LABRADOR COMPANY vs. THE QUEEN (1892).
Present : LORD WATSON, LORD HOBHOUSE, LORD MACNAUTEN, LORD MORRIS, and LORD HANNEN.
THE LAW REPORTS. HOUSE OF LORDS, JUDICIAL COMMITTEE OF THE PRIVY COUNCIL AND PEERAGE CASES. 1893, pp. 104-126. LONDON, WM. CLOWES AND SONS.
LABRADOR COMPANY . . . . . Defendants:
THE QUEEN . . . . . . . . . Plaintiff.
AND THE CROSS-APPEAL.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, PROVINCE OF QUEBEC.
Action of Ejectment—Effect of Act (18 Vict. c. 3) as to Defendant's title—Prescription—Immemorial Possession—Disclosure of Title with its Infirmities.
In an action of ejectment by the Crown, it appeared that the appellant company derived title through a grant made in 1661 by the French Government, which gave no seigneurie over the land in suit, but only a right to make establishments for hunting and fishing within certain limits ; that an Ordonnance in 1733, together with the action of the French Crown thereunder, did not create or recognise any title in the heirs of the grantee to such seigneurie ; that down to 1854 there was no evidence of either its creation or recognition by the British Crown ; but that in 1854 the Canadian Act, 18 Vict. c. 3 (amended by subsequent Acts), recognised that there was a seigneurie of Mingan, being part of the disputed land the boundaries whereof were conclusively established by a schedule authorized by the Acts :—
Held that the High Court was right in dismissing the suit as regards the scheduled lands. If a mistake had been made the legislature alone could correct it ; a court of law must give effect to the enactment as it stands :
Held, further, with regard to the claim of the company to hold the whole of the land in suit by prescription and immemorial possession, that inasmuch as it had disclosed the true root of its title, the law of prescription did not apply.
CONSOLIDATED CROSS-APPEALS from a decree of the Court of Queen's Bench (Feb. 6, 1891), affirming by a majority a decree of the Superior Court (Sept. 18, 1888).
The question at issue was as to the title of the Crown to a large tract of territory within the Province of Quebec, forming the northern sea coast of
the Gulf of St. Lawrence and extending  from Cape Cormorant at the mouth of the River St. Lawrence to the eastern boundary of the province near Brador Bay by Belle Isle Straits. The tract of land in dispute is about 450 miles long, and is of a uniform width throughout of six miles inland from the sea coast.
The facts and proceedings are stated in the judgment of their Lordships.
The Judge of the Superior Court decided that the Company had satisfactorily proved the grant of the seigneurie in question ; that they had not surrendered any portion of it except the district from the Île aux Œufs to the River Moisy in the proceedings in 1733, and that the result of such proceedings left the rights of the predecessors of the company untouched except in respect of the district surrendered. He further decided that the company and their predecessors in title had been in practically undisturbed possession of the seigneurie for more than two centuries, that there had repeatedly been a recognition of the rights of their predecessors by the Crown, both in the Maurepas correspondence, by the receipt of dues, which were only owing to the Crown on the hypothesis that a seigneurie existed, and finally by the schedule of 1864. He left open and undecided the point raised by the company that their immemorial possession and their possession for over 100 years amounted to a title. But while thus in favour of the company on the main point, that of the existence of the seigneurie, the judge was in favour of the Crown as to what constituted its eastern boundary.
The Court of Queen's Bench affirmed the judgment of the Superior Court, but solely upon the ground that the Crown was bound by the recognition of the existence of the seigneurie contained in the seigneurial Acts, and that as against the company the schedule of 1864 was binding as to the eastern boundary of the seigneurie.
Rigby, Q.C., Abbott, Q.C. (of the Canadian Bar), and Tyrrell T. Paine, for the Labrador Company, contended that the Courts below were right, so far as they held upon the evidence that the company had proved the existence of the seigneurie in question. They referred to the evidence as shewing an original grant  thereof by the French Government to the appellant's predecessor—a subsequent recognition of its existence first by the French and afterwards by the British authorities, and that the rights thereunder, so far as they were asserted in the present suit, had not been surrendered.
With regard to the points of law involved, they contended that the majority of the Court of Queen's Bench were right in holding that the statutory recognition of the existence of the seigneurie, by the Acts of 1854, 1855, and 1856, related to the terra firma of Mingan, and bound the Crown. The error was in holding that the schedule of 1864 definitely settled the question of the eastern boundary. In the case of an unsettled seigneurie, which the terra firma of Mingan was, such schedule had no effect whatever except to fix the amount of the difference in value of the dues occasioned by the change from seigneurial tenure to that of franc aleu roturier.
Two classes of seigneuries are dealt with by the Acts, settled and
unsettled ; in other words, seigneuries in which there had been subinfeudation, and those in which there had not. In regard to settled seigneuries it would be necessary to ascertain the difference in value of the dues not only between the Crown and the seignior, but also as between the seigneur and his censitaires, to whom the land was conceded and by whom it was settled (see sect. 7, sub-sect. 4, of the Consolidated Statutes of 1861, c. 41). A “ censitaire ” is defined by sect. 8 to be “ every person occupying or possessing any land in any seigneurie with the permission of the seigneur or from whom the seigneur has received rents or other seigneurial dues in respect of such lands.” In the case of lands held by censitaires, but only in such case, the Commissioners were directed to ascertain the extent and nature of the lands held by them (see sect 7, sub-sect. 5). No such direction was given in the case of seigneuries : indeed it was by sect. 9 expressly enacted that for the purpose “ of making the schedule of any seigneurie the boundaries thereof shall be deemed to be those actually possessed by the seigneur although all or any part thereof may be in “ dispute.” Neither as between seigneur and censitaire, nor as between Crown and seigneur, nor as between seigneur and adjoining seigneur, was any jurisdiction  as to boundaries given to the Commissioners, and it is expressly stated in sect. 9 that for the purpose of making the schedule of any seigneurie “ the boundaries ” of a seigneurie are to “ be deemed to be those actually possessed by the seigneur although all or any part thereof may be in dispute.”
Further than that, as regards unsettled seigneuries, the change of tenure was effected eo instanti by the passing of the Act of 1856, and there was no necessity for settling boundaries by a subsequent schedule. Consequently, those who prepared the schedule of 1864 acted without jurisdiction in fixing the eastern boundary of Mingan at the River Goynish, and disregarded the direction of the Act to adopt the boundaries actually possessed by the proprietors ; and a schedule so drawn is not binding on the appellants. [LORD WATSON :—How can a court of law go behind what has been done by the Legislature ?]
It was also contended that the company and its predessors in title had been in possession, in good faith, for more than 100 years, of the lands in suit, with the knowledge of, and without the interference of, the Crown. Such possession is equivalent to, or is sufficient evidence of, a title even against the Crown; especially in the case of wild and unsettled lands, which under the feudal law were alienable, although forming part of the domain of the Crown. Such possession is evidence of a grant by the Crown of the whole of the property in dispute. [LORD WATSON :—Is there any evidence of possession which is inconsistent with a licence ? Can you use possession for any other purpose than to explain the original grant ? Can you prescribe contrary to the title which you produce and rely on ?] The authorities cited upon the question of prescription were the Edit de Moulins de Février, 1566 ; Bosquet, vol. ii. pp. 90 and 96 (2nd ed. pp. 112 and 120) ; Bacquet, Troisiesme Traicté, partie iii. ; Du Droit de Déshérence, ed. 1664, p. 170, ch. 7, No. 8, and p. 177 ; Bourjon, Droit Commun de la France, vol i. p. 183, ed. 1770,
pt. i. sect. 2, ss. 23 and 24 ; Tit. iii. chap. prélim. sect. 1, ss. 3, 4, and 5 ; Tit. xii. c. 4, s. 3, p. 1093. Dalloz, Jurisprudence, 1838: première partie, Cour de Cassation, p. 166 ; ditto, 1849, deuxième partie, Cour d'Appel, p. 149 ; Pothier's Works, ed. 1827, par Dupin, vol. viii. pp. 517, 534, sects. 278-284, 288 ; Hervé, ed.  1785, Théorie des Matières Féodales et Censuelles, vol. i. pp. 335, 397, which is an authority that there may be prescription of a seigneurie against the Crown ; 5 Guyot, Tr. des Fiefs, p. 5, citing Dumoulin, vo. Dénombrement, sect. 7, N. 24 ; and 5 Guyot, c. 7, p. 157. See also sect. 2213 of the Civil Code, on which it may be said that a prescriptive censitaire is not covered by it, and also that prescription, having begun to run while the old law was in force, was governed thereby.
Sir Horace Davey, Q.C., Laflamme, Q.C., and Belleau, Q.C. (both of the Canadian Bar), and Gore, for the Crown, contended that under the grant of 1661, the company's predecessors did not derive title to any territory upon the mainland, but only a right to establish stations thereon within the limits and for the purpose stated therein. The effect of the judgment in 1733 was that the grant was held not to be binding on the Crown, and in the proceedings the grantee surrendered to the French Crown all claims thereunder. Upon the cession of French Canada to England the claims of the grantee were considered and rejected, and nothing has happened since to preclude the present claim of the Crown. The evidence entirely negatives any possession or occupation of the lands in dispute except for the limited purposes mentioned in the grant. Nor were there any acts of ownership exercised by the appellants' predecessors which were not referable to the terms of the grant.
As regards the two points of law raised by the appellants, it was contended, first, that no title to any part of the territory in dispute had been obtained under the Act of 1856 and the schedule of 1864. Reference was made to the three Acts of 1854, 1855, and 1856, and to c. 41 of the Consolidated Statutes, 1861, which consolidated them. In the Act of 1856 there was nothing to shew what seigneurie was referred to in sect. 10 under the name of Mingan. At that time the seigneurie of the mainland of Mingan had, as was held by all the judges of the Court of Appeal, no existence. The only seigneurie known by that name was that of the Isles of Mingan, which latter seigneurie had never been settled or conceded, and, therefore, did not come within the terms of sect. 10. The evidence shewed that the schedule had  been prepared by the chief clerk to the Commissioners, who acted on erroneous information, and had been signed by the Commissioners without any steps being taken to verify either the title or extent of the seigneurie. Neither the Crown nor any of the parties interested had any notice of the contents of the schedule nor any opportunity of being heard before it was published. An erroneous statement in an Act, a reference to a non-existing state of things, does not give existence thereto, unless it appears from some part of the Act that the object was to settle the point in a particular way. Reference was made to Municipal Corporation
Act, 5 & 6 Will. 4, c. 76, s. 6, to Schedule A, where Gateshead is mentioned. But in Rex v. Greene*, it was held that Gateshead was not a municipal corporation, and that its mention in the schedule was a mistake. See also Rex v. Haughton.† The Act cannot create a seigneurie contrary to the fact, there not being any intention so to do.
With regard to the other point, viz., the claim of title by prescription or immemorial possession, it was contended that no title as against the Crown could be acquired in that way. Art. 2213 of the Code is not new ; see Pothier, Bugnet's ed. vol. 9, pp. 416, 421, sects. 278-288. See also art. 2208 of the Civil Code, according to which no one can prescribe against his title. The title relied upon by the company binds it, and cannot be altered by any length of possession under it unless it is shewn that acts were done with the intention of altering the rights as conferred by the grant. Reference was made to Dunod, Traité de Prescription, part i., c. 8 ; Merlin's Répertoire, Title Prescription, vol. 24, pp. 142, 145. The title explains the possession ; the quality of the latter will not be changed in the absence of a clear proof of intention so to do : Troplong, Prescription, vol. ii., p. 47. The title adduced by the defendants being manifestly insufficient, no new title has been created either by possession or by recognition by the Crown. Reference was also made to art. 2203 of the Civil Code, which specifies numerous restrictions upon the power of prescribing.
Rigby, Q.C., replied .
1892. Nov. 19. The judgment of their Lordships was delivered by
LORD HANNEN :—
The subject-matter of these appeals is a tract of country on the northern shore of the Gulf of the St. Lawrence, extending from Cape Cormorant to the Strait of Belle Isle, a distance of more than 400 miles, with a depth of six miles.
The Labrador Company is in possession of this territory. The Attorney-General for the province of Quebec, on behalf of Her Majesty, seeks to recover it from the company, who claim title to the whole of the land in question under a grant alleged to have been made in 1661 to one François Bissot by “ the Company of New France,” deriving its powers from the Crown of France. The Labrador Company also claimed a title by prescription and immemorial possession. In answer to this claim the Attorney-General denies that the alleged grant of 1661 gave a title to the land in question, or that a title by prescription can be acquired against the Crown. He also alleges that the grant to Bissot was revoked by the French Crown and abandoned by Bissot's successors in title. The company further rely on certain alleged acts of recognition by the Crown, which they contend
* 6 Ad. & E. 548. † 1 E. & B. 501, 515.