T-1762-73
The Queen on the information of the Deputy
Attorney General (Plaintiff)
v.
Gilbert A. Smith (Defendant)
Trial Division, Dubé J.—Newcastle, New Bruns-
wick, September 7 and 8, 1976, May 16, 17, 18
and 19, 1977; Ottawa, September 9, 1977.
Indians — Information by Crown— Reserve lands — Lands
allegedly surrendered to Crown to be sold for Band's benefit
— Not sold and no benefit received — Lands occupied by
defendant and predecessor in title since 1838 — Whether or
not lands vested in Province at surrender in 1895 — Whether
or not defendant validly holds lands in adverse possession —
Indian Act, R.S.C. 1970, c. I-6, s. 31.
This information under section 31 of the Indian Act claims
on behalf of the Red Bank Band of Indians the right of
possession as against the defendant of a parcel of land allegedly
located on their Reserve. Plaintiff claims the lands were surren
dered to the Crown to be sold for the benefit of the Band and
alleges that the land had neither been sold, nor had any benefit
been received. Defendant, however, claims that he bought the
land, supporting his allegation with registered indentures of
deed. Defendant argues that the land became vested in the
Province at surrender in 1895, and alternatively claims the
lands by adverse possession.
Held, the action is dismissed. The 1895 surrender was not a
definite, final surrender by the Red Bank Band to the Crown,
but merely a conditional surrender which became absolute only
upon completion of the sale and the placing of the monies to the
credit of the Band. The 1958 Canada-New Brunswick Agree
ment settles all outstanding problems concerning Indian lands,
including vesting, vis-Ã -vis Canada and the Province, and
enables the Queen in right of Canada to deal effectively with
reserve land. To do so, the Queen in right of Canada may
properly file a claim before this Court on behalf of the Indians
under the Indian Act. But to succeed, a claim must rest on a
right which has not been extinguished. Unexercised rights of
occupancy do not necessarily last forever. From 1838 to the
date of the information in 1973, adverse possession has not
been effectively interrupted by any of the parties entitled to do
so, namely the Province of New Brunswick from 1838 to 1958,
the Government of Canada from 1958 to 1973, and the Red
Bank Band with reference to their own rights of occupancy
throughout the period.
ACTION.
COUNSEL:
J. M. Bentley, Q.C., and Robert R. Anderson
for plaintiff.
James E. Anderson, John D. Harper and
William J. McNichol for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Anderson, MacLean & Chase, Moncton, for
defendant.
The following are the reasons for judgment
rendered in English by
DUBS J.: This is an information exhibited by the
Deputy Attorney General of Canada under section
31 of the Indian Act', claiming on behalf of the
Red Bank Band of Indians the right of possession,
as against the defendant of a parcel of land
allegedly located in the Red Bank Indian Reserve
No. 7, Northumberland County, Province of New
Brunswick.
The plaintiff claims that the parcel of land lies
within the portion of the Reserve which was sur
rendered to the Crown in 1895 to be sold for the
benefit of the Band. It is alleged that this particu
lar parcel was in fact never sold and that the Band
never received any benefit from it.
On the other hand, defendant claims that he
purchased the parcel of land from one Isaac
Mutch and has three registered indentures of deed,
dated September 26, 1952, September 8, 1958 and
July 16, 1959 to support his allegation.
Filed as Crown exhibits were early nineteenth
century surveys, plans and acts tracing the record
of Indian reserve land on the Little Southwest
Miramichi River, one of several branches of the
Miramichi River. The surrender document itself,
dated June 6, 1895, transferred to the Queen inter
alia lots 1, 2, 3, 5, 6, 7 and 17 on the north side of
the Little Southwest Miramichi River. An accom
panying report to the Superintendent General,
Indian Affairs, dated July 30, 1896, states that the
lots "are occupied by squatters, the object of the
surrenders being to enable the Department of
Indian Affairs to sell the lots to the parties in
occupation".
' R.S.C. 1970, c. I-6.
A letter dated July 15, 1898, from the Depart
ment of Indian Affairs agent to the "Secretary,
Department of Indian Affairs, Ottawa" reports
that "in obedience to instructions. ..1 have visited
this reserve". The agent found that lots 6, 7 and 8
were occupied by James Mutch.
A memorandum dated August 12, 1898 to the
Secretary after an investigation into "the question
of Squatters on the Red Bank Indian Reserve"
reports as follows with reference to lot 6, north of
the Little Southwest River:
Lot Occupant Remarks
6 James Mutch Occupant wishes to purchase and
will pay part of purchase money
next Fall.
In a letter dated July 5, 1901, to the Deputy
Minister of Justice, Ottawa, the Secretary writes:
I am directed to enclose a statement of facts regarding
squatters on the Red Bank Indian Reserve, County of North-
umberland, N.B., and to request that steps be taken to compel
the squatters to make payment for the lands.
The statement of facts listed the names of "the
occupants on the undisposed" lots, including the
name of James Mutch for lot 6, north of Little
Southwest River.
In a letter dated March 14, 1919, from H. G.
Buoy, Timber Inspector, to a Mr. Orr, it is recom
mended "that Mr. Isaac Mutch be given the op
portunity of purchasing this land at the rate of
$2.00 per acre", referring to the "east half of lot
no. 6 on the north side of the Little South West
Miramichi River in the Redbank Reserve".
In a subsequent letter between the same parties
dated June 10, 1919, Buoy concludes "I agreed
with him (Mutch) that $2.00 per acre over the
whole lot would be an excessive price and that in
my opinion a fair and reasonable price would be
$1.50 per acre".
A memo dated March 16, 1960, from the Super
intendent of the Miramichi Indian Agency reveals
that "lots 6 and 17 were previously surrendered for
sale but have never been sold".
The metes and bounds description of the subject
property appearing in the statement of claim was
prepared in 1973 by W. D. McLellan, a land
surveyor, who testified extensively at the trial and
established to my satisfaction that the subject
property is truly the same parcel of land retraced
to the surrender of 1895.
The affidavit of H. R. Phillips, Registrar of
Indian Lands and Officer in charge of the Surren
dered Land Register, filed as an exhibit, confirms
that there appears in the register no document to
transfer the said lands to the defendant or to any
one.
The two main grounds of defence raised by the
defendant are firstly that as a result of the surren
der of 1895, the land became vested in the Queen
in right of New Brunswick, not Canada, and
secondly that the defendant holds the subject prop
erty in adverse possession against the whole world.
In St. Catherine's Milling and Lumber Com
pany v. The Queen 2 , the Privy Council held that
section 109 of The British North America Act,
1867 gives to each province the entire beneficial
interest of the Crown in all lands within its bound
aries, which at the time of the union were vested in
the Crown, subject to such rights as the Dominion
can maintain under sections 108 and 117. By the
1763 Royal Proclamation 3 possession to the lands
in question in Ontario had been granted to certain
Indian tribes. In 1873 by formal treaty with cer
tain Indian tribes these lands were surrendered to
the Government of the Dominion for the Crown,
subject to a certain qualified privilege of hunting
and fishing.
2 (1866) 10 O.R. 196, affirmed (1886-87) 13 O.A.R. 148,
affirmed (1887) 13 S.C.R. 577 (1889) 14 App. Cas. 46.
3 (R.S.C. 1970, Appendix II.) Under The Royal Proclama
tion King George erected four separate governments, styled
Quebec, East Florida, West Florida and Grenada. It did not
apply to Nova Scotia which at the time included New
Brunswick.
The Privy Council said that by force of the
proclamation, the tenure of the Indians was a
personal and usufructuary right dependent on the
goodwill of the Crown and that by virtue of the
surrender the entire beneficial interest in the lands,
subject to the hunting and fishing privilege, was
transmitted to the province in terms of section 109
of The British North America Act, 1867.
Defendant submits that the St. Catherine's deci
sion is applicable to the instant case and is au
thority of the highest order for holding that, upon
surrender of the lands by the Red Bank Band in
1895, the beneficial interest and title in the subject
property vested in the Crown in right of the Prov
ince of New Brunswick free of any Indian burden
or interest. The Queen in right of Canada would
therefore, defendant alleges, have no standing to
maintain this action.
Two years after the St. Catherine's decision or
in 1890, the New Brunswick Court of Appeal in
Burk v. Cormier 4 held that the title to land in the
Province reserved for the Indians is in the Provin
cial Government and not in the Dominion Govern
ment. The Chief Justice said at page 149:
Here, again, it seems to me that the arguments used in favor
of the provincial rights are stronger than in the St. Catherine's
case, because, in this Province, the estate of the Crown in the
land in dispute in this action is not encumbered (so far as
appears by the evidence) by any Indian title.
and further down:
There never has been any doubt in this Province, that the
title to the land in the Province reserved for the use of the
Indians, remained—like all the other ungranted lands—in the
Crown, the Indians having, at most, a right of occupancy.
In 1895, the Supreme Court of Canada in The
Province of Ontario v. The Dominion of Canada
and the Province of Quebec 5 held that by The
British North America Act, 1867, the Dominion of
Canada assumed the debts and liabilities of the
Province of Canada and that section 109 of The
British North America Act, 1867 provided that all
lands belonged to the provinces in which they were
situated "subject to any Trusts existing in respect
thereof...." In 1850 the late Province of Canada
had entered into treaties with some Indian tribes
4 (1890) 30 N.B.R. 142.
5 (1896) 25 S.C.R. 434.
wherein Indian lands were surrendered lands in
consideration for annuities.
The Privy Council in 1902 in Ontario Mining
Company, Limited v. Seybold 6 followed the St.
Catherine's decision and held that lands in Ontario
surrendered by the Indians by the Treaty of 1873
belong in full beneficial interest to the Province of
Ontario. The Crown therefore can only dispose
thereof on the advice and under the seal of the
Province. Lord Davey said at page 82:
By s. 91 of the British North America Act, 1867, the Parlia
ment of Canada has exclusive legislative authority over "Indi-
ans and lands reserved for the Indians." But this did not vest in
the Government of the Dominion any proprietary rights in such
lands, or any power by legislation to appropriate lands which by
the surrender of the Indian title had become the free public
lands of the province as an Indian reserve, in infringement of
the proprietary rights of the province.
Anglin J., of the Supreme Court of New Bruns-
wick, in his 1958 decision in Warman v. Francis'
quoted extensively from the St. Catherine's deci
sion and added at page 207:
This view in 1888 of the nature of the Indian title was in
effect that which prevailed in New Brunswick with respect of
the Reserves which the Governor in Council "made" in New
Brunswick shortly after its establishment as a Province in 1784.
The volume of the Statutes of New Brunswick for 1838 con
tains as an appendix a report by the Commissioner of Crown
Lands enumerating the "Lands reserved for the use of the
Indians in this Province ... the time such reserves were made.
..." At the foot thereof is the following:
Nature of Reserves—To occupy and possess during pleasure.
Defendant relies on these, and many other deci
sions subsequent to the St. Catherine's decision, to
submit that the Red Bank Band of Indians surren
dered absolutely in 1895 the land in question
which vested in the Province of New Brunswick
free from the burden of any Indian interest.
On the other hand, plaintiff contends that the
St. Catherine's decision is not applicable to the
instant case. He submits that the 1895 surrender
was not absolute but conditional and would not
extinguish the Indian title until such time as the
conditions or the terms of the trust were per
6 [1903] A.C. 73.
(1959-60) 43 M.P.R. 197.
formed. The habendum of the surrender reads:
"To have and to hold ... in trust . .. and upon the
further condition that all monies received from the
sale thereof, shall ... be placed to our credit ..." .
Since the subject property was never sold, plaintiff
claims, they are still subject to the trust and the
Indian title has not been extinguished.
In support of that proposition plaintiff relies on
a 1950 Supreme Court decision St. Ann's Island
Shooting and Fishing Club Ltd. v. The King'
where it was held that there was not a total and
definitive surrender to the Crown. What was
intended was a surrender sufficient to enable a
valid letting to be made to trustees "for such term
and on such conditions" as the Superintendent
General might approve.
The plaintiff relies also on a 1970 British
Columbia Court of Appeal decision Corporation
of Surrey v. Peace Arch Enterprises Ltd. and
Surfside Recreations Ltd. 9 where it was held that
the "surrender" was not final and complete, but
merely conditional. It followed that the lands con
tinued to be "lands reserved for the Indians"
within the meaning of subsection 91(24) of The
British North America Act, 1867 and that exclu
sive legislative jurisdiction over the lands remained
in the Parliament of Canada. Certain lands in the
Semiahmoo Indian Reserve were surrendered
under the following terms:
To Have And To Hold the same unto Her said Majesty the
Queen, her Heirs and Successors in trust to lease the same to
such person or persons, and upon such terms as the Govern
ment of Canada may deem most conducive to our Welfare and
that of our people.
And upon the further condition that all moneys received
from the leasing thereof, shall be distributed 90% to the
locatees and the remaining 10% deposited to the Revenue
account of the Band.
Maclean J.A., said at pages 384-385:
In my view the surrender here, a surrender to Her Majesty
"in trust to lease the same to such person or persons, and upon
such terms as the Government of Canada may deem most
conducive to our Welfare and that of our people" falls into the
class of a qualified or conditional surrender.
Under this form of surrender, "in trust" and for a particular
purpose that is "to lease the same" it seems to me that it cannot
be said the tribal interest in these lands has been extinguished.
S [1950] S.C.R. 211.
9 (1970) 74 W.W.R. 380.
In my respectful opinion the learned Judge below was in error
when he held that the surrender was an "unconditional" one.
And further down page 385, he quotes the St.
Ann's Island Shooting and Fishing Club decision
and adds:
In my view the "surrender" under the Indian Act is not a
surrender as a conveyancer would understand it. The Indians
are in effect forbidden from leasing or conveying the lands
within an Indian reserve, and this function must be performed
by an official of the Government if it is to be performed at all:
See sec. 58(3) of the Indian Act. This is obviously for the
protection of the Indians. Further, it is to be noted that the
surrender is in favour of Her Majesty "in trust". This obviously
means in trust for the Indians. The title which Her Majesty
gets under this arrangement is an empty one.
Then he concludes at page 387:
It might well be (but it is not necessary for me to decide)
that if an absolute surrender were made by the Indians under
the Indian Act, and this surrender was followed by a convey
ance from the Government to a purchaser the land would cease
to be a reserve under the Indian Act and would also cease to be
"lands reserved for the Indians" under sec. 91(24) of the
B.N.A. Act, 1867, but that is not the case here.
My conclusion is that the exclusive legislative jurisdiction
over the land in question remains in the Parliament of Canada,
and that provincial legislation (including municipal bylaws)
which lays down rules as to how these lands shall be used, is
inapplicable.
In my view the 1895 surrender was not a defi
nite, final surrender by the Red Bank Band to the
Crown, but merely a conditional surrender which
became absolute only upon completion of the sale
and placing of the monies to the credit of the
Band. In any event the question whether New
Brunswick Indian lands are now vested in right of
the Province, or the right of Canada, was settled in
1958 by the Canada-New Brunswick Agreement
of that year. (An Act to Confirm an Agreement
between Canada and New Brunswick respecting
Indian Reserves, S.N.B. 1958, c. 4.)
The agreement settles all outstanding problems
relating to Indian reserves in that Province and
transfers to Canada all rights of the Province in
reserve lands which may be of interest in the
instant case. The relevant provisoes read as
follows:
NOW THIS AGREEMENT WITNESSETH that the parties hereto, in
order to settle all outstanding problems relating to Indian
reserves in the Province of New Brunswick and to enable
Canada to deal effectively in future with lands forming part of
said reserves, have mutually agreed subject to the approval of
the Parliament of Canada and the Legislature of the Province
of New Brunswick as follows:
1. In this agreement, unless the context otherwise requires,
(b) "reserve lands" means those reserves in the Province
referred to in the appendix to this agreement;
3. New Brunswick hereby transfers to Canada all rights and
interests of the Province in reserve lands except lands lying
under public highways, and minerals.
And the appendix includes:
[RESERVE NO. 7] In the Parish of Southesk with a small part
RED BANK in the northeast corner in the Parish of
Northesk. North of the Little Southwest
Miramichi River opposite Red Bank Indian
Reserve No. 4.
The twofold purpose of the agreement was first
ly to settle all outstanding problems relating to the
reserves and secondly to enable Canada to deal
effectively in future with lands forming part of
said reserves, including, of course, untransferred
surrendered land. In order to deal effectively with
those lands the Queen in right of Canada may
properly file a claim before this Court on behalf of
Indians under the Indian Act. But to succeed, a
claim must rest on a right which has not been
extinguished. Unexercised rights of occupancy do
not necessarily last forever.
I now turn to the defence of adverse possession.
The onus of proving adverse possession is upon
the party raising that defence. The defendant must
show that he has been in actual, open, visible,
exclusive, continuous and undisturbed possession.
The possession necessary to gain title by adverse
possession must be such as in the nature of the
land would be considered suitable and reasonable.
It must be considered in every case according to
the peculiar circumstances of that case.
In the Province of New Brunswick, no person
shall take proceedings to recover land but within
twenty years 10 and no claim for lands by the
Crown after a continuous adverse possession of
sixty years ". Under the federal Public Lands
Grants Act 12 no right or interest in or to public
lands is acquired by any person by prescription.
Under the Nullum Tempus Act' 3 the right of the
Crown is barred after sixty years. Both parties
agree that if adverse possession is a defence in the
instant case the sixty year rule applies whether the
Nullum Tempus Act or the New Brunswick Act
Respecting Limitation of Actions in respect to
Real Property applies.
The defendant himself having acquired the sub
ject property only in 1952 cannot of course estab
lish a sixty-year period of adverse possession.
Then, adverse possession, if any, must have been
established by Mutch, or his predecessors in occu
pation, or a continuous combination of them and
the defendant, uninterrupted by the title holder.
Possession of land has always been a cornerstone
of the law; if the rightful owner does not come
forward and claim his right within the prescribed
period, his right is extinguished and the title goes
to the possessor and his successors. Adverse posses
sion is at times difficult to determine and the
rightful owner compounds the problem when he
allows years to go by before asserting his title.
In the case at bar, oral evidence was allowed in
an attempt to assess the broad historical back
ground of the area with a view to determine what
specific acts of possession were carried out with
reference to the subject property.
It is significant that while the documentary
evidence leads inescapably to Indian legal rights of
occupancy, the oral testimony reveals that the
Little Southwest Miramichi River area, or the
land on both banks thereof, including the subject
property, was occupied and developed by non-Indi-
ans for more than a century. According to Profes-
10 Act Respecting Limitation of Actions in respect to Real
Property, R.S.N.B. 1903, c. 139, s. 3.
" Act Respecting Limitation of Actions in respect to Real
Property, R.S.N.B. 1903, c. 139, s. 1.
12 R.S.C. 1970, c. P-29, s. 5.
13 9 Geo. III, c. 16.
sor W. D. Hamilton of the University of New
Brunswick, a witness with extensive knowledge of
the local history, the "tract", so called, was settled
by non-Indian settlers in the 1830-1840 period.
Professor Smith has carried out considerable
research and study of the history and genealogy of
the people of the settlement, and in particular of
the Isaac Mutch and Ebenezer Travis property,
which has been affected by the following events
subsequent to the creation of the Province of New
Brunswick in 1784.
In 1808 the New Brunswick Executive Council
granted a licence of occupation to "the Indians of
the County of Northumberland in general".
On August 10, 1820, members of the Julian
family of Indians leased the wild grass on a parcel
of land, including the subject property, to one
Richard McLaughlin, a lumberman, for a six-year
period. Then in the 1830's the Julians leased the
property in homestead-size lots to non-Indian set
tlers, and more particularly to one Ebenezer Travis
(c1794-f1871) from about 1838.
A petition of Ebenezer Travis dated October 25,
1841, shows that he was claimant to the land
which now includes the subject property.
In his "Reports on Indian Settlements", Journal
of Assembly, Fredericton, 1842, Moses H. Perley,
Indian Commissioner, reports his 1841 visit to the
area he described as the "Little South West
Tract". He writes that Barnaby Julian, Chief of
the Micmac Nation, residing at the village of Red
Bank, under a Commission from His Excellency
Sir Archibald Campbell, dated September 20,
1836, assumed the right to sell and lease the
greater part of the reserve of 10,000 acres on the
Little South West and "has since then received
nearly two thousand pounds in money and goods
from various persons, as consideration for deeds
and leases, and for rents. . . yet I found him so
embarrassed in his pecuniary affairs, that he dare
not come into Newcastle, save on Sunday, for fear
of being arrested by the Sheriff."
The report then deals with the non-Indian set
tlers. "They are in general far above the squatters
... [at Indian Point] both in character and cir
cumstances. It was not a little curious to contrast
these persons, who supposed they had fair title,
with those who had not a shadow of claim, and to
mark the difference between the lawless squatter
and the honest industrious settler."
From an extensive study and analysis of the
documents relating to all of the properties along
both sides of the Little Southwest Miramichi
River, Professor Hamilton claims that the Isaac
Mutch property as such came into being as a result
of the 1901 survey of William E. Fish which
reduced the size of the original Ebenezer Travis
family property of which it had been a part for
approximately 63 years.
It seems that at the time the Government of
Canada was pressuring residents to purchase their
property at a per-acre price and that they resisted.
Ebenezer Travis in particular who had lived on
that land all his life, objected, as revealed in an
1898 Department of Indian Affairs document,
which reads in part: "Mr. Travis stated to me that
they got their possessions from Jared Tozer who
got possession of it from the Indians over 60 years
ago. Claim it theirs of right."
Tradition has come down to Professor Hamil-
ton, a native of the area, whose grandfather was a
brother-in-law of Isaac Mutch and who also
worked as a chainman for surveyor Fish, that an
altercation occurred between the latter and Travis,
from which Fish stomped away in a rage, leaving
his equipment on the line, but returning the follow
ing day to have his way and to create the Isaac
Mutch property in the process.
Professor Hamilton's opinion is that there was a
locally-acknowledged Indian interest, and that of
an absentee and indefinite character, in these lands
for only about 40 years, or roughly the first half of
the 19th century. He contrasts that interest with
non-Indian occupancy from the 1830's onward.
Most witnesses on adverse possession were non-
Indians called by the defendant. The only Indian,
called by the plaintiff on that score (brought to the
Court by bench warrant) admitted under cross-
examination that, as far back as he could remem
ber, that strip along the river had never been
occupied by Indian people. The witness is 66 years
of age and has lived at the village of Red Bank, the
Indian community, since the age of three.
From the oral evidence, it is abundantly clear
that the tract of land between the two Indian
reserves, Red Bank Reserves No. 7 and No. 4, was
peacefully settled by non-Indians in the past cen
tury, and was treated by Indians and non-Indians
alike as a non-Indian settlement. Some witnesses
testified that they saw no Indians in that area in
their lifetime. Indians live at the village of Red
Bank, an organized community on the south side,
whereas the land in question lies in the non-Indian
community of Lyttleton on the north side of the
Little Southwest Miramichi River, some 5 1 / 2 miles
upriver from Red Bank.
From 1952, the defendant himself has undoubt
edly occupied the land in adverse possession with
colour of title. He has obtained a deed in good
faith and paid for it. He has built a lodge shortly
after purchase and has lived there with his family
most summers. He has purchased two additional
lots from Mutch to enlarge his initial acquisition,
paying the total sum of $1,600 for the three par
cels. He has spent money on improving the build
ing, sold gravel from a gravel pit located between
the lodge and the main road. He has paid taxes to
the Province every year, about $100 yearly on land
and building. Although not an angler himself he
has had guests at the lodge to fish the public
salmon pool near the property. He intends to retire
there. Neighbours regard the subject property as
being his land.
According to the evidence, Isaac Mutch pur
chased the old nearby Sillekars schoolhouse in July
1904 and moved it to where it is today, on the
north side of the main road, directly across the
property he purported to sell to the defendant in
1952. I-Ie converted the schoolhouse into a home
where he lived and raised a family. He had a barn
and animals on that northerly side of the road.
On the south side of the main road and extend
ing down to the river lie the 26 acres of land
deeded to the defendant. Defendant's lodge stands
on a bluff near the bank of the river and there is a
gravel road from the lodge to the main road. That
road was used by Mutch to get to the river where
he carried out some log driving in the spring.
Mutch was a lumberman who at times cut trees on
both sides of the main road. According to his son
there were spruce and fir on the south side which
were sold as pulp wood. Some Christmas trees
were also felled in the area where defendant's
lodge presently stands.
Mutch was also a farmer. He grew hay,
potatoes, oats, on a small island called Hay Island
which lies in the river in front of the subject
property. He had to traverse the subject property
to get to the island. He also at times cultivated a
small fenced-in area called the "interval" lying, at
times partly submerged, near the shore on the
subject property. He ran his horses and trucks
from his barn across the main road, down the
gravel road, to the "interval" and over onto the
island. He paid taxes to the Province on these
lands throughout his life. For a number of years
before 1960, Mutch lived in another farm house,
called Sommer's Farm, about half a mile distant.
During that period the Mutch home was rented to
other parties. He died in 1965, leaving the prop
erty to his wife who deeded it to their son Weldon
Vincent Mutch.
There is evidence to the effect that Mutch's land
came to him from his father Edmond who got it
from James the grandfather. It is to be recalled
that in 1898 the occupant of lot 6 was listed as
James Mutch in the Indian Affairs agent's report.
Much of this evidence was given by old time local
residents whose memory reach as far back as 70
years ago. Throughout that period the farm next
door was occupied by William Mutch, another son
of Edmond and brother of Isaac.
The type of possession required to establish
adverse possession varies with the type of land
being possessed, the real test being that such acts
be shown as would naturally be carried out by the
true owner if he were in possession. Vide Jackson
v. Cumming'", Levy v. Logan 15 , Wallace v.
Potter 16 , Attorney General of Canada v. Krause 1 '.
What would constitute sufficient evidence of
possession with reference to modern city lots, or
village lands, or cultivated areas, is not required in
order to show possession of semi-wilderness areas
in the early years of the century. The acts carried
out by Mutch before he deeded the subject prop
erty to the defendant appear to me to be the type
of acts that would normally and suitably be per
formed by a lumberman farmer in those days on
the Miramichi River.
As previously reported, the land in question was
visited by the Indian Affairs agent in 1898. The
price per acre was discussed in 1919 between
Buoy, the timber inspector, and Isaac Mutch.
Then, silence till the 1970's. Although not in issue,
it would appear from the evidence of some of the
witnesses that the recent interest in the subject
property was aroused by the activation of the
gravel pit, near defendant's lodge, and the reve
nues it generated.
On February 24, 1919, Isaac Mutch had written
to the Department of Indian Affairs to obtain the
grant to his property. His letter reads:
I am living on a pice [sic] of Indian land which lies on the
North side of the Lyttle South West River the East side of Lot
No 6 x 42 Rods in width Bounded on the West by land claimed
by Ebenezar Traviss And I would like to get the grant of it
Learned counsel for the plaintiff argues that the
letter is, "the most poignant piece of evidence
adduced as to the status of the land and the state
of mind of Isaac Mutch and constitutes an
acknowledgment of the Crown's title such as to
interrupt the running of the limitation period".
The letter raises obvious difficulties. It seems
clear from previous decisions (vide Hamilton v.
The King' 8 , Sanders v. Sanders 19 ) that once a title
is established under a statute and the right of a
prior owner is extinguished, the title cannot be
'" (1917) 12 O.W.N. 278.
15 (1976) 14 N.S.R. (2d) 80.
16 (1913) 10 D.L.R. 594.
17 [1956] O.R. 472.
18 (1917) 54 S.C.R. 331, at p. 346.
19 (1881-82) 19 Ch. D. 373, at p. 382.
defeated by subsequent acknowledgment by those
who have acquired this statutory title. But proper
acknowledgment could interrupt incomplete
adverse possession.
The Nullum Tempus Act contains no reference
to acknowledgments, but it provides that an inter
ruption by entry or rents shall stay the running of
the period. In Hamilton v. The King the Supreme
Court of Canada said at page 344 that "It would
seem a bold step for the Court to add yet another
fact or incident to those the Nullum Tempus stat
ute expressly mentions as interrupting possession
against the Crown."
In that same decision, Fitzpatrick C.J., also said
at pages 339-340:
The Crown permitted the defendants or their predecessors in
title to remain in undisturbed possession for fifty-eight years
before taking action in 1890 and took no steps to enforce the
judgment then obtained during the ensuing twenty-four years.
During this long lapse of time all parties concerned have died.
The form of government of the country has been repeatedly
changed, and the then newly founded and insignificant By-town
has become a great city, the capital of the Dominion of
Canada. Under these circumstances, I think the courts need not
hesitate to require the strictest proof of a claim to oust the
defendants. Failing this, I think substantial as well as legal
justice will have been done by leaving them undisturbed in the
possession which they have so long held.
The New Brunswick Limitation of Actions Act,
R.S.N.B. 1952, c. 133, however does include a
provision respecting acknowledgment of title: the
present section 45 appeared as section 14 of the
Act Respecting Limitation of Actions in respect to
Real Property, c. 139, Consolidated Statutes of
New Brunswick 1903. It reads:
45. When an acknowledgment in writing of the title of a
person entitled to any land is signed by the person in possession
of the land or in receipt of the profits thereof, or by his agent in
that behalf, and has been given to the person entitled or his
agent prior to his right to take proceedings to recover the land
having been barred under the provisions of this Act, then the
possession or receipt of profits of or by the person by whom
such acknowledgment was given shall be deemed, according to
the meaning of this Act, to have been the possession or receipt
of or by the person to whom or to whose agent such acknowl
edgment was given at the time of giving the same, and the right
of the last mentioned person, or of any person claiming through
him, to take proceedings shall be deemed to have first accrued
at, and not before, the time at which the acknowledgment, or
the last of such acknowledgments, if more than one, was given.
In the Hamilton case, an 1871 letter had been
introduced as an acknowledgment. In his judgment
(46 years later), Idington J., was reluctant to
attach much significance to the document. He said
at page 350:
I should be loathe to attach much (if any) importance to
such a document without the fullest information at least on the
part of the Crown relative to the import of what such a claim as
made therein implied, and how it could be treated as an
acknowledgment taking away the rights acquired by the
statute.
The Crown in the instant case having waited
more than 50 years after the alleged acknowledg
ment to launch this action is hard put to show now
exactly what the 1919 letter meant. Bearing in
mind that the land in question lies within a non-
Indian community, the description "Indian land"
used by the settler conceivably meant land outside
the Indian reserve, land on which he lived and for
which he wanted to "get" a Crown grant, an
official paper to confirm his own title. The evi
dence is that he did not pay for it, thus presumably
did not attach much value to the legal document.
I cannot accept Mutch's letter as being an
acknowledgment sufficient to extinguish the
adverse possession already established at the time,
which amounted to some 15 years in the case of
Isaac Mutch on the specific piece of land, and to
at least half a century more by his predecessors
over the area, including lot 6. Moreover the letter
was not addressed to the Province, the person then
entitled, but to a federal department.
Had the Crown moved at the time and com
menced entry proceedings, witnesses would have
been available then, including Isaac Mutch, to
determine with more certainty the import of the
letter and the period of adverse possession. It
would be manifestly unfair if one party's procrasti
nation became the other party's downfall. "Long
dormant claims have often more of cruelty than of
justice in them." 20
Plaintiff also contends that the 1958 agreement
transferring all Provincial rights and interests in
the reserves to the Federal Government closes the
prescription period against the defendant. The
20 A'Court v. Cross (1825) 3 Bing. 329 at p. 332, 130 E.R.
540 at p. 541, Best C.J.
Public Lands Grants Act, earlier referred to, pro
vides that no right to public lands may be acquired
by prescription but it cannot be inferred that the
Act will retroactively extinguish adverse possession
already established.
In short, after the creation of the Province of
New Brunswick in 1784, the Indians were granted
a licence of occupancy in 1808 by the Province,
which they neglected to exercise over the tract of
land along the Little Southwest Miramichi River.
From the 1830's to the surrender of 1895 the
Indians lost their right of occupancy through
adverse possession. The 1895 surrender could not,
of course, transfer to the Crown in the right of
Canada what the surrenderers had already lost
and adverse possession throughout that period ran
against the Crown in the right of the Province, the
person entitled, up to the agreement of 1958. The
latter agreement could not affect adverse posses
sion already established. The federal statute bar
ring prescription, the Public Lands Grants Act
could not, of course, apply to the land in question
before the agreement of 1958 and by that time
adverse possession had been established and the
rights of prior owners extinguished.
Within that tract of land along the Little South
west Miramichi River lies the present day non-
Indian community of Lyttleton wherein is located
the parcel of land possessed in 1838 by Ebenezer
Travis. From that parcel, lot 6 was admittedly
occupied by James Mutch in 1898. His grandson
Isaac built on it in 1904 and sold from it to the
defendant in 1952, 1958 and 1959, the property
now being claimed in the present information.
During that whole period, from 1838 to the date
of this information in 1973, or a period of 135
years, adverse possession has not been effectively
interrupted by any of the parties entitled to do so,
namely the Province of New Brunswick from 1838
to 1958, the Government of Canada from 1958 to
1973, and the Red Bank Band with reference to
their own rights of occupancy throughout the
period.
I therefore find that the defendant and his pre
decessors have established adverse possession on
the subject property as against anyone and I dismiss
plaintiff's action with costs.
Both parties adduced expert evidence at the
hearing with a view to establish the market value
of the subject property. In the event that my
findings in the matter become useful in further
proceedings, I find that the value of the Gilbert A.
Smith property is as follows: land and site
improvements $12,000; buildings $16,000; gravel
reserves $8,000. Total, $36,000.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.