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HATDEN, PLAnmnAiiD Apfeu:.aiit, AMD THE CANADIAN J»AOIFIO RAILWAY COMPANT, SIB DONAIiD'4. SMITH, AND KIGHABD B. ANGUS. DrnHDANTB AMD BUPOMDKMTB. CA SE ON APPEA L J. p. WALLS, SouorroR fob PLAnmFF. DRAKE, JACKSON ft HELMCKEN, SouorroBs for Detemdajitb. I 8 I TIOTORU, B. 0. JA8. A. COHEN. PRINTER. FORT STREET. 1887. ! I « i 1 'm'^jmmjmmmmjmmmrjmMm>'jmmm'^^ HK -• M . /si ■ft ■I *•«! .M ' ,t«L , i^^i».iu.iv ';..'j"! ■ :'^':'T^-^'"^'' •: ."7" IN THE Mfvmt fsirt if irtttil filirtta, On Appeal to the Full Court. 10 BETWEEN I8AA0 J. HAYDEN, Plaintiff and Appellant, AND THE CANADIAN PACIFIC RAILWAY COMPANY, SIR DONALD A. SMITH, AND RICHARD B. ANGUS, Defendants and Respondents. CASE ON APPEAL. 20 J. P. WALLS, SOLIOITOB FOB PLAINTIFF. DRAKE, JACKSON & HELMCKEN, Solicitors for Defendants. 3(1 viotoru, b. c. JAS. A. COHEN, PRINTER, FORT STREET. 1887. INDEX. Statement Statement of Claim Statement of Defence Reply Order of Divisional Court , Documentary Evidence Sir M. B. Begbie's Notes of Evidence. •• Judgment Notice of Appeal Certificate of App«al being entered . . Page 4 5 . 6 . 8 . 8 . 9 .13 .18 .23 .23 mui2i |(n the .^uprem? <|purt of ^riti«li ^alumbia. Between On Appeal to the Divisional Court. ISAAC J. HAYDEN, Plaintiff, AND THE CANADIAN PACIFIC RAILWAY COMPANY AND SIR DONALD A. SMITH and RICHARD B. ANGUS, Defendants. 10 20 This i8 an appeal by the Plaintiff from a judgment of the Honorable the Chief Justice rendered on the 8th of August, 1887, in favor of the Defendants. The following are the pleadings: STATEMENT OF CLAIM. 1. The Plaintiff is a trader icsicUng at Vancouver, in the Province of Britisli Colum- bia. 2. About the 10th day of March lb70, the Government of British Columbia survt^ypd a plot of land in New Westniinsfi distr'j^t, British Columbia, known as Granville town- site, included in which survey is the propert} aow claimed in this suit, and which is known and described according to such survey 10 Block '3 Granville. 3. Some time after such survey, !he lots in the said townsite belonging to the Govern- ment and undisposed of were put up for s'\le at the upset price of $200. 00 Hach and the plaintiff applied to the Government to purchase thv said Lot 10, Block 3, Granville, and afterwards and long before the visit of Mr. W. C. Van Home to the Province of British Columbia, hereinafter mentioned, the Plaintiff located upon the said lot in >\ bona tide manner and made substantial improvements thereon. 4. On or about the 4th day of August, 1884, Mr. W. C. Van Home, the Vice President of the Canadian Pacific Railway Company, visited British (Columbia upon business rela- ting to the Company's affairs, and it was soon afterward agreed between the Company and the Government, that in consideration of the Company extending the line of the Canadian Pacific Railway to Coal Harbor and English Bay, the Government would grant to such persons as the Defendants Company might appoint, certain tracts of land, including all of the lots in the town of Granville, which should be the property of the Government. U) 20 5. At the time of such agreement, the Plaintiff had bona fide located upon the said Lot 10, Block 3, Granville, and claimed the right to purchase the same, and before the consumation of the sa'd agreement between the Government and the Canadian Pacific Railway Company relative to the grant of the said lots, and as a part of the terms in relation thereto, the Company agreed that if the Government would grant them the said land, they, the Company, would sell to each locatee, .vho should bona fide have located himself upon any of Ihe said lots and should have made substantial improvements there- on prior to the visit ot Mr. W. C. Van Home, his respective lot at $200.00 and the Defen- dants through the said Mr. Van Home and one Henery Beatty gave a written authoiity to the Hon. Wm. Smithe, the Chief Commissioner of Lands and Works for the Province, • "^ dated January 3l8t, 1885, to inform all such persons as should be found to have located in a bona fide manner, previous to the date of Mr. W. C. Van Home's visit, upon any of the said Granville lots, that the Company would sell to each locatee his respective lot for 1200.00 6. By Letters-patent under the Great Seal of the Province of British Columbia, and dated the 13th February, 1886, issued in conformity with the agreement hereinbefore mentioned, Her Fajeuty granted and conveyed to the Defendants Sir Donald A. Smith and Richard B. Angus (inter alia) all and singular the said lots in the said Town of Granville, the said Sir Donald A. Smith and Richard B. Angus having been appointed by the Defendants' Company to receive such grant in pursuance of the said agreement. 6 7. In ftccovdance with the said written authority the said William Smitlio bofoio tlie commencement of this suit did inform the Plaintiff in writing that the Coiop.iny woahl sell to each of such persons as should be found to have located in a bon.i-fido miinucr upon lots at Granville previous to Mr. W. C. Van Home's visit, and who had made Substantial improvements thereon, his respective lot at 8200.00. Since the said written authority to the said Wra. Smithe, the Plaintiff continually resided upon the said lot and in his dwelling house erected thereon until the 14th day of June, 1880, when iiis house WHS bnrned down. 8. The Phiintiff before the commencement of this suit tendered to the Defendants the sum of $200, and also a form of conveyance of tho said lot 10 ready for execution, out the Defendants and each of them refused to accept the said sum or to execute the said conveyance, and the Plaintiff hereby submits to pay the said sum of !?200 to tho Defendants. 10 9. The former town of Granville is now known as " Vancouver," the name havini; been chaugdd by Act of the Legislature passed at its last session. The Plaintiff claims : 1. That the defendants Sir Donald A. Smith and Richard B. Angus may be ordered to convey the said hereinbefore described premises to the 20 plaintiff, and that the defendants, the Canadian Pacific Railway Cqmpany, may be ordered to release to the plaintiffs all their title and interest in the said hereditaments. 2. Such further and other relief as the nature of the case may require. The plaintiff proposes that this action should be tried at Victoria. Delivered this 22jid day of January, 1887, by J. P. Walls, of Langley street, Victoria, Plaintiff's Solicitor. To Messrs. Drake, Jackson & Helmcken, Defendants' Solicitors. 30 STATEMENT OF DEFENSE. (Amended by Order dated, the 26th day of April, A. D., 1887.) 1. The defendants do not admit the statements contained in paragraphs 3, 4, 5, 7 and 8 of the Statement of Claim, or any of them. 2. The defendants say that tho following letters, and no others, passed between Mr. H. Beatty and the Hon. Wm. Smithe, Chief Commissioner of Lands and Works. H Lands and Works Department, Victoria, B. C, January 31st, 1885 Sir, — Eleferring to our conversation upon the subject of persons who bad located upon lots in the townsite of Qranville previous to the date of Mr. Van Home's visit to that place, I have the honour to request that you will, on behalf of the Canadian Pacific Railway Company, authorize me to inform all such persons as shall be found to have located in a bona fide manner previous to that date upon lots there, and who have made substantial improvements thereon, that the Company will sell to each such locates his respective lot at ( $200) two hundred dollars. So far as I have information the num- ber will not exceed a dozen. I have etc. Wm. Smithe, Chief Commissioner of Lands and Works. Victoria, Slst January, 1886. Dear Sir — I have the honour to acknowledge the receipt of your letter of this date regarding bona ' 1e occupants who have made substantial improvements upon lots ia the town plot of Gr. lie previous to Mr. Van Home's visit. In the conversation, I had the pleasure of holdi^^, with you on this subject, it was understood 1250 would be considered under the circumstances, a fair price to fix on these lots; but, if since the date of our con- rersation, you have considered the question more fully, and think the figure excessive, I am willing on behalf of the Company to accede to your wishes and have the price fixed at 1200. I would point out, however, that it may be necessary to alter the plan, and any arrangement made with these people should be on the understanding that, in the event of this happening, there would be no opposition raised on their parts, provided the Company granted them lots as well situated as those they now occupy. Ihavsetc, Henry Beatty. 10 20 On behalf of the Canadian Pacific Railway Company, I agree to the within arrangements. W. C. Van Horne, Victoria, 10th of November, 1885. Vice-President. ^ And these letters constitute the alleged agreement referred to in the 5th paragraph of the Statement of Claim. 3. And the defendants deny that the said Honorable William Smithe was their agent authorized to bind the said defendants in respect of the land in the Pleadings mentioned. 4. And the defendants deny that there was any contract in writing made between the defendants and the plaintiff with respect to the sale or purchase of the said lund by them- selves or by anyone on their behalf. p 8 5. And the defendants say that Section 4 of the Statute of Frauds has not been com- plied with . 6. The defendants are in possession of the said land by themselves or their agents. Delivered this 27th day of April. A. D. 1887, by R. E. Jackson, Defendants' Sol- icitor. To J. P. Walls, Plaintiff's Solicitor. 10 REPLY. The pluiutiffjoins issue with the defendants upon their defence, dated the 23rd day of March, A. D. 1887. Delivered by J. P. Walls, Plaintirs Solicitor, Langley Street, Victoria. To Messrs. Drake, Jackson & Helmcken, Defendants' Solicitoi-s. 20 ORDER OF THE DIVISIONAL COURT. Present the Honorable Mr. Justice Crease. «« '« " MoCreight. II << «' Walkem. II II 80 Tuesday, the 26th day of April, A. D. 1887. Upon motion this day made by Mr. Drake. Q. C, of counsel for the above named defendants, by way of appeal from the order made herein by the Honorable the Chief Jus- tice on the 2l8t day of April inst., upon opening of the matters and upon hearing Mr. Theodore Davie of' counsel for the plaintiff and upon hearing what was alleged by counsel aforesaid, 9 1. This Court doth order that the said appeal be allowed and that the said order resflinded. 2. ThiK Court doth further>rder that the defeodauts be at liberty to amend their sUtement of defence herein as they may be advised, but the defendants are not to be at liberty to raise want of authority in W. C. Van Home or to raise any other defence of ultra Tires. i 3. This Court doth further order that the defendants do deliver their amended stiite- ment of defence by 12 o'clock noon, of Wednesday the 27th inst. 4. This Court doth further order that the plaintiffs may be at liberty to amend their i(j Statement of Claim as they may be advised. 5. This Court doth further order that the defendants do pay to the plaintiff the costs of their application to amend before the Honorable the Chief Justice and that the costs of and occasioned by this appeal do abide the result of this action. By the Divisional Court. James C. Prevost, Begistrar. The case was tried before the Chief Justice and a jury on the 8th July, 1887, when the only point remaining and submitted to the jury was whether the plaintiff was a bona fide occupant so as to bring himself within the meaning of the correspondence. The following verdict was returned : '• The plaintiff was a bona fide occupant and had made substantial improvements on the land prior to Mr. Van Home's visit on the 4th of August, 1884." The plaintiff afterwards moved for judgment. The Chief Justice gave judgment for the defendants, and the following are the reasons for such judgment: THE FOLLOWING IS THE DOCUMENTARY EVIDENCE: To the Honorable Chief Commissioner of Lands and Works and Members of the Executive Council of British Columbia. We, the undersigned, citizens of Granville, New Westminster district, respectfully represent to'your Honorable body that those who have taken possession of town lots in Granville, and have made improvements, built houses, etc. , with the express understand- ing that they 'would be allowed to purchase them at a fair valuation when placed in the market by either the Dominion or Local Government. 20 30 I t [ 10 We, therefore, now implore executive clemency in their behalf that they may now be shown that consideration that they were formerly led to expect. And respectfully request that they will be allowed to purchase them on fair terms. And your petitioners as in duty bound will ever pray . Joseph Griffith, William McBriile, John M. Stewart, Alex. J-hnston, J. W. Gil- lespie, Ohas. A. Coldwell, Arthur W. Sullivan, Alfred Pleace, Simeon Fraser, George W. Preston, John Harper, John B. Mclnnes, E. McKendry, Jos. Mannion, Harry Eem- law, Edward Gold, Thos. Fisher, Charles Sullivan, John MoGre^'or, Phillip Sullivan, J. J. Hayden, Wm. Maahiter, Colin C. Ralston, John Angus, A. H. Ryan. John Jackson, Adam Cladworthy, W. A. Lunn, Nelse Hjorth, E. H. Coleman, Alex. Merrifield, Colvert 10 Simson, R. H. Alexander, Geo. Gregory, Peter Codiner, Heury Frost, Adam E. McCarty, B. W. Ward, A. J. Mouatt. Victoria, B. C, February l-3th, 1885. Gentlemen . — In reply to your petition, received at the L-\n(\H and Works Office here, on the 29lh December last, I have the honor to inform you that I have arranged with the agent of tlie Canadian Pacific Railway Company that bona fide settlers upon town lots at Granville who have substantially improved their lots and who located previous to June, 1884, shall get their respective lots at ($200) two_ hundred dollars each. I have the honor to be, Gentlemen, 20 Your obedient Servant, Wm. Smithe, Chief Commissioner of Lands and Works. Messrs. Griffith, McBride et. al. Granville, B. C. The Chief Commissioner of Lauds and Works to Mr. Beatty. Lauds and Works Department, Victoria, B. C, January Slst, 1885. Sir, — Referring to our conversation upon the subject of persons who had located upon lots in the townsite of Granville previous to the date of Mr. Van Home's visit to that place, I have now the honor to request that you will, on bthalf of the Canadian Pacific Railway Company, authorize me to inform all such persons as shall be found to have located in a bona fide manner previous to that date upon lots there and who have made substantial improvements thereon, that the Company will sell to each such locatee his respective lot at ($200) two hundred dollars. So far as I have information, the numbnr will not exceed a dozen. I have, &c., Wm. Smithe, Chief Commissioner of Lauds and Workp. 30 11 Mr. Beatty to the (^hief ("omniissiotier f»f Lands and Works. Vict(.riii, B. C, 31st Jammry, 188*). Dear Sir, — 1 have the huuoi' to acknowledge the receipt of your letter of thin date, regarding bona fide occupants who made substantial improvements on lots in the town plot of Granville previous to Mr. Van Home's visit. In the conversation I had the pleasure of holding with you on this subject, it was understood that $250 would be considerfid, un- der the circumstances, a fair price to fix on these lots; but if since the date of our conver- sation you have considered the question more fully and think that figure excessive, I am willing, on behalf of the Company, to accede to your wishes and have the price fixed at $201' . I would point out, however, that it may be necessary to altsr the plan, and any ar- rangement made with these people should be on the understanding thit. in the event of this happening, there would be no opposition raised on their part, provided the Company granted them lots as well situated as tho.se they now occupy. I have, &c., Henry BkatI'y. . On behalf of the Canadian Pacific Railway Company, I agree to the within arrangement. W. C. Van Horne, Victoria, 10th November. 1885. Vice-President. 10 2l» Victoria, B. C, October 9th, 188(). Hon. Wm. Smithe, Chief Commissioner of Lands and Works, Sir, Referring to the official papers relating to the transfer of the Coal Harbor property to the C P. R., it appears that as a basis of the negociations, the Company agreed to recog- nize the claims of bona fide squatters upon the Granville townsite by selling to each squat- ter who should have made bona fide improvements upon his lot, such lot at the price of $200. By the correspondence, the Company authorized you t:) inform all such persons as should be found to have located in a bona fide manner upon lots in Granville previous to Mr. Van Home's visit to that place and who should have made substantial impro/ements thereon, that the Company would sell to each such locates his respective lot at $200, and that so far as you had information, the number would not exceed a dozen. It appears that the number of really bona fide squatters is about correct, one of whom is my client. Mr. I. J. Hayden, who is fully entitled as a bona fide locatee under the bargain with the Company. The Company, however, have so far refused to recognize the understanding with you, and I now beg respectfully to request that you will state in writing to my client or to my- self, that the Company will sell his location (being Lot 10, Lot 3) to him for the sum of $200. I have the honor to be. Sir, Your obedient Servant. J. P. Wall*. ;jo 12 Victoria, 13. C, October 12tli, 1886. Sir, — I have the honor to acknowledge the receipt of your letters of the fltli instimt, requesting on hehnlf of certiiin claimants of lots at Granville. That thn Provincial OovernmeDt will procure for them the right to purchase from the Canadian Pacific Rail- way Company the respective lots they claim at that place for the sum of $200 each. lu reply, I beg to say that I am comroauicating with the iiailwuy Company upon the Buhjeot of the Granville squatters' claims i;euerally. I have the honor to be, i\it, Your obedient Servant, Wm. Smithe, Chief Commissioner of Lands and Works. J. P. Walls, Esq., Victoria. B. C. 10 Victoria, B. C, October 19th, 1886. To the Honorable Wm Hmithe, Chief Commissioner of Lands and Works, Sir, — I have the honor to acknowledge receipt of yours of the 12th instant in answer to 20 mine of the 9th instant, on behalf of certain claimants of lots at Granville. I desire on behalf of my clients that ygu will inform them in wiitiug that you are authorized by the Canadian Pacific I'ailway Company to inform all persons who had loca- ted upon lots in the towusite of Granville previous to the date of \Ir. Van Home's visit to that place, as shall be found to have located in a bona fide manner, previous to that date, upon lots there, and who have made substantial improvements thereon, that the Company will sell to each such locatee his respective lot at (§200) two iiundred dollars. As I have been this day informed by telegram, that the Company are dealing with one of the lots upon which there is a bona fide settler, who has made substantial improvt- meuts, I must respectfully request an early answer as possibl«. ^ Yours truly, J. P. Walls. 30 Victoria, B. C, October 20th, 1886. Sir,-- I have the honor to acknowledge the receipt of your letter of yesterday, iu reply to mine of the 12th iust., upon the subject of the ulloged I'laims of your clients, to lots on the old townsite of Granville, under the arrauHoment nutered into between the Govern- ment and the Canadian Pacific Bailwa^ Cuinpauy, by which persons who had locited upon lots there previous to the date of Mr, Van Home's visit to that place and who had 13 made substantial improvements thereon are to get from the Company their respective lots ut $200 each. In reply, I beg to state that I am not in a position to say, whether your clients have or have not done what is requisite lO entitle them to receive a grant of the lots which they claim under the agreement, nevertheless the agreement is in full force, and till parties who have complied with its provisions will be entitled to any benefits accruing to them there- under. The Company have forwarded to me a list of chiiras which they have allowed after investigation, but your clients names do not appear thereon. I have not been informed upon what evidence the claims sent in have been allowed or disallowed and I have noti- fied the Company that I will require more data than has been furnished to me, before I can determine whether the agreement has beeniJcarried out on their part. I have the honor to be. Sir, Your obedient servant, Wm. Smithb, Chief Commissioner of Lands and Works. 10 notp:s of evidence. (As taken by Sir M. B. Begbie, C. J.) 20 Isaac J. Hayden sworn : - I am the Plaintiff". I reside at Vancouver, it has been my constant residence since the first of November, 1884, on Lot 10, Lot 3, till the fire of June, 1886. 1 applied to the Government for that lot on the twenty -fourth of February, 1881. Sanderson was my agent, he commenced to live in that liouse in June, 1881. Before the first of April, 1881, I think some improvements were made in clearing and building to the value of $15'. At the time of the fire, a wliite man, his wife and two children were living in that house, Sanderson lived there during the summer. On the first of November, 1884, I went in myself and stayed there until April, 1885. I was sick all the time; I seldom left the house, except on one or two oociisions, I came to Victoria for medical advic«. On the fourth of August, 1884, Van Home cirao over. I heard of the arrang'^ment; b'twien Smithe and Van Home. That urraugement was dated the fourth of August, 1884, as I understood. An inquiry as to persons who had loc;it jd wm held in April, lS8tJ. I attended before i\f r. Corbould. Thai d had been previous inquiry, not exactly an inquiry, but some investi- gation. In April, 18S6, tiie inquiry was held by Corbould. There had been a prior in- (juiry before a committee of the Provincial House of Assembly. Mr. Cli irles Wilson 30 14 was chairman. That wns in Januiu y, 1835. I prose uteri my claims to that committee. Bmithe was there. Immediately after attending thut committee, 1 made other impiovo- nients. The house cost me over $800, and grubbing *100 more, in all $90i). Question. — VVliat did Mr. 8mithe tell yon ? Objected to. Mr. Theodore Diivie for the Plaintiff: — Mr. Smithe tells him that the Company will accede to yonr wishes. Chief Ju.4TIoe:— Th.it only goes to the reduction of the purchase money. Let tlioso documents go to the jury for what they are worth. The question appai-ently will bn whether there was any agreement which the present Pliintif! could enforce agiinst tliu Company. 10 Witness continuing: — I was aware of this letter and understanding when I went to the expense of 1900. I should certainly not have gone to tint expeusa if I hud not known of the undarstatiding. After completing the $900 worth of improvements, there was an investigation by the company. [ was notified to attend to put in a statement of my claim to Mr. Corbould. He was acting for the Company. I complied with the notification and all the papers I had sent in were made out over again and I sent them in to Mr. Corbould. He told me in the presence of the late Mr. Hughes and of Mr. Robson that he had repor- ted favorably to my claim. A. few days after that I had a notice from Mr. Abbott st.iting that he had examined my ])apers and found that I had no claim. (Tjetter produced when it appeared that Mr. Abbott had not professed to have held any examination himself, but that the Plaintiff's claim had been examined and disallowed.) He at first promised to enquire himself but ultimately he said he had no time. Then I offered to leave it to Mr. Hamil- ton. Mr. Abbott said that was very fair, I asked when the inquiry would be held. He said in the first of next week. He promised to tell Mr. Hiimilton. Mr. Hauiiltou told me he would examine into the matter if Mr. Abbott told him to do so. I wiiited five or six weeks. At the end of that time, I tendered $200, that is Mr. Walls did for me. and then I commenced this action. I am not now living on the lot. I put some lumber on the lot after the fire, thinking everything was settled. The lumber is still there. My former house was not insured. I remember that petition sent in to Mr. Smithe in Decem- ber, 1884. (Petition produced, not dated, but the answer of JMr. Si..ithe, dated the thir- teenth of Februai'y. states the petition was received on the twenty-ninth of December 1884.) Mr. Drake objected to either the petition or the answer going in to the jury. 20 Chief Justice: — 1 think they are admissable. :{•) Note —The petition was read accordingly. It was signed by Griffiths, McBride aiid others, thirty-nine in all, among whom is the Plaintiff. Witness continuing.- -Cross examined by Mr. Drake. In February, 1884, I was boarding at the hotel in Granville. I am a miner. I did no (mill) work myself, I em- ployed Hjorth. I was about to return to the mines. 0. C. Ross was my agent to see that the house was built. I wished to have a house to live in the next winter. I am now a trader in Vancouver. I went with Ralston and showed him the lot, wo had a maj) to go by. It was rather hard to find the exact boundaries. I thought we had struck the right lot. I left about the twenty-*" jcond of February, 1884. In the previous week, I had iustruoted Ralston. I did not return till the last day of October, I got $5 rent. 1 IG Sanderson whs not ray agent, although T said ho was in my exfttnination in chief. He went in as my tenant. I do not know of my own kno.vledge when Van Home came to Vancouver, I was not there at the time. I had no survey made of that lot. Ralston claims Lot 9, the adjoining lot. I do not thiuk that he claimed to hold his lot oa the score of the iraproTements pla(!ed on my lot. I know that ray house was placed on the divid- ing Hue. I know that he doe-i not claim to hold by reasou of my house. My house was not put on the boundary line purposely. I thought it was four or five feet within it. I had paid Kalston $150 in gold coin before I left. He did not give me an account but showed me the place wiien I returned. Ralston may have lived in that house during the following winter 1884-S.5. I and Mashiter lived togethnr when I came down on the first of November, 1884. We lived together all winter. The new building of !i?800 was put up in December, 1885, and January, 1886. Muir lived in the old house, I in the new one. I know that Ralston claims the adjoining lot. I lived in the old house till April, 1885, then went logging. Different parties lived in the house while I was away, when I return- ed, I lived in it. I do not kuow as a fact now to whom the land belongs, I supposed that it was to be the property of the G. P. R. when they had fulfilled their terms with the Government. My house encroached on Lot 9 about four or five feet. It was not inten- tional. Ralston had a house of his own on Lot 9. Samuel Phipps sworn :— I am now and was in December, 1884, Clerk of the Records in the Land Office. This petition was received on the twenty-ninth of December, 1884. Mr. Smithe's letter of the thirteenth of February, 1S85, is the answer to it. CoNLiN C. Ralston sworn :— 1 have not been much at Vancouver since last autumn. I was there in February, 1884. I remember the T'laiiitiff residing there. He left for the mines some time at the end of February or the beginning of March, 1884. He had located on Lot 10, Lot 3. I had also located a lot there. Tiie upset price in the front of the townsite of Vancouver was $100. farther back $50. These were Government lots. That was the price at which they had been sold. The application had been made tor the purchase. When Hayden left he gave me $150, telling me to pat on improvements. I cleared the lot to some extent and put up a house. I gave the job to another man. I spent very nearly, I think the whole $150. I commenced building some time at the end of Febniary. Presently San- derson came along and wanted to have it to rent. I think that would be in May. I charged him three dollars and a half a month. I think he paid me two months rent. He was working in ii logging camp. I er TuTTLii, Carpenter, sworn: — I remember the fire of June, 1886. I knew the house erected by Hayden. I had nothing to do with building it. I have been through the house twice. I should think seven hundred or perhaps seven hundred and fifty dollars was the actual cost. It was a plain building. I do not remember the exact dimensions. It was papered and painted inside. I do not think it was painted outside. Not cross-examined. 10 20 John. J. Ikwin, carpenter, sworn: — I remember the tire of the fifth of June, 1886. I have seen the house. I never was inside. It might have cost eight hundred or eight hundred and fifty dollars. John Patmobe Walls sworn: — In October, I was Solicitor for the plaiutiflf. I wrote to Mr. Smithe on his behalf. On the twenty-fifth of October, 1886, I tendered a conveyance and the sum of $200 cash to Mr. Abbott, the manager of the C. P. li., in Mr. Helmcken's presence. Mr. Abbott gave no answer. Mr. Helmcken spoke and said that he refused the tender for the present, that the matter was under consideration and declined to receive either the monev or the document. 3U By Mr. Drake:— I tendered this $200 and the conveyance on behalf of Hayden. I absolutely tendered him the money and asked him to send the deed for execution, by the company. I did not tender to him for his signature. I do not know of my own knowledge if Mr. Abbott is the agent of the company for. that purpose. My other two clients were Hjorth and another. I put three tendera in of $200 each. The money was in gold and notes of the Bank of British Columbia. w 1 S41 17 FOK THE DEFENCE. 20 Jonathan Miller sworn : - I am the Postmaster nt Vancouver. I lived in Granville before 1884, ever since 1871. Previous to 1884, there were general reports and rumors that the railway would perhaps come down to Vancouver. I know the plaintifif'e lot. I saw it in 1884 and many times up to the present. I remember a number of shanties just in that location. This was not in the original map, but it was surveyed in 1874 into town lots for the Government. There was no map ever came out of thrit aurvey. The shanties are all much of the same character. They were about twelve by foiirtaen feet. Lumber is worth $10 a thousand. l'> That would cost $35 or $40 each at the outside. I have known Hjorth three or four years. I cannot remember him nt that time in 1884. I know Ralston. He is time- keeper for Gillespie. He is connected in a store on Wharf street with the plaintiff. I do not know where the line was run. By travelling through the woods you could find it. By Mb. Davie:— Previous to Van Home's visit, that is, before the reserve arrangement, the upset price of the lots was $100. I think that was eight years ago. I claim one of these lots. I have been on my lot for seven years. I bought it. 1 lived on a government lot. I did not live on the lot I claim. I had a cow stable and garden on another lot. The tliird lot I had bought and got a crown grant of it eight years before. My claim was allowed by the Company. I was notified to pat in my claim before Mr. Oorbould and the Com- pany allowed it. LaCHL\N HAMILTON sworn : — I first came to Vancouver in January, 1885. I am in the Laud Department. I sur- veyed the present tow site. I remember the lot claimed by the plaintiff. There whs one building on it of a fair size, a story and a half high, and another small cabin, built partly across the line between lots nine and ten. The value of the cabin was thirty or forty dollars, unless under some extraordinary circumstances. The next lot was trlaimed by Balston. He claimed it to me. 1 did not enter into paticulars of his claim and so I don't know whether his claim was founded on that building or not. No grant had been made to the company when I saw the story and a half high building. The plaintiff sent in an application as to his lot. The whole question of all these claims was discussed. He himself furuisued the declaration which was put in (declaration put in). The com- 3) pany have acknowledged eight claims, eight clear cases, and given them deeds. Three were arranged in a friendly manner. There must be sixteen or seventeen claims remain- ing. I did not hold any regular court. I heard Hayden what he had to .say. (Reads evidence). When I say no regular court, I mean we did not advertise our sittings. Verdict of the Jury : — " We find that the plaintiff, I. J. Hiiyden, was a bona fide occupant and had made substantial improvements on Lot 10, Lot 3, previous to Van Home's visit on the fourth of August, 1884." . i! 18 JUDGMENT OF SIR M. B. REGBTE, C. J. The plaintiff's clnira to relief rests on two docnraonts the petition to the Council, presented 29th Decemb t, 18'St, and the answer to tliat petition, dated Wth February, 1885, which are to be taken in conjunction with three others: Mr Hmithe's letter to the defendant's agent, dated Slst January, 1885, Mr. Bentty's reply of the same date, and Mr. Van Home's memorandum thereon of the 10th November, 1885. The petition prays that occupants in situation of plaintiff be allowed " to purchase their 10 lots at a fair valuation when placed in the market "by the Dominion or Local Government,'' and '• implores Executive clemency, and to be allowed to purchase on fair terms." The town lots in question, including the plaintiff's lot, have never been placed in the market, either by the Dominion or Local Government. Mr. Smithe, in his letter, terms the persons forming the class in question "locatees;" Mr. Beatty styles them " o^aupant-i;" both evidently meaning the same persons, and, I think there is no ground for importing into the word " occupants" the meaning required by " occupation" in the Provincial Laud Acts. Both letters taken together refer to persons who have previous to the 4:t!i August, 1884, " located," taken up or occupied lots in ii Iioiki, fide manner, and also made substantial improvements thereon. Mr. Stnithe refers in his two letters to two different dates, but he refers to the date as fixiag only the location; Mr. Beatty, who writes only one letter, refers to only one date, using it to fix both the locatitm and the 20 improvements. , The jury have found that the plaintiff had brought himself within this description, and I quite agree with this conciluiion, whi^h, indeed, appear irresistible unless we adopt one or both of two theories whic'i, thougli not broadly advanced, seemed to underlie all the contention of the defendants. Tiie first of these is that: "Shall be found to be homi fide locataes," means shall be determined and acknowledged as such by the C.P.R. at their own corporate pleasure, arbitrarily determined by them — as a joint stock Company, or by their directors — on such evidence, and after such enquiries, as they may think proper in their sole judgment. But this is not a conclusion which recommends itself to common sense. The determination of an issue of fact as between two parties can never, unless so express- ed in the clearoHt words, be left entirely to the arbitrary will of either party, especially when ihat party is a Corporation. It is often left in Government contracts to the sole ;; 1 determination of the Government en^i leer; but never, I think, to the arbitrary will and ])]ca8ure of the Executive. Here it was loudly alleged by the plaintiff, and not denied by the (jonn)any, that the private tribun:il appointed by the Comjjany to examine this claim had reported in favor of the plaintiff; but that the Company had arbitrarily refused to accept that report. No evidence was given to support the allegation — it would, probably, have been inadmissible— but the allegation was notdenied. In defauh of a private tribunal, the decision seems most naturally and