p. 3765

to found proof of reputation. Some of the later printed or coloured maps issued by the Departments of Colonization or of Crown Lands represent the Seigniory in accordance with the respondent's contention, others adopt that of the Crown. These maps embrace large districts, if not the whole Province ; they are issued for departmental use. . . . . Territorial limits and the boundaries of wilderness grants are, perhaps more frequently than not, lacking in definition or precision of statement, and when a general map of a Province or district is in course of reparation, the attention of the departmental draftsman is not apt to be specially directed to careful consideration of the particular features or details upon which claims may depend, and sometimes, not unnaturally, particulars creep into the draft without due consideration of their use or trustworthiness. They are matters of detail, perhaps proper to he shown if verified, but not contributing to the main purpose of the work, which is not essentially concerned to verify them. These map are prepared and issued not for the purpose of establishing facts or as admissions ; they merely illustrate, and the proof must come from sources outside the maps. Mercer v: Denne (1904), 2 Ch. 534. Neither the Minister nor the Governor in Council can in the reasonable course of administration consider and conclude all the particulars or details which find place in a general map, or all the questions which, if the map import admission or proof, it might be used to determine. The map-makers of the department use the information which is available, and they in turn, no matter how carefully they execute their work, are not proof against oversight or errors, the consequence of which might be very serious if these erroneous representations are to be taken as determining the facts with relation to pending claims. It is not in this manner that the Crown domain can be alienated.”

VII. In Bidder v. Bridges, 54 L. T. (N.S.) 529, the action was to establish commonable rights over a piece of land on behalf of all the proprietors and occupiers of lands or tenements in a certain parish, the chief questions raised by the evidence being (1) whether the land in question was within the parish, and (2) if so, whether the plaintiffs had any right to maintain the action. The Ordnance map, tithe maps, and several other maps of the district, some of which had been kept in the British Museum, were tendered in evidence for the purpose of showing the position of the boundaries of the parish. Kay, J., who tried the case, held that the maps were not admissible in evidence. On this part of the case he said :

“The Ordnance map and several other maps, some of which came from the British Museum were tendered in evidence on either side. The Ordnance map excludes the land in question from the parish of Mitcham. Many of the other maps included it. In the case of the Ordnance map, it seems an investigation on the question of the disputed parish boundary was made under the provisions of the statute 4 & 5 Vict. c. 30 and subsequent Acts. No public inquiry was held. Certain men were appointed

p. 3766

by justices of the peace in the locality to point out the boundaries. Tracings of maps then produced were taken, and a statutory declaration was made by the lord of the manor of Wallington, detailing the acts of ownership which have been proved in this action, or some of them. But the maps which were produced from the British Museum were not then referred to. It was argued that hearsay evidence, and evidence of reputation is admissible to prove the position of parish boundaries (1 Taylor, pp. 541, 542), and that therefore all these maps should be received. As to the greater part of them, I am not informed how, or on what information, the boundary was laid down. None of them probably was made with the same care in this respect as the Ordnance map, and it is obvious that nothing like the amount of evidence on the question was produced for the purpose of that map which has been given before this court. In my opinion these maps are not admissible as evidence in such an action as this ; if they were, they amount to no more than a statement of the opinion of the particular map-maker upon such information as he obtained at the time.* Upon this part of the case, namely, in what parish the land in question lies, I am bound to say that the plaintiffs have not proved to my satisfaction that this portion of the common is within the vill of Mitcham, or if it were, that it is not waste of the manor of Wallington. If it be waste of the manor of Wallington, though within the vill of Mitcham, the lord of that manor would have a right to separate it from the rest of Mitcham Common, and so to exclude the plaintiffs and the other commoners claiming in right of Mitcham (Co. Litt. 122a). This is sufficient to decide the case against the plaintiffs, but so much evidence was given, and so much argument was used upon the other points raised, that I feel bound to express my opinion upon them.”

*With regard to the question of admissibility of old maps as evidence of reputation, see also Mercer v. Denne, 1904, 2 Ch. 534: 1905, 2 Ch. 538, C.A.

[1927lab]



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