important factor is that from my interpretation of the documentation and historical data contained in the file, it would appear that John Bourinot’s claim to L.U.S. (No. 2(2) (the water lot) may in fact predate the Provincial Crown Grant and in particular the Estate of Anne Gibbons wherein a reference is made to L.U.S. No. 2(1) in that it was in the possession of John Bourinot in the 1860's.
[22] Doctor Morgan concluded that John Bourinot had first “acquired” his property in or about 1850, which was the year in which he was appointed the French Consular Agent in Sydney. He later became the honorary French Vice-Consul in 1854 by the appointment of the government of Napoleon III.
[23] Mr. Hannem also testified that he had found evidence that John Bourinot, Sr., had built a ship or ships in Cape Breton. Quite aside from other strong evidence, the fact that John Bourinot, Sr., with his mercantile background, occupied a shore lot is an indication that he made use of the harbour for his endeavours. Indeed, he became the superintendent of maritime traffic in the port of Sydney. In 1859 he was elected to the provincial Legislative Assembley.
[24] Dr. Morgan appended to his report copies of an old photograph and a painting showing the Bourinot property. Another witness, Jane Moseley Bushell (mentioned below) also produced a painting of the property. One may also conclude from these paintings and pictures that its activities were focused upon or centred around the harbour. The house faced the water and not the street (the Esplanade) behind it. Its verandas were located so as to allow access to and views of the water. This aspect of the house is not surprising as it was likely built when water travel was probably more common than by horse drawn vehicles over dirt roads.
[25] According to an essay by Robert Pichette, produced at trial and recommended for its accuracy by Dr. Morgan, John Bourinot, Sr., was already provisioning the French naval fleet before his appointment, undoubtedly from the property identified by Mr. Hannem as one which he occupied. As well, the Bourinot wharf was used for many years - even within living memory for the provisioning of small ships from Newfoundland.
[26] Doctor Morgan testified that John Bourinot, Sr., was a bilingual Jerseyman and as French Vice-Consul entertained (and probably chandlered) the French naval squadron which had been detailed to protect French fishing interests on the west coast of Newfoundland. The ships of this squadron anchored and moored “within a stone’s throw” of the Bourinot house and wharf. There was certainly strong evidence that the Bourinot wharf was at all times well-used and well-maintained.
[27] From all the evidence before me I conclude that the occupancy exercised by Joh Bourinot commenced around 1850 and was of such a nature that it included active and continuing use of the water in front of the wharf in what was later to become known as the water lot.
[28] According to Pichette’s essay, John Uniacke (a renowned Nova Scotian) described the Bourinot establishment between 1862 and 1865 as follows:
Amongst the most conspicuous dwellings of the place is the house of the French consul J. Bourinot, Esq. also member of the Provincial Assembly. It is situated upon the border of the River. Several large trees shade it upon the land side; and a long and well constructed wharf with a commodious landing place, runs out in front towards the water. A tri-coloured flag hoisted upon a staff near the gable regularly announces the arrival of a French ship. From the balcony of the river front of this house you may occasionally look out upon a gay scene. It not unfrequently happens during the summer months that two or three French men-of-war are anchored immediately abreast of the Consul’s Residence at a very short distance from this wharf. Their bright flags, the bustling sounds from their decks and the morning and evening bugle quite enliven our otherwise tranquil harbour. Sometimes the band from the Admiral’s ship is added to the other gay features of the scene.
[29] My conclusion is bolstered as well by an examination of the various old maps and plans produced to me at trial which clearly show the Bourinot property (or wharf) protruding into the harbour.
[30] John Bourinot had 11 children, one of whom was John George Bourinot (1837-1902) the author of many learned papers and texts, including of particular interest to lawyers, Parliamentary Procedure in Canada. John Bourinot, Jr., however, moved to Otawa in 1868, eventually to become the Clerk of the Senate, and hence was not actively involved in the activities pertaining to the properties. A daughter of John Bourinot, Sr., Josephine married a Sydney lawyer, Frederick Moseley. Their graddaughter, Jane Moseley Bushell, testified at this trial. I permitted her evidence to be received notwithstanding that it was largely hearsay. I did so on the basis of such cases as R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915, as I was satisfied as to the necessity and reliability of such evidence.
[31] Mrs. Bushell testified that Frederick Moseley was born in Sydney in 1857 and died in 1905. After the death of John Bourinot, Sr., in 1884, Mr. Moseley succeeded him as honorary French Consul. He and his family lived in the Bourinot residence. Mrs. Bushell recounted to me her understanding of the family history, learned from her father and grandmother. She said her father was born in 1889, lived in and was brought up in the Bourinot home until it was torn down when he was about 11 years old. Her grandmother, Josephine, died in 1938 and lived with the Moseley family until Mrs. Bushell was about 11 years old. Mrs. Bushell testified it was her understanding the household was used extensively in entertaining the French fleet. She said ships used to moor in front of the house and guests were then brought to the house by rowboats. She said that the family still retained many mementos given to them by grateful guests.
[32] I conclude from Mrs. Bushell’s testimony that while Frederick Moseley did not acquire the paper title to the Bourinot property, he and his family continued active occupancy of it and of the water lot until its eventual sale to the Rhodes Curry Company in 1901.
[33] I also note that the 1901 Crown grant of the water lot was for a precisely described property and not arbitrarily designated. Its measurements are not those of a parallelogram and the course of the southern boundary is not a simple extension of a boundary of a shore lot. The description, in my view, was apparently designated to accomplish a particular purpose - probably related to actual use. Mr. Hannem testified that his understanding of the procedure followed in obtaining such a grant was to petition the government which would then have resulted in an investigation of the use of the property, including a determination of whether any of the shore lot owners disputed the proposed grant. There is no suggestion before me that such a procedure was not carried out in this particular grant and the description used supports the notion that actual use was probably considered.\Q
[34] Quality of Occupancy:
The defendant correctly states that in order to establish adverse possession against the federal Crown a plaintiff must demonstrate open, actual, exclusive, continuous and notorious possession for 60 years prior to 1950. The defendant cites the following cases in support of its position: Finlay v. Canada, [1982] F.C.J. No. 102 (Q.L.) (T.D.); Leichner v. Canada (Attorney General) (1996), 31 O.R. (3d) 700; Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.); Handley v. Archibald (1899), 30 S.C.R. 130; Sherren v. Pearson (1887), 14 S.C.R. 581; Gillis v. Gillis (1979), 32 N.S.R. (2d) 40; Taylor v. Willigar (1979), 32 N.S.R. (2d) 11; Baker v. Nova Scotia (A.G.) [1991] N.S.J. No. 317 (Co. Ct.).
[35] But it is also clear, especially by Taylor v. Williger that the quality of possession is “highly contextual” and must be judged in the peculiar circumstances of the property under consideration. The Plaintiff asserts that acts of possession of foreshore or water lots may be of a different quality than that required to establish adverse possession of upland. Lord Watson, while dealing with a matter under Scottish law, said in Lord Advocate v. Young (1887), 12 App. Cas. 544 (U.K. H.L.):
It is, in my opinion, practically impossible to lay down any precise rule in regard to the character and amount of possession necessary in order to give a riparian proprietor a prescriptive right to foreshore. Each case must depend upon its own circumstances. The beneficial enjoyment of which the foreshore admits, consistently with the rights of navigators and of the general public, is an exceedingly variable quantity. I think it may be safely affirmed, that in cases where the seashore admits of an appreciable and reasonable amount of beneficial possession, consistently with these rights, the riparian proprietor must be held to have had possession, within the meaning of the Act 1617, c. 12, if he has had all the beneficial uses of the foreshore which would naturally have been enjoyed by the direct grantee of the Crown. In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strict sense of the term, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject.
[36] While Lord Advocate v. Young dealt with the title to foreshore, the English Court of Appeal considered the matter of possession of sea bed. Lord Russell at p.985 quoted with approval Pollock and Wright on Possession in the Common Law, p. 30 as follows:
What kind of acts, and how many, can be accepted as proof of exclusive use, must depend to a great extent on the manner in which the particular kind of property is commonly used. When the object is as a whole incapable of manual control, and the question is merely who has de facto possession, all that a claimant can do is to show that he or someone through whom he claims has been dealing with that object as an occupying owner might be expected to deal with it, and that no one else has done so.
[37] Lord Russell examined the specific factual situation then under consideration and concluded:
The effect of this evidence is that for some sixty years the plaintiff company and its predecessors have in one way or another been asserting possession of the Rythe, and doing so on the basis that they were owners of the soil therein. It has been argued with some force on behalf of the plaintiff company that there could be no better evidence of possession in relation to a tidal creek than the laying of permanent moorings by the plaintiff company and its predecessors and by others with their permission. In my view, this evidence, if it stood alone, would be amply sufficient to establish a prima facie case of possession in favour of the plaintiff company. I reject the suggestion put forward on behalf of the defendant that in order to establish possession the plaintiff company and its predecessors should have taken further steps, such as the setting up of permanent and visible marks to delineate the area of which they claimed to be in possession. Such marks could well amount to an obstruction to navigation, and I regard the suggestion that they should have been up in a tidal creek in the middle of Chichester Harbour as quite unrealistic.
[38] The law as expressed in such cases as I have set forth above was considered by the Supreme Court of Canada in Tweedie v. R. (1915), 52 S.C.R. 197 Anglin, J. at p.214 said:
In order to establish title by possession to a portion of the foreshore, it is not necessary to prove the same exclusive possession of it, which would be requisite in a case of uplands. A grantee of foreshore holds it subject to the jus publicum of navigation and fishing, and a similarly restricted title to it by possession may be established by proof of such beneficial enjoyment as a grantee holding subject to this jus publicum might have exercised. Lord Advocate v. Young, 12 App. Cas. 544 at 553; Moore on Foreclosure (3rd ed.), pp.658, 660, 779, note (u), and 830, n (s); 28 Hals., pp. 368-9.
[39] Anglin, J. went on to consider the type of evidence which might be available to establish possession of a foreshore (and water lot) and said at p. 220:
The evidence adduced by the defendant in support of his possession is as satisfactory as could reasonably be expected, having regard to all the circumstances, and it should, in my opinion, be held that he has established title to the foreshore in question.
He continued by making it clear that an interest acquired in such a fashion as he was considering was subject to the jus publicum of navigation and fishing.
[40] To like effect was the case of Canada (Attorney General) v. Acadia Forest Products Ltd. (1987), 41 D.L.R. (4th) 338, which considered, inter alia, the lack of objection by the Crown to the use of the property in question.
[41] I have concluded on the facts adduced before me that the plaintiff’s evidence “... in support of his possession (of the water lot) is as satisfactory as could reasonably be expected, having regard to all the circumstances,” and it should, in my opinion, be held that he has established title to the water lot in question.
[42] Jus Publicum:
I take care to point out, however, that any such title is subject, as noted in the cited cases above, to jus publicum. This subject was not raised or argued before me, but I cite the following cases which, in my view, clearly set forth the law in this regard: Wood v. Esson (1884), 9 S.C.R. 239; Vancouver (City) v. Canadian Pacific Railway (1894), 23 S.C.R. 1.
[43] Of particular assistance is the opinion of LaForest, J. of the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at p.53, where he said:
It is important to recall that the law of navigation in Canada has two fundamental dimensions - the ancient common law public right of navigation and the constitutional authority over the subject-matter of navigation - both of which are necessarily interrelated by virtue of s.91(10) of the Constitution Act, 1867 which assigns exclusive legislative authority over navigation to Parliament.
The common law of England has long been that the public has a right to navigate in tidal waters, but though non-tidal waters may be navigable in fact the public has no right to navigate in them, subject to certain exceptions not material here. Except in the Atlantic provinces, where different considerations may well apply, in Canada the distinction between tidal and non-tidal waters was abandoned long ago: see In Re Provincial Fisheries (1896), 26 S.C.R. 444; for a summary of the cases, see my book on Water Law In Canada (Ottawa: Information Canada, 1973), at p.178-80. Instead the rule is that if waters are navigable in fact, whether or not the waters are tidal or non-tidal, the public right of navigation exists. That is the case in Alberta where the Appellate Division of the Supreme Court, applying the North West Territories Act, R.S.C. 1886, c.50, rightly held in Flewelling v. Johnston (1921), 59 D.L.R. 419, 16 Alta. L.R. 409, [1921] 2 W.W.R. 374, that the English rule was not suitable to the conditions of the province. There is no issue between the parties that the Oldman river is in fact navigable.
The nature of the public right of navigation has been the subject of considerable judicial comment over time, but certain principles have held fast. First, the right of navigation is not a property right, but simply a public right of way: see Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839 (H.L.) at p. 846. It is not an absolute right, but must be exercised reasonably so as not to interfere with the equal rights of others. Of particular significance for this case is that the right of navigation is paramount to the rights of the owner of the bed, even when the owner is the Crown. For example in Attorney-General v. Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240, a relator action to enjoin a public nuisance causing an obstruction in the River Thames and an adjoining thoroughfare along its bank, the Lord Chancellor said, at pp. 101-2 Wils. Ch., p. 246 E.R.
I consider it to be quite immaterial whether the title to the soil between high and low water-mark be in the Crown, or in the City of London, or whether the City of London has the right of conservancy, operating as a check on an improper use of the soil, the title being in the Crown, or whether either Lord Grosvenor or Mr. Johnson have any derivative title by grant from any one having the power to grant. ... It is my present opinion, that the Crown has not the right either itself to use its title to the soil between high and low water-mark as a nuisance, or to place upon that soil what will be a nuisance to the Crown’s subjects. If the Crown has not such a right, it could not give it to the City of London, nor could the City transfer it to any other person.
This court later came to the same conclusion in Wood v. Esson (1884), 9 S.C.R. 239. There, the plaintiffs had extended their wharf so as to interfere with access to the defendant’s wharf. The defendant pulled up the piles and removed the obstruction to allow passage to his wharf, and the plaintiffs then brought an action in trespass on the ground that they enjoyed title under a grant from the Province of Nova Scotia to the soil of the harbour on which the wharf was constructed. the court held that the defendant was entitled to abate the nuisance created by the obstruction to navigation in the harbour. Strong J. remarked, at p.243:
The title to the soil did not authorize the plaintiffs to, extend their wharf so as to be a public nuisance, which upon the evidence, such an obstruction of the harbour amounted to, for the Crown cannot grant the right so to obstruct navigable waters; nothing short of legislative sanction can take from anythhing which hinders navigation the character of a nuisance. (Emphasis added)
This passage also underscores another aspect of the paramountcy of the public right of navigation - that it can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation: see also The Queen v. Fisher (1891), 2 Ex. C.R. 365; In Re Provincial Fisheries, supra, at p. 549, per Girouard J.; and Reference re Waters and Water-Powers, [1929] 2 D.L.R. 481, [1929] S.C.R. 200.
[44] I also note that this water lot may be subject to such legislation as the Navigable Waters Protection Act R.S.C. 1985, C.N.-22 and the Canada Marine
Act, S.C. 1998, c.10, although neither those statutes, nor any others to like effect, were raised or argued before me.
CONCLUSION
[45] I have concluded that by 1950 the plaintiff had established title to the water lot as against the defendant by virtue of more than sixty years of uninterrupted, open, notorious, adverse and continuous possession by his predecessor in title. I am prepared to grant an order to that effect.
[46] If necessary, I will receive written submissions from the parties with respect to the form of the order and with respect to costs.
J.