VOL. XVI.], EXCHEQUER COURT REPORTS. 437. HIS MAJESTY THE KING, 1917 ON THE INFORMATION .OF THE ATTORNEY-GENERAL OF CANADA, May 3 PL AINTIFF; ' AND PHILORUM BONHOMME AND DAME RACHEL DAOUST, HIS WIFE DEFENDANTS. THE ATTORNEY GENERAL OF QUEBEC INTERVENING PARTY; ~ AND HIS MAJESTY THE KING CONTESTANT. Indian lands—B.N.A. Act, secs. 91 (24)409-2 -Crown grant—Construction—Advers possession. The Crown, in right of the Dominion Government,as having the management. charge and direction of Indian affairs; claimed the ownership of St. Nicholas Island as part of the Seigniory of Sault Saint Louis as conceded in the year 1680 by the King of France and the Governor of Canada to the Jesuit Order for the Indians. Neither in the grant by the King nor in that by the Governor was the island conveyed by express' words to the Jesuits. Held, (applying the rule that a Crown grant must be construed most strictly against , the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words) that the Dominion Government, as representing the ' Indians, had no title to the island in question. 2. Held, (following St. Catherine's Mi ling & Lumber Co. v. The Queen, 14 A.C. 46) that only lands specifically set apart for the use of the Indians are "lands reserved for • Indians "within the meaning of sec. 91, item. 24, of The British North America Act." 3. The evidence showed that some of the Indians residing on the Caughnawaga Reserve had erected a small shack and sown at different times some patches of corn and potatoes on the island. Held, that no title by adverse possession could be founded upon such facts, as no ownership or property can be founded upon possession of land or prescription by Indians. Corinthe v. Séminaire de St. Sulpice, 21 Que. K.B. 316; [19121 A.C. 872. 5 D.L.R. 263, referred to. 4. The island in question in this case having been the property of the province at the time of Confederation, under the provisions of sec. 109 of the British North America Act, 1867, it must be held to belong to the province subject to the provisions of 'the said section. INFORMATION of intrusion to have St. Nicholas' Island declared part of Indian Reserve.
438 _ EXCHEQUER COURT REPORTS. [VOL. XVI. 1917 Tried before the Honourable MR. JUSTICE AUDETTE, TB KING . at Montreal, April 18, 1917. V BONHOMME AND Paul St. German, DAOUST. K.C., for plaintiff; F. L. Béique,K. C., Reasons for for defendant Daoust; Chas. Lanctot, K.C., and N. A. Judgment. Belcourt, K.C., for Attorney-General of Quebec. AUDETTE, J. (May 3, 1917) delivered judgment. This is an information of intrusion exhibited by the Attorney-General, whereby it is claimed that the Island of St. Nicholas, situate in navigable waters on the River St. Lawrence, in Lake St. Louis, be declared a portion of the Caughnawaga Indian Reserve; that the possession of the island be given the Indians, and that the defendant be condemned to pay the plaintiff the sum of $1,000 for the issues and profits of the said island from June 1, 1907, till possession of the same shall have been given the said plaintiff. The Province of Quebec, on the other hand, claiming and assuming the ownership of the said island of St. Nicholas, sold the same for the sum of $400 on December 19, 1906, to the said Dame Rachel Daoust, wife of the said Philorum Bonhomme, as appears by the Crown Grant filed herein as Exhibit No. 3. The action was originally taken only as against the defendant Philorum Bonhomme, who by his plea declared the island had not been sold to him but to his wife, and asked that the action as against him be dismissed with costs. His wife, Dame Rachel Daoust was subsequently added a party defendant, The said Philorum Bonhomme has, since the institution of the action, departed this life, as appears by the certificate of burial filed as Exhibit No. 4. The defendant Daoust's grantor, the Province of Quebec, who had sold this Island of St. Nicholas to her, with covenant, intervened in the present case and took (faitet cause) upon itself the defence of the said defendant Daoust as her warrantor. The Crown, in the right of the Federal Government, as having the management, charge and direction of Indian Affairs in Canada, claims the ownership of St. -.Nicholas Island as forming part of the Seigniory of Sault Saint
VOL. XVI.] EXCHEQUER COURT REPORTS. 439" Louis, as conceded by the King of France, to the Jesuits '1 9 17 for the Indians on May 29, 1680, and under the augmenta- THE KING • V. tion thereto by the further concession of October 31, 1680, BONHROU NE AN by Louis de Buade, Comte de Frontenac, Governor and DAousT. Lieutenant General for His Majesty in Canada. Reasons for Judgment. By the first concession • bearing date May 29, 1650, a copy of which is filed herein as Exhibit' No. 1, a certain parcel of land is, so granted, together with deux isles, islets et battures—two islands, islets and flats which are situate in front thereof. It is proved and admitted that St. Nicholas Island is not opposite this first concession and among the islands therein. mentioned. _ Then by the second concession, bearing date 'October 31, 1680, a certain piece and parcel of land, immediately adjoining the first concession to the west is further granted, but without any mention in this latter grant of. any island; islet or flats. The Island St. Nicholas is opposites the second concession.' Therefore this St. Nicholas Island'obviously did not pass to the Jesuits under the last mentioned concession, unless expressly included in the same in terms specific and unmistakable. No proprietary rights in the said island passed without a specific grant to that effect. Truly, as I have said in 'Leamy 21. The King,' it would be a singular irony. of' law 'if the rights to this island could thus be taken away or disposed' of by such a grant which is absolutely silent in respect thereto. This . Island St. Nicholas did not under either 'of 'these two grants pass out of ' the hands of the King to the Jesuits for the Indians, and there is no evidence that this island was vested in the plaintiff before Confederation, or taken in any other manner within the scope of sec.,. 91, sub-sec. 24 of the B.N.A. Act, and the Crown as representing the Federal Government has no title thereto, and the land is vested in the Crown, as representing the Province of Quebec. 'Wyatt v. Attorney General; 2 Leamy y. The' King, supra; . Bouillon v. The . King.3 1 '15 Can. Ex. 189. 23 D.L.R. 249; 54 Can. S.C.R. 143, 33 D.L.R. 237.. 2 [1911 ] A.C. 489. a Post, p. 443; 31 D. L.R. 1
440 EXCHEQUER COURT REPORTS. [VOL. XVI. 1917 The trite maxim and rule of law for guidance in the THE KING construction of a Crown grant is well and clearly defined V. BONIIOM tE and laid down in Chitty's Prerogatives of the Crown,' in AND DAOUST. the following words : Reasons for Judgment. "In ordinary cases between subject and subject, the "principle is, that the grant shall be construed, if the mean- ing be doubtful, most strongly against the grantor, who is "presumed to use the most cautious words for his own advant-"age and security, but in the case of the King, whose grants "chiefly flow from his royal bounty and grace, the rule is "otherwise; and Crown grants have at all times been "construed most favourably for the King, where a fair doubt "exists as to the real meaning of the instrument. . . . "Because general words in the King's grant never extend to "a grant of things which belong to the King by virtue of "his prerogative, for such ought to be expressly mentioned. "In other words, if under a general name a grant compre- "bends things of a royal and of a base nature, the base only "shall pass." Approaching the construction of the second grant with the help of the rule above laid down, it must be found that in the absence of a special grant especially expressed and clearly formulated, the Island of St. Nicholas obviously did not pass. Had it been the intention by the second concession to grant the island opposite the lands mentioned in the same, the same unambiguous course followed in the first concession would have been resorted to, and the island would have been mentioned in the grant. A Crown grant must be construed most strictly against the grantee and most beneficially for the Crown so that nothing will pass to the grantee, but by clear and express words. The method of construction above stated seeming, as judicially remarked , 2 to exclude the application of either of the legal maxims, expressio facit cessare taciturn or ex-pressio unius est exclusio alterius. That which the Crown . has not granted by express, clear and unambiguous terms, the subject has no right to claim under a grant'. 1 p. 391-2. 2 Per Pollock, C.B., East Archipelago Co. v. Reg. 2 E, & B. 856 at 906, 7; I E. & ii 310. a Broom's Legal Maxims (8th ed. )pp. 463-464.
VOL. XVI.] EXCHEQUER COURT REPORTS. 441 The plaintiff endeavouring to show title by possession called a number of Indians who were heard as witnesses to THE KING prove possession by them, showing that the Indians of the ltorn 4 tommE Caughnawaga Reserve had always considered St. Nicholas n s'r. Island as part of the reserve. The evidence discloses that Reasons for Judgment. " some of the Indians residing on the reserve, had at times a small shack and had sown patches of potatoes and corn on the island, and it is contended they thereby acquired title by possession, (Arts. 2211 • et seq., C.C. Que.) This contention mast be dismissed from consideration, because possession of ungranted land by roaming Indians could not remove the fee from the hands of the Crown. There cannot be any ownership of any territory acquired by possession or prescription by Indians because les uns possèdent Pour les 'autres. Corinthe vs. Séminaire de St. Sulpice.' And I . further find" that no help could be found in favour of the plaintiff, in respect of the title to the said island in the Royal Proclamation of 1.763, as mentioned. at p. 70, Houston Const. Doc. of Canada, because the lands therein referred to as reserved for the Indians are outside of Quebec, and the' territory in question herein.. I n . fact they are lands outside the four distinct and separate Governments, styled respect- ively Quebec, East Florida, West Florida, and Grenada. 2 Moreover, the Indians have not and never had any title to the Public Domain. These contentions have also been considered in the St. Catherine's Milling & Lumber Co. vs. The Queen. 3 The Crown had all along proprietary right ôn these lands upon which the Indian title might have been a burden, but which never amounted to a fee. And while not desirous of repeat- ing here what was so clearly stated in the St. Catherine's case in respect of the Indian .title, yet I wish to draw attention to the fact that it was decided beyond cavil in that case, that only lands specifically set "apart and reserved for the "use of the Indians are lands reserved for Indians . within "the meaning of sec. 91, item 24, of the B.N.A. Act." See also Attorney General v. Giroux.4 The Island of St.Nicholas • never fell within the term "Lands reserved for Indians," and therefore never came within the operation of the B.N.A. Act, sec. 91, sub. sec. 24. 121 Que. K.B. 316; (19121 A.C. 872, 5 D.L.R. 263. 3 13 Can. S.C.R. 577; 14 A.C. 46. 2 14 A.C. 46 at 53-54. 4 53 Can. S.C.R. 172, 30 D.L.R. 123.
442 EXCHEQUER COURT REPORTS. [VOL. XVI. 1917 The island of St. Nicholas, as part of the lands belonging THE KING V. to the Province of Quebec at the Union, passed to the BONHOMME AND Province of Quebec, at Confederation, under the provisions DAOUST of sec. 109 of the B.N.A. Act, 1867. The rights retained to Reasons for Judgment. the federal power under secs. 108 and 117 being always safeguarded. Therefore the plaintiff has no fee in the island, and the Province of Quebec had obviflusly the right to grant the same to the defendant Daoust, as it did. It is not without some sentiment of regret that. I feel bound to find against this alleged Indian title, and I trust that the Indians, the wards of the State, will realize and understand there never existed any title giving them St. Nicholas Island. The fact that they were not prevented from frequenting it (and some of the white men as appears by the evidence did also from time to time visit the island) was indeed perhaps more referable to the grace, bounty and benevolence of the Crown, as represented by the Province of Quebec, and cannot now constitute an acknowledgment of an erroneous and unfounded right or title to the island. There will he. judgment dismissing the action with costs against the plaintiff on all issues. Action dismissed. Solicitors for plaintiff: St. Germain, Guérin & Raymond. Solicitors for defendants: Béique & Béique. Solicitors for intervenant: Belcourt, Ritchie, Chevrier & Leduc.
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.