Full Court.]

YOUNG v. MCISAAC.

[Dec. 13, 1897.

Property in seaweed on foreshore-Rights of riparian owner.

This important case involved the question of the right to take seaweed from the seashore. At the trial exceptions were taken to the judge's rulings. On motion to set aside the verdict the following propositions of law were unanimously approved of by the court.

1. A proprietor whose boundary towards the sea is the bank or shore of a river or body of water, that boundary is high water mark, meaning by that ordinary or neap tides which happen between the full of the moon twice in twenty-four hours.

2. That seaweed, or any increment of the sea thrown upon, or up to, such land, leaving an increase arising by slow degrees, is deemed by the common law to belong to him as the owner of the soil, and that its protection to the bank forms a reasonable compensation to him for the gradual encroachment of the sea.

3. That the riparian owner, in common with all Her Majesty's subjects, has a right to take what seaweed he can, when it is floating, by a right as undoubted as that to catch fish when swimming in the sea, quite irrespective of the person in whom the foreshore is vested.

4. That if the foreshore has been granted by the crown, the grantee alone by virtue of that grant has the sole right to the seaweed stranded by the ebbing tide.

5. That if the foreshore is ungranted the crown alore has the right to the stranded seaweed, and no one has the right to take it, but if anyone gathers it no person can take it from him unless he can show a better right than his, i.e., nobody but the crown or its grantee.

Peters, Q.C., Attorney-General, McLean, Q.C., and Matheson, for plaintiff. M. A. McLeod, Q.C., and Stewart, for defendant.

Province of Manitoba.

QUEEN'S BENCH.

Taylor, C.J.]

[Nov. 27, 1897.

GRAHAM V. BRITISH CANADIAN LOAN & INVESTMENT CO.

Principal and agent-Constructive notice-Fraud-Ratification - Acquiescence -Executors-Lien for taxes paid.

This was an action commenced on the Equity side of the Court before the coming in force of the Queen's Bench Act. 1895, to have three mortgages held by the defendant company declared fraudulent and void as against the plaintiffs, and a cloud upon the title to certain lands left by the will of Margaret Logan to the mother of the plaintiffs as executrix in trust for their use with authority to exercise her discretion in the management af the property, and to sell and dispose of the same in any way she might think proper for the benefit of the plaintiffs, but without any power to mortgage the lands.

The executrix, wishing to raise some money on the security of the land, applied to the agent of the defendant company in Winnipeg for a loan on mortgage of the property, and with his knowledge it was conveyed to Miss MacDonald by deed dated the 14th March. 1881. A mortgage was then taken by the company for $2,000 the 16th March, 1881, signed by Miss MacDonald, but the evidence showed that the agent of the company was well aware that there was no real sale to Miss MacDonald, and that no consideration had passed for the deed, and that the executrix and the plaintiffs remained in possession of the property, although it did not appear that the scheme adopted had been suggested by the agent. The evidence also, in the opinion of His Lordship, showed that the solicitor of the company must have known the above facts in connection with the loan, or would have ascertained them if he had made the proper inquiries.

The property was reconveyed by Miss MacDonald to the executrix by deed dated 17th March, 1881, for an expressed consideration of $1,000, and on the 18th November, 1881, a further loan was made on the mortgage of the executrix herself for $2,000, and on the 8th November, 1884, a third mortgage was executed to secure a further sum of $1,200. It was shown that the agent of the company was authorized to make loans and put them through subject to the approval of a local board as to value, and to the report of the solicitor on the title. The application for the first loan showed that the value of the property was at least $7,000 at a forced sale, whilst the consideration stated in the deed to Miss MacDonald was $5,000. The deed and mortgage bore evidence of having been executed about the same time and were registered at the same time, and the solicitor made no inquiry as to the possession.

Held, that the solicitor ought to have known that a breach of trust had been committed, that the agent's knowledge of the fraud committed must be imputed to his principals, and that the circumstances brought the case within the principle laid down in Evans on Principal and Agent, page 516, as follows. "A principal is liable to third parties for whatever the agent does or says, and whatever fraud or wrong he commits, provided the agent acts within the scope of his apparent authority, and provided a liability would attach to the principal if he were in the place of the agent."

Held, also, following Staintor v. Carron Co., 18 Beav. 146, and Yeatman v. Yeatman, 7 Ch. D. 210, that the plaintiffs had a right to bring the action in their own names as the executrix could not sue; and that the Statute of Limitations afforded no defence in any way, as the company never had, but the plaintiffs had always been in possession.

Some evidence was given to show that one of the plaintiffs, being seventeen years of age at the time, had been aware of the making of the loans, and had been present at some of the meetings and interviews between the parties, but the Chief Justice considered that there was nothing to show that she should be estopped in any way by conduct or acquiescence from setting up the present claim. He also held that there was nothing to show that the money borrowed had been used in the maintenance and education of the plaintiffs in any way. The company claimed a lien on the land for money for insurance premiums and taxes, and to redeem the land from a tax sale.

Held, that they were entitled to such lien in respect of the taxes, but not for the insurance premiums.

Judgment declaring the mortgages void as against the plaintiffs, and a cloud upon the title of their lands, but providing for a lien in favor of defendants for moneys paid for taxes, and tax sale redemption.

Ewart, Q.C., and Andrews, for plaintiffs. Mulock, Q.C., for defendants.

Full Court.] BERTRAND V. CANADIAN RUBBER COMPANY.

[Dec. 6, 1897.

Fraudulent preference-Insolvent circumstances—Intent to prefer. Judgment of KILLAM, J., noted 33 C.L.J. 550, affirmed with costs. Tupper, Q.C., and Phippen, for plaintiff. Hough, Q.C., and Richards, for defendant.

Bain, J.]

WILTON V. MURRAY.

[Dec. 6, 1897.

Watercourse-Drainage-Right to obstruct flow of water.

The plaintiff's claim was that a watercourse ran through her land into and across the defendant's land, and thence into a gully or slough on the defendant's land, which finally emptied into Long Lake; and that for some years past the defendant had obstructed the flow of water in this watercourse by building a dyke or embankment across it on his own land, the effect of which had been to throw the water back upon and overflow the plaintiff's land. And the prayer was that the defendant might be ordered to remove the obstruction this made, and be restrained from continuing it.

Most of the land in the neighborhood is low and flat, and the natural drainage of the plaintiff's land, and of several of the farms to the south and west, is by the alleged watercourse above referred to. The easterly part of the plaintiff's quarter section thus spoken of is high land, but along the westerly part of it there is what is called a depression extending through the quarter section from south to north, crossing into defendant's land and continuing through it till it reaches the slough or gully above mentioned. The fall in the level of this depression from the south line of the plaintiff's land to its lowest level, where it crosses into the defendant's land, is very slight, and at that point the depression has a width of about 300 feet. There is no continuous flow of water through it, but every spring the rain and melted snow from the lands south and west of the plaintiff's land, and from the higher parts of her own land flow or drain into it, and covering it to a depth of six inches or more, according to the season, gradually pass off, in the absence of obstruction, across the defendant's land into the slough. In the high water there is a perceptible northerly current for a few days, and the height of the water on the slope of the depression, and the general course of its flow are defined by the rubbish deposited along the edge of the current, but the position of this line of rubbish varies from year to year, according to the height of the water. Apart from this there was no evidence of the existence of any banks or edges of a channel through which the water flows, and in some years the plaintiff has cultivated portions of this depression right up to her western line.

Held, that there was no watercourse which plaintiff had any right to have kept free and clear of obstruction for the benefit of her land, and that her action must be dismissed with costs. A watercourse has been defined to consist of bed, banks and water, and while the flow of the water need not be continuous or constant the bed and bank must be defined and distinct enough to form a channel or course that can be seen as a permanent landmark on the ground, and according to the evidence such do not exist in this case.

Full Court.] RE TAYLOR AND CITY OF WINNIPEG.

[Dec. 11, 1897.

Municipality--By-laws-Dairy inspection-Ultra vires.

Appeal from judgment of Dubuc, J., noted 33 C.L.J. 580, dismissed with costs except as to paragraphs 17 and 22 of the by-law in question.

Held, that a vendor of milk could not be required to state where he obtained the milk he has sold or is about to deliver as required by pp. 17, because his answer might subject him to the cancellation of his license, and the other penalties provided for by the 24th and 28th paragraphs of the by-law, or to permit a sample or samples of any milk being delivered or intended to be delivered to any customer in the city to be taken for examination as required by the 22nd par. under the penalties provided for in the by-law in case of refusal, because no provision was made for compensation for what might thus be taken ; and that the by-law in those respects was ultra vires. Mathers, for applicant. I. Campbell, Q.C., for city of Winnipeg.

Full Court.]

FOSTER V. LANSDOWNE.

[Dec. 11, 1897.

Municipality-Negligence in exercising statutory powers- Right of actionArbitration-Pleading.

This was an appeal from the judgment of Dubuc, J., noted 33 C.L.J. 579, overruling a demurrer to the statement of claim here'n, which alleged that the defendants by constructing in a negligent and improper manner a ditch for drainage purposes had caused the plaintiff's land to be overflowed with water whereby he had suffered damages, but did not allege that any by-law had been passed by the council of the municipality authorizing the construction of such drain.

The Municipal Act apparently gives no authority to the council to execute any such drainage works without first passing a by-law providing for it.

Held, that it is doubtful whether s. 665 of the Municipal Act does not confine the remedy to arbitration, and prevent a party from resorting to an action in case of damage resulting from the exercise of the statutory powers of the municipality in the construction of drainage works whether negligence be alleged or not, but that it was unnecessary to decide that question, as the statement of claim in this case did not show that there had been any by-law to authorize the work in question, and the Court could not assume that there

had been, and for all that appeared the work may have been done without statutory authority, and that the statement of claim was not, therefore demurrable. Appeal dismissed with costs.

Metcalf and Sharpe, for plaintiff. Attorney-General, and James, for defendant.

Full Court.]

ADAMS v. HOCKIN.

[Dec. 13, 1897. Real property Act-Caveat-Description of land-Statement of interest claimed― Address of petitioner-New evidence on appeal-Rule 476, Q.B. Act, 1895.

This was an appeal from the decision of Taylor, C J., noted 33 C.L.J. 701, dismissing the petition of the caveator with costs.

Held, reversing this decision, that the description there set out was not necessarily indefinite and uncertain, unless there was more than one plan of Oak Lake, when an ambiguity might arise, that, if it followed the description given in the application of the caveatee, it would, according to the form in schedule O, be sufficient; and that both the caveat and petition sufficiently showed what estate, interest or charge the caveator claimed; also that there was no rule of Court requiring the address or description of the petitioner to be stated in his petition, and that the order of the referee should be restored with costs to petittoner of both appeals.

The respondent applied under Rule 476 of the Queen's Bench Act, 1895, for permission to put in evidence to show that the description in the caveat differed materially from that in the application.

Held, that upon payment of the costs of both appeals, such evidence should be received. Order that if respondent should pay such costs within five days after taxation, the order for an issue made by the referee should be rescinded and the matter referred back to him with leave to adduce the evidence mentioned, but if not so paid the order of the referee should stand confirmed with costs of both appeals to be paid by the caveatee.

Clark, for caveator. Patterson, for caveatee.

Bain, J.]

[Dec. 22, 1897.

CARRUTHERS v. HAMILTON PROVIDENT & LOAN SOCIETY. Mortgagor and mortgagee-Negligence in exercising power of sale. The plaintiff claimed damages for the sale of his farm by defendants under powers of sale contained in two mortgages, interest being in arrear. The property was near Portage la Prairie, and in the centre of a district of good farming land. The evidence showed, in the opinion of the trial Judge, that the property was worth $3,700, and would have brought that amount at an auction sale if properly advertised. Defendants, however, sold it for $2,800, subject to unpaid taxes.

Held, that defendants were liable for the difference between the two amounts, because they had so negligently and carelessly conducted the sale proceedings that the property was sacrificed.