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Un des symboles suivants apparaitra sur la dernidre imags de chaque microfiche, selon le cas: le symbols — ► signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seui clich6, 11 est fiimd d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut ^n bas, en prenant le nombre d'errfages ndcessaire. Les diagrammes suivants illustrent la m^^thode. 1 2 - 3 4 5 6 'J) T ( THE LAW OF MINES IN CANADA BY WM. DAVID Mcpherson AND JOHN MURRAY CLARK, M.A, LL.B. Of Osgoode Hall, Toronto, Canada, Barristcrs-ttt-Law. TORONTO : The Causwell Company, Limited 1898 tl'VtfWI*H}tm' ^wn'nt i'>mmj>fiit9j»f^ f^f^ffffW'ii.'Ai^'li.ivilimti • ^ /)3 '\ -> -ToL the Department of Agriculture, at Ottawa. / 'iV I ','1 TO ATTORNEY-GENERAL AND PREMIER OP THE PROVINCE OF ONTARIO, WHO, FOR MANY YEARS, AS COMMISSIONER OF CROWN LANDS, DISPENSED, WITH IMPARTIAL EQUITY, THE INFALLIBLE JUSTICE OF THE CROWN, THIS WORK IS, BY PKKMISHIOX, RESPECTFULLY INSCRIBED. '\ 1' V li 1 I PKEFACE The phrase " Law of Mines " has the sanction of no less an authority than Lord Chancellor Selborne, and now desio-.mtes a recognized Department of Law. Many of the leading c°ases are based on fundamental principles common to all systems of juris- prudence. Probably in no other branch of law is the Golden Rule " Sic utere tuo ut aliemcm non laedas," or, as it has been ex- pressed, " Sic utere tuo ut aliena jura non infrhujas," so fre- quently interpi-eted and applied. In every country there are peculiar conditions, local and ad- ministrative requirements in regard to the acquisition, develop- ment and working of mining properties which necessitate more or less special mining laws. The laws of England, as far as applicable, were, at various times, introduced into all parts of Canada, except Quebec, but the special mining laws now largely depend upon Dominion and Provin- cial Statutes, and upon regulations having the force of law ; conse- ciuently for practical purposes the learned and excellent English treatises on the subject are largely inapplicable in Canada. It cannot be pretended that the present work sup- plies a long-felt want, for, but recently has it been realized that Canada, particularly the Provinces of Ontario, Nova Scotia, and British Columbia, and certain portions of the North-West Territo- ries, are marvellously rich in minerals. Indeed, the rapidly increasing importance of the mining industry in the various Provinces and Territories of Canada" renders some statement of the laws in force therein a matter of convenience amounting almost to necessity. VI PREFACE Tho evolution of Canadian law, and the administration of jus- tice in Canada, form passaijes in our history to which Canadians may refer with justifiablo pride. The stron<^ and fearless administra- tion of justice by Sir Matthew Begbio in the early days of British Columbia is worthy of the best traditions of British civilization The luminous judgments of such Canadian jurists as Macaulay, Robinson and Halliburton, will compare favorably with the most erudite productions of the English Bench. To the student of comparative jurisprudence, there can be of- fered few fields for investigation, more interesting, instructive and inviting, than the development of the laws of the various parts of Canada ; the unique system of law in' force in Quebec, " Le Droit Canadien," shows the deep impress of English and French legal influences, but there may still be observed the imposing features of the Roman law. While the sources of the British Columbia mininor laws are mainly English, several important provisions have been adopted from the Pacific Coast states, formerly governed by Spanish and Mexican law. ^ The necessities of the case have practically determined the form of this work. Chapter I. deals with the Crown title to lands, mines and minerals, and contains an introductory investigation re- garding the laws in force in the Provinces and Territories comprising theDominion of Canada. Chapter II. is a necessary preliminary dis- cussion of the meaning of certain mining terms. Chapters III. to XIII., inclusive, contain compendious statements of legal principles and rules of more frequent application in mining matters, arranged under such topics as Contracts, Leases, Licenses, Workings, Aliens and Foi*eign Corporation, Grants, Water, Support, Taxation, Wrong- ful Abstraction and Criminal Offences, etc. There are so few decisions of Canadian Courts, construing the various Statutes in regard to mines and minerals, that it would have been rash and unsatisfactory to have attempted any tatement of the effect thereof, in words not sanctioned by Parliament or Legis- lature. A reference to the Statutes demonstrates that it is more ^\\ PREFACE vH useful to reproduce tlie text, as has been done in Chapters XIV. to XIX., with such conuuents and information as the limits of the work permit. In view of the intricacy of the subjects dealt ' .tn '^ nulti- plicity of the decisions — under diverse systems of jurisprudence — commented on, and the complicated character of the legislation, Im- perial, Dominion, and Provincial, discussed, it would be idle to hope that error has been avoided, although no pains have been spared to render the work accurate. By careful indexing and frequent cross references many of the inconveniences incident to the discussion, in one volume, of num- erous distinct subjects, have been avoided, and the practical utility of the work thereby increased. The notes on the Quebec Mining Law were prepared by PlioF. F. P. Walton, B.A. (Oj'oh.) LL.B. (£"(^171.), Professor of Roman Law and Dean of the Faculty of Law, McGill Univei'sity, Montreal, an advocate of the Scottish Bar and sometime Legal Secretary of the Lord Advocate of Scotland. The notes on the Mining Laws of the other Provinces were revised as follows : — Ontario, by A. Blue, Director of the Bureau of Mines ; New Brunswick, by Henry A. Powell, M.P., of the New Brunswick Bar ; Nova Scotia, by E. L. Newcombe, Q.C, of the Nova Scotia Bar, Deputy Minister of Justice of Canada ; Brit- ish Columbia, by AuLAY Morrison, LL.B., M.P., of the British Col- umbia Bar. The authors desire to express their thanks to -other fiiends for kind assistance. They are particularly indebted to N. W. Hovles, M.A., Q.C, the learned Principal of the Law School of On- tario, for friendly criticism and thoughtful suggestions. Tlie chapter on Taxation was revised by His Honor Judge McDouGALL, and that on Water by R. U. McPherson, B.A., LL.B. J. BuRLEY Smith, M.E., assisted in the preparation of the Glossary, which was revised by G. M. Dawson, LL.D., C.M.G., Director of the Dominion Geological Survey. V vin PREFACE The authoi'8' thanks for vahiable suggestions and information furnished, are also due, to Hon. Cliffoud Sifton, Q.C, M.P., P.C., Minister of the Interior of Canada ; lIoN. J. M. Oihson, Commis- sioner of Crown Lands for Ontario ; Hon. A. Turqeon, Commis- sioner of Col. and Mines, Quebec; Hon. A. T. Dunn, Surveyor- General of New Brunswick ; Hon. J. W. Lonqley, Attorney-Gen- eral of Nova Scotia ; Hon. C. E. Church, Commissioner of Works and Mines, of Nova Scotia; Hon. James Baker, Minister of Mines, British Columbia; Hon. J. D. Cameron, Attorney-General of Manitoba ; C. J. Fleet, B.C.L., of the Montreal Bar ; H. McInnes, M.A., of the Nova Scotia Bar ; T. P. Galt, B.A., George C. CAMPiiELL, Angus MacMuuchy, B.A., and Fred C. Jauvis, of the Ontario Bar. Osgoode Hall, Toronto, Canada, 30th June, 1898. \\) CONTENTS FAOID PREFACE V CONTENTS jx LIST or ABBREVIATIONS xv TABLE OF CASES xxi TABLE OF STATUTES jiii CHAPTER I. THE CROWN TITLE: LAWS IN FORCE, ETC Canada— Ontario and Quebec— Nova Scotia— New Brunswick -- North-West Territories— Stickeen Torrltorles- Crowi. Title -Precious metals— Ordinance lands— Land covered by water — Origin of title — In Ontario — Quebec — New Brunswick — Nova Scotia— British Columbia— Manitoba — Prince Edward Island— North-West Territories— District of Keewatin— Pro- visional district— District of Yukon— Indian lands 1-31 CHAPTER II. MEANING OF TERMS. " Mines " and "Minerals "—Illustrations of substances held to be Included In the term " mine " or " mineral " — Brick — Earth— Clay— Limestone— Natural gas — Quarrj stone — Salt quarries — Flints— China clay — Bed of clay — Limestone- Free stone— Clay— Stratum of stoni'— Stones dug from quar- ries— Coprolites— Granite— Substances held to be not In- cluded in term " mine " or " mineral " — Quarry of free- stone—Common clay— Quarries of salt- Clay and sand— Quarry— Metals— Ores— Surface — Soil— Land — Tenement . . . 34-41 COXTEXTS CHAPTER III. CONTRACTS. Acceptance — Grub stake and prospecting contract — Options — Working bonds or executory contracts — Contracts with com- panies — Implit'd contracts — Construction of contracts — Con- ditions — Statute of Frauds — Tenements — Hereditaments — Contract of purchase — Sufficiency of signature — Part per- formance — Partnership — Trust — Fixtures — Covenants — Joint, several, and joint and several covenants — Implied covenants — Covenants running with the land — With what covenants run — Void covenants — Agreement or lease — Agreement for a lease — Possession and payment — Deposit — Abatement — Payment into Court — Title — Objections to title — Specific performance — Part performance — Cases in which specific performance decreed — Cases in which spi>cific per- formance not decreed — Rescission — Cases in which rescis- sion decreed — Cases In which rescission not decreed — Pro- moters of company PAGE 42-103 CHAPTER IV. LICENSES. Revocable or irrevocable — Deed necessary — Assignability — Dis- tinction between a lease and license — Distinction between grant and license — Distinction between license and ease- ment — When license exclusive — When not exclusive — What covenants run with license— Nature of royalty— Forfeiture. 104-114 CHAPTl'^R V. LEASES. How created — Parcels — Right to work — Rent — Distress — Cove- nants — Quiet enjoyment — Forfeiture and waiver — Determi- nation — Recovery of possession — Fixtures 115-135 CHAPTER VI. WORKING. The right to work mines — Owner In fee simple — LimiteU owner — Co-owner — Relative rights and duties of mine owner and surface owner — Employers' liability — Statute of Limitations — Way — Leave — Specimens of ore — Rights, duties and liabili- ties arising in working— Statutory mining regulations 136-145 fi CONTENTS CHAPTER VII. ALIENS AND FOREIGN CORPORATIONS. CHAPTER VIII. SALES, DOWER, MORTGAGES, ETC. Grants gonerally— Crowu grants— Description — Accretion— In- cidental riglits — Under water areas — Ad medium fllum— Reservations and exceptions— Consideration— Covenants for title— Dower— In Ontario— In Nova Scotia- In New Bruns- wick—In Quebec— In Britisli Columbia— Jr North-West Territories— Vendors' lien — Mortgages — Partition— In On- tario—In New Brunswick— In Nova Scotia— In British Co- lumbia—The Registry Acts— In Ontario— In Quebec— In New Brunswick— In Nova Scotia— In British Columbia— In North- West Territories— As to settled estates XI PAGE As to aliens throughout Canada — In Ontario— In Quebec — In New Brunswick— In Nova Scotia— In British Columbia— As to foreign corporations in Ontario — In Quebec— In Nova Scotia— In New Brunswick— In the District of Yukon— In British Columbia— Winding-up Act 146-154 152-202 CHAPTER IX. SUPPORT. Building— Nature of the right— Statute of Limitations — Sev- erance—Grant—Reservation and exclusion of right— Sur- face-owner V. Mine-owner— Subsidence 203-218 CHAPTER X. WATER, VENTILATION, ETC. Water— Riparian rights— Water-course — Subterranean water- Petroleum oil and natural gas — Abstraction — Fouling - Neighbors— User of mines— Railways — Canals — Damage- Easement?— Ore 219-235 xii coyTEyis CHAPTER XI. MINERALS UNDER RAILWAYS AND HIGHWAYS. PAOB Railways in Ontario— In Quebec — In New Brunswick — In Nova Scotia— In British Columbia — In Canada— Highways in Ontario 2i,6-243 CHAPTER XII. TAXATION. In Ontario — Property liable to taxation — Mineral lands — In Quebec — In New Brunswick — In Nova Scotia — In British Columbia '. 244-253 CHAPTER XIII. WRONGFUL ABSTRACTION AND CRIMINAL OFFENCES. Statute of Limitations — Actio personalis, etc. — Inspection — Criminal code — Danger to life — Stealing gold and silver — Stealing ore — Fraud— Mischief to mines — Search warrant . . 254-264 CHAPTER XIV. ONTARIO STATUTE LAW. The Mines Act, R. S. O. (1897) chapter 36, as amended 265-315 CHAPTER XV. QUEBEC STATUTE LAW. Analysis of Act of 1892— Quebec Mining Law— (Revised Sta- tutes of Quebec, chapter 20) 316-360 CHAPTER XVI. NEW BRUNSWICK STATUTE LAW. General Mining Act, as amended, 1892, 1893, and 1896 361-400 CONTENTS Xlll CHAPTER XVII. NOVA SCOTIA STATUTE LAW. The Mines and Mineral Act, 1892— Acts of 1892, chapter 2— Acts of 1893, chapter 2— Acts of 1893, chapter 3— Acts of 1897, chapter 4— Acts of 1897, chapter 5— Acts of 1898, chapter 6— Acts of 1898, chapter 27— Acts of 1898, chapter 28— Regula- tions of mines, chapter 8 (Revised Statutes, 5th series) with amending Acts PAGE 401-515 CHAPTER XVni. BRITISH COLUMBIA STATUTE LAW. "Mineral Act "—The Mineral Act Amendment Act, 1898— Placer Mining Act—" The Placer Mining Act (1891) Amend- ; ment Act, 1898 "—Inspection of Metalliferous Mines Act, 1897 —Coal Mines Act— Coal Mines Regulations Act 516-690 CHAPTER XIX. MIXES AND MINERALS IN LANDS BELONGLV} TO OP ADMINISTERED BY. THE DOMINION OF CAN\D\ !\ CLUDING INDIAN LANDS. ■ - A. to Minerals other than Coal-Regulations for the disposal of quartz mining claims (11th March. 1898)— Placer mining in the Yukon district (18th January, 1898)-PIacer mining along the North Saskatchewan River (17th April, 1897)— " The Dominion Mining Regulations," 9th November, 1889)— Leases to dredge for minerals in beds of rivers in Yukon district (18th January. 1898)-Leases to dredge for minerals in submerged beds of rivers in Manitoba and North-West Territories (21st July, 1897, as amended 29th July 1897- 18th January, 1898; 28th February. 1898)-Dominion lands within 40-mile railway belt in British Columbia-Indian Lands Con- solidated Mining Regulations (18th September, 1888 as amended 2nd December. 1889; 15th June. 1893)-A. to Coal tanas, the property of the Dominion in Manitoba, the North- ZtT ^Z"'l''T" ^""^ ^""'"'^ ^"'"'"^'^ (17th September, 1889, 19th July. 1892; 11th November. 1895)-Coal on Do- minion lands for domestic purposes (9th February 1897)- Coal lands in Indian reservations in Manitoba and North- West Territories (15th September. 1888) ... 691 790 << r w A- ■■■7;»gffigv.Jfy-"*r-?ii^' ?r xiv CONTENTS APPENDIX I. PAGE STATUTES— ORDERS IN COUNCIL AND REGULATIONS.... 791-883 APPENDIX II. FORMS, GENERAL AND STATUTORY 884-1009 APPENDIX III. GLOSSARY OF MINING TERMS 1010-1068 GENERAL INDEX 10C9 LIST OF ABBREVIATIONS ^- C Anpeal Cases. Ad. & K Adolpluis and Ellis's Keports, K. B. -^- * ^ Adolphus and Ellis, Queen's Bench Reports, New Series. -^l' Allen, Now Brunswick. ■^- I* Ontario Appeal lieports. ^- ^- '^ Australian Law Times. Allen (N.B.) Allen's New Brunswick Reports. App. Cas Appeal Cases. English House of Lords and Privy Council. Am. Rep American Reports. Appd Appendix. Atk Atkyn's Reports, Chancery. Aiistr Anstruther's Reports, Exch. R Beavan's Reports. ^- & A Baruewall and Alderson's Reports, K. B. ^- & Ad Barnowall and Adolphus's Reports, K. B. J^- & C Barnewall and Cresswell's Reports, K. B. Bac. Abr Bacon's Abridgment. B. & S Best and Smith's Reports, Q. B. B. C Uritish Columbia. ^- C. R British Columbia Reports. Ben^' Beavan's Reports. Rolls Court. '. Bing. N. C Bingham's Now Cases, C. P. I"'- O. S Bligh's Reports. Old Series. Bro. C. C Brown's Chancery Cases. Bro. Ch. Rep Brown's Chancery Reports. S"i"i' Burrow's Reports, K. B. Cnn Canada. ^"- A. Chancery Appeals. ^- ^ Common Bench Reports, or Manning, Granger and Scott's Reports. C. B. N. S Common Bench Reports, New Series. ^- ^- R Crown Cases Reserved. Can. L. J Canada Law Journal. Can. L. T Canada Law Times. ^' ^'- K Crompton, Meeson and Roscoe. ^- ^ Law Reports, Common Pleas. ^- ^- ^ Law Reports, Common Pleas Division. C^'imph Campbell. ffmt^w" "'I"!"", ■'*"-• XVI LIST OF ABniiEMATIOyS I < CuhsoI'h Dig C'ii«Mer8 Dii.ost. Ch Chauct'ry. Ch. D Law Kt'itorts, Chnucory Division. Ch. lU'D UcportH ill CliHuwry (Ch. U.). C. & F Chirk and Fiiiiu'lly. C & P Ciirriiijttoii and I'ayno. Coclir Coc'hraii»''s Nova Scotia llcports. Co. (lli'i).) Coke's llt'poits. Cowp CowiK'r's lU'poi-ts, K. B. Cox. C. C Cox's Ci-iuiiual Casus. Craw. & Dix Ab. C. Crawford cud Dix's Abridged Cases, Ireland. Cr. & J Cronipton and .Tarvis, Keports, Ex. Cr. Cas. 11 Crown Cases Iteserved. Cromp. & M Cronipton and Meeson's Ueports, Ex. Crb. Eliz Croke (Eliz., Jam., Chu.), K. B. & C. P. De O. V. Si 3 De Gex, Fisher, and Jones's Ueports, Chancery. Do O. <& J Do (!ex and Jones's Keports, Chancery. De G. M. & O De (Jex, McNaughton, and (Jordon's Iteports, Chancery. Do G. & Sni De Gex and Sinale's Ueports, Chancery. Drew Drcwry. Dick Dicken's Ueports, Chancery. Dong Doiighis's Ueports, K. B. Drew Drewry's Ueports, Chancery. Drew. & Sni Drewry's and Sinnle's Ueports, Chancery. East East's Ueports, K. B. El. B. & E Ellis. Blackburn, and Ellis's Ueports, Q. B. E. & A. U. C. R. . . Error and Appeal Ueports, Upper ('anada or Ontario. E. B. (El. & Bl.) . . Ellis and Blackburn, Ueports, Q. B. B. & E Ellis and Ellis. E. & I. I English and Irish Appeals, Law Ueports. E(i. (Uep.) E(iuity Ueports. Ex Exchequer. Ex. D Exchequer Division. Bxch. Uep. . ... Welsby, Unrlstone, and (Jordon's Ueports, Ex. Exdi. C. U Exchequer Court Ueports. Fou Fouiitainhall's Decisions, Court of Sessions. Freein Freeman's Ueimrts, K. B. (Jiff Giffard's Iteports, Chancery. Gr (Jrant's Chancery Ueports (Ontario). H. & C Ilurlstone and Coltman's Iteports. Ex. H. & N Hurlstone and Norman's Ueports, Ex. H-. & M Hening and Muniford, Virginia Court of Appeals. Ha Hare's Ueports ((Chancery). Han Hannay's New Brunswick Ueports. H. L. C House of Lords Cases. H. L. Sc House of Lords, Scotch Appeals. Hun. N. Y Hunter's New York Ueports. Inst Coke's Institutes. Ir. Rep. Eq Irish Reports. Equity Series. Ir. C. L Irish Reports, Common Law Series. Ir. L. R Irish Law Reports. I ^i i LIST OF ABBREVIATIOyS XVll Ir. Ch. Ut'p Irinh Cliaiicory Koports. Ir. K. Exi'h Irish Reports, Exoluqni'r. Jao, & \V lacob and Walker's lU-portH, Chancery. J. & II Johnson and Ilennning's Heports, Chnncory. J. «& Iv fones anil Lutoiiclu''H Ueports, (jhancory, Irehmd. James lames, Xova Scotia Ileports. Johns Johnson's New York Supremo Court and Court of Errors Jur. N. S Jurist, New Series. Kay Kay's Reports, Chancery. K. & .7 Kay and Johnston's Reports, Chancery. L. C. L. J Lower Canada Lav; Journal. L. .T. Cli Law Journal, Cliancery. L. J. M. C Law Journal, Magistrate's Cases. L. J. N. S liUW Journal, New Series. li. J. N. S. Ch Law Journal, New Bi-ries, Chancery. Id. J. Q. B Law Journal. Queen's lieuch. L. J. r. (' Law Journal, Privy Council. L. Ii Law Reports. L. R. (Ch.) Law Reports, Chancery Appeals. L. R. Ir Law Reports, Irish. L. T Law Times. L. T. X. S Law Times, New Series. L. T. M. C Law Times, Alagistrate's Cases. Lev Leving's Ileimrts, K. B. M. & S Maule and Selwyn's Reports. K. B. M. & W Mei'son and Welsliy's Repoi'ts. Kx. Mac Sir J. Mackenzie's Institutes of the Law of Scotland. Mac Macassey's Reports (N. Z.). Macq Aiac(iue( n's Scotch Appi'al Case. Madd Maddock's Reports, Chancery. Mason Mason. I'nited States Circuit Court. First Circuit. Mer Merivale's Reiiorts, (Miancery. M. & R Manning; and Rylaud's Repwts, K. B, M. & Rob Moody and Robinson. Mont. & -Ma Montiitrn and Macarthur. Moo. 1'. C. C. ... Moore's Privy Council Cases. Myl. & Cr Mylne and Craig's Reports, Chancery. Myl & K Mylne and Keen(>'s Iteports. X. B Xew Brunswick. X. B. R Xew Brunswick Reports. X. R Xew Reports, by Bosan(iuet and Puller, C. P. X. S Xova Scotia. X. S. 1) Xova Scotia Decisions. X. S. 1' Xova Scotia Reports. .\. S. R. 10. 1) Xova Scotia. Ritchie's Equity Decisions, by Russell. X. S. ^V. Ti. R Xew South Wales, Law Reports. N. S. W. S. C. R. . Xew South Wales. Supreme Court Reports. X. S. W. W. X. ... Xew Soutl Wales, Weekly Xotes. n— M XVIU I,': LIHT OF AttliltEVlATIOyH N. W. T North- West Tt-nitorifB. N. Z. C. A Xfw /I'lilaiul Court of Appeal. N. Z, Digest New /onland Digest. N. Z. L. 11 New Zealand Law IteportH. N. Z. L. R, S. C. . Now Zealand Law Ueports, Snpreine Court. N. & M Neville and Manning's lleports, K. H. Old Olthiglit's Nova Scotia Ueports. Out Ontario. O, II Ontario Ueports. O. & Old Series, Tpikt Canada (Ontario) Ueports. O. I'r. U Ontario I'raeiiee Ueports. I'll Pennsylvania Supreme Court. I'lic Pacitic Ueporter. Peters Peter's United States Supreme Court. P. C Privy Council. P. D I'robato Division. Ph Phillip's Law Reports, Chancery. Plowd Plowden's Com. or Ueports, K. B. P. U Prat'tiee Ueports. P. W Pere William's Ueporio, Chancery. Pug Pugsley's New Brunswick Iteports. Pug. & Bur Pugsley and Burbidge's N(>w Brunswick Reports. Q Quebec. Q. B. D Q\ieen's Bench Division (The Law Ueports). Q. R Quebec Ueports. Q. L. R Quebec Law Ueports. It Coke's Reports. U. C Railway Cases. R. E. D Ritchie's Equity Decisions, by Uussell. R. Ti Revue Legale (Quebec). R. J. Q Rapports Judiciaires do Quebec. U. U Uevised Ueports. Rep. fcmp. Finch . . . Finch's Ueports, Chancery. R. & C Russell and Chesley's Novn Scotia Reports. R. & G Russell and Geldert Russ. Russell's Ueports, Chancery. Unss. & >[yl Uussell and Mylne's Ueports, Chancery. S. C Same Case. S. C. App Scotch Appeals, Law Ueports. S. C. L. U Scotch Appeals. Law Ileports. S. C. R Supremo Court Reports. Scott Scott's Reports, C. P. Snlk Salkeld's Reports, K. B. Snund Saunder's Reports, K. B. Sch. & Ij Schoale and Let'roy's Rejiorts, Chancery. Ireland. Shaw App Shaw's Reports of Appeal Cases, House of Lords. Sim. & St Simon's and Stuart's Reports, Chancery. i (i til 1 1 LIST OF ABliltUVIATIONS XIX S'™ Sinioiis'H Reports, Chancery. Siui. & Stu Simons luid Stuart's English Vice-Chancery Ueiiorts. ^i"' L. C Smith's Loading Cases. f'^tra Strauge's Reports, K. B. Swaiist Swanston's Reports, Chancery. '■I'- 1' Term Reports (Durnford and East), K. B. Taunt Taunton's Iteports, C. V. Thoni Thomson's Nova Scotia Reports. T. L. R Times Law Reports. T. & C Thompson and Cooli, New Yorlv Supreme Court. T. & R Turner and Russell's Reports, Chancery. Tyrw Tyrwhitt's Reports, Exchequer. U. C. C. r Common Pleas Iteports, Upper Canada (Ontario). U. C. Q. B Queen's Bench Reports, Upper Canada (Ontario). U. C. K Upper Canada (Ontario) Reports, Queen's Bench. U. S United States. Vaugh Vaughan's Reports, C. V. Ves Vesey's Sen., Reports, Chancery. Vern Vernon's Reports, Chancery. V. L. R Victoria Law Reports. W. R Weekly Reporter. Wils Wilson's Reports, K. B. W. N Weekly Notes. England. W. Vt>. West Virginia Supreme Court of Appeals. W. W. & A'b Wyatt, Webb and A. Beckett's Reports (Australia). Y. & C Youngo and Collyer's Exch. Y. & C. Ch Youuge and Collyer's Chancery Cases. i » / ■a h lij igt y, jjL ! mj tg au.waHtgw i!grP»^^^WW!i TABLE OF CASES. PAOQ Abbot V. Mlddleton, (1858) 7 H. L. C. 68 170 Aberaraan Iron Works v. Wlckens, (1868) 4 Ch. 101 99 Acheson v. Stevenson, (1891) 146 Pa. 239 225 Acton V. Blundell, (1843) 12 M. & W. 324 224, 226, 228 Adair v. Shattoe, (1812) 19 Vt's. 156 143 Adams v. Andrews, (1850) 15 Q. B. 284 105 V. Llndsell, (1817) 1 B. & Al. 681 48 Agi-ncy Company v. Short, (1888) 13 App. Cas. 799 144 AUemong v. Simmonds, (1890) 23 N. E. R. 768 455 AUoway v. Brainer, (1859) 26 Beav. 575 91 Re Ambrose Lake Tin and Copper Mining Co., (1880) 14 Ch. D. 390. 101, 103 Andrew v. Buchanan, (1873) L. R. 2 H. L. Sc. 286 204 Antrim, Earl of, v. Gray, (1875) 9 Ir. Rep. Eq. 520 165 Argles V. McMath, (1894) 26 O. R. 224 132 Arkwrlght v. Evans. (1880) 49 L. J. M. C. 82 646 V. Cell, (1839) 5 M. & W. 203 223 V. Ncwbould, (1881) 17 Ch. D. 320 95 Armstrong v. Auger, (1891) lil O. R. 98, 102, 103 66, 78, 79 V. Farr, (1885) 11 A. R. 191 187 V. Nason, (1895) 25 S. C. R. 268 81 Arthur v. G. T. R., (1895) 22 A. R. 89 223, 232, 233 V. Lamb, (1865) 2 Dr. & Sm. 428 139 .\shburnt'r v. Scwell, (1891) 3 Ch. 405 84 Ashton V. Stock, (1877) 6 Ch. Div. 719 144, 145, 177, 254 Aspdin V. Austin, (1844) 5 Q. B. 671 69 Aspden v. Seddon, (1875) 10 Ch. App. 394; (1876) 1 Exch. D. 496. ...204, 211 Atkins v. Coy, (1897) 5 B. C. R. 6-14-10 525, 538, 548, 549, 571 Attorney-Genoral v. AUcsbury, (1885) 16 Q. B. D. 437 142 V. Chambers, (1849) 12 Boav. 159; (1859) 4 DeG. & J. 67 161, 260 V. Ctmduit Colliery Co., (1895) 1 Q. B. 312, 301 207, 208, 238, 240 v. Contois, (1878) 25 Gr. 346 275 V. Fraser, (1878) R. E. D. 275; (1878) 12 N. S. R. 351; (1878) 3 R. C. 351 . 436 V. John Ettershank, (1875) L. R. 6 P. C. 354 289 V. Ewelme, (1853) 17 Beav. 366 170 xxii TABLE OF CASES PAGE} Attorney-Geni'ral v. Friiser, (1878) 12 N. S. R. 351 430 V. Oarbutt, (1856) 5 Or. 383 275 V. Hill, (1861) 8 Or. 532 275 V. MerciT, (1883) 8 App. Cas. 767, 778 13, 14, 25, 27, 65 V. McDonald, (1870) 8 N. S. R. 125; (1870) 2 N. S. D. 125 454 V. McNully, (1865) 11 Or. 281, p. 275; (1860) 8 Or. 324 275 V. Mcirgiin, (1891) 1 Ch. 432 7 V. Mylchn'»'8t, (1879) 4 App. Cas. 294, 306 38, 39 V, Reynolds, (1895) 27 N. S. R. 184 419 V. Sheraton, (1896) 28 N. S. R. 492 4J7, 441 V. Temple, (1897) 27 S. C. R. 3'55; (1897) 1.'9 N. S. R. 288; (1896) 426, 427, 428, 438, 471 V. Tomllne, (1887) S. C. 5 Ch. Dlv. 750; (1880) 14 Ch. Dlv. 58.. 37. 232 V. vVolsh Granite Co., (1887) 35 W. R. 617 37 of British Columbia v. Attorney-General of Cannda (the " Pre- cious Metnls case"), (1889) 14 App. Cas. 295 12, 20, 24, 26. 27, 28, 319, 326, 334 of Canada v. Attorney-General of Ontario, and Attorney-Gen- eral of Quebec v. Attorney-General of Ontario, (1897) App. Cas. 199 77 of Quebec v. Colonial Building and Investment Association, (1883) 9 App. Cas. 166 151 Attrlll V. Piatt, (1884) 10 S. C. R. 425; (1884) 14 App. Cas. 622 220, 233 Attwood V. Small, (1838) 6 C. & F. 232; (1838) You. 407 94 Austerberry v. Corporation of Oldham, (1885) '29 Ch. D. 750 71, 73 Backhouse v. Bonoml, (1858) E. B. & E. 623; (1861) 9 H. L. C. 503.. 128, 206, 208 Backus V. Smith et al., (1880) 5 A. R. 341 206 Baddeley v. Earl Granville, (1887) 19 Q. B. D. 423 682 Badgeley v. Bender, (1834) 3 O. S. 221 283 Bagnall v. Carlton, (1877) 6 Ch. D. 371 103 V, London & N. W, Ry. Co., (1861) 7 H. & N. 423; (1862) 1 H. & C. (N. S.) 544 232, 238 Bagot V. Bagot. (1863) 32 Beav. 509 137 Bailey v. Hobson, (1869) L. R. 5 Ch. 180 139 Baird v. Williamson, (1863) 15 C. B. N. S. 376 227 Baker v. Carter, (1878) 3 Ex. D. 132, 135 682, 683 V. Denlng, (1838) 8 A. & E. 94 57 V. MacLelland, (1895) 24 S. C. R. 416 52, 334 Ballacorklsh Silver Mining Co. v. Harrison, (1873-4) L. R. 5 P. C. 49, 62 36, 224, 438 Ballard v, Tomlinson, (1885) 29 Ch. Dlv. 115 226 Bally V. Wells, (1769), 3 Wils. 29 67 Bamford v. Turnley, (1862) 3 B. & S. 66 235 Band of Hope and Albion Consols v. Young Band Extended Q. M. Co., (1883) 9 V. L. R. (E.) 37 51 TAHLE OF CAfiES Will p\am Barclay v. Proas, (1878) R. E. D. 317 101 Harnes v. Boomer, (18G4) 10 Gr. 532 275 Bnrrington Gamlcn v. Lyon, (1886) 33 Ch. D. 523 239 Barrow v. iBaacs, (1891) I Q. B. 417 132 Barry v. Croskey, (1861) 2 J. & H. 1 90 Barlhfl v. Scotten, (1896) 24 S. C. R. 307 163 Bartlett v. Purnell, (1830) 4 A, & E. 792 57 V. Pickcrsglll, (1759) 1 Eden, 515. 1 R. R. 1 53. 63 Barton v. Howe. (1875) 3 N. Z. C. A. 5 227 V. McMillan. (1891) 20 S. C. R. 404 53, 64 Barwlck v. Duchoss of Edinburgh Co., 8 V. L. H. (Eq.) 70; 3 A. T. L. 68-121 289 Bass V. Gregory, (1890) 25 Q. B. D. 481 235 Batthyany v. Walford, (1887) 36 Ch. D. 279 260 Baxendale v. Scale, (1854) 19 Beav. 601 99 Bayley v. G. W. R. Co.. (1884) 26 Ch. D. 439 C. A 173 Beaufort, Duke of, v. Bates, (1862) 3 DcG. F. & J. 381 123 Beckett v. Bradley, (1862) 31 L. J. Q. B. 65 216 Blgley V. Gibson. (1800) 19 U. C. R. 458 184 Beer v. Stroud, (188;^ 19 O. R. 10 223 Bellamy v. Debenham, (1891) 1 Ch. 412 82 Boll V. Dudley. (1895) 1 Ch. 180 205 V. Corporation of Quebec. (1879) 5 App. Cas. 84 220 V. Love. 10 Q. B. D. 547. 558 150 V. Mucklin, (1887) 15 S. C. R. 570 95 V. Wilson, (1805) 2 Dr. & Sm. 401. 399; (1800) L. R. 1 Ch. 303. . 34, 39. 175 Benfleld. Re, and Stevens, (1897) 17 O, Pr. R. 339 Ill iJennett v. Whitehouse, (1800) 28 Beav. 119 260 Lentlnck v. Fern, (1887) 12 App. Cas. 652 101 Bentley v. Bates, (1840) 4 Y. & C. 182 141 Berkeley v. York. (180.'^) 6 East, 80 441 Blbby V. Carter, (1859) 4 H. & M. 153 200 Blckett V. Morris. (1866) L. R. 1 Sc. Ap. 47 162 Bickford v. Grand Junction Ry. Co.. (1877) 1 S. C. R. 696 4.'. 40 Bidder v. North Staffordshire Railway Co.. (1878) 4 Q. B. D. 412 125 Biddle Cope, Marquis of, Re. etc., (1897) 5 B '^. R. 37 252 Biddulph V. Poole, (1848) 11 Q. B. 713 441 Bidey v. Ray 275 Bill V. Bament, (1841) 9 M. & W. 30 42 Bird V. Higginson, (1835) 2 A. & E. 690; 4 N. & M. 505 74 Birmingham v. Allen. (1877) 6 Ch. Div. 284 203, 204 V. Kirwan. (1805) 2 Sch. & L. 444 184 Birmingham Canal Co. v. Lloyd. (1812) 18 Ves. 515 71 V. Cartwright. (1879) 11 Ch. D. 421 57 XXIV TABLE OF CASES PAGE Birmingham and District Land Co. v. Allday, (1893) 1 Cli. 342 79 Bishop V. Goodwin, (1845) 14 M. & W. 260 121 Black V. Toronto Upholstering Co., (1888) 15 O. R. 642 288 Blakesh'y v. Whleldon, (1841) 1 Ha. 176 86 Blenkensop v. Clayton, (1817) Taunt. 597 54 Bligh V. Brent, (1837) 2 Y. /", C. 294 59 Bloomer v. Spittle, (1872) L. R. 13 Eq. 427 100 Bec'hm v. Wood, (1880) 2 Jac. & W. 236 100 Bolton V. Bolton, (1879) 11 Ch. D. 968 172 Bogart V. Patterson, (1868) 14 Gr. 624 89 Bolton V. Leo, (1673) 2 Lev. 56 69 Bonnewell v. Jenkins, (1878) 8 Ch. D. 70 50 Bonomi v. Backhouse, (1859) E. B. & E. 654; (1861) 9 H. L. C. 503. .205, 207 Booth V. Mclntyre, (1880) 31 U. C. C. P. 183 27 V. Ratti", (1890) 15 App. Cas. 188 220, 221 Boultor V. Hamilton, (1864) 15 U. C. C. P. 125 159 Boulton V. Gillespie, (1860) 8 Gr. 223 188 V. ShOii, (1893) 22 S. C. R. 742 131' Bowler v. Wolley, (1812) 15 East, 444 167 Bowles V. Case, (1616) 11 Co. Rop. 79b 138 V. Round, (1800) 5 Ves. 508 84 Bowkcr V. Laumeister, (1891) 20 S. C. R. 175 53 Bowron, etc.. In re, Bailey's Case, (1868) L. R. 5 Eq. 428 50 Boyd V. Shorrock, (1867) L. R. 5 Eq. 72 135 Boyle V. Bettws, (187C) 2 Ch. D. 726 188 Brace v. Abercarn C. Co.. (1891) 2 Q. B. 699 651 Bradford v. Pickles, (1895) A. C. 587 228 Bradlaugh v. Clarke, (1883) 8 App. Cas. 354, 362 609 Brady v. Sadler, (1890) 17 O. A. R. 365 276 Brain v. Harris, (1855) 10 Ex. 908 116 Brantford Electric and Power Company and Draper, In re the, (1896) 28 O. R. 40 133 Brcadalbane, Lord, v. Menzies, (1822) 1 Shaw App. 225 38 Earl of, V. Jamieson, (1875) Ci. of Sess. Cas., 4 S. 2, 826.... 319, 326 Brentwood B. & C. Co., Re, (1876) 4 Ch. D. 562 C. A 188 Brewing v. Berryman, (1873) 2 Pug. 115 105 Bridges v. Potts, (1864) 17 C. B. N. S. 314 121, 131 Briscoe v. Drought, 11 Ir. C. L. 264 223 British & American Telegraph Co. v. Colson, (1871) L. R. 6 Ex. 108. .. 49 British Canadian Loan Co. v. Tear, (1893) 23 O. R. 664 67 Broadbent v. Ramsbotham, (1856) 11 Exch. 602 223 Broomfleld v. Williams, (1897) 1 Ch. 602, 611 233 Brough V. Homfray, (1860) L. R. 3 Q. B. 771 674 Brown v. Comr. for Rys., (1890) 15 App. Cas. 240 239 Brown v. O'Dwyer, (1874) 35 U. C. R. 354 177 Brown v. Robins, (1859) 4 H. & N. 186 216, 217 TABLE OF CASES XXV PAGH Brown v. Spilman, (1895) 155 U. S. A. 665 225 Brownlie v. Campbell, (1880) 5 App. Cas. 925 95, 96 Brucu V. Ailesbury, (1892) App. Cas. 356, 361 609 Bryant v. Lefcver, (1879) 4 C. P. D. 172 23a Brydon v. Stewart, (1855) 2 Macq. H. L. Sc. 30 143 Biiccleuch V. Wakefluld, (1870) L. R. 4 E. & I. 377 214 Buchanan v. Andrew, (1873) L. R. 2 H. L. Sc. 286 205 Buck V. Cobourg, (1856) 5 U. C. C. P. 552 161 Buckeridge v. Ingram, (1795) 2 Ves. Jr. 652 179 Buckland v. Pocknell, (1843) 13 Sim. 406 188 Bulmer v. The Queen, (1894) 23 S. C. R. 488 176 Bullen V. Denning, (1826) 5 B. & C. 850 176 Bunbury's Estate, Re, (1867) 1 Ir. R. Exch. 458 82 Burn V. Strong, (1868) 14 Gr. 651 60 Burns v. Burns, (1874) 21 Gr. 7 181 Burnsido v. Marcus, (1867) 17 IT. C. C. P. 430 110 Burk V. Tunstall, (1890) 2 B. C. R. 12 570 Bute V. Thompson, (1844) 13 M. & W. 487 121 Byrne v. Van Tienhovi-n, (1880) 5 C. P. D. 344 48 Caddick v. Skidmore. (1857) 2 DeG. & J. 52 58, 59, Caldwell, Ro, (1896) 28 N. S. R. 240 434, Caldwell v. Eraser (unreported) 15, 26, 221, 275, Caldwell v. McLaren, (1884) 9 App. Cas. 392 219, Caledonian Ry. Co. v. Sprot, (1856) 2 Macq. 449, 450.. 156, 158, 209. 213. Cameron v. Bradbury, (1862) 9 Gr. 67 V. Cam(>ron, (1887) 14 O. R. 56i, 580, 585 V. Carter, (1885) 9 O. R. 426 Campbell v. Compagnie G. de B., (1876) 2 Ch. D. 181 V. Crooks, (1852) 9 U. C. R. 639 V. Henderson, (1857) 2 Thom. 335 V. Morrison, (1 897) 24 A. R. 224 V. Wardlaw, (1883) 8 App. Cas. 641 C. P. R. V. McBryan, (1896) 5 B. C. R. 187 V. Western Union Telegraph Co., (1889) 17 S. C. R. 151, 155 Cann v. Cann, (1850) 3 Sim. 447 Cape Breton Case, The, (1885) 29 Ch. D. 795. in appeal, Bentinck v. Fern, (1887) 12 App. Cas. 652 Capel V. Child, (1823) 2 Cr. & J. 558 Cardigan v. Armitage, (1823) 2 B. & C. 197 Carpmael v. Powis, (1846) 10 Beav. 36; (1847) 11 Jur. N. S. 158 Carr v. Benson, (1868) L. R. 3 Ch. Ap. 524-534 110, Carrick v. Johnston, (1866) 26 U. C. R. 69 283, Cartwright v. Forman, (1860) 7 B. & S. 243 Carson & Eholt v. Clark & Martley, (1885) 1 B. C. R. (Part 2) 189. .. Casher v. Holmes, (1831) 2 B. & Ad. 592 61 436 282 221 293 79 90 78 189 283 101 67 137 233 149 too 101 411 170 .100 112 284 124 553 40 XXVI TABLE OF CASES PAGE Cassell V. Wilkinson, (1879) L. R. 5 Cii. 534 79 Ciisst'lman v. Hersey, (1872) 32 U. C. R. 340 165 Catling V. King, (1877) 5 C. D. 660 C. A 42, 58 Catt V. Tourle, (1869) L. R. 4 Ch. 654 70 ChambeT Colliery Co. v. The Co-proprietors of Rochdale Canal, (1895) App. Cas. 564 238 Chantler v. Ince, (1859) 7 Gr. 432 78 Chapman v. Tanner, (1684) 1 Vern. 267 1«7 Chiisemore v. Richards, (1859) 7 H. L. C. 349 219, 223, 224, 226, 228 Chaudiero Gold Mining Co. of Boston v. Desbarats, (1873) L. R. 5 P. C. 277 151 Cheadle v. Proctor, (1868) 19 L. T. N. S. 289 59 Cheetham v. Williamson, (1804) 4 East, 469 104, 110, 165 Chelsea Water Works Co. v. Bowley, (1851) 17 Q. B. 358 107, 111 Cherry v. Homing, (1849) 4 Exch. 636 58 Chippindale, E.r purtv, 4 DeG. M. & G. 40 455 Chisholm v. Robinson, (1894) 24 S. C. R. 704 276 Chichester v. Cobb, (1866) 14 L. T. 433 57 Chipperfleld v. Carter, (1895) 72 L. T. 487 81 Church V. Blako, (1876) Q. L. R. 230 27 V. Brown, (1808) 15 Ves. 258 72 V. Penton, (1878) 28 U. C. C. P. 384; (1879) 4 A. R. 162; (1880) 5 S. C. R. 239 24, 32, 33 Citizens Insurance Co. v. Parsons, (1881) 7 App. Cas. 117 151 City of London Brewery Co. v. Tennant, (1873) L. R. 9 Ch. 221 235 Clack V. Wood, (1882) 9 Q. B. D. 276. C. A 81 Clagstone and Hammond, (1897) 17 Can. Law Times, 195 198 Clark V. Bonnycastle, (1835) 3 O. S. 528 276 Clarke V. Haney 532 Clark V. Ramuz, (1891) 2 Q. B. 456 7? Clarke v. Royle, (1830) 3 Sim. 499 188 Clavering v. Clavering, (1726) 2 P. Wms. 388 179, 189 Clayton v. Gregson, (1836) 5 A. & E. 302 41 V. Morrison, (1873) 2 N. Z. C. A. 263 83 Clegg V. Clegg, (1861) 3 Giff. 322 140 V. Dearden, (1848) 12 Q. B. 576 231, 232 V. Rowland, (1866) L. R. 2 Eq. 165 116 Clements v. Wells, (1865) 1 Eq. 200 70 Cleveland, Dowager Duchess of, v. Meyrick, (1868) 37 L. J. Ch. (N.S.) 127; (1868) 37 L. J. N. S. 126 37. 38 Clifford V. Watts (1870) L. R. 5 C. P. 577, 586 73, 120, 125 Clough V. London & N. W. Railway Co., (1871) L. R. 7 Exch. 20.. .34, 114 Coal Mines Regulation Amendment Act, (1890), Re, (1896) 5 B. C. R. 306 148, 64G Cobourg V. Throop, (1859) 2 A. R. 212 161 Cockburn v. Eager, (1876) 24 Gr. 409 282 Cocking v. Ward, (1845) 1 C. B. 858 53 TABLE OF CASES xxvii PAGE Colby V. Gadsden, (1865) 34 Beav. 416 88 Colebeck v. Girdler's Co., (1876) 1 Q. B. D. 243 206 Coloman v. Robertson, (1880) 30 U. C. C. P. 609 164 Colh'dge V. Harty, (1851) 6 Ex. 205 48 Collins V. Story, (1851) James, 141 186 Colson's Case, British & American Telegraph Co. v. Colson, (1871) L. R. 6 Ex. 108 49 Coltmam v. Brown, (1858) 16 U. C. R. 133 11 Coltness Iron Co. v. Blaclt, (1881) 6 App. Cas. 335 115 Columbia River Lumber Company v. Yulll, (1892) 2 B. C. R. 237 609 Commins v. Scott, (1875) L. R. 20 Eq. 11 58 Commissioner of Crown Lands, Otago District, v. Guflio, (1892) 11 N. Z. L. R. 187 289 Common School Lands Case, Prov. Quebec v. Prov. Ontario 269 Concha v. Murriotta, (1889) 40 Ch. D. 553 260 Congleton, Mayor of, v. Rattison, (1808) 10 East, 135 72 Congleton v. Pattison, (1808) 10 East, 135 72 Conlin v. Elmer, (1869) 16 Gr. 541 124 Consett Water Works Co. v. Ritson, (1889) 22 Q. B. D. 318, 702 205 Coombs V. Wilkes, (1891) 3 Ch. 77 42, 58 Cooper V. Stuart, (1889) 14 App. Cas. 286 159 Coppinger v. Gubbins, (1846) 3 J. & L. 397, 410 117, 137 Corbin v. Lookout Mining & Milling Company (Foreign), (1897) 5 B. C. R. 281 568 Corporation of London v. Riggs, (1880) 13 Ch. D. 798 172 Cosgrove v. Corbctt, (1868) 14 Gr. 617 275 Coslakf V. Till, (1826) 1 Russ. 376 97 Covtingham v. Cottingham, (1885) 11 A. R. 624 95, 100 County of G. B. v. Rudry Merthyr S. & H. C. C. Co., (1895) 1 Ch. 629 (C. A.) 46. 191 Coventry v. McLean, (1894) 21 A. R. 176 132 Cooper V. Ince-Hall Co., (1876) W. N. 24 260 Cowell V. Watts, H. & Tw. 224 60 Cowley V. Wollesley, (1866) L. R. 1 Eq. 656 13V Cowper V. Baker, (1810) 17 Ves. 128 258 Cox V. Midland, 3 Ex. 268 455 Craig V. Templeton, (1860) 8 Gr. 483 184 Crain v. Rapple, (1893) 20 A. R. 291 79 Crawshay v. Collins, (1808) 15 Ves. 218 99 V. Maule, (1818) 1 Swanst. 518 and 495 59, 141 Croft V. Luniley, (1857), (1858) 6 H. L. C. 67-J, 705 130. 289 Cromford Canal Co. v. Cutts, (1848) 5 Railway Cases, 442 238 Compton v. Lea, (1874) 19 Eq. 115 230 Crosstleld v. Gould. (1883) 9 A. R. 218 98 Crossley v. Lightowler, (1867) L. R. 2 Ch. 478 .226, 227, 233 Crowther v. Elwell, (1838) 4 M. & W. 71 231 xxvni TABLE OF CASES PAGE Crumble v. Wallsond Local Board, (1891) 1 Q. B. D. 503 207 Curtis V. Curtis, (1789) '-' Bro. Ch. Rep. 620 183 V. Daniel, (1808) 10 Bast, 273 109, 155 Cullana v. George, (19th Apr., 1898) 34 C. L. J. 363 532 Cushlng V. Davles, 13 L. C. R. 515 334 Dainty v. Vldal, (1886) 13 A. R. 47 ^^ Dale V. Hamilton, (1846) 5 Han. 369; (1847) 2 Ph. 266 59, 60, 61 Dalton V. Angus, (1881) 6 App. Cas, 740. 792-798 206, 207, 208 Dand v. I^lngscote, (1840) 6 M. & W. 174 170 Daniel v. Grade, (1844) 6 Q. B. 145 110 V. Stepney, (1874) S. C. L. R. 9 Exch. 185, reversing S. C. L. R. 7 Exch. 327 122 Darby v. Darby, (1856) 3 Drew. 506 141 Dark v. Johnston, (1867) 55 Pii. 164 225 Darley Main Colliery Co. v. Mitchell, (1886) 11 App. Cas. 127. . .203, 207, 208 Dartmouth, Earl of, v. Spittle, (1871) 24 L. T. N. S. 68 145 Darvill v. Roper, (1855) 3 Drew. 298 38, 39 Dashwood v. Magnlac, (1891) 3 Ch. 360 137, 138 Davles v. Marshall, (1861) 10 C. B., N. S. 711 106 Davis V. McPherson, (1873) 33 U. C. R. 376 27G V. Shepherd, (1866) L. R. 1 Ch. 410-416 80, 116 • V. Treharne, (1881) 6 App. Cas. 460, 466, 469 122, 156, 203, Davenport v. The Queen, (1877) L. R. 3 App. Cas. 115 130, 205, 218, 289, 414 De Bell v. Thompson, (1841) 3 Beav. 469 42 Degear v. Smith, (1865) 11 Gr. 570 188 Delta V. Williams, (1888) 40 N. W. 940 455 De Mattos v. Gibson, (1859) 4 DeG. & J. 276 70 Dendy v. Nicholl, (1858) 4 C. B. N. S. 376 130, 288 Denis v. Schuchburgh, (1840) 4 Y. & C. 42 140 Denison v. Holllday, (1857) 1 H. & N. N. S. 647; (1858) 3 Exch. Rep. (N.S.) 670 39,165 V. Maltland, (1891) 22 O. R. 166, 174 130 Dennett v. Atherton, (1872) L. R. 7 Q. B. 316 126 Dent V. Auction Mart Co., (1866) L. R. 2 Eq. 238 235 V. Dent, (1861) 30 Beav. 363 140 Dery v. Peek, (1888) 14 A. C. 337 95 D'estlmauvllle v. Tousignautesqual, (1875) 1 Q. L. R. 39 73 Devonshire v. Pattinson, (1887) 20 Q. B. D. 263, 273 55, 162 Dicconson v. Talbot, (1870) L. R. 6 Ch. 2 102 Dfckin V. Hamer, (1860) 1 Dr. & Sm. 284 183 Dickinsin v. The Grand Junction Canal Co., (1852) 7 Exch. 282 224 Dickinson v. Handsley, (1888) 5 T. L. R. 339 651 Dixon V. Caledonian Co., (1879) 5 A. C. 820; (1880) 5 A. C. 833 ....236, 239 Dixon V. Gayfere, (1857) 1 DeG. & J. 655 188 V. McLaughlin, (1854) 1 E. & A. 370 160 --^ TABLE OF CASES ] XXIX Dixon V. The Metropolitan Board of Works, (1881) 7 V. Snetsinger, (1872) 23 U. C. C. p. 235 PAGE3 Q. B. D. 421 .... 230 6, 7, 9, 163 V. White, (1883) 8 App. Cas. 833, 843 203 204 205 Doan V. McKenny, (1854) 2 N. S. R. 328; James, 328 ' '193 Doe V. Banks, (1821) 4 B. & Al. 401 V. Birch, (1836) 1 M. & W. 406 .113, Doe dem. Anderson v. Todd, (1846) 2 U. C. R. 82 Freeland v. Burt, (1787) 1 T. R. 701 Hunley v. Wood, (1819) 2 B. & Al. 739, 724 .104, Harrison v. Hampson, (1847) 4 C. B. 267 Irvine v. Webster, (1842) 2 U. C. R. 224 ■ " Johnston v. Jardlne, (1573) 14 N. B. R. 338 Morgan v. Williams -Robins V. Warwick and Birmingham Canal'co.',' (1836)" 2' Scott,' Doherty v. Allman, (1878) 3 App. Cas. 734 Don V. Warner, (1896) 28 N. S. R. 202 Dougall V. Foster, (1853) 4 Grant, 319-323, Dowman's Case, 5 Co. 12; 2 Inst. 368 Dryden v. Frost, (1837) 3 My. & Cr. 670 . . Duchess Dowager of Cleveland v 127 324 .139, Meyrick, (1868) 37 L. J. Ch. 289 288 5 55 110 162 159 186 73 52 137 459 140 179 187 (N.S.) ...37, 627 Dudden v. Guardians of Chitton Union, (1857) 1 h\&'n' Dudley Canal Co. v. Grazebrook, (1830) 1 B. & Ad 59 ' 9.8 Dugdale V. Robertson, (1857) 3 K. & J. 695, 699 ... . nV "oL Duke of Hamilton v. Graham, (1871) L. R. 2 Sc. Div 165' 168 " ^ Duke of St. Alhans v. Ellis, (1812) 16 East 352 Dumpor's Case, 1 Sim. L. C. 41 Duncroft v. Albrecht, (1841) 12 Sim. 189 Duncan v. Topham, (1849) 8 C. B. 225 . Dunlop V. Higgins, (1848) 1 H. L. C. 381, 399.' '. ,« Dunn v. Birmingham Canal Co., (187"^ ' _ -- 4«' Dunne v. O'Reilly, (1861) 11 U. C 399 2) L. R. 8 Q. B. 42 41, 232 C. P. 404, per Draper, C. 38 226 240 212 167 438 . . . 166 . . . 289 . .. 59 ... 48 49 238 Durham v. Legard. (1865) 34 Beav. 611 . ' ' ^^ '' P' ^^^■•- « Durham and S. R. Co. V. Walker, (1842) 2 Q. B. 965 Dyas v. Stafford, (1881) 7 L. R. Ir. Dyer v. Hargrave, (1805) 10 Ves. 590 505 99 171 57 94 .36, Eadon v. Jeffcock, (1872) L. R. 7 Exch. 379 Eardley v. Granville, (1876) 3 Ch. D 826 Earl of Antrim v. Gray, (1875) 9 Ir. Rep. Eq "520 Earl^^of^Breadalbane v. Jamleson, (1875) Ct. of Sess." Cases. 4th series", 3J9 Earl of Dartmouth v. Spittle, (1871) 24 L. Y. N S. 68 Earl of Hardborough v. Shardlow, (1840) 7 M & W 87 Earl of Sandwich v. Great N. R. Co.. (1878) 10 Ch. D. 707 145 Earl of Rosse v. Wainman, (1845) 14 M. & W. 859, 872 "sV 40 . ... 215 167, 438 165 326 145 52 XXX TABLE OF CASES PAG 10 East London Union v. Metrop. Ry. Co., (1869) L. R. 4 Exch. 310 77 E. I. Company v. Kynaston, (1821) 3 Bli. O. S. 168 260 Ecclesiastical Commissioners v. Tho North-Eastern Ry. Co., (1877) L. R. 4 Ch. D. 845 1.'36, 258 Ecroyd v. Coulthard, (1807) 2 Ch. 554 162 Edgington v. Fitzmaurlce, (1884) 29 Ch. D. 459 96 Egremont v. Courtonay, (1848) 11 Q. B. 702 441 Electric Tolograph Co. v. Salford, (1855) 11 Exch. 189 56 Ellas V. Griffith, (1878) 8 Ch. D. 521 1S9 V. Snowdon Slato Quarries Co., (1879) 4 A. C. 454 117, 137, 189 Elliott V. Directors of the North-Eastern Railway Co., (1863) 10 H. L. C. 333 158, 204, 209, 210, 225, 242, 293 Elliot V. Rokoby, (1882) 7 App. Cas. 43 125 Ellia V. Clemens, (1892) 22 O. R. 216 221 Elwes V. Maw, Smith's Leading Cases, Vol. II., 10th od., 202 133 V. Brigg Gas Co. (1886) 33 Ch. D. 562 38 Embrey v. Owen, (1851) 6 Exch. 353-371 221,222 Empire Gold Mining Co. v. Jones. (1869) 19 U. C. C. P. 245 177 Ennor v. Barwell, (1860) DeG. F. & J. 529; (1860) 2 Gift. 410 223, 260 Erlanger v. New Sombrero P. Co., (1878) 3 App. Cas. 1218 103 Ernest v. Vivian, (1864) 33 L. J. Ch. 513 101 Errington v. Metropolitan Ry. Co., (1882) 19 Ch. D. 559, 568, 569. .40, 41, 236 Esquimault and Nanaimo Ry. Co. v. Bainbridge, (1896) A. C. 561 26, 28, 106, 334 Essex V. Essex, (1855) 20 Beav. 442, 449 59, 60 Evans v. Davis, (1878) 10 Ch. Div. 763 130 V. Mostyn, (1877) 2 C. P. D. 547 309, 627, 645, 664 Evart V. Cochrane, (1861) 4 Macq. Sc. App. 117 233 Fancy v. Stott, (1828) 2 M. & Ry. 335 165 Farebrother v. Simmonds, (1822) 5 B. & Aid. 333 57 Farmer v. Livingstone, (1883) 8 S. C. R. 140 275 Farquharson v. Imperial Oil Co., (1898) 18 C. L. T. 135 219 Farrell v. Carribou Gold Mining Co., (1897) 30 N. S. R. 199 46 Farwell v. The Queen, (1887) 14 S. C. R. 392; (1893, (1894) 22 S. C. R. 553, 561 24, 33, 546 Faulkner v. Faulkner, (1893) 23 O. R. 258 67 Fay v. Prentice, (1845) 1 C. B. 828 55 Featherstonhaugh v. Fenwick. (1810) 17 Ves. 298 99 Fentiman v. Smitli. (1803) 4 East, 107 107 Fereday v. Wightwick, (1829) 1 Russ. & Myl. 45, 49 59, 140, 141 Ferrand v. Wilson, (1845) 4 Ha. 388 137 Fielding v. Church, (1896) 28 N. S. R. 136 456, 459 V. Mott, (1885) 18 N. S. R. 339; (1886) 14 S. C. R. 254; 6 R. & G. 339; 6 C. L. S. 491 409, 411, 427 Filby V. Hounsell, (1896) 2 Ch. 737 58 Flnley v. Chirney, (1888) 20 Q. B. D. 504 259, 260 TAULE OF CASEH XXXI Fisher v. Tally, (1878) 3 App. Cas. 627 291 Fisheries, Provincial. In re, (1896) 26 S. C. R. 444, 546. ..4, 6, 9, 27, 161, 162 Fisken v. Ife, (1897) 28 O. R. 595 191 V. Wride, (1863) 11 Gr. 248 78 Fitzgerald v. Firbank, (1897) 2 Ch. 96 110 Flatt V. Prcscott and Russell, In re, (1890) 18 A. R. 1 57 Fletcher V. Smith, (1877) 2 App. Cas. 786 229.230 Flight V. Booth, (1834) 1 Bing. N. C. 377 99 Foley V. Addenbrooke, (1844) 13 M. & W. 174 134 Folkingham v. Croft, (1817) 3 Anstr. 700 72 Follis V. Porter, (1865) 11 Gr. 442 96 Forder v. Handyside, (1876) 1 Exch. D. 233 24.j Forrer v. Nash, (1865) 35 Beav. 167 82 ForstiT V. Hiile, (1798) 3 Ves. 696 64 Foster V. Fyfe. (1896) 2 Q. B. 104 636 Foster v. Fyfe, (1896) 2 Q. B. 104 688 V. Hale. (1800) 5 V<'S. 309 60 Foster v. Owen, (1892) 9 T. L. R. 22 629 Fothergill v. Rowland, (1873) L. R. 17 Eq. 132 70 Fox V. Mackreth, (1788) 2 Bro. C. C. 420; (1789) 1 Ves. Jr. 69 80. 92 Eraser v. Ryan. (1897) 24 A. R. 441. 443 79, 97 Frechevllle v. Souden, (1883) 48 L. T. N. S. 612 682 Frecht v. Schcek, (1863) 10 Gr. 254 275 French Hoek v. Hugo. (1885) 10 App. Cas. 344 221 French v. Styring, 3 C. B. N. S. 357 454 Funk V. Haldiman. (1866) 53 Pa. 229 225 Gale V. Abbott, (1862) 8 Jur. N. S. 987 235 Gallagher v. Tally. (1888) 7 N. Z. L. R. 35 62 Gamble v. Rees, (1850) 6 U. C. R. 396 177 Gandy v. Gandy, (1884) 30 Ch. D. 57 67 Garrard v. Frankel, (1862) 30 Beav» 445 100 Garth v. Cotton. (1750) 1 Ves. 524. 2 W & T. L. C. (7th ed.) 970 137 Gaved v. Martyn. (1865) 19 C. B. N. S. 732 223 Geary v. Physic. (1826) 5 B. & C. 234 57 General Auction E. & M. Co. v. Smith. (1891) 3 Ch. 432 46 Gerard v. Lewis, (1867) L. R. 2 C. P. 305 69 V. London & N. W. Ry. Co.. (1895) 11 T. L. R. 170 236 German Mining Co.. Re, (1853) DeG. M. ll G. 41 140 Gesner v. Cairns, (1853) 2 Allen, 593, 595 105, 383 V. Gas Company. (1853) 1 James, N. S. R. 72 383, 402 Gibbons v. Cozens, (1898) 18 C. L. T. 179 79, 98 Gibbs V. David, (1875) L. R. 20 Eq. 373, 377 100 V. Messer, (1891) A. C. 248 202 Gibson v. Doeg, (1857) 2 H. & N. 615 71 Gilbertson v. Ferguson, (1879) 5 Ex. D. 57 245 Gil(>s v. Campbell, (1872) 19 Gr. 226 282 Gill V. Dickinson, (1880) 5 Q. B. D. 159 216 XXXll TAIiLh: OF VASES PAOK Glllard v. Bollort, (1893) 24 0. R. 147 288 Gllmour v. Brown, (1817) 1 Mason, 190 188 Glasbrook v. Richardson. (1874) 23 W. R. 51 851 Glasgow V. Farie, (1888) 13 App. Cas. 657, 675, 697 .34, 35, 37, 38, 39, 236 238 V. Hurlet Alum Co., (1850) 3 H. L. C. 25 117 Godwin V. Francis, (1870) L. R. 5 C. P. :i95 57 Goff V. Lister, (1868) 14 Gr. 451 195 Gold Mining Areas, Waverley, (1882) 16 N. S. R. 280; (1883) 4 R. & G. 280 453 " Good Friday," Timber, Indiana, Old Kentuck, and Good Hope Mineral Claims, Re, (1896) 4 B. C. R. 496 545 Goodenough v. Goodcnough (31 January. 1772) Dick. 795 182 V. Farquhar, (1873) 19 Grant, 614 139 Goodman v. Whltcomb, (1820) 1 .1. & W. 589 99 Goodwyn v. Spray, (1786) 2 Dick. 667 138 Goold V. Stockton, (1891) 31 N. B. R. 57 396 Gowan v. Christie, (1873) L. R. 12 H. L. Sc. App. 273, 284 115, 121 Graham v. Musson, (1839) 7 Scott, 769 57 Grand Junction Canal Co. v. Shugar, (1871) L. R. 6 Ch. App. 483 225 Grange v. McLennan, (1883) 9 S. C. R. 385 51 Granger v. Fotheringham, (1894) 3 B. C. R. 590 540 Gray v. Hardman, (1896) 28 N. S. R. 235 260 Great Extended Sluicing Co. v. Hales, Mac. 896; The N. Z. Digest, 1861 to 189-', p. 505 209 Great Laxey Mining Co. v. Clague, (1878) 4 App. Cas. 115-120 294 Great Luxembourg Ry. Co. v. Maguay, (1858) 25 Beav. 586 101 G. W. R. V. Bennett, (1867) L. R. 2 E. & I. App. 27 237 V. Cefor Cribbwen B. Co.. (1894) 2 Ch. 157 238 Grciitorex v. Carey, (1802) 6 Ves. 615 184 Green Mountain Case (unreported) 532 Grei nwell v. Low Beechburn Coal Co., (1897) 2 Q. B. 165 218, 413, 414 Greenwich Hospital v. Blaskett, (1848) 12 Jur. 151 258 Greenwood v. Turner, (1891) 64 L. T. N. S. 261 78 Grey v. Ball, (1876) 23 Gr. 390 78 V. Friar, (1853) 4 H. L. C. 565, 602 130, 131 V. Northumberland, lb. 1282 258 V. Pearson, (1857) 6 H. L. C. 61 176 Grimwood v. Moss, (1872) L. R. 7 C. P. 364 130 Grindley v. Blakie, (1886) 19 N. S. R. 27; 7 R. & G. 27 200 Gunn V. McCarthy, (1883) 13 L. R. Ir. 304 100 Hagarty v. Britton, (1870) 30 U. C. R. 321 283 Haggart v. Scott, (1830) 1 Russ. & My. 293 ... 82 Hague V. Wheeler, (1893) 157 Pa. 324 225 Haigh V. Jaggar, (1847) 16 M. & W. 525 Ill V. Kays, (1872) 7 Ch. 469 64 Haines v. Roberts, (1857) 7 E. &. B. 625 208 Hains' Case, (1872) L. R. 7 Ch. 587 48 TADLE! OF CASES xxxili 453 e . 545 . 182 . 139 . 99 , . 138 , . 396 5, 121 . . 57 .. 225 .. 51 . . 540 , .. 260 ist, 209 294 101 237 238 184 532 13. 414 . . 258 ,.. 78 ... 78 30, 131 . . 258 . . 176 .. 130 .. 200 .. 100 .. 283 .. 82 ... 225 .. Ill ... 64 ... 208 . 48 PAOK Halker v. Porltt, (1873) L. R. 8 Ex. 107, 115 222, 223 Hall V. Hopwood, (1879) 49 L. J. M. C. 17 674, 683 V. Lechflekl Brewery Co., (1880) 49 L. J. Ch. 655 .235 V. Lund, (1863) 1 H. C. 676 233 Hallen v. Rundcr, (1834) 1 C. M. R. 266 66 Hallyman v. Noonan, (1876) 1 App. Cas. 575 284 Halwell V. Township of Wilmol, (1897) 24 A. R. 628 49 Hamelln v. Bannorman, (1895) A. C. 237 220 Hamilton v. Brown, (1866) 6 N. S. R. 260; 2 Old, 260 430 V. Dunlop. (1885) 10 App. Cas. 813 m, 167 V. Hamilton, (1873) 11 N. S. R. E. D. 78 Hamilton, Duke of, v. Graham, (1871) L. R. 2, H. L. Sc. App. 167. ,. 61 . 224 ■ V. Mohun, (1710) 1 P. Wms. 118 182 Hainlyn v. Wood, (1891) 2 Q. B. 488 47 Hampshire Land Co., In re, (1896) W. N. 78 46 Hancock v. Austin, (1863) 14 C. B. N. S. 634 113 Hankey, /vV ixirtr. (1829) Mont. Ma. 1.'47 113 Harbo rough, Earl of, v. Shardlow, (1840) 7 M. & W. 87 52 Harnett v. Baker, (1875) L. R. 20 Eq. 50 81 Harrington v. Duchatcl, (1781) 1 Bro. C. C. 125 73 Harris v. De Pinna, (1886) 33 Ch. Div. 262 235 V. Peperi>ll, (1867) L. R. 5 Eq. 1 100 Harris v. Robinsim, (1892) 21 S. C. R. 390 82, 84, 85 Ryding, (1839) 5 M. & W. 60-70 174, 177, 203, 212 214 Harris' Case, (1872) L. R. 7 Ch. 592 49 Harrison v. Frost, (1874) 34 U. C. R. 110 276 V. Harrison, (1883) 16 N. S. R. 338; 4 R. & G. 338 224 Muncaster, (1891) 2 Q. B. 680 127 Harty v. Appleby, (1872) 19 Gr. 205 78 Haven Gold Mining Co.. Re, (1888) 20 Ch. Div. 151, 160 104, 112 Hawkcn v. Bourne, 8 M. & W. 703 455 Hawk<"sworth v. Chaffey, (1886) 55 L. .1. Ch. 335 50 Hawkins v. M.ahaffy, QSSl) 29 Gr. 326 159 Hawksley v. Outram, (1892) 3 Ch. 359 50 Hawtyne v. Bourne, 7 M. & W. 595 455 Hayford v. Criddle, (1855) 22 Beav. 480 166 Haywood v. The Brunswick Permanent Benefit Building Society, (1881) 8 Q. B. D. 403 71 Head's Trustees, Re. v. Macdonald. (1890) 45 Ch. D. 310 82 Heaphy v. Hill, (1824) 2 Sim. & Stu. 29 90 Hearn v. Central Broken Hill S. M. Co., (1895) 16 N. S. W. L. R. (E.) 87 47 Heathcote v. The North S. R. Co., (1859) 2 Mac. & G. 100 70 Hebb's Case, (1867) L. R. 4 Eq. 12 49 Hedley. Re, (1886) 20 N. S. R. 130; (1887) 8 R. & G. 130; (1888) 8 C. L. T. 376 433 Henderson v. Eason, (1851) 17 Q. B. 701 140 v. Hay, (1792) 3 Bro. C. C. 63'2 72 C— M •f — XXXIV TAULt: 01' C'.l&L'y PAGE Henderson v. Kllley, (1889) 17 A. R. 458 67 Hennessey v. Myers, (1832) 2 0. S. 424 159 Henthorn v. Friisor, (1892) 2 Ch. 31 48, 49 Htess Manufacturng Co., Re, Etlgar v. Sloan, (1894) '23 S. C. R. 667.. 103 Hughes V. Williams, (1806) 12 Vi'S. 493 190 Hewllns v. Shippam, (1826) 5 B. & C. 221 107 Hext V. Gill, (1872) L. R. 7 Ch. Ap. 699 34, 35, 37, 174, 175, 203, 205 Heydon's Case, (1584) 3 Co. Ri-p. 7a G09 Heywood v. Cope, (1858) 25 Deav. 140 87 Hlgglns V. Samels, (1862) 2 J. & H. 461 92 Hlgglnson v. Hapley, (1869) 19 L. T. N. S. 690 682,685 Hlgham v. Wright, (1877) 2 C. P. D. 401 682 Hills V. CroU, (1846) 2 Ph. 60 70 Hilton V. Gerand, 1 DeG. & S. 187 59 V. Granville 158 V. Woods, (1867) L. R. 4 Eq. 432 254 Hindson v. Ashby, (1896) 2 Ch. 1 161 Hobbs V. Ontario L. & D. Co., (1890) 18 S. C. R. 537 76 Hobson V. Gorringe, (1897) 1 Chy. 182 133 Hoby V. Hoby, (1683) 1 Vern. 218 179, 182 Hodglns V. McNeil, (1862) 9 Gr. 305 6 Hodgkinson v. Crowe, (1875) L. R. 10 Ch. 622 75 Hodgkinson v. Ennor, (1863) 4 B. & S. 229 226 V. Fletcher, (1781) 3 Doug. 31 143 Hodson V. Moulson, (1865) 18 C. B. N. S. 332 124 Hogaboom v. Graydon, (1894) 26 O. R. 298 288 Hoggan V. Esquimault & Nanaimo R. W. Co., (1891) 20 S. C. R. 235, App. P. C. 23 288 Holo V. Thomas, (1802) 7 Ves. 589 139 Holford V. Bailey, (1849) 13 Q. B. 426, at p. 446 110 Holland v. Hodgson, L. R. (1872) 7 C. P. 328 135 V. Moore, (1866) 12 Gr. 296 195 V. Ross, (1890) 19 S. C. R. 566 289 Holliday v. Wakefield, (1891) A. C. 81 238 Holllns V. Verney, (1884) 13 Q. B. D. 304 234 Holmes v. The Eastern Counties Ry. Co., (1857) 3 K. & J. 675. 70 V. Powell, (1856) 8 DeG. M. & G. 580 77 Hood V. Easton, (1856) 2 Giff. 692 189 V. Lord Barrington, (1868) L. R. 6 Eq. 218 58 79 632 Hooper v. Smart, (1874) L. R. 18 Eq. 683 Hopkinson v. Caunt, (1885) 14 Q. B. D. 592 Re Hopper, (1867) L. R. 2 Q. B. 370-6 411 Home V. Munro, (1858) 7 U. C. C. P. 433 276 Horrock v. Rigby, (1878) 9 Ch. D. 180 79 Houghton V. Gilbert, (1836) 7 Car. & P. 701 41 Household F. & C. A. I. Co. v. Grant, (1879) 4 Ex. D. 216 49 Howard v. Duncan, (1821) 1 T. R. 81 102 TAULE OF CAULS XXXV 67 159 49 103 190 107 205 009 87 92 , 685 . 682 70 . 59 158 . 254 . 101 . 76 . 133 9, 182 ,. 6 . . 75 . . 226 . . 143 .. 124 .. 288 288 139 110 135 195 289 238 234 . 70 . 77 , 189 . 58 . 79 . 632 . 411 . 276 . 79 . 41 , . 49 . . 102 PAflK Howe V. Smith, (1884) 27 Ch. D. 89, 101 79 Howells V. Landore Steele Co., (1874) L. R. 10 Q. B. Cl* 656 V. Wynne. (1863) 15 C. B. N. S. 3 682, 683 Hiwy V. Birch, (1804) 9 Ves. 357 86 HiKlHon V. Tiibor, (1877) 2 Q. B. D. 290 232 Hugglns V. London, (1891) 1 Q. B. 490 651 Hughes V. The United Pipe Lines, (1890) 119 N. Y. 423 225 Hughaon v. Davis, (1853) 4 Gr. 588 188 Humphries v. Brogden, (1850) V2 Q. B. 739, 744 109, 155, 203, 214 Hunt V. Peake, (1860) 29 L. J. N. S. Chy. 785 208 Huntsniiin v. Lynd, (1879) 30 U. C. C. P. 100 160 Hurdman v. North E. Y. Co., (1878) 3 C. P. D. 174 230 HuBsey v. Horne-Pnyne, (1879) 4 App. Cas. 311 49, 81 Hutchison V. Bowker, (1839) 5 M. & W. 535 41 V. Calder, (1885) Cassels" Dig. 786 96 Huxham v. Llewellyn, (1873) 21 W. R. 570 85 Hyatt V. Mills, (1890) 20 O. R. 365; 19 A. R. 329 283 Hyde v. Graham, (1862) 1 H. & C. 593 105 Icely V. Grew, (1836) 6 Nev. & M. 467 97 Her V. Nolan, (1861) 21 U. C. R. 309 276, 283 Israel v. Lelth, (1890) 20 O. R. 361 233 Jackson v. Wilkes, (1836) 4 O. S. 142 275 Jacobs V. Seward, (1872) L. R. 5 E. & L App. 464 140 James v. Cochrane, (1853) 8 Exch. 550 123 James v. Smith. (1891) 1 Ch. 384 63 James v. Stevenson, (1893) A. C. 162 202 V. Young, (1884) 27 Ch. Dlv. 652. 633 114, 130, 289 Jarrett v. Hunter, (1886) 34 Ch. D. 182 42 Jefferys v. Fairs. (1876) 4 Ch. D. 448, 452 88. 121, 122 v. Smith, (1820) 1 J. & W. 298 141 Jeffrey McColl, Re, (1889) 22 N. S. R. 17, 19 402, 450 Jeffries v. Alexander, (1860) 8 H. L. C. 594, 629 532 • v. Williams, (1850) 5 Exch. 792 206 Jegon v. Vivian, (1871) L. R. 6 Ch. Ap. 742-757 119, 125, 126, 231, 234 254. 255, 525 Jenkins v. Central Ontario R. Co.. (1883) 4 0. R. 593 236 Jennings v. Broughton, (1853) 5 DeG. M. & G. 126 94 Jennison, Re. (1897) 28 O. R. 136 222 Jenny Lind Co. v. Bradley-Nicholson Co.. (1883) 1 B. C. R. 185 (Part 2) 554 Jersey v. Guardians of the Neath Poor Law Union. (1889) 22 Q. B. D. 555. 558 35, 36, 169, 175 Jervis v. Tompkinson, (1856) 1 H. & N. 208 121 Job V. Potten, (1875) L. R. 20 Eq. 84 139 J&hnson et al v. Aylmer, 1 L. C. L. J. 67, and 18 Matthiew. 145 334 John V. Jenkins, (1832) 1 Cro. & M. 227; 3 Tyrwk. 170 75 XXXVl TAHLE OP VASES PA<1K Johnson v. Porens, (1857) 3 Sim. & Q. 419 98 Jolccy V. Dickinson, (1881) 45 L. T. N. S. 643 254 JolUffe V. BaktT, (1883) 11 Q. B. D. 255 95 Jones V. Carter, (184C) 15 M. & W. 718 130, 288 Jones V. Clifford, (1876) 3 Ch. D. 179, 791 100 Jones V. Cwmorthen Slate Co., (1879) 4 Ex. D. 95 38 Jones V. Fisher, (1890) 17 S. C. R. 515 233 Jones V. Morgan, (1882) 22 N. B. R. 115 193 Jones V. Reynolds. (1S41) 1 Q, B. ;>06; (1836) 4 A. & E. 805 74, 75, 113 Jones V. Shears, (1840) 4 A. & E. 832, 837 122, 132 Jones V. Thomas, (1823) 1 B. & C. 719 48 .Tost V. McCliilHh, (1893) 25 N. S. R. 519 200. 456 Kalns V. Turvllle, (1871) 32 U. C. R. 17 162 Kay V. Johnston, (1856) 21 Bejjv. 536 140 Keating V. Sparrow. 1 Bell & Beatlle, Ir. Ch. Rep. 367 289 Kelly V. Webster, (1852) 12 C. B. 283 53 Kemeys-Tynte v. Kemeys-Tynte, (1892) 2 Ch. 211, 216 137, 182 Kennedy v. Lawlor, (1868) 14 Gr. 224 275 V. Oldham, (1888) 15 O. R. 433, Q. B. D 57 Kensit V. G. E. Ry. Co., (1884) 27 Ch. D. 122 2;i2 Kent V. Kerry, (1795) 1 Str. 625 179 Keppel V. Bailey, (1834) 2 My. & K. 517 70 Kerney v. The White Haven Co., (1893) 1 Q. B. 700 651 Kerrlson v. Smith. (1897) 2 Q. B. 445 107 Kettlewell v. Watson, (1884) 26 Ch. D. 507 187 Keys V. O'Brien, (1800) 20 U. C. R. 12 177 Keyse v. Powell, (1853) 2 E. & B. 132, 144 109, 143, 155 Kllbourno v. McGuigan, (1897) 5 B. C. R. 233 534 King V. Dunsford, (1835) 2 A. & E. 568 37 Kingston v. Can. Life Assurance Co., (1890) 19 O. R. 453 244, 245, 252 Kinney v. Harris, (1897) 5 B. C. R. 229 571 Kinsman v. Jackson, (1880) 42 L. T. N. S. 80 125 Klrchoffer v. Stanbiiry. (1878) 25 Gr. 413 160 Klsch V. Central Ry. Co. of Venezuela, (1867) L. R. 2 E. & I. 99 93 Kltchlng V. Hicks, (1884) 6 O. R. 739 73 Knatchbull v. Grueber, (1817) 3 Mer. 124 88 Knight V. Grnvesend W. Co., (1857) 2 H. & C. 6 47 Knight V. Simmonds, (1896) 2 Ch. 294 71 Knowles v. Dickinson, (1860) 2 E. & E. 705 674 Knowles v. Lancashire & Y. Ry. Co., (1889) 14 App. Cas. 248 238 Ladywell Mining Co. v. Brookes. (1887) 35 Ch. D. 400 101 Lalng V. Whaley, (1858) 3 H. & N. 675 222 Laird v. Plm, (1841) 7 M. & W. 474 77 Lamare v. Dixon, (1873) L. R. 6 H. L. 423 84 Lamb v. Walker, (1878) 3 Q. B. D. 389 207 Lancaster v. De Trafford, (1862) 31 L. J. Ch. (N. S.) 554 92 TABLE OF CASES xxxvii PAQE I.nncey v. Johnston, (1881) lid Or. 67 118. 137 Laurler rt al. v. Dfsbariits et al., R. J. Q. 9. C. S. 274 327, 334 Lawless v. SuJllvan, (1881) 6 App. Cas. 373 245, 247, 252 Lawrence v. Pomeroy, (1863) 9 Gr. 474 275 Lawton v. Ltiwton, (1743) 3 Atk. 13 134 Laythotirp v. lliyant, (183C) 3 Scott, 238 57 Lend Smelting Co, v. Richardson, (1762) 3 IJurr. 1341 41 Le IJIanch v. Granger, (1866) 35 Deav. 187 70 Leo V. Gaskell, (1876) 1 Q. D. D. 700 60 I-eetch V. Sears, (1889) .30 N. B. R. 257 18G Leigh V. Dickenson, (1884) 15 Q. D. D. 60, 69 140 Lemaitre v. Davis, (1881) 19 Ch. D. 281 206 Lenty v. Hillas, (1858) 2 DeG. & J. 110 100 Leppington v. Freem,in, (1891) 40 W. R.; (1892) 66 L. T. N. S. 357. .122, 161 Lewis V. nranthwiiite, (1831) 2 B. & Ad. 437 155 V. Fotherglil, (1869) L. R. 5 Ch. 109-111 125 V. Gordon, (1888) 15 O. R. 252 138 V. James, (1886) 32 Ch. D. 326 80 Liggins V. Inge, (1831) 7 Uing. 682 106 Limnier v. Asphalt Co. v. Com. of Inland Revenue, (1872) L. R. 7 Exch. 216 70 Lindsay Petroleum Co. v. Hurd, (1874) L. R. 5 P. C. 221 101 Liquidators Maritime Bank v. Receiver-General, (1892) App. Cas. 443 151 Livingstone v. Rawyards Coal Co., (1880) 5 App. Cas. 25, 40. ...254, 255, 257 Lloyd v. Nowell, (1895) 2 Ch. 744 50 Lloyd V. Union Insurance Co., (1875) 2 Pug. 498 97 Llynvl V. Brogden, (1870) L. R. 11 Eq. 188 256 Lomax v. Stott, (1870) 39 L. J. N. S. Ch. 834 231 London, Bishop of, v. Web, (1718) 1 P. W. 527 139 London Brewery Company, City of, v. Tennant, (1873) L. R. 9 Ch. 221. 235 London & Can. Loan Co. v. Warin, (1886) 14 S. C. R. 232 234 London Mutual Ins. Co. v. City of London, (1887) 15 A. R. 636 246 London & N. W. Ry. Co. v. Buckmaster, (1875) L. R. 10 Q. B. 444.... 110 London & North-Eastern Railway Co. v. Evans, (1893) 1 Ch. 16-27, 30.. 156, 158, 209, 210, 242, 293 London & S. W. R. Co. v. Gorman, (1882) 20 Ch. D. 581 57 Long v. Hancock, (1886) 12 S. C. R. 532 46 Longbottom v. Berry, (1869) L. R. 5 Q. B. 123 135 Loosemoro v. Tiverton, etc., Ry. Co., (1882) 22 Ch. D. 43 41 Lord Breadalbane v. Menzies, (1822) 1 Shaw App. 225 38 Lord V. Commissioners of Sydney, (1859) 12 Moo. P. C. 473-483 162 Lord V. Lord, (1855) 5 E. & B. 404 411 Loucks V. Wallbridge, (1873) 31 U. C. Q. B. 32 67 Longhead v. Stubbs, (1880) 27 Gr. 387 80 Love V. Bell, (1884) 9 App. Cas. 286, 289 203, 205 Low Moor Cq. v. The Stanley Coal Co., (1876) 34 L. T. N. S. 186 112, 143, 155, 254 Lowther v. Heaver, (1889) 41 Ch. D. 264 76 « i.Xj XXXVIU TABLE OF CASES PAGE Lucas V. Calcraft, (1782) 1 Bro. Ch. Rep. 134 184 V. James, (1849) 7 Ha. 410 84 Luddy's Trustee v. Peard, (1886) 33 Ch. D. 520 93 Ludford v. Barber, (1786) 1 T. R. 86 73 Luker v. Denis, (1877) 7 Ch. D. 227 70 Lyddal v. Woston, (1739) 2 Atk. 19 26, 82,103 Lyle V. Richards, (1866) L. R. 1 E. & I. 222 116 Lynch v. Soymour, (1887) 15 S. C. R. 341 107 Lyon V. Fishmongers' Co., (1876), (1877) 1 App. Cas. 622 29, 220, 222 Mayor of Congloton v. Pattison, (1808) 10 East, 135 72 Mayor of Emmdon v. Blackwood, (1877) 2 App. Cas. 574 27 McAllister v. Biggs, (1883) 8 A. C. 314 201 JIcArthur v. Brown, (1888) 13 Q. L. R. 168: 17 S. C. R. 61 116, 334 McCann v. Chisholm, (1883) 2 O. R. 506 203 McColl V. Ross, (1896) 28 N. S. R. 1 435 McCormack v. Grogan, (1869) 4 H. of L. 97 03 McCowan v. Baine, (1891) A. C. 408 48 McCulloch V. Gregory, (1855) 1 K. & J. 286 96 McDiarmid v. McDiarmid, (1862) 9 Gr. 144 -'75 V. Hughes, (1888) 16 O. R. 570 5, 149, 150 McDonald v. Estabrooks, (1860) 9 N. B. R. 450 186 V. Geldert, (1874) 9 N. S. R. 551; 3 N. S. D. 555 454 V. Murray, (1885) 11 A. R. 101 66, 78 V. Powor, (1878) 12 N. S. R. 340; 3 R. & C. 340 454 McDonnell v. McKinty, (1847) 10 Ir. L. R. 514, 521, 524 40, 144, 145 McGill V. Shea, (1846) 2 U. C. R. 483 15D McGregor v. Calcutt, (1868) 18 U. C. C. P. 39 :i84 Mclndoe v. The Jutland Flat Waipori Gold Mining Co., (1892) 12 N. Z. L. R. 226 227 Mclntyre v. Attorney-General, (1867) 14 Gr. 86 275 McTntyre v. Faubert, (1895) 26 O. R. 427 58 V. Hood, (1884) 9 S. C. R. 565 43 McKay v. McDonald, (1896) 28 N. S. R. 99 82 McKonna v. McNamee, (1887) 15 S. C. R. 311 73 McKenzie v. McGlaughlin, (1885) 8 Ont. R. 115-116 105,107 McLiiren v. Cook, (1847) 3 U. C. R. 299 233 McLean v. Laidlaw, (1846) 2 CJ. C. R. 222 184 McLean v. McKay, (187.'?) L. R. 5 P C. 327 73 McMahon v. Berton, (1851) 2 ^'lei., J2], 353 363 McMillan v. The Great ExteniK-d sJlaiv;;-,', Co., a886) 4 N. Z. L. R. S. C. 377 227 McNab V. Robinson, (1897) A. C, 129 223 McNeil V. McDougall, (1896) 28 N. S. R. 296 193 Jlacbryde v. Weekes, (1856) 22 Beav. 533 97 Macdonald v. Lake Simcoe Ice Co., (1898) 18 C. L, T. 178 222 Macdonald v. Sullivan, (1890) 14 P. R. 60 198 Mackroth v. Symons, (1808) 15 Ves. 329 ." 187 TABLE OF VAUES xxxix PAGE Magor V. Chadwlck, (1840) 11 A. & E. 571 223 Maddison v. Alderson, (1883) 8 App. Cas. 467 86 Mahon v. McCully, 1 N. S. D. 323 58 Mahoney v. East Halfoid Mining Co., (1875) L. R. 7 H. L. 869 46 Major V. McCraney, (1897) 5 B. C. R. 571 73 Malcolm v. Hunter, (1884) 6 O. R. 102 234 Miiloney v. Campbell, (1897) S. C. R., not yet Rep 67 Malegii Barrens, Re, E.r ixirtc, McLeod, (1887) 20 N. S. R. 44; (1887) 8 R. & G. 44 435 Malon V. McLean, (1867) 13 Gr. 361 275 Manning v. Commissioner of Titles, (1890) 15 A. C. 195 202 Maple Leaf and Lanark Mineral Claims, Ro, The, (1893) 2 B. C. R. & G. 44 435 Marsden v. Moore, (1859) 4 H. & N. 500 82 Martin v. Cotter, (1846) 3 J. & L. 496. 509 103 Martin v. Kennedy, (1850) 2 Gr. 80, p. 275; (1853) 4 Gr. 61 275 V. Porter, (1839) 5 M. & W. 351 256, 93 Martley v. Carson, (1888) 20 S. C. R. 634 233 Martyn v. Williams, (1857) 1 H. & N. 817 72, 112 IM.ason v. Hill, (1853) 5 B. & Ad. 1 223 V. Shrewsbury & H. Ry. Co., (1871) L. R. 6 Q. B. 587 223, 226, 233 Massey v. Sladen, (1868) L. R. 4 Ex. 13 48 Mather v. Eraser, (1856) 2 K. & J. 536 135 Matthewson's Case, (1597) 5 Co. Rep. 23(( 68 Mawsou V. Fletcher, (1870) L. R. 6 Ch. 93 166 Maxwell v. Griswold, (1850) 10 Howard, 242 441 May V. McArthur, (1884) 20 C. L. J. 248; 4 C. L. T. 336 96 V. Woodward, (1677) 1 Freem. 2 18 69 Medway Navigation Co. v. Romney, (1861) 9 C. B. N. S. 575 220 Meggott V. Meggott, (1742) Dick. 794 182 Mellers v. Devonshire, (1852) 16 Beav. 252 122 Merchants Bank of Halifax v. Gillespie, (1884) 10 S. C. R. 312 154 Merchants Bank v. Monteith, (1885) 10 O. R. 529 288 Meredith v. McCutcheon, (1863) 13 C. P. 209 177 Metropolitan Ry. Co, & Cosh, In re, (1880) 13 Ch. D. 612 40 Metrop. Ry. Co. v. Fowler, (1893) App. Cas. 416 56 Mewburn v. Mackelcan, (1892) 19 A. R. 729 67 Miall v. Brain, (1819) 4 Madd. 119 184 Micklethwait v. Winter, (1851) 6 Exch. 644 37 Micklelhwait v. Newlay Bridge Co., (1886) 33 Ch. Div. 133 162 Middleton v. Flanagan, (1894) 25 0. R. 417 288 Midland Railway Co. v. Checkley, (1867) L. R. 4 Eq. 19 35, 37, 294 v. Haunchwood B. & T. Co., (1882) 20 Ch. Div. 552.. 37, 208. 238, 253 33 Ch. D. 632 240 ■ v. Robinson, (1889) 15 App. Cas. 19. 30 35, 36. 206, 238 Miller v. Cochran Hill Gold Mining Co., (1896) 29 N. S. R. 304 454 Miller v. Miller, (1872) L. R. 13 Eq. 263 137 V. Palmer, (1835) 3 0. S. 425 276 xl TABLE OF r.l&£& ii PA a 13 Mlllett V. Davoy, (1862) 31 Beuv. 470 190 Milner's Appi-al, Ri>, (1877) 11 N. S. R. 522; 2 R. & C. 522 417, 434 Mllnes V. Branch, (1816) 5 M. & S. 411 72 Milner v. Gilmour, (1858) 12 Moo. P. C. 131-156 220, 227 .^ines Case, The, 1 Plowd. 336, 336« 24 Minshall v. Lloyd, (1837) 2 M. & W. 450 134 Mitchell V. Dors, (1801) 6 Ves. 147 258 Moffat V. Scratch. (1885) 12 A. R. 157 15U Moorcock, The, (1889) 14 P. D. 64 48 Moore v. Black, (1735) Forr. 126 . . . ^ 182 Moot V. Gibson, (1891) 21 O. R. 248 67 Morgan v. Crawshay, (1817) L. R. 5 H. L. 304 41 Morgan deni. Dowding v. Bissell, (1810) 3 Taunt. 65 75 Morgan v. Lailey, (1873) 33 U. C. R. 375 106 V. Pike, (1854) 14 C. B. 473 69 V. Slaughter, (1793) 1 Esp. N. P. C. 7 72 V. Worthington, (1878) 38 L. T. N. S. 443 89 Morse v. Heuston, (1859) Cochran, 61 51 Mostyn v. Lancaster, (1883) 23 Ch. D. 600 69 V. West Mostyn, etc., (1876) 1 C. P. D. 145 103 Mott V. Lockhart, (1883) 8 App. Cas. 568-9; 52 L. J. P. C. 61; (1883) 52 L. J. P. C. 61 408, 417, 450 Mouys V. Leake, (1799) 8 T. R. 411; (1807) 8 East, 234 66 Mundy v. Jolliffe, (1839) 5 My. & Cr. 177 80 V. Mundy, (1793) 4 Bro. Ch. Rep. 294, S. C; (1793) 2 Ves. Jr. 222, S. .C 183 V. Duke of Rutland, (1883) 23 Ch. D. 81, 176 209 Murchie v. Black, (1865) 19 C. B. N. S. 190 209 Murdock v. Currell, (1893) 25 N. S. R. 293 86 Murphy v. Boese, (1875) L. R. 10 Ex. 126 57 Murray v. Duff, (1895) 33 N. B. R. 351 363 V. Smith, (1848) 5 U. C. R. 225 160 Muskett V. Hill, (1839) 5 Bing. N. C. 694 107 Muston V. Blake, (1872) 11 N. S. W. S. C. R. (L.) 92 101 Mutchmore v. Davis, (1868) 14 Gr. 346 275 Natal V. Behrens, (1889) 14 App. Cas. 336 289 National Bank of Australia v. The United Hand-in-Hand, (1879) 4 A. C. 391 201 Neath v. Brecon Ry. Co., Re, (1876) 2 Ch. D. 201 238 Neil V. Proulx, R. J. Q. 1 C. S. 565 156, 326, 334 Neild V. L. & N. W., (1874) L. R. 10 Ex. 4 228 NethersoU Colliery Co. v. Bourne, (1889) 14 A. C. 228 r651 New Moss Colliery Co. v. Manchester S. & T. Ry. Co., (1897) 1 Ch. 525. 238 Newby v. Harrison, (1861) 1 J. & H. 393 112 Newcomen v. Coulson, (1877) 5 Ch. D. 142-3 40 New River Co. v. Johnson, (1860) 2 E. & E. 436 225, 275 Newell V. Radford, (1867) L. R. 3 C. P. 52 42 Niagara Falls Park Commissioners v. Bush, (1887) 14 A. R. 73 55 TABLE OF CASES xli PAGE Niagara Falls Park, Commissioners of, v. Howard, (1896) 23 A. R. 355 27 411 229 283 Nichols V. Gumming, (1877) 1 S. C. R. 407 V. Marsland, (1876) L. R. 2 Ex. Div. 1 Nicholson v. Page, (1868) 27 U. C. R. 318 Niles V. Burke, (1873) 1 Pug. 237 163 Nltro-Phosphate Co. v. St. Katherine Dock Co., (1878) 9 Ch. Div. 515. 230 Northam v. Hurley, (1853) 1 E. & B. 655 234 Northcote v. Vigeon, (1894) 22 S. C. R. 740 84 N. & F. S. Ry. Co. V. Jerry, (1897) 5 B. C. R. 396 517, 525, 539, 541 Northrup Mining Co. v. Dimock, (1895) 27 N. S. R. 112 . . 101 North Shore Ry. Co. v. Pion, (1889) 14 App. Cas. 612-621 219, 220, 221 Norval v. Pascoe, (1864) 10 Jur. N. S. 792; (1864) 34 L, J. N. S. Ch. p. 82 72.113 Nugent V. Smith, (1875) 1 C. B. D. 34 230 Nutbrown v. Thornton, (1784) 10 Ves. 161 84 Nuttall V. Bracowell, (1866) L. R. 2 Ex. Div. 1 222, 223 183 209 209 86 57 303 160 107 101 27o 289 201 238 334 228 051 238 112 40 275 42 55 O'Donohoe v. Stammers, (1884) 11 S. C. R. 358 O'Keefe v. Taylor, (1851) 2 Gr. 305 Ockenilen v. Hcnly, (1858) E. B. & E. 492 Oldfield v. Dickson, (1889) 18 O. R. 188 Oliver v. Lockie, (1895) 26 O. R. 28 v. Richardson, (1803) 9 Ves. 222 Ont. Natural Gas Co. v. Gjsflold. (1891) 18 A. R. 625 V. Smart, (1890) 19 O. R. 591 34, 37, Okill V. Whittaker, (1847) 2 Phil. 340; (1849) 1 DeG. & S. 83 Omnium S. Co. v. Richardson, (1884) 7 O. R. 182 Onions v. Cohen, (1865) 2 H. & M. 354 Orr Ewing v. Colquhoun, (1877) 2 App. Cas. 839 Orr Ewing, In re Orr Ewing v. Orr Ewing, (1882) 22 Ch. D. 450. ... Omerod v. Todmorden Mill Co., (1883) 11 Q. B. D. 155; (1883) 52 L. J. Q. B. 445, 450 222, Osborne v. City of Kingston, (1893) 23 O. R. 382 V. Henderson, (1889) 18 S. C. R. 698 V. Morgan, (1888) 13 App. Cas. 227 427, 469, Ovens, Re, (1891) 23 N. S. R. 376 435, Oven v. Davidson, (1860) 10 U. C. C. P. 302 V. Davidson, (1860) 10 U. C. C. P. 302 Page V. Midland Ry. Co., (1893) 42 W. R. 116 V. Norfolk, (1891) 70 L. T. 781 Paget V. Marshall, (1884) 28 Ch. D. 255 Palgrave Mining Co. v. McDonald, (1891) 24 N. S. R. 74-75 V. McMillan, (1892) App. Cas. 460; 25 N. S. R. 57 414, 415, Palmer v. Johnstcm, (1884) 13 Q. B. D. 351 V. Temple, (1839) 9 Ad. & E. 508 V. Upward, (1886) 7 N. S. W. L. R. (L.) 296 58 78 79 98 223 184 243 137 99 89 88 220 67 227 55 67 520 450 284 284 69 50 100 411 438 100 79 66 r "?"ja.--!ft ' ',.« j_aJ xlii TABLE or CASKS Jl PAGB Palmer v. Wallbridgo, (1888) 15 S. C. R. 650 110, 334 Palyart v. Leckie, (1817) 6 M. & S. 290 97 rarkcr v. Frith, (1819) 1 Sim. & S. 199« 97 V. Elliott, (1852) 1 U. C. C. P. 470 . , V. Taswell, (1858) 2 Dt'G. & J. 559 V. Whyto, (1863) 1 H. & N. 167 163 76 70 Parton v. Crafts, (1864) 16 C. B. N. S. 11 57 Partridge v. Scott, (1838) 3 M. & W. 220 217 Patterson v. Central Canada L. Co., (1898) 29 O. R. 134 138 V. Strauss G. M. Co., (1889) 5 N. S. W. W. N. 154 65 Paynter v. James, (1867) L. R. 2 C. P. 348, 354 48 Pell V. Shearman, (1855) 10 Exch. 766 123 Pennant's Case, 3 Rep. 64« 289 Pennsylvania Coal Co. v. Sanderson, (1886) 56 Am. Rep. 89; 113 P. A. 136 226 Penrose v. Knight, (1879) Cassels' Dig. 777 96 P. B. of Halifax, The, v. Johnston, (189L') 20 S. C. R. 541 73 People's L. & D. Co. v. Bacon, (1869) 29 Gr. 302 78 Pennington v. Brinsop Coal Co., (1877) 5 Ch. D. 769 226 Perry v. Morton, (1868) A. R. 26th Nov 62 V. Oriental Hotel Co., (1870) L. R. 5 Ch. 420 189 Peruvian Guano Co. v. Dreyfus Bros., (1892) A. C. 175 254 Peterson v. The Queen, (1889) 2 Ex. Ct. Rep. 67; judgment Burbidge, Jv at p. 74 289 Petrie v. The Guelph Lumber Co., (1885) 11 S. C. R. 450 95 Petroleum Co. v. West Virginia Transportation Company, (1886) 28 W. Va. 210 137, 2-_'5 Phelps V. White, (1880) L. R. 5 Ir. 318 100 Phillimore v. Barry, (1818) Campb. 513 57 Phillips V. Fothergill, (1886) 11 A. C. 466 260 Phillips V. Homfray, (1871) L. R. 6 Ch. 770, 781 93, 145, 231, 234, 527 V. Homfray, (1890) 44 Ch. D. 699 257, 1260 V. Low, (1892) 1 Ch. 47 209 V. Phillips, (1832) 1 Myl. & K. 649 141 V. Silvester, (1872) L. R. 8 Ch. 173 77 Phosphate Sewage Co. v. Hartmont, (1875) 5 Ch. D. 394 103 Pickering v. Lord Sherbourne, 1 Craw. & Dix. A. B. 254 28 V. Stamford, (1797) 3 Ves. 337 184 Pierce v. Coy, (1874) L. R. 9 Q. B. 210 i'i Pinnington v. Galland, (1853) 9 Exch. 1 172 Plant v. Stott, (1869) 21 L. T. N. S. 106 231 Piatt V. G. T. R. (1886) 11 O. R. 246; (1892) 19 A. R. 246 177 Plimmer v. Wellington, (1884) 9 App. Cas. 699 106 Plumb V. Steinhoff, (1887) 14 S. C. R. 739 284 Plymouth v. Archer, (1782) 1 Bro. C. C. 159 137 Pomfret v. Ricroft, (1670) 1 Saund. 322 86, 206 Poole V. Bentley, (1809) 2 Campb. 286; 12 East, 168 74 P.)pplewell V. Hodkinson, (1869) L. R. 4 Ex. 248 204, 225 Pordage v. Cole, (1670) 1 Saund. .319 83 TABLE OF CA.^ES xliii PAGE Portmoro, Lord, v. Bunn, (1823) 1 B. & C. 694 72, 113 Potter V. Duffleld, (1871) L. R. 18 Eq. 4 .' 42 V. Edwards, (1857) 26 L. J. (Ch.) N. S. 468 47 V. Shephard, (1796) 6 T. R. 665 131 Potts V. Bovine, (1888) 16 O. R. 155 55,162 Pountney v. Clayton, (1883) 11 Q. B. D. 820, 834 40, 155, 156, 203, 240 Powell V. Aiken, (1858) 4 K. & J. 357 234 Precious Metals Case, (1889) 14 App. Cas. 295, 302, 304; (1897) App. Cas. 199 12, 20, 24, 26, 27, 28, 319, 326, 334 Pretty v. Solly, (1859) 26 Beav. 611' 40 Prendergast v. Thurton, (1841) 1 Y. & C. Ch. 98 141 Prentice v. Hall, (1878) 26 W. R. 237 652 Price V. Griffith, (1851) 1 DeG. M. & G. 80 90 V. North, (1837) 2 Y. & C. 620 95, 99 V. Worwood, (1859) 4 H. & N. 512 130, 289 Prince of Wales Coal Cd. v. Osman, (1882) 22 N. B. R. 115 192 Proctor V. Grant, (1862) 9 Gr. 26, 224 275 Proud V. Bates, (1864) 34 L. J. Ch. 406; (1865) 34 L. J. N. S. Ch. 406; (1865) 30 L. J. N. S. Eq. 411 165, 224, 438 Purvis v. Hume, (1856) 3 All. 299 91 R. V. Brettell, (1832) 3 B. & Ad. 424 37, 39 R. V. Brown, (1857) 7 E. & B. 757 646, 682, 683 R. V. The Canadian Agriculture, Coal and Colonization Co., 1892, 3 Exch. C. R. Canada, 157; (1895) 24 S. C. R. 713 159 R. V. The Canada Central Railway Co., (1873) 20 Gr. 273 27 R. V. Clarke, (1851) 7 Moo. P. C. 77 427 R. V. Church, (1891) 23 N. S. R. 347 450 R. V. Commrs. of Port of Southampton, (1870) L. R. 4 H. L. 472, 484 245 R. V. Cunningham, (1804) 5 East, 478 41 R. V. Davies, (1869) 6 W. W. & Ab. (L.) 246 262 R. V. De Lery, (1883) 9 Q. L. R. 231; 6 Legal News, 402 . . .4, 28, 317, 320, 324, 326, 329, 334 R. V. Elze, (1882) 16 N. S. R. 130; (1883) 4 R. G. 130 451 R. V. Fisher, (1865) L. R. 1 Cr. Cas. R. 7 R. V. Gratrex, (1876) 12 Cox. C. C. 157 R. V. Inhabitants of Horndon-on-the-Hill, (1816) 4 M. & S. 561 105 R. V. Hughes, (1865) L. R. 1 P. C. 81 427 R. V. L. & N. W. Co., (1894) 2 Q. B. 512 R. V. Keyn, (1876) 2 Ex. D. 116 R. V. Koksilah Quarry Co., Limited Liability, (1897) B. C. R. 525 . . R. V. Mainwaring, (1858) E. B. & E. 474 R. V. McCormack, (1859) 18 U. C. R. 131 R. V. McCurdy, (1891) 2 Ex. Ch. R. 311 R. V. Miller, (1777) Cowp. 619 179 R. V. Moss, 26 S. C. R. 322 163 R. V. Norrls, (1840) 9 C. & P. 241 264 R. V. Oxfordshire, (1830) 1 B. & Ad. 301 223 264 064 238 55 50 688 269 239 '1 xliv TABLE OF CASES PAGE R. V. Sir Charles Reed, (1880) 5 Q. B. D. 488 ^^ R. V. Roblin, (1862) 21 U. C. R. 352, per Robinson. C.J., p. 355 4, 5 R. V. RobiTtson, (1882) 6 S. C. R. 68 ^^^ R. V. Inhabitants of Sedgley, (1831) 2 B. & Ad. 65 37, 39, 41 R. V. Smith, (1838) 2 M. & R. 115 262 R. V. Snow, (1873) 9 N. S. R. 373; 3 N. S. D. 373 406 R. V. Spon Lani" C. Co., The, (1878) 3 Q. B. D. 673 665, 676 R. V. Tobin, (1881) 14 N. S. R. 305; 2 R. & G. 305 450, 451 R. V. Trovcnner, (1838) 2 M. & Rob. 476 262 R. V. Wells, (1867) L. R. 2 Q. B. 542 246 R. V. Wilkos, (1770) 4 Burr. 2539 223 R. V. Wilson, (1874) 12 N. S. W. S. C. R. (L.) 258 40, 262 R. V. Wing Chong, 1 B. C. R. (Part 2), 150 148 R. V. Wittingham, (1840) 9 C. & P. 234 264 Railway and Electric Appliances Co., In rt", (1888) 38 Ch. D. 597 47 Rains v. Buxton, (1880) 14 Ch. Div. 537 259 Randall v. Rigby, (1838) 4 M. & W. 135 72 Rangloy v. Midland Railway Co., (1868) L. R. 3 Ch. Ap. 300, at p. 311. . Ill Ramsgate, otc, v. Montiflore, (1806) L. R. 1 Ex. 109 50 Ramsay v. Blair, (1876) 1 App. Cas. 703 161 Ramsden v. Dyson, (1865) L. R. 1 E. & I. App. 129 105 V. Hirst, (1858) 4 Jur. N. S. 200 82 Ratte V. Booth, (1886) 11 O. R. 491-504 28J Rawston v. Taylor, (1855) 11 Exch. 382 ,. 223 Re Marquis of Biddle Cope, etc., (1897) 5 B. C. R. 37 252 Re Robinson Ijottlemont Trusts. (1891) 3 Ch. 129 ^39 Rees V. Attorney-General, (1869) 16 Gr. 467 275 Reese River Mining Co. v. Smith, (1869) L. R. 4 H. L. 64 95 Redden v. Turner, (1896) 29 N. S. R. 44 186 Redgrave v. Hurd, (1881) 20 Ch. Div. 1 95 Redmayne v. Foster, (1866) L. R. 2 Eq. 467 191 Remfry v. The Surveyor-General of Natal, (1896) A. C. 558 230 Reusg v. Picksley, (1866) L. R. 1 Ex. 342 43 Reynell v. Spo'e, (1852) 1 DeG. M. & G. 710 93 Rhodes v. Furwood, (1876) 1 App. Cas. 256 47 Rich d. Lord Cullen v. Johnston, (1745) 2 Stra. 1142 144 Richards v. Price, (1897) 5 B. C. R. 362 526. 527 Richards v. Jenkins, (1868) 18 L. T. N. S. 437 206, 208 Rickjirds v. Rickards, (1867) 36 L. J. N. S. Ch. 176 192 Rigby v. Bennett, (1882) 21 Ch. D. 559 209 v. G. W. R. Co., (1845) 14 M. & W. 811 4a River Steamer Co., Re— Mitchell's Cliiim, (1871) L. R. 6 Ch. 827 90 Roads v. Trumpington, (1870) L. R. 6 Q. B. 56-64 109, 110 Rob rts v. Davey, (1833) 4 B. & Ad. 664 113, 289 V. Eberhardt, (1853) Kay, 159 141 V. Tucker, (1849) 3 Exch. 632 43 Robinson v. Anderson, (1855) 7 DeG. M. & G. 239; (1855) 20 Beav. 98. . 63 I TAIiLi: OF CASES xlv PAOH Robinson v. Grave, (1873) 27 L. T. 648 209 V. Ommaney, (1883) 23 Ch. D. 285 73 V. Walker, (1795) 1 Salk. 393 69 Rochefoucauld v. Boustead, (1897) 1 Ch. D. 191 44, 53, 63, 64 Roddy V. Fitzgerald, (1857) 6 H. L. C. 823 176 Rogers v. Taylor, (1857) 1 H. & N. 714; (1858) 2 H & N. 828 170', 206 Rolls V. St. George, (1880) 14 Ch. D. 796 40 Rose V. Peti'rkln, (1884) 13 S. C. R. 677 44, 63 Ross V. Pox, (1867) 13 Gr. 683, 691 105, 107 112 Rossiter v. Miller, (1878) 3 App. Cas. 115 50, 58 Roundwood Colliery Co., In re, Leo v. R. C. Co., (1897) 1 Ch. 373 122 Rowbotham v. Wilson, (1857) 8 E. & B. 150; (1860) 8 N. L. C. 348-360. 158, 161, 204, 215 V. Town iind County Bank, (1888) 13 App. Cas. 421, 429 246 Rowe V. Street, (1859) 8 U. C. P. 217 177 Royal British Bank v. Turquand, (1856) C. E. & B. 327 46 V. Wood, (18-J2) 2 J. & W. 556 138, 190, 191 Ruabon Brick & Terra Cotta Co. v. G. W. Ry. Co., (1893) 1 Ch. 427 239 Rule V. Jewell, (1881) 18 Ch. D. 666 HI Russell V. Gulwel, 41 Eliz. 2 Cro. Eliz. 657 166 V. Harford, (1866) L. R. 2 Eq. 507 Ill V. Town and County Bank, (1888) 13 App. Cas. 421 246 V. Watts, (1883) 25 Ch. D. 573, C. A 173 Ryan v. The Mutual Tontine W. C. A., (1893) 1 Ch. 116, 127 70 Rylands v. Fletcher, (1808) L. R. 3 H. L. 330 228, 230 Sage V. Township of West Oxford, (1892) -'2 O. R. 678 288 Sale V. Lambert, (1874) L. R. 18 Eq. 1 42, 58 Salomon v. Salomon. (1897) A. C. 22 102 Salter v. Hughes, (1864) 5 N. S. R. 409; 1 Old. 409 147 V. St. La,wreuce Lumber Co., Ltd., (1896) 28 N. S. R. 335 154 Samper v. Hade. (1889) 10 N. S. W. L. R. (L.) 270 65 Sampson v. Hoddlnott, (1857) 1 C. B. N. S. 590 221 Sanderson v. Graves, (1875) L. R. 10 Ex. 234 53 V. Mayor of Berwick, (1884) 13 Q. B. D. 547, per Fry, J,, 561 .... 126 Sandwich, Earl of, v. Spittle, (1879) 10 Ch. D. 707, 712 220, 221 Saugeen v. Church Soc, (1858) 6 Gr. 538 275 Saunders" Case, (1599) 5 Coke, 22 137, 179 Saxby v. Thomas, (1891) W. N. 4 79 Sayers v. Collyer, (1884) 28 Ch. D. 103 71 Scane v. Hartrick, (1859) 7 Gr. 161 275 Scarfe v. Jardine. (1882) 7 App. Cas. 360 130 Scott V. Benedict. (1884) 5 O. R. I. afflrmed; (1886) 14 S. C. R. 735 188 V. Bould. (1895) 1 Q. B. 9 675 V. Fralick. (1850) 6 U. C. R. 511 177 Scottish Canadian Asbestos Co., Re, (1890) 18 S. C. R. 667 154 Allen V. Hanson 154 ffcrlver v. Myers, (1859) 9 C. P. 255 177 Sea v. McLean, (1887) 14 S. C. R. 636 8.'> xlvi TAULt: OF CASES II 1 PACIK Seam- .ue, (1825) 10 Moore, 34 53 .iwdrey, (1809) 16 Ves. 390, 392, 393 82, 143, 170 SecK of Stiiti' and Fletchi«r, Ri', (1887) 18 Q. B. D. 339 666 Si'ddon V. Smith, (1877) 36 L. T. N. S. 168 144 Selby V. Selby, (1828) 4 Russ. 336 188 Scnhoiise v. Christian, (1787) 1 'I'. R. 560 87 Servante v. James, (1829) 10 D. & C. 410 68 Si'vin V. Deslnndes, (1861) 9 W. R. 218 70 Seymour v. Lynch, (1885) 7 Ont. R. 476 110 V. Lynch, (1887) 14 A. R. 742-3 110 Shiiirp V. The Lakeflold Lumber Co.. (1890) 17 A. R. 322 268 Shardlow v. Colterell, (1881) 20 Ch. D. 90 42 Shaftesbury v. Wallace, (1897) 1 Ir. Rep. 402 175 Sharman v. Brandt, (1871) L. R. 6 Q. B. 720, Exch 57 Sharp V. Wright, (1860) L'8 Beav. 150 91, 126 Shaw V. Foster, (1872) L. R. 5 H. L. 349 84 Shaw V. Stenton, (1858) 2 H. & N. 858 127 Shears v. Jacob, (1866) L. R. 1 C. P. 517 46 Sheldon v. Ramsay, (1852) 9 U. C. R. 105 275 Shepherd v. McCalumb Oil Co., (1885) 38 Hon. N. Y. 37 225 Sheppard v. Bonanza N. M. Co., (1894) 25 O. R. 305 45, 46 Shubbook v. Tufnell, (1882) 46 L. T. N. S. 836 209 Shubrick v. Salmond, (1765) 3 Burr. 1639 69 Siddons v. Scott, (1877) 2 C. P. D. 572 212 Sim V. Sim, (1890) 22 N. S. R. 185 52 SImms V. Evans, not reported, but referred to in 4 Ex. D. 97 38 Simpson's Case, 58 L. T. 16 455 Simpson v. Godmanchester, (1897) A. C. 708, 709 204, 207 V. Grant, (1855) 5 Gr. 267 275 Sing V. Pattuk, (1878) 4 App. Cas. 121 223 Sinnott v. Scoble, (1884) 11 S. C. R. 571 112 Small V. Atlwood, 6 CI. & F. 232 94 Smallman v. Onions, (1792) 3 Bro. C. C. 621 138 Smart v. Jones, (1864) 15 C. B. N. S. 717 107 V. Morton, (1855) 5 E. & B. 30 123, 203, 213 Smith V. Chadwick, (1884) 9 App. Cas. 187 95 V. Darby, (1871.') L. R. 7 Q. B. 716-726 123, 204, 215 V. G. W. R. (1877) 3 App. Cas. 165, 180 40, 238 V. Ivenrick, (1849) 7 C. B. 566 228 V. Lloyd, (1854) 9 Exch. 562 143 V. McDonald, 1 Old 82 V. Matthews, (1861) 3 DeG. F. & J. 151 61, 64 V. Neale, (1857) 2 C. B. N. S. 67 43 V. Stocks, (1869) 10 B. & S. 701 145 V. Thackeray, (1866) L. R. 1 C. P. 564 208, 242 V. Webster, (1876) 3 Ch. D. 49, C. A 57 Smithson v. Powell, (1852) 20 L. T. (O. S.) 105 82, 87 Snarr v. Granite C. & S. Co., (1882) 1 O. R. 102 203 TAHU: OF CASES xlvii 68 72 183 127 48 268 166 Snow V. Whitehead, (1884) 27 Ch. Div. 588 . . "'tT^ Soiling V. Broiighton. (1893) A. C 556 Soper V. Arnold. (1889) 14 App. Cas., 429", '435 ^Jo Southcomb V. Bishop of Exeter, (1847) 6 Han-, 213 H Southcoto V. Hoare, (1810) 3 Taunt. 87 . . . Spencer's Case, 5 Co. Rep. I7 Spencer v. Scurr, (1862) 10 W. R 878 Spoor V. Green. (1874) L. R. 9 Exch. 99 '.*.".". S. S. T. Co. V. A. A. A., (1891) 1 Q. B. 402 Srlgley v. Taylor. (1884) 6 O. R. 108 St. Albans, Duke of, v. Ellis, (1812) le" jsast 352 TZTiaf-t, '■ '■ ^- "^^ ^"^'^^' ^''^'^ '' O.-RVl96.'204r(1888; St. Helens smelting Co! ;-.Mp;.n^-a865inH;-l!'c!^4f ''' ''' ''' '35 Staffordshire Canal Co. v. Birmingham Canal Co., (1866)' L.' R." i" e! Standly v. Perry, (1879) 3 S. C. R. 356 "... Steel V. Williams, (1853) 8 Exch. 625 Stellarton, Town of, v. The Acadia Coal Co. Stevens v. Cook. (1864) 10 Gr. 410 Stephen Sweet. Re, (1882) 15 N. S. R. 397; ("l882) 3R.& G 397 Stevens v. Guppy, (1826) 3 Russ. 171 Stevenson v. Wallingford, (1894) R. J. Q. 6, C. S."l83 '.'.".'.'.'.247." '3'2'5 "327 359 Steward v. Blakeway, (1869) L. R. 4 Ch. 609 ' 141 Stirling V. Maitland, (1864) 5 B. & S. 840 47 Stocker v. Dean, (1852) 16 Beav. 161 Stockport Waterworks Co. v. Potter, (1861) 7 H. N." l'6'8':'a864) 3 "h & „, ,^- ^^^ 222, -23, 226 Stokes v. Checkland, (1893) 9 T. L. R. 235 C83 Stott v. Dickinson, (1876) 34 L. T. N. S. 291 ...646, 664 Stoughton's Appeal. (1878) 88 Pa. 198 ' 225 Stoughton V. Leigh. (1808) 1 Taunt. 402 . . . . . 178 Strahan v. Sutton. (1796) 3 Ves. Ii49 184 Strelley, In, v. Pearson, (1880) 15 Ch. Div. 113 122 Strong V. Jones, (1850) 7 U. C. R. 385 283 Stroud, In re, (1849) 8 C. B. 502 HO Stroyan v. Knowles. (1861) 6 H. & N. 454 217 Stuart V. Mott, (1893) 23 S. C. R. 384 61 Stuart V. Nelson, (1895) 15 N. Z. L. R. 637 J ! 62 Studds V. Watson, (1884) 28 Ch. D. 305 .^. . 42 Stussi V. Brown. (1897) 5 B. C. R. 380 541, 549 Suffleld V. Brown. (1863) 4 DeG. J. & S. 185 233 Sutherland v. Heathcote. (1892) 1 Ch. 475-483 104. 112. 156, 169 Sutherland v. Webster. (1894) 21 A. R. 240 67 Summer v. Powell, (1816) 2 Mer. 30, p. 37; (1823) T. & R. 423 68 Sweeny v. Godard. (1859) 9 N. B. R. 300 186 Swift Company v. United States, (1883) 111 U. S. 22 441 Swindon Waterworks Co. v. Wilts & Berks Navigation Co.. L. R. 7 E. & I. App. 697 221 223 161 441 412 275 433 83 71 r xlvm rAHLlJ OF C.USEH PAGE S-word's Lease, Re. (1873) 9 N. S. R. 389; 3 N. S. D. 389 452 Sybray v. White, (18*J6) 1 M. & W. 435 142 Sylvester v. Murray, (1895) 26 O. R. 599 51 Tanqueriiy, Re, Willaumc and Landiiu, (1881) 20 Ch. D. 465 81 Tapling V. Jom«8, (1865) 11 H. L. C. 290, 314 204 Tasker v. Small, (1837) 3 My. & C. 63 84 Taylor v. Dowers, (1876) 1 Q. B. D. 291, C. A 97 V. Brown, (1813) M. & S. 290 50 V. Burnott, (1880) 20 N. B. R. 165; 4 Pug. & Bur. 165 101 V. Mostyn, (1886) 33 Ch. D. 226, 237 191, 257 V. Parry, (1840) 1 Scott. N. R. 576 116 V. Shafto, (1867) 8 B. & S. 228 128 V. St. Helen's, (1870) 6 Chy. Div. 270; (1877) 6 Chy. Dlv. 272.. 176, 223 Tensdale v. Sanderson, (1864) 33 Boav. 534 140 Telegraph Despatch Co. v. McLean, (1873) L. R. 8 Ch. 658 47 Thew V. Wlngatc, (1862) 10 B. & S. 714 145 Thibaudeau v. Skead, (1876) 39 U. C. R. 387 284 Thomas v. Brown, (1876) 1 Q. B. D. 714 41' V. Jones, (1842) 1 Y. & C. Ch. 510 138 V. Sorrell, (1706) Vaugh. 351 104 V. Thomas, (1850) 5 Exch. 28 140 . Thompson v. Brunskill, (1859) 7 Gr. 542 78 Thomson v. Longard, R. E. D. 181 89 Thorneycroft v. Crockett, (1848) 16 Sim. 445 189 Thursby v. Briercliffe. (1894) 2 Q. B. 11; (1895) A. C. 32 41, 55 Tiffany v. McEwen, (1837) 5 O. S. 598 159 Tilbury v. Silva, (1890) 45 Ch. Div. 98 lOii Tipping V. Eckersloy, (1855) 2 K. & J. 26 1 2li6 Tipton Green Collii'ry Co. v. The Tipton Meat Co., (1877) 7 Ch. D. 192. 190 Titles, The Registrar of, v. Paterson, (1876) 2 App. Cas. 110 210 Todd v. Cain, (1858) 16 U. C. R. 516 159 Tone v. Preston, (1883) 24 Ch. Div. 739 206 Toronto, City of, v. Jarvis, (1895) 25 S. C. R. 237 78, 107 Torrens v. Curric, (1882) 22 N. B. R. 342 186 Townshond v. Adams, (1894) 26 N. S. R. 78 454 Townshend's Case, (1871) 13 Eq. 148 50 Trent Valloy Canal, Re, (1886) 12 O. R. 153 160, 163 Trotter v. Maclean, (1879) 13 Chy. D. 574 256 Tucker v. Linger, (1883) 8 App. Cas. 508 37 Tudor's L. C. Real Property and Conveyancing, 3rd ed., p. Wj 136 Tulk V. Moxhay, (1848) 2 Ph. 774 '^^ Turner v. Cameron, (1870) L. R. 5 Q. B. 313 124 Turner v. Green, (1895) 2 Ch. 209 92 V. Harvey, (1821) Jac. 169 92 V. Mirfleld, (1865) 34 Beav. 390 231 TurifC V. Cie de Ch. Fer Quebec Centrale, (1893) R. J. Q. 2 Q. B. 559 156, 241, 326, 334 Twoddle v. Atkinson, (1861) 1 B. & S. 393 ^7 Twyerould v. Chamber Colliery Co., (1892) W. N. C. A. 27 205 TABLE OP CAfiES xlix JAOB 452 . 142 . 51 . 81 . 204 . 84 .. 97 .. 50 .. 101 91. 257 ... 116 . . . 128 L76. 223 ... 140 .'. .. 47 . . . . 145 . . . . 284 .. •■ 4'i . . 138 ....• 104 ... 140 . .... 78 ..... 89 .... 189 .41, 55 159 . .... le^i 192. 190 .... 210 ..... 159 " 206 . .78, 107 .... 186 .... 454 . . . • 50 ' ' 160, 163 ... 256 ... 37 . . . 136 ... 71 .. 124 ... 92 ... 92 ....• 231 l559 . • • • 41 326, 334 ' . . . • 67 . .205 PAOBJ Tyler v. Wilkinson, (1827) 4 Mason, U. S. R. 397 162 V. Bevorsham, (1673) Rep. Temp. Finch. 80 100 Umlerhill v. Longridgo, (1859) 29 L. T. M. U. 65 663 Uniacl(i> V Dickson, (1848) James, 287 8 United Mertliyr Collerics Co., (1872) L. R. 15 Eq. 46 Ii54 United States v. Unglcy, (1831) 5 Peters, 115 441 Upperton v. Nicholson, (1871) 6 Ch. 436 103 Vance v. Ciimmings, (1867) 13 Gr. 25 195 Vandenburgh v. Spooncr, (1866) L. R. 1 Ex. 316 42 Vernon v. Jefferys, (1795) 2 Stra. 1146 69 Victoria Co. v. Fraser, 29 Pac. 667 455 Vlgers V. Pike, (1840) 8 CI. & F. 562 93 Vlncr V. Vaughan, (1840) 2 Beav. 466 137 Waddell v. Wolfe, (1874) L. R. 9 Q. B. 515 81 Wndsworth v. McDougall, (1870) 30 U. C. R. 369 223 Wake V. Hall, (1883) 8 App. Cas. 195-203, 195 133 Wakefield v. Bucclcuch, (1866) L. R. 4 Eq. 613-624 40, 203 Waldo V. Martin, (1825) 4 B. & C. 319 73 Wales V. Thomas, (1885) 16 Q. B. D. 348 675 Walbor v. Fletcher, (1804) 3 Bli. O. S. 172 260 Walker v. Jeffory, (1842) 1 Ha. 348 90, 97 Wall V. Bright, (1820) 1 Jac. & W. 503 84 Walrond v. Walrond, (1858) Johns. 18 86 Walsh V. Lonsdale, (1882) 21 Ch. D. 9 76 Walters v. Morgan, (1861) 3 DeG. F. & J. 718 91 Wallace v. Creelman, (1884) 17 N. S. R. 418; 5 R. & G. 418 451 V. Fraser, (1878) 2 S. C. R. 522 122 Wallis V. Harrison, (1838) 4 M. & W. 538 105 Wall's Case, I. L. Co. of M., (1872) L. R. 15 Eq. 18 50 Walsh V. Trevanlon, (1850) 15 Q. B. 733 47 Want V. Stillibras, (1873) L. R. 8 Exch. 175 79 Ward V. Day, (1863) 4 B. & S. 337 113 Warden v. Trenouth, (1877) 24 Gr. 465 78 Warner v. Don, (1896) 26 S. C. R. 388 134 V. Wellington, (1856) 25 L. J. Ch. 662 42 Waterpark, Lord, v. Fennell, (1859) 7 H. L. Cas. 650 55 Watson V. Lindsay, (1881) 6 O. A. R. 609 195 V. Reld, (1830) 1 Rus. & My. 236 90 V. Spratley, (1854) 10 Exch. Rep. 222 59 Wayne v. Powell, (1844) 7 M. & G. 980 73 Watts V. Alnsworth, (1862) 1 H. & C. 83 43 Waverley, Re Gold Mining Areas of, (1882) 16 N. S. R. 280; (1883) 4 R. & G. 280 453 Webb V. Montgomery, (1897) 5 B. C R. 323 44, 45 Webber v. Loe, (1882) 9 Q. B. D. 315 104 D— M TAIiLf: OF CASES PAOB Webster v. Watters, 21 R, L. 447 334 Weddell v. Houhb, 4 A. L. 'l\ 95; V. L. R. (M.) 44 '-'89 VVelr, Rf 428, 4G9 WellB V. Pftty, (1897) 5 U. C. R. 353, 360 63, 541, 549 Wentworth v. TurntT, (1795) 3 Ves. 3 137 West AuHtriillan Land Co. v. Forrest, (1894) A. C. 176, P. C 55 West Cumberland Iron & Steel Co. v. Kt»nyon, (1879) L. R. 11 Chy. D. 782 231 West V. Matheson. (1879) 9 N. S. R. 429; 3 N. S. D. 429 200 Westbrooke v. Attomey-Genoral, (1865) 11 Gr. 330 275 Westmoreland Natural Gas Co. v. DeWltt, (1890) 130 Pa. '-i35 225 Weston V. Savage, (1879) 10 Ch. D. 736 82 Whiilcy V. Brancker, (1864) 10 L. T. N. S. 155 260 Whalley v. Lancashire & Y. R. Co., (1884) 13 Q. B. D. 131 228 Wheatlcy v. Westminster Brymbo Coal Co., (1869) L. R. 9 Eq. 538-553. 71, 119, 126 Whecldon v. Burrows, (1879) 12 Ch. Djv. 31 233 Wheelock v. McKeown, (1835) 1 N. S. R. 41; 1 Thorn. (2nd Ed.) 41 .. 159 Whelan v. McLachlan, (1865) 16 U. C. C. P. 102 283 Whitehead v. Bennett, (1858) 27 L. J. Ch. 475 134 V. Holdsworth, (1878) 4 Ex. D. 13 652 V. Parkes, (1858) 2 H. & N. (N. S.) 870 225, 234 Whltehouso v. The Wolverhampton Ry. Co., (1869) L. R 5 Exch. 6... 240 Whitley V. Challis, (1892) 1 Ch. 64 191 Whitfield V. Bewlt, (1724) 2 P. Wr.is. 242; 2 Inst. 367-8 179 Whltwham v. Westminster Brymbo Coal Co., (1896) 2 Ch. 538, 541 525 Wlckham v. Hawker, (1840) 7 M. & W. 63, 76, 78 104, 165 Wlgle V. Stewart, (1869) 28 U. C. R. 427 283 Wlgley V. Wlgley, (1877) 5 Ch. D. 887, C. A 86 Wild V. Holt, (1842) 9 M. & W. 37li 256 V. Milne, (1859) 26 Beav. 504 141, 192 Wilkinson v. Haygarth, (1847) 12 Q. B. 837 139 Williams V. Bagnall, (1866) 12 Jur. N. S. 987 214 V. Evans, (1875) 32 L. T. 360 86 v. Groucott, (1863) 4 B. & S. 149 142,309 v. Jordan. (1877) 6 Ch. D. 517 42 v. Myers, (1871) 8 N. S. R. 157; 2 N. S. D. 157 147 v. Richards. (1893) 23 O. R. 651 223 Williamson v. Jones, (1894) 39 W. Va. 231-257 225, 517 V. Wootton, (1855) 3 Drew. 210 90 Wllliston V. Lawson, (1891) 19 S. C. R. 673 85 Wilmot V. Stalker, (1882) 2 O. R. 78 58 Wilson V. Daniels, (1862) 9 Gr. 493 188 V. Greenwood, (1818) 1 Swanst. 471 99 V. Hart, (1866) L. R. 1 Ch. 463 70 v. Mcintosh, (1894) A. C. 129 202 V. Waddell. (1876) 2 App. Cas. 95 67, 136,229 r.i/j/j; OF VAUES li 525 165 283 86 266 U, 192 139 214 86 42, 309 42 147 223 25, 517 90 85 58 188 . 99 . 70 . '202 136, 229 PAQE Winn V. Bull, (1877) 7 Ch. D, 29 50 Winter v. Lord Anson. (1827) 3 Rusa. 488 ........." 188 V. Brockwell, (1807) 8 Enst, 308 ""..""" iqg Withers v. Purchase, (1889) 60 L. T. N. S. 819 .....' 219 Wolmershausen v. Gullick, (1893) 2 Ch. 514 ,,[ 67 Wood V. Lal^e, (1845) 13 M. & W. 838 52 V. Leatlbitter, (1845) 13 M. & W. 838, 842 64, 105, 107 V. Morewood, (1842) 3 Q. B. 440 254 V. Wand, (1849) 3 Exch. 748 223, 226 Woodbury v. Hudnut, (1884) 1 B. C. R. 39 (Part 2) (Ct. of Appeal)... . 536 Woolley V. Attorney-General of Victoria, (1877) 2 App. Cas. 163 26 Wrayton v. Naylor, (1895) 25 S. C. R. 295 100 Wright V. Howard, (1823) 1 Sim & St. 190, 203 97, 222, 233 V. Williams, (1836) 1 M. & W. 77 223 Wylson V. Dunn, (1887) 34 Ch. D. 569 43 Wynget v. Hoathcote, (1840) 4 Y. & C. 187 141 Wynne v. Forester, (1879) 5 C. P. D. 361 682, 683 Young V. Bankier Distillery Co., (1893) A. C. 691, 697 221, 226, 228 Young V. Milne, (1889) 28 N. B. R. 186 151 Zetland, Earl of, v. Hislop, (1882) 7 App. Cas. 447 70 TABLE OF STATUTES Imperial. 7 Edw. I, sp. 2, " Mortmain Act " p. 5 9 Hen. III. c. 36, " " p. 6 32 Hen. VIII. c. 34, Covenants p. 112 43 Eliz. c. 43, Relating to Poor Rate p. 40 21 Jac. I. c. 14, •' Crown Grants p. 363 29 Car. II. c. 3, Statute of Frauds pp. 42, 52, 56, 58-66, 89, 101, 104, 187 1 Wm. & M. c. 30 p. 7 5 Wm. & M. c. 6 p. 7 7 & 8 Wm. III. 0. 37 p. 5 (1703), " Act of Settlement " p. 38 4 Anne, c. 16, " Co-owners " p. 140 8 Anne, c. 14, Leases and Licenses pp. 107, 108 4 Geo. II. c. 28 p. 132 9 Geo. II. c. 36, Charitable Uses p. 5 11 Geo. 11. c. 10, Leases p. 113 11 Geo. II. c. 36 p, 6 Geo. II. Private Act p. 210 26 Geo. II. c. .35 , pp. 5, 6 9 Geo. III. (1768-9) c. 16, " The Nullum Tempus Act " p. 269 14 Geo. III. (1774) c. 83, " The Quebec Ant " pp. 3, 7 31 Geo. III. c. 31 (1791), The Constituticmal Act pp. 4, 269 34 Geo. III. c. 9.3, " The Canal Act " p. 37 38 Geo. III. c. 5, Hereditament p. 56 6 Geo. IV. c. 59, " Clerf,'y Reserve Lands " p. 269 7 & 8 Geo. IV. c. 62, " " p. 269 2 & 3 Wm. IV. c. 71, "The Prescription Act " pp. 207, 217, 234 3 »& 4 Wm. IV. 7, Statute of Limitations . . .pp. 144, 189, 208, 254, 256, 258, 259 3 & 4 Wm. IV. c. 27, " " p. 135 3 & 4 Wm. IV. c. 105, " The Dower Act " p. 187 5 & 6 Wm. IV. c. 54 p. 6 1 Vic. c. 26, Relating to Wills pp. 53, 54 3 & 4 Vic. c. 35, " The Union Act ", .(1840) p. 7 3 & 4 Vic. c. 78, " Clergy Reserve Lands " p. 269 6 & 6 Vic. c. 35, Quarries , p. 38 8 & 9 Vic. 0. 20 p. 37 IlV TABLE OF STATUTES I Imperial— Co;ih°}iuc(l. 8 & 9 Vic. c. 106 (1845), "Real Property Act, 1845 "... .pp. 76, 156 (1845, " Railway Clauses Act ". .pp. 35, 37, 236-240 10 & 11 Vic. 0. 17 (1847), " Waterworks Clauses Act ".pp. 35, 38, 238 16 Vic. c. 21, Clergy Reserve Lands p. 269 18 Vic. c. 2, Secul'irization Clerj^y Reserve Lands p. 269 21 & 22 Vic. c. 99 (1858), B. C. created a self-governing Colony, .p. 9 26 & 27 Vic. c. 67 & 83, Boundaries of B. C. defined p. 9 28 it 29 Vic. c. 63 (1865), "The Colonial Laws Val. Act" j). 10 29 & 30 Vic. c. 67 (1866), "The B. C. Act, 18(i6 " p 9 30 & 31 Vic. c. 3 (1867), "The British North America Act, 1867," pp. 1, 2, 8, 10, 12, 13, 14, 17, 24, 25, 26, 27, 28, 3^, 33, 146, 150, 161, 163, 261 31 & 32 Vic. c. 105 (1868) "The Rupert's Land Act, 1865," pp. 10, 31 (?870) Rupert's Land Act p. 1 (1870) " N. W. Territories Act " p. I 34 Vic. c. 28 (1871) "B. N. A. Act, 1871," Manitoba .p. 10 (1871) British Columbia Act p. 1 35 & 36 Vic. 0. 77 (1872), " The Metalliferous Mines Regula- tions Act " pp. 38, 302, 623, 628 (1873), Prince Edward Island Act p. 1 37 & 38 Vic. c. 57 (1874), The Real Property Limitation Act, 1874 p. 145 50 & 51 Vic. c. 58 pp. 302, 305, 309, 310, 645 52 & 53 Vic. c. 28, " The Boundary Act " p. 2 Canada. (Before (tnd after Confederation.) 32 Geo. III. c. 1, Civil Rights pp. 6, 132 12 Vic. (1849) c. 200, Common School Lands p. 268 19 Vic. c. 43 p. 132 C. S. U. C. c. 80, Registration p. 195 24 Vic. (1861) c. 31 p. 327 27 & 28 Vic. (1864) c. 9, "An Act respecting Gold Mines," pp. 265, 268-270, 274, 295, 301, 312, 314, 315 29 Vic. (1865) c. 9, amending "The Gold Mining Act " p. 265 29 Vic. (1866) c. 41 p. 4 33 Vic. (1870) c. 3, " Manitoba Act " p. 10 35 Vic. (1872) c. , British N. A. Act p. 12 39 Vic. (1876) c. 21, Keewatin Act p. 31 43 Vic. (1880) c. 25, Keewatin and N. W. Territories pp. 10, 11 49 Vic. (1886) c. 15 p. 11 R. S. C. (1886) c. 35, ' ' The Post Office Act " p. 49 " " c. 39, Expropriation Act p. 239 «• " c. 43, " The Indian Act " p. 32 " " c. 50, " The N. VV. Territories Act " pp. 10, 31 " " c. 51, "The Territories Ileal Property Act " . .p. 187 •' " c. 63, The Keewatin Act p. 31 TABLE OF STATUTES Iv G, 1:^2 .. 268 .p. i:i2 .1). 3-27 •!>• 10 .p. :U 10, u ..p. 4« .p. 2:v.> ..p. 32 .. 10, 31 ..p. 1»7 . .1). 31 It Canada— Co)i/j)iucd. R. S. C. (1886) c. 54, "The Dominion Lands Act pp. 31, 692 " " c. 56, " Dominion Public Property " p. S3 " c. 113, " Alien's Property " p. 146 " 0. 129, " The Winiling-Up Act " p. 154 " " c. 162, The Criminal Code pp. 261, 263, 264 " " c. 164, " " p. 262 " c. 168, " " p. 263 " " c. 174, " *' p. 264 " " c. 174 & 178 p. 354 51 Vic. (1888) c. 29, " The Railway Act " p. 242 54 & 55 Vic. (1892) c. 5, Indian Fishing Rights p. 20 54 »fc55 Vic. (1891) c. 22 p. 2 54 & 55 Vic. (1892) c. 24, Water p. 233 55 & 56 Vic. (1893) c. 29, " The Criminal Code of 1892 " pp. 261, 263 56 Vic. (1892) c. 15, Water Power Grants p. 233 57 & 58 Vic. (1895; c. 28, " The Land Titles Act " p. 201 57 & 58 Vic. (1894) c. 30, " The N. W. Irrigation Act "... .p. 233 68 & 69 Vic. (1896) c. 33, amends " " ... .p. 233 Ontario. 31 Vic. (1868) c. 19, " An Act respecting Gold Mines " . .pp. 26.5, 268 32 Vic. (1868-9) c. 24, " The General Mining Act, 1869" pp. 265, 268, 270, 274, 276, 278, 281-283, 292, 295, 311, 314 33 Vic. (1870) c. 10 p. 312 R. S. O. (1877) c. 29, " An Act respecting Mining ". .pp. 265, 26«, 27a " " c. 165, " Tiie Railway Act " p. 236 47 Vic. (l'iS4) c. 30, " Railway Act " p. 236 48 Vic. (1885) c. 21, " Highways " p. 55 49 Vic. (1886) c. 8 p. 265 R. S. O. (1887) c. 25, "The Free Grants and Homesteads Act ".p. 270 c. 31 pp. 265, 266, 268, 270 c. 11(5, "Tlie Torrens System " pp. 196, 198 c. 119, " Act respecting Water Privileges " p. 222 c. 170, "The Railways Act". . .pp. 236, 238, 240, 241 c. 184, " The Municipal Act," p. 34 " " c. 202, " Municipal Corporations " p. 55 53 Vic. (1890) c. 9, " An Act to amend the General Mining Act " pp. 265, ?6(), 282 53 Vic. (1890) c. 10, "The Mining Operations Act, 1890 pp 266, 2()9, 278, 280, 310, 312, 313, 314, 315 54 Vic. (1894) c. 3, " Indian Fi.shing Rights " p. 20 54 Vic. (1891) c. 8, "An .\ct to amend the General Mining Act " pp. 266, 270-273, 277, 283, 280-288 54 Vic. (1892) c. 9, " Hurwui and OHices " p. 278 55 Vic. (1892) c. 9, " The Mines Act, 1892 " pp. 265, 2r)6, 268-272, 280, 281, 283, 284, 286, 290, 292-29(5, 298, 305, 309-315 i( .(t \' Ivi TABLE OF STATUTES '\ll ! Ontario— Con tinued. 56 Vic. (1893) c. 57 Vic. (1894) c, 57 Vic (1894) c. 07 Vic. (1894) c. 58 Vic. (1893) c, 59 Vic. (189G) c <50 Vic. (1897) c, 60 Vic. (1897) c, R. S. O. (1897) it ti (t (i «t <( >( l tt '•. (t »< <* 4« 22, "The Torrens System " p. 196 6, "Encouragement of Iron Mining" p. 276 10, " Relating to Mines ' p. 268 16, " An Act relating to Mines " pp. 266, 268, 272, 276, 277, 286, 302, 311, 312, 313 26, " Covenants in Leases " p. 133 , 13, " An Act relating to Mines " pp. 266, 268, 302, 305, 313 8, " Mining Act " pp. 29, 266, 272, 274, 278, 280, 283, 284, 286, 287, 297, 298, 300, 302, 305, 309, 312, 314 15, "The Dower Act" p. 185 c. 1, " The Interpretation Act " i)p. 283, 290 c. 3, " Declaring Divisions " p. 282 c. 26, " Relating to Lands " p. 246 c. 28, "Public Lands Act " p. 195 c. 29, " The Free Grants and Homesteads Act " pp. 29, 55, 269, 294 c. 30 p. 269 c. 31, "Heir and Devisee Conunission Act" pp.195, 275 c. 36, " The Mines Act "... .pp. 29, 209, 230, 233, 265, 266, 268, 273, 295, 302, 310, 312 c. 38, " An Act Respecting Riots " p. 301 c. 46, "The Algon(iuin Park " p. 280 c. 51, " The Judicature Act", .pp. 78, 84, 89, 13.s, 275 c. 62, " The Arbitration Act " p. 294 c. 71, " The Settled Estates Act " p. 202 c. 90, " Tlie Arbitration Act " p. 314 c. 118, " Aliens " p. 147 c. 119, " Covenants " i)p. 70, 76, 155 c. 123, " The Pari ition Act " p. 191 c. 124, " Signatures " p. 58 c. 125, "An Act Respecting Short Forms" p. 127 c. 129, " The Trustee Act " p. 259 c. 133, "The Real Property Limitation Act". . pp. 145, 207, 217, 233, 234 c. 136, "The Registry Act". . . .i)p. 78, 194, 197, 233 c. 138, " The Land Titles Act "..pp. 185, 194, 195, 198, 233. c. 140, " Respecting Mills and Dams " p. 197 c. 141, "Act Respecting Water Privileges" pp.222, 233 c. 142, " " Rivers and Creeks" pp. 197, 2.33 c. 146, " " Contracts " p. 54 c. 100, "The Workmen's Compensation Act "..p. 143 c. 164, "The Dower Act " pp. 184, 185 c. 170, " Forfeiture of Leases," pp. 114, 115, 132 c. 191, " The Ontario Companies' Act" p. 150 313 TABLE OF STATUTES Ivii Ontario— Continued. R. S. O. (1897) c. 197, " Extra Provincial Mining Companies " p. 150 " c. 207, " The Railway Act " pp. 236, 237, 242 c. 223, " The Municipal Act " po. 23, 242, 243 0. 224, " The Assessment Act " pp. 244, 245 c. 285, "The Ditches and Watercourses Act " . . p. 233 c. 292, "Relating to Lands " p. 246 c. 300, "Ores" p. 145 61 Vic. (1898) c. 8, " An Act Respecting Water Privileges "... .p. 233 61 Vic. (1898) c. 1], " An Act Relating to Mines ". . .pp. 266, 295-300 Quebec. « << It 1413 (May 30) " Ordinance of Charles VI." p. 318 1548 (Sept. 30) " " Henry II." p. 318 1601 (June) " Edict of Henry IV." p. 318 1722 " " Edict of Louis XV." p. 318 47 Vic. (1884) c. 22 p. 327 R. S. P. Q. (1888) " Mines Act " pp. 29, 233 R. S. P. Q. (1888) Arls. 5125 to 5223, "Railways " p. 241 R. S. P. Q., Arts. 1421 to 1582, "Quebec Mining Law " .... pp. 316, 320, 321, 322, 326, 328-333, 338, 339, 344-351, 356, 359 Civil Code, Art. 25, "Aliens" p. 147 " 414, "Dower, etc." pp. 125, 325 " 462 p. 327 " 503 p. 233 " 586 p. 323 " 709 to 712, " Quebec Municipal Code ". .pp. 246, 247 " 776 p. 334 " 1426 to 14 Dower" p. 187 " 1442 to 1527 pp. 328, 333, 338, 339, 344, 345 " 2082 to 2182, " Registration " pp. 199, 327 " 2098 pp. 199, 327 Section 1879, " Quebec Mining Law " pp. 247, 327 54 Vic, chaps. 15 and 16 p. 360 R. S. P. Q. (1892) c. 20, " Quebec Mining Law " pp. 316, 323 Arts. 2713 to 2720 p. 354 Arts. 2585 to 2.592 p. 357 R. S. P. Q., 4th Title, c. 5, Art. 893 p. 354 7th Title, c. 1 p. 349 New Brunawiok. 21 Vic. (1868) c. 25, " Relating to Dower " p. 186 31 Vic. (1868) c. 36, " The Assesssment Act" p. 245 C. S. N. B. (1877) c. 49, " The Supreme:Court in Equity "... .p. 192 " 0. 73, " The Dower Act " p. 186 " 0. 100, " Relating to Property " p. 247 54 Vic. (1891) c. 16, " The General Mining Act "... .pp. 30, 361, 372 (As amended in 1892, 1893 and 1896.) Iviii TABLE OF STATUTES New Brnnswiok— CoH<{nHC(I. 54 Vic. (1891) c. 16, " The Geneml Mining Act " p. 147 54 Vic. (1891) c. 18, " The N. B. Railwiiy Act " p. 241 65 Vic. (1892) c. 10, "General Mining Act " pp. 301, 391, 400 56 Vic. (1893) c. 10, " " . .pp. 361, 363, 371, 375, 376, 386, 387 56 Vic. (1893) c. 11, " Municipal Act " p. 247 57 Vic. (1894) c. 20, " The Registry Act " pp. 199, 200 59 Vic. (1896) c. 27, "General Mining Act " pp. 361, 364, 393 C. S. N. B. (1877) c. " Registration Act " p. 395 " c. 18, " Mines and Minerals " p. 400 " e. 19, "The Escheat of Mining "—Leases and Mill Reserves p. 400 Nova Sootia. 33 Geo. II. (1759) c. 3 p. 8 (1865) c. 64, " Incorporation Act " p. 412 R. S. N. S. (3rd series) c. 25 p. 453 (4th series) c. 7, " The Mines Act "... .pp. 402, 411, 418 " c. 9, "The Mining Act".. pp. 408, 409, 411, 416, 417, 434, 436 (1885) c. 3, " Mining Act " pp. 455, 456 " c. 4 p. 462 " c. 6 pp. 494, 509, 511 (1886) c. 10 p. 508 " c. 162, " Incorporation Act " p. 412 (1887) cc. .32 and 34, " Registration Act " p. 200 (1889) c. 22 p. 499 " c. 23 . . . .pp. 419, 441, 444, 469, 470, 471, 472, 474 " c. 49 p. 20(> (1890) c. 19 p. 427 " c. 20 p. 503 (1891) c. 9. . . .pp. 479-481, 483, 484, 487, 493-496, 498, 499, 500, 503, 507-512, 515 " c. "Aliens" p. 147 " c. 20 p. 151 R. S. N. S. c. 7 p. 419 R. S. N. S. (5th series) c. 7, "The Mines and Minerals Act ". . pp. 412, 414, 435, 445, 450, 455, 461, 472, 506 c. 8, "The Mines Regulation Chapter " pp. 278, 404, 499, 512 514 " c. 63, " The N. S. Railway Act " p. 242 c. 58, " Municipal Act " p. 248 " " c.84, " Registration Act " pp. 200, 433 " " c. 91, "Prevention of Fraud or Per- jury" pp. 52, 433 c. 104, " Mining Act " p. 435 c. 105, " p. 436 It It TABLE OF STATUTES lis 00 Vic. (1892) c. 32 p. 200 56 Vic. (1893) chaps. 2 and 3 pp. 402, 405, 408, 409, 410 o6 Vic. (1893) c. 2 pp. 438, 440, 459, 461, 462, 463, 473 Nova Scotia— Continued. R S. N, S. (5th series) c. 86, "Aliens " p. 147 c. 92, " N. S. ' Bills of Sale Act ' '' '.'.'.. u. 134 " C.112 p.4i.r,-t 18/7, Revised No. 15 pp. 645-658, 660-670, 672-674, 682-690 43 Vic. (1880) c. 2 g,jc) 45 Vic. (1882) c. 8 " ' ' ," r^j^.^ 46 Vic. (188.3) c. 2 ".■.'.pp. '646; 647 47 Vie. (1884) c. 10. .pp. 517, 521-523, 525-527, 53.3, 538, 539, 541, 544, 547-549, 554-560, 562, 563, 566, 567, 570 I I Ix TABLE OF STATUTES It British Columbia — Contintied. 49 Vic. (188fi) c. 14 , pp. 526, M5, 541 50 Vic. (1887) c. 22 ]>. 635 Con. Acts (1888) c. 18, "Chineso Ilc'Kulivtioii Act " p. 148 ." " c. 82 pp. 51i>, 521-52;i, 52(5, 527, 533-636, 538, 53«.>, 541. 544, 547, 655, 557-560, 562, 565, 567, 568, 571, 575 " c. 83, "Cofil Mines Act " p. 638 " c. 84, " Colli Minus Reguliition Act " p. 645 " c. Ill, "The Assessment Act " p. 252 1890 "The Coal Mines Rej^uliition Amendment Act, 1890" p. 148 (1890) c. 33 pp. 645, 646 (1891) c. 5 p. 541 (1891) c. 25. . .pp. 620-623, 525-529, 533-535, 538-542, 544-551, 554-568, 570, 578, 597, 60<5 (1891) c. 26, "The Placer Mining Act". . .pp.248, 525, 538, 584, 697, 607, 609 55 Vic. (1892) c. 32 pp. 625-527, 528, 533, 534, 538, 541, 544, 546, 548-549, 561, 568, 678 56 Vic. (1893) c. 29, "The Mineral Act (1891) Amendment Act (1893) "... .pp. 526, 627, 633, 540, 644, 562, 667, 578 57 Vic. (1894) c. 6 p. 645 57 Vic. (1894) c. 32 pp. 517-519, 646, 547, 578 57 Vic. (1894) c. 33 p. 597 67 Vic. (1894) c. 36, " Partnerships Act, 1894 " p. 697 58 Vic. (1895) c. 38 pp. 645, 667 58 Vic. (1895) c. 39 pp. 523, 224, 537, 538, 547, 555, 578 59 Vic. (1896) c. 34, "The Mineral Act "... .pp. 248, 521, 526, 527, 535, 638, 639, 545, 547, 655, 561, 563, 565, 567, 56«, 582, 684, 687 59 Vic. (1896) c. 35 p. 581 59 Vic. (1896) c. 46 pp. 248-251 60 Vic. (1897) c. 28, " Mineral Act " pp. 521, 525, 627, 533-535, 538, 539, f61, 563, 665, 667, 668 (1897) c. 82 p. 522 R. S. B. C. (1897) c. 6, " Aliens Act " p. 148 " c. 44, " E.vtra Provincial Company " p. 152 ' * c. 53, "Federal Courts Jurisdiction Act ". . .p. 156 " c. 63, "The Dower Act " p. 187 " (• 69. "The Employers' Liability Act " ... .p. 143 " .. The Land Regi.stry Act " p. 201 " c. ll.'i, • le Land Act" p. 148 " c. 115, " English Law Act " p. 9 " c. 134, "Inspection of Metalliferous Mines Act " pp. 30, 623 " c. 135, " The Mineral Act " . pp. 30, 63, 140, 644, 579 (I (I C( (I ) c. 3, contained the emphatic declaration, "That this lYovince of Nova Scotia, or Acadia, and the property thereof, did) r.lways of right belong to the Crown of England both by priority of discoveiy and ancient possession." At that time Nova Scotia included the present Province of Nova Scotia * — except Cape Breton, which was ceded to Great Britain by tlie Treaty of Paris in 1763, and also, until 1784, the present Pro- vince of New Brunswick,'' and a ]iortion of the State of Maine, after- wards acquired by the United States under the Ashburton Treaty of la-Jg." Prince Edward Island was also ceded to Great Britain in 1763, and annexed to Nova Scotia, but became a separate Province in 1769. By the B. N. A. Act, 1867, New Brunswick and Nova Scotia, whicli tiien included Ca])e Breton, became Provinces of tlie Do- minion of Canada, with " the same limitc as at the passing of the Act." ' Nova Scotia, New Brunswick, and Prince Edward Island, which was afterwards admitted into the Canadian Confederation, arc popu- larly known as the Maritime Provinces. The Courts of Nova Scotia and New Brunswick assumed the lau of England to be in force in those Provinces upon common law princii)l(>s. Tlie Nova Scotia decisions as to what Imperial Statutes are in force tliere are collected in Congdon's Nova Scotia Digest, at pp. 1336, et seq. Tlie leading case is Uniacke v. Dickson,* where Lord Mans- field's statement "The Colonies take all the common and statute law of England applicable to their situation and condition," was followed by the Supreme Court of Nova Scotia, presided over by Hallibur- ton, C.J. * For boundaries, see App. I. » For boundaries, see App. I. " Hertslet's Treaties, vol. 6, p. 861. 'Section 7. » (1848) James, 287. ■1' THE CROWN TITLE; LAWS IN FOIiVE, ETC. 9 The New Brunswick decisions on the subject are collected in Stevens' Digest of New Brunswick Reports, 3rd ed. (1897), p. 139. In the Fisheries Case," Strong, C.J., '" states that the doctrine of Dixon v. Snetsinger ^ would seem also to apply to the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, " as all these were originally territories ceded by France to Great Britain," and " Uirouard, J., says : " These piinciples, i.e., those of the old French law followed in La NouvoUo France, applied not only to the Province of Quebec, but to the whole country known as Canada, or La Nouvolle France, including Up]ier Canada; they also ap])lied to Acadia, ('a))e Breton and Prince Ed- ward Island and part of New Brunswick of to-day, when these colo- nies were in possession of the French." British Columbia. British Columbia, formerly ^ called New Caledonia, which, not including Vancouver Island, became a self- governing colony in 1858, was united with the colony of Vancouver Island by proclamation, dated 6th August, 1866, issued pursuant to Imperial Act * cited as " The British Columl)ia Act, 1866," * and thereafter, on the 20th day of July, 1871, entered the Dominion as a Province thereof by order •* of the Queen in Council, dated the 161h of ^Iny, 1871, made pursuant to addresses of the Houses of ParJament of Canada and the Legislative Council of British Colum- bia theiein referred to and set forth. The boundaries of British Col- umbia, as a colony, were originally fixed by Imperial Act,^ which wf s repcakd by 29 & 30 Vict. c. 67, by ss. 7 and 8 of which the pre- sent i)oundaries have been fixed.* By the " English Law Act " " it is provided '" that the Civil Laws of England, as the same existed on tlic 19th day of November, 18r)8, and so far as tlie same are not from local circumstances inap- pliciiblo, should be in force in all parts of British Columbia; pro- vided, however, that the said laws should be held to be modified and altered by all legislation, still having the force of law of the Pro- Ins- law red lur- "(1896) 26 S. C. R. 444. '°P. 530. '(1872) 23 U. C. C. P. 235. 'At p. 551. 'Until 2nd August, 1858, when 21 & 22 Vict. c. 99, was enacted. •29 & 30 Vict. c. 67. "Assented to 6th August. 1866. "See Statutes of Canada, 1S72, page xxxiv. '26, 27 Vict. c. 83, c. 67, 8, 9. ^ See Appendix I. " R. S. B. C. (1897) c. 115. •"Section 2. 10 BRITISn COLVMHIA AND yORTH-WEST TERRITORTES vinco of British Columbia, or of any former colony comprised within the geographical limits thereof/ The provisions of section 109 of the B. N. A. Act, 18G7, apply to the Provinces therein named, and also to British Columbia, but not to ]\IiinitoI)a or any of the Xorth-west Territories. The North-West Territories " By the Imperial Act,'- cited as " Tlie Eupert's Land Act, ISOa," authority was given to Her Majesty to accept a surrender of all or any of the land, territories, etc., granted, or jmrported to ])e granted, by letters ])atent, by Clias. II. in 1670, to "The Governor and Company of Adventurers trading into Hudson's Bay,'' known as the Hudson Bay Co., within l{u])ert's Land, and within one m(mth thereafter by Order in Council to admit IiU- pert's Land into Canada from a date to be therein mentioned. Tlie surrender, pursuant to this Act, was recited by Order in Council of 2',]vd June, 1870, which declared the admission to the Dominion of Ku]iert's Land and tlie Xorth-western Territory from and after 15th July, 1870. By section 10 of said Order in Council it is provided that " all titles to lands up to 8th day of March, 18G9, conferred by the Hud- son's Bay Co. are to be confirmed." The Province of Manitoba'"' was formed out of llupcrt's Land and the Xorth-western Territory by the Dominion Act 33 Vict. (1870), c. III., whicli was confirmed by the B. X. A. Act, 1871.^ " The Xortli-West Territories Act " ^ provides that, unless the context otherwise requires : (a) Tlie expression " Territories " means the Xorth-west Terri- tories, as defined in the Act. Sec. 3. Tlie Territories, formerly known as " Rupert's Land " and the Xorth-west Territory, shall, Avith tlie exception of such por- tions tliereof as form the Province of Manitoba and the District of Keewatin,33 continue to be called and known as the Xorth-West Ter- ritoiies.* ' Sep also " An Act to remove doubts as to the validity of Colonial Laws, cited as ' The Colonial Laws Validity Act, 1865,' '' Imperial Statute 28 & 29 Vict. c. 63 (assented to 29th June, 1865). (Appendix to B. C. Stat. 1871, p. 122.) Houston's Constitutional Documents, p. 241. " For boundaries, see Appen- dix I. "31 & 32 Vict. c. 105 (assented to 31st July, 1868. " For boundaries, see Appen- dix L ■Imperial Stat. 34 Vict. c. 28. ' R. S. C. 1886, c. 50, s. 2, s.-s. a. "' For boundaries, see appen- dix L * 43 Vict. c. 25, s. 1, part. TtlE CROWN TITLE; LAWS L\ FOttCK, ETC. 11 See. 11. Subject to the provisions of this Act, the hiws of Eng- hmd rclatiag to civil and criminal matters, as the same existed on the ISth of July, in tlie year of our Lord one thousand eight liundred and seventy, shall be in force in the Territories, in so far as the same are apjdicable to llie Territories, and in so far as the same have not been, or are not liereafter repealed, altered, varied, modified or afi"octed by any Act of the Parliament of the United Kingdom appli- cable to the Territories, or of tlie Parliament of Canada, or by any ordinance of the Lieutenant-Governor in Council.'"' Sec. 12. All laws and ordinances in force in the Territories, and not repealed by or inconsistent with tliis Act, shall remain in force until it is otherwise ordered liy the Parliament of Canada, by the Governor in Council, or l)y tlie Lieutenant-Governor in Council, under the authority of this Act." The Stickeen Territories ^ (now part of the Yukon District). By order dated .31st July, 1880,** of Her ^lajesty in Council, it was provided that " From and after the first day of September, 1880, all Britisli territories and possessions " in North America, not already included within the Dominion of Canada, and all islands adjacent to any of such territories or possessions shall (witli the exce])tion of tlie Colony of Newfoundland and its dependencies) "* become and be annexed to and form part of the said Dominion of Canada; and become and be subject to the laws for the time being in force in the said Dominion, in so far as such laws may be ajridicablc thereto." Prior to the lOtli July, 1803, the Stickeen Territories were administered by the Home Government as Mritish possessions abroad. From that time till the 1st day of September, 1880, the Governor for the time being of British Columbia, or in his absence the oilicer = 49 Vict. c. 15, s. 3. " 43 Vict. c. 25, s. 8. '• For boundaries of tlie territory, formerly so-called, see App. I. " See Statutes of Canada, 1880-81, p. 9. ° In Coltman v. Brown, (1858) 16 U. C. R. 133, Robinson, C.J., said, p. 134. The word " possessions " is an expression more generally used in Acts of Parliament when the plain and expressed intention is to con- fine it to British possessions abroad, that is, out of the United Kingdom; but where that is the case, the word *' abroad " is usually added * * ♦ the term " posses- sions of Her Majesty " will with- out any stretch of construction, in- clude England *♦*.•• '" For boundaries of that part of Labrador called a Dependency of Newfoundland, see Appendix I., Imperial Letters Patent, dated 28th March, 187G, Consolidated Statutes of Newfoundland, 2nd series, 1892. p. 1107. 18 CROWN TITLE administering the government of British Columbia as Administrator of the Uovernment of the said Territories, had power,* inter alia, " from time to time to make, alter and repeal regulations respecting the use and occupation of lands belonging to Her Alajesty within the said territories, and by such regulations to authorize persons to seek or take away gold, silver or other minerals in or from any part of the said territories," etc. liy the said Order in Council it was provided that the law in force in the sraid territories '* shall be the law of P^ngland as it existed on the 1st day of January, 1802, so far as the same is applicable to the circumstances of those territories." Since the 1st day of Sep- tember, 1880, the laws in force in the Dominion of Canada, so far as api)licable thereto, have been in force in the said territories; which, by Order in Council of the Governor-General in Council, dated 3nd October, 181)5, are now included in and form part of the District of Yukon.* Crown Title. Section 109 of the B. N. A. Act enacts that " All lands, mines, mineral and royalties belonging to the several Piovinces of Canada, Nova Scotia and New Brunswick at the union, and (ill sums then due or payable for such lands, mines, minerals, or royalt'es, shall belong to the several I'rovinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any trusts existing in res))ect thereof, and to any interest other than that of the Province in the same." This section applies not only to the Provinces therein mentioned, but also to the Province of British Columbia,-* but does not apply to Manitoba, the Territories or the District of Keewatin. The previous section * provided that " the public works and ])roporty of each Province enumerated in the third schedule " ehall be the property of Canada," and section 117 provided that the several Pi ovinces shall retain all their respective public pro- perty not otherwise disposed of in this Act, subject to the right of Canada to assume any lands or public property required for forti- fications or for the defence of the country." ^'ection 92 provides that in each Province the Legislature may make laws in relation to ' By Order-in-Council July, 1862. = See Appendix I. for boundaries of Yukon District. ' Precious Metals Case, (1889) 1-1 THE VUOWN TITLE; LAW IS 1\ t'ORVK, LTV. 18 " The ninnagenient and sale of the public lands belonging to the Province and of the timber and wood thereon." Property and civil rights in the Province." ^ In the St. Catharines Milling and Lumber Co. v. The Queen,' it was held by the Privy Council, following A.-G., Ont., v. Mercer," that section 109 of the B. N. A. Act, 1807, gives to each Province the entire benelicial interest of the Crown in all lands within its bound- ttries which at the time of the union were vested in the Crown, sub- ject to such rights as the Dominion of Canada had under sections 108 and 117, and also that by force of the proclamation (of 1763) the tenure of the Indians was a i)ersonal and usufructuary right de- pending upon the good-will of the Crown; that the lands wore there- by and at the time of the union vested in the Crown, subject to the Indian title, which was an interest " other than that of the Province in the same " witiiin the meaning of section 109, and also that by force of the surrender by the Indians the entire beneficial interest in the lands, subject to their privileges, was transmitted to the Pro- vinces in terms of section 109, and that the Dominion power of legis- lation over lands reserved for the Indians was not inconsistent with the benelicial interests of the Province therein. In giving judgment Lord Watson says In construing these enactments, (of the ]?. N. A. Act) it must always be kept in view that wherever public land, with its incidents, is described as the property of or as belong- inij to the Dominion or a Province, these expressions merely import that the right to its beneficial use, or to its proceeds, has been ap- propriated to the Dominion or the Province, as the case may be, and is subject to the control of its Legislature, the land itself being vested in the Crown." And/ " The enactments of section 109 a'"e, in the opinion of their Lordshi])s, sufficient to give to each Pro- ^ince, subject to the administration and control of its own Legisla- ture, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the union were vested in the Crown, with the exception of such lands as the Dominion acquired right to under section 108, or might assume for the purposes speci- fied in section 117. Its legal effect is to exclude from the duties and revenues, appropriated to the Dominion (by section 102) all the ordi- nary territorial revenues of the Crown arising within the Provinces. That construction of the statute was accepted by this board in de- •S.-s. 5. 'S.-s. 13. » (1888) 14 App. Cas. 46. • (1888) 8 App. Cas. 767. '"At p. 56. ' At page 57. 14 CllOWX TITLE cidiiig A.-fi., Ont., v. Morc\.,2 wlioro the controviTsy rcliitiMl to liiiul grantod in Tec biiiiiilo to ii siihjoit bcforu 18G1, wliicli became escheat to tlio Crown in tlie year 1871." ''"JIad its Indian iiiliahitants been the owners in fee sim- ple of Uie territory wliidi they surrendered by the treaty of 1873, A.-(i. V. Mercer* mifrlit have been aiitliority for iiolding that the I'rovince of Ontario couhl derive no boneht from tlie cession, in respect tliat the land was not vested in the Crown at the time of the nnion. lint that was not the character of tlic Indian interest. The Crown has all along had a present projirietary estate in the Innd, iij)on which the Indian title was a mere burden. The ceded terri- tory was, at the time of the union, land vested in tlio Crown, subject to an interest other than that of the Province in the same, within the meaning of section ]()!>, and must now belong to Ontario in terms of that chiiise, unless its rights have been taken away by some i)ro- vision of the Act of 18(m otlier than tiiose already noticed," ■^"In the course of the argument the claim of the nonun- ion to tlie ceded territory was rested upon the provisions of section !)1, sub-section 2A, which in express terms confers upon the I'arlianu'nt of Canada jiower to nuike laws for ' Indians and lands reserved for the Indians.' It was urged timt the exclusive power of iegitlation and administration carried with it, by necessary implica- tion, any patrimonial interest which the Crown might have had in reserved lands. . , , Their IiOrdshi])s are. however, unable t') assent to the argument for the Dominion, founded on section 91, sub- section 24. There can be no a priori probability that the British Legislature, in a branch of the statute which professes to deal only with the distribution of legislative ])ower, intended to deprive the Frovinces of rights which are expressly given to them in that branch of it which relates to the distribution of revenues and assets. The fact that the i)ower of legislating for Indians, and for lands which aie resf-'ved to their use, has been entrusted to the Parliament of the Dominion is not iit the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue, whenever the estate of the Crown is dis- encumbered of the Indian title." The above case establishes that the Crown lands within the confines of Ontario belong to the Province, and this includes all pub- lie lands in Ontario not given to the Dominion nnder sections lOS » (1883) 8 App. Cas. 767. » At page 58. * (1883) 8 App. Cas. 767. "At page 59. Till] cuows TiTLi:; LAWS IS fdnci:, i:tc 16 ami 117, irro8|io('tivo of wlictlu'r tlio so-called Tndian title lias hi-en Bunendereil or not; but, wlieii there Iuih lieeii no surrender, sultject to tlio so-called Indian title. The tnuty in ([uestion in St. Catharines M. & L. Co. v. The Queen," was I'urllier discussed by Hose, .)., in his learned and elabo- rate judj^Mueiit iu Caldwell v. Kraser.' There tiie plaint ilT, having a ])rior patent from the Domiiuon and a sHl)se(pient patent from Ontario of the mining location X12 on Sultana Island, sought to set asule a i)atent from the Ontario Oovernment to the defendant of the adjoining land covered by water, on various grounds. l{ose, J., says: " liy the North-West Angle Treaty, Xund)er 3, made on the 3rd day of October, 1873, the Indian inhabitants ceded and released the territory therein named to the Government of the Dominion of Canada for Her Majesty the (^ueen and her successors I'oicver. That territory included the lands in question. In the treaty it is provided as follows: "• And Her ^lajesty the Queen hereby agrees and undertakes to lay aside a reserve for farm- ing lands, due respect being had to lands at present cultivated by the said indian.s, and also to lay aside and reserve for the benefit of the said Indians, to be aduunistered and dealt with for tlieui by Her Majesty's Oovernment of the Donnnion of Canada, in such manner as shall seem best, other reserves of land in the said territory hereby ceded, which said n serves shall be selected and set aside where it shall be deemed most convenient and advantageous for each band or bands of Indians by the ollicers of the said Oovernment, a|)pointeominion of Canada, and is only limited by sucii regulations, and by tlie taking away from the territory of such tracts as might from time to time 1)e required of, taken up for settlement, mining, lumber- ing, or other purposes, by the said Government. Notwithstanding ~i_ THE CROWN TITLE; LAWS IN FORCE, ETC. 19 this clause, it was held in the St. Catharines Milling Company case, that the Dominion had no right to interfere Avith the lumber, and tliat the right of the Province to the lumber was not taken away. In other words, although over the whole of the surrendered tract the Indians had practically reserved their rights of liunting and fishing to be interfered witli alone by the Government of the Dominion, and although by such clause, as far as the Indians could, they gave to the Dominion Government the right to dispose of lands for mining or lumbering, or other purposes, it was held that that clause did not confer on the Dominion any right that it had not before, nor was the treaty held invalid by reason of such provision. The riglit to re- gulate the pursuit of hunting and fishing existed independently of the treaty. The right to take up lands for mining or lumbering was not in the Dominion before the treaty, nor was it given by the treaty, nor, as it appears, was tlie treaty held any the less valid, altliough there was in it an abortive attempt to confer such right upon the Dominion. Notwithstanding the existence of such a clause, the treaty was lield to be effective as a surrender, and the right of the Province to the lumber was also declared. It would follow, it seems to me, that notwithstanding the provision in the surrender of Sultana Island, that the land was conveyed in trust to sell the same to such ])crsons as the Government of the Dominion might deem most conducive, and upon further trust to invest the moneys received from the lands and ])ay the interest over to Indians, the surrender was effective, and the trust was to be executed as nearly as might be, having regard to the riglits of the Dominion and of the Province. If the ])roper conclusion be that because of the form of the sur- lender it took no effect, because it was on a trust or condition which the Dominion could not perform, then the further conclusion would bo, that there would be no right to sell those lands, until by surrender or otherwise, the rights of the Indians had been disposed of. I think, however, that, having regard to tlie decision with refer- ence to the Treaty Number 3, for the reasons I have given, the sur- render may be held to have been effective, the power of sale to be ex- ercised by the Province, where it rested prior, but, subject to the surrender, and the administration of the fund Mhich is to stand in lieu of the land is to be by the Dominion, which has the exclusive power of legislation and administration conferred upon it. Rut, ov •" if I had come to the conclusion that the power of sale was conferred U])on the Dominion by the terms of the treaty, that would not dispose of the matter in disjnite with reference to the 20 CALDWELL v. FRASER precious metals. By decision in the case of The Attorney-General of British Columbia v. The Attorney-General of Canada," the precious metals would not pass to the Dominion, nor the right to dispose of them, npon any argument that has been ad- duced before me; therefore, even admitting, for the sake of argument, that the Dominion had the power to sell these lands, it had no power to dispose of the precious metals. Assuming that the Indian right or title has been surrendered and extinguished, and that the Domin- ion had a power of sale which it lias exercised, then it seems to me that tlie right of the Province to enter upon tlie lands and dig and carry away the ores, and do such other things as arc necessary for the purpose of getting out the ores and disposing of such right by lease, sale or otherwise, arose as soon as such sale was made. I think it is reasonably clear, therefore, that the power to dispose of the pre- cious metals was beyond question in the Province and not in the Do- minion, and that the patent from the Dominion to the plaintiffs' predecessors in title, even if valid as a grant of the land, was invalid as a grant of the precious metals, unless, as in the British Columbia case, the Province has given to the Dominion the poMcr to sell such land, wJiich has not been suggested. Since the decision in the St. Catharines Milling Company case, the Dominion has not assumed to sell unsurrendered Indian lands. Mr. Orde said tliat the only dealing in respect to them was to refuse applications to purchase. And equally, it seems to me, as to unsurrendered lands the Pro- vince has no power to sell without the consent of the Dominion, which would be given if the Dominion Parliament has the right to legislate away the rights of the Indians. On the 16th April, 1894, an agreement was entered into l)e- twceu the Dominion qnd the Province, pursuant to the provisions of the Statute of Canada,^" and the Statute of Ontario,^ by which the rights of hunting and fishing by the Indians throughout the tract surrendered by Treaty Number 3, not including the lands agreed to be set apart as reserved under such treaty, were declared not to continue with reference to any tracts which had been or might from time to time bo required or taken up for settlement, mining, limibering, or other purposes by the Govern- ment of Ontario, or persons duly authorized by the Government of Ontario; and by the said legislation and agreement the Dominion Parliament also conceded the right of the Province to have a voice •(1889) 14 A. C. 295. »" 54 & 55 Vict. c. 5.' ' 54 Vict. c. 3. THE CROW^ TITLE; LAll-S /iV FORCE, ETC. 21 in the selection of the reserves agreed to be set ai:)art under Treaty No. 3. This legislation and agreement Avere apparently upon the admission by both Legislatures that the elTect of Treaty No. 3 was to surrender all the lands, named in such treaty, and that the effect of such surrender, as far as such lands were within the limits of On- tario, was to vest such lands in the Province, and that the provi- sions as to setting apart reserves for the Indians was an agreement by Her Majesty to set the same apart out of the lands of tlie Pro- vince. If tliis was not tlie tlieory, I do not understand why the Do- minion conceded the right of tiie Province to be considted with re- pjicct to the laying out of such ,'eserves. It certainly was open to argument that the Indians surrendered only such lands as were not agreed to be set apart by the Dominion, and that when such lands were so set apart or designated, the Indians held them upon the same right or title as before the surrender, subject to any variation in such right or title by the terms of tlie surrender. In other words, that they were excepted fi'om the grant upon the terms set out in the surrender, and that the surrendered lands were not defined until the reserves had been set opart. It is certain the Indians did not intend to surrender absolutely all their lands, but only a portion of tliem. Support is given to tlie argument that the lands to be included in tlie reserves agreed to be set aside were not considei'ed as surrendered lands by the provision in the treaty preserving to the Indians the right to pursue their avocations of hunting and fishing throughout the tract surrendered. This, I think, manifestly does not refer to tlie lands to be set apart, over whicli, as of course, such rights would exist; and in the agreement referred to between the two Govern- ments, the extinguishment of tlie right of hunting and fishing is confined to the lands other than ' the reserves to be made ' under the treaty. This legislation and this agreement also serve as a declaration by both Legislatures that the right exists in the Dominion to ex- tinguish the Indian title by legislation, because, as I have said, it did extinguish the rights of hunting and fishing over the lands sur- rendered, as I have above set out. I say this, for I do not suppose the I'rovincc claimed the right to legislate away such rights. I take it that this legislation and the agreement thereunder are also a declaration tliat, as to the reserves set a])art prior or subse- quent to the making of the agreement, the right of the Indians to such lands under tlie provisions of Treaty Number 3 is acknow- ledged, subject, of course, to the concurrence or acquiescence by the Province in the location of such reserves, and the exclusive power of 22 INDIAN TITLE legislalion and adininistration respecting the Indians u])on suck reserves, and tlie lands so reserved, was in tlie Parliainjnt of Canada. Clanse 4 of such agreement is important. It is as follows: • That in cfise of all Indian Eeserves so to be confirmed or hereafter selected, the waters within the lands laid out or to l)e laid out as Indian Eeserves in the said territory, including the land covered with water lying between tiie projecting headlands of any lake or sheet of water not wholly surrounded by an Indian reserve or reserves, pliall be deemed to form part of such reserve, including the islands wholly within such headlands, and shall not be subject to the puldic common right to fishery by others than Indians of the band to which the reserve belongs.' Clause 2 of such agreement is as follows: ' That to avoid dis- satisfaction or discontent among the Indians, full enquiry will be made by the Covernment of Ontario as to the reserves, before the })assing of the said statutes, laid out in the territory, with a view to acquiescing in the location and extent thereof, iinless some good reason presents itself for a diiferent course. 3. That in case the Covernment of Ontario, after such enquiry, is dissatisfied with the reserves, or any of them already selected, or in case other reserves in the said territory are to be selected, a joint commission or joint commissions shall be appointed by the Governments of Canada and Ontario to settle and determine any question, or all questions relating to such reserves or proposed reserves.' The defendants contend that the surveys made in laying out 38 B did not include the land in question, but that the southern bouiulary was the shore line, and that therefore tlie lands in question were lands surrendered under Treaty Xumber 3; and further, that the Province never did confirm the laying out of 3S B, and so clause 4 did not apply to make the lands in question part of the reserve. There was no evidence of any formal act done l)y way of acquiescence on the part of the Province except as the history of the case may afford room for an argument. The jdaintilf's contention is that tlie lands in question were included in the reserve 38 B, and if the description of such reserve did not in terms inchule it, that clause 4 did apply; that althougii there may be no evidence of any explicit declaration of acquiescence in the location of 38 B, the fact that no dissatisfaction has l)een expressed by the Government of Ontario is evidence of an acquies- cence, and that, therefore, these are lands declared by section 4 to be within 38 B. I do not find it necessary to determine this issue between the THE CROWN TITLE; LAWS IN FORCE, ETC. 23 ■I parties. The surrender of the 8th of October, 1896, being of Sultana Island only, does not iiiclude the land covered by water, but must be confined to the description, and tiierefore does not include any of the land in dispute in tiiis action. So that if 38 B is to be read as including such land, the question has been surrendered, and therefore, unlcs-8 the consent of the Dominion lias been obtained to its sale, or disposition, the right of the Province to nuike such sale or disposition has not yet arisen. I conclude, therefore, that the Dominion had no power to soli or grant the Indian lands, whether surrendered or unsurrendered; (2) that even assuming the right to sell unsurrendered lands, it had no right to sell or dispose of precious metals, and that, therefore, its patent to the plaintilf was void; (3) Sultana Island having been surrendered, the Province clearly had the right to soil or grant such lands; and therefore the letters patent from the Province of X42 and X-13 to the i)laintiil: are good and valid, bui; they convoyed nothing beyond the land surrendered; (4) that iC ti:e land covered by water in front of the Sultana Island was part of the reserve and unsur- nndercd, the Province had v.o riglit to grant the same; (5) t)iat if tlie lands in question f.re port of 38 B, and unsurrendered, the grants from the Province are, if valid at all, only valid to the extent of con- voying the rigl-.t of tlu; Province to such lands sul)ject to the Indian title, and tiie right to take the precious metals from under such lands, in as far as the same might be done without aH'octing what I may tall s-urface rights; ((>) that the ])laintill' had no right to c(un- l)lain of the issue of the letters patent of D 1!}3A, assuming such issue to have been valid, because he had no contract with the Crown at tiie titne of the grant, and no right which was enforceable against the Crown. Xor did sucli letters patent issue by error or imjn'ovi- deiice, or in disregard of the rights of the ])laintifl' as riparian owner or otiieiwiso; (7) that tlio plaintilf had no right to claim tiie inter- ference !)t the Court because of the erection of the crib; (8) that the complaint as to the ovorlajiping of the descriptions is not sus- tained. I may further say that if I am correct in the view that the Pro- vince had no power to make a grant of any present right to the un- surrendered lands Tinder the water, and if Fraser or the defendant compiiny is interfering with such lands without right, then, in my ojiinion, on the facts of this case, the plaintiff is not in a position to raise any such question. The (mly parties who can complain are the Indians, or the Dominion Government, as having control of In- dian affairs." 24 PRECIOUS METALS The propositions of Mr. Justice Rose are avowedly based on the decision of the Privy Council in the St. Catharines Milling Case,^ and it must be borne in mind that the lands in question in the Privy Council and before Rose, J., were situate in a tract of land declared to belong to the Province of Ontario by virtue of section 109 of the B. N. A. Act, and over the management and sale of which exclusive jurisdiction was vested in the Provincial Legislature by sub-section 5 of section 93 thereof. Consequently, they would not apply to Indian Reserves (properly so culled) in Ontario set apart prior to 18G7, either by the Imperial oiFicers, who formerly administered Indians allairs, or by the Pro- vince of Canada. Such reserves, unless surrendered by the Indians, become Indian lands Avithin the meaning of " The Indian Act," and would fall within tlie legislative jurisdiction of the Federal Parliament and the executive control of the Dominion Government; and such lands, on the princii)les of Church v. Fenton ^ and Farewell v. The Queen,* would properly be granted under the Great Seal of Canada. "When granted by the Dominion to private purchasers, such lands would become subject to the jurisdiction of the Province over property and civil rights. In A.-G. of ]i. C. V. A.-G. of Canada," Lord Watson says: » " Tlie title to the public lands of British Columbia has all the while been, and still is, vested in the Crown; but the right to administer and dispose of these lands to settlers, together Avith all royal and territorial revenues arising therefrom, had been tr."nsferred to the Province before its admission into the Federal Union." As to the Precious Metals, Lord Watson says, in the same case : ^ " According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, arc not regarded as partes soli, or as inci- dents of the land in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title from that to which its right to the precious metals must be ascribed. In the Mines case,* all the Justices and Barons agreed that, in the case of the baser metals, no prerogative is given to the Crown; whereas, all mines of gold and silver within the realm, whether they be in the land of the Queen or of subjects, 'Supra. ' (1880) 5 S. C. R. 239. ♦ (1887) 14 S. C, R. 392, •(1888) 14 App. Cas. 295. « At p. 301. 'Ac p. 302. "1 Plowd. 336, 336a. THE CROWN TITLE; LAWS IN FORCE, ETC. 26 I belong to the (iueeii by prerogative, with lil)erty to dig and carry away tlie ores thereof, and witli other sucli incidents thereto as are necessary to be used for the getting of tlie ore." In British Columbia the right to public lands, and the right to precious metals in all provincial lands, whether public or private, still rests upon titles as distinct as if the Crown had never parted with its beneficial inter- esis; and tlie Crown assigned these beneficial interests to the Govern- ment of the Province, in order that they might be appropriated to the same state purposes to which they would have been applicable if tliey had remained in the possession of the Crown." And," " Tlieir Lordships do not think it admits of doiibt, and it was not disputed at the Bar, that section 109 of the IJ. N. A. Act must now be read as if British Columbia was one of tlie Provinces therein enumerated. With that alteration, it enacts that, all lands mines, minerals and royalties which belonged to British Columbia at the time of the Union shall for the future belong to that Pro- A ince, and not to the Dominion. In order to construe the exception from that enactment, Avliich is created by the 11th article of Union, it is necesi^ary to ascertain what is comprehended in each of the words of the enumeration, and particularly in the word ' royalties.' The scope and meaning of that term, as it occurs in section 109, under- went careful consideration in the case of A.-C, Ont., v. Mercer.*" . . . In tliat case their Lordships wore of tlie oiiinion that the mention of ' mines and minerals ' in the context was not enough to deprive the word ' royalties ' of what otherwise would have been its i)roper force." The Earl of Solborne, in delivering the judgment of the Board, said:^^ "It appears, however, to their Lordsliips to be a fallacy to assume that because the Avord ' royalties ' in this context would not be regarded as unofficious or insensible, if it were regarded as having refei'once to mines and minerals, it ought, therefore, to be limited to those subjects. They see no reason why it should not have its pri- mary and proper sense as to (at all events) all the subjects with which it is here found associated, lands as well as mines and minerals — even as to mines and minerals, it here necessarily signifies rights belonging to the Crown jure coronac. It is not necessary for the purposes of this appeal to consider whether the word 'royalties,' as used in section 109 includes jure regalia other than those connected with lands, mines and minerals. A.-G., Ont., v. Mercer,* is an authority • At page 304. " (1883) 8 A. C. 767. " (1882-3) 8 App. Cas. 778. • Supra. 4 20 ROYAT/rrns to the eirect that, within the moaning of tlic clause, the word 'royal- ties' c'oini)rehen(ls, at least, all revenues arising from the i)rcrogativo riglils of the Crown in connection with lands, mines and minerals. The exception created hy the 11th Article of Union from the riglits specially assigned to the Province by section 109 is of ' lands ' merely. Tile exjjrcssion 'lands' in that article admittedly carries with it the baser metals; that is to say 'miiies' and 'minerals' in the sense of section 10!). jMines and nunerals, in that sense, are incidents of land, and, as such, have been invariably granted, in accordance with the uniform course of Provincial legislation, to settlers who pur- chased land in IJritish CoUnnbia. ijut jura regalia are not accessories of land; and their Lordships are of opinion that the rights to which the Dominion Government became entitled under the 11th Article did not, to any extent, derogate from the Provincial right to ' royal- ties ' connected with mines and minerals under section 109 of the P.. N. A. Act." The doctrine of this case, being based on section 109, is equally applicable to the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick. - In Atty.-(ien. P. C. v. Atty.-Uen. Canada,'' and in Esquimaidt and Xanaimo Py. Co. v. J3ainbridge,* the Privy Council adopt the view in the Mines case, tliat mines Royal l)elong to the Crown by pren gative, " with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore," in preference to the contrary view of Lord Ilardwicke, C, in Lydall v. Weston.'' In Caldwell v. Fraser," Pose, J., held, following the British Coluudna case, that the power to dispose of the ])recious metals was in. the Province; that a patent from the Dominion of a ])ortion of Sultana Island, even if valid as a grant of the land, was invalid as a grant of the precious metals. As to Indian Reserves, unless the instrument of reservation con- tfirs apt words of severance as regards the ])recioua metals, i.e., gold and silver therein, the title to such ])recious metals remains in the Crown, and passed to the Province in which the reserve is situated under section 109 of the B. N. A. Act.^ ' See also Esquimault and Nana- imo Ry. Co. v. Bainbridge, (1896) App. Cas. 501. ' (1889) 14 App. Cas. 302. * (1889) 14 App. Ciis. 295. M1739) 2 Atk. 19; see also Sea- man V. Vaudrey, (1809) 16 Ves. 393; Caldwell v. Fraser (siii)ni). " Sui)ni. ' See also Woolley v. Attorney- General of Victoria, (1877) 2 App. Cas. 163. * THE CROWX TITLE; LAWS IX FORCE, ETC. 27 I It follows of necessity that in cases of reservations for the benefit of Iiidiiin>* iiiadi.' by or under authority ol' the I'arliainent of Cauada since 18(!7, tlie title to the precious metals remains in the Province until disposed of by the I'rovince. As to the "Ordinance Lands" Jiientioned in 3rd Seliodulc to section lOS, see Commissioners of the (i|ueen Victoria iS'iagara Falls I'ark V. Howard/ where it was held, allinning the decision of Boyd, (J.," that the "chain reserve" along the bank of the Niagara Uiver and tile slope between the top of the bank and tlu; water's edge, did not at Confedeiation pass to the Dominion (iovernment as ''Ordi- nance! Lands," but remained i)art of the public domain of Ontario. Tlie meaning of tiie words " trust or interest " '" section 109 of the B. N. A. Act has been judicially considered ; ^^ and also the word " royalties." ^ In tlie Fisheries Case," it was held,'' that at tiie time of Con- federation the beds of all lakes, rivers and other waters within the territorial limits of the several provinces which had not been granted by the Crown, M-ere vested in the Crown as representing the Provinces respectively, and that there was no distinction in this re- spect between the various classes of waters; whether salt waters, fresh waters, tidal or non-tidal, navigable or non-navigable, etc., and that the ungranted beds of all such streams and waters were there- fore lands belonging to the several Provinces in which the same were situated; and under section 109 of the li. X. A. Act became, u|)on ('on federal ion, vested in the Crown in right of the several Provinces, subject only to the exception respecting existing trusts and interests mentioned in that section, and excepting the l)eds of public harl)ors, which, by the ojieration of section 108, were vested in the Dominion. No distinction exists at law between the title or proofs of title to land covered by water and the title to terra firma.* * (1896) 23 A. R. 355. » (1892) 23 O. R. 1. " See Attornoy-General of Can- ada v. A. G. of Gnliirio (the Indian Annuities Case), 1897, Ap. C. 199; St. Catharines M. & L. Co. v. The Queen, (1888) 14 Ap. Cas. 46, per Lord Wiitsoh, p. 54; The Canada Central Railway Co. v. The Queen, (1873) 20 Gr. 273; Booth v. Mc- Intyre, (1880) 31 U .C. C. P. 183. ' Church v. Blake, (1876) 2 Q. L. R. 236; Mercer's Case, (1883) 8 Ap. Cas, 767; Precious Metals Case, (1888) 14 Ap. Cas. 295. As to meaning of phrase — " Set apart for public purpof;es," Mayor of Emm- don v. Blackwood, (1877) 2 App. Cas. 574, appeal from Sup. Ct. of Victoria. - (1897) 26 S. C. R. 444. ' At page 514. * Hall " on the Sea Shore," ix. IMAGE EVALUATION TEST TARGET (MT-3) /> ^ .^\, /ML// ^£^ ^ 1.0 I.I M 125 i ^ 1^ IIIII2.2 S«.i us ■ 40 2.0 1.8 1.25 |U ,.6 < 6" ► m V] > Photographic Sciences Corporation 23 WIST MAIN STRUT wnSTIR.N.Y. MSM (716)873-4503 ,\ iV •^ \\ <1> 6^ ^ 6^ m 28 TITLE Oricdn of Title. All lands in Canada, whether terra firma, sea- shore or land covered by water, and the mines therein, whether mines Royal or base metals, having been vested in the Crown, or in the King of France, the origin of every title of a subject to such lands or mines must be a grant or other instrument of title from the Crown (or the King of France), It is necessary in deducing a title under a grant from the Crown to examine the original grant in order to see whether any interest remains in the Crown or not; or whether any rent, condition or ser- vice has been reserved." By the municipal law of France, formerly in force in those parts of Canada which were French possessions, a grant of lands did not convey to the grantee a right to minerals, which remained the pro- perty of the King, and did not pass without special words; when the Sovereign granted the right to mine foi gold or other jirecious metals, the owners of the soil had no rights whatever, and could claim indemnity only for any damage they might suffer in conse- quence of the ground being occupied by the opening of roads and mines." In dealing with grants from the Crown, it is important to bear in mind that the. right of the Crown to land and the baser metals which it contains, stances upon a different title from that to which its riglit to tlie precious metals must be ascribed."" According to the law of England, which in this respect (except as modified by Statute), is in force in all the territories and Pro- vinces of Canada, except Quebec, gold and silver mines (i.e.. Mines Hoyal), until tl ey have been aptly severed from the title of the Crown and vested in a subject, are not regarded as partes soli, or as incidents of the land in which they arc found.^ By section 93 of the B. N. A. Act, s.-s. 5, exclusive jurisdiction is given to the Provinces to make laws in relation to the management and sale of the public lands belonging to the Province. And by sub-section 13, in relation to Property and Civil Rights in the Province. Title. Consequently, t*- c valid, a grant of Provincial lands or of the mines and minerals therein, must be authorized by tlic pro- ])er Provincial authorities. ° See Pickering v. Lord Sher- bourng, 1 Craw. & Dix. ab. 254, also the Statute by virtue of which Buch grant is made. •Regina v. DeLery, (1883) 6 Legal News, 402. »" Precious Metals Case, (1889) 14 Ap. Cac. 302. ' lb. See also Esquimault & Nanaimo Ry. Co. v. Bainbrldge, (1896) A. C. 561. THE CROWN TITLE; LAWS IN FORCE, ETC. 29 In Ontario, there is a department for the management and sale of the puhlic lands called the Department of Crown Lands, and pre- sided over by " The Commissioner of Crown Lands," who is a mem- ber of the Provincial Government. The Mines Act, It. S. 0. 1897, c. 36, is printed hereafter in Chapter XIV., with notes thereon. By section 3 of " The Ontario Mines Act," * all reservations of gold and silver mines contained in any patent issued prior to 4th May, 1891, are rescinded, and it is declared that all such mines (i.e., Mines Royal) in or itpon such lands shall be deemed to have been granted in fee sim])le as part of such lands, and to have passed to the subsequent and present proprietors or owners thereof in fee simple; but the provisions of this section do not apply to lands patented under " The Free Grants and Homesteads Act." " In cases ol patents of land in Ontario, issued prior to 4th ^lay, 1891, in which the mines or minerals were reserved to the Crown expressly, or by virtue of the statute or o^^^-.er law in force at the date of the issue of such patents, such mines or minerals so reserved, except Mines Royal, would remain vested in the Crown, as the above section deals only with gold and silver mines. Section 10 provides, s.-s. (1). Crown lands not situated within any mining division, which are supposed to contain ores or minerals, and mining rights in lands, the ores or minerals whereof have been reserved by the Crown, may be sold or leased as mining lands in blocks, sections or lots, to be called " mining locations." Sub-section (2). Where such Crown lands are situated witliin a mining division, they may be occupied and worked as " mining claims " under miners' licenses, as hereinafter provided.*" The Michipicoton Mining Division is tlie only mining division yet sot apart in Ontario. To it Part III. of the Mines Act and the Regulations issued thereunder apply. Parts I., II. and IV. apply to the remainder of Ontario. In Quebec. All lands supposed to contain mines or ores may be acquired from the Commissioner of Crown Lands, a member of the Provincial Government, pursuant to the 9th section of tlie Revised Statutes of Quebec, 1888,* as amended, the text of which is set forth and dealt with hereafter in Chapter XV. In New Brunswick. The administration relating to Klines and Minerals devolves upon the Department of Crown Lands, and the ' R. S. O. 1897, c. 36. •R. S. O. 1897, c. 29. '» 60 Vict. c. 8, s. 6. 'Clauses 1421 to 1582, Inclusive and Appendix of Schedules 80 ACQUISITION FROM CROWN f I J'i i' Surveyor-General^ a member of the Provincial Government, is charged with the duty of carrying out and enforcing the provisions of the law in regard thereto, entitled " The General Mining Act," 2 the text of which, Avith notes and cases, is set forth and dealt with hereafter in Chapter XVI. In Nova Scotia, The administration of mines and minerals is committed to the Commissioner of Public Works and Mines, an oflTicer appointed by the Governor in Council and the law in regard thereto as contained in the Provincial Statute 55 Vict. c. 1 (passed 30th April, 1892), as amended in 1893, 1895, 1890, 1897 and 1898, the text of whicli, with notes and cases, is set forth and dealt with herefter in Chapter XVII. In British Columbia the administration of mines and miner- als is committed to *he Chief Commissioner of Lands and Works, and the law in regard thereto is contained in Provincial Statutes en- titled as follows: — The " Mineral Act," K. S. B. C. (1897), c. 135. "Placer Mining Act," E. S. B. C. (1897), c. 136. " Coal Klines Act," K. S. B. C. (1897), c. 137. "Coal Mines Kcgulation Act," R. S. B. C. (1897), c. 138. " Inspection of Metalliferous Mines Act," K. S. B. C. (1897), c. 134, the text of all of which, with notes and cases, are set forth and dealt with hereafter in Chapter XVIII. Manitoba. Section 23 of "Provincial Lands Act of Mani- toba,''* declares that no grant from the Crown of lands in freehold or for any less estate has operated, or will operate, as a conveyance of tlie gold or silver mines, or any other mineral therein, unless the same are expressly conveyed in such grant. Section 21 of the It. S. of Manitoba, 1891, provides that lands containing coal, or other minerals, shall not be subject to the provi- sions of the Provincial Lands Act, but shall be disposed of in such manner and in such terms and conditions as may from time to time be fixed by the Lieutenant-Governor in Council, by regulations to be made in that behalf. No sucli regulations have yet been passed, because most of the unpatented mineral lands in Manitoba are the public property of the = 54 Vict. (1891), c. 16 (passed 16th April, 1891), as amenilort in 1892, 1893 and 1896, the text of which with notes and cases is set forth and dealt with hereafter in c. xvl. ' R. S. M. 1891, c. 120. THE CROWN TITLE; LAWS IN FORCE. ETC. 81 Dominion, and, therefore, to be disposed of under the Dominion Mining Eegidations.* Indian lands containing minerals in Manitoba are disposed of under the Indian Lands Mining Regulations.' Prince Edward Island. There are no mines or mining laws in this Province. The " North-West Territories." The Dominion Lands Act," passed pursuant to +he authority conferred by section 5 of the Imperial Act, 31-33 Vict. c. 105, upon the Parliament of Canada, is declared, by section 3, to apply exclusively to the public lands included in Manitoba and the several territories of Can- ada, except as provided by any other Act of the Parliament of Canada. Faction 47 of this Act proA'idcs that lands containing coal or other minerals shall be disposed of in such manner and on such term- and conditions as are from time to time fixed by the Governor in Council, by regulations made in that behalf. The regulations at present in force are i)rinted in full, with comments, hereafter in Chapter XIX.' Section 48 of this Act provides that no grant from the Crown of lands in freehold, or for any less estate, shall be deemed to have conveyed, or to convey the gold and silver mines therein unless the same are expressly conveyed in such grant. The District of Eeewatin was a portion of the Xorth-West Territories, and was organized as a separate district under this name by " The Keewatin Act." * Provisional Districts. By Order in Council of the Governor- General in Council, dated 17th September, 1889, the boundaries*'^ of the I'ro visional Districts of Assiniboia, Saskatchewan, Alberta and Athabasca were defined. By Order in Council of the Governor-General in Council, dated 2nd October, 1805," the whole of the remaining unorganized and unnamed ])ortion of the Xorth-West Territories was divided into four jirovisional districts named, respectively, Ungava, Franklin, Mackenzie and Yukon.'" ♦ See Chapter XIX. '■ See Chapter XIX. " 49 Vict. (D.) c. 54; R. S. C. (1886) c. 54. ' See c. xlx »R. S. C. c. 53; for boundaries, see Appendix I. The boundaries fixed by the Keowatin Act" were originally fixed by 39 Vict. (D.) c. 21; now R. S. C. (1886) c. 53, but were subsequently recommend- ed to be enlarged by Dominion Order in Council, dated 2nd October, 1895, see Appendix I. '^^ See Bligh's Orders in Council, (1889) at p. 935. ° Passed pursuant to R. S. C. c. 50, s. 17. '" For boundaries, see Appendix I. I S2 lA'DlAJf LANDS The District of Yukon (a portion of which is sometimes referred to as " the Klondike "),^ was, by Order in Council dated 29th July, 1897," constituted a Land Registration District, with the Land Titles OfRce at Fort Cudahy, to take effect when a Registrar should be appointed. Indian Lands. By sub-section 24 of section 91 of the B. N. A. Act, exclusive jurisdiction is given the Dominion Parliament to make laws relating to Indians, and lands reserved for Indians, and pursuant to this authority has been passed " The Indian Act." ^ The expression " Indian Lands," is defined by sub-section (m) of section 2 to mean any reserve or portion of a reserve surrendered to the Crown. Section 41 enacts that all Indian lands which are reserves, or portions of reserves surrendered or to be surrendered to Her Majesty, shall be deemed to be held for the same purposes as before the passing of the Act; and shall be managed, leased and sold as the Governor in Council directs, subject to the conditions of surrender, and the pro- visions of the In .lan Act. In pursuance of this authority, the Governor in Council has passed the Indian Lands Mining Regulations.^ Patents of Indian lands are required by section 45 of the Irdian Act to be signed by the Superintendent of Indian Affairs, or his deputy, or some other person si)ecially authorized, and to have the Great Seal of Canada affixed. In Church v. Fenton,* Gwynne, J., in dealing with a parcel of land which formed part of a tract of land surrendered by the In- dians in 1854 to the Crown, observed,'' that " the manage- ment and sale of Indian lai. .: remained in the Dominion Govern- ment, and the power to grant letters patent." Under the terms of the surrender, the interest on the moneys to arise out of the sale of the lands was to be paid to the Indians half- yearly. A sale (subsequent to the Dominion patent) of the land for taxes levied (under Provincial legislation) before the issue of the patent, but after the sale by the Crown, was upheld, and this decision was affirmed by the Court of Appeal," and by the Supreme Court.'' ' For boundaries, For boundaries of Judicial District," Ooxtllc, vol. xxxl., p. see App. 1. the " Yukon vide Canada 392. " Vide Canada Oazfttv, vol. xxxi., p. 350, dated 21st August, 1897. ' R. S. C. 1886, 0. 43. ' Dealt with hereafter in c. * (1878) 28 U. C. C. P. 384. " At p. 400. " lb. (1879) 4 A. R. 159. ' lb. (1880) 5 S. C. R. 239. xix. THE CROWN TITLE; LAWS hX FORVE, ETC. 88 tiieie m question being surrendered by flie Indians, they became Ac s Phe history of the legislation upon this subject has been "cidly traced and its effect fully explained in .he judgment of In Farwell v. The Queen/o King, J., said: " The rights of the SenTo; r''n ""■' '' P-rogative, are to be passed under the Great beal of the Dommion or Province (as the case may be) in which is ^esteJl the beneficial interest therein, otherwise they can not be en' joyed by it, or under its control." confiJr ?i' ^f''J^'''' ^"«"^t'^ I^"'-1'"lg«. J. whose judgment was confirmed by the Supreme Court, said: "Letters patent for any lands ni the railway belt sold by the Dominion Government may be issuec ™der he Great Seal of Canada in accordance with the st t te s:fritTto m!r"'r^"- '^ "^^ '''-'''' -^ ^ ^^^- -^^ ^^^^ m n o '- "' " '"^'^'^ '^ '''" P"'^'^^ l^^«P--t->^ «f the Do- ' (1879) 4 A. R. 162. ° (1878) 28 U. C. C. P. 387. '" (1894) 22 S. C. R. 531. ' (1893) 3 Ex. Ct. R. 290. = B. N. A. Act, s. 91, s.-s. 1; R. S. C. 1886, c. 56. «;- M i^iiiiikilt. CHAPTEK II. MEANINGS OP TERMS. " Mines " and " Minerals." Lord AYatson points oiit in Glas- gow V. Farie,^ that " mines " and " minerals " are not " definite terms: they are susceptible of limitation or expansion, according to the intention with which they are used," and says, " in construing a reservation of mines and minerals, whether it occur in a private deed or in an Inclosure Act, regard must be had, not only to the words employed to describe the things reservet^, but to the relative position of the parties interested, and to the substance of the trans- action or arrangement which such deed or act embodies." ^ Mr. Justice Street, referring to the judgment of Lord Mac- naghten in the Farie case, says, in Ontario Natural Gas Co. v. Smart : ' "It has been laid down that the word ' minerals,' when used in a legal document or an Act of Parliament, must be under- stood in its widest signification unless there be something in the con- text or in the nature of the oase to control its meaning." Lord Macnaghten also said in the Farie case : " The word ' minerals ' undoubtedly may have a wider meaning than the word ' mines.' In its widest signification it probably means every in- organic substance forming part of the crust of the earth other than the layer of soil which sustains vegetable life. In some of the re- ported cases it seems to be laid down, or assumed, that to be a mineral a thing must be of commercial value, or workable at a profit. But it is difficult to see why commercial value should be a test, or why that which is a mineral when commercially valuable should cease to be a mineral when it cannot be worked at a profit." In the Natural Gas Case, which was affirmed in appeal,* Street, J., also said: "In Hext v. Gill," Mellish, L.J., stated, at p. 713, ' (1888) 13 A. C. 675. 'See also Bell v. Wilson, (1865) 2 Dr. & Sm. 401. ' (1890) 19 O. R. 591, at p. 595. (1891) 18 App. R. 626. (1872) L. R. 7 Ch. 699. MEANINGS OF TERM 8 35 ^ y the result of the authorities to be that a reservation of ' minerals ' includes every substance which can be got from underneath the sur- face of the earth for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the Court to give it a more limited meaning." This definition in IText v. Gill was criticized by Ilalsbury, L.C., in Glasgow v. Farie, but was subsequently adopted by the Eng- lish Court of Appeal in Earl of Jersey v. Guardians of the Neatli Poor Law T'nion," where it is stated that Hoxt v. Gill has not been overruled, and Lord Esher, M.R., says, " In my opinion the rule so laid down (in Ilext v. Gill) is an excellent rule of construction, founded on a long series of cases." In ]\lidland Eailway Co. v. Checkley,^ Lord Tfomilly, 'M.Ji., said, "Stone is, in my opinion, clearly a mineral; and in fact everything except the mere surface, which is used for agricultural purposes; any- thing beyond that which is useful for any purpose whatever, whether it is gravel, marble, fire-clay, or the like, comes within the word mineral. Where there is a reservation of the mines and minerals from a grant of land, every species of stone, whether marljle, lime- stone or ironstone, comes, in my opinion, within the same category." In Midland Railway Co. v. Robinson * it was decided (by Lords Ilerschell and Watson, Lord Macnaghten, dissenting), that the mines of coal, ironstone, slate and other minerals, which section 77 of the " Railway Clauses Act, 1845," excepts out of the conveyance to the railway comi:any, and the " mines or minerals " under the railway, or within the specified distance, whicb section 78 empowers the owner to give notice of bis intention to work, include not only beds and seams of minerals got by underground working, but also such as can only be worked, and according to the custom of the district would be properly worked, by open or surface operation. Lord Watson said, " In that case " I came to the conclusion that every substance, being a mineral within the meaning of these clauses, is reserved to the owner irrespective of the method by which it may be wrought. T there said that, in the enactments of section 18 of the "Waterworks Clauses Act, 1847" (which are in the same terms with sections 77 and 78 of the "Railway Clauses Acts" of 1845), the word 'mines' must be taken to signify 'all excavations by which the excepted minerals may be legitimately worked and got.'" •(1889) 22 Q. B. D. 555. * (1867) L. R. 4 Eq. 25. ' (1889) 15 App. Cas. 19. • Farle's Case, 13 App. Oas. 657. 86 ILLVm'RATlONS Lord llerschell says, in referring to his judgment in Farie's case,*" "I desire only to say tliat when I stated that in my opinion the reservation extended to all such bodies of mineral substances lying together in seams, beds, or strata as are commonly worked for profit, and have a value independent of the surface of the land, I did not intend by these latter words to suggest that the value of the mineral substances at the time of the reservation was the test whether they were reserved or not. I used them in order to em- phasize the fact that it was not every scattered piece of mineral lying under the land that could be called a ' mine,' but only mineral sub- stances lying in seams, or beds or strata." It is to be borne in mind that Lord llerschell was the dissent- ing Judge in tlie Farie case. " IMines " may mean subsoil containing the minerals, and not merely tlie minerals themselves.* In Ballacorkish Silver Mining Co. v. Harrison,- Lord Penzance who gave the judgment, said : ^i "The Act affirius tliat he has excepted out of the grant not only the minerals, bat that portion of the soil which contains the minerals and which constitutes * the mine.' " In many statutes tlie terms " mines " and " minerals " are de- fined for the purposes of the Act containing the definition, and such statutory deiinitioDs, therefore, control the meaning of the terms defined for the purposes of the particular Act only. ILLUSTRATIONS. SUBSTANCES HELD TO BE INCLUDED IN THE TERM " MINE " OR " MINERAL." In Farl of Jersey v. Guardians of the Poor of Neath Poor Law Union,3 a reservation in a conveyance of " all mines and minerals whatsoever, except stone quarries," was held to include brick, earth and clay. In lyridland T?ailway Co. v. Robinson * it was held in the House of Lords by Lords Herschell and Watson, Lord Macnaghten dissent- ing, that limestone is a " mineral " within the meaning of sectvtns "13 App. Cas. 657. ' Per Jessel, M.R., in Eardley v. Granville, (1876) 3 Ch. D., at p. 835; Duke of Hamilton v. Gra- ham, (1871) L. R. 2 Sc. & Div. 166. 5 P. C. 49. ' (1873-4) L. R. -' At p. 62. • (1889) 22 Q. B. D. 555. ♦ (1889) 15 App. Cas. 19. ft' AIEANINGH OF TKRMS 37 77 and 78 of the Railway Clauses Act, 1845; 8 & 9 Vict. (Imp.) c. 20. In Ontario Natiiral Gas Co. v. Smart," Natural gas was held t' bo a " mineral " within the meaning of section 565 of Municipal Act, R. S. 0. 1887, c. 184; now It. S. 0. 1897, c. 223, s. 657. In Midland Railway Co. v. Checkley," Romilly, M.R., held that a quarry of stone was included in the words " mines and minerals " in a Canal Act, 34 Geo. III. c. 93. In Cleveland v. Meyrick ^ Malins, V.-C, held that under a be- quest of " all shares in mines," etc., shares in a company limited to the working of slate quarries passed. The company's slate works were carried on almost entirely by underground or mining operations. In Tucker v. Linger * the House of Lords assumed, but did not decide, that a reservation of mines and minerals included flints. In Ilext V. Gill " china clay was held to be included in a reser- vation of " all mines and minerals within and under the premises," etc. In Midland Railway Co. v. Haunchwood *" it was held that the word ''mines" in 77th section of the Railway Clauses Act, 1845, included a bed of clay.^ In King v. Sedgley " property in which limestone obtained by underground workings was held to be a mine. As to " freestone," see King v. Dunsford.^ As to " clay," see R. v. Brettel.-'' In Earl of Rosse v. Wainman * a stratum of stone was held to be included in the word " minerals " in a reservation contained in an Inclosure Act. In Micklethwait v. Winter ' it was held that stones dug from quarries are minerals within meaning of an Inclosure Act. In Attorney-General v. Tomline," coprolites beneath the surface of a copyhold tenement were decided to be minerals. In Attorney-General v. Welsh Granite Co./ it was held by the Court of Appeal that granite was included in a reservation to the King of " minerals, etc.," and that the Crown was entitled to win the granite by open workings. • (1890) 19 O. R. 591, affirmed, 18 Ap. R. 626. •(1887) L. R. 4 Eq. ID. ' (1868) 37 L. J. N. S. 125. » (1883) 8 App. Cas. 508. •(1872) 7 Ch. Ap. 699. •» (1882) 20 Chy. Div. 552. 'Compare with Glasgow v. Farie, 13 App. Cas. 657. " (1831) 2 B. & Ad. 65. '(1835) 2 Ad. & E. 568. " (1832) 3 B. & Ad. 424. ♦ (1845) 14 M. & W. 859. ' (1851) 6 Exch. 644. • (1877) 5 Ch. Dlv. 750. ' (1887) 35 W. R. 617. 38 QUARRY SUnSTANCES HELD TO BE NOT INCLUDED IN TERM " MINE" OR " MINERAL." In Lord Breadalbanc v. Menzies * the House of Lords held that a res^ervation of " all mines and minerals of whatsoever nature or quality " did not include a quarry of freestone suitable for luikling. In Darvill v. Roper " it was held that limestone quarried out of the surface was not within an exception (contained in deeds carrying out an agreement for a partition of lands) of " the mines of lead and coal, and other mines and minerals." In Glasgow v. Farie '" it was held by the House of Lords (Lord Herschell dissenting), that common clay was not included in the reservation of " mines of coal, etc., or other minerals," contained in the 18th section of the Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17). In Elwes v. Brigg Gas Co.,* Chitty, J., expressed the opinion (not however necessary to the decision of the case) that a boat 2,000 years old, found embedded four to six feet deep in clay, was not a " mineral." In Jones v. Cwmorthen Slate Co.," it was decided that works for the getting of slate are assessable to the income tax under 5 & 6 Vict. c. 35 (Sched. A.) as quarries of slate, and not as mines, though all the slate is obtained by underground working. In Simms v. Evans ^ the same concern was held by the Court of Queen's Bench to be a '" mine " within the meaning of the Metal- liferous Mines Act, 1872.* In Attorney-General for the Isle of Man v. Mylchrecst '^ the Privy Council held that the word " minerals " in the Act of Settle- ment of 1703 did not include clay and sand. " Quarry" was stated by Bramwell, L.J., in Jones v. Cwmorthen Slate Co.," to generally mean " a place where the material is got out in large shape like blocks, and not where it is got in small pieces like coal and ironstone." In Duchess Dowager of Cleveland v. Meyrick,^ Malins, V.-C, says, " By a quarry I understand a work from which stone or other « (1822) 1 Shaw. Ap. 225. ° (1855) 3 Drewry, 294. "IS App. Chb. 657. • (1886) 33 Ch. Dlv. 562. » (1879) 4 Ex. Div. 97. ' Not reported, but referred to In 4 Ex. D. 97. ♦ 35 & 36 Vict. c. 77. "(1879) 4 App. Cas. 294. •(1879) 5 Ex. D. 95. ' (1868) 37 L. J. Ch. (N. S.), p. 127. MEAMNaS OF TERMS 39 U inntorial is obtained by excavation from tbe surface only. Directly you cease to excavate from tbe surface, and carry on a subterranean work, it is no longer a quarry." ■" " Tiierefore, I find tliat tlie autborities botb at law and in equity concur in tbis, tiiat if tbe operations carried on are in fact mining operations, and not surface operations, wbatever may bo tbe material gained, wbetlier it be slate, as in tbe present case ; limestone, as in Tbe King v. Tbe Inbabitants of Sedgcley; " or clay, as in tbe King v. lirettcll,''^ tbe criterion is, not tbe material ob- tained, but tlie mode in wbicb it is obtained." In Darvill v. Koper," Kindersley, V.-C, said : " Is a mine and a quarry tbe same tiling ? According to tbe ordinary sense of tbe term mine, docs it mean a quarry ? I apprebend clearly not. The meaning of tbe term does not depend on tbe nature of tbe fossil body obtained, it dejiends on tbe nature of tbe mode of working it. Fonie mines may be worked by moans of mining, otbers by means of (juarrying, and, upon tbe case bero sbown, tlio limestone was worked by quarrying. . . . Tbat wbicb is worked by mines is by a means of working in wbicb the surface is not disturliod, and wbon limestone is 80 worked tben it is a limestone mine. It is clear tbat in tbe popn- Iir, and I tbink in tbe just and accurate sense, of tbe distinction be- tween mines and quarries, tlie question is, wbetber you are working 60 as lo remove tbe surface, including perbaps portions of tbe lateral surface, so as not to leave a roof. ^Mining is wbon you begin only on tbe surface, and, by sinking sbafts, or driving lateral drifts, you are working so tbat you make a pit or a tunnel, leaving a roof over- head." In l^oll V. Wilson," Kindersley, V.-C, said: — " I cannot entertain tbe smallest doubt tbat a mine and a quarry are not tbe same. . . . A mine, properly speaking, is tbat mode ot working for minerals by diving under tbe cartli, and then working horizontally or laterally ; whereas a quarry is where the working is sub dio." In Glasgow v. Farie,'" Lord ^Macnagbten says at p. GST : " It was admitted that there is no reported case which throws any doubt on the accuracy " of the above language of Kindcrsley, V.-C.^ In Donison v. Holiday,- under a conveyance of " quarries," mines and seams of coal were held not to pass. "P. 128. '- (1831) 2 B. & Ad. 65. "(1832) 3 B. & Ad. 424. "(1855) 3 Drew. 298. • (1865) 2 Drew. & Sm. 399. " 13 App. Cas. 657. ' See also Attorney-General v. Mylchreest, (1879) 4 App. Cas., at p. 306. » (1858) 3 Exch. Rep. (N. S.) 670. 40 ONE " Metals." In Earl of Eosse v. Wainman,^ Parko, B., cites with approval the following extract from Dr. Johnson: " All metals are minerals, but all minerals are not metals." It has been held, as matter of construction, that duties imposed under the general head of " metals," upon " copper, brass, pewter, and tin, and all other metals not enumerated," wo.Jd not include the higher metals of gold or silver, which are commonly known as precious metals.^^ " Ore." In an Australian case Mr. Justice Faucett of the Su- preme Court of New South Wales, said : " If, indeed, I may be guided or governed by chemical, metallurgical, or in a wider sense, by seiendfic writers, I would say that an ' ore' must contain a metal chemically as contra-distinguished from mechanically, combined with some other substances, such as gas or another metal . . . But in my opinion the words in the statute ought to be understood — like the words in any other statute — in the ordinary pojiirlar way in which such words are commonly understood. Understood in this way, the word ' ore,' in my opinion, means ' a metal unrefined,' ' a metal in its mineral state,' that is, as taken out of the mine, or, in other words, * the native compound from which a metal is extracted.' " * " Surface " is said by Lord Bowen, L.J., in Pountney v. Clay- ton,"* to mean " not the mere plane surface, but all the land except the mines." " Soi] " includes the surface and all that is below it down to the centre of the earth." " Land " includes mines and quarries.^ A poor rate was imposed by 43 Eliz. c. 43, on the occupiers of " lancls, liouses, tithes, and coal mines," and it was held that the mention of one kind of mine indicated that the Legislature intended * (1845) 14 M. & W. 872. "Oasher v. Holmes, (1831) 2 B. & Ad. 592; per Parke, B. • Reg. v. Wilson, (1874) 12 N. S. W. S. C. R. (L.) 258. •(1883) 11 Q. B. D. 839. " Pretty v. Solly (1859) 26 Beav. ei2; Wakefield v. Buccleuch, (18CC) 4 Eq. 624; Rolls v. St. George (supra). 'Newcomien v. Coulson, (1877) 5 Ch. D. 142-3; Smith v. &. W. ff., (1877) 3 App. Cas. 165, 180; Re Metrop. & Co8h, (1880) 13 Ch. D. 612; ErrlngtoQ v. Metrop. H. Co., (1882) 19 Ch. D. 568-9; McDonell v. McKinley, (1847) 10 Ir. L. R. 514, 521, 524. ^JEANINOS OF TERMS 41 that tlie word "land," which, in law, comprehends all mines, should not include any.''^ "Tenement" or "hereditament" includes "mine."* See, as to the construction of mining terms, Clayton v. Grec'- son,» Houghton v. Gilbart,'" Hutchison v. Bowker.i The meaning of the phrase " mines of minerals " was much dis- cussed in Shaftesbury v. Wallace,' where it was held, following Hext V. Gill,'' that brick clay was included in a reservation con- tained in a lease of "all mines of lead ore, tin and other minerals." " Lead Smelting Co. v. Richard- son, (1762) 3 Burr. 1341; R. v. Sedg- ley, (1831) 2 B. & Ad. 65; R. v. Cun- ningham, (1804) 5 East, 478; Morgan V. Crawshay, (1871) L. R. 5 H. L. 304 ; Thursby v. Brieroliffc, (1894) 2 Q. B. 11 ; (1895) A. C. 32. 'Dunn V. B. C. Co., (1872) L. R. 8 (,). B. 47-8 ; Enington v Ry. Co., (1882) 19 Ch. Loosemore v. Tiverton, Co., (1882) 22 Ch. D. 43. ° (1836) 5 A. & E. 302. ■« (18:^6) 7 Car. &P. 701. • (1839) 5 M. & W. 535. 2 (1897) 1 Ir. R. 381. ^ Supra. Metr D. etc., •op. 568 ; Ry. CHAPTEE III. CONTRACTS. Parties are allowed the fullest latitiitle with regard to the sub- ject matter of their contracts. The law requires that there shall be nothing illegal in the consideration, or in the thing which is to be done or omitted. The contract may relate to a past, a present, or a future transaction,* and may have reference to any description of property, right or duty.^ Contracts relating to lands, tenements, hereditaments, or any interest in or concerning them, or some memorandum or note thereof, are required by the Statute of Frauds ^ to be " in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." ■* It is not necessary that there should be a formal contract pre- pared with technical precision. Any momoranduiu under the hand of the party, made l)efore action brought,'' which names, or so de- scribes as to identify, the contracting iJarties," and which contains either expressly, or by reference to other written papers, the terms of the agreement, is sufficient ; although it be merely a recognition or adoption of a prior written statement of such terms, not signed by tlie party.'' ' P. N. B. 145« ; Plowd. 380« ; Com. Dig. Covenant (A.I.). - Chitty, 13 Ed. 318. ' 29 Car. 2, c. 3, s. 4. * See Shiirdlow v. Cotterell, (1881) 20 Ch. D. 90, C. A.; Studds v. Watson, (1884) 28 Ch. D. 305. "Bill v. Bamcnt, (1841) 9 M. & W. 36. " Viindenbergh v. Spooncr, (186(5) L. R. 1 Ex. 316 ; Newell v. Rad- ford, (1867) L. R. 3 C. P. 52; Sale V. Lambert, (1874) L. R. 18 Eq. 1 ; Potter v. Dufflekl, (1874) L. R. 18 Eq. 4; Williams v. Jordan, (1877) 6 Ch. D. 517; Catling v. King, (1877) 5 Ch. D. G60, C. A. ; Thomas v. Brown, (1876) 1 Q. B. D. 714; War- ner v. Willington, (1856) 25 L. J. Ch. 662; Jarrott v. Huntor, (1886) 34 Ch. D. 1B2; Coombs v. Wilkes, (1891) 3 Ch. 77. 'Chitty, 13 Ed. 105; Do Bell V. Thompson, (1841) 3 Beav. 469. VONTHAVTti 48 A memorandum merely expressing a purpose or intention has been lield not sufficient; * but a declaration of intention in a deed may amount to a covenant." Acceptance. It is sufficient if there be an oral acceptance by the person to whom a written proposal, signed by the party to be charged, is made,>» and likewise if the terms of the contract can be collected from several distinct writings, which refer to each other in euch manner as to show that they relate to the same transaction,^ but the acceptance must be unconditional. In Mclntyre v. Ilood^ the offer of sale was to sell for $35,000; terms, one-third cash, " balance in one year at 8 per cent, per annum," and the alleged acceptance was, " I beg to accept your offer made this morning. I will accept the property . . . for $35,000, payable one-third cash on completion of title, and balance in one year at eight per cent.," and it was held not to bo a binding, unconditional acceptance, and therefore no completed contract was shown. Strong, J., says: 3 "If there had been a simple acceptance of the defendant's offer, the plaintiff would, of course, have had a right to insist on a good title being shown before completion; this would have been an implied term of the contract, as in every case of an agreement for the sale of real property; but what I hold is, that we cannot imply that such good title was to be shown prior to the pay- ment of one-third of the purchase money, which was to be paid in cash." Gwynne, J.: * " The objection is not that the introduction of the words ' on completion of title ' makes the acceptance defective, but the question is whether the defendant's offer was that he should re- ceive the cash payment on the completion of the title or uiion accent- ancc of the offer." ' ''Grub Stake" and Prospecting Contracts. An agree- ment, wliereby one xindertak.'s to furnish another with money and supplies to enable him to seek and discover mines, that other agree- ing in return to share his successes with the supplier is called " grub- staking," and the contract a "grub stake." Tucker, (1849) 3 ' Roberts v. Exch. 632. ° See Rigby v. G. W. R. Co., (1845) 14 M. & W. 811, "•Smith v. Neale, (1857) 2 C. B. N. S. 67; Watts v. Ainsworth! (1862) 1 H. & C. 83; Reuss v. Picks- ley, (1866) L. R. 1 Ex. 342, ' Per Archibald, J., Pierce v. Coy, (1874) L. R. 9 Q. B. 210, 218; Wylson v. Dunn, (1887) 34 Ch. D. 569. ' (1884) 9 S. C. R. 565. 'At p. 566. *P. 577. --'"■^^^'■"■rya I- J ; 44 OFTIONti If the work is not to be performed within one year the contract should be in writing, otherwise it appears not to be within the Sta- tute of Frauds. All discoveries enure to the benefit of the parties in the proportion fixed by the contract, and if no proportion is fixed the shares will be equal.* The prospector has the right to insist on the supplier performing his part of the agreement, as a condition precedent to participation in discoveries. Should the prospector, during the term of the contract, locate in his own or another's name, to the exclusion of the supplier, the title would be held in trust for the supplier to the extent of his in- terest, and no writing is necessary." The prospector is not permitted to take any unfair advantage of the supplier, and if he doc^ so, will be held to account. The dis- tinction between a grub-stake and a partnership appears to be that the former stops with the acquisition of the property, while the latter provides for development. I'nder the grub-stake it would seem that neither party has authority to deal with or bind the interest of the other. Options, Working Bonds, or Executory Contracts. An option or wo"king bond is a contract in writing signed by the owner of the property or his agent, duly authorized, agreeing to accept a certain price therefor as therein specified, usually contemplating entry into possession by the contractee for the purpose of examining and testing the property, with a view to lease or purchase, and dur- ing its pendency, usually irrevocable for a period therein stated, secur- ing an exclusive privilege of acquisition, according to the terms of the document. Such contracts must of course be in writing, and as a matter of discretion should be under seal. In the main they are construed by tlie rules of law applicable to executory contracts for the sale of ordinary real estate. Time is generally regarded as of the essence of such agreements, though not so stated, but difficulty will be obviated by a stipulation to that effect. To secure the right of doing actual mining work on the property there should be a carefully drawn clause inserted. In the absence ' See Webb v. Montgomery, (1897) 5 B. C. R. 323. • See Rochefoucauld v. Bou- stead, (1897) 75 L, T. N. S. 502; Rose v. Peterkin, (1884) 13 S. C. R. 677; Webb v. Montgomery, (1897) 5 B. C. R. 323. CONTRACTS 45 of agreement to the contrary, all minerals won during the option period would belong to the owner of the land. In Webb v. Montgomery,' an agreement for the sale of mineral claims provided for payment by instalments, and contained a proviso tliat " failure to make any of the above payments to render this agreement void as to all parties thereto, and the said vendees can quit at any time without being liable for any further payments there- under from such time on," At the request of the vendees the \endors, without consider^ition, extended tlie time for payment of one of the instalments. After the original, but before the extended period for nuiking the payment, the vendees notified the vendors that they had quit In an action to recover the amount of the instalment, it was held by the Full Court, overruling the Court below, tliat the liability of the defendants, the vendees, to j^ay tlie instalment in ques- tion was absolute upon the day named in tlio original agreement, and remained unaffected by the voluntary concession of further time to pay. Contracts with Companies. AVhere the power to contract exists, a person contracting with a company need not enquire whether the projjcr formalities of execution by the compnny have been com- jilied witli in a contract under its corporate seal.* In Bickford v. Grand Junction Eailway Co.,**^ Mr. Justice Strong, in delivering the judgment of the Court, said : "- " It can- not be successfully contended in the face of many decisions to the contrary, both in England and America, that a statutory corpora- tion is incapable of mortgaging its property, unless its incapacity to do so is either expressly declared, or is to be gathered by implica- tion from the terms of the Act of Incorporation. In other words, no enabling ])ower is requisite to confer the authority to mortgage, but prima facie every corporation must be taken to possess it. If its riglit-^ in this respect are limited, it must be by force of some dis- ability imposed by the instrument creating it, whether that instru- ment bo a Statute or a Eoyal Charter; and such a disability may be deduced eitlier from the object of the corporation being limited to certain specific objects, or from its property being subject to charges or trusts in favor of the public with which a mortgage would bo inconsistent." ' (1896) 5 B. C. R. 323. ' Sheppard v. Bonanza N. M. Co., (1894) 25 O. R. 305. '• (1877) 1 S. C. R. 696. »»At p. 729. 4G CONTKAVTS WITH COMl'A} 'ES But if a mortgage is given for any object foreign to or incon- sistent with the i)ur])oses of the incorporation, no doubt it would be ultra vires of the company/^ Wheie a cojujiany Juis power to acquire hind for the purposes of its incorporation, it has power to give a mortgage for and to bind itself by covenant to pay the purchase money." When the directors of a joint stock con.pany had power under tl.eir articles to fix the number of directors which should form a quorum, and by resolution fixed it at three, and subsequently at a n.eeting at which only two wore present, authorized the secretary to allix the company's seal to a mortgage, which was accordingly done by the secretary in the jjresence of the same two directors, it was held,"' as between the comi)auy and the mortgagees, who had no notice of the irregularity, that the execution of the deed was valid. "- In Farrell v. The Carribou Gold Mining Co.,"3 Mr. Justice Townshend, in delivering the judgment of the Supreme Court of Nova Scotia, decided that the defendant company, which was in- cor])orated for mining purposes, to acquire leases, and gold mining rights, to operate them, etc., was, in view of its character, and the objects of its constitution, a trading company, and said: "No exact definition is given as to what distinguishes that class of corporations from others, further than that it must be gathered from its nature." '•'* In this case, at a meeting of the defendant company, a report was received and adopted, authorizing the directors to execute a mortgage, to parties who had agreed to advance the sum of $30,000, to enable the company to ajquire certain mining property, which they ("esired to purchase, and to include in such mortgage, bonuses amounting in all to $10,000. The plaintitT, who was one of the «" lb. p. 733. » Sheppard v. The Bonanza N. M. Co., (1894) 25 O. R. 305; Blckford v. Grand Junction R. W. Co., (1877) 1 S. C. R. 696; Long v. Hancock, (1886) 12 S. C. R. 532, 645; Shears v. Jacob, (1866) L. R. 1 C. P. 517; The Queen v. Sir Charles Reed, (1880) 5 Q. B. D. 488, per Cotton. L.J. "' Following Royal British Bank V. Tiirquand, (1856) C. E. & B. 327, and Ma honey v. East Holford Mining Co., (1875) L. R. 7 H. L. 869; see also In re Hampshire Land Company, (1896) W. N. 78 (2). "' County of G. B. v. Rudry Mer- thyr S. & H. C. C. Co., (1895) 1 Ch. 629 (C.A.). "' (1897) 30 N. S. R. 199. "' See also General Auction E. & M. Co. v. Smith, (1891) 3 Ch. 432. *> CONTRACTS 47 shareholders, objected to the transaction, hut it was held that the company, as a trading corijoraticn, coukl borrow money and secure repayment by mortgage, and, provided the terms upon wliicli tlie money was borrowed and the mortgage given were not illegal, there could be no objection to paying a bonus for the accommodation ob- tained, and, considering the speculative character of the projierty, and the sum advanced, the amount of the bonus was not ex- orbitant."' Prima facie every corporation having power to hold land, has power to dispose of such land unless such power is expressly or im- pliedly taken away. The Australian Courts have held that there is nothing in .he New South Wales No Liability Companies Act ex- pressly taking away this power, and before the Court can hold that such power is impliedly taken away, it must see very clearly that such an implication necessarily arises from the wording of the Act or the iieeuliar position of the No Liability Company.^" Implied Contracts. Where words of recital or reference manifest a clear intention that the parties should do certain acts an agreement to do those acts will be inferred.^ But recitals cannot control clear and unambiguous words in the operative part of a contract.^ Where it is necessary in order to give a transaction such efficacy as both parties must have intended it to have, that there should be a continuance of a certain existing state of circumstances, there is implied an obligation not to do anything which would prevent that from being done, and the question whether in any such case an im- plication ought or ought not to be made must depend on the par- ticular facts of the case.^ An implied warranty, or, as it is called, a covenant in law, as distmguislied from an express contract or express warranty really IS m all cases founded on the presumed intention of the parties and npon reason. The implication which the law draws from what must obviously have been the intention of the parties, is drawn with the °'See also Potter v. Edwards, (1857) 26 L. J. (Ch.) N. S. 468. *" Hearn v. Central Broken Hill S. M. Co'y, (1895) 16 N. S. W. L. R. (E.), 87. •Knight V. Gravesend W. Co., (1857) 2 H. & C. 6. 'Walsh V. Trevanion. (1850) 15 Q. B. 733, 751. 'Hamlyn v. Wood, (1891) 2 Q. B. 488; Stirling v. Maitland, (1864) 5 B. & S. 840; Re Railway and Electric Appliances Co., (1888) 38 Ch. D. 597; Rhodes v. Forwocd, (1876) 1 App. Cas. 256; Telegraph Despatch Co. v. McLean, (1873) L. R. 8 Ch. 658. ( 46 VUMSEST object of giving efficacy to the transaction, and preventing such a failure of consideration as cannot have been within the contemplation of either side, and this appears to be the result of the cases.* Construction of Contracts. It is a general rule of construc- tion in all instruments that where a specific term is used in the first instance it shall receive no extension by a subsequent general term." Contracts ought to be construed according to the primary and natural meaning of the language in which the contracting parties have chosen to express the terms of their mutual agreement. But there are exceptions to the rule. Lord Watson says, " One of these is to be found in the case where the context affords an inter- pretation different from the ordinary meaning of tlie words; and another in tlie case where their conventional meaning is not the same with their legal sense. In the latter case, the meaning to be attri- buted to the words of the contract must depend upon the considera- tion whether, in making it, the parties had or had not the law in their contemplation." The word " from," .though prima facie exclusive, may be taken to mean either inclusive or exclusive, according to the context and subject-matter depending on the circumstances of the particular contract.'' " On " or " upon " in a contract may mean " simultaneously with," or " before " or " after " the act or event, as appears to be reasonable.* " To " might be held to mean " towards." " " Directly " means " speedily," or " as soon as possible." ^^ " Immediately " or " upon demand," imports a reasonable time to act.^ Consent. A person who makes an offer is considered as con- tinuou!?ly making it until he has brought to the knowledge of the person to whom it was made that it is withdrawn or modified. 2 *The Moorcock, (1889) 14 P. D. 64. per Bowen, L.J., p. 68. » Jones V. Thomas, (1823) 1 B. & C. 719. "McCowan v. Balne, (1891) A. C. 408. ' S. S. T. Co. V. S. A. A. A., (1891) 1 Q. B. 402. 'Paynter v. James, (1867) L. R. 2 C. P. 348. 354. » Colledge v. Harty, (1851) 6 Ex. 205. '"Duncan v. Topham, (1849) 8 C. B. 225. •Massey v. Sladen, (1868) L. R. 4 Ex. 13. 'Adams v. Lindsell, (1817) 1 B. & Al. 681; Dunlop v. Hlggins, (1848) 1 H. L. C. 381, 399; Hains' Case, (1872) L. R. 7 Ch. 587; Byrne v. Van Tlenhoven, (1880) 5 C. P. D. 344; Henthorn v. Fraaer, (1892) 2 Ch. 31. COXTRACTS 49 When negotiations by letter are said to constitute a contract, all correspoiidonce and negotiations should be looked at and cousidereti; and if it ap))ears therefrom that there were teruis conteuiitlated by both parties as essential to a contract and no agreement in respect tliereof there is no contract.-'' Where an olfer lias been made tlirougli the medium of the post, tlie contract is complete as soon as tlie acceptance is posted, as tiie post otlicc is the connnon anient of both parties.* The general principle established in Dunlop v. Iliggins (siiprn), is said to be limited in its application to cases in which, by general usage, or byreason of the relations between the parties to anyparticular trans- actions, or of the terras in which the offer is made, the acceptance of such offer by a letter through the post is expressly or impliedly au- tliorized; ° but in Ilenthorn v. Eraser," Lord Ilerschell states tlie rule tlius : " Where the circumstances are such that it must have been within the contemplation of the parties that according to the ordi- nary usages of mankind, the post might be used as a means of com- municating the acceptance of an offer, the acceptance is complete as soon as it is posted." Kay, L. J., in the same case, says,^ " I would rather express it thus: ' Posting an acceptance of an offer may be sufficient where it can fairly be inferred from the circumstances of the case that the acceptance might be sent by post.' " The grounds upon which it has been held that the acceptance of an offer is complete when it is posted, have no application to the revocation or modification of an offer.* British and American Telegraph Co. v. Colson,® which decided that if tlie letter of acceptance, though posted, Avas never received, the posting might be treated as a nullity, has been overruled by the Household F. I. Co. v. Grant,^" which decided that the acceptance is complete upon the posting of the letter containing the acceptance, though the letter is not received by the person to whom it is ad- dressed. » Hoisaey v. Home-Payne, (1879) 4 App. Ca.s. 311. * Dunlop V. Higgins (supra) ; Hebb's case, (1867) L. R. 4 Eq. 12, per Lord Roniilly; Harris' case, (1872) L. ".. 7 Ch. 592; Hal well v. The Township of Wilmot, (1897) 24 A. R. 628, which decides that under "The Post Office Act" (Canada), R. S. C. c. 35, s. 43, a letter when 4-M posted becomes the property of the person to whom it is addressed. 'Household F. & C. A. I. Co. v. Grant, (1879) 4 Ex. D. 216. " (Supra), Lord Herschell, at p. 33. ' At p. 36. * Henthorn v. Eraser (supra). ' (1871) L. R. 6 Ex. 108 (some- times referred to as Colson's Case). "•(1879) 4 Ex. D. 216. 50 ACCKPTANCE BY LKTTlUt A contract hns been held to bo coinplcto on the poatinIn re The I. L. Co. of M.— Walls' Cas.--(1872) L. R. 15 Eq. 18; Townshend's Case, (1871) 13 Eq. 148. ' Ramsgate, etc., v. Monteflore, (1866) L. R. 1 Ex. 109; In re Bowron, etc., Daily's Case, (1868) L. R. 5 Eq. 428. 'Taylor v. Brown, (1813) 1 M. & S. 290. ^Rossiter v. Miller, (1878) 3 App. Cas. 1151. "Lloyd v. Nowell, (1895) 2 Ch. 744, distinguishing Hawksley v. Outram, (1892) 3 Ch. 359; Winn v. Bull, (1877) 7 Ch. D. 29; but see Bonnewell v. Jenkins, (1878) 8 Ch. D. 70; Hawkesworth v. Chaffey, (1886) 55 L. J. Ch. 335; Page v. Nor- folk, (1891) 70 L. T. 781. "The Koksilah Quarry Com- pnnd, Limited liability, v. The Queen, (1897) 5 B. C. R. 525. CONTRACTS 81 of such claim l)oing includod in a mining lease; and the consent of the benofieiarics is not necessary."'^ Conditions. In Nova Scotia, where an agreement for the stilo of lands stipulated tliat wlien the land was surveyed the plain- tilf should give the defendant a bond for a deed, or a deed on being secured the ])iirchase money, it was held that tlie survey wtis not a condition precedent whicli woidd prevent tlie plaintilf from recovering the purchase money." In ({range v. McLennan,^ a promise of sale was, made in 187-i, wliereby D. M., then a minor, was to become the purchaser, with part of the purchase money ])ayal)le in cash and the l)alance by instal- ments, and to have immediate possession and ratify the deed on be- coming of age, and to be entitled to a bill of sale, if instalments were paid as they became due; " biit if, on the contrary, J). ^I. fails, neglects or refuses to nuike such payments when they Ijecome due, then said 1). M. will ''orfeit all right he has by these presents to ob- tain a deed of sale of said herein mentioned farm; and he will, more- over, forfeit all moneys already paid, and which hereafter may be paid, which said moneys will be considered as rent of said farm, and these presents will then be considered as null and void, and the par- ties will be considered as lessor and lessee." D. M. did not pay the instalments or ratify the deed, and in 1879 the vendor re-took possession. In 1880 D. M. tendered the bal- ance of the price and claimed the farm, and it was held, reversing the judgment of the Court of (Queen's l?ench for Lower Canada (appeal side), that the condition precedent on which the promise of sale was made not having been complied with within the time speci- fied in the contract, the contract and law placed the plaintiff in de- meure, and there was no necessity for any demand, the necessity for a demand being inconsistent with the terms of the contract, which, immediately on the failure of tlie performance of the condition ipso facto changed the relation of the parties from vendor and vendee to lessor and lessee. Where purchasers agreed to pay a specified sum as purchase money, "' and if we get along fairly well we will give you the other $500 as soon as we are able; " the latter was held a conditional pro- mise which might bo recovered on proof that the purchasers were of ability to pay.* "Bnnd of Hope & Albion Con- sols V. Young Band Extended Q. M. Co'y, (1883) 9 V. L. R. (E.) 37. •Morse v. Hueston, (1859) Cochran. 61. ' (1883) 9 a. C. R. 385. 'Sylvester v. Murray, (1895) 26 0. R. 599. C2 STATUTE OF FRAUDS In JJaker v. ^laclA'Uund/ whore 'M. by dood sold to W. tho pho8i)liato iiuning rights oi" cortuin hind, tho dood oontHiiiing a pro- vision tliat, " in oase the said purohasor in working tho said ininea shoukl find any other niinoruls of any kind, he shall have the privi- lege of l)iiying llie siinio from tho said vendor or representatives by paying the prieo sot upon the same by two arbitrators ap[)()inted by the parties.'' W. worked tlie phosphate mines for live years, and then diseontinuod it. Two years later ho sold his mining riglita in the land and by various convoyanoes they were liiuilly transferred to B., etc. It was held, nflirniing the decision of the Court of Qneon'a Bench, that the option to i)urehase other minerals could only bo ex- ercised in respect to such as were found when actually working the jdiosphato, which was not the case with the mica as to which B, claimed the oi)tion. The Statute of Frauds,'" which, as amended, is in force iu the whole of Canada except (^uoIjoc, enacts that: — Section 1. " All leases, estates of freehold, or terms of years, or any uncertain ' interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by living and seisin only, or by parol and not put in writing, and signed Ity tho parties so making or creating the same, or their agents thereunto law- fully authorized by writing, shall have the force and ell'oct of leases or estates at will only, and shall not, either in law or e(iuity, be deemed or taken to have any other or greater force or olfoct; any considera- tion for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding.'' - Section 2. " Except, nevertheless, all leases not exceeding tho term of three years from tho making thereof, whereupon the rent reserved to tho landlord during such term shall amount unto two- thirds, at the least, of the full improved value of tho thing demised." » (1895) 24 S. C. R. 416. .'0 29 Car. 2, c. 3. The Nova Scotia statute for the " Prevention of Frauds and Perjuries," R. S. of N. S. (5th series) c. 91, expressly ex- tends to all leases, estates or other interests in lands or in mining areas or other mining rights. Sim V. Sim, (1890) 22 N. S. R. 185. ' That is to say, uncertain as to duration in point of time: Wood V. Lake, (1845) 13 M. & W. 838. ' See Doe Robins v. Warwick and Birmingham Canal Co., (1836) 2 Scott, 717; Earl of Harborough V. Shardlow, (1840) 7 M. & W. 87. CONTRACTS 6B Section 3. " Thnt no leases, cstntos, or interests, either of froo- liold or terni8 of years, or any nneertain interest, not being copyhold or ciiHtoinary interest, of, in, to, or out of any niessiinges, manors, lands, tenements, or hereditaments, shall he assigned, granted, or surrendered, nidess it he hy deed, or note in writing, signed by the party so assigning, granting, or surrendering the same, or tlieir agents tliereunto lawfully authorized by writing or by act and operation of law." Section 4. "No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer dam- ages out of his own estate, or whereby to charge the defendant ui)on any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements or hereditaments, or any interest 'in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making tlioreof; unless the agreement U])on which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto ])y him lawfully au- thorized." ••» Sections 5 and fi relate to the making and revoking of wills, and were repealed by 1 Vict. c. 20, ss. 3, 34. Section 7. " All declarations or creation.-* of trusts or confi- dences of any lands, tenements, or hereditaments, shall be manifested a)id proved by some writing, signed by the ]iarty who is by law en- abled to declare such trust, or by his last will in writing, or else they shall ])e utterly void and of rone effect." * Section 8. " Where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or 'This section extends to nn bb- slgnnient, as well as to interests dented dc noro out of an estate, 1 Vent. 361. Where A., having verbally agreed with B.. ;or the purchase of houses, agreed by writing with C. to sell him the benefit of the bargain for £40, and C. obtained a conveyance, It was held that A. could recover the £40, the transfer of the bargain, though it was one that was not enforceable, being a sufficient consideration: Seaman v. Price, (1825) 10 Moore, 34; see also Cocking V. Ward, (1,?45) 1 C. B. 858; Kelly v. Webstc% (1852) 12 C. B. 283; Sanderson v. Graves, (1875) L. R. 10 Ex. 234. ' See Rochefoucauld v. Bou- stiend. (1897) 1 Ch. D. 1S96, dis- approving Bartlett v. Piekersgill, (1759) 1 Eden, 515; Barton v. Mc- Millan. (1891) 20 S. C. R. 404; Bowker v. Laumelster, (1891) 20 S. C. R. 175. 54 STATUTE OF FRAUDS result by the implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case such trust or confidence shall be of the like force and effec*^. as the same would have been if this statute had not been made." tSection 9. " All grants and assignments of any trust or confi- dence sliall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall like- wise be utterly void and of none effect." Sections 10 and 11 relate to the payment of debts out of trust estates. Section 12 relates to estates pitr autre vie, and has been repealed by 1 Vict. c. 26. Sections l.>, 1-1, 15 and IG relate to Judgments, etc. Section 17. "No contract for the sale of any goods, wares and merchandises, for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest ' to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Section 18 relates to recognizances. Sections IJ), 20 and 21 relate to nuncupative wills, and were repealed by 1 Vict. c. 2G. Section 22 relates to revocation of wills, and has been repealed by 1 Vict. c. 26. ; Section 23 relates to soldiers' and mariners' wills. Section 24 relates to jurisdiction of the Ecclesiastical Courts. Section 25 ]irovidos that husbands shall not be obliged to dis- tribute the estate of their wives. "Land," prima facie, includes everything under it or over it; everything between the vertical lines prod\iced indefinitely both up- ■'• See Blenkensop v. Clayton, (1817) Taunt. 597. In Ontario section 17 has been extended by R. S. O. (1897) c. 146, s. 9, " to all contracts for Ihe sale of goods of the value of $40 ,and upwards, notwithstanding that the gootla may be intended to be delivered at some future time, or may not at the time of the contract be actually made, procured or pro- vided, or fit or ready f ■ deli- very, or although some act may be requisite for the making or com- pleting thereof, or rendering the same fit for delivery." CONTRACTS 56 wards and downwards passing through the horizontal boundary to the globe's centre.^ Cujus est solum ejns est usque ad coeluni. (He who possesses land possesses also that which is above it). This is said by Grove, J.,- to be a maxim of general application, but in Potts V. IJovine/'' Armour, C.J., held that the presunii)tion does not api)iy in all cases and under all circumstances, but may be re- butted.-' See, also, Lord Waterpark v. Fennell,'' where Lord Wensleydale Bays in reference to the presumption that a demise of land described by su])ei ficial metes and boimds carries with it tlie land to the centre of tlie earth (p. (iSI); •' this presumption has beeii rebutted by consider- ing the state of circumstances at the time of the grant, aiul finding that the lessor has i)revi()usly demised a cellar to a third person, who was in occupation under that lease at the date of the lease of the surface." There is, in our opinion, no doubt that in the grant . . . of a seam of coal in the earth, the presumption that the grant extended indefinitely ui)wards and downwards would be repelled by the nature (»f the subject matter of the grant, and without any express words in the conveyance." ^ The surface may he owned by one person, and the subjacent mines and minerals l)y anotlior. The severance of the title may be ed'ectod by statute or l)y instruments inter partes. For instance, K. 8. (). ISUT, c. 2d. s. 13, provides that gold, sil- ver, copi)er, lead, iron or other mines or minerals in lands located or sold within the limits of tlie free grant territory, shall be considered • Co. L. 4 a. ' In Reg. v. Keyn, (1876) 2 Ex. D. 116. Ml 888) 16 0. R. 152, affirmed, (1889) 16 0. R. 191. * See also Doe d. Freeland v. Burt, (1787) 1 T. R. 701; Fiiy v. Prentice, (1845) 1 C. B. 828, per Maulo, J.; Duke of Dt^vonshire v. Pattiiison, (1887) 20 Q. B. D. 263, per Pry, J. ° (1859) 7 H. L. Cas. 650. " Doi d. Freeland v. Burt, (1787) T. R. 701. ' For special cases on the mean- ing of " land " see Osborne v. City of Kingston. (1893) 23 0. R. 382. where it was held that within the meaning of the word as de- fined by R. S. O. 1887, c. 202, municipal corporations were not " owners " or " occupants " of the street or highway; Re Bush and the Comrs. of the Niagara Falls Park, (1887) 14 A. R. 73, a deci- sion under 48 Vict. (O.) c. 21; " lands, mines, minerals and royal- ties," Atty.-Gen. of Ont. v. Mer- cer, (1883) 8 App. Can. 767; (1881) 5 S. C. R. 538; Thursley v. Brier- cliffe, etc., (1895) A. C. 32; West Australian Land Co. v. Forrest, (1894) A. C. 176, P. C. 66 STATUTE OF FRAUDS as reserved from the location and shall be the property of Her Ma-- jesty. From the above it follows that mines and minerals, when not severed from tlie land, constitute an interest in land within the mean- ing of tlie 4th section of the Statiite of Frauds. - The minerals, when physically severed from the land, are goods and chattels witliin the meaning of the 17th section. " Tenements" signifies everything that may be holden, pro- vided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, liberuin teiic- inentum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, ad- vowsons, franchises, peerages, etc.* Lord Coke says," in describing a tenement, that the word " includes not only all corporate inheritances, which are or may l)o holden, but also all inherifancos issuing out of any of those inheritances, or concerning or annexed to, or exerciseable within the same, though they lie not in tenure." " "Hereditaments" are every kind of property tliat can be inherited; i.e., not only property which a person has by descent from his ancestors, ])ut also that which he has by purchase, because his heir can inlierit it from him. Tlie two kinds of hereditaments are corporeal, which are tangible, and incorporeal which are not tangible, and are the rights and profits annexed to, or issuing out of land. Although the word " hereditament " applies both to realty and per- sonalty, yet it is in a different mode of relation. Wlien applied to realty, it generally denotes the subject of property, apart from its nature and extent; but when ai)plied to personalty, it does not then denote the subject, but signifies some inlierital)le right of which the subject is susceptible. A third ap])lication of this word is used to denote inheritable rights relating to land, or something issuing there- from or exercisealile therein, or having some local connection or rela- tion distinct from the enjoyment of the land itself. In this view of the descripfion, hereditainoiifs divide themselves into real, ]iersonal, and mixed, and, therefore, as was said before, they are applicalile to all the kinds of property.^ 1 ' 2 Bl. Com. 16. » Co. Lltt. 20 a. '" For distinction between land and tenements, see Electric Tele- graph Co. V. Salford, (1855) 11 Exch. 189, per Martin, B. ' Fcame's Reading on the Stat, of Inrolmints. See Metropolitan Railway Co. v. Fowler, (1893) App. Cas. 416; where it was held that a railway tunnel was a " heredita- ment " within the meaning of 38 Geo. III. c. 5, 8. 4. CONTRACTS 67 fl Contract of Purchase. "The right to call for a convey- ance of the land is an equitahlc interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option (in this case unlimited in point of time) for re-purchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to 'pay the purchase money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in anotlier, the covenant giving the option must give that other an interest in the land.2 Osier, J.A., says, in Re Flatt & Prescott & Russell,^ after review- ing the authorities, "... the interest of the purchaser until he is entitled to call for the conveyance, is properly an equity or equitable right rather than an equitable estate." Sufficiency of Signature. if the contract be signed l)y the l)arty to ' barged, or by his agent authorized to sign the memoran- dum as a rooord of the transaction,* that is sufficient without its being signed by the other party."* Oral authorization of the agent is sufficient under sections 4 and 17," but not under sections 1 and 3. Signatures have been held to be sutTicient as follows: (1) by pencil;' (3) instructions for a telegraphic message; » (3) by mark;" (4) by initials.'" The ngent cannot be one of the contracting parties, but must be a third jierson.^ A broker 2 or an auctioneer ^ may be agent for both parties.* The statute has been said not to apply to deeds, Ter Jessel, M.R., in London & S. W. R. Co. V. Gorman, (1882) 20 Ch. D. 581, overruling Birmingiiaiii Canal Co. v. Cartwright, (1879) 11 Ch. D. 421. For definition of " a perpetuity " see ib., p. 581. M1890) 18 A. R. 1, at p. 17. ^See Smith v. Webster, (1876) 3 Ch. D. 49, C. A. ''Laythoarp v. Bryant, (1836) 3 Scott, 238. "Graham v. Musson, (183!.) 7 Scott, 769. 'Geary v. Physic, (1826) 5. '3. & C. 234. "* Godwin v. Francis, (1870) L. R. 5 C. P. 295. "See Baker v. Dening, {183rJ) 8 A. & E. 94; Dyas \. Stafford, (13S1) 7 L. R. Ir. 590. '"See Phillimore v. Barry, (1818) 1 Campb. 513; Chichester v. Cobb, (1866) 14 L. T. 43.'?; Kennedy v. Oldham, (1888) 15 O. R. 433, Q. B. D. ' Farcbrother v. Simmonds, (1822) 5 B. & Aid. 333; Sharman v. Brandt, (1871) L. R. 6 Q. B. 720, Ex. Ch. ^Parton v. Crafts, (1864) 1" '" B. N. S. 11. "Bartlett v. Purnell, (1836) ^ .. 6 E. 792. * Murphy v. Boese, (1875) L. R. 10 Ex. 126. ^a 68 STATUTE OF FRAUDS but only to jjarol agreeiuents," but a slieriff is not, under R. S. 0. c. 124, agent for the purchaser to sign for him." Where the olfer con- tains tlie names of both contracting parties (though one is only agent of an xmdisclosed vendor), there is a contract sufficient within the slatuto.^ As to contract not signed by the vendor, ])ut subsequently ad- mitted by his letters, see O'Donohoe v. Stammers." " Vendee " is not a sufficient description of the party selling; to satisfy the requirements of the statute," neither is " landlord." "* " Proprietor " ' has been held sufficient.^ Where the vendor was described as " a trustee selling under a trust for sale," the contract was held sufficient.- " The company " Avas held sufficient when it aijpeared that one particular company was in actual occupation; ^ also " executor'' of a jierson named iii tlie contract.* Part Performance. Aithougli the statute of Frauds requires the transfer of an interest in lands to be made in writing, the \)aro] agreement for the sale or transfer having beun partly performed, is enforceable in equity." The above is an illustration of the general principle that part ])erformance of a contract takes a case out of the Statute of Frauds. The part perfornuince must, however, be exclusively and unequivo- cally referable to the contract in question. In Caddick v. Skidmore," Lord Chancellor Cranworth held that an agreement between the lessee of a mine and another to be- come partners in the mine, paying the reserved rent, subletting the mine at a royalty and dividing the i)rofits, was within the Statute of Frauds, and not sufficiently proved by a receipt signed by the lessee and given to the other for a sum as that other's share of the head rent of the mine, the sum being exactly half of that rent. It is to be observed that the defendant was, before the alleged contract in question, the lessee of the mine. If the lease had been ''Ch.erry v. Hemlug, (1849) 4 Exch. 636, per Alderson, B. "Mclntyre v. Faubert, (1895) 26 O. R. 427. 'Filby V. Hovmsell, (1896) 2 Ch. 737. M1884) 11 S. C. R. 358. "Wllmot V. Stalker, (1882) 2 O. R. 78. "> Coombs V. Wilkes, (1891) 3 Ch. 77. >Sale v. Lambert, (1874) L. R. 18 Eq. 1; Rossiter v. Miller, (1874) 3 App. Cas. 1124. "- Catling v. King, (1877) 5 Ch. D. 660. 'Commlns v. Scott, (1875) L. R. 20 Eq. 11. 'Hood v. Lord Barington, (1868) L. R. 6 Eq. 218. 'Mahon v. McCully, 1 N. S. D. 323. » (1857) 2 De G. & J. 52. ^•1 coy TRACTS 69 obtained for tlic benefit of tbc partnersbip, the existence of such partnership niiglit have been proved by parol. Partnership. In Dale v. Hamilton/ it was held that a part- nership for tlie i)urpose of buying, improving and selling land might be proved M-ithout a writing under the Statute of Frauds. At page 383, the Vice-Chancellor says, "the plaintiff contends that where a partnership exists between two persons, and land is acquired by the partnership as a substratum for such partnership, tlie land is in the nature of the stock in trade of the partnership; and that the partnership being proved as an independent fact, the Court, without regarding the Statute of Frauds, Avill inquire of what the partnership stock con- sisted, whether it be of land or of property of any other nature. That land acquired as tlie substratum of a partnership is, in this Coxirt, considered in the light which the plaintiff contends for, may bo admitted upon very high authority (Crawshay v. ^Maule,^ Fereday v. Wightwick "), and that where a partnership exists, and land is brought into, and actually held and used by the partnership for i)art- nership purposes, the Court has dealt with it as partnership property, altliough the ownership, apparently, has not been in all the members of the firm, or, if in all, not apparently as partners, but under anotlier title; and that the Court has so done, without calling in aid the doc- trine of part performance, must, I think, be also admitted." It follows that a partnership for the purpose of speculating in mining projierties, or in mining claims, may be proved by ])arol evidence,"^ although a contract which affects the ownership of land is required to be in writing."2 In "Watson v. Spratley ^" it was held that a share in a joint- stock mining company, whether incorporated or unincorporated, is not goods, wares or mcrcliandise within tlie 17th section of the Sta- tute of Frauds,^"! nor an interest in land within the meaning of the 4th section. See also Hilton v. Gerand, 1 DeG. & S. 187. In Choadlo v. Proctor,^ P. and others were partners in working a colliery, of Mhicli they M-ere lessees, under an agreement for a '(1846) 5 Han. 369. M1818) 1 Sw.anst. 518. ° (1829) 1 Russ. & Myl. 45. "' Essex V. Essex, (1855) 20 Beav. i-t2. "-'Caddick v. Skldmore, (1857) 2 De G. & J. 52. " (1854) 10 Exch. Rep. 222. ""See Bligh v. Brent, (1837) 2 Y. & C. 294; and Duncroft v. Al- brecht, (1841) 12 Sim. 189. ' (1868) 19 L. T. N. S. 289, 60 STATUTE OF FRAUDS— PARTNERSnil' lease from the freeholder, and of wliich P. was manager. An agree- ment was made by all the partners that P. should retire from all con- nection with the partnership and be i)aid £G0 " for any interest he might have, and for his services rendered in working the colliery. Held, that P.'s interest in the colliery was not an interest in or con- cerning land within the meaning of the 4th section of the Statute of Frauds. Kelly, C.li., saying - that P. " had no interest, legal or equit- able, in the land of the colliery." In Burn v. Strong,^ the facts were, that a partnership Avas formed between three persons, A., B, and C, to dig for gold on the property of one Allen. Two of them, A. and B., were to do the work, and the third, C, was to pay the expenses; all three were to share in the profits. Tlie place named was afterwards abandoned by mutual con- sent, and the two working partners, A. and B., removed, at the instance of the third, C, to a lot in another township, Elzevir, where they resnnied Avork, ('. paying the expenses as before. Held, in the absence of any express agreement, it was to be presumed that they were working on the same terms as at the place originally named. The plaintiff had occasion to leave the work on the 2nd ^March, and did not return. lie filed a bill to enforce his partnership rights on the 30th July. Held, that as there was no stipulation respecting the time he was to work, and he was not requested to resume work, and no notice was given him of any complaint or intention to exclude him from the profits of the adventure, the delay did not bar the suit. C, in his own name, bought the privilege of digging for gold on the Elzevir lot, and subsequently formed a company by which tliat lot was purchased. It was held, that the plaintiff, one of the working partners, was entitled to a share of all the profits aiul advantages made by C in this transaction. There was no writing signed by C. acknowledging the agency and trust, but it was held that A. and B., having entered and worked on the lot, the Statute of Frauds did not apply, and in giving judgment, ^lowat, Y.C., said: "In addition to the grounds of defence to which I have already adverted, the defendants set up the Statute of Frauds. In Foster v. Hale,* and Dale v. Hamilton, before Vice-Chancellor Sir James Wigram," it was held that an agreo- ' At p. 291. M1868) 14 Gr. f.51. « (1800) 5 Ves. 309. °5 H. 369; see also Essex v. Essex, (1855) 20 Beav. 449, and head note Cowell v. Watts, H. & Tw. 224. CONTRACTS 61 lot was . in rinrr jrecl 1(1 in s of the tfore rrco- land nient for a partnership in land was not within the statute." Tiie authority of Dale v. Hamilton, before the Vice-Chancellor, is some- what shaken by what occurred on the appeal ^ to the Lord Chancellor, and by the subsequent case of Caddick v. Skidmore; "* but here the agreement was acted upon by the plaintiirs entering and working on the land, acts which take the case of even an ordinary purchaser out of the Statute on the ground of part pcrfornumce. So new leases obtained by a partner of premises tlieretoforo occupied by the i)art- nership have been held to inure for the benefit of the partnership without any writing acknowledging a trust, though the partners obtaining the renewal had previously given to the other partners notice of dissolution, and of their intention to renew the old lease for their own benefit.'* *** " It was further argued that the agreement was not sufll- ciently detailed or definite to found a suit \ii)on. The agreement is certainly not so indefinite as to be entirely void, but no doubt a contract, though valid at law, may be in some respects so vague that the Court may have no reasonable assurance that the decree asked for would be in accordance with the true intent and meaning of the parties; and it may therefore be necessary to refuse a specific performance," etc. ^^ " Viewing the three as partners, it follows inevitably Unit this benefit cannot be appropriated by Strong for hi jiiself. 1 presume that the transaction was known to the other defendants at the time and acquiesced in. At all events, they make no claim to share this sum." In Stuart v. Mott,^ the facts were that S. brought a suit for performance of an alleged verbal agreement by j\I. to give him one- eighth of an interest in his, j\I.'s, interest in a gold mine, but failed to recover, as the Court held the alleged agreement to be within the Statute of Frauds. On the hearing, M. denied the agreement as alleged, but admitted that he had agreed to give S. one-oiglith of his interest in the proceeds of the mine when sold, and it having been afterwards sold, S. bronght another action for payment of such share of the proceeds. ' Statute of Frauds. '(1847) 2 Ph. 266. "(1857) 2 DeG. & J. 52; see also Smith v. Matthews, U861) 3 DeG. F. & J. 151. " See cases cited in note at p. 657; see also Hamilton v. Hamil- ton, (1873) Russell's Equity Deci- sions of Nova Scotia, 78. '" Page 658. " Page 659. ' (1893) 23 S. C. R. 384. ^^sssBm G2 iiTATVTE OF FRAUDS— PARTS ERS 11 IP i i It was decided, reversing the decision of tlie Supreme Court of Nova Scotia, Fournier and Tascliereau dissenting, tinit S. was not estopped by the first judgment against him from bringing another action, and also that the contract for a sliare of the proceeds was not one for the sale of an interest in hind within the Statute of Frauds. Strong, C.J.,- says: Tlien it was said that the Statute of Frauds was a defence. The answer to this is that ilie agreement, which ia now sought to be enforced, was not, as in the former case,^ one con- cerning an interest in hmd, but exchisivoly rehiting to an in- terest in money; it is true this money is to arise from the sale of land or of a mining interest, but that on authority can, I conceive, make no ditl'erence after the land or money interest has been actually sold. It is not sought to enforce any trust or contract to sell land. That would have been a dilFerent case. Here the sale has taken place, and the only question is as to the share of the price received. In an Australian case, P. was a sleeping partner with M. in a block claim, and ^I. worked it for himself and V. on certain terms as to the division of the proiits. M., while working the claim, dis- covered another reef, and took out a claim on it for himself under a regulation which provided " That any party working in a claim shall be entitled to an area of ground, provided such paying reef be not within 40 feet of the edge of the gutter." Held, that V. had no interest in the new claim, as it was intended to l)e the reward of labour; and that the new claim had nothing to do with the partner- shij) subsisting in the other claim.-"'^ It has been held that under " The Xew Zealand Partnership Act,'"' 18!»1, section 3G of which provides, that every partnership is dis- solved by the death or bankruptcy of any partner, does not apply to mining ])artnerships. In the same case, the difference between ordi- nary and mining partnership is discussed.^^ An agreement to the effect that the object of a venture should be to extract gold from auriferous earth within the limits of the claim, and after payment of expenses to divide the profit (if any) among the holders, was held by the Supreme Court of New Zealand not to constitute them partners with res])ect to the gold only, and joint tenants witli respect to the mine itself.''* " At p. 388. » (1887) 14 S. C. R. 734. "Perry v. Morton, (1868) A. R. 2Gth November. '= Stuart V. Nelson, (1895) 15 N. Z. L. R. 637. ^- Gallagher v. Talty, (1888) 7 N. Z. L. R. 35. CONTRACTS 68 Trust. In Wells V. Petty,* the jjlaintifl' having discovered " min- eral lloat," ac(iiiaintod the defendant of the fact, and disclosed the locality on a verbal promise I)y defendant that i)laintiil' should he " in on it" if defendant shoiild thcrel)y succeed in discovering the ledge and locating a mineral claim. Witliin three days afterwards defendant found a ledge in the vicinity indicated by ])laintiir, and located and recorded the ledge in his own name, hut refused to give tlie [)laiutil"f any interest and set np the Statute of Fraiuls. Tlie Full Court de- cided that the words " to be in on it " nu^an an interest of some measure, and that the maxim " eipiality is ecpiity '' supjilios tlio measure when tiiere is no cvickmce showing that less than an equal share was stipulated for or intended.^ As to the plea of the Statute of Frauds, Davie, C.J.,^ says, " If that Statute is to be held applicable to transactions governed by the Mineral Act, I should agree with tlie learned trial Judge that the plaintiil's action fails were it not for the case of Kocliefoucauld v. Boustead," " overruling Bartlett v. Pickersgill,^'* and proceeding " upon the principle laid down in McCormick v. Cfrogan,^ liose v. Peterkin," and other cases, that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it to have been so conveyed, to deny the trust and claim the land, and that, consequently, notwithstanding the Statute of Frauds, it is competent for a iierson claiming land conveyed to another, to prove by parol evidence that it was so conveyed upon trust, and that the grantee, knowing the facts, is denying the trust. I can see no reason why, so far as the Statute of Frauds is concerned, the same principle is not a])plicable to the location of a mining claim held, or partly held, in trust. The provisions of the B. C. Mineral Act are not ])leaded. It may he a serious (piestion whether, or how far, the provisions of the Mineral Act, so far as relates to rights governed by the Mineral Act supersede or displace the Statute of Frauds. That question, however, does not arise here, for the reason, as before remarked, that the Mineral Act is not pleaded, and I take it, could not, any more than the Statute of Frauds, be relied upon to defeat a parol agree- ment unless pleaded.-' As further answering the Statute of Frauds, * (1897) 5 B. C. R. 353. ' Following on this point Robin- son V. Anderson, (1855) 7 DeG. M. & G. 239; (1855) 20 Beav. 98. »At p. 355. N. » (1896) 75 L. T. N. S. 502. '" 1 R. R. 1. • (1869) 4 H. of L. 97. M1885) 13 S. C. R. 706. "James y. Smith, (1891) 1 384. Ch. G4 UTATVTE OF FRAUDS— riiUST r-t; and as pointed out by McCroiglit, J., the position of the plaintilT, apart from his statutahlo rights and liabilities as a free miner, would be merely that of a licensee of the Crown, having no title whatever to land, and consequently no interest to be defeated by the Statute of Frauds.'' ]\icC'reight, J., referred to Wood v. Leadbitter," to show that plaintilf " as a licensee of the Crown, authorized by the Tiieutenant- Covernor to mine for gold on Crown lands," would have " a mere revocable license, and that upon revocation he would have had no rights whatever," and decided that the sections of the Statute of Frauds dealing with interests in land have no application." In l?(ichei'oiieaidd v. Bouslead,' Lindley, L.J., for the Court," said, at ]). 20i>: '' This conclusion renders it necessary to consider whether the Statute of Frauds affords a defence to the plaintilT's claim. The section relied upon is section 7, which has Ix'en judicially inter- ])reted in Forster v. llale," and Smith v. ^latthews.^ According to these authorities, it is necessary to ])rove by some writing or writings signed by the defendant, not only that the conveyance to him was subject to some trust, but also what that trust was. But it is not necessary that the trust should have been declared by such a writing in the first instance; it is sufiicient if the trust can be proved by some writing signed by the defendant, and the date of the writing is im- material. It is further established by a series of cases, the propriety of which cannot now be (piestionod, that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the Statute, it is competent for a ])erson claiming land conveyed to another to prove by parol evidence that it was so conveyed ujjon trust for the claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the Statute, in order to keep the land to himself." See also Barton v. ^^rc^lillan."' where it was held, following James, L.J., in Ilaigh v. Kays," that parol evidence was admissible. In this case it was argued by very learned counsel for the plain- • (1845) 13 M. & W. 838. *7^ L. T. N. S. 502, (1897) 1 Ch. DIv. 196. » Lord Halsbury, L.C., and Lind- ley and A. S. Smith, L.JJ. •(1798) 3 Ves. 696. T (1861) 3 D. F. & J. 139. ■' (1891) 20 S. C. R. 404. « (1872) 7 Ch. 469. voyriiACTn (15 I to tiff, that tlic authorities on tlio point,*" established the ])rincii)U> that wliere it is souglit to establish a trust the Statute of Frauds re- quires evidence in writing signed by tlie party to be charged svliere tlie trust arises from contract, Init not wliere it arises from conduct. A broker, emidoyed by his principal to jjurchase certain shares in a mining company, informed him, contrary to I lie fact, that he had purchased such shares in accordance with instructions. He did not buy until two days later, and he tlien purchased for forward delivery. Held, in an action by the broker to recover commission, that the representation that he had bought put an end to his au- thority, and that the principal was not bound by the subsequent pur- chase.'"* riaintilf, the ju-oprietor of- a gold mine, entered into an agree- ment with defendants, quartz crushers, to crush the quartz for £35 every week, and it was also agreed that the plaintilf should have the light to lemove all amalgam from the ])atteries. The i)laintiif, after some time had clai)sed, finding some of the gold had attached itself to the plates used in the amalgamating process, claimed a right to remove it, which defendants refused on the ground that their plates might be injured; and also on the ground that there was a custom that the gold adhering to the plates became the property of the own- ers of the crushing machine. Held, that the gold had always re- mained the property of the plaintiff. Per Wiudeyer, J., " The plain- tiff has the right to get the gold in the best way ho can, and if he injures the plates he must compensate the defendants for such in- Plaintilf, a share broker and member of the Stock ]"]xchange, brought an action against the defendant for refusing to accept one hundred Xevada silver shares. It appeared that on Tth September, the defendant instructed the plaintilf to purchase for him 100 Ne- vada shares, to be delivered and paid for on 7th December. Plain- tiff purcliased the shares, and sent to the defendant a sale-note, " sub- ject to the rules and regulations of the Stock Exchange," for 100 shares, " £1 i)er share paid up." The defendant endorsed the sale- note as accepted, and returned it to the plaintiff. On December 7th the plaintiff tendered to the defendant the scrip of 100 Xevada shares issued nnder the seal of the company as paid up to £1 per share. The evidence showed that these were the only Nevada shares known in the market. The defendant refused to accept the shares *' For which see lb., p. 201. "Samper v. Hade, (1889) 10 N. S. W. L. R. (L.) 270. 5— M ^ Patterson v. Strauss G. M. Co., (1889) 5 N. S. W. W. N. 154. CO FIXTURES on the ground that tlioy wore not ns n mnttor of fact paid up to £1, and no (onlract to treat tlioni as so paid up had i)t'oii lilud in accord- ance' witli section 57 of tho Coiupanics Act. Neither the jdaintilY nor the defendant knew of that fact on 7th September. Tiie Dis- trict Court Judge, liefore whom the action was tried, received in evidence a copy of Hide 22 of tiic Stock Kxciiange, under whicii a mendjer is disentitled to plead agency in an action brought by tho seller for tlic price of shares sold. The only evidence of knowledge liy tho defendant of the rules of the Stock Kxciiange was that he had jireviously bought stock. A'erdict for ])laintiif. On appeal the ipies- tions for llic opinion of the Su})reme t'ourt were: (I) Was tho Judge right in receiving in evidence the rules of the Stock Kxchangc? (2) Was he right in finding a verdict for the jtlaintilV? Held, tluit the verdict was right. Tlie scrip tendered was the only Nevada scrip known in the market, and tiiat was what the ])laintitr was instructed to buy for the defendant. Held, further, that the copy of the rules of the Stock Exchange was rightly received in evidence. The defen- dant, having authorized the plaintitt to buy on the Stock Exchange, is bound by such rules." Fixtures. It is commonly said that fixtures are not an interest in land within the meaning of the Statute of Frauds, so as to ro- qnire a note or memorandum in writing under the -Ith section, ujjon tho authority of ITallen v. Runder,^" since followed in Lee v. (laskell,* where it was decided that the term '" fixtures " denoted personal chattels to Avhich is incident the '* tenant's right to remove," and therefore a contract to forego that right was not an interest within the Statute. Covenants. The term covenant is properly applied to denote a contract under seal.* If the principal thing to be performed, as the conveying of an estate or the granting of a lease, bo void, further covenants which are relative and dependent thereon are so likewise.^ AVhere covenants are independent, a covenantor cannot discharge himself by showing that no estate jiassed.* " Palmer v. Upward, (1886) 7 N. S. W. L. R. (L.) 296. " (1834) 1 C. M. & R. 266. ' (1876) 1 Q. B. Div. 700. »Chitty, 13 Ed. " Bacon Abr. Gov. (G). *Mouys V. Leake, (1799) 8 T. R. 411, approved by Lord Ellen- borough, (1807) 8 East, 234; see Mc- Donald v. Murray, (1885) 11 A. R. 101; Armstrong v. Auger, (IfSl) 21 0. R. 98. CONTRACTS 07 ami hin an lich R. llen- Mc- R. 1) 21 Where tlic cITi'ct of n conlract in to give a straii^tcr to it a Ixmio- ficial riglit tliuri'iiiuK'r, ho may eiil'oixc ssiich right by action, liiougli not namoil an covoiiaiitee.'* It is establisijud tluil no stranger to the consideration can tako advantage of a contract, altlioiigh made for his henedt." To enlitl"' a person to claim tiie riglits of a ccsliii (jiie Iriisl, sometliing more is necessary tinin that he slinnid siiow iiimsclf en- titled to a henelit under the instrument. Jle must show thit tlic circumstances are such as to give him a vested right which the other parties to the contract could not terminate without his consent.'' l'"or instance, one mine owner can iu)t enforce or take advantage of a covenant hy a lessee with his lessor in a lease of an adjoining mine." In a covenant to indemnify and save harmless a person from all liahility of every nature and kind, the ()I)ligee has a cause of action as soon as judgment is recovered against him and Ijefore ho pays it." A covenant hy the purchaser of the equity of redemption, with the mortgagor to jjay off the mortgage debt, is assignal)le hy tlie nu)rtgagor to the mortgagee, so as to enable the latter to enforce it for his own benefit.^*' A covenant personal to the covenantee is, of course, not assign- aide.'^ In every case where the testator is bound by an express cove- nant the executor shall be bound by it, except where it was to he ])erf()riiK(l by the person of the testator, or is determined by his doath.s In Loucks V. Wallljridge,^* the plaintiff, having discovered mines iipon teitain lands, agreed with D. and T. that they should furnisli "Moot V. Gibson, (1891) 21 O. R. 248. "Tweddle v. Alklnson, (18G1) 1 B. & S. 393, per Wightman, J.; see and compare Gandy v. Gandy, (1884) 30 Ch. D. 57; In re Orr Ew- ing, Orr Ewlng v. Orr Ewlng, (1882) 22 Ch. D. 456; Osborne v. Henderson, (1889) 18 S. C. R. 698, reversing Henderson v. Killov, 1889) 17 A. R. 458. ' Faulkner v. Faulkner, (1893) 23 O. R. 258, per Street, J. 'Wilson V. Waddell, (1876) 2 App. Cas. 95. ° Mewburn v. Mackelcan, (1892) 19 A. R. 729; cf. Wolmershausen V. Gullick. (1893) 2 Chy. 514; Boyd V. Robinson, (1891) 20 O. R. 404. '" Campbell v. Morrison, (1897) 24 A. R. 224; in appeal siih luniiiiir; Malont'y v. Campbell. (1897) S. C. R. (not yet reported); British Canad. Ix)an Co. v. Tear, (1893) 23 O. R. 664. = Sutherland v. We -star, (1894) 21 A. R. 240. ' Bally V. Wells, (1769) 3 Wils. 29. Wms. on Executors (9th Ed.) 1629-30. " (1873) 31 IT. C. Q. B. 32. ' f--^ 68 COVENANTS 'i the funds to work the mines, and after securing the title convey an iiudivided third (o himself. He afterwards agreed to assign liis in- terest in this agreement to the defendant in consideration of $100, and one-half of whatever proHt might be derived from the share agreed to be given to him by D. and T., and the defendant agreed to account for and jjay over to him one-half of whatever protits or returns might be derived from the said sliare assigned to the defend- ant as agreed to be given to the plaintiff by D. and T. And further, it was agreed that tlie plaintilf should not have to pay or advance any moneys or labour in tlic working of the said mines. The defend- ant having sold one-half of his share to one (x. for $1,125, held, that tliis money was not prolits or returns derived from the defendant's share for which he was bound to account to the plaintiff under his agreement. Morrison, J. (37): The view taken by the learned Judge at the trial was the correct one, namely, that the defendant sold to Gilbert only one-half of the one-third share, and transferred to him the lia- bility to account to the plaintiff for half the profits tliat might arise from such share of these mining lands. In other words, the defend- ant sold merely half of his own beneficial share in the lands, and that the moneys he received on such sale were not moneys within the meaning of the covenant declared on. Joint, Several and Joint and Several Covenants. Whore more persons than one enter into a covenant, and each under- takes only to the extent of his own acts and defaults, the covenant is said to be several, and when covenants are several " they are as several deeds written on one and the same piece of parchment." * A covenant may also be entered into with two or more cove- nantees severally."* In a joint covenant each covenantor becomes answeral)le for himself, and also for the due performance of the covenant by an- other. A covenant with " two " and " every of them " is joint, though the two are several parties to the deed." A covenant Mill not be construed as joint a7id f everal unless dis- tinctly expressed so to be in the deed L.-olf.'' 'Mathcwson's Case, (1597) 5 Co. Rep. 23a. » Servante v. James, (1829) 10 B. & C. 410. "Southcote V. Hoare, (1810) 3 Taunt. 87. 'Summer v. Powoll, (181G) 2 Mer. 30, p. 37; (1823) T. & R. 423. CONTRACTS 69 for an- A joint and several covenant has been created by the use of the words covenant " for themselves and each of them." * A covenant by two or more persons " for ourselves and each of lis," or " for ourselves and every of us," is Joint and several.^^ Implied Covenants. Where words of recital or reference mani- fested a clear intention that the parties should do certain acts, tlie Courts have from these inferred a covenant to do such acts, and sus- tained actions of covenant for the non-performance as if the instru- ments had contained express covenants to perform them.*^ The distinction between covenants implied by operation of law and express covenants is that express covenants are taken more strictly. A party may without consideration enter into an express covenant.^'' A covenant is implied by a grantor or assignor to do nothing in derogation of his deed." A covenant to " leave a barrier or partition," etc., and to "' leave sufficient walls or pillars for the support of tlie roof," etc., was held by Bacon, "V.C, in Mostyn v. Lancaster,"^ to mean that, "At the end or determination they are to leave, that is ,must not in the meantime take out, because ' to leave ' does not assume that tliere will be any power to f&ke out pillars and afterwards to restore them. It is a grant of the mines except only the pillars." A covenant, being part of a deed, is subject to the general rulei esiabli.>^hed for the construction of deeds, as, (1) To be always taken most strongly against the covenantor, and in favour of the covenantee. (2) To bo taken according to tlie intent oi; tlie parties. (3) To be construed ut res niagis valcat quam pereat. (4) When no time is limited for its performance it must be done within a reasonable time.'" A covenantee who has not executed a deed can sue on covenants contained in it.' 'Robinson v. Walker, (1795) 1 Salk. 393. ^' Bolton v. Lee, (1673) 2 Lev. 56; May v. Woodward, (1677) 1 Freem. 248. - Per Lord Denman, In Aspdln v. Austin, (1844) 5 Q. B. 671, p. 683; see Page v. Midland Ry!, (1893) 42 W. R. 116. "' Per Lord Mansfield, Shubrick v. Salmond, (1765) 3 Burr. 1639. "Gerard v. Lewis, (1867) L. R. 2 C. P. 305. "• (1883) 23 Ch. D. 600. '" 4 Cm. Dig. 369. ' Vornon v. Jefferys, (1795) 2 Stra. 1146; Morgan v. Pike, (1854) 14 C. B. 473. -wwimmn 70 RESTRICTIVE COVENANTS In Ontario, certain covenants are deemed to be included and implied in conveyances made on or after the first day of July, 1886.^ Where a person contracts to do a certain thing, a negative con- tract may l)e implied." Restrictive Covenants. In Fothergill v. Rowland,* Jessel, M.K., held, on demurrer, that the Court had no jurisdiction to grant an injunction to restrain tlie breach of a contract Ijy a lessee of a col- liery to raise and deliver to the plaintiff all the get of coals in the colliery at a fixed price for five years, and who thereafter agreed for the sale of the colliery to other parties.** In Kejjpel v. liailey," Lord Brougham, L.C., decided that a covenant by lessees for themselves, their lieirs, executors, administra- tors and assigns, with the owners of a quarry to procure all limestone used at lessees' works from that quarry, etc., (1) did not run with the land so as to l)ind assignees at law,"' and (2) that a Court of lujuity would not hj holding the conscience of the pur- chaser who liad notice, to be affected by the notice, give the cove- nant a more extensive operation tlian tlie law allowed it, but the latter jjroposition cannot now be upheld.^ So far as KojiiJcl v. Bailey decides tliat a restrictive covenant as to the use of land, which does not run Mith the land at law, is not binding in equity u])on an assignee witli notice, it lias been overruled by more recent eases.** And in equity a person who takes land with notice of a restrictive covenant, wlietlier actual or constructive," will be bound l)y it, unless tlie covenant has been waived, e.g., by acqui- » R. S. O. 1897. c. 119, s. 17. ■'De Mattes v. Gibson, (1859) 4 De G. & J. 276, overruling Hills v. Croll, (1846) 2 Ph. 60; Si'vin v. Desliindes, (1861) 9 W. R. 218; Le- Blanch v. Granger, (1866) 35 Beav. 187; Catt v. Tourle, (1869) L. R. 4 Ch. 654; Holmes v. Eastern Count- ies Railway Company, (1857) 3 K. & J. 675. '(1873) L. R. 17 Eq. 132. ° See also Ryan v. Mutual Ton- tine W. C. A., (1893) 1 Ch. 116, 127; and Keith v. National Telephone Co., (1894) 2 Ch. 153; per Kekewlch, J., Heathcote v. North S. R. Co., (1859) 2 Mac. & G. 100. ° (1834) 2 My. & K. 517. '■' See Limmer Asphalte Co. v. Com. of Inland Revenue, (1872) L. R. 7 Exch. 216. ■ See Catt v. Tourle, (1869) L. R. 4 Ch. 654; De Mattos v. Gibson, (1858) 4 De G. & J. 276, 282. per Lord Justice Knight Bruce ; Wilson v. Hart, (1866) L. R. 1 Ch. 463; Earl of Zetland v. Hislop, (1882) 7 App. Cas. 447, per Lord Selborne, L.C. ' Luker v. Denis, (1877) 7 Ch. D. 227; Parker v. Whyte, (1863) 1 H. & M. 167. » Clement* v. Wells, (1865) 1 Eq. 200; Wilson v. Hart, (1861) 1 Ch. 463. CONTRACTS 71 escence in its breach,^" or circumstances have arisen rendering it in- equitable to enforce the restrictive covenant. In Wlieatley v. Westminster Brymbo Coal Company/ whore the covenant was to work the mine uninterruptedly, efliciently and regu- larly, according to the usual or most improved practice, it was held by Malins, V.-C, that there was no obligation on the lessees to sink pits, although that might be the most efficient mode of working; and that so long as the minimum rent was paid they could not be com- pelled to work the mine at all; that the lessees having only raised a small quantity of coal by working tlirough an adjoining mine witli- out sinking pits on the lessor's property, had committed no breach of contract, but if they had done so the remedy was at law and not in equity. Malins, V.-C, says, at p. 552: "If the lessor had cove- nanted that he would not do a certain thing, and had proceeded to do it, this Court woidd prevent him doing it. If it is a thing to be done under the direction of the Court, and he refuses to do that certain thing, the Court would oblige him to do it; but I take it that nothing is more clear than this, that the Court will not undertake citlicr the construction of a railway, the management of a brewery, or the management of a colliery, or anything of that kind. It will appoint a receiver or manager in certain cases. . . ." ^ In Stocker v. Dean,^ Lord IJomilly held a covenant " at all times thereafter, to give to the plaintifl', his heirs and assigns, the right of pre-emption" to bo restricted to the life of the covenantor. As to cases where restrictive covenants have been enforced against a purchaser with notice, see Tulk v. ^Moxliay,'* where the covenant was aflirmative in its terms, but was held by the Court to imply a negative, and Haywood v. The Brunswick Per- manent Benefit liuilding Society,-"' where the Court decided that they would not extend tlie doctrine of Tulk v. Moxluiy to aihrmative cove- nants compelling a nuui to lay out money or do any act of an active character, but that it was to be confined to restrictive covenants." • i '"Gibson v. Doeg, (1857) 2 H. & N. 615; Saycrs v. Collyer, (1884) 28 Ch. D. 103. ' (1869) L. R. 9 Eq. 538. - See also Anon. Amb. p. 209, per Lord Hanlwicke, Birmingham Ca- nal Co. v. Lloyd, (1812) 18 Ves. 515, per Lord Eldon. ' (1852) 16 Beav. 161. ' (1848) 2 Ph. 774. ; » (1881) 8 Q. B. D. 403. ' See also Austerberry v. Corpora- tion of Oldham, (1885) 29 Ch. D. 750; see also Knight v. Simmonds, (1896) 2 Ch. 294. 72 COVENANTS Usual Covenants. In Church v. Brown/ Lord Eldon, after great consideration, notwithstanding the doubts contained in ^forgan v. Shuighter/ and Folkingham v. Croft," upheld Lord Tliurlow's decision in Henderson v. Ilay,^" to the effect that under an agreement to grant a lease upon common and usual covenants, the lessor was entitled as a cove- nant " incidental to the lease " to a covenant from tlie lessee not to a:^sign without license, and decided that it made no difference whe- ther the agreement declared that the lease contracted for was to con- tain the usual and proper covenants or not; that, in every agreement, whether as to freehold or leasehold estate, it was implied that there were to be usual and proper covenants; tliat both lessor and lessee would be entitled to such covenants as were strictly incidental to the subject of the agreement, and to no others. Speaking of a covenant to sell a fee simple estate, free from encumbances, he says:^ " It is clear that covenant cames in gremio, and in tlie bosom of it, the right to proper covenants." Covenants become usual and proper cove- nants only because by common consent they are found essential to perfect the contract between the parties. Covenants Running With the Land. A covenant is said to run with the land when it " relates to, touches and concerns " the land in such a way that the right to take advantage of it passes to the assignee of that land. All implied covenants have been held to run with the land.- A covenant whicli does not directly affect the nature, quality or value of the land, or the mode of occupying it, is a collateral cove- nant, and will not bind the assignee of the land, although assigns arc expressly named in the covenant.'' With What Covenants Run. Covenants will not run with rent,* but will with an assignable right to dig for minerals." Except ' (1808) 15 Ves. 258. ' (1793) 1 Esp. N. P. C. 7. • (1817) 3 Anstr. 700. '» (1792) 3 Bro. C. C. 632. •P. 263. - Spencer's Case, 5 Co. Rep, 17. Mayor of Congleton v. Pattlgon, (1808) 10 East, 135. *Mllnos V. Branch, (1816) 5 M. & S. 411; Randall v. Rlgby, (1838) 4 M. & W. 135. '' Martyn v. Williams, (1857) 1 H. & N. 817; Norval v. Paacoe, (1864) 10 Jur. N. S. 792; Lord Portmore V. Bunn, (1823) 1 B. & C. 694. CONTRACTS 78 in cases between lancllord and tenant, no covenant which imposes a burden upon land would seem to run with the land, unless the cove- nant upon the true construction of the deed containing the covenant amounts to either a grant of an easement, or a rent-charge, or some estate or interest in the land." Void Covenants. Covenants may be void for want of capa- city,*" or if unlawful,* or if made for an unlawful consideration,^ or if impossible of performance at the time of making the contract,^ or if contrary to public policy,* but will not be wholly void if it is divis- ible, and one alternative not contrary to public policy. ° The rule now is that if the legal part of the contract in question can be severed from that which is illegal, the former shall stand good whether the illegality exist by Statute or common law." In a Nova Scotia case a deed contained a covenant recardinsr the land conveyed that it should " never be hereafter sold but should bo left for the common benefit of both parties and their successors," and it Avas held enforceable.^ In Quebec notorious insanity or imbecility does not render the acts of persons suffering from it nulls unless the parties be inter- dicted, and such acts are only annullable for lesion.* Agreement or Lease. Whether an instrument is to operate as a lease or an agreement, depends upon the intention, to be collected from the instrument, and from the nature and condition of the sub- ject-matter, without reference to extrinsic circumstances or subsequent acts, and it was accordingly held that the particular memorandum was not a lease but an agreement for a demise in fitturo^'^ " Haywooa v. Brunswick Build- ing Society, (1881) 8 Q. B. D. 408; Austerberry v. Corporation of Oldham, (1885) 29 Cli. D. 750. "Ludford v. Barber, (1786) 1 T. R. 86. ' Shep. Touch. 163. = Waldo v. Martin, (1825) 4 B. C. 319; The P. B. of Halifax Johnson, (1892) 20 S. C. R. 541; Major v. McCraney, (1897) 5 B. C. R. 571. ' Clifford V. Watts, (1870) L. R. 5 C. P. 577,; see McKenna v. Mc- nair>ee, (1887) 15 S. C. R, 311. & V. * Harrington v. Duchatel, (1781) 1 Bro. C. C. 125. " Robinson v. Ommaney, (1883) 23 Ch. D. 285. ° Kitching v. Hicks, (1884) 6 O. R. 739, per Osier, J. 'McLean v. McKay, (1873) L. R. 5 P. C. 327. '^ D'estimauville v. Tousignautes qual, (1875) 1 Q. L. R. 39. '" See Doe d. Morgan v. Williams, and Wayne v. Powell, (1844) 7 M. 6 G. 980. m I'h 74 AGREEMENT FOR LEASE Per Tindal, C.J.^ " In order to ascertain the intention, it is im- portant to consider wlietlicr jiossession was given by the instrument, and whether it contains words of 2)resent demise." - *' According to Poole v. Pentley,'* to constitute a lease, it is necessary that it should appear that the parties contemplated the creation of a present interest (i.e., a present inleresse termini, in other words, a presently vested riglit to enter and take possession, either immediately or at a future period, as the haheiuliim may be) in the subject matter."' ■* " A grant of an easement in alieiio solo being an incorporeal hereditament can only be by deed.^ " Without an instrument under seal the tenants woidd not l)e entitled to e.\erci.se rights absolutely necessary for the enjoyment of the subject matter of the demise." Per Manle, J." " The easement of depositing rubbish on the surface in sinking the pit, and of breaking into the soil, and of mak- ing a wliarl', wliich forms a very material part of the contract, could Jiot pass l)y this unsealed instrument, inasmuch as it is a thing that lies in grant." ^ '• Here, if the parties had at any time afterwards said what estate they took under this instrument, their statements would have been evidence against themselves." Per Erie, J.: "I also am of opinion that this instrument is an agreement only, and does not anunint to a lease. It is to be con- strued Mitli reference to the apparent intention of the parties and to the nature and state of the sidjjeet-matter. Mineral property requires a most definite statement of the rights of the parties. . . In mining ])ro])erty it is necessary to have power to deposit rubbish. . . . II' there were no title in tlie lessor, the lessees would not, I think, be bound to accej)t a lease." Agreement for a Lease. In Jones v. Eeynolds," Patteson, J., said at p. ,■)!(): "Here the term was not to commence till the 2-lth of June, 1S2.); it was not meant that ])ossession should ])o taken in tile meantime: and tiie ])roportions in wliicli the iron ores should l)e worked were to l)e ascertained at a future day. Tliere was not, there- fore, any present demise. ' P. 988. »P. 989. '(1809) 2 Ciimpb. 2S6; 12 East, 168. * P. 990. ■ Bird V. Higginson, (1835) 2 A. & E. 096; 4 N. & M. 505. "P. 992. ' P. 993. "(1841) 1 Q. n. 506. Al CO'NTRACTS 76 In Pinero v. Jiulson," and Chapman v. Bluck/" the tenancy was to begin from a past day. Wightman, J., said:' " I agree tliat if an instrument be in other respects a present demise, a stipuhition in it for a futnre lease will not reduce it to a mere agreement. Stipulating for a future lease, in such a case, is only providing for a formal assurance. Laurence, J., so puts it in IMorgan dem. Dowding v. JJissell,- and he said in tliat case:^ " Where there is an instrument, l)y which it appears that one party is to give jjossession and the other to take it, that is a lease, nnless it can be collected from the instrument itself, that it is an agreement only for a lease to be afterwards nuule.' Here no pres- ent demise ajipears; the term is to Ijcgin from the ensuing 24th of June; and before an actual demise, there w(!re matters to be ascer- tained, without which the terms of holding wonld not be perfectly com])lete. Therefore this agreement comes within the distinction furnished by Morgan dem. Dowding v. Bissell,^ and I may say all the cases." In Ilodgkinson v. Crowe,'' Sir W. M. James, L.J., in giving judgment for the Court of Appeal, decided that under an agreement for a lease to contain " All usual and customary mining clauses," the landlord was not entitled to have inserted in tlie lease a proviso for re-entry on breach of any of the covenants by the lessee, or other- Avise than on non-2)ayment of rent, and said at p. fi'^7, ''A case in which I was counsel numy years ago produced a strong elfect upon my mind — a case where a forfeiture Avas enforced in which there was no legal defence, and no e(piital)le relief could be ol)tained. Exten- sive copperworks were forfeited l)y reason of a breach of covenant in not kee])ing up a fence Avhich had become perfectly useless, and the not keeping it up did not do one shilling's worth of damage to any- body. . . A landlord before he parts with his property can nuike any stipulation lie likes, and if he wishes to let his land, not for an absolute term, but for a term determinable upon certain events, it is for him to provide by the agreement for the insertion in the lease ot the provisoes and stipulations which he thinks necessary for his protection." ° (1829) 6 Hing. 206. •"(1838) 4 Blng. New Ca. 187. ' Jones V. Roynolds, p. 517. = (1810) 3 Taunt. 65, 68. " At Nisi Prius (ib. 65). * (1810) 3 Taunt. 65; John v. Jen- kins, (1832) 1 Cro. & M. 227; 3 Tyrwh. 170. ° (1875) L. R. 10 Ciiy. 622. 70 POSSESSION 111 Parker v. Taswell," it was decided that tlioiigli an instrument miglit be void under !) Viet. c. 10(i, s. 3, as containing words of iiresent demise n being under seal, yet it might be treated as an agreement '' Section 7' 0., 1897, c. Ill), is identical with section 3 of the English Ac ad 9 Vict. c. 100, and provides, '* A i)artition and an exchange of land, and a lease required by law to be in writing of land, and an assignment of a chattel interest in land, and a surren- der in writing of land not being an interest which might by law have been created without writing, shall be void at law, unless made by deed." All agreements for leases are void if not in writing even though the term contemplated be less than three years, and the rent more tiian two-thirds the full improved value. But if tlie agreement be by reason of part performance or otherwise, one which is capable of being specifically performed, both parties will stand in the same position as if a lease under seal had been granted.*" A lease for a term not exceeding three years at a rent of at least two-thirds of the full improved value may be made by parol, otherwise it must be by deed. If a written lease is void as a lease by reason of not being under seal it may operate as an agreement for a lease of which sjiecific per- formance will be decreed." At law entry and payment of rent under a void agreement or lease created a tenancy from year to year, upon the terms of such agroeinent or lease so far as they were consistent with a yearly ten- ancy. But liy the Judicature Act the rules of equity are to prevail, and if specific performance would be decreed the parties are consid- ered as having the same rights as if a lease under seal had been gi anted. Possession and Payment. Where a party has been let into possession of lands under a contract of ])urchase, but does not com- plete the purchase, and refuses to ])ay the purchase money, and no conveyance is executed, the vendor cannot recover from him the » (1858) 2 De G. & J. 559. • See also Hobbs v. Ontario L. & D. Co., (1890) 18 S. C. R. 537, per Gwynne, J. » Walsh V. Lonsdale, (1882) 21 Ch. Div. 9; Lowthcr v. Heaver, (1889) 41 Ch. Div. 264. " Parker v. Taswell, (1858) 2 De- G. & J. 559. CONTRACTS 77 wliole amount of tlio ])m'C'hase money, but only the dnningcs actually sustained hy his breach of contract;"' and this applies to the case of a ])urchiise under statutory powers."' It is well established in equity that in the case of a contract for the sale and purchase of land, al- though the legal property does not pass until the execution of the conveyance, during the interval prior to completion the vendor in jjossession is a trustee for the p\irchaser, and as such has duties to perform towards liim, not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and, so far as may l)e, as it was when the contract was made. Where from any cause a long period of time elapses during which such po.-set-sion of the vendor continues and deterioration of the j)ioperty takes place, other considerations may come in,'" but in a case where the injury complained of was the removal of a con- siderable portion of the soil for purposes for which the vendor had no right to allow such removal without the knowledge of the pur- chaser the jjurchaser was held, notwithstanding conveyance, to be entitled to damages against the vendor therefor.' In Holmes v. Powell,^ Lord Justice Knight Bruce says: " I ap- prehend that by the law of England when a man is of right and de facto in the possession of a corporeal hereditament, he is entitled to impute knowledge of that possession to all who deal for any interest in the property, conflicting or inconsistent with the title or allegecl title under which he is in possession or which he has a right to con- nect with his possession of the property. It is equally a i)art of the law of the country, as I understand it, that a man who knows or cannot be heard to deny that he knows another to be in possession of a certain property, cannot for any civil purpose, as against him at least, be heard to deny having thereby notice of the title or al- leged title under which or in respect of which the former is and claims to I)e in possession. Lord l^'ldon's language in Allen v. An- lhony,3 where he says, ' It is so far settled as not to be disputed that a person purchasing when there is a tenant in possession, if he neglects to enquire into the title, must take, subject to such rights »' Laird v. Pim, (1841) 7 M. & W. 474. " East London Union v. Metro- politan Ry. Co., (18G9) L. R. 4 Ex. 310. '"Phillips v. Silvester, (1872) L. R. 8 Ch. 173. 'Clark V. Ramuz, (1891) 2 Q. B. 456. = (1856) 8 DeG. M. & G. 580. " (1816) 1 Mer. 282-4. 78 i'O&VS'fiSWO.V ns the tenant may have,' recognizes, ns T iindeisttiiid it, both rules. But possession ol' a corporeal iiereditanient to l)c clVectual ncetl not be continually visible or without cessation actively asserted. If a man has once received rightful and actual possession of land, ho may go to any distance from it without authorizing any servant or agent or other person to enter upon it or look after it, may leave it for yiars uncultivated aiul unused may set no nuirk of ownership upon it, and his possession may, nevertheless, still continue, at least, unless his conduct alford evidence of intentional abandonment, which such conduct, as I have nu'iitioned, would not necessarily do." Tn Ontario, however, " The Kegistry Act,"' provides that "Priority of registration sliall prevail unless before the prior regis- tration there has been actual notice of the jirior instrument by the party claiming under the prior registration." A definition of "instrument" is contained in the Act.** In Grey v. Ball *- it was held that possession under an equitable interest could not prevail against the registered title of an incum- brancer, possession not being such notice of title as will all'ect the right of a party claiming under a registered conveyance. In Ilarty V. Appleby-' it was laid down as a settled doctrine, that in Ontario possession is not notice as against a registered title." I'ntil the ])urchaser gets, or may but for his own default, get possession, the seller must, at his own risk, take care of the property.'' In Ontario a imrchaser whose ])urcliase money is i)ayable by in- stalments which liecome due before his right to a conveyance arrives, is entitled to pay tliein into Court instead of to the vendor, where the vendor's title is defective or sul)ject to incund)rances.'* "Where by the terms of the contract the purchaser is entitled to his conveyance upon ])ayment of the purchase inoney the vendor nmst show that at the time his action for payment was brought he WiTS leady, able and willing to convey." * R. S. 0. 1897, c. 136, s. 97. " Sec. 2. s.-s. 1. '-' (1876) 23 Grant, 390. M1872) 19 Grant, 205. ° See also Toronto v. Jarvis, (1894) 25 S. C. R. 237. ' Fisken v. Wride. (1863) 11 Grant, 248, and cases there cited; The People's L. & D. Co. v. Bacon, (1879) 27 Grant, 302. * Armstrong v. Auger, (1891) 21 O. R. 102, per Street, J.; O'Keefe v. Taylor, (1851) 2 Grant, 305; Thompson v. Brunskill, (1859) 7 Gr. 542; Chantler v. Ince, (1859) 7 Gr. 432; Wardell v. Trenouth. (1877) 24 Gr. 465; Cameron v. Car- ter, (1885) 9 O. R. 426; Greenwood V. Turner, (1891) 64 L. T. N. S. 261. •McDonald v. Murray, (1885) 11 0. R. 101. CONTRACTS 79 ■i 111 Ontario tli(M'c seems no substantial distinction, since tlie Judicature Act, lictween a vendor's action to recover his purcliaso money and a vendor's action for specific performance wliero tlie piir- cliase money is payable contemporaneously witli the delivery ol" the conveyance.'" Deposit. A i)ecuniary deposit ujjon n purcliase is considered as a ]iaynient in part of tlie ])urchase money, and not as a mere ])led' rights to land in the occupation of a stranger the adverse ])ossession must be exclusive, con- tinuous and notorious, and that the Crown was not affected with no- tice under the Registry Act of the recording of a deed by a stranger to the title; also tliat acts of ownersbij) exercised 1)y a i)arty upon Lmd to wiiicli he has a good title will not be extended to adjoining land included in his deed but to which he has no title, in the ab- sence of actual occupation of a part of tlie land claimed.* In l^ellamy v. Debenham," the Court of Appeal held, following Forrer v. Xash," that, " when a person sells property which he is neither able to convey himself nor has the power to compel a con- veyance of it from any other i^erson, the purchaser, as soon as he finds that to be the case may say, ' I will have notliing to do with it.' Tl;e purchaser is not bound to wait to see whether the vendor can induce .«ome tliird person (who has the power) to join in making a good title to the property sold." In this case the vendor did not own tlio mines and minerals under the house agreed to be sold.^ In ^larsden v. Moore,^ Alartin, B. (Bramwell, B., and Channell, B., concurring) said:" "I think that the law is correctly laid down in Poidage V. Cole.*" In order to see the meaning of this contract the ' Lyddal v. Weston, (1739) 2 Atk. 19. " Seaman v. Vawdrey, (1810) IG Ves. 390; Ramsdcn v. Hirst, (1858) 4 Jur. N. S. 200. •"=Smithson v. Powell, (1852) 20 L. T. (O. S.) 105; see also Re Bun- bury's estate, (1867), 1 Ir. R. Ex. 458. * McKay v. McDonald, (189(5) 28 N. S. R. 99. The doctrine of Smyth v. McDonald, 1 Old., is not to be extended (ib.). " (1891) 1 Ch. 412. " (1865) 35 Beav. 167. ' Sec also HaTgart v. Scott, (1830) 1 Russ. & My. 293; In re Head's Trustees v. Macdonald, (1890) 45 Ch. D. 310; Weston v. Savage, (1879) 10 Ch. D. 736; see Harris v. Robin- son. (1892) 21 S. C. R. 390. » (1859) 4 H. & N. 500. •At p. 504. "(1670) 1 Saund. 319. CONTRACTS 83 loll, in I the parts of it slioiilil bo separately considered. First, the plaintiff agrees to sell to the defendant a share in a mining sett for £250, and the defendants agree to purchase at that price. The sale and payment of the money are to be contemporaneous acts. In the notes to Por- dage V. C'ole,^ it is said, nde 4, ' Where the mutual covenants go to the whole consideration on both sides, they are mutual conditions and performance must be averred.' And rule 5, ' Where two acts are to be done at the same time, neither party can maintain an action without showing ])erformance of, or an oH'er to perform his part.' Tills particularly applies to the case of sales, where the common un- derstanding is that one thing is to be exchanged for another. Then as to the other part, as soon as the company is registered the def(m- dants agree to pay the sum of £250 ' as hereinbefore stated.' That does not convey to my mind that the defendants meant, if it should turn out that the ])lainti(r had no title, to take their chance of being able to recover back the £250 in an action for money had and re- ceived." It was held by the Court of Ajipeal of Xew Zealand that in an action for conversion of auriferous earth, possession of tlie site, com- piii-ed in a mining lease from the Crown, from which the earth has slip]ied, is prima facie evidence of ]n-operty in the eartli, and it is not necessary regularly to prove a title from the lessees.^^ Objections to Title. Stevens v. Guppy,^ in which judgment was pronounced, first by Lord Eldon and subseciuently by Lord Lyndhurst on re-argument after Lord Eldon's resigna- tion decides that a purchaser of a share in a co-partner- ship business, including mines and minerals, does not waive objections to the title l)y taking possession of the pro[)erty and acting as a partner, when the contract sti|iulates that a good title shall bo made by a s]iecified future day, and it ap])ears to have been the intention of the parties that the purchaser should immediately and Ijeforo that day have ]iosscssion. Tiu^ general rule of law in regard to rights of way nuiy be stated ns follows: Wliere it is ol)vious that tliere is a riyht of wav eniovod by some third ])erson, or by the public in general, the existence of ench right of way cannot give rise to any objection to the title, as, for exam|)l(>, if tlie estate sold is a largo one with a public higliway running through it, then it is obvious that it is not intondod to sell the ]irop(>rty fioo from such right of way; but the purchaser would pi (IfiTO) 1 Snuiul. 319. " Clayton v. Morrison, N. Z. C. A. 263. (1872) 2 =(1826) 3 Russ. 171. 84 SPECIFIC PERFOItMAXCE take subject to the right of way. The right is in such a case patent as opposed to the term " latent," as used by Lord Loughborough, in the case of Bowles v. Round,^ where he said that the road going through a meadow was not a latent defect. A " latent defect " has been defined to be " one which a provi- dent purchaser could not discover." "^ A right of way unknown to both vendor and purchaser would be a " latent defect." * As to when contract is at an end, see Northcote v. Vigeon.' Specific Perfonnance. The jurisdiction which Courts of Equity formerly exorcised by May of specific performance, a juris- diction which is now in Ontario, since the Judicature Act, admin- istered, but upon the same principles and subject to the same limi- tations, by all Courts, is peculiar. It is not sutficient to entitle a |iarty seeking this peculiar relief to show what would be sufficient to entitle him to recover in a Court ot law, namely, that a contract existed, but, as is well shewn by the quotations made in the judg- ment of the learned Chief Justice of the Court of A])peals from the judgment of the House of Lords in Lamare v. Dixon," and from Lord Justice Fry's Treatise on Specific Performance,"' the exercise of the jurisdiction is a matter of judicial discretion, one which is said to be exercised as far as possible upon fixed rules and principles, but which is, nevertheless, more elastic than is generally permitted in the administration of judicial remedies. Tn particular, it is a reuunly in the application of which much regard is shown to the conduct of the ])arty seeking relief.^ Where damages are a sufHcient remedy, specific performance will not be granted.^ A purchaser under an executory contract is sometimes said, in loose i)hraseology, to have an equitable title, but the distinction as regards equitable title between his rights under such a contract be- fore payment of his purchase money, and a true equitable title, is well marked, and is pointed out by Lord Cottenham in 'I'asker v. Small." • (1800) 5 Ves. 508. "Lucas V. James, (1849) 7 Ha. 410, at p. 418. • In Ashbumor v. Sewell, (1891) 3 Ch. 405, per Chitty. J., p. 408. » (1894) 22 S. C. R. 740. • (1873) L. R. 6 H. L. 423. ""2nd Ed., s. 25. 'In Harris v. Robinson, (1892) 21 S. C. R. 390, per Strong, C.J. (for the Court), at p. 397. "Nutbrown v. Thornton, (1784) 10 Ves. 161. "(1837) 3 My. & C. 63; and Lord O'Hagan in Shaw v. Foster. (1872) L. R. 5 H. L. 349; ste also Wall v. Bright, (1820) 1 Jac. & W. 503. CONTRACTS 85 WJiilst his rights under such a contract are incom- plete owing to the non-payment of his purchase money, a pur- chaser has an undoubted right to assign his contract, but he cannot soil tiio land itself, and cannot be properly called the equitable owner of it.^ The authorities are clear that when the vendor has no title whatever to the property he assumes to sell when he enters into the agreement, as distinguished from cases in which he has some, though an imperfect title, that the purchaser may, in the first case, peremptorily put an end to the bargain, and is not bound to give that reasonable notice which it is considered proper to require from him when the title is merely imperfect.^ " Granting that time was not originally of the essence, or that, if so, it had been waived by the appellant, yet, considering the nature of the projjcrty and the object for which, as must have been well known to the respondent, the appellant was seeking to acquire it, namely, for a speculative purpose, that is, in order to sell i'giiin at a jirotit, and that, therefore, it was of the utmost conse- quence to him that he should l)c promptly i)ut in a ])osition to take adviintage of a rise in the real estate market; the delay from the date of the contract on the 1st of August, 1888, to the date of the action on 2"^nd January, 188!), nearly six months, was most unreasonable. The rule which governs the Courts in giving ivlief by way of specific per- formance of agreements, even in cases in which time is not made of the essence of the contract, is that a ])laintitT; seeking such relief must show that he has l)een always ready and eager to carry out the contract on his part."'' When the agreement is incomi)lete, some matters being loft for future arrangement, the agroonuMit cannot be specifically enforced.' As to effect of delay after the parties to an agreement are at arm's length on the (|uostion of completion, see Iluxham v. Lle- wellyn,"' filashrook v. Hiohanlson.'*' (ronerally speaking, a Court of Equity will not enforce, on 1)0- half of a purchaser, a contract by trustees which amounts to a breach of trust, and of which the benoficiarios have a right to com|»lain as a breach of trust." ) 21 (for 1784) Lord 1872) ll v. ' Harris v. Robinson, (snitro) p. 401. ' lb. p. 402. ■' Harris v. Robinson, lb., per Strong, C..T., p. 403 ' Wllliston V. Lawscn, (1891) 19 S. C. R. 673. "(1873) 21 W. R. 570. "'(1874) 23 W. R. .'51. "Sea v. McLean, (1887) 14 S. C. R. 636, per Ritchie, C.J. 86 SPECIFIC PERFORMAXCE i: I !i I ^■ L Where trustees have a discretion to sell, and exercise it hona fide, their power to sell has been said to be complete and uncondi- tional as regards hona fide purchasers, whatever liabilities the trus- tees may incur towards their cestuis que iruslent if they act wrong- fully towards them." As to land described " more or less." * A contract revocable by the party against whom it is sought, to enforce it, will not be enforced; * nor if made without considera- tion.^" Fart Performance. Specific performance of an oral contract will be decreed on the " doctrine of part performance " whore the applicant has partly performed his part in the expectation that the other party Avould perform his part; ^ but the acts relied upon as part performance must be unequivocally and in tlieir own nature connected Avitli the agreement contended for,^ and on this basis ex- penditure, after being let into possession, has been held to be per- formance.3 It has been held in Nova Scotia that a parol contract, where executed on one side, may be enforced.* Cases in Which Specific Performance Decreed. Blakes- ley V. Whicldon " was a case in which there Avas a contract for the sale of the minerals under a given quantity of surface, at a certain ])rice, payable by instalment, the times of payment to be accelerated if more than a certain quantity of minerals sliould be gotten from time to time, wherein it was decided that the vendor inipliodly re- serves the power of entering and inspecting the mines, to ascertain the quantity of minerals from time to time gotten therefrom, and was en- titled to specific performance of the contnu-t, witli a covenant reserv- ing such ])ower in the conveyance. Wigram, \ X\, says:" ''The general principle of law that, where a person makes a grant of any given tiling, he impliedly grants that also which is necessary to make the grant of tlie i)rineii)al subject eiVectual, does not admit of dls- pute.'^ And this principle is carried to the extent, that the implied ' lb., per Tascheroau, J., p. 639. ' See lb. "Hucy V. Birch, (1804) 9 Ves. 357. '"Walrond v. Walrond, (1858) Johns. 18. 'Mundy v. Jolliffe, (1839) 5 My. & Cr. 177; Wigley v. Wigloy, (1877) 5 Ch. D. 887, C. A. = M.addison v. Alderson, (1883) 8 App. Cas. 467. v. Evans, (1875) 32 v. Currell, (1893) 25 » Williams L. T. 360. * Murdoch N. S. R. 293. ■•■ (1841) 1 Ha. 176. "P. 180. 'See Co. Litt. 56 n., 163 a.; 3 Com. Dig. 85, ed. 5; ' Purge Cora. 416; Pomfret v. Rlcroft, (1670) 1 Saund. 320, and notes. C0XTRACT8 87 grant entitles the lessee to whatever is necessary to the full enjoyment of the subject of the grant." * An agreement for the purchase of an estate may be specifically enforced, although an error of a trifling nature in the character of the property shall have appeared in the advertisement for sale." In lieywood v. Cope,^« Eomilly, M.R., said: ^ "The first objec- tion is upon the terms of the contract, which are said to be too vague to bo carried into eifect. Tlie words are these: Cope agrees with Haywood 'for those two seams of coal known as the two-feet coal and the three-feet coal, lying under lands to be hereafter defined in the Bank End lot near Norton; and H. agrees to let C. have the before- mentioned two seams, at the price before mentioned. It is said that this is an agreement to lease an uncertain quantity of land, and, therefore that it is too vague to be enforced. It is so, if this be the right construction of the contract. But, on the other hand, it is said the proper way to read it is this — as an agreement to lease two seams of coal, lying under the lands of the B. E. estate, the boundaries of which are to be hereafter described and defined. I think this is the correct meaning of the contract, and this appears to liave been the meaning of the contract attached to it by the parties themselves on both sides." " The next objection is the misrepresentation, or rather a sup- pression of the truth. It is shown that 20 years before the contract the plaintifl; worked these seams of coal, and then abandoned the work because it was not profitable. I think this objection also fails.'"^ '"'"The next question is was the ])laintitf bound to say that he had worked the mine, and that he had found it unprofitable. . . . It may turn out better, or it may turn out worse; and it is well known that leases and sales arc always made with reference to this circumstance." Held, that defendant could not, on that ground, reject it; and also that the mere inadecpiaey or excess of value was not a. ground for exercising the discretion oO the Court to refuse specific porformance. A question was raised as to Avhether the de- fendant had waived his right of objecting to the title, and Romilly, M.H., said: "* " I should not have thought that the possession of the mine was an acceptance of the title." "Senhoiise v. Christian, (1787) 1 'P. 146. T. R. .560. =P. 147. ° Smithson v. Powoll, (1852) 20 ' P. 149. L. T. 105. *p. 153. '"(1858) 25 Beav. 140. 88 SPECIFIC PERFORMANCE *-\ In Onions v. Cohen ° there was an agreement to grant a lease containing covenants by the lessor for quiet enjoyment, and by the lessee to rejiair. Mining operations had been carried on imderneath the surface, and it was alleged were damaging to the premises. The term being for seven years, and possession having been taken on the faith of having a covenant for quiet enjoyment, the lessor was compelled to execute a lease witli a covenant for quiet enjoyment. In Colby v. Gadsden " a delay from ^lay to December in filing a bill for specific performance, Avas held by Komilly, M.ll., not to be sufficient to deprive a vendor of his right to have tlie contract en- forctd. The purchaser was let into the receipt of tlie rents before completion and without payment of his purchase money. Great de- lay having occurred, and no payment having been luade to the ven- dor, he gave notice to the tenants, and prevented any further receipt of the rents by the i)urchaser, and it was held that the vendor was, nevertheless, entitled to performance, distinguishing Knatchbull v. Grueber.^ The doctrine "caveat emptor" applies to a representation that the property being sold stands on a very fine bed of antliracito coal, and the purchaser must inquire to what extent the coal has already been worked, he having known of some working. In Jefferys v. Fairs,* Bacon, V.-C, says: " The defendants con- lend that specific performance cannot be granted, and that thiiy are entitled to repudiate the contract because the plaintiff has not proved the existence of the mine under the demised property. 1 have no doubt, however, tliat mining agreements are not dependent for their efficacy upon any such rule as that. What is the bargain between the parties ? . . . All that it amounts to is a license to enter and search for the vein of coal, and make wliat they coidd of it. It has been said that a lease of minerals amounts to a sale and pur- chase out and out. In whatever sense that may be true, it can have no application to payment of a dead-rent, which is reserved in respect of tliis license to enter and search, and is payable whether tliere is a vein or not. . . . There is no analogy whatever to the case of a man selling shares which are utterly worthless, or a cargo of corn which had no existence. There is nothing like fraud on the part of the les- sor. The defendants have, in fact, got all they bargained for, which was the ihance of finding the vein of coal uiulcr the particular pro- '(1865) 2 H. & M. 354. (1865) 34 Beav. 416. '(1817) 3 Mer. 124. " (1876) 4 Ch. D. 452. CONTRACTS 81) perty. And a whole series of authorities shews tliat that is the true M'ay of looking at transactions of this kind. It is true that in some of the cases there was an executed lease, but that is an immaterial circumstance. The important point is, whether tlie defendants got what they contracted for," and specific performance was decreed. Morgan v. Worthington." A., to whom the owner of a quarry Jiad agreed to grant a lease, agreed " on helialf of himself and all persons interested to sell the quarry" to B.; that the lease agreed to be granted by the lessor should be granted as B. miglit direct. B., having refused to complete the purchase, A. brought an action for Bpecific performance, and in his statement of claim stated his agree- ]iient with the owner of the quarry, as well as tlie memorandum of agreement with B., and alleged that B. M'as aware of the nature of A.'s interest in the quarry, and had accepted the title. B. demurred, on the ground that the memorandum was not suflicient witiiin the Statute of Frauds. Held, that the memorandum was sufficient, but that a defence founded on the Statute of Frauds could not, since the Judicature Act, be raised by demurrer. In Bogart v. Patterson '" the defendant, who had some interest in gold lands, having discovered the owner of an outstanding title, em- ployed the plaintiff to buy up the Siime, agreeing to give the i)lain- tiff one-quarter of the land for his trouble on his paying one-quarter of the consideration, and to re-convey to the owner of such title another one-quarter part. The title having ])oen bought u]i, tlie defendant did re-convey quarter to the owner, but refused to carry out the agreement with the plaintiff. It was held, that the agreement was such as this Court would specifically perform, and decreed the same accordingly with costs. Gases in Which Specific Performance Not Decreed, in Xova Scotia, parol representations made i)revious to the written fontract are taken into consideration, and if they are material, and the defendant entered into the contract on the faitli of tliem, the contract will not be enforced, altliough plaintiff did not know them to be untrue.^ "Where an offer in writing was made, although not so stated, oi^ the basis of a term of credit spoken of between the parties prior to the offer being made, and it was accepted in writing as of a cash offer, it was held that the Court would not enforce it.- ' (1878) 38 L. T. N. S. 443. '"(1868) 14 Grant. 624. * Thomson v. Longard, R, E. D. 181. ' Omnium S. Co. v. Richardson, (1884) 7 O. R. 182. ill 00 SPECIFIC PERFOKMAXCE A letter containing an ofler written " without prejudice," means, " I make you an oU'er; if you do not accept it, this letter is not to bo iif'-ed against me." But when the oirer is accepted, the privilege is removed.^ In Waliccr v. JefTery," Wigrani, V.-C, said: " Ileaphy v. Hill," aiul Watson v. Eeid ^ are direct aiitliorities that if one of two par- ties concerned in a contract respecting lands, gives the other notice that he does not hold himself bound to perform, and will not perform, Ihc contract between them; and the otiier contracting party, to whom the notice is so given, makes no prompt assertion of his right to enforce the contract, equity will consider him as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the jierformance of tlie contract, and will leave the parties to tiieir remedies and liabilities at law." In Price v. Ciritlith,'* Knight Bruce, L.J., said:* " Cases may be conceived wliere a person who has contracted to convey more llian it is in his power to convey, ought to be decreed to convey what he can, either witli or witliout compensation, to tlie vendee for such part of tlie subject matter of the contract as the vendor is unable to convey. But a lease of an undivided interest in a colliery is a very different thing from a lease of a whole colliery; and, in tliis case, there is no evidence of improi)er conduct, or misrepresentation, or of the defendant G. having held himself out as capable of contracting for tlie whole, or, in fact, any otlier circumstance constituting a ground f(ir a decree as to one imdivided share alone." Williamson v. Wootton.'" Kindersley, V.-C, p. 214: "Both parties seem to have conceived that the way to work it out was by a conveyance of tlie surface, reserving the fee sim])le of the mines to the vendor, and an agreement for a lease of tlie mines witli proper stipulations. Then the question is, wJiat are tliose stipulations to be? In that state of tilings I could not force that lease on either party." The tendency of the Courts to restrict the exercise of its juris- diction in enforcing specific performance of contracts to those cases in which the plaintilf has lieen prompt in seeking liis eipiitable •■' (lb.) Following ro River Steamer Co., Mitchell's claim, (1871) L. R. 6 Ch. 827, 832. "■ (1842) 1 Hi\. 348. Ml 824) 2 Sim. & Stu. 29. (1830) 1 Russ. & My. 23G. 18.'-.1) 1 DeG. M. & G. 80. 1'. 1. " (1855) 3 Drew. 210. COXritACTS 91 leiiiody referred to in Soutlicomb v. Exeter/ is especially api)licaljlo to mining contracts.^ Alter a delay oi' four years specific performance will not in general be decreed in IS'ew JJrunswick.^ AUoway v. Braine ' was a case in which a person agreed to sell his share in a mine to another, and four months' afterwards agreed to siil it to a third ])erson, who paid i)art of the jjurchase money. In the following month the vendor, having given notice of repudia- tion to the purcluif^er in the first contract, conveyed to the second purchaser. No steps were taken by the first purchaser for 10^ years, wiien he instituted proceedings against the second ])urchaser a'one to have a declaration that he was a trustee and for a convey- ance; and it was held by Itouiilly, M.ll., that the right was barred 1/y lapse of time and laches. In Sharp v. Wright,'' an agreement for a lease provided, inter alia, for payment at specified rate " for all coals drawn out of the said scams before mentioned,"' and "a shaft rent" at a si)ecified rate. Also " the rent to l)e paid quarterly; the lease to be for a term of twenty-one years." In an action by the lessee against the lessor for specific performance of the agreement and the grant of a lease in accordance therewith, Itomilly, ^M.ll., says:" " On the con- struction ])ut on this agreement on behalf of the plaintilf, he was not bound to work at all during the twenty-one years, nnless he found it ])rofital)le; but I think the construction is that the plain- lifi' was bound to work it innnediately and continuously. . . . The case is this: The agreement expressly directs how the mine is to be worked, and the rent is made payable quarterly, clearly infer- ring that it Avas to be worked immediately." ^ And ^ *' it is not neces- sary to refer to the cases on tiiis subject, but I think that South- comb V. The Bishop of Exeter," goes much further than is necessary to enable the Court to say, in this case, that the bill must l)e dis- missed with costs." Walters v. ^Morgan '" was an action by the intended lessee in which specific i)erf()rmance was refused of an agreement for a lease of luinerals, where the intended lessee, being better informed tluin ' (1848) 6 Hare, 213. - Sharp V. Wriglit, (1859) 28 Beav. 150. 'Purvis V. Hume, (1856) 3 All. 299. * (1859) 26 Beav. 575. ■• (1859) 28 Beav. 150. "At p. 152. 'lb. ''At p. 153. " (1847) 6 Hare. 213. '» (1861) 3 DeG. F. & J. 718. 03 SPECIFIC PERFOIiMAXCE IJ the lessor as to value, brouglit to the lessor a loasc ready prepared, without previous negotiation as to the details of it, and induced tho latter to sign it, saying lie might trust to the projwsed lessee for making a i'air a]h)\vance if the minerals turned out more valuable than was siipposed. Campbell, L.C., expressly concurring in the doctrine of con- cealment and misrepresentation as laid down by Lord Thurlow in Fox v. ^Mackretli,^ and qualified by Lord Kldon in Turner v. ITar- vey,2 said:^ '' There being no liduciary relation between vendor and purchaser in the negotiation, the purchaser is not bound to disclose any fact exclusively within his knowledge which might rea- sonably be expected to influence the price of the subject to be sold. Simple reticence does not amount to legal fraud, however it may be viewed by moralists. lUit a single Mord, or ([ nuiy add) a nod or a wink, or a shake of the head, or a smile from the purchaser intended to induce the vendor to believe the existence of a non-existing fact, which might influence the price of the subject to be sold, would be sufficient ground for a court of equity to refuse a deci-ee for a specific IxM'formance of the agreement.'* So a fnrliori would a continu- ance on the part of the pm-chaser, better informed than the vendor of the real value of the subject to be sold, to ))ring tho vendor into an agreement without giving him the opportunity of being fully informed of its real value, or time to deliberate and take advice respecting the conditions of the bargain." In Lancaster v. De Trafford," Roniilly, M.R., said:^ "Unless, therefore, this boundary is settled by arrangement, the Court cannot define the mineral area to be inserted in the lease. It was not settled, and I cannot, therefore, enforce the specific performance of a con- tract in which the subject matter is not ascertained, and not capable of being ascertained, except by an arbitrary selection of certain limits." In Iliggins v. Samels,'' Sir W. Tage Wood, V.-C, says:" " There was a distinct representation of fact which the plaintifT, though ho did not believe it to be false, made without seeking the further in- formation which M-as M-ithin his reach, and which would have shown him that the statement was not true. After this, notwithstanding ' (1789) 1 Ves. Jr. 69. = (1821) Jac. 169. ' At p. 723. * This statement of the law Is cited with approval in Turner v. Green, (1895) 2 Ch. 209, by Chitty, J. " (1862) 31 L. J. Ch. (N, S.) 554, ' At p. 556. » (1862) 2 J. & H. 461. •At p. 469. COyTRACTH 93 Dvtain [rUero Igh ho lev in- Lliown Inding Shitty, 554. the inspection nindo hy the defendants, it wonhl not be ri.irlit for tliis) Court to enforce perfcrniance." J'liillips V. Jlouifray.'" Tlie owners of a colliery entered into a contract with an adjoining landowner for the purchase of his estate, \\ithout disclosing the fact, of which he was ignorant, that they had, witiioiit authority, gotten a considerable quantity of coal from un- der it. It was decided, affirming the decision of Stuart, V.-C, that the Court would not enforce the contract at the suit of the purchasers, thouiih the sale was not shown to be at an under value. Lord Ilatherley, L.C., said:^ According to the principle of Mar- tin V. Poiter,2 the vendors are entitled to bo paid for the coal wrong- fully severed a sum much greater than its value while iingotten. 1 do not think it possible for a person in any case secretly to subtract fioui his neighbor's property, and then to bind him by an agreement for the sale of the i)roperty without communicating to him the fact of the encroachment. Fraudulent concofilment is a defence to an action for specific performance, but where there is no duty to make disclosure, mere silence will not anioiint to fraudulent concealment. AUud est celare, alivd tacere. While the party deceived may by acquiescence -- waive the fraud on the principle that vigilantibus non ilormienlihus jura sulnniitnt, it is no answer to a charge of fraud that the party de- ceived had the means of discovering the truth. Xo man can com- plain that another has too implicitly relied on the truth of what ho himself has stated." In re liuddy's Trustee v. Peard,^ Kay, J., says: " Taking the familiar illustration, if the agent becomes from his employment aware of the existence of a coal mine under his employer's land, of which the employer is ignorant, though he could not purchase from the emph)yer without disclosing that, it was said ho might do so from his trustee in bar^-ruptcy. T entirely dissent from that align- ment. The test is whether the purchase would be a beneiit obtained to the prejudice or at the expense of the client." Rescission. A contract cannot be rescinded Avhere the purchaser does not rely on the vendor's statements, but tests their accuracy, and after having knowledge, or means of knowledge, declares his satisfac- tion as to the correctness of the statements. If, on the treaty for the "0871) L. R. 6 Ch. 770. ' At p. 780. » (1839) 5 M. & W. 351. -■' Vlgers v. Pike, (1840) 8 CI. & F. 562. ■-' Reynell v. Sprye, (1852) 1 Df G. M. & G. 710; Kisch v. C antral Ry. Co. of Venezuela, (1867) L. R. 2 E. & I. 99. ' (1886) 33 Ch. D. 520. ■ 04 «/?.«? rv.vs/o.v salo of property, tho vondor ninkcs roproscntntions whii-li ho knows to 1)0 I'll Ific, the i'lilsuliood dl' wliioli tlic piircliiiscr litis no iiic'iins ol' know- ing, but upon which he relies, tho contract will ho rescinded, tli<)uj,'h it may not contain the iiiisrepresontalioiis, l»tit not without the denr- ost jtroof of fraiidiik'iit niisroproscntalions, and tiiat tlioy were made nndor such circiinistaiicos as siiow that tiio contract was hascd on them. li' n purcliasor, choosing' to judj^o for himself, does not avail himself of tho knowledge or means of knowledge open to him or his agents, he cannot he hoard to say he was deceived l»y the vendor's ropresentations, the rule being rairat cm plot; and tho knowledge of his agents as binding on him as his own knowledge. In Attwood V. Small* a i'anit in a mine was concealed, being blocked up with rubbish. The imrchaser (or his agent), before inspecting the mine, had asked: " Ts there any fault m the mine ?'' to which the vendor had answered, " God knows; if you go down yon will see all that T know." On seeing the rubl)ish which concealed the fanlt the juirchasor asked, "What is the meaning of this rul)l)ish; why do you not got the coal foinul in that direction ?" And was answered "We do not wish to work in that direction; we have got (piite coal enough." It appears that the jnin-haser would have been entitled to relief had he not subsequently waived his right by his conduct.' Misrepresontations, to constitnio sulTiciont grounds for setting aside a ]mrcbase, must bo material, as being of such a nature as, if true, to add to the value, must not be evidently merely conjectural statements. Where advertisements for the sale of shares in a mine had been issued containing unfounded statements, but tho ])urcbaser had not relied uj)on them, and had bad opportunities of judging of their accuracy; it was hold by the Lords Justices that he was not entitled by reason thereof to have the contract rescinded." In suits to rescind contracts for fraud, ])articularly where the subject is of variable value, it is the duty of tho comidainant to act at the earliest ])ossibk' period."' Lord Justice Knight liruco say^: ' "The defendants, whether admitting or denying any misrepresenta- tion, are entitled to the apidication and ])rotection of the princijilos on which Dyer v. Tfargravo * was decided by Sir W. Grant. It makes no difference in substance for the present purpose, at least, in tho « (1838) 6 C. & F. 232. "Smnll V. Attwood, (1838) You. 407, at p. 490; (1838) 6 CI. & F. 232, at p. 357. ".Jennings v. Broughton, (1853) 5 Do G. M. & G. 12(5. •>' lb. 'At p. 131 (ib.). » (1805) 10 Ves. 505. coxrit.WTs 95 le tlio o net m the (1853) lilaintiirs I'nvor, that Dyer v. llargravc was u onso of «|)oeilic perl'orin- nnco and this a rescinding bill. I desin- to l)c iindesrstood as at onto giving my o[)inion against tlio phiintilf witli regard to every * oljjcet of sense' whieh, on either visit to tlie mine, lie may, as an ediieated man of ordinary intelligence, having the use of his eyes, his miml on the alert, and liis interest awakened, he reasonably taken (whutlivr much or little of a workman or a |)hilosoj)her) to have observed; and nothing that I shall say is to be received or interpreted as extending to any such matter." Lapse of time and omission to ajiply promjjtly may render it imposcible to obtain rescission. In Price v. North " the Court said;'" " One reason is that the i)urchaser, upon the faith that ho has ol)- tained the benedt of his contract, may have laid out large sums of money on the i)rennses, and to say timt in four years afterwards the Court might niter the interest in the jiroperty would be to say that the Court might do it after any indefiivte time."' Tn Ik'll v. .Macklin,'-! Strong, J., si id:"' "The i»laintilT having taken a conveyance, and having no contract entitling hin\ to com- pensation for dedciency,' is restricted to such relief as he may l)c able to obtain on the covenants for title contained in his purchase deed, or to relief by way of rescission for fraud"; and ' '' in the late case of l?rownlie v. Camjdx'll," Lord Sell)orno and Lord lUackburn both lay it down most distinctly that after a conveyance of land has been executed, nothing in tlie way of misrepresentation, short of .ictual positive fraud, will warrant a judicial rescission between vendor and ])urchnscr. What amounts to actual fraud in the way of misrepresentation is hardly susceptd)le of abstract definition. It certainly does appear from the authorities, that, as regards executory contracts, innocent misrepresentation may be a ground for rescission;^ while an action for deceit is not maintainable unless there is actual moral fraud, as is well demonstrated in the judgment of this Court in the case of Petrie v. Cuelph Lumber Co." * •(1837) 2 Y. & C. '» At p. 627. 620. ' See also Cottingham v. Cotting- ham, (1885) 11 A. R. 624. ■' (1887) 15 S. C. R". 576. «P. 579. * Jolliffe V. Baker, (1883) 11 Q. B. D. 255. » At p. 581. " (1880) 5 App. Cas. 925. ' Arkwright v. Newboukl, (1881) 17 Ch. D. 320; Reese River Mining Co. V. Smith, (1869) L. R. 4 H. L. 64; Redgrave v. Hard, (1881) 20 Cli. Div. 1. "(1885) 11 S. C. R. 450; Smitli v. Cliadwick. (1884) 9 App. Cas. 187; Dcrry v. Peek, (1888) 14 A. C. 337. 96 RESCISSION As regards the defence to an action for specific performance, which dejjends on principles altogetlier different from an action for rescission, it has long been settled that honest misrepresentation, free ' 1 om all taint of fraud, will constitute a defence. The case of Brownlie v. Campbell (supra), however, warrants the proposition that whatever may be the rule ap])lical)le to other executed contracts, a contract for ^ale of land, executed by conveyance, and especially when the conveyance is preceded by a preliminary agreement in writing," is governed by ditferent principles fi'om those which regulate the same relief as applied to an executory contract requiring something to be esiablished beyond mere innocent misrepresentation, namely, that there was either conscious falsehood on the part of the person making the rejn-esentation, or that it was made by a person who ought to have known the fact, to one who had a right to rely on the accuracy of his statement, recklessly, and without caring whether it was true or not.'" In other words, a party who seeks to set aside a conveyance of lands executed in pursuance of a contract of sale for misrepresentation, relating to a matter of title, is bound to establish fraud to the same extent and degree as a plaintiff in an action for deceit.'^ In addition to the falsehood of the representation, some- thing more must be proved.'- In the words of Sir W. V. Wood, V.-C, in Barry v. Croskey,' it must also be established " that such false representation was nuule with the intent that it should be acted upon by the person to wliom it was made. And, further, that such person did act upon it accordingly, and from so doing suffered an injury, which was air immediate and direct, and not a remote, consequence of the representation." After a contract is perfected by conveyance the purchaser is con- fined to his remedy upon the covenants, or, in a proi)er case, where he applies lu-omptly, to a rescission of the contract.^ 'J'o obtain rescission of an executed contract a clear case of fraud must be established.''* three defendants In :May v. ]\IcAr jointly and severally. given agai •McCulloch v. Gregory, (1855) 1 K. & J. 286. '" Edgington v. Fltzmaurice, (1884) 29 Ch. D. 459. " Si'e and cf. Cameron v. Cam- eron, (1887) 14 O. R. 561, p. 580-5. •"P. 582. ' (1861) 2 J. & H. 1. = Follls v. Porter, (1865) 11 Grant, 442; Penrose v. Knight, (1879) Cassels Dig. 777. ' Hutchinson v. Calder, (1885) Cassels Dig. 786. * (1884) 20 C. L. J. 248; 4 C. L. T. 336. CONTRACTS 97 5 r le at a en the cly, fson who Lthe er it idc a ic {or lUish )n ior somc- v.-c, fa\se \ npor- person injury, L^xienec is con- wherc ){ {rand tcndants In New Brunswick a person indncecl by fraud to enter into a contract C;\nnot, after he has acted under it, so that the parties can no longer be placed in stahi quo, avoid the contract.^* Where parties have entered into an illegal contract, cither of them may rescind it if executory," but tiie election so to do must be notified to the other party in due timeJ After rescission, the contract is at an end, and all rights there- under and remedies thereon end therewith, except that in case the default is by the purchaser, damages for the breach of the contract may be sought by the vendor." Cases in Which Rescission Was Decreed. In Macbrydc v. Weekes,* there was a contract, dated 4th October, to grant a mining lea>'e, and no time was mentioned for completion. On lOtli Decem- ber following the intending lessee notified the intending lessor to the following effect: " I hereby require you to perform and complete, within one calendar montli from the day of the date hereof, your part of the agreement in writing, entered into by you with me, bearing date the 4th of October last, and signed by you; and I hereby offer to perform my part of the said agreement within the time aforesaid, on you performing your part thereof. And I hereby give you notice that, in default of your performing your part of the said agreement within tho period aforesaid, I shall consider the said agreement at an end." Sir John Romilly, M.R.," said: " This, in my opinion, is one of thos3 cases in which time was, from the nature of the ])ropcrty, neces- sarily of the essence of the contract, in this sense, and to this extent, that it Avas incumbent on tlie owner to use his utmost diligence to com])lete his i)iirt of the contract, and that if he failed in so exerting himself, the defendant might decline having anything further to do with the matter. The subject of the contract was in part a lease for working a mine; which is a trade of a fluctuating character, and obviously coming within the principles laid down in the cases cited of Parker v. Frith,>« Wright v. Howard,^ Coslake v. Till,^ and Walker v. Jeffreys,'' and several other cases." 1.1 Grant, it, a8^9> Ir, (1885) C. !-• '*'• "Lloyd V. Union Ins. Co., (1875) 2 Pug. 498. • Taylor v. Bowers, (1876) 1 Q. B. D. 291, C. A. ' Palynrt v. Leckle, (1817) 6 M. & S. 290. " Icely V. Grew, (1836) 6 Nev. & 7-M M. 467; Fraser v. Ryan, (1897) 24 A. R. 441. 444, per Boyd, C. » (1856) 22 Boav. 533. • At p. 539. "• (1819) 1 Sim. & S. 199 a. •(1823) 1 Sim. & S. 190. = (1826) 1 Riiss. 376. " (1841) 1 Hare, 341. 98 RESCISSION * " What constitutes a reasonable notice, anil a reasonable time to be fixed in it, must depend upon the contract, and the circum- stances of each case "; and the notice above set forth was held justifiable and sufficient. In Gibbons v. Cozens,** the contract for sale provided for pay- ment of the purchase money on tlM! 1st June, 1888. Tl"^ defendant paid ])art and gave security for payment of tlie bain e within a period which expired before this action was brought. . 'le plaintifC realized on the security, and on 2nd Marcii, 189G, recovered judgment against the defendant for the balance, about £1,000, upon the pro- mise to pay contained in the agreement. The defendant had been in possession of the property and had allowed taxes to a large amount to accumulate. On 9th April, 1897, plaintiff served defendant with notice that unless the balance, with interest, was paid by 29th May, 1897, defendant's right under the contract would be at an end, and his interest in the land forfeited, and declaring time to be made of the essence of the contract. The defendant had paid no further sum in respect of the contract. The action was brought for a declaration that the defendant's right to the land was at an end, and to have tlie registration of the contract vacated. It was held that the judg- ment recovered by the plaintiff did not affect the right to terminate the contract in case of inability to recover on the judgment, and that the plaintiff was not bound to return to the defendant payments made on account of the purchase money, as a condition or a result of cancelling tlie contract. The deposit as well as the payments on account, are looked upon as a guaranty that the purchaser will com- plete his contract, and are forfeited if he does not do so. Upon the question of whether the defendant was entitled to re- quire the plaintiff to make out a title to the lease in question, the contract being silent on the subject," the Master of the Rolls says: " As a general proposition of law, in the absence of contract or wai- ver, this is not, and cannot be disputed." Time may be of the essence of a contract, even without any ex- press stipulation, if it appears that such was the intention."** In Pcrens v. Johnson; Johnson v. Perens," where the solvent partners in a coal mine, before the sale by a sheriff of the share of ♦ At p. 543. "(1898) 18 C. L. T. 179, per Street. J. » See p. 545 (ib.). "Oldfleld v. Dickson, (1889) 18 O. R. 188; see Crossfleld v. Gould, (1883) 9 A. R. 218; Dainty v. Vldal, (1886) 13 A. R. 47. • (1857) 3 Sim. & O. 419. r CONTRACTS 99 on insolvent partner, on an execiition issued against liim, removed the gear and prevented access to the coal mine through the shaft, and removed ironstone, which liad heen newly raised, so as to present it being known that the seam of coal was almost reached, and then bid for and became the purchasers of the share \. uler execution, and a few day's afterwards, on one day's working, discovered tlie seam of coal, it was held by Sir Jolin Stuart, V.-C, that the purchase must be set aside, and on repayment of tlie purchase money tliey were de- clared to be trustees of the sliare for the partner, although he had, without notice of the conduct of tlie purcluisers, received the balance of the purchase money from the sherilTJ AVherc one of the articles of a contract provided that the estate as to the extent of acreage should be taken to l)e conclusively shown by certain deeds, Lord (!airns, L.C, for the Court, held that this was merely a conveyancing condition as to identity, and tliat, coupled with the representation as to acreage (which was that the estate contained 1,530 acres, when, as a fact, it contained less than 1,100 acres), it did not estop the purchaser from rescinding on the ground of deticiency in acreage.* Where the misdescription, although not proceeding from fraud, is, in a material and substantial point, so far affecting tlie subject matter of the contract that it may reasonably be supposed tliat, but for sucli misdescription, the purchaser might never have entered into the contract at all; in such case the contract is avoided altogetlier, and the purchaser is not bound to resort to a clause of compensa- tion." Delay and other circumstances may be sufficient to prevent re- scission.^" Where tlie vendor sells ])ro])erty, describing it as of a certain area, and the price is fixed on that supposition, and it afterwards turns out to exceed that area, he cannot, after conveyance, have re- scission or payment of the difference.* Notwithstanding conveyance the parties may resort to any .Uilt ■;!fil ' See also Crawshny v. ColHns, (1508) 15 VoB. 218; Featherstnn- haug'h V. Fen wick, (1810) 17 Ves. 298; Wilson v. Greenwood, (1818) 1 Swanst. 471; Goodmnn v. Whit- comb, (1820) 1 .T. & W. 5189. " Abernman Iron Works v. Wick- ens, (1868) 4 Chy. 101. •Flight v. Booth, (1834) 1 Blng. N. C. 377. per Tindal, C.J.; Price V. North, (1837) 2 Y. & C. 620. '"Okill V. Whittaker, (1847) 1 DeG. & S. 83. ' Okill V. Whittakor, (1847) 2 Phil. 340; but see Baxendale v. Scale, (1854) 19 Beav. 601; Durham V, Legard, (1865) 34 Beav. 611. E^'l 1 i I i I 100 nESCIl^FHON provision for compensation for a misstatement contained in the con- tract.2 Eelief lias been granted because more or less land passed tlian was contracted for, e.g., where the sale was of a strictly defined area, and in laying off the quantity by measurement, the surveyor errone- ously included a larger area by metes and bounds; and where part of the land contracted for by a particular was omitted.' And where the conveyance comprised more land than the vendor intended to deal with, as where the sale was of property A, and by mistake part of B was conveyed as well as A; * and where the mistake was caused by even an innocent misrei)rcsentation of the party, or an agent of the party, seeking to take advantage of it, and there has been no negligence on the part of the other party.^ In Gib!)s v. David," Malins, V.-C, following Boehm v. Wood.^ appointed a receiver until the hearing, in a suit by a purchaser of a coal mine, to rescind the contract on the ground of fraudulent mis- reprcficntation, it being essential that the mine should be kept in a going state. The application was made by the purchaser, who was in possession of the colliery. In Wrayton v. Naylor,* Strong, C.J., says:" " Where a vendor rejiiuliates the contract, and distinctly refuses to make out a good title, after having been repeatedly requested to do so by the pur- cliaser, . . . the purchaser is not bound to wait, but may at once treat the contract as rescinded. When, however, the vendor merely delays to show a good title, and time is not either by the terms of the contract or from the circumstances of the case, of the essence of the agreement, the purchaser is required to wait a reasonable time for a title to bo shown." In Xew Brunswick it is the duty of the vendor of lands to pre- pare and tender the conveyance. Where the agreement was to give = Cann v. Cnnn, (1850) 3 Sim. 447; Phelps v. White, (1880) L. R. 5 Ir. 318; Palmer v. Johnston, (1884) 13 Q. B. D. 351; Cottinghttm v. Cott- ingham, (1885) 11 A. R. 646, per Osier, J. A. » Lenty v. Hillas, (1858) 2 DeG. & J. 110. 'Tyler v. Beversham, (1673) Rep. temp. Finch, 80. 'Carpmael v. Powis, (1847) 11 Jur. N. S. 158; (1846) 10 Beav. 36; Garrard v. Frankel, (1862) 30 Beav. 445; Harris v. Peporell, (1867) L. R. 5 Eq. 1; Bloomer v. Spittle, (1872) L. R. 13 Eq. 427; Paget v. Marshall, (1884) 28 Ch. D. 255; Gun v. Mc- Carthy, (1883) 13 L. R. If. 304; Jones v. Clifford, (1876) 3 Ch. D. 179, 791. " (1875) L. R. 20 Eq. 373, 377. '(1880) 2 Jac. & W. 236. " (1895) 25 S. C. R. 295. " At p. 298. !> i CONTRACTS 101 D. a clear title and an incumbrance was not removed at the time limited for giving the deed, it was held that the purchaser could treat the contract as rescinded, and recover his deposit, though he knew of the incumbrance at the time of the sale.*" In Nova Scotia an agreement for sale of lands, good under the Statute of Frauds, may be rescinded before breach of it, by parol, provided there is a total abandonment of the whole contract, and not merely a partial waiver of some of its terms; nor does the validity of fcuch rescission depend on the existence of a consideration.* The purchaser is entitled to a return of his payments.^ In order to recover back money paid under an agreement for sale of land, on the ground of failure of consideration, plaintiff must give evidence of the terms of the agreement to entitle him to re- cover.^ In Xorthrup Mining Co. v. Dimock,* the purchasers of a mining proi:erty, on account of fraud between tho vendors and promoters of the plaintiff company, were held entitled in Nova Scotia to recover back the proportionate amounts contril)uted l)y them to make up the sum of $30,000 received by the defendant and his associate. In an Australian case, shares in a mining company having been purchased for cash on a Thursday, and not paid for on Saturday morning following, application for the completion of the purchase having in the meantime been made, the seller rescinded the contract and rejected subsequent offers of payment. In an action by the pur- cluiscr against the seller for damages for breach of contract, the jury found for the defendant. Held, on motion for new trial, that the verdi( t ought not to be disturbed, as tlie jury were justified in find- ing tliat a reasonal)le time had elapsed for the completion of the con- tract Ijcfore its rescission.** Eescission of course cannot be had if the parties cannot be jdaced in stalu quo.*- Cases in Which Rescission Not Granted. In Ernest v. Vivian," Kindersley, V.-C, said:" "The subject matter of this suit ■"Taylor v. Burnett, (1880) 20 N. B. R. 165; 4 Pug. & Bur. 165. ' Barclay v. Proas, (1878) R. E. D. 317. -Campbt'll v. Henderson, (1857) 2 Thorn. 335. "McDonald v. McDoaald, (1853) Jnnies, 41. * (1895) 27 N. S. R. 112. "Musto.i V. Blake, (1872) 11 N. S. W. S. C. R. (L.) 92. '-' Ladywell Mining Co. v. Brookes, (1887) 35 Ch. D. 400; The Cape Breton Case, (1885) 29 Ch. D. 795; in Appeal, Bentlnck v. Fern, (1887) 12 App. Cas. 652; Re Am- brose Lake Tin and Copper Min- ing Company, (1880) 14 Ch. D. 390; Groat Luxembourg Railway Co. V. Maguay, (1858) 25 Beav. 586; Lindsay Petroleum Co. v. Hurd, (1874) L. R. 5 P. C. 221. ' (1864) 33 L. J. Ch. 513. "At p. 517. ft' ill I 102 RESCISSION is the right to mines. Mining operations are of a particular charac- ter; they are an uncertain and speculative and hazardous adventure. That observation applies more especially to mines unopened or re- cently commenced, the expense of which is only compensated by a long course of successful working. It is true, as to every mine, that the preliminary outlay, though the heaviest, is not the only one, for a large capital and an expenditure to a serious amount is necessary to meet the exigencies of the case. There is also a continual and an increasing risk, for a mine prolitable to-day may to-morrow become worthless. Similar observations have been nuide by otiier Judges. Xow, if a person has a just right to mines of which he is not in pos- seirsion, as against those who are in possession of and working them, and if he claims to be the rightful owner (the person in possession being aware of his rights, or supposed rights), if such owner, being prevented by fraud or concealment, stands by for a long period of lijye V liilst those in possession are working the mines, the Court will not lend him any assistance. Whatever remedy he may have at law, he can have none here, because it is not equitable to allow him to wait until it is ascertained that the persons in possession have suc- ceeded or may have been ruined; and if the subject result in profit to ask to i)ut that in his pocket; if in loss, to repudiate the loss. It is not necessary, even if possible, to prove whether he acted from premeditated design or carelessness." "Where a trader sold a solvent business to a limited company with a nominal capital of 40,000 shares of £1 each, the company, consisting only of the vendor, his wife, a daughter and four sons, who subscril)ed for four shares each, all the terms of sale being known lo and approved by the shareholders, it was held that tlie li([uidator suing in the name of the company, was not entitled to rescission of the contract for purchase."* In Dicconson v. Talbot,^ Sir E. Mellish, L.J., says, at p. 38: "Ever since Howard v. Duncan,** it has been considered as settled law that a sale cannot be impeached merely on the ground that the purchaser is a tenant for life, Avhose consent was requisite to the sale, and we should be doing wrong if we were to throw the slightest douI)t upon it." Where a person, knowing that he has no title to the property, or to a material or essential ])art of it, and, knowing that the person with whom he is contracting is perfectly ignorant of the title, con- I i "• Salomon v. Salomon, (1897) A. C. 22, called " The one-man company case." ' (1870) L. R. 6 Chy. 2. (1821) 1 T. R. 81. CONTRACTS 108 tracts to grant a lease, the lessee may, on the ground of fraiid, re- scind after completion, even though there has been no alfirmative statement made as to the title." The absence of title to the minerals is an essential defect.^" If however, there are no minerals, the defect, so far from being essential, is not even material.^ Promoters of Company. As to persons who purchase property and then create a company to purchase from them the property they have so purchased.* The duties of a promoter, who purchases property with the in- tention of selling it to a company to be formed, are pointed out by Strong, C.J.,* to include the obligations of selling for a price not exorbitant; concealing nothing that it was proper the directors of the company should know in order to form a fair judgment as to the value of the property; making no misrepresentations of facts material to the purchase; contracting through the medium of a board of di- rectors who are entirely independent, comprised of persons who are free from the influence of the promoter, not mere instruments, sub- ject to his dictation and subservient to his interests; and with such a board he must deal at arm's length. " See Mostyn v. West Mostyn, etc., (1876) 1 C. P. D. 145. " Upperton v. Nicholson, (1871) 6 Ch. 436. • Lyddal v. Weston, (1739) 2 Atk. 19; Martin v. Cotter, (1846) 3 J. & L. 496, 509. = See Phosphate Sewage Co. v. Hartmont, (1875) 5 Ch. D. 394; Er- langer v. New Sombrero P. Co., (1878) 3 A. C. 1218; Bagnall v. Carlton, (1877) 6 Ch. D. 371. Where the owners of a mine worth £6,000 sold it to a trustee for an intended company for £24,000, to be paid In shares, it was held that the com- pany, or the liquidator, could not make the owners of the mine account for the difference between the nominal value of their shares and the actual value of their inter- est in the mine. The remedy was stated by Cotton, L.J., to be a re- medy of each purchaser of shares, if any such there were, who were deceived by the representations. In re Ambrose Lake Tin and Cop- per Mining Co., (1888) 14 Ch. D. 390. ' In re Hess Manufacturing Com- pany, Edgar v. Sloan, (1894) 23 S. C. R. 667, m CHAPTEK IV. LICENSES. L i 1 A license properly passes no interest and does not alter or trans- fer property in anything, '' l)ut only makes an action lawful which without it had been unlawful." ^ An exploring license docs not pass the jn'opcrty in the minerals found by a prospector exploring thereunder.^ Nature of. A license when coupled with an interest is not re- vocable, but as pointed out in Doe v. Wood ■*' the licensee has " no estate or property in the land itself, or any particular portion thereof, or in any part of the ore, metals, or minerals, ungot therein; but he had a right of property only, as to such part thereof as upon the liber- ties granted to him should be dug and got." *' That," says Abbott, C.J., " is no more than a mere right to a ])ersonal chattel, when obtained in pursmincc of incorporeal privi- leges granted for the purpose of obtaining it." ' The right to dig mines is incori)oreal, and quite different from the corporeal right to mines themselves. Lindloy, L.J., says in Sutherland v. Ileathcote,* " A right to work mines is something more than a mere license; it is a profit a prendre, an incorporeal hereditament lying in grant. The distinc- tion between a license and a profit a prendre was pointed out in Wickham v. Ilawker."* Such a profit a prendre is an interest in land within the meaning of section 4 of the Statute of Frauds." •Per Vaughan, C.J., In Thomas V. Sorrell, (1706) Vaugh. 351. » In re Haven Gold M. Co., (1881) 20 Ch. Dlv. 160. =' (1819) 2 B. & Aid. 739. » Norway v. Rowe, (1812) 19 Ves. 158; Cheetham v. Williamson, 4 East, 469. « (1892) 1 Ch. 483. " (1840) 7 M. & W. 78. ' Webber v. Lee, (1882) 9 Q. B. D. 315. LICEXSES 105 Revocable or Irrevocable. In the classical case of Wood v. Lead- bittor,3 Alderson, J}., says: * " A mere license is revocable; but that which is called a license is often something more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed, that a license under seal (provided it be a mere license) is as revocable as a license by parol; and, on the other hand, a license by parol, coujded with a grant, is as irrevooal)lc as a license by deed, provided only that the grant is of a nature capable of being made by parol. But whore there is a license l)y parol, coupled with a parol grant or pretended grant, of something which is incapable of being granted otherwise than by deed, there the license is a mere license; it is not an incident to a valid grant, and it is therefore revocable." ^ In McKenzie v. Mctilaughlin," Kosc, J., after stating the i)ropo- sitions of law established by Wood v. Leadbitter, says: " If the agreement set \\]) by the defendant amounts to the grant of an ease- ment or incorporeal right, then it should have been under seal, and not being under seal the license thus set up by the defendant is a parol license not incident to a valid grant, and hence is revocable; and the fact that it M-as for consideration and for a term certain would make no ditTerence."^ In Wallis v. Ilan-ison " it was held that a parol license from A. to B. to enjoy an easement over A.'s land is countermandable at any time whilst it remains executory, and if A. conveys the land to another the license is determined at once without notice to B. of the transfer, and B. is liable in trespass if he afterwards enters upon the land." In Xcw Brunswick it has been hold that an easement cannot bo created by parol, and that a parol agreement therefor would be do- ierinined by a conveyance to a third person by the party agreeing to give the easement.**' ' (1845) 13 M. & W. 838. * At p. 844. ° Tho King v. Inhabitants Horn- don-on-the-Hill, (1816) 4 M. & S. 561; McKenzie v. McGlaughlin, (1885) 8 O. R. 115. » (1885) 8 Ont. R. 116. 'Ross V. Fox, (1867) 13 Gr. 683; Adams v. Andrews, (1850) 15 Q. B. 284. » (1838) 4 M. & W. 538. » Ramsden v. Dyson, (1865) L. R. 1 E. & I. App. 129; Hydo v. Gra- ham, (1862) 1 H. & C. 593. "Brewing v. Berryman, (1873) 2 Pug. 115; Gesner v. Cairns, (1853) 2 Allen. 595. ■■■■■ MiMa 106 UEVOCADLE OR IRREVOCABLE In another New Brunswick case, Gesner v. Cairns,* it was held that a license from the Crown to dig minerals in granted land where tile mines are excepted out of the grant will not justify an injury to the surface soil; and a jjarol license from the owner of the land in which the mines are excepted, to the grantee of the mines to enter and dig them, vests no estate in the licensee, and is revoked by a con- veyance of the land to a third person. It was also decided that such a license is no breach of the im- plied warranty in a deed of bargain and sale.^ In riimmer v. Wellington,^ a license to construct a jetty at first revocable at will was held to have become irrevocable after the licen- 6ce had at the request of the licensor, expended a large sum for the intrusion of the jetty. liOrd Ilobhouse says at p. 714: " The consequence is that riirn- mer acquired an indefinite, that is practically a perpetual, right to the jetty for the pur])oses of the original license, and if the ground Mas afterwards wanted for public purposes, it could only be taken from him by the Legislature. An analogy to this process may be found in such cases as Winter v. Brockwell * and Liggins v. Inge.'' These cases shew that where a landowner permits his neighbor to execute works on his (the neiglibour's land), and the license is exe- cuted, it cannot be revoked at will by the licensor. If indefinite in duration, it becomes jierjietual. Their liordships think that the same consequence must follow where the license is to execute works en the lands of the licensor, and owing to some supervening equity the license has become irrevocable. "... The equitable right actpiircd l)y John Plimmer is an interest in land."' In Davies v. Mar- shall," Williams, J., says: '" 1 do not accede to his suggestion that Winter v. Brockwell, and Liggins v. Inge, are overruled or sliaken by the judgment of Lord Wensleydale in Wood v. Lead])itter." In Morgan v. Lailey," Richards, C. J., says that, " if the owner of the dominant tenement authorizes an act of a pernument nature to be done on the servient tenement, the necessary consequence of which is to prevent his future enjoyment of the easement, it is thereby extinguished. And, ])rovided the authority is exercised, it is immaterial whether it was given by writing or by iiarol.'" ' (1853) 2 Allen. 595. ■ Compare this with Esquimault & Nanaimo Ry. v. liainbridge, (1896) App. Cas. 561. •• (1884) 9 App. Cas. 699. * (1807) 8 East, 308. = (1831) 7 Bing. 682. "(1861) 10 C. B. N. S. 711. ' (1873) 33 U. C. R. 375. LICENSES lor In City of Toronto v. Jarvis,* referring to a parol agreement au- thorizing the licensee to construct an underground drain through tho jirojjerty of the licensor, Strong, C.J., says at p. 2-13: "If it was a mere license it would luive been revocable at first, but if not counter- manded before money luul ))ecn expended in the execution of tlie ]>urpi)se for whicli it was conferred it would have by that expenditure become irrevocable, aiul therefore an interest in land '' to whicli tho l{egistry laws apply." In Kerrison v. Smith ^" it was held that a licensee may have a right to maintain an action for breach of contract, if a license is revoked altlioiigh tliere is a right to revoke the license.^ Deed Necessary. To create or transfer an incorfjoreal inherit- ance all'ecting land a deed is said l)y Alderson, B., in Wood v. Lead- bitter,' to be indispensal)ly requisite. The principle does not depend on the quality of the interest granted or transferred, but on the nature of the subject matter. A right of common which is a profit a prendre, or a right of way which is an easement, can no more be granted or conveyed for life or for years witiu)ut a deed than in fee simple.^ Assignability. In Muskett v. Hill " it was held that a license to search for and raise minerals, and also to carry them away and convert them to the licensee's own use, passes an interest which is capable of being assigned. Tile riglit to assign may, in some circumstances, be subject to the limitation pointed out by Hpragge, V.C.,'" that w'here " the skill, knowledge, solvency, or other ])ersomil quality of a party with whom an agreement is made . . . may reasonaljly be considered as a material ingredient, there the contract can be performed by him alone; no assignee can claim the benefit of it." The Distinction Between a Lease and a License was much dis- cussed in Lynch v. SeyiiHuir.' The written instrument there in ques- tion under wliicii the lessor claimed a lien on the goods of the les- sees for a year's rent l)y virtue of 8 Anne, c. 1-1, s. 1, M-as by the ' (1895) 25 S. C. R. 237. "See, however, Chelsea Water- works Co. V. Bowley, (1851) 17 Q. B. 358. " (1897) 2 Q. B. 445. ' Smart v. Jonos, (1864) 15 C. B. N. S. 717. ' (1845) 13 M. & W. 842. 'Fentiman v. Smith, (1803) 4 East, 107; Howlins v. Shippam, (1826) 5 li. & C. 221; Co. Litt. 47 a.; McKenzio v. McGlaughlin, (1885) 8 Ont. R. 115; Ross v. Fox, (1867) 13 Gr. 683. » (1839) 5 Bing. N. C. 694. '"la Ross v. Fox, (1867) 13 Gr. 691. ' (1SS7) 15 S. C. R. 341. ■Hi ^ ]08 LEASE OR UCEXt^E trial Judge, the luto ]Mr. Justice I'uttcrsoii, held to he a license. This was rev. ised hy the (Queen's Ueiiiii Divisional Court, who held it to he a lease. On appeal tlie Court of Appeal were equally divided, Osier, J. A., and l-'erguson, J., holding it to he a lease; llagarly, C.J., and lUirton, if. A., a license. The Supreme ('ourt were also ecpially divided, Strong, Fournier and (Jwynne, J.J., holding it a lease; Ifitchie, C..)., Henry and Taschereau, J.. I., that the instruuu'ut was not a lease hut a mere license. The instrument was an indeiituro expressed to he under the Short Forms of Leases Act, descrihing t.io parties as lessor and lessee respectively, and wherein the granting I art was as follows: " Doth give, grant, demise and lease unto the Kaid lessees the exclusive right, liherty and privilege of entering at all times, for and during the term of ten years from the first oi January, 1879, in and \\\Hm (descrihing the land) ami with agents, lahourers and teams to search for, dig, excavate, mine and carry away the iron ores in, ujion or under the said i»remises and of nuik- ing all necessary roads. Also the right, li!)erty and privilege to erect on the said premises the huildings, etc., and to deposit on the said premises all refuse material taken out in mining the said ores." There was a covenant hy the grantees not to do unnecessary damigo, and a ])rovision for taking away the erections nuule and for the use of tindjer on the premises, and such use of tho surface as might bo needed. The grantees agreed to pay 25 cents for every ton of ore mined, in quaiterly jjayments on certain fixed days, and it was ])rovidntioned in the instru- ment for the jiurpose of searching for .md severing and carrying away the iron ores in, upon or under the said premises. The intention of the i)arties must be collected from the terms of the instrument. TiiJ language of the Statute under which it is claimed these goods are not I'able to 1 e taken, (S Anne, e. 14, is as follows: ' \o goods or chat- tels whatsoever lying and being in or u])on any messuage, lands or tenements which are or shall be leased for life or lives for term of yeais at will or otherwise, shall be liable to be taken by virtue of any UCKN8EH 10!) ('xi'ciition.' And in llii' second clansc, which n|)[)lios to tlic frniidii- lunt removal of j^'oods dilTcrcnt words arc iisod; 'Any nicssna^os, lands or tenements, npon the demise whereof any rents are or shall 1)0 reserved or made payalde.' T have been unable, after a most care- ful |terusal and consideration of the document in (|uestion, to dis cover evidence of any intent of the parties that the lands in ([Uestion phall he len8(!d for a term of years. . . . Had the parties in- tended that there should he a demise of the land as well as the rifilit to enter, search for, di^' and work it mifiht have been done in simple, plain lanjiua^'c, which I fail to see in this deed. There is it very broad distinction between a privile^'o to search for and ol)tain minerals and a sole and exclusive occupation of the land itself. lluni|)hries v. iJrofrden - very clearly shows that while the possession of the surface and the mine may po together, the two may l)e sepa- rated, and then they are as distinct as several closes, and in Koyse V. Powell,-' Lord ('am]»l)ell, delivering the judgment of the Court, said: * The surface and the minerals nuiy he dissevered in title, and liecome separate tenements, as a])pear8 abundantly from the cases cited.' "« Strong, J. (350), " The issue was tried before Mr. Justice I'at- terson without a jury, who gave judgment for the api)ellants, the execution creditors, holding that the instrument in cpiestion was not a lease but a license. This judgment was reversed by the (Queen's Bench Division, and that decision was afterwards ailirmed by the Court of Appeal, the Judges in the latter Court being equally divided in opinion, the Chief Justice and Mr. Justice Burton adopting the view of Mr. .Justice Patterson, and Mr. Justice Osier and ^h. .lusticc Ferguson agreeing in oi)inion with the Queen's Bench Division. The defendants in the issue, the execution creditcn-s, have now appealed to this Court. After some hesitation and fluctuation of opinion I have come to the conclusion that the view of the Queen's Bench Division and of the learned Judges who agreed with them in the Court of Appeal was correct, and that the api)eal must be dismissed. There can be no (piestion that if we are to construe this indenture as conferring npon the lessees an exclusive right oi entry upon the land- inter exclusive of the srantor — that is. it amount P that n iht grai demise of the land itself." Roads v. Trumpington,* Cheetham v. = (1850) 12 Q. B. 739. =' (1853) 2 E. & B. 144. ' Curtis V. Daniel, (1808) 10 East, 273; Humphries v. Brogden, (1850) 12 Q. B. 739. * (1870) L. R. 6 Q. D. 56. ■ no LEASE OR LICENSE AVilliamson/' (352). " As there is a real ambiguity in the ex])ressions used the deed is to be construed most strongly contra proferentem, that is, against the grantor." (35-1). " There is a plain distinction between this case and Doe d. Hanley v. Wood," for in that case the instrument which was held to be a license contained no words of demise, like those we find in this indenture, of the exclusive right of entry; had there been such words tliere can be little doubt, from what is said l)y Lord Tenter- den, C..J., in giving the judgment of the Court, that the decision would have been different." Armour, J., Seymour v. Lynch,^ bases his judgment on the canon stated in I}acon"s Ab. Lease K. as follows, p. 4TC: "Whatever words are sufficient to explain the intent of the parties, that the one shall divest hims-elf of the possession and the other come into it for such a dot'jrminate time, such words, whether they run in tlie form of a license, covenant, or agreement, are of themselves sulTicient, and will in construction of law amount to a lease for years as elfec- tually as if the most ])roper and pertinent words had I)ecn made use of for that purpose." In the Court of Appeal, Ilagarty, C.J.O., says '* this canon of construction is of undoubted authority. In Doe dem. Ilanley v. Wood,'-' the deed there in question was held not to operate as a de- mise of tiie metals and minerals so as to vest in the lessee a legal estate therein durir.g the term, upon the conditions mentioned in the deed, but only as a license to work and get the metals and minerals Mhioh might be found within the limits described. Doe v. Wood is referred to by Ilagarty, (,'.J.O., in Seymour v. TiVneh,'" as the most important case on the subject. Blackburn, J., points out in Koads v. Trumpington,* that in Doe d. Hanley v. Wood, the grantee might, ])erha])s, have had a right to bring ejectment for mines within the limits of his workings. The distinction between lease and license was also considered in London & X. W. I?y. Co. v. lUickmaster,^ Daniel V. Gracie," in re Stroud,* and in Burnside v. ^Farcus.' Distinction Between Grant and License. As to tiie distinction between a grant and a license, see Fitzgerald v. I-'irbank," TFolford V. Bailey,^ and Carr v. Benson.® » (1804) 4 East, 469. "(1819) 2 B. & Al. 724. ' (1885) 7 Ont. R. 476. » (1887) 14 App. R. 742. "(1819) 2 R. & Aid. 724. '"(1887) 14 App. R. 743. ' (1870) L. R. 6 Q. B. 64. » (1875) L. R. 10 Q. B. 444. ' (1844) 6 Q. B. 145. * (1849) 8 C. B. 502. » (1867) 17 U. "• C. P. 430. " (1897) 2 Ch. 96. ' (1849) 13 Q. B. 426. at p. 446. » (1868) L. R. 3 Ch. Ap. 534. 1 LICENSES 111 n Distinction Between License and Easement. A license must also be distinguished from an easement. As pointed out by Lord Cairns, L.J., in Eangley v. Midland Eailway Co.:" " There can be no such thing according to our law, m- according to the civil law, as what I may term an easement in gross." And at p. 310: "Every easement has its origin in a grant expressed or implied. . . . There can be no easement properly so called unless tliere be both a servient and a dominant tenement." The distinction is also illustrated by Russell v. Harford,'" where A. and B. were tenants under the same landlord of adjoining premises, and A. had a well upon his premises, from whicli B.'s proniisos were supplied with water by means of a pipe. It was held that B. had no easement or right of water, but merely a license from his landlord during his tenancy. In Chelsea Waterworks Co. v. Bowloy,^ it was held upon the terms of a particular Statute there in question that a water comjiany, in respect of their right to lay pipes for the purpose of carrying a stream of water through certain lands, had no interest in the lands, but only an easement over them. In re Bonfield and Stevens, Benfield v. Stevens,^ Street, J., held that the deed there in question was a mere license to mine, not conferring an exclusive possession of the property, and a mere agreement for the sale and purchase of the ore when mined; and that the first mortgagee had no right of action for the money alleged to be due thereunder, but, at the most, only a claim for unliquidated damages for the wrongful removal of ore; and the licensee was not entitled to an interpleader order. It was hold in Hamilton v Duniop,""^ that where the owner of lands is disposing to a singular successor or other person, if he re- serves the '' liberty of working the coal " in those lands, ho must be taken to have reserved the estate of coal with which he stands in- vested by infeftment." The House of Lords refused to construe the words, " liberty of working the coal," as a mere license. In Haigh v. Jaggar,* the etfoct of a grant to A., B. and C, and their executors, of liberty to get the coal ixndor particular closes, till all the coal should be gotten, was considered. • (1868) L. R. 3 Ch. Ap. 306, at p. 311. " (1866) L. R. 2 Eq. 507. ' (1851) 17 Q. B. 358. = (18«7) 17 O. Pr. R. 339. »(18s5) 10 App. Cas. 813. M1847) 16 M. & W. 525. I ■m ^'f 113 COVENANTS In the Low ^Moor Co. v. The Stanley Coal Co.,° the effect of a deed of bargain and sale to H., his executors, administrators, and assigns of all the coal and minerals lying under certain closes was discussed. When License Exclusive. The prima facie presumption is against a mining license being held exclusive. Vaughan Williams, J., says in Sutherland v. lleathcote," " Sometimes it has been said that such a license must be construed as non-exclusive unless it is ex- pressed to be conclusive. This does not seem to me to be the law. The license must be construed like any other document according lo intention." In Sutherland v. IleathcoteJ a reservation of full and free lib- erty " to get the coal and minerals Mliich should be found within certain land, was held not to give ^n exclusive right to work them." Lindley, L.J., points out at p. 485, that an exclusive riglit can no doubt Ije granted; but such a right cannot be inferred from language which is not clear and ex])licit: and also at p. 485, " A grant in fee of liberty to dig ores does not confer on the grantee an exclusive riglit to dig iliem, even if the grant is in terms without any interruption by tlu' grantor." When not Exclusive. Licenses were held not exclusive in the following cases: In re Haven Gold Alining Co.,^ Carr v. Benson," Newby v. Harrison,^" Eoss v. Fox,^ and Sinnott v. Scoblc." What Covenants Run With License. In ]\lartyn v. Wil- liams,- it was held that a grant to the dol'enuant of a license for 21 years, to dig, etc., for china clay, and to raise, get, and dispose of same to his own use, gave to the defendant "an incorporeal hereditament, a property and an estate capable of being inherited by the heir, and assigned to a ])urchaser or otherwise con- veyed away. It is, says ^lartin, 1?., in trutli a tenement and the con- veyance of the land to the plaintiff during tlie existence of the term in the incorporeal tenement, was an assignment of the reversion witli- in the Statute 32 Henry VII I. c. 34. It would follow that the rules as to covenants in leases running witli the land are equally ap])!icable to covenants in licenses to mines."? » (1876) 34 L. T. N. S. 186. "(1891) 3 Ch. 517. ' (1892) 1 Ch. 475. » (18S1) 20 Ch. Div.151, per Jessel, M.R., 160. "(1^68) 3 Ch. Ap. 524. ■" (1861) 1 J. & H. 393. ' (1867) 13 Gr. Ch. 687. >' (1884) 11 S. C. R. 571. Ml 857) 1 H. & N. LIC'EXiSES 113 As to what covenants run with tlie license, sec Lord Portmoro ' V. Bunn,'* Norval v. Pascoc* Where A. agreed witli B. to take a lease of B.'s iron ore at N. for forty years at a certain rent, and B. agreed to grant the lease, it was held that by tlie agreement for a lease, B. took not a more license, but a right constituting a hereditament within the Statute 11 Geo. II. c. 10, in respect of wliich A. might sue him for use and occu- pation.'' Nature of Royalty. In ex parte Ilankey " is f re(iuently cited as authority for the ])n)|K)siti()n that payments agreed to he made in respect of a license are in the luiture of rent, but in that case tlie Vice- Chancellor says at p. 251, " In my opinion the true way of consider- ing it is, as nothing more than a lease for a year to P. and B. with certain privileges annexed to it. Then considering it as a lease, which it was, Ijccause P. and B. had a right to occupy the soil, the conse- quence is, that tiie mortgagee, from tlie time he gave noticCj was entitled to the rents." In Ward v. Day,' wliere by deed, B. granted to A. a license to search for and get all the pyrites wliicli might be found in a certain part of a maiu)r, for :^1 years, at a yearly rent, a distress for arreai's of rent was treated as illegal.'* Eent cannot be reserved by any person except the Crown, out of any incorporeal iidieritance." Forfeiture. In Koberts V. Davey,'" the plaintiff had granted to defendant a license to dig and mine for ore, subject to a condition that if grantee shoidd neglect to work the mines, etc., tlien and from thencei'orth the indenture and the license tliereby granted should cease, determine, and he utterly void. Littledale, .1., said at ]). (171 : " According to Doe v. Bancks,^ this instrument was liable to be rendered void only at the election of the grantor. If it had been a freehold lease of land, subject to a condi- tion tliat it sliould be void on non-performance of covenants, it wimld have been necessary for the lessor to avoid it by entry; or, if that were im|)()ssible, ])y claim. This instrument is a mere license to dig, and did not pass tlie land. An actual entry, therefore, was un- necessary to avoid it; but l)y analogy to what is required to be done • (1823) 1 B. & C. 694. * (1864) 34 L. J. N. S. Ch. p. 82. "JonoH V. Ri'ynolda, (1836) 4 A. & E. 805. » (1829) Ri:int. & M. A. 247. '(1863) 4 B. & S. 33.. 8-M 'Hancock v. Austin, (1863) 14 C. B. N. S. 634. » Co. Lltt. 47 a ; Knight's Case, 5 Rep. 54. ■"(1833) 4 B. & Ad. 664. ' (1821) 4 B. & Al. 401. m i I I' r 114 FORFEITURE in order to determine a freehold lease ... it seems to follow that to put an end to this license, the grantor should have given notice of his intention so to do." * If the election is once determined it is delermined for ever.*^ Section 13 of I?. S. 0. 1897, c. 170, relating to the forfeiture of leases, is expressly declared not to extend to a grant or license for mining purposes. The provisions of the Dominion and Provincial Statutes, and Eegulations in regard to mining licenses are dealt with infra. » James v. Young, (1884) 27 Ch. Div. 652. =' Clough v. London & N. W. Railway Co.. (1871) L. R. 7 Exch. 26, p. 34. CHAPTEE V. LEASES. Formal and teclmical words are not necessary to create a lease. Whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession and the other come into it for a determinate time, such words, whetlier they run in the form of a license, covenant, or agreement, are, in themselves, sutli- cient, and will in construction of law amount to a lease for years as effectually as if the most proper and pertinent words had heen made use of for that jmrpose.^ To interi)ret any document one must discover the expressed inten- tion of the i)arties. The question, however, always is, what is the meaninu; of what the parties have said? Not what did the parties mean to say? If the Court sees an intention clearly and distinctly estahlislied by an instrument, it has no difficulty in carrying that intention into effect, suljject, of course, to any rules of law that may be applicable to it, but only qualified to that extent. " It must be constantly borne in mind that a lease of mines is not in reality a lease at all in the sense in which we speak of an agricultural lease. What is called a mineral lease is really, when ])roperly considered, a sale out and out of a por- tion of the land." In Coltness Iron Co. v. ]?lack,- Lord Blackburn, in referring to the al)ove ciuotation from Lord Cairns' judgment in Gowan v. Chris- tie,'** says: *' I thiidv this is a perfectly accurate statement." R. S. O. 1S!)7, c. 170, s. 3, enacts that the relation of landlord and tenant did not since the 15th day of April, 1895, and shall not hereafter depend on tenure, and a reversion or remainder in the les- sor shall not be necessary in order to create the relation of landlord and tenant, or to make ajiplicable the incidents by law belonging i ii I ' Bacon's Ab. Tit. I.easo K. M1881) 6 App. Cas. 335. » (1873) L. R. 2 H. L. Sc. 284. to that relation; nor shall any agreement between the parties be necessary io give a landlord the right ol' distress. The elicit and consequences of this legislation have not, as yet, been judicially declared. Parcels. 'I'lu- lease should set forth the boundaries of the land demised, or of the minerals granted. While, practically, there is more dilliculty in iixing a boundary of imderground minerals than of the surface, the same principles which guide the Court in construing words of description in an agreement for sale or demise of the surface, will apply when dealing with minerals.* In Lyle v. Eichards,'' where, in a lease of a mine, the boundary line was described as a line " diawu from J. V.'s house to a bound- stone," and in the description of the j)arcels it was said " which said premises are particularly described by the map on the back of tiio kase,"' the nuijority of the House of Lords held that the Judge was bound to look to the map as forming part of the deed, and to tell the jury that the line was to be drawn as marked on the map. Lord Westbury dissented, and said that it being ascertained that the house itself was incorrectly laid down in the nuip, there was a latent ambigu- ity which was to be determined by evidence, and was not dependent on construction. In Taylor v. Parry," it was held that the words of the demise were not to be controlled or restrained by a map attached to a lease. Right to Work, If the owner of land in which there is a mine of minerals makes a lease of the land (without mentioning mines) for life or for years, the lessee may work such mines as were ojjen at the date of the lease and take the profits thereof. But he can not work any new mine that was not open at the time of the making of the lease. If there be open mines, and the owner make a lease of the land with the mines therein, this shall extend to the open mines and not to any hidden mine; but if there be no open mine, and the lease is made of land together vnth all mines therein, then the les^;cG may dig for mines and enjoy the benefit thereof.'' That this must be assumed to have been the intention of the parties is stated by Kindersley, V.C, in Clegg v. liowland," to be the ground of the law thus clearly laid down by Lord Coke. ♦Davis v. Shepherd, (1866) L. R. 1 Ch. 416. "(1866) L. R. 1 E. & I. 222. • (1840) 1 Scott, N. R. (576), also Brain v. Harris. (1855) 10 Ex. 908; Davis V. Shepherd, (1866) L. R. 1 Ch. 410; McArthur v. Brown, (1888) 17 S. C. R. 61. 'Co. Litt. 546. ^ (1866) L. R. 2 Eq. 165. LEASES in In Coppiiiger v. Gul)l)ins," Siigdcn, L.C., says all the autliorities establisli that although a tenant may have a right to cut and sell turf when bog, which had ])reviously been cut for sale, is demised as bog, or when tliere is no otlier mode of enjoying it; yet that a mere demise of l)og as such will not give the lessee a right to cut and sell a portion of that which constitutes the land itself, particularly when the demise is of the bog together with other property. Even a mining lease should, therefore, contain a license to work the mines, whetlier o])en or not, and a grant of the minerals won. In Pugdale v. Kobertson,^" it was held that the mines and min- erals under a certain ])arcel of lands were included in and did ])ass by the lease, but that the lessees were not authorized to work them or lo search for any coal or mineral therein. In Elias v. Siiowdon,^ it was held that where a lease of a quarry reserves not a fixed sum by way of rent, but a share of the profits of the quarry, it is to be treated as opened for the purposes of com- merce. Lord Selborne says:^ " If a mine or quarry has been worked for commercial ])roiit, that must ordinarily be decisive of the right to continue working; and, on the other hand, if minerals have been worked or used for some definite and restricted purpose (e.g., for the purpose of fuel or repair to some particular tenement), that would not alone give any such right. ]?ut if there has been a working and Wii of minerals not limited to any special or restricted purpose, I J'ind nothing in tlie older autliorities to justify the introduction of ^ale as a necessary criterion of the diiference between a mine and a quarry which is and one which is not to be considered open in a legal sense. I'se as well as sale is a ])erce])tion of ])rolit. When a mine or (piarry is once o])en so that the owner of an estate imi)eachablG for wa.'ay rent." In Foley v. Addenbrooke,' there was a covenant to raise a certain quantity of mineral and pay certain royalties ujion it, or else pay a » P. 667. "' N »/»/•«. "" (1856) 1 H. & N. 195. ' (1844) 13 M. & W. 487. = (1845) 14 M. & W. 260. Mefferys v. Fairs, (1876) 4 D. 448. Ch. * (1873) L. R. 2 Sc. App. 273. •P. 6G9. " Jervis v. 'romkinaon, (1856) 1 H. & N. 208; Marquis of Bute v. Thompson, (1844) 13 M. & W. 487. • (1844) ]3 M. & W. 174. ,i m I .^.^. >*^^^ Q^. \%^^< IMAGE EVALUATION TEST TARGET (MT-3) V. {./ *^ 'k t/i M/. 1.0 I.I 1.25 1^128 |2.5 ISO '"^~ ■■■ S 1^ liiio m 1.4 11.6 Photographic Sciences Coiporation ^ \ SJ \\ \ 23 WIST MAIN STRiei WUSTIR.N.Y. MSM (716) •72-4S03 ^ f ^ ^ L\ mmmmm 132 DISTRESS certain fixed quarterly rent to the landlords. It was held that if the lessee paid the fixed rent he was only liable for nominal damages for breach of the covenant to work.'' " Rents and profits " include royalties payable under a lease of a stone quarry.* Where the tenant continues in possession after the expiration of his term, the terms of the holding are considered to be the original ones.*^ Distress. In re Eoundwood Colliery Co., Lee v. R. C. Co.," it was held that the power to distrain for rent in arrears not only upon chattels belonging to the lessees on the demised premises, but also upon chattels belonging to the lessees in or about " any adjoining or neighboring collieries," reserved in a mining lease to the lessor, did not constitute the mining lease a bill of sale within " The Bills of Sale Act, 1878." An express power contained in a mining lease to distrain on lands not included in the demise is valid as against assignees with notice.^" Similarly the right of distress for rent of whatever kind may be taken away or suspended by an express or implied agreement not to distrain.^ Covenants. In Strellcy V. Pearson," it was held that a provi- sion that the lessee shall be entitled to determine the lease wlien the mine is incapable of being worked at a profit is not a " usual " claupe in a lease of a colliery. In Davis v. Treharne,^ Lord Watson says: " Where a proprietor of the surface and tbe subjacent strata grants a lease of the whole or part of his minerals to a tenant I think it is an implied term of that contract that support shall be given in \he course of the working to the surface of the land. If it is not intended that that right should be reserved the parties must make it very clear upon the face of their contract; in other words, they must express their intention so clearly as to enable a Court to say that such intention is plain. I think that rule A\as laid down by the late Lord Justice Mellish in the case of ' Mellers v. Devonshire, (1852) 16 Bcav. 252; Jefferys v. Fairs, (1876) 4 Ch. Div. 448. " Leppington v. Freeman, (1891) 40 W. R. 348; affirmed 66 L. T. N. S. 357. "Jones v. Shears, (1840) 4 A. & E. 837. " (1897) 1 Ch. 373. '"Daniel v. Stepney, (1874) L. R. 9 Exch. 185, reversing S. C. L. R. 7 Exch. 327. ' Wallace v. Fraser, (1878) 2 S. C. R. 522. " (1880) 15 Ch. Dlv. 113. ' (1881) 6 App. Cas. 469. LEASES 133 ?4 Ilext V. Gill, and I quite agree with that ruling. It may be done in express terms; but, of course, it is not necessary that express lan- guage be used; for it may appear by a plain implication from other clauses of the deed, as in the case of Taylor v. Shafto, where an obli- gation was laid on the tenant to perform certain acts which were plainly inconsistent with supporting the surface." The House of Lords held there was nothing in the documents there in question to take away the right of support.^ In Smith v. Darby,* it was held that the lease there in question gave the lessees of the mines the right to work so as to take away the support from the surface, making such compensation as was therein provided. Mellor, J., says:" " The man who grants the minerals and re- serves the surface is entitled to make any bargain that he likes." As to the construction of covenants in a mining lease, see James v. Cochrane." In Pell V. Shearman,'' the defendants covenanted with the plain- tiff that if he would surrender to his lessor a c""tain lease they would within two years or within such period as should be agreed in a new lease, which the lessor had agreed to grant to them, sink upon the demised premises a pit to the depth of 130 yards in search of coal, and in case a marketable vein of coal should be reached, pay to the plaintiff £2,500. The plaintiff having sued the defendants for a breach of the covenant gave evidence to show that if the defendants had sunk the pit mai'ketable coal might have been found, and the jury assessed the damages at £2,500. On motion to reduce the damages to a nominal amount Alderson, B.,^ said: The plaintiff has lost the advantage of having a pit sunk to the depth of .130 yards at the cost of the defendants; he has also lost a chance, amounting to a certainty, of finding marketable coal; lie is, therefore, entitled to recover either the amount which the defendants would have expended in sinking the pits or the amount which would have become payable if marketable coal had been found. That was a question for the Jury, and I think the finding was quite right. Tlie Duko of Beaufort v. Bates.'** Coal and iron works were de- mised, together with lands and mines under other lands not included ',' i ' See also Smart v. Morton, (1855) 5 E. & B. 30. ' (1872) L. R. 7 Q. B. 716. ' P. 726. » (1853) 8 Exch. 556. ' (1855) 10 Exch. 766. » P. 771. " (1862) 3 De G. F. & J. 381. ■ ■•■ -.'T? v-'-'-"." t-T.'y^'-! Jf 124 COVENANTS in the clemise, with liberty to the lessees to make and use roads and ways over any of the lands, and to do all such other acts upon the lands as should be necessary for the purpose of the works, and the lessees covenanted to uphold and keep in good repair the furnaces and other works, houses and other buildings then standing and which during the term should be erected and built on the demised lands, and all other demised premises, and at the expiration of the term to deliver up the property " and all ways and roads in, upon or under the same land " in such good order that the works might be continued by the lessor. It was held, that this covenant did not extend to trams fastened to sleepers not affixed to the freehold which the tenant had placed upon the roads for the purpose of using them as tramways, and that the landlord therefore was not entitled to an injunction to restrain the tenant from disposing of them during the term.'^ In Hodgson v. Moulson,'- it was held that where, in a mining lease, the lessees covenanted that they would work in a workmanlike manner and leave pillars of stone of sufficient strength to support the roofs of the mine, and get the stone in the best and usual way, they were liable to the reversioner for damage done to the surface of the land by its cracking and sul)siding for want of sufficient pillars being left to support the roofs of the mines, though they might have worked the mines in the usual and work- manlike manner. In Conlin v. I'^lmer * a mining lease for 99 years contained provisions enabling the lessor to demand at his option a royalty upon the ju-oceeds of the mine, or $4,000 in lieu of such royalty, and the lessor had not exercised such option, and it was held that the lessee was a purchaser for value, and that a prior voluntary conveyance was void against him. In Cartwright v. Forman," a mining lease contained a covenant by the lessees to deliver to the lessors a certain quantity of coal at the pit's mouth, and also a proviso that, if the minerals should be fully and fairly gotten before the expiration of the term, the lessees might determine it on giving twelve months' notice. The covenant was held to be absolute, subject to there being coal in the pit, and that it was no answer to a declaration for 1)reach of the covenant to say that the coal could not Ije practically worked without costing more than it was worth. •" Also see Turner v. Cameron, (1870) L. R. 5 Q. B. 313. " (1865) 18 C. B. N. S. 332. ' (1869) 16 Gr. 541. » (1866) 7 B. & S. 243. * u i LfJ.WEii 125 (■ ^ It would be an answer to such an action if the covenants wore impossible of performance at the time they were entered into, but not if tiiey subsequently became impossible.^" In re Bidder v. North Staffordshire Kaihvay Co./ whore by a lease of mines, the lessees wore authorized to take and usj " full and sufficient rail and other ways, paths and passages to and for the said lessees and their agents, servants and workmen or others to carry away all or any of the coal, etc., the produce of the mines theroljy demised, or any other mines." It was held that the lessees by virtue of tliis clause might lay down a railroad for the carriage of coals raisad by tliem from the pits of adjoining collieries worked by them, and that they wore not re- stricted to using the railway for the carriage of coals raised by or through the pits of the mines demised to them by the above-n- - tioned lease. A coal seam is " won " when it is put in a state in which con- tinuous working can go forward in the ordinary way.- In Elliot V. Kokeby,' the House of Lords held, reversing the Court of Appeal, that the deed there in question must be read separatim as to the winning of each seam of coal. In Jegon v. Vivian,* the lease contained a covenant to work the mines in a proper and workmanlike manner. It was hold that working by instroke was not a breach of this covenant, and also that under the terms of the lease tlie lessees were not liable to damages for not working the coal continuously. In Lewis v. Fothergill,'' Lord llatherly points out that the ques- tion of instroke always has relation to the question of breaking the barrier. In Kinsman v. Jackson," Jessel, IM.R., dissents from the ob?er- vations of Malins, V.C, in that case. The case there was upon a de- mise of a license to dig, work and search for china clay and china stone within, under and throughout a certain parcel of land. The lease contained a covenant that the lessee would, during the term, work the said limits for china clay and china stone in the most proper and effectual manner with a reasonable number of able-bodied men and assistants, kept employed on the said works at all reasonable usual working times, so that the china clay and china stone to be •» Clifford v. Watts, (1870) L. R. 5 C. P. 586. > (1878) 4 Q. b. D. 412. » Per Lord Hatherly In Lewis v. Fotherglll, (1869) L. R. 5 Ch. 111. » (1882) 7 App. Cas. 43. ♦ (1871) L. R. 6 Ch. 742. = (1869) L. R. B' Ch. 109. » (1880) 42 L. T. N. S. 80. n 5P 126 QVIET ENJOYMENT there found may be raised, washed and made merchantable as speedily as practicable. Jessel, M.R., decided that there was a breach of this covenant if the lessee having raised a quantity of china clay from the works, then takes his men off from the raising, and employs them in making it merchantable for a long period. His refusal of an interim injunction against the landlord, who had taken possession, was affirmed by the Court of Appeal.' In Sharp v. Wright,* Romilly, M.R., held that on the construc- tion of an agreement for a coal lease for 21 years the only rent re- served being dependent oja the quantity of ore raised, and being made payable quarterly, that the lessee was bound to commence working immediately and proceed continuously. In Jegon v. Vivian," however. Lord Ilatherly says if the parties mean the lessee to work continuously they ought to say so. If the lessors desire to secure the working of their mines be- yond the amount of the sleeping rent they must in the lease insert covenants which throw that obligation on the lessees, and in the absence of such stipulation there is nf* obligation on the lessee to do anything more th: .: to pay the sleeping rent.'" Quiet El^joyment. The ordinary covenant for quiet enjoyment is broken where there is any legal proceeding interfering with the title or possession of the demised land or minerals. The interrui)tion contemplated by the covenant need not neces- sarily be an interference with the title, but may extend to an interfer- ence with the enjoyment. In every case it is a question of fact whether the quiet enjoyment of the land has or has not been inter- rupted, and where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor or those lawfully claiming under them, e covenant is broken, though neither the title to the land nor the possession of the land may be otherwise affected.^ The covenant, however, is not an absolute warranty for quiet en- joyment, as shewn in Dennett v. Atherton,- where the Exchequer Chamber held that a covenant for quiet enjoyment did not imply a '(1880) 42 L. T. N. S. 558. • 1860) 28 Beav. 150. • (1871) L. R. 6 Ch. 757. " Wheatley v. Westminster Brymbo Coal Co., (1869) L. R. 9 Eq. 553. ii. ' Sanderson v. Mayor of Berwick, (1884) 13 Q. B. D. 547, per Fry, J., 561. = (1872) L. R. 7 Q. B. ?16. LEASES 127 warranty that the land was capable of being iised for any purpose not expressly excluded by the lease.* In Shaw v. Stenton,* the lessor after making a lease of a coal mine excavated a quarry of iron stone lying under some of the closes under which the demised coal mine was situated, but above that mine; and made holes from the strata of iron stone into the demised mine, thereby causing quantities of water to percolate into the demised mine; the lessor also by excavating the quarry caused parts of the roof of the demised mine to fall in. The result was that the demised mine became flooded and the working of the coal rendered impracti- cable. It was decided that though the lessor had a right to excavate the quarry, yet, as the excavation had caused an interruption of the lessee's occupation of the demised mine, the lessor was liable for a breach of his covenant for quiet enjoyment. Watson, B., said:"* "It is not necessary that the covenantor should commit an act of interruption upon the demised premises." In Harrison v. Muncaster," M. leased to P. a mine for the purpose of being worked as an iron mine, and subsequently leased to II. an adjoining mine for the same purpose, the lease containing a covenant for quiet enjoyment. P., while properly working his mine under the terms of his lease, struck a "feeder," with the result that a large body of water, the existence of which was not known, flooded the P. mine, which lay to the dip of the H. mine, and rising in the levels found its way into the H. mine, which was on a higher level, causing damage, and M. was held not liable. Bowen, L.J., said;^ " It seems to me that an interruption un- der such a covenant is not caused by the lessor or by those claiming under him unless it is either a direct act of interruption, or unless it is some act of which it either was foreseen, or ought by reasonable care to have been foreseen, that tl^e consequence in the particular case would be an interruption." The above observations are applicable to a mining lease made in pursuance of the Act respecting Short Forms of Leases.* In Spoor V. Green," the facts were that in 18-44 the defendant was party to a 21 years' lease of coal mines, which gave certain powers ■■ Harrison v. Muncaster, (1891) 2 Q. B. 689. * (1858) 2 H. £ N. 858. "At p. 866. « (1841) 2 Q. B. C80. ' At p. 689. » R. S. O. (1897) Ch. 125. » (1874) L. R. 9 Exch. 99. '; '■ 1S8 COYHN.INT^ i n over the surface incidental to tlie working of those mines, and an ad- joining colliery. The coals so demised were siil)stantially worked out before Sej)teml)er, 1845. In October, 1845, the defendants sold and conveyed the land to J., who knew of the workings, and the defendant covenanted with him for title, for quiet enjoyment and against en- cumbrance. In July, 1840, J. sold and conveyed to the plaintiff, who was ignorant of the workings. In 1865, in consequence of the min- ing operations above described, the land subsided, and the houses built on it by J. and the plaintiff were damaged. In 1848, subse- mise, and a few loose pieces of coal. In giving judgment in an action brought on the above covenants the declarations in which alleged that whilst the plaintiff was seized tiie lessees entered upon the land and worked, and got, and carried away the coal, whereby the plaintiff lost the coal and the land sub- sided, it was held by Bramwell and Cleasby, B13. (Kelly, C.B., diss.): First, that the fact of tiie coals having been worked out was no breach of the covenant for title, J. never having bought those coals. That the subsistence of the lease in respect of the coal left un- MTought, and the powers not exercised incident to the working of their colliery did not constitute a breach. That the breach, if any, was complete in the time of J.; secondly, that neither the acts of tresjmss in taking the fire-clay in 1848, nor the subsidence caused in 18C5 by workings in 1845 were breaches of the covenant for quiet enjoyment, on the ground that the first was a mere trespass, and that as to the second, the subsidence gave no new cause of action; the princi])le of Bonomi v. Backhouse,*" not applying to a case where tlie subsidence is caused by a wrongful taking of the plaintiff's minerals. In Taylor v. Shafto,* by a deed in 1857, reciting the -will of S., under which the defendant became tenant for life of the W. estate, the trustees of the defendant conveyed lands at S., part of that estate, to R., in fee, reserving the coal thereunder with power to work, and carry away the same, the defendant, or the person or persons for the time being entitled thereto, etc., and his and their assigns paying to B., his heirs and assigns, compensation for damage sustained thereby, and the defendant covenanted that, notwithstanding any act "■ (1861) 9 H. L. C. 503. ' (1867) 8 B. & S. 228. LEASES 189 done by him or S. to tlie contrary, the trustees had power to grant and release the hinds, etc. The lessees also covenanted not to sink pits within 200 yards of any dwelling-house, etc., and to leave nn- wronght the coal under the mansion house and park and other parts of the superincumbent lands, but not including the lands at S. The lease contained other covenants for the security or benefit of portions of the surface, not including the lands at S., and for making compensation for damage. Dwelling-houses had been built upon the lands at S. after the purchase by IL, and the lessees had so worked the mines as to cause ])ortions of the lands to subside and sink, and the dwelling-houses and their foundations to be weakened, cracked and injured. In an action by the plaintiff upon the covenant to pay compensation, and the covenant for title contained in the deed of 1837, the jury having found that the lessees had worked the mines according to the best and most approved method of working collieries of the like nature on the Tyne and Weir, and that the sinking of the land was not caused by the weight of the houses. It was held by the Queen's Bench that the plaintiff was not en- titled to recover on the covenant for compensation and by the Ex- chequer Chamber, affirming the judgment of the Queen's Bench, and following the judgment of Wood, V. C, in Shafto v. Johnston, that the lessees were not only authorized but bound so to work the mines as to obtain therefrom the largest quantity of coals that could be gotten consistently with the safety of the mines, and without regard to the safety of any dwelling-house which might be erected after tlie date of the lease, upon any portion of the surface not specially pro- tected by any of its provisions, and, therefore, the covenant for title was broken by the grant of the prior lease. Kelly, C.B.:^ " The obligation of the lessee under the covenant is to work the mines so as to produce with safety the greatest quan- tity of merchantable coals from, and out of, each and every the workable seams thereof. This obviously means with safety to the mines, and this is the only qualification upon the otherwise unre- stricted working of the mines, from which therefore, the lessee must obtain all the coal which the mines will yield with safety to the mines themselves and without any regard to the safety of the houses upon the surface." Forfeiture and Waiver. The true construction of a proviso in a lease that it shall be iitterly void for non-payment of rent or other » P. 251. 9— M gg 130 FORFEITURE AND WAIVER brenc'li of covonnnt, is, that the loasc is not to l)e utterly void, but voi(lal)le only at the ojjtion of the lessor." A ]iariy to a lease cannot take advantage of his own breach of any of the conditions or covenants in the lease to avoid tlie lease.* The lessor may elect to avoid the lease, or to waive the forfeiture and treat the lease as valid. The lease continues valid till the lessor determines his election by avoiding it." If he once determines his election it is determined forever, and cannot be retracted by him.® If with knowledge of the forfeiture by receipt of rent, which accrues due after the forfeiture or other unequivocal act, he shows his intention to treat the lease as subsisting, he has determined his elec- tion forever, and can no longer avoid the lease.'' If, on the other hand, by bringing ejectment or otherwise he unequivocally shows his intention to avoid the lease he has deter- mined his election, and cannot afterwards waive the forfeiture, and treat the lease as subsisting, and the effect cannot be varied by sub- sequent acts on the part of the lessor.* In each such case the effect of a receipt or payment of money must depend upon the intention of the party receiving or paying, though, as shown in Croft v. Lumley, a num's acts are to si)eak rather than his words. In Denisou v. MiMtland," Armour, CJ., says i^** " As the mere re- ceipt after the forfeiture of rent which accrued due before the for- feiture, would not operate as a waiver by the landlord of the for- feiture;*^ so the mere payment of rent, after the forfeiture, which accrued due before the forfeiture, would not amount to a request on the tenant's part to be relieved from the forfeiture." Where a lease ])rovides for the determination of the term after the expiration of a notice to be given by the lessee, and payment of all ' Grey v. Friar, (1853) 4 H. L. C. 602; Davenport v. The Queen, (1877) 3 App. Ca.s. 128. * Davenport v. The Queen, (1S77) 3 App. Cas. 129. "Dcnlson v. Maitland, (1891) 22 O. R. 170. ' Scarfe v. Jardine, (1882) 7 App. Cas. 360. 'James v. Young, (1884) 27 Ch. Div. 663; Croft v. Lumley, (1858) 6 H. L. C. 705; Grimwood v. Moss, (1872) L. R. 7 C. P. 364. » Dendy v. Nlcholl, (1858) 4 C. B. N. S. 376; Grimwood v. Moss, (1871) L. R. 7 C. P. 365; Denison v. Maitland, (1891) 22 O. R. 166; Jones v. Carter, (1846) 15 M. & W. 718; Evans v. Davis, (1878) 10 Ch. Dlv. 763. • (1891) 22 0. R. 174. ""At p. 174. " Price v. Worwood, (1859) 4 H. & N. 512. I LKASKi} 131 rents and i)orforinnnce of all his covenants, the i)aynient of the rent and perforuiancc of the covenants are conditions precedent to the tenant's right to determine the tenn.^ This case was discussed in (iroy v. I'riar,^ where there was n simi- lar proviso in a lease of a colliery, a clause beinjr added, that the determination should be Mithoiit in'ejiidicc to any claim or remedy which any of the ]»arties thereto might he entitled to, for breach of any of the covenants or agreements contained in the lease. The Court of Kxchequer held that in view of this additional clause the ]ierformanco of all the covenants was not a condition pre- cedent to the tenant's jiower to \)\\'t iin end to the lease. This was reversed by the Exchequer ('hand)er, and the House of Lords being equally divided, the decision of the Kxcheciuer Cluuubcr that the performance of the covenants was, notwithstanding the intrnductiim of the latter words in it, a condition precedent to the jiower of the lessees to determine the lease by notice, was atlii'med. It was pointed out by the Lord Chancellor •■• that the lease then in question contained an infinity of covenants of the most minute deseri|)tion. In I'ridges v. Potts,* there was an agreement for a lease in which it M'as stipulated that the lessees were to be at liberty at any time thereafter (after the date of the agreement) to determine the agree- ment, or the lease thereby agreed to be granted, and to abandon the iron works on giving to the lessors six months' notice in writing of their intention so to do. It was held that the six months' notice might expire at any time, and need not exjiire at the end of a current year. The minimum rents were apportioned. Erie, J., said,' that it was material to consider in construing the contract there in question that it relates to the working of a mine which he describes as a hazardous speculation. But Williams, J., says," that the rnle as to the determination of the tenancy by notice is common to demises of mining property, as well as to demises of land or honses, or any other description of pro- perty. > Potter V. Shephard, (1796) 6 T. R. 665. 'aS.'iS) 4 H. L. C. 565. ' (1853) 4 H. L. C. G18. * (1864) 17 C. B. N. S. 314. » At p. 332. 'At p. 3iT. 132 FIXTURES m Wlietlicr a notice by a lessee of his intention to surreiuler his lease is afterwards waived, is a (luestion of intention.* In Coventry v. McLean,* where the authorities on relief from forfeiture are collected and coinnientcd on, it was deterniined that u Iccsee is not entitled as of rif^ht to relief against forfeiture for non- jxiynient of rent, and that such relief may he refused on collateral vqui table grounds.^ Section 13 of 1?. S. O. 1897, c. 170, corresponds to section 14 of the English Conveyancing and Law of Property Act, 1881, and is expressly declared not to extend to a " mining lease " which is de- fined as a lease for mining purposes, that is the searching for, work- ing, getting, making merchantable, carrying away or disposing of mines and minerals, or purposes connected therewith, and is declai'cd to include a grant or license for mining purpoL-s. Recovery of Possession. In Boulton v. Sliea,'* the plaintiifs leased Crown lands in Ontario to the defendants, the lease containing a covenant by the defendant not to remove gravel or sand from fhe premises. The Commissioner of Crown Lends ruled that the patent should issue to the plaintiffs upon payment to defendant for his improve- ments. The Supreme Court held ^' that the plaintiffs were nrc in a posi- tion to bring an action against the defendant, claiming arrears of rent, ])ayment for use and occupation, damages for breach of the covenant not to remove gravel, and delivery of po!»cssion, imt'l the defendant had been paid for his improvements. Sections 2, 3, and 4 of 4 Ceo. IL c. 28, were brought into I'orce in Ontario by 32 Ceo. III. c. 1, and afterwards substantially re-enacted in 19 Vict. c. 43, ss. 263-265, and now appear in R. S. 0, 1897, c. ] 70, as sections 20-25. Fixtures. The authorities as to the meaning of the term " fix- tures," as to the nature of the tenant's right to remove tenant's fix- tures, and as to the time within which such right must be exercised, were elaborately reviewed by Armour, C.J., in delivering the judg- ment of the Queen's Bench Divisional Court in Argles v. McMath," subsequently affirmed by the Court of Appeal,^ • ' Jones v. Shears, (1840) 4 A. & E. 832. ' (1894) 21 A. R. 176. ' See Barrow v. Isaacs, (1891) 1 Q. B. 417. ' (1893) 22 S. C. R. 742. '■ Gwynne, J., dissenting. « (1894) 26 O. R. 224. ' (1896) 23 A. R. 44. LEASEa 133 The general rule aa to fixtures laid down in the notes to I'.lwes V. :Miuv, in Smith's Loadin},' Cases,'-' "that whatever is annexed to the realty becomes part of it, and that the person who was the owner of it, when a chattel, loses his proi)erty in it, which immediately vests in tiu) owner of tiie soil, (Juicquid planlalur solo solo cedil," was held hy the House of Lords in Wake v. Hall •' to bo too broadly stated. Jjike all other rules, it has received from time to time judicial modilications to suit the exigencies of modern life and modern pro- gress, and numerous exceptions andqualilications have been grafted on it in favour of trade, manufacture and mining. The rule applies where buildings have been erected by a tres- passer or wrongdoer, whether innocently or knowingly so. It also applies where a tenant builds a building, permanent fix- ture to the soil, with the exception that a tenant is at lil)erty to re- move trade fixtures. Alining is a trade within the meaning of this exception. In Wake v. Hall,* the House of Lords held that the rule had no ai)plication to the case where miners erected buildings for mining purposes, nnder customs sanctioned by statute which entitled them to do so, and it was held that such fixtures could be removed from land which belonged to others within a reasonable time, though tlie miners Tmd no estate or term in the land. This decision would apjdy to erections for nuniiig purposes lawfully placed on the lands of an- other by a mineral owner for mining purposes. The decision was based on the proposition that the biuldings were from the first in- tended to be accessory to the mining, and that there was nothing to show that the property in them was intended to be irrevocably an- nexed to the soil. The Court of Apjjeal in Hiibson v. Gorringe,^ have held that tlie intention of the person affixing a fixture to the soil is material only so far as it can l^e presumed from ilie degree and object of annexation. In re the Brantford Electric and Power Company and Draper," Falconbridge, J., held that a covenant in a lease to pay for " buildings and erections" on the demised premises, covers and includes fixtures and macliinery, which would have been fixtures but for 58 Vict. c. 'ifi, s. 2, s.-s. {(■). This was su])sequently aflirmed by the Divisional Court and the Court of Appeal.'' ' Vol. II., 10th ed.. 202. ' (1883) 8 App. Cas. 203, per Lord Blackburn. « (1883) 8 App. Cas. 195. » (1897) 1 Chy. 182. » (1&96) 28 O. R. p. 40. ' (1897) 24 A. R. 301. !' ■'111! HS . ■: J ^^^mmmmmf mmmmmmmmmi mmmfm SB wm ■ippiili 134 FIXTURES m W In AVhitehcad v. Bennett/ Kindersley, V.C., held that while a tenant had a riglit to remove anything in the natiu-e of machinery, engines, or plant, yet there was no right to remove brick buildings though erected for the purposes of trade. In Lawton v. Lawton," and Foley v. Addenbrooke," a fire en- gine set up for the purposes of a colliery by a tenant lor life, went to the executor of the tenant as part of the personal estate, and not to the remainderman.^ Warner v. Don - was an appeal from the Supreme Court of Nova Scotia, in which it was held that the fixtures included in the meaning of the expression " personal chattels," by the 10th section of the Nova Scotia Bills of Sale Act, are only such articles as are not made a per- manent portion of the land, and may be passed from hand to hand without reference to or in any way affecting the land, and the " de- livery " referred to in the same clause, means only such delivery as can be made without a trespass or a tortious act. An instrument convevinsr an interest in land and also fixtures thereon, does not require "to be registered under the Nova Scotia Bills of Sale Act.-^ And there is now no distinction in this respect be- tween fixtures covered by a licensee's or tenant's mortgage, and those covered by a mortgage made by the owner of the fee. Sedgewick, J.^- Section 10 of the Nova Scotia Bills of Sale Act, enacts in part as follows: ''The expression 'personal chattels' sliall mean goods, furniture, fixtures, and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate." This provision was taken from the corresponding provision of the English Bills of Sale Act, 1854, and is an exact copy of it. The English clause has been altered by the Bills of Sale Act of 1878, and the amending Act of 1882, but these changes have not yet been adopted liy the Nova Scotia Legislature. The question upon this appeal is, is the engine here a personal chattel or a fixture within the meaning of section 10, or is it a part of the real estate? If it is such a fixture, the appellant's view must jjrevail, the engine being liable to seizure under execution against the mortgagor. Now, there is no doubt that at common law this engine, attached as it was to the free- hold, was a fixture within tlie primary meaning of that word.*'' Stress was laid at the argument before u.. ^ on the fact that this was " (1858) 27 L. J. Ch. 475. (1743) 3 Atk. 13. ■» (1844) 13 M. & W. 174. ' See Minshall v. Lloyd, (1837) 2 M. & W. 450. -■ (180G) 26 S. C. R. 388. -' R. S. N. S. 5th series, c. 92. " lb. p. 391. -'lb. p. 392. r LEASES 135 the case of a mortgage by a licensee or tenant, not by the owner of the fee, and cases were cited to which I shall expressly refer, dis- tinguishing between fixtures covered by a tenant's mortgage, and those covered by that of the owner. Admitting for the moment that the mortgage in question is a tenant's and not an owner's mortgage, I have come to the conclusion tliat there is now no such distinction to be made, and that it has been so declared, as well by the House of Lords as practically by the Imperial Parliament in the amending Act of 1878, to which I have referred. It was decided by Lord Ilatherley, when V.-C, Sir Wm. Page Wood, that if an instrument which convoys an interest in land conveys also machinery affixed to land, sucli in- strument does not reqiiire registration under the Bills of Sale Act. Mather v. Fraser.^"^ Tlie Court of Queen's Bench, in 18G9, followed that decision in Longbottom v. Berry.-- And in the Court of Ex- chequer Chamber, in 1872, when judgment was delivered by Lord Blackburn, in Holland v. Hodgson,-'' Lord ITatherley's view, in ^Mather v. Fraser, was referred to, and entirely approved. And so, too, in the case of Boyd v. Shorrock,^* decided in 1867, where the mortgage in question was made, not by the owner, but by a tenant." n-t ' (1856) 2 K. & .J. 536. (1869) L. R. 5 Q. B. 123. ' I^. R. (1872) 7 C. P. 328. (1867) L. R. 5 Eq. 72. m ■ m Ml, livl CHAPTEE VI. WORKINGS. The Bight to Work Mines has been described as a right of pro- perty which, when duly exercised, begets no responsibility. In giving judgment in Wilson v. Waddell,^ where it w^s held that mineral workings which caused a subsidence of the surface, and a consequent flow of rainfall into an adjacent coal deld, the in- juries being entirely from gravitation and percolation, are not a valid ground for any claim for damages, Lord Blackburn said,- '" The ques- tion seems to be, whether there is any servitude on the owner of the upper mines for the benefit of the owner of the mines on the dip, to jjreserve either the surface or the subjacent minerals as water-tight as the undisturbed state of the strata. No authority has been cited, either in a Scotch or an English Court, in favour of the doctrine that there is such a servitude. The general rule of law in both countries is, that the owner of one piece of land has a right to use it in the natural course of user, unless in so doing he interferes with some riglit created either by law or contract; and, as a branch of that law, the owner of the minerals has a right to take away the whole of the minerals in his land, for such is the natural course of user of minerals; and tbat a servitude to prevent such an user must be founded on something more than more neighborliood." An Owner in Fee Simple in possession of lands and the mines and minerals tlierein is entitled not only to work open mines, but also to open new mines.^ Qui jure suo ulililur nemhicm laedit. A Limited Owner* (such as a tenant for life or a tenant for years),"' may only work open mines and such other mines as are au- ■ (1876) 2 App. Cas. 95. ' At p. 99. ='Tiid(ir's L. C, Real Property & Conveyancing, 3rd Ed., p. 105. * As to dowress see Ch. VIII. infra. •■' See Chap. V. suina. WORKINOS 137 thorized to be worked by such limited owner in the grant, demise or other instrument creating the limited estate." The caso of the open mine is said by Lord Justice Bowen ^ to be not an anomalous ])ara(lox found embedded in tlie law of real pro- perty, but only an illustration of the mode in whicli the law gives a reasonable effect to the general language of a grant, even though the result is to allow the inheritance to be consumed by a limited owner. Digging new i)its in an open mine is not opening a new mine, and the produce of such new pits is income to which a tenant is entitled." The relative rights and liabilities of a limited owner of land and his successor are largely determined by the law of waste.** rrlmn facie, a lessee of lands has no right to bore for oil, and an interim injunction has been granted restraining a lessee from pumping oil from a well made by him for that purpose on the de- mised premises." In the absence of express or implied authority l)y tlie lease, neither the lessor, nor the lessee *" is entitled to open a new well and take oil.^^ "Saunder's Case (1599) 5 Coke, 22; Plymouth v. Archer, (1782) 1 Bro. C. C. 159; Vlnor v. Vaughan, (1840) 2 Beav. 466; Coppinger v. Gubbins, (1846) 3 J. & Lat. 397; Doherty v. Allman, (1878) 3 App. Cas. 734; Elias v. Snowdon, (1879) 4 App. Cjis. 454; Campbell v. Ward- law, (1883) 8 App. Cas. 641; Re Kemoy's Tynto., (1892) 2 Ch. 211; Ferrand v. Wilson, (1845) 4 Ha. 388; see Wentworth v. Turner, (1795) 3 Ves. 3. ' In Dashwood v. Magnla^, (1891) 3 Ch. 360. " Cowley V. Wellcsley, (1866) L. R. 1 Eq. 656; see Miller v. Miller, (1872) L. R. 13 Eq. 203; Elias v. Snowdon, (1879) 4 App. Cas. 454. As to the working by a tenant for life of dormant or abandoned mines, see Bagot v. Bagot, (1863) 32 Beav. 509. ' The English C.asos on the law of waste, which is based to a great extent upon the civil law of usu- fruct, per Bowen, L.J., (1891) 3 Ch. 362, are collected in Lord Chan- cellor Hardwlcke's judgment in Garth v. Cotton, and White & Tudor's notes thereon: (1750) 1 Ves. 524; 2 W. & T. L. C. (7th Ed.) 970. " Lancey v. Johnston, (1881) 29 Grant 67. •°Ib. "lb.; see as to "natural gas," Ontario Natural Gas Co. v. Smart, (1890) 19 O. R. 591; affirmed, 18 A. R. 626, which decided that " natu- ral gas " is a mineral. In West Virginia it has been held that " natural gas " is incapable of be- ing absolute property, and is cap- able of qualified property only, be- longing to him who first appro- priates it, and that a tenant was not liable to account for the value of gas produced from an oil well which the tenant had the right to make, and from which the gas is- sued by its own force. Petroleum Company v. Transportation Com- pany. (1886) 28 W. Va. 210. 138 CO-OWNERS A tenant is not entitled to remove minerals deposited upon the bed of a pool on the demised premises." If the limited owner holds his estate without impeachment of waste he may open new mines." A tenant for life of mines is bound to work them with due care and attention to the interests of those who are to come after." In Ontario an estate for life without impeacliment of waste does not confer upon the tenant for life any legal right to commit waste of the description known as equitable waste unless an intention to confer such right shall expressly appear by the instrument creating such estate.'* An action for permissive waste does not lie against a tenant for life." The law of waste regard.'- substance rather than technicality, and requires an act to be aj)])reciably injurious to the inheritance before it condemns it as waste.^" If the tenant has the right to mine, the property in the minerals, when severod, is in him, and lie has the right to sell and dispose of them, for if the severance is not waste the sale is not waste."' Co-owners. It has been settled that, as between co-parceners, joint tenant^, and tenants in common, the working of a mine in the ordinary way is not destructive waste wliich will be restrained, though it involves a consumi)tion of ])art of tlic inheritance. The law favors tlie profitable holding of land.*^ There is no such thing as ordinary waste between tenants in common,''* though there may be destructive waste, such as working a mine improperly, or cutting timl)or unseasonably. Consequently an injunction will not l)e granted against one co-tenant, on the ap])li- cation of another, for ordinary waste, tliongh an injunction has been "Thomas v. Jones, (1842) 1 Y. & C. Ch. 510. "Lewis Bowie's Case, (1616) 11 Co. Ri'p. 79b: See notes on this case, usually cited as the leading authority as to the powers of lim- ited owners of land, in Tudor's L. C. on Real Property and Convey- ancing, 3rd Ed., 49. " Per Lord Eldon, in Rowe v. Wood, (1822) 2 J. & W. 556. "The Judicature Act, R. S. O., (1897) c. 51, s. 58, s.-s. 2. '^ Patterson v. Central Canada L. Co., (1898) 29 O. R. 134; follow- ing In re Cartwright, (1889) 41 Ch. Div. 532. '"Per Bowen, L.J., In Dashwood v. Magniac, (1891) 3 Ch. 360. "" L«'wis v. Gordon, (1888) 15 O. R. 252. " Eteshwood v. Magniac, (1891) 3 Ch. 360. '"Goodwyn v. Spray, (1786) 2 Dick. 667; Smallinan v. Onions, (1792) 3 Bro. C. C. 621. WORKINGS 139 granted on such an application for malicious injury, amounting to destructive waste.'" In Job V. Potten '"' it was decided not to be destructive waste for a tenant in common of a coal mine to get, or to license another to get, the coals, should the working tenant not appropriate to himself more than his share of the proceeds. The plaintiff, a tenant in common of a coal mine, had notice of a negotiation which was followed by a lease for three years, in which he did not join, by his two co-tenants, dated in December, 1S()5, of two undivided thirds of the coal, witli a license to work the coal. Under this license some coal, but considerably less than two-thirds of tlie whole was raised, and one-third of the royalty was kept by the licensee for the plaintiif. A negotiation for a further license was on foot, when, in October, 1872, the plaintiff filed a bill against his co-tenant and the licensee, praying for an inquiry as to the value of the coals raised and an account against all the defendants as tres- l)assers, and for an injunction and receiver and for damages. It was lield that the working was not a trespass, and the plaintiff elected to dismiss the bill with costs against his co-tenants, and a decree went against tlie licensee for an account of the value at the pit's mouth of the coal raised, less cost of getting and raising, and for payment of one-tliird to tlie jilaintiff. Bacon, V.C'.,^' said : " ^Mr. Jones has done nothing tortious, neither larcenous nor negligent, but in the assertion, as I conceive, of the exercise of a strict right, has brought this coal to the surface, has accounted to the two co-tenants for what he and they agreed was its value, and he is accountable to the plaintiff for what shall appear to be its value, sul)ject to those deductions." In Ontario it has licon decided that one tenant in common will be restrained at tlie suit of a co-tenant for digging earth for bricks on the joint proporty.-- Any co-parcener, joint tenant or tenant in common of a mining property luis a right to enter upon, occupy, and work the property, mm '"Hole V. Thomas, (1802) 7 Ves. 589, per Lord Eldon; followed in Arthur v. Lamb, (1865) 2 Dr. & Sm. 428; see Bailey v. Hobson, (1869) L. R. 5 Ch. 180. Sec also Wilkin- son V. Haygarth, (1847) 12 Q. B. 837. =» (1875) L. R. 20 Eq. 84. " At p. 97. --'Dougall V. Foster, (1853) 4 Grant 319 (per Blake, C, and Spragge, V. C, Esten, V. C, dis- senting; followed by Spragge, C, in Goodenough v. Farquhar, (1873) 19 Grant, 614; see also Bishop of London v. Web, (1718) 1 P. W. 527. mmmmmmm mmfmm i i ! I i : 140 CO-OWNEKS and to interfere with the legitimate exercise of this right would be to deny an essential quality of the title." AMiere there is not actual ouster or exclusion the only remedy by one tenant in nnnimon against another, so using the common pro- perty, is an action for an account ''* against the co-owner who has received more than his share," or he may proceed by partition.^" The remedy under the statute of Anne " is not an action for money had and received, but an action of account, in which all just allowances may be made.^* One tenant in common can not maintain an action against his co-tenant for contribution to expenditures upon the common property unless there is an agreement express or implied by the latter to con- tribute to such expenditures. Nor has the former any lien*" for moneys so expended.'" As observed by Lindley, L-J.,""* tenancy in common is a tenure of an inconvenient nature, and is unfit for persons who can not agree among themselves. The owners of contiguous estates, who were tenants in common of the mines beneath, have been held equally entitled to the landing rent paid on foreign coal raised through a shaft which had been con- structed by a lessee of the mines, but which was made in the separate property of the defendant.'* Where there is partnershii) both in the mine and in the worlving and profits thereof the general law of partnership, except as modified by statute, applies.'"' The liabilities and risk' incident to such a state of affairs are so great that usually a Joint siock company is incor])orated. " Per Blake, C, In Dougall v. Foster, (1853) 4 Gr. 323; Henderson V. Eason, (1851) 17 Q. B. 701. =* Under 4 Anne, eh. 16. -'Denis v. Shuckburgh, (1840) 4 Y. & C. 42; Jacobs v. Seward, (1872) L. R. 5 E. & I. Ap. 464. =» Dougall V. Foster, (1853) 4 Gr. 324. " 4 Anne, c. 16, s. 27. =■< Thomas v. Thomas, (1850) 5 Exch. 28. =» Leigh V. Dickeson, (1884) 15 Q. B. D. 60. ""Kay V. Johnston, (1856) 21 Beav. 536; Teasdale v. Sanderson, (1864) 33 Beav. 534; see also Dent V. Dent, (1861) 30 Beav. 363. '"In Leigh v. Dickeson, (1884) 15 Q. B. D. 69. '■' In Clegg V. Clegg, (1861) 3 Gift. 322. *^ As to mining partnership in British Columbia, ride " Mineral Act," Part IIL, infra, c. XVIII. See, howover, the dictum of Sir John Loach in Fereday v. Wight- wick, (1829) 1 R. & M. 49. Re German Mining Co., (1853) 4 De G. M. & G. 41. WORKINGS 141 Where mining j^'operty, whetlier freehold or leascliold, i< pur' cha.sed with partnersliii) funds for partnorsliip purposes, it is well settled that sueli ])roperty is regarded as part of the stock in trade of the partnership, and has to every intent the quality of personal estate."* Where there is co-ownership of the mine and partnership in the working thereof only, the rights and liabilities of the parties are governed partly hy the law of partnership and ])artly by the law of co-ownership." In Prendergast v. Thurton "" a so-called joint stock company was established to work a mine, and certain calls were made as to whicli there was a question whether they were validly made or not. The plaintiff declined to pay those calls, and there was a delay of nine years, which might be made up to eleven years. Vice-Chancellor Knight Bruce, L.J., said:''^ "This is a mineral property, a property therefore of a mercantile nature, exposed to hazard, fluctuations, and contingencies of various kinds requiring a large outlay, and producing perhaps a considerable amount of profit in one year and losing it the next. It requires, and of all properties perhaps the most requires, the parties interested in it to be vigilant and active in asserting their rights. This rule, frequently asserted by Lord Eldon, is consonant with reason and justice. Lord l^lldon always acted ui)on it, and it has been followed by subsequent Judges of great knowledge, experi- ence and eminence." It was held, upon the ground of the peculiar natiire of a mining concern, that the plaintiff had no right to stand by and wait till it appeared clearly that it was worth his while, and then come and assert his interest in the mine. In the case of co-ownership there is a right to partition, though in certain cases, in the partition proceedings, a sale may be directed, whereas in case the mine is ])artnersbip property any partner may insist upon a sale. It is a fundamental principle that it is implied in ''Crawshay v. Maule, (1818) 1 Swanst. 495; Fereday v. Wight- wlck, (1829) 1 R. & M. 49. Re Phillips V. Phillips, (1832) 1 Myl. & K. 649; Darby v. Darby, (1856) 3 Drew. 506; Steward v. Blakeway, (1869) L. R. 4 Ch. 609. =' Bentley v. Bates, (1840) 4 Y. & C. 182; Wynget v. Hcathcote, (1840) 4 Y. & C. 187; Crawshay v. Maule, (1818) 1 Swanst. 495; Jeffreys v. Smith, (1820) 1 J. & W. 298; Roberts v. Eberhardt, (1853) Kay, 159; Wild V. Milne, (1859) 26 Beav. 504. ™ (1841) 1 Y. & C. Ch. 98; followed by Kay, J., in Rule v. Jewell, (1881) 18 Ch. D. 666. "At page 110. '''''i nlutlilnil ' ' IHi^ illfl I" IJ il mfmmm mmmm 148 illXhJ OWXtnt V. SURFACt) OUAKB every contract of partnership, that, quite independently of any ex- press stipulations contained in the contract of i)nrtneislii|), at the dissolution of the partnership all the property of the partnership, whether it is personal or leal, whether it is stock in trade or leasehold or freehold, is to he sold, and the net proceeds, after satisfying the partnership debts and all the partnership liabilities, are to be divided amongst the partners,-'"' The Belative Rights and Duties of the Mine Owner and the Surface Owner were considered in He Williams v. (iroucott,''" where Cockburn, C.J., says: ^'' "The question is certainly a nice and also a novel one, namely, whether, when a mine has been severed from the ownership of the surface soil, with license to the owner of the mine to sink a shaft through the surface, it is incumbent upon him to protect the owner of the surface against injury to his cattle ly reason of the shaft, or whether it rests with the owner of the surface to protect them against it himself. On this subject there is no ])nsitive law, or statu- tory enactment, or mining custom, and in the actual case there is no stipulation as to the duty of fencing the shaft. ... 1 am of opinion that it is more reasonable to exjiect that the man whose act produces the fliinger should do all that is reasona1)ly necessary to pi"e- vent injurious consequences to the owner of the surface soil, who does not know that a shaft will be sunk, or, if so, when or where it will be sunk." In the same case Blackburn, J., says : ^^ " Xow, looking at the general rule of law, that a man is bound to use his property so as not to injure his neighbor, it seems to me, that when a party alters things from their nornuil condition so as to render them dangerous to already acquired rights, the law casts on him the obligation of fencing the danger, in order that it shall not be injurious to those rights." In Cireat Laxey ]\Iining Company v. Clague,'"' the distinction between an action against a MTongdoer for a trespass, or against a person negligently and improperly exercising a right so as to injure another, and an action against a person exercising his rights not negli- gently or impro]ierly, but subject to a condition that he should pay compensation for damage done, is pointed out. and it was held that the iiarty receiving such compensation is thereby put in as good a "Per Bowon, L. J., in A. G. v. AilGsbury, (1885) ]<; Q. B. D. 437. « (1863) 4 B. & S. 149; considered in Great Laxey Mining Company T. Clagiii', (1878) 4 Arp. Gas. 115. See also Sybray v. White, (1836) 1 M. & W. 435. " At p. 155. ™p. ii;7. "(1878) 4 A pp. Cas. 115. WOltKINdS 143 position as if the (lainago oi; whieli lio complainod had never been done, and that iil'ter receiving such compensation he will liave no riglit of action for any subsecjuent damage he may siill'er from the f^anie caus-e. Employer's Liability. It was liebl in Ikydon V. Stewart '' that a master is bound to take all reas()nal)le precautions to secure the safety of his workmen. It is nc answer to the chiim of damages by the surviving relatives of a worknuin accidentally killed in a mine, *' which was not in a safe and suiUcient state," to say that he was at that moment of time in the act of leaving the work for a i)ur|)ose of liis own. The master who lets the workman down his mine is bound to bring him up safely, even thongh he come up for liis own business, and not for that of his master. Lord Cranworth, L.C., said: " '' Xot only is there that responsibility by the law of Scotland, but clearly also by the law of England, which is thought to bo less strict on this l)oint. A master by the laws of both countries is liable for accidents occasioned by his neglect towards those whom he employs.'' Miners are entitled to the benelit of " The Workmen's Compen- sation Act"' in Ontario, and "The Employers' Liability Act'"* in British Columbia, in the light of which the common law lialulity of e)ni)loyers to their workmen must now be read. Statute of Limitations As pointed out by Sir W. Grant, M.K., in Seaman v. A'awdrey," mines are frequently purchased or reserved, not only without any view to their immediate working, but for the ex- l)ress purpose of keeping them unwrought. The relincpiishment of the right to work mines cannot, there- fore, be presumed from its non-exercise. Parke, !?., in giving judgment in Smith v. Lloyd, ^" decided that where the owner of the fee simple of a close, witli minerals inider it, conveyed the surface reserving the minerals, with the right of entry to got them, and he afterward granted the minerals with such right, mere non-user for more than forty years, no other person having worked or having been in possession of the minerals, was not suiTi- Ell w iiHy wt ill llllj m$ Hill hdB|( ,)',! ^rnfrl II p! ii !;;- WvTl ' 1 ■■■^\ ,: 'ffill(ll9 '..",■. I:, i w 1 H 1 1 ii a\ iiiy III :' t! hi •■ (1855) 2 Macq., H. L. Scotch, 30. » At p. 35. ' R. S. O. (1897) c. 160. s. 2, s.-s. 3. 'R S. B. C. (1897) c. 69, s. 2, s.-s. 3. ' (1809) 16 Ves. 392. see also Hodgkinson v. Fletcher, (1781) 3 Doug. 31; Adair v. Shaftoe, (1812) 19 Ves. 156; Norway v. Rowe, (1812) 19 Ves. 156; Keyse v. Powell, (1853) 2 E. & B. 132; Low Moor Co. V. Stanley, (1875) 34 L. •I. (1854) 9 Exch. 562, at page 572; T. N. S. 186. 144 STATLTi: OF IJMITATIOXS tl I (iont under M & 4 Will. IV. c. 7, ss. 2 nnd 3, to bar the grnntoc'a ri<;lit of entry to get the niinornls. 'i'hnt statute does not apply to cases of want of actual jwssession ])y the ])]aintilf, but to those acts only where he was out of and another party in possession for the pre- scribed time; for there must be both absence of possession by the ])crson wiio has the right, and actual possession by anotlier, whether adverse or not, to be protected, to bring the case witliin the statute. We entirely concur in the judgment of IJlackburn, (!.J., in j\[ac- donnell v. McKinty,^ and the principle upon which it is founded. So in Ashton v. Stock.''' The facts were, that the plaintiifs were seized in fee of lands to which their predecessors derived title under a conveyance in the reign of (iuecn I'^lizabeth, wherein the grantor reserved to himself and his heirs male a rent-charge of 7s. 8d.^ and which contained a proviso that the grantee and his heirs should not dig or get any coal upon the lands for sale, but only such as should be burned or employed thereon. The defendant, claiming title under a demise from a descendant of the same grantor, had for more than twenty years worked from mines of his own under adjacent lands — into, and had taken coals from, the mines under the ])laintifrs land. And it was held, tirst, that the proviso in the original convey- ance was not a repugnant condition, and that it did not affect the amount of damages which the plaintiffs were entitled to claim as imder it the grantee was still entitled to get all the coal for his own use, though not to sell it ; secondly, that the defendant had not acquired any title to the mine by possession under the Sta- tute of Limitations, and that the plaintiifs were entitled to an in- junction with an account for six years, and, thirdly, that, as the de- fendant had been working under a hoiia fide belief as to his title, he was entitled, in taking the account, to an allowance of his expenses of severing the coal as well as bringing it to bank. The owner of the minerals would be dispossessed if they were worked either by the owner of the surface or a stranger."^ Tser by a stranger of a portion of the surface of land containing minerals has been held sufhcient, to give a title, under the statute, not only to the surface, but also to the minerals thereon. "- Possession of part of a mine, in the absence of possession of the f '(1847) 10 Ir. L. R. 514; also approved in Agency Company v. Short, (1888) 13 App. Cas. 799. » (1877) 6 Ch. Div. 719. ■' Rich d. Lord Cullen v. John- ston, (1745) 2 Stra. 1142. ■^Seddon v. Smith, (1877) 36 L. T. N. S. 168. WORKINGS 143 Biirface, will only give title under the statute to such part, and not to the continuous vein."" The Heal Property Limitation Act " is substantially a reproduc- tion of the JCnglisii legislation, the period of 20 years fixed by 3 & 4 Wm. IV. (Imp.) 1833, c. 27, s. 2, whicli was reduced to 13 years by the Kial Properly Limitation Act, 187V being further reduced in Ontario to 10 years. To bar the title of the true owner under this Act, there must be not only want of possession by him, but also actual and continued puBsession, whether adverse or not, by the party claiming. In Thew v. Wingate," and Smith v. Stocks," there was such actual possession by the person claiming as was held sutlicient to bar the original owners. Way Leave, in Phillips v. Ilomfray"' the defendants were hold liable for wrongfully conveying coals through the plaintilf's pro])erty, and damages w re assessed by an inquiry as to what was proj)er to be paid for way leave. Specimens of the ores, minerals and other products of any mine being worked in Ontario are required,"; on request, to bo furnished by the respective owners of such mines for the School of Practical Science and the museum established in connection therewith, and in default the owners are liable to a fine. Rights, duties and liabilities arising in the working of mines are discussed in regard to Support in Chapter IX. (infra); in regard to Water in Chajjter X. (infra); in regard to Air, in Chapter X. (infra). The Statutory Mining Eegulations'" in force in the various parts of Canada are printed and commented on as follows: Those re- lating to mines in Ontario, Chapter XIV.; Quebec, Chapter XV.; New Brunswick, Chapter XVI.; Nova Scotia, XVII.; British Columbia, XVIII. ; Territories of the Dominion, XIX.>« " Earl of Dartmouth v. Spittle, (1871) 24 L. T. N. S. 68; Ashton v. Stock (siiiH-a); McDonnell v. Mc- Kinty (supra). ' R. S. O., 1897, c. 133. ' 37 & 38 Vict. (Imp.) c. 57, s. 1. ' (1862) 10 B. & S. 714. » (1869) 10 B. & S. 701. »' (1871) L. R. C. Ch. 780. "■ By R. S. O. (1897) c. 30C. s. 5. '" See Index. 10- M CHAPTER VII. ALIENS AND FOREIGN CORPORATIONS. As to Aliens. The cxchi.sive statutory jurisdiction respecting " nnturnlization and aliens" resides witli tlie Parliament of Canada,' hut in each Pro- vince the respective Legislative Assenihlies thereof have exclusive statutory jurisdiction respecting " Property and Civil Rights in the Province." '^ The capacity of aliens to take and hold land within the Domin- ion of Canada, though not comprised in any Province thereof, and in the various Provinces thereof, is as follows: Throughout Canada. " Real and i)ersonal property of any de- scription may he taken, acquired, held and disposed of hy an alien in the same manner, in all res])ects, as hy a natural-horn British sub- ject; and a title to real and personal ]n"0[)erty of any description may he derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural- born IJritish subject." ^ This legislation undoubtedly applies to all Dominion lands, and enables aliens to hold lands in the Territories and also in the various Provinces, at all events if there is no contlicting provincial legislation. In Ontario. " On and from the 23rd day of November, 1819, every alien shall be deemed to have had, and shall hereafter have, the same capacity to take by gift, conveyance, descent, devise, or other- wise, howsoever, and to hold, possess, enjoy, claim, recover, convey, 'B. N. A. Act, (1867) s. 91, s.-s. =B. N. A. Act, (1867) s. 92, s.-s. 25. 13. ' R. S. C. (1886) c. 113, s. 3. ALItlMS wi (Icviso, impart luul transinit renl estate in this I'roviiKt', as natiiriil- born or natnnilizod Hul)jt'ets of Her Majesty."* "The real estate in Ontario of an alien dyinji intestate sliaP descend and he tninsiiiitted as if the same had lieeii the real estate of a niitural-horn or mitnralized sid)ject (d' Her Majesty."'' "Nothing herein contained siiall alter, impair or alTeet, or he constrned to alter, impair or alVect in any manner oi' way whatsoever, any right or title legally vested in or actnured i)y any person or per- sons whomsoever hei'ore the "ilird Novend)er, 1H1!>."" In Quebec. Aliens have a right to nctpure and transnut hy /jratuitoiis or onerous title, as well as hy succession or i)y will, all movalilo and immovahle property in Lower Canada in the same manner as Uritish-horn or naturalized suhjeets.'' In New Brunswick. 'I'lie (ieneial .Mining Act'' provides that r.liens as well as ]{ritish subjects may enjoy the benefit of the Act by complying witii its jn'ovisions and subinitiing thereto. In Nova Scotia. Aliens may take, hold and convey and tiansmit real estate.'" and trust companies or corporations having a legal status in any i'oreign state nniy hold real estate hy way of mort- gage or otherwise in furtherance of any trust they nuiy assume in connection with any enterprise or undertaking within the Province of Xova Scotia, with full jiower to such coin])anies or corporations to convey and transfe'- the same,*'" and no tith; to real estate shall i)e in- valid on account of the alienage of any former owner or holder thereof," or because the same was formerly owned or held by a foreign corporation."* 'J'he children and grandchildren of natural-horn British subjects, though horn in a foreign country, are not aliens, and are, therefore, ca]mble of transnutting real estate in this Province by descent and otherwise. Where there is a i'ailure of inheritable blood by reason of alienage, the lands do not escheat, but go to the next heir."- The law reipiires strict jn-oof from the parties who set up an alienage as c.gainst title."" * R. S. O. (1897) c. 118, s. 1. »Ib. s. 2. " The date when the original Act came Into force. lb. a. 3. ' Article 25 of the Quebec Civil Code. "S. 3; passed 16th April, 1891. See Chap. XVI. infra. " S. 1 of c. 86 of the Revised Statutes of Nova Scotia, 5th series. *- Acts of 1891, 8. 1. ° lb. s. 2. »' Acts of 1891, c. 20. s. 2. "-Salter v. Hughes, (1864) 5 N. S. R. 409; 1 Old. 409. •■■ Williams V. Myers, (1871) 8 N. S. R. 157; 2 N. S. D. 157. i J I'. III ■ i! m il 148 BIIITISH COLUMBIA In British Columbia. " Every alien shall be deemed to have had, and shall hereafter have the same caimcity to take, hold, enjoy, recover, convey and transmit title to lanJ. and real estate of every description in this Province, as if he were a natural-born British sub- ject, and no pei'son shall be disturbed in the possession or precluded from the recovery of any lands or real estate in this Province by rea- son only that some person from or through whom he may derive his title was an alien." '" The real estate in this Province of an alien dying intestate shall descend and be transmitted as if the same had been the real estate of a natural-born or naturalized subject of Her ^lajesty." Any alien, upon making a declaration in the prescribed form of Ills intention to become a British subject, may record unsurveyed Crown lands. *^ Special provisions were made by the Chinese Regulation Act ^^ as to the sura payable by a Chinese for a free miner's certificate, and it was also provided, "Any Chinese who shall be found mining for gold and precious metals, or following the ordinary occupation of a free miner, whether on his own account or for others, without having in his possession a free miner's certificate, lawfully issued to him subse- quently to the passage of this Act, and any person who shall employ any Chinese in and about gold mining, who has not in his possession such a certificate, shall forfeit and pay a sum not exceeding $30.'' ^' This jjrovision was held to be ultra vires in Regina v. Wing Chong,*' and has been omitted from the Revised Statutes of 1897. " No Chinaman shall be employed in, or allowed to be for the purpose of employment in, any mine to which this Act applies, below ground." - It was held by the Supreme Court of British Columbia in re The Coal Mines Regulation Amendment Act, 1890,'' that the above provision was within the costitutional power of the Provincial Legis- lature as being a regulation of coal mines, and was not ultra vires as an interference with the subject of aliens. "> R. S. B. C. (1897) c. 6, s. 2. " lb., s. 3. "See "Land Act," R. S. B. C. c. 113, 8. 5. " (1888) Con. Stat. B. C, c. 18, s. 14. »S. 15. " 1 B. C. R. (part 2) 150. -■ See " Coal Mines Regulation Act, R. S. B. C. (1897) c. 138, s. 4, formerly " The Coal Mines Regula- tion Amendment Act, 1890." '' (1896) 5 B. C. R. 306; an appeal from this decision to the Supreme Court of Canada was quashed. The judgment Is not yet reported. FOREIGN CORPORATIONS 149 As to Foreign Corporations. The comity of nations distinctly recognizes the right of a foreign incorporated company to carry on business and make contracts with- out the country in which it is incorporated, if consistent with the purposes of the corporation, and not prohibited by its charter, and not inconsistent with the local laws of the country in which the business is carried on, subject always to the restrictions and burthens imposed by the laws enforced therein.* In all the Piovinccs, except Quebec, and in the Territories of Canada, the Statutes of ^lortmain " are in force, except as modified by Canadian or provincial legislation. In Ontario. Under the Statutes of Mortmain *^ an alienation in mortmain is voidable only, and not void, and where lands are held in free and common socage, the lands so aliened can only be forfeited by the Crown, and that only after office found. ^ The effect of these statutes upon the rights of corporations is stated by Street, J.," to be that a conveyance to a corporation (not expressly forbidden by their charter to take lands at all) without a license to take in )nortmain mIU vest the lands in the grantees, sub- ject to the right of the Crown to enter and declare tlic land forfeited. In this case " the opinion was expressed that an Act might be passed by the Dominion Parliament tliat a license from the Crown sliould not be necessary to enable any corporation to hold lands within the Dominion. " Such a law would not prevent the Provinces from passing laws ])reventing altogether or restricting and regulating the holding of lands by corporations in such I'rovinces. It would l)e merely an abnegation on the part of the Crown of its prerogative right to re- quire a license." ^ The Provincial Legislatures having exclusive jurisdiction over niu * C. p. R. V. Western Union Tele- graph Co., (1889) 17 S. C. R. 151, at p. 155. " Seo '/"/(', p. 5, note 11. ' Per Armour, C.J., McDiarmid v. Hughes. (1888) 16 0. R. 570. at p. 576. See. however, R. S. O. 1897. c. 114, allowing the Attorney- General to take possession of lands forfeited for any cause except crime, or in case possession is withhold, to cause an action to Ik' brought for the recovery thereof without any inquisition be- ing necessary. " lb. p. 579. ' lb., per Armour, C.J., p. 577. li 150 LICENSE " property and civil rights," * may impose conditions and restrictions upon foreign corporations holding lands or mining rights in the vai-i- ous Provinces. The Ontario Companies Act " provides that any company in- corporated otherwise than hy or under the authority of an Act of the Legislature of Ontario, desiring to carry on any of its business, which is within the scope of the Companies Act, witliin tlie Province of Ontario, may petition the Lientenant-Uovernor in Council for a license so to do, who may thereupon autliorize such company to nse, exercise and enjoy any powers, privileges and rights set forth in such license. Before the license is issued a verified copy of the Act, charter or other instrument incorporating the company, must he deposited Avith the Provincial Secretary, together with a duly executed power of at- torney, empowering some person named therein and residing in On- tario to act as its attorney. Xotice of the license must l)c pul)lislied in the Ontario Oazctto, and the license, or an exemplification thereof under the Great Seal of Ontario, is made sufficient evidence in any Court in the Province of the due licensing of the company. Certain returns must he made to the Provincial Secretary on or before the 8th of [''cbruary in every year, in default of" which the com- pany and its officers, who knowingly and wilfully autl\orize or permit such default, incur a i)enalty of $20 for every day during wliich tlie default continues. Power is given to the TJoutenant-Ciovernor in Council to suspend or revoke llic license by Order in Council, if the company refuses or fails to com])ly with the provisions of the section. The statutory ])rovisions as to Extra Provincial Alining Com- panies '" are printed in Appendix I. There is no enactment ex])ressly prohil)ifing a couipany incorpo- rated elsewhere tlian in Ontario doing l)usiness in tlio Province, liut to enable such a coini)any to hold mining property, i.e., real estate, in the Province, if is necessary that flie license provided for should be ol)fained. Tin's rule clearly applies to cou)|)anies incor]iorat('d l)y the other Provinces of Canada, but wliether the case of a Dominion incorporation constitutes an excei)tion is doubtful. It would seem to follow from the opinion of the Queen's Bench Divisional Court in IMcDiarmid v. Hughes' that such a license is not ' Ss. 13, 8. 92, of the B. N. A. Act, 1867. •R. S. O. (1897) c. 191, s. 107. '"R. S. O. (1897) c. 197. ss. 10, 11. Siipta. FOREIGN CORPORATIONS 151 necessary to entitle a Dominion company to hold lands in the Pro- vince, but that opinion was not made the basis of the decision of the Court and can scarcely be reconciled with the decisions of the Privy Council as to the executive and legislative powers of the Provinces, and as to the relation between the Crown and the Provinces. The decision of the Privy Council in Liquidators ^Maritime Bank V. Keceiver-General,- " That a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of Pro- vincial Government as the Governor-General is for all purposes of Do- minion Government " ; and the dictum of Sir Montagu Smith in Citizens Insurance Co. v. Parsons * appear to point the other way. The point was discussed but not decided in The Colonial Build- ing and Investment Association v. Attorney-General of Quebec* In Quebec. A corporation, whether merely trading or not, and whether foreign or domestic, is incapacitated from accjuiring as well as froi' 'Iding lands without the consent of the Crown being first obtaint-.,. For the purposes of this rule, all mining companies incorporated elsewhere than in Quebec, including companies incorporated under Imperial Acts, by the Dominion Government, and by the other Pro- vinces would Ije considered foreign companies. In Nova Scotia corporations having a legal ?tatus in any foreign slate may hold real estate by way of mortgage or otherwise in further- ance of any trust they may assume in connection with any enterprise or undertaking within the Province, with full power to convey and transfer the same.^^ In New Brunswick. Where, in an action of trespass, title is set u]) under a deed from a foreign corporation, there must l)e proof of the creation of the corporation in tlie country in wiiich it professes to have been incorporated. ''- In the District of Yukon. The Placer Mining llogulations of 18th January, 18i)8, define "Joint Stock Company" to mean "any = (1892) A. C. 443. ' (1881) 7 App. Ciis. 117. ♦ (1883) 9 App. Cas. 157, at p. 166. » Chaiidiere Gold Mining Co. of Boston v. Desbamts, (1873) L. R. 5 P. C. 277; Colonial Building & In- vestment Assn. v. Attorney- General of Quebec, (1883) 9 App Cas. 166. "' Acts of 1891, c. 20, s. 1. "- Young V. Milne, (1889) 28 N. R. R. 186. fl r n I 152 EXTRA PROViyCIAL COMPANIES company incorporated for mining purposes under a Canadian Charter or licensed by the tlovernment of Canada." In British Columbia. " Extra Provincial Company " is defined to mean a duly incorporated company other than a company incor- ])orated under the laws of the Province of British Columbia." " Unless otherwise provided by any Act, no Extra Provincial Company having gain for its purpose and object shall carry on any business within the scope of this Act in this Province unless and until it shall have been duly licensed or registered under this Act, and thereby become expressly authorized to carry on such of its busi- ness as is specified in the license or certificate of registration, and no company, firm, broker or other person, shall, as the re])resentative or agent of, or acting in any other cai)acity for any such Ivxtra Pro- vincial Company, carry on any of its 1)usiness within this Province until such comi)any shall have obtained such license or certificate of registration; and any such company which fails or neglects to obtain such license or certificate of registration shall incur a penalty of $50, iecnveral)le upon summary conviction, for every day during which it carries on business in contravention of this section; provided that this section shall not apply until the first day of January, 1898, to any Extra Provincial Company carrying on business within this Pro- vince on the date of the jiassage of this Act, and further provided that proof as to compliance with this section sliall at all times be upon tlie company.'' "Any Extra Provincial Company, duly incorporated under the laws of fJreat Britain or Ireland, or of the Dominion of Canada, or of the late Province of Canada, or of any of the Provinces of Canada, duly authorized by its charter and regulations to carry out or effect any of the purposes or objects to which the legislative authority of the Legislature of British Columbia extends, may obtain a license from the registrar authorizing it to carry on business within this Province on compliance with the provi- sions of this Act, and on payment to the registrar in respect of the several matters mentioned in the table marked B in the first sche- dule hereto the several fees therein specified, and shall, su])ject to the provisions of the charter and regulations of the com])any and to the terms of the license, thereupon have the same powers and privi- leges in this Province as if incorporated under the provisions of this Act.« " " Companies Act,' (1897) c. 44, s. 1. R. S. B. C. ' S. 123. ' S. 124. FOREIGN CORl'ORATIONfi 153 " Before the issue of a license to any such Extra Provincial Com- pany, the company shall file in the office of the registrar: — (rt) A true copy of the charter and rogiilations of the company, verified in manner satisfactory to the registrar, and showing that the company by its charter has authority to carry on business in tlie Pro- vince of British Columbia; (&) An affidavit or statutory declaration that the company is still in existence and legally authorized to transact business under its charter; (c) A copy of the last balance sheet of the company and auditor's report thereon; {(I) A duly executed power of attorney, under its common seal, empowering some person therein named, and residing in the city, or place where the head otFice of the comjiany in this Province is situate, to act as its attorney and to sue and be sued, plead or Ije impleaded in any Court, and generally on behalf of such company and witliin the Province, to acce])t service of process and to receive all lawful notices, and to do all acts and to execute all deeds and other instru- ments relating to the matters within the scope of the power of attor- ney and of the company to give to its attorney, and such company may from time to time, by a new or other power of attorney executed and deposited as aforesaid, appoint another attorney within the Pro- vince for the puri)oses aforesaid to replace the attorney formerly aj)pointed. The power of attorney may be according to a form ap- proved of and provided l)y the registrar." " Provision is also made as to what the license shall contain and for publication thereof.'" The Lieutenant-Governor has power to revoke licenses.* " Any Extra Provincial Com])any duly authorized by its charter and regulations to carry out or etfect any of the purposes or object^ to which the legislative authority of the Legislature of British Columbia extends, may register the company as a company under this Act on com])liance with the provisions thereof, and on i)aym(Mit to the registrar in respect of the several matters mentioned in tin) table marked I? in the first schedule hereto, the several fees therein specified, and such company shall, sul)ject to the provisions of the charter and regulations of the company, and of this Act thereupon have the same powers and privileges in this Province as if incorpo- rated under the ])rovisions of thir. Act." " •S. 127. "> S. 128. ' S. 131. 'S. 132. I i 154 ir/.Y«/.vo UP Winding Up. Tlie application of " Tlie Winding-up Act "' ^ to foreign corporations doing business in Canada, was discussed in Mercliants Bank of Halifax v. Gillespie,* and in Allen v. Hanson in Re Scottish-Canadian Asbestos Co.° Where a winding-up order was made under the Act by the Su- preme Court of New Brunswick, of an insolvent company having offices in London, England, and in the Provinces of Quebec and New Bruns- wick, the Supreme Court of Nova Scotia held, on an appeal by the liquidator, against an attachment issued in Nova Scotia, by a creditor, after tlie making of the winding-up order, upon assets of the com- pany in Nova Scotia, in transit, that the claim in question was clearly one which could be dealt with in the winding-up proceedings, and that the provisions of *' The Nova Scotia Judicature Act," in relation to foreign corporations doing business by an agent within the Pro- vince, refers only to companies carrying on a regular and continuous business, and not to companies which have merely a few isolated business transactions.'' ' R. S. C. (1886) Ch. 129. * (1884) 10 S. C. R. 312, » (1890) 18 S. C. R. 667. Order 47, R. 1. ' Salter v. St. Lawrence Lumber Co. (Ltd.), (1896) 28 N. S. R. 335. CHAPTEE VIII. SALES, DOWER, MORTGAGES, ETC. G-rantS Generally- Prima facie, the owner of the land has every- thing under the sky down to the centre of the eartli.' The general presiinii)tion of law is; Cnjus est solum, ejus est usque ad coehim et ad inferos. This presumption nuiy, however, be rebutted as has been shown." In Keyse v. Powell,- Lord Cami)bell, C.J. (for the Court) said: " The surface and the minerals may be dissevered in title, and be- come separate tenements, as appears abundantly from the cases cited, Curtis V. Daniel,^ and Humphries v. Brogden.^ But the presumption is to the contrary. . . . And in Lewis v. Branthwaite,"' . . . Littledale, J., adds: 'It is not disputed that a freeholder, or one holding under him, for life, for years, or at will, has possession of tlie soil from the surface to the centre of the earth,' " etc. In Low Moor Co. v. Stanley Co.," the effect of a bargain and sale of minerals to a man, his executors, administrators and assigns, was held to create a tenancy at will, the deed not having been en- rolled, but having been followed by possession of the seams of coal, gave the tenant a good title so as to enable him to maintain an action of trespass against wrongdoers. In Ontario all corporeal tenements and hereditaments, as regards the conveyance of tlie immediate freehold thereof, are deemed to lie in grant as well as in livery.** ' Per Bowen, L.J., Pountney v. Clayton, (1883) 11 Q. B. D. 838. Art. 414 of the C. C. of Lower Canada provides, that " ownership of the soil carries with it the ownership of what is above and what Is below it." " See iniiv, p. 55. = (1853) 2 E. & B. 144. ^ (1808) 10 East, 273. * (1848) 12 Q. B. 739. ^ (1831) 2 B. & Ad. 437. " (1876) 34 L. T. N. S. 186. « R. S. O., 1897, c. 119, s. 2. 15G GRAXTS This is likewise the case in British Columbia and the North- West Territories." When the ownership of the surface is severed from the owner- ship of the sul)jaccnt mines or strata of minerals, such mines or strata are corporeal hereditaments, and in Ontario, British Columbia and the NoHh-West Territories lie in grant. A right to work mines is an incorporeal hereditament lying in grant.*" Jn Quebec it has been decided that an unreserved sale of an immovable convoys all mining rights in the same, subject to the provisions of the Quebec mining law, and an action will lie to rcsiliate .such sale, or for an indemnity, ])y a purchaser who sul)se- quontly discovers that a reserve of such mining rights exists in favor of bis vendor's authors.* The Surface means not the mere plane surface, but all the land except the mines. The rights of such surface owners where there are minerals are as follows: First, there may be the surface owner, who may have both the surface and the mines; secondly, there may be the surface owner who is entitled to the ordinary right of support, not because there is a deed, but because it is not known what was the origin of the severance; thirdly, there may be tho surface owner who has the right to support, created by the document which elTected the severance, and in that case the extent of the right of sup- port must depend on the terms of the document, and their true con- struction; fourthly, there may be the surface owner, who has no right' to support at all, because he has given it away.* It is settled law that where minerals are severed from the surface by deed, instrument or Act of Parliament, the mineral owner is not entitled to let down the surface unless by the deed, in- strument or Act of Parliament by which the minerals are severed it appears that the surface owner has parted with the right of support, or, in other words, that the mineral owners right to get tho minerals is thereliy limited to getting them in sucli a manner as not to occasion injury to the surface owner.'' » See s. 2 of tho English Real Property Act, 1845, 8 & 9 Vict. c. 106, which is in force there; see R. S. B. C. (1897) p. liii. '"Sutherland v. Heathcote, (1892) 1 Ch. 475. ■ Neil V. Proulx, R. J. Q. 1 C. S. 565; see Turriff v. Cle de Fer Que- bec Central, R. J. Q. 2 Q. B. 559. - Pit Bowen, L.J., in PouDtney v. Clayton, (1883) 11 Q. B. D. 838. '• Per A. L. Smith, L.J., in London & N. E. Ry. Co. v. Evans, (1893) 1 Ch. 16, at p. 30; Caledonia Rail- way Co. V. Sprot, 2 Mncq. 449; Bell V. Love, 10 Q. B. D. 547, 558; Davis v. Treharne, 6 App. Cas. 460. OltAXTS 15: In Williams v. Bagnall," a case in which the right of the sur- face-owner to support was excluded, Wood, V.C, said:'** "He grants the whole of the property, whicli is a grant out and out of the wliolc from the surface to the centre of the earth; hut he nuikes out of the grant this exception — he excepts and reserves to himself all mines and minerals whatsoever, lying and heing in and under the said land and premises hereinheforc descri])ed and herehy convoyed (this is a simple excejition), and then comes this, as to wliich tiiore has heen a controversy, whether it is to ])e treated as a reservation or grant hy the person taking the grant of tlio surface. I do not think it is neces- sary to pursue this point any further, and I take it for the purpose of the case to he a reservation to he construed with reasonahle strictness against the person reserving to himself that right against the pre- vious grant of the surface. Having excepted the minerals, he says also ' with full jmwer and authority to and for the said . . his heirs and assigns, or other the person or persons for the time hcing, who would have heen entitled to the freehold reversion and inherit- ance of the hereditaments herehy conveyed in case this conveyance had not heen made, to get, work, raise, sell and dispose of the same mines and minerals; hut without entering upon the said lands and premises, or any part thereof, for such purj)Oses, and without heing answcrahle for any injury whatever that shall or may arise to the said land and premises, or to any huildings which shall at any time here- after he f. rected upon the said land, or any part thereof, hy reason of the working or getting the said excepted mines from under the same premises, and without heing liahle to any action or actions, or other suits at law or in equity, costs, charges, losses, damages, or expenses for, or on account of any such injury or damage.' It will not do to say that hy reserving to himself the right of working the mines, he would not get the privilege of working them, so as to let down the surface. He has done something nuire than that, he has reserved to himself the working of the mines without heing answerahle for any damage to the lands or huildings. That is the whole of the reserva- tion. That entire reservation makes it im])ossil)le to construe this instrument as simply reserving to himself the right to work the mines, being answerahle, at all events, for any damage to the land or build- ings and premises thereon." ^ " The implication of law is, that when you grant the surface you grant everything necessary to maintain it; but here are words :' *■ M1867) 15 W. R. 275. ">V. 275. ^P. 275. I'H 158 OliAXTS which sweep it away . . the parties liave come to a clear agree- ment that tlie one man is to liave the surface, and lie is to have it subject to the condition of the mine being got and raised without the jierson no worldiig being liable for any mischief that he may do to that which he has granted. Jle cannot derogate from his grant be- yond the extent to wliich the parties agree he shall. aVotwithstanding some dicta that were laid down in tiie case of Hilton v. Lord Gran- ville, it has been held by the House of Lords, in Kowbotham v. Wil- son, wholly irresi)ective of the question on which side it is to bo taken, whether it is a grant made by a juTson claiming the right to have a surface support, or whether ])y a person claim- ing the right to improve that support to a certain extent under contract; without regard to that it has been held by the House of Lords in that ca.se that a grant is not absolutely repugnant and ab- surd wliich grants the surface and yet allows a great degree of injury to be done. . . . The grantee may stipulate that this grant shall be derogated from." A conveyance granting land for a special ])urpose must be con- strued as a conveyance of the riglits necessarily incident to the duo execution of that purpose.- It is undoubted law that, where a grant of land is made for a specific purpose, such as the construction on the lands of a house, canal, railway, or other ])ermanent work, the grant, iu the absence of a contrary intention appearing on its face, carries with it by im~ l)lication the right of reasonable and necessary supjjort for the works so to be erected from the subjacent or adjacent lands of the grantor. This maxim of law applies whether the grant is voluntary or under the compulsory powers of a statute.* A deed of conveyance made under the authority of an Act of Parliament must be read as if the sections of the Act were incor- porated in it.* The laws which govern the transfer, descent and devolution of interests in land, l)y operation of law, and their transmission by will, a])ply to interests in mines, and in minerals not severed from the freehold, with no distinction requiring special notice. ' Elliot v. N. E. Ry. C, (1SG3) 10 H. L. C. 333. ^ L. & N. Ry. Co. v. Evans, (1892) 1 Ch. 16, per Bowen, L.J., p. 27; Elliott v. N. E. R. Co., (1863) 10 H. L. C. 333, 357; CaJedonian Ry. Co. v. Sprot, (1856) 2 Macq. 450. 'Elliot V. The Directors of the North Eastern Railway Co., (1863) 10 H. L. C. 338. ORANTH 1-)!) Crown Grants. Wlioro tlie Crown having tlio authority to sell agrees to sell piihlic lands, and the contract is not controlled hy some law afTccting such lands, and there is no stipulation to the contrary exj)ressed or implied, the purchaser is entitled to a grant conveying fc^uch mines and minerals as passed without e.\])ressed wor^ls/' The rule that acceptance is necessary to the operation of a de^^l applies to a ]mtent from the Crown." Where jjlaintill' claimed under a grant from the Crown, contain- ing a condition that the grant should he void it" the land was not settled on within a certain time, it was lield that a subseciuont grant from the Crown for the same locus, under which derendant held, was void, there having been no inquest of ollice previous to the issuing of such subsequent grant. "^ The Hcservation in a Patent from the Crown of land situate on the bank of a river of free access to the bank for all persons, etc., creates an easement merely in favour of the jtublic, notwithstanding which the i)atentee is a riparian proprietor."- In Cooper v. Stuart ^ the Privy Council decided that a reserva- tion in a Crown grant in Xcw South Wales of a right to resume such quantity of the land granted not exceeding ten acres, as might be required for public jjurposes, was not repugnant to the grant and void, and that where put in force it takes effect in defeasance of the estate previously granted, and not as an exception. The rule against per- petuities, even if binding on the Crown in England, was stated by Lord Watson ** to be inajjplicable to Crown grants in a colony like Xew South Wales. Where the nominee of the Crown, befcn-e any patent issued for the lands on which he was located, by deed poll conveyed away the lands, and all his interest therein, and afterwards tlie patent from the Crown was issued in his name, and he then made a second deed to another person, it was hold that the second grantee was estopped from claiming the land.**^ i ! \ V . mm g* ■' Per Burbidge, J., in The Cana- dian Coal and Colonization Co. (Ltd.) V. The Queen, (1892) 3 Exch. C. R. (Can.) 157, confirmed by the Supreme Court of Can.ada. S('i> the Quten v. The Canadian Agriculture, Coal and Colonization Co., (1895) 24 S. C. R. 713. "Moffatt v. Scratch, (1885) 12 A. R. 157. "' Wheelock v. McKeown, (1835) 1 N. S. R. 41; 1 Them. (2nd ed.) 41. '-'Hawkins v. Mahafly, (1881) 29 Gr. 326. ' (1889) 14 App. Cas. 286. ^P. 294. ■' Doe d. Irvine v. Webster, (1842) 2 U. C. R. 224. See also Hennes- sey V. Myers, (1832) 2 O. S. 424 ; Tiffany v. McEwon, (1837) 5 O. S. 598 ; Boulter v . Hamilton, (1864)- 15 U. C. C. P. 125 ; McGill v. Shea, (1846) 2 U. C. R. 483 : Todd v. Cain, (1858) 16 U. C. R. 516. I 160 DESCHll'TlOX A graiil from tlio Crown of land cxcliisivo oC the waters of tho Iiiver Trent, whieli were reserved to^'ether with free access to the shores, etc., does not confer on the patentee the rights of n riparian proprietor." Description. As to dlscreprncy hetween general and specific description, sei' Dixon v. McLaughlin ' and Murray v. Sniith,^ where the 8i)cci(ic description was held to govern. In re Trent Valley Canal, etc.," IJoyd, C, said, pp. l(i-^3: " Having a reasonahly accurate ijarticularization of the four hound- arics, the (plant ity of acres must not he regarded as tlic controlling term of the dcscriittion." In Huntsman v. Lynd,* Osier, J., said: " " In the case hefore ns the lands arc descrihed in the patent with reference to lots and con- cessions, and hy metes and hounds. The inference, therefore, is that there has hcen a survey, and unless the contrary jdainly ai)i)ear, that the description has heen i)repared from such survey." Page 100: "If we reject the particular descri[)tion, we have the general de- scription of the land as lot 21], This lot appears in the ollicial plans . . . an; Ramsay v. Blair, (1876 1 App. Gas. 703. 'Leppington v. Freeman, (1892) 66 T^. T. 357. "Section 109. '"Tlie Fisheries Case, (1896) 26 S. C. R. 444. lAlK 162 INCIDENTAL lilQIITS there be some words forming jiart of the description or introduced by way of exception which clearly excludes whatever may lie between the Avater's edge or the bank and the medium filum aquae.^ In Lord v. Commissioners of Sydney,^ the law is said to be cor- rectly stated by ]\[r. Justice Story in Tyler v. Wilkinson,' as follows: " prima facie, every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream, or, as it is commonly expressed usque filum aquae." One of the consequences of the rule that the riparian proprie- tors on private or non-navigable rivers, lakes and waters, the beds of which had been granted to them, or at least not reserved by the Crown, or its grantee, had an exclusive right of fishing to the middle of those waters, is stated by Girouard, J., in the Fisheries case,* to be undoubtedly the law of all the Provinces. The soil of the alveus of a non-navigable river is not the com- mon property of the respective owners on the op])osite sides, but the share of each belongs to him in severalty, and extends usque ad medium filum aquae, but neither is entitled to use it in such a manner as to interfere with the natural flow of the stream." By the general law of conveyancing, where a riparian owner, who is also owner of the soil under the river ad medium filum, makes a grant of his land on the banks of the river, the soil ad medium filum passes by the grant, and this applies to land of any tenure, whether freehold " or leasehold.'' This ])rosumption does not apply to an award under an In- dosure Act,'* and, in every case, not being a pirsumptio juris et de jure, may be rebutted, not only by words in the deed being con- strued, but also by the circumstances under which the deed was executed." In Lord v. Commissioners of Sydney,'" the rule was applied to a grant from the Crown, Sir John Coleridge observing:* " Upon a ' Kains v. Turville, (1871) 32 U. C. R. 17, in the Court of Appeal. = (1859) 12 Moore, P. C. 483. ■■' (1827) 4 Mason, U. S. R. 397. • (1896) 26 S. C. R. 546. ^Blckett v. Morris, (1866) L. R. 1 Sc. Ap. 47. "Tilbury y. Silva, (1890) 45 Ch. Div. 98, per Kay. J. ' Micklethw.ait v. Newlay Bridge Co., (ISSfi) 33 Ch. Div. 133. 'E?royrt v. C( -ithurd, 1807, 2 Ch. 554. " Devonshire v. Pattinson, (1887) 20 Q. B. D. 273; Potts v. Bovine. (1888) 16 Ont. R. 155; Doe d. Harrison v. Hampson, (1817) 4 C. B. 267. '" (1859) 12 Moo. P. C. 473. ' At p. 497. a RANTS 1G3 question of the meaning of wordni, the same rules of coninion sense and justice must apply, whether the subject-matter of construction be a grant from the Crown, or from a subject; it is always a question of intention, to be collected from the language used with reference to the surrounding circumstances." ^ The rule ad medium fHum does not api)ly to navigable waters and, in Canada, the test of legal navigability is not the flux and reflux of the tide, as established by English law, but navigal)ility de facto. In Barthel v. Scotten,^ Strong, C.J., says,* referring to land on the Detroit liiver: " There can be no doubt that situate as this lot 43 is, on a large navigable river, an international waterway, the water's edge forms the western boundary. A grant of land bounded by the banks or edges of such streams does not extend to the nuddle thread as is the case where lands described as so limited lying on the banks of non-navigable rivers are granted." In Dixon v. Snetsinger,'"' it was held that the Eiver St. Fiaw- rence and the great chain of lakes were i)ublic navigable waters the bed of which had not i)assed and did not jiass under the rule of the common law of England ad medium filum aquae to the riparian pro- prietors, but is vested in the Crown. In the judgment of Ciwynne, J., all the previous authorities are collected and commented on, in sup- port of his conclusion that the rule of the civil law, and not that of the connnon law of England, which is limited to the extent of the flux and rellux of the tide, ]n'evailed. This case was much discussed in The Queen v. ^loss," where it was decided, aflinning the judgment of the Exche(iuer Court, that the title to the bed of the river St. Lawrence is in the Crown, in right of the Province, not in right of the Dominion. The same ])rinciple would ai)])ly to the beds of all navigable waters (excejit harbours) " mIucIi have not been granted by the Crown. In Parker v. Elliott ^^ the ICnglish common law rule was stated to be inai)])licable to Lake Ontario. In New Krunswick it has been held that a grant of land bound- ing on a navigable lake conveys the land to the margin only, and not to the centre of the lake.**^ V: !; IV ' ;■ U! d. |C. 'Re Trent Valloy Canal, (1886) 12 Ont. R. 153. • (1895) 24 S. C. R. 367. *P. 370. » (1873) 23 U. C. C. P. 235. • (1896) 26 S C. R. 322. 'As to "harbours." Seo B. N. A Act, sched. 3. « (1852) 1 U. C. C. P. 470. "' Niles V. Burke, (1873) 1 Pug. 237 ; Queen v. Robertson, (1882) 6 S. C. R. 68. IG-i AD MEDIUM FILUM In Coleman v. Kobortson *- Wilson, C.J., said:*"' "A grant of land to tlie rivor, or margin or edge of it, or to the bank, or along the river, will prima facie carry the grant to the medium /Hum aquae; but this description is from a particular point, ' tlie verge of the river at low water mark,' and thence witli tlie winding of the stream to the place of beginning, that is, to the verge of tlie stream at low water mark. I do not see, then, why this particular limitation should not be binding Just as it is specifically stated. If the grant had been to high water mark there could be nothing whatever from which an in- tention could be inferred to extend it to low water mark, and still less to carry it further, to the middle of the stream; and the rule of ad medium filum is one of presumption only. A river or stream is composed of three parts, the bed, the banks, and the water; and the bed consists of all that part up to high water mark, and the banks of that part of the land which is above high wafer nuirk. A grant to high water mark would, in my opinion, exclude the ah'cus, or bed of the stream, altogether; to low water mark it would exclude the grant from extending to the centre thread of the stream, because the grant of a part of the ])ed will exclude a grant by ])resumption of more than that part wliich was expressly given." Reservations and Exceptions. 'I'he owner of land may grant or demise the land, excepting the mines and minerals, or may grant the mines and minerals, excepting or reserving the surface. The relative rights, duties and obligations of the owners of the surface and of the mines and minerals, may and should be specifically and definitely determined by the statute or instrument of severance. The general rule may be stated to be, that each must use aiul enjoy his own property in such a manner as not to injure that of another person. Lord Coke" points out the distinction "between an exception (which is ever part of the thing granted, and of a thing in esse), and a reservation, which is always of a thing not in esse, but newly created, or reserved out of the land or tenement demised." Slieppard, in his Touchstone,'" speaking of a reservation, says: "It must be of some other thing issuing, or coming out of the thing granted, and not a i)art of the thing itself, nor of some thing issuing out of another thing. If a man grant land, yielding for rent, money, corn, a horse, spurs, a rose, or any such like thing, this is a good reservation; but if the reservation be of the grass, or of the vesture " (1880) 30 U. C. C. P. 609. " At p. 620. • Co. Litt. 47 a. "First ed. 80; 5th ed. 78. GRANTS 165 of the land, or of a common or other profit to be taken out of the land, those reservations are void." The words " saving and reserving " in the Crown grant are good words of exception.*" In Proud v. Bates,* Wood, V.-C, said: 2 '• I do not think any- thing can 1)0 oxcoptod out of a demise except that which is part of the jiroperty itself. It is not a right issuing out of the property which can he excepted. You either demise or not, the whole of the property. If you do demise the whole property and except anything, then it is by way of re-grant,'' etc. A deed containing a reservation should be executed by the grantee.'* In Fancy v. Scott * the reservation was of all mines, quarries raid pits in the close, open or not opened. Baylo}', J., remarked to counsel," " A landlord cannot reserve a component part of the land demised or granted, as he has done here. . . . This is, properly sjieaking, an exception, and not a reservation. It is in ell'ect, an exception, and of a privilege which might properly be excepted,"' and in giving judgment said: " '" in Wickham v. Hawker," where by deed A. and li. conveyed to 1). and his heirs certain lands e.vceptiiKj and rcserriiijj to A., B. and C, their heirs and assigns, liberty to come into and upon the lands, and their to hawk, hunt, iish, and fowl: — Held, that this was m)t in hiw a rescrralioii })roperly so called, but a new- grant by 1). (who executed the deed) of the liberty thereiji nu;ntioned; and, therefore, that it might enure in favour of C. and his heirs, although he was not a ])arty to the deed. An exce])tion must be to the person or persons who convey the legal title, and to him or them alone;'* and this being reserved to . . . who had no legal estate, l)ut only an equity of redemjition," it could not operate as an excep- lion or reservation." In Karl of Antrim v. Gray, Chatterton, V.C., said:*" "It is ])lain that mines ami minerals, being an integral ])art of the land, form i)roi)erly the subject of exception ami not of reservation. The >t. '" Casselman v. Hersey, (1872) 32 r. C. R. 340, per Wilson, J. • (18C5) 34 L. J. N. S. Ch. 406. »At p. 411. 'Wickham v. Hawlter, (1840) 7 M. & W. 63, 76. ' (1828) 2 M. & Ry. 335. »P. 337. " At p. 338. ' (1840) 7 M. & W. 63. - Cheetlmm v. Wiiliamsoii, (1804) 4 East, 469. " Per Pollock, C. B., for the Court in Denison v. Holliday, (1857) 1 H. & N. (N. S.) 647. "• (1875) 9 Ir. Rep. Eq. 520. ' At p. 520. I 166 RESEIfVATIOXS AXD EXCEPT lOXfi riglit to enter and dig for them is the subject of a reservation, and a reservation is in law a re-grant to the grantor by tlie grantee. If, therefore, tlic words ' subject to the covenants, chuiscs, and agree- ments on the part of the grantees ' were to receive the strictest con- struction, and to be confined to a contract or grant by them, this amounts to a grant l)y them, and implies a contract on their part. It is settled that words of exception may amount to a covenant by the grantee, as in Duke of St. Albans v. Ellis.2 The deed is a contract between the grantor and grantee that the grantee is to have and en- joy all the benefits conveyed by the grantor, save and except the matters excepted, which the grantor and grantee agree shall not pass by words which would otherwise be operative to pass them. The case of Lady Eussell v. Gulwel ■'' is an authority in suj)port of this view." The ])rovince of a s])ecial condition is to nudve known to the purchaser that he will not get that which, but for the condition, he would be entitled to. A purchaser must take subject to that which is ])eculiar to and necessarily incident to the estate. This may be illustrated thus: Where a contract is entered into to sell a freehold, and nothing is said about the minerals, if the purchaser fiiuls that the minerals are reserved the title is bad, and he cannot be compelled to take it." In ]\rawson v. Fletcher •'• there was a sale by auction upon cer- tain coudiiions, one being that "if any ol)jection or re([uisition be delivered or persisted in, the vendors shall be at liberty to rescind the contract on returning to the purchaser his deposit, without in- terest or expenses." On the investigation of the title it a])peared that u])on one of the deeds there were words ])ur|)orting to reserve to the lord of the manor all mines and minerals whatsoever. The purchaseis objected and the vendor gave notice of rescission. Sir W. M. flames, L.J., said:" "That is as much a question of title as if it related to any portion of the surface, and is a (pu'stion of title to a particularly valuable part of the ])ro|)erty. ... It is tiue that the vend(.rs could not make such a contract, and avail themselvts arbitrarily of this condition to put an end to it; but in this case it is imjmssible not to see that they would bo involved in very considerable trouble and expense by such an inquiry as would be necissaiy"; and the purchaser was held not to be entitled to com- j)ensation. = (1812) 16 East. 352. ^ 41 EHz., 2. Cro. Eliz. fi57. *Hayford v. Criddle, (1855) 22 Beav. 480, per Romilly, M.R. • (1870) L. R. G Ch. 93. * P. 94. GRANTS 167 Where there was a conveyance in fee of a messuage, etc., with appurtenances, excepting all mines of coal thereunder, with liberty to enter and sink i)its for getting all such coal, and to erect engines and make drains, etc., necessary for working tlio coal, except as to such lands as lie within a specified distance of the messuage, and except any homestead; it was held ])y the Court of King's Bench, that the vendor thereby reserved to himself the right to dig coals under the messuage, buildings and homestead within the distance specified, but was not entitled to sink pits, erect engines or make drains, within the specified distance of the messuage or buildings or within the homc- stead.-* In Eardley v. Granville,* Jessel, M.R., says:" "Where a free- holder grants lands, excepting the mines, he intends, first of all, as a matter of construction, to except not merely minerals, but the por- tion of the sul)soil containing the minerals; in other words, to retain a stratum of the pro])erty, and if he does that, of course the lessee or grantee has no title whatever to the portion of the stratum re- served." It was held in a Scotch case that where the owner conveys lands to a singular successor or other person, reserving the " liberty of working the coal '' in those lands, he must be taken to have reserved the estate of coal (unless there are clear words in the deed qualify- ing that right of property) with which he stands vested by grant at the date of the conveyance.' 'J'he Karl of Sell)orne, L.C, said: ** " You have words of reserva- tion, and you have a prior title to the whole property in these coals and minerals in tlie jjcrson who is making this reservation in his own favour. What is reserved? If there be no limit of time ... it is a jx'rpetual reservation. What is the sul)ject of (he reservation? The right to take away the whole of these coals and minerals. A periietual right to the whole ])ossible i)rofits and Ix'uolit of property is prima facie very much like the whole Ijeneficial interest in that property, at least wlien you find tiiat the man who had it before leaves, as a reservation, souietbing out of his grant, and that this is the quantum of (he reservation in ])oint of matter and in ])oint of time, the most sensible and reasonable construction, if there be no technical ditlicuKy, is that he means to reserve, as to that subjec*^, the hm * Bowler v. Wolley, (1812) 15 East. 444. » (1876) 3 Ch. D. 826. • P. 835. ' Hamilton v. Dunlop, (1885) 10 A. C. 813. *Ib. p. 819. 108 REf^ERVAriOXS • l)io])erty which lie had before, with siich superadded privileges as to the means of getting at it and enjoying it as are found in the deed." Tlie reservation in a deed (dated 1781) was " Saving and reserving nevertheless to the said (grantors) and to their heirs and assigns, full and free liberty by all necessary and convenient ways and means, to search for, get, dig, drain, and carry away, the coal, iron, stone, and other minerals, which may or shall be found within the several lands hereby granted and exchanged from them the said (grantors) to the said (grantee), his heirs and assigns, and also to drive any sough, level or gutter through the same lands to any other lands or grounds of them the said (grantors) or either of them, making satisfaction for all damages to be done or occasioned by the use or exercise of any of the privileges aforesaid, to have and to hold all and singular the said messuage or tenement, lands and premises (saving and except as aforesaid) unto the said (grantee), his heirs and assigns, to the only proper use and behoof of the said (grantee), his heirs and assigns for ever." The plaintitt' was the successor in title of the grantors, and the defendant 11. of the grantee. Neither the plaintiff nor his prede- cessors in title had ever worked the mines under the above reserva- tion, the existence of which had been forgotten. In 18(io the immediate predecessor in title of the defendant granted a lease of part of the mines under the property to a lessee, whose interest became vested in defendants B. and B. In 1877 de- fendant IT. granted to jdaintilf a lease for 40 years of the mines under the rest of the pro])erty. In 18S)() plaintiff brought this action against his lessor (11.) and ii. B., asking for a declaration that he was entitled to the mines under the lands Avhich his predecessors in title had con- veyed by the exchange deed of 1783, etc. Lindley, L.J., in giving judgment for the Court says:" " In order to understand the effect of this deed, it is necessary to carry our juinds back to 1783, and construe it as such instruments were con- strued at that date. We must not forget that in those days a grant did not pass lands, mines, or minerals, although it might confer a right to work them." . . . " Xo conveyancer intending to except mines and minerals from a conveyance of lands would express his intention by reserving a liberty to get minerals. If, indeed, it were plain from recitals or other clauses in the deed that an exception was intended, possibly effect might be given to it." . . . "P. 483. GRANTS 169 " That II. did not intend to except the minerals from tlie land which he conveyed, nor to reserve any right to get minerals under it is ]ilain." ^^ " . . . What was reserved . . . M-as fidt and free liberty to work the mines nnder the lands conveyed by them. They reserved a profit a inrinlir (defined to be 'a right to take something off another person's land ') an incorporeal hereditament, not a mere personal revocahle license," not exclusive. "An exclusive right to all the jirofit of a ]iarlicidar kind can, no doubt, he granted; but such a right ciuinot bo inferred from lan- guage which is not clear and ex])licit." . . . ^ " . . . There is not enough, in our o])inion, to show that anything more was reserved than a right to work the mines when desired; such a right does not exclude the right of the owner to work them, provided he does not disturl) the grantee in his working opera- tions when and where he is carrying them on." - In Earl of Jersey v. Guardians, etc.,'"" Lord Esher, M.R., said: '•'The conveyance is of all the lands, tenements and hereditaments mentioned in the schedule, and if there were no reservation, that would carry all the minerals within the ambit; but then there is re- served ' all mines of coal, culm, iron and all other mines and minerals whatsoever, except stone quarries within or under the several lands.' . . . Xow, I cannot lul]) thinking that should l)e read 'all mines of coal, culm, iron and all other mine;? and all minerals whatsoever,' for I do not think the word ' other' can ])e aijjilied to niinorals."' Bowen, L.J., said: •* '• I also cannot help feeling that the excep- tion upon the exception which is contained in the words 'except stone quarries' shows that stone quarries would have been reserved under minerals unless the exception had been there. The words ' all mines and minerals whatsoever' are as large as tliey can be, and I do not think that they can be cut down by the ])revious words ' coal, culm and iron.' It seems to mo, although that is a question of con- struction, that they are intended to be words which exclude the opera- tion of the rule of construction of ejusdem generis." Fry, L.J.:' "... Where you tiiul the word 'whatsoever' following, as it does, upon certain substantives, it is often intended to repel, ami in this case does ell'ectually repel, the implication of the so-called doctrine of ejusdent (jeneris." "> P. 484. ■ , ' P. 486. 'Sutherland v. Heathcote, (1892) 1 Ch. 483. » (1889) 22 Q. B. D. 558. *P. 563. "P. 566. 170 //A'.S'K/nM770.V« ("ardiifan v. Ariir'^'i"<» " doeitU'd that where mines are reserved everytliiiifj is reserved s necessary for workin^f tiieni, of course incliidinff the way-h' cnrryinfj: away the minerals.'" This princip' li illustrated by Dand v. Kingscoto,* a case arising out of a .ited Ifi.'K), by which the grantor convoyed land in A., " excepting ..iid reserving out of the grant all mines of coal within the fields and territories of A., together with sutlicient way- leave and stay-leave to and from said mines, with liberty of sinking and digging pit and i)its." Parke, ]>., says: - *' First, as the coals in all the seams are ex- cepted, and a right to dig ])its for getting those coals reserved, all things that are ' depending on that right, and necessary for the ob- taining it,' are reserved also, according to the rule of She])pard's Touchstone, 100. Consequently, the coal owner had, as incident to the liberty to dig ])its, the right to fix such machinery as would be necessary to drain the mines, and draw the coals from the pits. The case finds that the steam-engine which was erected was neressori/ for the winning and working the lower seams, which are the principal seams in that coal-field; and, therefore, the defendant had a rigiit to erect it. The ])ond for the supply of the engine, and the engine-house seem to have been necessary accessories to such an engine, aiul were therefore lawfully made." It was also held that the miiu'ral owner was not confined to such description of way as was in use at the time of the grant.-' in Sejiman v. Vawdrey/ a deed, dated in 1704, contained an express and unequivocal reservation to the grantor tlierein, and her heirs of all mines and veins of salt, and the (juestion was whether those in 180!) re])resenting the grantor had lost their pro- perty or their right to enter upon the enjoyment of it, there having also been reserved free ingress, etc., to take and carry away ami do all things necessary. Sir Win. (irant, ^1.1?., says:'' ** Xot by any actual grant or re- lease, for none is alleged; but it is said, at this distance of time, a releas;' is to be presumed. T do not clearly see any circumstances from which that ])resumption is to arise. Xo adverse possession is » (1823) 2 B. & C. 197. '"Per Wood, V. C, (1865) 34 L.J. Ch. N. S. 411. ' (1840) 6 M. & W. 174. ' P. 196. ' See also Rogers (1857) 1 H. & N. 714. * (1809) 16 Ves. 390. 'At p. 392. V. Taylor, GRAyrs 171 alleged. The owner of the soil lins had the onjoyment to which he was entitled hy the contract, and wliicli is perfectly consistent with the rigiit of the owner of the mines. If it could he shown that he had wrought any mines himself, or had interrupted the other parties claiming as representing ('. (the grantor) under the reservation of tiio mines, in working them, that would lay a ground upon wiiich the presumption could ^tand; l)ut nothing is alleged, except the mere ahsence of any evidence of the exercise of this reserved right." In Durham & S. i{. Co. v. Walker," Tindal, C.J. (in delivering the judgment of the Court), said:" "... the only riglit ro- eerved to the dean and chapter, under the clause in (juestion, is tliat of making, and granting the right of making, ways over the denused lands for the ])urpose of getting tlie excepted mines and minerals. The excei)tion is of all . . . mines, minerals and seams of clay within and under the same, with full ])owcr to . , . dig, win and carry away tlie mines, (piarries and seams of clay, with free ingress, egress and regress, way-leave and passage to and from tlie same. If the words of the exception had sto})ped here it would have l)eer. (juito clear that the right of way intended was only a rigiit of way for the purpose of getting the . . . minerals excepted. It would, in truth, have been like the words immediately ])receding, viz., with ])ower to dig, win and carry away notliing more than wiiat the law would, if necessary, have given as incident to the exception, a right of jiassing to and fro for the imrjiose of making the exception availahle.** I'ut tlie language of llic exception goes on further, viz., ' or to or from any other mines, (piarries, seams of clay, lands and grounds, . . . and also all m>cessary and convenient ways, privileges and powers whatsoever ' for the purposes aforesaid,' and particularly of laying, making and granting waggon-ways in and over the said premises, or any jiart thereof,' etc. These are the words which create the doulit. Are they introduced for the inirpose of securing to the dean and chapter a general right of way and of granting way-leaves over tlie demised lands for jnirposes other than that of getting the matters excepted, or are they confined to that ohjoct alone? We have already etated that we think they are confined to the latter ohject. The things excepted are the . . . minerals ; and we consider all which follows as mere accessories to the exce])tion. The word ' witli ' must he taken to mean, '^ and as incident thereto.' , . . m m m' ' (1842) 2 Q. B. 965. 'P. 965. ' Sheppard's Touch. 100. lis ifFSEitVArinys .wn EXcRi'Trnxs "Neither the wjiy-k'avc to and from the mines in nnrl nnrler the lands demised, nor the way-leave to and i'rom oilier lands and grounds, purport.-, to he excepted or reserved as a distinct matter of exce})tion 01' reservation. Both the one and the other are mentioned in eon- nection with the mines excepted, and in no other manner whatever. 'J'iie rigiit of way to other lands and grounds is connected with the right of way to the mines, etc., reserved, only hy tiie disjunctive ' or,' excepting mines, etc., with a right of way to and from them 'or' to nnd from any other lands and grounds. If the intention had been to reserve to the dean and chapter a right of way, and still more a right of granting way-leaves, independently of the right to get the excepted . . . mines, such n right would surely have been treated as a seimrate nuitter, unconnected with the previous exce])tion, more particularly being, as it was stated to us in the argunuMit to bo, a right of the greatest value ami importance. There is nothing un- reasonable in sui)posing that the lessors meant to reserve to them- Eclvcs a right of getting the excepted mines and minerals by means either of shafts and pits to be sunk on the demised premises, or, if it should be more convenient, by means of shafts or i)its already sunk or to lie sunk on adjoining lands; aiul, if such was the intention, the language of the deed is jierfectly well adapted to carry it into etfect.'' " *' It is to be observed that a right of way cannot, in strictness, be made the subject either of exce])lion or reservation, it is neitlier parcel of the thing granted, nor is it issuing out of the thing granted, the former being an essential to an exception, and the latter to a re- servation. A right of way reserved (using that word in a somewhat j)opular sense) to a lessor, as in the present case, is, in strictness of law, an easenuMit newly created l)y way of grant from the grantee or lessee. " Where a man having a close surrounded with his own land, grants the close to another in fee, for life, or years, the grantee shall have a way to the close over the grantee's land as incident to the grant (i.e., without express words), for without it he cannot derive any benefit from the grant. So it is where he grants the land and reserves the close to himself." '" The grantor has the right to choose the line of the way,* but only so as to enable him to enjoy it in the condition in which it was at the time of the grant.^ •P. 967. " Corporation of London v. Riggs, (1880) 13 Ch. D. 798. ' Wms. Saunders, 323; Pinning- ton V. Galland. (1853) 9 Exch. 1. 'Bolton V. Bolton, (1879) 11 Ch. D. 968. ORANTS n;i Tlio rule al)()iil rifi;lits of way which ariso Troiii iinplioation is tliat on a soverancc of two properties, anylliing like a rifiht of way, or any oilier easement wliieh in used, and which is reasonaltiy iieeessary for the reasoiiai)le and eonifortai)le use of tlie ])art j^ranted, is intended to be granted too. The principle is tliat the ifrantor is assiinu'd to have intended that his grant shall he eU'eetiial. When two properties are s^cvcrcd, the jiarties to the severance, hoth the man who gives and the man ^vho takes, intend that such reasonable incidents shall go with th'j thing granted as to enal)le the person who takes it to enjoy it in u projicr and substantial way.-' There is a great dill'ereiiee between an implied grant and an implied reservation. . . . When a man grants a thing he must be considereil as granting that which is necessary in the pro|)er sense of the word for the enjoyment of that which he grants, and he cannot derogate from his own grant; he cannot do that which will destroy or render less effectual that which he has granted, liui as regards re- servation, the matter stands on principle, . . . in a very dilferent position. To say that a grantor reserves to himself in entirety — that which may be benelieial to him, but which may be most injurious to his grantee — is quite contrary to the principle on which an implied grant depends. That princijile is that a grantor shall not derogate from or render less etfectual iiis grant, or render tliat which he has granted less beneficial to his grantee. To this there are at any rate two exceptions. Where the easement of which tlie reservation is claimed is a mutual easement required for tlie grantor, and where there is existing at the time that which is said to he a continuous easement, and of necessity — not an easement strictly, Imt that which is in the nature of an easement — as a way of necessity, of that there is or may be an implied reservation.* AVhere there are several grants, not absolutely at the same moment, but so far at the same moment that they are to be considered as one transaction, and done at the same time; then each 01 the grantees gets the benefit of an implied grant of easement. This is not a reservation." When the owner of land granted it to the grantee, his heirs and assigns, excepting and reserving to himself his heirs and assigns, " all and all manner of coal, seams and veins of coal, iron ore, and all other mines, minerals and metals which then were, or at any time, and from ift^' •Per Bowen, UJ., in Bayley v. G. W. R. Co., (1884) 26 Ch D. 439, C. A., at p. 452. * Per Cotton, L. J., in Russell v. Watts, (1883) 25 Ch. D. 573, C." A. ''lb. N' 174 RHsmHATlO.WS .1 \ /) /;.Vf /;/'77(>.V.S' tiino to (iiue thorcafti'r, should be discovi-nd in or upon the Hiiid pre- mises, etc., with lire liberty of inf,Mvss, c'irc'ss and roj,'ro.sH, to come into und upon the preniises to dig, delve, search for, and get, ete., the said mines and every part thereof, and to sell and dispose of, tn1 (1866) L. R. 1 Ch. 303. ' (1889) 22 Q. B. D. 555. » (1872) L. R. 7 Chy. 699. ■m yy t r. 176 CONSTIiUCTION that the reservation should have a more limited meaning, it included brick earth and clay, wln^-h were substances which could be got from underneath the surface oi the earMi for the purpose of profit, and that the plaintiif, therefore, was oAr <>r of the brick earth and clay, and was entitled to compensation. Construction. Grants by the Crown are construed favourably to the grantor, and in siich a case, the usual rule as to the construc- tion of grants is inverted. If it be shown that the Crown is de- ceived regarding a grant, it will not include a subject-matter not expressed." It is a Hule of Constructi'-n tiiit where there is a grant and an exception out. of it, the words of tiiu exception are to be considered as the words of the grantor, and to be construed in favour of the grantee."^ It would seem to follow that the powers and i^rivileges which would be implied in the case of the reservation or exception of the minerals in a grant of the land are not so extensive as those which would be implied in the case of a grant of the minerals by the owner of the land. This is based on the maxim that a grant is to be construed most strongly against the grantor, but in Taylor v. Corporation of St. Helens, * Jessel, M.K., says: " I do not see how, according to the now established rules of construction, as settled by the House of Lords in the well known case of Crey v. Pearson," followed by Roddy v. Fitzgerald *" and Abbott v. i\liddleton,^ that maxim can have any force at the present day." In Miindy v. Duke of Kutland - it was held by the Court of Ai)peal that if a lessor wished to reserve rights in derogation of his grant, he must do so in plain terms, and the plaintilT, who was the lessee of an iipper strata by a lease which reserved to the owner aiul his lessees the right of working any coal not included in that demise, and the same ]inwers and i)rivi leges with respect to such last men- tioned coal as if that demise had not been made, succeeded in en- joining the lessor and a com})any, who were lessees of lower strata, which they intended working upon i)roving that the works threatened )iy the defendant would, in all probability, affect the security of his mine. 'A. G. V. Eweh; e, ft 853) 17 Beav. 366 ; Bulmer v. The Quet'n, (1894) 23 S. C. R. 488. " Bullen v. Denning, 1826, 5 B. & C. 850. "(1870) 6 Ch. DIv. 270. "(1857) 6 H. L. C. 61. '" (1857) 6 H. L. C. 823. ' (1858) 7 H. L. C. 68. -(1882) 23 Ch. D. 81. ORAM'HS irr The rule of law is that a reservation is to be construecl strictly still, however, it would reserve to the grantor all that was not con- veyed by the grant, provided the meaning and intention of the par- ties be clear.'' It has been decided that a proviso in a grant of land that the grantee should not dig or get any coal upon the lands for sale, but only such as should be burned or employed thereon, operated as a covenant, and was not a repugnant condition.''^ Covenants For Title. In case the contract has boon executed but no title has ])assed, then, on a covenant for seisin or good right to convey, the party is entitled to recover back his principal and in- terest and expenses; but, in case some estate has passed by the deed, but not the whole estate contracted for, then he is entitled to recover the difference in money between the value of that estate, which has passed, and that which the deed purported to convey, and which the grantor covenanted he had the right to convey.* Where lands were granted in Ontario under the Short Forms Act with covenants for title, witli tlie right and casement of erecting a dam at a certain spot and the grantors had not jtower to make sucli a grant, it was held that they were not liable to repay the full i)ur- chase money less the actual value of the land without the supposed right, but only the actual practical value of the supposed riglit.^ " The Courts in tliis Province (Ontario) have invariably, I think, held that the covenant for title is a continuing one runnin" with the laiul to its owner for the time being, and may be sued upon accordingly, from time to time as fresh damage arises." ' Dower at Common T;aw may be defined to be an estate for life to which a wife is entitled, after the decease of her husl)and, in the third part of every estate of inheritance of which her husband was 'Harris v. Ryding. (1839) 5 M. & W. 70. per Parke, B. "Ashton v. Stock, (1877) 6 Ch. D. 719. * Empire Gold Mining Co. v. Jones, (1869) 19 U. C. C. P. 245, per Gwynne, J., at p. 2.57 : but see and compare Piatt v. G. T. R., (1892) 19 A. R. 403. 'Piatt v. G. T. R., (1892) 19 A. R. 403. 12-M "Per Mereditli, J., in Piatt v. G. T. R., (1892) 19 A. R. 403, at p. 414, citing Gambia v. Rees, (1850) 6 U. C. R. 396; Scott v. Fralick, (1850) 6 U. C. R. 511; Rows v. Street, (1859) 8 C. P. 217: Scriver v. Myers, (1859) 9 C. P. 255; Keyes v. O'Brien, (1860) 20 U. C. R. 12; Mereditli v. McCutciieon, (1863) 13 C. P. 209; Brown v. O'Dwyer, (1874) 35 IT. C. R. 354; Piatt v. G. T, R.. (1886) 11 0. R. 246. 178 DOWER solely seised, either in deed or in law, at any time during the cover- ture, to have and to hold to her, in severalty hy metes and bounds, for the term of her natural life, whether she has had issue by her husband or not, and provided she be past the age of nine years at the time of her husband's death.* The leading case on the subject of dower in mining lands is Sloughton V. Leigh,2 a case directed out of the High Court of Chan- cery for the information of the Court of Common Pleas. The facts were in substance as follows: John IIanl)ury was in his lifetime, and during his marriage, and at his death, actually seized of divers landed cstiiti's and of several mines and strata of lead and coal, namely: In his own land, a lead mine and a coal mine, neither o])ened, wrought or demised; two lead mines and two coal mines, which during cover- ture he had demised to tenants for years, reserving pecuniary rents to be paid whether they did or did not op^'U and work them; and of each sort of these one Iiad been opened before his death by the tenant who still continued now to work it, and the otlier had not been opened; a lead mine and a coal mine' which he had demised during the coverture to tenants for years rendering not pecuniary rents, but quantities of tlie lead ore and coal when gotten, and the tenants were by the terms of their lease at liberty to work or not to work thci^j mines; the coal mine was at the time of John ITan])ury's death, and of this suit, wrought by the tenants; tlie lead mine Jiad not l)een opened; and two lead mines and two coal mines which had been opened and wrought by the deceased himself at the time of his death, one of each sort of vliich mines had, from the time of his death, ceased to be wrought, his heir tliinking them unprofitable; the other of each sort the heir continued to work to ])rofit. The first <[uesHon was whotlier Jolin Tlanbury's widow was en- titled to dower in any of the cases mentioned in the first (piestion, and what the widow could claim to be legally assigned to her thereout as her dower. The deceased was also entitled to the following minerals lying und' r land, which were not his own, 1»ui wherein he had pur- chased of tin; land owner liberties to work through his land, namely, a mine or stratum of coal and another of lead ore which he had opened and wrought during coverture, and was working at the time of his (h'atli, and siiue which the heir had ceased to work the lead, but con- tinued to work the coal, a mine or stratum of lead, and another of coal which he had not opened or wrought, a mine or stratum of lead and another of coal which he had demised to tenants for years rendering • LItt. c. 19, vol. 1, p. 569, f^ scq. ' (1808) 1 Taunt. 402. UKASTS 179 at their own option, which they might anniially make, either jiocii- niary rents or rents in kind, coninionoing from tlie time wiieii tlie mines t-liouhl be wronglit. The lead mine had l)een opened before the death of John Hanbiiry, and the tenants had i)aid tlieir rents in ore in kind. The coal mine had not heen opened nor was yet o])ened. In case tlie Court should he of o])inion that the widow was en- titled to dower in any of the cases mentioned in the iirst question, the next (juestion for tlie opinion of the Court was whether she was entitled to dower of all or any, and which of the mines and strata or rents secondly ahove menticmed, and what she could lejxally claim io be assi of her inten-st of dower or for any other reason to work this mine for her own ex- clusive use and benefit. Taking the assignment of these closes as the widow's dower to be the act of the heir himself, and to have been a most excessive as- signment in iioint of value, had tiie heir at law any, and what remedy, against the doweress as against the elTect of his own act ? If this assignuu'ut had not been his own act but had l)een made in the tourse of legal ])roceedings under a writ ot dower, would tlie heir by law have any and what remedy against the elfect of such as- fii^nment? ^ Lord Afansfield, C.J.:* " The grant of the stratum must be taken to 1,0 a grant in fee simple. In the course of the discussion I was strongly struck with the argument used for the heir that Lord Coke • Casc'j cited on behalf ot the doweress; 2 F. N. B. 148; Rex v. Miller, (1777) Cowp. 619; l?uck- eridgp v. Ingram, 2 Ves. .Tr., (1795) Ves. 652; Lord Coke, 1 Inst. 32 a; Clavcrlng v. Claverlng, (1726) 2 P. Wms. 388; Hoby v. Hoby, (1683) 1 Vem. 218; Co. Lltt. 54 b; Saunders' Case; Dowmnn's Care, 5 Co.. 12; 2 Inst. 368. Cases contra: Kent v. Kerry, 1 Str. 625; Whitfield v. Bew1t, (1724) 2 P. Wms. 242; 2 Inst, 367, 8. M09. 180 now'int has in 1 Inst., 32, enxunerated all the species of inheritance of which a woman shall be endowed; and I thoiight it extraordinary that no mentior should be made of mines. But, upon referring to the passage it appears to be no enumeration of all the things whereof a woman shall be endowed. Nothing like it; in the 36th section, upon whicli this passage is a commentary, Littleton says the wife shall be endowed of all lands and tenements of which her husband Mas seized. Lord Coke says not a word to explain what is land or what is a tenement, thinking the import of those terms well known in the law. But the intention of the passage is to show that though all lands and tene- ments are subject to dower, and assignment is to bo made by metes and bounds where it can, yet it is no impediment to the dower that the tenements are of such a nature as that they cannot be assigned by metes and bounds; but in those cases it shall be assigned as well as it can be, as by the third toll dish of a mill, or the like. In the preceding chapter, which is of tenant by the curtesy, Tjittleton does not mention of what the wife must be seized, and Lord Coke 2t'b speaks of lands only, but Littleton, sec. 52, speaks of tenements. The words in both these cases must receive the same exposition; and it is only necessary to see whether this species of property bo land or a tenement. Coniyn and the other digests which have been cited, only follow the words of Coke's Littleton, and the reason of whole authority is above stated. In the case of trees there is a profit in the shade and pannage, but in the case of a mine, the working it is the only mode in which it can be enjoyed. The Court certified to tlio High Court of Chancery that their opinion upon the questions pro- posed to them, arising from the first and second statements in the case, was that the widow of John Ilanbury was dowable of all his mines of lead and coal as well those which were in his own landed estates as the mines and strata of load or lead ore and coal in the lands of other persons which had in fact been open and wrought be- fore his death, and wherein he had an estate of inheritance during the coverture; and that her right to be endowed of tliem had no de- pendence upon the subsequent continuance or discontinuance of working of them, either by the husband in his lifetime or by those claiming under him since his death, " They thought, too, that her right of dower of such mines, etc., could not be in any respect alTected by leases made by the husband during the coverture; but if any of the existing leases for years were made by the husband before marriage, then the endowment (if made of the mines) must be of the reversions and of the rents reserved l)y such leases as incident to the reversion: in which case thev thought GRANTS 181 the widow would be bound so long as the demises continued, to take her sliare of the renders, whether i)ecuniary or otherwise, according to the terms of the respective re jcrvations. They were also of opinion that the widow was not dowah'e of any of the mines or strata wliich had not been opened at all, whether in lease or not. In assigning the dower of Mr. Ilanbury's own lands the sherilf must estimate tlio annual value of tlie o])en mines therein as part oi" the vahie of the estates of which the widow is dowable; but it was not absolutely necessary that he should assign to her any of the open mines themselves or any portions of them. The tliird part in value which he should assign to her, might consist wholly of the land set out by metes and bounds, and containing none of the open mines. Or lie might include any of the mines themselves in the assignment to the widow, descriliing them specifically, if the i)articu]ar lauds in wliich they lie should not also be assigned: I)ut if those lands should bo included iu tlie assignment of open mines, then, they might, but were not necessarily, to be so descril)ed, being part of the land itself which was assigned; and as Oie working of open .nines was not waste, tlie tenant in dower mij^ht work such mines for her own exclusive profit. The sheriff miglit divide tlie enjoyment and percei)tion of tlie profits of any of the i)articiilar mines as after mentioned. In regard to tlie mines and strata which Mr. ITau1)ury had in tlie lands of other persons, tliey were of opinion that it was not necessary that the sheriff should divide each of the mines or strata; but he might assign such a mnuber of f liem as might amount to oue- third in value of the whole, or he miglit proportion the enjoyment of such of them as ho should think necessary, so as to give each a proper sluire of the wliole. Jf fhe division of an o])en mine could be made by metes and bounds, as lands are reijuired to be divided, without preventing tlie parties from juiviug tlie proper enjoyment and per- ception of the profits, they thought that mode should be adopted; but as the ])roperty seemed to them to be muiuestionably of a beue- fiiial severance, in that way they thought the case analogous to some of thoKe stated by Lord Coke, 1 lust., 'laintiirs counsel offering that the defendant should have one entire third, both of land and coal, works and liy way of a rent-charge on the whole, the (Jourt ordered that she should accept thereof; or that otherwise a new assignment of dower should be made. The want of a I'oniial assignment is not regarded in e(iuily, it is the right in conscience on which the Court will act, in resjiect of dower.** And the Court will assign dower, and order title deeds to be deliviTcd for the proof of seisin," where dower was decreed to he allotted to be set out by the blaster and the dowre-ss to be let into '■ (1892) 2 Ch. 216. »(1683) 1 Vern. 218. 'Hamilton v. Mohun, (1710) I P. Wms. 118. » Moore v. Hlack, (1735) Forr. 12C; Meggott V. Meggott. (1742) Dick. 794; Goodenough v. Goodenougli, (31 January, 1772), Dick. 795. GUAM'S 183 possession. lUit the title must be admitted or cstalilished, and then tlio r'niii't will assign dowor.'" In Dit'kinv. Ilamcr" tlio Vico-Cliancellov (Kindersley) said:^ " It api^cais that this land has mines under the whole of it. Now, sup- posng that after the intestate's death the widow's dower had heen aetiially set out hy metes and bounds, I ap|)rehend she would he tenant for life of that ])ortion, with remainder to the heir; at all events the heir would he owner in fee, subject to the dowress' life interest. What, then, would, in that case, be the rights of the dowress and the heir respectively with respect to mines under the poitinn so set out hy metes and bounds? Of course, I moan un- opened udnes, because, as to those opened in the lifetime of the hus- band, I apprehend, there would be no question. Could the dowress ojien mines on that portion? 'I'liough there is not any precise au- thority on that point, it 3pi)ears to me that the dowress is in the position of a tenant for life of tluit ])ortion of the land. Now, a tenant for life of land cannot himself open mines, but, on the otlior hand, the tenant for life has a right to say that the remainderman shall not open mines. And [ do not see why the dowress would not be in the same ])osition. If the heir, ob- taining the consent of the dowress for the jjurposo, were to open mines upon the jiortion set out by metes and l)onnds, or to grant a lease of them, tiu' dowress could not afterwards insist that she was entitled to a third of the profits of the mines, or a third of the rents reserved by the heir in the lease."' * " In any case, T am of opinion that tlie utuiost the dowress could have claimed would have been one-third of the income of the proceeds arising from the royalties, and not one-third of the corpus."' In Spence v. Scurr." it was held by Sir John liomilly, M.R., that sinking a shaft in a mine already open in order to work a new- vein in the same mine is not opening a new mine; and when, under a lease granted by a testator, and afterwards agreed to be renewed by the trustees of his will, the lessees, after his death, sunk a new sl;aft for tbe purpose of working a new vein or seam lying below those already \vorked by them under such lease. The Court held that the latter was not a new mine, but the tenant for life inider the will was entitled to all the rents payable in respect of the nunerals so leased and worked. '» Mundy v. Mundy, (1793) 4 Bro. Ch. Rep. 294; (1793) 2 Ves. Jr. 222, S. C; Curtis v. Curtis, (1789) 2 Bro. Ch. Rep. 620. "(I860) 1 Dr. & Sm. 284. •At p. 295. ^P. 298. »(:S62) 10 W. R. 878. f ^:*: i I " I 184 nn^YER In ^McLean v, Laidlaw " it was licld that where the nominee of lands of the C'rown, l^eforo letters patent issued fon the lands, sold t.nd conveyed them away, being at that time nnmarried, and after- wards having obtained the letters patent made a new conveyance to the same party, being then married, his wife could not, after his death, claim dower in the land, as she, being privy in estate and c'aiming her dower through her luisl)and, was estopped by his deed made Ijcfore the letters patent issued. Dower is not extinguished by a conveyance to the Crown." The widow of a purchaser is entitled to dower and six years' arreais,^ but not Avhere ])urchaper had agreed to convey upon condi- tions fully performed.^ In Ontario the common law right to dower has been extended by statute " to include equitable estates, and also where the husband had a right of entry or action in any land. Dower nd osliiiin ecclesiae and ex asseiisu pain's were abolished by statute.'" " The Dower Act," ^ provides, in part, as follows : ''Dower shall not be recoverable out of any sej)arate and dis- tinct lot, tract or parcel of land, which, at the time of the alienation by the husband or at the time of his death, if he died seised thereof, v.as in a state of nature, and unimproved by clearing, fencing or otherwise for the purposes of cultivation or occupation." As to dower in land in Ontario other than that specified in section 4 a diftinttion exists as to lands ac(iuircd by a man i)rior to the lilst day of Decend)er, 1807, and, in a particular instance, after that date. ■•(1S46) 2 U. C. R. 222. " Bigley v. Gibson, (1860) 19 U. C. R. 458. ' Craig v. Tompleton, (1860) 8 Gr. 483. •* Burns v. Burns, (1874) 21 Gr. 7; as to election, whore provision in bar of dower, see Strahan v. Sut- ton, (1796) 3 Ves. 249; Pickering v. I^)r(l Stamford, (1797) 3 Ves. 337; Greatorex v. Carey, (1802) 6 Vos. 615; Birmingham v. Kirwan, (1805) 2 Sch. & L. 444; Mlall v. Brain, (1819) 4 Madd. 119; and cases there cited. As to costs, where apportionment of dower by consent and a case of a writ of dower on an assignment of dower, see Lucas v. Calcraft, (1782) 1 Bro. Ch. Rep. 134; and as to the operation of the Statute of Limitations in the case of dower, see Oliver v. Richardson, (1803) 9 Ves. 222, where an account of ar- rears of dower for twelve years past, the time of the title accruing, wns decreed. ' e Dower Act," R. S. O. tl897) (. 164. '" R. S. O. (1897) c. 164, s. 6. 'S. 4. ORANTS 185 As to land in Ontario granted by tlie Crown as niininj? land and conveyed to the luisband on or after the 31st day of Doccniber, 18',)7, '" The Dower Act " * provides " that no dower sliall be recoverable in case " the Iwisband does not die entitled tliereto.'' The section '" reads as follows: " No dower shall be recoverable out of any land wliich has been heretofore,^ or shall l)c hereafter, granted by the Crown as mining land in case snoli land is, on or after the 31 st day of Deoend)er, 1897, conveyed to the luisband of the jjcrson claiming dower, and the hus- band does not die entitled thereto." Dealing witli the question of dower in lands otiicr than those s]:ecified in " Tiie Dower Act," section -1 {supra), (1) acquired prior to 31st Defeml)er, 1897; (2) acquired since the 31st day of Decem- ber, 1897, wbicli were not ''granted by the Crown as mining lands," and (3) lands "granted by the Crown as mining lands," and "con- veyed to'' the husband after 31st Decend)er, 1897, and of wliich he dies entitled thereto, it a]ipears to be settled that dower may exist in these three cases in nnnes or quarries if o[)en during the lifetime of the liusband. In Ontario, under '" The Land Titles Act," - where it is claimed that registered land is free from dower on account of the land being held in trust, or for some reason other than tlic wife's release of her dower by an instrument whicli can l)e produced and legistered, and evidence to this effect, which appears satisfactory, is ]troduced before the jVlaster, he may issue a notice requiring the wife, wiio miglit otherwise seem entitled to dower, to support her right if she claims to be entitled to dower in the land; and in case she fails to do so, and to displace the prima facie case made, tlie Master may enter in the register a memorandum tluit tlu> land is free from dower, and such entry shall, unless reversed on appeal, be a bar to any claim by such wife; and no a])])eal shall lie, unless the wife files a claim ])efore tlie blaster." " '* I'liis section shall also ajiply to the widow of a former owner." * Where registered land is transferred subject to a charge, or in case the registered owner of land, which is subject to a charge, subse- (piently marries the wife of such transferee or owner, shall have * Supra. "S. 5. "5. • 13th April, 1897, date of assent to 60 Vict. (O.) c. 15, s. 6, by v/lilch the section was enacted. -R. S. O. (1897) c. 138. ^'S. 49 (1). ^S. 49 (2), k. tho same rijihts in respect of dowor ns slie would have lind if the le vendor. It is to ho olwcrvod, however, tiiiit the lion for tlu' I enedt of tiie vendor hiinseU', as well as the lien hy the pos- session of title deeds, nre not reeoncilahlo with the prineipU' of that statute, hut that nevertheless eipiity },'ives etTeet to them, and that the 1 lainliirV tith" rests upon the latter as well as upon th(( former, for here we have lie vendor and the purehaser, to one or other of whom the tille-dei'ds must, after satisfying the mortgaj^es, helonj^, eoiienr- linj:' ill an arran<:roi"*'iit for the paymen! to the plaintilf, heiiij;' in possession of the title-deeds, of what remained unpaid of the piir- cliiise money." " 'I'ho lit'ii may he lost hy the nature of the doalinj^; ^ or the nature of the contract nuiy he such as to oxchide vendor's lien.'* It was decided that vendor's lien for unpaid |)urchaso money had ])riority over the lien created hy a rei^istered judgment against the vendee." It would not, however, he valid as against a registered instru- n ent e.\ecutcd hy the same party.'" In Winter v. Lord .\nson.' the Lord Chancellor said:- "As, in this tato?, there was no agreement for the extinguishment of the lien, and a.s in my judgment, there is nothing in the transaction itself, as evidenced hy the instrument, leading to a clear and mani- fest inference that such was the intention of the parties. I think it should ho declared that the plaintitfs have a lien ujion the estate in tpiestion for the residue of the purehas^e money." The plaintiifs, who were unpaid vendors of the property of a c( mpany in voluntary liciuidation, and nnahle, from insolvency, to tarry on its works, have heen api)ointed receivers without security or salary.3 BacKii, V.-C, said:* "The plaintitfs are mortgagees of the col- liery, and shew a state of facts which may result in the ])ositive dc- " Per Lord Cottenhani (ib.), p. 673; see also Selby v. Selby, (1828) 4 Rus. 336. ■See Scott v. Benedict, (1884) 5 O. R. 1, afflrmed, (1886) 14 S. C. R. 735. ' See In re Brentwood B. & C. Co., (1876) 4 Ch. D. 562, C. A.; Clarke v. Royle, (1830) 3 Sim. 499; Buckland v. Pocknell, (1843) 13 Sim. 406; Dixon v. Gayfere, (1857) 1 D. G. & J. 655; Boulton v. Gillee- pie, (1860) 8 Gr. 223; Wilson v. Daniels, (1862) 9 Gr. 493; Dogear v. Smith, (1865) 11 Gr. 570; Gilmour V. Brown, (1817) 1 Mason, 190, at p. 212. "Hughson V. Davis, (1853) 4 Grant, 588. ■" R. S. O. 1897, c. 136, s. 98. ' (1827) 3 Russ. 488. = At p. 492. ' Hoyle v. Bettws, Llantwlt C. Co., (1876) 2 Ch. D. 726. * lb., p. 728. aUASTS 18!) Blnictioii of llio |)ropcrly. The liquidator lias not. tiio lucaiis for carrviiij? on llic coilit'i'v, and is (|tiito powerless to remedy tiie evil, niid if i do not interfere I nnist sniVer the property of tlie pliiintilfs to be entirely destroyctl." " Mortgages. Where the owner of a mine mortj,'a^^'s it, and re- imiins in possession, he may continue to work the mines on the mort- j^aged property, provided hy so doinjj ho does not jeopardise tiie fcioc'urity of mortfrajfees.'' A mortgagee in possession of the mortgage property may oon- tinuo to work opened mines, but unless his security be insullicient, is not entitled to open new mines. There is no dill'erencc in respcc', to this rule bcween a mine and a quarry.' If the mine was open when the mortgagee took possession it is imiiiaterial that it was opened after the date of the mortgage."' The opening of a nune after the date of a mortgage by the owner of the iidieritanoe will enure to the benelit of the mortgagee." A mortgagee with a sidlicient security cannot commit waste, or rather cannot dispose of any part of the inheritance. And if a mortgagee so circumstanced, not being authorized so to do, opens mines or allows others to open nunes on the mortgaged property, he will be charged with the full value of the minerals taken without being allowed any part of the working expenses. The ]»rinciple on which the cost of bringing the nunerals to bank, and under certain circumstances the cost of severing, are al- lowed, even to a trespasser, in estimating the damages awarded against him for wrongful abstraction, does not apply in taking accounts between mortgagor and mortgagee.'' The Statute of Lindtations would not operate to bar such u claim, as the mortgagee stands in a fiduciary relation towards the inortgagor.'* The Lords Justices on appeal" intimated that the Statute of Limitations would be a comjdete defence as against the persons al- ' Perry v. Oriental Hotel Co., (1870) L. R. 5 Ch. 420; Campbell v. Campagnio G. de B., (1876) 2 Ch. D. 181, distinguished. ^ Seton on Decrees, 5th Ed., p. 480. ♦Elias V. Griffith, (1878) 8 Ch. Dlv. 521. " Elias V. Snowdon, (1879) 4 App. Cas. 454. ' Claverlng v. Clavering, (1726) 2 P. Wms. 388. 'Hood V. Easton, (185C) 2 Giff. 692; Thorneycraft v. Crockett, 1848, 16 Sim. 445. »Hood V. Easton, (1856) 2 Giff. 698. " In the S. C. 2 Jur. N. S. 917. ifel; 190 MORTGAGEES lowed by the mortgagees to mine, it' they were mere trespassers, but the case having been settled there was no decision on the api)eal. Where tlie security is insullicient, a totally different set of considerations arise. Then a mortgagee is entitled to make the most of the property for tlie pur])ose of realizing wliat is due to him. He may cut timber, he may ojjcn a mine, and the Court will not by injunction interfere to ])revent bis doing so, provided he is not com- mitting wanton destruclion, in wliicli case the Court will interfere and ])revcnt liini. But where a mortgagee so circumstanced acts hoiKi fide, the Court will never interfere to prevent bis felling timber and ojiening a mine, and the like, but be does it at his own risk and ])eril; so that if he incurs a great loss in working the nunc, lie cannot charge a penny of that loss against the nu)rtgagor, and if he obtains a great ])roHt the whole of that protit must go in discharge of his mortgage debt.^" In taking the accounts under a decree or order in a redemption action against a mortgagee of mines in possession, the mortgagee is entitled to necessary ro])airs under the bead of just allowances, but to entitle biui to [)ermanent improvenu'nts or sul)stantial repairs he must make out a case for them at the trial. ^ If a mortgagee in i)os,session engages in speculative undertak- ings, he does so at bis own risk, that is if there is a ]M-ofit, such ])rofit will go in reduction of the mortgage del)t, l)ut if there is a loss the nu)rtgagee cannot charge such loss against the mortgagor, unless tliere is a valid agreement tliat he may do so. This rule was applied in Hughes v. Williams- to the case of a quarry, but in bis judgnuuit the Lord Chancellor stated that the ])rinciple would extend to tlie case of a mine. The mortgagee is not l)ound to engage in adventures and sjiecu- lations for the benefit of the mortgagor, but is liable only for wilfre ad- vantageous to the ])arties interested the land may be sohl under the direct ion of the Court instead of being partitioned. " Land " in this Act is '" defined to include lands, tenements and horedifaments, and all estates and interests therein, and therefore would include mines. ♦Taylor v. Mostyn, (1886) 33 Ch. Dlv. 237. • Rowe V. Wood, 2 J. & W. 556. " Disttnguishlng Whitley v. Chal- lis. (1892) 1 Ch. 64. " County of G. B. v. Rudry Mer- thyr, S. & H. C. C. Co., (1895) 1 Ch. 629 (C. A.) ' R(>dmayne v. Foster, (1866) L. R. 2 Eq. 467. " R. S. O. (1897) 0. 123. s. 5. • " Not including a sole tenant for life, Fisken v. Ife, (1897) 28 O. R. 595. ; 4« I '■III I :v^tli M I *:- I : 192 PARTITION Wlicn partition is asked of a mining property the Court would usually be compelled l)y the exigency and circumstances of the case to direct a sale.* In Rickards v. Rickards ^ a sale was directed instead of a parti- tion, there being coal beds under a portion of the lands. In New Bruns'wick the law relating to the partition of lands is provided for in the Act respecting " The Supreme Court in I'^quity," " and may be elTected by the Court in a suit bro' ht therein for that purpose.* If a beneficial partition of tlie estate is found diffi- cult to be made, a sale may be made of any part by portions or other- M'ise, at public auction. '^ Where A. and B., being tenants in common in fee in a lot of land, under the surface of Avhich was ])laster rock, made partition tliereof by deed, A. releasing to B. all his right in the western half of the lot, and granting to him the right of digging and carrying off plaster from the quarries on the eastern half; and B. releasing to A. all his right in the eastern half, except the plaster therein, which was to continue in common as before, B. retaining and reserving his original rigiit of digging and carrying away tlie same. In trespass by the plaintiff, claiming through A. against the defendant, claiming through Pj., it was held that B. never parted with his right as owner in fee of tlie ])laster in tlie eastern half of the lot, and that such right, on h.is deatli vested in his heirs, though there were no words of in- lieritaiu'o in tlie exce])tion; that B.'s right to dig and carry away plaster was not a mere license, expiring at his death, but an absolute reservation of ownership, witli tlio same legal incidents as if the par- tition hi.d not l)een made; tliat the riglit of B.'s grantee to dig for ])laster was not confined to quarries opened at the time of the parti- tion; that it was not essential to B.'s reservation of tiie right to enter and dig, that he sliould have given A. any specific compensation for pnch riglit." Where A. and B., tenants in common of a lot of land, divided it without a deed of partition, and afterwards occupied their separate '"By 8. 2, 8.-S. 1. ' Per Roniilly, M. R., in Wild v. Milne, (1859) 26 Bejiv. 504. = (1867) 36 L. .T. N. S. Ch. 176. 'C. S. N. B. (1877) c. 49, ss. 117- 123. 'Section 117. ■ S(>ction 120. " Prince of Wales Coal Co. v. Osmnn, (1882) 22 N. B. R. 115 PARTITION 103 portions according to that division, J. afterwards coming into pos- session under A. of his i)art, it was held that J. had a right to avail himself of the partition and of A.'s occupation^ In Nova Scotia the law relating to the partition of lands is con- tained in the llevised Statutes of Nova Scotia (fifth series) c. 123, wliich, as amended by Acts of 1891:, c. 19, s. 1, provides that all per- sons holding lands or mining areas as joint tenanis, co-parceners or tenants in common,'* may he compelled to divide the same, either by writ of ])artition at the common law," or in the manner provided by tlie Act.*" No tenant for any term of years, unless twenty years thereof at the least remain unexpired, shall maintain a petition against any tenant of the freehold; but when two or more persons hold jointly or in common as tenants for any term of years, either of them may have his share set off and divided from the others in the same manner as if they had all been tenants of the freehold.* Such partition between two or more tenants for years shall continue in force only so long as their estates endure, and shall not alfect the premises when they revert to the respective landlords or reversioners.- If there are several petitioners they may have their shares set off to- gether, or the share of each one may be set off in severalty, at their election." In British Columbia the " Partition Act " * provides ^ that in an action in whieli a judgment for i>artition might formerly have been given, if the parties interested to the extent of one moiety or up- wards in the property in question, request the Court to direct a sale of the property and a distribution of the ])roceeds instead of a divi- sion of the property Ijetween or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly. In certain cases the Court mi./ direct a sale in lieu of partition on the request of any of the parties in- terested." If any party interested requests a Sale, the Court may direct a sale unless the other parties interested, or some of them, undertake to purchase his share at a valuation.'' 'Jones v. Morgan, (1882) 22 N. B. ' Section 4. R. 115. ''Section 5. ' See McNeil v. McDougall, (1896) ' Section 18. 28 N. S. R. 296. ' R. S. B. C. » Donne v. McKenny, (1854) 2 N. ' Section 7. S. R. 328; James 328. " Section 8. "Section 1. 'Section 9. 13~-M (1897) Ch. 149. 194 REOISTRATIOy Eegistry Acts. In Ontario "The Kegistry Act" ^ provides: — After any grant from the Crown of lands in Ontario, and letters patent issued therefor, every instrument all'eoting the lands or any part thereof comprised in the grant shall be adjudged fraudulent and void against any subsequent i)urchaser or mortgagee for valuable conside:at:on without actual notice, unless such instrument is regis- tered, in the manner herein directed, before tlie registering of the instrument under which the subsequent purchaser or mortgagee claims.2 The registration of any instrument, under this Act or any former Act, shall constitute notice of the instrument, to all persons claiming any interest in the lands, subsequent to such registration, notwith- standing any defect in the proof for registration, but nevertheless it shall continue to be the duty of every Eegistrar not to register any instrument, except on such proof as is required by this Act.-'' Every instrument capable of registration and having the proper aflldavit of execution attached thereto shall be deemed to bo regi- stered when and so soon as the same is delivered to and received at his otlice during office hours by the Registrar or some officer or clerk in his otlice, and the proper fees ])aid and tendered.* Priority of registration shall prevail unless before the prior registration there has been actual notice of the prior instrument by the party claiming under the prior registration.'' No equitable lien, charge, or interest affecting land shall be deemed valid in any Court in Ontario as against a registered instrii- ment executed by the same party, his heirs or assigns." The Kegistry Act ceases to a])])ly to land as to which a certifi- cate by the Master of Titles of the first registration of an owner under the Land Titles Act is registered in the registry division in which the land is situate.'' The application of the Registry yVct to lands, the letters patent for which are forwarded to the Tjocal blasters of Titles ])ursuant to section 16!) of the Land T'tles Act, is not expressly negatived. > R. S. O. 1897, c. 136, » Section 87. ' Section 92. ♦ Section 96. » Section 97. » Section 98. ' The Land Titles Act, R. S. O. 1897, c. 138, s. 18. UEGISTRATIoy 195 Rejristration of a mortfiago before ])atont, is notice whether under the ]lcir .ind Devisee Commission or not." liegistration before ])atent is applicable only to mortgages, liens or incumbrances." Assignments, to be registered in the Crown Lands Department, pursuant to section 19 of the i'liblic Lands Act,' must be uncondi- tional. The Land Titles Act - applies to the county of York, includ- ing the cily of Toronto; the county of Klgin, including tlic city of St. Tiioiiias; the county of Ontario, and to the districts of Muskoka, ]'arry Sound, Xipissing, Algoiua, ^lanitouliii, Tliunder liay and l?ainy l{iver only; l)ut i)rovision is made'' for extending the opera- tions of the Act pojiularly referred to as the '" Torrens system of land title-," to olhcr counties, cities or towns. Wiien letters ]mtent for any land situate in Muskoka, Parry Sound, Xipissing, Algoma, !Manitoiilin, Tliundei; iJay or Kainy l{iver are issued, the same shall be forwarded to the Local ^Laster of Titles of the district for the pur- pose of the imtcntee being entered as the first registered owner of the land, with any necessary qualifications.* " Tile first registration under ' The Land Titles Act * of any per- son as owner of land (in this Act referred to as first registered owner) with an al)solute title, shall vest in the person so registered an estate in fee simple in siu-h land, together witli all rights, ])rivileges, and appurtenances belonging or a])purtenant thereto, subject as follows: — 1. To the incumi)rances, if any, entered on tlie register; 3. To such lia])ilities, rights and interests, if any, as arc l)y this Act declared for the purposes of the Act not to be incund)rances, unless, under tlie provisions of this Act, the contrary is exi)ressed on the register. 3. Whore such first registered owner is not entitled for his own benefit to the land registered, then as between him and any persons claiming under him, to any unregistered estates, rights, interests or 'Vanco V. Cummings. (18G7) 13 Gr. 25; Watson v. Lindsay, (1881) 6 O. A. R. G09. As to effect of notice of unregistered assignment before patent: Goft v. Lister, (1868) 14 Gr. 451; R. S. O. (1897) c. 28, 8. 19. • Holland v. Moore, (1866) 12 Or. 296. This was a decision under section 24 of chapter 80 of C. S. U. C, now found in R. S. O. (1897) c. 31, s. 28. 'R. S. O. 1897, c. 28. » R. S. O. (1897) 0. 138, s. 2. ' By section 161. ♦ Section 169. 196 T0RREN8 SYSTEM equities to whicli such persons may be entitled; but free from all other estates and interests whatsoever, including estates and interests of Her Majesty, her heirs and successors, which are within the legisla- tive jurisdiction of tliis Province.* These i)rovisions must be read "n connection with the other pro- visions as follows: All registered land shall, unless under the provisions of this Act tlie contrary is expressed on the register, be deemed to be sub- ject to stich of the following liabilities, rights, and interests as for the time being may be subsisting in reference thereto, and such lia- bilities, rights and interests shall not be deemed incumbrances within the meaning of this Act; that is to say: " 1. Statutory or municipal taxes and water rates, for the cur- rent year; " 2. Any mimicipai charges, rates or assessments theretofore im- posed for local improvements, and payable during the current year or afterwards; " 3. Any public highway, any right of way, water-course, and right of water, and other easements; " 4. Any title or lion which, by possession or improvements or other means, the owner or person interested in any adjoining land has acquired to or in respect of the registered land; and the descrip- tion of the land shall not, as against adjoining owners, be conclusive as to the boundaries or extent thereof; " 5. Any lease or agreement for a lease, for a period yet to run, of not exceeding three years, where there is actiial occupation under the same; " (i. Any right of the wife or husband of the person registered as owner to dower or curtesy (as the case may be) in case of surviving such owner; " 7. Any right of appropriation which may by statute be vested in any person, or body corporate.® " (2) If the applicant desires the certificate to declare the title to bo free from the first six of the said particulars, or any of them, his application shall so state, and the investigation shall proceed accord- ingly." ^ "Section 13. •Sertfon 2G, s.-s. (1). 'Section 26, sub-section (2); R. S. O. (1887) c. 116, s. 24 (2); R. S. O. (1887) c. 116, s. 24 (1); 56 Vict, c. 22, s. 5. REQISTRATION 197 Land registored under the Land Titles Act shall be deemed to have been and to be subject to the rights of the licensees under the Crown Timber Act for the current license year, or of his assignee, and the rights of Her Majesty in the pine trees under tlie l-'ree (Jrants and Home.-teads Act, or any statute for which the same is sul)stituted, without the fact of the land being so subject being expressed in the entry in the register or in the certificate of ownershi]!.'" That all lands legistered under the said Act shall be subject to the provisions of the Kevised Statutes respecting mills and dams,* and of the Kc- vised Statute for protecting public interest in rivers, streams and creeks," without the fact of such land being so subject being expressed in 'the entry in the register or in the certificate of ownership.^ Provision is made for excepting from the etl'ect of registration any estate, right or interest arising before a specific date or arising under a specific instrument or otherwise particularly described in the register; a title registered subject to such excepted estate, right or interest shall be called a qualified title.* The registration of a person as first registered owner of land with a qualified title shall have the same effect as the registration of such ])erson with an absolute title, save that registration with a (qualified title shall not affect or ])rejudice the enforcement of any estate, right or interest appearing by the register to be excepted."' After the registration in the registration division in which the land is situated of a certificate l)y the blaster of- Titles of tlie first registration of an owner under this Act, the Kegistry Act," shall cease to apply to said land. I'lovisioii is also made for a sejiarate register of leasehold lari!,'' and 'for the creation of charges by the registered owner of the land.^ Section 41 ju-ovides that every registered owner of land may transfer such land. A transfer for valualde consideration of land registered with an absolute title shall, when registered, confer on the transferee an estate in fee siniide in the land transferred, together with all rights, privi- leges, and apjjurtenances belonging or appurtenant thereto, subject r,s follows: '"Section 27. » R. S. O. (1897) c. 140. ■ R. S. O. (1897) c. 142. » Section 28. * Section 16 (sub-section 2). ^' Section 16, sub-section (3). »R. S. O. 1897, c. 136. ' Sections 19-24. « Sections 33-40. 198 TORHKNS SYSTEM 1. To llio incuinl)raneos, if any, entered on the rejfistcr; and 2. 'J\) such liabilities, rights, and interests, if any, as are hy this Act deelared Tor the purposes of the Aet not to l)e ineund)rances (iin- Ioj-s the eonlrary 'is expressed on the rejiister). Jiut tree from all other estates and interests whatsoever, inclnd- ing estates ami interests of Ilcr AInjesty, her lieirs and successors, which are within the le by chapter 32; in 18!);5 by chapter 37 ; and in 18!)1 by c]iai)ter 23. Deeds or juortgages of lands duly executed but not registered shall l)e void * against any subse(iuent purchaser, or mortgagee for valuable consideration, who shall first register his deed or mortgage of such lands.-'' Xo mortgage, judgment,* or other encumbrance alTectiug lands shall have any priority or elfeet by reason of being held by or vested in the same ])erson with another mortgage or encumbrance of prior date and registry.'' A judgment duly recorded and docketed shall bind the lands of the party against wliom the judgment shall have passed, from and after the registry thereof in the county or district wherein the lands are situate as effectually as a mortgage, whether such lands shall have been acquired ])efore or after the registering of such judgment; and deeds or mortgages of such lands, duly executed but not registered, shall be void against the judgment creditor who shall first register his judgment.^ Leases of land for a term exceeding three years shall be void against any subse((uent purchaser, mortgagee for vahudde considera- tion, or judgment creditor, unless such lea,ses sliall have been pre- » lb. 8. 64. '"lb. s. 69. ' lb. 8. 2. -See Grlndley v. Blakie, (1886) 19 N. S. R. 27; 7 R. & G. 27; West V. Matheson, (1879) 9 N. S. R. 429; 3 N. S. D. 429. ' R. S. N. S. (5th ser.) c. 84, s. 18. * J08t V. McCuish, (1893) 25 N. S. R. 519. " lb. s. 19. "lb. s. 21. nmilSTRATlON 201 viously registered, and a reasonnhlo rent reserved in good faith therein.' fjrnnts of land shall he recorded in tlio ofhce of registry of deeds of the county in wliich tlie lands lie." In British Columbia. Tlie Land Registry Act in force in British Cohniihia is to he I'onnd in the Revised Statutes of Britisli Coliunhia (IS!)'!), Chapter J 11. 'i'iie owner in fee of any land whose title to wliich shall have hecn registered for seven years, may ajiply to tho Hcgistrar for a certiticate of indefeasible title," whicli, wlion granted, is conclusive evidence in all Courts of Justice tiiat tlie juM'son named therein is the nhsolute owner of an indefeasible fee simple in the real estate therein mentioned against the whole world (tho Crown only excepted), subject as therein expressly set forth.'" The North- West Territories. The title to land in territories and the conveyance, transfer and registration thereof are governed by 'IMie Land Titles Act, 1891, 57-58 Vict, (l)oin.) c. 28, as amended by (iU-(il \'ict. (Dom.) c. 30. l?y section 2, sub-section (q), the expression "■ territories " is de- fined to mean the Xorth-West Territories, the district of Keewatin, and all other territories of Canada, and would therefore include the district of Yukon. As the Torrens system is in force in several of the mining dis- tricts of Ontario and in all the territories of Canada the following decisions in which the Australian Land Transfer Acts have been con- sidered are referred to. As to effect of transfer from judgment debtor after copy of writ of /?. fa. tiled. 8ee The Registrar of Titles v. I'atcrson.^ In National IJank of Australia v. The liiited Hand in ILind,* it was held on ajijieal from the Supreme Court of Victoria, that where a registered mortgagee of leasehold estate sells either under statutory l>()wer or as ahsolute owner no interest therein jiasses to the pur- chaser until registration. In j\fcKllister v. Biggs,'' it was held l)y the Privy Council that al- though an unregistered deed i.s not elfectual to pass any estate or in- terest in land, it is suHicient to transfer a right to come into Court, and ask that the certiticate of title be set aside for fraud. ' lb. s. 25. * lb 8. 26. "Section 71. •"Section 7?;. "(1876) 2 App. Cas. 110. • 1879, 4 A. C. 391. = 1883, 8 A. C. 314. Itf igiiiri— 203 TORItKXS SYfiTH]r III i\Inniiiii<^ V. The ('oiiiiiiissionor of TitU's," it wa.s held by the Privy Council that on tiio triio const met ion ol' si-rtions I!) and '^l of tlio Wost Australian 'rranslor of Land Aft, KST I, altliough the prescriljed formalities have lieen complied with the Commissioner has a diserction to refuse to ro{,nster sid)jeet to the opinion of the Su- preme Court nnder section 130. In (Jihhs V. Messer,' the I'rivy Council held, reversing the Su- jirenie Court of N'ictoria, that altlioufj;h the Victorian "Transfer of Land Statute" provides that every one who purchases in },'ood faith nnd for value from a registered proprietor and enters his deed of transfer or mortgage on the register shall therei)y ac(iuire an inde- feasible title, notwithstanding the inlirmity of his author's title, yet a nu)rtgagc entered on tlie register by bona fide mortgagees, such mort- gage liaving heen executed in the name of a fictitious and non-exist- ing transferee, whose name was entered as proprietor as the result of a forged transfer, was invalid. Lord Watson said ; Although a forged transfer or mortgage which is void at common law, will, wiien duly entered on the register, become the root of a valid title in a bond fith' purchaser by force of the statute, tiiere is no enactnu'iit which nui Kcs indefeasible the \" gistercd light of the transferee or mortgagee under a null deed. . . . The duty of ascertaining the identity of the principal for whoMi an agent professes to act with the ix'rson who stands on tiie register as proprietor, and of seeing that they get a genuine deed exe- cuted by that ]»iincipal, rests with the mortgagees themselves, and if they accept a forgery they must bear the conse(inences." The provisions a.s to time may be waived by the parties for who.so bcni'fit they are introduced.* This was shown by Lord Davey,^ to be an illustration of the maxim, (JiilllbrI /xilcxt reniinridrc jiiri pro sr iiilroiliirli. Settled Estates. t)n any sale of land under " The SettU-d Kstatos .\ct."'-'' any earth, coal, stone or mineral may be excepted, and any rights or i)rivileges may be reserved, and the purchaser may l)e rcpiired to enter into any covenant< or submit to any restrictions which tlic Court deems advi.sable.^^ "(1890) I.") A. C. 195. '1891, A. C. 248. ' At p. 257. ' Wilson V. Mcintosh, 1894, A. C. 129: as to effect of omission to re- corfl :in easement, see .James v. Stevenson, (1893) A. C. 162; as to the burden of proof as between ap- plicants for first registration and caveators, etc., see Soiling v. Broiighton. (1893) A. C. 556. 'At p. 133. -' R. S. O. 1897, c. 71. ■■ Section 18, which is identical with R. S. B. C. 1897, c. 171, s. 23. CHAPTEIi IX. suri'oirr. Support. Prima fnric the owiut of land lins a natural and legal riglit ti) tlic unilistiirlx'd cnjoynu'nt of tliat land in its natural cnndi- tioii, wliicli involves the liglit of vi-rtical support ' from tiic sul)jncont inincs and uiiiicrals, and of lateral support- fi'oni the adjaeeiit laiul. Cauiphell, ('.,1., says, in iruuiphrios v. r.ro., Iield it was not an easement, following the oj)inion of Lord Wenslcydale in Bonomi v. Backhouse. Bowon, J., referred to it as a ])seudo-ease- mcnt. Lord lUackburn thought it was more pro])er]y described as a right of ])ro|;erty whicli the owner of the adjoining land is bound to respect than an easement." This is practically the view of Lord Cranworth in IJackhouse v. Bonomi. In Lemaitre v. Davis,^ Hall, V.-C, followed the view of Sel- borne, L.C., and held that the right to support is a right within the "' In order that an « asement may be acquired by prescription the enjoyment must be //'c vi inr rill III HIT prtcitrin: Dalton V.Angus, (1881) G App. Cas. 796; In Tone v. Preston, (1883) 24 Ch. Div. 739, no casement was acquired because the enjoyment of support was not as of right. '(1881) 6 App. Cas. 792. '"(1889) 15 App. Cas. 30. ' See n.'icltus v. Smith et al., (1880) 5 A. R. 341; Rogers v. Taylor, (1858) 2 H. & N. 828; Jeffries v. Wil- liams, (1850) 5 Exch. 792; Bibby v. Carter, (1859) 4 H. & N. 153; Rich- ards V. Jenkins, (18fi8) 18 L. T. N. S. 437. There is no obligation to repair on the part of the owner of the servient tenement, but the owner of the dominant tenement must repair, and he may enter on the land of the servient tene- ment for that purpose: Pomfret V. Rioroft, (1670) 1 Saund. 322; Colebeck v. Girdlers Co., (1876) 1 Q. B. D. 243. "P. 808. ' (1881) 19 Ch. Div. 281. SUPPORT 207 scope and provisions of the Prescription Act; •' in other words, that it is an Ciisoment witliin the meaning of the English enactiueiit, Avhic'h is identical with IJ. S. O., 18i)T, c. 133, s. 35. This was hefore the decision of the llonse of Lords in Darley ^lain Colliery Co. v. ^Mitchell.'' In that case, Lanih v. Walker," was expressly overiuleil, and the view of J^ord Cranwortii in Bonomi v. Backhouse " cited with a])proval. J^ord Fitzgerald "' states the following proj)ositions " as now settled in law " : '' (1) That the owner of the surface has a natural and legal right to the undisturl)ed enjoyment of that surface in the absence of any binding agreement to the contrary. {2} That the owner of tlie subjacent minen'.ls iiiay excavate and remove them to the utnu)st extent, l)ut should exercise that rigid so as not to disturb the lawful enjoyment of the owner of the surface. (3) That the excavation and removal of the miniTals does not, per ae, constitute any actional)le inva^;ion of the right of the owner of tlie surface, altiiongh sul)se([uent events show that no adequate sup- ports have been left to sustain the surface. (I) But that, when, in consequence of not leaving or providing suOicient supports, a disturbance of tlie surface takes ])lace; tliat dis- turbiince is an invasion of the right of the owner of tlie surface, and lonstitutes his cause of action," and av^ It see 111 f o mo tliat IJackliouse v. lionomi " did decide tlial the removal of the subjacent strata was an act (I will not say an innocent act) done in tlie legitimate exercise of ordinary ownershi]), which, per se, gave no right of action to the owner of the surface, and that the latter had no right of action until his enjoyment of the surface was actually disturbed. The disturbance then constituted nis ri'dit of action. Tliis was followed by the Court of Appeal in Cruml)ie v. Walls- end liocal JJoard,"* where Tiord Kslier, ^I.U., states,*** that the decision '2 & 3 Wm. IV., 0. 71, s. 2; In Simpson v. Godinanchester Cor- poration, (1897) A. C. 709, Lord Davey agreed with the opinion ex- pressed by Lord Selborne In Dalton V. Angus, (1881) 6 App. Cas. 798, that this section (which is identi- cal with R. S. O. (1897) c. 133, s. 35) is not confined to rights of way and water courses; but Includen easements of every description, notwithstanding the contrail opin- ion expressed by Erie, C.J., in Webb v. Bird, (1818) 2 Ph. 774. M188fi) 11 App. Cas. 127; see A.- G. V. Conduit Colliery Co.. (1895) 1 Q. B. 312. = (1878) 3 Q. B. D. 389. "(18(51) 9 H. L. C. 503. '" (1886) 11 App. Cas. 127, at pp. 147-8. "■'At p. 151. ' (18(51) 9 H. U C. 503. '{U9\) 1 Q. B. D. 503. ^'At p. 508. '.' \ 208 .STATUTE OF LlMlTATLONfi of the House of Lords in Darley Main Colliery Co. v. Mitchell," has settled the law on the siihjeet. It is no answer to an action for interferin<( witli a riglit to sup- port by Avorkinfi mines, to show that the mines have been worked with ordinary care and without negligence."^ Statute of Limitations. In Backhouse V. Bonoini/" which Pol- lock, 15., refers to in Dalton v. Angus * as the most important of the decided cases upon the sid)ject, tlio House of Lords decided that the right of a ])erson to the su])])ort of tlie land iniuicdiately around his house is not in tlie nature of an easement, hut is the ordinary riglit of enjoyment of property, and, until that is interfered with, he has no legal ground of comjdaint, although, in elTect, something may have been done which, without his knowledge, has occasioned results that will afterwards all'ect his ])roj)erty. A. was tlie owner of certain houses standing on land which was surrounded by the lands of B. C. and D. E. was the owner of mines running underneath the lands of all three ]iersons. He worked tlie mines in such a manner (without actual negligence) that the lands of B., ('. and I), sank in; and after more than six years' interval their sinkiug occasioned an injury to the houses of A. The House of Lords, in that case, held, that a right of action accrued to A. wlion this injury actually occurred, and that his right was not barred l)y tlie Statute of Ijimitations.^ The Darley Wa\\\ Colliery Co. v. ^litchell,-'' was a case of the ins'asiou oi' the riglit of the surface owner to the sujijiort of his land b\' a subjacent seam of coal: but the same jirinciplos govern the right to lateral support. Severance. In ^Midland By. Co. v. Haunchwood,' Lord West- bury observes that " There is no distinction between the severance of ownership vertically, that is, of the surface lands from the mines beneath, and the severance of ownership laterally." » (188G) 11 App. Cas. 127. "' Haines v. Roberts, (1857) 7 E. & B. 625; Hunt v. Peake, (18G0) 29 L. J. N. S. Chy. 785. As to what damages must be shown in order Xn sustain action for infringement of right of support: see Smith v. Thackeray, (1866) L. R. I. C. P. 564; Attorney-General v. Conduit Colliery Co., (1895) 1 Q. B. 301. "(1861) 9 H. L. C. 503. ' (1881) 6 App. Cas. 740. = See Bonomi v. Backhouse, (1858) E. B. & E. 623. '(1886) 11 App. Cas. 127. * (1882) 20 Ch. Div. 552; see Rich- ards v. .Jenkins, (1868) 18 L. T. N. S. 437, where the differences be- tween the rights and obligations of the owners of adjacent and subja- ccn' mines, in respect of the sup- port of buildings, are discussed. SUPPORT 209 In Minidy v. Duke of Rutland/ the above i)rinciplos wore a])- plied to a case where the owner of land, under which there were strata of coal, demised one of the upper strata to the plaintiff, and afterwards some of the strata of coal underlying the coal demised to the plaintiff to the defendant company. Jessel, M.K., said, p. 1)(), " It is quite plain that the grantor in a grant in foe, a fortiori, that the lessor in a lease cannot derogate from his own grant.'' It is doubtful whether the common law right of lateral support would be held to exist in cases where lands are located and granted for the purposes of hydraulic mining." "Where the severance results from statute, as for instance, in grants of mining rights under The Ontario Mines Act, to a person other than the owner of the surface, the respective rights arc gov- erned by the statute by virtue of which the severance takes ])lace."^ Grant, Reservation And Exclusion of Eight. The grant of the riglit of siijjport of buildings or other burdens upon land may be express or implied. In London & X. W. Ey. (-o. v. Evans," IJowen, L.J., says, at ]>. 2H: " In dealing with an ordinary grant of lands it is nndoid)ted law that, where such grant is made for a specific i)ur- pose, such as the construction on tlie lands of a house, canal, railway, or other i)ermanent work, the grant, in the absence of a contrary in- tention ap])oaring on its face, carries Mith it by implication, llie I'iglit of reasonal)le and necessary siqiport for the works so t.» l)e erected from the sulgaccnt or adjacent lands of the grantor. Tliis maxim of law and of good sense ap])lies whether the grant is voluntary or under the compulsory powers of a statute.'* In Caledonia Railway Co. v. Sprot," it was held that " a con- veyance of land to a railway company for the ]mrposes of the line, gives a right by im])lication to all reasonable subjacent and adjacent sujijiort connected with the sid>ject-matter of the conveyance; and, ■' w N. |be- of Ija- \\v- |a. M1883) 23 Ch. Div. 81. ° Miirchie v. Black, (1865) 19 C. B. N. S. 190; Robinson v. Grave, (1873) 27 L. T. 648; Rlgby v. Ben- nett, (1882) 21 Ch. D. 559; Phillips V. Low, (1892) 1 Ch. 47; Shubbook V. Tufnell, (1882) 46 L. T. N. S. 836. "' It has been held that there Is nothing In the Goldflelds Act, 1866. of New Zealand, rendering the 1 l-M common law right of lateral sup- port inapplicable to lands held for mining purposes: The Great Ex- tended Sluicing Co. v. Hales. Mac. 896; the N. Z. Digest, 1861 lo 1892. p. 505. ■(1893) 1 Ch. 16. "See Elliot v. North E..stern Railway Co., (1863) 10 H. L. C. 333, 357. " (1856) 2 Macq. 449. rnrnmn ^.1 Jrt SIO IMPLIED GRAJT OF RIGHT therefore, although, iir the conveyance to the railway company the minerals are reserved, the grantor is not entitled to work them, even under his own land, in any manner calculated to injure the railway. On the same i)rincii)le, if the owner of a house conveys the ujjper story, reserving all helow, the purchaser will he entitled, on general principles, without stipulation, to prevent any damage to the walls imdorncath. But, if I grant a meadow to A., for grazing purposes, retaining the minerals and the adjacent land, and if A., having no warranty against sidjsidence, thinks fit to build a house on the edge of the meadow, and the house falls, he is without remedy against me, and has himself alone to l)lame for the consequences. ]f, however, the grant were made expressly for building pur- poses, there would then be an implied warranty of support, both subjacent and adjacent." In Elliott V.' X. E. Ey. Co.,^« it was held " that a vendor of land, having sold it under an Act of Parliament for the ])articular purposes of a railway, can not afterwards work the minerals under the surface (though they have been expressly reserved to him, either by his grant or by the provisions of tlic company's own act), in such a manner as to prejudice the use of the land for the purposes for which it has been ])urchased." London & Xorth-Western Kailway Co. v. Evans,^ was a case upon the construction of a private Act of George 2nd, by which the undertakers, '' who were not made a corporation, were authorized to make an existing brook navigable. . . . The Act contained no reference to minerals. The brook was made into a canal, but no conveyances to the undertakers were made, — compensation being made to the landowners by annual payments. Tiie navigation sub- sequently became vested in the ])]aintilTs. The defendants, who were owners of coal under the canal, worked it so as to cause a subsidence, and tlie ])laintiirs brought their action for an injunction on the ground that they had a right to su])port." It was held on ap])oal that where an exjire.ys statutory right is given to make and maintain something requiring support, the sta- tute, in the absence of a controlling context, must be taken to mean tliat tl)e right of supi)ort shall accompany the right to make and maintain; that if the Act does not provide any means of obtaining compensation for the loss occasioned to the landowner by his having ■" (1863) 10 H. L. C. 333. > (1893) 1 Ch. Div. 16. SUPPORT 211 to leavo support, this is a strong argument against the Legislature having intended to give such riglit; Init that if it contains i)rovision3 under which compensation can be obtained, it needs a strong context to shew that the right to support is not given; that under tlie Act, in the present case, compensation conUl have been successfully claimed for the damage occasioned to the landowners by making their mines unworkable. That the l^egislature, therefore, must Ijc taken to have intended to give a right of sujjport, and that the plaintiIVs were en- titled to an injunction. In Aspden v. Seddon and I'reston v. Seddon,- the facts were that the owner in fee of an estate granted away a portion of it which, ultimately, became the property of the plaintiff, but reserved, a rent-charge (suljsecjuently redeemed), and also the minerals under the bind so granted and the right to work them, paying compensation for all damage that should be done thereby to the erections on the land. 'i"he grantee (for the better securing of the rent-charge) cove- nanted to build a mill on the land granted to him. The owner in fee afterwards granted to the defendants' predecessor in title tlie minerals, rights, and liberties so reserved, and also the other and ad- jacent poitions of the estate. The defendants, who took with notice cf the agreement as to the payment of compensation, worked the n.ineials under the plaintiff's land, and also the minerals under their own land, and hy the o])eration of one or other of tliese workings, or by their joint operation, let down the surface of the plaintilV's land, and so injured the mill which had been built there in accord- ance with the covenant an( 1 it was held that the risiht to wtu'k the sul)jacent nnnes being subject to the condition of paying com- ] ensation, the ])lMiiitilf could maintain an action for the injury done to the mill by the working of those mines; also, that if the injury arose from the working of the mines under the adjacent lands, or from the combined elfect of working tho.se mines and the subjacent ones, the iilaintilf was still entitled to recover. The vendor of land adjoining other land of bis own under which are mines and minerals, and who knows at the time of the sale that the vendee is about to erect ujion the land so imrchased substantial buildings, imjdiedly covenants that he will not use or iicrmit the adjoining land to be used in such a manner as to derogate from his grant. (1876) 1 Exch. D. 490. ' 1 ?a!i 215J UKKfJltVATION OF lUUllT A. sold land to B. for the purpose of nil iron-foundry. Adjoin- ing iho land so sold to B., A. had other land under which was coal, A. al'tcrwards leased the minerals to ("., who commenced working the coal within such a distance from tlie land of B. as to be reasonably calculated to endanger its stability. This was held ground for an injunction against A. and C, altiiough no actual damage has been sustained l)y J}.'' In Harris v. Byding,* A. being seised in fee of certain lands, granted the land to P., his heirs and assigns, reserving to himself, his heirs and assigns, " all and all manner of coals, seams and veins of coal, iron ore, and all otlier mines, minerals, aiul metals wh'ch then were, or at any time, and from time to time thereafter, shoiild be discovered in or upon the said premises, etc., with free liberty of ingress, egress, and regress, to come into and upon the premises, to dig, delve, search for, and get, etc., the said mines and cYtTV jiart thereof, to sink shafts, etc., nudving a fair compensation to V. for tile damage to be done to the surface of the premises, and the pasture and cro])s growing thereon." Parke, B., said, at p. 70: "The rule of law is, that a reserva- tion is to be construed strictly; still, however, it would reserve to the grantor all that was jiot conveyed by the grant, provided the meaning and intention of the parties be clear. What, then, is the meaning and intention of the parties here? It is clearly the meaning and inten- tion of the grantor, that the surface shall be fully and l)eneficially held and enjoyed by the grantee, he reserving to himself all the mine.-! and veins of coal and iron ore below. By reasonable intend- ment, theiefore, the grantor can be entitled under the reservation only to so much of the mines below as is consistent with the enjoy- ment of the surface according to the true intent of the parties to the deed, that is, he only reserves to himself so much of the mines and minerals as could be got, leaving a reasonable supjjort to the surface. That is the true construction of this deed, in order to make it 0])erate aecoiding to the intention of the ])arties. It never could have I)ecii in their contem])latioii that, by virtue of this reservation of the mines, the grantor should be entitled to take the whole of the coal and let dov.n the surface, or injure the enjoyment of it.'' Dugdale v. Robertson * decided that there is a prima facie in- ference at common law upon every demise of minerals or other sub- jacent strata, where the surface is retained by the lessor, that the lessor is not divesting himself of his own right to support. In the '■ Siddons v. Scott, (1877) 2 C. P. D. 572. * (1839) 5 M. & W. 60. "■ (1857) 3 K. & J. 695. SUPPORT 313 fihsoncc of express words showing clearly that he has waived or qitali- ik'd his ri.trht, the presumption is, that what he retains is to he eii- jf)yed hy him, Diodo et forma, and with the natural support whidi it possessed 1)efore the demise. Sir W. Page Wood, V.-C, said : "'* " For the occupier of the sur- face had a ja-ima facie riglit to the support of tlie sul)jacent strata, and the deed did not authorize any working in derogation of tliat riglit." ''- '' And so, conversely, where the minerals are demised and the surface is retained by the lessor, there arises a prima facie infeienco at common law upon every demise of minerals or otlier f-ubjacent strata, that the lessor is demising them in such a manner iis is consistent with the retention, by himself, of his own right to support, as in tlie case put in the judgment of the House of Lords," of a demise of tlie iipper part of a house." . . . '' It is true there nay be an express stipulation, as there was in Kowbotham v. Wilson, by wliich the owner of the surface waives his right to support. . . . IJut in the absence of exin-ess words, showing distinctly that he has waived or qualilied his right, the presumption is, that what he retains is to be enjoyed by him, modo et forma." In Smart v. i\Iorton/ the declaration charged that C. occupied buildings, the reversion belonging to plaintilT; and that plaintilf was entitled to have tlie building sup])orted by the contiguous mines underground; but defendant wrongfully, carelessly, negligently and imi)roperly, and without leaving proper and sufficient support in that liehalf, worked coal mines. The defendants pleaded that they worked ]iroperly, etc., denying negligence, but this was held to be no answer, the oceui)ier of the surface having a prima facie right to the support, and the deed not authorizing any working in derogation of sueh a right. It was shewn that defendant had not in fact left supports, and the damage had accrued therefrom; but that if defendant was not bound to leave supports, the work was necessary for winning all the (oal, and ]'roierly executed; and it was attemiited to shew that, some years aft"r the execution of the deed, it had liecome customary to win all the coal without leaving supports. Surface-owner V. Mine-owner. Lord Camiibell, t'.J.: '^ "The rights and obligations of parties, where the surface of land be- |l!( " lb., p. 699. ■-lb., p. 700. . " CaU'doma Ry. (1856) 2 Macq. 449. Co. V. Sprot, ' (1858) 5 E. & B. 30. " lb., p. 45. 21 i i^ri{FACK-0}YNEI{ r. MlXtJ-OWXim IdhjIs to one ownor and the niinernlw mulor it lii'lonp to anotlirr, ap- ])oar to 1)0 well settled by the two eases of Harris v. l^yiliiij;','* and llunij)lii'ies v. IJroydeii." " rriiiKi f(ui(\ tiie owner of the siirfaee is entitled to support from the sultjaecnt strata; and, if the owner of the minerals works them, it is his duly to leave snilieient snpport for tlie surface in its natural state. Wwi (he prbiui facie rights ami ol)li>rations of the owner of the surface and of tiie minerals may he varied hy tlie |iro(luction of title deeds, or hy other evidence.'' AVhere tlu' conveyances of an estate in a mininj^f district, sold in lots, contained an exception of all mines and minerals under the land included in the lot conveyed, with fidl ])ower for the fjrrantor to work, jj;et, and dispose of them, without entering upon tlie land iiold, and without being answerable for any injury to the land, or any I)uildings on it, hy reason of working or getting the excepted mines or minerals, and without being liable to any action or suit for any such injury, it was held that a purchaser of two of tiie lots was not entitled against tiie grantor to either vertical or lateral support for the surface of his land.*" Sir W. i'age AVood, V.-C, said:" "The grantor has, there- fore, done sometiiing more than reserve the mines, lie lias reserved them with tlie right to work them, witiiout being res|)onsil)le for dama,i;e. It was contended that a man coidd not derogate from his own grant, and that a grant of the surface included everything neces- sary for its sii]»i)ort; but it is iinpossildc for nie to iiold that the words here are otherwise than a ])hiin contract that tiie grantor may work the mines without regard to the surface; and this disposes of the question as to the vertical support." " Then as to the lateral support, that appears to me to be in the same jjosition. Tlie contract is, that the defendant shall be entitled to raise tlie minerals, and work tlirough the adjacent ])roperty. The express contiact, in fact, covers the wliole case; and any damage that may be done, either by vertical or lateral working, is' within the re- servation." In Miicrdeueh v. Wakefield,- the terms of a reservation of mines in s]iecial Inchisure Act were held to give the right to work sueii ■'ivines to tlie fullest extent, even though destruetion of the surface " (1839) 5 M. & W. 60. » (1850) 12 Q. B. 739. "'Williams v. Bagnall, (1866) 12 Jur. N. S. 987. " At p. 988. -' (1870) L. R. 4 E. & I. 377. suiToiir 315 resulted, till re being a lial)ility of the iiiiiic owner to make eoinpcnsa- tion for the damage done to the owner of the .surface. Ill Smith V. Darhy,'"' the (k'claration was for mining under the plaintilf's land willuiut h-aving jjroper support, whereby tiie foundation of plaintilf's mill and other buildings gave way, and the buildings fell. It was set up that S., the idaintitf'.s predecessor in title, was seised in fee of the said land, etc., and of the subjacent mines, and by an indenture of lea.se demised all tiie veins of minerals, etc., with full power to tlic lessees and a.ssigns to get the minerals from the old pits, and sink fresh ]>its, they, the lessees and assigns, making reason- able satisfaction to the lessor and his tenants for the damage done to them res])ectively by the surface of the lands being covered with rubbish or otherwise injured, etc. This answer was held suthcient, for the terms of the lease implied that it was intended that the lessees (.'i the mines should have the right to work the mine so as to under- mine the surface, subject only to paying damages according to the covenants. lilackburn, .1.: There is no doubt about tlie riglits of the grantee of minerals, and they cannot he more accurately stated than by l^ord AVensleydale in Kowbotham v. Wilson.' JiUsh, J., said: " '• It is clearly shown that the intention of the parties was that the lessees should lake away all the minerals they found, even though the ell'ect might be to injure the surface, only making such compensation as was therein provided. In Kadon v. .lellVock '' a bed of coal called the High Ifazol Jk'd, was deuused, with working powers, to persons from whom the defendants took by assignment. The lessees were to ])ay a minimum rent, etc., '' including all ribs and pillars left in working tiie said coal, except the ])illars for the support of the shafts, the pillars be- tween the deep and counter level, the pillars all round the estate, and the i)illars under the homestead and farm buildings." These jiillars, of specilied dimensions, the lessees bound themselves to leave *■ during the whole of the term," and they also covenanted to Avork the mines '" according to the best of their judgment, skill, and discretion, in a good and workmanlike manner." The pillars specilied in the lease were left; and the defen- dants worked according to the usual course of mining in the dis- trict; l»ut their workings laused a subsidence, which injured the land i\m i ;■ ' ; ' (1872) L. R. 7 Q. B. 716. ♦ (1860) 8 H. L. C. 360. " At p. 728. • (1872) L. R. 7 Exch. 379. .>^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I b£|28 |2.5 1^ Hi 12.2 ^ US, il2.0 11.25 III 1.4 - 6' 1.6 ^ ^. p:» / Photographic Sciences Corporation 23 WIST MAIN STRUT wnSTIR.N.Y. 14StO (716)t7a-4S03 4, ^ l\ 216 EXCLUSION OF RIGHT of the plaintiffs and buildings erected thereafter. The land would liave subsided without the buildings, and it was held that, it appear- ing by the lease to be the intention of the parties that all the coal should be removed, except the specified pillars, and the defendants having worked the mine in a proper manner, they were held not liable for the injury. In a case where the claim was for working mines under the l)laintifT"s land without leaving sufficient support for the sur- face, the defendant pleaded in his statement of defence that he was the lessee of the mines from the lord of the manor; that the plaintiff's land had, previously to the passing of an Inclosuro Act V iider which the waste of the manor was inclosed and allotted, formed part of such waste; that the lord of the manor from time immemorial had been accustomed to work the mines under the waste without leaving sufficient support for the surface, and without making any compensation for injury so caused, etc., and it was held, that the defence must succeed, on the ground that, whether any valid custom such as alleged in tlie statement of defence existed i)reviously to the Act or not, the Act expressly gave to the lord of the manor and his assigns the right to let down the surface by mining without making any compensation.^ In Brown v. Eobins,^ the plainiiif was the owner of a house elected in 1834 on solid ground. Previously to the building of the house, a portion of the minerals had been gotten under a garden whi(h adjoined the house. In 1838 a portion of the minerals was gotten under tlie defendant's land which adjoined the garden. In 185.") the defendant commenctd getting out the rest of the minerals i.nder the land. In 1857 the plaintiff's land sunk and the house was injured l)y the defendant's mining operations. It was found by the jury that the sinking of the plaintiff's land was caused by the defendant's workings, damage would have hai)pened but not to the same extent if the garden ground had been loft solid. Tluit the defendant knew of tlie excavations ..nder the garden. Th*i^ the land would have sunk in just the same whether there was a iiouse on it or not, and lastly that the damage to tlie i)laintirs house by the sinking was £300, occasioned solely by the defendant's workings, and £50 caused in part by the excavation iinder the garden. ' Gill v. Dickinson, (1880) 5 Q. B. 159; Beckett v. Bradley, (1862) 31 L. J. Q. B. 65, not followed. " (1859) 4 H. & N. 186. I J SUPPORT 217 It was held that inasmuch as the sinking of tlie plaintiff's land was in no way caused by the weight of the house, the plaintiff was entitled to recover whether he had acquired a right to support for his foundations by the defendant's soil or not, and that although the excavation under the garden contriljuted to the extent of £50 to the cause of the damage, the plaintiff was entitled to the whole £300; because if the defendant had not done the wrongful act complained of, no part of the damage woidd have followed. Subsidence, In Stroyan V. Knowles," where the working of mines, in however careful a manner, has caused a subsidence of the adjacent land, the owner is entitled to recover in respect of the dam- age to buildings thereon, although erected within twenty years, pro- vided their weight did not contribute to the subsidence. Pollock, C.B.:"! "Then it was said the plaintiff had no right of support for buildings ; but we think that if their being there did not contribute to the subsidence (as the arbitrator finds), the ])laintiff is entitled to damages for injury to them through the de- fendant's wrongful act in causing the land to subside— !he ground on which they stood. This was decided in Brown v. Robins."^" If a party builds a house on his own land, which has previously been excavated to its extremity for mining purposes, he does not acquire a right to support for the liouse from the adjoining land of another, at least until twenty years have elapsed since the house first stood on excavated land, and was in part su])- ported by the adjoining land, so that a grant by the owner of tho fdjoining land, of such right to support, may be inferred; for, rights of this sort can have their origin only in grant.'* Alderson, l?.:'^ " If the law stood as it did l)eforc Lord Tenter- den's Act,''' we should say that srch a grant ought not to be inferred from any lapse of time short of twenty years after the defendants might have been or were fully aware of the facts. And even since that Act, the lapse of time, under these peculiar circumstances, would pro])ably make no difference. For, the proi)er construction of that Act requires that tlie easement should have l)cen enjoyed for twenty years under a claim of right. Here, neither party was acquainted with the fact that tho easement was actually used at all; for, neither party knew of the execavation below the house. We should iM-ol)ably, therefore, have been of oninion that there was no user of the opinion » (1861) 6 H. & N. 454. "lb., p. 465. " (1859) 4 H. & N. 186. " Partridge v. Scott, (1838) 3 M. & W. 220. '= Page 229. "2 & 3 Wm. IV. c. 71, s. 2; see R. S. O. (1897) ". 133, 8. 35. i\ \i 1^ Mm ■■ 218 SUBSIDENCE casement under a claim of right, and that Lord Tenterden's Act, therefore, would not apply to a case like this. However, the facts of this special case do not raise that point." In Greenwell v. Beechbiirn Coal Co.,^ it was held, following Davis V. Treharne,- that damage caused by siibsidonce was not covered by the compensation clause in a deed by which mines were granted with power to the grantee and his assigns to work making reasonable coin])ensation for all damage occasioned to the surface of the land by the exercise of the powers by the deed granted, and that, therefore, the assigns of the grantee were liable to an action to re- cover damages for injury done to the surface of the land by subsid- ence caused ])y working the mines. And also that a lessee of underground strata is not liable in damages to the owner of buildings on the surface, who has actj^uired a right to have the buildings uninjured by underground workings, for injury occasioned iy the buildings ])y reason of sub- sidence happening during the currency of the lease, but resulting from an xcavation made in the underground strata by the lessee's predecessor in title prior to the date of the lease. '(1897) 2 Q. B. 1G5; followed In Nova Scotia by Mr. Justice Gra- ham, In a jiulgim-nt delivered 20 December, 1897 (not yet reported, but printed as a note to s. 20 of the Nova Scotia Mines Act, c. xvii., iiifni) and now standing for judgment in appeal in the Supreme Court of Nova Scotia. - (1881) 6 App. Cas. 460. CHAPTEll X. WATER, VEXTILATIOX, ETC. Water . It has now been settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as lie is to all the other natural advantages belonging to the land of whicli he is the owner. He has the riglit to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, npon the same princijde that he is en- titled to the support of his neighl)our's soil for his own in its natural state. This statement of the law by Lord Wensleydale, in C'haseiuore V. Richards,^ Mas adoi)ted by Lord Cairns in I^yon v. Fishmongers,- and is quoted with approval by liOrd Selborne, L.C., in Xorth Shore ]?y. Co. V. Pion.s In Caldwell v. ^IcLaren * Lord Blackbnrn, says, at p. 40J:: "There can be no doubt that l)y tlie law of I'lngland the owner of the soil on both sides of a running stream, whether it be navigal)le or not, is prima facie at least owner of the soil which forms the bed of the stream, and as owner of his land covered by M-atcr, has all the rights of a landowner. But this is subject to all rights of the owners above him to have the water flow away from their land, and to all rights of the owners below him to have tlie flow come to them as it was wont. It is also subject to any rights which tlic public have over it." Riparian Rights. As ])ointed out by Lord Selborne in Taou V. Kisluuojigers, tlie word " riparian "' is relative to tlie bank, and not to the bed of the stream. The rights of a riparian jiroprietor, so far ' (1859) 7 H. L. C. 349. - (1877) 1 App. Cns. 683. » (1889) 14 App. Cas. 621. M1884) 9 App. Cas. 392; as to how far the English Common Law is In force in Canada, see Chap. VIIT. suh iiniii. " Undrr water areas," and " UI virdinm fihtm." See also Farquharson v. Imperial Oil Co., (1898) 18 C. L. T. 135; Withers v. Purchase, (1889) 60 L. T. N. S. 819; see also statutory provisions referred to infra. rn'M r tv 220 Rip^iRMN Rianrs I as they relate to any natural stream, exist, jure nalnrae, because his land has by nature the advantage of being washed by the stream, and do not depend on the ownership of the bed of the stream. To quote again from Lord Selborne: "It is, of course, neces- saiy for the existence of a riparian right, that tlic land should be in contact with the flow of the stream; but lateral contact is as good, jure naturae, as vertical." " To constitute a foundation for natural rijjarian right, it is suf- ficient that this contact should exist daily in the ordinary and regular cour.'^e of nature, tliougli it may not continue during the whole of any day." In the Xorth Shore Ry. Co. v. Pion, and Lyon v. Fishmongera, the general law as to riparian rights was held to apjily to naviga1)lc and tidal rivers, with the qualification that the public right of navi- gation must not be obstructed or interfered with.^ In Hamelin v. Bannerman * the Privy Council decided, affirming the judgment of the Court of Queen's Bench in Quel)ec, that a ripa- rian proprietor on a navigable river can ac(iuire an interest in its water ];ower derived from n reservoir artificially formed ])y a dam, and sell tlie same as a])])urtenant to his land, and tluit even if such sale is not effectual, as against the public, the vendor cannot himself im])each it on that ground. In Miner v. (iilmour," an appeal from the Court of Queen's ]5ench of Lower Canada, Lord Kingsdown says: '' By the general law applicable to running streams, every ripa- rian proprietor has a riglit to what nuiy l)e called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this witiiout regard to the effect which sucli use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a riglit to the use of it for any ])uri)ose, or what may be deemed the extraordinary use of it, ])rovidod that he does not thereby interfere with tiie lights of other pro])rietors, either above or below him. Sul)- jcct to this condition, he may dam up the stream for the i)urpose of a mill, or diveit the water for the purpose of irrigation. But he has •Lyons v. Fishmongers, (1876) 1 App. Cas. 683; sec Attrill v. Piatt, (1884) 10 S. C. R. 425, 480. " North Shore Ry. Co. v. Pion, (1889) 14 App. Cas. 622. ' Bell V. Corporation of QuebJ^c, (1879) 5 App. Cas. 84; Booth v. Riitte, (1890) 15 App. Cas. 188; Orr Ewing v. Colquhoun, (1877) 2 App. Cas. 839. ' (1895) A. C. 237. '(1858) 12 Moo. P. C. 131; see Earl ()t Sandwich v. The Great N. R. Co. (1879) 10 Ch. D. 707, 712, per Bacon, V.C; Medway Navigation Co. V. Romney, (1861) 9 C. B. N. S. 575, where a private Act of Parlia- ment was held to create a new species of statutory property and interest in the water. WATER 221 no right to interrupt the reguhir flow of the stream, if he thereby inti'rfi'rcs with the hiwful use of the water 1)y other projmeturs, and iuJUots upon them a sensible injury." Tlie above quotation is stated by Lord Blackburn, in C'ounnis- siouers of French lloek v. Hugo,''* to have been often cited, and always with approval. It was pointed out that it did not appear that for the purposes of this ease, any material distinction exists between the French and Fnglish law.^ The i)rinciple is expressed l)y tlie rule of the civil law: Sic eiiiin dehere quern meliorcm at/rum siium fdcerc, uc virini deteriorem fnciat}^ Young v. Bankier Distillery Co.,2 was a Scotch case upon ripa- rian rights, but, at p. 097, Lord Watson observes, that the law of Scot- land upon the point there in question, was the same as the law of England. In Booth v. Batte,^ the Privy Council decided that a riparian owner is at liberty to construct and moor to his bank a floating wharf, which was held not to be an obstruction to navigation, and is entitled to maintain an action for injuries thereto caused by an unauthorized interference with tlie flow and purity of the stream. The riparian owner also owned the bed of the stream where the wharf was built. In North Shore By. Co. v. Bion,* the Privy Council held there was no distinction in principle between rijjarian rights on the banks of navigable or tidal, and on those of non-navigable, rivers. In Caldwell v. Fraser {supra) the question of riparian rights was considered by Bose, J., who held tliat the owner of a mine on terra lirma was not entitled to an injunction restraining the owners of the adjoining property, which consisted of land covered by navigable waters, from erecting a crib for mining purposes in such navigable waters, on the ground that the i)laintiff's ])atent from the Crown was subsequent to that of the defendant, and that, therefore, the jdaintiff took his projierty subject to the defendant's right to work. The owner of land abutting on the chain reserved by the Crown for a public highway along the Kaministiqua lliver, who was also the 'M1885) 10 App. Cas. 344. S€e also Swindon Waterworks Co. v. Wilts & Berks Navigation Co., (1875) L. R. 7 E. & I. App. 697, where the rights of riparian own- ers on the upper and lower por- tions of a stream are discussed nnd explained: Sandwich v. G. N. Ry. Co., (1878) 10 Ch. Div. 707, and as to what is a reasonable use. Ellis v. Clemens, (1892) 22 O. R. 216; Embrey v. Owen, (1851) 6 Exch. 353; Sampson v. Hoddinott, (1857) 1 C. B. N. S. 590. ' Se« also North Shore Ry. Co. v. Plon, (1889) 14 App. Cas. 619. " Embrey v. Owen (snitrn), per Baron Parke, at p. 371. ' (1893) App. Cas. 691. M1890) 15 App. Cas. 188. ♦ (1889) 14 App. Cas, 612. i.l; I if ; lu 223 ]{I1'ARIAN RIGHTS licensee of the interest of the Crown in such reserve, has been held by the Q. B. Divisional Court'" to be a riparian proprietor, and as such the owner of a water privilege on the river within the meaning of tlie Act respecting Water I'rivileges.*- Tlie riglits of a riparian proprietor are inseparably attached to the soil, and considered as appurtenant to the land. A riparian owner, therefore, can not, by grant or license, confer upon a non- riparian owner, water rights so as to enable sucli non-riparian owner to sue other persons for an infringement of them.'*^ Xor can he, except as against himself, confer on any one, who is not a riparian owner, any riglits to the use of the water of the .stream. Any user of such water I)y a non-riparian proprietor, even under a grant from a riparian i)roprietor, is wrongful and will l)e restrained by injunc- tion, if it sensibly affects the flow of water by the lands of other riparian proprietors.'" On the other hand, whore the owner of land, not abutting on a rivei", with tlie license of a riparian owner, took water from the river, and after using it for condensing purposes in a saecluirine factory, returned it to tlie river without abstraction, ])ollution or injury, it was held by the Englisli Court of Appeal that a lower riparian owner could not obtain an injunction against the landowners so taking the Mater or against the riparian owner through whose land it was taken.''''' The title to tlie soil constituting the bed of a river docs not carry with it any exclusive right of property in the running water of the stream, wliicli can only be apjirojiriated by severance, and which may be lawfully so appropriated by every one having a right of access to it."*' *' Re Jenlson. (1897) 28 O. R. 136. *- R. S. O. (1887) c. 119, now R. S. O. (1897) c. 141. " Stockport Waterworks Co. v. Potter, (1864) 3 H. & C. 300. The Judges in the majority were. Pol- lock, C. B., and Channel!, B., Bramwf'll, B., dissented, and sub- sequently in Nuttall v. Bracewell, (1866) L. R. 2 Ex. "^Iv. 1, expressed his view that such rights were grantnble. The decision of the majority was also discussed in Halker v. Poritt, (1873) L. R. 8 Ex. 115, but has not been overruled: Omerod v. Todniorden Mill Co., (1883) 11 Q. B. D. 155; see also Laing v. Whaley, (1858) 3 H. & N. 675. " Omerod v. Todmorden Mill Co., (1883) 11 Q. B. D. 162. '•■ Kensit v. G. E. Ry. Co., (1884) 27 Ch. Div. 122. "' Per Lord S«'lborne, In Lyon v. Fishmongers, (1876) 1 App. Cas. 683; Wright v. Howard, (1823) 1 Sim. & St. 203; Macdonald v. Lake Simcoe Ice Co.. (1898) 18 C. L. T. 178; Embrey v. Owen, (1851) 6 Ex. 353, 370, per Parke, B. WATER 233 Water-course. The oxistence of a water-course, entitled to the protection of the law, is cstahlished, if it is shown that there is a siitU- cient natural and accustomed iiow of water to form and maintain a distinct and defined channel. In givinji' jiidfrment in Beer v. Stroud,'' Uoyd, ('., says : " It is not essential that the supply of water should he continuous, and from a perennial living source. It is enough if the How ari«es periodically from natural causes, ami reaches a plainlj'-deflned channel of a peimanent character"; or, as e.\i)ressed liy Lord Tenterde;'., in Rex V. Oxfordshire," "Water flowing in a channel hetween hanks more or less defined.'"' As pointed out hy Lord Chelmsford in Chasemore v. Hichards," Rawstron v. Taylor," and Ikoadhent v. Kamshotham,^" both rilato to surface water not flowing in any defined water-course. Xuttall V. IJracewell,^ shows that where a natural stream has been turned into an artificial channel, the character of the right is not changed, though the right does not rest on the same principle.- In Ark Wright v. (iell,-'' it was held that a mine owner, who had used a drain through adjoining land for the purpose of draining his mine, was under no obligation to continue it for the benefit of those into whcse land it runs. This is an a])plication of the fundamental principle that an ease- ment exists for the benefit of the dominant owner alone, and that the servient owner acquires no right to insist on its continuance or to ask damages for its abandonment.''^ Subterranean Water. The same principles apply to subterra- nean stieams, which flow in defined and known channels, but do not ■ (1887) 19 O. R. 10, at p. 18: Ar- thur V. G. T. R., (1895) 22 A. R. 89; Williams v. Richards, (1893) 23 O. R. 651. " (1830) 1 n. & Ad. 301. 'Taylor v. St. Helens. (1877) 6 Chy. Div. 272; McNab v. Robertson, (1897) A. C. 129; See Briscoe v. Drought. 11 Ir. C. L. 264; Ennor v. Harwell. (1860) 2 Giff. 410. » (1859) 7 H. L. C. 375. "(1855) 11 Exch. 382. >" (1856) 11 Exch. 602. ' 1866, L. R. 2 Ex. 1. 'Gaved v. Martyn. (1865) 19 C. B. N. S. 732; Stockport Water- works Co. V. Potter. (1864) 3 H. & C. 300; Holker v. Poritt. (1873) L. R. 8 Ex. 107; also Wood v. Waud, (1849) 3 Exch. 748, where Pollock, C.B., at page 774, refers to the principles which "regulate the law as to natural streams having been placed on their right footing in Mason v. Hill, (1833) 5 B. & Ad. 1. and the cases there cited; see also Wadsworth v. McDougall, (1870) 30 U. C. R. 369. ' (1839) 5 M. & W. 203; Singh v. Pattuk. (1878) 4 App. Ca=.. 121; Magor V. Chadwick, (1840) 11 A. & E. 571. "•Oliver v. Lockio. (1895) 26 O. R. 28; Mason v. Shrewsbury & H. Ry. Co., (1871) L. R. 6 Q. B. 587; see also Staffordshire Canal Co. v. Birmingham Canal Co., (1866) L. R. 1 E. & I. 254. M 224 ISUUrKRltANEAX WATFJlt ajiply to water perooliitiiig through the ground in no ilefinoil or visible channel. In giving judgnitMit in JJallacorkish Silver and M. Co. v. Harrison/ where it was held that the holder of a mining lease fi-oni the Crown is not liable to make conii)ensation for the withdrawal by percolation into his mines of water which would otherwise have flowed into, or having flowed into, would have been retained in the wells and springs of the siiperjaeent land, Lord Penzance says, at page (50: " If the litigant parties had been the respective owners of two adjacent closes, and one of them, mining in his own land, had drawn olf by natural percolation through the soil the water which fed a spring or well on the land of the other, there would have been no question to dis- cuss; for the case of Acton v. Blundell,^ and Chasemore v. Kichards " have aflirmed conclusively this i)roj)osition — that the disturbance or removal of the soil in a man's own land, though it is the means (by process of natural percolation) of drying up his neighbour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And, further, that it makes no ditference whether the damage arises by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well; or whether, having found its way to the spring or well, it ceases to be retained there. . . . (Gl) The lord's right to the mines and minerals, it is to be observed, is afiirmed by way of ex- ception. . . . The legal effect of such an exception is undoubted; it was commented uj)()n by Lord Ilatherly in the case of Proud v. P)ates : ^ ' There is no doubt,' he says, ' but that the mines are alto- gether out of the demise, and never having been demised or parted with at all, the defendants are at liberty to use them as they think fit.' The rights of the lord or grantor in such cases are further illustrated and explained in Duke of Hamilton v. Graham." (fi2) IFow, then, are the respective rights to be reconciled ? They cannot, in a legal point of view, be distinguishable from those of the owners of adjacent portions of the same close, the only ditference being that the former are adjacent vertically instead of laterally. . . . (03) To hold otherwise might not improbably result in rendering the re- f-ervation of mines and minerals wholly useless. Percolation of water into mines to some extent is an absolute necessary incident of mining. And if the grant of the surface carries with it a right to be protected from any loss of surface water by this percolation, the owner of the surface would hold the owner of the mines at his mercy, for he would ♦ (1873) L. R. 5 p. C. 49. See also Harrison v. Harrison, (1883) 16 N. S. R. 338; 4 R. & G. 338. » (1843) 12 M. & W. 324. • (1859) 7 H. L. C. 349. ' (1865) 34 L. J. (N. S.) Eq. 411. ' (1871) L. R. 2 H. L. Sc. App. 167. WATER he il(T be entitled by injunction to inhil)it the working of tlic mines nt nil. It is not nt vnriiincc witli tills view thnt tlie cnsc of Whitolioad v. Parks" was decided, l)ecause in that ease there was a lease and a dis- tinct grant of the injured springs, eo nomine, and the injury was the net of one who claimed under the lessor, so tliat the question resolved itself into the meaning and construction of the words used in the lease, and did not dcjiend on tlie rights to be assigned by the law to persons standing in certain relatiiins of title to one anotlier." '" Petroleum Oil and Natural Gas. The like law would also hold of ])ctroleuui oil and natural pas, which have been ai)tly referred to by a Pennsylvania Judge *^ as " minerals feme naturae,'' The owner of land may slidv a well thereon and draw therefrom all the oil and gas that will naturally flow therefrom, although in so doing he may draw oil or gas from beneath his neighbor's land. '^ Abstraction. In Dickinson v. The Grand Junction Canal Co.* it was decided that the comi^any were liable to a mill owner, not only for the abstraction of water which formed ])art of the stream which the ])]aintiff was entitled to use for working liis mills, but also for the abstraction of water which never did form jjart of the stream, but was prevented from doing so in its natural course by the excavation of a well by the company, whether the water was part of an underground water-course or percolated through the strata, on the ground that the plaiutiff was entitled to the benefit of the stream in its natural course, and that he was deprived of jiart of that benefit when the natural sujiply of the stream was taken away. Where water has been continuously abstracted from a river, for the purposes of a canal, so as to prevent the river from overilowing, for more than forty years, a lower riparian owner does not accpiiro "(1858) 2 H. & N. 870. '"See Grand Junction Canal Co. V. Sluigar, (1871) I.. R. 6 Ch. App. 483; New River Co. v. Jolinson, (1860) 2 E. & E. 436; soe as to sup- port from subterranean water, Elliot V. The N. E. R. Co., (1863) 10 H. Ti. C. 333; Popplewell v. Hod- Idnson, (1869) L. R. 4 Ex. 248. " Justice Mitchell in Westmore- land Natural Gas Co. v. De Witt, (1890) 130 Pa. 235. '- The following American deci- sions as to gas and oil may be re- ferred to: Funk v. Haldiman, (1866) 53 Pa. 229; Dark v. Johns- ton, (1867) 55 Pa. 164; Stoughton's Appeal, (1878) 88 Pa. 198; Acheson v. Stevenson, (1891) 146 Pa. 239; Hague V. Wheeler, (1893) 157 Pa. 324; Shepherd v. McCaluml) Oil Co., (1885) 38 Hon. N. Y. 37; Hughes v. United Pipe Lines, (1890) 119 N. Y. 423; Petroloum Co. v. West Virgina, Transportation Co., (1886) 28 West Virginia, 210; William- son v. Jones, (1894) 39 West Vir- ginia, 231; Brown v. Spilman, (1895) 155 U. S. A. 665. ' (1852) 7 Exch. 282, > ( 1. ;ai:" 22G FovLiya any right to have the abstraction contimied so as to prevent the water overllowing his hinds.'* Fouling. Wood V. Waud ' shows tliat riparian owners have a riglit to tile purity of tlie water wliieli ilows tliroiigh or hy their land, and tlie pollution of the stream may he restrained hy injunction. The fact that the stream is fouled hy others is no answer to an action to restrain fouling I>y tlie defendant.-' Nor is it any answer to say that the defendant's trade is a lawful trade, carried on for purposes necessary or useful to the community.* Ballard v. Tomlinson,'* decided that while Acton v. Blundell " and Chasemore v. liichards ' had declared the right of a land-owner to remove underground water from his own land, when that water did not How in any visilile defined channel, yet that prima facie, no one has tlie right to foul water which another has the right to get. In Young v. ]{ankier Distillery Co.,* the House of Lords refused to follow the rennsylvania doctrine laid down in Pennsylvania Coal Co. v. Sanderson," in regard to the right to foul water. In Tipping v. Eckersley,'" an injunction was granted restra.ning the defendant from heating water which the plaintiif was entitled to n^-o under a lease from the defendant. " Mason v. Shrewsbury, (1871) L. R. 6 Q. B. 578; see also Dudden v. Guardians of Chltton Union, (1857) 1 H. & N. 627. ''CrossU'y v. Lightowler, (1867) L. R. 2 Ch. 478. * Stockport Waterworlcs Co. v. Potter, (1861) 7 H. & N. 168; Pen- nington V. Brlnsop Coal Co., (1877) 5 Ch. Div. 769. "(1885) 29 Ch. Div. 115; see also Hodgkinson v. Ennor, (1863) 4 B. & S. 229. " (1843) 12 M. & W. 324. ' (1859) 7 H. L. C. 349. V1893) A. C. 691. "(1886) 56 Am. Rep. 89; 113 Pa. 126, where all the American and English cases on the subject are colk'cted, and where the Supreme Court of Pennsylvania decldec that one operating a copl mine ii the ordinary and usual manner may, upon his own lands, drain or pump the water, which percolates Irito his mine, into a stream which forms the natural drainago of the basin in which the mine is situate, al- though the quantity of water may thercliy be increased and its quality so affected as to render it totally unfit for domestic purposes by the lower rip.-irian owners, and that the rights of such owners must cr necessitate, give way to the interests of the community, in order to permit the development of the natural resources of the country and to make possible the prosecu- tion of the lawful business of min- ing coal. 'M1855) 2 K. & J. 264. WATfUi 227 Tho use for ininiiifi purposcf", involving fouling' ol' the walor of a rivor llo\viii;f to « settled fi'rniing distriet where it may he required for doniestie purposes is not an " ordinary use." " Wliere a mine owner ean not exercise a riglit to discharge water nnd dehris from a gold mining claim without trespassing on his neigh- bor's land, he is hound to refrain from exercising that right, and may he held liahle,'- although he is only one of a nnndx'r of persons whose united acts are doing the injury.'" The Crown is not entitled t'or uuning ])urposes to foul streams to the detriment of the holders of land under Crown grant.'* Neighbors. In l?aird V. Williamson.' it was held tliat the owner of a mine at a higher level than an adjoining mine has a right to work ''0 whole of his nunc in the usual and proi'.er manner for the jmrpose of getting out the minerals in any ])art of his nunc; and he is not liahle for any w.'ter which Hows hy gravitation into such adjoining luine ironi Mork so conducted. Uut he has no right hy ])umpiiig or •otherwise to he an active agent in sending water from his mine into the adjoining mine. In giving judgment, Erie, C.J., said at i)age o'M, " The defendants, as occupiers of the higher mine, have no right to 1)0 active agents in sending water into the lower nunc. The ])lain- till's, as o(cupiers of the lower luine, are suhject to no servitiide of reiciving water conducted hy man from the higher mine. I'lach mine-owner has all rights of property in his mine, and among tluMU, the right to get all minerals therefrom, iirovided he works with skill {lud in the usual manner. And if, M'hile the occupier of a higher mine exercises that right, nature causes water to flow to a lower mine, he is not rcsponsihlc for this operation of nature. Tf the owner of the lower mine intends to guard against this o])eration he must leave a harrier at the U|i])er part of his mine, to hay hs'.'k the water of his higher neighhour. The law imposing these regulations for the en- joyment of somewhat conllicting interests does not authorize tho occnjjier of tho higher mine to interfere with the gravitation of the water, so as to make it more injurions to the lower mine or advan- tageous to himself. This apjiears to us to he the law. Vor authority. "Mclndoe v. The Jutland Flat (Waipori) Gold Mining Co., (1892) 12 N. Z. L. R. 226; see Miner v. Gilmonr, (1858) 12 Moo. P. C. C. 131, 156; Omerod v. The Toln-or- den Joint Stock Mill Co., (1883) 52 L. J. Q. R. 445, 450; Barton v. Howe, (1875) 3 N. Z. C. A. 5, ap- proved and followed in Mclndoe V. The Jutland Flat, etc. (siii)rii). '- On the principle of Crossley v. Lightowler, (1867) L. R. 2 Ch. 478. '■'McMillan v. The Grt>at Ex- tended Sluicing Co., (1886) 4 N. Z. L. R. S. C. 377. " Barton v. Howe (snpni). ' (1863) 15 C. B. N. S. 376. S ;ifcr I m M \ 228 USER OF LAXD we refer both to Smith v. Kemlriek (infra), and also to the question left to the jury in Acton v, Jilundell." - This statement of the law was adopted by Lord Watson in Young V. Bankicr Distillery Co.-'' In Bradford v. Pickles,* C'hasemore v. Kichards ' was followed. Lord Watson said at page r)98: ■' No use of i)roperty, which vould bo legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious," and Lord Macnaghten at page GOl: "It is tlie act, not the motive for tlic act, that must be regarded. If the act, apart from the motive, gives rise merely to damage without legal injury, the motive, how- ever reprehensible it may be, will not supply that element." User of Mines. " Water is a sort of common enemy, against which each man must defend himself." " In delivering the judgment of the House of Lords in Rylands V. Fletcher,^ Lord Cairns, L.C., says at page 338: "The owners or occupiers of the close on which the reservoir was constructed might lawfully have used tliat close for any purpose for which it might in the course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any ticcumulation of M'ater, either on tlie surface or underground, and if, by the operation of the laws of nature, that accumulation of \vater liad ]uii-sed off into the close occupied by the plaintiff, tlie plaintiff could not have complained thit tliat result had taken place. If he had desired to guard himself against it, it would have lain upon liim to have done so, by leaving, or by interposing, some l)arncr l)et\veen bis cl()!-e and the close of the derendants in order to liave prevented that ojjeration of the laws of nature. As an illustration of that prin- ciple, I may refer to a case which was cited in the argument before your Lordsliips, the case of Smith v. Kenrick, in the Court of Com- mon Pleas.'* On the oilier hand, if tlie defendants, not stopping at the natural use of tlieir close, had desired to use it for any ])ur])ose which I may term a non-natural use, for the iiurpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground » (1843) 12 M. & W. 324. '(1893) App. Cas. 697. *(1895) A. C. 587. » (1859) 7 H. L. C. 349. "Smith V. Konrick, n849) 7 C. IV, per Creswell, J., nCtG, quoting Lord Tcntonlen; Neild v. L. & N. W., (1874) L. R. 10 Ex. 4; Whallcy v. Lancashiro & Y. R. Co., (1884) 13 Q. B. D. 131. '(1808) L. R. 3 TI. L. 330. '(1849) 7 C. n. 515 WATER 229 in quantities and in a manner not the result of any work or operation 0:1 or under the land; and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, tlien it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of tlic water and its passing away to the close of the j'lnintill', and injuring the ])laintiir, then for the consequence of that, in my opiui(jn, tlie defendants would be liable." "The same result is arrived at on the principles referred to by Mr. Justice iJlackburn in his Judgment, in the Court of Exchequer Ciiamber, where he states the opinion of that Court as to the law in tlu'so words: ' "Wo think that the true rule of law is, that the person wjio, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plain- tiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire wluit excuse would be sullicient.' "' These principles are well illustrated by the case of Wilson v. Waddell." There the defendant worked a coal seam carrying away tlic whole of it. Tlie result was that the surface sank into pits and cracked into open fissures through which the rainfall flowed freely into the defendant's workings and (the coal in those workings hav- ing been removed) thence into the i)laintifrs mine. It was decided tliiit tlie defendant was not liable and that there was no servitude on tlie owner of the upjier mines I'.n- tlie benefit of the owner of the mines on the dip to jU'cservo eitlier the surface or the subjacent niinoi'iili as water tiglit as the undisturl)ed state of the strata. Tn Fletclier v. Smitli,^" "Wilson v. "Waddell ' is referred to as hav- ing decided tliat the defendant would not be liable as for a Avrongful act for cracking and laying open the soil above his mine so as to let the rain water flow into the defendant's mine and thence into the ]ilaintin"s mine. Tt would lie ihniiniim ahsque injvria for which no action will lie. Tn Xicliols v. ^Marsland," the Court of Ajipeal held that one who stores water on his own land and uses all reasonable care to keep it ■'(\^10) 2 App. Cas. Of), '"(1S77) 2 App. Cas. 786. ' (1876) 2 App. Cas. 95. " (1870) L. R. 2 Ex. Div. ■■m 330 PERCOLATION safely tlioro, is not liable for damage elfecteil by an escape of the water, if the escape lie caiised l)y vis major, thus decidinij; the ques- tion of law left undecided in liylands v. Fletcher. ^lellish, L.J., states '- the principle to be that when the law creates a duty and the party is disabled from ])erforming it witliout any default of his own by the Act of tJod or the king's cnenues, the law will excuse him; but Avlien a party by his own contract creates a duty, he is l)ound to make it good notwithstanding any accident l)y inevitable necessity." The Ontario Mines Act ^* enacts that every mine shall be pro- vided with proper and sutTicient nuichinery and appliances for keej)- ing such mine free from water, the accumulation or ilowing of whicli might injuriously ail'ect any other mine. Diversion. In lletcher V. Smith - the defendant who was there held liable had diverted a natural water-course which ran across and over his mine, and the diverted water-course had been so inoiFici- ently constructed that on the occasion of certain heavy falls of rain, which the jury found to be exceptional, the water llowcd over the top of the artificial bank of the diverted water-course, carried away part of that liank, and thus released jjoured down in large quantities through the fissures and holes in the surface and flooded the plaintiffs mine. In Crompton v. Lea,'' Hall, \A\, overruled a demurrer to a Bill wliich averred that a mine which the defendant threatened to work could not ho worked without letting in a river and flooding the defendant's mine, and through that the plaintiffs mine. A reservation in a (Jovernment grant of laiul of a right to make watercourses over it for tlie use and l)cnefit of the public, has been held to include a right to divert water from streams in the lands so granted and to use the water so diverted.'^ Percolation, In Hurduian v. Xorth E. Ey. Co.,* Cotton, L.J., points oul that excavating and laising the minerals is considered the natural use of mineral land, and tliat (he mine owner is exempt from lialjility for water which in conseciuence of his works flows by gravita- '- At p. 4. " As to what constitutes an act of God in the legal sense, set' the judgment of Bramwell, B., in the Court below, (1875) L. R. 10 Ex. 258; Nugent v. Smith, (1875) 1 C. P. D. 34; and the judgment of Fry, J., in Nltro-Phosphate Co. v. St. Katherine Dock Co., (1878) 9 Ch. Div. 515, whose view was assent- «'d to by Lord Coleridge, C.J., in Dixon v. Metropolitan Board of Works, (1881) 7 Q. B. D. 421. " R. S. O. (1897) c. 3C, s. 09, S.-3. 10. See Chap. XIV. infra. ■ (1877) 2 App. Cas. 786. •(1874) 19 Eq. 115. "' Remfry v. Surveyor-General of Natal, (1896) A. C. 558. '(1878) 3 C. P. D. 174. WATER 231 tion into an adjoining mine, if his M'orks are carried on with skill and in the usual manner. As ol)servod by Lord ITatherley, L.C./ " The natural percolation of Mator from one mine to another is not a matter as to which the owner of the lower mine has any right of complaint against the owner of the other mine. " The owner of the upjier mine has a right to work it just as ho likes, ami his noighhour below can not com[)lain unless he finds that the water has been turned into his mine by a channel or arti- ficial arrangement." In West Cumberland Iron & Steel Co. v. Kenyon," the facts were that, tlie defendants, the" owners of a mining property sunk a shaft by which they tai)])cd the water which had formerly found its way into certain old workings on their own ground, and it thence ]erc(]atcd into the plaintiff's mine. The defendants then made a boe hole at the bottom of the shaft. It was admitted that the mak- ing it was not in due course of mining, but only for the pur])ose of gttting rid of the Mater. The effect of the bore hole was to let off the water into the al)ove mentioned old workings on the defendants' ground, whence it ])ercolated into the ])laintiir's woi'ks in the same way as it woidd have done if neither shaft nor 1 ore hole had ever been made. It was held, reversing the decision of Fry, J., that the defen- dants bad not by making the shaft so appropriated the water as to liiy theuiselvcs under an obligation to keep it fnun going into the ])!aintfT's land, and that as the effect of the defendants' operations Mas not to throM' ujion the plaintiff's lands any ])urden Mhich it had not borne before the idaintifP's case failed." In Turner v. ^firfield,"' the defendant was restrained l)y a per- petual injunction from allowing noxious and offensive refuse M'ater to flow from his manufact(U'y into an old })it, from Mhich it perco- lated into the jdaintiff's colliery. » In Phillips V. Homfray, (1871) L. R. 6 Ch. 781. "(1879) L. R. 11 Chy. D. 782. ' See also Loniax v. Stott, (1870) 39 L. J. N. S. Ch. 834; Plant v. Stott, (1869) 21 L. T. N. S. 106; Clegg v. Dearden, (1848) 12 Q. B. 576; Crow- ther V. Elwell, (1838) 4 M. & W. 71; Jegon V. Vivian, (1871) L. R. 6 Ch. Ap. 742, at 759; see Snow v. Whitehead, (1884) 27 Ch. Div. 588. A case of the percolation into plaintiff's cellar, of water allowed to collect in the defendants cellar. " (18G5) 34 Beav. 390. m\ ! \ i wmm ■Hn mmmm 'I K 233 EASEMENTS Railways. In Bagnall V. London & N. W. Ey. Co./ the railway company were held liable where they cut and re- moved upwards of twenty feet in thickness of the surface soil over tlie plaintiff's mine, and along their line to a lower district of country where a brook flowed. AVater, part of whicli would have escaped but for a bridge built by the railway comjiany, flowed down the railway, and in consequence of the high ground between the brook and the surface over the mine being re- moved by the defendants, reached that spot, and together with the water falling tliere and the springs arising in the cutting, penetrated ?nto the plaintilT's mine for want of efhcient drains. This was affirmed in the Exchequer Chamber," where it was licld that the conjoint effect of the mnking of the defendants' cut- ting and of their neglect to keep their drains in order had been that large quantities of water which but for the cutting would not have come near the plaintiff's mine, and but for the defective state of the drains would have passed away, poured down into the mine, and that the claim was not one which could have been enforced under the com- pensation clauses of the Eailway Clauses Compensation Act, 1845. Canals. As to the rights and liabilities as between the owners of a canal constructed indcr an Act of Parliament and the owners of the subjacent mines, see Dunn v. Birmingham Canal Co.*** In that case it was sliown that water escaped from the canal and flooded plaintiff's mine for which the defendant's were held liable. Damage. As to the liability of a mine owner who wrongfidly works Ijcyond his boxmdary into his neighbour's mine not only for the minerals so abstracted, but also for danuiges Mhich result to the neigh- boriug mine from water let in in consequence of such wrongful working, see Clegg v. Dearden.^ In Attorney-General v. Tomline,- the owner of the foreshore was enjoined from removing the sliingle tlierefrom so as to expose the plaintiff's adjoining land to the inroads of the sea. Brett, L.J., pointed out at p. 05, that while Hudson v. Tabor,^ was binding autliority that defendant was not bound to keep the sea out, yet he must not do an act which will let the sea in. Easements. The right to the use of water rests on clear and settled princii)les. Every proprietor who claims a right either to '(1861) 7 H. & N. 423; as to di- version see Artlaur v. G. T. R, (1895) 22 A. R. 89. » (1862) 1 H. & C. 544. '» (1872) L. R. 8 Q. B. 42. ' (1848) 12 Q. B. 576. = (1880) 14 Ch. Div. 58. » (1877) 2 Q. B. D. 290. WATER 333 throw the water back above, or to diminish tlio quantity of water which is to descend below must, in order to maintain liis claim, either prove an actual grant or license from tha proprietors atfected by liis operations, or must i)rove an uninterrupted enjoyment of twenty years, whicli term of twenty years is now adopted as all'ording con- clusive presumption of a grant. '^ Tlie right of diverting water ^- so as to diminisli the flow lower down the stream, or of throwing back water on the lands of an upper riparian proprietor, or of pumping water from a mine and discharg- ing it upon the land of another,^^ or of polluting water,-" may, ac- cording to law, be created by grant,''^ or by long continued enjoy- ment, from wliich the existence of a former grant may be reasonably presumed,^" or by the action of the Legislature." =' Per Sir John Leach in Wright V. Howard, (1823) 1 Sim. & St. 203; sei« R. S. O. (1897) c. 133, ss. 34-42; McLaren v. Coolt, (1847) 3 U. C. R. 299; see Jones v. Fisher, (1890) 17 S. C. R. 515. ^'As to Ontario sve "The Mines Act," R. S. O. (1897) c. 36, s. 50. s.-s. 3; "An Act for protecting the pnblip interest in Rivers, Streams and Creeks," Ih. chapter 142; " An A';t respecting Wator Privileges," Ih. chapter 141, as amended by 61 Vict. (1898) c. 8; " Tlie Ditches and Watercourses Act," R. S. O. (1897) c. 285, and R. S. O. (1897) c. 138, s. 26, s.-s. 3; s. 28. .l.s- to QiivUcc see Civil Code, Article 503, as amended by R. S. P. Q. (1888) p. 573; see also Ih. p. 801. .Is- to British VoiumUiit see " The Water Clauses Consolidation Act," R. S. B. C. (1897) c. 190; see also Hartley v. Carson, (1888) 20 S. C. R. 634; see C. P. R. v. McBryan, (1896) 5 B. C. R. 187. .».s /" Thv ytirth-W'rxt Territories see 56 Vict. (1892) (7>) c. 15, s. 7, as to grants of water powers and privileges; 54-55 Vict. (7>) (1892) c. 24, s. 14, as to the pollution of v,-ater; " The North-West Irrigration Act," 57-58 Vict. (1894) c. 30, as amended liy 58-59 Vict. (1895) c. 33. For regu- lations made 29th April. 1895, un- der the principal Act, ridv Statutes of Canada, (1895) p. xlvii. .is- to Ah-rrxiun hji a railiniil cnmimnv see Arthur v. G. T. R. Co. (1895) 22 A. R. 89. "'Wright V. Williams, (1836) 1 M. & W. 77. •" Crossley v. Lightowler, (1867) L. R. 2 Ch. 478; Wright v. Wil- liams (siittni). "'Wright V. Howard, (1823) 1 Sim. & St. 203. As to imitliid ijrants of cuncniciits, see Hall v. Lund, (1863) 1 H. & C. 676; Broomfleld V. Williams, (1897) 1 Ch. 602, 611; Ewart V. Cochrane, (1861) 4 Macq. Sc. Ap. 117; Israel v. Leith, (1890) 20 O. R. 361; where the effect of the Ontario Registry Act was con- sidered. As to whether on the severance of a tenement by the owner, he can claim (as against his grantee) an easement by implied reserva- tion, see Suffleld v. Brown, (1863) 4 De G. J. & S. 185, a case of a non-apparent and discontinuous easement; Crossley v. Lightowler, (1867) L. R. 2 Ch. 478, and Wheel- don V. Burrows, (1879) 12 Ch. Div. 31, a case of a continuous and ap- parent easement. In Attrill v. Piatt, (1883) 10 S. C. R. 425, Strong, J., refers to Wheeldon v. Burrows as having settled the law, as proceeding on the principle, that a grantor can not derogate from his own grant. '" R. S. O. (1897) c. 133. "'Mason v. Shrewsbury, (1871) L. R. 6 Q. B. 587; see note 32, p. 232. i mhM 334 AIR In order tliat an caseinont may 1)0 acquired 1)y prescription, the user must l)e continuous, uninterrupted and as of riglit/'"* Private easements can not be acquired l)y prescri[)tion in respect of public navigable waters to the detriment of the rights of the public."'* The jirovisions of the English Prescription Act '- as to water- courses, and the iise of water, are substantially reproduced in On- tario." T'pon the same principles as have already been sufficiently dis- cussed in dealing with the law of support,* the prima facie rights and liabilities in respect to water nuiy be varied by agreement between the ])arties concerned.*^ Air. 'I'he right to ventilate one mine through the property of an- other, referred to as an air leave, is a valuable privilege. In Powell v. Aiken," access was ordered to be given to the plain- tiffs to an air course to enable them to block it up, the air course having been made by the mortgagor of the defendant without the knowledge or consent of the i)laintifrs. An injunction was also granted restraining the defendants from usjig the air course. In Jegon v. Vivian," the lessees of A colliery obtained a lease of the B colliery adjoining. The lessors were also the owners of the C colliery, during the continuance of the lease the defendants lawfully cut drifts and ways in the demised mine H, so that water and air liassed, and after the determination of the lease continued to pass from the A colliery through tiie '> colliery into the (' colliery. It was held that while the piaintiifs might l)uild a wall as a bar- rier so as to deprive the defendants of all benefit from the passage of air i'.nd water, the defendants were not bound to build any such bairler, and that the plaintitrs had no right to recover for water- leave or air-leave.^ The rights as to air, arc analogous to those in respect of under- grcnnd water. =» Holllns V. Verney, (1884) 13 Q. B. D. 304; Malcolm v. Hunter, (1884) 6 O. R. 102, per Eoyd, C. ° London and Canadian Loan Co. V. Warin, (1886) 14 S. C. R. 232. '=2 and 3 W. IV. c. 71. cited in Chltty's Statutes, Vol. V., p. 399, as " Lord Tenterden's Act, 1832." " R. S. 0. (1897) c. 133. ^ Chap. IX., siipro. *' See such cases as White- head V. Parks, (1858) 2 H. & N. 870; Northam v. Hurley, (1853) 1 E. & B. GC5. ■■■ (1858) 4 K. & J. 357. " (1871) L. R. 6 Ch. 742. ■ In Phillips V. Homfray, (1871) L. R. G Ch. 781. \ VEyTiLAriny •^.i.) In "\Vo1)l) V. Bird," the Exchequer Chamher decided that a fiUint of a rifilit h) the free and uninterrupted i)asU 20. Kor bottiT nHcertnining whether nny such iiiinon nre licing worked, or liiivt« hocii worked, ho as to diiimigo the railwny or works, it sliall 1)0 lawful i'or tho eoiupany, after giving twenty-four hours' notice in writing to enter ui)on any lands through or near which tho railwny passes wherein any such mines nro hcing worked, or are so su])i)Osed to he, and to enter into and return from any such mines or the works connected therewith; and for that purpose it shall he lawful for tlu'm to make use of any apparatus or machinery l)elong- ing to the owner, lessee, or occupier of such mines, and to use all necessary means for discovering the distance from the railway to the i)arts of such mines which are heing workc^d, or ahout so to he." 2T. If the owner, lessee, or occupier of any such mine refuses to allow any person appointed hy the comjjany for that purpose to enter into and insi)ect any such mines or works in manner aforesaid, every l)erson so oiVending shall, for every such refusal, forfeit to the com- ]mny a sum not exceeding $1(>(I.'' J8M. if it a])i»ear that any such mines ha' e heen worked contrary to the ])rovision8 of the jjreceding seven sections, the company may, if they think lit, give notice to the owner, lessee, or occupier thereof to construct such works and to adopt such means as niay 1)0 neces- sary or pro])er for making safe the railway and preventing injury thereto; and if, after such notice, such owner, lessee, or occupier does not forthwith ])roceed to construct tho works necessary for making safe the railway, the company may themselves construct such works and recover the expenses thereof from the owner, lessee, or ()ccu])ier hy action in any Court of competent jurisdiction/ Quebec. Articles 5125 to 5223 of the Revised Statutes of gue- hcc, 1888, make no special provision as to mines under railways. In construing an agreement hy which lands are convoyed l)y a jirivate owner to a railway company for tho construction of their road, the mining rights will not he presumed to he reserved from the fact tliat the comjiany cannot work a mine. Although tho company can- not work mines, this not heing within its statutory powers, it can acquire them arid alienate them.'' New Brunswick. The Xow Brunswick Tiailwav Act." ^'^ m akes no s|)ecial ])rovision as to mines under railwavt ler- "Section 26; R. S. O. (1887) c. 170, s. 26. 'Section 27; R. S. O. (1887) c. 170, 8. 27. 10-M "Section 28; R. S. O. (1887) c. 170, s. 28. » Turriff V. Quebec Central. (1893) R. J. Q. 2 Q. B. 559. ■"54 Vict. (1891) c. 18. ill ^"mimm, 1 ' i 242 BRITISH OOLVMBIA Nova Scotia. " The Nova Scotia Railway Act," » defines land as including all real estate, messuages, lands, tenements and heredit.^- ments of any tenure, and makes no special provision as to mines or minerals. British Columbia. Sections 21 to 28, inclusive, of " The British Columbia Kaihvay Act," »* are substantially rei)roduced from sections 21 to 28 of the Railway Act of Ontario, printed in full supra. The :Minister mentioned in sections 22 and 24 being, in British Columbia, the Chief Commissioner of Lands and Works, and section 2() of the British Columbia Act provides that reasonable com- ]icnsation be given to the mine owners for any detention or damage which may be caused by the examination thereby permitted. Canada. Under " The Railway Act of Canada," i" no company shall, without the authority of the Railway Committee, locate the line of its ])roposed railway or of any branch thereof, so as to obstruct or interfere with or injuriously affect the working of, or the access or adit to any mine then open or for opening, which prc])arations are at the time of such location being lawfully and openly made. By section 2, s.-s. (a), the expression "company" is defined to mean a railway company, and includes any person having authority to joustruct or operate a railway.^ B. — Highways. In Ontario " The Municipal Act " " defines the powers of county and township coimcils in relation to roads, as follows: The corporation of any township or county wherever miner- als are found, may sell or lease, by ])ul)lic auction or otherwise, the right to take minerals found upon or under any roads over which the (dwusliip or county hns jurisdiction, if considered ex])edient so to do.- " C. 53 o' R. S. N. S., 5th series. '" R. S. n. C. (1897) 0. 163, ss. 21-28. '"SI Virt. (Dom.) c. :.9, s. 119. ' As to lateral support of rail- ways, see Smith v. Thackerah, (1866) 1 L. R. C. P. 564; Elliot v. N. E. Ry. Co., (1863) 10 H. L. C. 333; London & N. W. Ry. Co. v. Evans. (1893) 1 Ch. 16. " R. S. O. (1897) 0. 223 (Dlv. IV.). -'lb., s. 6.57, s.-s. 1. HIGHWAYS 243 No Fiicli salt' or lease shall take ])lace until after due no- tice of the intended by-law has been posted uj) in six of the most public places in the immediate neighbourhood of such road for at least one month previous to the time fixed for considering the by-law.'' The deed of conveyance or lease to the purchaser or lessee under the 1)y-law, shall contain a proviso ])rotecting the road for public travel, and preventing any uses of the granted rights which would interfere with the public travel.* In Ontario Xatural Gas C'o. v. Gosfield/' natural gas was held to 1)0 a mineral within the meaning of this section. ' lb., s.-s. 2. * lb., s.-s. 3. (1891) 18 A. R. 625. ic 10 V. C. V. rr CHAPTEll XII. TAXATION. In Ontario, tin- law rojimding the taxation of mines and minerals is contained in " Tlie Assessment Act," ^ as follows: " Land," " real property," and " real estate," respectively, shall include all buildings or other things erected upon or attixed to the land, and all machinery or other things, so fixed to any building as to form in law part of the realty, and all trees or nnderwood grow- ing uj)on the land, and land covered with water, and all mines, minerals, (piarries and fossils in and under the same, except mines belonging to Her Majesty.- Property Liable to Taxation. All munici])al, local or direct taxes or rates, shall, where no other express provision has been made in this respect, be levied equally upon the whole ratable i)roperty, real and personal, of the municipality or other locality, according to the assessed value of such ])roperty, and not upon any one or more kinds of ])roperty in particular, or in different proportions/'' All property in this Province shall be liable to taxation, sub- ject to the exein])tions mentioned in the Act.* Mineral Lands. Except in the case of mineral lands here- inafter ])rovided for, real and personal pro])erty shall l)e estimated at their cash value, as they would be a])praised in payment of a Just debt from a solvent delitor." In estimating the value of mineral lands, such lands and the buildings thereon shall be valued and estinuited at the value of other lands in the neighbourhood for agricidtural purposes, but ' R. S. O., 1897. c. 224. ' Section 2, sub-section 9. Mb., s. G: As to personal pro- perty, see Kingston v. Canada Life Assnnince Co., (1890) 19 O. R. 453. * Section 7. "Section 28, s.-s. (1). TAXATION 845 the income derived from any mine or mineral work shall be subject to taxation in the same manner as other incomes under this Act." The meaning of the word " income " was considered by the Privy Council in Lawless v. Sullivan," an appeal from the Supreme Court of Canada, affirming a judgment of the Supreme Court of New Brunswick upon a special case under a New Brunswick Act,"' where- by a tax was made leviable upon " income." The judgment of their Lordships was delivered by Sir Montague E. Smith, who said : ^" " Tlie Courts in Canada have in effect decided that ' income ' means all the items of profit on the transaction of a business during the iiscal year, without regard to any losses arising from the same business during that year. Their Lordships cannot think that this is a sound or reasonable construction of the enactment. ... It must al- ways be borne in mind tliat the tax is imposed on the income received during the hscal year, and what, therefore, has to be ascertained for tlie ])ur})()se of assessment is the income for an entire year. . . . The intention of tlio TiCgislature should be very clearly shown to justify an interpret i of the word 'income,' which would require that, in the account ior the year, the items of profit only should be included, and the losses excluded, although, but for the operations which occasioned the losses, the apparent profits could not have been made . . . Their Lordships liave come to the conclusion, upon consideration of tlie Act mi question, tliat there is nothing in the enactment imposing tlie lax, nor in the context, which slioukl induce them to construe the word ' income,' when applied to the income of a commercial business for a year, otherwise than in its natural and commonly accepted sense, as the balance of gain over loss, and conse- ([uently they are of opinion that whore no sucli gain has been made in the fiscal year, there is no income or fund which is capable of being assessed." ^ In The Corporation of the City of Kingston v. The Canada Life Assurance Co.,2 Boyd, C., in delivering the judgment of the Chan- cery Division, referring to Lawless v. Sullivan," said: ' ''The judg- es. 28, s.-s. (2). "(1881) 6 App. Cas. 373. »' 31 Vict. e. 36, s. 4. >» At p. 378. ' St'e Forder v. Haudyside, (1876) 1 Ex. D. 233; The Queen v. The Commissioners of the Port of Southampton, (1870) L, R. 4 H. L. 472, 484; Gilbertson v. Ferguson, (1879) 5 Ex. D. 57. = (1890) 19 O. R. 453. • .9 »/))•«. *At p. 458. m 'V : 246 ONTARIO ment, tlion, is clcfinitoly and conclusively npon this point, that ' in- come,' as conimercially nscd, means the l)alance of gain over loss in the fiscal year or otlier period of computation." ^ In coni])uting the " ])alance of gain over loss " and for that purpose arriving at the working ex])enses, there is not much room for dispute as to the repairs and renewals of tlie fixed plant and huildings, but there are other expenditures more dillicult to decide. There appears to l)o no rea.son why insurance, for instance, should apply oidy to the risks of ordinary accidents ])y fire. There are beyond tliese the risks of explosion and flooding. Why should not an annual sum be set aside to provide against these risks. In Reg. V. Wells" it was said : "There seems also no distinction in princii)lo between a sum annually laid by to make good, wlien it shall become necessary, an inevital)le loss l)y the destructive agency of time, and a, fund laid l)y for an indemnity against a loss by fire, or storm, or other peril insured against." An annual tax of one cent per acre to and for the ]mblic uses of the Province of Ontario has been imi)osed ^ on all lands granted, or hereafter to be granted by the Crown, situate in the Territorial Districts of Algoma, ^lanitoulin, Tluinder 15ay or Rainy River, and, in addition,'* a furtlier tax of one cent per acre upon all unoccupied lands end)raced in any school section formed under the authority of section -11 of tlic Public School Act." When any portion of such taxes has been due for tlireo years, the Treasurer of the Province may sell the land for tlie arrears of taxes then due thereon with costs. In Quebec. The Quebec ^lunicipal Code i)rovides i" that all lands or real estate situated in a local municipality, with certain exce]itions,> are taxable property.- Crown lands occupied, whether under or without location tickets, are deemed lo be taxable j)r()[)erty; but the municipal taxes ° See London Mutual Ins. Co. v. City of London, (1887) 15 A. R. (536; Russell v. Town and County Bank, (1888) 13 App. Cas. 421, 429. " (1867) L. R. 2 Q. B. 542. 'By section 1 of R. S. O., 1897, c. 26. " By S(>ction 2. " R. S. O., 1897, c. 292, s. 24. ■"Art. 709. ' Mentioned in Article 712. -' None of the exemptions include mining property. TAX ATI ox 2ir for 'Nvhicli they are liable cannot, in any ease, bo recovered from the Crown.'"* All nuinicipal taxes imposed on taxalde property for local or county purposes must be fairly apportioned according to the valua- tion roll in force, on all i)r()i)erty sul)ject to the payment of sucli taxes in pi-oportion to its taxable value. ^ All municipal taxes are regarded as privileged debts exempt from the formality of registration.'' Alining rights aro exemi)t from mnnicii)al; taxation. In nudving tlie valuation of taxable mining lands in a munici- pality, in which there exists an innnoval)le property, containing a nunc which is being worked, tiie valuators shall, up to the 24th July, l!)0(t, value such innnovable, without taking into consideration the in- creased value arising from the existence of such mine and minerals, ores, pits, shafts, excavations, tunnels, mills, machines ami other Imildiugs, structures and dej)endencies used or to be used exclusively for the working of such nnne.''^ In New Brunswick real and personal property is rated at its full cash value in the same manner as if it were to l)e api)raised as bi'longing to the estate of a deceased person, sul)ject, however, in the case of jjcrsonal property, to a reduction for indel)tedness." The municipal council of any county in the Province of Xew Brunswick is authorized and empowered ^ at a general meeting, or at a special meting to l)e called, as in the Act provided, to exempt in whole or in ])art from taxation, all the i)lant, nuichinery, works, build- ings or improvements which may be used or erected for or in connec- tion with the developing or operating of nunes or minerals within the county, for such period, not exceeding twenty years, as the council may determine, and thereui)on all such idaut, machinery, works, l)uildings and im])rovements, shall be so exempt from taxa- tion for the jieriod determined upon. ■';. 1 1 1 liiHi ^Art. 714. 'Art. 942. " Art. 946. " Section 1570 of the Quebec Min- ing T^aw (infni); si'c Stevenson v. Wallingford, R. J. Q. 6 C. S. 183; see note to Article 1424, CliaiUcr XV., infra. "Consol. Statutes of N. R., 1877, c. 100, s. 4. As to meaning of " in- come " see Lawless v. Sullivan (iiiltrii). ■ By Act of 1893, c. 11, s. 1. 248 NOVA SCOTIA In Nova Scotia one-foiirth, and no more, of all local and direct taxes shall be raised by poll tax, and the other three-fourths shall be levied and assessed upon the whole taxable real and personal j)roperty of the locality to be taxed in jiroportion to the assessed value thereof, and not upon any one or more kinds or species of pro- l)orty in jiarticular." I'ower is given the council of any munici- ])ality to direct the whole amount of taxes to be levied and assessed upon real and ])ersonal estate. In British Columbia the law was consolidated by '' The As- sessment Act.'' *" The term " mine " is defined ' to mean and include any land in wliich any vein or lode, or rock in place, shall be mined for gold or other minerals, precious or l)ase, except coal, and any natural stratum or bed of earth, gravel or cement mined for gold or other precious minerals ; - and the term " mineral " is defined •'' to ]nean all valuable dejwsits of gold, silver, jjlatinuui, iridium, or any of the i)latinum grou}) of metals, mercury, lead, copper, iron, tin, zinc, nickel, aluminuiu, antimony, arsenic, ])arium, bisuiutli, boron, bromine, cadmium, chromium, cobalt, iodiue, magnesium, man- ganese, molybdenum, i)hosphorus, pluml)ago, potassium, sodium, strontium, sulj)hur, or any combination of the aforementioned elements with themselves or with any otiier elements: asbestos, emery, mica, and mineral piguicnts.'* !*. ]\Iiiies and minerals sliall, for the purposes of taxation, be regarded as a se])arate class of property, and the assessment and taxation tlicreof sliall be regulated by tlie jjrovisions of the portion of this Act included under the above heading of "Taxation, of ]\[ines and ^linerals." ^ 10. There shall l)e assessed, levied, and collected from every ]ierson owning, managing, leasing, or working a mine, and paid to Her ^lajesty. her heirs and successors, the sums following, tliat is to say: — One per cent, on the assessed value of all ore or mineral-ljcaring substances raised, gotten, or gained froui any lands in ilic Province, the assessed value to be based on the market price of the ore or mineral-])earing su])stances at the mine, as delerniined in case of dis- pute by smelter, reduction, or refinery works or other satisfactory " R. S. of N. S., 5th series, c. 58, s. 6. '" R. S. B. C. (1897) c. 179. •By 8. 2. s.-s. 6 '1896, c. 46, s. 5; 1896, c. 34, s. 2; 1891, c. 26. s. 2. " By 8. 2, s.-s. 7. M896, e. 4G, s. 5; 1896, c. 34, s. 2. M896, c. 46, 8. 6. TAXATIOX 219 returns, as the case may be; provided, that no ore or mineral-bear- ing substances sluiU Ije taxed wliieh are not sold or removed from the mining premises.^ 11. It shall l)c the duty of the owner or manager of every mine, wiietiier the same be a mineral claim, i)lacer claim, mining ka.sehold, or otiier mining property, from whicli ore, minerals or mineral-bearing sul)stances are being raised, gotten, gained, extracted or produced, at the date of the passing of this Act, or are hereafter raised, gotten, gained, extracted or produced, forthwith to notify the assessor of the district of the fact that any such mine mentioned al)ove is in active production, and from time to time to furnish tlie name and address of the manager or person to whom notices here- under may be addressed, and tliereafter all notices reipiired hereby may be given by letter directed to such address; and tlie assessor shall fortiiwilb, from infonnation received therefrom, or from other sources, prepare a list or roll showing all producing mines in his district.^ 12. It shall be unlawful for any person to ship, send, take, or carry away, or permit so to be ship[)ed, taken, or carried away from the nuning premises wherefrom the same may have been raised, gotten or gained, any ore, minerals, or mineral-bearing substances raised, gotten, or gained after the passing of this Act, until the j)receding section has been comi)lied with." 13. Tlie tax levied by section 10 hereof sludl be due and pay- able on the first day of each quarter, or of sucli otlier jieriod as the Lieutenant-CJovernor in Council may by regulation determine, which periods may vary in different districts, or for dill'erently situated or dill'erent classes of mines, npon the oiilpnt of the preceding quarter or other period. Tlie quarter shall end ui)i)n the last day of (lie months of ^larch, June, Se])tend)er and I)eccnd)er in each ycar.^" 14. The owner or manager of every mine liable to pay the tax im])osed lu'reby sluill, in addition to any other returns which may be recpiired under the provisions of this Act, and amendments, trans- mit within seven days from the end of any (piarter or ])eriod. as llie case may be, to the assessor for the district in wliich the mine is situ- ate a return showing : (1) The aninnnt of ore, minerals or mineral-1)earing sid)- stances shipped or sent from or treated on the miniug [iremises pre- ' 1896, c. 46, s. 8. ' 1S9G, c. 46, s. 9. » 1896, c. 46, s. 10. '■' 1896, c. 46, s. 11. ■oai 250 lUfTTTs^n roL^.^fnIA vioiis to the iirccoclinj; (iiiartor or period, in res])Oct of which returns had not tiieretoi'ore been received and reported to tiie assessor. (2) The amount of ore, minerals, or mineral-bearinij suhstanees s]ii])j)ed or sent from or treated on the mining premises during tiie preceding quarter or j)eriod.' (',]) The amount in resfjcct of whicli returns were received during such preceding quarter or period, witli the vahie according to sucli returns. (A) The amount of tax payalde.** 1."). The sum payable in accordance with such returns shall ])C luiid to tlie assessor forthwith, either hy remittance accompany- ing the return, or personally at his office." 1(>. In case the assessor is not satisfied with the correctness of the return as to quantity or value, or otherwise, he uuiy assess the output for such sum as he deems proper, and enter the same on the roll, and shall, within ten days from such entry, notify the nuin- ager or other proper person of the sum at which the same is assessed; such notice nuiy state the date upon which any ol)jection to the assessnuMit will he heard in the Court of Revision and A|)peal, which date shall he not less than twenty-one days from the date of the notice.'" IT. for the purpose of determining the (juantity and value ol' ore, minerals, or mineral-hearing substances for which any ])erson is assessable, and either before the receipt of a return or after such receipt, it shall be lawful for the assessor to enter upon any mining premises, from time to time, for the ])urpose of ascertaining the quantity of ore, minerals, or mineral-bearing substances raised, gotten, or gained from the said premises, ami for this ])iirpose the assessor may descend all ])its and shafts, and use all tackle, ma- chinery, ai)pliances and things belonging to the mine as he shall deem necessary or ex])edient, and he shall have free ingress and egress to, out, and over all l)uil(lings, erections and vessels used in connection with the workings; and he shall from time to time i)e allowed to take from the said mining i)remises such sam])les or speci- mens as he may desire for the ])urpose of determining, by assay or otherwise, the value of the ore, minerals, or mineral-bearing sub- stances being raised, gotten, or gained therefrom; And every person liable to pay the tax imposed hereby shaii keep upon the mining premises proj)er hooks of account of the ore. Section 12 (2). ^1896, c. JG. s. 12. ■• 1896, c. 46, s. 13. '■■ 1896, c. 46, s. 14. TAXATION 2,-) I minorals, or luiiieral-bearinj^ substances raischall be given. ^ li). Nothing herein contained shall affect the validity or col- lection of the tax imposed by section l(i;5 of the " ^lineral Act (18!)(:)."'' 20. The tax imjjosed shall constitute a lien in favour of the Crown, not only upon the output upon which the same is levied, but also ujion the mine and mining premises wherefrom the same was extracted, and upon all ore, minerals, or mineral-producing sub- stances extract<'d therefrom which may be on the jiremises. The assessor shall have all the like ])owers for collection by distress or by sale of the mining premises as are conferred by this Act for tlu' recovery of taxes, either n])on real or personal pro])erty, and such powers may be exercised cumulatively." 21. Any person failing to transmit the returns or to furnish the infornuttion reipiired by this Act, shall be lial»le to the same penalties as are imi)osed for failure to comply with any provisions thereof, or witli the reiuiirements of an assessor.'" tU ''.'i ■'•: h "1896, c. 46, s. 15. '1896, c. 46, s. 16. ' 1896, c. 46, s. 17. " 1896. c. 46, s. 18. '"1896, c. 46, s. 20. 253 BRITTftll COLUMBIA By the " h«i)L'L'(ly Jnt'orporutioii of Towns Act, ISDr,"'"' the taxa- tion of land within tlio nuiiiieipality, whoreiindor lio mines or minerals, a title to which has hecn duly acquired under the mining laws of the Province, sliall he governed as follows: — • No inunici])al taxes shall he chargeahle upon minerals contained in a mine, or upon the workings of a mine, or upon so much of the land covered hy a mineral claim or mine as is used directly in con- nection with such workings, or upon any im[>rovement8 erected or n\ade ujjou such lands as are so made for the purpose of working the mine, and which are ])ut to such use, and to no otiier or ex- traneous use." AVhere the fee simple in any land has heen divested from the Crown, eitiier by a separate grant of the surface or ))y a grant of the minerals which, by the law in force at the time of the issue thereof, included a grant of the surface, the lands shall be taxable at their value as real estate, except such |»ortions as are occupied by the workings of the nunc, or used directly in connection with such workings, or occupied by improvements made and used for the i)urpose of working the mine.^ Where the land — (1) Is still vested in tlie Crown, but is included within a mineral claim for which no Crown grant has been issued; or, (3) Has been patented under a Crown grant issued under tiie mining laws; and under eitiier of such titles the owner is entitled to '' the surface rights, so long as he holds tiu' said claim or mine for the pur|)ose of developing the nuneral contained therein, but no longer," the said lands sluill, subject to clause (d), be exempt from municipal taxation.* Where any of the lands mentioned in clause (r) are occupied other\\ iso than by; the workings of the mine, or put to a use not directly in connection with such workings, or occupied otherwise than l>y improvements made and used for the purjiose of working the mine, then so much of said lands as are so occupied and used shall l)e subject to taxation to the sauu' extent as if the same were held in fee simjdc by the occupant." Income liable t>) taxation fo nomine,^''' means net income.' ■B. C. Stilts., 1897, 8. 16; not consolidated in R. S. B. C. 1897. "Section 15 (a). 'Section 15 (b). 'Section 15 (c). " Section 15 (d). "By the Assessment Act, C. S. B. C, 1888, c. ill, s. 3. ■ Re Marquis of Biddle, Cope, etc., (1897) 5 B. C. R. 37; see Law- less v. Sullivan, (1881) 6 App. Cas. 373; Kingston v. Canada Life Assurance Co., (1890) 19 Ont. R. 453. TAX AT ION 2r):l In Manitoba. Tlio Act respecting Municii)alitics - contains no siieciiil i)r()visions ns to the taxation of mines or minerals. In The Northwest Territories all land and personal proijcrty and income shall be liable tu taxation, excei)t certain specilied ex- emptions.-' All municipal, local or direct taxes or rates shall, vhere no express provision has been made in this res|)ect, be levied upon the whole ratable property, real and j)ersonal, of the miinici[)ality, according to the a.ssessed value of such property, and not u[)on any one or more kinds of property in particular, or in diU'ercnt pro- portions.* The largest item in the nuinicii)al taxes is usually the scho.d tax. "Land" is declared to include lands, tenements and heredita- ments, or all rights thereto or interest therein, and would therefore include mincs.^ '1881, c. 3. " The Municipal Ordinance (c. 8 of the Revised Ordinances of 1888, s. 85). ♦lb., section 84. "Midland Ry. Co. v. Haunch- wood B. & T. Co., (1882) 20 Ch. D. 552, per Jessel, M.R., 568. CHAPTEll XIII. WEOXCJFUL ABSTKAl'TlOX z\NI) CinMINAL OKFHNCES. There is n distinotion hetwoeii Iho possession ol' mines and tlin jiossossion of oilier property- ' It 'iHf* '»wn deeided tliiit Ihero niny be snilicient ])osses«ion of mines to enidtle llie holder to hring tres- pass ajiainst wronjjdoers. Many of the distinetions in the cases arise from the fact that while the right of working a mine is an incorporeal hereditament the mine is a cor])oreal hereditament of which it is ]iossil)le to he in possession so as to accpnrc a good title hy virtue of the Statute of Jiimitations. AVhere there has been a wrongful abstra''tion of minerals, the ((uestion which most frequently arises is as to the method according to which the damages for such wrongful abstraction are assessed. In estimating such damages, in all cases, an allowance is made for the co-t of bringing the mineral to bank;- but only in certain cases, ro- ferrtd to by Lord BlackbiM'n ' as cases of innocent wrongdoing, is an allowance made for the cost of severing or getting the mineral. The milder rule was applied in Hilton v. Woods,' where Malins, A'.-C, held that the taking of the coal there in question was inad- vertent, and in I'liited ^lerthyr Colleries Co.,'' a case of mistake. So in Jegon v. Vivian " and Ashton v. Stock,' whore the defendants acted under a hnna fide belief of title, and in Wood v. Morewood,** where tlu' jury found that defendant was not guilty of fraud or neg- ligence, but acted fairly and honestly. ■ Low Moor Co. v. Stanley, (1876) 34 L. T. N. S. 186, Court of Appeal. - Joicey v. Dickinson. (1881) 45 L. T. N. S. 643. The cases are re- viewed by Lord Macnaghlen in Peruvian Guano Co. v. Dreyfus Bros., (1892) A. C. 175. ' In Livingston v. Rawyards Coal Co., (1880) 5 App. Cas. p. 40. ' (18G7) L. R. 4 Eq. 432. ■(1872) L. R. 15 Eq. 46. "(1871) L. R. 6 Ch. 742. '(1«77) 6 Ch. Div. 719. "(1842) 3 Q. B. 440. U7eo.\0/'f7> AHSTKArriOX 2S5 In Llvinpstou v. IJawvanls Coal Co.," A. was llic owiicr of a small fell of al)oiit an aero and a liall' in I'xtcnt. Tlic siirracc of tlic ground was orc'iipiod l>y miners' ('olta;;i's and iiiidcrncatii was (Miai. WluMi A. purchased llie I'uu, lie was under ilie im|»ression thai all the niiuer- flls under tlio feu, as under all ''round surroundiui' it, luul lieen reserved to the superior, )ut that was a mistake, for iu the deed granting' the feu there was no reservation of eoal. The superior gianleil the wlude of the jiroperty in the eoal in all the surrounding land to 1{. and ('. 'I'liey, under the impression that tiu'V had the whole of the coni, including the coal under the acre and a half, worked out and disposed of the coal under A.'s acre and a half, and in doing so damaged the surface. A. could not have worked the coal to a profit himself. There was no ] er.son to whom he could dispose of it hut to H. and ('., and the element of wilful trespass and the element of special and excep- tional nc ed of support to the surface were almont. In a claim hy A. for (1) the value of the coal; {2) a sum for way-!"ave and the advan- tage ohtaiiu'd hy working through instead of round the feu, and {',]) for danniges done to the houses on the surface, the House of Lords alllrmcd the decisicm of the Court helow that the value of the coal taken must he the value of the coal to the person from whom it is taken at the time it is taken, and that the hest evidence in the ])eculiar circumstances of the case of that value was the royalty paid l)y If. mil C. for the surrounding coal field. Therefore, A. was entitled to the royalty on the coal excavated, calculated at that rate, together with the i)aymont of a sum for damage done to the houses on the surface. Lord Ilatherley said: "^This case is certainly a very jieculiar one, and without withdrawing from any of the ))rinciples which T find in the case of Jegon v. Vivian to he estahlished hy the i)rior authorities, T think this case may he disposed of in entire consistency with those ])rinci]des. There is no doul)t that if a man furtively and in had I'liith rohs his neighhonr of ])ropcrty, and, hecause it is underground, is prohahly not for some time detected, the Court of K(|uity will assert its authority to punish fraud hy fixing the jicrson with the value of the wh(de of the projicrty whicli he has so furtively taken, and may make no allowance in respect of M'hat he has so done, etc. . . The Ccnit have already made a wide distinction hetween tluit wlu h has heen done hy the common error of hoth parties and that which has 1 eon done hv fraud. i:;< " (1880) 5 App. Cas. 25. At p. 33. 256 ACCOUNT Trottor v. Maclean ^ was a case in which tlie owner of a mine coninieiicc'd to work from liis own mine into an adjoining mine vested in trustees, in tlie bona fide belief that he was about to obtain from them a contract authorizing him so to work, and gave to one of the trustees notice tliat he was about to commence working. It was held that the working, though no contract was afterwards enteicfl into and the trustees had no jjower to make one, ought to be treated on the same footing as if it luul been commenced inad- vertently, and in taking an account of the minerals gotten without authority, the defendant was allowed tlie cost of severing them as well as the cost of bringing them to bank; but from the time that notice was given to the dt'fendant that no contract would be made with him authorizing him to work, his working was treated as fraudu- lent, and he was allowed only the cost of bringing the minerals to bank, and that so long as a wrongful working is to be treated as in- advertent, the Statute of J^iniitations applies, and the accoimt will only be directed for six years from the issue of the writ, but the onus is on the defendant to show that the minerals gotten by him were gotten before the six years. In Llynvi Co. v. Jirogden,- a mine owner, who passed his boimdary and took coal from his neighbour's mine, was held liable to account for the value of the coals at the pit's mouth with just allow- ances for the cost of raising, but not of getting or severing. Sir James I'acon, \'.-('., said:-' The principles upon which an account is directed in cases like the i)resent have been not unfre- quently considered in Courts of J^aw as well as in Courts of Eipiity, and are established by autiiority. In ^lartin v. I'orter,^ which was referred to in the course of the argument, \)\ the unanimous judg- ment of the Court of l']xche([uer, it was decided that the coals which had l)cen severed by the defendant were chattels l)elonging to the ]>laintill", and that the defendant was liable to pay the amount of their vahie, without any allowance for the expense of severing them, such severence being a wrongful act for which the defendant could not claim t(» be reimbursed. ... In Morgan v. Vowell,'' the de- fendant was allowed the cost incurred by liiu) in bring'njf the coals lo the ])it's mouth on the e\])ress ground ii:.it sudi cos; i.i-ist have been incurred by the jdaintilF for the same iiurposr-. ' (1879) 13 Chy. D. 574. '(1870) L. R. 11 Eq. 188. ' At p. 190, M1839) 5 M. & W. 351; followed in Wild V. Holt, (1842) 9 M. & W. 672. ■• (1842) 3 Q. n. 278. WROyai'lL MiHTRACTlON -)( So in riiillips v. Ilonifray," Uic (k'fondant wa;, hold liable for tlio valuo of iniiiorals gotten or removed, uitii just allowances for carriage, but none for getting. h\ Taylor y. Mostyn,' the plainliU's were mortgagees in possession of a colliery, and were also treated by the Court as lessees of the same colliery nnder a lease for a lixed term of years at a rent and at a cer- tain royalty for all coal gotten. The lease contained covenants to leave ])illars of coal to support the roof, and not to work or remove the pillars. The mortgagees underlet the colliery, and gave their sub- lessees permission to work and remove the pillars, which they did. II was held that in taking the accounts as against the mortgagees in l>osscs8ion, the mortgagees having allowed their sub-lessees to take Ihe coal, must be treated as having taken it themselves; and having so taken wrongfully, in breach of the covenants in tlie lease, must be charged, not with the amount of the royalty reserved, but with the full value of the coal, subject to deduction for the cost of bring- ing it to the surface, but not for the cost of severance, and the fore- closure, which had been made absolute before the a[)peal was heard, was re-opened. Cotton, L.J., said:'^ PerhaiJS I ought to mention one case, and merely to say that, in my opinion, we are not bound by it. 1 mean the case which was referred to in the House of Lords, of Living- stone v. l?awyards Coal Co." That was a Scotch case, and it was a very peculiar one, because there the ])arty claiming damages for the wrongful taking of the minerals was the owner of a little bit of coal, which by itself could never have been worked, being situated in the midst f^f other mines, and (piite surrounded by them, having no shaft in it. Therefore it could not be worked, and the owner was in this position, that if his neighbour had not taken it, he never could hav) got for that coal, or for a license to work that coal, more than the House of Lords gave him, which was not the value of the coal when severed from the mine, but only the royalty, which bis own witness Faid he could have got for the coal." Fry, L.J., said: '" " It was a wrongful act on their ]>art to grant the authority, and they must be responsible for ihe value of the coal so extracted, subject, of cours", to the usual deduction for the cost of bringing it to the surface, but not for the cost of severance." I " (1890) 44 Ch. Div. f.94. ' (1886) 33 Ch. D. 22G. 'At p. 233, 17-M "5 App. Cas. 25. •"At page 234. i^ 2.-)8 STATUTE OF LIMITATIONS LI Cotton, L.J.,* said: "In my o])inion, ,i the mortgagees by any act of theirs seriously damaged tlie jjroperty in mortgage, tliose mortgagees in possession are answerable in tliis sense, that they must be charged with any damage or loss to the property which has been caused by their imjjroper conduct, that is to say, by their wilful default." The wrongful al)straction of minerals is an act of destruction which the Court will restrain by injunction.'* Statute of Limitations. In Ecclesiastical Commissioners for England v. The Xorth Eastern Ky. Co. ,2 the plaintiffs, who were owners of a coal mine, claimed damage against the owners of an ad- joining nunc for having broken their barriers and worked their coal. Tlie wrongful acts were committed in 18G3, while the adjoining mine was being worked by the Hartlepool Kail way Company. The bound- aries of the two mines were settled by mutual agreement in 18G3, and after some lengthy negotiations a lease was executed in 1864, by M'hich all previous wrongful acts were condoned and released on both sides. An Act of Parliament was passed in 3863, by which the Hartlepool Ifailway Company were to sell their mines within iive years, and in 18(15 the said railway coui])any was amalgamated with the defendant comi)any, and all their assets and liabilities were trans- ferred to them. And it was held, first, that although it was ullva vires of the railway cdinpany to work mines, the Act of 1863 implied that the company were to have power to work their mines until the mines were sold, and that upon the amalgamation with the defendant com- pany the latter became liable for the wrongful acts of their predeces- sors ; secondly, that the wrongful acts committed in 1863 were not condoned by the release of 18(;|, the jtlainlilfs having no ground for suspecting that while tiie release was in negotiation the [)revious settlement of boundaries had been broken ; and, thirdly, that the Slatulc of Limitations only commenced to run from the time of the dis'-overy of the wrongful acts, there being no laches attril)utable to the ])laintin's for not having discovered that damage prior to 1870, two years before the filing of the bill. ]\ralins, V. C.. in giving judment said :^ "The law, therefore, is T think, clearlv settled that in rases of fraud the Statute of Limita- ' At page 235. " Mitnheil v. Dors, (1801) Vcs. 147; Cowpcr v. Baker, (1810) 17 Ves. 128; Grey v. Northumborland, Ih. 282; Greenwich Hospital v. niasltptt, (1848) 12 Jur. 151. »(1877) L. R. 4 Cli. D. 845. •At p. 860. WliOXGFUL AnSTRACTWN 359 tions (Iocs not begin to run until tlie francl is discovered ; and al- tliougli it is not necessary in this particular case to come to tlie con- clusion that what was done was done fraudulently, yet for the pur- pose of this distinction between cases which are fraudulent and cases which aie not, althougli, 1 repeat, I may be distinctly of opinion that neither the West Hartlepool Company (and as a corporation they (ould not commit a fraud), nor their agents, who wore incapable of doing so, intended to commit a fraud; yet for the purposes oL' the statute, the breaking of bounds into your neighbor's colliery must be considered a fraudulent act; and, therefore, it is now clearly by these autliorities settled, in my opinion, tliat in all cases of fraud the time for ))arring under the statute begins to run only from the time the fraud was discovered, or by reasonable diligence might have been dis- covered." Concealed fraiul will deprive a party of the benefit of the Statute of Limitations.''^ Fraiis csl celare fraudcin. This is one of the many applications of the general rule that no man is allowed to take advantage of his own wrong; niilUis coni- modum capere polcst dc injuria sua propria. Actio personalis, etc. The " Trustee Act " "- provides that in case any deceased person committed a wrong to another in resjiect of his real or personal j)roi)erty, the person so wronged nuiy maintain an action against the executors or administrators of the deceased; such action to l)e l)rouglit at the latest within one year of the decease. This modilies the rule of the common law tliat all private wrongs as well as all public crimes are buried with the oll'ender; aiiio per- sonalis morihir cam pcrsnna. J>owen, L.J. ,■''■'' states the nde to be, that the only cases in wliich, apart from questions of lireach of con- tract, express or implied, a remedy for a wrongful act can l)e pur- sued against the estate of a deceased person who has done the act, ajipear to be those in wliich ]iro[)erty or the proceeds or value of ])roperty belonging to another have been ajipropriated l)y the de- ceased person and added to his own estate or monies. The rule there- fore, except as modilled by statute, would apply to all actions of tres- pass, trover or nuisance, and to actions for wrongfully carrying :| '■■' Rains v. Buxton, (1880) 14 Ch. Dlv. 537. -• R. S. O. (1897) c. 129, s. 11. •"Tn Phillips V. Homfray, (1883) 24 Ch. D. 439, at p. 454, where the maxim was elaborately dealt with. Its history was subsequently dis- cussed by the same learned Judgo in Finley v. Chirncy, (1888) 20 Q. B. D, 504. The rule does not hold in Quebec, having no place in the civil law. 360 lyspijcriox iiiincriils over or tliroiigh tlic ])rn])erty of anotlier, for foulinix wiiter, divert iiiij a water course, or floodinj;: a mine; l)ut would not ai)|>ly to an action for the wrongful abstraction by the defendant of mine- rals from the property of the plaintilf. * Inspection. In Bennett v. Whitehouso,'** a suit by a mine owner ngainist the owner of an adjoining mine for an alleged trespass in working into the plaintiif's mine, although the defendant denied the trespass an order was made allowing the plaintiif, at his own expense, to insj)ect the defendant's mine, with lil)erty to measure, dial, and make all such plans and surveys as might be necessary, and to use the defendant's machinery for ascending and descending, doing no injury to the defendant's works, and paying the defendant any ex- penses he might incur. liomilly, M.K., said : *- " Whenever it appears that a person has power to make use of his land to the injury of another, and there is })rima fuclc evidei.ce of his doing so, though it is contradicted, still, ns tlic oidy way of ascertaining the fact is by an ins[)ection, the Court always allows it if it can be done witlunit injury to tlie defendant." ^•' The removal of any obstruction to such an insjiection may 1)0 ordered.'* In a suit in Xova Scotia, for trespass to his mine, plaintilf ob- tained an order for the ins[)ection of defendant's nunc, wliich was u])held in ai)peal as being essential to enable the plaintilf to i)rove his case.'' In Ontario " a party to a cause or matter has the right to apply to the Court or Judge for an order for the inspection, by the jury, himself, or his witnesses, of any real or personal [»roperty, the inspec- * Phillips v. Fothergill, (1886) 11 A. C. 466; Hatthyany v. Walford, (1887) 36 Ch. D. 279; Finley v. Chirney, (1888) 20 Q. B. D. 504; Concha v. Murrietta, (1889) 40 Ch. D. 553; Phillips v. Homfray, (1890) 44 Ch. D. 699; afflrmert by Court of Appeal (1892) W. N. 4. *' (1860) 28 Beav. 119. "P. 122. "Walber v. Fletcher, (1804) 3 Bli. O. S. 172. The order in Lons- dale's Case, n>ferre(l to by Romilly, M.R., where the result of the in- spection was to show that coal to Ihe amount of £3.000 had been taken away from the defendant, is printed in the note to E. I. Com- pany V. Kynaston, (1821) 3 Bli. O. S. 168; A.-G. v. Chambers, (1849) 12 Beav. 159; Ennor v. Barwell, (1860) 1 DeG. F. & J. 529; see also Whaley v. Brancker, (1864) 10 L. T. N. S. 155; Cooper v. Ince-Hall Co., (1876) W. N. 24. " Seton on Decrees, 4th Ed., 208 "Gray v. Hardman, (1896) 28 N. S. R. 235. " By Consolidated Rule 571. CRIMINAL OFFEXCES 2G1 lion of Avliich may be material to the proper determination of the question in dispute. Criminal Code. Tlie enumerated classes of subjects over which ilio Parliament of Canada has exclusive legislative authority include : '' Tlie Criminal J^aw, except the constitution of Courts of criminal jurisdiction, Init including the procedure in criminal matters." ^ The Criminal Code, ISi)^,^ contains the following sections re- lating to mines and minerals. Danger to Life. Every one who has in his charge or under his control anything whatever, whether aninuite or inanimate, or who erects, makes or maintains anytliing whatever, which, in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable ])recautions against, and use reasonable care to avoid, such danger, aiul is criminally responsil)le for the consequences of omitting, witiiout lawful excuse, to perform such duty."*' Every one who undertakes to do any act, the omission to do which is or may be dangerous to life, is under a legal duty to do that act, and is criminally responsible for the consequences of omitting, witlu)ut lawful excuse, to perform that duty."*- " Every one is guilty of an olfence and liable, on sumnuxry con- viction, to a line or imprisonment, with or without hard labour (or both), who (//) Ik'ing ihe owner, manager or superintendent ol' any aliau- doned or unused mine or (jiuirry or property, upon or in which any excavation has bei'u or is hereai'ter made, of a sullicient area and de|itli to endaiigei' human life, leaves the same unguarded and unin- cIosL'd I'y a guard or fence oi' sullicient iu'ight and strength to \n-n- vcnt any person from accidentally riding, di'iving, walking ov falling thereiuio ; or {(■) Omits, within iive days after conviction of any such olTcnce, to make the inclosurc aforesaid, or to construct arouiu^ or over such exposed opening or excavation a guard ov fence of • lu-h luught and strength. 2. Every one wluise duty it is to guard such hol(\ opening, ajier- turo or place is guilty of manslaughter if any jteison loses his life by accidentallv falliny- therein while the same is u iguarded."' P: 'B. N. A. Act, s. 91, s.-s. 27. ^ 55-5G Vict. (Dom.) c. 29. " Section 213. "= Section 214. ° R. S. C. c. 16?, ss. 29, 30, 31 and 32. •■" Section 255. 203 STRALIXd ORFj ConceaJing G-old and Silver. '" Kvi-rv one eimnnits theft \\\\o, with intent to derraiul his co-i)artner, co-advent urcr, joint tt'iiant or tenant in eonunon, in any mining' elaim, or in any share or interest in any sueli claim, secretly keeps hack or conceals any gold or silver found in or upon or taken from such claim." Stealing Ore. ' i-'very one is guilty of an indictahle oirence and liahlc to two years' imprisonment who steals the ore of any metal, or any tpiartz, lai)is calaminaris, manganese or miindic, or any piece of gold, silver or other metal, or any wad, black cawk, or hlack lead, or any coal, or cannel coal, or any marhle, stone or other mineral, from any mine, ])cd or vein thereol' resi)ectively.- Jt is not an oil'ence to take, for the purposes of exploration or .'-cientilic investigation, any specimen, or si)ecimens of any ore or mineral from any jiiece of ground uninclosed and not occupied or worked as a mine quarry or digging.-' The Criminal Law and Practice Statute, 1801, s. 101, of Victoria (Australia), enacts that whoever shall steal, or sever with intent to steal, any gold from any mine, bed, or vein thereof, shall be guilty of felony, and it was held that an information uiuler this section was suiliciently jjroved by showing that the gold taken had been removed from its natural position (//( silu), aiul that tiie gold being in the form of separate grains contained in auriferous wash-dirt did not render it less a bed or vein, (iold when found is always separated hy something, earth or rock or quartz; it is only a question of degree. -- In R. v. Wilson -•■' it was held that gold in wash-dirt is the "ore of a metal"' witliin the meaning of "The Xew South Wales Larceny Act,'' and may be described in an information as " gold ore."' Tn that case 31 n-tin, C.J., expressed the view that larceny can not l)e com- mitted of gold belonging to the Crown by virtue of its prerogative while not detached from the mine. Fraud. ^ Iwery one is guilty of an indictable ofTcnec and lial)le to two years' imprisonment, who " R. S. C. c. 164, s. 31. "Section 312. ' R. S. C. c. 164, s. 25. - See R. V. Smith, (1838) 2 M. & R. 115; R. V. Treveuner, (1838) 2 M. & R. 476, -' Section 343. =- Reg. V. Davies, (18G9) 6 W. W. and A. B. (L.) 246. '' (1874) 12 N. S. W. S. C. R. (L.) 258. » R. S. C. c. 164, ss. 27, 28 and 29. I .ijl 1 CRIMIXAL OFFEXCES 203 («) Being the holder of any lease or license issued under thu provisions of any Act ^ relating to gold or silver mining, or by any persons owning land supposed to contain any gold or silver, by frau- dulent device or contrivance, defrauds or attempts to defraud Jler Majesty, or any ])erson, of any gold, silver or money ])ayahle or re- ircrved by such lease, or, with such intent as aforesaid, conceals or makes a false statement as to the amount of gold or silver procured by him ; or (/*) Xot being tlio owner or agent of tlie owners of mining claims then being worilc fuel, or to any mine or any well of oil or other comljustiljle siil)stance, or to any sliip or vessel, whether com- pleted or not, or to any timber or materials i)laced in any shipyard for building or repairing or fitting out any ship, or to any of Iler ^Majesty's stores or munitions of war.''^ Every one is guilty of an indictal)le olTence and liable to fourteen years' imprisonment who wilfully attemi)ts to set fire to anything * By the Criminal Code, 1892, s. 3, 8.-S. ((/) "any Act" includes any Act passed or to be passed by the Legislature of any Province of Canada. " Section 375. As to sciirch war- rant see s. 569; fine, s. 958; indict- ment, s. 621. ■ R. S. C. c. 168, sa. 30 and 31. ■•' 55-6 Vict. (1892) section 482. Criminal Code. I I'i 2(U -l//«t7//A7' TO AllSES iiiontionod in the last preceding f or who wilt'iilly sets fire to any substance so situated tiiat Iv that anything mentioned in tJie hist iireeeding section is li' , itch lire therei'roiii.''- Kvery one is guilty of .table olfence and liabh; to seven years" imprisonment who, wi .a>iit to injure a mine or oil well, or obstruct the working thereof — (a) Causes any water, earth, rubbish or other substance to be conveyed into the mine or oil well, or any subterranean channel coin- iiiunicating with such mine or well; or (h) Damages any shaft or any jiassage of the mine or well ; or (r) Damages, with intent to render useless, any apjiaratu-!, build- v^';:, erection, l)ridge or road belonging to the mine or well, whether the object damaged be coin[)lete or not ; or (cl) Ilindors the working of any such apparatus ; or (e) Damages or unfastens, with intent to render useless, any rope, chain or tackle used in any mine or well or upon any way or work connected therewith/'^ Search Warrant. "On comjilaint in writing made to any jus- tice of the county, district or ])lace, by any person interested in any mining claim, that mined gold or gold bearing cpiartz, or mines or unmanufactured silver or silver ore, is unlawfully deposited in any jdace oi' held by any ])erson contrary to law, a general search warrant may be issued by such justice, as in the case of stolen goods, includ- ing any lunnber of places or persons named in such complaint; and if, ii])on such search, any such gold or gold bearing (piartz, or silver or silver ore is found to be unlawfully deposited or held, the justice, sliall make such order for the restoration thereof to the lawful owner as he considers right. 2. The decision of the justice in such case is subject to appeal as in ordinary cases coming within the i)rovisions of I'art LVIIT.' '■III., section 483. ■■•^Section 498; see R. v. Witting- ham, (1840) 9 C. & P. 234; R. v. Norris, (1840) D C. & P. 241; Queen V. Fisher, (1865) L. R. 1 Cr. Cas. R. 7. " R. S. C. c. 174, s. 53. ' Section 571. // / CHAPTEE XIV. ONTARIO. THE MINKS ACT. 7?. 8. 0. 1807, Chapter 3G, as Amended. TTKlf MA.l KSTY, by and with tlie advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as fol- lows: — 1. This Act may be cited as " The Mines Act," ^ 55 Viet. e. !), s. 1. ' No laws or regulations relating to mines were adopted in Ontario previous to 1845, but each case requiring executive action was dealt with as it arose by Order in Council. The following is a list of Orders in Coun- cil and Regulations: 12th DtKiember, 1845; 7th April, 1846; 18th April. 184G: 9th May, 1846; 7th October, 1846; 2nd November, 1846; Report of Com- missioner of Crown Lands, 1853, and regulations founded thereon; 15tb March, 1861; 21st April, 1862; 3rd March, 1864, for text of which sec Report of the Royal Commission (Ontario), 1890, pp. 263 ct sai. In 18G4 (27 & 28 Vict. c. 9) was passed an Act respecting Gold Mines, repealed in 1868 by 31 Vict. c. 19. In 1865 (29 Vict. c. 9) was passed an Act to amend " The Gold Mining Act." 27 & 28 Vict. c. 9. Assented to 18th September, 1865. Cited as " The Gold Mining Amendment Act of 1865," which was also repealed in 1868 by 31 Vict. c. 19. In 1867-8, 31 Vict. c. 19, an Act respecting Gold and Silver Mines. Assented to 4th March, 1868. Cited as " The Gold and Silver Mining Act of 186S." which was repealed in 1869 by 32 Vict. c. 34, s. 2. In 18G8-9, 32 Vict ".. 34, an Act relating to Mining. Assented to 23rd .January, 1869. Cited as " The General Mining Act of 1869 .' In 1877 (hp previous Acts were consolidated as Rev. Stat. Ont. c, 29, an Act respecting Mining. Cited as " The General Mining Act." This Act as amended by 49 Vict. c. 8, s. 1, was continued in the revi- sion of 1887, as R S. O. e. 31. An Act respecting Mining. Cited as " The General Mining Act." This war amended in 1890 by 53 Vict. c. 9. An Act tc amend the General Mining Act. Assented to 7th April, 1890. ! ■•' i ?()0 OS'l'AUlO In 1890, by 53 Vict. c. 10, was introduced an Act rpspectlng Mining Regulations. (Assented to 7th April, 1890). Cited as "The Mining Operations Act, 1890," and which came into force on the 1st day of July. 1890. The law was again amended In 1891 by 54 Viet. c. 8 (an Act to anieu \'iet. e. !», s. 2 (2); 57 \'ict. c. 10, s. )i, part; T)!) Vict. c. i:?, s. 1. 3. "^Mining division "'' slinll include any traet of eouiitry de- clared (o he a mining division witliin tliis Act. I. "Crown lands" shall include all Crown lands, school lands or clergy lands not in the actual nse or occupation of the Crown, or of any pnldic Department of the Oovernment of the Dominion of Canada or of this Province, or of any ofTiccr or servant thereof, and not under lease or license of occujiation from the Crown or the Com- missioner of Crown Lands, and as to which no adverse claim exists which is suhsecpuMitly recognized hy the Commissioner of Crown Lands." 5. " Surface rights "' " shall mean lands granted, leased or located for agricultural or other purposes and in respect of which tlie ores, minerals and mines thereupon or nnder the surface thereof are l)y statute, the patent or lease, or otherwise, reserved to the Crown. 55 Vict. c. 9, s. 2 (3-5). 6. '* INIining rights" shall mean the ores, mines and minerals on or nnder any land where the same arc dealt with se^jarately from the surface of the land.** HO Vict. c. 8, s. 1. 7. "Party Avail" shall mean a hank of earth or rock left he- tween two excavations. " 8. '■Shaft'' shall inchule ])it, and " ])lan " shall include a map and section, and a correct copy or tracing of any original plan as so defined. '0 n. " ^Machinery "' shall include steam or other engines, hollers, furnaces, slami)s or other crushing apparatus, winding or pumping gear, chains, trucks, tramways, tackle, Idocks, ropes or tools, and all appliances of whatsoever kind used in or ahout or in connection with the mine. " 10. " Owner " when nsed in relation to any mine shall mean any person or hody corporate who is the immediate ]n-oprietor, or lessee, or occupier of any mine, or of any part thereof, and shall not include a person or hody corporate who merely receives a royalty, rent or fine from a mine, or is merely the ])roprietor of a mine suh- ject to any lease, grant or license for the working thereof, or is merely the owner of the soil and not interested in the minerals of the niine.^- ('; n 'Ill MS osr.iitio 11. '* Ap'iil '' wlieu used in rt'lnlimi (o miy iiiiiio mIiuU inouu any ] oivon luivinjj-, nil liclinir of tlu' owner, caiv or diroi'tion of any mine, or of iiiiy i)art thrri'of, and sliidl iiuliidi' " maiiauci' " and " sii|i<'i'iu- U nilt'Dt."'-' r.'. "Inspector" sliiill iiu'liidc any iiis|H'c(or appoiiitfd under tin's Act, and wlictlicr for a niininj,' division or any part tlieivof or I'or llic I'rovince." no Vict. c. fl. h. 2 (T-13). 'In 18G4 by 27 & 28 Vict. c. 9. part of section ], aub-HcctUin 4, the nmin "mine" is interpreted as follows: — "The word 'mines' shall In- clude botli quartz mines and alluvhil mines, and all other gold mines whatsoever, and ai! places where the work of 'mining,' as above de- fined, may be carried on." This was amended in 1867-8 by 31 Vict. (Ontario) c. 19, s. 3, s.-s. 4, by adding after the words "gold" on 4th line, "or silver"; and In lS(i8-9 by 32 Vict. (Ontario) c. 34. s. 42, s.-s. 2. the above Is repealed and the following substituted; " 'Ihe word 'mines' shall be held to mean and include all rocks, soils or strata containing any metal or metals, and all Ijiaccs where the work of mining as above defined may be cirried on." This definition is continued throughout R. S. O. 1,S77 and 1887, and in 1892 by 55 Vict. c. 9. s. 2. s.-s. 1, which is identical with II. S. O. 1897, c. 36, s. 2, s.-s. 1, omitting after the word "all" on 9tlv line the words "roast yards, smelting furnaces, and other"; and In 1S94 by 57 Vicl. c. 10, 8. 2, the section is amended to read as in R. S. O. 1897. s. 2. s.-s. 1. ' This sub-section is derived from 27 & 28 Vict. c. 9, s. 1, s.-s. 1. The derivative section omits the words "or (piartz " in llie 3rd line, the word "roasted" in the 4th line, and substitutes the words "any metal or mineral therefrom " in the 6th line for the word " gold." ' Inserted in 1894 by 57 Vict. c. 16, s. 2. * " Gold," in 27-28 Vict. c. 9. " Metal or metals," In 32 Vict. c. 34, and In 1892 (55 Vict. c. 9); "metal (^r niet.-ils, mineral or minerals," in 1896 (59 Vict. c. 13), when the word " mineral " was first introduced. 'In 1864, 27-28 Vict. c. 9, s. 1, s.-s. 6, was "gold mining division;' the word " gold " was omitted in 1868-9 by 32 Vict. c. 34, s. 42, s.-s. 3. ' This sub-section is taken from the statute of 1868-9. 32 Vict. c. 34, 8. 42, s.-s. 4, which limits the definition of 1864, 27-28 Vict. c. 9. As to what lands are "Crown lands," fee Srigl( y v. Taylor, (18.S4) 6 O. R 108: Shairp V The Lakefleld Lumber Company, (1890) 17 A. R. 322; 19 S. C. R G57; Harper v. Charlcsworth, (1825) 4 B. & C. 5«4, 586, 591, and chapter 1. For a history of the public lands of Ontario from the time of their acquisition by the Crown till they became subject to provincial lerlsla- live control, see the very able and luminous judgment of Chantellor L'oyd, in Reg. v. St. Catharines Milling & Lumber Co., 10 O. R. 196, afHrm- ed by the Privy Council in 14 App. Cas. 46. " School lands " refers to the million acre tract set apart by Order in Council pursuant to 12 Vict. c. 200 See as to " Common School lands " case of the Province of Quebec v. the Province of Ontario and the Dominion of Canada, now pending In the Till! mim:s act ■.'(I!) #- Supreme Court of Cunatln. "Clergy liinda" were lands set apart by Iniperliil Act, 31 (ico. 111. c. lU, and pioclanvatlon of r^t.-tiovcrncr Slinco", dated 7th l-Vbruary, 1892 (see Si'sh. Papers, U. C, l8;!3-4, p. lU); Imperial Act, G Geo, IV. c. 59; lmi)erlal Act, 7 & 8 Geo. IV. c. 02; Imperial Act. 3 & 4 Vict. c. 78; and Imperial Act. IG Vict. c. 21. The clergy reserves were "secularized" In 1851 by Act of tlio Parliament of Canada, 18 Vict. c. 2, yubject to certain stipends and allow- ances chargeable on the sai 2nd April, 1869, to see that, if Crown lands, they were not patented to any person who was then an Inspector within the division for which he was then inspector, and If a mining claim that no inspector of division where same located while such Inspector owned or became interested in same. As to Crown lands patented or leased" since 14th April, 1892, it must be borne In mind there has been and is now no limitation as to the officer being an officer at the time of purchase, etc. Any such officer appointed under any of the Mines Acts since 1892 may be held to be permanently disqualified from purchasing, or being or becom- ing proprietor of, or interested in, any Crown lands or mining claim; even though such ofllcer be owner of mining claim at time dt his application his Interest might be held to be void. Qitmrc, whether his interest in a mining claim would revert to his grantor or fo the Crown. " For definition of " Crown lands," see ante. POWERS AND DUTIES OF INSPECTOR. lO. ' All Inspector under this Act shall have power to do all or an}' of the folkiwing things, namely: 1. To nialvo such examination and enquiry as may be necessary to ascertain whetlier the i)rovisions of this Act relating to matters either above or below groinul arc complied with in the case of any mine. 2. To cuter, inspect and examine any mine and every portion thereof, at all reasonable times by day or night, but so as not to impede or obstruct the working of the mine. 3. To examine into and make enquiry respecting the state and condition of any mine, or any portion tlieroof, and the ventilation of tiie mine, and all matters and things con- ■^ nected Avith or relating to the safety of the persons em- ployed in or about the mine, or any mine contiguous there- to, and to give notice to the owner or agent in writing of any jjarticulars in which he considers such mine or any por- tion thereof or any matter, thing or practice to be dangerous or defective, and to require the same to l)e remedied within the period of time named in such notice, aiul unless the cause of danger is removed or such defect is remedied Mithin the time named, the owner or agent sliall be guilty of an ollVnce ajiainst tliis Act. ! I aa»n -ihi aso OyTAIilO 4. To exercise such other powers ns iiiny be necessary for ensur- ing tlie lu'iiltli luul sal't'ty of niintrs ami all otiier persona cniploycMl ill or about mines and mining works. ' Derived from 53 Vict. c. 10, s. 15, as amended in 1892 by 55 Vict. c. 9, B. 65, and further amended by 60 Vict. c. 8. a. 27. SIO. Every Inspector under this Act shall make an annual report of his ])roceedings during the jireceding year to the Director of tho JUireau of Klines, which report sliail be laid before the Legislative Assembly.' ' 55 Vict. c. 9, 8. 07, part. 31. lu the event of a vacancy in the olTice of Alining Inspector any notice by this Act required to be given to such olficer shall be given to the Director of the Bureau of ^lines.^ ' 55 Vict. c. 9, s. 68. 23. On the occasion of any examination or inspection of a mine the owner shall, if recjuired so to do, produce to the Inspector, or any other ])erson authorized by the Commissioner of Crown Lands, au accurate phin of the workings thereof; every such jdan as aforesaid shall show the workings of the mine up to within six months of the time of the ins]»ection, and the owner shall, if required by such in- spector or other authorized person, cause to be marked on such plan the progress of the workings of the mine up to the time of such in- spection, and shall also permit the Inspector to take a copy or tracing thereof.' " 55 Vict. c. 9, s. 66. 3JI. Kvcry Inspector shall be e.r officio a Justice of the Peace of the county or nnited counties, district or districts which a mining division comprehends or includes, in whole or in part, or in which or in any portion of which a mining division lies; and it shall not bo necessary that he shall reside therein or possess any ])roperty quali- lication whatever in order to enable him lawfully to act as such Jus- tice of the Peace.' ' 55 Vict. c. 9, 8. 26 (1); 60 Vict. c. 8, s. 13. 34. Every Inspector shall, as to the mining division for which ho is a])poiuted, have ])ower to settle summarily all disputes between licensees as to the existence or forfeiture of mining claims, and the extent and boundary thereof, and as to tho nso of water and access thereto, and generally to settle all difKculties, matters or question!^ 1)ctwcen licensees which may arise nnder this Act; and the decision of Biich Inspector, in all cases nnder this Act, shall bo final, except Tin: MIXES ACT 281 wIrto othonviso provifUMl l»y tliis Art, or when.' nnotlier tril)iinal is apiioiiitcd iiiulc'i- tlic uiitliorily ol" this Act; and no niso iindor tliid Act shall he irmovt'd into any court l)y ccrlloniri^ '55 Vict. c. 9. B. 2G (2); itlentlcal with concluding portion of 32 Vict. c. 34. a. 14. 39. Every Jnspoetor apiH/inted in and for a nnning division un- der tliis Act may appoint any nundwr of constal)k's not cxcooding I'oiir: and the persons so from time to time appointed shall he and aro herei)y constituted respectively constahles and jteaco ollleers for the purposes of this Act, for and during the terms and within the nuning divisions for which they are respectively appointed.^ '55 Vict. c. 9, B. 46; Constables appointed under this section are " officers " within the meaning of section 18, xiiin-ti, and so prohlliited from purchasing, being, or becoming proprietor of or Interested In any Crown lands or mining claim. m\ PAKT II.— MIXIXCI LOCATIONS. FORM, SIZE AND PRICE OF LOCATION'S. 20. ]\Iining locations tinder this Act siiall conform to the fol- lowing rei[uirements: 1. In the unsurveyed territory within the districts * of Algoma, Thunder Uay and l?ainy l?iver, and tliat part of the district of Xipissing which lies north of the French Kiver, Lake Nipissing and the Hiver Mattawa,- every regular nnning lo- cation shall rectanjiular in shajie, and the hearings of the outlines thereof shall l)e due north and south and due cast and west astnnionncally; and sucii location shall be of one of the following dimensions, namely, eighty chains in length l»y forty chains in width, containing three hundred and twenty acres, or forty chains sipiare, containing one hundred and sixty acres, or forty chains in length hy twenty chains in width, containing eighty acres, or twenty chains in length hy twenty chains in width, containing forty acres.-'' 2. "Where a mining location in the unsurveyed lands in the ter- ritory aforesaid borders upon a lake or river a roa. In the townshij)s in the said territory surveyed or hereafter to be surveyed" into sections or lots every nunin;,' location after such survey shall consist of a half, a ({uarter, an eighth, or a sixteenth of a section or lot as the case may be, but so that the area of any such mining location shall not lje less than forty acres.'' 4. In all patents [and leases] *• for mining locations in the ter- ritory aforesaid there shall he a reservation for roads of five per centum of the quantity of land professed to ho granted. . T). In the lands not situate within the limits of the territory aforesaid mining locations shall be as may be defined by any Order in Council hereafter to be uuide, but so that the area of any such location shall be not less than forty acres." ' The territorial division of Ontario into counties and districts Is declared by R. S. O. (1897) c. 3. -1890, c. 9, s. 1 (1). 'Added in 1890 by 53 Vict. c. 9. s. 1 (2). Prior to 7th April, 1890, the smallest mining location allowed was 80 acres. * Derived from 32 Vict. c. 34, s. 9, s.-s. 2. It has been contended that a grant of a mining location not reserving the chain road allowance was void as to the grunt of the chain, which should have been reserved, and would be read by the Court as if the statutory road allowance had been reserved pursuant to the statute. 'I"he question was also discussed but not decided in Caldwell v. Fraser, sKitrii. Where there is a road allowance, the patentee is not a riparian proprietor and would not be entitled to land created by alluvion, which would not be an accretion to the land patented, but to the road allow- ance, the property of the Crown. Cockburn v. Eager, 1876, 24 Gr. 409. Giles v. Campbell, (1872) 19 Gr. 226. See reference to these cases by Boyd, C, in Ratte v. Booth, (1886) 11 O. R. 491, 504. Where land was described in a patent as commencing " in front on Lake Erie, at the south-east angle of the lot," it was held that the south- east angle of the lot as it stood at the time of the grant made, and not Tin: Mi\i:s act 28» a point shifting with the encroachment of the lake was meant. Her v. Nolan, (18C1) 21 V. C. U. 309. ■ This provlHo was added In 55 Vict. c. 9, s. 10, b.-h. 2. In ciises covered by this proviso the reservation of a road nllownnre Is dls- rretlonary. In all other cases within s.-s. 2 It Is Imperative. R. S. O. 1897, c. 1, s. 8, 8.-8. 2. "See "The Surveys Act," R. S. O. (1897) c. 181. •The description liy metes and bounds In the Crown Lands De- partment may be cnnsidered In construlnK patent describing land by number of lot iind concession. Hagiirty v. Briton, (1870) 30 U. C. R. 321; see Hyatt v. Mills, (1890) 20 O. R. 3G5. Per Annan, C.J., for the Court, In appeal, 19 A. R. 329. A potent of land described as In one concession, with metes and boiinds extending into iinother Ciincession will not pass any land in tho latter concession. Wlgle v. Stewart, (1869) 28 U. C. R. 427. So where the land Is described as In a township, and the descrip- tion by metes jind bounds would extend into a town. Campbell v. Crooks, (1852) 9 U. C. R. C39. •■ Inserted In 1892 by 55 Vict. c. 9, s. 10, s.-s. 4, leases having been first authorized in 1891 by 54 Vict. c. 8, s. 5. "55 Vict. c. 9, 3. 10 (5); 57 Vict. c. 16, s. 3. !'& ST. * .MiniiifT locations in unsitrvcycd territory shall be survoyocl by an Ontario Land Siirvoyor,- and shall be connected with somo known point in ])revions survey.s, or with some otluM* known jioint or lioiindary (so that Iho tract may bo laid down on tlic oiVico maps of the territoiy in tho Dcpartinont of Crown Lands), at tlic cost of the applicants, who sliall bo reqnired to furnish fwitliin four montlis of tho time] •' of their application the surveyor's i)hin, field notes ' and description of the location, showing a survey in accordancj with this Act and to the satisfaction of the Commissioner of Crown Lands, [and such stirveyor's ])lan. Held notes and descrii)tion shall not bo regarded as constituting a claim to the location on behalf of the party for whom or at whose instance tliey have been prepared, unless they shall be fded in the Dei)artment of Crown Lands immediately upon completion of the survey |.'' T).") Vict. c. J), s. 11; (iO Vict. c. S, s. T (1). ' Derived from 32 Vict. c. 34, s. 2. = See "The Surveys Act," R. S. O. (1897) c. 181. ' Inserted by 60 Vict. c. 8, s. 7, s. s. 1, in substitution for " with." ♦A certified copy of the field notes Is admissible in evidence: Car- rick v. Johnston, (1866) 26 U. C. R. 69; Strong v. Jones, (1850) 7 U. C. R. 385. So certified copy of plan: Badgely v. Bender, (1834) 3 O. S. 221: Nicholson v. Page, (1868) 27 U. C. R. 318. Or a sworn copy: Whelan v. McLachlan, (1865) 16 U. C. C. P. 102. ' Added by 60 Vict. c. 8, s. 7. Ill I|I]IIII.UJI1LH.L]11.|.L.. -^■-^-~. 2H4 OXTARIO Where there is a discrepancy between the boundaries indicated by worlc on the ground and those shown on the plan, the work on the ground will govern. Ovens v. Davidson, 1860, 10 U. C. C. P. 302; Car- rlck V. Johnston, (1866) 26 U. C. R. 69; McGregor v. Calcutt, (1868) 18 U. C. C. P. 39; Plumb v. Steinhoff, (1887) 14 S. C. R. 739. In determining boundaries, the true astronomical line Is preferred to a liiie run magnetically, making no allowance for the variations vt the compass. Thibaudeau v. Skead, 1876, 39 U. C. R. 387. HH. In addition to tlio roquircnionts of sections 21} and 27/ cvt>ry application for a mining location shall be accompanied with aw alfi- davit showing the discovery of valuable ore or mineral thereon by or on behalf of the apjdicant, and that he has no knowledge and has never heard of any adverse claim by reason of prior discovery or otherwise, and every ai)plicant shall within sixty days pay in to the Department of Crown Lands one-fourth of the purchase price or rental, and within three monllis the remaining three-fourths, the time to be reckoned from the date on which the ajjplication has been filed in the Dei)artment, and in case of failure in respect of any of these requirements the application shall lapse and be of no effect: Provided, however, that in no case shall a i)atent or Icfisc for a loca- tion in unsurveyed territory issue until a survey has been filed as required by |tiie next ])reccding section. | - and that in the case of locations in surveyed townsliij)s the time for completing all re- quirements on the ])art of an ap[)licant may be limited to thirty days at the discretion of the Commissioner of Crown Lands. ' Probably should be " secticm 26," which was added by 60 Vict. c. 8, s. 7, as s.-s. 2 of s. 11 of 55 Vict. c. 9, consolidated as section 26 of this Act. - 60 Vict. c. 8. s. 7 (2). 29. So application for mining lands containing ores or mine- rals of the same class or kind ' shall be entertained in any one calen- dar year from any jjcrson for nmre than thr(>e hundred and twenty acres, nor from any fh-in, ])artnersliip, syndicate or incorporated com- pany for more tluin six hundred and forty acres, within a radius of lifteen miles - in any one district or county of the Province, and smh areas nuiy be composed of sc))arate locations of not less than forty acres each; and in the event of an application lapsing or bee )ming abandoned, the applicant therefor may apply for otiier mining land in the same district or county in place thereoi", but so as not to exceed the limit herein ])rovided; and where a locality or territory is reported or shown to be rich in ores or minerals, the Commissioner of Crown Laiuls may still further limit applicants to one or more locations of forty acres, at his discretion. (iO Vict. c. 8, s. 7 (3). ' This limitiition first introduced in 1897 by 60 Vict. c. 8, s. 7 (3). TJIE MIMJS ACT 285 = " Within a radius of 15 miles." There is no ruling of the Crown Lands Department as to the point from which the " radius of 15 miles " is to hi" measured, but it may be assumed that it would be the centre of the group of locations taken up by the applicant within the calendar year. The Commissioner has decided that " calendar year " means the interval between the 1st day of January and the 31st day of December (both in- clusive) in a given year. JfO. In tho ease of applications for mining lands made prior to tlio ;13tli day of April, 1SU7, and not prior to tliat day finally dis- poned oi' by tlie C'oninii.-sionor of Crown Lands, the periods in whieli all reqnirenients herein are to be completed shall date from the said 13th day of April; and in all other respects the i)rovisions of sections 5J7, 28 and 2d shall api)ly, except in eases where the surveys for the lands had prior to the said day been made and filed, or at least one- half of the i)iirchase money j)aid thereon, in which eases the periods of time mentioned in section 28 shall he deemed to run from the said 13tli day of April. GO Viet. c. 8, s. 7 (-1). ill. (1) Tlic price per acre of all Crown lands to be sold as min- ine set forth in the same Order in Council which withdraws lands. CONDITIONS OX WHICH LOCATIONS TO I!K HKLD. 34. (]) 'i'he grantee or owner of any mining location sold and patented nnder section 31 shall, during the seven years immediately following the issue of the ])atent therefor, expend in stripping or in opening np inines. in siidving shafts or in other actual mining opera- tions, cxclnsive of nil houses, roads and other like improvements, a sum not less than at the rate of $1 per acre during the lirst two years, and THE MIKES ACT 287 a sum not less than at tlie rate of $1 per acre during eacli remaining " year of the said seven years, and the said expenditure may consist of labor actually performed l)y grown men to be computed at the rate of $2 per man per day; but if two or more locations are contiguous, the whole of tlie mining work herein required may be done upon one of them.* (2) In default of such expenditure duriug the first fwo years or during any subsequent year of tlic said period of seven years, all rights connected with any sucli mining location, shall upon an order in that behalf being made by the Lieutenant-Governor in Council, upon the report of tlie Director of the Bureau of Klines that such expenditure has not been made, revert to, and be vested in Her ^Majesty, her suc- cessors and assigns, for the public uses of the Province, freed and discharged of any interest or claim of any other person or persons whatsoever.- ^ 54 Vict. c. 8, s. 2, s.-a. 1, contains provision requiring the expendi- ture of $4 per acre where patent exceeded 160 acres during the first seven years, and where less than 160 acres, $5 per acre during first seven years. This was repealed by 60 Vict. c. 8, s. 9, which substituted therefor the above. - 60 Vict. c. 8, s. 9. an. (1) Instead of granting any mining lands in fee simple the same may bo leased or demised for a term of ten years, with tlie ritrht of renewal for a further term of ten years at the same rental if the covenants and conditions have been performed and fulfilled.^ (2) Unless otherwise provided l)y regulation, the rental for the first year shall l)e one dollar ]ier acre, and for each year there- after the sum of twenty-five cents per acre payable in advance, in respect of lands within the territory designated in the first sub- section of section 31 of this Act; and sixty cents per acre the fn -t year, and thereafter for each year fifteen cents per acre, payable in advance, in respect of lands situate elsewhere. (3) Such lease may at the expiration of the second term, if the covenants and conditions thereof have been performed and fulfilled, be renewed for a term of twenty years on such conditions and at such rent as the regulations shall provide, and may in like manner and subject to the like conditions be renewed from time to time at the expiration of every twenty years.'* (4) F.very such lease shall be subject to such covenants and c(m- ditions on the ])art of the lessee, his executors, adiuinistratiu-s and assigns, to be paid, observed and performed, as shall be ])vovided by regulation. It •« I' )! 288 OXTARIO (5) ^ Tlio said lease may among other things provide for the re- moval, in case of forfeiture or non-renewal of the lease, of any mining plant » and maehinery whieli the lessee, his executors, heirs and ad- ministrators shall have i)laced or erected upon the said premises. (()) There shall be expended in stripping"' or in opening uj) mines or in sinking shafts or in other actual mining operations" the like sums upon lands leased under the i)rovisions of this Act as it is provided by section 34 hereof shall be expended in the case of sales or grants and within the like periods, and in defaidt of such exponditur(> the lease sliall be forfeited " and become al)solutely void, and the said lands, mines and minerals shall upon an order in that b.'half being made by the Lieutenant-Governor in Council, upon the repoit of the IXireclor of the Bureau of :Mines that such expenditure lias not been made, revert to and become the property of and be vested in ITer Maje-ty, her successors and assigns, and shall cease to be the ])ro])erly of any other ])erson or persons whatsoever.'* ."io A^ict. c. J», s. 14. (7) "When mining rights" are leased tlie rental shall 1)e fifty per cent, of the rates fixed l)y sub-section 2.^" ' Power to lease first given In 1891, by 54 Vict. c. 8., s. 5. -Thie riglit of renewal Is recognized, but the conilitions and rentals are to be determined from time to time by regulation. ■■ Note that " assigns " not provided for. •As to " plant," see Middleton v. Flanagan, (1894) 25 O. R. 417. ■"' " Stripping the vein " is defined in Uro's Dictionary of Arts, etc. (1860) Vol. III., p. 146, as follows: " Should the vein be very narrow, it is necessary to remove a portion of the sterile rock which encloses it, in order to give the work a sufficient width to enable the miner to ad- vance. If In this case it be quite distinct from the rock, the labour may be facilitated as well as the separation of the ore by disengaging the vein, on one of its faces through a certain extent, the rock being at- tacked separately. This operation Is called stripping the vein." '■■As to "actual," see Gillard v. Bollert, (1883) 24 O. R. 147; Black v. Toronto U. Co., (1888) 15 O. R. 642; Hogaboora v. Ciraydon, (1894) 26 0. R. 298; Re Monteith, Merchants Bank v. Monteith, (1885) 10 O. R. 529; Hoggan V. Estiuimault & N.inaimo R. W. ^o., (1891) 20 S. C. R. 235; affirmed P. C. 23, Can. Gaz. 129. As to "operation," see Sage v. Township of West Oxford, (1892) 22 O. R. 678. ■The law ;ippoars to be that if the reversioner, with knowledge of the accrual of the forfeiture, does anything thereafter whidi admits the subsequent continuance of the tenancy, such action on his part con- stitutes a waiver. Jones v. Carter, (1846) 15 M. & W. 718; Doe v. Birch, (1836) 1 M. & W. 40G; Dendy v. NichoU, (1858) 4 C. B. N. S. 376. THE MIXKS ACT 289 And this appears to apply to nets of Ministers anil officers of tin Crown representing the Crown. See Holland v. Ross, (1890) 19 S. C. R. 566; see Petersiin v. The Queen, (1889) 2 Ex. Ct. Rop. 67, judgmont Bui- bldge, J., at p. 74; Attorney-General v. John Ettershanlc, (1875) L. R. 6 P. C, 354, distinguishing K«'ating v Sparrow, 1 Bell v. Beattie. Ir. Cli. Rep. 367; Davenport v. The Queen, (1877) L. R. 3 App. Cas. 115; seo p. 132 (per Sir Montague E. Smith): "Where money is paid and receivt'd as rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfeiture, cannot countervail the fact of such receipt"; but the receipt of rent is not a waiver of a forfeiture, unless it be of rent due on a day after the forfeiture was incurred. Soe Pollock, C. B., and Martin, B., iu Price V. Worwood, (1859) 4 H. & N. 512; Roberts v. Davi-y, (1833) 4 B. & Ad. 664; Doe v. Banks, (1833) 4 B. & Ad. 401; Dumpor's Cast', 1 Sm. L. C. 41 and notes; Croft v. Lumley, (1857) 6 H. L. C. 672; Pennant's Case, 3 Rep. G4(i. In Australia, it was held in Barwick v. Duchess of Edinburgh Co., 8 V. L. R. (Eq.) 70; 3 A. L. T. 68, 121, by the full Court that the Crown nut having re-entered or taken possession where there was a proviso for forfeiture in case of breach of covenants, and a Gazette notice declaring <"orfeiture for breach of labour covenants, that a company which had taken possession of the land under miner's rights, subsequently to the de- claration of forfeiture, were trespassers and liable to account to th3 lessee for the amount of gold raised. See also Weddell v. House, 8 ^\ L. R. (M.) 44; 4 A. L. T. 95. ' The Crown is under no obligation to claim the forfeiture. James v. Young, (1884) 27 Ch. Dlv. 652. "For definition of "mining rights," see section 2, sub-section 6. '"Order iu Council, dated 21st May, 1897. 36. If (leraiilt is made hy the lessee in the iiayiuent of rent ' the lease shall i)e forfeited, but the lessee may defeat the forfeiture- by payment of the full amount of rent within ninety days from the day when the sauu> becomes jtnyalile; l)ut unless the whole of the rent is ]ai(l within ninety days from the said day tho lease shall be altso- lutely fnrfeiteil and void, any statute, law, usage or eiistom to the contrary notwithstanding, and all claims of any and every kind of the lessee or his assigns shall from and after siu-li ])eriod forever cease and determine.'' ' It has been decided in New Zealand that where a lease is authorized by statute, and a statutory rent reserved, payment of such rent may be enforced against the lessee by .action though the lease does not contain a covenant to pay rent, and that in such action it cannot be set up. as a defence, that the lease has become liable to forfeiture. The Commissioner of Crown Lands. Otago District, v. Guffie, (1892) 11 N. Z. L. R. 187. -In Natal v. Behrens, (1889) 14 App. Cas. 336, Lord Watson says: "Where the Crown has lawfully resumed possession of Crnwu lands alienated to a subject by virtue either of n reservation in the original 19 M ' M • IVtiili m 290 ONTARIO grant or of legislative authority subsequently obtained, the right of a sub- ject Is ino tiiiito extinguished and his Interest reverts to the title of the Crown." '• 55 Vict. c. 9, s. 16. {$7. (1) L'i)on the failure of any one or more of several co- owners or co-lessees of a location to contribute his or their propor- tion of the expenditures ^ or of tlie rental necessary to hold sucli location, the co-owners or co-lessees who have performed the labor or made the improvements or i)aid the rent as required by the pro- visions of this Act may at the expiration of the year - give such de- linquent co-owner or co-lessee,^ or his personal representative in case of death, personal notice in writing, or notice by registered letter ad- dressed to his last known place of abode calling upon him to make the necessary payment ; * and if upon the expiration of three calen- dar months from such notice," the delinquent co-owner or co- lesscc or his said representative shall have failed to contribute his proportion to meet such expenditures or improvements or rental as the case may bo, upon report thereof by tlie Director of tlie Bureau of Mines, the Commissioner of Crown Lands nuiy order that his in- terest " ill the location shall become the property of and be vested in his co-owners or co-lessees who have made the expenditures or improvements ' or paid the rent overdue * as aforesaid, and the same shall vest in such co-owners or co-lessees accordingly; or if the Commissioner thinks lit to refer the matter to the High Court," the Court shall Imve authority to make the like order. (2) In case of the death of such person eitlicr before or after default in respect of his share, and no person has taken out adminis- tration to his estate or has obtained probate of his will, the notice provided for in the preceding sub-section may be given to the lieirs.i" of such persfm. (!() Vict. c. 8, s. Vk '"Expenditures" would include the expenditures upun land sold and patented, provided for by section 31, sub-section 1, and for lands leased, provided for by section 35, sub-soction 6. - Probably refers to the poriod specifled in section 34. 'The singular here includes the plural. See "The Interpretation Act," R. S. O. 1897, c. 1. s. 8, s.-s. 24. * " Payments," (^iitinr, as to payments of what, and to whom. It probably means payment by the defaulting person of his contribu- tion to the person who lias performed the labour, or made the Improve- ments, or paid the rental. No more can be demanded than the amount necessary to hold the location. " " Notice " herein provided for would date from the personal ser- vice or the mailing of the registered letter properly addressed. TUB MIXES ACT 2 91 It " " His interest " would probably be held to be taken subject to any encumbrances thereon. Quaire as to executions, ' " Improvements." Qmurv, what improvements, as no improvements are necessary to hold location. " The rental is, by section 35, sub-section 2, made payable in advance each year of the term. It is therefore overdue if not paid on the first day of the year. By section 36, 90 days of grace aro given, but if the rental is not paid within said 90 days, the consequence is, by section 36, " absolute " forfeiture. " " High Court " probably means High Court of Justice for Ontario, but is not defined. >" " Heirs." Qiinor, who would be includi-d, and whether in case of leasehold it would mean next of kin. There is no special provision as to service upon infants, persona tioii compos mentis, etc., how served. There is no provision for serving an " heir " by registered letter, therefore personal service would bo required. Jf8. The lessee ^ may at any time during the demised term, npou tlie payment of all rent due and the performance and fulfdment of all other covenants and conditions, become the purchaser- of tlie lands demised to him, and in such case the sum paid for the first year's rental shall be treated as part of the purchase money. 55 Vict, c. !), s. 15. ' " Lessee." Qnaere, whether assigns included, also execution credi- tors. - Fisher v. Tully. (1878) 3 App. Cas. 627, was a decision of the Privy Council on appeal from the Supreme Court of Queensland. In a suit by the appellant praying for a declaration that a valid and binding statutory engagement subsisted between the Government and himself for the grant in fee simple of certain land which had been previously leased to him, and further praying that the Government might be decreed to issue a deed of grant to him, it appeared that the appellant had complied with the condition of section 51, sub-sections 6 and 7 of the Queensland Alienation Act of 1868 (which provides for an accelera- tion of the right to the grant In fee), but that the declaration fhat he lived in Queensland, made ou his application for the lease, was imtrue to liis knowledge. Held, that the Government was right in withholding the grant; the declaration formed one basis on which the contract was founded, and there was no evidence that the Government knew it to be untrue, either at the time the lease was granted or when the rents were received. lifsl m e- UKSKRVATIOX OF TIMBKU. JIO. (1) The patents for all Crown lands sold as mining lands shall contain a reservation of all pine trees standing or being on the lands, which pine trees shall continue to be the property of Tier !•> 292 ONTARIO !Majc^ly, and any jjcrson Jiol(liu<^ a license to cut timber or saw-loys on such lands may at all times during the continiumce of the license enter upon tiie lands and cut and remove such trees and make all necessary roads for that i)urposc.' {'i) The patentees or those claiming under them (except paten- tees of mining rights hereinafter mentioned) may cut and use such irees as may jje necessary for the jturpose of building, fencing and fuel on the land so patented, or for any other purpose essential to the working of the nnnes thereon, and may also cut and dispose of all trees required to Ije removed in actually clearing the land for cultivation. (;>) No i)ine trees, except for the said necessary building, fenc- ing and fuel, or other purjjose essential to the working of the mine, shall be cut beyond the limit of such actual clearing; and all pine trees so cut and disposed of, excejit for the said necessary building, fencing and fuel, or other purpose aforesaid, shall be subject to tiio ] ayuient of the same dues as are at the time payable l)y tlie holders of license to cut timber or saw-logs." ' Almost identical with 32 Vict. c. 34. s. 12. ■ 55 Vict. c. 9, s. 17. 40. Tlu' preceding section shall api)ly to all leases issued under this Act, other than leases of mining riglits lienMiiafter mentioned, with the following limitations and variations, tluit is to say — 1. No i)iue trees shall be used for fuel other than dry i)ine trees, and (except for domestic or household ])urp()ses) oidy after the sanc- tion of the timber licensee or the Dci)artment of Crown Lands is ob- tained. 2. In case it is intended to clear for cultivation any ^lortion of tiie lands so leased it shall l)e the duty of the lessee to give the holder of the timber license three mouths' notice in writing of his intention to clear, and the area intended to be cleared, and its position, so that such timber licensee may remove any tind)er on the area intended to be deaied. 3. If at the expiry of tlie time limited l)y the notice sucli tim- ber shall not liave been re'noved from tiie area intended to be cleared, then the lessee shall be at liberty to cut and dis])ose of all trees r(>- (juired to be removed in actually clearing for cultivation the area fi]iccificd in such notice, and all trees so cut and dis))osed of phall be subject to th(> pnyment of the same dues as are at the time pay- able bv the holders of licenses. THE MIXES ACT 293 4. If (luring the first ten yenrs it is souglit to cut timber, other than ]iino, on the hinds so loasod, Ijoyond what is re(juired for 1)iiihl- iny commissioners in consolidation. ' If the grant Is made for a specific purpose, It carries with It by implication, in the absence of a contrary intention appearing on its face. the right of reasonable and necessary support for the works to be erected from the subjacent or adjacent lands of the grantor; see L. & N. W. R. Co. V. Evans. (1892) 1 Ch. 27; Elliot v. N. E. R. Co., (1863) 10 H. L. C. -333, 357; Caledonian Ry. Co. v. Sprot, (1856) 2 Macq. 450, As to support see Chapter IX. 42.(1) MVliere the surface rights- have been granted, leased or located,-'' and a i)atent or lease of mining rights sluiU tliercafter 1)0 granted in respect of the same land, in the event of the parlies failing to agree upon com])ensation ' for injury or damage to the surface rights either in the form of a specified interest in the mineral rights or ore or mineral, to be secured to the owner of the surface rights, or by payuu'nt or agreement to pay in money, or the giving of security, the Director of the Rureau of ]\Iines shall order and lirescrilie the manner in which compen-^ation for the damage or in- jury to the surface and surface rights shall be ascertained, paid or secured.'* (2) For the purposes afori.-^said the said Director is emi)owered io appoint a valuator or v:>luators, arbitrator or arbitrators, who shall have all the ])owers " for the jntrjioses for which he or they shall be ajipointed of an arbitrator or arbitrators under anv Act of the 291 OyTARlO Lopisliitiiro, or he inny direct thnt siicli compenpntion shall ho nscor- laiiiod by suit or action in any Connty or District ('ourlJ ' First introduced in 1892 by 55 Vict. c. 9, B. 20. ■ For definition of " surface rights," see section 2, sub-section 5. "See sections 5, 6, 7, and 8 of the "Free Grants and Homesteads Act." ' Set' Great Laxt'y Mining Co. v. Clague, (1878) 4 App. Gas. 115, where Sir Robert Collier in delivering the judgment of the Privy Council, at p. 120 says: " That compensation has been assessed by a competent tribunal once for all, which puts the plaintiff In as good a position as If the dam- age of which he complains had never been done. After receiving that compensation, he will have no right of action for any subsequent dam- age he may suffer from the same cause." ■In Midland Railway Co. v. Checkley, 1867. L. R. 4 Eq. 19. Romllly, M.R., says, p. 2.'J: "Stone is, in my opinion, clearly a mineral; in fact, everything except the mere surface, which is used for agricultural pur- poses; anything beyond that which is useful for any purpose \ liatever, whether it is gravel, marble, fireclay or the like, comes within the word mineral when there is a reservation of the mines and minerals from a grant of land." "See " The Arbitration Act," R. S. O. (1897) c. 62, which, by section 47, applies to every arbitration under the Mines Act. ' 55 Vict. c. 9, s. 20. 43. Xo ]«'rson shall have the right of entry as prospector or ex- plorer upon the surface rights of that ])ortion of any lot used as a garden, orchard, vineyard, nursery, plantation or pleasure ground, or upon which crops that may be damaged by such entry are grow- ing, or on which is situated any sjjring, artificial reservoir, dam or waterworks, or any dwelling-house, out-house, manufactory, pul)- lic building, church or cemetery, unless with the written consent of the owner, lessee or locatee or of the person in whom the legal estate therein is vested.^ > 55 Vict. c. 9, 8. 21. PAET ITT.— :MTXTXr, TLATMS. MINING DIVISIONS. 44. ^ The Lieutenant-Covernor in Council may from time to time by Order in Council declare any tract of country ^ therein de- scribed to be a mining division; and by any sub.sequent Order in Council ni.iy from time to time extend, add to or diminish the limits of the division, or may otherwise amend any such Order in Council, or may cancel the same; and from and after the publication in t\\?. THE MIXES ACT 205 Onlnrio Gmelle of an Order in Council dcclarinf; a tract of country to l)c a mininy; division, a niiniuf? division tlicroin niontioned and dcsorilK'd and all mines on Crown lands'' situate in the division shall bo subject to the provisions of this Act, and to any regulations to bo made under this Act/ ' Derived from 27-28 Vict. c. 9, s. 2, and 32 Vict. c. 34, s. 13. ' Tho first and only mining division yet declared is tho Mlcliiplcoton Division. For Orders in Council and Regulations see Appendix I. See and considor section 10, si(j>ro. " See section 2, sub-section 4. * 55 Vict. c. 9, 8. 24. mixer's license. 45. [(1) On payment of a fee of $10, or such other sum as may 1)0 fixed by regulation, tho Director of tho liureau of Klines (or the Jns[)ect()r of a division when so authorized by the Commissioner of Crown Lands) may grant to any person, registered iiartnership, or mining company incorporated under the laws of the province apply- ing therefor a license to he called a " miner's license," which shall bo in force for one year from the date thereof, and shall not bo transferable except with the consent of the Director of the JJureau or the Inspector of the division. (2) Tho person, partnership or company named in a license shall be called the "licensee," and upon payment of the fee fixed by law or regulation, and i)roduction of proof under oath that the mining conditions have been duly perform"d upon the claim or claims staked out and held, such licensee shall ha\o the right to renewal if applica- tion is made therefor before the expiration of the license or within ten days thereafter. _ . , (3) A miner'.-i license may be in the following form: Province of Ontario. No (Name of Division) Mining Division. $ Bureau of Mines. (Date) 18 Miner's License. Issued to A. B., In consideration of the payment of a fee of dollars, under the provisions of the Mines Act, to be in force for cue year from the date hereof. C. D.. Director.] * 'This section was substituted by 61 Vict. (1898) c. 11, s. 8, for R. S. 0. (1897) c. 36, 8. 52, which was thereby repealed. 1 !j :H*; ' (I 20U OXTAIUO 40. A miner's licenso .sliall nutliorizo tlie lifcnsoc ' (to explore any portion of Ju' mining divi.sion named in his license and | - to mine during one year from the date of tiie license and from the date of tiny renewal thereof, on any mining ehiini marked or staked (lilt by such lieeiisee on Crown lands, as hereinafter provided; hut liny jH'rson " may he employed hy the licensee to assist liim in work- ing such cLiim [or tlie licensee may orgaiu/e a company to work the 8ame'*|, [and in eitlier case tlie working conditions shall he deemed to he complied with when the equivalent of one man's labor for the year in actual nnning has l)een performed as hereinafter re(|uired. ]'' ' " rersdnnlly and not through another," struck out by 61 Vict. (1898) c. 11, 8. 2. - Inserted by 61 Vict. (1898) c. 11, s. 2. •■' " Or persons not occupying any other mining claim," struck out by 61 Vict. (1898) c. 11, s. 2. * 55 Vict. c. 9, s. 30; 57 Vict. c. IG, s. 5. •"• Inserted by 61 Vict. (1898) c. 11, s. 2. STAKIXC. OUT .\.\n HOr.DI.NT, MIXIXC. CLAIMS. 4T. A licensee mIio discovers' a vein,^ lode-' or other de- ])osit of ore ■* or minerals,' | in place].''' within the division mentioned in his licons,', shall have the right to mark or stake out thereon a mining claim, ju-oviding that it is on Crown hinds not withdrawn from location or exploration and is not included in a claim occu- ]iied "' hy another licensee, or on lands the mines, minerals and min- ing rights' whereof have liecn reserved hy the Crown, and shall have the right to work the same or to transfer" his interest therein to another licensee; and in case the .surface rights have been granted, Ica^cil or located by the Crown to another person, the licensee must proceed as provided in section Iv' of this Act. (!() Vict. e. 8, s. 14 (1). ' Discoverer was formerly defined by 55 Vict. c. 9, s. 40, which ap- pears to have been dropped in the consolidation, though it had not bren expressly repealed; see also s. 32, in [!■(/. ' " Vein," see Appendix III. » " Lode " (Ih.). * " Ore " ail.). " " Mineral." As to meaning of word, see Chapter II. " Inserted by 61 Vict. (1898) c. 11, s. 3. "' Read with sections 51 and 52, iiifni. ' See section 10, Kuin-a. * For form of Transfer see Appendix II. (2) [If the working conditions have been complied with as liore- inaftcr re(|uired, for a ])eriod of three years, on a claim of '^(» chains M[uaie, or for two years on a claim of J 5 chains sciuarc or less, or I THE MIXEa ACT '2!»1 wlioii Iho equivalent ol' such working conditions has been coinplioil with ill a le>. KSilT, and u[)on [)ayment tiierel'or to the Departuient of Crown jjinds ol the pnrciiase price, or lirst yi'ar's rental at a rale per acre, as piovidcd in sections I!! and Mo respei'tivtdy ol the said Act; anil tile time when tlie royalties may begin to l)e imposed or c"l- lec'ted upon . Xo more than one claim shall be staked out by any indi- vidual licensee iqion the same vein, lode or deposit of ore or mineral, unless such claim is distant a' least ^ [sixty chains] - from the nearest 298 OXTARIO I known mine, [elainil ^ or discovery on tlie same vein or lode, [but no licensee shall stake out and record in the same mining division, with- in a radius of iifteen miles, more than four claims in one calendar year, and for cacli additional claim after the first staked out and held by him, he shall pay a fee of $10 a year in advance, or such other sum as may be fixed by regulation.'*] ^ ' " Three miles," struck out by 61 Vict. (1898) c. 11. s. 5. - Inserted by 61 Vict. (1898) c. 11, s. 5. ■' Inserted by 61 Vict. (1898) c. 11, s. 5. * Added by 61 Vict. (1898) c. 11, s. 5. •■■ Section 37 of 55 Vict. c. 9, ss. 37 and 39, are repealed by 60 Vict. c. 8, s. 17. ♦50. (1) A mining claim shall be a square of fifteen chains, or 990 feet, containing twenty-two and one-half acres; [or of such other extent, greater or less, as may be fixed by regulation for any mining division, but so as not to exceed a scjuare of twenty chains or l,;}'iO feet, containing forty acres.] * {'i) luuh mining claim shall be laid out with boundary linos running north and south and east and west astronomically, and tiie measurements of each claim shall be horizontal, and the ground in- cluded in each claim shall be deemed to be bounded under the sur- face by lines vertical to the horizon. {;?) A valuable water ])ower - lying within the limits of a claim shall not be deeiuei! as ])art of it for the uses of the licensee.'' ' Added by 61 Vict. (1898) c. 11, s. 6. ' Insiiectors have authority under section 24 to settle disputes as to the use of water between licensees; see also No. 6 of Regulations. No test is given for determining what water powers are " valuable." ' 60 Vict. c. 8, s. 14 (4). Hi. (1) [Every Ins])ector a])])ointed under this Act shall keep a book for the recording therein ol' mining claims, which book shall be open to inspection by any jierson on paynuMit of a fee of twenty cents; niul every licensee who has luarked or staked out a mining claim under this Act shall within thirty days thereafter!' | supply (un- der oath) - to the Inspector of the division an outline sketch or plan Iheicof showing the discovery i)ost and the corner posts, and the wit- ness posts (if any), and tlu'ir distances from each other in feet, to- gether with a notice 'u writing setting forth the nauu' of the licensee ami the number of his license, the name (if any) of the claim and its locality as indicated by some gem.'ral description or statement, the lime when the same was marked or staked out, the leii; 'i of i'i'.> boundarv lines if for anv cause thev are not rejiular and the nature THE MIXES ACT 299 of such cause, the situation of the discovery post as indicatocl by dis- tance and direction from the ih'st corner post/ and the date of tlio record, and the Inspector sliall forthwith enter the particuhirs of tlic notice in his book and shall lilc the notice and l-otch or plan with tlie records of his ollicc] * (2) If the licensee fails [to comply with the provisions of this section so far as the same relate to himj ■'' [or if having complied with them, he or any person in his behalf shall remove any post for tlie purjjoso of changing the boundaries after tlie ])lan and notice have been filed],- the mining claim so marked or staked out shall be deemed to be forfeited and abandoned, and all right of the licensee therein sluill cease." '■ " Give notice thereof in writing to the Inspector of the division, stating the name of the licensee, and indicating by somo general statement therein the locality of the mining claim, and showing how and when the same was marked or staked out, and the Inspector shall thereupon forth- with rec'ord thi> particulars thereof in the book," appear in the Act 55 Vict. (1892) c. 9, s. 34, but were struck out in 1897 by 60 Vict. c. 8, s. 15. - Inserted by 61 Vict. (1898) c. 11, s. 7 " " The time when the claim was marked or staked out " appear in the Act, CO Vict. (1897) c. 8, s. 15, but were omitted in the consolidation of 1897. ■* CO Vict. c. 8, s. 15. ■'Inserted by Commissioners In lieu of "give notice to the inspector within the time aforesaid." "55 Vict. c. 9, s. 34; GO Vict. c. 8, s. 15, and c, 3, s. 3. *12, [(1) A mining claim shall also be doeme<[ to Ijc forfeited ami abandoned aiul all right of the licensee tiierein shall cease in case * the miner's licciise has run out and has not been renewed, or if the annual fee for a claim has not been prepaid, or if actual min- ing o[)erali()ns shall not be carried on U])on each claim taken up ex- cei)t as hereinafter in this section provided for at least live numtlis of one man's time, or an equivalent if more tlian one nuin is em- ployed on the sau\e claim, in every calendar year. (•-i) Provided, furthermore, that for every four claims or loss Iicld by the same licensee, or by diil'i'reni persons agreeing to com- biiu' their mining operations, within a radius of one mile, all such mining oi)eratii)ns may bo carried on upon one of the claims; but no- liee of an irilentinn to carry on sucli operations nnist ]>e died with the Inspector, and a record - of all mining operations carried on l)y a licensee during his license year verilied by oath shall be died with the Inspector, who shall ent(>r an abstract thereof in his book. .,.i I' 800 ONTARIO (.'5) A licensee may at any time abandon a mining claim by giv- ing notice in writing to tlie Inspector of tlie mining division oC his intention so to do, and from the date of the record of such notice in tht,' Inspector's book all interest of the licensee in such claim shall cease. I '' ' In 55 Vict. c. 9, s. 35, s.-s. 1, here follow the words " annual rent thereof at the rate of $1 per acre has not been prepaid, or if." -60 Vict. c. 8, s. 16, required the rrport to be monthly. 'This section was substituted, by 61 Vict. (1898) c. 11, s. 8, for R. S. O. (1897) c. 36, s. 52, which was thereby repealed. »5JI. Xo mining claim within a division shall be considered un- corked within the meaning of the preceding section during tlie time that an onler in Council directs that work on mining claims witliin stub mining division may 1)0 suspended.' ' 55 Vict. c. 9, s. 36. »54. I'lvery licensee shall produce and exhibit his license to the Inspector l't)r the division, and itrovc to the satisfaction of the In- spector that it is in force, whenever required by him so to do.^ ' 55 Vict. c. 9. s. 38. 55. A i.iirty wall of at least Hfteen feet thick ' shall be left be- Iwcn adjoining claims on Crown lands, which pai'ty wall shall be u.-ed in common ])y all jiarties as a roadway for all purposes for which tlu> same may 1)0 reipiired and as a mode of access to llie stream, lake or poiul, where oiu' exists: and the party wall shall not be ol)stru(ie(l bv any ihtsdii throwing soil, stone or other material tiiereon; and every )ieison so obstructing [\\o party wall slutll i)e lial)le to a line of not mon; tlian $0 nnd costs; and in del'aidt of paynii'nt of the line and cost.s, to be im]»ri.' contemplate that each owner of adjoining claims shall leave T'/j feet for the parly wall. -55 Vict. c. 9, s. 41; 60 Vict. c. 8, s. 18. 50. if at any time it is found necessary or expedient to remove a party wall .as jiforcsjiid, the person so removing it sli.all, if reipiired so to do, construct a lU'-.v- roapoar,s that a boy or young person or any person eni- jjloyed aljoiit an engine, Aviiullass or gin, was employed on tlic repre- sentation of his parent or guardian tliat lie was ol' an ago at wliich his employment would not be in contravention of this Aet, and under (lie belief in good faith that iie was of that age, the owner or agent of the mine and the immediate employer shall be exempted from any penalty, notwilhstanding such boy or other person was not of an age at which his em|)loyment as aforesaid is authorized by this Act, jjro- vided such owner, agent or employer shall immediately ujion dis- covery of the fact discharge such boy from such emi)loym('nt, but the parent or guardian shall for the misrepresentation aforesaid be deemed guilty of an oil'ence against this Act.^ ' 55 Vict. c. 9, s. 58 (2); 60 Vict. c. 8, s. 23. PAYMENT OF WAGES. 66. (1) Xo wages shall be paid to any person employed in or aI)out any mine to which this part applies at or within any public house, beer shop or place for the sale of any spirit. , wine, beer or other spirituous or fermented liquor, or otiier house of enlertain- ment, or within any office, garden or place belonging or contiguous thereto or occupied therewith, (2) Every person who contravenes, or permits any person to contravene this section shall be guilty of an olfenco against tiiis Act, and in the event of any such contravention by any person whomso- ever the owner and agent of the mine in respect of which the wages were ].aid shall each be guilty of an offence against this Act, unless such owner or agent ])roves that he had taken all reasonable means to ]iievent such contravention by publishing and to the best of his l)ower enforcing the jirovisions of this section.^ ' 55 Vict. c. 9, s. 59. AXNTAL STATISTICAL RETURNS. 67.(1) 'rhe owner or agent of every mine, (piarry or otlu'r works to which this ])art applies shall on or before ihe lath day of January in every year send to the l')ureau of Klines a correct return for the" year ending on the luvceding :Ust day of December, of the nuii:l)fr of ])ersons ordinarily employed in or about such mine below ground and above grcnind respectively, and distinguishing the dilTer- ent classes and ages of the ])ersons so emi»loyed whose hours of labor a:e legulated bv this Act, the average rate of wages of each class and the total amount of wages j^aid during ihe year, the (luantity in stan- d^ird weiiiht of the mineral dressed, and of ihe undressed mineral THE MIXES ACT 305 Avhich has been sold, treated or used during such year, and the value or estimated value thereof; and the owner or agent of every metalli- ferous mine shall if required make similar returns at the end of each month or quarter of the calendar year for such month or quarter in order that the same may be tabulated for publication by the Director of the Bureau under the instructions of the Commissioner of Crown Lands. (2) For the purpose of collecting the data of such statistics the Director of the Bureau of Mines shall prepare the required sclicdules in such form as he may from time to time deem desirable, and send the same by mail to be tilled up and returned Ijy the owner or agent of every such mine, quarry or works in the I'rovinoe.* (3) Every owner or agent of a mine, quarry or other works who fails to comply with this section, or makes any return which is to his knowledge false in any particular, shall be guilty of an offence against this Act.'' ' 55 Vict. c. 9. s. 60 (1, 2); 59 Vict. c. 13, s. 3 (1); 60 Vict. c. 8, s. 24. - 55 Vict. c. 9, s. 60 (3); 59 Vict. c. 13, s. 3 (2), .;yii I'REVEXTION OI-- ACCIDEXT.S. OS. I'^or the prevention of accidents where any mine has been abandoned or the working thereof has been discontinued, the owner or lessee, or other jjcrson interested in the minerals of tlio mine, shall cause the top of the shaft and all entrances from the surface, as well as all other pits and openings dangerous by reason of their depth, to bo and to be kei)t securely fenced; and if any person fails to act in conformity with this section he shall be guilty of an otTence against this i)art, ami any shaft, entrance, pit or other opening which is not fenced as afin-esaid shall be deemed to be a nuisance.^ ' Imp. Act, 50 & 51 Vict. c. 58, s. 37; 60 Vict. (O.) c. 8, s. 25. niim il !i GENERAL RULES. 6». The following general rules shall so far as may be reasonably practicable be observed in every mine to which this part applies: 1. An adequate amount of ventilation shall bo constantly pro- duced in every mine to such an extent that the shafts, winzes, sumps, levels, underground stables and Avorking places of such mine, and the travelling roads to and from such working places, shall be in a fit state for working and passing therein.^ 20— M 30fi ONTARIO 2. Gunpowder, dunlin, dynamite or otlier c.\i)lo>aces for jdaces of refuge, each of wbicb spaces sball be of sufTicient length, and of at least three feet in widtb between tbe waggons running on the tramroad and the side of the road; and the Commissioner of Crown Lands may, if be THE MiyES ACT 307 fcCt's lit, require the Iiis])octor to certify wiiother tiic produce of tlie mine in transit on the road nl'oresaid does or does not ordinarily ex- ceed the weight as aforesaid, and siicli certificate sliall l>e conclusive as to the matters therein stated.' 0. Every man-hole and space for a place of refuge shall he con- stantly kei)t clear, and no person shall place anything in a man-hole or in such space in such a position as to prevent convenient access thereto/' 7. " The top of every shaft which was opened hefore the com- mencement of the actual working for the time being of tlie mine and has not been used during such actual working shall, unless the In- spector otherwise ])ermits, be securely fenced, and the top of every other sliaft v.liich for the time being is out of use, or used only as an air shaft, and all other ])its or openings dangerous by reason of their depth upon which work has been discontinued, shall also be securely fenced. '' 8. '"riie top and all entrances between the top and bottom of every working or ]mmping shaft shall be properly fenced, but this shall not be taken to forbid the temporary removal of the fence for the ])urpose of repairs or other operations, if proper precautions are used. 1). " Wliere the natural strata are not safe, every working or pumping shaft, adit, tunnel, drive, roadway or other workings shall be securely cased, lined or timbered, or otherwise nuide secure. 10. Every mine shall be provided with proper and sulficient machinery and ai)pliances for keeping such mine free from water, the aciumulation or flowing of which might injuriously alTect any other mine. 11. Where one portion of a shaft is used for the ascent and de- scent of persons by ladders or by a man engine, and another ])ortion of the same shaft is used for raising the material being mined, the first mentioned portion shall be cased or otherwise securely fenced of! from the last mentioned portion. 13. ^^ Every working shaft in which persons are raised which exceeds fifty yards in depth, shall, unless exempted in writing I)y the luRiicotor, be provided with guides and some proper means of enni- municating by distinct and definite signals from the bottom of the shaft, and from every entrance for the time being in work between the surface and the bottom of the shaft, to the surface, and also of •Mill.' 308 ONTARIO communicating from the surface to the bottom of the shaft, and to every entrance for the time being in worlc between the surface and the bottom of the shaft. 13. ^* A sufficient cover overhead shall be used when lowering or raising persons in every working shaft, excei)t where it is worlanl by a wiudhiss, or whore the jjorson is employed about the pump or some work of re])air in the shaft, or where a written exemption is given by the Inspector. 11. '- A single linked chain shall not be used for lowering or raising persons in any working shaft or plane except for the short cou])liiig chain attached to the cage or load. 15. '* There shall be on the drum of every machine used for lowering or raising persons such llanges or horns, and also, if the drnni is conical, such other appliances as may be suilicient to preve?it the rope from slipping. 16. ^* There shall l)e attached to every machine worked by steam, water or other mechanical power, and used for lowering or raising persons, an adequate brake, and also a proper indicator (in addition to any mark on the rope) which will show to the person who works the machine the position of the cage or load in the shaft. 17. A ])roper footway or ladder, inclined at the most convenient angle Avhich the space in which the ladder is fixed allows, shall be provided in every working shaft where no machinery is used for rais- ing or lowering ])ersons; and every such ladder shall have substantial I)lat forms ut intervals of not more than forty feet, and no such ladder shall be li.xed for permanent use in a vertical or overhanging position unless in shafts used exclusively for pumping. In every mine in which vertical or overhanging ladders shall be in use in the shaft at the time these rules were first applied to it, such ladders may bo retained if securely fixed platforms are constructed at intervals of not more than 30 feet from each otlier, and such ladders have suili- cient spaces for footholds of not less than six inches. 18. If more than twelve persons are ordinarily employed in the mine below ground, sufficient accommodation shall be provided above ground near the ])rincipal entrance of the mine, and not in the engine house or boiler house, for enalding the persons employed in the mine to conveniently dry and change their clothes. If). '■'^ Every fly-wheel and all exposed and dangerous parts of the machinery used in or about the mine shall be and be kept securely fenced. THE MiyEH ACT 300 20, '" Kvory steam IxVilcr sliall l)e |)rovi(lo(l with a proper steam gauge niul water gauge, to sliow respectively the pressure of steam and the height of water in the holler, and with a proper safety valve. 21, ^^ No person shall wilfully dauuige, or without proper au- thority remove or render useless, any fencing, casing, lining, guide, means of signalling, sigiud, cover, chain, llange, horn, hrako, indica- tor, ladder, platform, steam-gauge, water-gauge, safety-valve, or other appliance or thing provided in any mine in compliance with this Act. ' See Imp. Act, 50 & 51 Vict. c. 58. s. 49, Rule 12; 55 Vict. (0.) c, 9, a. 74 (1, 2). ' 57 Vict. c. 16, 8. 10. part. 'See Imp. Act. 50 & 51 Vict. c. 58, s. 49, Rule 14; 55 Vict, (0.) c. 9, 8. 74 (3). ' See Imp. Act, 50 & 51 Vict. c. 58, s. 49, Rule 15; 55 Vict. c. 9, s. 74 (4); 60 Vict. (O.) c. 8, 8. 28. part. ■ See Imp. Act. 50 & 51 Vict. c. 58. s. 49, Rule 16; 55 Vict (O.) c. 9, s. 74 (5); 60 Vict. (O.) c. 8. s. 28. part. ° Evans v. Mostyn, (1877) 2 C. P. D. 547, wa8 a decision upon Boctlon 13 of the " Metalliferous Mines Hi'guiation Act, 1872," 35-36 Vict. c. 77. It enacts that whert> a mine to which the Act applies is abandoned, or the working thereof is discontinued, the owner thereof and every other person Interested in the minerals of the mine shall cause the top of the shaft to be securely fenced for the prevention of iiccidents, provided that, subject to any contract to the contrary, the owner of the mine shall as between him and any other person Interested in the minerals of the mine, be liable to carry into effect this section. Ky the interpretation clnuse, se - tlon 41, "owner" means any person who is the proprietor, lessee or occupier of any mine, and does not include a person who merely receives a royalty, rent or fine from a mine, or Is simply the proprietor of a mine subject to any lease, grant or license fur the working thereof, or is merely owner of the soil, and not interested in the minerals of the mine. The respondents, who were owners in fee of mines and minerals, demised an old mine, part of the estate, for a term of years, subject to a rent or royalty, such royalties to be paid upon the place where the ore should have been gotten or weighed, and befon> It should be taken awiiy. The lease iilso reserving to the respondents power of re-entry if the royalty should be in arrear. The lessees ceased working the mine, and left It. and allowed It to remain insufllciently fenced. It was Hold, that although the lease was still in force and mdetermined, the respon- dents were guilty of an olTence under section 13, as persons interested in the minerals of the mine. 'See Imp. Act, 50 & 51 Vict. c. 58. s. 49, Rules 18 and 19; 55 Vict. c. 9, s. 74 (6); 60 Vict. c. 8, s. 28, part. Apart from statutory enactment, it was held in Williams v. Groucott, 1863, 4 B. & S. 149, that a person entitled to the minerals under ~ '»« liilllii ^, ^>. ^. IMAGE EVALUATION TEST TARGET (MT-3) .■^4 fe 1.0 I.I ^ y£ 12.0 12.2 m I |l.25|l.4||,.6 ■•' ■' "■" < 6" ► 7 v; Photographic Sciences Corporation 23 WIST MAIN STMIT WnSTCR.N.Y. MSM ( 71* ) •73-4903 ^^ Is 4 V 310 ONTARIO the land of another, with license to make a mine-shaft opening into it, is, in the absence of any stipulation to the contrary, under a legal obliga- tion to the owner of the surface soil to fence the shaft flo as to prevent its being a source of danger to his cattle which may be upon it, and is liable to an action for injury accruing to those cattle for want of such fencing. » 1890, c. 10, 8. 23, Rule 7, the same as 1897, R. S. O. c. 36, s. 69, Rule 8; see Imp. Act, 50 & 51 Vict. c. 58, s. 49, Rule 19. " Ditto, Rule 20. "Ditto, Rule 25. ■ . " Ditto, Rule 27. "Ditto, Rule 28. " Ditto. Rule 29. • I " Ditto, Rule 30. " Ditto, Rule 31. " Ditto, Rule 32. " Ditto, Rule 35; see 55 Vict. (0.) c. 9, s. 74 (7-20). 70. In any of the following cases, namely: . , , 1. Where any working is commenced for the purpose of opening a new shaft for any mine to which this part applies; 2. AVhere a shaft of any mine to which this part applies is aban- doned, or the working thereof discontinued ; 3. Where the working of a f-haft of any mine to which this part applies is recommenced after an abandonment or diecon- tinuance for a period exceeding two months; or 4. Where any change occurs in the name of a mine, or in the name oi the owner or agent of a mine to which this part applies, or in the officers of any incorporated company which is the owner of a mine to which this part applies; The owner or agent of such mine shall give notice thereof to the Inspector within two months after such commencement, abandon- ment, discontinuance, recommencement or change, and if such no- tice is not given the owner or agent shall be guilty of an offence against this Act.* • 55 Vict. c. 9, s. 62; 59 Vict. c. 13, s. 4. , NOTICE OF ACCIDENTS. Tl. MVhere in or about any mine to which this Act applies whether above or below grounl, either 1. Loss of life or any personal injury to any person employed in or about the mine occurs by reason of any explosion of gas, > powder or of any steam boiler; or THE MI2fES ACT 311 2. Loss of life or any serious personal injury to any person em- ployed in or about the mine occurs by reason of any acci- dent whatever, the owner or agent of the mine shall witliin twenty-four hours next after the explosion or accident send notice in writing of the explosion or accident and of the loss of life, or personal injury occasioned tlicrcby to the Director of the Bureau of Mines, and shall specify in such notice the character of the explosion or accident and the number of persons killed and injured respectively. (2) Where any jiersonal injury, of which notice is required to be sent under tliis section, results in the death of the person injured, notice in writing of the death shall be sent to the Inspector within twenty-four hours after such death comes to the knowledge of the owner or agent. Every owner or agent who fails to act in compliance with this section shall be guilty of an offence against this Act.^ ' Imp Act. 50-51 Vict. c. 58, s. 35. ' 55 \ ict. c. 9. s. 61. T2. The Commissioner of Crown Lands may at any time direct an Inspector to make a special report with respect to any accident in a mine to which this Act applies, which accident has caused loss of life or personal injury to any person, and in such case shall cause such report to be made public at such time and in such manner as he thinks expedient; and in conducting an enquiry into the cause of loss of life or of personal inju; y to any person in or about a mine, the Inspector shall have power to take evidence upon oath.^ • 55 Vict. c. 9, s. 67, part; 57 Vict. c. 16, s. 8. i !■ 3,1 i I PAET v.— OFFENCES AND PENALTIES. "73. Any person who removes, or disturbs with intent to remove, any stake, picket or other mark placed under the provisions of this Act, shall forfeit and pay a sum not exceeding $20 and costs; and in default of payment of the fine and costs, may be imprisoned for any ])eriod not exceeding one month.' > 1868-9, c. 34, B. 32; 55 Vict. c. 9, s. 45. "74. Every person contravening Part III. of this Act or any rule or regulation made under it, in any case where no other penalty or punishment is imposed, shall, for every day on which such contra- vention occurs, or continues, or is repeated, incur a fine of not more ' iif I vA i I 312 ONTARIO than $20 and costs; and, in defaidt of payment of the fine and costs, such person may be imprisoned for a period not exceeding one month.* • Derived from 27 and 28 Vict. c. 9, s. 36, with which it is identical; 55 Vict. c. 9, s. 48. T5. Every person who pnlls down, injures or defaces any rules, notice or abstract posted up by the owner or agent shall be guilty of an offence against this Act.* ' First appears in 33 Vict. c. 10, s. 25; 55 Vict. c. 9, s. 75. •76. Every person who wilfully obstructs an Inspector in the execution of his duty under this Act, and every owner or agent of a mine who refuses or neglects to furnish to the Inspector the means necessary for making any entry, inspection, examination or enquiry under this Act in relation to such mine, shall be guilty of an offence against this Act.* ' First appears in 53 Vict. c. 10, s. 15 (4); 55 Vict. c. 9, s. 65 (2). TT. Where work of any sort in or about a mine is let to a con- tractor, he shall observe and carry out all the provisions of Part IV. for the prevention of accidents, and if he contravenes any of such provisions he shall be guilty of an offence against this Act and shall be liable to the same penalties and may be proceeded against in the same way and to the same extent and effect as if he were an owner or agent.* ' Derived from 53 Vict. c. 10, s. 18, from which it is not materiilly different; re-enacted in 1892 by 55 Vict. c. 9, s. 69; amended in 1894 by 57 Vict. c. 16, 8. 9, and in 1897 by 60 Vict. c. 8, s. 27; amending 1892, c. 9, s. 65; R. S. O., 1897, c. 36, s. 77, is nearly identical with the section as amended in 1894, c. 16, s. 9. T8. Every person who contravenes or does not comply with any of the general rules contained in section G9 shall be guilty of an offence against this Act, and in the event of any contravention of or non-compliance with any of the said general rules in the case of any mine to which this Act applies by any person whomsoever being jiroved, the owner and agent of such mine, and any contractor and foreman employed in or about such mine, shall each be guilty of an offence against this Act unless such contractor or foreman proves that he had taken all reasonable means to prevent such contravention or non-compliance by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine.* ' Derived from 55 Vict. c. 9, s. 74, Rule 21, which omits after the word "mine" in 6th line the words, "and any contractor and fore- THE MiyES ACT 313 man employed in or about such mine" (which were added in 1894 by 57 Vict. c. 16, s. 10), and omits at beginning of 8th line the words, " such contractor or foreman," containing instead the word " he." TO. Every person other than the <3wner or agent employed in oi about a mine, wlio is guilty of any act or omission which in the case of the owner or agent would be an offence against """art IV. shall be deemed to be guilty of an offence against the said i^^rt.^ •Derived from 53 Vict. c. 10, s. 18, part, which pads, "this Act" for " Part IV." on 4th line, and " this Act " for " the said part " on line 5; 55 Vict. c. 9, s. 69, reads "this part" for "Part IV." on line four; and " this Act " for " the said part " on line five, 50. Every owner or agent guilty of an offence against Part IV. shall be liable to a penalty not exceeding, except as in this section hereinafter provided, fifty dollars, and any other person guilty of an offence against Part IV. aforesaid shall be liable to a penalty not exceeding, except as in this section hereinafter provided, ten dollars: Provided that if the Director of the Bureau of Mines or an Inspector has given written notice of any such offence having been committed, every such owner, agent or other person shall be liable to a further penalty not exceeding five dollars for every day that such offence continues after such notice.^ 'Practically identical with 53 Vict. c. 10, s. 18, part; varied slightly and consolidated in 1892 by 55 Vict. c. 9, s. 69; amended in 1896 by 59 Vict. c. 13, s. 5, by inserting after the word " if " on sixth line the words " Th© Director of the Bureau of Mines or." 51. Xo prosecution shall be instituted against the owner or agent of a mine to which this part applies for any offence under this Act except by an Inspector, or by the County or District Crown Attorney, or with the consent in writing of the Attornej'-General; and in case the owner or agent of a mine is charged with an offence under this Act he shall not be found guilty thereof if he proves that he had taken all reasonable means to prevent the commission thereof, and an Inspector shall not institute any prosecution against an owner or agent if satisfied that he had taken such reasonable means as afore- said.^ ' Derived from 53 Vict. c. 10, s. 20, which omits from third line " or by"; from fourth line "Crown," and from fifth, sixth and seventh lines, " case tha owner or agent of a mine is charged with an offence undef this Act he shall not be found guilty thereof," substituting therefor in the case of this list omission the words, "the case of any offence of which the owner or agent of a mine is not guilty "; omitting also " and " from eighth line, and "an" from ninth line; and in the case of this last omission substituting the word " such "; 55 Vict. c. 9, s. 71. m 1 1 1 1 314 ONTA mo 82, Every Inspector for a mining division may convict iiiion view of any of the oitences punishable imder the provisions of Part ]n. of this Act or any regulations made under it.* > Derived from 27 & 28 Vict. c. 9, s. 37, which provided that a Gold Minlngi Inspector might convict on view; amended In 1868-9 by 32 Vict. c. 34, s. 37, to read, " Any inspector for a mining division may con- vict upon view of any of the offences punishable under the provisions of this Act, or regulations made under It"; and in 1892 by 55 Vict. c. 9, s. 49, " every inspector " may " under the provisions of this part of this Act." 88. All prosecutions for the punishment of any offence under this Act except under section 18 may take place before any two or more of Her Majesty's Justices of the Peace having jurisdiction in the county or district in which the offence is committed, or before a Police or Stipendiary Magistrate, or before an Inspector of the mining division under the provisions of * " The Ontario Summary Convictions Act." =* ' R. S. O. (1897) c. 90. - Derived from 53 Vict. c. 10, s. 22, which omits on second line, " ex- cept under section 17," and follows the same language down to word "magistrate," on line five; 55 Vict. c. 9, ss. 52, 73; 60 Vict. c. 8, s. 21. 84. Any complaint or iiiformation made or laid in pursuance of this Act shall be made or laid within three months from the time when the matter of such complaint or information respectively arose, and 1. The description of any offence under this Act in the words of this Act shall be sufficient in law. 2. Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived no proof in relation to the matter so s])ecified or negatived shall be required on the part of the prosecutor or informant.* ' Derived from 53 Vict. c. 10, s. 19, and s.-ss. 1 and 2, with which it Is identical, omitting the words "prosecutor or" on last line of s.-s. 2; 55 Vict. c. 9, s. 70. 85. Xothing in this Act shall prevent any person from being in- dicted or liable under any other Act or otherwise to any other or higher penalty or punishment than is provided for any offence by THE MINES ACT 315 this Act, provided that he shall not be punished twice for the same offence.^ ' Derived from 53 Vict. c. 10, s. 21, s.-s. 1, which read on line four, after the word " Act," the words " so that no person," instead of the words " provided that he shall not "; 55 Vict. c. 9, s. 72 (1). SO. If the CoiiTt before whom a person is charged with an oiTence under this Act thinks that proceedings ought to be taken against such person for such offence under any other Act or otherwise, the Court may adjourn the case to enable such proceedings to 1 taken.^ ' Derived from 1890, c. 10, s. 21 (2), with which it Is identical; 55 Vict, c. 9, s. 72 (2). 8T. Fees, penalties and fines received under this Act, and the costs of all such convictions as take pkoe before any Inspector or magistrate appointed under this Act, shall Torm part of the Consoli- dated Revenue Fund of this Province, and be accounted for and dealt with accordingly; and the expenses of carrying this Act into elTect in any mining division shall be paid by the Lieutenant-Governor out of the said Consolidated Revenue Fund.^ ' Derived from 27 and 28 Vict. c. 9, s. 39, which It closely resembles; 55 Vict. c. 9, s. 51. CHAPTER XV. QUEBEC. Introductory. The law of this Province with regard to mining and to minerals is almost entirely statutory. Mining Acts now Consolidated. The previous statutes have been amended and consolidated by the Act of 1892,^ cited as tlie " Quebec Mining Law." * This Act now comprises Articles 1421-15S3 of the Eevised Statutes of the Province of Quebec. With all orders in council or regulations made by the Lieutenant-Governor in Council, in virtue of the powers conferred by Art. 1580, the Act forms a min- ing code for the Province. ' 55-56 Vict. c. 20. 'Art. 1421. l.The Acts in force prior to 1893, and the mining regulations thereunder, were repealed by the Act of 1892. From information supplied by the Department it appears that no general regulations under the Act of 1898 have been issued. There is no special treatise on the mining law of Quebec except a hrocliure by Mr. Adolphus M. Hart, entitled " Practical Suggestions on Mining liights and Privileges in Canada." (Montreal, 18C7). Statutes Based on Old French Law. The leading rules of the " Quebec Mining Law," and of the previous statutes which it consoli- dates, are mainly derived from the French law. It will be convenient to give a brief sketch of the earlier history of the law. History of the Law— Roman Law. In the Roman law, under the Republic and the earlier Emperors, the proprietor of the surface was proprietor also of the mines. The minerals were looked upon as fruits.3 ' See Dig. 7, 1, 9, 3; 7, 1, 13, 5; 24, 3, 7, 14; 27, 9, 3, 6. Many mines belonged to the state, and were worked by criminals, the damnati in metalla, or servi poenae. But these were in public ROMAX LAW 31? Iniuls. lu the later IJonian law, the famous maxim cujus est solum ejus est usque ad caelum et deiiide usque ad inferos was no longer strictly true of minerals helow the surface. It is unnecessary to dis- cuss the precise view which was taken of the right of property in the minerals. But it is clear that the state had assumed the general ad- ministration of all mines within the empire. The charge over them was entrusted to an official known as the comes metallorum, who acted through officers or collectors called procuratores metallorum. From the constitution of the Emperors Gratian, Valentinian, and Theodosius of A.D. 383,* it appears that the system of " free mining " then prevailed. Any ])erson might open and work a mine either in his own land or in the land of another. If the surface was his own he was bound to give to the fisc, or state treasury, one- tenth of the proceeds of the mine. If the surface belonged to another, the miner was bound to give one-tenth to the fisc, and one-tenth to the owner of the surface, retaining the remaining four-fifths of the proceeds for himself. The state, however, would not authorize the working of a mine in land not belonging to the miner if danger was caused thereby to the foundations of buildings.'^ *Code, n, 6, 3. 'C. 11, 6, De Metallariis; see per Caron, J., In Reg. v. De L6ry, 9 Q. L. R., at p. 231; Serrigny, Droit Public Remain, V. 2, s. 875; Merlin, Questions de Droit, Mines, s. 1; Bainbridge, Mines and Minerals, 4th ed., 112. Old French Law. These rules of the later lloman law were in operation in Gaul at the time of the disruption of the Koman Empire, and there seems little reason to doubt that they were retained by the Gauls. From the earliest records which have been preserved, it is clear that mines were subject to special legislation in the interest of the state, and that the King asserted and vindicated a claim to one- tenth of the proceeds of all mines. The Ordinances, etc., of the French Kings on the subject have been collected and annotated by M. Lamd Fleury in his work " De la Legislation Min^ralc sous I'ancienne ^[onarchie."" The history is well given by !M. A. Chevallier, " La Propriety des Mines," and by M. F. Nandier, " Traitd des Mines." ^ The latter work contains ' a bibliography of the French treatises on mining law. • Paris, 1857. 'Paris, 1877. 'At p. 665. So far as the old French law is of importance as bearing on the law of Quebec, it was carefully reviewed by Caron, J., in Reg. v. De i 318 QUEBEC L(''ry," and by Ilainsny, J., in giving the jiulginent of the Court of Queen's Ik'ncii, disinissing the appeal from C'aron, J.*" •9 Q. L. R. 225. >"a883) 6 L. N. 402. j\r. Lame Meury divides the French law before the Revolution into three periods: — 1. Period of Free Mining. 1413-1548. This iw the period of " free mining " as taken from the Homan system. The Ordinance of Charles VI. of 30th IMay, 1413, registered in the Chambro des Comptes de Paris, and tliereforc forming part of the laws of the Pro- vince of (Quebec, shows that the King claimed one-tenth of tiie pro- ceeds of all mines. Anyone is i)ermitted to open a mine on his own land, or on the land of anotlier, subject to payment to the King of one-tenth, and to payment of indemnity to the owner of the surface if it does not belong to the miner. It appears that the seigneurs had maintained that tliey were also entitled to one-tenth. This claim was cxpres^sly overruled by the Ordinance of 1413. " Nul seigneur n'a, naura, ne doit avoir, . . . la dixieme parlie, ni autre droit de mine " 1 ' See In Lam6 Fleury, p. 5. 2. Period of Concession of all Mines to One Person. 1548-1591'. This is the period of concessions to one individual of all the mines in the Kingdom. The concession is based upon public policy, and to stimulate mining. The concessionaire may open a mine in any man's land, subject to payment of an indemnity. The King is to receive his tenth, and, rather inconsistently with the legislation of the first period, the seigneur is to get a fortieth. ^ • See the ordonnance of Henri II. In favour of de Roberval, 30th September, 1548, and the letters patent of 1552, Ini LnmC Fleury, p. 41. 3. Period of Vacillation. Pre-emption given to owner of soil. 1597-1791. This is a period of legislation of a somewhat varying kind. On the whole, in the words of Eamsay, J., " it is in some sort a return to the earlier ])lan of throwing the right to mine open to all persons, but to subject its exercise to the most rigorous control so as to ensure the Crown's revenue. This policy remained unchanged till Canada passed away from the King of France." ^ It is in this period also that the state begins to recognize a right in the ownejr' of the surface to acquire, if he chooses, the mining rights in prefer- ence to any third iierson.* In 1723 Louis XV. promulgated an edict establishing a com])any to work all the mines in the Kingdom. The • R. V. De Lfry, 6 L. N. at p. 407. • See the Edict of Henri IV., June, 1601, Lam6 Fleury, p. 74. OLD FIit:SCU LAW 31U Iv- lot ho proprietor's rij^ht of pre-emption again disappears. This ediet seems not to have been registered in I'aris.^ It was the hnv in France until ITHi). After 17(13, the date of the cession cf tlie I'rovince, the French legislation does not all'eet us. J5ut it '* e said in a w^nl that it is to be found in the law of iJlst of April, 1810, and the law of the 27tli July, 1880. Tiie King's right to control niinco and to levy a tithe of the proceeds was thus admitted in France from an early time. ]iut the exact nature of the right of the Crown in the minerals was, in the l-'rench law, not free from dilliculty. ° Lam6 Fleury, p. 95. "It was much discussed in the Assendjlt'^c Xationale in 17!) I. Every conceivable view as to the ownership of minerals was there urged. 1. That they are res nullius and belong to the first occui)ant. 2. That they are piirles soli and belong to the owner of the soil. 3. That they are part of the royal prerogative, and belong to the state. The law of 28th July, 171)1, cut the (lordian knot by sayinit that the state had tlie control of mines, " Les mines sont a la disposi- tion de hi nation." ' " See the argument in Merlin, Questions de Droit, Mines, s. 1. 'See an account of these debates in Chevallier La ProprletS des Mines, pp. 9, 26, and Naudier, Trait6 des Mines, p. 37. Perhaps the sound view is that as to tlie property, a distinction was drawn l)etween gold and silver on the one hand, and the baser metals on the other. It is said: * " Mines of gold and silver belong to the King, other mines belong to the proprietor of the surface, but the King is entitled to his tenth of the yield." ° " In Laurl6r6's edition of Loysel. "Liv. II., Tit. 2, reg. 13; see Dalloz, Mines, No. 9; Cf. in the English law, Att.-Gcn. of Brit. Columb. v. Att. Gen. of Canada, (1889) 14 Appeal Cases, 295; and see in Scotland, Earl of Breadalbane v. Jamieson, (1875) Court of Sess. Cases, 4th series, 2, 826. In Canada, the commission of 1654 by the King in favour of Nicholas Denys to be Governor and Lieutenant-General in Canada directed him to search diligently for mines and to put them to use. The Crown of France reserved the tenth part of the profit of all gold and silver mines, and as to other mines the Governor was directed t(j take " what might belong to the Crown of the right thereto," i" to defray the expenses of government.^ "" Ce qui pourralt nous en appartenir." . . • Edits et Ordonnances, Vol. III., p. 18. The extent of the mineral wealth of Canada was not nt all realized in the 17th century. This is shewn very clearly by the fact ■,^-rv 380 QUEBEC that, by an nrr6t of 8th June, 1677, die King made a present for twenty years to Joan Ikptiste do Lagny dca Jiriguiidu'ni's of all the mines in Canada.- JUit the question as to the nature of the King'ri light according to the old law of France is really academic. It is beyond dispute that the Kings of France had the right to make laws regulating all mines, and to exact one-tenth of the yield. It is fur- ther clear that the King had the power to dispose as he pleased of all mines ungranted. And, as regards this IVovince, it is settled^ 1. That without special words the .right to gold and silver mines did not pass to a grantee of lands from the Crown, but remained in the Hovereign. 2. That the King of England at the cession in 17(53 suc- ccedtd to the rights of the French Crown over minerals. And by Art. 1-423 of the Mining Law, 189:3, the Crown's right h\ all minerals which ha,e not been expressly conceded is declared ; be a right of property. » Ibid., Vol. II., p. 83. » Reg. V. De L6ry, (1883) 6 L. N. 402. It was pointed out in R. v. DeLdry •• that, although the King of England had succeiKled to all the rights in minerals in Canada which had been vested in the Crown of France, the dilference in the con- stitutional powers of the sovereign in the two countries would alTect their future exer>.is3. The King of France, as, practically speaking, an absolute monarch, had the power to revoke a j^rant of minerals actually made. After the cession no such ])ower could be exercised by the Crowii of England, because to do so would be tt; infringe upon the sole right of Parliament to legislate. * Supra. Analysis of Act of 1892. The main provisions of the law as now consolidated are: — 1. That all mining rights in land in the Province of Quebec belong to the Crown unless the Crown has been validly divested of them. " Mining rights " is a wide term, and includes all quarries of stone, and all rocks or soil in which arc found " any mineral substance having an appreciable value." * "Art. 1421, s. 2. 2. The Crown is not so divested by a grant of lands for agricul- tural purpose, which is silent as to the mining rights. 3. If the mining rights and the property come into the hands of the same person, the two properties become one by confusion." •Art. 1423. Ay.lLYSIS OF ACT 331 4. The t'DiifiiKiou is iraolvcd nud tlio two propertios I)t'come dis- tinct by a snlo, loaac or Iiypothccation of cither separately. 5. But this cannot jtrcjiidice the rij^hts acquired by any creditor in the whole properly during the conl'usion.' 'Art. 1424. (i. A person who acijuircd land by letters patent previous to '•ilth July, 1880, with reservation of the mining rights, cannot work any mine without uurchasing the mining rights.** • Art. 1425. 7. If he acqnired in this way jtrevious to 2-lth July, 18S0, withonl any lesorvatiim, lie may work mines other than gold or silver mines without such purchase," •Art. 1426. 8. If he acquired in this way since 2-lth July, ISSO, although there was no express reservation, he cannot work any mine without such purchase.*" ■"Art. 1427. 1). In seigniories in which the Crown holds the mining rights a ceiisilairc has a reduction of oO cent in acre if he purchases the mining rights in at least one hundred aires.* ' Art. 1428. A seignior can purchase mining rights over the mIioIo seigniory, but not over a less extent. But neither he nor the censitaire can acquire more than the niaximnm amount which may lie granted to any person, viz., 400 acres, or 1,000 acrci by special authority of the Lieutenant-fJovernor.2 = Art. 1428. 10. As to phosphate of lime, it cannot be worked without pur- chase by any grantee who acquired from the Crown on the usual terms after 9th INFarch, 1878.3 'Art. 1429. 11. The foregoing rules apidy to grantees under gratuitous title and to settlers under location ticket after 24th July, 1880.* * Arts. 1430, 1432. 18. One who has purchased the right to mine for inferior metals, cannot mine for the superior metals without paying the additional price." "Art. 1431. 21— M ;:1., !^'! h W ^Sf^SBKaBWiyijaimi,.!. 322 QUEBEC 1 ,1 13. The price may be increased by a regulation of the Governor- General, and a royalty may be claimed upon lands which have not be"n alienated by the Crown more than five years." "Arts. 1434, 1435. 14. The propiietor of the soil has a preferential right to pur- chase the mining rights.^ 'Art, 1441. 15. If he chooses to mine his lands, subject to tlic conditions before given, and to take out a license, no one felse can purchase the mining rights from the Crown.® 'Art. 1469. Ifi. On his refusal, another person may purchase the mining rights or obtain a mining license, and work the mines. In that case, the owner of the soil will receive compensation as fixed by arbitra- tion." "Arts. 1466-1490. 17. Without purchase of the mining rights, a person may obtain a mining license.^" "Art. 1458. 18. Arts. 143G-1439 deal with the form of mining concessions. 19. Arts. 1440-1451 with their price, mode of purchase, right to alienate, reserve of timber and right of the commissioner to cancel a sale by the Crown if the conditions as to effective working are not complied with. 20. Arts. 1452-1457 deal with exploration and prospecting licenses. 21. Arts. 1461-1465 with the form and duration of licenses and the powers of licensees. 22. The rest of the Act is machinery for carrying it out, powers of insjicction, provisions for protection of workmen, penalties for offences against the Act, necessity of license for quartz crushers other than those worked by hand, provision as to party Avails, water-courfies, powers of Lieutenant-Governor to make regulations, and miscellane- ous provisions as to details. i MIXINa LAW 823 "QUEBEC MINING LAW." Bevised Statutes of Quebec, Chapter XX. An Act to amend and consolidate the Mining Law. Assented to 24th June, 1892. HER ^IAJP:STY, by and with the advice and consent of the Legislature of Quebec, enacts as follows: 1. Section ninth of chapter sixth of title fourth of the Re>ised Statutes of tin Province of Quebec, as replaced by the Act 54 Vic- toria, chapter 15, is again replaced so as to read as follows: SECTION IX, MINES. § 1. — Declaratory and Interpretative. " 1421. In the construction and application of this section, which may be cited as the " Quebec Mining Law," ^ and of all orders in council or regulations under it, if net inconsistent with the con- text or subject matter, the following terns have the respective mean- ings hereby assigned to them, that is to say: ^ This Act is similar in its leading provisions to the French Mining Act of 1810. 1. The words " to mine " and " mining " mean and designate any mode or method of working whatsoever, whereby the soil or earth, or any rock or stone may be disturbed, removed, carted, carried, washed, sifted, smelted, refined, crushed, or otherwise dealt with. Cor tlie purpose of obtaining any minerals; 2. The words " mines " and " minerals ■" mean and include all quarries of stone of whatever kind, and all stones or rocks, earth or soil, whether alluvial or not, in which are found gold, silver, copper, phosphate of lime, asbestos, or any mineral substance having an ap- ])reciablc value; This no doubt includeH coal. Rut, it is believed, no coal is being worked in the Province. It does not include bits of gold found in rivers or strewed about on land. This ib not " treasure " in the sense of Art. 586 of tlie Civil Code, because it is not a thing which has been buri; a or iiid- den by a former owner. It never had nn owner. By old French law it it was called "or en pnillole," and was said to come like manna and by ', t I i( 334 QUEBEC the grace of God, " par forme de manne et grace de Dieu." It was always treated as the property of the finder. Lam6 Fleury, p. 116; R. v. DeL6ry, (1883) 6 L. N. at p. 404. 3. The words " mining division " mean and designate any tract of country erected into a " mining division " under this law; 4. The words " public lands " or " Crown Lands " mean and designate all Crown Lands or Ordinance Lands transferred to the Province, Clergy lands or lands of the Jesuits' Estates, Crown Do- main or Seigniory of Lauzon, which have not been alienated by the Crown; 5. The words " private lands " designate all lands conceded or otherwise alienated by the Crown, other than mining concessions or lands conceded by the Crown as such, or which shall be hereafter conceded; 6. The words " private person " mean any person who possesses a lot of land, as proprietor or usufructuary, upon which mines or min- erals exist or are supposed to exist; 7. The word " licensee " designates any person, firm or company, who may have obtained a license under the present law; 8. The words " party wall or passage " designate a bank of earth or rock left between two excavations; 9. The words " mill or machine license " mean a permit to use machinery for the purpose of extracting or preparing minerals; 10. The words " licensed mills or machines " designate tlie mills or machines so licensed for extracting gold or silver from stone or quartz; and the words " licensed mill or machine owner " designate the person to whom any such license has been granted; 11. The words "superior metals" include the ores of gold, sil- ver, lead, copper, nickel, and also graphite, asbestos, mica, and phos- phate of lime; and the words " inferior metals " mean and include all the minerals and ores which are not included in the preceding definition and which are of appreciable value; 12. The words " mining concession " mean any tract of country sold for the purpose of mining; 13. The words " underground mining concession " mean any un- derground mining property sold for the purpose of mining under the present law; II MINING LA^/ 14, The word " Commissioner," when used alone, means the Commissioner of Crown Lands; 15. All measurements and distances under this section are made and taken to be according to English measurement. 43-±4 Vict. c. 12, ss. 1 and 164; 51-53 Vict. c. 15, s. 9, and R. S. Q. 1431. § 3. — Privileges and Aliens and Eeserve of Mini7ig Rights. " 1433. Aliens, as well as British subjects, may enjoy the bene» fit of this law, by complying with its provisions and submitting there- to. 43-44 Vict. c. 13, s. 3, and E. S. Q. 1423. " 1433. It shall not be necessary, in any letters-patent foT lands granted for agricultural purpose, to mention the reserve of nining rights, which reserve is always considered as existing xinder the pro- visions of this law. As respects the Crown, such mining rights, so tacitly reserved, shall be property separate from the soil covering such mines and min- erals comprised in such rights, and shall constitute a property under the soil which shall also be public property independent from that of the soil which is above it, unless the proprietor of the surface or su- perficial property have purchased it from the Crown as a mining con- cession or otherwise, in \\hich case the properties, superficial and underground, constitute only one private pro])erty. 43-44 Vict. c. 13, s. 3; 47 Vict c. 33, s. 1, and R. S. Q. 1433 and 1424. Article 414 of the Civil Code of Lower Canada provides, " ownership of the soil carries with it ownership of what is above and what is below it." But the right of the proprietor to make excavations below the soil, and to draw from them any products they may yield is declared to bs " saving the modifications resulting from the laws and regulations relating to mines, and the laws and regulations of police." See Stevenson v. Wallingford, (1894) R. J. Q. 6 C. S. 183. The principle underlying the provision of the legislation, that the Crown in making a grant of lands for agricultural purposes is not to be understood to br conveying the minerals, is that given by Domat (t. 1, ch. xxii., li/re il., s. 2, No. 19), for the same rule of the old French law. It is for the public interest that the sovereign Ehould have in mines and minerals a right independent of that of the owners of the surface. Further, as to past grants, one may reasonably say that the right of the grantees was in its origin limited to making use of their lands for sowing, planting, or building upon them, or for other similar purposes, and that their titles did not imply a right to mines which were unknown, and of which the use is destined by nature to the public, from the need which the state may have for metals and other special subsiuiicea extracted from mines. " La necessitfi des m4taux, non n-1 w |, P iH 1 isHiir )' 1'! Ibn 326 QUEBEC seulement pour lea monnnies, pour I'usnge des armes, et cclul de rartlllerie, mais pour une infinite d'autres besolns et commodlt^s, dont plusleurs regnrdent I'lnterfit public, rend ces mati6res et celle des autres m^taux si utiles et si n6cessaires dans un ctat, qu'il est de I'ordre de la police que le souverain ait sur les mines de ces matiSres un droit ind6- pendant de celui des proprifitaires des lieux od el les se trouvent, et d'alUeurs ou pent dire qu« leur droit dnns son orlglne a 6t6 bomfi & I'usage de leurs heritages pour y semer, planter, ou bfttir, ou pour d'nutres semblables usages, et que lours titres n'ont pas supposfi un droit Bur les mines qui etaient inconnues, et dont la nature destine I'usage au public, par le besoin que peut avoir un 6tat des m6taux et autres mati&rec, singulidres qu'on tire des mines. Ainsi les lois ont r6gl6 I'usage des mines, et laissant aux propri6taires du fonds ce qui a paru juste, elles en ont aussi regl6 un droit pour le souverain. (Cited by Caron. J., in Reg. v. De L6ry, 9 Q. L. R. at p. 233, where see other authorities to the same effect. See for a similar doctrine in English law Att.-Gen. of Brit. Columbia v. Att.-Gen. of Canada, (1889) 14 Appeal Cases, 295, and in Scotland Bread- albane v. Jamieson, (1875) Court of Sess. Cases, 4th series. Vol. II., p. 826. The mining rights so tacitly reserved remain vested in the Crown as a separate property. They may, however, be acquired by the owner of the surface from the Commissioner of Crown Lands as a mining concession. In this case the two properties, superficial and underground, will become one by confusion, or they may be occupied and worked under a mining license. (Art. 1440, 1469). And the proprietor of the surface has a pre- ferential right or right of pre-emption in the mining rights under his lands. (Arts. 1440, 1441). If he desires to purchase them as a mining con- cession, or to work them under a mining license, he can exclude any other person. (Arts. 1441, 1469). This places a proprietor of the soil under whose lands there are minerals still vested in the Crown in a more favoured position than one und€r whose lands the minerals are vested in a private owner. For in the latter case the proprietor of the surface has no preferential right to purchase the minerals. It has accordingly been held that a vendor of lands must not conceal from the purchaser the fact that the mining rights under the lands do not belong to the Crown. An unreserved sale of an immovable conveys all mining rights in the same, subject to tho provisions of the Quebec Mining Law, and an action will lie to resiliate such sale, or for an indemnity, by a purchaser who subsequently dis- covers that a reserve of such mining rights exists in iavour of his ven- dor's authors. Neil v. Proulx, R. J. Q. 1 C. S. 565; see Turriff v. Cle de Ch. de Fer Quebec Central, R. J. Q. 2 Q. B. 559. § 3. — Exceptional Provisions. " 1 i24. Whenever a person who has hecome owner of the soil and of the property under the soil, under any title, hefore the tenth of June, 1884, sells, hypothecates, leases or afTeets the mining rights in such property to another person under article 2099 of tlie Civil Code of Lower Canada, such soil and the property under the soil I MINING LAW 327 again become two properties perfectly distinct and independent from each other, for all lawful purposes, as they were when in the posses- sion of the Crown, so that the sale, judicial or otherwise, of one of these properties, does not in any way affect the other. This removes doubts which seem to have boen felt as to the position of an owner of both the s:iil and the property under the soil, who acquired theui before 10th June, 1884, the date of the commencement of the Act 47 Vict. c. 22. The Act of 1861, 24 Vict. c. 31, virtually recognized the possi- bility of dual ownership, where the still and the property belong to two different persons, and ciiii be dealt with separately, just as if the one property adjoined the other laterally, instead of being super-imposed upon it. Article 2099 of the Civil Code is based upon the Act of 1861. Article 2098 of the Civil Code enacts that all acts inter vivos, conveying the ownership of an immovable, must be registered at length or by memorial. In de- fault of such registration the title cannot be invoked again&t a subsequent purchaser for value from the same vendor whose title is registered. But Art. 2099 makes this modification: "Notwithstanding the provisions here- in above contained, the sale, lease, or transfer of a mining right, if the title be authentic [i.e. executed by a notary], is preserved, and takes effect from its date by means of its reglsitration within sixty days after Its date, even though such act be not followed by actual possession. So, in a case where mining rights had been sold in 1863, it was held that, when the mining rights have been reserved, or separately sold, they form a distinct property, and are unaffected by subsequent mutations, registrations, or prescriptions of the superficial property. (Laurler et al. v. Desbarats et al., R. J. Q. 9 C. S. 274. See Stevenson v. Walllngford, R. J. Q. 6 C. S. 183.) The section declares the law as to owners whose titles are prior to 10th June. 1884. But, although very oddly expressed, it seems that it does not imply that an owner whose title to both the soil and the minerals, or to either of them, is sinc^ 10th June, 1884, in a different posftion. In his case also there is confusion of the two estates while he holds both. This is expressly laid down in Art. 1423; and by dealing separately with the mining rights he makes them form a separate estate again. If this is sound. Art. 1424 must be understood as if it read: " Whenever a person who has become owner of the soil, and of the property under the soil, under any title, even before the 10th June, 1884." In the Act 47 Vict. c. 22, s. 1, the words were " before the passing of this Act." In Stevenson v. Walllngford, R. J. Q. 6 C. S. 183, the owner of both the surface and the minerals had sold the mining rights separately. Subsequently the surface was sold by the sheriff for municipal taxes. The purchaser claimed tfiat he had got the minerals also, but the Court rejected this contention. Mining rights are exempt from municipal taxation (Art. 1579). The owner of the burface only can never acquire the ownership of the mines by prescription, for the plain reason that he never posesses tbem. But rights of servi- tude which have been included in the reserve of mining rights, e.ff., rights of way, of drawing water, of erecting buildings for mining opera- tions, and the like, may be lost or extinguished by non-user for thirty years. (Laurler et al. v. Desbarats et al., R. J. Q. 6 C. S. 274; C. C. Art. 462.) 328 QVEDEO 2. It is, liowcver, well iiiulorstood that the rights aoquircd over such property, during the confusion in the oM-nershi)) of the soil and of the ])roi)erty under the soil, are in no wise afTected by the sub-e- qnent sale of mining rights and the division of the property in the soil and of that under the soil arising therefrom; oidy that the owner of the ])roperty under the soil sliall be sued jmd made a [larty to the suit in the same manner as if he had pure! ^ a part or portion of the soil. 47 A' let. c. 22, s. 1, and II. S. Q. _ .,.1. This section is clear. A creditor who has a mortgage ovor the whole property, surface and minerals, as it is held by a single owner, cannot be prejudiced by a subsequent separation of the two estates. His mortgage will affect the mining rights which have been sold, as well as the surface which is retained. The purchaser of the mining rights in fact, as it is said, is in the same position as if he had bought a part of the surface instead of the underground property. An owner who sells, transfers, or alienates mining rights, Is now bound to give notice of the transfer, etc., to the Commissioner within thirty days. (Art. 1442, 1527). For a list of cases in which leases or alienations of mining rights have been judicially construed, see note on 1442, "J 125. Any person who, previous to the 21th July, 1880, ob- tained by letters-patent, for agricultural piirposes, but with reserva- tion by the Government of the mining rights, any' lot whatever, forming part of the jml)Iic lands of this Province, may, if he or his legal representative discovers and wishes to work a mine, purchase the mining rights so reserved by the tiovernment, by paying in cash to the Commissioner, over and above the price already paid for said lot, a sufTiciont additional amount to make up the sum required by article M44. 43-44 Vict. c. 13, s, 4, and R. S. Q. 1425. " 1-126. Every proprietor of land sold for agricultural purposes, by letters-patent, previous to the 24th July, 1880, but without any reservation by the Oovernment of the mining rights, or the legal re- presentative of such proprietor who discovers upon such land a gold or silver mine, may work the same, by paying to the Commissioner, over and above the price already paid for such land, a suilicicr.!. .vhli- tional amount to nuike up the sum required by article 14-- '. J 3 ' '- Vict. c. 12, s. 5, and l\. S. Q. 142G. " 1427. Every proiDrietor of land sold by letters-pateni ' >'• ^' i- cultural purposes since the 24th July, 1880, or which may b ^-v'l ir, the future, but without any reservation by the Government of the minijig rights, or the legal representative of such, proprietor who dis- covers a mine on such land, may work the .same by paying to the Commissioner, over and above the price already paid for such land, MimXG LAW 329 a siifTicicnt additional amount to make up tiie sum required by article 1444. This and the two preceding articles need to be carefully compared. In tha case of lands sold by letters patent for agricultural purposes since the 24th July, 1880, the minerals tacitly reserved to the Crown will in- clude all those enumerated In Art. 1421, s. 2, viz.: " All quarries of stone of whatever kind, and all stones or rocks, earth or soil, whether alluvial or not, in which are found gold, silver, copper, phosphate of lime, asbestos, or any mineral substance having an appreciable value. In the case of lands granted in the same way previous to 24th July, 1880, if there Is an express reservation, its extent will depend upon its terms. Hut, if the reservation is of "mining rights" generally, this will Include all the minerals above enumerated. Where there is no express reservation the Crown will, it is thought, be held only to have reserved the rights to gold and silver mines, .and to mines of phosphate of lime, if the grant was after the 9th March, 1878. One would have expected a distinction so Important to be stated expressly. But it is clearly implied from con- trasting the words of Art. 1426 with those of Arts. 1425 and 1427. Where there is no express reservation, ajid the grant was prior to 24th July, 1880, it is said that the proprietor who discovers " a gold or silver mine " may work it on making the payment required by Art. 1444. If the grant was made after 24th July, 1880, or is made in future, and there is no express reservation, the proprietor cannot work "a mine" except on the tame terms. And " mine " is defined in Art. 1421, s. 2, as cited above. Moreover, Art. 1423 declares expressly tha.t in future grants of land for agricultural purposes all the mining rights, and not merely gold and silver mines, arc tacitly reserved. In expressing Art. 1426 the legislature seems clearly to have intended to make this distinction, and to provide that as to grants prior to 24th July, 1880, all minerals except gold and silver passed to the grantee, unless there was a special" reservation of mining rights. This view is supported by the history of tRe legislation in Canada. Until the Act of 1880 it does not seem that the Crown made any claim as to minerals other than gold and silver, except as to phosphate of lime, since 9th March, 1878. It seems more questionable if the old law of France was to the same effect. The Court of Queen's Bench in Reg. v. DeL6ry (6 L. N. 402), did not distinguish gold and silver from the other minerals in this respect. But the question in that case was as to a gold mine, and the judgment of Caron, J. (9 Q. L. R. 225), is more guarded. (See Dalloz, Mines, No. 9, and the introduction suitra, as to the history of the French law). The view that in Crown grants prior to 24th July, 1880, with- out any reservation of minerals, all minerals except gold and silver passed to the grantee, seems, however, so cleaHy implied by Art. 1426 that, pro- bably, the Courts would not think it neces&ary to inquire into the old French law cm the point. In considering the rights of an owner of the sur- face in the minerals below it, the date of the original grant is an important element. The seigniories being all granted long before 24th July, 1880, it follows that in them the minerals, other than gold and silver, were granted with the lands, unless there was a general reservation of mining rights, and are no longer vested in the Crown. i( " 1428, In seigniories in vhich the Crown still holds mining rights, any ccnsitairc or his legal rej)resentative who discovers a mine upon his land, may work tiie same, by paying to the Commissioner the sum required by article 1444, less fifty cents per acre, for the whole of his land, or for at least one hundred acres, at one and the same time; 2. Tlie seignior or i)roprietor of the unconceded portion of a seigniory, if he or his legal representative discovers a mine, and wislies to work the same, may do so, liy paying to the Commissioner tiio sum ie(iuircd by article 1444, for Iho wiu)le extent of sucli uncon- ceded part of the said seigniory, as limited by the following para- graph: In all cases, no such pro])rietor, in virtue of letters-patent, censi- taire or seignior, can thus ol)tain mining rights on a larger extent tiian that fixed by article 1443. 43-44 Vict. c. 12, s. G, and K. S. Q. 1437. A cciislfairc in a seigniory in which the Crown has the mining rights may purchase them for fifty cents an acre less than any other person, if he talces at least a hundred acres. The seignior or proprietor of the part of the seigniory which has not been conceded to criisitaircs, cannot wcrlc the mines in such a cas3 un- less he purchases the mining rights for the whole seigniory. But neither the crufiHuiiTs, nor the seignior, can obtain moie than tlie maximum amount to be granted to one person, viz., four hundred acres, or ono thousand acres if an Order in Council to that effect be obtained. (Art. 1443). No doubt the seignior may also obtain a mining license like any other proprietor of the soil. (Art. 1441). " 142J). If, on any lot of land granted by letters-patent, since the 9th of March, one thousand eiglit lumdred and seventy-eight, or which slndl hereafter 1)C granted, on the usual terms and conditions, for agiicultural purposes, a mine of phospliate of lime has been found to exist, any ])urcliaser of such lot or his legal representative, shall, if he wishes to work such mine, i)ay in casli, to tlie Commissioner, a sntlicient additional amount to make up the sum required by article 1444. 43-44 Vict. c. 12, s. 7, and K. 8. Q. 142S. " 1430. The grantees of lands under gratuitous title, or their legal representatives, arc subject to the provisions of articles 1425, 142(5, 1427, 1428 and 1429. 43-44 Vict. c. 12, s. 9, and R. S. (}. 1430. "1431. Every person, who has ol)tained or wlio may hereafter obtain, by letters-patent, for the purpose of mining for inferior metals, one or inore lots forming part of the public lands of this Province, shnll, if he or his lecal representative, discovers and wishes MINIXa L,AW 331 to work, or ciuiso to be worked, any mine of superior nietals, pay to the Commissioner, over and above the price alreatly paid for suoli niinin. V. Balnbrldgo, [1896] Appeal Caaes, 561 (construction of " precious metals"); Att.-Gen. of Brit. Columb. v. Att.-Gen. of Canada, 1889, 14 Appeal Cases, 295.) Of those cases most of those in which any general principle has been laid down have been already referred to. In Turriff v. Quebec Central R. J. Q. 2 Q. B. 559, there were two points which may bo mentioned. 1. in ccnatruing an agreement by which lands are convoyed by a private owner to a railway company for the construction of their road, the mining rights will not bo presumed to b.' reserved from the fact that the company cannot work a mine. Although the company cannot work mines, this not being within its statutory powers, it can acquire them and iillena.to them. 2. If the seller alienates his lands for a nominal price, hoping to gain material advantage from the conveniences to be afforded by the railrord, the alienation is not a don.itlon, and therefore null under Art. 776 of the C. C, unless executed in notarial form. It is a " contrat synallu gmatlque," " do ut facias.' In Webster v. Watters, 21 R. L. 447, it was hold that a contract by which the proprietor of a. mine sold to a third party all the minerals which he should be able to extract, did noi give the purchaser any real right in the mine. An Injunction forbidding the vendor to go on working would not be granted unless it appeared that, without it, the purchaser would be in danger of losing his recourse for non-execution of the contract. I; 7. — Price of Mining Concessions. — liescrvcs of the right of culling limber thereon. I. — PRICE OF MINING CONCKSSIONS. " 1443. No sales of mining concessions, containinj^ more than {our hiUKlretl acres in superficies, shall ])C made to the same person. The Lieutenant-Ciovcrnor in Council has, nevertheless, the right to grant to any person, upon sufliciont proof of his cajjital and re- tources, a larger extent of territory, hut not, in any case, to exceed one thousand acres. 43-44 A'ict. c. 12, s. 24, and R. S. Q. 1451 and 1452. " 1444. "With such ai)plications to purchase and the i)roductinn of the documents mentioned in this law, applicants arc re(piired to pay MiyiNO LAW 33.-) lo llie Deimrtmc'iit of Crown Lnnds tl»o entire price of tlie mining coiieossioiis wiiic'ii tiiey desire to pureliuHO at tlie following rates: 1. If for (lie mining of superior metals on lands situated more tliiin twelve miles from a railway in operation, live dollars an aere, and if on lands situuted less than twelve miles from such railway, ten dollars an aere; 2. If for the mining of Inferior metals on lands situated more tlinn twelve miles from a railway in operation, two dollars an aere, !;nd if on lands situated less than twelve miles from sueli railway, four dollars an acre. 13-14 \'ict. c. 1^, s. 2\), and U. S. t^ 1 l.')r. " 1115. The Commissioner may, from time to time, and as often as circumstances require, olfer and put up for sale such niuulier of mining concessions as he uuiy deem proper. This sale is made by ])ul)lie auction, after notice duly given and published, during at least four weeks, in the (Quebec Olllcial (lazette, •lud at least in one French and one Knglish newspaper, if there ])e any pid)lished in these two languages in each of the cities of Mon- treal, (Quebec and Ottawa. At each such sale, the upset i)rice or first hid is fixed and deter- mined l)y the Connnissioner, hut shall m)t, in any case, be less than the total amount detennined in the preceding article; and the entire i)rice of adjudication is payable in cash, nnder penalty of the absolute nullity of the sale. 43-44 Vict. c. 12, s. 158, and R. S. Q. 1580. " 144(t. Unless stipnlated to the contrary in the letters-patent: 1. In concessions for the mining of snperior metals, the sale of snch concession shall give to the purchaser the right to nunc for all metals which nuiy he found therein; 2. In concessions for the mining of inferior metals, the sale of snch concession shall give to the purchaser the right to mine for in- ferior metals only. " 1447. In townships duly erected, as well as in nnsurveved territory, no lands shall be sold nnder this law, nnloss there be some real indicat.ons of the presence of minerals; and tlie ])roof of such indications mnst be shown by the exhibition of specimens found upon or in snch land, accompanied hy atTidavits of competent and credible persons, estahlishing that the specimens exhibited came therefrom. 43-44 Vict. c. 12, s. 31, and "R. S. Q. 1459. 336 QUEBEC II. — HESHRVB OP RIGHT OP CUTTINQ- TIMBER ON MIOTNQ CONCBS3ION3. '• 1448. TJic holders ol licenses to cut tinibor, have, under such license, tlio privilege of cutting on all mining concessions granted, within their limits, pine timber measuring twelve or more inclies in diameter, on the stump, and spruce timber measuring nine or more inches in diameter on the stump; This privilege shall, liowevcr, finally expire after a period of three years, from the date of the issue of tlie deed of sale. 43-44 Vict. c. 12, s. 32, and li. S. Q. 14G0. " 1449. The letters-patent for Crown land, told as mining con- cessions, within the meaning of this law, shall contain a clause re- serving all trees of pine or s])ruce tind)er, in favor of the Crown; and subject to the provisions of the preceding art'cle, the Commissioner may grant, to any person whomsoever, tlie right of entering upon tlio i-aid lands, and cutting and taking therefrom, according to the regu- lations, the trees so reserved, and nuiking and keeping in repair, across tiie said mining concessions, all roads necessary for such operations. 43-44 Vict. c. 12, s. 33, and E. S. Q. 1461. " 1450. The purchasers or proprietors of such mining concos- sions have, in the case of the two preceding articles, liie right to out and take jway, for their own use, such trees as they may require for tiu' construction of the buildings and dependencies necessary for tlieir operations. 43-44 Vict. c. 12, s. 33, and 11. S. Q. 1461. § 8. — Cancelling of sales of Milling Lands. " 1451. Mining lands shall be sold on the express condition that the purchaser shall commence hona file the mining of the minerals Iberein contained, within two years from tbc date of jmrchase, and that, during such delay, the purchaser shall, in such working, spend a sum of not less tiian five hundred dollars, if for superior metals, and of not less than two hundred dollars, if for inferior metals. The Commissioner may cancel the sale of such mining land in default of the i)erformnnce of the conditions herein mentioned, ac- cording to the mode followed for tlie cancellation of sales of public lands. Letters-patent shall bo issued only on satisfactory proof that tho foregoing conditions have been fulfilled. 43-14 Vict. c. 12, s. 34, and I{. S. Q. 1162. MINING LAW 837 § 9. — Licenses. I. — EXPLORATION AND PROSPECTING LICENSES. " 1452. Any ])erson, firm or company may, witlioiit a license, prosi)cct and search for mines or ores npon public lands, not already occupied as mining concessions or otherwise. When any such person, firm or company, may desire to enjoy the benefit of such license, he shall obtain from the Commissioner such license for such purpose, on conforming to the provisions of the fol- lowing article. "1153. The application for an ex])loration and in-ospccting li- cense shall contain as exact a description as possible of the land re- quired, to the satisfaction of the Commissioner, and sluill be accom- panied by the following fees, as the case may be: 1. If the mine is upon private lands, two dollars foi n^cry hun- dred acres; every less nund)er of acres to count as one hundred; 2. If the mine is upon Crown lands; a. In surveyed territory, five dollars for every hundred acres; every less number of acres to count as one hundred; h. In unsurveyod territory, five dollars for each square mile. Such l-'^ense is valid for three months and may be renewed. -II?- 4-4 Vict. c. 13, s. 22; 47 Vict. c. 22, ss. 4 and 5, and 11. S. Q. 1416 and 1447. " 1454. The applicant for an exploratioii and prospecting license shall furnish good and sufficient security, subject to the approval of the Conmiissioner, to answer for all losses and damages that he may cause to the i)roj)rietor of the soil in making such searches or explora- tions. 47 Vict. c. 22, s. 5, ard «. S. Q. 1448. " 1455. AVhoever, under such license, searches and prospects as aforesaid, shall make a report to the Commissioner, or to the Inspec- tor, of the result of his operations. 47 Vict. c. 22, s. 5, and R. S. Q. 1449. " 145(i. 'Vhv holder of such license may afterwards purchase such mine, Ijy ]>iiying the ])rices mentioned in article 14 14 and by con- forming to the present law, and also to the regulations passed in VH'tue thereof; the whole, however, sxd)ject to the right of ju-efer- ence granted to the ])ro])rietor of the soil, to be himself, to the ex- clusion of all others, the purchaser of the mines and minerals dis- 22-M ■ ■« |k (Ik 338 QUEBEC covered, or which might be afterwards discovered in tlic soil under his property. " 1457. Articles 1491, 1495 and 149G apply also, in so far as consistent with the provisions of the preceding articles, to the person, firm or coni])any who, holding a license as al)ove, has discovered a new mine. 47 Vict. c. 22, s. 5, and R. S. Q. 1450. ! ' . ■ II. — MININa LICENSES. , 1. — Miniiiff without licnisc forhiddvir. " 1458. Kvery person is prohibited, under pain of the fines and penalties mentioned in Article 152(), from mining in any mine, cither upon public or private lands, when the mining rights belong to the Crown, without having previously purchased the same, in \irtue of the present law, or without having obtained, to that effect, a mining license, and ])aid the fee and rent required jjy Article 14G1. 43-44 A'ict. c. n, s. 47, and K. S. Q. 1475. " 1459. Every jjcrson, firm or company, is further prohibited, under the jionalties mentioned in Article 1528, from commencing mining ojierations without having given notice in writing, without delay, to the inspector, according to the form of Schedule V, con- taining the name, the descrijition of the land and the place of domi- cile of such person, firm or company. 43-44 Vict. c. 12, s. 48, and I{. S. Q. 1476. 2. — Form of Miiiiiif/ IJecnscs. " 14G0. There are two descriptions of licenses for mining, known as ff.llows, to wit: 1. Private lands license, where the mining rights belong to the Crown; 2. Public lands license. The first is made in the form of Schedule A of this law, and the second in the form of Schedule B. 43-14 Vict. c. 12, s. 50, and P. S. Q. 1478. 3. — Grantitiff and diirnHoii of llrrnsrs. 'M If)l. 'Mining licenses are granted on payment of a fee of five dollars, and of nn annual rental of one dollar ]>er acre. 2. Every such license is valid for one year from the date of its issue, and is transferable only with the consent of the Commissioner. r M JUIMNG LAW 3BS) ,*■ J 3. It cannot be granted for an extent of over two hundred acres in superficies, unless the Lieutenant-Governor in Council otlierwise decides, in virtue of Article 1580. 4. The licensee may, before the expiry of his license, and not later than ten clear days tbereaiter, renew such license, on pay- ment of a like fee of five dollars, or of any such other sum as may be determined by law, at the time of its issue, and of an annual rental of one dollar per acj'e. 5. No such mining license can ])e renewed except upon payment of the said fee and of the said annual rental. " 1-1G3, It sliall be lawful for the Lieutenant-Governor in Council whenever he deems it expedient, to require the payment of the royalty, in lieu and stead of fees for a mining license and of an annual rental as aforesaid, except, however, in jdaces in this Province in whicii tiu' royalty diu' to the Crown under letters-patent is paid by means of fees for mining licenses. 43-li Vict. c. l:i, s. 52; 47 Vict. c. 22, ss. 1) and 10, and K. S. Q. 1480. " 14G3. Every inspector is bound to keep a book in which the licenses are registered, and he must further enter therein, upon no- tice given under Articles 1492 and 141)3, the names of the ap])licants for a license, the description of mining lands staked out by them under tlie provisions of Article 1491, and the date of the choice of mch laiul. 43-44 Vict. c. 12, s. 13, and I?. S. Q. 1471. " 1404. Such book is to be open to the inspection of any one desiring to examine the same, upon payment of a fee of twenty cents to the inspector. 43-44 Vict. c. 12, s. 43, and R. S. Q. 1471 . 4. — I'oircrs of Lirrusccs on I'rirutc Ltaids. " 1 1()5. Every holder of a ])rivate lands license is authorized to search on any private lands, wlienever such i)rivate person voluntarily consents or is compelled thereto under the provisions of the follow- ing Articles. 43-44 Vict. c. 12, s. 53, and R. S. Q. 1481. 5. — Arltitratioii for minlntj on Priratr Landfi. " 14nf). Every person wh ires to mine on the lands of a pri- vate person, must first cause ti, 'C sowed a notice in writing, accord- ing to the form of Schedule C of this law, stating: 1. Tliat he intends to mine on the lands of such private person; : ( %: 340 QVEBEG 2. That he is ready to pay the damages arising from such mining operations, to be assessed by mutual agreement. 43-44 Vict. c. 12, s. 65, and 1?. S. Q. 1483. " 1467. The notice shall give a delay of one montli, from the date of the service, to the said private person, to answer and make such agreement, if present, and if absent from the Province, double delay, and in the latter case the notice shall be inserted in Frencli and Englisli, tliree times in a newspaper of the district, if there is such newspaper, if not, in a newspaper of an adjoining district. 43- 44 Viet. c. 12, s. 56, and K. S. Q. 1484. " 14G8. Whenever a private person refuses to come to a mutual understanding for mining on his land, the petitioner may then cause a plan of the land, absolutely necessary for his mining operations, to be made l)y a sworn land surveyor, who, for that purpose, is author- ized to enter upon the said property with his employees, and cause to be served upon the said private person another notice, according to tlie form of Schedule D of this law, containing: 1. A description of the land to be taken for mining purposes; 2. A copy of the land surveyor's plan; 3. A declaration that he is ready to pay a certain sum, in money or rent, as tlie case may be, as a compensation for the said land or damages, and, 4. The name of a person whom he ai)points as his arbitrator, if his oll'er is not ac'cei)tod, also a demand upon the said private person to a))])oint and declare the name of his arbitrator. 43-44 Vict. c. 12, s. 58, and R. S. Q. 1486. " 1469. Every such private person may, however, within the delays aforesaid, take out a mining license to mine his land, in con- formity with the present law; provided, however, that he has not divested himself of liis right of jn-e-emption in favor of a third per- son. 43-44 Vict. c. 12, s. 57, and R. S. Q. 1485. " 1470. The delay to answer such notice is ten clear days, if the opposite ])arty is present in this Province. 43-44 Vict. c. 12, s. 59, and R. S. Q. 1487. "1471. If the o])positc party is absent from the Province, or is unknown, then, upon a petition addressed to the inspector of the mining division in which the land is situated, accompanied by a re- I AlIXIXG LAW 341 1» 1 turn of service, certifying that the said person is ahscnt from the Province, and could not be found therein, the said inspector orders, under his signature, tliat tlie notice, drawn up according to tlie form of Schedule D of this law, be inserted, three times in the French and English languages, during ten days in a newspaper published in such district, if there is such newspaper, if not, then in a newspaper of a neighboring district. 43-44 Vict. c. 12, s. 59, and E. S. Q. 1487. " 1472. The answer, to be given to the said notice, is made in terms of the form of Schedule E of this law. 43-44 \'ict. c. 1"^, s. 51), and R. S. Q. 1487. " 1473. If, during the ten days after the service of the notice, or the eight days following the last ])itblicati()n (as the case may be), the opposite party does not inform the petitioner that he accepts his offers, or does not give the name of the arbitrator appointed by him, then the inspector of the mining division, upon application of the said petitioner, appoints a competent person to be sole arljitrator, to determine the compensation which the opposite party has a right to receive. 43-44 Vict. c. 12, s. GO; 47 Vict. c. 22, s. 17, and K. S. Q. 1488. *' 1474. If the opposite party, during the above prescribed delay, notifies to the petitioner the name of the arbitrator whom he has chosen, the two arbitrators jointly name a third. 43-44 Vict. c. 12, s. Gl, and II. S. Q. 1489. " 1475. Such arbitrators appointed by the parties must, within eight days after the opposite party has made known the name of his arbitrator, meet to agree ujion the choice of a third. 43-44 Vict. c. 12, s. (11, and I{. S. Q. 1489. " 147G. If the two arbitrators cannot agree upon the choice of a third, the inspector is bound, upon application of any of the parties, notice of at least two clear days having been previously given to the other, to apjioint such third arbitrator himself. 43-44 Vict. c. 12, «. Gl, and ii. S. Q. 1489. "1477. The arbitrators or two of them, or the sole arbitrator, after having taken an oath before a justice of the peace of the dis- trie!, or before the inspector of the mining division, in which such land is situated, to faithfully and imjiartially fulfd the duties of their office, immediately in-oceed to establish the compensation to be paid by the petitioner, as the majority may decide; and the award of the arbitrators or of the sole arbitrator, as the case may be, is final and without appeal. 43-44 Vict. c. 12, s. G2, and R. S. Q. 1490. I: I,' 'W '■> 842 QUE BEG " 14?8. Xo procoedings can be coiiunenced by the arbitrators be- fore a Sinn of fifty dollars is deposited with the inspector of the min- ing division, to defray the costs of the arbitration, and a certificate of the inspector be delivered to them certifying such deposit. The arbitrators may require the deposit of any other sum deemed necessary during the proceedings. 43-4-i Vict. c. 13, s. 02, and It. S. Q. 1490. " 1479. Xo award can be given, and no official act done by the majority of the arbitrators, unless at a meeting of which the other arbitrator has received notice, at least two clear days before, of the time and i)lace at which such meeting is to be held. The i-t'rvice of the notice on the i)arties is not necessary. i;?-H Viot. c. Vi, s. (i.S, and H. S. Q. 1491. " 1480. In deciding upon the value or the compensation to be ]^aid, the arbitrators are authorized and required to take into con- sideration the inconveniences, loss or damages arising from the fact that a third party takes possession or makes use of the land for mining purposes. 43-44 Vict. c. 12, s. (il, and R. S. Q. 1443 and 1493. "1481. If the arl)itrators are not satisfied with the plan drawn by llie land surveyor, as mentioned in Article 1408, they may cause anotlier to be made, at the cost of the petitioner, by any other land surveyor, to whom they have a right to give tho necessary instruc- tions.' 43-44 Viot. c. 12, s. O."), and K. S. q. 1493. '• 1482. The arbitrators, in ])roceeding with such arbitration, must allow only the land, strictly requisite for mining purj)oses, which can, in no case, exceed fifteen acres in superficies, over and above the land deemed necessary, on the same projierty, for right of way with horses and vehicles to and from the nearest highway. 43-44 Vict. c. 12, s. 00, and 11. S. Q. 1494. "■ 1483. The costs are p.aid ])y the petitioner, except, however, those of the arbitrator of the op])ositc i)ariy, which are paid by him, if the awaid does not allow him a higher compensation than that oft'ered before the arbitration. In all cases, the costs are taxed l)y the inspector of the mining division. 43-44 Vict. c. 12, s. OT, and 1{. S. Q. 1495. " 1-184. The arbitrators may swear the jiarties and their witnesses, and, in their discretion, interrogate them under oath or solemn affirmation. 43-44 Vict. c. 12, s. 08, and R. S. Q. 1490. MINING LAW 848 " 1485. In the case of a sole arbitrator, if the latter dies before giving his award, or if he becomes ill, or refuses, or neglects to act, within a roasonal)le delay, the inspector, upon satisfactory proof there- of, appoints another in his stead; but the latter arlntrator cannot ro- conimence or repeat any of the previous proceedings. 43-4.4 V^ict. c. 12, s. G9, and «. S. Q. 1497. " 148G. AVhcn the award of the abitrators is given, the amount of the damages awarded and costs must bo paid into the hands of the inspector of thu mining division having jurisdiction. -i;}-44 \'ict. c. 12, s. :0, and K. S. Q. 1498. " 1487. The inspector must give a receipt for the sums so paid; Imt no work shall be commenced, without the express permission of the inspectoi', or before the amount of the compensation has been paid or lawfully tendered to private person or to the proprietor of the soil. 43-44 Vict. c. 12, s. 71; 47 Vict. c. 22, s. IS, and 11. S. Q. 1499. " 1488. The amount of the compensation, and the costs so paid, arc afterwards distributed, within the shortest possible delay, by the inspector, to the persons entitled thereto. 43-44 Vict. c. 12, s. 72, and 11. S. Q. 1500. " 1489. Every petitioner, as aforesaid, may also, by following the ])rocedure al)ove set forth, obtain from neighljoring jiropriotors and others, the right of way over their lands with horses and vehicles, and the right to make the works necessary thereon for conveying the water required ])y him for tlie better working of his mining lands ; lirovided, however, that he does not a])ply for any thing which might have the effect of turning the course of any spring, river or stream, so as to deprive the inferior rijjarian proprietors of the use of such spring, river or stream. 43-44 Vict. c. 12, s. 73, and 11. 8. (J. 1501. "1490. The preceding article is ai)plica])le to every person who works a mine of any kind in this Province. 43-44 Vict. c. 12, s. 73, and 11 S. Q. 1501. ■'TrrpB G.—Mi80fllaneoiis iirori.voii.s rvspcctiiKj upitlivaiits for, and hohlcrs of licenses, and persnnH workinu mines. '• 1491. Kvcrv iiitpliciUi^ for a license to mine upon public InuU. has a right to plant a wooden jncket at each corner of the lot for which he desires to obtain such license. 43-44 Vict. c. 12, s. 77, and n. S. Q. 1504. ■n- 844 QUEBEC " 1402. I*]vcry such applicant, after having staked out the loca- tion of his land in tlie manner deterniined in the precedinj^ article, is hound to give written notice thereof, witliout delay, to tlic mining insi)ector, in the form of Schedule !•' ol' tliis law. 4;{-4 4 \'ict. o. I"', s. 81, and I?. S. Q. 1508. " 1493. Such notice shall give the name of the a])])licant, indi- cate the place where the land is situated, contain a complete designa- tion and description of the land, and mention where such applicaut elects his domicile, under the penalties mentioned in Article lo2S. 43-44 Vict. c. 13, s. 81, and R. S. (). 1,^08. " 1494. The discoverer of a new mine on puhlic lands is entitled to a free mining license, in the form of Schedule J of this law, valid for twelve months, for the area allowed hy Article 1401, or by any regulations which may ho issued under it, and in force when such dis- covery is made; provided that such discovery has been immediately reported, in writing, to the inspector of the mining division. 43-44 Vict. c. 12, s. 83, and K. S. Q. 1510. " 1495. Any one, who docs not immediatel; report such dis- covery, shall be dei)rived for the space of one year, of the right to mine on i)ublic lands. 43-44 Vict. c. 13, s. 83, and K. S. Q. 1510. " 1496. Xo person is considered to be the discoverer of a new mine, unless the place of the alleged discovery is in a region unknown as a mining region, or at least at a distance of thirty miles from the nearest mine. 43-44 Vict. c. 13, s. 84, and R. S. Q. 1511. " 1497. Every person iiolding a mining license, upon renewing the same, is bound, under penalty of the refusal of such renewal, to make to the inspector of the mining division, in addition to the annual statement which he is bound to furnish in virtue of the fol- lowing Article, a full and true statement, under oatli, of the work performed, and of the minerals obtained by him, during the term of such license, which statement may be entered upon the expiring license. 43-44 \ict. c. 13, s. 8(i, and H. S. Q. 1513. " 1498. Every person working a mine must furnish, during the month of .lainiary, every year, a sworn statement of liis oi.eratious for the previous year, containing the (piantity of the mineral extracted, its value at the mine, and the nnm))er (.f workmen employed, as also a statement giving the names of persons killed or wounded in working the mines. i I MIXING LAW 315 " 1499. Xo title to a mining concession or license sliall, without the formal consent of tlie in-oin-iotor of tlic soil, give a right to mine, or to ()]ieii pits or galleries, or to erect machines or stores, in (ields, yards or gardens, or upon lands close to dwelling houses, or boundary fences, within a distance of three hundred feet from such fences or dwellings, nor even to enter such yards or habitations. 43-1-1 Vi(.'t. c. 12, s. 70, and 1?. S. Q. MM and 1503. " loOO. Every person, who prospects or mines for minerals upon lands ailjoining a mining division, is subject to the jjrovisions oi" rhis law, as if he worked within the limits of such mining division. 13- 41 Vict. c. 12, s. 98, and 11 S. Q. 1525. " 1501. Every licensee, under this law, is bound, under the penal- tics mentioned in Article 153(S, whenever required so to do, to exhil)it his license to the inspector of the division, or to any constable or peace olficer deputed by the said inspector, and to prove to the satis- faction ol' every such officer, making such demand, that the license which lie holds'is in force. 43-14 Vict. c. 12, s. 99, and K. S. Q. 15?0. "loOS. Mvery licensee is bound, under the ])enalties mentioned in Article 1539, to allow the inspector of the mining division, or any constable or other peace officer, deputed hy the said inspector, to cntei' upon the lands which he works, and to afford them all necessary facilities and assistance for that purpose. 43 & 44 Vict. c. 12, s. 100, and 1?. S. Q. 1527. 'm \llWi III. — MILL on MACHINE LICENSE. 1. — Price of License. " 1503, Every person, who desires to employ or nuike use of any mill or machinery, other than those worked by hand, for crushing quartz or reduction of (piartz, or the obtaining of gold and silver therefrom, by crushing, stamping, anuilgamating or otherwise, is ro- ciuired, under the ])cnalties menticmed in Article 1535, to obtain be- forehand a sjjccial liienso therefor, from the inspector of the mining division, upon payment of a fee of five dollars. Such license is in tlie form of Schedule II of this law. 43-44 Vict. c. 12, s. 90, and R. S. Q. 1517. 2. — Duties of Mill nr Machine owners. " 1504. Every licensed mill or machine owner, as aforesaid, is required, under the penalties mentioned in Article 153G, to keep an 8iG QUEBEO account hook, in which lie is ImmiikI to enter n clenr and distinct stato- ment of all (iiuirtz crushed, rc(hiccd or amalgamated hy siicli mill or machine, and also the rollowing jjarticnlars: 1. The Jiamo of the owner or owners of each distinct parcel or lot of quartz cnished; 2. Tlio weight of each such i)arcel or lot; 3. The date of the crushing of the same; 4. The actual yield in weight of mineral ohtained from each such parcel or lot; 5. The description of the mining land worked. 40-4-1 Vict. c. 12, s. 91, and 11. S. Q. 1518. *' l.'jOr). Kvery owner of a licensed mill or machine is hound, under the ])enalties mentioned in Article lolUi, to furnish, montidy, to the inspector of the mining division, a return under oath, compiled from the hook, containing the aforesaid statements and details fm* each and every day of the month then last i)ast, together with sudi other information as the inspector or the riieulenant-CJoveruor in Council may re(|uire. 43-44 Vict. c. 12, s. 0?, and IJ. S. (^ iniO. § 10. — Special prorisious rcsperliinj mining. I. — PARTY WALLS OR PASSAGES. " loOfi. A party wall or ])assage, at least tiiree feet thick, shall he left hetween each holding worked as well on puhlic as on private laiuls; which said party wall or ])assage is to he used in common hy all par- ties as a mode of access to the stream, where one exists; and no one ehall olistruct such i)arty wall or jiassage hy throwing soil, stones (U* other material thereon, uiuler liie pcnaitit's mentioned in Article loM). 43-44 Vict. c. 12, s. !>3, and H. S. (^ I.ViO. " ir)OT. Any person interested may, at any time, remove a party wall or passage as aforesaid, if he thinks it necessary, hut he shall, if re([uired so to do, construct a new mode of access to the water, olTcr- ing the same facilities as an ap])roacli as the party wall or passage so removed, under the penalties enacted in Article 1531; hut such re- moval cannot he eH'ccted without the written i)ermission of the in- Fpector of the mining division, who shall summarily decide, afti'r hearing the adverse i)arty or, in his ahsence, if he has heen duly noti- fud. 13-44 Vict. c. 12, s. !t4; IT Vict. c. 22, s. 21, and M. S. Q. 1521. MIXING LAW 847 11. — DAMAQEB nESULTINQ FROM MINING OPERATIONS. " 1508. Xo ])(M'pnn workinp; mines pliall onusc niiy dainnpo or in- jury to tlio (K'tMipant of any otiu'r niiniiiji land hy tlirowiiij; (uirlli, ilay, stones or otiier material npon such other land, or hy causinj^ or nllo\vin<; any water .iliieli may l)e pumped or haled, or may (low from his land, to How into or upon such other land, under the penalties mentioned in Article ^^)'^2, over and ahovc the dama^^e caused. ■['■]- [i Vict. c. i'2, s. !).% and 1{. 8. Q. 1522. il i III. -WATER-COURSES AND EXCAVATIONS. " 150!). Mvery miner, who makes a pit, shaft or any excavation whatever, to a depth of four feet and over, is bound, under the penal- ties mentioned in Article 15157, to enclose the same with a fence, at least four feet in height, if he discontinues workinC'a (»r this hiw, for tlio tiiiio and in tho iniiiiiig divlHioiitj I'ur which ihoy iiiv ro.-, have all the jjowers, authority, rights and ]irivileges conferred on the jiolice force of the cities of .Montreal and (Quebec respectively, l)y the provisions of sec- tions one and four of chapter lirst of title seventh of these Revised Statutes. -i;i-l t Vict. c. I5i, s. 42, and li. S. (^ 1470. " 1521. Kvery inspector, constable or peace ollicer, in a mining- division, may, at any time, enter upon private or public lands that are being mined in the said division, and examine the pits, shafts, tun- nels, subterranean passages or other mining works or excavations constructed or comnienced in any manner whatsoever, and recpiiro, from the i)roi)rietors of such i)its, shafts, tunnels and other mining works, and from their employees, all the facilities and assistance necos- tary for that i.uri)ose. J;')-! 1 \'ict. c. l'^ s. IT), and ]l. S. (J. 1-173. "in^r). Xo inspector of a mining division, under thg penalties mentioned in Article 15 10, can, at any time, either directly or indirect- ly, so long as lie is in otlicc, take any share, in liis own name, or in the nnnie of another for liim, in the working of the mines at large in tlve mining division for wliicli he has been appointed. 43-i-i Vict. c. 12, s. 4G, and 1{. S. Q. 1171. § 12.— Penalties. "15-3(). Kvery person, who works a mine in public or private lands, when the claim belongs to the Crown, without having first ac- i 860 QUEBEC quired the same under the present hiw, or without having first oli- tained a license and paid the fee and rental required by Article 14(j1, is liable to a tine of two hundred dollars and costs for every contraven- tion, and, in dofaidt of payment, to imprisonment for a period not exceeding three months. 43-44 A'ict. c. 12, s. 102, and R. S. Q. 1528 and 1529. " 1527. livery owner of mining land who sells, cedes, transfers or alienates his mining right, without having given notice to the Commissioner of Crown J^ands within thirty days after such sale, transfer or alienation, is liable to a fine of fifty dollars and costs, and, in default of payment, to an imprisonment of three months. " 1528. l^'very person, who commences mining, or every applicant for a license who has staked out a mining lot, in conformity with Article 1491, without having furnished to the inspector the name of the person, the full designation and description of his mining land and declared his place of residence, is liable to a fhie not exceeding twenty-five dollars and costs, and, in default of payment, to imprison- ment for a jieriod not exceeding one month. 43-44 V'ict. c. 12, s. 1U3, :ind I{. S. g. 1530. " 1529. Every ])erson, who, by himself or his agents, employs a woman or a girl, or who employs any male child in the working of Biioli mine, contrary to the ])rovisions of Article 1548, is liable to a fine not exceeding twenty dollars for each offence and the costs, and, in default of payment, to an imprisonment not exceeding one montii. " 1530. "Whosoever obstructs a j)arty wall or jjassage upon \i\wh worked as mines under this law, by throwing thereon earth, stones or other material, is liable to a fine not exceeding five dollars and costs, and, in default of payment, to im])risonment for a jieriod no*^ exceed- ing one month. 43-44 Vict. c. 12, s. 104, and 1{. S. Q. 1531. " 1531. Whosoever removes a ]iarty wall or passage and does not, if thereunto r(M(uired, i)rovide another mode of access to the water- co\7r>e, is liabh;- to the penalty mentioned in the pi'ectding article. 43-44 Vic\ -. v. -.. ua, and \i. S. Q. 1532. " 1532. Wlioscever, while engaged in mining, causes damage or injury to the oceujiant of another mining land by throwing earth, (lay, stones or other material in and u|)on such claim, or by causing or idlowing any water, which may be ]nimped or baled or which may flow from his claim, to flow into or upon such land, is liable to a fine not exceeding five dollars and costs, and, in default of payment to juiyjyG LAW 851 imprisonment for a period not exceeding one montli. -13-44: Vict. c. 12, s. 1(18, iind 11. S. Q. 1533. " 1533. Whosoever, in working a mine, does not comply witli tlie decision of the inspector with respect to tlie use lie is to make of a water-course, canal, drain, shoot, or other aqueduct, is liable to a fine n<;t cxceudiug iifty dollars and costs, and, in default of payment, '-.o imprisonment for a period not exceeding one month. 43-44 Vict. c. 13, s. 1U7; 47 Vict. c. 22, s. 2;i, and li. S. Q. 1534. " 1534. Any person, found removing or disturbing intentionally, any stake or i)icket planted under the provisions of this law, is liable to a line not exceeding ten dollars and costs, and, in default of pay- ment, to imprisonment for a j)eriod not exceeding one montli. 43-44 Vict. c. n, s. lOS, and R. S. (J. 1535. " 1535. Whosoever makes use of any mill or machine, other than those worked by hand, within or near any mining division, for the crushing or reduction of quartz or the obtaining of gold therefrom, by crushing, stamping, amalgamating or otherwise, without a license therefor, is liable to a line not exceeding one hundred dollars and costs, and, in default of ])ayment, to iiuprisonuient for a jieriod not exceeding two months. 43-44 \'ict. c. 12, s. lUD, and 1?. S. (.}. 153(). '• 153(). Kvery licensed mill or machine owner, or, in the case of an incori)orated coni[)any, every manager or agent thereof, wlio omits to enter the statement of any of the details which he is reciuired to enter, in his book, under Articles 1504 and 1505, or delays sending in liu' return which he is bound to make, is liable, for every day of such omission or delay, to a line not exceeding twenty dollars and cost:-, and, in default of ])ayinent, to im])ris()nment for a period not exceed- in- one month. 43-44 Vict. c. 12, :■•. 110, and Vx. S. Q. 1537. " 1537. l-'very person, who discontinues working in any pit, shaft or excavation whatsoever of four feet or more in de|)th, without fenc- ing in the same to a height of at least four feet, is liable, for each offence, to a fine not exceeding fifty dcdlars and costs, and, in defauU of ])ayment, to imprisonment for a ])eriod not exceeding one montli. 43-14 Vict. ('. 12, s. Ill, and T^. S. Q. 1538. "1538. Every licensee, wlio, wlien required so fo do, r(>fuses to exhibit his license to the inspector of the mining division, or to any constable, or peace officer deputed by such inspector, is liable to a fine m 1 I '^f I;- 852 QUEBEC N not oxc'ooding five tlollars and costs, and, in default of ])aYmont, to im])risonnient for a ])eriod not exceeding one month. 13-14 Vict. c. ]2, s 113, and K. S. Q. 1539. '•'1531). Every ])erson, engaged in mining npon any land what- ever, who refuses to allow the inspector of the division, or any eon- stahle or peace otlicer, authorized by such inspector, to enter, for the performance of their ollicial duties, upon tlie lands on which lie is so working, or, who refuses, mIicu thereunto recpiired, to all'ord them the facilities and assistance necessary for such ])urpose, is liable to a flue not exceeding five dollars and costs, and, in default of i)ayment, to imprisonment for a period not exceeding one month. ■^13-14 A'ict. c. 12, s. 113, and E. S. Q. 1510. " 1540. Every inspector of mines, who, while he is in office, takes ■a share in tlie working of the mines generally, either in his own name "r in that of another for him, directly or indirectly, is liable (in addi- tion to dismissal from office, and the nullity of the title or interest which he has obtained) to a fine not exceeding four hundred dollars and costs, and, in default of payment, to imprisonment for a period not exceeding one year. 43-44 Vict. c. 12, s. 11 1, and K. S. Q. 1541. " 154L Every witness lawfully summoned, who refuses to appear cr to take the oath and to answer, is lialde to a fine of five dollars and costs, for every such refusal, or to be imprisoned until he consents to take the oath or ailirmatioii and to answer. 43-44 "N'ict. c. 12, s. 115, and li. S. Q. 1542. " 1542. Every ])erson, who, knowingly or under reasonable ])elief that an arrest under this law is to be made, prevents the arrest of any one violating this law, is lial)le to a tiue not exceeding forty dollars, and, in default of jiaynient, to imin-isonmcnt for a period not exceed- ing two months. 43-44 Vict. c. 12, s. 148, and K. S. Q. 1570. " 1543. Every ])erson, contravening this law or any order or regu- lation made under it, where no other penalty or punishment is im- posed, is liable, for every day on which such contravention occurs, continues, or is repeated, to a fine not exceeding twenty dollars and costs, and, in default of ])ayment, to imprisonment not exceeding one month. 43-1 1 Vict. c. 12, s. 121, and R. S. Q. 1543. " 1511. Every term of imprisonment counts from the day of in- carceration. 43-44 Vict. c. 12, s. 149, and E. S. Q. 1571. MINIXG LAW 353 § 13. — liiots in the ncujliborlwod of mines. " 1545. The Lieutenaiit-Govornor in Council may, by proclama- tion, wlicnovov he deems it necess^ary, declare that section eleventh of chapter eighth of title fourth of these Revised Statutes, respecting riots near public works, shall apply to one or more mining divi- sions, in so far as its provisions may be applicable; the said section sliall have force of law, from aiul after the date of such proclamation, in the mining division or divisions mentioned in the proclamation. 43-4-1 ^ict. c. 12, s. 1-^5, and 1{. S. Q. 1540. " 154(1. The Lieutenant-Governor in Council may, in the samo manner, from time to time, declare the said section to be no longer in force in such mining division or divisions and again put the same in force, when he deems it advisable. 43-44 Vict. c. 1"^, s. 125, and 11 S. Q. 154(). " 1547. Xo such proclamation can have any effect within the limiin of a city. 43-44 Met. c. 12, s. 125, and H. S. Q. 1540. § 14. — Protection of worhnen in mines. " 1548. Xo woman or girl shall be employed in the working o£ any mine. 2. Xo male child under iifteen years shall be employed in the underground works of any mine or quarry. 3. Xo male child of fifteen years but mider seventeen years shall be employed in a mine as above, more than forty-eight hours per week, said week being considered as beginning at midnight on Sunday and ending at midnight on the following Saturday. 4. Xo male child of less tlmn twenty years shall be employed in working machinery in or near a mine, with the exception of machinery put in motion l)y horses or other animals, in which case their driver may ho sixteen years of ago. " 1510. Every proprietor of a mine in o]ieration, avIio by himself sions of or his age ]m preceding subject to tlio penalties numtioned in Article 152i). " 1550. Regulations may be made by the Lieutenant-Clovernor in Council, i'es])ecting the sanitary condition and safety of the works in mines, so as to protect the life and health of the workmen therein omjiloyed. \ '. I \m 23 -M 854 QUEBEC Such regulations, after their in-onuilgation in the Oflieial Gazette, become law, and a copy of the same shall be posted up in the most conspicuous places of the mine, in conformity with the instructions of the mining inspector. " 1553. Every three months, the inspector shall make a report to the Commissioner with respect to the f ullilment of the provisions of the present paragraj)!! within the limits of his mining division. § IT). — Sale of Intoxicating Liquors near mines in operation. '' 1552. Tlie sale or exchange of intoxicating liquors, within a radius of seven miles of any mine in operation, is prohibited unless a license to that effect has been obtained from the inspector of the mining division, in conformity with section twelfth of chapter fifth of title fourth of these Kevised Statutes, under the penalties set forth in the 81)3rd and following articles. 43-U Yict. c. 12, s. -id, and R. S. Q. M77. " 1553. The inspector of a division has the supervision of those who therein sell intoxicating liijuors; lie alone may refuse or grant such licenses and cancel the same within such radius of seven miles, 43-44 Vict. c. 12, s. 49; 45 Vict. c. 14, s. 1, and R. S. Q. 1477. § 10. — Proseadions. I. — LAWS APPLICABLE. "1554. All the provisions of this law, relating to indictable of- fences or summary convictions, as well as to the jiroccedings to be adopted in each of such cases, shall be so interpreted that the Revised Statutes of Canada, cha])ters one hundred and seventy-four and one hundred and seventy-eight sliall l)e applicable thereto, as also the pro- visions of Articles 2713 to 2720 of these Revised Statutes. 43-44 Vict. c. 12, s. 12(), and R. S. Q. 1547. II. — IN WHOSE NAME DROUGHT. "155," Prosecutions for the recovery of royalties due to tlie Crown, for sums due for the purchase of mining concessions or mining rights, and for mining or exploration licenses, are brought in the name of the Commissioner of Crown Lands, before any court of com- petent civil jurisdiction, and other prosecutions for contraventions of this law are brought in the name of a comi)lainant or by the collector of provincial revenue for the district in which such oiTence was com- AIININO LAW 856 mitlcd. rS-U Vict. c. 12, s. 127; 47 Vict. c. 22, s. 23, ami R. S. Q. 1548. III. — INSPECTOR S COURT AND JURISDICTION. " 155G. Prosecutions for the recovery of fines imposed by tliis sec- tion, or by the reguhitions made in virtue thereof, for tlie recovery of fees exigible tliereunder, otlier tlian tliosc mentioned in tlie preceding article, and for all contraventions of the provisions thereof, are brought before the ins])c'ctor of eacli mining division, having juris- diction. 43-44 Vict. c. 12, s. 128, and R. S. Q. 1549. " 1557. The inspector of eacli mining division is, ex officio, a justice of the peace for the district wliich may comprise or include, m whole or in part, the mining division, for which he has been appointed, or in which district or portions thereof there may be one or more mining divisions, in wliicli lie is bound to perform his duties. 43-44 A'ict. e. 12, s. 129, and R. S. Q. 1550. '' 1558. It sliall not l)e necessary that the ins])ector have any pro- perly qualification, to allow of his lawfully acting as a justice of the peace. 43-44 Vict. c. 12, s. 130, and R. S. Q. 1551. "1559. As a justice of the peace, the inspector (except in suits relating to rights or titles to immovable property, in which he must decline to act, if sucli cases occur), possesses the jurisdiction, author- ity, rights and privileges which may be conferred, by the laws then in force, upon any ])oliee magistrate, district magistrate, judge of the sessions of the peace, justice of the peace, sheriif or recorder through- out the whole extent of the territory, for which he has been appointed. 2. Ifo decides, in ca summary manner, all contestations respect- ing the dimensions or boundaries oL' mining lands under mining li- cense, the use of water-courses and the access thereto. His decision is final and without ajtpcal, in all things within Ins jurisdiction. 3. TTe takes cognizance of and finally determines all suits of a purely personal nature, and those afTecting movables, between per- sons or companies engaged in mining, or their agents, or other per- sons or companies; and rice rersa; providing the amount in dispute does not exceed twenty-five dollars. The proceedings are summary. 43-44 Vict. c. 12, ss. 131 and 132; 47 Vict. 0. 22. s. 21, and R. S. Q." 1553 and 1554. ' . |!l I I I 5 M 856 QXJEBEO " 15G0. For the execution of jiidgmeiits under tliis law, the pro- ceedings are the same as those in the Circuit Court. 47 Vict. c. 83, e. 24, and 1{. S. Q. 1554. " 15G1. The inspector may: 1. By writ of summons, cause defendants to appear before him, 2. Sunnnon any person who is pointed out to him as an important witness in a case; 3. Condemn a witness to the penalties mentioned in Article 1541, whenever he refuses to appear, when lawfully summoned, or to take the oath and to answer; 4. Receive and cause to ho taken in writing, upon the application of the plaintiff or of the defendant in his discretion, the depositions of the witnesses then present, and adjourn the case to a future day, wliith he shall then fix for such purpose; 5. ])etermine such complaint, in the presence or absence of the defendant, in a summary manner, upon the evidence given nnder oath by one or more witnesses, sworn before him, and levy such sum as he may adjudge to be due by such person or company to such la- borers or servants, together with such costs as he may deem proper, by a warrant of distress and sale of the defendant's goods and chattels; 6. Convict, within his division, upon view, any person for any contravention, ])unishable under the provisions of this law or the regulations made in virtue thereof. 43-44 Vict. c. 12, ss. 134, 135, 130, 137, 138, 139 and 140, and E. S. Q. 1555, 1550, 1557, 1558, 155!), 15G0 and 15G1. IV. — CLEnKS OF INSPECTORS. '*1562. The clerks of inspectors of mining divisions shall be ap]ointed by the Commissioner of Crown Lands and shall be entitled to ihe same fees as clerks of commissioners' courts or clerks of justices of the peace, as the case may be. 47 Vict. c. 22, s. 25, and R. S. Q. ]5G2. V. — PROCEDURE. " ]5fi3. In any prosecution, instituted under this section, it is not necessary, in the declaration, information, complaint or summons, to allege any negative fact or any fact which it is the duty of the defen- dant to prove. 43-44 Vict. c. 12, s. 143, and R. S. Q. 15G5. MININO LAW 857 "15GI. Any declaration, t'onii)laiiit or summons may bo ainended, without costs, if there be any defect in the form thereof, and, ujjon such amendment, the defendant may obtain a further delay to plead and adduce evidence. 43-44 Vict. c. 12, s. 144, and II. S. i}. 15GG. " 1565. It is not necessar)', in a complaint, to state the exact day on wliich the offence was committed; it is sufficient that the day and hour be approximately stated. 43-44 Vict. c. 12, s. 145, and K. S. Q. 15G7. " 15G6. The fees to which bailiffs, constables and clerks of inspec- tors of mining divisions are entitled are those mentioned in Ai'ticles 2585 to 3592, which fees each is respectively allowed to collect; but, as regards the fees of advocates and other costs, they are taxed in a reasonable and equitable manner, in the discretion of the inspector. ^3-44 Vict. c. 12, s. 14G; 49-50 Vict. c. 34, s. 1, and E. S. Q. 15GS. " 15G7. I'hcry service, under this law, is made by a bailiff of the Superior Court, or a constable appointed for the mining division in which the suit is instituted, by leaving a copy, certified l)y the inspec- tr>r of the said division, with the defendant personally, or with a rea- sonable person of his family, at his domicile or place of business. 43- 44 Vict. c. 12, s. 141, and K. S. Q. 15G3. " 15G8. The return of service by a bailiff is made under his oath of ofBce. That made by a constable is proved by a certificate, sworn before a justice of the peace or the inspector of the mining division. 43-44 Vict. c. 12, s. 142, and K. «. Q. 15G4. I ■ :nn VI. — EXECUTION OF JUDGMENTS. " 15G9. In default of immediate payment of! the fine and costs, the inspector may either cause the defendant to be imprisoned at once, or cause the defendant's goods and chattels to be seized and sold to pay the same; and, if he have no goods and chattels or not sufllcient goods and chattels, cause him to be imprisoned for the period mentioned in the jiulgment. Nevertheless, the defendant may, at any time, obtain his dis- charge by ])aying the fine and costs. 43-44 Vict. c. 12, s. 147, and I{. S. Q. 15fi9. " 1570. Xo ap])eal lies from any conviction by or judgment of the inspector, in conformity with the provisions of this law. 43-44 Vict. c. 12, s. 150, and B. S. Q. 1572. 868 QUEREG \ ' I § 17. — Miscellaneous rrovisions. I. — APPLICATION OF DUES, FEES AND FINES. '• 15?1. All dues, fees and fines collected under this law, as well as the price of mining concessions, unless otliorwiso provided, form part of the consolidated revenue fund of this Province. 43-4-4 Viot. c. \2, s. 151, and l\. S. Q. 1573. "1575?. Any proportion of .«uch dues, fees and fines may, from time to time, be applied, by the Lieutenant-Governor in Council, to- wards meeting the expenses incurred in carrying out this law. 43-44 Vict. c. 13, s. 151, and l\. S. Q. 1573. " 1573. The fines are applied as follows: 1. If the fine and costs are wholly recovered in the name of a complainant, after the costs are paid, one-half of the penalty belongs to such comjdainant, and the balance is paid to the Provincial Trea- surer; 2. If the fine and costs have not been wholly recovered, then, after payment of the costs, the balance is distributed in the proportion indicated in the preceding jiaragraph. 43-44 Vict. c. 13, s. 152, and K. S. Q. 1574. The aforesaid distribution is made by the inspector of the min- ing division himself. 43-44 Vict. c. 12, s. 143, and K. S. Q. 1575. II. — GEOLOGICAL EXPLORATIONS. " 1575. The Commissioner of Crown Lands may, from time to time, and so often as he may deem advisable, cause geological explora- tions or other searches to be made, in order to ascertain what lands contain ores or minerals of any kind. 43-44 Vict. c. 13, s. 156, and K. S. Q. 1578. " 1570. lie may. at the same time, cause to be surveyed, and boundaries and limits set to mining concessions, in localities which are not yet subdivided, and, in his discretion, cause each lot to be marked out in accordance with the meaning of this law. 43-44 Vict. c. 13, s. 15G, and P. S. Q. 1578. III. — SALE OF LANDS, AND RESERVES OF MINING LANDS. "1577. Lands sold by the Crown for the working of mines in general shall be sold in conformity with the provisions of this law. 43-44 Vict. c. 13, s. 154, and R. S.Q. 157G. MINING LAW 359 " 1578. The Conunissioncr may, when he sees fit, reserve and withhold from sale, for cok)nization purposes, lands in which the ex- istence of mines, which may he worked, has heen established, with the cbject of selling them, at a suitable time, as mining concessions. 43- 4i Vict. c. n, s. 157, and R. S. Q. 1579. IV. — VALUATION OE" TAXADI.I3 MINING LANDS. " 1579. In making the valuation of taxable mining lands in a municipality, in which there exists an immovable property, containing a mine wliich is being worked, the valuators shall, np to the 3it]i July, 1900, value such immovable, without taking into consideration the increased value arising from the existence of such mine, and mine- rals, ores, pits, shafts, excavations, tunnels, mills, machines and other buildings, structures and dependencies used or to be used exclusivoly for the working of such mine. 43-4-t Vict. c. 12, s. 122, and R. S. Q. 1541. Stevensoa v. Walllngford, R. J. Q. 6 C. S. 183; see note on 1424. V. — REQULATIONS BY THK LIEUTENANT-GOVERNOR. " 15S0. Tlie Lieutenant-Governor in Council may, from time to time, make any regulations wliich he may deem necessary or ex- l}edient: 1. For diminishing or increasing the size of lands for which mining licenses are granted under this law, or for altering the slTape thereof; 2. For altering the price, terms and conditions of mining licenses, and for increasing the jmce of mining concessions; 3. For reserving land found to be rich in mines and minerals, or for withdrawing them temporarily from sale; 4. For classifying, in one of the two categories of paragraph 11 of Article 1421, such ores and minerals which are not therein specially named, or tor changing the category of those already therein named; 5. For the opening, construction, maintenance and use of the shafts, conducts, sluices, through or upon claims or mining conces- sions, or on lands under mining license, to facilitate the carriage and passage of water for mining purposes; G. For erecting into mining divisions any imrt of the Province which he may deem ])ropcr, for enlarging or diminishing, from time to time, sucli divisions, or for abolishing tliem at any time he may consider necessary; t . '■: 800 QUEBEC 7. For cstal)lisliing and maintaining roads through mining divi- eions and generally for the better carrying out of the provisions of the l)reseut hiw. All such regulations, after being ])ul)lislied in the Quebec OfTicial Gazette, shall have force of law. •!;{-] I \'iet. c. \'l, s. \U; 49-50 Vict, c. 30, 8. 1, and li. S. Q. 154G. § 18. — Final Provisions. " 1581. The Commissioner shall submit, with his annual return to the Legislature, a statement respecting mines in this Province. 43- 4i Viet. c. I'i, 8. 15i), and K. S. Q. 1581. '* 1582. The forms 1, 2, 3, 4, 5, G and 7 of the j)resent law, or any other forms to the same elfect, may be employed whenever deemed necessary." 43-44 Viet. c. 13, s. 1G3, and K. S. Q. 1583. 2. The Acts 54 Victoria, chapters 15 and 10, are hereby repealed. 3. The ])resent Act shall not affect any promises of sale of min- ing concessions which may have been made, under the ))r()visions of the Act 54 Alctoria, cha})ter 15, for a greater extent than that au- thorized by the ])resent law, nor shall it affect any acquired rights. 4. The present Act shall come into force on the day of its sanc- tion. CHAPTEK XVI. New Bkl'xswick. '•'The General .Alining Act," as amended in 1893, 1S!»3 and ISOC. An Act delating to Mines and Minerals. Passed IClli April 1S91. 15k it enacted by the Lieutenant-Governor, Legislative Council, and Assembly, as follows: — 1. This Act may be cited as "The General Mining Act." » 'This Act has been amended as follows : (1) By 55 Vict. (1892) Chap. X. biassed 7th April, 1892). For sec. 1 of which, sec hoc. 101, sub-sec. 6, of this Act. 2 " " 133A of this Act. 3 " " 138B I " " 13[)A ' (I (I (2) By 66 Vict. (1893) Chap. X. fpassed 15th April, 1893.) For sec. 1 of which, see sec. 2, s.-ss. (I), (2), of this Act. 2 II II 5 II II 3 11 II 9 II II 4 II 11 32 II 1 1 6 11 11 34 II 1 1 G II it 53 II 1 1 7 II II 69, 8,') II II 8 II 11 81 i 15 11 artment, i)lans of all gold districts with the areas en- tered thereon, and on which all areas apidied for shall be distinctly designated by num])ers. 14. All ai)plications for leases of areas shall be niatle to the Surveyor-(ieneral, but no application shall be received for areas already applied for, or under license or lease. lfl». Every application shall be in writing, defining the area or areas a])plied for. and shall be accompanied by a payment of two dollars for each and every of such areas, which shall be considered to be the annual ])ayment in advance for the first year that the lease is outstanding, and the Surveyor-General receiving such application shall endorse thereon the precise time of such receipt. (1) "Whenever any area shall have been leased as herein provided, the owner thereof sliall, on or before the expiration of the II [■ t 366 MJW liHUXSWICK first year tliat the lease is outstanding, pay in advance to tlio Surveyor-General tlie sura of fifty cents for each and every sucli area or portion tliereof contained in his lea^e, and sliall thereal'tor continue to malvc tlic same payments annually in advance, and in the same manner for the re- maining years for Avhich the lease sliall continue, Upoji failure in the payment of such sum in advance, the lease will become, and is liereby declared to be forfeited at tlie expiration of the then current twelve months in wliich de- fault was made, tlie first payment in advance being con- sidered the annual ])ayment for the first twelve months; and applications for licenses or leases in respect of the areas hereliy declared forfeited, may be made at the office of the Department on the day after such twelve months shall expire. lO. Every lease granted under this Act shall be executed on the l)art of the Crown by the Surveyor-General under his hand and seal, and on the ]iart of the lessee under liis hand and seal or that of his duly authorized attorney or agent, and when such lease is executed by such attorney or agent, the inslrument conferring such power shall be filed in the ofiice of the Department l)efore such execution takes ])lace, and such lease shall be in the form in the Sclie- dule (A) hereto annexed, and such lessee, his executors, adminis- trators or assigns, where such lease is granted on private lands, shall, bi'l'ore making entry on such lands, obtain from the owner thereof pel mission to enter, either by agreement with such owner or other- wise in accordance with the provisions of this Act. IT. When tlie holder of a lease of areas on private lands cannot make an agreement with the owner thereof, and with the tenant, where a tenant is occupying, for leave to enter and for easemenls and for any damage which may be done such lands, and for other purposes mentioned in the IDtli section of this Act, it shall 1)0 lawful for such holder to give notice to the owner and tenant to appoint an arl)itrator to act with another arbitrator named by the lessee of areas in order to award the amount of damages to which the owner and tenant shall be entitled by reason of the opening and working of a mine in such lands, and the doing of the acts or things aiithor- i/ed and contem])lated liy this Act, and if any lessee shall enter and work upon land leased before he may liave agreed with the owner and tenant of the land, or have ])roceeded to have his damages ap- 1' rai sed in accordance w itli this Act. the owner and tenant may com- aiJXEh'AL MIXING ACT obi plain to a Judge in the Supreme Court, wlio shall, in a summary way, investigate the coiiiplaint, and if the same is substantiated, shall de- clare the lease forfeited. IH. The notice mentioned in the last preceding section shall, when practicable, be personally served on such owner, or his agent and tenant, of such lands (if any), but if after reasonable efforts have Ijeen made to effect such personal service, such service cannot be effected, then such notice may be served by leaving it at tlie last known ]»lace of abode of the owner, or his agent and tenant. If the owner resides in the county in which the land is situate, such notice shall be served ton days before the expiration of the time limited therein, if out of the county and. within the Province, twenty days, and if out of the Province, thirty days before such expiration. If the owner and tenant both refuse, omit or decline to appoint an arbi- tratoi*, or when for any other reason no arbitrator is appointed by the owner or tenant in the time limited, therefor in the notice, the warden of the municipality wherein the lands lie shall, on l)eing satisfied by aflidavit that such notice has come to the knowledge of suc-li owner, agent or tenant, or that such owner or agent or tenant wilfully evades service of such notice, or cannot be found, and that reasonable efforts have been made to effect such service, and that notice was loft at the last known place of abode of such owner or agent or tenant, ai)])oint an arl)itrator on his behalf. One arl)itra- tor only shall be a])i)ointed by the owner and tenant, and if they do not agree in the choice of an arl»itrator, the one chosen by the owner shall be entitled to act. 19. All arliitiatoi's apjtointod under tlie authority of this Act shall be sworn before a justice of the ])oace to the faithful discharge of the duties assigned tboni, and they shall forthwith proceed to estimate the reasonable damages which the owners and tenants of such lands, according to their several interests therein, shall respec- tively sustain by reason of the opening of necessary shafts and other excavations, the construction of roads and drains, the erection of necessary works and buildings thereon, and of the occupation of so much thereof (how much to l)e determined by an oilicer appointed by the Surveyor-General in the event of any dispute arising in respect thereof) as the lessee may require for all purposes connected with the opening and working of the mine to the most advantage thereof, in- clnding tlierein all such spaces as may be necessary fr(un tinu' to time for dMni|)ing ground or grounds for do]wsiting the mineral mined as well as the refuse, rubbish, waste and other material mined m\ m 1 { 3G8 NEW BRUNSWICK or excavated by such lessee. In estimating such damages the arbitra- tors shall determine the value of the land irrespective of any en- hancement thereof from the existence of minerals therein. In case i-uch arbitrators cannot agree, they may select a tliird arbitrator, and wlien the two arbitrators cannot agree upon a tliird arbitrator, tlie warden of the municii)ality in whicli the lands lie sliall select such third arbitrator. Tlie award of any two arbitrators made in writing shall be final. 20. AVlien the owner of such lands shall be unknown or uncer- tain, tiie lessee sliall, l)y advertisement publislied in tlie Royal (iazette and in a news-paper (if any) published in the county where tlie lands lie, for at least thirty days, and in which advertisement the lands shall be particularly described, call upon all persons having a right to such damages to appear before the warden of the munici- pality in which such lands lie, on or before a certain day therein named, to be not less than thirty days after tlie publication of such advertisement, to appoint an arbitrator, and if an arbitrator is not so appointed on or before such day, the warden and lessee shall each appoint an arbitrator, and all further proceedings ^buU be in accord- ance with the provisions of this Act, and the warden shall receive all moneys awarded in such case, and pay the same over to the trea- surer of the municipality, and when the right to ownership of the land shall be in dispute the payment for damages awarded shall in like manner be made by them to the warden, who shall pay the same to the treasurer of the municipality. 21. Payment of such damages by the party liable therefor to the person designated by the award as entitled thereto, or if the award shall not designate the persons entitled, to such persons as in the abs'-ence of any dispute, shall be ostensibly entitled thereto, shall ex- onerate the party making payment, but any person subsequently claiming to have been entitled to the damages so paid, may ])rosecute his claim 1)y action for money had and received against persons to whom i)ajment shall have been made. In case the award shall not designate to whom the money is to be paid, or in case the party designated shall decline to receive it, the party liable to the payment of the amount so ordered may exonerate himself from all further liability by paying the money so ordered to the Clerk of the Pleas of the Supreme Court. The Clerk of the Pleas, upon receipt thereof, (•hall deposit the same, less a commission of two and a half per cent, thereon, at interest in the Government Savings Bank or in a chartered bank. Such Clerk of the Pleas shall not be entitled, under any cir- cumstances, to make any charge beyond the said commission. UtiyERAL MlMXa ACT 8U!> 32. In onse of dispute or unknown title, a Judge of the Supreme Court, on application of claimant, may order the damages i)aid to the treasurer of the niuuiciiiality or Clerk of tlie J'leas to be paid to the persons who shall (establish their right thereto to the satisfac- tion of such Judge, hut no order shall he made until sullicient notice lias heen given in the judgment of the Judge to protect the rights of all i)ersons who may be, or who may claim to be interested. 2{i. Tlie lessee or licensee shall not he implicated, nor shall ho 03 made a jiarty in any contestation hetwcen the parties, respecting such right to such damages. 24. In no case in which the award sliall fiiul the amount of damages with suthcient certainty, shall such award be set aside be- canse ])ersons entitled to damages are not designated hy name or otherwise sufTiciently designated, or hy reason of error or irregularity as to the persons entitled, or on account of any matter of form, hut the Supreme Court, or any Judge thereof, may rectify any error or informality, and may ado])t such pi'oceedings as may l)e deemed ad- visable for determining to whoni the damages may Ijo paid, or for otherwise carrying into effect the provisions and intent of this Act. 25. Tli(> payment of all damages awarded in accordance with the preceding sections shall he made l)y the lessee or licensee hefmc entry on the lands included in his lease or license, in the manner hereinbefore provided. 20. All j)i'rsons ohtaining licenses and leases under this Act, and those deriving title under them, shall he answerable for all damages that may ensue from tlie falling in of lands, or for other injury which may have heen sustained by (he owners, or tenants of such lands for which damages have not been awarded, hy reason of the work of the i)arties obtaining licenses or leases or those under them, or deriving title from or through them. Where an agreement cannot ho made with the owner and tenant (if any) of the lands for any such subsequent damages, the holder of the lease may jH'oceed to have them referred to arbitration in the manner hereinhefore ]m)vided for, and relating to the assessment of danuiges hefore entry. 27. All leases shall he for the term of twenty years, but the holder of any such lease may at any time surrender the same by notice in writing, signed by him, and filed, together with his countei'- pait of the lease, in the office of the Surveyor-General. Tn case the counterpart of the lease has been lost or cannot be obtained, an affi- 24^ M i.5.i' 870 KEW nllTjXS^YICK davit to that offoct made by the lessee sliall he received in plaeo of piicli coiinterjiai't, but nothing herein contained shall be construed to discharge him from ]ial)ility in resjject of any covenants in the lease or in ros|iect of any act, matter or thing for whicli at the time of such surrender lie was liable under the terms of such lease. 2H. Such leases may be forfeited on failure to pay the stipulated royalties other tluiu tliose arising from gold or gold and silver-bear- ing material, crushed or otherwise treated at the licensed null, or to keep employed annually on the demised premises the numl)er of days' labor hereinafter specified, or to comjdy with any other of the pro- vision-! and stipulations in the leases contained. 20, The holder of any such mining lease shall not use any part of the litnds so demised for any other ]mrpose whatsoever, except such as shall be necessary for making roads, opening drains, erecting necessiiry works, buildings and all other ]nirposes connected with the opening and working of such mines to the most advantage, and all necessary ways and water-courses, whether expressly reserved in such leases or not, shall be considered as reserved to the Crown, and in respect to the making, alteration and use thereof, sliall be subject to such orders and regulations as the (Jovernor in Council may from time to time consider exjiedient; and all licensees and lessees and other ])ersoiis employed about the mines on such demised jiremisos shall use the lands in such manner as will be least injurious to the owners and occupants of such lands, or any other lands lying con- tiguous thereto. 30. The Governor in Council may by order and regulation, pre- scribe the number of days' labor which any lessee shall be required to perform in respect of the areas which may be included in his lease, and may fix and determine the conditions of such labor, and the evi- dence, whether by affidavit or otlierwise, the lessee shall be required to fiimish of the compliance on his part with such conditions, and 3uay determine and presenile the circumstances under which com- pliance with these conditions may be dispensed with. JJl. When, from any cause whatever, a leased mine shall become forfeited to the Crown, under the proceedings herein ]irovided, all the right, title and interest which the holder of such forfeited lease had therein ])revious to such forfeiture, shall become thereby vested in the Crown, and the lessee of any mine may, during his lawful oc- cupancy thereof, take down and remove any house, buildings, ma- chines, or other erections built or placed by him thereon, notwith- 1 GENERAL MINING ACT 871 standing,' that the same may bo considered in law as attached to the frteliokl. »3. Any person occupying and stakini off any areas,' or taking ])ossession of by staking olT any areas from the hinds not lying within any i)roelaimed gold district, not exceeding one hundred areas of ('lass \o. 1, shall he entitled to a license or lease, as the case may he, in prefeience to any other applicant; every such person shall be en- titled to one week, and thereafter to twenty-four hours' time for every fifteen miles distance of the mine so staked off from tiie oilioe of tlie Surveyor-Cieneral at Fredericton, for nudving his application. ' By 56 Vict. (1893) c. 10, s. 4, the word " acres " was struck out, and the word " areas " inserted instead. 33. The Surveyor-fieneral may issue licenses to search for gold and silver, to be called })rospecting licenses, which shall be subject to the ndes prescribed by this Act, or by the (lovernor in Council under the authority of this Act. 34. Any sucli license nmy, in the discretion of the Lieulenaut- Ctovernor in Council, include an area not exceeding one hundred areas of Class Xo. 1 in extent, or less than ten areas, so as the same may he laid olf in quadrilateral and rectangular figures, and shall not, in length, exceed double the breadth thereof. Any appli- cant may ap|)ly for one or more of such licenses.^ ' Inserted by 56 Vict. (1893) c. 10, which repealed s. 34 of the principal Act. 35. Such license shall ])e in force for any period not exceeding twelve months fnun the date of application therefor in the discretion of the Surveyor-General. 30. All a])plications for prosjiecting shall accurately deline by metes and bounds the lands apjdied for, and shall be accompanied by a jiayment at the rate of fifty cents per area for every area up to ten areas in extent, and of twenty-five cents for every area in addi- ti(>n to that extent. 3T. before s ch license shall be issued the applicant shall enter into a ])ond with two sureties to the satisfaction of the Surveyor- General to recompense the proprietor of the soil, in the event of entry being made on private lands, for damages done to his la mis, to make the returns at the exjiiration of the license, and of the re- newal, and to ])ay the royalties hereinafter required. 38. If the proprietor of private lands so entered upon shall seek damages, he shall, before the end of three months after the expira- ;U 372 2fEW BRVN8WICK tion of the license, make his claim in writing against ti>e holder oi! such license, declaring the particulars and aniount of cUiini, and if the claim is not adjusted by agreement between tlie parlies within one month after notice thereof, as aforesaid, it nuiy i)e settled ])y arl)ilnition in accordance with the provisions of section 17 and suh- Bcqiient sections of tliis Act, but in such ca?e either of the parties may give the required notice to appoint an arbitrator, and the warden of a municipality may appoint an arbitrator on behalf of either of such parties neglecting or refusing to make such ai)pointnient. JIO. Tlie holder of a prospecting license, who shall have fulfdled all the terms and conditions thereof, shall be entitled to a renewal thereof for a second period of not exceeding twelve months, upon like terms and conditions, except that the price of the same space shall only be half that paid on the previous a])plication. 40. "Within the period for which license or renewed license is granted the party holding tlie same shall be entitled to select any area or areas comprised therein, of size and form descril)ed in tliis Act, and shall be entitled to a lease of areas selected, upon the terms imposed herein. 41. Xo lease nor any prospecting license or license to seardi Fhiill autliorize entry upon any buildings or the curtilage appertain- ing to any house, store, barn or building, or upon any garden, orcliard, or ground reserved for ornament or under cultivation for growing crops or enclosed, except with the consent of the occupier or by license of the Governor in Council authorizing such entry to be granted on special application setting forth the circumstances under which the same is applied for, and on such terms as the case may require. 42. On all leases of gold and gold and silver mines, or prospect- ing licenses to search for gold or silver, there shall bo reserved a royalty of two and one-half per cent, upon the gross amount of gold and silver mined. 43a. The Lieutenant-Ciovernor in Council may by order in Coun- cil, whenever it shall be deemed necessary to assure speedy develop- jirovidc that the royalty reserved under " The ({eneral ]\rining Act," shall not be imposed or collected upon any ores mined, wrouglit or taken, until after ten years from the date of the mining lease. 43. The Surveyor-General may issue a license to any person or persons (to be called " licensed mill owners ") to run or use any mill QEXERAL MiyiXG ACT 878 or machinory (to bo called a " licoiisod iiiill "), for the purpose of the reduction or concentration of quartz or other gold or silver bearing material, or the obtaining of the gold and silver therci'roui l)y crutih- ing, stamping, amalgamating, or otherwise, and to retain out of such gtild and silver a sullicient amount to pay the royalties prescribed by this Act, and no person or persons shall run or Tise such mill or ma- chinery without such lice!ise therefor lirst had and obtained, except in the case of mills or machinery! worked by hand. 44. 1)0 fore any such license shall be granted, the party applying therefor shall enter into a bond to Iler ^lajesty in the penalty ot* two thousand dollars, to comply with the requirements of this Act in respect of licenseil mill owners. 45. livery licensed mill owner shall kee]) on the demisod promises a book or books of account, to be supplied l)y the Surveyor- (Jeneral, whicli shall at all times bo open to the insi)ection and ex- amination of the Surveyor-tJeneral or deputy, or any other person thereto authorized by the Surveyor-General, in which book or books shall be entered a clear and distinct statement of all ([uartz or other material reduced, concentrated, crushed, stam])ed or amalgamated at such licensed mill, and the following particulars in respect of the same: — I. The name of the owner or owners of each distinct parcel or lot of quartz or other material crushed. ir. The weight of each such parcel or lot. III. The date of crushing the same. IV. The actual yield in weight of gold, or gold and silver, from each parcel or lot. V. The royalty thereon, ealcidatcd at two and oue-half per cent. VI. The number of the lease of the mine or area (so far as tlio same is known or can bo ascertained), from which each siu'h i)arcel or lot was raised. And if he fail to keep such book or books of account, his license may be revoked. 40. Kach licensed mill owner shall pay, or cause to be paid, in money in weekly or other payments, as the Surveyor-Cionoral shall order, to the Surveyor-General or his dejnity, a royalty of two and one-half per cent, on the gross amount of gold obtained by amalga- mation or otherwise in the mill of such licensed mill owner, i It'- '. ' ' J 874 NEW BRUNSWICK i \ flt the rato of nineteen dollars nn ounce troy for smelted gold, and eighteen dollars an oiinee troy I'or unsuielted gold, and of two and one-half per cent, on the silver at the rate of one dollar per ounce troy. 47. In case any licensed mill owner shall fail io ])ay such royally in the mode or at the times prescribed by or in accordance with lliis Act, he shall he liable to an action at the suit of the Surveyor-Cleu- eral for money had and received to the use of such Surveyor-Oen- eral, and such action may he brought according to the amount of the claim, in the same Court which would hiive jurisdiction in case the amount claimed were an ordinary ])rivale debt, and his license may be revoked. 4W. Kvcry licensed mill owner shall fde in the ofTice of the Sur- veyor-(ieneral on or before the tenth day of each month, a return, being a co])y of the entries in such hook or hooks of account, for the last jtrcceding month as prescribed by the 45th section, wdiich return shall bo verified by the allidavit of the person principally employi'd in keeping such account; and on failure to nuike such return, or to verify the same as aforesaid, the license of any mill owner may be revoked. 40. Any owner or jiart owner of any mill or machinery for the crushing or reduction of quartz, or for the obtaining of gold or gold and silver therefrom (other than mills or machinery Avorked by hand), which shall he engaged, used or em])loyed for the crushing or reduction of quartz or other gold or gold aiul silver bearing ma- terial, or the obtaining of gold or gold and silver therefrom, without a license therefor first had and obtained, as prescribed by this Act; and any jierson engaged as agent, servant, workman, clerk or other- wise in any such mill, shall forfeit and ])ay the sum of four hundred dollars for each such offence; and for every day in which such olfence shall be committed, the same shall be considered a new olfence. 50. "When the account hooks prescribed l)y this Act, or any of the accounts hereby required shall be fraudulently or falsely kept, or the afVidavits hcrehy prescribed, or any of them, shall be false or fraudulent, the license to the mill in res|)ect of which the offence has been cominitted may be revoked and the " licensed mill owner " shall he liable for each offence to a ])enalty of not more than two thousand dollars, to he recovered in the Supreme Court in the name of the Surveyor-General. QENERAL MININO ACT 376 !i\. In caso n "liceiiHcd mill owner" In not the owner of tlio mill or miieliiiiery so licensed, the owner tliereol' nmy U|)[»ly to tlie Surveyur-d'eiieral to have said license revoked, and u[)on proof hav- ing liist l)e;'n jiiveii that the '' licensed mill owner" has received lensonalde notice that such a|>[ilication wonld be made, with the dale therenl', and that (he a[»i)licaiit is the legal owner of said mill and machinery, said license may he revoked. an. The Surveyor-Ocneral shall have authority to cntiuire into any alleged violation of the sections whereby such mill license may bo revoked, and il' in his ju I.A litenscd null owner may at any time surrender his license by delivering the same into the otlice of the Surveyor-tJeneral with a written surrender endorsed thereon; but no such surrender shall take elfect till after the lajise of ten days from the liling at the ollioo of the Surveyor-Oeneral of a notice in writing of the intention of suih mill owner to surrender the same. »5»>. I'pon such surrender taking ell'ect as aforesaid, such mill shall cease to be a ''licensed niill" until again licensed under the provisions of this Act. an. The licensed mill owner so surrendering his license, and his sureties, shall remain liable under their bond for all obligations ac- cruing thereunder up to the time when the surrender takes elTect as aforesaid, but shall not be liable for obligations accruing thorc- alter. Itl':QrillKMKXTS OF LHSSKKS AND LICl'.XSKKS. 57. L( sseis of mines shall be bound to make to the Crown Land Otlice within ten days after the first days of January, April, July and October in each year, true and correct retui'ns to the best of ?( ;!l i ! \b 876 AA'ir UltLLSaWIVK tlu'ii' kii(i\vU'(l<;i' niul hi'lict", on Toi'iiis (o he sii|ti>lit'(l hy the )^, witliin tuii dayb al'tor the time [Jivscrilti'd hy tliis Act for juakiiig his leturii to tliu Survcyor-ticiit'ral, lus shall bu lial»k' lo an action at tho suit of tlic Siirvryor-Ocncral, as Tor money hud aiul roc'oivL'd to iiis use i'or the value ol' the royalty so accruing. Ol. Sui'h action may he hroiight according to the amount chiinied, hel'ore the same Court which would have Jurisdiction in case the amount claimed wi're an ordimiry privati' deht; and on a tlie Court shall direct, and the Surveyor-! leneral may prose- cute in his own name as I'or money had and received to his use, ulthough (he same shall have become duo to a previous Survi-yor- Ceneral. OHi. In any case of lia1)ility to forfeiture of any gold, or gold and silver mining leases, for non-compliance l)y the lessee with tho terms, stipulations aiul conditions therein contained, or hy this Act rcciuired, the Surveyor-CJeneral shall cause a notice in the form in Schedule (i'l) to he personally served upon the lessee (or some or one ol' the lessees, where uiore than one are included in tlie least"), or his agent or person jirincipally employed on the premises, or shall cause such notice to he ])Osted upon the premises leased, where no i)erson can Le found in i\\o gold district where such jiremises lie, or (in case the leased ])reniises are not within a proclaimed gold dis- trict), in ilie parish, or in one of the ])iirishes in which siudi premises are situated, npoi. whom to make service thereof, informing him of such charge, and apitointing a time (not less than thirty days after the service or posting of siu-li notice) and place for the investigation of the same; and a duplicate of such notice shall also he jiosted up in the ollice of the Crown Land Dejiartment at least thirty days next previous to the time so api)oiuted; and suc-li duplicate shall he ke])t so ];osted i'or at least thirty days after the investigation and cleciMim of the case, with the decision and the date of sucdi decision brielly noted thereon. Oa. At the time and jilace ap]iointed, tho Surveyor-DencM-al shall proceed to investigate such case, and tho service or jiosting of the roti(0 shall he iiroved, either orally at the investigation or hy affi- davit. T'lion proof of sneh notice, and upon hearing the evidence relating to the case, which shall he taken in writing and signed hy the witness, tho Survovor-Genoral, on heing satisfied of the non-ful- )\U fS •)l' 878 NEW BRVX8WIGK I i I filment of the conditions of the lease or of the in-ovisions of this Act, shall give judgment forfeitinf^ the lease and revesting the ITcmisc'S in the Crown; and such judgment shall he in the form of Schedule (!•') and shall be signed by the Surveyor-General. t»4. From the judgment of the Surveyor-General, the party iuteiVsted juay apjjeal to a Judge of the Sujjremc Court at Chambers, jtrovided that notice of such ai)i)eal be given to the Surveyor-General within thirty days from the date of his decision; provided also, that the party apitealing shall on ap])lying for such appeal nuike and file with the Surveyor-(ieneral an allidavit that he is dissatisfied with such judgment, and that he verily believes the lease has not been forfeited and that the conditions in respect of which the forfeiture has been declared have really and truly been performed and ful- filled, and shall within the time limited for api)eal enter into a bond witii two sutlicient sureties in the penalty of lil'ly dollars, to enter and prosecute his appeal according to the provisions thereof, and pay all costs which may be adjudged against him by the Court of Appeal. 65. On such ap])eal being perfected, the Surveyor-General shall transmit to the Clerk of the Pleas at Fredericton the notes of tes- timony taken before him, and the Judge at Chambers shall confirm or set aside the judgment or make such order thereon as is agree- able to justice and in conformity with law. 06. If the Jiulge shall consider that the case involves questions of controverted fact on which he is of opinion that the verdict of a jury should pass, he may make an order for the trial of the ques- tions of fact in the county where the land lies, in which case all the papers shall be transmitted to the Clerk of the Circits of that county; and the cause shall come on for trial in its j)lace in the same way as ordinary appeals ordered to be tried by a jury. OT. T'pon the finding of a jury on the fact, the Judge shall pro- nounce judgment on the whole case. So soon as judgment declaring forfeiture of the lease shall be given either by the Survoyor-General without appeal, or by the Court of Api)eal wiien the Surveyor-Gene- ral's judgment is ai)pealed from, the lessee, and all i)ersons holding under him, shall thereafter cease to have any interest in the mine leased, and a minute of the judgment declaring forfeiture shall be registered in tlie Crown Land OfTice on the exjiiration of the time limited for apjieal, in the same manner as ])rescribed by this Act for leases and transfers: and the leased ])remises shall tlien be open to be leased to any other a])plicant in the same way as if no lease thereof aENERAL MINING ACT 379 had ever passed; and pending the proceedings between the delivery of tiie first judgment and any subsequent judgment upon appeal there- from, such lessees shall suspend all mining operations on the area alleged lo be forfeited; otherwise he may, at the discretion of tlie .Snrveyor-(Jeneral, be liable to be treated as a trespasser as herein- after directed. OS. The Surveyor-CJeneral shall have i)o\ver to declare forfeited all leases granted for mining gold or gold and silver that are liable to forfeiture that have not been worked or have only been colorably worked for the space of five years next ])receding, notice of such in- tended declaration first having ])een advertised for three weeks in the Royal Gazette, and in a newspaper, if any there be, in the county in which the areas contained in such lease or leases lie, said adver- tisement to show the names of the lessees, the number of the leases, ami the date at whicli such declaration will be made. On tlu> day so named in such notice the Surveyor-Oeneral shall hear any party interested in any such lease, and his judgment shall be final, unless ap]H'alcd from within thirty days thereafter, such appeal to be made and perfected as provided in section 6-4 of this Act. 6». Xo applications for leases or ]irospecting licenses for for- feited areas shall he received until the time limited for appeal has expired, and all appeals are finally determined. 70. "Whenever any areas which are or shall be under lease for gold mining or for gold and silver mining sliall be forfeited under the provisicms of this Act, and whenever after the investigation by the Surveyor-Cleneral, he is unable to decide who was the first ap- ]ilicant for a lease of said areas, the said Surveyor-Cieneral may. after public notice to be given in such manner and for such length of time as may seem to him to be proper, cause the right to the lease of the said areas to l)e sold at auction, in whole or in i>art, as he shall deem best for the ])nblic interest, and the person or persons who shall oiVer and i)ay tlie highest lu-emium therefor at such sale shall be entitled to receive from the Surveyor-fleneral a lease or leases of such area ov areas as he or they may have ]nirchased as aforesaid, in preference to any other applicant or applicants. i i rXLAWFT'L ENTRY AND WORKTXC. Tl. The Surveyor-General shall have i>ower by warrant under his hand and seal, addressed to the sheriff or a constable of the county wherein the gold district lies, to cause any person unlawfully 'i: 880 MJW BL'UXSWICK in possession oi' a niino so judged to be forfeited, to be removed from tlie jjossessioii and occupation tiiereof, and upon receipt of sucii war- rant, the slierilf or constable to whom it is directed shall immediately cxetiite the same. TtJ. Any person fouiul mining in any land belonging to the Crown or to a i)rivate proprietor, the minerals in which belong to til'-' Crown, or entering thereon for the purpose of mining, shall be liable to a penalty for ich ofTence of not less than ten dollars nor more tlian fifty dollars; liut this section shall not extend to parties l)iospecting or searching for mines. TJJ. Parties violating the provisions of the preceding section, shall be considered guilty of a distinct olfence for every day they ghiill iinlawfuUy mine. 74. On complaint in writing made to any justice of the peace of the county in respect of such unlawful minin^,' or entry to mine, the justice shall issue his warrant to aj)prehend the olTender and biiiig him before the justice to answer the complaint, such justice shall thereupon forthwith enter upon the investigation of the com- l)]aint; and in case he shall lind the party guilt)', impose such fines or penalties as the party may have incurred under the provisions of this Act. In case the defendant requires time for the jiroduction of witnesses for the defence, the justice shall adjourn the investiga- tion for any period not exceeding six days, on being satisfied l)y nlfidavit that such time is required for that ])ur])ose; and in such case the defendant shall 1)e committed to jail, unless he gives security to the satisfaction of the justice to ajtpear at the time and place ap- pointed for such adjourned investigation. 75. The decision of such justice shall be subject to ajipeal, as in ordinary cases; but before such shall be allowed, the ap]tellant shall give a bond, with sullicient sureties, to the satisfaction of the clerk of the jieace of the county where the lands lie in double the amount of the penalty and costs, to appear in the Supreme or County Court and obey the judgment thereof, and ])ay such costs as the ( ourt may award. 70. Cold or g(dd and silver in (piartz or otherwise, unlawfully mined on the ])roperty of any lessee of the Crown, sliall ])e considered in law the personal property of the owner of the mine and a search wa'raut may l)i' issued for the same by any justice of the ])eaee for the county, in the same manner as for stolen goods; and upon tlio GiixERAL MI^u^'a act 881 recovery of any gold or gold and silver under such -warrant, the jus- tice shiill make such order i'or the restoration thereof to the proi)er owner as he shall consider right. TT. Nothing in this Act contained shall prevent Her Majesty from ha\iiig or using any other remedy now availa'i)le to recover pos- session of any ..line forfeited from causes cognizable before the Siir- veyor-Ceneral, or from any other causes from which the same may be liable to forfeiture. TH. x\ny party aggrieved 1jy a decision of the Surveyor-General resjjecting any a])plication for a prospecting license or a lease of a gold area or a gold and silver area, or a license to search, or a license to work, of any area other than a gold or gold and silver area, may api:eal from such decision to the Su[)reme Court at the next term or tlie following term Ijy leave of the Court. TO. Auy i)arty desiring to appeal from such decision shall give notice in writing to the Surveyor-({eneral of his intention to appeal within twenty days after such decision or within twenty days after such decision being made known to tlie party dis- satisfied tiierewith, but always within one yaar from the date of such decision; and shall make and file with snch notice an alhdavit that he is dissatisfied with such judgment or decision, and tliat he verily believes he is entitled to the license or lease applied for, and shall also set forth therein the groimds of his appeal, and shall within ten days thereafter enter into a bond with two sureties in the penalty of two hundred dollars to enter and prosecute his ap- l)eal according to the jirovisions of this Act, and pay all costs which may bo adjudged against him by the Court of Appeal; and thereupon the Surveyor-! ieneral shall file such notice ami alliilavit, together with all ])apers and documents connected with such appeal with the Clerk of the Pleas at Fredericton, on or before the first day of such term. SO. The ])rovisions of the forc^going sections from 1) to T!), both included, shall api)ly exclusively to gold and to gold and silvi'r min- ing, except whore any such sections are ex]n'essly mentioned to apply to mines other than gold and gold and silver mines by the subsequent Sections of this Act. :U ill l\ 1, «>fW 1 1 "' ).^ 882 XEW JiltUNSWICK OV MIXKS OTllEK THAN GOLD MIXES. LICENSES TO SEARCH AND WORK. SI. Till' 8urvc\v()r-(Jo]icral may upon application grant licenses to searcli, to Ijo in force for one year and six months ^ from the date of a])])lication therefor, to enter ujion any lands in this rrovince not already ai)])lied for or under license or lease for mining purposes, and to dig and exi)lore for such minerals other than gold or gold and silver as the Crown holds for the henelit of the I'rovince, a Ijond being lirst given to the Surveyor-Oeneral with suiricient f^ureties to his satisfaction lliat in the event of entry being made upon private lands, recomjiense shall be made for damages in the manner Jiereinafter provided. ' Inserted by 56 Vict. (1893) c. 10, s. 8. H2. Xo such application shall be valid unless accompanied l>y a payment of twenty dollars, and the license to search may cover any single tract of ground not exceeding live square miles in extent, but not more than two and a half miles in length in a rectangular shape, tile lines running magnetic east and west and north and south.' ' Added by 56 Vict. (1893) c. 10, s. 9. 53. Upon such aivplication and payment being made, the Sur- veyor-General, wliere necessary, shall cause the lands applied for to be surveyed and laid otf, and a full descrijition thereof shall be em- bodied in tlie license to search, but no such license shall authorize "entry upon any lands mIucIi in accordance with section -11 of this Act are forbidden to be entered upon except as in that section ex- cepted. 54. The cost of such survey shall be defrayed by the licensees or lessees, and the search for minerals under siicli licenses shall lie made free of all expense to the (iovernnient; and the holder of the license shall, within the time that the same shall be in force, and with all convenient speed, make a full and correct report of the results of jiis exploration to the Surveyor-General. H!i.' This section was repealed by 56 Vict. (1803), c. 10, s. 7, it read as follows : • " The said licente to search may be renewed for a further period of twelve months, on application the.cfor to the Surveyor-General, setting forth the special circumstances of the case, not less than thirty days before the expiration thereof, and on payment of the further sum of twenty dollars; subject, however, to the approval of the Governor in Council, upon consideration of the special circumstances submitted. ! GENERAL MINING ACT 88P, SO. Wlieii a license to search for mines, otiicr tlian gold and silver, lias been ai)plied for, it shall be lawful for the Siirveyor-tlenc- ral to receive applications for other licenses to search (called second lights) over tiie same area; jn'ovided that he shall receive no moro aitplications tlian there are areas of one square mile each contained within, the area so lirst applied for, and on the e.\])irati()n of the license to srarch granted umh'r tlie first a])plication, or on the selec- tion of the one square mile thereunder, the license to search can be granted under the second a])])lication, and so on, until the whole area is disposed of. S7. If the ])ro])rietor of ]irivate lands entered under such license shall seek damages, the proceedings for ascertaining the amount of such damages and making paj'mcnt of the same, shall be the same as ])ro\ided for b}' this Act in the case of prospecting licenses for gohl. HH. 'JMic holder of a license to search may at any time l)efore the expiration thereof, select from the land covered by such liceu'^e, an area of one sqiuire mile for the purpose of working the mines and minerals thereii), and may make an application in writing to tlie Snrveyor-Ciener d for a license to work the /same, which application >hall lie accompanied by a payment of fifty dollars. A Crown grant excepted and reserved, among other things, " all coals, and all gold and silver and other mines and minerals," and it was held, without deciding whether the substance in question was coal or bitumen, that it was nevertheless a mineral and excepted. "All we are called on to decide is whether carbonaceous minerals are excepted, we think they are": Gesner v. Cairns, (1853) 2 Allen, 593. The construction of a Crown grant cannot be limited by the Royal instructions din>cting the Governor of the Province to reserve to the Crown certain minerals (lb.). If the exception is larger than the instructions authorized, it may be a ground for repealing the grant, or the grantee may refuse to receive it; but the Crown may ratify the act of the Governor (lb.). A license from the Crown to dig minerals in granted lands, where the mines are excepted out of the grant, will not justify an injury to the surface soil (lb.). A paid license from the owner of land in which the mines are excepted, to the grantee of the mines to enter and dig them, vests no estate in the licensee, and is revoked by a conveyance of the land to a third person " (lb.). See also Gesner v. The Gas Co., (1853) 1 James (N. S. R.) 72. H9. Upon such apidioation and payment being made, the Sur- Aeyor-Ceneral shall cause the portion so .selected to bo surveyed and laid off, and the applicant shall defray the cxpenesc of such survey. :li m 884 XEW BIWNSWWK which said portion shall be in one block, the length of which shall not exceed two and a hall' miles, and as i'ar as jjossible in a rectangular block, tiie lines running by the magnet north and south and cast and west ; ' and the jjcrson making such survey sliall nudce a full and accurate plan thereof, and transmit the same to the Surveyor-CJeneral. ttO. All the ju'ovisions herein contained relative to settlement by agreement or arbitration with the owner of the soil, where tlu> same is jnivate land, for damages done to his laiul, and to payment therefor as set forth in sections 17 to ^5 inclusive, and to the occupation of such lands as set forth in section 2d, and to the exemption of certain descriptions thereof from lial)ility to be entered as specified in sec- tion 4], and to the vesting of interests forfeited under this Act as specified in section 31, shall be applicable and in force in the case of mines other than gold or gold and silver mines, eqiudly as in gold or gold and silver mines. Ol. Upon complying M'ith the requirements of this Act, the applicant shall be entitled to a license to work the one square mile ajjldied for; the bond given for the license to search, under which the license to work was obtained, remaining in full force and virtue. f>3. I'lvery license to work shall bo for a term of two years from tlio date of apidication, and shall be extended to three years upon the additiomd i)ayment by the holder of the license of one-half of tho amount originally paid for such license; and within such term tho holder of tlie license shall commence elTective and not colorable mining operations, and shall continue the same in good faith until the termination of such term; and in case the same perstm shall hold licenses to work over several adjoining areas, and shall have com- menced effective mining operations on one of these areas, the Sur- veyor-CJeneral may if it be shown to his satisfaction that the area so opened is by reason of a deficiency of mineral or other natural cause insullicient for effective working, allow one of the adjoining areas to be combined with it, and the two so combined to be considered as one area with respect to the commencement and continuation of effective mining operations. 98. Any ])arty may apply for a license to work without having ])revi(msly obtained or applied for a license to search, and in such case his application shall embody a description of the area applied for, and ui)on complying with all the antecedent conditions herein- before set forth, except those which relate solely to licenses to search, GEXKRAL MiyiXa ACT 885 and 11 bond boing given to the Surveyor-General as for a license to search, be shall be entitled to such license to work. tt4. The holder of a license to work, or those representing him, having coiuplied witii the terms of the preceding section, shall on or before the termination of his license be entitled to a lease of the premises described therein, which lease shall contain all the ordinary provisions of mining leases, with siicli conditions as the Governor- in-Council may thiidv necessary to ensure Die ettective and sale work- ing of the mines on such premises. LEASES. 05. Xo lease shall be issued unless it shall have been shown to the satisfaction of the Surveyor-General that the conditions relative to commencement and continimnce of effective nuning oi)erations in the license to work have been fully complied witii. 1>0. Leases of nunes, other than gold mines, or gold and silver mines, granted under tlie provisions of this Act, shall be executed by the Surveyor-General and the lessee in the same manner as provided in section Ki of this Act for leases of gold mines. (a) Leases of mines, other than gold, or gold and silver mim^s, sliall I)e for tiie term of twenty years, and shall contain all the conditions, i)rovisions, provisos, and reservations usually contained in sucli leases, or that may be required for the safe and ])roper working of the mines, or that may be re- quired by an order of the Governor in Council, or by this Aot or any Act hereafter passed by the Legislature of this Province; and such leases may be renewed on tiu' same terms and conditions as are hereafter provided, l)ut sucli renewals shall not extend or be construed to extend to a period beyond eighty years from the date of the lease: (h) In the granting of leases hereafter, there shall be reserved as a barrier a sjiace of ten yards in width, running all around the area leased, which barrier shall not be oiienod OP mined, except by the consent of the owner of the ad- joining area, or by the order of the Governor in Council; and in case of a mine in lands covered with water, the bar- rier or reservation as above, shall be twenty-five yards in width, and shall not be opened or mined, unless by the con- sent of the owner of the adjoining area, or by the order of the Governor in Council. 25—51 'm ■''■' b w 'd ^m i lip- I- •?ii*i I 880 NEW lilfDXSWICK (c) A lessee of a conl mine granterl imrler this Act or nny Act passed by the Legislature of this Province, shall not at any time during the term of his lease, or any renewal thereof, [.'" assi^m, transfer, set over or otherwise jiart with the pro- mises granted or any i)art thereof, for such term or any portion thereof, to any ])erson whomsoever without the ;, license, consent or a])]irobation of the Govb.'^or in Council first had and obtained for the purpose, and signified under the hand and seal of the Surveyor-General: (il) ' This sub-section, which was rcjiealed by 56 Vict. c. 10, s. 12, read as follows: ' The ratification by tlie Governor in Councii signified under the hand and seal of the Surveyor-General shall be equivalent in all cases to the license, consent and approbation of the Governor in Council first had and obtained for the purpose under sub-section (<■), and any assignment or transfer which has been so ratified, or may hereafter be ratified, is and shall be of the same force and effect as if such license and consent and approbation had been given before such transfer." (c) ^ This sub-section, which was repealed by 50 Vict. c. 10, s. 12, read as follows : ' " Any lease may at any time be surrendered by the lessee in the same manner and upon terms similar to thosie hereinbefore prescribed for the surrender of a gold or gold and sliver mining lease." OT. The Lieutenant-Governor in Council is hereby author- ized and empowered under any special circumstances which may seem to him to make it expedient and in the public interest so to do, and upon the recommendation of the Sur- veyor-General, by special order in Council to authorize the issue of a mining lease for a term not exceeding twenty years, and renewable in accordance with the provisions of section 96 of " the General Min- ing Act" and tipon such conditions as the Lieutenant-Governor in Council may think tit to any licensee under license to search or work, and for such area as may be fixed or prescribed in the order, and such lease may, notwithstanding anything contained in the said Act, or nny Act in amendment thereof, comprise and include areas embraced in several separate licenses to search or work.' ' Inserted by 56 Vict. c. lO, s. 12, which repealed s. 97 of the principal Act. 07ll. The annual rent payable by lessees of mines other than gold dnd silver shall be fifty dollars per square mile. 9H. All leases of copper and lead mines which have been or may be issued under this Act or any Act passed by the Legislature of this QEKERAL MINUS/O ACT 887 lal m Province, shall 1)0 liold and constniod to convey to the lessee or lessees tliciein named, and his or their assigns, all ores and metals held in lomposilion, assoeiaied with or contained in the copper or lead ores therein conveyed, and tlie same shall he snbjeot to the same royalties as are hereinafter provided for such ores and metal*. COHXIvR POSTS. 1H>. All lessees of nuning areas other than gold or gold and silver mining areas shall within six months after the issuing of such leases, place or cause to he placed at each and every corner of the areas con- tained in tiieir respective leases, a j)ost or nu)nnniont of stone or other durable material of such size, nature and character as the Surveyor- General may determine. (a) Kach jjost or monument shall have distinguishing letters or a suitable inscription cut or marked thereon, designating the corner where placed; ])rovidcd always, that in cases of areas, any corners of which are covered with Mater, or where the placing of siu^h posts or monuments at such corners woidd cause private or public inconvenience, it shall be lawful and requisite for the lessees, with the consent of the Surveyor-Ocneral to place such posts or monuments on the land adjoining such corners, in such position as shall be approved by the Surveyor-General; {})) The area of eaeli lease shall be defined as herein required, according to the priority of the granting of such lease, and the lessee of the area first leased shall give to the lessees of the adjoining areas, or their agents, a written notice that on a day named, to be not less tlian ten days after the service of such notice, a survey will be made for the purpose of establishing the boundaries of the area and placing the ])osts or monuments required by this Act. Such survey ' ' shall be made by a sworn surveyor, whose appointment shall be sanctioned by the Surveyor-General, and such surveyor shall make a return of such survey with an accurate plan thereof to the Surveyor-General; ((•) If within forty days after such return has been made by the surveyor to the Surveyor-General, no complaint be made to the Surveyor-General that the boundary lines of the area as so defined arc not in accordance with the lines as origin- ally defined, the boundary lines of the area as so defined by the surveyor shall as between the lessees be held to be the true and correct boundary lines of the area; Lull '■rm 888 NEW BRUNSWICK ((/) If witliin tlic! yoar above mentioned, from disagreement or otherwise, sueh l)oundary lines are not estal)lislied and de- fined as required by this Aet, the Snrvcyor-(kneral may cause a survey to l)o made and tiie area to bo defined as hereinbefore recjuired, and tiie boiiiuhiries so established sluiU be held to l)e iinally determined; (c) The expenses of all surveys and of the placing or erection of all such posts or monuments as required by this Act shall be paid by the lessees of the areas defined; and where such surveys are made and such posts or monuments are estab- lished by virtue of the next precedinjf section, sucli expenses may be sued for and recovered from the lessees in the minio of the Surveyor-tieneral as an ordinary debt of like amount; (/) Kach monument or post, as often as it shall be destroyed or removed, shall be replaced by the lessee at his own ex- pense within one month; and the proceedings therefor shall be tlie same as hereinbefore required for the original de- finition of the area; ((f/) Where the lessee is not the owner of the land included in tho area leased, and on which the boundary posts or monuments are required to l)e placed, he shall be at liberty to set them up on such land, but shall pay the proprietor for the dam- age caused thereby; (h) If the proprietor and the lessee cannot agree on the amount of such damages, the lessee may call on any three disin- terested justices of the peace for the county in which tho area is, to ap]iraise the same. The justices so called upon shall forthwith appraise such damages, and their award, or that of any two of them, shall .be final; (/) Each of such justices of the peace shall be entitled to ono dollar a day for the time actmilly and necessarily employed in making such appraisement, besides travelling fees at tho rate of two cents per mile, to be computed from the resi- dence of the justice to the place where the appraisement is made; such pay and travelling fees to bo paid by the lessee; ' (;') Any lessee neglecting to set np such post or monument, or to renew or replace the same when removed or destroyed, as required by this Act, shall forfeit a sum not exceeding ono hundred dollars for every such post or monument he shall neglect to set up or replace; (IIJNEKAL MINIXa ACT 880 {k) Any person wilfully destroying, defacing, injuring or re- moving any such post or nionunient, or attempting so to do, shall forfeit a sum not exceeding one lauulrcd dollursi for each offence; (/) Any penalty under this Act shall he recovered in the name of the 8urveyor-({eneraI, hefore two justices of the peace for the county wherein the olfence is committed, in the same manner as an ordiiuiry debt. QrAUTKULY IfHTTUXS. lOO. On or before tl;e Kith day of each of the months of Janu- ary. April, July and October in each and every year, the owner, agent or manager of every mine (other than a gold or gold and silver mine) leased from the Crown, shall send to the Surveyor-General a correct return, specifying the quantity of coal, iron ore or other mineral wntught or gotten in such mine, the i)robal)le use and desti- nation of the same, and the anu)unt of royalty which has accrued upon such material extracted during the last previous quarter; and on or before the last days of January, April, July and October in each year, a correct return specifying the number of days' labour and the nundier of ])ersons ordinarily employed in or about such mine below ground and above ground, and the dill'erent classes of the por- M)ns so employed, and the costs and description of all the shafts, quar- ries, slopes, levels, i)lanes, works, machinery, tramways, and railways, sunk, driven, ojiened ov constructed during the preceding quarter. Such return shall be sworn to by the agent or manager and by one or more credible ])ersons principally employed in or about the work- iuLf and management of such mine. ROYALTIES. 101. All ores aud minerals (other than gold or gold and silver) mined, wrought, or gotten uiuler authority of licenses or leases grant- ed under the provisions of this Act or of any Act heretofore passed by tiic Legislature of this Province, shall be subject to the following royalties to the Crown, for the use of the Trovince, that is to say: — Coal. — (1) Ten cents on every ton of two thousand two hundred and forty pounds of coal sold or removed from the mineS; or used in the manufacture of coke or other form of manufactured fuel. I 800 AEW URUXfiWICK I (2) Tho words "removed from tlio iiiiiios " in the preceding sec- tion shall not be held to be ai)i)lied to coal used for duinostic pur- poses by tile workiiicu eini)l()yed in and about encli mine; nor to coal used ill mining' oponitioiis in and about tho mine from wliich PiU'h coal has been gotten; but coal so used shall not be liable to pay royalty. (3) Nothing in this Act shall conijud lessees of coal mines in this Province to pay royalties on coal other than on the terms pre- scribed in tiio leases now outstanding until said leases expire; but any such lessee may take advantage of tiie provisions of this Act, and from the date of its passage, if so disjiosed. CorpKK. — Four cents n|)on every unit, tliat is, upon every one per cent, of copper contained in each and every ton of two thousand three hundred and fifty two pounds of copper ore sold or smelted. Lead. — Two cents upon every unit, that is, upon every one per cent, of lead contained in each and every ton of two thousand two hundred and forty pounds of lend ore sold or smelted. Iron. — Five cents on cv^'ry ton of two thousand two hundred and forty pounds of ore sold or smelted. Tin and Precious Stones. — Five per cent, on their value. Salt. — Two cents per Itushel, but no royalty shall l)e paid wliere the brine does not contain at least fifteen per cent, of salt in solution. (4) All leases of coal mines issued after the passing of this Act shall contain a provision that the royalties nuiy be increased, dimin- ished or otherwise changed by the Legislature. (5) From and after the passing of this Act, all royalties due to the Province shall bear interest at the rate of five per cent, per annum. (G) " All other ore siiall be subject to such royalty as shall be from time to time imposed by order in Council. Notwithstanding anything in this Act contained the Governor in Council may, by order in Coun- cil, whenever it shall be deemed necessary to assure speedy develop- ment, ])rovide that the royalty reserved under this Act shall not be im- posed or collected upon any ores mined, wrought or taken, until after five years from the date of the mining lease; and whenever concentrat- ing, smelting, reducing or other works are established within the Pro- vince, the Governor in Council may, by order in Council, make a reservation of a sufTicient tract of woodland in the vicinity of such afJNEItAL MINING ACT 801 Nvorks as may bo dcciiiod iu'cos.ay all costs which may be adjudged against him by the Court of Appeal; and thereupon the Surveyor- (ieneral shall file such notice and affidavit, together with all papers and documents connected with such appeal, with tlie Clerk of the I'leas at Fredericton, on or before the first day of such term. 107. Where notices are to bo posted on tlio promises under this Act, or any of the sections thereof, and the areas in respect of which the notices aie to be posted shall be covered with water, liie notices may be posted on tlie land, as near as conveniently may be to the areas so covered with water, lOH. Whenever a lease of a mine other than gold or gold and silver shall become forfeited under this Act, the Governor in Council may direct sucli additional terms to those i)rescribed thereby on which siuh mine shall be relet or regranted l)y the Surveyor-(ienoral. 101I. There shall l)c kept in the olHco of the Surveyor-General maps of tlie dilFerent mining districts in the J'rovince, on whicli shall le delineated as accurately as may be all the areas under license or lease as mines other than gold or gold and silver mines, and also a book or books of registry, in which shall be registered all the licenses iind leases of sucli areas, and such maps and book or books shall be oi)en to the inspection of the pul)lic. 110. Tlie provisions of tlie foregoing sections from 81 to 10!), lioth inclusive, shall apply only to mines otlier than gold and gold and silver mines. MISCKLLAXI<:orS. 111. The Surveyor-General may lease Crown lands, Ijcing within Ihe limits of any ])roclainied gold district, or comprising any tract within which the mines and minerals other than gold or gold and silver aie under litcnse or lease, for jmrposes other than mining, re- serving always the right of jtresent or future lessees of mining areas therein, and subject to such other reservations, and for such time and ii\)on such I'onditions as the Governor in Council nuiy direct; and may also sell any timber not previously disposed of growing or being upon any part of the Crown domain included within such gold district, or other tract under license or lease for mines or minerals other than gold or gold and silver, upon such terms as the Governor in Council shall authorize and direct. 112. Xo lease granted under the provisions of this .\ct siinll 1)0 void against any sulise(iuent jturchascr, mortgagee for valuable ion- GENERAL MINING ACT BOS sideration or Judgment creditor, by reason of such lease not having been previously registered in accordance with the provisions of the cha]iter of the Consolidated Statutes, of the '' Registry of Deeds and Wills." 113. The Governor in Council may at any time by proclamation as in this Act provided, declare a gold district, which shall contain an area or areas under license or lease, for the purpose of soarcliing for or working mines and minerals other than gold or gold and silver; and in such case the areas under such license or lease shall, notwith- standing such license or lease, become subject to all the provisions of this Act which relate specially to all gold districts and gold and silver mines, under such regulations as the Governor in Council shall make. 114. Tlie Governor in Council is authorized to make rules and regulations relative to gold districts, and gold or gold and silver mines and mines other than gold or gold and silver mines, and licensing and leasing the same, and to the ]nimping, draining, ventilation, working, management, care, possession and disposal of the same, and to all other matters connected with the same; and to make such rules or regulations general or applicable only to particular districts or localities as may be deemed best; and all such lules and regulations when i)ublishcd in tlie IJoyal Gazette shall have the force of law until annulled by the Governor in Council; provided such rules and regulations shall not be repugnant to the laws of the Province or the provisions of this Act, and such rules and regulations may in like maniu'r ])e altered, modidod or cancelled as eiroumstant'es shall require. 115. The forms to be used under this Act shall be preseril)ed l)y the Governor in Council from time to time. 11«. Any lessee or licensee of mining areas lying beneath the waters of the sea may nuike, or cause to be made, tunnels from the adjacent land above liigh water mark under the water to such mining areas, doing as little damage as possible to the owners or lessees of the land in whidi such tunnel shall be made, and the intervening land covered with wati'r, and the mines therein contained. IIT. The damages of such tunnelling shall be agreed for, deter- mined, settled and paid, as directed in this Act from sertiou U to section 2T inclusive, and also section 00. !f ;^: ^i H f 890 XEW BRUXSWICK lis. If the lessee or licensee of such mining areas cannot agree vith the owner or owners of the land, or the lessee or licensee of tlie mining areas tlirough which it is necessary to drive such tunnel, the Surveyor-Cieneral, suhject to the approval of the Governor in Council, shall determine whore such tunnels shall he made or commenced, llio number of such tunnels, the size, widtli and depth thereof, the quantity of laud to be taken and occupied for the same, and the course and dircctioji which such tunnels are to take through the in- tervening lands covered a\ ith water, and the mines therein contained, and he sliall ca\ise a jilan thereof to bo made and iilod in tlie office of the Eegistrar of Deeds for the county where tlie lands so taken for th'J commencement of the tunnels shall be situated. 111>. l.easos of mining areas shall be issued in duplicate; and such kase-i shall be registered in the Crown Land office. 130. A certificate of such registry, Avith the day and year thereof, shall 1 e ciulorscd ou the duplicate delivered to the lessee. I Si. In case ol' a lease or license, Avhere there are more than one lessee, a declaration in du]»licate nuiy Ite mado and signed uiuler teal by all the lessees, or their heirs and assigns, stating the propor- tion owned by each lessee, and such declaration shall be duly proved en oath and registered as hereinbefore mentioned. 133. All transfers of any interest in mining leases hereafter to b,' nuide, shall be registered as aforesaid, and a cortilicate of such registry shall be emlorsed on every transfer, as in the case oE mining leases; and such registry and cei'ti(ieato shall be conclusive evidence of the tiansfer of such mining interests. As to the construction of an agreement to acquire mining rights, see Gdold V. Stocliton, (1891) 31 N. 13. R. 57. i2Jt. '{'he forms of declaration and transfer for the iiurjioses of this Act shall lie as in Schedules (ii) ami ((') respectively. 124. i'vciy (ompany now or hereafter iiic(U'pornted under any Act of this Legislature, or by any other competent authority, hold- ing or working miiu's under this Act. shall hie a c()|)y of their charter (»r .\( t of Incorporation and by-laws or I'ogulations in the Crown Land office, before any such company shall commence work, together with a list of the olliccrs of such company, and all changes of officers niatle shall a'so be cerliCied to the Ci'own Lanil ollice ; ami until such (ert'ficat' is iili d no such new official need be recognized by the Snr\eyor-(ieneial as an official of any such coni[iany. GEXERAL MIMNU ACT 81)7 139. A description of all mortgsigcs, bills of sale, attaclunents, judgiiieiits, transfers and documents of title of any kind (except licenses), i elating to or in any way alVecting the title of gold or gold and silver, coal or other mines, shall l)e recorded according to Sclie- dule (1)) in the Crown Land Onicc; and all licenses and a description of all mortgages, bills of sale, attachments, judgments, transfers, and documents of title of any kind affecting such licenses, shall be re- gistered in the ])ook of application for mining rights in llie Crown Land Otlice, in the same manner as such licenses ami descriptions arc now registered; provided tliat such mortgages, bills of sale,.at- tachments, judgments, transfers, or documents of title, shall proceed from or be charged against the parties who may appear upon tho registry to be the lessees or licensees of such gold or gold and silver, coal or other mines, so to be transferred or to l)e encumbered; and any such nu)rtgage, bill of sale, attachment, judgment, transfer or document of title shall be void as against any subsequent bona ildo mnrtgiige, bill of sale, attachment, judgment, transfer or document of title which shall be previously registered. 13((. A dujdicate, or true co])y certided by a notary under his seal, of every transfer, mortgage or other conveyance registered as above, shall l:e filed in the Crown Land Oilice before a certilicate of registry is given. 127. If the applicant for a nujiing lease sluiU not execute such lease and iile it in the Crown Land Oflice for execution and registry by tlu' Surveyor-General within one year from the time of liis ap- ])licati()n, the areas shall be considered vacant, and applications for a lease or license may be received. V2H. Tile Survi-yor-Oeneral shall have jtower to cause witnesses to be bi ought before him in all contested cases or nuitters which lie luis power to investigate ami decide, to be examined under oath, vhich oatii the Surveyor-Ceneral is hereby empowered to administer, and like powi'rs are hereby conferred on his dejjidy in all contested . AVhere royalties are clue and owing- to the Crown, the Gov- ernor in Council shall have i)ower to order the Surveyor-General to issue a warrant under his hand and seal of oflice, directed to the sheriir of the county where the mine in respect of which such royalties are due is situated, requiring such sherill', immediately on recei])t thereof, to levy on the goods and chattels used in worlving and o])erating such mine; and if within the space of twenty days next after such levy, such royalties so due are not paid to such sheriif, to proceed to sell the same, or so much of such goods and chattels as shall Le ^iifiicient to i)ay such royalties and his fees, first having pu))- licly advertised the same for the space of not less tium ten days before such sale, and to make return of such warrant, and pay over the suna due for such royalties to the Surveyor-Gi iieral within thirty days from the issuing thereof. Upon the receipt of such order, the Surveyor- tiencral shall issue such warrant and deliver the same to such sheriif, who shall immediately execute the same, according to the exigencies thereof, and the sherilf's fees on such execution shall be the same as for executing a writ of execution out of the Supreme Court in a civil suit. IJiO. Leases and licenses shall terminate on the recurrence of the day on which they bear date in the year of their termination, and after ten of the clock of the forenoon of the following day the areas may be leased or licensed anew; but noliiing contained in this sec- tion shall prevent the renewal and extending of licenses and leases as hereinbefore provided. IJJl. If any lease or any share or interest therein become trans- mitted or transferred in consequence of the death, bankruptcy or in- solvency of any lessee, or in conse(piem-e of the marriage of any female le>^see, or by any means otiier than a transfer according to the ])rovisions of this Act, such transmission or transfer shall be authenti- cated by a declaration of the ])erson to whom saeli lease or share or interest therein has been transmitted or transferred, stating the cir- cumstances of such transmission or transfer, and describing the manner in which, and the person to whom such ]vroperty has been transmitted or transferred; and such declaration sliall be made be- fore the Surveyor-General or Deputy Surveyor-General, or a justice of the peace. (IKXKRAL MIXING ACT 899 i:i3. If siR-h tninsuiission or transfer shall have taken i)lace by virtue of the bankruptcy or insolvency of any lessee, such declara- tion shall be acconiimnied by such evidence as may for the time being be receivable in Courts of Jiislice, as proof of the title of persons claiinin<^' under any bankruptcy or insolvency; ami if such transmis- sion has taken ])laco by virtue of the nuirriage of a female lessee, such declaration shall be accomi)anied by a copy of the register of such marriage, or other legal evideiU'O of the celebration tliereof, and siudl declare the identity of such female lessee, and if such transmission shall have taken place by virtue of any testamentary instrument or by intestacy, then such declaration shall be accompanied by tiu' pro- bate of the will, or the letters of administration, or any cojjy tliereof that may be legal evidence, or would be received in Courts of Justice as jtroof of such transmission. 133. The Surveyor-General, upon the receipt of such declaration so accompanied as aforesaid, shall enter the name of the person en- titled to the lease, or any share or interest therein under such trans- mission or transfer, in the books of registry as so entitled thereto. 134. The Lieutenant-Governor in Council is hereby authorized and empowered to name any head of Department in the Government to i)erform the duties and exercise the powers by this Act conferred upon the Surveyor-General, in case of the absence of the Surveyor- General, or of vacancy in the office, or for any other cause deemed by him sufficient therefor, and such other head of Dej)artment shall, in performing any of the duties or exercising any of the powers con- ferred by this Act, be styled " Acting Surveyor-General." 135. The Deputy Surveyor-Geiuu-al may act lor and instead of the Surveyor-General, or for and instead of the Acting Surveyor- General in any emergency, and the Governor in Council is also hereby authorized to ai)point a Chief Inspector, or County Inspectr tlio i)o\\t'rs hy this Act eonrerred upon the warden of a iininkii'ulity may, in case tlic warden is an intorosted party, or tliort' 1)0 n) warden at the time, be exercised by a Judge of tho County Court oi' the Coujity in which the kuid.s lie, or a Judge of tlio kSupicme Court. liiH. Ill lespect ol' granted lands wherein the owner of sudi lands (or the assignee of such owner who has gone to expense in tlio }mrchase, as he believed, of mining rights or interests) has made ex- plorations, or actually commenced mining operations before the [lass- ing of this jVct no lease or license shall be made under this Act to any person, other than sucii owner or assignee, until such owner or assignee has had notice of application having been made therefor, which notice may be sutliciently given by [lublication (hereof by tho Surveyor-Cieneral for thirty days in the lioj-al (Jazette, or in such manner as the Surveyor-Cieneral shall direct, and thereupon the (iov- einor in Council shall examine into the matter, and take such action as in his discretion shall seem just, taking into account tho cireum- btances of each case; provided however, that any such owner or as- signee shall be subject to the payment of all royalties, and to the other })rovisions of this Act, so far as the same are a})plicable to his cate. ItSMn. A lease of mines and minerals, which by Statute or other- wise ha\e been exempt from royalty to the Crown, covering an area not exceeding one square mile in one block, may be granted by order of the Covernor in Council after a license to search or work has been granted upon a])plication of the licensee or Li; executors, adminis- trators or assigns, subject to the provisions contained in section l;J8. 13Mb. Notwithstanding anything in this Act contained, the Sur- veyor-General shall have the power, whenever he may deem it ad- visable so to do, upon the application of any person interested, to grant upon such terms and for such ]»eriod as he may see lit a license to the owner of any land to search for and mine therein maiiganeso only. ISO. Chiipter IS of the Consolidated Statutes, of "Mines and Minerals,"' is hereby rejiealed, and so much of chajiter 1!> of the Consolidated Statutes, of "The Escheat of Mining Leases and ^lill Keserves," which is inconsistent with any of the provisions of this Act, is^dso hereby repealed. ]»»a. This Act |5r) Vict. (1S92) c. 10 (passed Ttli Apl. 18!)'^)1 shall be taken, read and construed as part of The (ieneral Mining Act. ji CHAPTEli XVII. XOYA SCOTIA. "the mixes A\I) MIXKKAL ACT, 181)2." ^ Act, 1893, c. 1. Fussed the 30lh daij of April, A.D. ISO J. 1. Tlic word '• iiiiiio " in this cluipter shall mean any locality in whicli any vein, stratum, or natural bed of coal, or of niolallii'orouii oru or rock exists, or sliall or may be worked. The verl) " to mine " in this chapter shall include any mode or method of Avorking whatso- ever wliercby the ore, earth, or soil, or any rock, may I)e disturbed, removed, washed, shifted, smelted, refined, crushed or otherwise dealt MJtli for the ])urposo of obtaining gold, coal, iron, copper or any other ore or metallic subslanco, and whether the same uuiy have been previously disturbed or not. Tile term "gold-bearing cpiarlz " sluill be jield to nu-an all gcild- bcaring auiiferous rock in situ. '•Alluvial mine" shall be held to mean gold-l)earing cartli or rock elsewhere than in situ. The terms " Commissioner '" and '■Commissioner of Klines" sliall bo hchi to mean the Commissioner of Public Works and Mines, and the term "Deputy*' shall be held to mean the Deputy Commis- sion '• of Public ^V()rks and !Mines, and the term "Deputy Commis- sioner" shall be hchl to mean Dejjuty Commissioner of Klines. "lessee"' shall include and mean suI)-lessco or any ])erson de- riving title to a mine througli a lessee of the Crown, unless sucli in- terjtretation is repugnant to the context or to the spirit of this chap- ter. The words '•licensed mills,*' when used in this chapter, shall signify mills and maclunery licensed under this chapter, and the M-ords "licensed mill owner," the person or persons to whom such license shall be granted. The words "' ]m")specting license," when used in this cliapter, £hall signify a license to search for mines of gold or gold and silver. 2(i— M 11' I ! I ! I I -1U2 AOI.l SCUTJ.i Tlio \V(ii'- siicli ollice hours, and all such applications made at other times shall bo void, save that applications received l)y post at said ofiice out of ollico hours shall he deemed to have been received immediately after the commencement of the next ollice hours. 3. The Governor in Council sliall continue to be authorized to se- lect and appoint, when and as often as occasion may recjuirc, a suitable 2)erson to act as Comnussioner of I'ublic Works and Mines for the Province, who sliall he a member of the executive Council of the Piovince, and suitable ])ersons to act as l)ei)uly Commissioners of Klines in the .several ffold districts hereinafter ])rovided for, and to define the limits of the jurisdictions )f such Deputy Commissioners respectively; and by virtue of and during the continuance of such itjipointment sucli Commissioner of Public Works and ^Fines within the Province, and such Deputy Commissioners within the gold dis- tricts for which they are rpsjiectively appointed, shall exorcise the poweis of Jusiicc of the Peace. Provided always, that no such Com- missioner or Deputy shall act as a Justice of the Peace at any Court of special or general sessions, or in any matter out of session, except 1 Tin: .1//.V/;.S .lA/> MlSEltAL ACT 403 for tho iuliiiinistcriiin- (,r oatlis, Ur' itivscrvalion of llu' iicacc, the [uv- vc'iitina (.r ciiiiios, the (U'lcilidii iiiid (oiiiiiiitiufiit of oIlViidtTs iind tho CiiriTiii^' out of tlio provisions oi' this eliapter. 4. 'I'lii' (Jdvcnior ill ('(Hiiuil is authorized to Bch'ct and apiioiiit, uh( n and as olton as oceasiuii may rt'ijiiiro, a suitable; |)cr>oii to iwt ns Deputy t'oiiiuiissioiier oi' I'uiilie Woriss and Mines for tiie i'rovinee, and to (I'lliie tlie limits ol' liis aiitiioiity and jurisdietion; and \>\ vir- tue (if and durin^i;- the eoiitiniianeo of sucli appointment, such Depuiy Connnissioner of I'uhlie \Vorl, ■>. IMAGE EVALUATION TEST TARGET (MT-3) .V *^ ^k A 1.0 lAAlM |2.5 no "^ B^B 1^ 1^ 12.2 I.I IJ5 S 134 ■" tut ill IM Illli4 ^^ <^ ^ Photographic Sciences Corporation 23 WKT MAIN STRUT WnSTIR.N.Y. MSM (71*)I7!)<4»03 \ SJ \\ '^ Is ;V 40i XOYA SCOTIA i with such sureties as may be fixed by the Governor in Council, and neither they nor any employee of the Mines Department, shall be directly or indirectly interested in any mine or mining ojierations, or in the proceeds or profits thereof, nor shall any of them act as the agent or attorney of any person interested therein, under penalty of one thousand dollars for every offence against this section, to be re- covered in the Supreme Court by action in the name of the Queen, instituted by the Attorney-General. 7. Tlie Deputy Commissioner of Public Works and Mines, the Deputy Commissioner of Mines, and the Inspector of Mines and 1 'eputy Inspectors, shall be incapal)le of being elected to or of sitting c r voting in the House of Assembly, and any or either of them who shall so sit or vote shall forfeit two hundred dollars for every day on which ho shall so sit or vote, to be recovered in the Supreme Court by any person suing therefor. Xone of such officers shall take any part, or use any influence, directly or indirectly, in the election of any representative to sit in the Assembly, under a penalty of two hundred dollars for every such offence, to be recovered in the Supreme Court, by action in the name of the Queen, instituted by the Attor- ney-General. S. The Governor in Council 's authorized to select and appoint a Board of Examiners, to be composed of tlie Inspector of Klines and nine persor.s conversant with coal mines, such persons to be ajipointod biennially by the Governor in Council. Three of them shall he mine managers, tl ree working miners, and three experienced mining engineers, or mc i of practical ability, not in connection witli any coal mine in operation. The Deputy Inspectors of Mines may be put on the Board in lieu of mining engineers. It shall be the duty of the Board to examine colliery officials. The Province for tlio ])urpose of this section, shall be divided into three districts called respectively Cumberland, Pictou, and Cape Breton districts, as defined from time to time by the Commissioner, and the Board for the purpose of examination shall be divided into divisions, one division for each, district. Each divisio hall examine all candidates in its respective district. The ])ai)ers of the candidates shall, for the purpose of examination, be referred to a general meeting of the Board, at which there must be present at least one member of tho Board from each district, and the successful candidates shall be re- commended foi' certificates under this Act, or under chapter 8, l?e- vised Statutes, " Of the Regulation of Mines." I THE MINES AND MINERAL ACT 40,- OF GOLD AND GOLD AND SILVER MINES. 9. The Governor in Council, on being satisfied of the discovery of gold or gold and silver in any locality, may, by proclamation in the lioyal Gazelle, of this Province, declare such locality to be a gold district, and assign limits and boundaries to such district, and from time to time enlarge, contract or otherwise alter such limits. (a) The Governor in Council may at any time, by proclamation in the Hoijal Gazelle aforesaid, declare that any locality previously proclaimed a gold district has ceased to be a gold district. 10. All mines of gold or of gold and silver shall hereafter be laid olf in areas of two hundred and fifty feet length [magnetic] '• meridian, north and south, and one hundred and fifty feet east and west. These areas shall be known and described as Class Xumber One. ' By Act of 1893, c. 3, s. 1, the word " true " was struck out and the word " magnetic " inserted instead. 11. ^Mining areas, which, before the passing of this chapter, have been laid out in the manner heretofore in force, shall not be affected l)y the provisions of the next preceding section. Should such areas for any cause revert to the Crown, the commissioner may direct tlio same when applied for, to be laid orrt in such manner as ho may deem advisal)le. '' And when any area or areas hei-eafter applied for under pro- s]>ecting license or lease may l)e bounded upon any area or areas that have been applied for before the passage of this Act, or l)e so situated Ihat the courses and 1)oiindaT'ies thei'cof may run upon any area or areas heretofore api)lied for, then the Commissioner shall have power to direct that such areas so applied for after the passage of this Act sliall be laid out in such manner as he may deem advisable." (Added by Acts 1893, c. 3, s. 2.) 13. Ai'cas shall he laid out as far as possible uniformly and in qiiadrilaleral and rectangular shapes. Surface measurements of areas shall bo horizontal, and each area shall be bounded by vertical planes jassing through the horizontal surface lines. Thj relators in this case sought to have a lease granted by the Crown of certain gold miningi areas set aside on the ground that it had been granted improvidently, and in derogation of relators' rights. They had taken out a lease in April, 1862, but were in arrears for rent thereon in February, 1863, when a new lease was taken out and some rent paid on its account, but none of the rent then overdue paid. After working i ' I'-' 'I 406 yOTA SCOTIA on the areas for a month all operations were discontinued, and in Octo- ber of the same year the gold commissioner declared the lease forfeited, and granted the areas to other parties. This lease also being forfeited, another lease was granted to third parties in 1866, and in 1868 the re- lators sought to have this lease set aside, alleging that they had been misled as to the law by the deputy gold commissionei-, but this was con- tradicted. Held, that the relators had not shown any ground for the lease being set aside, they having forfeited all claim to the areas, and that, in any event, they were too late in applying for relief. Queen v. Snow, (1873) 9 N. S. R. 373; 3 N. S. D. 373. 13. Surveys of projiertj' held under lease may be ordered by the Counnisi^iouer, and sliall l)o iiiado by persons duly authorized by the Conmilssioner. Lessees of the property to l)e surveyed shall be noti- lied by the survej'or to be present on the ground on the day and hour named for the survey, and the surveyor shall as far as practi- cable notify the holders of leases of adjoining properties. (d) At the time appointed, the surveyor shall proceed to make th. urvey as accurately as possible, and define and mark each corner of the ])roperty or jiroperties surveyed; if no ol)jeetiou be taken at the time by any of the ])arties interested, the corners so marked liy the .-uiveyiU' shall be held to be fixed and determined, save as in the next sub-section provided. (h) If the lessee or lessees interested in the survey, or his or Ihoir representatives, on account of unavoidal)le circumstances, fail to appear at the time a])pointed for the survey to be made, or if ho or they feel dissatisfied with the corners marked l)y the surveyor, he or they n)ust state their objections to the Commissioner, in writing, within two months from the date of the survey, otherwise the sur- vey that has been made shall be held to l)e valid, and the boundaries indicated by such corners to be true and fixed. (r) The Commissioner, on receiving a statement of objections, as provided in the preceding sub-section, and a sum of money equal to double the cost of the first survey, may order a second survey, Mhich sluill in all cases be held to be valid and binding on all parties iiiteiesttd. If the first survey is found to be correct, the ex]"?nse of the second survey shall ])e ]iaid out of such sum, and the balance of such sum, it any, shall bo re]iaid to the party or parties objecting, otherwise the expenses shall be borne by the Depnrtment, and the sum of money deposited by the applicant refunded to him. (il) Surveyors shall have ])ower and are hereby required to ad- nn'nistor oaths to the chninmen and others employed by them to assist THE MIXEI^ AXD MIXERAL ACT 4or ill making the survey, binding tlicm to tlie due and faithful perform- anco of the duties tliey may be called npon to perform, — tlic form of oath to be similar to that in Schedule II to this chapter. I'l. Tiio Commissioner shall also cause to be estaldislied, M-ithin throe iiiontlis after application for the same by any lessee or licensee, in any ])roolaiiiicd district, and also in any unproclaimed district where at least one hundred areas have I)een ajipiied for, a base line of not less than four liundred and iifty feet in length, to be laid off [magnetic] ^ meridian east and west. Such base line shall be marked at its two ends or termini by substantial, permanent, and accessible monuments, with proper iiiscri]itions marked thereon; and all areas shall be laid olf from this base-line by lines parallel to tlie same or at riglit an- gles to it, or its coui'f-e prolonged; and any person reniovijig, altering, obliterating or defacing such monument or monuments, or any mark thereon, shall forfeit a sum of not less tlian on hundred nor more than five hundred dollars for each offence, to l)e recovered l)y the Commissioner or any person suing therefor in. the same manner as an ordinary debt. ' By Acts of 1898, c. 27, s. 2, the word " true" was struck out and the word " niagnctic " was substituted therefor. 1*5. Tliere sluiU be kept at the office of the Commissioner a boolc of record for proclaimed gold districts, and for unproclaimed dis- tricts or places, in which applications for leases of areas shall l)c en- tered, and another liook in which api)lications for prospecting li- censes sliall l»e entered. All applications for areas shall be entered in tlie ])ro])er 1)ook with tlie jirecise time of their being made, with the description of the areas applied for, the amounts paid, and the names of the applicants in full, with their address; and each Deputy Com- missioner shall keep a book nf record, wherein shall be entered all np])lications for areas, witli the precise times of their being made, showing the descriptions of the areas applied for, the amounts paid, I he nan-es of the applicants in full, with the names of the parties paying, the amounts of royalty received from the licensed mill owners, the names of the licensed mill owners, tlie amounts of royalty received from otliers than mill owners, the names (tf parties juiying such royalty, the distinguishing numbers of llie areas, or the numbers of the leases covering the areas from which the gold, or gold and silver, was obtained, in respect of which such royalty was paid; and each deputy shall each week forward a return to the olfice of the Commissioner, which return shall be a true tran- t^cript of the entries made in such book of record during tlie week il'' 408 iYOl M SCOTIA I previous to the making of sucli return, and shall then remit to tlio Commissioner the several sums so i)aiil. Sucli book of record shall he open at all reasonable times to the inspection of all persons de- Biring to see the same, on payment of a fee of twenty-five cents. 1 6. TJie Commissioner shall cause to l)e prepared, and shall keep in his office, i)lans of all gold districts, with the areas nunil)ered thereon, and on which all areas applied for sliall be distinctly desig- nated ])y nund)ers. Each ])e])uty Commissioner shall prepare and kcc]) a duplicate of a plan of the district under his jurisdiction, on which all areas applied for in such district shall ])e distinctly desig- nated; and shall in his weekly returns report the distinguishing nuni- beis of the areas a]iplied for, as indicated on sucli plan, 17. All applications for leases of areas (and for prospecting licenses to search for gold and silver hereafter)^ shall ])e made to the Deputy Commissioners for tlie districts in which the areas are situ- ated, if tliere be deputies for such districts; and whore there are no deputies for such districts, or where the areas applied for are not within any proclaimed district, the applications shall bo made to the Commissioner or Dejmty; and no such applications shall be received for areas already ap])lied for or under license or lease.- ' Inserted by Acts of 1893, c. 3, s. 3; see also Acts 1893, c. 3, s. 4. - Held, that the 4th Rev. Stats, c. 9, contemplates tho grant of both licenses and leases in all districts, whether proclaimed or unproclaimed. The first applicant, whether for a license or a lease, is entitled. Appli- cations must be made in writing to the Commissioner or Deputy Commis- sioaer. A licensee is entitled to a lease under s. 42. " Occupying and staking off," is not a condition precedent *o all leases in an unproclaimed district. Not reported below. Mott v. i-,ockhart, (1883) 8 App. Cas. 568; (1883) 52 L. J. P. C. 61. The provisions of the Mines Act for the appointment of arbitrators, the making of an award and the payment of damages where a mining lease is obtained over private lands, and no agreement Is made with the owner, are conditions precedent to the right of entry. Leases may be granted in unproclaimed as well as proclaimed dis- tricts. The provisions of the Act limiting the number of areas to be in- cluded in a lease is directory only, and disregard of it by the Commis- sioner will not invalidate a lease. It is too late to take exception to defects or irregularities in an application for a license to search, or in the license itself after the appli- cation for the license has been received and acted upon and a lease issued, unless fraud is shown up(m the part of the licensee in respect of a matter material to his right to get a lease. ^n^ THE MINES AND MINERAL ACT 409 When .application Is made for a license to search, and a lease Is subsequently obtained, without the license to search having actually Issued, the non-issue of the license to search is no objection to the lease. In signing a lease it is not Incumbent upon the Commissioner of Mines to attach to his signature his title of office, if the capacity in •which he signs appears sufficiently from the body of the document. The expressions " district " and " gold district " In the statute do not necessarily mean a " proclaimed gold district." The fact that an application for a llcenEe to search conflicts with a previous application, will not invalidate either the application or the subsequent lease, if at the time of the granting of the lease the first application has expired without having been acted upon. Defendants' application described the areas applied for as "com- mencing at a birch tree marked A. D., and being on the east side of Salmon River about five miles above the bridge." It appeared that the tree was about 2,000 feet distant from the river, and considerably less than five miles from the bridge in a direct line. Held, that the tree being otherwise sufficiently identified, the description was not vitiated by the errors as to locality and distance. Fielding v. Mott, (1885) 18 N. S. R. 339; (1885) 6 R. G. 339; (1885) 6 C. L. S. 491. On appeal to the Supreme Court of Canada it was held, affirming the judgment of the Court below, that where a mining lease was ob- tained over private lands in Nova Scotia, the lessees must obtain from the owners of the land permission to enter either by special agreement or in accordance with the provisions of " The Mining Act," 4th R. S. c. 9. Mining leases may be granted in all districts whether proclaimed or unproclaimed. A mining lease is not invalid because it includes a greater number of areas than is provided by the statute, such provision being only directory to the commissioner. The issue of a lease cures any irregu- larities in the application for a license, or In the license itself in the absence of fraud on the part of the licensee. Fielding v. Mott, (1886) 14 S. C. R. 254. is. Kvory application sliall be in writin^f, (lefiniii<; the area or areas applied for, and sliall be accompanied 1)y a jiayinent of two dollars for eacli and every of sucli areas; wliicb shall bo considered to bo the annual ])ayiiient in advance for the first year that the lease is ontsfaiidinfi:, and the C'oniniissioner or I)ei)iity Conmiissioner, as the ease may he, receivinji snch apidication shall endorse thereon the precise time of such receipt. {(i) This sub-section, as it was originally enacted, has been re- pealed l)y Statutes of 1893, c. 2, s. 2, and the following substituted: And wlienever any area shall have been leased as herein i)ro- vided, the owner thereof shall, on or before the expiration of the first year that the lease is outstanding, pay in advance to the Com- w 4in XOTA SCOTIA inissionor or Deputy Coinmissioiior, ns the case niny be, the sum of fifty orufs for each and every of such areas or portion of every area contiiinc'd in liis lease, and sliall thereafter continue to make the same ]iayMienls annually in advance, and in the same manner for tiie re- maining number of years that the lease is outstandinc in the form in Schedule A, hereto annexed, and shall contain all tiie grants, demises, reservations, covenants, ])romises, jjrovisions, conditions and agreements mentioned or intended in or l)y such Schedule; and sliall 1)0 su])ject to and contain the reservations of tlio rights of the owners of the soil, llieir lieirs and assigns; and such lesser", his executors, administrators or assigns, where sucli lease is granted on private lands, sliall, before making entry on such lands, obtain from the owners tliereof permission to enter, eitlier by special agreement or in accordance with the provisions of this chapter.^ ' It has been decided under " The Mines Act," R. S. N. S. c. 7, s. 19, that, " Before acquiring the right to appoint an arbitrator . . the warden must be satisfied of the existence of several facts. 'I'he Inquiry into and determination of these facts Involve the exercise by him of judicial discretion, and in iiddltlon to that the act of appointment was In itself also a judicial act. . . The warden having judicial L'lties imposed upon him was bound on their performance to observe the rules which govern in such cases— to the extent at all events of hearing the other tide. See Lord v. Lord, (1855) 5 E. & B. 404. In re Hopper, (1867) L. R. 2 Q. B. 370-6, and the observations of Bayley, B., in Capel v. Child, (1832) 2 Cr. & J. 558." Per Meagher, J., in Palgrave Mining Co. v. McDonald, (1891) 24 N. S. R. 74-75; (see also Nichols v. Camming, (1877) 1 S. C. R. 407, per Strong, J.), but see Palgrave Gold Mining Company v. McMU'an, (1892) App. Cas. 460, referred to in note to sec. 21. /i'<.s7. Also that the award cannot be made until after the «'xtent of territory to be occupied has been determined by the Inspector. (lb.) Such an agreement or proceeding by way of arbitration, under section 1:0 vt ftcq., is a condition precedent to the right of the lessee to enter. Fielding v. Mott, (1886) 14 S. C. R. 254. Held, affirming the judgment of the Court below, that where a min- ing lease is obtained over private lands in Nova Scotia' the lessees musi, obtain from the owners of the land pennlssion to enter either by special agreement or in accordance with the provisions of "The Mining Act," R. S. N. S. (4th series) c. 9. Mining leases may be granted in all districts, whether proclaimed or unproclaimed. A mining lease is not invalid be- cause it includes a greater number of areas than is provided by the statute, such provision being only directory to the commissioner. The issue of a lease cures any irregularity in the application for a license or in the license Itself, in the absence of fraud on the part of the lessee. Sir W. Ritchie, C.J. (255): I think the judgment of the S. C. of N. S. as delivered by Thompson, .T., in this case, conclusive against the appel- lants. ... I do not think I can with advantage add anything to what has been so forcibly and conclusively put forward by Mr. Justice Thompson in delivering the judgment in the Court below, (1885) (6 Russ. & Geld. 339); Fielding v. Mott. (1887) 14 S. C. R. 254. nili \\ 412 2S"0r.l SCOTIA 20. Wlicn the holder of n lease of areas on private lands cannot make an ngiet'iiicnt with tlie owner lliereof J'or leave to enter and for eiiseiuents, and for damage to snch lands, and for the other purposes mentioned in section 22 of tliis chapter, it shall he laAvful for such holder to give notice to the owner or tenant to a))]ioint an arhitrator to act witii another arl)itrat(>r named by tiie lessee of the areas, in order to award tiie amount of damages to which the owner or tenant shall he entitk'd. hy reason of the opening and working of a mine in siuh lands, and the doing tlie acts or things contemplated hy this pection and caid section; and if any lessee shall enter and work upon the land leased before he sluiU have agreed with the owner of the lind, or have his damages ap|)raised in accordance with this section, he shall he liable to the owner for trespass as in ordinary cases. In The Town of Stcllarton v. The Acadia Coal Company, decided by Mr. Justice Graham on the 20th December, 1897, the facts alleged were that the plaintiff was a body corporate, and the owner in fee and occupant of the streets and lanes within the corporate limits of the siald Town, in- cluding the lands and premises therein described; that the defendant com- pany was a body corporate, incorporated by chapter 04 of the Acts of the Legislature of Nova Scotia for the year 18G5; that by chapter 1G2 of the Acts of said Legislature for the year 1886, all the property of every nature and description of the Halifax Company, Limited, and the Vale Coal, Iron and Manufiicturing Company, including the leases held under chapter 7 ol the Revised Statutes of Nova Scotia, 5th series, to certain coal mining areas covering and including within their limits the property hereiu.xfter described, became vested in the defendant company, and the defendant company thereby derived its title to said leases from the said Halifax Company, Limited, and the defendant company has since held, renewed, and obtained, and now holds the said coal mining leases covering the said limits, under said chapter, and under chapter 1 of the Acts of the I^eglslature of Nova Scotia for the year 1892; that by reason of the works of the parties holding said mining leases, and of those under them, the plaintiff, in theyears 1895 and 1896, while the defendant company held said leases as aforesaid, suffered damage by reason of the falling in and subsidence of the lands described as follows: — Beginning on the northern margin of the road leading from Stellarton past the McGregor slope, to the Westvllle road at a point 65 feet in a south-westerly direction from the south-east corner of the most eastern house of the Foster Pit Row; thence westerly along the margin of the said ro^ad 420 feet; thence southerly 50 feet; thence easterly along the southern margin of said road 420 feet, and thence northerly 50 feet to the place of beginning, which subsidence was caused by the works and excavations of the parties holding said leases, and while said damage was sustained subsequent to any agreement for or award of damages required by said chapter 7 or chapter 1, or .any Acts in amendment thereof, whereby an action accrued to the plaintiff against the defendant company. The defendant denied that the plaintiff corporation is the owner In fee, or at all, of the lands THE MINES AND Miy,El{\L AVT 413 described In the claim; that llu' plalntUl" was the occupant of the lands described In thi> cliiiiu, and aald that any occupation of said lands by the plaintiff was by leave and license of the defendant; that the lands were the lands and premises of the defendant Company; that tht; leases held by di'fendant Company were held immediately from the Queen, represented in that behalf by the Commissioner of Mines and Public Works for the rrovlnce of Nova Scotia, and not from the Halifax Company, Limited, and denied that the falling in or subsidence of the lands described In the claim, or any part thereof, was caused by any of Its acts or Yorklngs, or from the acts or workings of the Halifax Company, TJmlteil,()r any per- son or corporation from whom the company derived its title to said leases, and denied Ihat the subsidence was caused by or from the workings of any person or corporation, and said that at the time said excavations were made, the person or corporation making the same was the owner in fee of the lands described In the claim; that the said excavations were made by the leave and license of the owner in fee of the lands; and that the plainitff's claim. If any, was barred by chapter 112 of the Revised Statutes of Nova Scotia. 5th series. The judgment of Mr. Justice Graham was as follows: — " I have no dlfUcuity in finding as a fact that the subsidence of the land (a portion of the street in the Town of Stellarton) was caused by the excavation beneath in working the mine of which the defendants are the present lessees. There Is evidence that the General Mining Association, predecessors in title of the defendants, worked in that locality. Then there is the fact of the subsidence which would bo unaccountable in this country unless it was due to human agency. Besides, the facts are peculiarly within the knowledge of the defendants, and it was very easy for them to show by the plans of the underground working that Lannon was mistaken if that was the case. I also find that this street was formerly a public road, and according to our law the fee was divested from the original private owner. But the last work of excavation proved was in 1870, long before the defendants had acquired the title, and although the subsidence took place since and during the currency, there is no liability. The case is, I think, within the decision in Greenwell v. Low Beechburn Coal Co. (1897) 2 Q. B. 165. The plaintiffs, however, rely upon sections in the Mines Acts, namely, section 20, made applicable to coal mines by section 105, section 20 and fidlowing sections relate to compensation to the owners of surface pro- perty to be made by the mine owner in connect'on with the opening and working of the mine. 1. — In my opinion the common law liability is not extended by rea- son of anything in those provisions. Before this (1892) the penalty upon the mine owner for entering and working before making an agreement with the surface property owner, or arbitrating in respect to the damages, was a liability to have the lease forfeited by the Supreme Court on an application of the person complaln'.ng. R. S. c. 7, s. 18. 1 1 M It liiiii '■ 1 1 41'i A or. I SCO 77.1 Perhaps that was considered too drastic. At any rate there was an amendment, and thi- penally now is, that he shall be liable to the owner for tresiiass as In ordinary cases — that la, the owner shall have his com- mon law remedy. The Leglslatun- may have thonght that th.s mode of amendment would be clearer than simply to repeal the provisions about the liability to have the lenHO forfeited. 2. — Subsidence Is all that the plaint ifis can complain of in regard to their land, and is all the defendants can be connected with. I think that this would not come within the scope of the arbitra- tor's powers under the sections in Question. They arc comprehensive, no doubt, as will appear by Palgrave v. McMillan, (1892) A. C. 460, but as was said by Bruce, J., in Oreenwell v. T^ow Heochburn Coal Co.: ' When I find that the powers granted do Include a gre.it many thing.s which, apart from subsidence will necessarily damage the surface, I think I may adopt the language of Lord Blackburn, in l>avis v. Ireha. .lo, and say that the reasonable conclusion is that the compenaallon is intended to apply to damage caused by things done in the exercise of those rights.' If that is so, the defendant was not obliged to agree, or to arbitrate with the plaintiffs; the section did not apply, and the plaintiffs are left to their common law remedy, and in consequence of Greenwell v. T^ow Beech- burn Coal Co., they have none. The action will be dismissed, and with costs." SI. '^riio notice iiiontionod in the last preceding section shall, when i»racticalt]t'. ]w jiersoiially served on such owner or hi.-t iigent, if known, or tenant; and after reasonahle ell'orts have been made to elFect j'crsonal service without success, then such notice shall be served by leaving it at the last place of abode of the o wrier, agmt or tenant. Sucii notice shall be served, if the owner resides in the county in which the land is situate, ten days, if out of the ouuty, twenty days. Jf the proprietor refuses, declines or omits to appoint an arbitrator, or when for any other reason no ar])itrator is appointed by the proprietor in the time limited therefor in the notice provided for in the next preceding section, the warden of the municipality wherein the lands lie, shall, on l)eing satisfied by atridavit that such notic." has come to the knowledge of such owner, agent or tenant, or that such owner, agent, or tenant wilfully evades tiio service of such notice, or cannot be found, and that reasonable elforts have been made to effect such service, ai.d that the notice was left at the last plac.,' of abode of such owner, agent, or tenant, ajjpoint an arbitra- tor on his ]:e]ialf. Where the warden of the municipality had under R. S. N. S. (5th eeries) c. 7, s. 19, appointed an arbitrator on behalf of the respondents to estimate damages to be paid to him by the appellants under the statute, and it appeared that the respondent had received and neglected a notice under section 18, to appoint, it was held that such appointment was not a judicial act, and that a fresh notice to the responaent in relation Il THE ML\Lt^ A\J) MlMuUAL ACT 415 thereto wan not ii condition precedent to its validity. Where an nwnrfl gave to a land owner a fixed Hiim as tstimatcd damages for all wi rks or orciiiKitlon necesHury to or required by the mining lessee It was decided, that having regard to the snbjeft-niatter and scope of the Act, such award was not bad for uncertainly. I'algrave Gold Mining Company v. McMil- lan, (18!»2) App. Cas. 4G0. S2. All arhitiators aiipointod under tlio authority of this cliniitor shall he sworn to the im]iarlial (lischar<,a' of tho duties nssi;,nied to them; and thoy sliall forthuilh proceed to ostiinnte the reasonahlo (!ftina Deputy, or tlie Inspector of .Mines, or any other jieison thereto authorized by the Commissioner, in which book or boo! I' U I H ' i i 1 t ■ I r , 1 1 424 XOVA scoriA 5tt. The Commissioner shall have authority to enquire into any alleged violation of the sections whereby such mill license may be revoked, and if in his judgment such violation has been committed lie may revoke the same, but his judgment shall be subject on ap- ])eai to the revision of a Judge at Chambers, who shall make such order in resj^ect to the same as shall be agreeable to law and justice, and if he think fit may order any question of fact to be tried by a jury. St. Every licensed mill owner who shall in all respects have complied with this chapter shall be entitled to receive from tiie Com- missioner at the end or expiration of every three months from the date of his license, a sum equal to five per cent, upon the amount I)aid over by him as royalty during such period; but no such percent- age shall Ce paid in the case of free leases. SiH, A licensed mill owner may at any time surrender his license by delivering the same into tlie ollice of the Commissioner with a written surrender endorsed thereon, but no such surrender shall take elfect till after the lapse of ten days from the filing at the office of the Con)missioner of a notice in writing of the intention of such mill owner to surrender the same. S9. I'pon such surrender taking effect as aforesaid such mill shall cease to be a " licensed mill " until again licensed under the provisions of this chapter. The death of a licensed mill owner shall terminate the license, except that his executors or administrators shall be bound to close up the outstamling business with the depart- ment, and the Commissioner may grant a license to any other appli- cant after such death. 00. The licensed mill owner so surrendering his license and his sureties shall remain liable under their bond for all obligations ac- cruing thereunder up to the time when the surrender takes effect as aforesaid, but shall not be liable for obligations accruing thereafter. REQUIREMENTS OF LESSEES AND LICENSEES. 01. Lessees of mines shall be bound to make to the office of the Commissioner or to the Deputy Commissioner for the district, within ten days after the first days of January, April, Jidy and October in each year, true and correct returns to the best of their knowledge and belief, on forms to l)e suiplied by the Commissioner, in which shall be comprised the following particulars: THE MINES AND MINERAL ACT 426 I. The number of days' labor performed on the demised premi- ses during tlie preceding quarter. II. The number of tons of quartz or other gold or gold and silver bearing material raised from the demised premises during the preceding year. III. The person or persons to whom the same has been !=old or disposed of, and the dilTercnt lots or parcels in which the same has been sold or disposed of, with dates. IV. '^riic weiglit of all quartz or other gold or gold and silver bearing material sent by him during the quarter to any licensed mill, and the name and description of the mill to which the same has been sent, and, when the same has been sent and kept in distinct parcels, the weight of each separate parcel. V. The yield of each separate parcel or lot, as returned and al- lotted by the mill owner, with the date of allotment. VI. The total quantity of gold or silver obtained from the mine in any manner during tlie quarter, distinguishing that resulting from the quartz or other gold or gold and silver bearing material crushed at licensed mills, from the gold or gold and silver otherwise obtained. Such returns shall be verified by afTidavits, to be made before the Commissioner, or one of the Deputies, or a Justice of the Peace. 03. The les>-ee and licensee of each mine shall be liiible for royalty upon all gold or gold and silver obtained from his mine in any other way than from quartz or other gold or gold and silver bearing ma- terial crushed by licensed mills; but he shall be exempt from any claim in respect of gold or gold and silver obtained from ([uartz or otiier gold or gold and silver bearing material so crushed, tlie lia- bility of the mill owner for sucli royalty being substituted for that of the lessee. *!' ' \\ 03. "When any ]iarcel of quartz or other gold or gold and silver bearing mntorial from a free mine shall have been crushed at a licensed mill, the owner of the quartz or other gold or gold and silver bearing material, on ]iroof of the facts to the satisfaction of the Com- ]uissioner, shall l)e entitled to receive from the Commissioner tlie amount deducted by ilie licensed mill owner and paid as royalty under the provisions of this chapter. ^Ht. In case nny holder of a lease granted under this chapter shall fail to make paynient of any royalty accruing under the terms 426 NOVA FICOTIA of spction 02 of this cluiptor, within ton (hiys nftor tlio time ])rc'- scrilu'd liy this chapter for iiiakinj^ liis return to the Coiniiiissioner or tlu' Deputy Commissioner for the District, he shall ho liable to iin action at tlio suit of the Commissioner of Mines, as for money had find received to his use for the value of the royalty so accruing. 0*5. Such action may he l)rou.w ficfo forfi'lture." " There have been changes in the Acts which were applicable to the case of Attorney-General v. Sheraton, (1895) 28 N. S. R. 192. At any rate there Is now an addition, which was not applicable In that case, made by the Act of 1890, c. 19, s. 2. Page 299: " I am not Impressed, however, with the Idea now advancid that a recital In the rental agreement which Identifies the lease by number, and also by the date, which, under the assumption, la an erroneous date, constitutes an estoppel. 1 think It 's merely a case of false demimstra- tlon. Moreover, the duplicate lease Is also a public document In the office, publishing Us correct date as forcibly as the rental agreement misrepresents It. And I do not think that the defendants can set up this estoppel, If It la supposed to exist, between the commissioner iind the relator, ur if It Is relied on as an estoppel against the commissioner, that the Crown or public is estopped by his mistakes under this public Act." On the question of the right of the defendants (licensees from the Crown of the alleged forfeited areas) to attack the plaintiff's lease, on the ground that the term was 21 years Instead of 20. as It was contended it should have been to comply with the statute, Graham, E.J., (p. 300), decided that " the defendant cannot raise the question. Osborne v. Mor- gan, (1888) 13 App. Cas. 227. is in point. Queen v. Hughes, (18G5) L. R. 1 P. C. 81, and Reg. v. Clarke, (1851) 7 Moo. P. C. 77. were cases in which the Crown had instituted proceedings directly to annul the grant on the ground that the statutory officer had violated the Act and granted an excessive area. Osborne v. Morgan is a case In which, as here, the subject was treating is as void, and was attacking it in a collateral proceeding with a subject. This was also the case In Fielding v. Mott, (1885) 18 N. S. R. 347; (1886) 14 S. C. R. 254." This decision was afllrmed, (1897) 27 S. C. R. 355. See note to s. 1, Acts of 1897, c. 4; In re Weir. 07. At tho time ami place aiipointod the Commissioner shall proceed to investigate such case, and the service or postin;j; of ilio notice shall he proved, either orally at the investigation or hy alli- davit sworn ])efore a Justice of tlie Peace or a Commissioner of the Supreme Court. T'pon proof of such notice and upon hearino- the evidence relatin- and signed by the witnesses, tlie Commissioner, on being satisfied of the 'fT 428 NOVA SCOTIA non-fiilliliiic'iit ol' the coiulitioiis of llio lease or of the provisions of this chapter, shall give jiulgmeiit forfeit iiif? the lease and revesting the premises in the Crown; and such judgment shall be in the form of .Sch(dulc V, and shall be signed liy the Commissioner.' ' See Attorney-Qeneral v. Temple, (1897) 27 S. C. R. 355, referred to In notes to section 66; also note lo s. 1 Acts of 1897, c, 4; In re Weir. ilH, From the judgment of the Commissioner the party int3r- ested may appeal to a Judge at Chambers, provided that notice of such appeal l)e given to the Commissioner within thirty days from the date of his decision; provided also that the i)arty appealing shall, on applying for such ap})cal, make and lile with the Commissioner an allidavit that lie is dissatisfied with such judgment, and that ho verily believes the lease lias not been forfeited, and that the condi- tions in res[ioct of which the forfeiture has been declared have really and tndy been performed and fulfilled, and shall, within the time limited for appeal enter into a bond to Her Majesty the Queen witli two sulllcieiit sureties in the penalty of fifty dollars to enter and prosecute his apjjcal according to the provisions hereof, and pay all costs which may be adjudged against him by the Court of Appeal. CO. On such appeal being i)erfected the Commissioner shall tiansmit to the I'rothonotary at Halifax the notes of testimony taken before him, and all exhibits put in evidence. TO. Applications, transfers or other original papers in the Klines office, or any a])peal under this chapter, shall not be transmitted un- less the Commissioner so orders, but copies thereof, to be prepared at the expense of the i)arty appealing and certified by the Commis- sioner or l)ei)uty, shall be transmitted instead of the originals. I'ro- vided that the judge hearing the case may grant an order requiring some oHlcer of the department to attend with the original applica- tions, tiansfeis, and other papers for the purpose of inspection. Tl. The Judge at Chambers shall confirm or set aside the judg- ment, or make such order thereon as is agreeable to justice and in conformity with law. T2. If a judge shall consider that the case involves questions of controverted fact on which he is of opinion that the verdict of a jury should pa«s, he may make an order for the trial of the questirevent Her !Ma- jesty from having or using any other remedy now availal)le to re- cover possession of any mine forfeited from causes cognizable before the Commissioner of Klines, or from any other causes from which the same may be liable to forfeiture. SG. Xo lessee shall mine within ten feet of the boundary line of property held by him under lease, but he shall leave a ])arrier of unwrought strata of at least ten feet in thickness between his work- ings and his boundary; and no opening shall l)e nuide in this barrier without the consent in writing of the lessee of the adjoining land or areas; and the party injured by such unlawful mining shall have an action at law, in addition to the penalty, .against the olfcnder for all damages incurred by or consequent upon such unlawful working or mining. Provided however that if the lessee shall deem the above restriction to be a hardship he may ai)ply to the Commissioner to have the case examined by the Inspector of Mines, and the Commis- sioner, upon receiving the report of the Inspector in such case, shall have it in his discretion to release the lessee from the foregoing restriction. S7. Any I'arty aggrieved by a decision of the Commissioner of Mines respecting any application for a prospecting license, or a lease of a gold area or gold and silver area, or a license to search, or lease of any area other than a gold or gold and silver area, may appeal frojn such decision to the Supreme Court in lanco} • W. H. made application for a lea^e of certain gold mining areas, which waa opposed, and a contestation took place before the Commis- sioner of Mines as to the rights of the contending applicants. Ponding the contest and before the decision, W. H. died. The decision being against the deceased, his widow, who was appointed sole executrix, gave notice imder the statute of her intention to appeal, and made an affi- davit embodying the requirements of the statute, and filed the bond re- quired. The affidavit was made in Toronto before a notary public for the Province of Ontario, and it was held that the affidavit was not made in accordance with the requirements of the statute, and that the appeal THE jV/A^£;.S' AyU MINERAL ACT 488 10- for ade peal must bo set aside for irregularity. Construction of the 5th R. S. c. 107, 8. 5. Re Hedley, (1886) 20 N. S. R. 130; (1887) 8 R. & G. 130; (1888) 8 C. L. T. 376. Ono of several applicants for a mining area produced evidence at the hearing before the Commissioner of Mines to prove that he was the first applicant. In the course of the investigation, a witness against the appellant was examined, and while he was being cross-examined on a subject of importance to the inquiry, his cross-examination was stopped by the Commissioner. It was held that this was sufficient ground on which to sustain an appeal, and that the appellant was the party aggriev- ed; the case differing from In re Spt'lman in that there the applications were simultaneous. (Per Rigby, J.) Costs do not follow, as a matter of course, in such cases, but should be given in such a case as the present. (Per Weatherbeo, J.) Costs of appeal follow, as a matter of course. In re appeal Stephen Sweet, (1882) 15 N. S. R. 397; (1882) 3 R. & G. 397. HH. Any party desiring to appeal from such decision shall give notice in writing to "lo Commissioner of his intention to appeal within twenty day> er such decision, or witliin twenty days after siicli decision l)cing nuule known to the party dissatisfied therewith, Imt always within one year from the date of sucli decision, and shall make and tile with such notice an affidavit that he is dissatisfied with sncli judgment or decision, and that he verily hclieves he is entitled to the license or lease applied for, and shall also set forth therein the grounds of his appeal, and sliall within ten days tliereafter enter into a hond to Jler ^lajesty the (Jiieen with two sureties in the penalty of two hundred dollars to enter and prosecute his appeal and pay all costs which may he adjudged against him hy the Court of A|)peal; ami tiu'rcupon tlie Commissioner shall file such notice and afTidavit, together Mith all papers and documents connected witli such appeal, witli the Protlionotary at Halifax on or before the lirst day of such term. H9. Order LVJI., Kides 2 and 9, and Order LAMII., Rides T), fi and 7, of chapter 10-t of the lievised Statutes, fiCth series, shall apply to every such appeal. WO. 'I'lie provisions of the foregoing sections from nine to eiglity- nine, both included, shall apply exclusively to gold and to gidd and silver mines, except wliere any of such sections are expressly men- tioned to ajiply to mines other tlian gold and gold and silver mines, (»r where the ])rovisions of such sections are extended to mines otlier than gold and gold and silver by the subsequent sections of this cluipter. '28 - M ;!ll ! iiiil 434 XOYA SCOTIA OK MINES ()TII1:K TIIAX (lOI.I) MINES. Ol. 'J'lic C'oimuissioner may upon application grant license to search, to lie in force for one year and six months from the date of application therefor. Any such license shall entitle the holder to enter upon any land covered therehy, and dig and explore for sucli minerals therein, other than gold or gold and silver, as the Crown iiolds for the henefit of the Province of Xova Scotia, that is to say, for tin, lead, co]>per, coal, iron and precious stones, and any other minerals hereafter reserved hy the Legislature of this I'rovince.' ' A license to search for minerals granted under chapter 9, R. S. (4th series), is assignable. In ro Milner's appeal, (1877) 11 N. S. R. 522; (1877) 2 R. & C. 522. 1>2. Xo ap])lication for a license to search shall be valid or of any eU'ect unless made in writing, and accompanied by a payment of thirty dollars. This section shall also apply to applications for licences to search, called second rights. 9li. Before the Couunissioncr shall grant a license to search, ho shall require and receive from the ai)plicaiit for such license a l)oiul in the penal sum of eight hnndred dollars, with sufficient sureties to the satisfaction of the Conimissionor, conditionetl that in the event of entry being made upon private lands, recompense shall be made for damages in the manner hereinafter provided. 94. A license to search miiy cover any single tract of ground not excecfling live square miles in extent, and not exceeding two and one half miles in length. 9!i. .No license to search or lease shall be granted over land for wlrch a license to search or a lease has already been applied for or granted, save as hereinafter provided.^ > See Re Caldwell, (1896) 28 N. S. R. 240, infra. OO. V])on application for a license to search being made, the ("ominissioner, where necessary, shall cause the lands applied for to he surveyed and laid off, and a full description thereof shall he embodied in the license to search, but no such license shall author- ize entry iijion any lands which, in accordance with section 4 1 of fhis chai)t(>r. are forbidden to be entered npon, excejd as in that sec- tion provided.* ' The application for a prospecting license over certain mining areas defined the locns: " Beginning at a stake marked W. M. U, standing pbont one mile westerly from ]\T!i'ega T/,ikp, in the county of Queen's." THE MIXES .1-\I> MLSEltAL ACT 485 At the time the application was made there was no stake marked as dt- scribed at the locality Indicated, from which the description could start, but a stake marked as described was put down soon aftorward. Hold, that the application was bad, as not accurati-ly defining by metes and bounds, the lands applied for, within the meaning of " The Mines Act," 5th R. S. c. 7, s. 39. Per McDonald, J. — That the reference in the statute to a description by mett's and bounds, referred to metes and bounds existing at the time tif the application. (JiKuic, per McDonald. C.J. — Whether the stake having been subs;- quently placed, the application, in the absence of fraud, was valueless as between the applicants and the Crown. Re Malega Barrens, Ex parte McLeod, (1887) 20 N. S. R. 44; (1887) 8 R. & G. 44. It has been held under section 15 and section 37 of " The Mines and Minerals Act," R. S. N. S. c. 7 (5th series), both regarded as imperative and not merely directory; that a description in an application fur a pro- specting license is sufficiently definite which describes the areas by num- bers as designated on a plan in the office; the areas need nut be collec- tively laid off in a quadrilateral figure, but the block of areas over which the license extends must consist of quadrilateral figures as defined in the statute. In re Ovens, (1891) 23 N. S. R. 376. 97. The cost of siicli survey sliall bo (lefrayoil l»y the liconsoe, iind tlie seaivli for iiiinerals under stich licen.se shall be made free of all exjiense to the ({ovonuneni; and llic holder of the license shall within the time that the same shall be in force, and with all con- venient spctd, make a full and correct report of the residt of his ex- ploration to the Commissioner. 9H. ^Vlu 11 a license to search for mines other than jjold or gold and silver has been a])plied for or granted it shall be lawfid for the Commissioner to receive applications for other licenses to search (called second rights) over the same tract. ^ ' It was held in the case of an application for a license (second right) under this section before the expiry of a first license granted under R. S. c. 84, s. 7, and while it was in force, that the Commissioner could not, under the circumstances, grant the s-econd right while the first right was in existence, .and having done so, that the second right, which was improperly granted, and never valid or effective, and that the area in question upon the expiration of the first license was vacant, ard open to any applicant therefor. McColl v. Ross. (1S9G) 28 N. S. R. 1. 99. ih\ the expiration of the license to search granted upon the first appliiation. or on the selection of an area for lease by the holder thereof, a license to search over snch tract, or the remainder Ihereol', as the case mny be, may be granted to the first of the applicants for • .' k t 48G XOVA SCOTIA license to search (called second rights). Upon expiration of this license or selection of an area by the holder, the second of sucli appli- cants may be granted a license over snch tract, or the remainder thereof, as the case may be, and so on nntil all such applications for areas in tiie tract have been exhausted.' ' In ro Caldwell, (1896) 28 N. S. R. 240, it was decided that the pe- riods to be covered by the lici-nscs or rights, subsequent to the first right, commence on the expiry of the preceding rights respectively. A license to search for minerals, other than gold, was granted to the relators under section 86 of chapter 9, 4th R. S., to expire 21st May, 1874. Previous to its expiration, four other licenses, to search over the same area, were granted to the relators, which were to expire respectively 22nd May, 1875; 23rd May, 1876; 26th May, 1877, and 27th May, 1878; the area containing only four and a quarter square miles. On the 28th of May, 1877, defendants, having a license to search over an area overlying In part the area of the relators, applied for a license, which was afterwards granted, to work one square mile partially overlying and including within its boundaries the area under license to search to the relators. An order iiisi having been taken to restrain defendants from interfer- ing: Held, that over the area of four and a quarter miles first above referred to, not more than four valid licenses to search could be granted under R. S. c. 9, s. 91; that the relator's fifth license to search, which was to expire May 27th, 1878, was invalid, and that on the 28th of May, 1877, there was no obstacle to the defendants obtaining the license to work granted to them. Obiter dirtuiii, that it was no objection to the license to work, that it was taken out in the name of one only of the defendants, Fraser, for their joint benefit, all the defendants having had an interest in the licenses to search, although taken out in the name of Fraser only. Attorney- General v. Fraser, (1878) R. E. D. 275. On appeal from the Judge in Equity to the Court in banco, held, that the practice of the office was wrong in granting more than one license to search, with right of renewal, to the same party over the same area; that on this ground the license to search relied on by relators was Invalid, and that without respect to defendant's title, the injunction must be refused, but without costs, as both parties had acted under an erroneous view of the Law. Attorney-General v. Fraser, (1878) 12 N. S. R. 351; (1878) 3 R. C. 351. 100. If the pr{)i)rietor of private lands entered under such license shall seek damages, the proceedings for ascertaining the amount of such damages and making payment of the same, shall be the same as provided for by this chapter in the case o'l prospecting licenses for gold. 101. The holder of a license to search ma\ at any time before the expiration thereof, select from tlio tract covered by such license, an area of which ho may upon apidicatinn to the rommissioner ob- tain a lease, for the purpose of mining any mineral he may name. I'lil THE MINES AND MINERAL ACT 487 lOS. V\)()n such application being made, the Comniissionor shall ciiiise tlu' portion so selected to be surveyed and laid oil", and the ap- jilicant sliall defray the expense of such survey, and the person nial>- such survey simll make n fiUl and accurate plan thereof, and Iransuiit the same to tlio Commissioner. 10!l. Any person may ajjply Tor a lease without having previously olitaiued or a^jplied for a license to seardi, and in sucli case his ap- plication shall embody a description of tlie area applied for. 104. Kvery application for a lease, whether nuule l)y the holder of a license to search or any other party, shall be made in writing to tlie Commissioner, and shall state tlie mineral for the piirpose of milling whicii a lease is souglit, and shall be accompanied by a payment of fifty dollars. An application failing to comply with each and all the requirements of this section shall be invalid and of no ciVect. lO»>- All the provisions herein contained relative to settlement liy agrteiiient or arbitration with tlie owner of the soil, where the s;iiiie is private land, foi" damages done to his land, and to payment therefor as set forth in sections 20 to 27 inclusive, and to the occupa- tion of such lands as set forth in section 31, and to the exemption of certain descriptions thereof from liability to be entered, as s) ocified in section -14, and to the vesting of interests forfeited under til is chapter, as sjiocified in section 34, shall bo applicable and in force in the case of mines other than gold or gold and silver mines, equally as in gold or gold and silver mines. lOO- A lease for the purpose of mining coal or iron may cover any single tract of ground not exceeding one square mile in extent, and not exceeding two miles in length. For the purpose of mining (Ojjper or lead a lease may cover any single tract of ground not ex- ceeding one half square mile in extent ami one mile in length; and for the purjiose of mining tin or precious stones may cover any single tract of ground not exceeding one quarter of a square mile in extent and oiu' half mile in length. lOT. Wliere a lease of a tract of land for the purpose of mining a })aiticular mineral has been ajiplied for or granted, the Commis- sioner may, at his discretion, and upon such further terms and con- ditions, not at variance witli this cbaiiter, as he may deem just and jiroper, issue licenses to search over the same tract, or any part there- of, fur the [lurpose of mining other minerals, and may also receive i ;: !?• r ! >. r 4!)8 yO\'A 8C0TIA ai)l)lic'iit ions', and upon like terms and conditions | issui' | ' lonst's of the .s im ' tiact, or any part thereof, for tiie purpose of mining' other minerals. ' See Acts of 1893, c. 3, s. 7. ! I LEASKS. lOM. Leases of mines other tlian jiold mines, or j^ohl and silver mines, {^ranted under the provisions of tliis elia[)ter, sliall l)e executed by the Commissioner and the lessee, in the same manner as provided in section !!• of this chapter for leases of gold mines.^ ' Temple v. Attorney-General of Nova Scotln, (1897) 27 S. C. R. 355, jifflrmlng, (1897) 29 N. S. R. 288. In the Palgrave Mining Co. v. McMillan, (1892) 25 N. S. R. 57, the case of Duke of Hamilton v. Graham, (1871) L. R. 2 H. L. (Sc.) 168, is dis- cussed. See also cases cited: Enrdley v. Granvilli', (1870) L. R. 3 Ch. D. 826; Proud v. Bates, (18G4) 34 L. J. Ch. 406; Ballacorkish Mining Co. v. Harri- son, (1873) L. R. 5 P. C. 62. See Acts 1893, c. 2, s. 4. ((/) Leases of mines other than gold or gold and silver mines, shall l)e for the term of twenty years, and shall contain all the con- ditions, provisions, and reservations generally contained in such ] direct that satisfactory security be given to the t^ueen with proper securities for the payment of any annual rental for water or air leave, or for re])airs or damages that may arise out of such ojj-'iiing or working by the i)arty to be benefited. Provided that the IMOvi'ions ol this sub-section shall not be construed to permit of any o])eiiing bjjng made that may tend to the injury of the property of either lessee unless Mith the consent in writing of both lessees. Any lessee having occasion to l)elieve that the barrier of an adjoining area has been encroached upon shall upon application to the Commissioner receive permissi(m to enter such area personally or by his agent with the Inspector or his Deputy, and to make such survey as may be re- quired to detiiie the relations of such workings to the l)arrier. (<■) A lessee of any mine other than of gold or gold and silver, gianled under this chapter or any Act passed by the Legislature oL' this I'roviiice, shall not at any time during the term of iiis lease or any lenewal thereol', assign, transfer, set over, mortgage or other- wise part with the jiremises granted, or any ])art thereof, or such term or any portion thereof, to any person whomsoever, without the license, consent or approl)ation of the (iovernor in Council lirst had and ob- tained for the purpose, and signified under the hand and seal of the Commissioner of Klines. OJ) '^riie ratification by the Governor in Council, signified under the hand and s.'al of the Commissioner of ^Eines, shall be equivalent in all caary of the date of the lease." On 17th December, 1889, the relators enteicd Into in agreement with the Commissioner of Mines, and on 3l8t December, 1889, made their first annual payment in advance and received a receipt from a clerk for " amount of fee accompanying application for rental lease No. at . . . one year from the 15th November, 1889." On 2Eith November, 1890, the lease was forfeited for non-payment of rt nt in ad- vance, and the relators learned of this in December, 1890, when attend- ing the Mines Office to make their next payment. Held, that the date of the commencement of the lease was 27th November, 1886, and the for- feiture was set aside on the ground that the rental was not in an ear?, the words "nearest recurring anniversary" having reference to the anniversary next ensuing after the date of the lease, and that as the powers of the Commissioner of Mines were statutory only, he could not make a different contract from that provided for by the statute. The relators having taken out a license to search over the Fam=^ areas after learning of the alleged forfeiture, and on the expiry thereof having obtained a lease of the same areas upon which their plant was situate, were held not to be estopped, as their acts were not of a volun- tary character, the Commissioner's action under colour of office in for- feiture amounting to duress; Attorney-General v. Sheratcm, (1896) 28 N. S. R. 492. Graham, E.J., said, at p. 500: "The principle of surrender by operation of law is this: ' If a lessee takes a second lease, not- withstanding he already has one outstanding, not being allowed in law to dispute his landlord's power to grant, he Is estopped from say- ing he did not surrender the first lease, that condition being indispen- sable to the validity of the second lease. But it is well established that the second lease must be a valid one, or else no surrender of the first will be implied.' Berkeley v. York, (1805) 6 East, 86; Biddulph v. Poole, (1848) 11 Q. B. 713; Egremont v. Courtenay, (1848) 11 Q. B. 702." and jit p. 501; "As to dpress under colour of office, I cite United States v. Ungley, (1831) 5 Peters, 115; Maxwell v. Griswold, (1850) 10 Howard, 242; Swift Company v. United States, (1883) 111 U. S. 22, and Steele v. Williams, (1853) 8 Exch. 625. (//) 'NVheiiovor the lossoo of ait nroa other than of gohl or gold and f^ilvcr, sliall in any one year ])ay royalty on niinorals niinod out ol' siicli area anunintiiig to a snin greater than that due as the annual payment herein provided from the area leased hy him, he shall ho entitled, on applieation, to a refund of the annual payment due for that year. (/) It shall be lawful for any person at present holding a lease tinder the provisions of this ehapter for minerals other than gold ?j''i. «■; 1 442 Aor.i acvTLi or gold DDil silver, l»v (lii|ilinitc' agrri'iiu'iit in writing with tlu> Coiii- liiissioiicr Id iiMiil liimscll' nf the provisions oi' this c'liii|ttc'r, so I'lir Jis it rt'liitos to tlic iinniiiil |iiiynu'nt and its ri'i'und US' in tin' preced- ing sections (/). ((/), (//), sncli payments and rel'nnds to be construed til commence from tlii' marest anniversary ol' the date of the li'aso, and the payim nts {>> lie at the rate of thirty dollars for each s([naro milt' or portion of a sipiare mile contained tlicrcin, and as long ns >-nid payment is miide annnally in advance the 1 /asc shall not he foi'- fcitahlc for non-working. lOO. All leases of nunos of gold and of gold and silver, and of mine-; other than mines of gold and gold and silver shall contain tlio provisions respecting tiie payniejit of rental and its refund under cer- tain conditions as ])rovided heroin. 110. 'I lu' (iovernor in Council may hy sjtecial order authorize the gi anting of a lease of a larger area than one s(|uare mile if, on invcsti^alidn of the s[»ecial circumstanei's of the case, it is shown that hy reason of a delieieney ol' mineral or other natural causes an aiea. nf one stjuare mile was insullicieut to mal\e a proiitahle mine (but in no case to exceed two square miles), and in sucli case may impose such I'urtlicr conditions, not at variance with the spirit of this chajder, as may ht- deemed just, and in liki' manner and on the same (onditions two leases of one s(|uare mile each may be held and treated a< one lease. And the tiovernor in Council may in a similar manner and for similar reasons increase in the same proportion any leased areas of one half or one (luarter of a square mile. 111. All leases of copper and lead mines which have been or may be issued under this cha])ter or any Act passed by the Legisla- ture of this Province, shall be lield and construed to convey to the ksscj or kssees therein named and his or their assigns all ores and metals held in composition, associated with or containei! in the coppiM' or lead ores therein conveyed, and the same shall be sul>ject to the .same royalties as are hereinafter ))rovided for such ores and metals. lia. (Uepealed by Statute, 18!);5, c. 3, s. o). 113. Leases of minerals other than of gold or gold and silver may be renewed in accordance with the ])rovisions of this chapter; pro- vided, however, that the Legislature shall have ])ower to incroaso the amount of annual rental to such an extent as may be deemed ])ropor and ne.^e^sarv. 1 Tin; MIS us AM) MIM:i{.iL ACT n.M ll-l. All It'.-st rs of niiniiijf iirciis otlicr tiiiiii <^n]i] or gold and fiihor mining art'iiH shall within six months after the issning of such jfuscs, |ilii((' or caiiso to he phurd at each and every corner of the iirciis cnnlaincd in their respective leases a post or nionmiient of stone or otjiei' diirahle material, of such size, nature anil character as the Coiiiniissioncr may deternune. (ii) luich post or monument shall have distinguishing letters ')!■ a siiitalile inscription cut or mai'ked thei'con, designnting llie cnriii'r wheie pluceil. I'rovided always that in cases of areas any corners of which are covered with water, or where the placing of such posts or nionunu nts at such coi'iu'rs would cause private or jinlilic inconvcin- ence, it shall he lawful and re(piisite for the lessees, with the consent of the Comuiis-iioner, to place such posts or monuments on the land adjoining such corners, in such positions as shall he ap|troved l)y the Commissioner. (h) 'I'he area of each lease shall he delined as herein re(|uired nccording lo the jtriority of the granting of such lease, and tiie lessee of the area first leased shall give to the lessees of the adjoining areas or their agents a written notice that on a day named — to l»e not less than ten days after the service of such notice — a survey will he nuide f(U' the purpose of cstaltlishing the houndaries of the area and jilacing the 1)1 sts or nimiuments required hy this cha|)ter. Such survey shall he made hy a sworn surveyor, whose appointment shall lie sanctioned hy the Commissioner; and such surveyor shall make a return of such purvey with an accurate jilan thereof to the Commissioner. ((■) If within forty days after such return has heen made hy the surveyor to the Commissioner no complaint he made to the Comnus- sioner that the houndary lines of the area as so defined are not in accoidancj with the lines as originally delined, the l)oundary lines (d" the area as so defitu'd hy the surveyor shall, as hetween the lessees, he he'd to he the triu' and correct houndary lines of the area. ill) If within the year ahove mentioned, from disagreement or otherwise, such houndary lines are not estahlishc(l and delined as required hy this chai)ter, the Commissioner may cause a survey to he made ami tlie area to he defined as hcreinhefore rccpiired, and the boundaries so established shall ])e held to be finally determined. (f) The expenses of all such surveys and of the ])lacing or erec- tion of all such i)osts or monuments as required by Ibis chapter, shall h^ paid by the lessees of the area? defined, and where such survi'ys arc made and such posts or monuments are established by virtue of ' tt) iU XOTA SCOTIA the next preceding section, siicli expenses may be sued for antl re- covered from the lessees in the name of the Commissioner, as an ordin- ary debt of like amount. (/) Kach monument or post as often as it shall bo destroyed or removed, shall be rei)laccd by the lessee at his own expense within one niontli; and the jn-oceedings therefor shall be the san)e as here- inbefore required for the original definition of the area. ((/) WJiere the lessee is not the owner of the land included in tlie area h'ased, and on Mhim the boundary ])osts or nmnuments are ri'quiied to be jilaced, he shall bo at liberty to set them up on such land, but shall i)ay the })roprietor for the damages caused thereby. (h) If the i)ro]n"ietor aiul the lessee cannot agree on the amount of such damages, tlie lessee may call on any three disinterested jus- tiies of the peace for the county in wliich tlie area is to a])|)raise tlie same ; the justices so called ujjon shall forthwith a|)|)raise such damages; and their award or that of any two of them shall be final. (/) Each of such Justices of the jjcace sliall l)e entitled to oue dollar a day for the time actually and necessarily cmi)loved in making such appraisement, besides travelling fees at the rate of ten cents per mile, to be computed from the residence of the justice to the place where the appraisement is made; such pay and travelling fees to l;e paid by the lessee. (y) Any lessee neglecting to set up such posts or monuments, or to lencw or replace the same when removed or destroyed, as ro- qiiired by this cliapter, shall forfeit a sum not exceeding one hundred dollars for every such post or monument he shall neglect to set up or replace. (/,•) Any person wilfully destroying, defacing, injuring or re- moving any such jiost or monument, or attempting so to do, shall forfeit a smn not exceeding one liundred dollars for e-uih offence. (/) Any penalty under this chapter -ball be recovered in the name of the Commissioner, before two justices ( f tlie ivt.: - Tor the t'nuiity wherein the oll'ence is committed, in tlie same ;)uii iier as an ordinal y debt. llSi. It is hereby declared and enacted that chapter 2'^ of the Acts of 1880, shall not lie deemed to have taken and did not take from any Jiolder of a license to search in force at the time of ])assiiig of siiid chapter, the right to select an area and api)ly for and obtain THE MIXES AXD MIXEUAL ACT 445 a Ik-L'ii.-e to work the same in the same manner as such hohloi- couhl have, had said chapter not heen enacted, and said cliapter sliall not bo deemed to have talcen and did not take from any holder of a license to work at the time of the passing of said chapter the right to obtain an extension of such license to work to three years upon tlie additional payment being made as provided in section 95, of cliapter 7 of the Revised Statutes, tifth series, but all holders of licenses to search at the said time shall be deemed and are hereby declared to have had the same right to select, apply for and obtain licenses to work, and all holders of licenses to work at the said time sliall be deemed, and are hereby declared to have had the same riglit to sucli extension as aforesaid, as they would have had if said cluipter had not been enacted, and all licenses to work, and all such extensions of such licenses to work as aforesaid, shall be held to have been and to be as valid and good as they would have been had said chapter ii3 not been enacted. QUARTERLY RETURNS. 11<». On or before the tenth day of each of the months of Janu- ary, April, July and October in each and every year, the owner, agent or manager of every mine (other than gold or gold and silver mine) leased from the Crown, shall send to the Commissioner a correct return specii'ying the quantity of coal, iron ore, or other mineral wiought or gotten in such mine, the probable use and destination of tlie same, and the amount of royalty which has accrued upon such material extracted during the last previous quarter, and on or before the last days of Janiuiry, April, July ami October in each year, a correct return specifying tlie number of days' labor and the nuudjer of persons ordinarily employed in or about such mine below ground and al)ove ground, and the different classes of the persons so employed, and the cost and description of all shafts, quarries, slopes, levels, planes, works, machiiu'ry, tramways, and railways sunk, driven, opened or constructed during the preceding quarter. Such returns shall be sworn to by the agent or manager and by one or more crediljle peisons principally employed in or about the working and manage- ment of such mine, before the Ccmmiissioner or a justice of the peace. Jl J KOYALTIES. 117. vMl ores and minerals (other tluni <::old or gold and silver) mined, wrought, or gotten under authority oi^ licenses or leases grant- ed under the provisions of said chapter 7 of the Kevised Statutes, '!"! 1'h 446 NOVA SCOTIA fifth scries, or of any Act lieretoforo ])asscd l)y the Legishiture of this Piovinci'. >;hall lie subject to tlic follo\viiiwer the rates of royalty thereby ]>reserilH'd for any term up to the lirst day of May. 1S!»T, on hcing satisfied that the owners of sucdi leased mine- rals havi' couimeiiced elfective mininj; operations for the extraction of such miiieials or any of them. tlH. All leases of coal mines issued after the passin^i' of this Act shall c(uitaiii a provision that the royalties may he increased, diminished, or otherwise changed hy the Legislature. IIW. All royalties now or hereafter due to the Province shall 1 ear interest at the rate of five per centum per annum. ' '•! ^■Mti >>;!■: I !■ M'. "1:! 448 NOVA SCOTIA I ISO. All lessees of iDiiies other than gold or gold and silver mines la this Province, their executors, administrators and assigns, shall, upon giving notice in writing to the Commissioner of Mines at least six months previous to the expiration of their leases, respectively, oE their intention to renew such leases, respectively, for a further i)eri()d of twenty years from the ex})iration thereof, he entitled to a renewal thereof for such extended term upon the same terms, conditions and covenants as contained in the original lease, or as ju'escribcd by this (hapter or by any Act that may be passed by the Legislature of this I'rovince, and in like manner upon giving a notice before the expira- tion of such renewal term to a second renewal and extension of term of of twenty years from and after the cxjnration of such renewal term, a in lii) In case the workings of one area have been extend«'d into an adjoining area, even if tliere is now no coal being mined in the first ari'a, l)otIi leases may l)e renewed in whole or in ])art, as may be de- cided by the Commissioner on the special circumstances of the case. (e) In the case of works being prosecuted outside of an area for the purpose of winning the coal in said area, the lease of said aiea nniy be renewed on it being satisfactorily shown to the Com- THE MiyEs Ayn mixekal act 449 iiiissionor that said works are being continuously and eH'cctively prosecuted. (d) In the case of an unworked area adjoining,' a mine being Avorked, the works of Mliich would be a natural outlet of said un- worked area, and that it was necessary to the profitable working of the mine, the lease of said area may bo renewed on it being shown to the Commissioner that the said workings would be a natural outlet for the product of said unworked area, and that said unworked area was necessary to the profitable working of the mine. (e) Sxd)ject to the a])proval of the Governor in Council, the Commissioner of Public Works and !Mines may renew any lease, notwithstanding that the full sum duo for royalties shall not have been paid, if the holder of such lease shall produce evidence satisfac- tory to the Governor in Council that such non-payment is due to the depression in the trade, or other exceptional circumstances, and that there is reasonable i)rosi)ect of payment being made if an extension of time bo allowed. K:!lf! SURREXDKR. 121. The holder of any lease may at any time surrender the same by notice in writing, signed by him and filed, together with his counterpart of lease, in the olHce of the Commissioner; but in case the counterpart of the lease has been lost, or cannot bo obtained, au athdavit to that effect, made by the lessee, will be received in place of such counterpart; but nothing herein contained shall be construed to discharge him from liability in respect of any covenants in the lease, for or in resjiect of any act, matter or thing, for M-hich at the date of such surrender he was liable under the terms of such lease. Provided that the Commissioner of Mines has not served a notice for forfeiture on the lessee or lessees, as provided for in this chapter of the Kevised Statutes; in such case the area or areas leased cannot be surrendered without the consent of the (iovernment, but must await the decision of the Commissioner of Mines as to forfeiture. 122. Where it shall 1)0 represented to or come to the knowledge of the Commissioner of !Mincs that any mines or minerals claimed under a lease from the Crown, or under a lease granted pursuant to this chai)ter, have been abandoned for the sjjace of one year, have not been effectively and continuously worked, or have been worked only coloral)ly, or to prevent a forfeiture under the terms of such lease, the Commissioner of Mines shall cause a notice, to the effect 29 -M 450 NOVA SCOTIA of the form of Schedule E, to be personally served upon the lessee, or some one of the lessees, wlicre more tlian one of them are included in the same lease, or his or their agent, or person principally em- ployed on the iiremises, or shall cause such notice to he posted up upon the premises leased, where no person can he found upon wlinm to make service thereof, informing liim of such cliarge, and appoint- ing a time, to 1)0 not less than six montlis after the service or post- ing up of sucli notice, and also a place, for tiie investigation tliereoJ'. At the time and jilace appointed, the Commissioner of ]\rines shall proceed to investigate such case, and decide thereon, and shall there- upon give notice of his decision to the lessee or his agent, l)y causing such notice to be served or posted up, as in this section above directed; and if within such term of six months, the lessee or his assignee shall and do commence and prosecute effective mining operations, to the satisfaction of the Commissioner of Public AVorks and Mines, according to the true intent and meaning of tlie terms, covenants, and stipulations in tiio lease contained, and of this section, or within the period of six months shall avail himself of the ])rovisions of sub- section (i) of section 108 of this chapter in respect to rentals, sucli mining areas so leased shall not be forfeited.' ' In the Queen v. Church, (1891) 23 N. S. R. 347, it was held, that tho Commissioner of Works and Mines could not under section 107 of R. S. N. S. c. 7 (5th ser.) decree notice of forfeiture for non-payment of one of the sums annually payable by the lessee for coal mines without notice to the lessees. Quaere, whether the Commissioner in so acting did so as a Judge or a landlord. As to the jrrisdiction of the Commissioner, see Mott v. Lockhart, (1883) L. R. 8 App. Cas. 569, and in Re Ovens, (1891) 23 N. S. R. 376; Re Jeffrey McColl, (1889) 22 N. S. R. 19. Proceedings wire had before the Deputy Commissioner of Mines at Halifax to obtain the forfeiture of a mining property at Montiigue, owned by defendant, who resided at Londonderry, and had ageats at Montague, but no service of notice was made on eltlier him or them; and neither he nor they knew anything of the proceedings until after the areas were forfeited. The notice was posted by a person who ap- peared to be interested in procuring the forfeitiu-e, and who swore that neither Tobin nor any agent or person employect on the premises could be found in the district on whom personal service could be made. The matter being brought up by irrtliirari, it was "held that in order to dispense with personal service, evidence should have been given of a hoiia fide search, or that defendant was out of the Province. The parties applying for the forfeiture entitled the process below "The Qi;een v. Tobin." -k^a* THE MIXES AMJ MIXEItAL ACT 451 Hekl, that the applicant had a right to use the same title in the subsequent proceedings in this Court. A rule was granted to compel the parties sustaining the forfeiture to file their affidavits on a day previous to the hearing, to be named by the Court. Queen v. Tobin, (1881) 14 N. S. R. 305; (1881) 2 R. & G. 305. Proceedings were taken to forfeit certain gold mining areas, and tl'O notice pursuant to statute was addressed to the defendant, who was the mortgagee, and not the owner of the areas, and it was held that the Commissioner of Mines had no jurisdiction for want of notice to the owner. Queen v. Elze, (1882) IG N. S. R. 130; (1883) 4 R. G. 130. In an action brought for trespasses to plaintiffs' mining areas, de- fendant justified as Commissioner of Mines under a forfeiture, and set out in one of his pleas, inter (iliii, that all proceedings reciuisite by law to be taken to effect a forfeiture of said lease were taken, and all neccs- eary notices setting out defaults and breaches were duly given, and the defendant being such Commissioner, duly gave judgment forfeiting said lease ... in the form and manner prescribed by law. It was held that this plea did not set out with sufficient regularity the steps taken to give the Commissioner jurisdiction to forfeit the lease. Wallace v. Creelman, (1884) 17 N. S. R. 418; 5 R. & G. 418. The Commissioner of Works and Mines, to an action of trespass, pleaded proceedings taken to forfeit the areas in question, and it was held that the allegation that "no person could be found upon whom to make service of the notice " of process to forfeit was sufficient, without alleg- ing that no person could be found in the gold district, within which the areas were situated, and that a plea setting out the proceedings taken in substantially the terms of the Act was sufficient. Wallace v. Creel- man, (1886) 18 N. S. R. 54G; (1886) 6 R. & G. 546. , 12J?. X<) iiiofc col(n'al)l(' working slinll ])rcvent a forfeiture; and the Coniiiiissioner aforesaid shall have power to examine witnes.^^es on oatli. and to receive all other necessary testimony, in respect of tho mining o])erations; and if the decision shall he that such oitcralions are not effective, hut merely colorahle, the mine or mines shall lie declared forfeited, and notice of the decision shall he given in accord- ance with tlic provisions in section ^'2('). 134. The decision of such Comniissioner shall he in tho form in Schedule F; and the lessee or assignee may ajipeal to the Supreme Couit, or a Judge tiiereof at f'hamhers, against such decision: any party desiring tcted to do so, and the defendants were held liable. Townshend v. Adams, (1894) 26 N. S. R. 78. In Miller v. Cochran Hill Gold Mining Co., (189G) 29 N. S. R. 304, the Supreme Court of Nova Scotia divided equiilly upon the question of the authority of the manager of a mine to bind the company under the following circumstances: The company purchased the mine from B., who agreed to transfer the mine and to construct among other works a boarding-house for the men. The materials from which the houfe was constructed were supplied by plaintiffs on the order of the manager given to the contractor at the request of plaintiffs, who only knew the «JLcr Tin; MINLH ASU MIMJHAL ACT 455 # i nmnager an such. In the result the verdict of the Jury for plaintiffs against the company was upheld. Ritchie. J., said at p. 300: "If the erection of a boiirding-house was necessary for the efficient operation of these mines, and was in accordance with the usual practice In such cases, nnd this was for the jury, the authority of the mining manager to bind the company for such work Is, I think, beyond doubt (Ex parte Chlppln- dale, 4 DeO. M. & G. 40; Hawken v. Bourne, 8 M. & W. 703.)" Graham, E.J., said at p. 312; "To pledge the credit of the com- imny for building materials for a third person is not, I apprehend, within the apparent scope of the authority of a manager or mining manager. Simpson's case, 58 Law Times, 10; H:iwtayne v. Bourne, 7 M. & \V. 595; Cox V. Midland, 3 Ex. 2G8; Delta \. Williams, 40 N. \V. 940; Allemong v. Slmmonds, 23 N. E. 768; Victoria Co. v. Fraser, 29 Pac. G67." Tho Mines and Minerals Act, R. S. N. S., 5th series, c. 7, s. 130, enacted that " all licenses and a description of all mortgages, bills of s.ile. attax-h- ments. Judgments, transfers and documents of title (if any kind affecting such licenses " should be registered in the oflice of the Commissioner of Mines, any mortgage, etc., not so registered to be void as against sub- sequent bdiKi liilv mortgages, etc., previously registered. By the Act of 1885, c. 3, s. 1, passed April 24th, 1885, this section was amended by adding a proviso requiring such mortgages, bills of sale, attachments, Judgments, transfers or documents of title to " proceed from or be charged against the parties who may .-ippcar upon the registry to be lessees or licensoe.s of such gold and silver, coal and other mines, so as to be transferri'd or to be encumbered." In an action against the commissioner for refusing to register ji document in his office, and for registering a later transfer, it appeared thiit on the IGth June, 1883, a letter was addressed to the com- missioner enclosing what purported to be a copy of a transfer from V. to G. of an interest in a. property at Montague. The transfer itself was not reC(U'ded, and the legal titlt> to the property was vested at tht- time in D. under lease No. 105. On the 8th October, 1885, G. transferred to plaintiff one-third of all his Interests In mining leases and mines of gold, etc., inclusive of all areas possessi'd by him and registered in his name in Montague and other districts named, and of all areas in which he was interested, " though not named on the Records of the Mine s Offic(>." Tire latter transfer was registered iigalnst the properties expressly named, but was not registered, and no request was made to have it registered against lease No. 105, until after the passing of the amending Act of 1885. After the passage of this Act the conmiissioner was requested to record the transfer from G. to plaintiff, but refused. The Interest of G. under lease No. 105, was subsequently purchased by A., who had the transfer recorded by defendant, both A. and the party to whom he sold having actual notice of plaintiff's claim, and it was held, that as when the reques^t to have the transfer to i)laintiff recorded against lease No. 105, the Act as amend- ed rendered it Incumbent up(m the commissioners to record only transfers proceeding from those who appeared on the registry to be lessees of the mine, and G. did not appear to be a lessee or sub-lessee, or to derive title through a lessee, no case of negligence on the part of the defendant had been proved, and plaintiff was not entitled to recover even nominal damages; also, that in no case could plaintiff recover other than mmiinal vm ■'\ i i:;;: \\ •jr.fi i\Or.l SCOTIA (lamngca, there bi'lng no proof of the nnturo or vnlnc of tho equltablo In- toroHt, or that it ]uu\ been lost or affoctcd by tho fuiliirp to roglHtcr; hchl, furl her, that A. was not a. bona Mo. trauHferee in n-Hpect to plalnlllT's claim; furtlicr, that If tho (hicnnicnt of transfer from G. to plaintiff was liropi'ily Iddgrd for registry, it would bo Hufllclcnt, under tho doctrine of .lost V. iMcCuish, 25 N. S. R. 519, to alTect hubscqueni transferees with notice; also, that the provision added by the amendment, under the Act of 1885, operated as a repeal of the provision in resp»'ct to documents mentioned: and that In the absence of a request for registration, prior to the amendment, plaintiff's right to have his document registered was merely executory, and not vested; and that where a document Is handed to the commissioner without directions as to the property against which it is to be registered, and it la registered against properties apparently affected, a case of negligence to search for other properties wo\ild have to bo made out; also that there would be no negligence in not registering against equitable interests not appearing in the register of the oflice, and that a general request to register a document against leases standing In the name of G., in Nova Scotia, would be bad, and that the objection would be greater in the case ssee or licensee of the mining areas tlirongh wiueli it is necessary to drive sneii tunnels, tiie Commissioner of Public Works and Klines, subject to the approval of Ihc Governor in Council, shall determine whore such tunnel shall 1)C made or commenced, the number of such tunnels, the size, width and depth Ihercof, the (quantity of land to be taken and occu|)ied for the sanu', and the course and direction which such tunnels are to take through the intervening land covered with water and the mines therein contained; and he shall cause a plan thereof to be nmde and iiled in tlie olllce of the Registrar of Deeds for the county where tlu^ lands so taken for the commencement of the tunnels shall be situated. ItJO. Ticases of mining areas shall be issued in duplicate; and such leases shall bo registered in the Olllce of the Commissioner of Klines by the Commissioner or some person by him thereto authorized. i;i7. A certificate of such registry, with the day and year thereof, shall bo endorsed on the duplicate delivered t(» the lessee. IJfS. All leases which have been passed iirior to tho passing of this chai)ter that are not void or forfeited, shall be registered and certified as above if not already so registered. 1JI1>. Tn the case of a lease or a license -where there are more than one lessee, declaration in duplicate may be made and signed under seal by all the lessees or their heirs and assigns, stating the ])roportion owned by each lessee. Such declaration shall be duly jiroved on oath before any Justice of the Peace or a Commissioner of Mine^, and registered as hereinbefore mentioned. 140. All transfers of any interest in mining leases hereafter to be made shall be registered as aforesaid; and a certificate of such re^istrv shall be endorsed on evorv such transfer, as in the case of miniuL; leases; and such registry and certificate shall be conclusive evidence of the transfer of such mining interests. !l i 458 A'Or.l SCOTIA 141. The forms of declaratioi and transfer for the purposes of t'.iis chapter >jhall be as in Schedules Jj and ' j'cspcctively. 14S. Every company now or hereafter incorporated under any Act of this Legishiture, or by any otlier competent authority, holding or working mines under tliis chapter, sliall lile a copy of their char- ter or Act of incorporation and I)y-laws or regulations in the oflicc of the Comiiiissioner of Klines before any such company shall com- jnence M-ork, together with a list of tlie olTicers of such company; and all changes of officers made 'hall aho lie certitied to the office of the Commissioner of Klines; and until sucli certificate is fded no such new official need be recognized by the Commissioner of Mines as an official of any such company. Any corporation neglecting or refusing to com])ly with tiiis section shall be liable to a penalty of not exceed- ing one hundred dollars, to l)e recovered in the name of tlie Commis- sioner as an ordinary debt. 1-4J$. A description of all mortgages, bills of sale, attachments, judgments, transfers aiul documents of title of any kind relating to or in any way ail'ecting tlie title of gold, or gold and silver, coal or other mines, shall be recorded according to Schedule 1), in the office of the Conuiiissioner of Klines; and all licenses and a description of all mortgages, ])ills of sale, attachments, judgments, transfers and documents of title of any kind alTecting such licenses, shall lie regis- tered in the book of ajiplication for mining rights in tlie office of the <'ommissi(tner in the same manner as such licenses and descriptions are now legistered; jirovided that such nu)rtgages, bills of sale, at- tachments, judgments, transfers or documents of title, shall proceed from or be charged against the parties who may ajjpear ui)on the r.gi.-tiy to be the lessees or licensees of such gold and silver, coal or other mines, so to be transferred, or to be eneumbered; and any such mortgage, bill of sale, attaehiiieut. judgment, transfer or document of title shall be void as against any subse(iueut hoini fide mortgage, bill of sale, attachment, judgment, transfer or document of title which shall be |ireviously registered. A duplicate or true copy, certified by a notary under his seal, of every transfer, mortgage, or other convey- iuiee. registered as above, shall be filed in the office of the Commis- sioner of :\Iines before a certificate of registry is given.' The fee to 1 e paid to the Commissioner for the registration of any docinuent of title under this chapter shall be fifty cents. ' All engine affixed to the premises was held to be a fixture and pass with the land under a imirtgage registered under this Act. TUB MINES AND MINERAL ACT 459 Thi' provisions of the Act requiring mortgages, etc., to be filed in tlie county wliere tlie grantor, I'tc, resides, does not apply to foreign cor- porations with headquarters out of the Province. Don v. Warner, (1896) 28 N. S. R. 202. See Acts of 1893, c. 2; si-o also Fielding v. Church, (189C) N. S. R. 136, in note to sec. 130. 144. II' tlic a])i)licant for a iiiiiiiiig lease slinll not excctite such lease aiul lUe it in the oihee of tlie Coiiiniissioner for execution and registry by tlic Connnissionor within one year from tlie time of his application, the areas shall be considered vacant, and applications for a leafC or license may be received. 14»>. 'i'lie Commissioner sliall have power to cause witnesses brought before him in all contested cases or matters which lie has power to investigate and decide to be examined under oath, which oath the Connuissioner is hereby empowered to aduiinister, and the Commissioner shall have the power to compel the attendance before him ol' all witnesses in such cases or matters l)y sul)pa'na under his hand aud seal, and said witnesses upon being served with a copy of said siibjxtna, and paid the ctmduct money allowed to witnesses for travel aud atteiulance in the Supreuie Court, shall be subject to the same ];enalties for disobeying said subpoena as they are lialde to for disobedience to a sulipcrmi issued in the Supreme Court ; and like proceeilings in conleuipt uiuler this section may be made to tiie Su- ])reMie Court or auy .ludgc,' tliereof, who may treat failure to oljey a subpuMia duly issued 1)y the Couimissioncr in the same manner as disobedience to a subpceua issued in the Supreme Court; aud like ]iowers jire luTcljy conferred on IVputy Couuuissioners in all con- tested cases and matters IjcTore them which they have power to in- vistigate and decide, aud the Commissioner and Deputy Coiumis- siouei' shall have power to lake atlidavits under oath and to aduunisler the oiitl) in all such cases, and to administer oaths in all such cases where allldavits are nnpiired by this chapter, except where suih oath is required to l»e administered by a Commissioner of the Supreme Court. The Chiei' Commissioner or any Dejiuty Commissioner shall not receive any application lor license or lease of any mines or u\in- ing areas the right to a license or lease of which is at the time of such application in dis[)ute before the Connuissioner or Deputy or any Court of A])peal. 1-ltt. WluM'c royaltii's are due aud owing to the Crown, the (Jovoruor in C(uincil shall have power to order the C(uumissi(uuu' of Jlincs to issue a warrant under his hand and seal of ollice directed to ?H '\'i um I'm muw ' i^ 4G0 NOTA SCOTIA the sherifl: of the coiiiitj' where tlic mine in respect of wliich such royalties are clue is situated, requiring sucli slieriff innncdiately on receipt thereof to levy on tlio goods and chattels ii^^ed in working and ojierating such mine; and if within the space of twenty days next alter such levy such royalties so due are not paid to said shcritf to jnoceed to sell the same or so much of such goods and chattels as shall he suflicient to pay such royalties and his fees, first having publicly advertised the same for the space of not less tluui Ten days Ijel'ore sucli sale, and to make return of such warrant, and pay over the sum due for such royalties, to the Commissioner of ^Mines within thirty days from the issuing thereof. Upon the receipt of such order the Commissioner shall issue such warrant and deliver the same to such sheriff, who shall immediately execute the same according to the exigencies thereof, and the slicriif's fees on such execution shall bo the same as for executing a writ of execution out of the Supreme Court in a civil suit. 14T. Leases and licenses shall terminate on the recurrence of the day on which they l)ear dat'; in the year of tlicir termination, and after ten of the clock of the forenoon of the following day the areas may be leased or licensed anew; but nothing contained in this section shall ])revcnt the renewal and extending of licenses and leases as hereinbefore provided. |4S. If any lease, or any share or interest therein, l)ccomcs transmitted or transferred, in consequence of the death, bankruptcy, or insolvency of any lessee, or in consequence of the marriage of any female lessee, or by any means other than a transfer according to the provisions of this chapter, such transmission or transfer sliall be authenticated by a declaration of the person to wl;om such lease or share or interest therein has been transmitted or transferred, stat- ing the circumstances of such transmission or transfer, and describ- ing the manner in which and the person to whom such property has been transmitted or transferred; and such declaration shall he made before the Cominissioner, Deputy Commissioner of I'liblic Works and Mines, or a Justice of the i'eace. 1411. If such transmission or transfer shall have taken place by virtue of the bankrii])tcy or insolvency of any lessee, such di'claratiou shall be accompanied by such evidence as may for the time being bo ivceiviible in courts of justice as proof of the title of ]iersons claim- ing tinder any bankriijitcy or insolvency; and if sucli transmission has taken iilace by virtue of the marriage of a female lessee, sucli '<^. a THE MIXES AXD illXEItAL ACT 4(31 (lc'elaratii)n shall be accoiiipauioil by a coj)}' of the roj^istcr of such inarriagi", or other legal evidence of the celebration thereof, and shall declare the identity of such female lessee; and if such transmission shall have taken place by virtue of any testamentary instrument or by intestacy, then such declaration shall be accompanied by tiie pro- bate of the will, or the letters of administration, or any copy thereof that may be legal evidence, or would be received in courts of justice as proof of such transmission. ISO. The Commissioner of ]\Iines, upon receipt of such declara- tion, so accompanied as aforesaid, shall enter the name of the person entitled to the lease, or any share or interest therein under such transmission or transfer, in the books of registry, as so entitled thereto. 1*51. Any afiidavit required by any section of this chapter, may be sworn before the Commissioner or Deputy Commissioner, or before a Commissioner of the Supreme Court, or a Justice of the Peace. 153. All applicants for leases or licenses under this chapter shall furnish their addresses, Avhich shall be registered with their leases and licenses, and may at any time be changed by written application of the lessee or licensee. All summonses, notices, or other documents, required to be served under this Act, shall be considered as served if sent by registered letter to such address, or left at such address. In the case of a summons or notice or other document sent by registered letter, the date of such service shall be assumed to be the date at which such letter woidd have been received in the ordinary course of mail. "Where there are more than one applicant for leases or licenses, such service upon any one of the lessees or licensees shall bo deemed service ujum all.* ' See Acts 1893, c 2. s. 10, as amended by Acts 1897, c. 4, s. 5. imi. Chapter 7, Eevised Statutes, fifth series, " Of Mines and Minerals," and all Acts and parts of Acts in amendment thereof, are hereby repealed. 1»54. 'I'iiis ('lui])tor may be legally known and cited as '"The Mines and Minerals Act, 1893." 155. The Governor in Council may. at any time within one year from the ]mssing of this Act, axitliorize the Commissioner of Piiblie Works and Klines to accept the surrender of any lease of a coal mine, and may issue in lieu thereof a new lease on the same terms and conditions as such surrendered lease except as respects the royalty to fm 462 IfOVA SCOTIA i be paid to the Cro^\■n for the use of the Province. Such new lease may omit tlie provision required l)y section 4 of chapter 4 of the Acts of 1885, and substitute for such provision the following or words to the like etl'ect, that is to say: ''That tlie royalty of ten cents ]ier ton on all coal, as iixed by the llTth section oi" this chap- tei", shall not be increased prior to the Soth day of Aufjust in (he year of onr Lord one thousand nine hundred and six; that tiui royalty sludl not exceed twelve and one-half cents per ton, prior to the 25th day of August, in the year of our Lord one thousand nine hundred and twenty-six, and that in the case of any renewal of a lease to whicli the holder may be entitled on the 25th day of August in the year of our Lord one thousand nine hundred and twenty-six, under the pro- visions of the law now existing, the Governor in Council shall fix a rate of royalty which shall be specified in such renewed lease, and shall not be increased i)rior to the twenty-sixth day of August in the year of our Lord one thousand nine hundred and forty-six." (1) In the event of any lease being surrendered under this sec- tion within one year as above mentioned, and application made for a now lease in lieu of any lease so surrendered as ])rovided for in this section, the Commissioner of Public Works and ^Mines may, at any time within six montlis from receiving such surrender and applica- tion, issue the lease in this section provided for, and such new lease shall, while following the terms and conditions of the lease surrender- ed, be as near as may be in the form of lease now issued under the "^Mincs and Minerals Act, ]S!»2,"' except as to the stipulations in respect of royalty herein provided for. Such lease when so issued shall lie a valid grant of the areas surrendered and apjilied for under this section, and shall be deemed ell'ectual to pass the title to tlie ureas surrendered from the date of the application therefor. (2) This foregoing section shall be read as forming part of said section 155, and as if passed therewith. (Acts 1S!)3, c. 2, s. 13.) 150. Notwithstanding anything contained in the llTth, llSth, or 120th secti(tn. or in any other i)art of this chapter, whenever it shall ajijiear to the satisfaction of the Covernor in Council that any (omjany or ])orson working or ])roposing to work any coal mine or mines, is willing to i)ay to the Province a greater royalty per ton than that fixed by tlie said 117th section, or is ]u-ei)ared to in-osecuto coal mining ojterations on such an extensive scale as would, without n higher rate of royalty, largely increase the Provincial revenue deriv- able from royalties, the Governor in Council may authorize the Com- *:ici'* THE MiyES AND MiyERAL ACT 403 missinner of Pn1)lic "Works and !Mines to accept tlic siirrendcr of any coal lease or leases held by such company or person under the law now existing, or any lease or leases that may be issued under the pro- visions of the 155th section of this chapter, and may issue in lieu thereof a new lease or leases, containing sucli terms and conditions its may be deemed expedient as respects the area of any such lease, the period for which the lease shall run, the rate of royalty to be im- posed during the whole or any part of such period, and the taxation that may be levied on the property of such company or person; pro- vided, however, that in no case shall any such new lease fix the rate of royalty lower than that fixed by the ITth section of this chapter.*^ ' Acts of 1892. |;.: ■ m CHAPTER 3. An Act to amend an Act of the present Session, entitled an Act to amend and consolidate the Acts relaling to Klines and ^finerals. Passed iJic SOIh (hiji of Ajirih .1.7). ISO.?. Be it enacted by the Governor, Council, and Assembly, as fol- lows: 1. Section 132 oT an Act pas.«ed during tlio present Session, entitleil '"An Act to amend and consolidate the Ads relaling to !Mines and Minerals," is hereby repealed. For Acts of 1892, c. 3; see note 1 to sec. 117. .; f ; ACTS OF 1893, err AFTER ?. An Act to xVmend Chai)tor 1 of the Acts of 1803, entitled " Tlie :Mines and ^ilinerals Act, 1802." Passed the 2Slh dai/ of April, A.D. ISO-i. l>e it enacted by the rjovernoi", Council, and Assenddy, as follows: 1. In case any mortgage, conveyance, judgment, attachment, bill of ,«ale, lien or encumbrance, covering or ad'ecting any area or areas, shall have been didy registered or recorded in the olTico of the Commissioner of ^Mines. as ]irovided by section llo of " The "Mines and ;^^inerals Act, 1802," the holder or holders of any lease or license to 464 NOVA SCOTIA search, or prospcctinsioner of !Mines, covering or affecting the areas included in such lease, the Commissioner or Deputy Commissioner sliall forthwith give notice of such default in the manner i)rovided Ijy said sub- section (/), so amended as aforesaid, not only to the lessee or lessees, but also may give such notice to the holder of each such mortgage, conveyance, judgment, attachment, bill ci sale, lien or encumbrance, and each such holder shall have the right within thirty days after the posting of such notice to make such payment, and in default of sucli })ayment being made within said period of thirty daj's, then the said lease shall forthwith become forfeited. :ii 'i !'! I 8. In case the holder of any lease referred to in said section 108, shall fail to avail himself of the provisions of the said chapter, so far as relates to the annual payment in advance, and the refund thereof as provided for by sub-section {f) of said section 108, the holder of any mortgage, conveyance, judgment, attachment, bill of sale, lien or other encumbrance, covering or affecting the areas included in any such lease, may enter into a duplicate agreement in writing with the Commissioner for the making of such annual payments, and there- after so long as such annual payments in advance shall be duly made liy any person having any interest in or lien upon such areas, mIic- ther a party to such agreement or not, the said lease shall not be forfeitable for non-working. 30— M 4G6 ^'orA SCOTIA tt. In case any mortgage, conveyance, Jiulginent, attachment, bill of sale, lien or other encumbrance, shall be duly registered or recorded in the ofFice of the Commissioner of Klines, and shall bind, or affect, or constitute a lien upon any area or areas included in any lease, every such mortgage, conveyance, judgment, attachment, bill of sale, lien or other encumbrance, shall to the same extent, and in the same manner, bind, affect and constitute a lien upon the area or areas included in any renewal or renewals of such lease. 10. This section was repealed by Statutes of 1897, c, 4, s. 5, and the following substituted therefor: The Commissioner or Deputy Commissioner shall not be re- quired to send notice of default of payment to the holder or holders of any mortgage, conveyance, judgment, attachment, bill of sale, lien or other encumbrance, unless previous to such default such holder or holders shall have given written notice to the Commissioner or Deputy Commissioner of his or their post otTice addresses. The Com- missioner or Deputy Commissioner shall register post oHice addresses of all api)licants for leases or licenses as furnished under the j^rovi- sions of section 153 of chapter 1 of Acts of 1892, and such address shall be deemed the address of the holder of any lease or license, un- less and until the holder of such lease or license shall have registercid a changed address, and notice sent to any lessee or lessees at the address given at date of application for such lease shall be sullicient unless some change in such address has been duly registered with the Commissioner or Deputy Commissioner. 11. Wlierc tiie docket of a judgment or a copy of a writ of attach- ment, with a description of the property appraised and a copy of the appraisement, shall have been duly lodged in the oOice of the Com- missioner of Public ^Vorks and ]\Iines, the said judgment and attach- ment shall thereupon be deemed registered in the said ofliee, and all the interests of the judgment debtor in any mining areas in his name in the said office shall thereupon become bound by the said judgment and said attachment. <^ Art of 1893 is hereby ,i. Dviso : "Provided, 18. Section 115 of chapter 1 o<' amended by adding thereto the foil' however, that this section does not ap])ly to or aU'ect any action or suit commenced previously to the 30th day of April, 1893 ; und does not and shall not affect in any manner the rights of the ])arties to any such action or suit; and does not and shall not a])ply to or affect any license to search, license to work or lenso, the validity of which shall have been or shall l)e in dispute in any such action or 1. I -A THE MIXES .l.VD MISEUAL ACT 4G7 suit, but every such action or suit shall bo hearil and determined to all intents and purposes in the same manner as if this section had not been enacted." 13. Section 155 of chapter 1 of the Acts of 1898, known as " Tiic Mines and Minerals Act, 1893," is hereljy amended by adding at the end of said section tlie following clauses: (For added sulj- section see section 155.) 14. Froui and after the ])assing of this Act no person holding the ollice of Provincial Secretary, Attorney-Ciencral, C'oniniissioiu'r of Public Works and Klines, or any olTice or eni])loyment under th(i Provincial Government or under any department thereof the duties of whicli are usually ])erl'ormed in the buihling at IFalilax known as the Provincial IWiildiug, shall, while liolding such oihce or emph)y- mcnt, directly or indirectly, apply to the Department of ]\Iines for any mining license or mining lease, or act as agent for any other person in the making of any such ap])lication. Xo application made by any ];erson in violation of this section shall l)e received or acted upon by tiic Commissioner of Works and Mines, and any person violating the ja-ovisions of this section shall forfeit his ollice or employmenl, and be liable to a penalty of four hundred dollars, to be recovereil v.s a i)rivate debt by any person suing therefor. This section slmll not in any way alTect the right of any such person now holding a license or licenses to search to api)ly by himself or by his assignee or agent for lease or leases or renewals thereof of the area or areas and right or rights included in such license or licenses, or of any portion of such area or areas and right or rights, and this Act shall not in any way alfect the title or titles of any person or persons, company or companies, now outstanding, and shall not alfect any suit pending at the time of the passing of this Act. ACTS OF 1893— CIIxVPTER 3. An Act to amend Chapter 1 of the Acts of 1892, " The Mines and Minerals Act, 1893." Passed the SSth Jay of April, A.I). 1893. Be it enacted by the Governor, Council, and Assembly, as fol- lows : — 1. Section 10 of chapter 1 of the Acts of 1893 is hereby amended by striking out the word " true " in the third line thereof, and sub- Btituting therefor the word " magnetic." ^1 40B XOVA SCOTIA 3. St'ciion 11 of the said cliaptcr is liorohy anicntled l)y adding Ihc I'ollowiiig words tlicrt'to : (For added words see Acts, J81>"^, c. ],s. 11.) a. Section IT of the said chapter is licrel)y amended by inserting between the words " areas " and " shall '' in the lirst line thereof tlie following words: — '"and for prospecting licenses to search for gold nud silver hereafter." 4. All ap])lications for prospecting licenses to search for gold and silver tliat may have been received I)y the l)e])nty Commissioner at Sherbrooke, for areas within tlio limits of tlie proclaimed gold district of Slierln-ooke, in the County of (Juysl)orongb, previously to the passage of this Act, are hereby declared to be valid, and all ap- plications for prospecting licenses to search for gold and silver, cover- ing areas in the said district, that have been received at the ollice of the Commissioner of Klines ai Halifax heretofore, are hereby also declared to be valid. ■' 5. Section 112 of said chapter is hereby repealed. O. Section 120 of said chapter is hereby amended ))y striking out the figures " I'^d "' in the twenty-fifth line thereof, and substi- tuting the figures '* 122 " therefor. T. Section luT of ,'aid chapter is hereby amended 1)y striking out the word "refuse" in the eiglitli line tliereof, and substituting the word " issue " therefor. 8. All Acts or parts of Acts that are inconsistent with this Act are hereby repealed. FFr ACTS OF 18!»r-CllArTHK 4. An Act to amend the Law res})ecting Klines and ^linerals. Note. — The title of this Act is referred to in Act 1897, c. 5, s. 1, as " An Act respecting Mines and Minerals." Passed the 1st dni/ of MnirJi, A.D. J SOT. Be it enacted by the Governor, Council, and Assembly, as fol- lows : — 1. This section, as originally enacted, was repealed by Statutes, 1S[»7, c. 5, s. 1, and the following substituted therefor: " All leases of mines of gold and of gold and silver, and of mines othei' than gold and silver, applied for within two months from the TUB MINHH AXD MJXlJItAL ACT •109 '^X- 1'th tiny of Ajtiil, 1880, and wliicli wcro issued iindoi' the provisions ol' section 8, ol' cliii])ter '^',i, ol" the Acts of I88!l, without containing a |)iovis!on in respect to tiu; payment of rental and its refund under certain conditions, sluill he read and construed as if said leases had l.ccn issued containing said rental clause, and, in the case of all such leases not heretofore surrendered, lapsed or forfeited, on the no\t aniiivcisary of their date notice of tiie payment of rental l)eing due shall be sent to each of such lessees. Provided, however, that this section shall not apply to any lease which [)rior to the first day of Fcliruary, 1M)T, had heen called in question before the Supreme Court." In re H. V. Weir (not yet reported), application was made by H. V. Weir on the 15th October, 1896, for a certain gold mining area, and refused by the Conmiissioner on the ground that " he deemed, and decided that the areas therein enumerated were covered by lease 788. That lease was granted on 6th May, 18yO — we do not know the date of the application on which it was granted, nor is it material as will appear hereafter. On the 17th April, 1889, the Legislature passed an Act repealing section 16, chap- ter 7, and making new provisions which were to be Inserted In all leases granted after that Act came in force. By one of the sections (8) the sections which contained the new provisions were not to come in force for two months after the passage of the Act, which would be 17th June, 1889. The lease although not granted until 6th May, 1890, nearly a year after the statute of 1889 came in force, was, for some unknown reason, probably the Commissioner's mistake. Issued In the old form under the repealed section 16. In my opinion the Commissioner was not then empowered to grant such a lease, as the statute then in force provided for lease contain- ing different terms as will be found on reference to section 7, Act 1889. But, while this Is true. It is not open to a person in the position of the applicant to question its validity in such a proceeding as the present. The Commissionir alone could challenge its validity In a proper proceeding for that purpose. This is made clear in Osborne v. Morgan, (1888) 13 App. Cas. 227, where Lord Watson says at page 2C5: "The right to interfere with the possession of a tenant under a former lease Independently of the lessor, and in derogation of his rights, is not one of the natural incidents to a mere license, which carries no legal or equitable interest at all. An (,(• fdi'ic regular lease, followed by possession, and impeachable only upon such extrinsic grounds as are alleged in the appellants' declaration, is, as between the parties to it, not void, but voidable; and, the lessees being willing to continue in possession and to comply with Its stipulations, it is the privilege of the lessor to determine whether they shall be permitted to do so or not." In that case the Commissioner had made a leas'i within two years from the date of the proclamation of the gold fields, whereas the statute provided that no leases should be granted within the period, and it was attacked by parties who were licensees, whereas here the applicant has no status whatever. The result Is that the lease in question was at the most voidable at the suit of theCrown.not void, and therefore ril iK-' 1;!^ ■ I i; ;' 4 470 2S0rM SCOTIA the arcuH applied for were not vacant or open for application. Apparently tlu' ComnilHsioner's nilHtakc in IssulnR aiioh a lease was diHcovereil, and In the year lS!t7 Iwo (ilffcrent stattiteH were paHsed to validate leases so Irregularly granted, that is to say chapters 4 & 5, Acts of 1897. Chapter 5, section 1, enacts that "all leases applied for within two months from the 17fh day of April, 1889, and which were Issued under the provisions of section 8, chapter 23, of the Acts of 1889, without containing a provision in respect to the payment of rental and Its refund under certain conditions, shall be read and construed as if said leases had been issued containing said rental clause, and. In case of all such leases not heretofore surren- dered, lapsed, or forfeited, on the next anniversary of their date notice of the payment of rental being due shall be sent to each of the lessees. Pro- vided, however, that the section shall not apply to any lease which prior to the 1st day of February, 1897, has been called In question before the Supreme Court." Now the first point to determine Is whether this particular lease comes under the proviso. It is not directly " called In question," if by that Is meant that such proceedings have been taken before th<3 Court ns will bind or directly attack the validity of thi> lease as against the lessees In this proceeding, but Incidentally, of course, the lease is called In question, as the Commissioner could only grant this application on the assumption that the lease Is void. But by section 4, chapter 4 (Acts of 1897), "No lease of mines of gold, etc., now outstanding or hereafter to be issued, shall 1)6 attacked or called In question In any Court, unless within one year from the date of the Issue thereof, and all leases issued by the Commissioner of Public Works and Mines shall, after one year from the date of the issue thereof, be indefeasible and not forfeitable except for non-payment of rental or royalty, or In case of leases now outstanding not under rental for non-working, etc." The result of this legislation here Is that (1) this lease has not been called In question within a year from the date of its Issue, and (2) that not coming under chapter 5, section 1 (Acts of 1897), by reasim of the proviso, it Is not under the rental clauses, and la only forfeitable for non-working. The Commissioner's certificate is silent on this, but aiS he has decided it was In force at the time of the application it must be presumed that the work has been done, at any rate in the face of the decision we cannot assume that It was not done. It Is therefore clear. If section 4, chapter 4 (Acts of 1897), applies to this lease, it is still in force, as the application was rightly refusetl. We are bound to construe it as applicable as there is no exception, and in other sections of the two Acts there are exceptions. If it had been Intended to exclude leases under the working clauses when called In question prior to February let, 1897, of course It would have been so expressed, but section 4, chapter 4 (Acts of 1897), enacts they shall be non-forfeltable except for non- working, whatever may have been the Intention of the person who drafted these chapters. Leases containing the " working clauses " so called, even though issued after the Act of 1889 came in force, are now by statute made viilid and non-forfeitable except for non-working. As already pointed out we have no evidence that this condition was not fulfilled by the lessees. Certainly the Court must have so regarded the matter, and the Court will I i Tin: Mixf:s AM> .\[im:i{al mt \l\ not uBsumo In favour of forfeiture which has not been proved, even If It wert' competent to do so on the prcBcnt iippllcation. ThlH appeal should therefore be dismissed, but us It was not opposed there will be no costs." Hltcbie, J., Huld: " II Is clear, I think, that the Legislature did not contemplate that such leases were to be construed as containing the rental claiiseH, because It provided by section 1 of chapter 4 of the Acts of 1S97, as amended by chapter f) of the same year, thai leases applied for within two monlha after 17th April, 1889, and Issued without containing the rental clauscH, should be read and construed as If Ihey contained them, legisla- tion entirely Inconsistent with the Idea that such leases before 1897 were to be legally construed as If they contained these clauses. A proviso In the section I have referred to excludes the particular lease the subject of this enquiry from Its operation. It Is equally clear too, that the Legislature did not consider such leases Issued without the rental clauses void, but recognized them as existing leases; It dlil not even think It necessary to legalize or confirm them, but merely by legislation added clauses which It considered the leases should have contained when they were issued. If the lease In question Is to be recognized as an outstanding lease in 1897, of which I have little doubt, section 4 of chapter 4 of the Acts of 1897 has made it indefeasible and forfeitable only for non-working. But assum- ing this lease had been Improvldently Issued and was not In accordance with the provisions of the Act, so that it might have been set aside before the Act of 1897 after a due investigation at which the lessee had an opportunity of being heard, there Is, In my opinion, no law which requires the Commissioner of Mines, or even enables him, on his own more motion without investigation or notice to the lessee, to set aside or disregard a lease, because he thinks It has not been Issued in accordance with the terms of the Statute or for the alleged breaches of condltlors which the lease does not contain." Henry, J., said: "I understand the decision of the S\ipreme Court of Canada in the case of Ti-mple et al. v. Atty.-General et al., (1897) 29 N. S. R. 288; 27 S. C. R. S.'in; as delivered by Mr. Justice Sedgwick, to determine, as did that of Mr. .Tustlco Graham In this Court, that as to mines of gold and of gold and sliver, thi> effect of section 8 of chapter 2^ of the Act of 1889 Wiis to suspend for two months the coming into force of the whole of the preceding part of the Act. It was contended at the argument of this appeal that some of the language used by Mr. Justice Sedgwick showed that the decision as to the suspension of the Act was limited to cases where the applications were made before the date of the passing of the Act. This Is not so. The first part of the decision determines that section one — the main section — was suspended. That being so it is clear that the language of the lattir part was used not to limit the subject matter of the provision for suspen- sion, but only as a probable explanation or account of the reason for postponing the introduction of the new by-law provided for by the Ace. In the present cases it appears that the applications were made on the 4th of May and the 10th of June, 1889, respectively. When these applica- •! 1 I .1 li! I 1,!' m IP. I! M 1 ! Hi tt '#■' 472 NOVA SCOTIA tions wore iiiadi' section 16, R. S., chapter 7, ' The Mines and Minerals Act,' was still in force, not having yet been affected by chapter 23, Acts of 1889. The applications, therefore, were made under the old Act, and the rights and liabilities in respect of these applications were those which that Act provided for. The applicants became entitled to leases under that Act. They applied for no other kind of lease. They could not have done so because there was no law under which they could apply for any other. Although the leases in question are of later date than the date 17th June, upon which the Act of 1889 came into force, they expressly cover, as they should, a term commencing upon the days of the applications re- spectively. They establish the relationship of lessor and lessee between the parties from the dates of the applications onward. They are no mori> and no less than the formal expression of the rights of the parties, ^iie Crown and the lessees, which arose inmiediately upon the making of the applications — the only rights which so far as the periods from the dates of the applications up to the coming into force of the Act are concerned, could arise under the existing law. During these periods the applicants had a right to receive old leases. They have since received old leases, the terms of which by their own ex- press provisions commenced to run bt'fore the new law came into existence. It cannot injuriously affect these lessees that the leases to which they had a right previous to the 17th June were not delivered to them until after that date. There is nothing in the Act, or in any decision upon it, to lead to such a result. As to the language of section 7, providing that ' All leases of mines of gold, etc., shall contain the provisions respecting tlie payment of rental, etc.,' I do not regard it as having been intended to enact that every lease issued after the coming into force of the Act must, without regard to the date of the applications contain the new terms therein provided for. I understand it to apply, as it ought to apply, to leases applied for under the new law, and not to leases not only applied for under the old law but covering terms commencing before the change in the law took place. Section 10 provides that ' All leases granted under this Act shall be for the term of twenty years.' It cannot be said that the leases in question weri' ' granted ' under the new Act. They were granted under the Act under which the applications for the grants were made. I am of the opinion that these leases are valid as being the leases to which the applicants were entitled." S. [K.\c('|il ill tlic fiif^e of leases called in (luestion before the Rii- lireiiie Coiirl prior to the 1st day of Fe])riiary, 18!)Tp all leases for pohl and silver, or for iin'nes other than siiinter 2 of tho Acts of IS!).') is hereby repealed, and the following substituted: — The Commissioner or Deputy Commissioner shall not be re(iuired to send notice of default of ])ayment to the holder or holders of any mortgage, conveyance, judgnuMit, attachment, bill of sale, lien or other encundtrance, unless jirevious to such default such holder or holders shall have given written notice to the Commissioner or l)e]aity Commissioner of his or their i^ost otlice addresses. The Com- missioner or Deputy Commissioner shall register i)ost olTu'e addresses of all aiiplicants for leases or licenses as furnished under the ])rovi- sions of section InS of chai)ter 1 of Acts of 1892, and such address shall be deeuu'd the address of the holder of any lease or license, un- less and until the holder of such lease or license shall have registered a changed address, and notice .sent to any lessee or lessees at the ad- dress given at date of application for such lease shall be sulVicient, unless some change in such addresf- has been duly registered with the Commis-iouer or Deputy Commissioner. M' !i '•;» I a \i i\ i ■■■Plli f 474 NOVA SCOTIA 6. If any licensed mill owner shall fail to make the return re- quired under section 51, he shall be liable to a fine not exceeding fifty dollars, to be recos'ered in tlie name of the Commissioner in any Court of competent jurisdiction. Any licensed mill owner not making tlie return required under section 52, in the manner and within the time required for making a return under section 57, shall be lial)' j to a similar fine, rccoveral)le in a similar manner. 7. Section 143 of chapter 1 of the Acts of 1893 is hereby amend- ed by strilapers and writings relating to said ])ros|)ecting license, fiU'd in the otliee (if the Commissioner of Pul)lic Works and Klines, shall be open to the inspection of the public, and in case no such a|)plication is made for a ])ros|)ecting license of such area of five hundred areas by >U(]i licensee before the end of the tern; of three months, or if the Comnussioner of Public Works and ^Mines does not see fit to grant such ])rospcctiiig license over tlie ground covered by such license to prospect for alluvial gold mining, then at the end of fourteen days after the ex]»iratioii of the term of three nionlhs of such license to ]iros|)('ct for alluvial gold ininiiig, ♦'le ground covered by such license for three numtlis shall lie ojien to ap|)lication for licenses and leases to ]irospect and mine gold and silver and minerals other than gold and silver, subject to the provisions of tiie Acts hereby amended. 11. The holder of such license to prospect for alluvial gold min- ing shall, before the end of the term of such license, make return of the gold obtained and pay royalty thereon as one of the conditions upon which an extension of title to the ground so jirospected may he obtained. TIIU MIXES AND IIIXEHAL ACT 477 ACTS OF 181)8 -C'lIAPTKH 27. All Act to aiiiciul tlu' Klines and ^linorals Act oi' 18!I"^, in respect to rrosi)ecting J^icenses and Leases for (Jold. Section 1. — Schedule E oi said Cliai)ter 1, amended. Be it enacted by the (iovernor. Council, and Assenddy, as fol- lows: 1. "The Mines and Minerals Act, 189:^," and all Acts amending said Act, are hereby amended as follows: On and after the first day of July, 18t)8, no application for areas for prospecting licenses or leases for gold or gold and silver shall be acceptetl for a less number than six adjoining areas. («) Provided that whenever there is not space enough for an application for six adjoining areas owing to aitplications already made, the Commissioner may receive an ai)plication for prospecting license or lease for such less nund)er of areas, and such application may in length exceed twice its width, and provided the following provisions shall apply in the case of prospecting licenses in force on the said first day of July, 18!)8, viz.: in the case of a prospecting license for six adjoining areas or more, no application for a lease of ground contained in such ])rospecting license, shall l)e received for a less number of areas than six adjoining areas. In the case of a prospect- ing license for less than six areas no application shall be received for a lease except for all the areas contained in such prospecting license. (b) Also provided, that any application for prospecting license made under tiie provisions of this Act shall not in length exceed twice its width, and shall in all respects i)e sul)ject to the provisions of " The Mines and ^Minerals Act, 18i)2,'' and all Acts in amendment tliercof. 2. Section 11 of " The ]\Iines and :Minerals Act, 1892."' is herel)y amended by substituting the word " nuignctic " for the word " true " therein. St. All Acts or i)arts of Acts that are inconsistent with this Act are hereby repealed. M V:: m ACTS OF 1S98-CIIAPTEK 28. Passed the llth day of March, A.D. 1898. Be it enacted by the Governor, Council, and Assembly, as fol- lows : " The Mines and Minerals Act, 1892,'" and all Acts in amend- ment thereof, arc hereby amended as follows: 1. The Governor in Council shall have power notwithstanding any provisions in said Act and its amendments, to make rules and regulations for issuing prospecting licenses and leases for mining gold and gold and silver in lands where copper, lead, iron, tin and ]n'ecious stones nuiy occur, subject to the provisions in said Act re- specting royalties, and to fix the terms upon which such licenses and leases may be granted, provided that such terms shall not be lower or less onerous than those at present provided for in said Act. 3. All licenses and leases issued by the Commissioner of Klines under such rules and regulations, shall be as valid and l)inding as if issued by him under the said Act. a. All Acts ,ind parts of Acts inconsistent with this Act arc hereby repealed. REGULATIONS OF MIXES. CHAP. 8, OF REVISED STATUTES, FIFTH SEIUES, WITH AMENDING ACTS. 1. This chapter may be legally cited, when desirable, as " The lilincs Regulation Chapter." 3. In this cliapter, unless the context otherwise requires, the term '' mine " includes every shaft in the course of being sunk, and every level and inclined plane in the courso of being driven for commencing or opening any mine, or for searching for or pro\ing minerals, and all the shafts, levels, jilanes, works, machinery, tram- ways, railways and sidings both below ground and above ground, in and adjacent to a mine, and any such shaft, level and inclined plane of and belonging to the mine. The term " shaft " includes pit. The term " inclined plane " includes slope. THE MIXES AyO MIXERAL ACT Aid Tlio term " ])lan " inclutlcs a map and section or sections, and a correct copy or tracing of any original plan as so defined. The term " Commissioner " means the Commissioner of Public Works and Mines. The term '' Inspector " used in this chapter means an Inspector of Mines api)ointed under the laws of this Province relating to Mines and Minerals. The term " Deputy Inspector " used in this chapter moans a Deputy Inspector of Mines appointed under the laws of this Pro- vince relating to Minos and ^linorals, wlio shall have tlie same power of inspection as the Inspector, but shall be under his direction. The term " owner," Avhen used in relation to any mine, means any person or body corporate who is the immediate proprietor, or lessee, or occupier of any mine, or of any part thereof, and does not include a person or body corporate who merely receives a royalty or rent from a mine, or is merely the proprietor of a mine subject to any lease, grant or license for the woi'king thereof, or is merely the owner of the soil, and not interested in the minerals of the mine; but any contractor for the working of any mine or any part thereof shall be subject to this chapter in like manner as if ho were an owner, but so as not to exempt the owner from any liability. The term " agent," when used in relation to any mine, means any person having on behalf of the owner care or direction of any mine or any part thereof. The term " manager," when nsed in relation to any mine, means the chief ofTicor having the control and daily supervision of the mine. The term "underground manager," when used in relation to any mine, means the person [next in charge to the manager and having the supervision of the underground workings]. (1) The term '* overman," when nsed in relation to any mine, means the person in charge of any mine, or any portion of a mine, next in charge to the underground manager. (1) Section 2 is hereby amended by striking out all the words after the word " person " in the forty-fourth line and before the words " the term" in the forty-sixth line, and inserting the following: "Having the dally charge of the underground workings under the control and daily supervision of the manager. See section 2 of chapter 9, Acts of 1891. The term " boy " moans any male person under the ago of eigh- teen years. (2) S';,: nil Ml. f 480 NOVA SCOTIA (2) The term " shift " shall apply to all workmen and boys, except workmen engiiged for the purpose of ventilation, who m.ay go to work In the mine at set divisions of the dny. See section 1 of chapter 9, Acts of 1891. i\. \i iiiij- (iiioslion arises wlicllicr a mine is a mine to wliieh this (hapter api)lies, sueli (iiiestion shall he referrctl to the Conimissiouer, whosL' decision thereon shall he iinal. EMPLOYMENT OF BOYS. 4. Xo hoy nnder the aj^e of ten years shall l)e employed in cr ahont or allowed to he for the jnirposo of employment in or ahoiit any mine helow jiround or ahove owner, agent, or manager, and by a person appointed by the workmen (such person may be the check-weigher, if any check-weigher has been appointed), or in case of difference by a third person mutually agreed upon by the parties to the dispute, or in default of agreement by the CommissioniT of Mines." See Esction 7 of chapter 9, Acts of 1891. (1 & 2) Section 11. That all the words after " so stationed " in seventh line, and before "he shall have every facility" in tenth line b" deleted, and that after the word " stationed " in twelfth line, and be- tween the words " and If any " in the same line, the following words shall be Inserted: "Including facilities for examining and testing the weighing machine and checking and taring of tubs wiiere necessary." See section 17 of chapter 9, Acts of 1891. The check-weigher shall not bo authorized in any way to im])ode or interrupt the working of the mine or to interfere with the weigh- ing, but shall be authorized only to take such account as aforesaid; and the absence of the check-weigher shall not be a reason for inter- rupting or delaying such weighing. '^' I ;,:!• :' . i; ; .1 481 yO\A SVOTIA If the owner, iigeiit or iiinnayur of tlio inino dt'siro.s [\w removal of n elK'cI<-\vi'ifi:lu'r, on I In- ground that such fhi'ck-wcighor has iin- ju'dcd or in(orrui)ti'(l the working of the niino or intorfored with tlic weighing, or has otlicrwisc niisconductiMl himself, ho may complain to Htiy justice of tlie peace of tiie county in wliicli the mine is situated, wiio, if of opinion that the owner, agent or numager shows sullicient prima /V/r(V ground in writing for tiie removal of sucli cheek-weigher, shall hy summons call npon the check-weigher to appear at a certain time and place tlierein mentioned. Such summons and a copy of the said complaint shall he served on the check-weigher hy any constaltle of the county at least five days hefore the return day of said summons. In default of appearance of said check-weigher to answer the com- plaint, proof of the service of the said summons shall l)e furnished by the said constable in the same way as in ordinary civil suits before a justice of the jjeace. On the hearing of the case tiie justice shall liear the parties, and if he think that at the hearing sullicient ground is shown hy the owner, agent or manager to justify the removal of the check-weigher, or in case of the non-appeai'ance of the said check-weigher, and on proof of the service of the summons as aforo- Faid, he shall nuike a sumnuiry order for his removal, and the check- weigher shall thereui)on bo removed, but without prejudice to the stationing of another check-weigher in his place. 'J'he justice may in every case make such order as to the costs of the proceedings as he thinks just, and execution may issue for the recovery of the same as in suits for debts before a justice of tho jtcace. The following to bo added to section 11: "It shall be lawful for the owner, agent or manager of any mine where a check-weigher has been appointed, by a majority ascertained by ballot of tho persons employed In a mine and paid according to the weight of mineral gotten, to retain the agreed contributions toward salary of the check-welghors of the persons so paid, and from all persons from time to time so em- ployed and so paid, notwithstanding the provisions of the Act relating to stoppages, chapter 5C of the Acts of 1890." See sections 28 of chapter 9, Acts of 1891. !| SIN'GLE SHAFTS. 13. The owner, agent or manager of a mine shall not employ any person in such mine or permit any person to be in such mine for the ])urpose of emjdoyment therein uidess there are in com- munication with every seam of such mine for the time being at work at least two shafts or outlets, separated by natural strata of not loss than ten feet in breadth, by which shafts or outlets dislinct means « L-n THE MINES AND MINERAL ACT 4H5 of ingress and egress are available to the persona employed in siicli heam, whether such two shafts or oiitk'ts belong to the same mine or one or more of them belong to another mine, and unless there is a communication of not less than four feet wide and llirce feet Jiigh hetwccn such two shafts or outlets, and unless there is at each of such two shafts oi- outlets or upon the works belonging to the mine, and either in actual use or available for use within a reasonable time, ]»ro|ier apparatus for raising or lowering persons at each such shaft ur outlet. Provided that such separation shall not be deemed incomplete bv reason only that openings through the strata between the two shafts or outlets have been made for temporary purposes of ventila- tion, drainage or otherwise; or in the case of mines where inllam- ]iud)le gas has not been found within the preceding twelve months for the same purposes, although not temporary. Every owner, agent or nuuiager of a mine who acts in contraven- tion of or fails to comi)ly with this section shall be guilty of an otl'enec against this chapter. The Supreme Court or any Judge thereof, whether any other proceedings have or have not been taken, may, upon the aitplication of the Attorney-tjeneral, ])rohil)it by injunction the working of any mine in which any person is employed or is peruntted to be for the ]mrpose of emi)loyment in contravention of this section, and may award such costs in the matter of the injunction as the Court or Judge thinks just; l)ut this provision shall be without ])rejudice to any other remedy ])ermitted l)y law for enforcing the provisions of this chapter. Written notice of the intention to apply for such injunction in respect of any mine shall be given to the owner, agent or manager of such mine not less than twenty days before the application is matlo. 13. The ])rovisions of this chapter with respect to shafts or out- lets shall not apply in the following cases, that is to say: (1) In the case cither of opening a new mine for the purpose ol searcliing for or ])roving minerals, or of any working for the purpose of nud() sliafts or outlets, tliat an extension of time for i)roviding an additional shaft or outlet ought to be granted to him, tlie (piestioii as to wlicther such exein])tion or extension of time ought to ])e granted shall bo decided by the Commissioner. KKTrUXS. XOTICKS, AMI ADAXDOXMnXT. m. Vov ]>ro(uring mining returns — (1) The lessee of every mine leased from the Crown shall send to. the oflu'C of the Commissioner a correct return of all the minerals wrought in sneh mine, as is reipiired by cliaiiter 7, "Of Klines and .Mini'rals," and such o*'ier information and at the stated times specified in such chajiter: (2) And on or before the Ihirty-fiist day of .lanuary in every year the owner, agent or manager of every miii to which * THE MINES AND MINERAL ACT 487 this chapter ai)plies, other than of every mine leased from the Crown, sliall send to the office of the Commissioner a correct return specifying with resn'^^t to the year ending on the preceding thirty-first day of L/ecember the quantity of coal, iron ore or other mineral wrought in such mine, and thi number of persons ordinarily employed in or about such mine below ground and alcove ground, distinguishing the l)ersons aiul labour below ground and above ground and the dilTerent classes of the persons so employed: (3) The owner, agent, manager or occu])ier of every mine shall once a year if required l)y tlie Inspector send to him a rt nru of facts relating to tlie mode and description of means of ventilation, a description of the ujicast and downcast shafts, of the length and sectional area of the airways, the number of splits and quantity of fresh air in cul)ic feet per minute, and tlie average total quantity of air in cubic feet per minute in his mine. The returns shall be in such forms as may be from time to time prescribed by the Conunissioner, who shall from time to time, on application, furnish forms for the ]nirpose of such returns. Every owner, agent or manager of a mine who fails to comply with this section, or makes any return which is to his knowledge false in any particular, shall be guilty of an oll'encc against this chai>ter. I lO. "Where ia or about any mine, whether above or below ground, either (1) Loss of life or any ]iersonal injury to any person employed in or aI)out the mine occurs by reason of any ex])lopion of gas, ])()wdor (1) or of any steam boiler; or (1,2,3) Sub-section 1 of section IG to be amended by inserting after the word " powder " and before the word " or," life words " or any ex- plosive." Sub-section 2 of said section 16 to be amended by inserting after the word " Commissioner " in eighth line and before the word "and" in same line the words "and depiLy inspector for the district," and the same words to be inserted after the word " Commissioner " on first line, page 17. See sections 18 anfl 19, chapter 9, Acts of 1891. (8) Loss of life or any serious personal injury to any jierson employed in (u- about the mine occurs by reason of any accident wliatever; U 'if i;#;i fhe owner, agent, or manager of the mine shall within twentv-four 5B^ 488 NOVA SCOTIA ft hours next after the explosion or accident, send notice in writing of the oxpldf-ion or accident and of the loss of life or personal injury occasioned tlioreby to tlie oiRce of the Commissioner, (2) and shall spocify in sucli notice tlie character of the explosion or accident, and the iiunber of persons killed and injured respectively, and as soon after as possible, and l)efore the end of each year a return of facts relatinfi to such accident or explosion in the form given in the Sciiednle to tliis chapter. AVhere any jiersonal injury, of which notice is required to l)e sent under this section, results in the death of the person injured, notice in writing of the death shall be sent to the office of the Com- missioner (3) within twenty-four hours after such death comes to the knowledge of the owner, agent or managei (2, 3) See 1, 2, 3, page 11. Every owner, agent or manager wlio fails to act in compliance with tliis section shall be gnilty of an offence against this chapter. IT. In any case, (1) "Wliore any cliange occurs in the name of, or in tlie name of the owner, agent, or manager of, any mine, or in tlie officers of any incor])orated company which is the owner of a mine not exempted from compliance with this clause by the Commissioner; (2) And in any of the following cases of coal mines, namely, ((/) Where any working is commenced for the purpose of opening a mine; (/>) AVlicie a shaft of any mine is abandoned or the working thereof discontinued; or ((•) ^Vi',e^e the working of a mine is recommeiued after an abandonment or discontinuance for a period exceeding two months; tlie own''!', agent or 'uanager of such mine shall give notice thereof at the office of the Commissioiu'r within two months after such coin- meiici'iiu'iit. abandonment, discontinuance, recommeiiccinent or change: and if such notice be not given, the owner, agent or manager shall be guilty of an olfence against this cha])ter. IH. Where any mine is abandoned or the working thereof dis- continued, at whatever time such abandonment or disconliniiance occurs, the owner thereof, and every other person interested in the TBE MINES AXD MINERAL ACT 489 mineral of such mine, shall cause the top of the shaft and any side entrance horn the siirface to be and to be kept securely fenced for the prevention of accidents. Provided that — (1) Subject to any contract to the contrary the owner of the mine sliall, as between liim and any other person interested in the minerals of the mine, l)e liable to carry into elfect this section, and to pay any costs incurred by any other person interested in the minerals of the mine in carrying tliis section into cfTect; (2) Xothing in this section shall exempt any person from any liability under any other clujpter or Act, or otiierwise. If any jicrson fail to act in conformity with this section, he shall be guilty of an olTence against this chapter. lO. "Where any mine is alnuidoned, the owner of such mine at tlie time of sucli abandonment slu\ll, within three months after such abandonment, send to tlie office of the Commissioner an accurate ])lan on a scale of not less than a scale of two diains to one inch, showing iho boundaries of tlie workings of such mine up to the time of the abandonment, with the view of its being preserved under the care of the {Commissioner. Provided that this section shall not apply In a mine (which is not a mine of coal, or stratified ironstone, of shale, or of fireclay) in which less than twelve ])ersons have ordinarily been employed below ground; unless the owner, his agent or manager has been specially required by the Commissioner to keep a plan of his mine. Every person who fails to comply with this section shall bo guilty of an od'ence against this chapter. n s} INSPrXTION. 20. The Inspector shall have power to do all or any of the fol- lowing things; namely, (1) To make sTich examination and eiKpiiry as may be necessary to ascertain whether the jtrovisions of this chapter relating to matters aliove ground or below ground are eouiplii'd with in the case of any mine; (v^) To enter, inspect "'d examine any mine and every part thereof at all reasonal)le times by day and night, but so as not to im]iede or obstruct the wm'king of the said mine; Hi II 490 NOVA SCOTIA (3) To examine into and make enquiry respecting the state and condition oJ: any mine, or any part thereof, and tlie ventila- tion of the mine, and tlie snfficiency of the special rules for the time being in force in tlie mine, and all matters and things connected with or relating to tlie safety of the per- sons employed in or about the mine or any mine contiguous thereto; (4) To exercise such other ])owers as may be necessary for carry- v^g this chapter into effect. Every ]ierson \v]i.o wilfully obstructs the Inspector in the exe- cution of his duty under this chapter, and every owner, agent and manager of a mine wlio refuses or neglects to furnish to the Inspector the means necessary for making any entry, inspection, examination or enquiry under tliis cha])ter in relation to sucli mine, shall be guilty of an offence against this chapter. 21. If in any respect (whicli is not provided against by any exjiress ])rovision of this chapter, or by any si)ccial rule) the Inspectoi find any miiu', or any part thereof, or any matter, thing or practice in or connected with any such mine, to be dangerous or defective, so as in liis opinion to threaten or tend to the bodily injury of any pei*- son or to the waste or misuse of any property of or leased from the Crown, tlie Inspector may give notice in writing thereof to the owner, agent or manager of the mine, and shall state in such notice the par- ticulars in which he considers such mine or any part thereof, or any matter, thing or practice, to be dangerous or defective, and require the same to l)e remedied; and unk-ss the same be forthwith remedied the Inspector shall also report the same to the Commissioner. If the owner, agent or manager of the mine object to remedy the matter complained of in the notice, he may, within ten days aftei the receipt of such notice, send his objection in writing, stating the grounds thereof, to the Commissioner, wlio sliall thereupon hear such evidence u])on the matter as may bo produced ])efore him, and to- gether with one arljitrator appointed by the Ins])ector and one arl)i- trator a]ipointed by the owner, agent or manager objecting, shall determine the same; and the award of the Commissioner M'ith one of tlie arbitrators shall be final. I'ive days' notice of the time and place where the Commissioner will hear such evidence shall be given to the parties interested. If the owner, agent or manager fail to coinjdy either with the icqiiisition of the notice where no objection is sent within the time THE MINES AND MINERAL ACT 491 aforesaid, or with the decision of the Coniniissioncr and arhitrators Avitliin five days after the expiration of the time for ohjection or the time of making of the decistion of the Commissioner and arbitrators (as the ease may be), he shall be guilty of an olTence against this chapter, and the notice and decision shall respectively be deemed to be written notice of snch offence: Provided tliat the Commissioner, if satisfied that the owner, agent or manager has taken active measures for complying with the notice or decision, but has not with reasonable diligence been able to complete the works, may extend the time of five days (aijove speci- fied) to such time as he shall deem proper, and if the works are com- pleted witliin snob time no penalty shall be intlicted. Xo person shall be precluded l)y any agreement from doing such acts as may be necessary to comply with the provisions of this section, or be liable nnder any contract to any penalty or forfeiture for doing such acts. 32. The owner, agent or manager of every mine of coal, of stratified ironstone, of shale, or of fireclay, shall keep in the office at the mine an accurate ])lan of the workings of such mine, showing the workings np to at least six months previously, also the owner, agent or manager of all other mines in which more tlian twelve per- sons are ordinarily em])loyed below ground, also of all other mines when specially requested to do so by the Commissioner. Tile owner, agent or manager of the mine shall produce to tht Inspector at the mine such i)lan, and shall if re(|ueste(l Ijy the In- spector mark on such jtlan the iirogress of the workings of the mine up to the time of such ])roduction, and shall allow the Inspector to examine tlie same, and shall furnisli to the Inspector a correct copy of such jilan when requested by the Inspector. The owner, agent or manager on or before the first day of April of each year shall furnisli lo the Inspector a correct iilan or tracing (not before furnislu'd) of the workings \\\^ to first day of January then last jiast. If the owner, agent or manager of any mine fail to kee]i such plan as is piescrilied by this section, or wilfully refuses to produce or allow to be exainiiicd such ])laii, or wilfully refuses to fui'iiisli such copy, or wilfully withholds any portion of any ])lan, or conceals any ]>art of the workings of his m ne, or ])roduccs an imperfect or in- accurate ])lan, unless he shows Jiat lie was ignorant of sucli conceal- ment, imperfection or inaccuracy, he shall be guilty of an ofTence against this chai»ter; and further, the Inspector may by notice in 1! i!\ ; ■ ; i t 11 'I"'. ■ ,',''.5! 1 wl »i:.i. I r ! i:^ 'Mil 'i 'ill ■ M! t«l . 492 XOYA SCOTIA writing (whether a penalty for sucli ofTonee lias or has not heen in- flicted) require the owner, agent or manager to cause an accurate plan, such as is prescribed by this section, to be made within reason- able time at the expense of the owner ol" the mine, on a scale of not less than two chains to one inch, or on such other scale as the plan then used in the mine is constructed on. If tlie owner, agent or majiager fail Avithin twenty days, or such further time as may be s]u)wn to l)e necessary, after the re or with a space for a place of refuge, which space shall be of suffi- cient length and of at least three feet in width between tho waggons running on the tramroad and tho side of such road. Whenever in tho opinion of the inspector tho precautions required in this section, so far as thLV relate to roads over which the produce of the mine is drawn by machinery or other mechanical appliance, are not sufficient for the safety of the men travelling thereon, he may require tho owner, agent, or manager of such mine to provide a separate travelling road." 2. Sub-section 22 of section 25 is hereby amended by adding after the words " the shaft " in the last line of the sub-section, the words " or slope." Chapter 10, Acts 1893. (12.) Mvery man hole and space for a place of refuge shall b(^ constantly kept clear, (4) and no jierson shall jtlace anything in a man hole or such space so as to ]»revent access tJierelo. (4) Sub-section 12, of section 25, to be amended by inserting after the words " keiK clear " nnd before the words " and no person " the words "and frequently whitewashed." See s. 10, c. 9, Acts of 1891. >:(;,- ■I ';'-»li L NOVA SCOTIA (13.) Tlic top of every shaft which for the time being is out of use, or used only as an air shaft, shall be securely fenced. (14.) The toji and all entrances between the top and bottom of every working or puinjjing sluift shall be properly fenced; but this shall not be taken to forbid the temporary removal of the fence for the purpose of repairs or other operations if proper precautions are used. (15.) "Where the natural strata are not safe, every working or pumping shaft shall be securely cased, lined or otherwise made se- cure. (16.) The roof and sides of every travelling road and working place shall be made secure, and a person shall not, unless appointed for the purpose of exploring or repairing travel or work in any such travelling road or working place which is not so made secure. (17.) In any mine inch is usually entered by means of ma- chinery, a competent person of such age as prescribed by this chap- ter shall be appointed for the purpose of working the machinery which is employed in lowering and raising persons therein, and shall attend for such purpose during the whole time that any person is below ground in the mine.(l) (1) To sub-section 17 of section 25 the clause following to be added: " No one shall be appointed for the purpose of this section who has not been examined as to his competency and holds a certificate of the same as provided in section 7 of the Act hereby amended." This secton shall not come into operation until January Isl, 1892. See section 11. chapter 9, Acts of 1891. (IS.) Every working shaft used for the })urpose of drawing min- erals or for the lowering or raising of persons shall, if exceeding fifty yards in depth, and not exempted in writing by the inspector, be provided with guides and some proper means of communicating distinct and definite signals from the bottom of the shaft and from every entrance for the time being in work between the surface and the bottom of the shaft to the surface, and from the surface to the bottom of the shaft and to every entrance for the time being in work between the surface and the bottom of the shaft. (19.) A suflTicient cover overhead shall be used when lowering or raising persons in every working shaft, except where it is worked by TUE MINES AND MINERAL ACT 501 a windlaiss, or where the person is employed about the pump or some work of repair in the shaft, or where a written exemption is given by tlie Inspector. (20.) A single-linlvcd chain sliall not bo used for Invering or raising i)ersons in any worlving shaft or idaee except for tlie short coui)ling cliain attaclied to the cage or load. (21.) There shall bo on the drum of every machine used for lowering or raising persons such ilanges or horns, and also if the drum be conical, sucli olher appliances, as may be sulUcient to prevent the rope from slipping. (22.) There shall be attached to every machine worked 1jy steam, water or mechanical ])ower, and used for lowering or raising persons, an adequate brake, and also a proper indicator (in addition to any mark on the rojie) which shows to the person who works the ma- chine the position of tlie cage or load in the shaft. (23.) KA'cry fly-wheel and all exposed and dangerous parts of the machinery used in or about the mine shall bo and be kept se- curely fenced. (24.) Every steam boiler shall be provided with a proper steam pauge and water gauge, to show respectively the })ressurc of steam and tlie height of water in the boiler, and with a pro])er safety valve. (25.) A ladder permanently used for the ascent or descent of ])crsons in the mine shall not be fixed in a vertical or overlfanging jjosition, and sliall be inclined at the most convenient angle whicli the space in which the ladder is fixed allows; and every such ladder shall have substantial platforms at intervals of not more tlmn twenty yards. (20.) If more than twelve persons are ordinarily employed in the mine below ground, sulVicient accommodation shall be provided aljove ground near the jjrincijial entrance of the mine, and not in the engine-house or boiler-house, for enabling the persons employed in the mine to conveniently dry and change their dresses. (27.) Where one portion of a shaft is used for the ascent and descent of persons l)y ladders or otherwise, and another portion is used for raising the material gotten in the mine, the first mentioned por- tion shall be either cased or otherwise securely fenced olf from tlie last mentioned portion, or no person shall l)e permitted to travel in the shaft when the shaft is working. m M pr (28.) ^'o person shall wilfully (.laiiuigOj or without proper au- thority remove or render useless, any I'ence, fencing, easing, lining, guide, means of signalling, signal, cover, chain, ihmge, liorn, Ijralie, indicator, ladder, platform, steam gauge, water gauge, safety valve or ether appliance or thing provided for any mine in compliance with (his chapter. (29.) Kvery person shall observe such directions with respect to working as may he given to him with a view to comply with this chapter or tlie special rules hereinafter provided for. (MO.) A competent person or ])ersons who shall he ai)pointed for the purpose shall, once at least in every twenty-four hours, examine tlie state of tlie external parts of the machinery and the state of the liead-gea.", working placos, levels, planes, ropes, chains and other works of tlie mine wliich are in actual use, and once at least in every week shall examine the state of the shafts hy which persons ascend or descend, and the guides or conductors therein. (31.) The persons employed in a mine nuiy from time to time appoint two of their numi)er to inspect the mine, at their own cosr, and the persons so ap])ointed shall he allowed, once at least in every mouth, accompanied, if the owner, agent or -Manager of the mine thiidvs iit, hy himself or one or more of the ollicers of the mine, to go to evei-y ])art of the mine, and to inspect the shafts, levels, planes, working ])laces, return air-ways, ventilating ap])aratus, old workings and machinery, and shall he alTorded hy the owner, agent and man- ager a'*n(l all persons in the mine every facility for the i)urpose of such ins])ection, and shall make a true report of the result of tnch inspi'ction, and such report shall be recorded in a Ijook to be kei)t at the mine for the purpose, and shall ))e signed by the per- sons who made the same. r]very person who contravenes or does not comply witli any o[ the general rules in this section shall l)e guilty of an offence against this chapter; and in the event of any contravention of or non-com- pliance witli any of the said general rules in the case of any mine hy any ])crson whomsoever being proved, the owner, agent and Jnanager shall each be guilty of an olfence against this chapter, un- less lie prove that he liad taken all reasonable means by publishing and to the best of his power en forcing the said rules as regulations for the working of the mine to prevent such contravention or non- comjjliance (1). (1) The foUowing sub-sections are added to section 25: — u THE MINES AXD MINERAL ACT 503 (1st) In any mine, whenever required by the inspector, the coal, during the operation of holding or undercutting, shall be supported by coal or wooden props, under the direction of a person appointed for that purpose. See chapter 20, Acts of 1890. (2nd) The majority of the workmen at any mine shall have the privi- lege of appointing a committee, chosen from among themselves, to ex- amine the seat of any accident resulting in death or injury to persons. (3rd) Where persons are employed underground properly construc- ted ambulances or stretchers with splints and bandages shall be kept at the colliery ready for immediate use in case of accident. See sections 12 and 13, chapter 9, Acts of 1891. Special Eules. 20. Tho owner, agent or nianagor of any mine may, if he tliink fit, transmit to the Inspector for approval ])y the Commissioner rules (referred to in this cha])ter as special rules) for tlie conduct and guidance of llie jiersons acting in the management of such mine or employed in or al)out tho same as, nnder the particular state and cir- cumstances of such mine, may appear hest calculated to prevent dangerous accidents, and to provide for the safety and projier dis- cipline of the ])ersons employed in or about the mine, and such special rules, when established, shall be signed by the Inspector who is Inspector at the time such rules are established, and shall I)e observed in and about every such mine in the same manner as if they were enacted in this chapter. If any person who is l)ound to observe the s])ecial rules estab- lished for any mine acts in contravention of or fails to comply with any of such special rwh?, he shall be guilty of an offence against this chapter, and also tho owner, agent and nuinager of such mine shall eacli be guilty of an offence against this ciiapter, unless he prove that he had taken all reas()nal)le means l)y publishing and to the l)est of his power enforcing the said rules as regulations for the working of the mine to ])f event such contravention or non-coinpliance. 27. Tiie proposed special rules, together with a printed notice specifying that any objection to such rules on tho grouiul of anything contained therein or omitted therefrom, nuiy be sent l)y any of the ])ersons emjdoyed in tlie mine to the Inspector at his address stated in such notice, shall, during not less than two weeks before such rules are transmitted to the Inspector, l)e posted up in like manner ns is jirovidcd in this chapter respecting the publication of special rules for the information of ])er,?ons employed in the mine, and a certificate that such rides and notice have been so posted up shall .^ i& tM it 1: ■■1 V ^1 , 1 It ■':).'■■ 1 C04 NOVA SCOTIA he sent to the Insiicctor with the rules signed by tlie person sending Uic s*nne. If the rules are not objected to by the Commissioner within forty days after their receipt by the Inspector, they shall be estab- li^^hod. If the owner, agent or manager make any false statement with respect to the posting up of the rules and notices, he shall be guilty of an offence against this chapter. 2S. If the Commissioner is of opinion that the proposed special rules so transmitted, or any of them, do not sulficiently provide for the prevention of dangerous accidents in the mine, or lor the safety of the jjcrsons employed in or about the mine, or are unreason- able, he may within forty days after the rulps are received by the Insi)ector, object to tlie rules, and propose to the owner, agent or manager in writing any modifications in the rules by way either of omission, alteration, substitution or addition. If the owner, agent or manager do not within twenty days after the modifications proposed by the Commissioner are received by him, object in writing to them, the proposed special rules with such modi- fications shall be establisbed. If the owner, agent or manager send his objection in writing within the said twenty days to the Commissioner the matter shall be referred to the Governor in Council; and the date of the receipt of puch objection by the Commissioner shall be deemed to be the date of the reference; and the rules shall be established as settled by an order of tbe Governor in Council. 20. After special rules are cstalilished under this chapter in any mine, the owner, agent or manager of such mine may from time to time propose in writing to the Inspector, for the approval of the Commissioner, any amendment of such rules or any new special rules, and tbe ])rovisions of this cliapter with respect to the original special I'uk'S shall apply to all such amendments and new rules in like man- ner, as nearly as may be, as they apply to the original rules. The Commissioner may from time to time propose in writing to the owner, agent or manager of a mine- in which there are no special rules, and to the owner, agent or manager of a mine in which there are special rules, any new special rules, or any amendment to such special rules, and the provision of this chapter with respect to a pro- posal of the Governor in Council for modifying the si)ecial rules transmitted by the owner, agent or manager of a mine shall apply to all such proposed special rules, new special rules, and amendments in like manner, as nearly as may be, as they apjdy to such proposal. TUE MINES AND MIXERAL ACT G05 JIO. For the piirpose of making known the special rules, if any, and the provisions of this cliapter, applicable to eacli class of mines as severally defined by the Commissioner, to all persons employed in and abor'i, each mine, an abstract of tlie cha])ter applicable to each mine, will be su])plied on the application of tlio owner, agent or manager of the mine by the Commissi(>ner, and wliicli, M'ith an en- tire copy of the special rules (if any) shall be pidilished as follows: (1.) Tlic owner, agent or manager of snch mine shall cause such abstract and rules (if any) with the name of the Inspector and the name of the owner, agent or manager ap))onded thereto, to be posted up in legible characters in some con- spicuous place at or near the mine Avhere they may be con- veniently read by the persons employed; and so often as the same become defaced, obliterated or destroyed, shall cause them to be renewed with all reasonable despatch. (2.) Tlie owner, agent or manager shall supply a printed copy of the abstract and tlic special rules (if any) gratis to each person employed in or about the mine who applies for sucli copy at the office at which the persons immediately eui- ]>loyed by such owner, agent or nuuiagcr are paid. (3.) Evei'y co]n' of the special rules shall be kept distinct from any rules M-hich depend only on the contract between the employer and the employed. If any owner, agent or manager fail to act in com])lianco with this section, he shall be guilty of an offence against this chapter; but the owner or manager shall not be deemed guilty if he prove that he has taken all reasonable means by enforcing the observance of this section, to prevent such non-compliance. 31. Every person who pulls down, injures or defaces any pro- jiosed special rides, notice, abstract or special rules, Avhen posted up in pursuance of the provisions of this chapter with respect to special rides, or any notice posted up in pursuance of the special rules, shall be guilty of an offence against this chapter. 3S- The Inspector shall, when required, certify a copy which is shown to his satisfaction to be a true copy, of any sjiecial rules which for the time being are established inuler this chapter in any mine; and a copy so certified shall be evidence (but not to the exclusion of other proof) of such special rules, and of the fact that they are ;a H\ — . ~.^tfL,- 50() SOVA SCCTIA duly esttiMiylicHl uiulor tliis eliapttM-, luul linvo l>oon iM-jtiiod l»y tlio Inspt'ctijp. ; PENALTIES. HJf. I'lvory person cmplo3-c(l in or nhniit a mine ntlior than an owner aj,'ont or manager, who is guilty of any act or omission wiiieh in the ease of an owner, agent or manager would l)e an olTenee against this clinpter, shall be deemed to he guilty of an otTencc against tliis chapter. •14. l-'very person who is guiliy of an ofTenco against this chap- ter shall be liable to a ])enalty not exceeding, if he is an owner, agent or manager, eighty dollars, and if he is any other person eight dol- lars for each offence; and if the Inspector has given written notice of any such olfence, to a further penalty not exceeding five dollars for every day after such notice that such olfence continues to he committed (1). (1) Sections 34 and 35 arc hereby repciiled, and the following substi- tuted:— (34) Every owner, agent, manager, underground manager, or over- man, who is guilty of an offence against this chapter, shall be liable to a penally not exceeding eighty dollars. If such offence consists in a violation of this chapter committed or continued after notice in writing given by the inspector, a further pen- alty of five dollars foi ach violation, or fi)r each day that such violation continues after such notice, shall be imposed. Every person other than an owner, agent, manager, underground manager, or overman, who is guilty of an olfence against this chapter, shall be liable to a penalty of eight dollars for each offence. Every person who may be guilty of a violation of any regulation made and published by the Board of Examint-rs appointed under the au- thority of section 8, chapter 7, of the Revised Statutes "Of Minis and Minerals," shall, for every day such violation shall continue, incur the penalties mentioned in the preceding part of this section. Every jjcrson who may be guilty of a violation of any regula- tion made and publisiied by the Board of Examiners a|)pointed un- der the authority of section 8, chap.ter 7, of the Kevised Statutes, "Of Mines and Minerals," shall, for every day such violation shall continue, incur the ]ieiialties mentioned in the preceding part of this section. JJ*5. Xo ])rosccution or other proceeding shall be instituted agaijist the owner, agent or manager of a mine to which this chapter TUE jy/iVL'-S' A.\D MISEHAL ACT 507 applies I'or iui oH'ciU'c iiiidor tlii< cluiplcr wliicli can he proseciiti'd be- fore n justice's court, except hy the liisi)ector, or witli the consent in Avi'itintr of the Comniissioner; iind in ciise of anv oU'enee ol' wiiieli tiio owner, agent, or manager is not guilty, il" he prove tiuit lie iuul taken all reasonahle nutans to i)revent the commission thereof, thi; Inspector shall not institute any prosecution against such owner, agent or immager, if satislied that he had taken such rea>onal)lo means as aforesaid (1). (1) (35) No pvosecutlon or other proceeding shall be Instituted against the owner, agent, manager, underground manager, or overman of a mine to which this chapter applies, for an offence against this chapter which can be prosecuted before one ur two juslic(>3 of the peace, or a stipendiary magistrate, except by the Inspector, or with the consent in writing of the Commissioner, or by some person appointed by the Com- missioner, or by some person employed having the written consent oi at least twelve persons so employed. In case a prosecution or other pro- ceeding is instituted against any owner, agent, manager, underground manager, or overman for an offence against this chapter, such owner, agent, manager, underground manager, or overman shall be entitled to be discharged from such prosecution or other proceeding if he prove to the satisfaction of the justices or Court having cognizance of the same that he had taken all reasonable means to prevent the comniisskm of such offence. See section 26, chapter 9, Acts of 1S91. JiO. All ])enalties under this cha|)ter, and all moneys and costs by this chapter directed to be recovered as ])enaltic?, may ))e sued for and recovered in the name of the inspector in the sanu- luann.'r and in the same courts of law in which ordinary private debts of a like amount are sued for and recovered. JIT. Any complaint or suit made or brought in ])ursuance of this chapter shall be made or brought within six nuinths from the time when tlie matter of suih complaint or suit came to the knowledge of the prosecutor. tlH. The owner, agent or manager may if he think lit be sworn nnd examined as an ordinary witness in the case where he is chargeil in respect of a contravention or non-compliance by another person. l\9. Where a penalty is ini])osed under this chapter for neglect- ing to send a notice of any explosion or accident or for any otfenco against this chapter which has occasioned loss of life or personal injury, the Commissioner may (if lie think tit) direct such penalty to be paid to or distril)uted among the persons injured and the rela- r:> 'm m 608 AOr.l ISfOTlA tivt's of nny jiorsons wliose tloalli iiuiy liavo bofu occasionod Iiy such explosion, accidoiit or ollVnoe, or among sonio oi llu'ni. I'roviik'd that siu'li pcrsoiiH did not in his opinion occasion or contribute to occasion the explosion or accident, and did not commit and uere not parties to conunilting the olTcncc. Save as al'otesaid, all penalties imposed in pMrsiianco of this chapter, shall he paid on receipt oi' the same into the i'rovincial Tnasury. MAXAC.KRS, OVERMEN, AND 1U)AKI) OI" EXAMINERS. 40. Every coal mine to which this chapter applies shall, after tlie lirst of January (181)0) (1) be under the control and supervision of a mannger, and the owner or agent of every sueh miiu! shall nomi- nate himself or some other person to be the manager of such mine, and shall send written notice to the Commissioner of the name and and address of such nuuiager ( cause there is for the time being no man- ager of a mine qualified as required by this section, the owner or agent of such mine may appoint any j orson holding a certificate as underground manager under this chapter to be manager for a period not exceeding two months, or such longer period as may elapse be- fore such person has an opportunity of obtaining, by examination, a certificate as manager under this chapter, and .shall send to the Com- missioner a written notice of the name and address of such man- ager, and of the reason of his a^jpointment. 44. A mine in which less than thirty persons are generally em- ployed underground, or of which the average daily output does not exceed twenty-five tons, shall be exempt from the provisions of this chapter so far as relates to the appointment of a manager, unless the Inspector, by notice in writing served on the owner or agent, requires the same to be under the control of a manager; but the operation.-, below ground shall be under the charge of persons holding certifi- cates as underground managers and overmen under this chapter (;3). (3) Section 44 is hereby repealed and the following substituted: — " A mine in which less than thirty persons are generally employed underground shall be exempt from the provisions of this chapter so far as relates to the appointment of a manager, unless the inspector by no- tice in writing served on the owner, agent, or manager, requires the same to be under the control of a manager; but the operations under- ground shall be under the charge of persons holding certificates as un- derground managers, or overmen, under this chapter, unless permission be given by tne commissioner that the operations underground may be under the charge of one such person." See section 16, chapter 9, Acts of 1891. 45. All certificates for managers, underground managers and overmen shall be issued by the Commissioner upon the report of the i II m 'is t ;! 1 i! j:: ;P M. 510 XOTA SCOTIA Board of Examiners appointed under the provisions of the law of Jlincs and ^Minerals. 4ft. The IJoard of Examiners shall draw up rules for the guid- ance of their ])roceedings, and sliall conduct examinations for grant- ing certificates ,of competency under this clia])ter, and nuiy from time to time make, alter and revoke rules for tiie comluct of such examinations and for determining the qualilications of apidicants; so, however, that in < ry such examination, regard shall be had to such knowledge as is lU'cessary for the practical working of coal mines in this Province, and for the determination of the (lualilications of ap- l)licants for certilicates of service as underground managers and overmen [aiul for the determination of the eligiliility of holders of certificates ol' competency or service granted by an I'lnglish Secretary of State or l)y any foreign government to receive equivalent certifi- cates under this (haijter, | (1) and shall from time to time report to the Cummissioner the names of tiie persons qualified to receive certili- cates, and shall do such other things as are necessary for tiie jiroper discharge of their duties under this Act, and the ({overnor in Council shall have jiower at any time to alter and revoke any rules nuule by the iJoard of Examiners. (1) Section 46 to be amended by striking out all the words after the words " and overmen " in uleventli line, and before the words " and ehall from time to time " in fifteenth line. See section 26, chapter 9, Acts of 1891. 4T. The fees and travelling expenses to be paid to the Board of Examiners, and the fees to be ])aid by apjdicants for certificate's, shall be determined by the Governor in Council. 4S. A register >.f the holders of certificates under this chapter shall be kept at the ollice of the Commissioner by such {)erson and in such numner as he may from time to time direct. 411. Ceitilicates of service as manager for the pur[)oses of this chapter may in the discretion of the Commissioner he issued l)y him to every jjcrson v.lio satisfies the Board of IvxamiiuM-s that ho has at any lime within five years before the ))assing of this cha])ter for a ])eriod not less than two years acted in the capacity of a man- ager of a coal mine (2). (2) Secticms 49 and 50 are hereby repealed and the following sub- stituted for section 50: — " P(>rsons holding certificates of competency granted by an English Secretary of State or other properly constituted authority in Great THE MI^ES AyD MIXIJRAL ACT 511 Britain may, upon passing tlie regular examination provicu'd for in tliis chapter, be granted a certificate as underground manager or overman, but previous to the first meeting of said Board of Examiners the said certificate, upon first being approved of by the Inspector of Mines, shall be valid." See section 27, chapter 9, Acts oT 1891. 50. rersons lioldiiig certificates of service or coinpotcncy granted l)y an English Secretary of State, or certificates of similar tenor granted by similar authority in any other country, may ai)i)ly for corresponding certificates under this chapter, and such certificates shall he granted by the Commissioner upon the recommendation of the Board of Kxaminers. 51. A certificate of service shall have the same effect only in the colliery for which it was granted I'or the purposes of this chapter as a certificate of competency granted under this cliapter (1). (1) Section 51. See section 5, chapter 6, Acts of 1885, repealing for- mer section and substituting this. 53. If at any time representation is made to the Commissioner by tlie Inspector or any other person that any numager, iinderground manager or overman holding a certificate under this chapter is by reason of incompetency, [drunkenness | (2) or gross negligence, unlit to discliarge his duty, or has 1)een convicted of an otfence against this chapter, the Commissioner may if he think fit enquire into the con- duct of such manager, underground manager or overman: and with respi'ct to sucli ciuiuiry the following provisions shall have elVeet: (2) The word " drunltenness " inserted. See section 6, chapter 6, Acts of 1885. {(i) Tile emiuiry shall lie public, and shall lie held at such as the Commissioner mav direct. ilace (h) The Commissioner shall, before the commencement, of the encpiiry, furnish the person into whose conduct the empiiry is to be made with a statement of the case ui»on which tlie emiuiry is insti- tuted. (c) The jierson into whose conduct the em|uiry is fd be held, may attend the encpiiry by himself, his attorney or agent, and may, if he think fit, be sworn and examined as an ordinary witness in flic case. (il) The Commissioner shall have power to cancel or suspend the ceitifuate of the i)ers()n into whose conduct the entpiiry has been mm 612 NOVA SCOT I A ' :l iimile if lie find that he is by reason of incomijctency or gross negli- gonce, or of his having been convicted of an olfenco against this ciiaptor, unfit to discharge liis duly. (e) The Commissioner may, if he think fit, require the person into wliose conduct tlie enquiry is to be made, to deliver up his certi- ficate, and if such i)erson fail without sufficient cause to the satisfac- tion of the Commissioner to comply with such reciuisition, he shall 1)0 guilty of an oll'ence against this chapter. The Connnissioner shall liold the certificate so delivered up until the conclusion of the en- quiry, and sliall then either restore, cancel or suspend the same ac- cording to his judgment in the case. (/) Tho Coir.iuissioner may also by summons under his hand rc(iuire the attendance of all such persons as he thinks fit to call bexore him and examine for the purpose of the enquiry, and every person so summoned shall be allowed such expenses as would be allowed to a witness attending on a subpoena before a Court of llecord. (ij) Tlie Commissioner may make such order as he thinks fit re- specting the costs and expenses of the enquiry, and such order shall on the a})plication of any party entitled to the benefit of the same, be enforced by any Court of summary jurisdiction as if such costs and expenses were a penalty imposed by such Court. (h) When a certificate is cancelled or suspended in pursuance of this chapter, the Comnussioner shall cause such cancellation or sus- pension to bo recorded in the register of holders of certificates. •'511. The Commissioner may at any time, if it is shown to him to be just so to do, renew or restore on such terms as he thinks fit any certificate which has been cancelled or suspended in pursuance of this chapter. 54. Whenever any person proves to the satisfaction of the Com- missioner that ho has, without fault on his part, lost or been deprived of any certificate jiroviously granted to him under tliis cha])ter, the Commissioner shall cause a copy of the certificate to which the ap- Itlicant apjionrs bv the register to l)e entitled, to be made out and certified by the ])erson wlio kecjis the register and delivered to the ap- plicant; and every cojiy whicli purports to be so made and certified as aforesaid shall have all the ofTect of the original certificate (1). (1) An Act to amend chapter 9 of the Acts of 1891, entitled an Act to amend chapter 8, Revised Statutes, "Of the Regulation of Mines." Chapter 4, 1892. THE MIXE.' A^D MIKEKAL ACT 513 1. The Commissioner may, upon the recommendation of the In- spector of Mines, within twelve months after the passing of this Act, grant a certificate as manager to nn.f person not at present holding such certificate under provisions of the Act hereby amended, who may at any time prior to the 30th day of April, A. P, 1892, have acted in the capacity of manager of a coal mine in thia Pro. ince for the space of two years, or have had such practical experience in the working and direction of coal mines as may be considered equivalent .o such employment as manager. 2. The Governor in Council may at any time direct that the Board of Examiners appointed for granting certificates to underground managers and overmen, shall also hold examinations for granting certificates of competency as managers, and make such rules and regulations as may be necessary for carrying out the provisions cf the Act in this respect. 3. All Acts and parts of Acts at variance with this Act are hereby repealed. r-m 1; Hi MISCELLANEOUS. 55. In tlie working of coal and other minerals in submarine areas: (1) No submarine seam of coal or stratified deposit of other mineral shall be wrought under a less cover than one hundred and eighty feet of solid measures: Provided that the owner or lessee of any such area may drive passage- ways to win the mineral to bo wrought under a less cover than one hundred and eighty feet, but not under less than one hundred feet of solid measures. (2) A barrier of the mineral wrought of not less than fifty yards, twenty-five yards on both sides of the boundary lines of every lease, shall l)e left unwrought between the workings of every submarine seam; (3) Where there is less than five hundred feet of solid measures overlying the seam or stratified deposit wrought, the work- ings of every such submarine area shall be laid off in districts of an area not greater than half of one st^uaro mile, and the barrier enclosing each separate district shall not l)e less than thirty yards thick, and shall not bo luerced by more than three passage-ways having a sectional area not greater than six feet by six feet. (4) No district shall have its length when parallel t(i the general trend of the adjoining shore greater than one mile. 33— M 514 NOVA SCOTIA (5) A proposed system of working the mineral in each sul)- marine area shall before work is commenced be submitted to and approved of by the Inspector; and no change shall be made in sucli approved system witliout the written sanc- tion of the Inspector. The opening of a new level or lift in a mine already working in a submarine area shall l)e deemed the commencement of a new winning in the meaning of this clause. (2) An Act to amend chapter 8, Revised Statutes, " Of the Regulation of Mines," as amended by section 1 of chapter 4 of the Acts of 1892. Chapter 14, Acts of 1895. 1. Th(> Commissioner may, upon the recomm«>ndation of the Inspec- tor of Mines, within six months after the passing of this Act, grant a certificate as mnnnger to any person not at present holding such certifi- cate under the provisions of the Act hereby amended, wTio may at any time prior to the 30th day of April, A. D. 1892, have acted in the capacity of manager of a coal mine in this Province for the space of two years, or have had such practical experience in the working and direction of coal mines as may be considered equfvalent to such employment as manager. 2. All Acts or parts of Acts that an; inconsistent with this Act are hereby repealed. Tlie owner, agent or manager of every mine to which this sec- tion applies, who transgresses or fails to comply with any jirovision of this section, shall each be liable to a penalty, not exceeding one thousand dollars, and if the offence complained of is continued or repealed after a written notice has been given by the Insjiector to such owner, agent or manager of any such od'ence having been com- mitted, the Supreme Court or a Judge tiiereof, whether any other proceedings have or have not been taken, may upon application by the Attorney-Cieneral, jirohibit ))y injunction the working of such mine. ♦lO. All coal, iron ore, or other mineral extracted from mines leased by the CroM-n, on which royalty is payable, shall bo weighed at the mine. The overrun allowed for rough weighing shall not exceed the true weight by one and a half per cent. A competent person shall be appointed weigher by the owner or agent, who shall enter in a book s|)ecially kei)t for the purpose the weight of every weighing, and shall make a true report to the office at the mine of the weighings so made by him; provided always that it shall not be necessary to weigh every car load or tub of coals; THE MINES AND MINERAL ACT 515 but the Inspector may agree witli the manager, owner or agent of any mine as to tlie woiglit by tbe gauge or average M'eight of siicli car loads or tubs; itrovidod, liowever, that in no case sliall a loss quantity than every tenth car load or tul) be so weighed as afoi'csaid. Every person who fails to comply with the provisions of this section shall be guilty of an oil'enee against this chapter. 57. All notices under this chapter, shall be in writing or print, or partly in writing or partly in print; and all notices and documents required by this cha])ter to bo served or sent by or to the Commis- sioner or Inspector, may be either delivered personally or served or sent by post by a prepaid registered letter; and if served or sent by post, shall be deemed to have boon served and received rosi)ectivoly at the time when the letter containing the same would bo delivered in the ordinary course of post; and in proving sucli service or send- ing it shall be suilicient to jirove that the letter containing the notice was ])roperly addressed and put into the post. 5S. The special rules whicli are in force in any mine under the sanction of an Inspector appointed under the Act entitled, " An Act to consolidate the Statutes relating to Mines and Minerals," shall continue to be the special rules in such mine until special rules are established for such mine under this chajitor, and while they so con- tinue, shall be of the same force as if they were established under this chapter (1). (1) Sections 1. 2, r.. 6, 7, 8, 9, 10, U. 13, 14, 15, 16, 17, 22. 23, 24, 25, 2r> and 27 of chapter 9 of Acts of 1891, apply only to coal mines. See section 29, chapter 9, Acts of 1891. For Forms referred to in this Act see Appendix IT. CHAPTEE XYIII. \ i M >l imiTisir coLriMHiA. I. An Act relating to Gold and other minerals excepting Coal, cited as tho" Mineral Act." II. An Act relating to Placer Mines, cited as the " Placer LClnlnflTAct.'' III. An Act for securing the safety and good health of workmen, engaged in or about the Metalliferous Mines in the Province of British Columbia, cited as the "Inspection Of Metalliferous Mlnes Aot." IV. An Act to encourage Coal Mining, cited as the " Coal Mines Act." V. An Act lo make regulations with respect to Coal Mines, cited as the " Goal Mines Hegulation Act." EEVISKD STATUTES OF lilUTJSII COLUMJ5 A (1897). All Act relating to (Jold and other minerals excepting Coal (a^ amended hy " The Mineral Act Amendment Act, 1898 ''). TTER MAJESTY, l)y and with the advice and consent of the Legis- lative Assemhly of the Province of British Columbia, enacts as follows: — Short Title. 1. Tliis Act may ho cited as the " ]\rineral Act," 189fi, c. 34, p. 1. Interpretation. S. In the construction of this Act the following cxjiressions shall have the following meanings respectively, unless inconsistent with the context: — 54, fill til MINERAL ACT 517 and in which any vein or loilo, or ; I." mined for gold or other minerals, u I £ coal: .ws, 1871. No. 90, s. 2 ; but identical with "Mine"! shall !,K'an ; rock in ph e, !-i):i' l-irtcioiis or ,i 'Derived from Re i::^('. 1884, 47 ■"'"t. c. 10. s. 1. "!i< " var'2 shall mean all valuable deposits of gold, silver, platinum, iridium, or any of the platinum group of metals, mercury, lead, co{)per, iron, tin, zinc, nickel, aluminum, an- timony, arsenic, barium, bismuth, boron, bromine, cadmium, chromium, col)alt, iodine, magnesium, manganese, molyb- denum, i)hosphorous, phunbago, potassium, sodium, stron- tiuui, sulphur (or any combination of the aforementioned elements with themselves or with any other elements), asbestos, emery, mica, and mineral piguuMits: 'Derived from 1884, 47 Vict. c. 10, s. 61; but in. an abbreviated form, it is identical with 1894, 57 Vict. c. 32, s. 2, s.-s. (2), part Limestone, marble, clay, or any building stone •' shall not lie con- sidered as minerals within the meaning of this Act : "Derived from 1894, 57 Vict. c. 32, s. 2, s.-s. (2), part. The words " when mined for building purposes " wore struck out by the " Mineral Act Amendment Act, 1898," s. 2. " IJock in place,"* shall be deemed to mean and include mineral, not necessarily in a vein or lode, that is, when discovered in the same place or i)osition in which it was originally formed or deposited, as distinguished from loose fragmen- tary or broken rock or lloat which, by decomi)osition or erosion of the rocks, is found in wash, loose earth, gravel or sand: * " Rock in place " reads as follows in 1894, 57 V. c. 32, s. 2, s.-s. (2): "'Rock in place" shall mean all rock in place bearing valuable deposits of mineral within the meaning of this Act," and appears in its present form for the first time in 1897. " Rock in place " is the /;( .situ of the geologist. A vein or lode is necessarily " in place." The condition of being " in place " is one of its essential attributes. Mineral substances in veins, or lodes, are not always found in quartz. Sometimes the vein material is composed of the same character of rock as the inclosing walls. The nature of the occurrence of mineral being in the form of impregnations, penetrating the country rock, or the mineral may be but a replacement of the original rocks. Petroleum is said to be " In place " when it occupies the undisturbed position in the earth between the inclosing rocks, where it was placed by natural processes; and so with subterranean salt water: Willlamsofl v. Jones, 39 W. Va. 231, 257. " The words ' rock in place ' are satisfied by rock in situ, bearing valuable deposits of mineral, although not lying between defined walls, or in a vein or ledge:" N. & F. S. Ry. Co. v. Jerry, (1897) 5 B. C. R. 396. i!i'... I i'\- 111* 518 BRITISH COLUMBIA "' Valiiiihle do[i()sit.s of iiiiiiornl," ' shall ho dociiu'd to mean and incliKlo mineral *' in place " in appreciahio quantity, having n present or ]»rospeetive value suHicient to justify explora- tion: ■ " Valuable deposits of mineral," original. ''Vein,'' or ''lode.*'"' Whenever either of these terms is used in this Act, "rock in place" shall he deemed to he included: " Derived from and identical with 1894, 57 Vict. c. 32, s. 2, s.-s. (2), part. " ^rinoral claim," ^ shall mean the personal right of property or interest in any mine: ' Derived from and Identical with 1871, Revised Laws, No. 90, s. 2, omitting tht' word " mineral." "'^lining ])roperty," "* shall include every mineral claim, ditch. mill-site, or water right used for mining purposes, and all other things helonging to a mine or nscd in tlie working thereof: 'Derived from and substantially identical with 1871, Revised Laws, No. 90. s. 2. "Legal ])ost,'' " shall mean a stake standing not less than four feet above the ground, and sipuired or faced on four sides for at least one foot from the top, and each side so scjuared or faced shall measure at least four inches on its face so far as sipiared or faced, and any stump or tree cut off and sijuared ' or faced to the above height and size: Provided when the survey is made the centre of the tree or stumj) where it en- ters the ground shall be taken as the point to or from which measurement shall be made: "Identical with— omitting proviso— 1894, 57 V. c. 32, s. 2. The pri)- viso is original. " Location line," "^ shall be the straight line between posts num- bers one and two: '" Original. "Mill-site," ' .shall mean a plot of ground located, as defined l)y this Act, for the ]»ur))oso of erecting thereon any macliinery or other works for transporting, crushing, reducing, or sampling ores, or for the transmission of power for working mines: 'Derived from and identical with 1894, 57 Vict. c. 32, s. 2, part. 1 MINERAL ACT 51!) " Frt'o niiuer," - shall mean a person or joint stoek coinpauy, or l'orei<,ai coinj)any, named in and lawlidly possessed ol" a valid existing Tree miner's eertificate, and no otlier: ' Derived from 1871, Revised Laws, No. 90, s. 2, part. Consolldntcd In 1888, Rev. Stat. c. 82, s. 2, part ; omitting In each of thete " or Joint stock C(»mpany, or foreign company, named In"; but is identical with 1894, 57 V. c. 32, s. 2, part. ''IJecord," "register,"' and " registration/' •"' .shall have the seme meaning, and shall mean an entry in some olheial book kept for that ])urpose: ' Derived from 1871, Rev. Laws, No. 90, s. 2. part, and almost Identical. "Full interest,"* shall mean any mineral elaim of the fidl size, or one of several shares into which a mineral claim shall he eipially divided: * Almost identical with 1882, 45 Vict. c. 8, s. 1, part. [See definition of word " Interest," 1872, 35 V. c. 14, s. 1, part.] "Cause/''' shall include any suit or action: => Derived from 1882, 45 Vict. c. 8, s. 1, part. " Judguient,'' " shall include "order" or "decree'': "Derived from 1882, 45 V. c. 8, s. 1. " Keal estate," ' shall mean any mineral land in fee simple under this or any Act relating to gold mines, or to minerals other than coal: ' " Real estate," derived from and identical with 1882, 45 V. c. 8, 8. 1, part. "Joint stock company,"*' shall mean any company I'or mining l)nrposes: * Derived from 1882, 45 V. c. 8. The sub-sections are original. (a) Incorporated nnder the "Companies' Act, 180T," or any Act repealed therehy; or (h) Registered as a foreign com|)any under any .Vet repealed l)y the " Companies' Act, 1897 "; or (c) Licensed or registered as an extra-Provincial com- pany under the " Companies' Act, ISOT "; or ((]) Incorporated by any special Act. ' ■ : 1897, c. 28, s. 2. f- 520 BRITISH COLUMlilA 1 Part I. Free Miners and Ihcir rrivileges. ii. "Every i)t'rson over, but Jiot under, eighteen years of age, iuul every joint stoek eonipany, ssliall he entitled to all tlic rights and privileges oi' a I'ree miner, and sliall he considered a free miner, upon taking out a free miner's cortilieate. A minor who shall become u free miner sliall, as regards his mining property and liabilities eonlracted iu connection therewith, be treated as of full age. A free miner's cortiiicate i.t certlflcate for one or three years, at the rate of )5 for one year, or $15 for thruo ; and also provides ftr 3 days' grace to renew certificate. Continued In 1884, 47 Vict. c. 10. s. 20, and consolidated In 1888, 51 V. c. 82, s. Sf), and Is re-enuctcd in its pie- sent form first in 1891, c. 25. s. 4. Si. -A Tree miner's cerliiieate sliall he in the t'oiiowinji' form: — ''Derived from and almost identical wllh 1871, Rev. Laws, No. 9, 9. 19. Continued In 1884, 47 V. c. 10, s. 16 ; 1891, c. 25, s. 5 ; l'^88, Rev. Stat., 51 Vlct. c. 82, o. 32; but appears for first time in Its present shape in 189G. Section 5 of chapter 82, Consol. Acts, 1888, repealed by section 21 of chapter 28. 1897; section 135, "Mlnenil Act." r.KITl.Sll (,'or.lMltlA. '4 ; f Free Milter's cerlificale. NOT TRANSl'ERAULE. Date, No. Valid i'ur year only. This is to ccrlii'y that of has paid mo this day the stini oi' , and is entitled to all the rights and privileges of a free nuner for year from tho day of , 18 . (Signature of Gold Conunissioner or Mining llccorder, as the i.'asc may be.) 18i)G, c. 34, s. 5. 6. 3 If any person or Joint stock company shall apply for a I'rec miner's certiiicatc at the Alining Kecorder's otlieo during his absence, and shall leave the fee required by this Act with the otlieer or other person in charge of the said ollice, he or it shall be entitled to have such certificate from the date of such apjdication; and any free miner shall at any time be entitled to obtain a free miner's certificate, com- mencing to run at the exjiiration of his then existing free miner's certificate, provided that when he applies for such certificate he shall CS2 Uh'ITIiSll rOLLMUlA l)n)dii(o to tlie .Miniii-,' J{ofor(lc'r, or in lasi- of his iil)S(>iu'o shall louvo with ihc olliccr or otiior person in cinir^r,. ,,i' (ho .Mining Koconlor's ollicc, siicli I'xisling ciTtificiitt'. ISiXI, f. iil, w. fi. ' Derived from, but In abbreviated form. 1888. Consol. Acts. c. 82, B. 41, S.-8. 2. Section 6 of chapter 82. 1897, derived from 1891, c. 25, s. 6. 7. 'If liny Tree ininor's ccrtilicnto lie ncfidontally destroyed or I'lst, the owner thereof niiiy, on piiyinent of tl fees set out in the iSeliediile to this Aet, have a true eopy of it, signed hy the Mining I'ecorder, or other [lerstin hy wiiom or out of whose olliee the original was issued. Mvery sueh copy shall ho marked "suhstituted eerti- fuate," and unless some material irregularity he shown in respect thereof, every original or suhstiTuted free miner's eertifieato shall he evidence of all matters tiierein contained. 1H!)(), c. '.]\, s. 7. * Derived from and nearly identical willi 1871, Rev. Laws, No. 90, 8. 21 : 1891. c. 25, 8. 7. H. ■• Kvery person and joint stock company engaged in mining for niineriils (other than coal) shall take out a free miner's certiticate, and every person or .joint stock company who mines or works as a miner in any niiiu'ral claim, mine held as real estate, or tunnel, or oil any lliiine, diiiin, or ditch, without having taken out and oh- tai' 1 such certificate, shall, on conviction thereof in a summary way, forfeit and pay a penalty not exceeding twenty-live dollars, besides costs: Trovided, always, that nothing herein contained shall jn'ejudice tiie right to collect wages or payment for work done hy any jierson who, through not heing a free miner, has rendered him- H'lf lialile to the above penalty. ISiKI, c. ;M, s. 8. •Derived from, but in abbreviated form, 1884. 47 Vict. c. 10. s. 25; 1888. Consol. Acts, c. 82, a. 40 ; 1891, c. 25, s. 8. 9. " Suhject to the ]»roviso hereinafter stated, no person or joint stock company shall he recognized as having any right or interest in or to any mineral claim, or any minerals therein, or in or to any Mater light, mining ditch, drain, tunnel, or flume, unless he or it shall have a free miner's certificate unexpired. And on the expiration of a free miner's certificate the owner thereof shall absolutely forfeit all his rights and interests in or to any mineral claim, and all and any minerals thirein, and in or to any and every water right, mining ditch, drain, tunnel, or flume, which may be held or cliimed by such owner of such expired free miner's certificate, unless such owner phall, on or before the day following the expiration of such certificate, obtain a new free miner's certificate: Provided, nevertheless, should MISKRAL ACT :yi:i any cn-ownor fail to kt'cp up liin fivo ininor's cert i Ilea to, siicli I'niliiru bliail not cause a forfeiture or act as an altaiidoiuuent of tlie I'iaini, lull the iiileiesl of the eo-owiier wiio shall fail lo keep up his free miner's certilieate shall, i/'w fdclo, \w mid Ix'couie vested in his co- owners in'o rtiht, accord iuj^r to their former interests : l*rovii!ed, nevertheless, that a shareholder in a joint stock company need not l»e a free miner, and, though iu)t a free miner, shall he entitled to l)uy, sell, hold, or , s. 24 ; 1888, Ctmsol. Acts, c. 82, s. 39 ; and tliat portion relating to pro- viding a shareholder need not liave such license is derived from 1884, 47 V. c. 10, s. 114 ; 1888, Consol. Acts, c. 82, s. 130 ; 1891, c. 25, s. 9 ; re- pealed and re-enacted in 1895, c. 39, s. 2. lO. ' Kvery owner of a mine or mineral claim, and every con- tractor for the ])erformaim' of any work upon a mine or mineral claim, shall pay the annual fee for a free miner's license for any iiers(Ui in their em|iloymoiit aiul liable for the fee, and may deduct the yinounl, so \n\u\ on account of such ])erson from the amount of salary or wages due or to become due to him from such employer upon production and delivery of the reeei])t for such tax to such person. Every such owner or contractor shall furnish to the Mining Re- corder or Collector, wlien rec(uested by h'ui so to do, from time to time, a list of all persons in his employ, or iiulirectly emidoyed by him, liable to pay the said lici^nse fee; but no such stati'iuent shall 'lit ! p^ ^■1 bU BRITISn COLUMBIA bind the Eoconlor or C'olloctor or oxciise hiiu I'roiu nuikiii^ due en- quiry to ascei'taiu its correctness. 18!)0, c. 3-1, s. 10. •Derived from 1895. c. 39. s. 9. 11. *lf any person fails to pay the said license fee for liis eiu- ployees, or to deliver to the Recorder or Collector the list mentioned in the preceding section when reipiircd to do so, or knowingly states i-nything falsely in such list, si ch i)erson shall be liable to a penalty not exceeding one hundred dollars, to be recovered, together witii the amount of the unpaid license fees, upon sunmmry conviction be- fore one .lust ice of the Ceace. l.SDf), c. 3+, s. 11. "Derived from 1895, c. 39. s. 10. 12. " Kvery free miner shall, during the continuance of his cer- tificate, but not longer, have the right to enter, locate, ])ros))ect, and mine upon any waste lands of the frown for all minerals other than coal, and upon all lands the right whereon to so enter upon, pro- spect and mine all minerals other than coal shall have been, or here- after shall be, reserved to the ("rown and its licensees, and also to enter, lotate, prospect, and mine for gold and silver upon any lands the right whereon to so enter ami mine such gold and silver shall have I een, or shall be, reserved to tbe Crown and its licensees. Excepting out of ail tlio above description of lands any land ()ccu]»ied by any building, and any land falling within the curtilage of any dwelling house, ami any orchard, and any land for the time being actually under culi atiou, and any land lawfully occupied for mining pur- poses otliei I ban placer nuiiing. and also Indian reservations an(\ military or i val reservations: I'rovided that wIhuv anv hvdraulic mining works, established in accordance with the " I'lacer Mining Act,'' have been in operation, the land wliich may have l»een r.ncoverul 1iy tlie o])erat!on of such works shall not be locateil or mined upon by any free miner other than the ])erson or persons carrying on such hydraulic works for a space of six months next after the saiiu' shall have been so xincovered: Provided that in the event <'f such entry being made upon lands ali'cady law fully occupied for other than mining purposes, an.! not being a portion of lands granted to aiul held by or for a railwav i(Hnpaiiv under anv railwav subsidy Act licretofore or to be hd'eafter ])asseil, such \'vvv miner shall give adeciuate security to the satisfaction of the (Jold Comiuissi(Hier or Alining Kecorder for any loss or dauiages whiih nuiy !»e causccl by fciuch entry if rctpiested by the owner or owners of such land, and hhouM he lefuse to give siu'h secin'ity when so reipiested his right to such claim or mine shall cease and deteriuine: Provided that after *.' ^ Ll MIX ERA L ACT such entry lio sliall ninko full compensation"* to the occupant or owner of such lands for any loss or damages which may he caused hy reason of such entry; such coin])ensati()n, in case of dispute, to he deter- mined hy the Court havin/' 7M No. 1 Post. 2. No. 2 Post. 2.W " 1250' o Discovery Post. 2,W 1250' No. 1 Post. No. 1 Post. It shall not be lawful to move No. 1 post, but No. 2 post may be moved by the Provincial Land Surveyor when the distance between Nos. 1 and 2 posts exceeds 1,500 feet in order to place No. 2 post J, 500 feet from No. 1 post on tlie line of location. When the dis- tance between jiosts Nos. 1 and 2 is less than 1,500 feet, the Pro- vincial Land Surveyor has no authority to extend the claim beyond No. 2. But in case either No. 1 or No. 2 post be on the boundary line of a previously located claim, which boundary line is not at right angles to said location line, the Provincial Land Surveyor shall in- clude the fraction so created within the claim being surveyed : Pro- vided always, that the whole claim does not exceed an area of 51.65 acres. The "location line" of a mineral claiui, located as a full sized mineral claiui shall govern the direction of one side ol' the claim, npon wliich the survey shall be extended accordiug to tliis Act. ((/) The ]u)lder of a mineral claim shall be entitled to all mine- rals which may lie within his claim, but he shall not i)0 entitled to mine outside the boundary lines of his claim continued vertically downwards: (h) This Act shall not ])rejudice the rights of claim-owners nor daim-liolders whose claims have been located under former Acts. ■ ■ • Previous to the Minoral Act (1891) Amendment Act, 1892, 55 Vict. c 32, the apex rule, substantially culled from U. S. legislation, was in AT-SJ MIXERAL ACT 5-20 1)0 111 force in British Columbia, but in 1892 sub-section (a) above was Introduced confirming the rights of the holder of a mineral claim to the minerals within the boundary lines of his claim continued vertically downwards, as in all other parts of Canada. But by sub-section 6 the rights of claim-owners who located their claims under former Acts were preserved. The ivason for the change was the same as that for a similar change in the German mining laws, namely, the interminable litigation Inherent in the system of extra lateral rights. The vast learning of the law of the apex developed in the American literature on the subject is, therefore, only applicabli'^ to mineral claims located under Acts prior to that of 1892, which became law on the 23rd April, 1892. Reference may be made to the discussions on the subject by Dr. Rossiter W. Raymond, the author of the Law of the Apex, and in the most recent American works, Lindley on Mines (1897), and the law of Mines and Mining in the United States (1897) by Barringer and Adams. It is sufflcient to point out that among the innumerable American cases on the subject numerous discussions may be found in sup- port of any possible view. Sections 31 & 32 of chapter 25 of 54 Vict. (1891) provided: " Section 31. 'i'he lawful holder of a mineral claim shall have the exclusive right and possession of all the surface included within the lines of his location, and of all the veins or lodes throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins or lodes may so far depart from a perpendicular in their course downwards as to extend outside tho vertical side lines of such surface location; but his right of possi-ssion to such out- side parts of such veins or lodes shall be confined to such portions thereof as lie between the vertical planes drawn downwards as above described through the end lines of his location, so continuetl in their own direction that such planes will intersect such exterior parts of such veins or lodes, and nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim, to enter upon the surface of a claim owned or pos- sessed by another; provided always that a prior location on the dip of a vein or lode shall have priority over a subsequent location on the same vein or lode, although such subsequent location may be upon the apex of the vein or lode. And provided always that in cases where the land in which such claim is situated is lawfully owned or occupied other thtin for mining purposes, the above clause shall be read subject to the rights or interests of such owner or occupier. And it is hereby expressly declared that a location laid crosswise of a vein or lode, so that its centre line crosses the same instead of fol- lowing the course thereof, will secure only so much of the vein or lode as it actually crosses at the surface, and the side lines of the location will become the end lines thereof for the purpose of defining the rights of the owners. A location shall be deemed to have been laid crosswise when the smallest angle made by the centre line falling on *he general course of the vein or lode is greater than forty-five degrees." " Section 32. Where two or more veins or lodes intersect or cross 31— M I iv ' I ; 580 BRITISH COLUMBIA ii I each other on their downward dip priority of title shall govern, and the prior location shall be entitled to all ore or mineral contained within the space of intersection; provided, however, that the subsequent loca- tion shall have the right of way through the said space of intersection for the purpose of the convenient working of the said subsequent loca- tion; and provided, also, that where two or more veins or lodes unite on their downward dip, the oldest or prior location shall take the vein or lode below the point of union, including all the space of intersection." (c) No inineral claim of the full size shall be recorded without the ap])lication beinj? accouipanied l)y an allidavit or solemn declaration in tlie Form S, made by the a[)itlicaut or some person on his behalf coynizant of the facts: That the legal notices and posts have been put up; that mineral has been found in place on the claim [)roposed to be recorded; that the grouiul applied for is unoccupied by any other per- son as a mineral claim, and is not occu[)ied by any l)uilding, or any land falling Avithin the curtilage of any dwelling- house, or any orchard, or any land under cultivation, or any Indian l{eservation. Jn the said declaration shall be set out the name of the ajjplicant, the nundjer and date of his free miner's certificate, and the name of the place where the said certificate Avas issued, and the date of the location of the claim. The words written on the \o. 1 and Xo. 2 posts shall be set out in full, and as accurate a description as possible of the position of the claim given, having special reference to any prior locations it may join: Xo mineral claim which at the date of its record is known by tiie locator to be less than a full sized mineral claim, shall be recorded Avithout the word 'fraction' beiug added to the name of the claim, and the a()plicati()n being accompanied l)y an affidavit or solemn declaration in tlie Form T, made l»y the a]»plicant or some ])erson on liis behalf cognizant of the fads: That the legal i)osts and notices have been ])ut up; that mineral has been found in i)laee on the fractional claim proposed to be recorded; that the ground a])])]ied for is unoccupied l)y any other ])erson as a mineral claim, and is not occupied by any building, or any land falling within the curtilage of any dwelling- house, or any orchard, or any land umler cultivation, or any Indian Reservation. In the said declaration shall be set out the name of ihe applicant, the nund)er and date of his free miner's certillcate, and the name of the j)lacc where the said certificate was issued, and the date of .the location of the claim. The words written on the Xo. 1 and Xo. 2 MIX ERA i. ACT 531 posts shall be sot out in full, and as accurate a description as i)()ssiblu of the i)Osition of tlio claim given. A descrip- tion of the land bounding the fractional claim on all sides shall state whether it is vacant Crown land or land oe- cui)ied by mineral claims, with the names of the claims. A sketch ])lan shall be drawn by the ai)plicant on the baclv of declaration, showing as near as may ])e the jjosition of the adjoining mineral claims, and the shape and size, expressed in feet, of the fraction desired to be recorded: ((/) A fractional mineral claim shall be marked l)y two legal posts placed as near as possilile on the line of the previously lo- cated mineral claims, and shall be numbered 1 and 2, and the distance between the posts 1 and 2 shall not exceed fifteen hundred feet, the line between post 1 and 2 to be known as the location line, and upon posts Nos. 1 and 2 shall be written the name given to the mineral claim, the name of the locator and the date of the location. Upon Xo. 1 post there shall be written in addition to the fore- going, initial post, the approximate compass-bearing of Xo. 2 post, and as full a description as possible of the land bounding the fractional claim: (e) The ProviTicial Land Surveyor, when surveying a fractional mineral claim, whether located before or after the passage of this Act, may survey such claim so that it shall contain, as nearly as possible, all the unoccupied ground lying be- tween the previously located mineral claims, as described in the ailidavit and by the sketch jilan made by the locator when the claim was recordetl, jirovided that no side of a fractional mineral claim shall exceed fifteen hundred feet in length : (/) Provided that when a fractional mineral claim has been located between previously located and unsurveyed mineral claims, if when any such ])reviouply located mineral claims are surveyed, any of the posts of the fractional mineral claim are found to be on the previously located mineral claims, the location of such fractional mineral chiim shall not be invalid by reason of the location posts of tiie frac- tional mineral claim being on such ]n'eviously located mine- ral claims, and the owner of such fractional mineral claim may, by obtaining the permission of the ({old Commissioner of the district, move tlie i)osts of the fractional mineral claim and place them on the surveyed line of the adjoining previously located mineral claims: ( • u 533 BRITISH COLUMlilA The sub-section (a) of section 15 and sub-sections ((/), (e), and (f) of section IG of this Act, shall apply to all fractional mineral claims located, and to the surveys of fractional mineral claims made after the passing of this Act, and shall also apply to the completed surveys of fractional mineral claims the Held notes of which have not yet been accei)ted 1)y the Department of Lands and Works, not- v.ithstandinuf anything hereinliefore enacted. (g) Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provi- sions of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his ])art a hoiia fide attempt to com])ly with the provisions of this Act, and that the non- observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity.''^ '= This proviso modifies the general rule, that when a statute confers a right the regulations, forms, and conditions which it prescribes for its acquisition are imperative In the sense that non-observance of any of them is fatal. The non-observance to be fatal must, however, be substantial, for the law does not regard trifles dv minimis mm curat h\r. 'I'he Court looks through the form at the substance and real nature of an Act: Jeffries v. Alexander, (1860) 8 H. L. C. 594, per Byles, J., p. 629. In deciding what is of the essence of the action, and what is im- material, the spirit and scope of the Act must be regarded, for he who considers the letter merely of a statute cannot comprehend its meaning; <]ui Imcrct litcro haoct in corticv: Cullana v. George (19th App., 1898) 34 C. L. J. 363, was an action for the possesslcm of three claims located by the plaintiffs in August, 1896. Instead of placing a legal post, which is de- fined to be a " stake," the plaintiffs built monuments of atone, and fastened the necessary noticeb on them. Timber might have been pro- cured about a mile distant from the claim, and wooden stakes could have been secured and placed on the claim in one day. McColl, J., held that there was not such a compliance with the statute as would entitle the plaintiffs to the protection of s.-s. (d). Unreported decisions, one by Drake, J., in the Green Mountain Case, and one by Walkem, J., in Clark v. Haney, were referred to. See also note to sec. 15, supra. (/i) Provided that, in regard to fractional mineral claims, the Lieutcnant-Covcrnor in C'ouiumI may make such orders as are deemed necessary from time to time to carry out the provisions of this Act according to their true intent, and to meet the cases which may arise and for which no i)rovision is niade, or, when the ])rovision is made, is aml)iguous or doubtful. MiymtAL ACT 533 IT. * Any location imulo upon Sunday or any public holiday gliall not for that reason bo iiivalid, any law or statute to the con- trary notwitlistanding. IS'JG, c. 31, a. 17. < Derived from 1891, c. 25, s. IC. is. •" \\i cases whore, from the nature or sliapo of the ground, it is impossible to mark the location line of the claim, as provided by this Act, then the claim may ito nuirkcd by jdacinj:,' legal ])osls as nearly as jiossiblo to the location line, and noting the distance and direction .such posts may be from such location line, which distance and direction shall be set out in the record of the claim, lb. s. 18. ■■ Derived from 1891, c. 25, s. 17 ; amended in 1892, c. 32, s. 6, and amended in 1893, c. 29, a. 4, identical. lO. " Every free miner locating a mineral claim shall record the same Mith the Mining Recorder of the district witiiin which the same is situate, within lifteen days after the location thereof, if located within ten miles of the ollice of the said ^lining llecorder. One additional day shall be allowed for such record for every ad- ditional ten miles, r fraction thereof. Such record shall l)e made in u book to be kept for the jjurpose in the ollice of the said Mining liecorder, in which shall be inserted the name of the claim, the name of each locator, the luuuber of each locator's free miner's certificate, the locality of the mine, the direction of the location line, the length in feet, the date of location, and the date of the record. Such record shall be, as near as may be possible, in the Form 15 in the Schedide to this Act, and a certified copy thereof shall be given by the Mining liccorder to the free miner or his agent. A claim which bhall not have been recorded within the prescribed period shall be deemed to have l)een abandoned. .//). s. 1!). " Derived from 1871, Rev. Laws, No. 90, s. 25 ; record to be made within 3 days, and no provishm for abandonment on failure to record within prescribed period ; also in 1884, 47 Vict. c. 10, s. 27 ; consolidated in 1888, c. 82, s. 41 ; 1891, c. 25, s. 19 ; amended in 1892, c. 32, s. 7 ; amended in 1893, c. 29, s. 5, identical. Chapter 82, 1888, Consol. Acts, repealed by section 21, chapter 28, 1897; " Mineral Act." section 135. 20. ■^ A free miner sliall not be entitled to a record of a mineral claim until he shall have fnrnished the said Mining Recorder with all the above itarticulars. lb. s. 20. ' Derived from 1884. c. 10, s. 30 ; consolidated in 1888, c. 82, s. 44 ; 1891, c. 25, s. 20. identical. Section 20 of chapter 82, 1888, Consol. Acts, repealed by s. 21, c. 28, 1897; "Mineral Act." section 135. i \\\ \m I l-tr : t : ^1 534 niflTlSlI VOLIMIUX 31. * Tpon the cslabli^lnncnt of n inininj; ilivisioii and the open- ing of a Milling' IJoconli'rV ollitc lliorcin, iindtM' tlu- authority of tliis Act, siU'li oMicc and none other shall l>c' the proper ollicc I'or recording all mineral elainis within s leh nuning division, and making uU records in respect thereol'. lb. s. '^1. " Derived from 1891, c. 25, a. 21. In Kilbourne v. McGuigan, (1897) 5 B. C. R. 233, the defendants made an application for a certificate of improvements for (lie mining ground in question, and publisiied tlie notice prescribed by section of the Act of 1894. whereupon the proposed plaintilTs, In accordance with the terms of the notice, filed their adverse claim with the Gold Com- missioner. By oversight, action was not commenced within the pre- scribed time, and, on a motion to extend the time to commence action, Drake, J., held that by the Mineral Act Amendment Act, 1892, s. 14 (&.), the filing of an adverse claim in the office of the Mining Recorder was a condition precedent to the right of action, and that there was no juris- diction to extend the time. On appeal, th(> Full Court (McCrcight, Walken. and McColl, J.J.), held, affirming Drake, J.: (1) That the ad- verse cl;iim was not properly filed; (2) that, owing t> the nature of the subject nijitter, the Court requires stronger ground for extending lime in mining cases than in other matters. The notice of appeal served on the agent of the solicitor for the proposed defendants was held suffi- cient. 22. " If througli ignorance any free miner shall record a mineral claim in a diifercnt mining division to that in which sticli claim is situate, such error shall not atfect his title to siieh claim, but he shall within fifteen days from the discovery of his error, record such claim in the miinng division in which it is situate, and such new record shall hear the date of the first record, and a note shall he made there- on of the error and of the date of the ratification of the same. lb. s. 22. "Derived from 1891, c. 25, s. 22. Section 22 of chapter 82. Consol. Acts, 1888, repealed by s. 21, c. 28, 1897; " Mineral Act," section 135. 23. '"If a free miner ap])lies at the Alining Recorder's ollicc dmintr his absence to record a mineral claim, or anv document or other matter required by this Act to be recorded, and leaves the foe required by this Act, and the particulars and inforinatioit required to enable the ^lim'ng I{ecordcr to make such record, with the otVicer or other person in charge of said olhce, he shall be entitled to have siich record dated on the date of such applicatif)n. //'. s. 2.1. '"Derived from 1888, Consol. Acts, c. 82, s. 41, s.-s. 2, and Is prac- tically identical ; 1891, c. 25, s. 23. identical. iUL JiIL\EUAL ACT 35 ooo !2-l. ' Any I'lvi' luiiior having duly locaU'd and rocorded a ininonil claim shall no entitled to hold the same I'or the period of one year from the recording ol' the same, and Ihenee from year to year without the nece.-sity of re-recording: I'covided, however, that during eacli year, and eacli sueeeeding year, sueli Tree juiner shall do, or cause to be (lone, work on the claim itself to the value of one hundred dollars, and shall satisfy the (lold Couiuiissioner or Mining Hecorder that Bucli work has been done, by an allidavit of the iree miner or his agent, setting out a detailed stateiiu'nt of such work, and shall obtain from such CJohl Commissioner or .Mining Uecorder, and siudl record, a ceitilu'ate of such work having been done: Provided, also, that all ^\ork done outside of a mineral claim with intent to work the same fcliall, if such work have direct relation and be in direct proximity to the claim, be the occupation of any free miner when the same shall have remained unworked by the registered holder thereof for the space of 72 hours, unless sickness or other reasonable cause be shown." And by section 46, a claim must be " faithfully and not colourably worked." Held, the construction by a miner of a cabin fit and convenient for a residence while working on his claim, though not standing on the claim Itself, may be taken as proper and miner-like working on the claim, within the meaning of the statute, so as to preclude constructivo abandonment. l^cmhlc, the wrongful occupation of a claim by trespasser excuses the true owner from the obligation to represent his claim by actual work thereon, provided he is not guilty of laches in seeking to establish his right. Srinhlr, if a free miner quit his claim for more than 72 hours, and return and resume possession, the claim ntit having been in the mean- time taken up by any other person, he is In of his old estate. In Woodbury v. Hudnut, 1 B. C. R. (Part 2) 39, Begbie. C..T., said, at p. 41: "It was said that the work to be done on a claim (which la to be worked continuously) must be miner-like work— that building a house is not miner-like work at all; and, moreover, that the house in question was not on the Kootenay Chief ground at all, though not far off. Now, of course, In Cornwall or Northumberland, building a houue is not *^<1 MlStUtAL AW 637 miner's work— It la not mining at all. In old and highly orijatilzed rounlrles the Inndlonl mlniH with hired labour, and initH \\\t huuses for hl8 men. Yet the Cdst of thoHe hoiiHCH Is JuHt aw much part of \\\a mining capital Invested In the inlncH, and the houHes are JiiHt as UH:'fiil I'or work- InK the mlncH as the iiiimpH and furnaces with which the water Is removed or the ore roasted. And amon^ the hills of Mrltlwh Columbia, the lirst thliiK a miner does (when he Intends continuous working) is 'o sei lire, or to build if necesfiary, a cabin In a spot convenient as possible to Ms claim. It la not ne(U'ssary that It should be actually on his {ground. There may be overwhelminp; advantages In wood and water a quarter of a mile off. It is quite sufhclent if It be in a place manifestly convenient for the worker.s. 'i"he buildlnR of a cabin on llrst settlinK down to the serlouB workiuK of a mineral claim is therefore just as much miner's work in reference to th(> holdluR and worklnp; the claim as is, afterwards, the BinliinR of a shaft or tlie drivlnR a tunnel, or the building a pump. And without saying that fifty men working on a claim for one day are in nil cases to be deemed equivalent to fifty days' continuous work by the claim-iiolder or his representative; yet, in house building, Ave men in one (lay can often do far more work than one man in five day". " Page 42. "On the Ist June, the plaintiff going on the ground, finds the defendant already in possession. In our opinion, tliat exonerates iilm from the neceHsity of working until the title is determined. In the first place, if the plaintiff Insists on working, that might obviously lead to a breach of the peace; in the next place, no man can be expected to expend labour and capital cm ground which may be taken from him." Pago 43. " Where one man pretends to represent two claim-holders. It is strong evidence that his representation in both cases is colourable, and so, worthless. A miner ndght as well attempt to go to sleep in two bimks " Page 43. " Now it is as well to point out that the 72 hcmrs' absence mentioned in the gold laws, though it may bo and gener;illy is sufllident evidence of intention to al)andon the claim in any case, yet it is by no means conclusive evidence in all cases. The miner may return, and find his claim intact, and recommence working. In such a case he would be probably held to be in ' as of his old estate,' without being required to re-locate and re-record. His absence may have been sanctioned by the previous permission of the Ciold Commissioner; or It may be for s'ck- ness, fire, or fiood, or such other necesi-'ary or reasonable cause as that the Gold Commissioner may BUbsequently approve of It." IS25. ^ Tlio Iioldor of a iiiiiu'ral claim may, in lieu of the work required to ho done l)y section '^ I of this Act, on a eluim in eaeli year, pay to the Minimr Keeorder in wiiose olliee the elnim is recorded tlio sum of one huiulred dollars and reeeive from sueh Keeorder aiul reeord a receij»t for sueh payment. Suc-h paynu-nt and the reeord thereof in any year shall relieve the jier.-^on making il from the neees- sity of doing any work during:; the year in and for which and upon the .'laim in res]>eet of whieh sueh payment is reeorded. ISiK!, c. 34, s. 25. • Derived from 1895, c. 39, s. 4. ti!i 538 lililTI^ll COLUMJilA 20. ' Xolwitlistaiuling aiiythiiiij to flio contrary contaiiiiil in -my Act, ovory C'l'own (Iraiit liorcafter i^;^on fraud. Ih. s. v'S. ■' norived from 1891, c. 25. s. 25. Section 28, Consol. Acts, c. 82, repealed by s. 21, c. 28, GO Vict. 1897; "Mineral Act," section 135. "This introduces the rule, iiiiod /i. 'Derived from 1891, c. 25, s. 29. But see 1871, Rev. Laws, No. 90, s. 33 ; 1884, 47 Vict. c. 10, s. 38 ; 1888, Consol. Acts, c. 82, s. 53. Section 29, Consol. Acts, c. 82, repealed by s. 21, c. 28, 60 Vict. 1897. SO. *A free miner may at any time abandon any mineral claim hy giving notice in writing of such intention to al)andon to tlie Mm- iiig Recorder, and from tiie date of the record of such notice all interest of such frt-e miner in such chiim shall cease. 18!)T, c. "iS, s. T. 'Section 30, 59 Vict. c. 34, 189(5 ; s. 7, GO Vict. c. 28, 1897. Derived froui 1891, e. 25, s. 27. But see as to partnership abandonment 1871, .Rev. Laws, No. 90, s. 85 ; also 1888, Cimsol. Acts, c. 82, s. 119. See N. & F. S. R. Co. v. Jerry, (1897) 5 I'.. C. R. 396. where it was decided that the title to a duly located and recorded mineral claim is equivalent under this section to a lease for a year, vested in its owner, and the doctrine of implied surrender by conduct does not apply to it; and the only abandonment by which the owner can be cinicluded is that by notice of abandonment given by him to the Crown, as provided for by section 27 of the Act (of 1891, which, as amended by 1897, No. 03, s. 7, is now section 30). JJI . " When a free miner abandons a mineral claim he shall have the right to take from the same any machinery and any jiersonal jiro- l>erty wiiicli he may have placed on the claim, and any ore whicli he may have extracted therefrom, within such time as shall be fixed by till' (iold Commissioner or Mining U'ecorder. ISIX!, c. IM. s. lil. "Derived from 1891, c. 25, s. 28. •ttS. "^ No free miiu'r shall be entitled to relocate atiy mineral claim, or any portion thereof which he shall havi' faileil to record ili: m M^ 1 ! il WT I '! 510 BliiriSn COLUMBIA withiu the prescribod perioil, or which he shall have abandoned or iorfeitod, unless he shall have obtained the written permission of the (Jold Commissioner to make such re-location; and he shall hold no interest in any portion of such mineral claim, by location, without such 2)ermission. lb. s. 32. '" Derived from 1891, c. 25, s. 29. In Granger v. Fotheringham, (1894) 3 B. C. R. 590. (Crease, J.) The owners of a mineral claim, the title to which was considered defec- tive, permitted a third person to re-locate it in his own name, where- upon he, without previous binding agreement to that effect, conveyed his title to them for a consideration. Held, not a re-location by the owners within section 29, c. 25, Mineral Act, 1891, and that the written permission of the Gold Commis- sioner was not necessary. The owner of shares in an incorporated mining company is not an owner of any part of a mining claim owned by it within section 29, The location of a mineral claim is not void because as staked it exceeds the 1,500 feet in length provided by section 3 of the Mineral Act (1891) Amendment Act, 1893, but may be corrected by virtue of sec- tion 14 of that Act by the Provincial Surveyor who makes the survey, by the removal for the correction of distance of any post except the initial post No. 1, if the alteration does not affect the previously acquired rights of adjacent owners. Section 27 of the Act, providing that the owner may abandon a mineral claim, inferentially permits him to abandon any portion of it upon hia specifying and recording such abandonment. The Court should deal with mining disputes upon the principles of a Court of Equity, and should discountenance a plaintiff whose action is based upon defects in title, knowledge of which was acquired by him while a Government employee In a mining record office; it being con- trary to his duty to the public and those interested in the records for him so to use such information. The design of the Act is to prohibit mining by any person without a free miner's certificate, and what can not be done directly can not be done indirectly; (jiiaiidt) (iVniiiUl iiroliilKtiir, iiniliihctiir it miutc pit' quod (Iciriiitiir ad iUud. 3Ji. * Where a tunnel is run for tlie devel(i])ment of a vein or lode the owner of such tunnel shall, in addition to any mineral claim legally held by him, have the riglit to all veins or lodes diseovi-red in such tunnel: Provided that the ground containing such veins or lodes be marked out l)y him as a mineral claim, and be duly recorded within liltceii days after sucli discovery; and provided further, that such veins or lodes are not included in any existing mineral claim. Any money or labour e.\j)ended in constructing a tunnel to develop MINERAL ACT 541 a vein or lode shall bo deoniocl to have been expended on siieh vein or lode. lb. s. 33. ' Derived from and nearly identical with 1884, 47 Vict. c. 10, p. 66 ; except that it is provided 3 days after discovery, 1S91, c. 25, s. L^3, identical. 34. - The interest of a free miner in his mineral elaim shall, save as to claims held as real estate, lie deemed to be a chattel interest, equivalent to a lease, for one year, and thence from year to year, sub- ject to the perfornuuice and oljservance of all the terms and condi- tions of this Act. 11). s. 34. = Derived from 1871, Rev. Laws, No. 90, s. 34; 1884, 47 Vict. c. 10, s. 39, and 1888, Consol. Acts, c. 82, s. 54; see variations, 1891, c. 25, s. 34, identical. See Wells v. Petty, (1897) 5 B. C. R. 360. See Stussl v. Brown, (1897) 5 B. C. R. 380, where it was held that to maintain the defence of the Statute of Frauds to an agreement for sale or transfer of a mining claim, both that statute and s<>ctlon 34 of the Mineral Act must be pleadi-d. See N. & F. S. R. Co. v. Jerry, (1897) 5 B. C. R. 396, in note to sec- tion 30. 35. " Any lawful holder of a mineral claim shall be entitled to a Crown grant thereof on payment to the Government of ])riti-ii Columbia of the sum of five hundred dollars in lieu of e.\|)enditure on the claim, or if the intending purchaser shall have perforuu'd assessment work in accordance with section 24 of the said Act, and l)aid any sums of money in accordance with section 25 of the said Act, such assessment work and payments of money may be considered as part payment of the above snui of live hundred dollars, and on payment in money of the balance of said sum of live hundred dollars the said intending purchaser shall be entitled to said Crown grant. The intending ])urchaser shall comply with all the provisions of sec- tion 3(! of tiu' said Act, except such as have respect solely to the work recpiired to be done on claims. ('" [Mineral Act Aniendnuuit Act, 18:).s;' s. (i.) "Derived from 1884, 47 Vict. c. 10, s. 74, claim-holder to pay $50 an acre; amended in 1886, 49 Vict. c. 14, s. 10, claim-holder to pay only $25 an acre; 1888, Consol. Acts, c. 82, s. 88, claim-holder to pay only $25 an acre; 1891, c. 5, s. 35; amended, 1892, c. 32, s. 12, R. S. B. C. (1897) s. 35. 30. ■• ^Vhenever the lawful holder of a mineral claim shall have complied with the following re(piircments, to the satisfaction of the (Jold Commissioner, he shall be entitled to receive from the Cold Commissioner a certificate of improvements in respect of such claim. ':!i 1 542 BRITIHU COLUMBIA unless proceedings by the person claiming au adverse right under sec- lion 37 of this Act have been talvcu: — * Derived from 1891, c. 25, s. 36; is identical down to word "claim" on 4th line. (ci) Done or caused to he done work on the claim it.selC in de- veloping a mine, and paid money, together amounting to the value ol' five hundred dollars, exclusive of all houses, buildings and other like improvements. For tiie i)urpose of this section, work done on the claim by a predecessor or l)redecessors in title shall be deemed to have been done by the applieant wlio receives a transfer of sucli claim: (" The ^Mineral Act Amendment Act, 1S!)8," s. T.) (})) Found a vein or lode within the limits of such claim: (c) Had the claim surveyed by an authorized Provincial Land Surveyor, who sliall have made three plats of the claim, and who shall have accurately defined and marked the boundaries of such claim ui)on the ground, and indicated the coi'uers by ]»lacing monuments or legal ])()sts at the angles thereof, and upon such monuments or posts shall be inscril)ed by him the name and the ollicial designation of the claim, and the corner represented thereliy, and who shall liave, on comi)]etion of survey, forwarded at once the original lield-notes and plan direct to the Lands and Works l)e|artment. After a certificate of imiii'ovements has issued in respect of any claim so surveyed, /)/■('///(/ faci" evi- pon the ground may l)e given by any and can descril)e the nosition of such deiite of its location ui ])erson who luis seen jjosts purporting to be so marked as aforesaid, ami the said field-notes, or a copy thereof certified in accordance with the Fvidence Act," sliall be received in all Courl nrinni facie c\idence of the facts which they purport to set forth: ((/) Shall have posted on some conspicuous part of the land em- braced in the survey a copy of the plat of tlie claim, and a leyibl c notiie in writing, in l-orm !• of tlu; Schedule to th IS A(t, of his intention to apply for a ccrtilicatc td' improvo meiits. and shall also have [lostcd a similar notice in the M iniiii i; c( order s ollicc, and sue no tice shall contain — (1) 'Jlie name of the claim; {2) The name of the lawful holder thereof; MIXERAL ACT 543 (3) Tlio nimiber of sucli lioklcr's existing Ireo miner's cer- tiiicatc; (4) His intention to apply for certificate of improvements at tlie end of sixty clays, for tlie purpose of obtaining a Crown grant; (5) The (late of the notice: (e) Inserted a copy of siicli notice in the British Coliiml)ia (Jazctte and in a no\vsi)a])er i)ul)lislied and circidating in tlie division in wliicii tiie claim is situated, or, in the ab- sence of such local paper, in the one nearest thereto, for at least 00 days prior to such a]»i)]ication, wliich insertion can be made at any time after the posting of the notice on the claim: (18!)T, c. 28, s. 8.) (f) (Shall have filed with the j\lining Recorder a copy of the sur- veyor's original field notes and plat immediately after post- ing tlie notice on tlie claim of his intention to ojiply for II certificate of iniiirovements: (,'/) Filed with the Mining Recorder — (1) The co[)ies of tlie British Columbia Gazette and news- ])aper containing the notices of application for certifi- cate of inii)roveineiits: (2) Atlidavit of the holder of the claim, or his agent, in the l-'orm (i in the Schedule of this Act. (" The Mineral Act Amendment Act, 18!>8," s. 8.) (/<) At the i'X|tiration of the term of the said ]niblication, ])ro- videtl no action shall have been commenced and notice thereof filed with the Mining Recorder, he shall forward to the ownei' or agent, under Form I of the Schedule to this Act, the documents referred to above, together with a certili- cate that the notice jirovidcd by section 3(), sub-section ((/), has been ])osted in his ofVice, and the field notes and plan deposited for reference therein from the date of the first appearance of the said notice in the IJritish Columbia Cazctte, and continuously therefrom for a period of at least sixty tlays. The Recorder shall also set out in Form \ the name of the recorded owner of the claim at the date of si;:!" the same. 180(i, c. 34, s. 30, and ISOT, c. 28, s. 8. \ 1 i-m: a i! W I ^ I :• i^ t l r 644 BRITLSIl COLUMBIA * JJ7. (1) A cortificiiio of iinprovenit'iits wlion issued as aforesaid sliall not Ijo impoacliod in any Court on any ground except tliat of fraud. (2) ^ In case any person sliall claim an adverse riglit of any kind, either to possession of tlie mineral claim referred to in the application for certificate of improvemenls or any part thereof, or to the minerals contained tlierein, he shall, within sixty daj's after the puhlication in the British Columbia (iazette of the notice referred to in section 30 hereof (unless sucli time shall he extended by special order of the Court upon cause being shown), commence an action in the Supremo Court of Britidi Columbia to determine the question of the right of possession cv otherwise enforce his said claim, and sludl file an alli- davit, to be made l)y the person asserting the adverse claim, and set- ting i'orth tlie nature, boundaries and extent of sucli adverse claim, togetlier with a map or plan thereof, nuule and signed by a Provincial Land Surveyor, and a copy of the writ in said action with the Mining IJccorder of the district or mining division in which tiie said claiui is situate within twenty days from the commencement of said action, and shall ])rosecute the said suit with rcasonal)le diligence to final judgment, and a failure to so commence or so to prosecute shall be deemed to be a waiver of the ])laintiif*s claim. After final judgment siuill have been rendered in the said action the ])erson, or any one of the persons, entitled to the possession of the claim or any part tliereof, may file a certified co])y of the same in the ofhce of the Mining llecorder. After the filing of the said judgment, and upon compliance with all the recjuirements of the next ])receding section, such ])erson or persons shall be entitled to the issue to him or to them of a certificate of imjtrovements in respect of the claim or the por- tion tliereof which he or they shall appear from the decision of the Court rightly to possess: Provided that this section shall not ajiply to any adverse claim filed or action to enforce the same commenced prior to the date of this Act coming into force, but the same shall 1)0 continued in the same manner as if this Act had not been passed. ("The ]\rineral Act Amendment Act, lSf)H,"' s. f).) 'Derived from 1892, c. 32, s. 14; amended in 1893, c. 29, s. 10. Original; but see 1884, 47 Vict. c. 10. s. 70. As to advers<^ claims in re- spact of Crown grants, and mode of proceeding, also, 1888, Consoi. Acts, c. 82, s. 83; R. S. B. C. (1897) c. 135, S. 37. Re The Maple Leaf and T.anarli Mineral Claims. (In the matter of the "Mineral Act, 1891," and Amendments), (1893) 2 B. C. R. 323. MIXERAL ACT 5-15 -■» I 10 y ■a all <1. 10. rc- (Dlvlsional Court). The order of a Judge extending the thirty days pro- vided by the Mineral Act (1891) Amendment Act, 1892, within which to Commence proceedings In a Court of competent jurisdiction to enfoice an adverse claim, ib appejilablo to the Divisional Court under section 67, Supreme Court Act, although not made in any pending cause. It appeared that a writ endorsed to prosecute the adverse claim in the Supreme Court had been Issued before the application for the order" ap- pealed from was made, but that fact was not disclosed to the Judge upon the application. Held, allowing the appeal, that the fact of the issue of the Supreme Court writ was material to the original application and should have been disclosed. Such a circumstance can be taken advantage of upon an appeal from as well as upon a motion to rescind the order. After judgment allow- ing the appeal and adjournment of the Court, but before the order was drawn up, the matter was spoken to before the Court upon a subsequent day in presence of counsel for both parties by special leave, and it ap- pearing that a notice (of which respondent's counsel was not instructed) abandoning the appeal had been served by appellant's solicitor upon respondent's solicitor on the morning of but before the argument of appeal: Held, that the appeal was at an end upon the giving of the notice abandoning it, and the order allowing the appeal not having been drawn up no order would be issued, but the appeal should stand as if struck out of the paper. In re " Good Friday," Timber, Indiana, Old Kentuck, and Good Hope Mineral Claims. Ini the matter of the Mineral Claims Act (1891) and Amending Acts, 1896, 4 B. C. R. 496. (Davie, C.J.) The Mineral Act (1891) Amendment Act, 1892, s. 14 and s.-s. 2, provides an adverse claimant shall within thirty days after fyling. a claim (unless such time shall be extended by special order of the Court upon cause being shown), commence proceedings in Court of competent jurisdiction to determine the right, etc. Held, that the Court has jurisdiction to extend the time limited as well after as before the lapse of the thirty days. 38. "After the issuing and recording of such certificate of im- provonients, and while such certificate shall he in force, it shall not ho necessary to do any work on such claim. lb. s. 38. •Derived from 1891, c. 25, s. 38; amended 1892, c. 32, s. 15. 30. '"On the granting and recording of such certificate of im- provements in respect to a mineral claim situate outside of the rail- way belt, the holder thereof shall be entitled to a Crown grant of such claim without the payment of the five hundred dollars required 35 -M E y- \ I, 546 BRTTTfin COLUMBIA by settion 35. Aiul on the granting and recording ocriificato of inii)rovonit'nts in rtv^ijcut ol' a mineral t-lai" . ■ inside the Hailway Helt," tlie liolder thereof shall l)e ent' a Crown grant of sucli claim on the payment of live dollars [ re to the Mining Kocorder. lb. s. ;5!). '"Derived from 1891, c. 25, s. 39; amended in 1892, c. 32, s. 16, identical. " Title to land in the Railway Belt, Queen v. Dumors, 3 Ex. Ch. Rep. 293, affd. (1893) 22 S. C. R. 482; Queen v. Farwell, (1893) 22 S. C. R. 553; The Queen v. Farwell, (1887) 14 S. C. R. 392. 40. * The liolder of a mineral claim for which a certificate of improvements has been granted and recorded shall make ajiplication for a Crown grant to the (Jold Commissioner, enclosing his certifi- cate of improvements, the Crown grant fee of five dollars, the Mining Recorder's certificate. Form I, the field notes and plat, and the atU- diivit. Form (J, within three months from the date of snch certificate of improvi'iiients, and in default of snch application having been made within such time sucli certificate of improvements shall lapse and become absolutely void. lb. s. 40. ' Derived from 1891, c. 25, b. 40. 41. "If the holder of a mineral claim, after a])plying for a certi- ficate of improvements, shall sell and transfer such claim to another free miner, npou satisfactory ])roof of such sale and transfer being made to tiie Cold Commissioner, the new holder of the claim shall 1)e entitled to a certificate of improvements in his own name. And if a sale and transfer shall be made to any ])erson or comi)any after a certificate of iinprovements shall have been issued, npon ])roper ])roof of such sale and transfer being made to the satisfaction of the Chief Commissioner of Lands and Works, the Crown grant shall issue to the new holder of the claim. lb. s. 41. 'Derived from 1891, c. 25, s. 41, identical. 42. •'' AVhen a holder of a mineral claim has taken out his certi- ficate of ini])rovements he shall not record any transfer of his rights in tlio said claim nntil ho obtains his Crown grant, lb. e. 42. • Derived from 1894, c. 32, b. 7. 45J. ■• 'J'he issnance of a Crown grant shall not invalidate any lien which may have attached to any mineral claim previous to the i.esuance of such Crown grant, lb. s. 43. •Derived from 1891, c. 25, s. 42. MiyiUiAL ACT 547 44. ■''A Crown grant nl' a mineral claim located on any waste lands of tlio Crown shall be deemed to transfer and pass the right to all minerals within the meaning of this Act (excepting coal) found in veins, lodes, or rock in i)lace, and whether such minerals are found separately or in combination with each other, in, upon, or under the land in the said Crown grant mentioned, lb. s. 41, "Section 44, 59 Vict. c. 34, 1896. Derived from 1884, 47 Vict. c. 10, ss. 64 & 69; coiisollclated in 1888; Consol. Acts, c. 82, ss. 77 & 82; identical with 1891, c. 25, 8. 43; amended in 1895, c. 39, s. 6. 4i5. "Crown grants (d mineral claims located on lawfully occu- ](ied lands the right whereon to enter, ])ros[)ect, and mine all minerals (other than coal) has been reserved to the Crown and its licensees, shall pass to the grantee all nunerals within the meaning of this Act (other than coal) found in veins or lodes, or rock in place, and whe- ther such nunerals arc found separately or in cond)inalion with each other, which may be in, upon, or under the land in the said Crown grant mentioned, and including alJ the rights given to mineral claim holders of nuneral claims so located, but such Crown grant shall ex- pressly reserve the rights of such prior occujjant. "Derived from 1891, c. 25, s. 44, and 1894. c. 32, s. 44. (Where the mineral claim is located on land lawfully occupied under a timber k'ase, the Crown grant shall convey the surface and minerals within the meaning of this Act (save coal) found in veins or lodes, or rock in place, hut shall reserve the tind)er). lb. s. 4.5. 40. "Crown grants of mineral claims located on lawfully occn- jiied lands, the right whereon to enter and nunc g(dd and silver has been reserved to the Crown and its licensees, rhall jiass to the grantee all the gohi and silver f(Uind in veins, or lodes, or rock in place, which may be in, upon, or under th(> land in the said Crown grant men- tioned, and including all the rights given to mineral claim holders of nuneral claims so located; but such Crown grant shall expressly reserve the rights of such prior occui)ant. lb. s. 4G. ' Derived from 1891. c. 25, s. 45. 47. ^ If an adverse claim shall only affect a iiortion of the ground for which a certificate of inijirovements is aitplied, the ai)plicant shall /levertiieless be entitled to a certificate of imi)rovements for the \\\\- dispnted remainder of his claim, upon complying with the recpure- luents of tliis Act. ("'The Mineral Act Amendment Act, 1808," P. 1.").) •Derived from 1891, c. 25, s. 48. See als> 18S4, 47 Vict. c. 10, s. 70, part; 1888, Consol. Acts, c. 82, s. 83. life : 648 BUITI^U COLlMniA 4S. 2 When judgnu'iit in siicli cnso is rendered hy the Court, n iiiemornndiun of such jiulgnient sliall be entered in the " IJecord Book "; and if by nny judguiont the original boundaries of any chum shall lie olianged, a plat made by a Provincial Land Surveyor, and signed by the Judge l)y wliom tlie judgment has been given, sliall be liled in the otUce of the Mining Kecorder, lb. s. 48. 'Derived from 1891, c. 25, s. 49. 4tt. •'' Every conveyance, bill of sale, mortgage, or other docu- ment of title relating to any mineral claim, not held as real estate, or mining interest, shall be recorded within the time prescribed for recording mineral claims: Provided, always, that the failure to so record any such document shall not invalidate the same as between the parties thereto, but such documents as to third parties shall take effect from the date of record, and not from the date of such docu- ment. And provided further, that after the issuance of a Crown grant for any mineral claim it shall not be necessary to register any transfer or other document of title executed subsequent to such Crown grant with the Mining Recorder of the district in which the said claim is situated; but all documents relating to the same may thereafter be regif'ared in the same manner as are other documents of title re- lating to the transfer of real estate, and all the provisions of the "Land Registry Act," and any amendments thereto, shall apply to such registration. Ih. s. 49. ' Derived from s. 50, c. 25, 1891, except proviso. See also 1884, 47 V. c. 10. B. 33. Identical witli 1891, c. 25, s. 50. See Atkins v. Coy, (1897) 5 B. C. R. 14, which decides that this and the next section " seem to introduce, as might be expected, intO' the law relating to transfers under above Act (the Mineral Act, 1891, and the Mineral Act (1891) Amendment Act (1892), the policy of the Land Regis- try laws, namely, that a prior unregistered conveyance must be post- poned to that which is subsequent but duly registered." " The same policy has, I believe, characterized our legislation with respect to gold fields mining claims for the last thirty years or upwards." Per McCreight, J., at p. 14. 50. * Xo transfer of any mineral claim, or of any interest therein, shall be enforceable unless the same shall be in writing, signed by the transferrer or by his agent anthorized in writing, and recorded by the Mining Recorder; and if signed by an agent, the authority of such MI.\EI{AL ACT n-i'j iiv as iicnrly iis pos- Hil)k' in the toriii dl" ti s(|iiiiiv. On localiny a niiil-jsite, tlif Irco niiut'i* f^liall citniply witii tlu' following riuiuiiviuonts: — "Derlve) I'list a notico on caili jinst, stating — 1. 'I'lic name of sucli tree ininoi': 2. Tiie nnmher of his free miner's certilicate: ' Ji. His intention, at the expiration of sixty (hiys from tlie date ol" the notice, to ajiply for tlie hind as a mill site: 4. Tlie date of the notice: ((') Post a copy of snch notice on the olli'.e of the Mining Re- corder. Jli. s. oH. f5*5. '"On the t'Xpiration of sixty days after the fiiKilnieiit of the ahove le.piirenu nts, the free miner shall deposit, in (hi|ili(ate, in the olliee of till' Mining l{ecordcr. a plat of the said laml made hy an anthorized rrovincial Land Snrveyor, and prove hy atlidavit that he Jias conqilicd with the altove reipiireniciits, and that the said laml is not known to contain minei'als, and shall furnish such other proof of tlie non-mineral character of the land as the (iold Commissioner may rccpiire; the free niiiu'r shall then he entitled to a lease, for one year, of the said land, which lease shall he executed i)y the (iold Com- missioner. If, during the continuance of such lease, bUcIi free miner shall prove to the satisfaction of the (iold Commissioner that lu' has ])iit or constructed works, or machinery for mining or milling purposes on tlie said mill-site, of the value of at least live hundred dollars, he shall he entitled to a Crown grant of such mill-site upon payment of five dollars j)er acre for such land. Any free miner now having a lease of a piece of land for a mill-site, ujion proving to the satisfac- tion of the (io!d Commissioner tfiat he has put or constructed works, or machinery for mining or milling |)iirposes, on the said mill-site of the value of at least live hundred dollars, shall, on payment of five dollars per acre, he entitled to a Crown grant of such mill-site. Jh. s. 55. "'Derived from and identical with 1891, c. 25, s. 56. MlS'HIfAh ACT 561 iSfl. M)n iipplyiiig tor a Ciowii j,Miiiit of n inill-sito, the free iniiKT sliiiU — ' Derived from uiul Identical with 1891, c. 25, h. 57, conialiilng in ad(lltli>ii Hiib-H»'(!tl{)n (f), " iilUdavlt thiit the upplkant liolda no other nilll-Hlto obtained by him under this Act," which was ivpealed by ISttL', c. 32, B. 21. (1) Tay the sum of live dollars per acre to the Mining Uocordcr. {'i) Doiiosit with tilt' Milling IJoconliT tlio following documents: (a) Leuijo of till' mill-site: {!,) riat of tlu" mill-site: ((•) Surveyor's original lield-notes: ((/) A ceitiiifUtc from the Oold Commissioiior that works or machinery for mining or milling purposes have heen put or construeted on tlie mill-site to the value of at least live liundre dollars: {(:) Application for the Crown grant. lb. s. 5G. Ii7. -Crown grants of null-sites shall pass to the grantee all the surface of the land in the said Crown grant mentioned, Itut all such Crown grants shall expressly reserve all minerals under the said land, and the right to tlu' Crown and its licensees to enter and mine the said nuncrals, and may he in the following form; — » Derived from and identical with 1891. c. 25, s. 58. Ii..; l{oval arms. I'rovinee of British Columbia \ No. ( YiCTdRfA, liy the grace of (Jod, of the United Kingdom of (ifreat ]ir'* .in and Ireland, Qi'kkn, Defender of the Faith, and so lorth. To all to whom these presents shall come — CiRKKTINC.: vl ■ 653 BRITISH COLUMBIA Know ve that We do by these i^resents, for Us, O- ■ heirs nnd successors, in consideration of the sum of vu Us pa 1, give and grant unto h heirs and assigns, All that parcoi or lot of land situatu and nui;ibcred on the official plan or survey of the said in the Province of Biitish Columbia. To have and to hold the said parcel or lot of land, mid all and singular the premises hereby granted, with their appurtenances, unto the said h forever. heirs and assigns Provided^ nevertheless, that it shall at all times be lavviul for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume any part of the said lands which it may bo deemed necessary to resume for making roads, canals, bridges, towing paths, or other works of public utility or con- venience, so nevertheless that the lands so to be resumed shall not exceed one-twentieth part of the whole of the lands aforesaid, and that no such resumption shall be made of any lands on which any buildings nuvy have been erected, or which may ho in use for the more convenient occupation of any such buildings. Provided also, that it shall at all times bo lawful for Us, Our heirs and successors, or for any person or persons acting under Our or tlieir authority, to enter into and upon any part of the said lands, and to raise and get thereout any minerals, within the meaning of this Act, which may be thereupon or thereunder situate, and to use and enjoy .my and every part of the same land, and of the easements and privileges thereto belonging, for the pur})ose of such raising and getting, and every other purpose connected therewith, paying in respect of such raising, getting and use, reasonable compensation. I'rovided also, that it shall be lawful for any person duly author- ized in that behalf by Us, Our heirs and successors, to take and occu- py such water privileges, and to have and enjoy such rights of can*)- ing water over, through or under any parts of the hereditaments hereby granted, as nuiy be reasonably re(piired for mining or agrl- cultuial pur]ioses in the vicinity of the said hereditaments, paying therefor a reasonable compensation to the aforesaid h heirs nnd assigns. Provided also, that it shall be at all times lawful for any per- son duly authorized in that behalf by Us, Our heirs and successors, to take from or upon any part of the hereditaments hereby granted, MINERAL ACT 653 without roniponsation, any gravel, sand, stone, lime, timber, or other material which may be required in tlie constniction, maintenance, or repair of any roads, ferries, bridges, or other public works. In Testimony whereof we have caused these. Our letters, to be made patent, and the Great Seal of Our Province of Jiritish Columbia to l)e hereunto allixcd: Witness, llis Honour , ]iieutenant-(j!ovenior of Our Province of British Columbia, at Our Ciovernment House, in Our City of Victoria, this day of , in the year of Our Lord one thousand eight hundred and , and in the year of Our lleign. By Command, lb. s. 57. i u Tunnels and Drains. 58. Any free miner, being the holder of a mineral claim or mine held as real estate, may, at the discretion- of the (iold (.'ommissioner, obtain a license to run a drain or tunnel, for drainage or any other purpose connected with the development or working of such claim or mine, through any occupied or unoccupied lands, whether mineral or otherwise, upon security being first deposited or given to such Cold Comnussioner to his satisfaction for any damage that may be done thereby, and upon such other terms as he shall think expedient. lb. s. 58. Carson & Eholt v. Clark & Martley, (1885) 1 B. C. R. (Part 2) 189; Begbie, C.J. On the construction of the Lnnil Ordinances and Acts, it has been held, that, under section 44, the Land Ordinance, 1865, no person is empowered to take water from any stream who is not at common law a riparian proprietor. Also, that the Commissioner should, before granting any authority to divert water under the Land Acts, see that all the requirements of the statute have been complied with, but that the applicant is respon- sible for the insufficiency of his record. Sciiihlr, that the owner of a water privilege cannot satisfy section 50 of Land Act, 1875, by using the ditch of another. Scmbic, that even prior to passing section 50, no exclusive right could be acquired until such ditch was constructed. Held, that section 44 of Land Ordinance, 1865, did not enable persons to acquire water-rights as against riparian owners of land acquired prior to the passage of that Act. The duties of a Commissioner in considering applications for water under Land Acts pointed out. IS ! Hi!; Oiii BRiriSn COLUMBIA In the case of Jenny Lind Co. (appellants) v. Bradley-Nicholson Co. (respondents), (1883) 1 B. C. R. 185 (Part 2), Walkom, J. Bach com- pany had a hlll-claim, fronting on the right bank of William Creek, and dependent on its water for the moans of mining it. The B. N. Co., whose claim was higher up-stream than the J. L. Co.'s, turned nearly all the water of the crtu'k from its bed, at a point on the stream some dis- tance above their claim, and conveyed it by a ditch to their ground, thereby depriving the J. L. Co. of water, and obliging them to stop work. The B. N. Co. claimed the right to do so, by virtue of section 36 of the Gold Mining Ordinance, which entitles a miner to use " so much of the water naturally flowing through or past his claim as may be necessary to work it." Held, reversing the Gold Commissioner's decision, that the water so used by the B. N. Co. was not "water flowing through or past" their claim, as its natural flow had been intercepted and turned into a ditch above thi> claim, and that the B. N. Co. had, therefore, no right to such water under section 36. The J. L. Co. having complied with Part X. of the same Ordinance — referring to " Ditches " — obitained from the Gold Commissioner, in April, 1882, a license to divert 150 inches of water from the creek at their ditch-head, which was higher up stream than both their and the B. N. Co.'s claims, and use it by means of their ditch, on the ground, for mining purposes, for five years. The B. N. Co. held no similar license, either directly or derivatively. Held, that owners of hill-claims could only acquire water privileges such as those claimed in the present action, by complying with Part X.; and that under tht> circumstances statetl the J. L. Co. had an exchiSAO right to use 150 inches of water, according to the terms of their license find by virtue of it; and that the B. N. Co., having no similar license, h;ul no right to any of the water of Williams Creek. Held, also that the grant of a water-privilege, under Part X., need not be by deed. = " Discretion " said Lord Mansfield in Rex v. Wilkes, (1770) 4 Burr. 2539, " when applied to a Court of justice means sound discretion guided by law. It must be governed by rule, not by humor; it must not be ar- bitrary, vague or fanciful; but legal and regular," or according to Lord Coke, Uiavntio (nt Oixaninv ptr hyrin quid kU jtistitm. Tart III. Mining Partnerships. flO. ^ All ]iiiiiinartnersliii)s shall bo governed by the provi- sions hereof, unless they shall have other and written articles of part- nership. Ih. s. 80. 'Derived from 1871. Rev. Laws, No. 90, s. 78; 1884, c. 10, s. 95; 1891, c. 25, 8. 81. R -•A , MIXERAL ACT OO. ^ A milling partnorsiiip shall, unless otherwise agreed upon, he deenied to be a yearly partnership, renewable from year to year hy tacit consent, lb. s. 81. 'Derived from 1871, Rev. Laws, No. 90, s. 79; 1884, c. 10, s. 96, with which it is identical. ttl. ''The business of the partnership shall be mining and such other matters as pertain solely thereto, lb. s. 82. '•Almost identical with 1871, Rev. Laws, No. 90, s. 80; 1884, c. 10, s. 97; 1891, c. 25, s. 82. 02. ".Mining i)artnerships can locate and record in the partner- ship name a mineral claim for each partner, but the name of every ]iartner and the number of every partner's free miner's certilicate shall be on the record of every such claim. The part- nershi]) name must a])pear on every such record, and all the claiu's sj taken ui) shall be the pro])erty of the partnership: Provided always, that no free miner who is the member of a inining partnership, holding by right of location a mineral claim, shall bo entitled to hold by right of location in his own name or i the name of any otlier jjartnership any interest in any other mineral claim on the same vein or lode on which the partnership claim is situate, lb. s. 83. ° Derived from 1891, c. 25, s. 84, with which it is identical. CJf. ■' Should any partner fail to keep up his free miner's cer- tilicate, such failure shall not cause a forfeiture, or act as an aban- donment of the ])artnership claim, but the share of the partner who shall so fail to keep uj) his free miner's certilicate shall, ipsi) facto. be and become vested in his partners, />/•<; rata, according to their former interests, on the said partners paying the free miner's certi- ficate for the year. lb. s. 84. 'Derived from and identical with 1891, 54 Vict. c. 25, s. 85, omitting the words following at the end of the section, ^' on the said partners paying the free miner's certificate for one year," which wi're added in 1895, c. 39, s. 7. 04. ** A i)arlner in any mining par'.nership or his agent autlior- ized in writing shall, at any meeting thereof, be entitled to vote upon «:ny interest or fraction of an interest which he may hold therein; but the le-ult of the votes given shall be determined l)y the number of the full interests voted upon, and not by the number of partners voting at siu'h meeting. 1h. s. ST). "Section 85, 1896, almost identical with 1884, c. 10. s. 99; 18S8, Consol. Acts, c. 82, 8. 115; 1891, c. 25, a. 86, with which It is identical. I'l 556 BRITISH COLUMBIA 05. " A imijority of such votes may decide when, how k)ng, and iu what manner to work the partnership chiini, the number of men to be emidoyed, and the extent and manner of levying the assess- ments to defray tlie expenses incurred by tlie partnership: Such majority may also clioosc a foreman or manager, who slmll represent (he ijartnershijj, and sue and be sued in the name of the partnership for a>>tessment8 and otherwise; and he shall have jjower to bind them by his contracts: Every ])artner, or his duly autborized agent, shall be tntitk'd to icjn-osent liis interest in tbe partnersiiii) property by work and labour so long as such work and labour be satisfactory to tlie foreman or nuinager. In the event of such workman being dis- charged by the foreman or manager, the Court having jurisdiction in mining disputes may, if requested, summon tlio foreman or nuuiager before it, ami ui)on hearing the facts make such order as it shall deem just. 76. s. 86. "Substantially identical with 1871, Rev. Laws, No. 90, s. 81; 1884, c. 10, s. 98; 1891, c. 25, s. 87, identical. CO. "' All assess?nents shall be payable within thirty days after being made. Jh. s. 87. "'Section 87, 1896, derived from 1871, Rev. Laws, No. 90, s. 82, which provides for payment within 5 days thereafter; 1884, c. 10, s. 101; 1888, Ciinsol. Acts, c. 82, s. 117; 1891, c. 25, s. 88, is identical (30 days). 07. * Any ])artner making default in i)aynu'nt after receiving a notice specifying the amount due by him, shall, if such amount be correct, be personally lial)le therefor to the partnership, and his in- terest in the partnership property may be sold by the partnership for the payment of the debt, and any further assessment which may have accrued thereon up to tbe day of sale, together with all costs and charges occasioned by such default; and if the proceeds of the sale be insufiicient to pay off the several sums mentioned, the Court hav- ing jurisdiction in mining disputes, upon being ap])lied to, shall issue an Older directed to the Siierilf to seize and sell any other ])ersonal proj erty of tiie debtor. Notices of sale sliall, in either of the above cases, be ccmspicuously posted thirty clear days i)rior to tbe day of Fale in the vicinity of such mining or other property, and on tiu; (.'ourt House or ^Mining Recorder's ofTice nearest tiiereto. But if i-ucli I'artner be absent from tbe district such notices shall be posted f;s aforesaiil sixty clear days before the day of sale, and a copy of such notice shall be published in some newsjiaper circulating in the dis- trict wherein such mining or other property is situate. Such sale shall be by public auction to the highest bidder. The pnrchaser sluill be entitled to possession of the property sold, and to a bill of m MIXERAL ACT ho, £alc therefor signed by the auetioneer; such bill of sale shall confer such title upon the purchaser as the owner had. And for the pur- pose of carrying out the provisions of this section the Mining Re- corfler of the mining division in which the property to be sold is situate, or some one api)ointed l)y him, may act SiS auctioneer. lb. s. 88. •Derived from 1871, Rev. Laws, No. 90, ss. 83 & 84; 1884, c. 10, s. 102; 1888, Consol. Acts, c. 82, s. 118; 1891, c. 25, s. 89, with whch it is Identical, omitting all the words after "and for the purpo;e, etc.," on last line of p. 23, down to the end of section, which is original; the prin- ciple is qui scntit commodtiin scntirc debet ct onus. OS. - After a notice of abandonment in writing fc'hall have been sjrved on the foreman or manager of a partnership by any member tiicrcof, and duly recorded, such memljcr shall not be liable for any debts or other liabilities of the partnershi]) incurred after service and record of such notice, and no member shall be deemed to have al}an- doned an interest until service and record of such notic(\ Ih. s. Sd. ' Derived from 1871, Rev. Laws, No. 90, s. 85; 1884. c. 10, s. 103; 1888, Consol. Acts, c. 82, s. 119, and identical with 1891, c. 25. s. 90. OO. 8 I'pon the abandonment of any share in a mining partner- ship, the title to the abandoned share shall vest in the continuing partners, pru rata, according to their former interests, lb. s. 90. ' Derived from and identical with 1891, c. 25, s. 91. TO. ■* Any partner shall be entitled to sell, or contract for the sale of, his interest in the partnership property, but such interest shall continue liable *^ for all the debts of the partnership, lb. s. 9.1. * Identical with and derived from 1891, c. 25, s. 92. *' On the principle that qui scntit coitimoihim sciitirv dihct ct onus. 71. ° Xo partner shall, after a bill of sale conveying his interest has been recorded, be liable for any indebtedness of the partnership incurred tlioreafter. lb. s. 92. " Identical with and derived from 1891, c. 25, s. 93. lill' '; '■■•: ■ ! Limited Liabilily. T2. " Any mining partnership composed of two or more free miners may limit the liability of its members, upon complying with the requirements following, that is to say: — • Derived from 1871, Rev. Laws, No. 90, s. 86, which provided for the posting up in a conspicuous place the mime of the company, with the word " registered " instead of " limited liability "; 1884, c. 10, s. 105, ditto; 1891, c. 25, s. 94, with which it Is identical. 't .: ir , i: 558 BRITISH COLUMBIA I'pon filin.) A book to be known as the "Record of Abandon- ments:" (c.) A book to be known as the " Record of Alfidavits:" ((/.) A book to be known as the " Record of Conveyances." (c.) A book to be known as the " Record of Free Miners' Certificates." Ih. s. 107. ' ~ 87. ' r^pon receipt of an afTidavit setting forth a dotaiU statement of work, as required by section 24, the Mining Recorder shall issue a certificate of work in the Form E in the Schedule to this Act. Th. s. 108. • Identical with 1891, c. 25, s. 110. MINERAL ACT 5GI HH. 2 I'pon ii^wuiii^f siieli corlificate of work, tlic Mining Ko- toidor fhall file such atlidavit in llie Record of xVflidavits, and ali^o record sucli certificate of work in the liccord Book. lb. s. lOi). = Identical with 1891. c. 25. s. 111. H9. 3 I'pon receiving a certificate of inii)rovomcnts, the Min- ing Recorder sliall record tlie same verbatim in the Record Book. lb. s. 110. » Identical with 1891. c. 25. s. 112. 1>0. ' 'I'lu' Alining Recorder sliall record all extensions of time, licenses, permits, and other privileges granted by the Gold Commis- sioner or .Mining ]{ecorder, and all forfeitnres declared by the Ciold CVtmmissioner, and a memorandum of every judgment atfecting a mineral claim or other mining property, in the Record Book. ISDT, c. 28, s. 9. * Section 111, 1896; s. 9, c. 28, 1897; see 1891, c. 25, s. 113, from which it Is derived. in. ' Upon any Mining Recorder issuing a free miner's certi- ficate, or upon any free miner ap])lying to record any mineral claim, bill of sale, or other instrument, the Mining Recorder shall enter in the free miners' certificate book the ])articulars of such free miner's certificate, giving number of certificate, date, place of issue, and to whom issued, lb. s. 112. ° Original. OS. " IJ])on the receipt of a notice of abandonment, the Wm- ing Recorder shall record the same in the Record of Abandonments, and file such notice, and write across the record of the claim affected by such notice, in the Record Book, the word " Abandoned," and the date of the receipt by him of the notice. If only an interest in a mineral claim is abandoned, and not the entire claim, the memo- randum in the record shall show which interest is abandoned. lb. a. li:5. •Derived from 1891, c. 25, s. 114. f. V' 03. " The Alining Recorder shall record, liy copying out ver- batim all affidavits and declaratory statements required to be recorded in connection with his office, in the Record of Affidavits. lb. s. 114. ' Derived from 1891, c. 25, s. 115. 36- M 6G2 DRITISn COLViVniA 04. "The Mining Recorder slmli rocord, by copying out voi- batini, in tho Kocord ol" Conveyances, all conveyances, mortgages, bills of sale, contracts for sale, and other documents of title, includ- ing powers of attorney, or other authorities, to execute all or any of tho above descrii)tiou of documents when brought to him for that puri)ose. lb. s. 115, 'Derived from 1891, c. 25, s. 116. 9Si. " Tlie Alining liecorder shall record in the Record Book fill other documents relating to mining property which may he brought to him for record, and shall file all such documents which may be brought to him to be tiled. lb. s. 116. •Derived Trom 1891. c. 25, s. 117. 06. '" J'lvery entry made in any of the above books shall show the date on which such entry was made. lb. s. 117. "•Derived from 1891, c. 25, s. 118. 07. * All books of record and documents fded shall, during office hours, be open to public insj)cction free of charge. lb. s. 118. ' Derived from 1884. c. 10, s. 35; 1891. c. 25, s. 119. 05. 2 Kvery copy of, or extract from, any entry in any of the sa'd books, or of any document filed in the Alining llecordor's Oiru-c, cei tiffed to be a true copy or extract by the jMining Recorder, shall bo received in any Court as evidence of the matters therein contained. lb. s. 111). = Derived from 1871, Rev. Laws. No. 90, s. 32; 1884. c. 10, s. 36; 1888. Consol. Acts, c. 82. s. 48; 1891, c. 25, s. 120, wltli wliicli if is identical. 1>0. 3 I'pon receipt from the holder of a certificate of improve- ments of an application for a Crown grant in tiie proper form, and all moneys payable in respect of the claim for which a Crown grant i.s applied, the Gold Commissioner shall send such moneys, together with the undermentioned papers, to tho Chi6f Commissioner of Lands and Works: — ' Derived from 1891. c. 25. s. 121 and sub-sections, with these ex- ceptions, " Mining Recorder " on 4th line for " Gold Commissioner," and " Gold Commissioner " on 5th line lor " Chief Commissioner of Lands and Works," omitting " Form G " from 2nd sub-section, and for 3rd sub- section read " affidavit of the Provincial Land Surveyor"; also adding after sub-section this. (6) "an application for the Crown grant;" amended. 1893. c. 29, s. 12, identical. MISERAL ACT 603 (1.) The certificate of improvements: (2.) AfTidavit of the holder of the mineral claim, or his agent — Form G: (3.) A copy of the plat of the mineral claim: (4.) Tlie copy of the surveyor's original fielil-notes: (5.) ^Mining Recorder's certificate — Form I. Jl. s. 120. 100. * Upon receipt from the lessee of a mill-site of all the moneys and. documents mentioned in section 5G, the Mining Re- corder shall send the same to the Gold Commissioner. Ih. s. 122. * Derived from 1891. c. 25, s. 122, except figures " 57 " on second line. 101. " I?cfore issuing any free miner's certificate, or substituted certificate, or certificate of work, or makiri,T; any entry in any book of record, or filing any document, or making any copy or extract tlicrofroni, the Mining Recorder shall collect the fees payable in re- spect thereof. "Derived from 1891, c. 25. s. 123. Milling Divisions. 103. " It ^;ha]l bo lawful for the Licutenant-Oovernor in Council to divi(l or suhdivided into mining divisions, it shall he the duty of such Alining h'ecorder to make, or cause to hi- made, a transcript of all the entries in all the hooks mentioned in section 80, atTecting claims, mines or mining property situ- ate in each newly created mining division not held as real estate, and to forward the same to tiie Alining Kecorder of such mining division, and such transcri])t shall he kept in such oflice as part of the records of such oflice, and all transcripts of such records, certificates, documents, or other instruments shall prima facie he deemed to ho true copies of the several records, certificates, documents or other instruments of which they purport to he transcripts; and such transcripts or cojiies thereof, when certified hy the !^^illing IJecorder of the mining division in whose olTicc they are kejit, shall he admissilile in evidence in all Courts of iJudicatiire in this Province. 1897, c. 28, s. 10. 104. ** When there shall he no ^Mining Recorder for a district or division, the duties of the ^Mining Recorder shall devolve upon the Clold Commissioner, and it shall at all times he lawful for the Gold Commissioner to perform the duties of the ^Mining Recorder, and the (iold Commissioner shall have all the powers of a Mining Recorder. Ih. s. 12,"). ' Derived from 1891, c. 25, s. 127. 105. " The Mining Recorder's olTice shall he open upon such days and hours as the Lieutenant-Governor in Council may from time to time appoint, and failing any particular appointment shall l)e kept open upon all days, exccjiting pvihlic holidays, from 9 a.m. to .l/7.Vt7M/> ACT 5G5 4 p.iii. and siitli times shall bo iloomcil the ollico hours of such otRce. Jh. s. vm. » Section 126, 189G. derived from 1891, c. 25, s. 128, reading " 10 a.m." for " ii.m." on 4th line. Tart V. (K)LU COMMISSIONERS. Appiiinlnieiil and Miiiislcridl I'owcrs. lOO. '" Tliu Jiieutouaiil-dovL'rnor in Council may from timo to time appoint such persons as ho shall think i)ropur to bo rospoclively C'hicf CJold C'ommissionor and (jold t'ominissionors, oitlior for the uliolc I'rovinoo or for any particular districts therein, and from timo to time in like manner lix and vary the limits of and sul)divido such districts, and make and revoke all such appointments. ('. A. 1888, c. 8", inclusive, repealed by lS!»r, c. 2S, s. li). I Worliintj of Mines or Claims, and other Powers. lOH. - 'Vhv (iold rommissioner may, in his discretion, i>ermit a free miner to re-locale a mineral claim, or any ])art thereof, which may have been abandoned or forfeited by such free niiiUM" Provided 566 BRITISH COLUMBIA that such re-locations shall not prejudice or interfere with the rights or interest of others. Ih. s. I.'?'). 'Derived from 1891, c. 25. s. 139. lOO. 3 'J'he (iohl Commissioner may mark out a space of ground for deposits of leavings and deads from any tunnel, claim, or mining ground, upon such terms as he may think ji'st. lb. s. 1,'5G. 'Derived from 1891, c. 25, s. 140. 110. •' The (Jold Commissioner shall have the power to sum- marily order any mining works to he so carried on as not to interfere with or endanger the safety of the puhlic, any puhlic work or high- way, or any mining properly, mineral claims, mining claims, bed- rock drains, or bed-rock flumes; and any ahandoned works may hy his order be either filled up or guarded to his satisfaction at the cost of the parties who may have constructed the same, or, in their ab- sence, upon such terms as he shall think fit. Jh. s. 137. • Derived from 1891. c. 25, s. 141. 111. ""' Xotwithstanding anything contained in tlie " ("lold Min- ing Amendment Act, is?;]," or in any Crown grant issued under the said Act, or under this or any other Act, it shall be lawful for the CJold Commissioner, in his discretion, and with or without any terms or conditions, to allow to the owners of mineral claims all such rights or piivileges in and over mineral or other claims held as real estate as may be allowed in and over claims not so held; and owners of claims held as real estate shall he entitled to the same rights and privileges as owners of claims not so held. lb. s. 13S. ' Derived from 1891. c. 25. s. 142. 113. •* Tpon receiving an application for a mill-site from any free miner, and upon proof being furnished to his satisfaction of the non-miiieial cliaracter of the land ap|)licd for, and the deposit in dup1i(afe of a plat of said land, and u])on proof In aflidavit that the applicant has complied with the ree written or printed on all Fummonses, writs and other process, and all other documents in every action or cause brought under the mining jurisdiction of i'..^ County Court. Jh. s. lb"). In substance samp as 1884. c. 10, s. 9; 1891, c. 25, s. 150, is Identical. Burk V. Ttmstall, (1890) 2 B. C. R. 12. (Drake, J.) It Is competent to the Provinco to create Mining Courts and to fix their jurisdiction, but .not to appoint any officers thereof with other than ministerial powerw. This was jin application for a writ of prohibition against George Tiinstali to restrain him as Gold Commissioner for West Kootenay from further proceeding in an action brought in his Court under powers MINERAL ACT 5T1 given to him aa a Gold Commissioner sitting aa a Judge in a Mining Court under section 11 of the Mineral Act, 1888. In Atkins v. Coy, (1895) 5 B. C. R. 10. Wnlkem, J., in giving judg- ment for the Court, decided the Full Court has upon an appeal com- plete jurisdiction, under section 29 of the Mineral Act, 1888, which pro vided that "An appeal shall lie from any judgment of a Mining Couit or of a County Court in a mining cause to the Supreme Court at Vic- toria, sitting as a Full Court," etc., over the whole subject, and power to grant a new trial, as an alternative, whether moved for or not, and said, p. 11: "The policy of the Act is the same as that of the Judica- ture Act, and of Order LVIII., Rule 6, that a judgment of a Court of Appeal should cover the whole subject." By section 29 of the Mineral Act, C. S. B. C. 1888, the Supreme Court of British Columbia " can hear dc iiavo, order a new trial or enter up a new judgment fur one or other of the litigants." Per lirake, J., Atkins V. Coy, (1897) 5 B. C. R. at p. 19. The provision in this section, that appeals from judgments of Min- ing Courts "may be in the form of a case settled and signed by the parties," is not imperative, but such appeals may be brought in the same form as in ordinary cases. Kinney v. Harris, (1897) 5 B. C. R. 229. 111>. County Courts and County Court Judges, Registrars, Slie- rilTs, and otlier oflicers, shall have the same duties, powers, ])rlvi- leges, and authorities in all actions and suits, and other proceedings brou<;ht under the mining jurisdiction of the County Court, as they now have, or at any time hereafter may have, in actions and suits and other proceedings brought under the ordinary jurisdiction of the County Court, and the provisions of all Acts for the time being ill force regulating the duties and powers of County Courts and County Court Judges, Registrars, Sheriffs, and other oflicers, and regulating the practice and ])roeedure in County Courts, and all Rides and Orders for the time being applicable to the ordinary juris- diction of the County Court, shall, so far as practicable and not in- consistent with tliis Act, apply to the mining jurisdiction of the County Court, lb. s. IKi. ii 'm W ■■!':■ :'f Mi' !''i III SI 130. Where disputes arise concerning mining property, portions whereof aie situated in adjoining or different districts, the County Court of cither of such districts before which the dispute is first brought shall determine it, Ih. s. 147. l!21. The licaring of any summons, plaint, or other ]U'ocess in any County Court shall not be deferred beyond the shortest reason- able time necessary in the interests of all parties ooneorned. and it BlilTIBH COLUMBIA shall be lawful for the Registrar to make summonses or other pro- ceedings returnable forthwith, or at any other time. lb. s. 118. 12S. In all mining actions or suits the Court nuiy decitle tiic qncstion at issue upon the ground in disi)ute, and such decision shall be entered as in ordinary cases, and have the same virtue and effect as if rendered in Court. lb. s. 149. 1S3. In any mining cause or suit, eitlicr party may require that the issnes of fact siiall be tried l)y a jury, and the Judge may, before delivering judgment in any action, suit, or other proceeding, direct all or any issues of fact to be found l)y a jury. lb. s. 150. 134. In all actions, suits, and other proceedings within the mining jurisdiction of the County Court, the Judge may order that costs be taxed on the higher or lower scale allowed by the County Court Kuks; or if lie sball consider the case of sufTicient im])ortance, he may order tiiat costs be taxed as in the Supreme Court, aud the costs so ordered shall be tlie costs recoverable in such action, suit, or other jiroceeding. Jb. s. 151. 135. Kvery County Court having jurisdiction in mining dis- ]Mites shall, witli reference to real estate luhl under the "Cold Min- ing Amendment Act, 18v3,'" or under this Act, and notwithstanding any law to the contrary, liavc the same powers and authorities to decide all matters or disputes arising l)etwcen the owners thereof, or between the owners thereof and any third jierson, or between mining joint stock companies, or between shareholders therein, or l)elween them and the comi)any, in the same way and as fidly as it might do concerning claims not being real estate; and actions, suits, and other proceedinf;s relating to such matters or disputes shall be l)rought and had in the same nuuiner as actions, suits, or proceedings relating to mining claims not being real estate. lb. s. 152. 126. Any County Court Judge having jurisdiction in mining causes, may direct the issuing of writs of ntpln.^ ad rcsponikndinn, 111' exc'il rcfiiin, and special orders for the arrest and detention of a judgment debtor in all cases in which by law he has jurisdiction over the subject-matter of the suit, but under and subject to sucli condi- tions as a Judge of the Su])reme Court might usually reciuire in applications of a similar nature. //;. s. 153. ii H; i ; 'i)t-W''l MINERAL ACT 5T3 IST. The owner of a mineral claim who has had his claim sur- veyed witliin one year from the date of tlie record of the claim, or if tlie claim was recorded hefore tlio passing of tliis Act, then if surveyod l)efore the first day of May, 189!), and has filed in the otlicc of the Mining Recorder in the mining division in which the claim is situ- ated, a declaration hy a Provincial Land Surveyor, stating tiiat he has surveyed the claim as required in sub-section (r) of section 30 of " The ^Mineral Act," and that he has delivered two ])lats of the claim and a copy of the original iield notes to the owner of such claim, then the owner of sucli claim shall l)c entitled to have the cost of sucli sur- vey, not to exceed one hundred dollars, counted as work done on the claim. (" The Mineral Act Amendment Act, 1898," s. 10.) ^!" 13S. The owner of a mineral claim (located on waste lands of the Crown, or on lands not already occupied for otiier than mining pur])oses) for which a Crown grant has issued or may hereafter issue, shall, so long as the surface rights thereof remain in the Crown iin- encundjered and unreserved, he entitled to receive a Crown gr.ant of such surface rights, on payment to tlie Clovcrnment of British Colum- hia of the sum of five dollars per acre for such land, and a fee of five dollars for the Crown grant. (" The Mineral Act Amendment Act, 1898," s. 12.) il! 130. When a lode is supposed to cross a valley or under an alluvial deimsit, and where such lode is indicated hy its appearance on the side of the mountain leading into such valley, any free miner upon making a sworn statement before the ^fining Eecorder or Gold Commissioner of tlie District that there is a lode which has indica- tions of running through and under such alluvial de))osit, shall be entitled to a i)ermit for three months to search for such lode over the area of a mineral claim, with the privilege of having such per- mit extended, on his proving to the satisfaction of the Cold Com- missiimer that he has bona fide searched for such lode and has o>c- peudi'd, either in cash or labour, or both, not less than one hundred dollars in such search. During the existence of such permit the ground covered hy the same shall not be open to record by any other miner. The fee for such ])ermit, and each renewal of the same, shall be the same as the fee for a record. 1897, c. 28, s. 13. ' Itr l!tO. No free miner shall be entitled to any interest in any mineral claim which has been located and recorded hv anv other free 574 BRITISH COLUMBIA miner imlcss such interest is specificil and set forth in some writing signed by the party so locating such claim. 18!)7, c. 28, s. 14. 131. If any person shall in any suit or matter claim an adverse right of any kind to the mineral claim comprised in any record, or to any i)art thereof, or shall claim that any record is invalid, or has been improperly obtained, or that the holder thereof has not com- plied witli tlie ])rovisions of the Act under which the location and record were made, or has not prior to tlio obtaining of sucli record made a good and valid location of such mineral claim according to law, the onus of ])roof thereof shall be on the person so claiming an adverse right, or so claiming that such record is invalid and has been iuii)roi)er]y obtained as aforesaid, and in default of such ])ro()C judg- ment shall be given for the holder of su(!h j)rior record in so far as such action, suit or matter relates to any of tlie matters aforesaid. 1897, c. 28, s. 15. 133. Notwitlistaiiding the repeal of any Acts relating to mineral claims, or tlie saving clauses of any such repealing Acts, all such repealing Acts shall bo deemed to have contained provisions declaring the holders of records of mineral claims entitled to apply for Crown grants tliereof under tlio provisions of tlic law in force at the time of such applications, and that the procedure upon any such applications shall be that i)rescribcd by the Statutes in force at the time of such ai)i)lications, the grants thereafter vesting in the holders such riglits as were declared by the Statutes in force at tlie date of record of such mineral claims: Provided, however, that notliing con- tained in this section shall impair or in any way restrict the rights and privileges conferred on owners of mineral claims by the preceding section of this Act. 1897, c. 28, s. IG. 133. All Crown grants heretofore issued to tlie iu)lders of mineral claim records shall be deemed to have been validly issued so far as relates to the procedure ujion the application to obtain same, if in the application therefor the holder thereof observed either the procedure prescribed by tlic Statutes in force at the time of the record of such mineral claims, or the ju'ocedure prescril)ed by the Statutes in force at the time of the applications for Crown grants thcreor. 1897, c. 28, s. 17. 134. Xothing herein contained or enacted shall affect any litiga- tion pending at the time of the passage of this Act. 1897, c. 28, s. IS. MiyERAL AW 575 1»», Sections 5, 0, 13, 19, 20, 22, 27, 28 niul 2!) of the " Mineral Act" l)eing diaptcr 82 of the " Consolidated Acts, 1888," are hereby repealed. 18!)7, c. 28, s. 21. iV h rAKT VII. Penal and Miscellaneous. 136. Any jierson wilfully acting in contravention of this Act, or refusing to obey any lawful order of the (jold Commissioner or of any Judge presiding in a Court shall, on conviction thereof in a sum- niary way before any two Justices of the Peace or a Stipendiary Magistrate, or before any Judge of a Court having jurisdiction in mining disputes, be liable to a line not exceeding two hundred and fifty dollars, or to imprisonment, with or without hard labour, for any term not exceeding three months, lb. s. 154. 1JI7. All fines and penalties imposed or payable under this Act may be recovered by distress and sale of any mining or other persoiuil property of the ofl'ender; and in default of sufficient distress by im- prisonment, with or without hard labour, not exceeding three months. 11). s. 155. IJJS. All fines, fees and penalties collected under this Act shall be paid into the Consolidated llevenue Fund of British Columbia. lb. s. 15G. ]!tO. Xothing herein contained shall, save where such intention is expressly stated, be so construed as to affect prejudically any min- ing rights and interests acquired prior to the ]iassing of this Act; and all mining rights and privileges heretofore and hereunder ac- quired shall, without the same being exi)ressly stated, be deemed to bo taken and held subject to the rights of Tier Majesty, Iler heirs and successors, and to the public rights of way and water, lb. s. 157. 140. Kvery free miner, on application to the Alining Recorder of the district, shall be entitled to a printed copy of this Act on pay- ment of the sum of twenty-five cents. lb. s. 158. : ( I ' crc HIUTI^n COLVMlilA 141. AITidavits and declarations made under tlie provisions of this Act shall be made bel'ore some Judge or Registrar of a Court of l?ecord, or before some Cold Commissioner, Mining Jiecorder, Stipen- diary Magistiato, Justice of the IVace, ^'otary I'ublic, or Commis- siioner for taking aiVidavits. Ih. s. 15fl. 142. Tiic Alinister of Klines and the Provincial Inspector or Mineralogist shall have the right to enter into or upon and examine any mineral claim or mine within the meaning of this Act. Ih. s. IfiO. Exiles and licguMions. 143. The Lieutennnt-Ciovernor in Council may make sucli orders as are deemed necessary from time to time to carry out (lie provisions of this Act according to their true intent, or to meet the oases which may arise and for which no jirovision is made in this Act, or when the provision which is made is ambiguous or doubtful; and may also make regulations i'or relieving against forfeitures arising under section !» of this Act; and may further make and declare any regidations which are considered necessary to give tiie provisions in this clause contained full elTect; and from time to time alter or revoke any order or orders or any regulations made in respect of the said ])rovisi()ns, and make others in their stead; and further impose penalties not exceeding two hundred dollars, or not exceeding three montlis' imprisonment, for violation of any regulations under this Act; and further provide that any statement or n^turns required to be made by said regulations shall be verified on oath. Every order or regulation made l)y virtue of the provisions of this section shall have force and etVect only after the same has been jmblishod for two successive weeks in the liritish Columbia Gazette; and such orders or regulatifms shall be laid before the Legislative Assembly within the first fifteen days of the Session next after the date thereof. 76. s. 101. Taxalion of Mines and Moneijs Invested Therein. 144. Xotwithstanding' anything contained in this Act, mines and moneys invested therein shall not be ('xem])t from taxation, but f^hall bear such rate as may be imposed by any law in the Province. Ih. s. 1G2. MIXEUAL ACT lAH. 'Vhvw sliiill 1)0 levied mid collcf.'tecl from the ow ncr or occiipior ol' every luinernl or plaeer elaim of wliicli a Crown grant has isstied, incUidini; Crown grants isisued under authority of an Aet made and passed in the ;{(itli year of Her ^Tajesty's reign, iii- titnlod "An Aet to amend the MJold Mining Ordinance, 1S()T,' and the ' Gold Afining Amendment Act, 1878,' " an annual tax of twenty- five cents for every acre and fractional part of an acre of land con- veyed Ity the grant, payai)ie on the thirtietli day of dune in each year. Sucli tax shall form a charge upon the claim, 'riio Assessor appointed under or by virtue of any existing Assessment Act, or any Collector appointed under the " Provincial IJevenue Tax Act," is hereby aiithorized, as to the nuneral or placer claims situate within the district for which he is appointed, to collect and receive the tax. In the event of the tax not being paid to the Assessor or Collector, the Gold Commissioner may in his discretion cause the claim upon which tlic tax is charged to be olfcred for sale by [)ultlic auction, of which sixty days' notice shall be ])osted upon the principal Court House of the district in which the claim is situale, and in one neus- pajier, if any, published in such district, and may sell such claim, reeeive the jiurchase money, and execute a conveyance thereof to the pnrchaser. 'J'he purchase money shall be applied in payment of the expenses of advertising and the payment of the tax, and any sur- plus shall be paid iido the Treasury in trust for tiie owner of the claim. In the event of there l)eing no purchaser, or if the price of- fered shall not be snilicient to pay the tax and expenses of advertis- ing, the lanil shall absolutely revert to the Province, and the Crown grant thcre(d' shall be deemed void. The Assessor or Collector may, before offering the claim for sale, sue the owner or occnpier for the tax, in a sumniary manner, hoforc any Jnstice of the Peace, who may adjudge the same to be paid; and in default of payment the amount due, together with costs, nniy be recovered by distress of the goods and chattels of the jierson against whom the tax may be recovered: Provided, that if the owner of any such mineral or jdacer claim shall establish, to the satisfaction of the Gold Commissioner, Alining Kecorder, or Assessor and Collector of the district in which the claim lies, that the sum of two hundred dollars has been expended thereon in labour or improvements in any one year, then the tax shall not be levied in respect of such claim for such year. Th. s. 1^3. 140. Where a claim has been recorded under any name, and the owner or his agent is desirous of changing the same the Kccordcr 37 -M i; '•;! 578 lilUTmn COLUMBIA of said mining division may, upon application being nindo by siieli owner or ngent, rnd upon payment of n foe of twenty-fivo dollars, amend the record accordingly: Provided, however, that such change of name sliall not in any way affect or prejudice any proceedings or execution against the owner of the said claim. Ih. s. Ki-i. 147. Whenever through llio ads or defaults of any person other than the recorded owner of a mineral claim or his agent by him duly authorized, the evidence of the location or record on the ground, or the situation of a mineral claim, has been dcslroycd, lost, or elTaccd, or is difllcult of ascertainment, nevertheless, effect shall be given to same as far as possible, and the Court shall have power to make all necessary enquiries, directions and references in the premises, for the purpose of carrying out the object hereof, and vest- ing title in the first lona fide acquirer of the claim. Ih. s. 1(55. Part VIII. Repealing Clause. 14S. The Acts and parts of Acts mentioned in this section shall stand repealed and be rei)caled; but such repeal shall not be deemed to imply that any of the said Acts or parts of Acts which have been repealed at any time prior to the passing of this Act have been in force since such repeal: Provided further, that such reijcal shall not affect any rights acquired, or any liabilities or penalties incurred, or any act or thing done, under any of the said Acts or parts of Acts: — The " :Mincral Act, 1891," the " Mineral Act (1891) Amendment Act, 1892," the "Mineral Act (1891) Amendment Act, 1893," the " Mineral Act Amendment Act, 1891," and the " Mineral Act Amend- ment Act, 1895," are hereby repealed. Ih. s. 106. XoTE. — For the law relating to the acquisition of water rights, see " Water Clauses Consolidation Act, 1897." R. S. B. C. 1897, c. 190, See Appendix I. For Forms referred to in this Act, see Appendix II. n mSHUAL ACT hVJ AN ACT TO A^[HNI) '-THM MIXMHAL ACT." It. s. r>. ('. (Isd;), I'liiipUT i;;:.. Hl']l{ ^[A.IMSTY, l)y and witli Ur' lulvico and consent of thu I.('ost lawfully erected, planted, l)laced or standing, to mark the boundaries or locatii)n of a mineral claim, or any writing by law required to be thereon, 17. On the passage of this Act, the Chief Commissioner of Lands and Works shall at once cause the duplicate field notes of the surveys of all mineral claims to which Crown grants Invo been issued, or may hereafter be issued, to be filed, for reference, in the office of the ^Mining Recorder in th'^ mining division within which the mining clai'Ks are situated. THE VLACbUl MINING ACT 581 BRITISH COLI'MBIA. CIIArTEK XIV. (llcvised Statutes of British Columbia (1897), Chapter 13G.) An Act relatiuff to I'lacer ^liucs (as amended by " The Placer Mining Act (1891) Amendment Act, 1898." HER MAJESTY, by and with the advice and consent of the liC.Liislative Assembly of the Province of British Columbia, enacts as follows: — 1 i"!t. Short Tilk. 1. This Act may be cited as " TIio Placer Mining Act," 1891, c. 2(i, s. 1. Interpretation. 2. ^ In the construction of tliis Act the following expressions shall have the following meanings respectively, unless inconsistent with the context: — ' 1896, c. 35. s. 2. "Mine," "placer miiu'," and "diggings'' shall be synonymous terms, and shall mean any natural stratum or bed of earth, gravel or cement mined for gold or other i>recious minerals or stones; " Placer claim "' shall mean the personal right of ju-opcrty or in- terest in any jdacer mine; and in the term "mining prop- erly " shall be included every i)lacer claim, dilcli, or water I 582 BRITISH COLUMBIA right used for ])lacer mining purposes, and all other things belonging thereto or used in the working thereof. Placer claims shall be divided into creek diggings, bar diggings, dry diggings, bench diggings, and hill diggings; " Creek diggings " shall mean any mine in the bed of any river, stream, or ravine, excepting bar diggings; " Lar diggings " shall mean any mine over wliich a river extends when in its flooded state; " Dry diggings " shall mean any mine over which a river never extends; "" ]3eneh diggings" shall mean any mine on a bench, and shall, for the purpose of defining the size of a claim in bench dig- gings, be excepted from "dry diggings"; " Hill diggings '' shall mean any mine on the surface of a hill, and fronting on any natural stream or ravine; " Precious stone diggings " shall mean dei)osit of precious stones, whether in veins, beds, or gravel deposits; ''Streams and ravines" shall include all natural water-courses i wliethcr usually containing water or not, and all rivers, '^** ' Creeks, and gulches; "Ditch" shall include a flume, pipe, race, or other artificial means for conducting water by its own weight, to be used for mining purposes; '' Ditch head " shall mean the point in a natural water-course or lake where water is first taken into a ditch; "Free ]\Iiner" shall mean a ]H'rson, or joint stock company, or foreign company named in, and lawfully possessed of, a valid existing free miner's certificate, and no other; " Legal post " shall mean a stake standing not less than four feet above tlie ground, and scpuired or faced on four sides for at least one foot from the to|), and each side «o scpiared or faced shall measure at least four inches on its face so far as P(iuared or faced, or any stump or tree cut ofT and s(piared or faced to the above ln'ight and size; THE PLACER MINING ACT 5S3 " Record," " register," and " registration," shall have the same meaning, and shall mean an entry in some official book kept for that purpose; " Record," when used without qualifying words showing that iv different matter is referred to, shall be taken to refer to the record of the location of a placer claim; " Full interest " shall mean any placer claim of the full size, or one of several shares into which a mine may be equally divided; " Close season " shall mean the period of the year during which placer claims in any district are laid over by the Gold Coju- niissionor of that district; "Cause" shall include any suit or action; " Judgment " shall include " order " or " decree;" " Real estate " shall moan any placxT mineral land held in fee simple; "Joint Stock Company" shall mean any company for mining purposes: (a) Incorporated under the " Companies Act, 1897," or any Act repealed thereby; or (b) registered as a foreign comi)any under any Act repealed by the " Companies Act, 1897; " or {e) licensed or registered as an extra Provin- cial company under the " Companies Act, 1897; " or (d) in- corporated by any special Act. 1896, c. 35, s. 2, and 1897, c. 2d, s. 3. !-■ k im^ I. : M- Part I. r, Free Miners, and their Privileges. it. luerv person over, l)iit not under, eighteen years of age, and every joint stock company, shall be entitled to all the rights and privi- leges of a free miner, and shall be considered a free miner, upon taking out a free minor's certilicate. A minor who shall become a free miner, shall, iis regards his mining property and liabili*="s contracted in connection therewith, be treated as of full age. A free miner's 584 lilUTIfiU COLl'MIilA certificate issued to a joint stock company sliall be issncd in its cor- porate name. A free miner's certificate shall not be transferable. 1891, c. 26, 6. 3. 4. A free miner's certificate may be granted to a free miner for one or more years to run from the date thereof, or from the expiration of the applicant's then existing certificate, and to a joint stock com- pany for the period ending on the 30th day of June, after the issue of the certificate, next ensuing, upon the payment therefor of the fees set 0-..C in the Schedule of Fees to this Act. Only one person or one y,int stock comjjany * shall be named therein. 18!)1, c. 2G, s. 4; 1897, (. 2, 6. 161. ' Notwithstanding anything to the contrary in section 4 of the " Mineral Act, 1896," or section 4 of the " Placer Mining Act, 1891," or elsewhere in the said Acts, or other the mining laws of the Province, no free minor's certilicate shall be issued to a joint stock company for a longer period than one year, and such certificate shall date from the 30th day of June in each year; and every free miner's certificate held by a joint stock company at the passing of this Act shall be valid and existing imtil and shall expire on the 30th day of June, 1897. Upon applying to renew any such certificate on or before said 30th day of June, the joint stock company shall be entitled to a rebate of a proportionate amount of the fee paid for a certificate heretofore issued, according to the further time for which it would, but for this section, have been valid. See 1897, c. 2, s. 161. a. A free miner's certificate shall be in the following form: — British Columbia. Free Miner's Ccrli/icdle. NOT TKAXSFKKAHM-;. Date, Valid for This is to certify that this day the sum of ]irivilt'gos of a free minor, for of , 18 . Xo. year only, of has paid ma , and is entitled to all rights and year from the day (Signature of Ciold Comniissinnor or 'Mining Re- corder, as the case may be.) 1891, c. 20, s. 5. THE PLACER MIXIXG ACT oS,-) ii. If niiy jxM'son or joint stock company sliall a|)i)ly for a frco minci*'s certificate at the .Mininp; I?ecor(]er''s ofTicc during liis absence, and sliall leave the fee recjuired by this Act with the oiTiccr or otlier person in charge of the said oiTicc, he or it shall be entitled to have snch certificate from the date of such a])plication; and any free minor shall at any time be entitled to obtain a free miner's certificate com- mencing to run from the expiration of his then existing free miner's certificate, ])rovidcd that when he a])plies for such certificate he shall ])roduce to the Mining Recorder, or in case of his absence, shall leave with the officer or other person in charge of the Mining Eecorder's office, such existing certificate. 1891, c. 2Ct, s. (i. T. If any free miner's certificate be accidentally destroyed or lost the owner thereof may, on payment of the fees set out in tlio Scliediile to this Act, have a true copy of it, signed by the ]\nning Recorder, or other person by whom or out of whose office the original was issaed. I'lvery snch co])y shall lie marked " substituted certificate;"' and unless fiomc material irregularity be shown in respect thereof, every original or substituted free miner's certificate shall be evidence of all matters therein contained. 1891, e. 2C), s. 7. H. Every ])erson and joint stock conijiany engaged in ]dacer min- ing shall take out a free miner's certificate, and any |iersi)n or joint stock company who mines or works as a miner in any ])lacer (laini, or on any bed-rock fiumo, drain or ditch, without having taken out and obtained such certificate, sliall, on conviction thereof in a summary way, forfeit and pay a penalty not exceeding twenty-five dollars, bo- sides costs: Provided, always, that nothing herein contained shall prejudice the right to collect wages or payment for work done by any ]-ierson or company, who. through not being a free miner, has rendered himself or itself liable to the above penalty. 1891, c. 20, s. 8. «. Xo ])erson or joint stock company shall be recognized as having any right or interest in or to any placer claim, mining lease, led-rofk Hume grant, or any minerals in any ground comprised there- in, or in or to any water right, mining ditch, drain, tunnel, ov Ihimc, unless he or it shall have a frt'e nlinel•*^ eertilieale unexpiicd. And on the expiration of a free miner's certificate the owner tliereof shall alisolufely forfeit all his rights and interest in or to any i)lac}r claim, mining lear.e, bed-rock Hume grant, and any minerals in any j.Tound comprised therein, and in or to any and every wafer right, mining ditch, drain, lunnel, or Hume, which may be held or claimed by such titi ' I I ^k^*L' iSS BSB 58G BRITISH COLUMBIA owner of such expired free miner's certificate, unless such owner shall, on or before the day following the e.\i)iration of such certificate, ob- tain a new free miner's cortincate: I'rovided nevertheless, should any co-owner fail to keep up his free miner's certificate, such failure shall Jiot cause a forfeiture or act as an abandonment of the claim; but the interest of the co-owner who shall fail to keep up his free miner's cer- tificate shall, ipso facto, be and become vested in his co-owners, pro raid, according to their former interests: Provided, nevertheless, that a shareholder in a joint stock company need not be a free miner, and, though not a free miner, shall be entitled to buy, sell, hold, or dis- pose of any shares therein: And provided, also, that this section shall not ap])ly to placer mines for which a Crown grant has been issued. 1M»5, c. 40, s. 2. Provided, always, that if any jjcrson or company shall acquire, by i)urchase or otherwise, any mine or placer claim, or interest therein, and it shall ajipear that some person or company througli M honi lie or it claims title has neglected to take out or keep up a free miner's certificate, according to the provisions of this Act, such per- son or company so accpiiring such mine or placer claim, or interest therein, may, within one month from tiie lime when he or it shall first acquire knowledge thereof, or if knowledge already acquired within one month after this Act becomes law, pay to the Kecorder of the mining division in wliicli the claim all'ected is situate the fee or fees which ought to have been paid by such person or company in default as aforesaid, and thereupon tlie title of such person or com- ]>any so acipiiring the said mine or placer claim, or interest therein, shall be deemed to be and always to have been as good and eifectual as if no such default had occurred; but this last proviso shall not affect litigation pending at the passage of this Act. ("The Placer Alining Act (18'J1) Amendment Act, 1898," s. 2.) lO. Every owner of a ihine or placer claim, and every contrac- tor for the performance of any work upon a mine or placer claim, shall ])ay the annual fee for a free miner's license for any ])erson in their employment and liable for the fee, and may deduct the amount so paid on account of such person from the amount of salary or wages due or io become due to him from such employer upon production and delivery ol' the receipt for siu'h tax to such i)erson. Kvery sueli owner or contractor shall furnish io the Mining Recorder or CoUec- lor. when re(piested by him so to do, from time to time, a list of all persons in his em])loy, or indirectly employed by him, liable to pay THE PLACER MINiyO ACT the said license fee; but no such statement shall bind the Kecnrder or Collector, or excuse him from making due enquiry to ascertain its correctness. (2) If any person fails to pay the said license fee for his em- ployees, or to deliver to the IJecorder or Collector the list nientionod ill the preceding section when required to do so, or knowingly states anything falsely in such list, such person shall be liable to a penalty not exceeding one hundred dollars, to be recovered, together with the amount of the unpaid license fees, upon summary conviction before one Justice of tiie Peace. 1895, c. 40, ss. 10 and 11. 11. Kvery free miner shall, during the continuance of his certifi- cate but not longer, have the right to enter, locate, prospect, and mine for gold and other precious metals upon any lands in tlie Province of r)ritish Coltunbia, whether vested in the Crown or otherwise, except upon Covernment reservations for town sites, land occupied by any building, and any land falling Mithin the curtilage of any dwelling house, and any orcluird, and any land lawfully occupied for placer mining purjioses, and also Indian reservations. 1891, c. 2G, s. 10. 13. Previous to any entry being made upon lands already law- fully occupied, sucli free miner shall give ade([uato security, to tlie satisfaction of the Cold Commissioner, for any loss or damage which may lie caused by such entry; and after such entry he shall make fidl com|iensati(m to the occu])ant or owner of sucb lands for any loss or damage which may be caused by reason of such entry; such compen- sation, in case of dispute, to be determined by a Court having juris- diction in nuning disputes, with or without a jury. ISJH, c. 20, s. 1 1. IJl. .\iiy free miner shall be at liberty at any period of the year, while actually prospecting or engaged in mining, to kill game for his own use. 1S91, c. 2(5, s. 13. 11. A free miner shall have all the rights and privileges granted to free miners bv the " Mineral Act, 189fi." 1891, c. 20, s. It. ;i H'ii ; i ['A P.\RT IT. SIZE AXD XATt'UE OF TLACKR rr.AIMS. li$. Every free miner shall be entitled to locate and record a ilacer claim on each separate creek, ravine, or hill, Imt not move than m-^ ^^^^^g 588 BRITISH COLUMBIA two claims in tlio smno locality, only one of which shall he a creek claim, lie sliall he allowed to liold any lunuher of placer claims by ]mrchase, and every free minor may soil, mort00 THE PLACER MIXING ACT 5iSl» To a party of throe discoverers, three chiiiiis, aiiioimtiiig together to SOU IVet in k'ligtii; To a party of J'our discoverers, four ch^ims, amounting together to 1,0(10 " " And to each nieniher of a party heyond four in number, a cU\im of tlic ordinary size only. A creek discovery claim sliall extend on each side of tiie centre of the creek as far as the snniuiit of tiie hill, but not exceeding 1,000 feet. ISOl, c. 2(i, s. 17. IH. A lu'w stratum of auriferous earth, gravel, or cement, situ- ated in a locality wliere all placer claims are abandoned, shall bo deemed a new nunc, althougji mines in the same locality shall have been previously worked; and dry diggings discovered in llic vicinity of bar diggings shall be deemed a new mine, and vice versa. A dis- coverer's claim shall be considered as one ordinary claim, in respect to recording, working, and representing. 1891, c. 2(3, s. 18. HI. in defining the size of ])lacer claims they shall be measured horizoidally, irrespective of inequalities on the surface of the ground. 181)1, e. 2G, s. IV. :, Lucitliiuj, Iiccordiiifj, Ue-recordinij, ]Vorh-iii(j, and Lcni-overs. 20. Every placer claim shall be as nearly as jjossible rectangular in form, and marked by four legal posts at the corners thereof, firndy fixed in the ground. One of such ])osts shall be nuirked as the " in- itial post,"' and on that ]u)st shall 1)0 ])laced a legible notice in writing, stating tiie name of the claim, its length in feet and general direction, with the date of the notice and name of each locator. If any side line of any claim shall exceed 100 feet in length, legal posts shall be placed along such side line, at distances not exceeding 100 foot. 1891, c. 2G, s. 20. 21. Any location made u])on Sunday or any public ludiday shall not for that reason Ije invalid, any law or statute to the contrary 1891, c. 26, s. 31. notwithstanding, 590 Uh'ITISlI VOLVMlilA 2Si. Ill I'liso of any dispute) as to tlio titio to a placor clnim, tlio title to the claim t^liall be recognized according to the priority of siidi location, subject to any (juest ion as to the validity of the record itself, and subject fiirliu'r to tiie free miner having complied willi all tho terms and conditions of this Act. 18U1, c. 20, s. 28. 2tl. Every free miner locating a placer claim shall record the snmo with the Alining Recorder of the district or division within which tho same is situate, witiiin three days after tiie location thereof, if located within ten miles of tho olliee of the said Mining Kecorder. One ad- ditional day shall he allowed for making such record for every addi- tional ten miles or fraction thereof. Such record shall be made iu.ii book to be kept for the purpose in the olliee of the said Mining Re- corder, to be known as the " Kecord Book," in which shall be inserted the name of the clnim, the name of each locator, the number of each locator's free miner's certiiicate, the locality of the claim, its length in feet, the period for which such record is granted, the date of loca- tion, and date of the record: Provided that a free miner shall not bo ciitith'd to a record of a claim until he shall have furnished the .Min- ing Kecorder with a written statement of tho above particulars. 181)1, c. 2C, s. 23. 34. After the recording of a placer claim, the removal of any post by the holder thereof, or by any person acting in his behalf, made for the purpose of changing tho limits of his claim, shall act as a for- feiture of the claim. 18!)1, c. 2G, s. 24. 2*5. rpon the establishment of a mining division and the opening of a ^Mining Kecorder's ofliee therein, under the authority of this Act, Biich ofliee and none other shall be the proper olliee for recording all ]ilacer claims within such mining division, aiul making all records in restieet thereof. 1801. c. 2C), s. 25. 2«. Tf through ignorance any free miner shall record a idacev claim in a difTerent mining di-.ision to that in which such claim is Fituate, such error shall not affect liis title to such claim, but ho shall within fifteen days from the discovery of his error, record snch claim in the mining division in which it is situate, and such new record shall bear the date of the first record, and a note shall be made there- on of the error and of the date of the rectification of the same. 181)0. c. .^■^ s. I. THE rh\ri:i{ Miyixa a ]ieriod for which such re-record is granted; (fi) 'i'lic date of the re-record. 181)1, c. 2(5, s. 28. 20. If a free miner shall ai)ply for a record, and shall make such application at the Mining Recorder's oilice during otlice liours, but during his absence, and shall leave the fee roijuired I)y this Act, and the ]mrticulars and informatioii re(iuired by section 23, with the ollicer or other jicrson in clinrge of the said otlice. he shall be entitled to have a record dated on tlie date of such application. 1891, c. 2(), s. 29. ICO SO. If a free miner shall ap]>ly for a re-record, and shall mal Rich api)lication at the [Mining Ifecorders oilice during olTice hours, but during his ahsonce, and shall leave the fee re(|uired by this Act, tmd the ])articnlars and information recjuired by section 28, with the olTicer or other ])erson in charge of the said office, he shall be entitled to have a ro-record dated on the date of such application, but com- mencing to run from the expiration of his existing record or ro-record. 1891, c. 2(), p. 30. 81. A free miner, having duly located and recorded a placer claim, Fhall be entitled to hold the same during the existence of bis record or ro-record of such claim u'pon complying with all the terms and con- ditions of this Act. 1891, c. 20, s. 31. m m I!', ill illiliil !|i i IMAGE EVALUATION TEST TARGET (MT-3) 4p V.x 1.0 liiyi WIS |50 "^" IffiHi ■tt 1^ 12.2 1^ 1^ III 2-0 ■UUI. I.I U |..6 1.25 1, c. 20, s. -10. 40. A tunnel or drain shall be considered as ])ai't of the phu'cr claim, or nunc held as real estate, for which the same was constructed. 1801, c. 20, s. 47. 50. Any free minor may apply to flie (Iold (Commissioner for a grant of right of way and entry tlirough and upon any mining ground in his district, for the ])urpose of constructing a drain for pul)li(; drainage mines. 1S!)1, c. 2i>, -IS. 51. Tlu" aiii)lication for every such grant sliall he in writing, and shall set out the name of each api)licant, the nature and extent oi' the proposed drain, the amount of toll to be charged, the term of years for which such grant is to be made, ami all other privileg(!S sought to be acipiired. Tiu' apiilicalion shall be left at the Mining ]?ecor. C. (1897), " erratum," which reads, " strike out caption Part IV. and section 5(), reprinted by error from 1897, c. 33 s. 2, repealed by ' The Water Clauses Consolidation Act,' s. 154, s.-s. {c)." !■)! Part V. Mininij Parliierships. *>T. All mining partnerships ^ shall be governed by the provi- sions hereof, unless they shall have other and written articles of luirtnershi)). 1891, c. 20, s. 79. ' See •• Partnerships Act, 1894 " (Statutes 1894, c. 36, s. 84), which enacts as follows: " This Act (loi'S not apply to mining partnerships within the purview of the ' Mineral Act, 1891,' or of the ' Placer Mining Act, 1891.' " Quaere, whether section 7 of " Companies Act, 1897 " (chapter 2), applies to mining partnerships under this Act. The section reads as follows: " 7. No company, association, or partnership consisting of moie than twenty persons shall be formed, after the commencement of thif Act (8th May, 1897), for the purpose of carrying on any business within the scope of this Act that has for its object the acquisition of gain by the company, association, or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other Act, or of letters patent." SiH. A mining partnership shall, unless otherwise agreed upon, be deemed to be a yearly partnership, renewable from year to year by tacit consent. 1891, c. 2(), s. 80. Ul r.ns URITISn VOLVMnTX fStt. 'Plio Imsiiu'ss of such piirtiicrsliii) sluill ))(' iniuiuii', iind sucli other matters as ])ortain solely thereto. 18!)J, e. 'Z{'\ s. 81. 00. ]\liiiiii^' i)artnershi])s ean locale and record in the ])artiior- slii]) name a jilacer claim for each partner who is a free miner. Such partnership claims may he located and re(\n'ded as a set of claims, and each such claim shall he slaked as an ordinary placer claim. One .stake on each snch claim shall he marked as an initial stake, by Avriting thereon the words " Initial post." Jt shall not he retiuisile to i)ost more than one location notice on each set of claims, which notice shall he on the lirst initial post. ]S!)1, c. SiC, s. 82. 01. A set of claims may be recorded in one record. 'I'he nanu' of eveiy ])artner, and the numl)er of every ])arlner"s free mining cer- tillcate, shall he on the record of every such set of claims. The part- nership name shall appear on every such record, and all claims so taken up shall be the property of the i)artnership. 18!)1, c. 2(), s. 8:i. «2. A j)artner in any mining jtartnership, or his agent anthorized in writing, shall, at any meeting thereof, he entitled to vote upon any interest or fraction of an interest which he may hold theioin; but the result of the votes given shall be deternuned by the nund)ei' of the full interests voted upon, and not by the nund)er of partners voting at such meeting. ]8i)l, c. 20, s. 84. OJ*. A majority of such voles may decide when, how long, and in what manner to Avork the ])artnership claim, or set of claims, the mimber of men to be employed, which nnnd)er shall not be less than one man to each claim, and the extent and manner of levying the assessments to defray the expenses incurred by the j)artnership. Sucli majority may also clioose a foreman or manager, who shall rcjjresent the partnershi]) and sue and be sued in the name of the partnershii) for assessments and otherwise; and he shall have jjower to bind them by his contracts. Every jjartner, or liis duly authorized agent, shall be entitled to represent his interest in the ))artnership property by work and labour, so long as such work and labour be satisfactory to the foreman or manager. Jn the event of such ])artner or agent being discharged by the foreman or manager, the Court liaving jurisdiction in mining disjjutes may, if recpiested, summon the foreman or man- ager before it, and upon bearing the fads make such order as it shall deem just. 180], c. 20, s. 85. , s. 8S. OT. Any ])artner shall l)e entitled to sell, or contract for the sale of, his interest in the ])artnership pro])erty, but such interest shall continue liable for all the debts of the partnership. 18!U, c. 20, s. Sd. HH. Xo ])artner shall, after a bill of .eale conveying his interest has l)een recorded, be liable for any indebtedness of the partnership incurred thereafter. i8{)l, c. SU, s. 90. Li mi led Lidhilily. OO. Any mining partnershij), composed of two or more free miners, and being free from all debts in respect of the partnership ij' 11 ' % 1 1 ' s < n HI I r.l f '■■I (iOO BRIT I fill COLUMBIA i ])roporty, niiiy limit the lial)i]ity of its ineinl)ers, upon complying with tho rcHjuiromcnts following, that is to suy: — I'lion tiling with the ^Mining ]{i'cor(lev a (loclnratory statement containing the name of the jtartncrshi]), the location and size of every partnership claim, and the particular interest of each ])artner; and also i)lacing upon a conspicuous ]mrt of every such claim, or set of claims, in large letters, the name of the partnership, followed by the words " Limited Liability." 1891, c. 2G, s. 1)1. TO. Tile words " Limited Liability " shall thereupon become part of the partnership name. 18i)l, c. 2(5, s. 93. Tl. After such conditions shall have been complied with, no member of such partnership shall be liable for any indebtedness in- curred thereafter beyond an amount proportioned to his interest in the partnersbij). 1891, c. 2(5, s. 93. T2. ]"]very such partnership shall kec}) a correct account oP its assets and liabilities, together with the nanu's of the partners, and the interest held by each, and shall make out a monthly balance sheet showing the names of the creditors, and the amounts due to each, and file the same among the i)ai)crs of tiie partnershi]); and such balance sheet and all the books of the ])artnership shall be open to the inspection of creditors at all reasonable hours. 1891, c. 26, s. 94. 73. ]"lvery partner in such partnership shall be at liberty to tell or dispose of his interest therein, or of any part thereof, to any other free miner; but such partner shall be liable for the indebtedness on the said interest in proportion to his interest in the partnership. 1891, c. 20, s. 95. 74. Xo member of such i)artnersliip, after a bill of sale convoy- ing his interest has been duly recorded, or after he has served a notice of abandonment of his interest on the foreman, and left a copy there- of with the Mining IJecorder, shall be liable for any indebtedness of the partnership incurred thereafter. 1891, c. 20, s. 90. T«5. Xo such partnershi]! shall declare any dividend until all its liabilities have l)een paid. 1891, c 20, s. 97. 76. Every such partnership shall ai)point a foreman or manager, who shall rejiresent the partnership, and who shall sue and be sued in the name of the partnership; and his contracts in relation to tho business of the partnership shall be deemed to be the contracts of th(j partnership. 1891, c. 20, s. 98. rnij PLWER Misisa act (501 TT. No siith partncrsliip ulinll he liable for any other indcht'.'d- ness than that contracted by its foreman or manager, or by its jigent duly authorized in writing. 18!)1, c " i. 1)9. Part VJ. Bed-rock Flumes. I'H. One or more free miners may apply to the (Jold Comniis- bioner for a grant of exclusive rigiits of way tiiruiigh and entry upon any mining ground in his district, for the i)urpose of constructing, hiying and maintaining a bed-rock llunie. 1H!)1, c. 2(), s. 100. 71>. Every such application shall he in Avriting, and shall be loft at the ^lining Kccorder's ollice, addressed to the (iold Commissioner, and shall state the name of the ai»]tlicant and tiie nature and extent of the ]»rivilcges sought to he ac(iuired. '^IMiirty days' notice of such ai)plication shall be given, by allixing the same to some conspicuous part of the ground through which the rights of way are asked, and a cojjy thereof upon the walls of the Court House or of the ollice of the ."Mining ]?ecordcr of the district. Trior to such application, such ground shall be marked out by legal jiosts, placed at intervals of one hundred and iifty feet along the ])rop()sed nuiin line or course of the flume, with a notice of such application allixed to one of such ])osts. And it shall be comi)etcnt for any free miner to protest before Ihe Gold Connnissioner within such thirty days against such ai)itlicalion being granted, but not afterwards. Kvery ap])licati()n for a grant shall be accompanied by a deposit of one hundred and twenty-live dollars, to be left with the Alining Ifecorder, which shall be refunded if the application be refused, but not otherwise. ISltl, c. JiO, s. H'l. HO. Every such grant shall be in writing, signed by the Gold Commissioner, and shall be for a term not exceeding five years. l.S!)l, c. 2G, s. 103. HI. The grantee shall be entitled to the following rights and privileges, that is to say: — (fl) The right of way through and entry upon any new and un- workcd river, creek, gulch, or ravine, and the exclusive right to locate and work a strip of ground one hundred feet wide and two hundred feet long in the bed thereof to each grantee named in such grant: {!)) The right of way through and entry upon any river, creok, gulch, or ravine, worked by miners for any period longer '71 ' V' m. B^ i I ii- 'i ''i\r i (!08 nitJTisii con Mltl.\ than Iwo yciirs prior (o such entry, iind nlroiidy wholly or piirtiiiUy nlmndoiicd, aiid Ihc cxoliisivi' ri;:lit lo stake out and work Itoth the unworki'd and ahaiidoni'd portion llu'rc- of, one hundred iVet in width, and one-(|uartor luilo in length, I'or eneii grantee named in such grant: (c) Sucli right of way through and I'utry upon any river, ere'.'k, or ravine discovered within two years next |>reee(ling the dale of his application l)ei'ore mentioned, and upon any ])ortions of which any free miner is legally holding and haiin fnlc working a claim, as to the (J old Commissioner may seem advisable: (tZ) 'J'he : gilt of way through and entry njion all p" .^-''r claims which are at the time of the notice of application heforo mentioned boiin fidr heing worked hy any free miner, for the ])urpose of cutting a channel and laying his Hume theroin, with such reasonahle space for constructing, maintaining, and rejtainng he Hume as may he necessary: Provided, that the owner of such last meidioned placer claim shall he en- titled to take and receive the gold or other nunerals found in the cut so made, (c) The right to all the gold or other minerals i:\ his flumes: (f) No person locating new and unworked or abandoned ground within the limits of such grant, after tiie notice al)ove men- tioned has ))eer given, shall have any right or title as against such grantee to the ground so located. 1891, c. 2(i, s. 103, and IcSitr, c. 2), a. G. 82. A holder of a placer claim through Avhich the line of the grantee's Hume is to run may j)id in a bed-rock flume in his claim to connect wjth the grantee's flume, u])on giving the grantee ten days' notice in writing to that effect; but he shall maintain the like grade and build his flume as thoroughly and of as strong materials as are u^ed l)y such grantee. 1891, c. 2(}, s. lUl. < 83. A claim-liojder constructing such flume through his claim Fliall keep his flume free from obstruction, and he shall be entitled to all the gold or other minerals found therein, but he shall be sub- ject to the same regulations with regard to cleaning up the flume, rejiairs, and other matters in which both parties are interested, as may he adopted by such grantee; and such claim-holder shall have the right at any time before the abandonment of his claim to become a partner of the grantee, by uniting his claim and flume with the ground and flume of the grantee, and taking an interest proportionate Tin; VL.xciut mi\i\(i af the (odd Commissioner, J.S!)1, e. -a;, s. 1(1(1. HSi. Any free miner lawfully working any claim where a hod- rock thnue exists shall he entitled to tail his sluices, hydraulics, and grouiid-sliMcos into such ilume, hut so as not to oi>struct the free working of sueh Hume hy rocks, stones, houldors, or otherwise. ISlil, c. 2(i, s. Kir. Hii. 'JMio grantee shall record his grant with the Alining Ke- corder within three days after (d)taining the same, and i)ay for such record the fee provided in the Schedule to this Act; and he shall also ])ay to the ^Fiiung Eecorder annually a rent of twelve dollars and fifty cents for each quarter of a mile of right of way legally held under .such grant. 1^1, c. 20, s. lOi). SS. Tpon the expiration of the gram for a hod-rock Ilume, it may he extended for any further term not exceeding five years for any one extension, at the discretion of the (iold Commissioner. 1891, c. 2(5, s. 110. SO. Any grant of a hod-rock ilunio shall he forfeited Mhenover the grantee shall fail to comply with the conditions thereof, or of this Act. 1S!)1, c. 20, s. 111. Part VII. Leases. »0. It shall he lawful for the fJokl Commissioner, with the sanction of the liiontenant-CJovernor in Council, to grant a lease of any unoecuj)ied and unreserved Crown land for placer mining ])ur])osos or for ])recious stone diggings for any term not ex- ceeding twenty years, on such terms and conditions as he shall think Mil li :■ .;■ \ 1 I'. la ill 1 i '•^mmm 604 BRITISH COLUMBIA fit; and any i'l-Lc iuinor desiring to obtain a lease of any filacer mining ground sliall mark out sucli ground by placing a legal post at each corner, and shall post a notice on the i)ost nearest to the ])lacer irin- iiig claims then being woi'ked in the immediate locality, and also on the ollice of the Alining Ifecorder, which notice shall set out — (1) The name of each applicant: (2) Tlie locality of the ground to be acc^uired: (3) The quantity of ground: (4) The term for which such lease is to be ai)plied for. 1890, c. 35, s. 5, Ol. Tlie free miner, after staking the ground and posting the notices as aforesaid, shall, within thirty days, make api)lication in writing, addressed to the Gold Commissioner, Mliicli a])i)licati()n shall be in duplicate, with the plan of the ground on the back, and shall leave the same at the ollice of the Alining liecorder, which applics'lioii shall j.-et out — (1) The name of each applicant: (2) The number of each ai)])licant's free miners certificate: (3) The locality of the ground: (4) The quantity of ground: (5) The term of the lease desired: (6) The rent proposed to be paid. 18<)(), c. 35, s. G. 92. On making such ap])lication the ^'ree miner shall deposit with the Mining ]?ecorder, for the use of the Gold Gommissionor, .a plan of the ground, in triplicate. And every jierson making applica- tion for a lease of nuniug ground for any purpose under the provi- sions of this Act shall de])osit the sum of twenty dollars with the Gold Commissioner at the time the a])plication is made. If the a))- plication is granted, the twenty dollars deposited to be ai)plied to- wards the i)ayment of the first year's rent, and the balance of the first year's rent shall be paid by the applicant within sixty days after the Gold Commissioner gives him notice of the execution of the lease, which notice may be sent by letter to the applicant to his address; such address to be left with the Gold Commissioner when the applica- tion for the lease is made. If the application is not granted, tlio twenty dollars deposited is to be returned to the applicant; l)ut in THE PLACER MiyiXG ACT 005 case the applicant fails to perform his part in accortlanee with his application, then the twenty dollars clepositcd shall be forfeited to the Government, and his application shall be void. 18!)G, c. 35, s. 7. 93. Ap])lication shall not be for greater than the following areas or distances: — In creek diggings on abandoned or nnworked creeks, half a mile in length: Any other placer mining ground, eighty acres; but in no case shall any lease extend along any creek or river more than five hundred yards; creek diggings excepted: Precious stone diggings, ten acres; but the right to mine for precious stones shall not include the right to mine for gold or other precious metals, unless the ground be held also for that purpose separately, under the provisions of this Act: Provided, always, that nothing in this Act shall be deemed to alfect the right of any holder of r lease of placer mining ground to a renewal thereof, if such holder has substantially nuxde and performed upon the ground the labour, work, and expenditure required by such lease as a condition of renewal thereof. 189(5, c. 35, s. 9. 04. A lease shall not be granted for i.ny mining ground any portion of which is actually occupied by a'ce miners, unless with the consent of such occupiers; and no lease shall be granted for any mining ground which is, in the oi)inion of the ({old Commissioner, availal)le for agricultural ])urposos. 1894^, c. 33, s. (!. 1>5. The ({old Commissioner nuiy, with the sanction of the Lieutenant-Ciovernor in Council, grant or refuse any application for u lease of placer mining ground, or modify the terms and conditions of such application as he shall think fit. 189(1, c. 35, s. 10. IMS. I'lvery application for a lease of placer mining ground, together with the i)lan of the ground and the Cold Commissioner's rci)ort thereon, shall be forwarded by such Gold Commissioner to the liieutenanl-GDVernor in Council, and no lease shall l)e granted on any such ai)plicalion without his sanction. 189(5, c. 35, s. 11. 117. l-'very lease of mining ground shall bo in writing signed by the ({old Commissioner and the lessee, and shall be In duplicate or triplicate, as the case may require, and one copy of every such lease shall, as soon as possible after it is issued, be transmitted by mail ! M!H! '': 1 ■ ■ i 1' k r i r ji i, flOG BliiriiSH COLL Mm A by tlio Gold Commissioner issuing the same, to be filed in the ollloe ol" the ^linin^ir Ifecordor in the mining division of the district in wiiich tlie mining ground leased is situated. 18t)(>, c. 35, s. 12. 9H. Kvory lease sJiall provide for securing .'o the pul)lic reason- i'.ble rights of way and water, and shall contain a covenant by tlie lessee to mine the ground in a miner-like nuinner, and shall contain such covenants for the continuous working of such ground as the (.iold Commissioner shall think rcasonal)le, and shall reserve the right to free miners to enter on such ground and mine for veins or lodes, as defined l)y the " .Alineral Act, 18<)1," c. 2C>, s. 121. 99. On ilie non-})erformance or non-observance of any cove- nant or condition in any lease, such lease shall l)e declared forfeited l)y the Cold Commissioner, suljject to the api)roval of the Minister of 31 nes, unless good cause be shown to the contrary. After any such de.'laralion of forfeiture, the mining ground shall l)e o[)en for location by any free miner, ^'o lease, whether made before or after tlie i)afR- age of this Act, shall Jiereafter be declared forfeited, except in ac- cordance witli tiiis section. ISSIC, c. 3o, s. 13. lOO. L('as(>s sliall lie granted for placer mining only, and shall not be assigned or sub-let without the written consent of tlu' (ioh! Commissioner. 181)1, c. 2(J, s. 123. lOl. When any placer mining ground is held under lease, and such mining ground shall have been etliciently worked, as reciuired ])y the conditions of the lease, to the satisfaction of the Cold Com- missioner, and if at the exjiiration of tlie lease a portion of said min- ing ground remains still to be worked, the lessee may obtain an ex- tension of the least', u|ion the same conditions as the original lease, for sucli reasonaliU' time as will enal)le him to work out siU'li portion ol said mining ground as still renuiins unworked, and tlie (iold Com- missioner may, with the sanction of the Lieutenant-liovernor in Couiu'il, grant such extension by memorandum endorsed on the lease: Provided, that whenever the mining ground so held under lease has been forfeited, abandoned, or worked out, and when the ditch or tlume constructed for conveying water has a carrying capacity of not less than five hundred iiu'lies of water, and shall have c'ost not less than five thousand dollars, such ditch or flume shall remain the j)!-.)- perty of the owner thereof. lSi)T, c 20, s. 3, 102. Any free miner, i»r two or more free miners, holding adjoin- ing leases as creek claims, or leases of any other i)laeer mining grounds, may consolidate as maiv.v as ten leases, by filing with the THE PLACER MIMXG ACT 007 ]\[ining IJocortler a declaratory stateinont containiiifi the name of the eonii)aiiy or partnership which i.s to hold the consolidated lease, the location and size of each lease; and such statement shall he si<;nod hy the holder or holders of the leases to he consolidated. After tiling such declaratory statement such free miner, or free miners, shall he allowed in each and every year to jjcrform, on any one or more of such leases, all the work that is necessary to he performed to hold all such leases. ("The Placer Alining Act (18!)1) Amendment Act, 1898," s. 3.) lOS. It shall he lawful for tlie (iold Commissioner witli tiie sanction of the Jjieutenant-(iovernor in Council, to grant a lease for any term, not exceeding twenty years, of the hed of any river helov low watermark for dredging purposes, for a distance not oxceediu'.^ five miles, u])on such terms as he shall think iit: I'rovided. always, that every such lease shall reserve tlie right to every free nn'ner or mining com])any to run tailings into such river at any point thereon, also to mine two feet helow tlie surface of the water at low water mark, l)y ])utting in wing-dams, whether such free miner shall locate l)efore or after the date of such lease; and it shall he lawful for the holder or holders of any lease or leases, whether granted hefore or after the ])assing of this Act, engaged in dredging for gold in any such river, at the tinu^ when they may he engaged in dredging to cut into any l)ar, hencli, or old channel on any of the hanks of such river on which they hold leases, or mine in any hench or hank tlieroof during high or low water, ])rovided the same ground is not leased nider the "Placer ]\Iining Act. 18;n." or this (u- anv o ther Act, or is not at such linu )eing worked hy free mini'rs, the right heing always reserved to free miners to constnu-t wing-dams as far as may l)e desired into any of such hars. hanks or henches lor the i)urpose of conducting mining oi)erations, either hy sluice or rocker, and jiarties Indding such dredging leases shall not in any man- ner interfere with any free u\iner or stop him from working any part of said river or henches, otherwise than hy dredging, of which the holders of such leases shall have the full riglit. 18!).-). c. 10, s. 8. i i- Dmlijrrs — I'rithclidit. 104. (\) It shall not he lawful for any free miner to construct wir.g-dams within one thousand feet of any dredger while working, nor to ohstruct any dredger in any manner. 189.-), c. 1(», s. !». ()08 BRITISH COLUMBIA Part YIII. Milling Bcconlers — Appointment, Duties, Powers. 105. The Tiioutonant-Gov'omor in Council may appoint any per- son to Ijo a Alining liccorder in and for any part of the Provinoo. 181)1, c. 2G, s. 127. lOO. AVliore mineral land is discovered in a part of the Province! so situate that the provisions of this Act as to free miners' certificates and records of mining jjrojjerty cannot bo Justly applied or enforced, by reason of there being no Gold Commissioner or Mining Kecordcr in the locality, it shall be lawful for the miners of such locality to hold meetings at such times and places as may be agreed upon, and at such meetings, by a two-thirds vote, to appoint one of tlieir num- ber to issue free miners' certificates and to enter records of mining property; and such certificates and records shall be valid, notwith- standing any informality therein: Provided that all records so made, and all fees for the same in accordance with the Schedule to this Act, and a list of all free minors' certificates issued, and the date and term thereof, and the fees for the same, be forwarded to the nearest Gold Commissioner or Mining Kecordcr as soon thereafter as practicable. 1891, c. 2(), s. 128. 107. livery Mining Kocordor shall issue free miners' certificates and " substituted certificates " to all jiersons and companies entitled thereto. 1891, c. 2G, s. 129. lOS. Such free miners' certificates shall be taken from a printed book of forms, with dui)licate counterfoils, one of which counterfoils; shall be filed in the oflice of the Mining Kecordcr. 1891, c. 20, s. loO. 10!>. I-A'ery Alining liecorder shall keep the following books, to be used for placer mining entries: — (rt) A book to 1)0 known as the "Record P)Ook": {})) A book to be known as the " Kecord of Abandonments ": (c) A book 1o be known as the " Kecord of Afildavits": {ft) A book to bo known as the "Kecord of Conveyances ": C) A book to bo known as the " Kecord of Water Grants." 1891, c. 26, s. 131. THE PLACER MIMXO ACT cm See tho " Water Clauses Consolidation Act, 1897," R. S. B.C., (1897) c. 90, printed in Appendix I., No. 26. The legislation as to water alters the common law rules, and, in its construction and interpretation, the principles laid down in Heydon's Case (1584), 3 Co. Rep. In), niay be usefully applied. There the Judges unanimously resolved that in order to construe a. statute truly four things are to be considered: First, what the common law was before; s»'Cond, what the mischief was for which the common law had not provided; third, the remedy provided by the statute; fourth, the true reason of the remedy, and that the Courts should conslrue statutes so as to redress the mis- chief and extend the remedy. These sound principles of construction were acted on by Baron Parke in Lyde v. Barnard (1836), 1 M. & W. 113; by Lord Selborne, L.C., in Bradlaugh v. Clarke (1883), 8 App. Cas. 354, 362; and by Lord Halsbury, L.C., in Bruce v. Ailesbury (1892), A. C 356. 361. In the Columbia River Lumber Company v. Yuill, (1892) 2 B. C. R. 237, Plaintiffs were entitled, as riparian proprietors, to the use of the natural flow of the water of a stream, Quartz Creek, running through timber lands leased by them from the Dominion Government. The lands so leased were part of the lands in the railway belt granted to the Do- minion by the Province of British Columbia by 43 Vict. (H. c.) c. 2, in aid of the construction of the C. P. R. Defendants, aa free miners licensed by the Provincial Government, obtained from it a grant of the right to use for mining purposes the water of a stream running into Quartz Creek above the plaintiffs' sawmill, by record under the Plaoer Mining (B. C.) Act, 1891, ss. 56 and 57. Defendants so used this water as to foul Quartz Creek and stop the plaintifi!?' mill. Heio, by Drake, J.: 1. No person, unless by grant or prescription, is entitled to deprive another of the beneficial use of water which would naturally descend to him. 2. A right granted by a statute which does not iii express terms derogate from the rights of others, cannot be held to "have done so by implication. 3. A grant of water privileges under the Provincial Mining Acts does not sanction the user of the water to the detriment of the rights of others, however acquired, to the same water at another part of the stream. 4. The Dominion Government, under 43 Vict. (B. C.) c. 2, were in possession of the lands as trustees to administer same, and it was com- petent to them to grant a lease to the plaiptiffs carrying the ordinary rights to the water of a riparian proprietor. no. L'pon the application of or on behalf of any free miner, ttnd upon receipt of all the particulars required by section 2'.\ of this Act, the Mining Recorder shall record any i)lacer claim, by enteriiiij iiU the particulars required by said section in the IJecord Book, which entry shall bi>, as near as convenient, in the form 15 in tiie Schedule to this Act. Tpon the application of or on behalf of any free miner, 39 -M si:: li III f CIO BRITIffll COLUMBIA and upon receipt of all the particiiiars required by section 28 of this Act, tlio Alining Recorder shall re-rccord any placer claim, by entering all the i)articulars required by said section in the Record J ' 1S91, c. 2G, s. 133. Old. 111. The Alining Recorder shall record every lay-over, leave of absence, license permit, and other privilege granted and forfeiture declared l)y the (jold Commissioner in the Record Book. 1891, c. 20, s. 133. , 113. V\)nn the receipt of a notice of abandonment, the Mining Recorder shall record the same in the Record of Abandonments, and file such notice, and write across the record of the claim affected by such notice, in the Record Book, tha word " Abandoned,*' and the date of the receipt by him of the notice. If only an interest in a placer claim is al)andoned, and not the entire claim, the mcmoi'andum in the record shall si ow which interest is abandoned. 1891, c. 2fi, s. 135. I 113. The ^Mining Recorder shall record, by copying out verbatim, all allidavits and declaratory statements ))rought to him in connec- tion with his office, in the Record of Affidavits. 1891, c. 2G, s. 13(). 114. The Mining Recorder shall record, by copying out ver- batim, in the Record of Conveyances, all conveyances, mortgages, bills of sale, contracts for sale, and other documents of title, including powers of attorney, or other authorities, to execute all or any of the above description of documents when brought to him for that purpose. 1891, c. 2G, s. 137. 115. The Alining Recorder shall record all other documents relating to mining property which may be brought to him for record, and shall file all such documents which may be brought to him to be filed. 1891, c. 20, s. 138. no. Every entry made in any of the Mining Recorder's books shall show the date on which such order was made. 1891, c. 80, s. 139. I 117. All books of record shall, during office hours, be open to public inspection free of charge, and documents filed shall be open lo :i!Ji THE PLACER MlXiyO ACT Gil public inspection upon payment of the fee set out in the Scliedule to this Act. 18i)l, c. 2G, s. 140. lis. Every copy of, or extract from, any entry in any of the said books, or of any document filed in the ^Mining llecorder's office, certi- fied to le a true copy or extract by the Mining Kocordor, shall be re- ceived in any Court as evidence of the matters therein contained. 1S91, c. 20, s. 141. 11». Before issuing any free miner's certificate, or substituted certificate, or making any entry in any book of record, or filing any document, or making any copy or extract therefrom, the Alining Kccorder shall collect the fees payable in respect thereof, as set out in the Schedule to this Act. 1891, c. 20, s. 142. 130. The .Mining Kccorder shall receive all applications and other documents addressed to or intended for the Gold Conimissionor, and forward the same to the Gold Commissioner. 1891, c. 2(5, s. 14;'). 131. The Alining Kccorder shall receive all deposits of money directed to be made by this Act, and apply the same as directed ])y this Act. 1891, c. 20, s. 144. 132. The [Mining Kccorder shall collect all rents collectable under tile conditions of any lease or other documents granted under the ]u-ovisions of this Act. 1891, c. 26, 145. 133. The Alining Kccorder shall forward to the Provincial Trea- sury all fees, rents, fines, penalties, and other moncj's collected cr obtained by him in accordance with the provisions of this Act. 1891, c. 2G, s. 146. 131. It shall be lawful for the Lieutenant-Governor in Council to divide and subdivide any district into mining divisions, and to establish in each or either mining division a ^Mining Recordei*'s office. 1891, c. 26, s. 147. 135. T'pon the establishment of a mining division, and the open- ing of a Mining Recorder's office therein, under the authority of the last preceding section — (a) Such office and none other, shall be the proper office for recording all placer claims, records, certificates, documents, or other instruments affecting claims, placer mines held as real estate, or placer mining property, situate within such M' i'> I 11! M C12 UIHTIHH COU MlilA mining division, and wlionovcr by this Act, or any Act amending tlic same, anytliing is required to bo done at or in tlie ollice of the (Jold Conimii^sioner or Mining Hecorder of tlie district, it shall, if the same alfects or concerns any claim, i)lacer mine held as real estate, or placer mining pro- jjci'ty, situate within a mining division, be done at or in the oHioe of the Mining Recorder of the mining division wherein such claim or mine, or other mining property, is situate: (h) I'ljon the district or division of any Mining Recorder being divided or subdivided into mining divisions, it shall be the duty of such Alining Eecorder to make, or cause to be made, a transcript of all the entries in all the books mentioned in section 10!) of this Act, affecting claims, placer mines held as real estate, or i)lacer mining ])roperty, situate in each newly created mining division, and to forward the same to the Mining Recorder of such mining division, and such transcript shall be kept in such ollice as i)art of the records of such office, and all transcripts of such records, certificates, documents, or other instruments, shall, prima facie, be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purport to be transcripts; and such transcripts or copies thereof, when certified by the Mining Recorder of the mining division in whose office they are kept, shall be admissible in evidence in all Courts of Judicature in the Province. 1801, c. 2(5, s. 148. 13G. When there shall be no ^Mining Eccorder for a district or division, the duties of the ^Mining Kecorder shall devolve u])on the Gold Commissioner, and it shall at all times be lawful for the Gold Commissioner to perform the duties of the Mining Recorder, and the Gold Commissioner shall have all the powers of a ^Mining IJecorder. 1891, c. 20, s. 149. 127. The Alining Recorder's office shall be open upon all days, excepting pul)lic holidays, from 10 a.m. to 4 p.m., and such times shall be deemed the office hours of such office. 1891, c. 2G, s. 150. Part IX. Gold Commissioner s Powers. 12S. It shall be lawful for the Gold Commissioner to perform the following acts in accordance with the provisions of this Act: — THE PLACER MINIXO ACT GU (a) Jle iiiiiy lay over any or all claims, and may grant to any lioldor of a claim leave of absence for such period and rea- sons as he may think proper: (h) lie may prescribe the nnml)er of miners who shall he re- quired to work in ]»rospecting a set of claims until gold in ]mying (ptantities is found: (c) For the more convenient wcu'king of back claims on benches or slopes, the (iold Commissioner may permit the owners thereof to drive a tunnel through the claims fronting on any creek, ravine or water-course, upon such terms as shall seem expedient: Provided that in tunnelling under hills, on the frontage of which angles occur, or which may be of an oblong or elliptical form, no party shall l)c allowed to tunnel from any of the said angles, nor from either end of such hills, so as to interfere with parties tunnelling from the main frontage: ((/) lie may nuirk out a sp^'^c of ground for dcjiosits of leavings and deads from any tunnel, claim, or mining ground, upon such terms as he may think just: (e) He may extend the limits of a claim in " bench diggings '' beyond the limits of the bench, but not to exceed 100 feet S(piare. (f) He may, in case of disputed boundaries or measurements, employ a surveyor to mark and define the same, and cause the reasonable expense thereox to be paid by either or both of the i)arties interested therein: {(j) He may })ermit or order mining posts to be moved: (//) lie may summarily order any mining works to be so carried on as not to interfere with or endanger the safety of the ])ublic, any i)ublic work or highway, or any mining i)ropcrty, mineral claim, jdacer claim, bed-rock drain, or bed-rock flume; and any abandoned works may by his order be either filled u]), or guarded to his satisfaction, at the cost of the party who may have constructed the same, or, in his absence, ui)on such terms as he shall think fit: (i) He may, upon ajiplication made to him, allow a free miner such right of entry upon any adjacent claim as may be neces- sary for the M-orking of his claim, and upon such terms as niav to him seem reasonable: ■;:■ j: (ill nUlTlUll COLUMBIA (;') lie may grant rights ol' way tor the purpose of constructing drains or tunnels, and niuy exercise such powei's as are S2)ecilied in Tart III. of this Act : (}•) IIo may grant rights of way for the purpose of constructing a bed-rock ihnne, and may extend the grant at its exi)ira- tion, in accordance with I'art VI. of this Act: (/) lie may grant leases of jdacer mining ground, and he may grant renewals of such leases, and exercise all such powers as are si)ecified in Part YH. of this Act. 1891, e. 20, s. Ijl & 1897, c. 29, ss. 4 & G. ISO. Xotwithstanding anything contained in the " Clold Mining Amendment Act, 1873," or in any Crown grant issued under the said Act, or under this or any other Act, it shall be lawful for the Gold Commissioner, in his discretion, and with or without any terms or conditions, to allow to the owners of placer claims all such rights or pri\iloges in and over mineral or other claims held as real estate as may be allowed in and over claims not so held; and owners of claims held as real estate shall be entitled to the same rights and privileges as owners of claims not so held. 1891, c. 20, s. 152. 130. The Clold Commissioner shall have power to do all things necessary or ex])edient for the carrying out of the provisions of this Act. 1891, c. 20, s. 153. Administration. 131. The Gold Commissioner shall take possession of the mining property of any deceased free miner, and may cause such mining pro- perty to be duly worked, or disi)ense therewith at his option. 1891, c. 20, s. 154. |3S. The Gold Commissioner, or any person authorized by him, shall take charge of all the ])roperty of any deceased free miner until the issue of letters of administration or i)robate of the will, if any: Provided, however, that where any free miner shall die intestate, and the value of the i)ersonal estate of such deceased free miner is Jess than three hundred dollars, it shall not be necessary for the Gold Commissioner to obtain from any Court letters of administration, but in such case the Gold Commissioner may administer and wind up the personal estate of the deceased, and do all things necessary and pro- THE PLACER MIXIKO ACT 015 I'tT therefor, ami act in all respects as if letters of admiiiistration to tlie personal estate of such deceased free miner had been granted to such Gold C'oniiiiissioner, and the (lold Connnissioncr shall produce and pass his accounts, in each estate of which he shall undertake the administration, before a Judge of the County Court of the district. 1891, c. 2(5, s. 155. Pakt X. COUNTY COURTS. J urisdictiuii, Procedure, Forms, and Costs. Itt3. In addition to the jurisdiction and powers given to County Courts by the " County Courts Act,'' and other Acts, every County Court shall have and exercise, within the limits of its district, all the jurisdiction and powers of a Court of Law and Equity: — (1) In all personal actions, where the debt or danuiges claimed arise directly out of the business of mining (other than coal mining), or from the exercise of or interference with any rigiit, power, or ])rivilege given, or claimed to be given, by tills Act or any other Act relating to mining (otlior than coal mining): (2) In all actions between employers and employees, where the employment is directly connected with the business of min- ing (other than coal mining): (3) In all actions for supplies to jjcrsons engaged in mining, where such supplies were bought, contracted for, or sup- plied, or were alleged to have been bought, contracted for, or supplied, for mining purposes, or for consumption by persons engaged in mining or prospecting: (4) In all actions of trespass on or in respect of mineral claiuis or other mining projierty, or upon or in respect of lands en- tered or trespassed on, or claimed to have been entered or trespassed on, in searching for, mining, or working minerals (other than coal), or for any other purpose directly connect- ed with the business of mining (other than coaliuiniug). or in the exercise of any power or privilege given, or chiimcd to be given, by this Act, or any other Act relating to mining (other than coal mining): W ! mM. (!1G lUilTlsn COUMIUA (.")) Ill nil iutioiis of eject iiit'iit from niincrnl clnima or other iiiiiiiii;,' property, or from lands entered, or clnimed to have lieen entered, in Hcareliing for, mininjf, or working minerals (other than eoal), or for any purpose direetly eonneeted with the husiness of mining, or entered, or ehiimed to have heen entered, under some power, riglit or authority given or ol)laiiu'd imkUt the provisions of tliis Act, or any other Act relating to mining (other than coal mining): (G) In all suits for foreclosure or redemption, or for enforcing any charge or lien, where the mortgage, charge or lien shall he on mineral claims, mines, or other mining |)roperty: (7) In all suits for si)ecilic i)erformance of, or for re-forming, or delivering np, or cancelling, any agreement for sale, i)ur- chase, or lease of any mineral claim, mine, or other mining property: (IS) In all suits for the dissolution or winding up of any mining partnership, whether registered or not, under tlie provi- sions of this Act: (9) In all proceedings for orders in the nature of injunctions, where the same are recpiisite for the granting of relief in any matter in which jurisdiction is given to the County Court by this Act. 1S91, c. 2G, s. 15(1, & loUr, c. 21», s. (J. 134. The jurisdiction given to County Courts hy this Act shall be known as the "mining jurisdiction" of the County Court, and the words "mining jurisdiction" shall he written or ])rinted on all summonses, writs, and other process, and all other documents, in every action or cause brought under the mining jurisdiction of tiio County Court. 18!) 1, c. 2(), s. 15?. 135. County Courts and County Court Judges, registrars, she- riffs, and other olHcers, shall have the same duties, powers, ])rivileges, and authorities in all actions and suits, and other ))roceoding-j brought under the mining jurisdiction of the County Court, as they now have, or at any time hereafter may have, in actions and suits and other proceedings brought under the ordinary jurisdiction of the County Court, and the ])rovisions of all Acts for the time being in force regulating the duties and powers of County Courts and County Court Judges, registrars, sheriffs, and other oflicers, and regu- lating the practice and procedure in County Courts, and all Hules and THE PLACER illMXU AVT on Orders I'or the tiiiie boing applifiiblo to the ordinary jurisdittion nl' Iho County Court, shall, so far as |)ra('ti{'al)lo and not ineonsistent with this Aet, apply to liie nuninj,' jurisdiction of the Coiiidy Court. JSiil, c. '2i>, s. 15S. IJIO. Whore disputes arise concerning ndninfi; property, portions wiiereof are situated in adjoining or dilVereiit districts, tiie County Court of either of such districts before which the dispute is first lu'ought shall deteruiine it. 18111, e. 5i(), s. l.VJ. if, 1J17. The hearing of any sunininns, plaint, or other process in any County Court shall not l)e deferred beyond the shortest reason- able time iieccs.sary in the interests of all parties concerned, and it shall be lawful for the Hegistrar to nud, s. 1(12. 140. In all actions, suits, and other proceedings within the nnn- ing jurisdiction of the County Court, the Judge may order that costs be taxed on the higher or lower scale allowed by the County Court Ihdes; or if he shall consider the case of suilicient importance, he may order that costs be taxed as in the Supreme ' "ourt, and the costs so ordered shall be the costs recoverable in such action, suit, or ot!)er proceeding. 1891, c. 2(), s. KuJ. 141. Every County Court having jurisdiction in mining di.s- juitcs shall, with reference to real estate held nndcr the "Cold Alin- ing AmenduuMit Act, 18Ti}," or under this Act, and notwithstanding any law to the contrary, have the same ])owers and authorities to de- cide all matters or disi)utcs arising between the owners thereof, or between the owners thereof and any third person, or between mining joint-stock conipanies, or between shareholders therein, or betwL^on them and the comjjany, in the same way and as fully as it might lo concerning claiuis not being real estate; and actions, suits and other ;' G18 Bin TI 8 II COLUMBIA proceedings relating to siicli miitters or disputes shall be brought and liad in the same manner as actions, suits, or proceedings relating to mining claims not being real estate. 1891, c. 26, s. 104. 142, Any County Court Judgo having jurisdiction in mining causes, may direct the issuing of wrlti of capias ad respondendum nc c.rcat regno, and special orders for the arrest and detention of judgment debtors in all cases in which by law he has jurisdiction over the sub- ject-matter of the suit, but under and subject to such conditions as the Judge of the Supreme Court might usually require in aiiplications of a similar nature. 1891, c. 20, s. 105. 143. The jurisdiction given to the County Court by this i\ct shall not in any manner interfere with or lessen tlu' jurisdiction of the Supreme Court. 1891, c. 20, s. 100. I'ART XI. Penal and Miscellaneous. 144. Any person wilfully .uting in contravention of this Act, or refusing to obey any hnvfiil order of tiie (iold Commissioner or of any Judge i)residing in a Court having jurisdiction in mining dis- ]iutes, shall on conviction thereof in a summary way before any two Justices of the Peace or a Stipendiary Magistrate, or before any Judge of a Court having jurisdiction in mining disjnites, be liable to a fmo not exceeding two hundred and iifty dollars, or to imprisonment, with or without hard labour, for any term not exceeding three mouths. 1891, c. 20, s. lOT. 143. All lines and ])enalties imposed or jiayalile under this Act may be recovered by distress and sale of any mining or other ])er- sonal ])ro]H'i'ty of the oll'cnder. and in default by imprisonment, with or without hard laljour, for any term not exceeding three months. lc^!»], c. 2(1, s. 108. 140. All fees, rents, fines. ])enalties and other moneys collected under this Act shall l)e jiaid into the Provincial Treasury. 1891, c. 2{\, s. 109. 147. Notliing herein contained shall, save Mdiere such intention is expressly staled, be so construed as to affect ]irejudicially any min- ing rights and interests a((|uir('d prior to the jiassing of this Act; and all mining rights and ]>rivileges heretofore and lierounder ac- THE PLACER MlXlXa ACT Q19 quired shall, without the same being expressly str.ced, be deemed to bo taken and held sidjject to the rights of Jler ilajesty, Iler heirs and successors, and to the public rights oi' way and water. 18!)1, c. 'iG, s. 17U. 14S. l*'very free miner, (m a])plication to the Alining Kecordor, shall ])e entitled to a ju'inted copy of this Act. ISDl, c. ^(>, s. ITl. 140. AHidavits and declarations made under the ])rovisions of this Act sliall be made before some Judge or Eegistrar of a Court oi; Eecord, or before some Gold Commissioner, Mining Kecorder, Stipen- diary Magistrate, Justice of the Peace, Xotary Public, or Commis- sioner for taking Affidavits. 1891, c. 2C, s. 17:^. Itulcs and lic(julalions. 150. The Lieutenant-Governor in Council may make su( or- ders as are deemed necessary from time to time to carry out th.. pro- visions of this Act according to their true intent, or to meet the cases which may arise and for which no provision is made in this Act, or Mhen the provision which is made is ambiguous or doul)tful; and may also nuikc regulations for relieving against forfeitures arising under section !> of this Act; and may further make and declare any regulations which are considered necessary to give tile provisions in this clause contained full elVect; and from time to time alter or revoke any order or orders or any regulations nuule in respect of the said provisions, and make others in their stead; and further impose penalties not ex- ceeding two hundred dollars, or not exceeding three montlis' im- prisonment for violation of any regidations under this Act; and further in-ovide that any statement or returns required to be made by said regulations shall be verified on oath. Every order or regula- tion made l)y virtue of the provisions of this section sludl have force and ell'ect oidy after the same has been ])ul)lished for two successive weeks in the Uritisli ('(>liiml)ia (iazette; and such orders or regula- tions shall 1)0 laid before the Legishitive Asseml)ly within tli<^ iirst fifteen days of the session next after the date thereof. I'S!).",, v. lo, K. 1.1. Ta.ruliou of }fiiics and Moneys Invested Therein. 151. * Xotwithstanding any thing contained in this Act, mines and nu)Meys invested therein shall not be exempt from taxation, but sluiU l)ear such rate as may be imposed by any law in force in the Province, 181)5, c. 40, s. 12. G2() BRITISU COLUMBIA 1»I2. Tlicre shall be levied and collected from the owner or occupier of every mineral or placer claim of which a Crown grant has issued, including Crown grants issued under authority of an Act made and passed in the 3(ith year ol' Her ^lajosty's reign, intituled "An Act to amend the 'Gold ]\lining Ordinance, 18(17,' and the ' Cold Mining Amendment Act, 187:^,' " an annual tax of twenty- live cents for every acre and fractional ])art of an acre of land con- veyed l)y the grant, payable on the 3()th day of June in each year. Such tax shall form a charge upon the claim. The assessor ap- pointed under or by virtue of any existing Assessment Act, or any collector a])pointed under " Tlio Provincial Revenue Tax Act," is hereby autborized as to the mineral or jdaccr claims situate witbin the district for which he is ai)i)oi)ited, to collect and receive the tax. In the event of the tax not being i)aid to the assessor or collector, the Gold Commissioner may, in his discretion, cause the claim u])on Mhich the tax is charged to be offered for sale by public auction, of M'bich sixty days' notice shall be ])osted upon the principal court house of the district in which the claim is situate, and in one news- ])aper, if any, jniblished in such district, and may sell sucli claim, receive the purchase money and execute a conveyance thereof to the ])urchaser. The purchase moivy shall be api)lied in ])ayment of the expenses of advertising and the ])ayiiient of the tax, and any surplus shall be paid into the Treasury in trust for the owner of the claim. In the event of there being no purchaser, or if the price offered shall not be sufficient to pay the tax and expenses of advertising, the land shall absolutely revert to the Province, and the Crown grant thereof shall be deemed void. The assessor or collector may, before offering the claim for sale, sue the owner or occupier for the tax, in a sum- mary manner, before any justice of the peace, who may adjudge the same to be paid; and in default of ])ayment, the amount due, to- gether with costs, may be recovered ])y distress of flie goods and chattels of the person against whoir^ tiie tax may be recovered; Pro- vided that if the owner of any such mineral or ])lacer claim shall establish, to the satisfaction of the (Jold Commissioner, Alining Re- corder, or assessor and collector of the district in which the claim lies, that the sum of two hundred dollars has been cxpemled thereon in labour or improvements in any one year, then the tax shall not be levied in respect of such claim for such year. 18!)(), c. 154, s. Kio. laH. "Where a claim has been recorded under any name, and the owner or his agent is desirous of changing the sanu', the Recorder of said mining division may, upon application being made by such owner or agent, and upon payment of a fee of twenty-five dollars, THE PLACER MIXIXa ACT ()"^1 amend the record aecordinjfly; Provided, however, tliat such change of iiaine sliall not in any way alt'ect or prejudice any proceedinjis or execution against the owner of tlie said claim. 189(1, c. 34, s. Ki-l. 1*S4. Whenever, through tlie acts or defaidts of any person other than the recorded owner of a mineral claim or his agent l)y him duly authorized, the evidence of the location or record on the ground, or the situation of a mineral claim, has heen destroyed, lost, or effaced, or is difficult of ascertainment, nevertheless ett'ect shall he given to same as far as possihle, and the Court shall have i)ower to make all necessary inquiries, directions and references in the ])re- mises for tlie purpose of carrying out the ol)ject hereof, and vesting title in the first hoiia fide acquirer of the claim. 18S)G, c. 34, s. 10."). I !' I i AN ACT TO AMEND "THE PLACER MINING ACT." R. S., CHAPTER 136. HER ^rAJ KSTY, hy and with the advice and consent- of the Legis- lative Assemhly of the Province of British Columbia, enacts as follows : — 1. This Act may l)e cited as "The Placer Mining Act (1891) Amendment Act, 1898." 3. Section 9 of the said Act is hereby amended by tlie addition thereto of the following proviso: (See section 9 of principal Act.) 3. Section 102 of the said Act is hereby repealed and the fol- lowing substituted in lieu thereof: (See section 102 of jjrincipal Act.) 4. Any free miner, or two or more free miners, holding adjoin- ing leases of ])lacer mining ground, may consolidate his or their hold- ings into one holding, not to exceed six hundred and forty acres, by filing with the Mining Recorder a d \ • ■ itory statement containing the nr.me of the company or ])artnei ,) ^\hich is to hold the con- solidated lease, the location and size of each lease, and the ])articMlar interest of each free miner in the leases to be consolidated, and such statement shall be siirned bv the holder or holders of the leases to be ; 1. G22 BRITISH COLUMBIA consolidated. After tiling such declaratory statement, such i'roc miner, or free miners, shall be allowed in each and every year to per- form on any one or more of such leases all the work that is necessary to be performed to hold all such leases, and any water grant that has ])een made for the working of any one of such leases shall, after the consolidation of such leases, bo ajipnrtenant to and may be used on any one of such consolidated leases; and provided further, that whcm two or more leases have been consolidated into one holding, as pro- vided in tliis section, and such leases contain a provision that a cer- tain amount of money shall ])e expended in working each of such leases each year in order to hold it, tlie holder or holders of such leases may, in lieu of the reijuired expenditure in work on such leases in each year, pay to the Alining Recorder of the mining division in whicli such leases are situate, a sum equal to twenty-five per cent, of the aggregate amount required to l)e so expended in work on the con- solidated leases, and receive from such Recorder ami record a receipt for such ])ayment; and payment and record thereof in any year shall relieve the jjcrson making it from the necessity of doing any work during the year in and for which and upon the lease in respect of which such i)ayment is recorded. IXSPECTIOX OF METALUFEh'OrS MIXIJ.S ACT G2;j REVISED STATUTES OF BRITISH COLUMBIxi (1897), CHAPTER 134. An Act for securing the safety and good healtli of workmen en- gaged in or about the metalliferous mines in the Province of British Columlia by (he aiipointment of an inspector o"f metalliferous mines. Whereas, it is expedient to secure the safety and good health oi! the men engaged in or about the mines (otherwise than coal mines) in this Province; Therefore, ITer !Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Cohnnbia, enacts as follows: 1. This Act shall be cited as the "Inspection of ^retalliferous Mines xVct, 1897." 1897, c. 27, s. 1 (assented to :^[ay, 1S9T). 'This Act Is an adaptation of the Metalliferous Mines T. filiation Act, 1872, 35 & 36 Vict. (Imp.) c. 77, as amended by subsequent English legislation. 2. T!ie Lieutenant-Governor in Council may ajtpoint an "nspoc- tor of meialliforous mines, or mines of whatever descriplioi other than a mine to Mhich the "• Coal Klines Regidation Act," and mend- ing Acts applies; ho shall be a man of at least seven (7) year ' i)nie- tical experience in mining, whose duties shall be as hereinafter' speci- fied, and he shall receive such salary and allowance as shall be deter- mined by tlie Lieutenant-CJovernor in Council; and before entering upon the discharge of his duties, he shall take and subscril)e to an oath that ho will discharge such duties faithfully. Ih. s. 2. 3. The inspector of mines shall not act as numager, or agent, or les^-ec for any mining, or other corporation, during the term of his office: he sliall give his whole time and attention to the duties of the oiTlcc to which he has been ajipointed; he shall not make a-report of any mine or mining property for any person or persons interested in snch mine or mining property, with the intent to promote or aid in the sale or other conveyance thereof; and this officer violating this provision shall, upon summary iionviction thereof, forfeit and pay a tine of not less than $100 nor more thar. $1,000. Jh. s. f!. i G08 BlilTISU COLUMBIA 4. 'I'lie ^liiiistor of :\Iinc8 shall on receipt of reliable information relating to the health and safety of the workmen employed in any metalliferous mine in the rrovince of IJritisli Columbia, or wJierever lie deei)is such inspection necessary, instruct the insjjector to examine and rej)ort to him the condition of such mine. The mine owner, agont, nuinager or lessee shall have the right to appeal to the ;Minister of ;Mines on any dilTercnce that may arise between such parties and the inspector. On receipt of notice of any serious accident in any mini.', tiie Minister of Klines shall instruct the inspector to enquire into the cause of such accident. Jb. s. -i. 5. 'i"he Minister of Klines shall instruct the inspector to examine and report to him the condition of tlie hoisting macliinery, engines, boilers, whines, cages, cars, buckets, ropes, and cables in use in any of the metalliferous mines in operation in the Province of British Cohuubia; the api)liances used for the extinguishing of tires, the man- ner and method of working and timbering tlie shafts, drifts, inclines, stopes, wi)izes, tunnels, and up-raises through which persons pass w hile engaged in their daily labours, of exits from the mine, and how the mine is ventilated, together with the sanitary condition of the same, and also how and where all explosives and inflammable oils and supplies ^ire stored, also the system of signals used in the mines. The inspector siiaU not give notice to any owner, agent, manager, or lessee of the time when such insi)ection shall be made. Jb. s. 5. O. iCvcry owner, agent, manager, or lessee of any metalliferous mine in this Province shall admit the inspector to such mine on tlie exhibition of his certilicate of appointment, for the purpose of mak- ing the examination and inspection jjrovided for in this Act, when- ever the mine is in act of o[»eratioii, Init said inspector shall not un- necessarily obstruct the working of said mine. Jb. s. G. If the owner, agent, manager, or lessee refuses to admit the in- sjiector to such mine, or to render him necessary assistance for inspec- tion, such owner, agent, manager, or lessee shall lie guilty of an oU'enco against tliis Act, and sliall be Lab'.e, U|)on summary convic- ti in, to a fine of not less than $10 nor more than $r)00 for each and every such refusal or neglect. Jb. s. 0. T. If the inspector shall reveal any information in regard to ore bodies, chutes, or bodies of ore, or location, course, or character of under-ground workings, or give any information or opinion respect- ing any mine, obtained or formed by him in making such inspection. INSPECTIOX or METALLIFEROUS MIXES ACT G25 111- 1)CC- kvie- iiinl upon sumuiary conviction thereof, the said inspector shall l)o reninvcd from office and fined in a siiiii of not less than $100 nor more than $1,000. Jh. s. T. H. Tho inspector shall exercise a sound discretion in the advanve- nient of tlio ohj\cts of tliis Act, and in the enforcement of the regu- lations made hereunder; and if he shall find any matter, thing, or in'aetiee in or connected witii any nietalliferous mines to he dangerous or defective, so as to, in his opinion, threaten or tend to the bodily injury of any person, the inspector sliall give notice in writing thereof to the owner, stating in such notice the particulars in which he con- siders such mine, jiart thereof, or [)ractice, to I)e dangerous or defec- tive, he shall order the same to be remedied. Jh. s. 8. 1>. In casL' the owner, agent, manager, or lessee, after a written notice being duly given, does not conform to or disregard any lawful order of the inspector made hereunder, or disobeys any regulation made lierennder, any Court of competent jurisdiction may, on appli- cation or information of the ^Minister of Klines by civil action, enjoin or restrain Mith costs the owner, agent, manager, or lessee from wcu'k- iiig the same until it is made to conform to the provisions of this Atit; and such remedy shall he cumulative and shall not atfect anv,. other proceeding against such owner, agent, manager, or lessee, authorized by law for tlie matter c(mi|»laiiied of in such action. Jh. s. i). lO. Any owner, agent, manager, or b'ssee having charge or operating any metalliferous mine, whenever loss of life or serums acci- dent shall occur in connection with the working of such mine, shall give notice immediately, and report all facts thereof to the ^linister of Mines or the inspector, and the said inspector shall investigate and ascertain tho causes and make a report, which shall be tiled in the office of the Minister of Klines for future reference. Ih. s. 10. 11. Tlie I.ieutenaiit-Oovernor in Council shall have the iiower at any time to remove from ollice the insi)ector for incompetency, ne- glect of duty or abuse of the privileges of his olfice. //). s. 11. I'll. ore ir of liect- liou. E^r^[.ovME^•T ok imvmalks, ciULnuKX .wn uovs. / lU. Xo boy under the age of twelve years of age; no woman or girl of any age. and no Chinese or Jajianese jierson shall be employed in or allowed to be Un' the purpose of employment in. any mine to which this Act applies below ground. Ih. s. 12. 40 ^M 026 BRITISH COLUMBIA IS. Xo boy under the age of sixteen years shall l)e cmployod underground for more than fifty-four hours in any one week, or more than ten hours in any one day. Ih. s. 13. 14. I^he ])c'rson in charge of the machinery for raising or lower- ing men must be a male of at least eigiiteen years of age; but in no case shall the jjerson in charge be of tiie Chinese or Japanese race. Ih. 8. 14. (1) The owner, agent, or manager of any mine to which this Act applies, shall keep in the office at the mineia register, and shall cause to lie entered in sucli register the name, age, residence, and date of Ih'st eni])l()yiiient of all boys of the ago of- sixteen, and of all such young jjersons under the ago of sixteen years, wlu) are employed in thcf' mines below ground, and of all women and young iiersons and children employed al)ove ground in coiniection with tho mine, and shall produce such register to any inspector under this Act at'tho mine at all reasonable times when required by him, and» allow him to inspect and copy the same. WAGES. lis. Xo wages shall be paid to any person emi)loyed in or about any mine to which this Act ai)plios atV)r witliin any ])ublic house, boer shop, or place for the sale of any s])irituous or fermented li((uor, or other houses of ontortainment, or any office, garden or ])lace 1)e- longiiig or contiguous thereto or oocui)ied therewith. Ih. s. 15. RETl'RXS, NOTICES AND AHANDONMENTS. 16. On or Ijofore tlic ir)th day of January in every year the owner, agent, manager, or lessee, of every mine to wliich this Act ap- plies shall send to tlio Bureau of ]\Iim's. in tiu' city of Victoria, on be- half of the ]\Iinister of ]\Iines, a correct return specifying witii rcs])ect to the year ending on the i)recoding 31st day of December the ([uan- tity of metal or ore -.'rought in sucii miiu', aiul the numl)er of persons ordinarily employed in or al'.tut such mine above or below ground, and any other information as may be required. Ih. s. IH. 17. Tlie return sliall lie in such form as may be from time to time i)rescribcd l)y the ;Ministcr of Minos, and the inspector or tho Provincial mineralogist shall from time to time on application fur- nish forms for the purpose of such return. Ih. s. 17. IMiPlX'TIOX OF M.JTALLIFimoUS J//.\A'.S' ACT G37 IS. The Ministor of Minos inny publisli the afjffrogato results of sncli returns, Liit the individual returns shall not be puhlislied witli- oiit the consent of the person making the same, or the owner of the mine to which they relate, and no person exce])t the inspector or ])ro- vincial mineralogist, or the Minister of Mines shall he entitled with- out such consent to see the same. All such infornuition shall he used for statistical jjurposes only. Jh. s. 18. III. Where in or al^out any mine to which this Act applies, whether above or below ground, either — (1) Loss of life or any personal injury to any person employed in or about the mine occurs by reason of any explosion of gas, powder or any steam boiler; or {2} Loss of life or any serious personal injury to any ])orson em- ployed in or about the mine occurs by reason of any aeciileiit what- ever, the owner, agent, manager, or lessee, of the mine shall, within HA: hours next after the explosion or accident, send notice in writing of the explosion or accident, and of the loss of life or personal injury occasioned thereby, to the ins|)ector, and shall specify in such notice the character of the explosion or accident, and the nund)er aiul names of lersnns killed ami injured, resi)ectively. When any personal injury of which notice is re([uired to be sent under this section results in the death of the person injured, notice in AViiting of the death shall be sent to the inspector within 21 hours after such death comes to tlie knowledge of the owner or agent. lb. s. lit. 20. Where any working is comuu>nced for the opening of a new )iiine, or the working of a mine is abandoned, the owner, agent, nmn- ager, or lessee of such mine shall, within two months after such com- mencement or abandonment, give notice thereof to the insiiector; ].rovided that this section shall only apply to any working or mine in which more than twelve persons are (U-dinarily employed below ground. Jb. s. "^0. 31. Where any mine to which this Act applies is abandoned, or the working thereof 'discontinued, at whatever time such abandon- ment or discontinuance occurred, the owner thereof, and every other person interested in the minerals of such mine, shall cause the top of the shaft, if there be such, to be and to be kept securely fenced for the prevention of accidents.^ lb. s. 21. > Evans v. Mostyn, (1877) 2 C. P. D. 547. The respondents (owners in fee of mines), demised a lead mine for a terra of years, subject to a > . li'r- I'l Vi (J2S nitiTisn coi.i MiiiA rent or royalties, such royaltlea to be paid upon tho place where the ore should have been Rotten or weighed, and beton> it could bo taken away; the lease also reserving to the respondents powers of distress and re- entry if the royalties should be in arrcar. Tho lessees censed working the mino and allowed It to remain insufficiently fenced. It was held, that, although the lea«o was still in force and undeter- mined, the respondents were guilty of an offence under section 13 of the English Act, 35 & 36 Viet. c. 77, as persons " Interested in the minerals of the mine.' Lindley, J., said at p. 552: " The real question is whether the lessors are persons interested in the mines under section 13. The l.-inguage of (hat Act is to throw upon nil answering the description of owners or persons interested in the minerals of the mine the obligation to fence abandoned shafts. If that had stood alone there could have been no doubt th.at these respondents were either owners of the mine or persons Interested In the minerals thereof. Section 41, however, shows they are not owners. Then are they perscms having an interest In the minerals of the mine? They are the immediate lessors, the persons to whom rent is payable. They have by the lease a lien for the rent and royalties upon the minerals, and a power to distrain, and ii power of re-entry. Is it possible that persons in that position are not " persons interested in the mln(>rals of the mine," within tho meaning of the 13th section? They who contend that they are not liable are bound to show who answer the description more jipproprLatelv than these respondents. We are driven to say that the persons contem- plated are the persons who have a present interest in the minerals and not a remote reversioner, as has been suggested." In Ark Wright (appellant) v. Evans, (1880) 49 L. .T. M. C. 83. Tho appellant was lessee of a lend mine and of all the duties arising there- from, under lease from Duchy of I^ancaster, by which he had to pay aa rent, all he might annually receive In respect of the mine, and an addi- tional 5 shillings. The mine was demised to him subject to a custom by which all the subjects of the realm have the right to search there for lead ore, upon paying certain duties, and the appellant had no pecuniary Interest in the mine or in the minerals thereof. Lindley, J. Under this lease, the lessee, the appellant, has to hand over to the Crown, all that he gets under it, and he has no pecuniary benefit from it whatever. 'I'eohnically he is lessee, but instead uf being lessee in the ordinary sense he is really only receiver and agent for the Crown. Now is such a person an owner or person interested in the minerals under the statute of 1872? He has, so far as I can see, no interest what- ('v«>r in the minerals except so far as he is lessee. Then the question Is whether he is owner within the meaning of section 41 of the Act. He comes within only tho negative part of the section, that " the term owner does not include a person who merely receives a royalty or rent from a mine, or is merely the owner of the soil, and not interested in the minerals of the mine." It appe.'irs to me that he is in the position of a mere owner of the soil, and that he has no interest in the minerals save that he has jySPKCTIoy OF MUTALUFEHOlfi MI^Efi ACT 020 W: tPchnlciilly an interest. In the dues and royalties, all of which ho has to band ovor to the Crown after he has received them. I, therefore, do not think that the appellant is the " owner " or " person Interested " within the meaning of the Act, and that un these grounds the decision of the magistrates ought to be reversed; ((.r.) the appellant was held not liable for not fencing. The interpretation clauses of the Englis-h Act were not adopted in British Columbia. As to what is sufllclent fencing, see Foster v. Owen, (1892) 9 T. L. K. 22. 3tJ. "Wlu'fc imv mine to whidi this Act applio?, in wliicli nioro than twelve ]iorsons have ordinarily heen ciiii)l()ye(l l)el()\v frrouiKl, is nljiinduncil, ilie owner oL' such mine at the time of the aliamloiiment sliall, within three months after .such ai)an(loninont, send to the ^lin- ister of Klines an accurate plan, on a scale of not loss than thirty feet to tlio inch, or on such other scale as tlie ))laii last used in the mine is constnutcd on, showing tlie boundaries of the workings of such niinj up to the time of the ahandoniuent, witli the view of its being ]'i'escrved under the care of the Minister of Klines; but no person ex- cept the inspector or the provincial niinerah)gist shall be entitled, vilhout the consent of the owner of the mine, to see such jdan when .'o sent until after the lapse of ten years from the time of abandon- ment; provid( d that this section shall not apply to any mine opened np by means of tunnels or adit-U'vels, below which exU'iid no work- ings in whic'h water may accumulate, lb. s. '2'i. PLANS OF MIXICS. 3Ji. The owner, agent, manager, or lessee of every mine to whiclr this Act applies shall keep in the ollice of the mine, or in the prin- cipal oilice of the mines belonging to the same owner in the district in which the mine is situated, an accurate plan of the workings of such mine, showing the workings up to at least six months ])reviously, other than wiu'kings which were last discontinued at a date more tluin twelve months before the commencement of this Act. (1) The owner, agent, manager, or lessee of the mine siiall pro- duce to an inspector under this Act, at one of the aforesaid ollices, such plan, and shall, if requested by tlie inspector, mark on such ])lan the progress of the wori\ings of the mine up to the time of sucli pro- duction, ami shall allow the inspector to examine the same. (2) If the owner, agent, manager, or lessee of any mine fails to keep such ])lan as is ])rescribed by this section, or wilfully refuses to produce or allow to be cxamitied such ])lan, or wilfully withholds any DltlTlSll COIAMlilA l)ortioii ol' liny iilaii, or ((miciils any |mit of tlu- \vorkinj,'s ol' liis iiiiiu', or prodiicos an iiiipiTlVct or inaccurate' plan, unless lie shows that ho was ignorant of such concealment, iiii|)erfectlon, or inaccuracy, ho fhall he ^'iiilty of an olVencc against this Act; and further, the iii- 8|)Cctor may, liy notice in writing (whether a penalty for such ollVnce hns or has not heen inflicted), reiiuire the (iwner, ageni, manager, or lissc ' t) cause an accurate plan, such as is prescrihed hy this section, to he made within reasonahle time, at the expense of the owner or lessee of the mine, on a scale of not less than a scale of thirty feet to one inch, or on such other scale as the plan used in the mine is con- structed on. (;{) If the owner, agent, manager, or lessee fail, within twenty days, or such further time as may he shown to be necessary, after the requisition of the inspector, to make or cause to he made such plan, he shall he guilty of an olfeiice against this Act; Piovided, that this section shall apply only to a mine to which this Act applies, and in which moie than twelve persons are ordinarily employed below ground. Ih. s. •^.'!. ." , ' INSPI'XTOk's KKI'OKT. !84. The inspector shall make an annual report of his i)roceed- ings during the jireceding year to the Minister of Klines, which re- port shall be laid before the liegislative Assembly. (1) The ^Minister of Klines may at any time direct an inspector to make a special report with res])ect to any accident in a mine to which this Act ajiplies, which accident has caused loss of life or serious ]iersonal injury to any person, and in such case shall cause Fiich report to be made public at such time rand in such manner as he thinks e.\j)cdicnt. 2»'5. The following general rules shall, so far as may be reason- ably jiracticable, he observed in every mine to which this Act ai)i»lies. VKNTri.ATrON. (1) An adequate amount of ventilation shall be constantly |)ro- dnced in every mine to such an extent that the shafts, winzes, sumps, levels, stnpts. and working ulaces of such mine, and the travelling roads to and from such working ])laces. shall be in a fit state for work- ing and }!a-sing therein. /.Y.sT/vY'/vo.v or mi:talufiu{ovh mixes act am EXPLOSIVES. (8) Qiinpowdcr, (lynnniito, or other cxplosivo or inllaniiiiablc Hiibstiiiico shall not be stored nnywhcro under j^round in the mine, l)iit shall 1)0 stored in a niajiazinc provided only for tliis purpose. Said nuijj:azinc sliall 'jo placed I'ar enoiijjh from any sliaft, tunnel, on<.dnc or iiiiniiiji hiiildin^'s as to insure their remaining- intaet iu case o! the exidosion nl' tiie stock of explosive in said niaj^azine. (;?) All explosives in excess of the ainmiiii re(^.i..i\\i I'or a sliift's or day's work shuU be kept in the magazine. (1) Macli nune to which this Act ap|ilies slvall have a suitable device for thawinj,' such explosives as nuiuirc it, and such device shall be heated only l)y the use of hot water or steaiu. (')) Oils, candles, and other intlaMiinal)le snl)stances, fuse and de- tonating caps, shall not l)e stored witli tlu> explosives. (G) An iron or steel tamping roil shall not be used for raiuming or tamping the wadding or first jiart of the tamping on the explosives. FIRE PROTECTIOX. (7) livery plant using steam, where boiler, engine, bhieksmith shop and shaft are iu the same i)uildiiig, shall have a hose and hose- connection to injector or feed pump, and keej) same ready for instant nse, and the line of hose shall be sullicient to reach t!ie farthest point of said plant. CODE or SIGNALS. (8) Kach mine using a code of sigiuds shall use the following code: I Bell — To hoist (when the bucket, skip or cage is not in mo- tion). I Bell — To stop (when the bucket, skip or cage is in motion). II Bell— To lower. ^ir '\ t U i 1! 032 BRITISH COLUMnil III — I Bell — With care — to hoist (man on). Ill — II Bell — "With care — to lower (man on). Other signals to meet other demands may he arranged, hnt the code of signals in full shall he plainly printed and placed in the engine-room, at the top of the shaft, and at each station or landing or level, together with a notice and penalty for wrong or improper signals. (9) The hell-rope or other device for signalling shall he so constructed that signals can he sounded clearly and easily at the sur- face from any station, landing or level. IIOISTIXG AND LANDING MEN. (10) The hoisting or lowering of employees at any mine shall be permitted or positively ])rohiI)itcd. Every working vertical shaft in which persons are lowered or raised shall, if exceeding three hundred feet in depth, be provided with a cage and guides. Such cage to he provided with a siiiricient iron or steel covering or hood and catches. DAILY INSPECTION OF MINE. (11) A competent person or persons, who shall be appointed for the purpose, shall, once at least every twenty-four hours, examine the state of the external i)arts of the machinery, and the state of the head-gear, working ])laccs, levels, inclines, ropes and other works of the mine which are in actual use, and once at least in every week shall examine the state of the shafts or inclines by which persons ascend or descend, and the guides, timbers and ladder-ways therein; shall make a true report of the result of such examination, and such report shall he recorded in a hook to he kept at the mine for the pur- pose, and shall be signed by the person who made the same. SHAl-TS. I ) (12) Every shaft, incline or stope in which mechanical appliances for lioisting are used, and which is a means of travel for employees, shall he of at least two cominirtments, and shall be well tim])ered. (13) The top of every shaft shall be covered, or so protected as to prevent persons or foreign objects falling into said shaft. IXSPECTIOX OF METAUAFFAiOli'i MISF.H ACT 038 STATIONS. (II) J'^ifli station or huHliiif;- sluill have a passage-way around cno sido of the shaft wliere the level or drift extends l)oth ways from th(! said shaft. LADDER-WAVS. (1')) A ladder permanently used for the ascent or descent of persons in the mine shall l)e sutliciently strong for the purpose de- manded, and shall be lirndy fastened and kept in good repair. In a veitieal shaft the ladder shall not he iixed in a vertical or over- hanging position, and shall be inclined at the most convenient angle which tlu' space in which the ladder is Iixed allows, and every such ladder shall luive suiistantial i)latforins at intervals of not more than twenty feet. (IG) The said platform shall be closely covered, with the excep- tion of an ojiening large onougli to permit the passage of a man, and shall be so arranged that by no means could a person fall from one ladder through the opening to the next ladder. (IT) The ladder-way in a shaft, incline or stope shall be sepa- rated l)y a strong partition from tlie compartment or division of the shaft, incline or stope in which the nuderial of the mine is hoisted. WINZES AND MILL-IIOLKS. (18) Each winze or mill-hole extemling from one level or drift to another level or drift shall be protected at the top by a cover or a i;uard rail. EXITS. 'il (19) As soon as it is practicable each mine \o which this Act applies ."ihall have two or more exits from the said mine, and levels . l']very ]ierson who is guilty of any ofPence against this Act shall 1 e liable to a jionalty not exceeding, if he is an owner, agent, niannger or lessee, one hundred dollars, and if he is any other person, ten dollars, for each offence ; and if the ins])ector has given written notice of any sucli offence, then, in case of an owner, agent, managt'r or lessee, to a further ])enalty not exceeding one hundred dollars and not less than ten dollars, for every day after such notice that such offence continues to jje committed, and in cases of other per- sons, to a further penalty, not exceeding five dollars, for every day after sucli notice that such offence continues to l)e committed. Ih. JitO. AVhcrc a jjcrson who is an owner, agent, manager or lessee of or a person employed in or al)out a mine is guilty ot' any olfence against this Act, which, in tlie oi)inion of the Court tluit tries the case, is one which was reasonably calculated to endanger the safety of the persons employed in or al)out tlie mine, or to cause serious per- sonal injury to any of such ])ers()ns, or to cause a dangerous accident, and was committed wilfully I)y the personal act, personal default, or personal negligence of tiie ])erson accused, sucli person shall l)e liable, if the Court is of opinion that a pecuniary penalty will not meet the circumstances of the case, to imprisonment, with or without hard labour, for a period iu)t exceeding three months. tJl. If any jierson feel aggrieved liy any conviction made by a Court of summary jurisdiction on determining any iiifiUMnatiim under this Act, the person so aggrieved may appeal therefrom, lb. s. 31. 32. All offences under this Act, and all ]ienalties under this Act, and all money and costs l)y this Act directed to V)e recovered as pen- alties, may be ]irosecuted and vecovcred in a summary manner before a justice of the peace. lb. s. 3?. ;■ i snjaaam UlilTlSU COLUMBIA an. 'J'lio following provisions shall have cll'cct : (1) Any coniiilaint or inroniiadon niado or laid in piirsuanco of this Act shall bo made or laid witiiiii six nionths rroni the lime when Uie n. alter oi' such complaint or infoniiation respectively aroae ; (v) The description oi any oil'enec under this Act, in, the words of this Act, shall be sullicienf in law ; (;5) Any exee])tion, exemption, proviso, excuse or 38 B1UTISU COllMlihi EEVISKl) STATUTES OF BRITISH COLUMBIA (ISOT), CIIAPTKR 137. An Act to encourage C'(jiil Alining. TTKK :MA,IKSTy, l)y iuid with the advice and consent of tlio -'— L Legislative Assenil)lj of the Province of British Columbia, enacts as follows: SHORT TITLE. 1. This Act may be cited as the " Coal Mines Act." C. A. 1888, c. 83, s. 1. rROSl'IiCTIXG LICENSE. 9. Any j)erson desirous of jirospecting for coal or iietroJeum and acquiring a lease of any lands held by the Crown for the benefit of tl'.e Province, under wliich coal measures or petroleum are believed to exist, or wisbing to jjrocure a license for the purpose of prospecting for coal or petroleum upon lands under lease from the Crown, in which the mines and minerals, and power to work, carry away, and dispose of the same, is excepted or reserved, shall, before entering into possession of the i)articular part of said coal lands he or they may wish to acquire and work for coal, place at one angle or corner of tlie laml to l)e applied for a stake or post, at least four inches sijuare, and standing not less tinin four feet above tlie surface of the ground; and upon sucb initial post lu' shall inscribe his name, and the angli' rej)resentcd thereby, thus : "A. U.'s \. Iv corner" (meaning north- east corner), or as the case may l)e, and shall cause a written or j)riiite(l notice of liis intention to apply for such a license to be posted on some conspicuous part of the land a]»plied for by him, and on the Covernment ollice of the district for thirty clear . IW. If. in any oi' either of the cases aforesaid, the said arltitrators ehall refuse, or shall, for seven days after retpiest of either party to such arhit ration, lU'iilect to appoint an nmpfre, two Justices of the Peace shall, on the application of either pai'ty to such arhitration, aj)- ]ioint an umpire: and the decision of such um|)ire on the matters on which the arl)itralors shall dilfer shall he final, fh. s. 'io. 20. If, when a single arbitrator shall have been appointed, such arbitrator shall die or become incapable to act before he shall have made his award, tlu' matters referred to him shall be determined, under the jjrovisions of this Act, in the same manner as if such ar- bitrator had not b(>en ai)|)ointed. Ih. s. 2\. 21. If, where more than one ai'biti'ator has been api)i)inted, either of the arbitrators refuse or for seven days neglect to act, the other arbitrator may proceed e.r parte; ami the decision of such other ar- bitrator shall be as eifectual as if he had been the single arbitrator appointed by the other parties. Ih. s. 'i'l. U!3. If, where more than one arbitrator shall have been appointed, {ind wheri' neither of them shall neglect or refuse to act as afore- said, such arbitrators shall fail to make their award M'ithin twont}'- one days after the day on which the last of such arbitrators shall have been appointed, or within such extended time (if any) as shall have been a|)pointcd for that puri)ose by both such arbitrators under their hands, the matters referred to them shall be determined by the um- pire to be appointed as aforesaid. Ih. s. 2:?. 93. The costs of the arbitration and award shall be in the dis- cretion of the said arbitrators or nmi)ire, who may award by whom, to whom, and in what manner the same may be paid. Ih. s. 24. 044 nnirimi cullmuia 24. The subiiUHsion to any such arbitration may l)o made a ruh; of tlio Siipreino Court, on the application of either of tlie parties. lb. a. 5J5. 25. No award shall be set aside foi* irregularity or error in mat- ter of form. lb. s. 2(i. 26. The arbitrators or umpire may, by summons or order in vriting, signed by any one of them, to be served upon or left at the last usual plaee of residence of the ])ers()n to whom it is addressed, command the attendance, from any part of the province, of any wit- ness, or the production of any documents required by any of the parties, and nuiy swear the said witness to testify truly respecting the matters on which lie is to be interrogated; and the disobedience of such summons or order shall subject the person disobeying to a pen- alty of not less than live dollars, nor more than twenty-five dollars, to be recovered before any Justice of the Peace, and levied nnder the warrant of such Justice, by distress and sale of the goods and chattels of the offender, unless such person establishes reason- able cause for such disobedience. lb. s. 27. COAL MiyKH li'EaiL.iTlOyfi ACT fi45 liEVJSKD STATUTES OF BRITISH COLUMBIA (181)7), CIlAl'TEH 138. All Act lo make Koyiilnlions with respect to Coal !Miiics. HKl? :^rA.^^:STY, l.y and Willi the advice and consent of the Lc^ishilive Asscnil)ly of the Pnivince of Britisli Coliunbia, enacts as follows: — SIIOKT TITLK. 1. This Act * may lie cited as the " Coal Mines Regulations Act." = '' C. A. 1888, c. 81, s. 1. ' 1877, No. 15, s. 1. -The principal Act has been amended as follows: In 1890, by c. 33, s. 1 (26 April, 1890). See s. 4 hereof. In 1894. by c. 5 (11 April, 1894). Repealed In 1895, c. 38, s. 7. In 1895, by c. 38 (21 February, 1895). Sec ss. 69, 69a, 77 hereof. ' The English legislation, which was consolidated by the Coal Mines Reguljition Act, 1887 (50 and 51 Vict. c. 58), have been largely used as the model for this Act, but in applying the decisions under the English Act the variations must be considered. I : II IXTKRl'RETATIU.V. 3. In this Act, unless the context otherwise requires: — The term '" iiiine " includes every shaft in the course of being sunk, and every level and inclined ])lane in the course of being driven for coniniencing or opening any coal mine, and all the shafts, levels, planes, works, machinery, tramways, and sidings, both below ground and above ground, in and adjacent to a coal mine, and any such shaft, level, and inclined jdane, and belonging to the coal mine. The term " shaft " includes pit. The term " ]»lan "' includes a map and section, and a correct copy or tracing of any original plan as so defined.* • See Evans v. Lady Mostyn, etc., (1877) 2 C. P. D. 547. G46 BRITISU COLLUDIA The term "owner,"'- when used in rehition to any mine, means any jierson or hody corporate who is the immediate proprietor, or lesbee, ' or oceujjier of any mine, or of any i)art thereof, and does not in,.'iiul(? a person or hody incorjjorate, who merely receives a royalty.* rent, or line from a mine, or is merely the projjrietor of a mine sub- ject to any lease, grant or license for the working thereof, or is merely tlie owner of the soil, and not interested in the minerals of the mine, but any contractor for the working of any mine or any part thereof, shall be sid)ject to this Act in like manner as if he were an owner, lilt so as not to exempt the owner from any liability. - R. V. Brown, (1857) 7 E. & B. 757. ' Stott V. Dickinson, (1876) 34 L. T. N. S. 291. * Arliwright v. Evans, (1880) 49 L. J. M. C. 82. The term " agent," when used in relation to any mine, means any person having, on behalf of the owner, care or direction of any mine, or of any part thereof, and superior to a nuuiager appointed in pur- suance of this Act. The term " ]Minister of !Mines "' means the person so acting for the time being. The term " child " means a child under the age of twelve years. The term *' young i)erson " means a person of the age of thirteen years and under the age of fourteen years. The term " woman " means a fenude of the age of fourteen years and u])wards.'' C. A. 1888, c. 84, s. 2. M877, No. 15, s. G5; 18S3, c. 2, s. 2. EMPLOY.MEXT OF WOMEN, VOUXG I'EKSOXS AXU ClllLDKEX. 3. Boys under twelve years of age shall not be eui[tloyed in or about a mine to which this Act applies. ^ 1888, Xo. 84, s. 3. ' 1877, No. 15, s. 2. 4. 1 Xo lioy under the age of twelve years, and no wounin or girl of any age and no Chinaman,- shall be employed in or allowed to be for the purpose of employment in any mine to which this Act applies below ground.^ C. A.'l888, c. 81, s. 4, and 1890, c. 3:3, s. 1. ' 1877, No. 15, s. 2. ■ Inserted by 1890, c. 33, s. 1 (26 April, 1890). ' In re Coal Mines Regulation Amendment Act, 1890 (1896), 5 B. C. R. 306, it was held by tlie Supreme Court of B. C. that this section, as amended as above, is within the constitutional power of the Provincial Legislature as being a Regulation of Coal Mines, and is not tiUiv ihrti, as an interference with "aliens." COAL MINES ItEOULATIOXS ACT G-17 a. * A boy of the age of thirteen and under the age of fourteen years shall not be employed in or allowed to be, for the purpof-e of employment in any mine to which this Act applies, below ground, ex- cept in a mine in which the IMinister of Klines, by reason of thinness of the scams of such mine, considers such employment necessary, and by order published as he may think lit for the time being allows the same, nor in such case: — (a) For more than five days in one week; or (b) If he is employed for more than three days in any one week for more than six hours in any one day; or (c) In any other case for more than six hours in any one day; or (d) Otherwise than in accordance with the regulations herein- after contained. 1 C. A. 1888, c. 84, s. 5. '1877, No. 15. s. 4. O. A 1)oy of the age of twelve and xiuder the age of fourteen siiall not be employed in or allowed to l)e, for the purposes of em- ployment in any mine to which this Act applies, below ground for more than thirty hours in any one week or more than six hours in any one day, or otherwise than in accordance with the regulations hereinafter contained.^ C. A. 1888, c. 84, s. G. • 1883, c. 2. s. 1. 7. * For the purpose of the provisions of this Act with resiieot to the em])loyment of boys and nude young ]iersons in a mine l)elow ground, the following regulations shall have etfeet, tliat is to say: — (1) There shall be allowed an interval of not less than eight hours between the period of employment on Friday and the period of emi)loyment on tlie following Saturday, and in other cases of not less than sixteen hours between each period of employment; (?) The ])eriod of each employment shall be deemed to begin at the time of leaving the surface, and to end at the time of returning to the surface; (3) A week sball be deemed to begin at midnight on Saturday night, and to end at midnight on the succeeding Saturday night. (-1) Xo boy under fourteen years of age shall work lielow ground ' for more than six hours in any one day.^ C. A. 18S8, c. 81, s. 7. '1877, No. 1.5, s. 6; ISEi. r. 2. s. 2. m .i ■ I' i G-18 BRITISH COLUMBIA S. * With respect to women, young jDersons, and children em- ployed above ground in connection with any mine to which this Act applies the following provisions shall have effect: — (1) Xo child under the age of twelve years shall be so employed; (2) The regulations of this Act with respect to boys under four- teen years of age shall apply to every child so employed; (3) The regulations of this Act with respect to male young per- sons under fourteen years of age shall apply to every wo- man and young person so employed, (4) Xo woman, young person, or child shall be so employed be- tween the hours of nine at night and five on the following morning or on Sunday, or after two o'clock on Saturday afternoon; (5) Intervals for meals shall be allowed to every woman, young person and child so employed, amounting in the whole to not less than one-half hour during each period of employ- ment which exceeds five hours, and to not less tlian one hour and a half during each period of employment which exceeds six hours. The provisions of this section as to the employment of women, young persons, and children after two o'clock on Saturday afternoon, shall not apply in the case of any mine so long as it is exempted in writing by the Minister of Mines. C. A. 1888, c. Si, s. 8. ' 1877, No. 15, s. 7; 1883, c. 2, s. 2. 9. ^ The owner, agent, or manager of every mine to which this Act applies shall keep in the office at tlie mine, a register, and shall cause to Ijc entered in such register, the name, age, residence, and date of first ein])loyment of all l)()ys of the ago of twelve, and under the age of thirteen years, and of all male young i)ersons under the age of fourteen years who are employed in the mine below ground, and of all women, young persons, and children employed aI)ove ground in connection with the mine, and shall produce sucli register to any inspector under tiiis Act, at the mine at all reasonal)le times when required by him, and allow him to inspect and copy the same.^ C. A. 1888, c. 84, s. 0. ' 1877, No. 15, s. 8, part; 1883, c. 2, s. 2. 10. ^ Tlie immediate employer of every boy or male young per- son of the ages aforesaid, other than the owner, agent, or manager of COAL MIXES REGULATIOXS ACT Gii) the aiiinc, before lie causes such boy or male young person to be in any mine to which this Act applies below ground, shall report to the luanager of such mine, or some person appointed by such manager, that lie is about to emjdoy him in such mine.^ C. A. 1888, c. 8-1, s. 10. ' 1877, No. 15, s. 8, part. 11. ' Where there is a shaft or inclined i)lano or level in any mine to which this Act applies, whether for the purpose of an en- trance to such mine or of a communication from one part to another ])art of such mine, and persons are taken up or down aloi^g such shaft, plane or level l)y means of an engine, windlass, or gin driven or worked by steam or any mechanical power, or by an animal, or by manual labor, a person shall not be allowed to have charge of such engine, windlass or gin, or of any part of the macliinery, ropes, cliains or tackle connected therewith, unless lie is a male of at least eightoon years of age. Wlien the engine, windlass or gin is worked l)y an animal, the person under whose direction the driver of the animal acts shall, for the jjurposes of this section, 1)0 deemed to be tlie person in charge of the engine, windlass or gin, l)ut such driver sliall not 1)C under twelve years of age. C. A. 1888, c. 84, s. 11. '1877, No. 15, s. 9. 13. 1 If any ])erson contravenes or fails to comply witli or permits any person to contravene or fail to comply witli any provision of this Act with respect to the employment of women, girls, young persons, boys. Chinamen, or cliildren, or to the attendance of boys at school, or to the registry of boys and male young })orsons, or of women, young persons and children, or to the reporting the intended employment of boys or male young persons, or to the employment of persons about any engine, windlass or gin, he shall be guilty of an olfence against this Act, and in case of any sucli oonlravention or non-comi>liance by any })erson whomsoever, the owner, agent and manager sliall each be guilty of an offence against this Act, unless ho prove that he had taken all reasonable means by jmblishing and to the best of his power, enforcing the i)rovisions of this Act to prevent such contravention or non-com])liance. ('. A. 1888, c. 84, s. 12. ' 1877, No. 15, s. 10. part. 13. ' If it apjiear that a child, boy, or young person, or a person employed about an engine, windlass, or gin, was employed on the representation of his ])arent or guardian that he was at that age at ^vhich his emjdoyment would not be in contravention of this Ait, and under the belief in good faith that he was of that age, the owner, ill!:,.: ft; It |l I 'I ll ill 050 BNITISU COLL Aim A agent or numagor of the mine and employer shall be exempt from any penalty, and the parent or guardian sliall for such misrepresentation lie deemed guilty of an oil'ence against this Act. C. A. 1888, c. 81, s. 13. • 1877, No. 15, s. 10, part. WAGES. 14. ^ Xo wages shall he paid to any person employed in or about any mine to which this Act applies at or within any public house, beer shop, or place for the sale of any spirits, beer, wine, cider, or other spirituous or fermented liquor, or other house of entertain- ment, or any otllce, garden, or ])laco belonging or contiguous thereto, or occui)ied therewith. C. A. 1888, c. 84, s. 14. ' 1877, No. 15. s. II, part. 1*5. ^ livery ])erson who contravenes or fails to comply \vith, or ]iermits any jjcrson to contravene or fail to comply with, the last pre- ceding section shall be guilty of an olTence against this Act; and in the event of any such contravention or non-compliance by any per- son whomsoever, the owner agent and manager shall each be guilty of an oiTence against this Act, unless he prove that he had taken all reasonable nu'ans by ]iublishing, and to the l)est of his power enforc- ing, the provisions of the last preceding section to prevent such con- travention or non-comi)liance. 1888, c. 84, s. 15. •1877, No. 15, s. 11, part. Hi. * Where the amount of Mages paid to any of the persons employed in a mine to which this Act ap])lies depends on the amount of coal gotten by them, such persons shall, after this Act comes into force, unless the mine is exempted by the ^Minister of ^Nfines, be paid according to the weight of the coal gotten by them, and such mineral shall be truly weighed - accordingly: Provided, always, that nothing herein contained ^ shall preclude the owner, agent or manager of the mine from agreeing with the persons employed in such mine that deductions shall be made in respect of stones or materials other than coal contracted to be gotten, which shall be sent out of the mine with tlie coal contracted to be gotten,* or in respect of any tubs, baskets or hutches being improperly fdled in those cases where they are filled l)y the getter of the coal or his drawer, or ]»y the person immediately employed l)y him. such deductions being determined by the banlcsman or weigher and check-weigher (if there be one), or in case of differ- onco, l)y a third party, to lie mutually agreed on by the owner, agent. COAL MIXES REaVLATIOXS ACT Go I or luanagor of the mine on the one hand, and the persons cniph^ycd in the mine on the other. C. A. ISiSH, c. 84, s. l(i. ' 1877, No, 15, s. 12, part. - See Korney v. The White Haven C. Co., (1893) 1 Q. B. 700. "See Nethorseal Colliery Co. v. Bourne, (1889) 14 A. C. 228; Brace V. Abercam C. Co., (1891) 2 Q. B. 699. * See Huggins v. London, (1891) 1 Q. B. 496. 17. * Wlierc it is proved to the satisfaction of the ^linistor ol' Mines that, hy reason of any exif^encies existing in tlie ease of any mine or class of mines to which the last preceding section a])plies, it is requisite or expedient that the persons emi)loyed in such mine or class of mines sliouhl not 1)0 paid by the weight of the coal gotten by them, or that the beginning of such payment by weiglit should he postponed, such Minister of Klines may, if he think (it, by order,- oxempt such mine or class of mines from tiie provisitms of that sec- tion, either without condition or during the time and upon the condi- tions specified in the order, or postpone in such mine or class of mines the beginning of such payment by weight, and may from time to time revoke or alter any such order. ('. A. ISSiS, c. 81, s. 17. > 1877, No. 15, s. 12, part. - See Dickinson v. Handsley, (1888) 5 T. L. R. 339. IH. ' If any person contravenes or fails to comply witii, or p(;r- niits any person to contravene or fail to comply with, the last but one preceding section, he shall !)o guilty of an olfence against this Act: ami in the event of any contravention of or non-conipliauce with that section by any person whomsoever, the owner, agent, and mana- ger shall each l)e guilty of an offence against this Act, unless he ])rove that he had taken all reasonable moans by ))ublishing, and to the l)est of his power enforcing, the ])rovisions of that section to ])revent such contravention and non-compliance. C. A. 18SS, c. 84, s. 18. '1877, No. 15. s. 12, part. l!l. ' The persons who are em])loyed in a mine to which this Act applies, and are paid according to the weight of the mineral gotten by them, may, at their own cost, station a person (in this Act referred to as a "check-weigher"') at the jtlace appointed for the weighing of such mineral, in order to take an account of the weight thereof on behalf of the ])ersons by whom he is so stationed. 'TIk^ .heck- weigher- may be a])j)ointed by the persons employed from time to time in the mine. Tie shall have every facility all'orded to him to take a correct account of the weighing for the persons by whom he is Li. liii I ! i !! 1 1 J i, .'I III iiii- 1. I so stationed; and if in any mine pro])or facilities are not atrorded to the checlv-weiglier as required by tliis section, the owner, agent, and manager of .«ucU mine sliall each be guilty of an oll'ence against this Act, unless he i)rove that he had taken all reasonable means by en- forcing to the best of his pow(;r the provisions of this section to pre- vent such contravention or non-compliance. C. A. 1888, c. 8-i, s. 11). '1877, No. 15, s. 13. part. - Hopkinson v. Caunt, (1885) 14 Q. B. D. 592. 20. * The check-weigher shall not be authorized in any way to impede or interrupt the working of the mine, or to interfere with the weighing, but shall be authorized only to take such account as afore- said, and the absence of the check-weigher shall not be a reason for interru[)ling or delaying sucli weighing. C A. 1888, c. 8-1, s. 20. ' 1877, No. 15, s. 13, part. 21. * Jf the owner, agent, or manager of the mine desires the removal of a check-weigher on the ground that such check-weigher lias impeded or interrupted the working of the mine, or interfered, with the weighing, or has otherwise misconducted himself, he may complain to any Court of suuiuuiry jurisdiction, who, if of opinion tiuit the owner, agent, or numager shows sutlicient prima facie ground for the removal of such check-weigher, shall call upon the check- weigher to show cause against his removal. On the hearing of the case the Court shall hear the parties, and, if they think that at the hearing sullicient ground is shown by the owner, agent or manager to justify the removal of the check-weigher, they shall make a sumuuxry order for his removal,- and the check-weigher shall thereupon be removed, but without prejudice to the stationing of another check- weigher in his i)lace. C. A. 1888, c. 81, s. 21. ' 1877, No. 15, s. 13, part. = Prentice v. Hall, (1878) 26 W. R. 237; Whitehead v. Holdsworth, (1878) 4 Ex. D. 13. 2S. ' I'roceedings for the removal of a check-weigher shall bo deemed to be a nuitter on which two justices of the peace have au- thority by law to make an order in a suuuuary manner, and the Court may in every case make such order as to the costs of tlie proceedings a> they think just. C. A. 1S88, c. S4, s. 'i'i. ' 1877, No. 15, s. 13, part, and s. 57, part. 23. ' If in ]iursuance of any order of exemption made by the Minister of Klines, the jiersons cm])l()yed in a mine to which this Act COAL MIXES REGULATIOyS ACT 053 applies are jiaid by the measure or gauge of the material gotten l)y tliem, the provisions of tlic four hist preceding sections shall apply in like manner as if the term " weighing '' included nnnsuring and gang- ing, and the terms relating to weighing shall be coii.-trued accordingly. C. A. 1888, 0. 84, s. 23. '1877, No. 15, s. 13, part. i, ' ii.i SINGLK SHAFTS. 94. ^ The owner, agent, or manager of a mine to which this .Vet applies shall not employ any person in such mine, or permit any per- son to be in such mine for the piirpose of employment therein, unless there arc in communication with every seam of such mine for the time being at work at least two shafts or outlets, separated by natural strata of not less than ten feet in breadth, by which shafts or outlets distinct means of ingress and egress are available to the persons em- l)loyed in such seam, whether such two shafts or outlets belong to the same mine, or one or more of them belong to another mine, and un- less there is a communication of not less than four feet wide and three feet high between such two shafts or outlets, and unless there is at each of such two shafts or outlets or upon the works belonging to the mine, and either in actual use or available for use within a reasonable time, proper apparatus for raising and lowering persons at each such shaft or outlet; Provided that such separation shall not be deemed incomplete by reason only that openings through the strata between the two shafts or outlets have been made for temporary purposes of ventilation, drainage, or otherwise; or in the case of mines where inflammable gas has not been found within the preceding twelve months for the same purposes although not temporary. C. A. 1888, c. 84, s. 24. ' 1877, No. 15, 8. 15, part. 25. * Mvery owner, agent, or manager of a mine who acts in con- travention of or fails to comply with the last preceding section, shall bo guilty of an offence against this Act. C. A. 1888, c. 84, s. 25. •1877, No. 15, s. 15, part. 36, ^ The Supreme Court, whether any other proceedings have or have not been taken, may, upon the application of the Attorney- General, prohi1)it by injunction the working of any mine in which any person is employed or is permitted to be for the purpose of employ- ment, in contravention of the last but one preceding section, and may t V, i! ! BRITISH VOLUMHIA award such costs in the matter of the injimction as the Court thinks just; Init this provision shall be without prejudice to any other remedy pennitted by law for enl'orciufj the provisions of this Act. Written notice of the intention to apply for sueli injunction in respect of any iiuno shall be given to the owner, agent, or nuimiger of such nunc not less than ten days before the application is made. ('. A. IHHH, c. 81, s. 2G. '1877, No. 15, s. 15. part. 2T. ' Xo ])erson shall be precluded by any agreement from doing such acts as may be necessary for providing a second shaft or outlet to a mine, where the same is required ])y this Act, or be lial)le under any contract to any pemdty or fori'eiture for doing such acts as may he necessary in order to comi)ly with the ])rovisi(ms of this Act, with respect to shafts or outlets. C. A. l.SSS, c. 84, s. 27. '1877, No. 15, s. 16. HH. ' 'i'he ])rovisions of this Act with respect to shafts or outlets shall not apply in the following eases, that is to say: — (1) In the case either of opening a new mine for the purpose of searching for or proving minerals, or of any working i'or the purpose of making a comnninication between two or more shafts, so long as not more than twenty persons are em- ])Ioyed below ground at any one time in the whole of tho different seams in connection with each shaft or outlet in such new mine or such working; (2) In the case of any proved nunc so long as it is exempted in writing by the Minister of Klines on the ground either: ■ {(i) That the quantity of mineral proved is not sulRci- ent to rci)ay the outlay which would be occasioned by the sinking or nuiking of a second shaft or outlet; or (h) If the mine is not a mine with inllanunable gas that sufficient provision has been made against danger from other causes than explosions of gas by nsiug stone, brick, or iron in the jtlace of wood for tiu; lining of the shaft and the construction of the mid- Mall; or COAL mim:s i{h:).-) (c) That tliL' workiiiffs in tiny Pciun of a mino have readied the l)nuii(lary oL' the projierly or other extremity of the mineral field of wliieli such f^eaui is a part, and that it is expedient to work away the pillars already formed in course of tlie ordinary working, notwithstanding that one of the shafts or outlets may he eiit oil' by so working away the pil- lars of such seam; and so long as there are not em- ployed below ground at any one time in the whole of the diU'ercnt seams in connection with the shaft or outlet in any such mine, more tlian twenty per- sons, or (if tlio mine is not a mine with iiillam- mable gas) than such larger number of persons as may for the time lieing be allowed by the ^Minister of Mines; (3) ^ In the case of any mine one of the shafts or outlets of whicli has become, by reason of some accident, unavailalde for the use of the persons employed in the mine, so long as such mine is exenijited in writing by the Minister of Mines, and as the conditions on which such exemption is granted are duly observed. ('. A. ISSS. c. SI, s. '^S. •1877, No. 15, s. 17. Dirisioii of Mine Into I'arh. 31>. ^ Where two or more jiarts of a mine are worked separately, the owner or agent of such mino may give notice in writing to that eifect to the inspector of the district, and thereupon each such ])art shalljfor all puri»oses of this Act, be deemed to lie a separate mine. 0. A. 1888, c. 84, s. 2}). • 1877, No. 15, s. 20: part. 30. ' If the ]ilinister of ]klines is of opini 1877, No. 15, s. 21, part. an. ^ If any mine to which this Act applies is worked for more than fourteen days without there being such a manager for that mine as required by this Act, the owner ami agent of such mine shall each be liable to a i)cnalty not exceeding two hundred and iifty dollars, and to a further peiudty not exceeding Iifty dollars for every day during which such mine is so worked. Provided that: — (a) The owner of such Tuinc shall not l)e liable to any such pen- alty if he i)rove that he had taken all reasonable means ])y the en- forcement of this section to prevent the mine being worked in con- travention of this section; (b) If for any reasonable cause there is for the time being no manager of a mine qualified as required by this Act, the owner or agent of such mine may apj)oint any competent person not holding a certificate under this Act to be manager for a period not exceeding two months, or such longer i)eriod as may elapse before such person has any opportunity of obtaining by examination a certificate under COAL MINKS nmULATlOXS ACT (557 ho lor pn Icr this Act, and shall solid to the inspector of the district a written no- tice of the name and address of such manager, and of the reason of his appointment; and, (c) A nunc in wliieh less than thirty persons arc ordinarily em- ployed helow firound, or of wliicii the averaj,'e daily output does not exceed twenty-live Ions, sludl Im exeni|)t from tiio provisions of this section, unless tiu; inspector of the district, hy notice in writing served on tlie owner or ajrent of sucli mine, requires tlie same to lie inuler the control of a manaffer. ('. A. ]8ys, c. 84, s. 'M. ' 1877. No. 15, s. 21, part. J14. ^ For tiic i)urpose of prantiufjr in any part of British t'olum- bia, to he from time to time deiined l)y an order in writing l)y tlio [Minister of Mines, certiiicates of competence to nuinagers of mines for tlie purposes of this Act, examiners shall he appointed by a hoard constituted as hereinafter mentioned. C'. A. 1888, c. 84, s. 34. '1877, No. 21, fl. 22, part. Sta. ^ Tlie ^linister of Klines may, from time to time, ap|>oint, remove, and re-a]ipoint tit ])ersons to form such board as follows, namely, two persons being owners, agents, or managers of a mine, and two persons being practical coal miners, and one inspector under this Act; the persons so ajipointcd sliall, during the pleasure of the W\n- ister of Mines, form the Iioard for the jmrposes of the said examina- tions in the said part of JJritish Columbia. C A. 1888, c. SI, s. [)'). •1877, No. 15, s. 22, part; 1878, c. 11, s. 2. tJO. ' The ])roceedings of llie board shall bo in accordance with the niles contained in Schedule Two of this Act; the lioard shall from time to time ajipoint examiners, not being members of the lioard except with the consent of the Minister of Mines, to conduct the examina- tions in the part of British Columbia for Avhich such hoard acts, of applicants for certificates of competency under this Act, and may from time to time, make, alter and rev of to ho llns 43. ' If III iiiiy (iino rt'iircsi'iitiitioii is iiiiidi' (o tlio ^ilinistcr oi: ^tiiu'8 l)y 1111 inspector or ollicrwisc, tliiil iiiiy iiiiiiiii^icr iiolding a (.rr- tillfiite uiidi'r liiis Ad in Ity iriisoii ol' iiiconipotoiicy or ;;ros.s lU'irli- gcMiC'o unfit to (lisclinrj,'o liis duties, or lias lieeii convicted of an of- I'eiice against tiiis Act, tiie Minister of Minos may, if lie tliink lit, cause inijuiry to he made into tiie conduct of such niniiiij'cr, and with resiioet to such iiuiiiiry tlic I'ollowing provisions shall liiive elVcct: — (1) The iiKiiiiry shall he piililic, and shall he lield at such jilaco as the Minister of Mines may ap|ioint, hy such County Court tliidge, police magistrate, stipendiary magistrate, tr other person or persons as may he directed hy the Minister of Mines, and either ah)iie or with the assistance of any assessor or assessors named hy the Minister of Minos; (2) The Minister of Klines shall, heforc the coinmencemeiit of the iiKjuiry, furnish to the manager a stateniout of the case upon which the iiu[uiry is instituted; (3) Sumo jjcrson a|>pointed hy the Minister of Mines shall nndi'r- take the managoinent of the ease; (1) Tlie manager may attend the iiuiniry hy himsolf, his counsel, attorney, or agent, and may, if he think fit, he sworn and examined ns an ordinary witness in the case; (5) The ])ersons appoint. 'd to jiold the iiKpiiry, in this Act re- ferred to ns the Court, shall, upon the conclusion of tlie in- quiry, send to the ^Minister of ]\linos a report containing a fiUl statement of the case, and their opinion thereon, and such report of or extracts from the evidence as the Court think fit; (0) The Court shall have power to cancel or suspend the ccrti- licato of the manager, if tliey iind that he is hy reason of in- competency or gross negligence, or his having heon con- victed of an olfence against this Act, unlit to discharge his duty; (7) The Court may, if they think fit, require a manager to de- liver up his certificate, and if any manager fail, without sufficient cause to the satisfaction of the Court, to comply with such requisition, he shall upon summary conviction of such failure l)y such Court, he liahle to a ])enalty not exceeding five hundred dollars. The Court shall hold a cer- tificate so delivered until the conclusion of the investigation, and shall then either restore, cancel, or suspend the same, according to their Judgment on the case; 6G0 BRITISH COLVMRIA (8) The Court shall have, for the purpose of the inquiry, all tlie ])0\vcrs of a Court of Suuiniary Jurisdiction, and all the powers of an Insjiector under this Act; (9) The Court may also, hy sunnnons under their hands, require the attendance of all such ])ersons as they tliink fit to call before them and examine for the purpose of the inquiry, and every person so summoned shall he allowed siich ex- pen?cs as would he allowed to a witness attending on sub- poena before the Supreme Court; and in case of dispute as to the amount to be allowed, the same shall be referred by the Court to the Eegistrar of the Supreme Court, who, on request under the hands of the members of the Court, shall ascertain and certify the proper amount of such expenses.^ C. A. 1888, c. 84, s. 4a. ■1877, No. 15, s. 27. 43. ' The Court may make such order as they think fit respect* mg the costs and expenses of the inquiry, and such order shall, on the ap])]icati()n of any party entitled to the benefit of the same, be enforced by any Court of Summary Jurisdiction as if such costs and expenses were a penalty imposed by such Court. C. A. 1888, c. 84, 8.43. ' 1877, No. 15, s. 28. part. 44. 1 The ^Minister of Mines may, if he think fit, pay to the mem- bers of the CoiTrl of Inquiry, including any assessors, such remunera- tion as he may think j)roj)er. C. A. 1888, e. 84, s. 44. ' 1877, No. 15, s. 28. part. 45. ^ Any costs and expenses ordered by the Court to be paid by the Minister of ^Mines, ami any remuneration paid under the last pre- ceding section, shall be paid out of moneys provided by the Legis- lature. C. A. 1S88, c. 84, s. 45. ' 1877, No. 15, s. 28. part. 46. ' Where a certificate of a manager is cancelled or susjiended in pursuance of this Act, the Minister of Mines shall cause such can- cellation or suspension to be recorded in tho register of holders of certificates. C. A. 1888, c. 84, s. 4(5. '1877, No. 15. 8. 29, part. 4'7. ' Tlio ^linister of Mines may at any time, if it is shown to him to be just so to do, renew or restore, on such terms as he may COAL MINES REGULATIONS ACT 6G1 think fit, any certificate which has been cancelled or suspended in pursuance of this Act. C. A. 1888, c. 84, s. 47. ' 1877, No. 15, s. 29, part. 48. ' Whenever any person proves to the satisfaction of the Min- ister of Mines that he has, without fault on his part, lost or been de- prived of any certificate previously granted to him under this Act, such Minister of Mines shall, upon jjaynient of such fee, if any, as he may direct, but not exceeding the fee specified in Schedule One to this Act, cause a copy of the certificate to which the applicant api)ears by the register to be entitled, to be made out and certified by the per- son who keeps the register, and delivered to the applicant; and any coj)y which purports to be so made and certified as aforesaid shall have all the effect of the original certificate. C. A. 1888, c. 84, s. 48. '1877, No. 15, s. 30. 40. ^ All expenses incurred by the ^linister of ]\rines in carrying into effect the provisions of this Act witli respect to certificates of competency or service shall be defrayed out of moneys provided by the Legislature. C. A. 1888, c. 84. s. 49. ' 1877, No. 15, s. 31, part. 50. ^ All foes payable by the applicants for examination for or for a copy of a certificate under this Act shall 1)0 paid into the treas- ury and form part of the general revenue of the Province.* C. A. 1SS8, c. 84, s. 50. ■ 1877, No. 15, s. 31. RETURNS, NOTICES AND AUANDON.MENTS. 51. * On or ])cfore the first day of February in every year the owner, agent, or manager of every mine to which this Act applies sliall send to the inspector of the district on behalf of the ^Minister of Klines a correct return, specifying, with respect to the year ciuling on the ])receding thirty-first day of I)eceml)er, the quantity of coal wrought in such mine, and the number of persons ordinarily cm- ■|)l()yed in or al'out such mine I)elow ground and above ground, dis- tinguishing the ])ersons employed below ground and above ground, aud the different classes and ages of the persons so employed whose hours of labour are regulated by this Act. C. A. 1888, c. 84, s. 51. '1877, No. 15, s. 33. part. ¥ \ II CCS BRITISH COLUMBIA 52. ^ Tlic return sluill l)e in such form as may be from time to time la'csoribod by tlie ]\Iinister of Mines, and the inspector of the district on bciialf of tlie Minister of Klines shall from time to time on apijlication furnish forms for the purpose of such return. C. A. 1888, c. 84, 8. 53. ' 1877, No. 15, s. 33, part. 53. ^ Tlic ^Minister ol ines may publish the aggregate results of such returns with respect to any particular inspector's district, or any large portion of an inspector's district, but the individual return shall not be pul)lished without the consent of the person making the same, or the owner of the mine to which they relate, and no person except an inspector or Minister of Mines shall be entitled, without such con- sent, to see the same. C. A. 1888, c. 84, s. 53. ' 1877, No. 15, s. 33, part. 54. ' I'lvery owner, agent, or manager of a mine who fails to com])ly with the last three jircceding sections, or makes any return which is to his knowledge false in any particular, shall bo guilty of an offence against this Act. C. A. 1888, c. 84, s. 54. ' 1877, No. 15, 3. 33, part. 55. ' Where in or about any mine to which this Act applies whether above or below ground either — (1) Loss of life or any personal injury to any person employed in or about the mine occurs by reason of any explosion of gas, powder, or of any steam boiler; or (2) Loss of life or any serious ])ersonal injury to any ])erson em- ])loyed in or about the mine occurs by reason of any acci- dent whatever, the owner, agent or manager of the mine shall, within twenty-four hours ne.xt after the explosion or accident, seiul notice in writing of the explosion or accident, and the loss of life and personal injury occasioned there])y, to the inspector of the district on l)ehalf of the ^Minister of I^Iines, and shall specify in such notice the character of tlie explosion or accident, and the nuinl)er of persons killed and injured respectively. ('. A. ]888, c. 81, s. 55. ' 1877, No. 15. s. 34, part. 50. ' Where any personal injury, of which notice is required to be sent under the last preceding section, results in the death of the per- COAL MINES REOVLATIOyS ACT 663 son injured, notice in writing of the deatli shall be sent to the in- spector of the district on behalf of the Minister of Mines within twenty-four hours after such death conies to the knowledge of the owner, agent, or manager. C. A. 1888, c. 84, s. 5G. '1877, No. 15, s. 34. part. 57. ^ I'lvory owner, agent, or manager who fails to act in com- pliance with the last two preceding sections shall be guilty of an of- fence 2 against this Act. C. A. 1888, c. 84, s. 57. '1877, No. 15, s. 34, part. " Underbill v. Longridge, (1859) 29 L. J. M. C. 65. 5S. ^ In any of tlie following cases, namely, (1) Where any working is commenced for the purpose of opening a new shaft for any mine to which this Act applies; (2) Where a shaft of any mine to whic-li tliis Act applies is abar- doned or the working thereof is discontinued; (3) Where the working of a shaft of any mine to which this Act applies is recoimiienced after any abandonment or discon- tinuance for a period exceeding two months; or (4) Where any change occurs in the name of, or in the name of the owner, agent, or manager of, any mine to which this Act ap])lies, or in the officers of any incorporated company which is the owner of a mine to which this Act applies, the owner, agent, or managi r of such mine sliall give notice thereof to the insj)ector of the district witliin two months after such com- mencement, abandonment, discontinuance, recommencement, or cliange; and if such notice is not given, the owner, agent, or manager shall be guilty of an olTence against this Act. C. A. 1888, c. 84, s. 58. '1877, No. 15, 8. 35. ♦51>. ' Wliere any mine to wliicli this Act apjilies is abandoned or the working tiiereof discontinued, at whatever time- such abandon- ment or discontinuance occurred, the owner thereof, and every other person interested in the minerals of such mine, sliall cause tlie top of the sliaft and any side entrance from the surface, to be and to bo kept securely fenced ^ for the i)rcvcntion of accidents; — CGI BRITISH COLUMBIA »» Provicled that — (1) Subject to any contract to the contrary, the owner of the mine shall, as between him and any other person interested in the minerals of the mine, bo liable to carry into elfect this section, and to pay any costs incurred by any other person interested in the min- erals of the mine in carrying this section into ellect. (2) Xotliing in this section shall exempt any person from any liability under any other Act, or otherwise. If any person fail to act in conformity with this section, he shall be guilty of an oll'ence against this Act. C. A. 1888^ c. 8-i, s. 59. ' 1877, No. 15, s. 30, part. -R. V. Gratrex, (1876) 12 Cox C. C. 157; Stott v. Dickinson, (1876) 34 L. T. N. S. 291. ' See Evans v. Lady Mostyn, etc., (1877) 2 C. P. D. 547. 00. ' Any shaft or side entrance which is not fenced as required by the last i)roceding section, and is within fifty yards of any high- way, road, f()()tj)ath, or i)lace of i)ublic resort, or is in oi)en or uniu- closed land, shall be deemed to be a nuisance.^ C. A. 1888, c. 84, s. GO. ' 1877. No. 15, 8. 36, part. 01. ^ Where any mine to which this Act applies is abandoned, the owner of such mine at the time of such aljandonment shall, with- in three months after such al)andonment, send to the ^linister of !Mines an accurate plan, on a scale of not less than two chains to one inch, or on such other scale as the jdan used in the mine at the timn of such al)andonment is constructed on, showing the boundaries of the workings of such mine up to the time of the abandonment, with a view of its being preserved under the care of the Minister of Mines, but no person, except an inspector under this Act, shall be entitled, without the consent of the owner of the mine, to see such plan when so sent until after the lapse of ten years from the time of such aban- donment. Every person who fails to comply with this section shall bo guilty of an offence against this Act. C. A. 1888, c. 84, s. 61. ' 1877, No. 15, s. 37. 02. ^ All notices under this Act shall be in writing or print, or partly in writing and partly in print, and all notices and documents required by this Act to be served or sent by or to an insjjcctor may bo either delivered personally or served and sent by post by a ])r(5paid letter, and if served or sent by post shall be deemed to have been L COAL MINES REGULATIOyfi ACT GG5 served ami reieived respectively at the time when the letter contain- ing the same would he delivered in the ordinary course of post, and in jn'oving such service or sending it sluill be suilicient to ])rovc that the letter containing the notice was properly addressed and put into the post. C. A. 18S8, c. 84, s. C>2. '1877, No. 15, s. 64. i !! INSPECTION. 63. ^ The Minister oi" Mines may from time to time appoint any lit persons to be Insi)octors of Mines to which this Act a])plics, and assign them their duties, and may reward them such remuneration as the Lieutenant-Covernor in Council may approve, and nuiy remove such inspectors. V. A. 1888, c. 84, s. 03. •1877, No. 15, B. 38, part. 64. 'Notice- of the ai)pointinent of every such inspector shall be published in The British Columbia Gazette. C. A. 1888, c. 84, s, (54. ' 1877, No. 15. s. 38. i ■.. rt. - R. V. The Spon Lane C. Co., (1878) 3 Q. B. D. 673. 65. ' Any sucli inspector is referred to in this Act as an inspec- tor, and the inspector of a district means the insijcctor who is for the time being assigned to the district or portion of British Columbia with reference to which the term is used. C. A. 1888, c. 84, s. 05. ' 1877, No. 15, 8. 38, part. 66. * Any jierson who practises, or acts, or is a partner of any person who practises or acts as a land agent, or mining engineer, or as a manager, viewer, agent, or valuer of mines or arbitrator in any difTerence arising between owners, agents, or managers of mines, or is otherwise employed in or al)out any mine (whether such mine is one to which this Act ai)[)lies or not) shall not act as an Inspector of Mines under this Act. C. A. 1888, c. 84, s. 00. '1877, No. 15, s. 39. 6'7. * An inspector under this Act shall have power- to do all or any of the following things, namely: — (1) To nuike such examinati(ni and on([uiry as may be necessary to ascertain whether the i)rovisions of this Act relating to matters above ground or below ground are complied with in the case of any mine to which this Act a|»[)lies; 111 ^ 1; 6GG DUITlfiH COLUMBIA (2) To enter, inspect, anil examine any mine to whieli this Act a])plies and every part tiiereof, at all reas;onable times by clay and niyiit, but so as not to impede or obstruct the work- ing of the said mine. (3) To examine into aiul make oiupiiry respecting the state and condition ol' any mine to which this Act applies, or any part thereof, and the ventilation of the mine, and the sufliciency of the si)ecial rules for the time being in force in the mine, and all matters and things connected with or relating to the safety of a 2)erson employed in or about the mine, or any mine contiguous thereto, (4) To exercise such other iiowers as may be necessary for carry- ing this Act into effect; (5) The insi)ector shall visit every mine within his jurisdiction, and every working ])art thereof, and all travelling roads leading to and therefrom, and all air courses, at least once every month. (;. A. 1888, c. 8-1, s. 07, ' 1877, No. 15, s. 40, part; 1888, c. 21, s. 1. " Re Secretary of State and Fletcher, (1887) 18 Q. B. D. 339. OS. ' ICvery ]H'rson who wilfully obstructs any inspector in the execution of his duty under this Act, and even' owner, agent, and manager of a mine who refuses or neglects to furnish to the insjjec- tor the means necessary for making any entry, insjiection, examina- tion, or inquiry tinder this Act, in relation to such mine, shall be guilty of an offence against this Act. C. A. 1888, c. 84, s. G8. ' 1877, No. 15. s. 40, part. O©. ^ If in any respect (whidi is not i)rovided against by any ox- press ])rovise of ascertaining wliether any such want of understanding, knowledge, or skill, or any such mental, ])hysical, or other incapacity or incom- l)etency, or inahility to understand instructions exists on the part of any pei'son or persons so employed, and the employment in any mines of any ])erson or persons in whom such want of uiulerstanding or skill, or such mental, jdiysical or other incapacity or incomi)etency exists, or is found hy the Inspector of Mines to exist, shall he deemed to he a matter, thing or practice in or connected with such mine and to he dangerous and del'ectivo within the meaning of this Act. C. A. 388S, c. S-l, s. (il), and 18!)'), c. 38, s. 2. '1877, No. 15, s. 41, part. -Enacted "by 58 Vict., (1895) c. 38, s. 2 (assented to 21st February, 1895). TO. ^ The Inspector of Mines shall give a decision on the mat- ter as suhmitted to him within 5il days, and sliould he decide against tlie complaint of such miners the said three miners shall have a riglit to notify the owner, agent or manager of the mine of the nuitter com- ])lained of, and should he refuse or neglect to remedy sucli matter they may within Jil days after sending such notice to the owner, agent or manager, notify the ^Minister of Mines, and thereupon the matter shall he determined l)y arhitration in the manner ])rovided hy this Act, save and except that in such arhitration the parties to sucli arhitration shall lie the owner, agent or manager of the mine on the one hand, and the comidaining miners on the other. 1805, c. 38, s. 3. " Added by 58 Vict., (1895) c. 38, s. 3. 71. IV'fore any examination is held hy the Inspector of Mines under this Act, the miners making application shall give security to the satisfaction of the said inspector to pay and recoup to the party i ' 'i'l 1 \ (1G8 BRITISH COLUMBIA or ixu'ties oxaniiiKHl llio ainoimt of wages he or they woiihl liave re- eiivc'd had the application not l)L'eii iiiacU', in the event that tiio said iiispeitor shall find that the said party or parties so examined is or are a tit and proper person or i)ersons to l)e employed in the mine. 1895, c. 38, s. 5. 7*2. Xo arhitration shall he held under this Act until the miners notii'ying the ]\Iinister of Klines shall have given security, to the satisfaction of the said Minister of Klines for the payment of all costs and exi)enses attendant upon the said arl)itrati()n should the arhitra- tors award costs against tiiem, and also give security, to the satisfac- tion of the said ^Minister of Mines, to i)ay and recoup to the jiarty or ]mrties coni))lained against the amount of wages he or they would have received had the arl)itration not have been held, in the event that the award of the arbitrators shall he in favour of the party or parties coni- plaiued against. tSDa, c. 158, s. G. TJl. * It' the owner, agent, or manager of the mine object to remedy tlie matter complained of in the notice, ho may, within 21 days after tlu! receipt of such notice, send his objection in writing, stating tiie grounds thoreoi' to the Minister of !Mines; and thereupon the matter shall be determined by arbitration in manner ])rovided by this Act; and the date of the recei])t of such objection shall be deemed to be the date of the reference. C. A. 1888, c. 84, s. 70. ' 1877. No. 15, s. 41. part. 74. ' If the owner, agent, or manager fail to comply either witii the requisition of the notice, where no objection is sent within the lime aforesaid, or with the award made on arbitration, within twenty days after the expiration of the time for objection, or the time of making of the award (as the case may be), he shall be guilty of an offence against this Act, and the notice and awaid shall respectively be deemed to be written notice of such otfenco; Provided, that the Court, if satisfied that the owner, agent or manager has takeii active measures for comjdying Avith the notice or award, but has not, with reasonable diligence, been abl(> to complete the works, may adjourn any proceedings taken l)efore them for ]utn- ishing such offence, and if the works are comph'ted within a reasou- al)le time no ])enalty shall be inflicted. C. A. 1888, c. 81, s. 71. ' 1877, No. 15, s. 41, part. ta. ^ Xo person shall be precluded by any agreement from doing such acts as may be necessary to comply with the provisions of COAL MIXES liKOlLATlOXfi ACT Hfin sections (iS, 7:?, and 71 of tliis Act, or bo liable under any contract to any penalty or i'ori'eitnre for doinjf sncli acts; I'rovided that nothing' in tlie said sections contained sliall prevent any inspector from ordering the elosin}^ of any mine and tlie st()i)ping of all work therein until the matter complained of is remedied, when in the opinion of such insi)ector any dtday would be dangerous, and in such case he siuill forthwith report to tiie ^Linister of Klines tiie fact of such stoppage and his reasons therefor. ('. A. 1888, c. 81, s. 1;2. ' 1877, No. 15, s. 41, part. TO. ' The owner, agent, or manager of every mine to which this Act applies shall keep in the otiico at the mine an aee\irate ])lan of the workings of such mine, and showing the workings \\\) to at least pix months ])roviously, and shall ])roduce to an inspector nnder this Act at the mine such plan, and shall, if requested by the inspector, mark on such plan, the progress of the workings of the mine up to the time of such production, and shall allow the inspector to examine the same; but the inspector is not hereby authorized to nuikc a copy of any jiart of such jdan. I'. A. 1888, c. 84, s. 715. ' 1877, No. 15, s. 42, part. T7. ' If the owner, agent, or manager of any mine to which this Act a])])lies fails to keep such plan as is prescribed by the last pre- ceding section, or wilfully refuses to i)roduce, or allow to be examined such ])lan, or wilfully withholds any jjortion of any plan, or conceals any jjart of the workings of his mine, or produces an imperfect or inaccurate ])lan nnlcss he shows that he was ignorant of such con- cealment, im])erfecti()n, or inaccuracy, he shall be guilty of an olfence against this Act; and, further, the inspector may, by notice in wi'it- ing (whether a penalty for such offence has or has not been inilicted), reunire the owner, agent or manager to cause an accurate jdan, such as is ]irescribed by the said section, to be made within a reasonable time, at the expense of the owner of the mine, on a scale of not less than two chains to one inch, or on such other scale as the plan then used in the mine is constructed on. Tf the owner, agent, or manager fail within twenty days, or such further time as may be shown to be necessary, after the requisition of the inspector to make or cause to bo made such plan, he shall be guilty of an offence against this Act. C. A. 1888, c. 84, s. 74. ' 1877, No. 15, s. 42, part. 1 H Hi > , Hi: i at ? H' H ' r ■ 1 i« j t ■ ■I h \ / C70 nitlTLSIl COLVMUIA 7H. ' lOvory iiispt'flor uikIlt this Act sluill iiinko an nnnunl report of his proceed iiifis during the i)recediiig year to tho JMiiii.ster of Alines, which report shall he laid before the Legislative Assenihly. C. A. 3.S8S, c. 81, s. 75. •1877, No. 15, s. 43, part. To. ' 'I'he Minister of Mines may at any time direct an inspector to make a special report with respect to any accident in a mine to which this Act ajtplies, wiiich accident has caused loss of life or per- sonal injury to any ])erson, and in such case shall cause such report to be made ])ul)lic at such time and in such manner as he thinks expedient, ('. A. ISSS, e. 84, s. TG. ' 1877, No. 15, s. 43, part. I AKBITIIATION. SO. * With resjiect to arbitrations nnder this Act, except as modi- fied by section TO, the following provisions shall have eU'eet; — (1) The i)arties to the arbitration are in this section deemed to be the owner, agent, or numager of the mine on the one hand, anil the Inspector of Mines (on behalf of the 31inister of Mines) on the other; (2) Each of the parties to the arbitration may, within twenty- one days after the date of reference, api)oint an arbitrator; (3) Xo person shall act as arbitrator or umpire under this Act M-ho is employed in or in the management of, or is interested in the mine to which the arbitraton relates; (4) The ai)pointinent of an arbitrator under this section shall be in writing, and notice of the a])itointmcnt shall be forth- with sent to the other party to the arbitration, and shall not be revoked without the consent of sucli other ])arty; (5) The death, removal, or other change in any of the parties to the arbitration shall not affect the proceedings under this section; (6) If within the said twenty-one days either of the parties fail to appoint an arbitrator, the arbitrator ap])ointcd l)y the other ])arty may ])roceed to hear and determine the matter in dilTerence. and in such case tlie award of the single arbitra- tor shall be final; COAL Miyilf! UKOLLATIOyH ACT ()< 1 (7) If lu'Torc an nwanl has boon made any arbitrator appoint<'(l Ity cillier party dio, or Ijofoiiio iiR'apaljlL' to act, or J'or I'oiir- tccu (lays refuse or uegloct to act, tho party l)y whom such arbitrator was appointed may ai)iK)int some otiier person to act in liis place; and if he fail to do so witiiin fourteen days after notice in writing,' from tlie otlier i»arty for tiuit purpose, the remaining arbitrator may proceed to liear and determine tho matter in difference, and in such case the award of such single arbitrator shall be linal; (8) In either of the foregoing cases whore an arbitrator is em- powered to act singly, npon one of tho parties failing to appoint, tho party so failing may, before the single arbitra- tor has actually proceeded in the arbitration, api)oint an arbitrator, who shall then act as if no failure had boon made; (9) If the arbitrators fail to make their award within twenty- one days after the day on which the last of them was ai)- ])ointe(l, or within such extended time (if any) as may have been ai)pointed for that pnrposo by both arbitrators under their hands, tho matter in diiforencc shall be determined by the umpire appointed as hereinafter mentioned; (10) The arl)itrators, before they enter npon tho matters re- ferred to them, shall appoint by writing under their luiiuls an umpire to decide on i)oints on which they may dill'er; (11) If the umpire dio or become inca])ablo to act before he has nuule his award, or refuses to make his award within a reasonable time after the matter has been brought within his cognizance, the ])ersons or ])erson who appointed such umjiire shall forthwith appoint another umpire in his place; (12) If the arbitrators refuse or fail, or for seven days after tho request of either ])ar{y neglect to appoint an umpire, then, on the ajiplication of either party, an umpire shall bo ap- l)ointed by the ^Minister of ^fines; (13) Tho decision of every umpire on the matters referred to him shall bo final; (1-1) If a single arbitrator fail to make his award within twoniy- ono days after the day on Avhich he was appointed, tho party who ai)pointed him may appoint another arbitrator to act in his place. I { IV I'i. ; •! h' ■i^t:- ' nn G72 nniTisii coiA uniA (15) The nrliilraiors and tlicir imipirp, or nny of them, may oxaiiiiiic (he parties aiiil tlieir witnesses on oatli; they may also consult any eoiinsi'l, enj^nneer or seientilie person wiiom they may think it expedient to consult; (10) The payment, if any, to he made to any arl)itrator or nm- ]>ire for his services shall he lixed i>y tlie Minister of Mines, nnd, toj^ether with the costs of the arhitration and award, Khali he paid hy the ])arties, or one of them, according as the award may direct. Snch costs may l)e taxed hy the Ifegistrar of the Supreme Court, who, on the written appli- cation of either of the parties, shall ascertain and certify the ))roi)er amount of such costs. 'I'he anu)unt, if any, ])ayal)le hy tiie Minister of Mines shall he paid as part ( f liie expenses of inspectors under this Act. The amount, if any, jiayahle hy the owner, agent or manager may, in the event of iion-])ayment, he recovered in the same manner as penalties under this Act; (17) ]"]very person wlio is ajjpointed an arhitrator or umpire under this section shall he a practical mining engineer, i^r a person accustomed .to the workings of mines, hut when an award has heen made under this section the arhitrator or umpire who made the same shall he deemed to have heen duly (jualilied, as provided hy this section. C. A. 188S, c. 84, s. 77, and 18i)5, c. 38, s. 4. ■1877, No. 15. s. 44. INQUESTS. SI. 1 With rcs])ect to coroners' inquests on the hodies of persons whose deaths may have heen caused hy explosions or accidents in mine.' to which this Act ai)plies, the following provisions shall have effect : — (1) Where a coroner holds an inquest upon the hody of any per- son whose death may liave heen caused hy any explosion or accident, of which notice is required hy this Act to he given to the inspector of the district, the coroner shall adjourn such inquest, unless the inspector, or some person on hehalf of the Minister of Mines, is pre- sent to watch the proceedings; COAL MlXKfi liKOVLATlOyH ACT era lor ons in K'l'- the pro- (3) The {'oroncr, at U'list iuiir dny.s hi'Torc* lioldiiij,' tlic luljouriu'il inqiii'st, chilli send to the iiisju'ctor for tlio diHti'ict notifo in writing of tlio time nnii pliuo of iioldiiig tlio adjoiiniod iniiuest; (3) 'I'Ik' coroner, lud'ori' tlio adjonrnnu'nt, may lakt; cvidunco to idontit'y tlio body, and may ordor tlio intorniont tlu'iooi'; (1) 11" an explosion or actidcnt has not occasionod the doath of moro than one porson, and the coroner has sent to the ins|)eclor of the district notice of the time and place of holdin^f the iminest not loss than rorty-eijiht hours hcl'ori' the time of holdinjj; the same, it shall not ho imperative on him to adjourn such incjuost, in pursuance of this section, if the majority of the jury think it unnecessai'v so to adjourn; (5) An inspector or any other intere^•te ]iurpose. shall, l)efore the time for commencing M'ork in any part of the nun-, inspect with a safety lamp that part of the mine and the I'oadways leading ihereto, and shall make a true report of tlio condilion thereof, so far as ventilation is concerned, and a workman shall not go to ^\ .i: in such ]iart until the same and the roadways leading Ihereio are staled to l)e safe. Every such report shall 1)e COAL MIXES REOULATIOXS ACT G71 recorded without delay in a book M-liich sliall be kept at the mine for the i^iirpose, and shall be signed by the person making tlie same. E;;lo 4. — In every mine in wliich inflammable gas has not been found vithin the preceding twelve months, then once in every twenty-four hours a competent person or competent persons, who shall be appointed for the purpose, shall, so far as is reasonably prac^ ticable, immediately before tlic time for commencing work in any part of the mine, inspect that part of the mine and the roadways leading thereto, and shall make a true report of the condition thereof, so far as ventilation is concerned, and a workman shall not go to work in such part until the same and the roadways leading thereto are stated to be safe. ]']very report shall be recorded without delay in a book which shall be kept at the mine for the pin-posc, and shall be signed by the ])erson making the same.^ • Scott V. Bould, (1895) 1 Q. B. 9. liule 5. — All entrances to any place not in actual coiirso of working and extension shall be i)roperly fenced across the wlu)lo width of such entrance, so as to prevent persons inadvertently entering the same. Rule G. — A station or stations shall be ajipointcd at the entrance to tlie mine, or to dilTerent parts ^ of the mine, as tlie case may re- quire, and a workman shall not pass beyond any such station until the mine or part of the mine beyond the same has been inspected and stated to be safe. ' Wales V. Thomas, (1885) IG Q. B. D. 348. lUile 7. — If at any time it is found l)y the person for the time being in charge of the mine, or any part thereof, that by reason of no.xious gases prevailing in such mine or such part thereof, or of any cause whatever, the mine or the said part is dangerous,^ every worl':- nian shall be withdrawn from the mine or such part thereof as is so found di'ngerous, and a com[)etent person, who shall 1)0 appointed for the purpose, shall inspect the mine or such part thereof as is so found dangerous, and if the danger arises from inflammaltle gas shall inspect tlie same with a locked safety lani]), and in every case shall make n true report of the condition of such mine or part thereof, and a workman shall not, except in so far as is neco; -ary for enquir- ing into the cause of danger or for the removal thereof, or for ex- l>loration, be re-admitted into tlie mine, or such \y,\v{ thereof as was so found dangerous, until the same is stated by such report not to bo i] :i I ,! 676 nitlTISII COLUMBIA dangerous, l-^vcry siicli report shall be recorded in a book which shall he kept at the mine for the purpose, and shall be signed by the person making the same. 'R. V. Spon Lane C. Co., (1878) 3 Q. B. D. 673. Kule 8. — In every working apjiroaching any place where there is likely to be an accumulation of explosive gas, no lamp or light other than a locked safety lamp shall be allowed or used, and whenever safety lamps are required by this Act, or by the special rules made in pursuance of this Act to be used, a competent person, who shall be ajipointed for the purpose, shall examine every safety lamp im- mediately before it is taken into the workings for use, and ascertain it to be secure and securely locked; and in any part of a mine in whicL safety lamps are so required to ])e used, they shall not be used until they have been so examined and found secure and securely locked, and shall not without due authority be unlocked, and in the said i)art of a mine a person shall not, unless he is appointed for the purpose, have in his jjossession any key or contrivance for opening the lock of any such safety lamp, or any Inciter match or apparatus of any kiiul for striking a light. Where it is necessary to work coal in any part of a ventilating district with safety lamps, it sliall not be allowable to work with a naked light in another part of the same ventilating district situated ])etween tlie i)lace whore such safety lamjjs are being used and the return airway. Rule !>. — (Junpowder or other explosive or inllaminablo sub- stance shall oidy be used in the mine underground as follows: (a) It shall not be stored in the mine; (&) It shall not be taken into the mine, exce])t in a case or canister containing not more than four pounds; (r) A workman shall not liavc in uso at one time in any one l)lace more than one of such cases or canisters; (d) In charging holes for blasting, an iron or steel pricker shall not be used, and the person shall not have in his possession in the mine underground any iron or steel pricker, and an iron or stool tam])ing rod or siemmer shall not be used for ramming either the wadding or the first part of the tam])ing or stemming on the powder; COAL .1//.V77.S' REGULATIOXS ACT GT, (e) Xo explosive shall be forcibly iirossctl into a hole of insiini- cient s'-'.c, and when a hole has lieon cliai'taine(l, the explosive may be unrammod under the sanction and supervision of the shot examiner; if) It shall not ix' taken into or lie in tlie possession of any pei*- son in any mine, t'xcept in cartridges, and shall not be used, excejit in accordance with tiie following regulations, dur- ing throe months after any inflammable gas lias l)ccn found in any such mine, namely, (1) A competent ])erson, who shall be aiipointod for the ])urpose, shall, immediately before firing the sliot, ex- amine the place where it is to be used, and all places contiguous thereto witliin a radius of twenty-five yards, and shall not allow the shot to l)e fired unless lie finds it safe to do so, and a shot shall not be fired except by or under the direction of a competent iierson. who shall be appointed for the purpose; (Irt) If the ]»hice wliere the shot is to be fired is dry and dusty, then the shot shall not be fired unless one of the following conditions is oliserved, that is to say, (1?^) Tnless the place of firing and all contiguous and accessible jdaces within a radius of twenty yards are at the time of firing in a wet state from a thorougii watering or otlier treatment eiiuivalont to watering in all ])arts where dust is lodged, wlie- flier rooi", floor or sides, or, (Ic) Jn tlie case of places in which watering would injure the roof or floor, unless the explosive is so used with water, or other contrivance as to prevent it from inlhuuing gas or dint, or is of sueli a nature that it cannot inllame gas or dust; (1(/) All hauling or other roads that are dry ami dusty shall be watered sulliciently often to allay the dust. 078 BRITISH COLUMBIA (2) II' the f^aid inllaniinablo gas issued so freely that it showed a blue cap on the ikuiie of the safety lamp, it sliall only be used, (a) Eitlier in those cases of stone drifts, stone work, and sinking of shafts, in wliich the ventilation is so managed tliat tlic return air from the place M'iiere the powder is used passes into tlic main return air course without passing any place in nctual course of woi'king; or, (h) When the persons ordinarily cm])loyod in the mine are out of the mine, or out of the part of the mine where it is used; (g) Where a mine is divided into separate jianels in such manner iiiat cacli ])anel has an independent intake and return air- way from the main air course and tlie main return air course, j)rovisions of tiiis rtde witli res])ect to gunpowder or other explosive inllammal)le sulistance shall apply to each such panel in like manner as if it were a separate mine. I?ule 10. — Where a jtlnee is likely to contain a dangerous accu- nuilatioii of water, tlie M'orking approatliing such ])lace shall not exceed eight feet in width, and tliere sliall be constantly kept at a sullicient distance, not being less tlian five yards in advance, at least one bore-hole near the centre of the working, and sufllcient Hank bore-holes on each side. Ifule 11. — lOvery underground ]ilane on which persons trav.d, which is self-acting or worked by an engine, windlass, or gin, shall bo provided, if exceeding thirty yards in length, with some ])roper means of signalling between the stopping places and the ends of the plane, and shall be ])rovided in every case, of intervals of not more than twenty yards, with sufliciciit man-holes for ]>laces of refuge. Rule 12. — Every road on wliich ])ersons travel underground, vhere the load is driiwn by a horse or other aninuil, shall be ])rovided, nt intervals of not more than fifty yards, with sullicient man-hobs, or with a pace for a jilace of refuge, which space shall be of sulli- cient length, and of at least three feet in width, between the waggons runnintr on the tram-road and the side of such road. COAL MINES REGULATIONS ACT 679 llulo 13. — Every man-hole and space for a place of refuge shall be constantly kept clear, and no person shall place anything in a man-hole or such space so as to prevent access thereto. Rule 14. — The top of every shaft, which for the time being is out of use, or used only as an air-shaft, shall be securely fenced. Rule 15. — The top and all entrances between the top and bottom of every working or pumping shaft shall be properly fenced, but this shall not bo taken to forliid the temporary removal of the fence for tlic purposes of repairs or other oi)erations, if proper precautions are used. Rnlo IG. — Where the natural strata are not safe, every working or pumping shaft shall be securely cased, lined or otherwise made secure. Rule 17. — The roof and sides of every travelling road and work- ing place shall be made secure, and a person shall not, unless ap- pointed for the pur])ose of exi)loring or rei)airing, travel or work in any such travelling road or working place which is not so made secure. Rule IS. — Where there is a downcast and furnace shaft, and both such, shafts are ])rovided with apparatus in use for raising and lowering jjcrsons, every persoi^ enijiloyed in the mine shall, upon giving reasonable notice, have the option of usin;r the dowiu/ast shaft. ]?ule li>. — Tn any mine which is usually entered l)y means of machinery, a coni])etent person of such age as iJrcscrilicd liy this .Vet, shall le ajipointed for the purpose of working the machiiu'ry which is employed in lowering and raising jiersons therein, and shall attend for the said i)ur])ose during the whole time that any person is below ground in the mine. Rule 20. — ICvery working shaft used for the ])urpose oi' drawing minerals or for the lowering or raising of persons shall, it' exceeding fifty yards in depth, and not exem])ted in writing liy the inspector of the district, he ])rovided with guides and some jiroper means of communicating distinct and definite signals from the bottom of the shaft ami from every entrance for the time being in work between the surface and the bottom of the shaft to the surface, and from the surface to the bottom of the shaft, and to every entrance for the time being in work between the surface and the bottom of the shaft. f! i 680 DlUTlfill COLUMBIA Rule !' m iii' ill •iit iiii in hit! .1 1 mmmmsm^ i, 'i ^ : «t lireveiil dangerous accidents, and to jjrovide for the safety and [jropei- disci]>linc of the jjcrsons employed in or about the nunc, and suvh (special rules, when establislRHl, shal. be signed ';_ the inspector who is inspector of the district at the time such rules are estal)lished, and shall be observed in and about every such mine, in the same manner as if they were enacted in this Act. C. A. 1888, c. 8-1, s. SO. • 1877, No. 15, s. 47, part. H-l. l\ any ])ers<)n - wlu) is hound to observe the special rules established for any miiu' acts-' in contravention of, or fails to comply with any of such sjiecial rule^^, he shall be gnilty of an offence against this Act, and also the owiu-r, agent, and manag(>r'* of such mine, nn- less lie ]iroves that he had taken all reasonable nu'ans,'' by ])ublishing and to the liest of his power enforcing the said rules as regnlatious for the working of the min(> so as to prevent such contravention or non-compliance, shall each lie guilty of an oll'ence against this Act. r. A. 1888, f. 8 1, s. 81. -• Higginson v. Hapley, (1869) 19 L. T. N. S. 690. • Highani v. Wright, (1877) 2 C. P. D. 401. COAL .i//y/;.«! UEcvLATioyfi act ()SH 'U. V. Iliown, (1857) 7 E. & B. 757; Bilker v. Carter, (1878) 3 Ex. D. 132; Wynne v. Forrester, (1879) 5 C. P. D. 361; Howi'lls v. Wynne, (1863) 15 C. B. N. S. 3. ■Stokes V. Checkland, (1893) 9 T. L. R. 235; Bnk.>r v. Ciirter, (l&^g) 3 Ex. D. 135; Hall v. Hopwood, (1879) 49 L. J. M. C. 17. H7i. 1 The owner, agent, or manager of every mine to wliich ilii^i Act applies sliall frame and ti'ansinit to the inspector of tlie district, for approval by tlie ^linister of Klines, special miles for sncli mine within three months after the commencement of any working for tlio ])nr|)ose of o])ening a new mine or renewing an old mine. C. A. 18SS, c. SI, s. 82. '1877, No. 15, p. 48, part. SO. ' The ])ro])osed special rnles, together with a printed notice specifying that any ohjection to such rules on the ground of any- thing contained therein or omitted therefrom, may he sent hy any of the ])ersons eiii|iloyed in the mine to the inspector of tlie district, at his address stated in such notice, shall, during not less than two weeks hefore such rules are transmitted to the inspector, he jiosled U|» in like maniu'r as is ]irovidcd in this Act respecting the juiblica- tioii of special rules for the information of persons emiiloyed in the mine, and a tertincate that sucli rules and notice have been so posted up ."^liall he sent to the inspector with the rules, signed by the person sending the same. C. A. ISSS, c. SI, s. 8.3. '1877, No. 15, s. 48, part. .S7. ' If the rules are not objected to hy the ^Tinister of "Mines within forty days after their receipt by the inspector, they shall he established." C. A. 1SS8, c. SI, s. 81. " 1877, No. 1", S-. 19, i;urt. S.S. 'If tlie "Minister of "Mines is of opinion that the proposed special rules so transmitted, or any of them, do not sulTicieiitly pro- vide for the jirevention of dangerous accidents in the mine, or are not in aeeoi'dance with the sjiirit of tliis Act, or for the safety of the jiersons employed in or ahout the mine, or arc unreasonable, he may within f(n-ty days after the rules are received hy tiie inspector, object to the rules, ami propose to the owner, agent, or manager in writing any modifications in the rules hy way either of omission, alteration, substitution, or addition. C. A. 1888, c. 81, s. 80. '1877, No. 15, s. 49, part. S!>. ^ If the owner, agent, or manager does not, within twenty days after the modifications pro[)Oiiod by the ^linister of Mines are OH-1 BRITISH COLlMlilA rceeivod h)- liiiii, ohjeet in writing to tliuin, the proposed special rules, witii siicli iiiodiiioatioiis, sliall be estalilislied. ('. A. IHHS, c. 81, s. 8G. ' 1S77, No. 15, 8. no, iiart. ttO. ' If tile owner, agent, or ninnnfjer sends liis ohjeetion in writing within the said twenty days to tiie Minister o'' Mines, the matter shall he referred to arhitration, and the date of the ree('i[)t of such objection liy the Minister of Mines sliall be deemed to b(^ the date of the reference, and the rules shall be estal)lislied as settled by an award on arhitration. 0. A. 188S, c. 8-1, s. 87. ' 1877, No. 15, s. 50, part. in. ' After special rules arc established under this Act in any mine, the owner, agent, or manager of such mine may from time to time propose in writing to the inspector of the district, for the ap- ]ir<)val of the ^linister of Mines, any amendment of such rules or any new s)ic(inl rules, and the |(rovisioiis of this Act with respect to the original special rules shall apply to all such ameudmeiits and new rules in like manner, as near as may be, as they ajiply to the original rules. C. A. ISSS, c. 84, s. 88, ' 1877, Nu. l;j, s. 50, part. 1HJ. ' 'i'lie ^liuister of Mines may fi'oiu time to time propose in writing to the owner, agent or manager of the mine any now special I'ulcs, or any amendment to the special rules, and the jn'ovisions of this .Vet with res])ect to a ])roposal of the ^liiiister of Mines for modifying the special rules transmitted by the owner, agent, or man- ager of a mine shall apjily to all sucii new special rules and amend- ments in like manner, as near as may be, as they ajtply to such pro- ))osal. C. A. 1888, c. 84, s. 8!). ' 1877, No. 15, s. 50, part. OJJ. ' If the owner, agent, or manager of any mine to which this Act applies make any false statement with resjiect to the jiosting up of the rules and notices, he shall be guilty of an olVence against this Act, and if sjiecial rules for any mine are not transmitted within the time limited by this Act to the inspector for the a])proval of the ^linisfcr of ]\Iiiies, the owner, agent, and manager of such mine sJiall be gudfy of an olTcnce against this Act, unless he prove that he had fakcji all reasonable means, by enforcing to the best of his jiowcr the ])ro' isioiis of this section, to secure the transmission of such rules. ('. .v. 1888, c. 84, 8. 90. ' 1877, No. 15, s. 51. ■' "i! COAL MiyKfi REOVLATIOXS ACT (IH.-) M\(l- pro- tlns ,' up this n tlio t the f-liall ov ilifi O'i. * For tlio purpose of innkinji l5. ^ Every ])erson who ])ulls down, injures, or clefaces any pro- posed s])ocial rnles, notice, al)stract, or s])ecial rules when posted up in pursuance of the ])rovisions of this Act Avith res])ect to special rules, or any notice ))osted up in pursuance of the special rules, shall be guilty of an offence against this Act. C. A. 1888, c. 81, s. 9'2. '1877, No. 15. K 53. Ill: IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 1.25 bilM 12.5 U£ 1^ |2.2 U IIIIIL6 — 6" I Photographic Sciences Corporation 33 WBT MAIN STRUT WnSTU.N.Y. 14580 (7l*)l7a-4S03 ^.V '^ 4 ^ 6^ if I ft G80 BRITISH COLUMBIA 06. ^ An inspector under this Act shall, when required, certify a copy which is shown to his satisfaction to be a true copy of any special niles which for the time being are established under this Act in any mine, and a copy so certified shall be evidence (but not to the exclusion of other proof) of such special rules and of the fact that they are duly established under this Act, and have been signed l)y the inspector. C. A. 1888, c. 84, s. 93. '1877, No. 15. s. 54. Part III. SUPPLEMENTAL. Penalties. »7. ^ Every person employed in or about a mine, other than an owner, agent, or manager, who is guilty of any act or omission Avhich in the case of an owner, agent, or manager would be an offence against this Act, shall be deemed to be guilty of an offence against this Act. C. A. 1888, c. 84, s. 94. '1877, No. 15, s. 55, part. 08. ' J'A'ery person who is guilty of an offence against this Act shall be lial)le to a penalty not exceeding, if he is an owner, agent, or manager, one hundred dollars, and if he is any other person, ten dol- lars, for each offence; and if the inspector has given written notice of any such offence, then, in case of an owner, agent, or manager, to a further penalty not exceeding one hundred dollars and not less than ten dollars for every day after such notice that such offence con- tinues to be committed; and in cases of other persons, to a further penalty not exceeding five dollars for every day after such notice that such offence continues to be committed. C. A. 1888, c. 84, s. 95. ' 1877, No. 15, s. 55, part. OO. ^ Where a ]>erson who is an owner, agent, or manager of or a person em})loyed in or about a mine is guilty of an offence against this Act, which in the o])inion of the Court that trios the case is one which was reasonably calciilatcd to endanger the safety of the pcf- sons employed in or about the mine, or to cause serious personal injury to any such prrsons, or to cau-!e a dangerous accident, and was committed wilfully by the personal act, personal default, or per- sonal negrgence of the person accused, such person shall be liable, COAL illNES REGULATIOyS ACT 687 if the Court is of opinion that a pecuniary penalty will not meet the circumstances of the case, to imprisonment, Avith or Avithout hard lahour, for a period not exceeding three months. C. A. 1888, c. 84, s. 96. U877, No. 15. s, 56, part. lOO. ^ If any person feel aggrieved hy any conviction made by a Court of Summary Jurisdiction on determining any information xinder this Act, hy which conviction imprisonment is adjudged in pursuance of the last preceding section, or by which conviction the sum adjudged to be paid amounts to or exceeds the half maximum ])enalty, the person so aggrieved may appeal therefrom. C. A. 1888, c. 84, s. 97. '1877, No. 15, s. 56, part. 101. ^ All offences under this Act, and all penalties under this Act, and all money and costs by this Act directed to be rof>overed as penalties, may be prosecuted and recovered in a summary manner be- fore a justice of the peace. C. A. 1888, c. 84, s. 98. '1877, No. 15, s. 57, part. lOS. ^ The following provisions shall have effect: — (1) * Any complaint or infoi'mation made or laid in pursuance of tbis Act shall be made or laid within six months from the time when the matter of such complaint or information respectively arose; (3) The description of any offence under this Act in the words of this xict, shall be sufficient in law; (3) Any exception, exemption, proviso, excuse, or qualification, whether it docs or not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no proof in relation to tlie mat- ters so specified or negatived shall be required on the part of the informant; (4) The owner, agent, or manager may, if he think fit, be sworn and examined as an ordinary witness in the case where he is charged in respect of any contravention or non-compli- ance by another person; I ■'f(l 1 -' /I 1 ■'1 i ''t \ 4 i '1 G88 BRITISH COLUMIilA (5) The Court shall, if required by either party, cause minutes oj! the evidence to be taken and preserved; (G) Any two justices of the jjcace lioldinjj a Court of Summary Jurisdiction shall not impose a penalty under this Act ex- ceeding two hundred and fifty dollars, but any such Court may impose that or any less penalty for any one olfencc, not- withstanding the olfence involves a penalty of higher amount. C. A. 1888, c. 84, s. 99. '1877, No. 15, s. 58. - R. V. Mainwaring, (1858) E. B. & E. 474. 103. * Xo ])rosecution shall be instituted against the owner, agent, or manager of a nunc to which this Act applies for any ofTenre under this Act which can be ])rosecuted before a Court of Sujnmary Jurisdiction, e.\cei)t by an inspector or with the consent in writing of the ^Finister of !Mines; and in the case of any olfence of which the owner, agent, or manager of a mine is not alleged to be personally the perpetrator, if he proves that he had taken all reasonable means ••!> prevent the commission thereof, an inspector shall not institute any prosecution against such owner, agent, or manager, if satisfied that he had taken such reasonable means as aforesaid. C. A. 1888, c. 84, s. 100. •1877, No. 15, s. 59. 104. * Xothing in this Act shall prevent any person from being indicted or liable under any other Act or otherwise to any other or higher jienalty or punisliment than is ]n'ovided for any olfence by this Act, so that no person be jmnished twice for the same ofl'ence. And if the Court before whom a person is charged with an offence under this Act think thai proceedings ought to be taken against such person for such offence under any other Act, or otherwise, the Court may adjourn the case to enable such proceedings to be taken. C. A. 1888, 0. 84, s. 101. • 1877, No. 15, s. 60, part. "Foster v. Fyfe. (1896) 2 Q. B. 104. 109. 1 A ])erson who is the owner, agent, or manager, of any mine to which tliis Act applies, or the father, son, or brother of such owner, agent or manager, shall not act as a Court or mombor of a Court of Simimary Jurisdiction in respect of any offence under this Act. C. A. 1888, c. 84, s. 102. ' 1877. No. 15, s. 61. lOO. 1 "Where a penalty is imposed under this Act for neglecling to send a notice of any explosion or accident, or for any ofTonce COAL MINES REGULATIONS ACT G89 against this Act which has occasioned loss of life or personal injury, the j\Jinister of ^Mines may (if he think fit) direct such penalty to be paid to or distributed among the persons injured and the relatives of any person whose death may have been occasioned by such explosion, accident, or olfence, or among some of them. Provided that: — (1) Such persons did not in his opinion occasion or contrilnite to occasion tlic explosion or accident, and did not commit aiid were not parties to committing the offence; (2) The fact of such payment or distribution shall not in any way affect or be receivable as evidence in any legal proceed- ing relative to or consequential on such explosion, accident or offence. Save as aforesaid, all penalties imposed in pursuance of this Act shall be paid into the Provincial Treasury. C. A. 1888, c. 84, s. 103. ' 1877, No. 15, ss. ei, 62. 107. ^ The owner, occupier, or manager of every mine shall on the first of January every year, and at any other time when requh-ed by the Minister of Mines, send to the inspector of his district a return of facts relating to his mine in the form given in schedule three. C. A. 1888, c. 84, s. 104. '1877, No. 15, s. 63. SCHEDULE OXE.i TABLE OF MAXIMUM FEES TO BE PAin IN RESPECT OF CERTIFICATES OF MANAGERS OF MINES. By an applicant for examination . . $10 00 By applicant for certificate of service for registration 10 00 For copy of certificate 5 00 C. A. 1888, c. 84, Sch. 1. >1877, No. 15 Sch. 1. ililil 1 i. SCIIEDFLE TWO.» PROCEEDINGS OF BOARD FOR EXAMINATIONS. 1, The board shall meet for the dispatch of business, and shall from time to time make such regulations with respect to the sum- 44— M ; i I 690 BRITISH COLUMBIA moning, notice, place, management, and adjournment of such meet- ings, and generally with respect to the transaction and management of business, including the ouorum at meetings of the board, as they think fit, subject to the following conditions: — (a) The first meeting shall bo summoned by the inspector of the district, and shall be held on such day as may be fixed by tKe Minister of Mines; (&) An extraordinary meeting may be held at any time on the written requisition of tliree members of the board addressed to the chairman; (c) The quorum to be fixed by the board shall consist of not less than three members; (d) Every question shall be decided by a majority of votes of the members present and voting on that question; (c) The names of the members present, as well as those voting upon each question, shall be recorded; (f) Xo business shall be transacted unless notice in writing of such business has been sent to every member of the boarc" seven days at least before the meeting. S. The board shall from time to time appoint some person to 1)0 chairman, and one other person to be vice-chairman. 3. If at any meeting the chairman is not present at the time appointed for holding the same, th vice-chairman shall be the chair- man of the meeting; and if neitlicr the chairman nor vice-chairman shall be present, then the members ])resent shall choose some one of their number to be chairman of such meeting. 4. In case of an equality of votes at any meeting, the chairman for the time being of such meeting shall have a second or casting vote. li. The appointment of an examiner may be made by a minute of the board signed by the chairman. O. The board shall keep minutes of their proceedings, which may be inspected or copied by the Minister of Mines, or any i)erson au- thorized by him to inspect or copy the same.^ C. A. 1888, c. 84, Sch, 2. ' i877, No. 15, Sch. 2. CHAPTEK XIX. MINES AND MINERALS IN LANDS BELONGING TO, OR AD- MINISTERED BY. THE DOMINION OF CANADA, INCLUDING INDIAN LANDS. I. As to Minerals other than Goal : PAGE 1. Pursuant to "The Dominion Lands Act " (R. S. C. (188fi) Clip. 54, ss. 47, 48, 49 ; 40 Vict. (D.), (1883), ca]). 17) .... 092 Eefjulations thereunder : (1) For the disposiil of Quartz Mining Claims (11th March, 1898) 093 (2) Governing Placer Mining in the Yukon District (18th Jan- uary, 1898) 715 (3) Governing Placer Mining along the North Saskatchewan River (17th April, 1897) 728 (4) "The Dominion Mining Regulations" (9th November, 1889) superseded (11th March, 1898) as to Quartz Mining Claims 733 (5) Governing the issue of leases to dredge for Minerals in beds of rivers in Yukon District (18th January, 1898) .... 753 (fi) Respecting issue of leases to dredge for Minerals in sub- merged beds of rivers in Manitoba and the North-West Territories (21st July, 1897, as amended 29th July, 1897, IHth January, 1898, 28th February, 1898) 750 (7) For disposal of Dominion lands within 40-mile Railway Belt in Province of British Columbia (17th Sei)tember, 1889, as amended 13th November, 1890, 12th Decem- ber, 1891, 21st March, 1892, 10th November, 1893)..., 758 (8) For disposal of Dominion lands within 40-mile Railway Belt in Province of Briti.sh Columbia (11th July, 1895). 759 2. Pursuant to " The Indian Act " (R. S. C. (1880^ cap. 43 ; 43 Vict. (D.), (1880) cap. 28 759 Re(i)ilntiom thereunder : (9) Indian Lands Consolidated Mining Regulations (15th Sept- end)er, 1888, as ameniled 2nd December 1889, 15th June, 1893) 7fO ■if. m ii!i' I! I I ! ; 092 DOMINION FADE II. As to Coal Lands : 1. Pursuant to " The Dominion Lands Act " {supra). Ee(jid(ttions (hereunder : (1) For the disi)o.s!vl of Coal Liuuls, the property of the Domin- ion, in Mfinitolm, the Nortli-West Territories, and Ikitish Cohnnbia (17th September, 1881), lOth July, 1892, lltli November, 1895) 780 (2) For the issue of permits to mine Coal on Dominion Lands for domestic purposes only (9th February, 1897) 785 2. Pursuant to " The Indian Act " (supra). Rcijulationii thereunder: (3) Respecting Coal Lands within the Indian Reserves in Manitoba and the North- West Territories (15th Sep- tember, 1888) 788 "THE DOMINION LANDS ACT." \Vax\). MINING AND MINING LAW.S. 47. Lands containing coal or other minerals, whether in sur- veyed or unsurveyed territory, shall not be subject to the provisions of tills Act respecting sale or homestead entry, but shall be disposed of in such manner and on such terms and conditions as are, from time to time, fixed by the Governor in Council, by regulations made in that behalf. 46 Vict. c. 17, s. 42. 48. No grant from the Crown of lands in freehold or for any less estate, shall be deemed to have conveyed or to convey the gold or silver mines therein, imless the same are expressly conveyed in such grant, 46 Vict. c. 17, s. 43. 4f>. Every discoverer of minerals upon surveyed or unsurveyed lands, or his assigns and associates, who had applied for a grant of sucli lands before the passing of the Act passed in the forty-third year of Her ^Majesty's reign, chapter twenty-six, shall be held to have the same rights as if that Act had not been passed, 4(i Vict. c. 17. s, 44. ' R. S. C. (1886) c. 54. QUARTZ MINING REGULATIONS 693 QUARTZ MINIXG llEGULATIOXS. For the Disposal of Quartz Mining Claims on Dominion Lands in ^Manitoba and the North-West Territories (including the Pro- visional District of Yukon). Approved by Order in Council, dated 21st March, 1898. 1. These regulations shall be applicable to all Dominion lands, with the exception of those situated in the I'rovincc of British Colum- bia, and with the exception of lands containing coal. INTERPRETATION. 3. In tlie construction of these regidations the following expres- sions shall have the following meanings respectively, unless incon- sistent witli tlie context: — " Minister " sliall mean the Minister of the Interior. " Mining Recorder '' shall mean tlie agent of Dominion Lands for a district, or other oflicer appointed by the Government or Gold Commissioner for the i)artieular purpose referred to. " 31ine " shall mean any land in which any vein or lode, or rock in place, shall bo mined for gold or other minerals, precious or base, except coal. " Mineral " shall mean all valual)le deposits of gold, silver, plati- num, iridium, or any of tlie platinum group of metals, mercury, lead, copper, iron, tin, zinc, nickel, aluminum, antimony, arsenic, barium, bismuth, boron, bromine, cadmium, cliromium, cobalt, iodine, nuig- ncsium, manganese, .molybdenum, i)liosj)liorus, plumljago, potassium, sodium, strontium, suli)luir (or any combination of tlio aforemen- tioned elements, witli tliemselves or with any other elements), asbes- tos, emery, mica, and mineral pigments. Limestone, niarl)le, clay, or any building stone Avlien mined for building purposes, shall not be considered as mineral witliin the meaning of these regulations. " Rock in i)lacc " shall mean all rock in place bearing valuable deposits of mineral within tlio meaning of tliese regulations. " Vein ■' or " lode." Whenever eitlier of these terms is used in these regulations " rock in place " shall bo deemed to be included. ) in 694 DOMINION I " Mineral claim " shall mean the personal right of property or interest in any mine, " Mining , property " sliuU include every mineral claim, ditch, mill-site, or water right nsed for mining [)iiri)i)Hes, and all other tilings belonging to a mine or nsed in the working tliereof. " Legal post" shall mean a wooden stake standing not less than fonr feet above the ground, and squared or faced on four sides for at least one foot from the top, and each side so sipiared or faced shall measure at least four inches on its face so far as scpiared or faced, and any stump or tree cut oil and squared or faced to the above height and size: Provided where the survey is made, the centre of the tree or stump where it enters the ground shall be taken as the point to or from which measurement shall be made. " !Mill-site " shall mean a jdot of ground located, as defined by these regulations for the purj)ose of erecting thereon any machinery or other works for transportiiig, crushing, reducing, or sampling ores, or for the transmission of power for working mines. " Streams " shall include all natural water courses, whether usu- ally containing water or not, and all rivers, creeks, and gulches. "Ditch"' shall include a Hume, pipe or race, or other artificial means for conducting water by its own weight, to be used for mining purposes. ** Ditch-head " shall mean the jjoint in a natural water-course or lake, or other source where water is lirst taken into a ditch. "Free miner" shall mean a person or joint stock company, named in and lawfully possessed of a valid existing free miner's cer- tificate, and no other. "Eecord," "Register," and " l?egislration," shall have the same meaning, and shall mean an entry in some ollicial book kept for that purpose. ''Full interest" shall mean any mineral claim of the full size, or one of several shares into which a mineral claim shall be equally divided. "Cause" shall include any suit or action. "Judgment" shall include "order" or "decree." "Real estate" shall mean any mineral land in fee simple under these regulations, or any Act relating to gold mines, or to minerals otlior than coal. QUAliTZ Miyixo HEaVLATIOyS 69S " Joint stock Compnny " shall mcnn any company duly incor- porated lor mining purposes under a Canadian charter, or licensed by the Government of Canada. ' ' I PART I. FREE MINERS AND THEIR PRIVILEGES. 3. Every person eighteen years of age and over, l)ut not under, and every joint stock comi)any shall he entitled to all the rights and privileges of a free miner, under these regulations, and under the rcgidations governing ]»lacer mining or any other regidations of the Government of Canada, and shall he considered a free miner, upon taking out a free miners certificate. A free miner's certificate issued to a joint stock company shall bo issued in its corporate name. A free miner's certificate shall not be transferable. 4. A free miner's certificate may be granted for one year to run from the date thereof, or from the exi)iration of the applicant's then existing certificate, upon the payment therefor of the fees set out in the schedule of fees to these regulations. Only one person or one joint stock company shall he named therein. 5. A free miner's certificate shall be in the following form: — DOMINIOX OF CAXADA. Free Miner's Certificate. (Not Transferable.) No. Datt- Valid for One Year Only. This is to certify that of , has paid mo this day the suni of , and is entitled to all the rights and ])rivileges of a free miner under, any n)ining regulations of the Government of Canada, for one year from the day of , 18 . This certificate shall also grant to the holder thereof the privi- lege of fishing and shooting, subject to the provisions of any xVct which has been i)assed or which may hereafter be passed, for the protection of game and fish; also the privilege of cutting timber for actual necessities, for building houses, boats, and for general mining operations, such timber, however, to be for the exclusive use of the m I i' .1. : 090 DOMIXION miner liinisolf, but such permission shall not extend to timber which may have been heretofore, or whieh may hereafter be granted to other persons or corporations. O. Any free miner shall at any time be entitled to obtain a free miner's certilieate, commencing to run at the expiration of his then existing free miner's certilicate, provided that when he ap[)lies for such certificate he shall produce to the Mining liecorder such exist- ing certificate. T, Free minors' certificates may be obtained by applicants in person at the Department of the Interior, Ottawa, or from the agents of Dominion Lands at Winnipeg, Manitoba, Calgar , Edmonton, Prince Albert, in the Xorth-West Territories, Kandoops and New Westminster, in the Province of liritish Cohunbia, at Dawson City, in tlie Yukon district; also from agents of the (Jovernment at Van- couver and Victoria, P.l'.; and at other jdaces which may from time to time be named by the ^linister of the Interior. S. If any free miner's certificate be accidentally destroyed or lost, the owner thereof may, on payment of the fees set out in the schedule to these regulations have a true cojiy of it, signed by the Mining Pecorder or other person by whom or out of whose olTicc the original was issued. Every such cojjy shall be marked " Substituted certificate," and unless some material irregularity be shuwji in respect thereof, every original or, substituted free miner's certificate shai bo evidence of all matters therein contained. 9, Subject to the proviso hereinafter stated, no person or joint stock company shall be recognized as having any right or interest in or to any; mineral claim, or to any minerals therein, or in or to any water right, mining ditch, drain, tunnel, or flume, unless he or it and every person in his or its employment, shall have a free miner's certificate unexpired. And on the expiration of a free miner's certi- ficate the owner thereof shall absolutely forfeit all his rights and interests in or to any mineral claim, and all and any minerals therein, and in or to any and' every water right, mining ditch, drain, tunnel, or flume, which may be held or claimed l)y such owner of such ex- pired free miner's certificate unless such owner shall, on or before the day following the expiration of such certificate, obtain a new free miner's certificate. Provided nevertheless, should any co-owner fail to keep up his free miner's certificate, such failure shall not cause QUARTZ MlXiyO REdVLATinyH 09 r n forfeiture; or act as an abandoniiioiit of tlic claim, Ijiit tlio interest of the co-owner who shall fail to koe[) up his froo miner's curtilloato shall iim) fdcio, he and l)ec()niu vested in his co-owners pro mid nccordinf,' to their former interests. Provided, nevertheless, that a shareholder in a joint stock com])any need not be a free miner, and though not a free miner, shall he entitled to hiiy, sell, hold, or dis- jiose of any shares therein. And provided, also, that tiiis section shall not apply to mineral claims for which a Crown ^rant has been issued. Provided, always, that if any ])ers()n or company shall ac- quire, by ;])urchase or otherwise, any mine or mineral claim, or in- terest therein, and it shall appear that some ])erson or comjjany thror ;h whom he or it claims title has .neglected to take out or keep up a . ' miner's certificate, according to the provisions oi' those regulations, such ])erson or company so ac(iuiring such nunc or mineial claim, or interest therein, may, within one month from the time when he or it siudl first actiuire knowledge thereof, pay to the .Mining Recorder in which the claim affected is situate the fee or fees Mhich ought to have been paid by such i)ersou or company in default as aforesaid, and thereupon the title of such jjcrson or comjiany so acquiring the said mine or mineral claim, or interest 'iherein, shall be deemed to be and always to have been as good and eiie;'tual as if no such default had oocui'red. > lO. Every free miner shall, during the continuance of his cer- tificate, but no longer, have the right personally, l)Ut not through another, to enter, locate, prospect, and mine upon any vacant Do- ]ninion lands for all minerals other than i coal, and upon all lands the right whereon to so enter, prospect and mine all minerals other than coal has been, or hereafter shall be reserved to the Crov.:i, and also to enter, locate, prospect and mine for gold and silver upon any lands the right whereon to so enter and mine such gold and silver lias been, or shall be, reserved to the Crown. E.\cei)ting out of all the above descrijttions of lands, all the Dominion lands situated in the Province of British (Vdumbia, and excepting also any land occu- pied by any building, and any land falling within the curtilage of any dwelling house, and any orchard, and any land for the time being actually under cultivation, unless with the written consent of the owner, lessee or locatee or of the person in whom the legal estate therein is vested, and any land on which is situated any church or cemetery, and any land lawfully occupied for mining purposes and also Indian reserves, and military or naval lesorvations. Provided that in the event of such entry being made upon lands already law- 098 DOMIXIOX fully occupied, such free miner shall give adequate security to the satisfaction of tlie Mining Kecorder for any loss or danuige which may be caused by such entry if requested by the owner or occupant of such land, and should he refuse to give such security when so re- quested, his right to such claim or mine shall cease and determine. Provided that, after such entry, he shall make full compensation to the occupant or owner of such lands for any loss, or damage which may be caused by reason of such entry, if demanded to do so by such occupant or owner, such compensation in case of dispute to be de- termined by the Court of competent jurisdiction with or without a jury. 11. Any free miner desiring to locate a mineral claim shall, sub- ject to the provisions of these regulations with respect to land which may be used for mining, and having discovered mineral in place within the area proposed to be located as a claim by him, enter upon the same and locate a plot of ground not exceeding 1,500 feet in length by 1,500 feet in breadth. All angles shall be right angles except in cases Mhere a boundary line of a previously surveyed claim is adopted as common to both claims, but the boundaries need not necessarily be due north, south, east and west lines. In defining the size of a mineral claim it shall be measured horizontally irre- spective of inequalities of the surface of the ground. 12. A mineral claim shall be marked by two legal posts jilaced as near as possible on the line of the lode or vein, and the posts shall be numl)erod 1 and 2. The distance between ]>osts 1 and 2 shall not exceed 1,500 feet, and upon the posts shall be written the name given to the mineral claim, the Christian name and surname of the locator, and the date of the location. Upon post numbered 1 there shall be written, in addition to the foregoing, "initial post," the approximate computes blaring to post numbered 2, and a statement of the number of feet lying to the right and to the loft of the line from post 1 to post 2, thus: initial post, direction of post Xo. 2, feet of this claim lie to the right, and feet to the left of the line from po.«t Xo. 1 to post Xo. 2. 13. All the ])articulars required to be put on Xo. 1 and Xo. 2 posts shall be furnished by the locator to the Alining Uecordor in writing, at the time the claim is recorded, and shall form a part of the record of such claim. QUARTZ MINING REGULATIONS 699 14. AVlicn a clniin lias been located the holder shall immedi- ately mark the l!ne between posts Nos. 1 and 2 so that it can be distinctly seen; in a timbered locality, by blazing trees and cutting underbrush, and in a locality where there is neither timber nor under]jru.. Provided also, that all work done outside of a mineral claim with intent to work the same shall, if such work has direct relation and be in direct proximity to tlie claim, be deemed, if to the satisfactioji of the Mining Kecorder for the purpose of this section, to be work done on the claim. Provided further, that ad- joining claims, not exceeding eight in number, may be worked by tlic owners thereof in partnersliip upon fding a notice of their intention with the Alining Kecorder, and upon obtaining a certificate according to Form " K " of these regulations. This certificate will allow tlie holder tliereof to perform on any one or more of such claims all tlie work required to entitle him or them to a certificate of work for each claim so held by him or them. If such work shall not be done, or if such certificate shall not l)e so obtained and recorded in each and every year, tlie claim shall be deemed vacant and abandoned. 32. The liolder of a mineral claim may, in lieu of the work re- quired to be done by section 31 of these regulations on a claim in each year, pay to the Mining Recorder, in whose office the claim is recorded, the sum of one hundred dollars, and receive from such ]\rining Recorder a receipt for such payment. Such payment and the record thereof in any year shall relieve the person making it from the necessity of doing any work during the year in and for which and upon the claim in respect of which such payment is recorded. 33. The holder of a mineral claim on vacant Dominion lands shall be entitled to all surface rights, including the use of all timber QUARTZ MIXIXG KEaULATIOXS (03 thereon for mining or building purposes in connection with the work- ing of said claim for the purpose of developing the minerals con- tained therein. 34. In case of any dispute as to the location of a mineral claim the title to the claim shall be recognized according to the priority of sucli location, subject to any question as to the validity of the record itself, and subject, further, to the free miner having complied with all the terms and conditions of these regulations. 85. Upon any dispute as to the title to any mineral claim no irregularity happening previous to the date of the record of the last certificate of work shall afTect the title thereto, and it sluiU bo as- siuncd that up to that date the title to such claim was perfect, ex- cept upon suit by the Attorney-General of Canada based upon fraud. 30. Xo free miner shall be entitled to hold in his own name, or in the name of any other person, more than one mineral claim on the same vein or lode, except by purchase, but such free miner may hold by location a claim upon any separate vein or lode. 3T. A free miner may at any time abandon any mineral claim by giving notice in writing of his intention to abandon to the Mining Recorder, and from the date of the record of such notice all interest of such free miner in such claim shall cease. 38. "When a free miner abandons a minci-al claim he shall have the right to take from the same any machinery and any personal property which he may have placed on the claim, and any ore which he may have extracted therefrom, within such time as shall bo fixed by the Mining Recorder. 30. Xo free miner shall be entitled to re-locate any mineral claim, or any portion thereof, which ho shall have failed to record within the prescri])ed period, or which he shall have abandoned or forfeited, unless ho shall have obtained the written permission of the ]\[ining Recorder to make such re-location; and he shall hold no interest in any portion of such mineral claim, by location, without such permission. 40. Where a tunnel is run for the development of a vein or lode the owner of such tunnel shall, in addition to any mineral claim legally held by him, have the right to all veins or lodes discovered in ! 1 1* ' I ■■!;: 1 f' m rO-i DOMINION such tunnel, provided that tlie ground containing such veins or lodes l;e niaikud out by hiui as a mineral claim, and he duly recorded with- in fifteen days after such discovery; and provided further, that such veins or lodes are not included in any existing mineral claim. Any money or labour expended in constructing a tunnel to develop a vein or lode shall be deemed to have Ijeen expended on such vein or lode. 41. The interest of a free miner in his mineral claim shall, save as to claims held as real estate, be deemed to be a chattel interest, equivalent to a lease, for one year, aiul thence from year to year, sub- ject to the performance and observance of all the terms and condi- tions, of these regulations, 42. Any lawful holder of a mineral claim shall be entitled to a Crown grant thereof^ on payment to the Dominion Government of tlie sum of live hundred dollars in lieu of ex])enditure on the claim, in addition to the amount j)ayal)le as provided by section 5;? of these regulations. The intending purchaser shall comply with all Ihe i)rovisions of these regulations, except such as have respect solely to the work required to be done on claims. 43. Whenever the lawful holder of a mineral claim shall have complied with the following requirements, to the satisfaction of the Mining Kecorder, he shall be entitled to receive from the Recorder a certificate of imjiroveuients, Form " F," in respect of such claim, unless proceedings by the person claiming an adverse right under Eection 43a of these regulations have been taken. (a) Done or caused to be done work on the claim itself in de- veloi)ing a mine to the value of five hundred dollars, exclusive of all houses, buildings and other like improvements. For the pur- pose of this section, work done on a claim by a predecessor or pre- decessors in title shall be deemed to have been done by the applicant who receives a transfer of such claim; but in no case shall the cost of surveying l)e considered as improvements or work done on a claim, unless the survey is made within one year from the date of recording the claim, in Avhich case the cost of the survey, not to exceed $100, however, shall be counted as work done on the claim. (h) Found a vein or lode within the limits of such claim. (r) ITad the claim surveyed at his o^Vn expense in accordance with instructions from the Surveyor-General, by an authorized Do- minion Land Surveyor, and had the survey thereof approved by the Surveyor-General. ; i!5': QVAliTZ MIXING REQULATIOyS 705 Tlie surveyor shall accurately tlefino and mark the boundaries of such claim on the ground in full compliance with the instruc- tions issued to him, and shall, on completion of survey, forward at opc" to the Surveyor-General at Ottawa, the original field notes and •dan .sirnfd and certified as accurate, tinder oath. After a certificate till!' . ■> ments has issued in respect of any claim so surveyed, 01 'J ' ,0.* .' . evidence of its locatioii ttpon the ground may be given ti' 1)1' 'ion who has seen and can describe the position of sttch 'iM-porting to be marked as aforesaid. (d) Shall have posted on sonte conspicuous part of the land em- braced in the survey a coi)y of the plan on the claim signed and certified as accurate under oath by the surveyor, and a legilde notice in writing in Form " ({ " of the Schedule of these regulations, of his intention to apply for a certificate of improvements, and shall also have posted a similar notice in the Mining llecorder's office, and such notice shall contain: — (1) The name of the claim; (8) The name of the lawful holder thereof; (3) The number of such holder's existing free miner's certi- ficate ; (4) His intention to apjtly for certificate of improvements at the end of sixty days, for the purpose of obtaining a Crown grant ; (5) The date of the notice. (e) Inserted a copy of such notice in a newspaper ptddished ill and circulated in the district in which the claim is sitttated, such japer to be approved by the Alining Hecorder, for at least sixty days jifior to such a])plication, which insertion can be made at any time after the posting of the notice on the claim. If no pajier is ptd)lished in the district, then the notice shall appear in the nearest pttblished paper. (f) Shall hiive filed with the ^Mining Recorder a copy of the surveyors original field notes and ]dan, signed and certified as acctt- rate under oath by the surveyor, immediately after posting the notice on the claim of his intention to apply for a certificate of intprovc- ments. {(l) Filed with the Mining Recorder an affidavit of tlie holder of the claim in the Form " 11 " in the Schedttle of these regulations. 43 -M p;: n i; r\) U 706 DOMINION (h) At the expiration of the term of the snid publication, pro- vided no action sliall have been commenced and notice thereof filed with the Alining Kccordcr, he shall forward to the owner or agent, under Form " 1 " of the Schedule to those regulations, the documents referred to above, together Avith a certificate that the notice provided by section 43, sub-secti(in (d), has been posted in his office, and the field notes and ])lan deposited for reference therein from the date of the first appearance of the said notice in the nearest local newspaper, and continuously therefrom for a period of at least sixty days. Tlie Wining Recorder shall also set out in Form " I " the name of the recorded owner of the claim at the date of signing the same. 4*. Crown grants of mineral cliiims located on lands disposed of, the right whereon to enter and mine gold and 'silver has been re- served to the Crown, shall pass to the grantee all the gold and silver found in veins or lodes, or rock in place, which niay be in, upon, or under the land in the said Crown grant mentioned, and 'including all the rights given to mineral claim-holders of mineral claims so located. 54. Tf an adverse claim shall only alTect a portion of the ground for which a cei-tificato of im])rovements is applied, the applicant may relinquish the portion covered by the adverse claim, and still be en- titled to a certificate of improvements for the undisputed remainder of his claim, upon comjdying with the reipiirements of these regula- tions. When judgment in such case is rendered by the Court, a memorandum of such judgment shall be entered in the "Record Ql.UnZ MIMSU ItlJdiL.VriOXS 70!) IJook " l)y tilt' Miniiif,' lluconlor; and if l)y any judgment tlio original boundaries ol" any cinini sluill ho changed, a plan nuide l)y a Domin- ion land surveyor, and signed l)y Ihe Judge hy whom tiie judgment iia.s heeii given, sludl he liled with the Mining Keeorder, wlu) shall forward it to the Department of tlie Interior. S!i. i'lvery conveyance, hill of sale, mortgage or other document of title relating to any mineral claim not held a.s real estate or nuning interest, shall prescri hod i or he recorded with the Mining Recorder within the time recording mineral claims. Provided always, tluit the failure to so record any such document shall not invalidate ihe same as hetween the parties thereto, hut such documents as to third par- ties shall take elfeet from the date of record, and not from the date of such document. And jjrovided further, that after the issuance of a Crown giant for any nuneral claim it shall not he necessary to re- gister any transfer or other document of title executed suhseipient to such Crown y-rant with the .\l inin< Keeorder of the district in which the said claim is situated; but all documents relating to the same may thereafter be registered in the same manner as are other documents of title relating to the transfer of real estate, and in the Xorth-^^'est Territories all the provisions of " The Land Titles Act," and any amendments thereto, shall ai)i)ly to such registration. 50. Xo transfer of any ndneral claim, or of any interest therein sludl be eiVectual unless the same is in writing and accompanied by the record of entry (Korm !»), sigiu'd l)y the transferror, or by his agent authorized in writing, and recorded l)y the Alining IJecorder; and, if signed by an agent, the authority of such agent shall he re- corded before the record of such transfer. The assignment shall 1,'e in duplicate, and when recorded the Mining Keeorder shall rL'turn to the assignee one copy thereof with a certificate endorsed thereon tliat it has l)een recorded in his otlice, and retain the other co])y. 'IMie .Mining Keeorder shall also endorse on Form " ]\" the ])ai-ticulars of the assignment recorded, and return the form to the holder thereof. All mineral claims derived under Crown grant, and every transfer thereof, or any interest therein, shall, in the Xorth- West Territories, be registered under the provisions of " The Land Titles Act. 57. Xo mineral claims shall be open to location by any other person during the last illness, nor, unless with the iiermission in writing of the :Mining Keeorder, for twelve months after the death of the lawful holder. I I III !!':: ;io /)«.1//.V/0.V SiH. \() fri'c minor slinll piiITit from nny ncti^ of omission or commission, or delays on (lie ])art of any (iovornnu'nt oilicial, if sucli tan bo proven. MILL SITES. Si9. A fri'o miner may locate any \inoccu])it'(l and imri'Sfrvcd Crown land not known lo contain mineral, and not exceedinj; iive acres, as a mill site. Lands vnliial)le for water power are excepted fiom location as ndll-sites nnless with the authority of the (iovernor in Coiineil. No free miner shall he entitled to obtain and hold nnder this section more than one mill-site for each mineral claim lawfully held hy him. Such ndll-site shall he as nearly as jiossihle in the form of a siinare. On locatinj? a mill-site, the free miner shall com- ])ly with the followinj^ recjuiremcnts: — (a) Mark out the land by placing a lej^al ])ost at each corner. (h) Post a notice on each ])ost, stalinfj — (1) The name of such free ndner; (8) The nnmher of his free miner's certificate; (3) His intention at the expiration of sixty days from the date of the notice to apply for the land as a mill-site; (I) The date of notice. (r) Post a copy of such notice on the ollicc of the Mining Re- corder. 00. On the expiration of sixty days after the fulfilment of the aliove re(iuiremcnts, the free miner shall de])osit in the olTice of the !Mininu Ifecorder a ])]an and field notes made hy an authorized Do- minion Land Surveyor in accordance with instructions from the Snr- veyor-dencral, and jtrove hy afhdavit that he has complied with the above r('(iuirements, and that the said land is not known to contain minerals, and is not valuable for water power, and he shall furnish such other ])roof of the non-mineral character of the land as the ^Mininjj: Recorder may require. 01. If the plan and field notes are ajjproved hy the Surveyor- General and the proof referred to in the preceding paragraph has been furnished the free miner shall then he entitled to a lease (Form "J"), for one year, of the said land; which lease shall he executed QLAinz MlMXa UKaiLXTWSti rii by tlio Minister of the Interior. If, diirin;,' the eontimmiu'u of hucU lease, hiicIi free miner slinll prove to tlie siitisfaetion of tiie Mining Recorder that lie has put or const meted works, or niaeliinery for mining or milling purposes, on the snid mill-site, of the value of nt least five hundred dollars (Form "K"), lie shnll 1)o entitled to a Crown grant of such mill-site upon payment of live dollars per aero for sueh land and a fee of live dollars. Any free miner now having a lease of a plcee of hind for a mill-site u[)on proving to the satisfac- tion of the Mining Ifecorder that he has put or construeted works, or machinery for mining or milling purposes on the said mill-site of tlu( value of at least live hundred dollars, shall, on payment of live dollars i)er acre, and a fee of live dollars for the issue of a patent, he entitled to a Crown grant of such mill-site. OS. On applying for a Crown grant of a mill-site, the froo miner shall— (1) Pay the sum of five dollars per aero to ilie Alining Recorder; (2) Deposit with the ^Mining Kocordor the following doeu- nients : — {a) Lease of tho miH-site; {h) Plan of the mill-site; (c) A certificate from the [Mining Recorder that works or ma- chinery for mining or milling pnrposos have been put or cons'vuctcu on the mill-site to the value of at least five hundred dollars. (Form " L.") (d) Application for the Crown grant. (Form " !M.'') OB. Crown grants of mill-sites shall pass to the grantee all the surface of tho land in the said Crown grant mentioned, but all such Crown grants shall expressly reserve all minerals under the said land, and the right to the Crown and its licensees to enter and mine tho said minerals. TUNNELS AND DRAINS. 04. Any free miner, being the holder of a mineral claim, or mine he fl as real estate, may, at the discretion of the Mining llecorder obtain a license (Form " N ") to run a drain or tunnel, for drainage or any other purpose connected with the develoi)ment or working of such claim or mine, through any occupied or unoccupied lands, whe- matmm 712 DOMINIOX ther mineral or otherwise, upon security being first deposited or given to such Mining Kecorder to his satisfaction for any damage that may bo done thereby, and upon sucli otlier terms as lie shall think ex- pedient. WATER RIGHTS. C5. A free miner mIio is the holder of a mineral claim or mine held as real estate, or of any mill-site, may obtain a grant to a water right of any unappropriated water, for any mining or milling purpose, in accordance witli the ])rovisions of "The Xorth-West Irrigation Act." WORKING OF MINES OR CLAIMS, AND OTHER POWERS. CO. The ^Mining Recorder may, in his discretion, ])ermit a free miner to re-locate a mineral claim, or any ])art thereof, which may have been abandoned or forfeited by such free miner. Provided that such re-locations shall not prejudice or interfere with the rights or interests of others. C7. The ]\lining Recorder may mark out a space of ground for de])o. lOvery free miner, on application to the Alining Recorder of the district, shall l)e entitled to a printed copy of these regulations free of charge. i , 50. AOidavits and declarations made under the provisions of these regnlntions can he made before any person duly authorized to administer an oath or declaration. 51. Tlie ^Minister of the Interior, or any one deputed by him. and tlie Alining Eccorder shall have the riglit to enter into or upon and examine any mineral claim or mine within the meaning of these regulations. S3. Where a claim has been recorded under any name, and tlic owner or liis agent is desirous of changing the same, the Mining Kecorder may, upon aj)plication being made by such owner or agent, and u]ton payment of a fee of twenty-five dolhirs amend tlie record accordingly. I'rovided, however, that sucli change of name shall not in any way affect or prejudice any proceedings or execution against the owners of the said claim. S;j. Wlienever tlirough the acts or defaults of any person otluT than the recorded owner of a mineral claim or liis agent by him duly authorized, the evidence of the location or record on the ground, or the situation of a mineral claim has been destroyed, lost or efTaced, QUARTZ MINING REGULATIONS il5 or is diiliciilt of ascertainment, nevertheless effect shall l)o given to same as far as possihle, and tlie Court shall have power to make all nece-sary inquiries, directions and references in the premises, for the purposes of carrying out the ohject hereof, and vesting title in the first hoiui fide acquirer of the claim. H4, iS'otliing herein contained shall be construed to limit the light of tlie Ijieutenant-Governor of the North-West Territories in Council, or of tlie proper autluirities in any province containing Dominion lands, to lay out, from time to time, public roads across, througli, along, or under any ditch, water privilege or mining right, without compensation. S5. Nothing herein contained shall affect any litigation pending at the time of the passage of these regulations. 8tt. Should it 1)0 proven to the satisfaction of the Mining Re- corder tliat any free miner b:is been guilty of misrepresentation in the statement sworn to by in recording any claim, or in any of the statements required to lie made by him under oath under these regulations, or to have Ijeen found removing or disturbing with in- tent to remove, or defacing any legal post or stake or other marked placed under tlie provisions of these regulations, the ^Mining Recorder may cancel the said free miners certificate and may in his discretion order that such person be debarred from the riglit to obtain a free miner's certificate for any lengtli of time he may deem advisable. The ^Mining Recorder shall fortliwitli upon any such decision by him notify every other ^Mining Recorder of such decision. Every free miner sluill liave the riglit to appeal from the decision of the Alining Recorder to the ^.Minister of tlie Interior. For Forms referred to in these regulations, see Appendix .II. \ : i,; !j illl ,! IM M Regli.atioxs (Jovkkxixc I'l.AcKK MiNixc IN THE Provisional Dis- trict OK Yi'Kox, Nortii-Wkst Territokiks. (Approved by Order in Council of ISth January, 18t)S.) IXTKRl'RKTATIOX. " I'ree miner" shall mean a male or female ovi'r the age of eighteen but not under that age, or joint stock company, named in, and lawfully possessed of, a valid existing free miner's certificate, and no other. il- 1 !l BBBB 716 DOMixioy " Legal post " shall mean a stake standing not less than I'our feet above the ground and ilatted on two sides for at least one foot from tlie top. JJolh sides so Halted shall measure at h'ast four incl)es neross tlie faee. It shall also mean any stump or tree cut olf and flatted or faeed to tlio a])0ve lieight and size. "Close season" shall mean tiie jieriod of the year during which ]ilacer mining is generally susjiended. The ]ieriod to he fixed by the ^Mining Ifecorder in whose district the claim is situated. " ]\Iineral " shall include all nnnerals whatsoever other than coal. "Joint Stock Company'' shall mean any company incor])orared for mining purposes under a Canadian charter or licensed by the Covernment of Canada. "Mining h'ecorder " sliall mean the olhcial appointed by the Cold Comniissioiu^r to record a])plications and grant entries for claims in the Alining Divisions into which the Coi'.imissioner may divide the Yukon District. FREE MINERS AW) THEIR rRIVrr.EGES, 1. Kvery ])crson over, but not under eighteen years of age, and every joint stock eom])any, shall be entitled to all the rights and privileges of a free miner, under these regulations and under the regulations governing ([uartz mining, and shall be considered a free miner ui)on taking out a free nuner's certificate. A free miner's cer- tilieate issued to a joint stock company shall be issued in its cor- porate name. A free miner's certificate shall not be transferable. 2. A free miner's certificate may ]»e granted for one year to run from tlie date thereof or from the expiration of the api)licant"-; thou existing certificate, upon the ]tayuu>nt therefor of llie sum of $10, unless the certificate is to be issued in favour of a joint stock com- pany, in which case the fee shall be fifty dollars for a comiiauy iiav- ing a immiual capital of $1(10.0(10 or h'ss, and for a company liaving a m)minal capital exceeding $100,000, the fee shall be one hundi'cd dollars. Only one ])erson or joint stock company shall be named in n certificate. YUKOX PLACIiR MIXIXU REaULATIOSH U 3. A free minor's ccrtilicatc shall bo on the following; i'onii: — Date DOMINION OF CxVNADA. I'KKE MINKR's CEUTH'ICATE. (Non-trausi'orablo.) Valid for one year only. No. This is to certify that of has paid mo this ilay tlio sum of and is entitled to all the riglils and i)rivileges ol" a i'ree miner, nndor any mining regulations ol' tlie (jioveriiment of C'anachi, for one year from the day cf 18 . This cci'tificate shall also grant to the holder thereof the privi- lege of fishing and shooting, subject to the ])rovisions of any Act M'hich has been passed, or which may hereafter lie ])assed for the pro- tection of game and fish; also the i)rivilege of cutting timlx'r for actual necessities, for building houses, boats, and for general mining ojjerations; such timber, however, to be for the t'xclusive use of tiic minor himself, but siicli permission shall not extend to tind)er which may have boon heretofore or which may hereafter be granted to other persons or corporations. 4. i-'roo nuners' certilicates may bo obtained by a])plicants in ])or- son at the De])artment of the Interior, Ottawa, or from the agents of Dominion Lands at Winnipeg, ^Manitoba; Calgary, Ivlmonton, I'rincc Albert, in the North-west Territories; Kandoops and New West- minster, in the Province of British Columbia; at Dawson City in the Yukon District: also from agents of the Dovernment at Vancouver and A'ictoria, \\X\, and at other places which may from time to time be named by the Alinister of the Interior. 5. If any i)orson or joint stock com])any shall apply for a free miner's lertilicato at the agent's office during his absence, und ^hall leave the fee re(|uired by these regulations, with the otTicer or other person in charge of said odice, he or it shall be entitled to have such certificate from the date of siich application; and any free miner shall at any time be entitled to o1)tain a free miner's certificate commenc- ing to run from the expiration of his then existing free miner's (cer- tificate, ]irovided that when ho ajijilies for such eortificate, ho shall produce lo the agent, or in case of Ids absence shall leave with the ofTicor or other person in charge of the agent's ofTico, such existing certificate. i-l II, i ns DOMINION O. U' any i'rco miner's cortificato be acculentally destroyed uv lost, the owner thereof may, on i)aynient of a fee of two dolhirs, liavo a true copy of it, signed by the agent, or other person by whoni or out of whose ollicc the original was issued. Every such copy -(hall be marked "Substituted Cortificate "; and unless some material irregularity be shown in resi)ect thereof, every original or substituted free miner's certificate shall l)e evidence of all matters therein con- tained. T. Xo person or joint stock compariy will ])0 recognized as hav- ing any riglit or interest in or to any jdacor claim, cpiartz claim, mining lease, bed-rock flume grant, or any minerals in any ground comjirised therein, or in or to any water right, mining ditch, drain, tunnel, or iluino,^ unless he or it and every person - in bis or its em- ployuient shall have a free miner's certificate unexpired. And on the e.\))iration of a free miner's certificate tlie owner thereof shall ab. Previous to any entry being made upon lands lawfully occu- pied, such free miner shall give adetpuite security, to the satisl'aetion of the Mining Iteoorder, for any loss or damage whicli may lie caused by such entry; and after such entry he shall nutke full compensation to the occupant or owner of such lands for any loss or damage Avhich may be caused by reason of such entry; such compensation, in ca*o of disimte, to be determined by a court having jurisdiction in min- ing disputes, with or without a jury. NATURE AND SIZE OF CLAIMS. lO. A creek ^ or gulch claim shall be 250 feet long measured in tlic general direction of the creek or gidch. The boundaries of the claim which run in the general direction of the creek or gtdch shall bo lines along bed or rim rock three feet higher than the rim or edge of the creek, or the lowest general level of the gulch within the claim, so drawn or marked as to be at every ])oint three feet above the rim or edge of the creek or the lowest general level of the gidcli. oppo- site to it at right angles to the general direction of the claim for its length, but such boundaries shall not in any case exceed 1,000 feet on each side of the centre of the stream or gnlch. (See Diagram Xo. 1.) 'The word "creek" is obviously not used in the English pensc as meaning " a small inlet, bay, or cove, a recess in the phore of the eea," etc., but with the American meaning of a " small stream less than a river." It is used in contradistinction to the word river in No. 12. The word is used in the statute 28 Hen. VIII. c. 15. s. 1. Ml ! li Ij i 120 DOMIXION See Coulson & Forbes on Waters, p. 11; R. v. Keyn, 1876, 2 Ex. Div. 63. Hall on the Sea Shore, p. 15. Hale, De Jure Maris, p. 7, c. 4. Baker v. City of Boston, 1831, 12 Pick. (Mass.) 183. Schermerhorn v. Hudson River R. Co.. 1868, 38 N. Y. 103. Whrlan V. McLachlan, 1865, 16 U. C. C. P. 102, following Hoale V. Dickson, 1863, 13 U. C. C. P. 337, which was overruled by the Privy Council In Caldwell v. McLaren, (.1894) App, Gas. 392. 11. if tlio hoiiiularics l)o less tlum one hundred feet apart hori- zontally, they sliall l)e lines traced aloiij; hed or rim rock one lumdrod feet ajiart horizontally, i'ollowinji as nearly as practieahle the direc- tion of the valley J'or the length of the tlaini. (See Diagram Xo. 2.) 12. A liver claim shall he situated only on one side of the river ^ and shall not exceed 2M feet in length, jiieasiired in the general direction of the river. The other houndary of the claim which nms in the general direction of the river shall l)e lines along hed or rim rock tiireo feet liigher than the rim or edge of the river within lln' claim so drawn or marked as to I)e at every point three feet al)ove the rim or edge of the river opposite to it at right angles to the gen- eral direction of the claim for its length, l)nt such !)oundaries shall not in any case he less than 250 foet, or exceed a distance of 1,000 feet from low water nnirk of the river. (See Diagram Xo. 3.) ' A river is defined in the Standard Dictionary as a large stream. No test is given for determining how large a stream must be to become a river. It is possible that the test may be held to be navigability. The signiflcation of the word river was discussed in The State v. Gil- manton, 1843, 14 N. H. 467. The meaning of the word river was discussed in McHardy v. ElHre, 1877, 1 A. R. 628, where a stream called Black Creek, from 30 to 40 feet wide, was held to be a river. Woolrych on Sewers, 31. Callis on Sewers, 77. " A body of flowing water of no specific dimensions — larger than a brook or rivulet, less than a sea — a running stream, pent on ?ach side by walls or banks." Alabama, v. Georgia, 23 Howard (U. S.) 513. 13. A "hill claim " shall not exceed 2r)0 feet in length, drawn parallel to the main direction of tlie stream' or ravine on Mhicli it fronts. Parallel " lines drawn from each end of the hasc line at right angles thereto, and running to the summit of the hill (provided the YUKON PLACER MIXING KEGVLATIONii 721 distance does not exceed 1,000 feet), shall constitute the end bo.iu- daries of tlie claim. ' The meaning of the word " streams " In an Ontario statute was considered by the Privy Council in Caldwell v. McLaren, 1884, 9 App. Cas. 392. The statute passed In consequence of this decision Is entitled " An Act for protecting I he public interest in Rivers, Streams and Greeks." R. S. O. 1897, c. 142. The v.'ord " stream " is defined for the purposes of " Rivers Pollution Prevention Act, 1876," by 39 & 40 Vict. (Imp.) c. 75, s. 20. •In Clark v. Adle, 1877, 2 App. Cas. 423, the word "parallel" was construed in its popular and not In Its purely mathematical sense. 14. All other phiccr claims shall he 5i50 I'oct square. 15. Every i)lacer claim shall be as nearly as possible rectangular in i'onn, and marked by two legal posts lirmly lixed in the ground in the manner shown in diagram ^.'o. 1. The line between the two posts shall be well cut out so that one post may, if tiie nature of the surface will jjermit, be seen from the other. The Hatted side of each post shall face the claim, and on each post shall be written on the side facing tlie claim, a legible notice stating the name or number of the claim, or both if possible, its length in feet, the date when staked, and the fidl christian and surname of the locator. lO. Every alternate ten claims shall be reserved for the Govern- ment of Canada. That is to say when a claim is located, the dis- coverer's claim and nine additional claims adjoining eacli other and numbered consecutively will be open for registration. Then the next ten claims of 250 feet each will be reserved for the Government, iind so on. The alternate group of claims reseiTcd for the Crown shall l)e disposed of in such manner as may be decided by the Minister of the Interior. IT. The penalty for trcppassing upon a claim reserved for the Crown, shall l)e innnediate cancellation by the Alining Recorder of any entry or entries which the person trespassing may have obtained, whether by original entry or purchase, for a mining claim, and the refusal by the IVfining T?ecorder of the acceptance of any a])])licatiou which the person tres])assing may at any time make for a claim. Tn addition to snch penalty, the ^Mounted Police, njion a requisition from the I^lining T?ocorder to that effect, shall take the necessary steps to eject the trespasser. IS. Tn defining the size of claims, they shall be measured hori- zontally irrespective of inequalities on the surface of the gronnd. 40— M I II 1 !■ i ! 122 DOMINION lO. ]i' any Troo miner or purty of free miners discover a new mine, and such discovery shall he establiHlied to the satisfaction of the Mine Recorder, creek, river, or hill, claims of the following size shall Ijc allowed, namely: — To one discoverer, one claim, DUO feet in length. To a party of two discoverers, two claims, amounting together to 1,U00 feet in length. To each niemher of a ])arty hcyond two in nnnil)er, a claim of the ordinary size only. 90. A new stratum of auriferous earth or gravel situated iji a locality where the clainis have hcen almndoned shall for this purpose Ije deemed a new mine, although the same locality shall have been l)reviously worked at a difl'erent level. 21. 'J'lie f(>iiiis of ajiplication for a grant for i)laeer mining, rind the grant of the same, shall be those contained in forms " H " and " I " in the schedule hereto. S3. A claim shall he recorded with the Mining IJecordcr in whose district it is situated, within ton days after the location thereof, if it is located within ten miles of the ^Mining Recorder's oirice. One extra day shall be allowed for every additional ten miles or I'raction thereof. 93. Ill the event of the claim being more than one hundred miles from a Eecorder's oflicc, and situated where other claims are being located, the free miners, not less than five in number, are au- thorized to meet and appoint one of their nund)er a "Free ^liners' Recorder," who shall act in that capacity until a Mining Keeordcr is a])pointed by the Gold Commissioner. 24. The "Free ]\riners' Recorder" shall at the earliest possible date after his appointment, notify the nearest Government ■^^i^in;;■ Recorder thereof, and upon the arrival of the riovernment Minitiir Recorder, he shall deliver to him his records and the fees received for recording the claims. The flovornment !^^ining Recorder shall llitn grant to each free minor whose name appears in the records, an entry for his claim on form "T" of those regulations, provided an aitpli- cation has boon made by him in accordance with form "IT" thceof. The entry to date from the time the " Free ifiners' Recorder " re- corded the application. YUKON PLACER MIXING ItEGULATIONS 783 a5. 11' the "Free ^Miners' Recorder" fails within three months to notify tlie nourcst CJovernmeiit Mining Recorder oi' liis appoint- nient, the cluiius wliieli he may have recorded will be cancelled. 20. During the absence of the ^Mining IJecorder from his odicc, the entry for a claim may be granted by any person whom he may ap- point to perform his duties in his absence. 37. Entry shall not be granted for a claim which has not been slakod by the applicant in person in the manner specified in these regulations. An allidavit that the claim was staked out, by the appli- cant shall lje embodied in form " Jl " in the schedule hereto. HH. An entry fee of fifteen dollars shall be charged the (Irst year, and an annual fee of lifteen dollars for each of the following years. This ])rovision shall api)ly to claims for which entries have alreaily been granted. 20. A statement of the entries granted and fees collocted shall bf rendered by the j\lining IJccordcr to the (iold Commissioner at least every three months, which shall be accompanied by the amount collected. 30. A royalty of ten i)er cent, on the gold mined shall be levied and collected on the gross output of each claim. ^ The royalty may be paid at banking oflices to be established under the auspices of the Government of Canada, or to the Gold Commissioner, or to any Min- ing Ik'corder anthorized by him. The sum of $3,500 shall l)e de- ducted from the gross annual otitpttt of a claim when estimating the amount npon which royalty is to be calculated, but this exemption shall not be allowed unless the royalty is ]iaid at a banking office or to the Gold Commissioner or Mining Recorder. When the voyalty is paid monthly or at longer periods, the deduction shall be made ratable on the basis of $2,500 per annum for the claim. If not paid to the bank, Gold Commissioner or ^Mining Recorder, it shall be col- lected by the customs ofTicials or police olTicers when the miner i)asso3 the posts established at the boundary of a district. Such royalty to form part of the consolidated revenue, and to be accounted for by the officers who collect the same in due course. The time and man- ner in which such royalty shall be collected shall be provided for by regulations to he made by the Gold Commissioner. ' No provision Is made for collecting a. royalty on gold mined by a free miner, pursuant to the right to mine conferred on him by No. 8. 1'? I I m\ 721 DOMIMOS DIAGRAM No, I PLAN Of CREEK OR GULCH CLAIM. ft SECTIONAL PLAN OF A CREEK CLAIM. SECTIONAL Plan of a gulch claim. yVliO\ I'lACEIt MIMMI in:(}ULATIOSii 7M O'AGRAM No. 2. PLAN SHEWING SIDE BOUNDARIES LESS THAN 100 FEET APART s '00 Ini \ — — .«— -^ DIAGRAM No, 3. SECTIONAL PLAN OF A RIVER CLAIM. DIAGRAM No 4 SHEWING HOW CLAIMS ARE TO BE STAKED PLAN OF A CREEK OR GULCH CLAJM PLAN OF A WiVER CLAIM . coat .,( " I ;i 1 ;i 72G DOMINION 31. lU 'fiiiilt ill piiyiiioiit of suoli royally, if contimicd for ton days after notice has been posted on tlio I'laini in respect of which it is demanded, or in tlic vicinity of sucli chiini, hy the Oohl Commissioner or liis ajicnt, sliall ho followed by cancellation of the claim. Any attempt to defraud the Crown by withholding any part of the rovcnne thus ])rovided for, by making false statements of the amount taken out, shall be punished by cancellation of the claim in respect of wliich fraud or false statements have been committed or made. In respect to the facts as to such fraud or false statements or non-p;\v- ment of royalty, the decision of the Gold Commissioner shall be linal. 33. After the recording of a claim the removal of any post by the holder thereof or by any person acting in his behalf for the pur- pose of changing the boundaries of his claim, shall act as a forfeiture of the claim. 33. The I'utrv of every holder of a grant for placer mining must be renewed and liis recei])t relin(piishcd and replaced every year, the entry fee being paid each time. 34. The holder of a creek, gnlch or river claim may, Avithin sixty days after staking out the claim, obtain an entry for a hill claim ad- joining it, by ])aying to the Mining Recorder the sum of one liundred dollars. This ])ermission shall also be given to the holder of a creek, gulch or river claim obtained under former regidations, provided that tlie hill claim is available at the time an application is made therefor. 35. Xo miner shall receive a grant of more than one mining claim in a mining district, the boundaries of which shall be defined by the ]\lining Eeeorder, but the same ininer may also hold a liill claim, acquired by him under these regulations in connection witii ii creek, gulch or river claim, and any numlier of claims by purchase; and any number of miners may unite to work their ciaims in common, upon such terms as they may arrange, provided siic''i agreement is legistered with the Mining Recorder and a fee of fve d<)lit: '^ ])aid for each registration. 30. Any free miner or miners may sell, mortgage, or dispose of his or their claims, provided such disposal be registered with, and a fee of two dollars paid to the Mining Recorder, who shall tlu're- upon give the assignee a certificate in the form "J" in the schedule hereto. YUKOy PLACER MINING REOVLATIONS 727 Jt7. Kvery free miner shall during the continuance of his grant liave the exclusive right of entry upon his own claim for the miner- like working thereof, and the construction of a residence thereon, and shall he entitled exclusively to all the proceeds realized therefrom, upon which, however, the ro}'alty prescrihed hy these regulations shall ])e jiayahle; i)rovided that the Mining Eccorder may grant to the holders of other claims such right of entry thereon as may be absolutely necessary for the working of their claims, upon such terns as may to him seem reasonable. He may also grant permits to minors to cut timber thereon for their own use. 3S. Every free minor shall bo entitled to the use of so much of the wafer naturally flowing through or past his claim, and not al- ready lawfully ajipropriated, as shall, in the opinion of the ]\Iining IJecordcr be necessary for the due working thereof, and shall be en- titled to drain his own claim free of charge. 30. A claim shall be deemed to bo abandoned and open to occu- pation and entry by any person when the same shall have remained iinworked on working days, excepting during the close season, by tho grantee thereof or by some person on his behalf for the sjiacc of seventy-two hours, unless sickness or other reasonable cause be shown to the satisfaction of the ^Mining Recorder, or unless the grantee is absent on leave given by the Alining lU'corder, and the ^Mining Re- corder, upon obtaining evidence satisfactory to himself, that this pro- vision is not being complied with, may cancel the entry given for a claim. 40. If any cases arise for which no provision is made in these regulations, the provisions of the regulations governing the disposal of mineral lands other than coal lands, approved by II is Excellency the Governor in Council on the 9th of November, 1880, or such other legulations as may be substituted therefor, shall apply. For Forms referred to in these Regulations, see Appendix II. 11 >t I n. . (, I -• • 1 : li !-. 728 DOMINION Eegulatioxs governing Placer Mining along the North Saskatchewan River in the North-West Territories. Satiu-day, the ITth day of April, 1897. present: — HIS EXCELLENCY THE CUVEllNOR-GENEllAL IN COUNCIL. Whereas it is represented that tlie I'egulatioiis governing tlic dis- posal of placer mining claims, established by Order of the Governor- General in Council on the IHh November, 1889, have not operated satisfactorily in the disposal of mining locations on the Nortli Saskatchewan River, in the North- West Territories: His Excellency in virtue of the provisions of " The Dominion Lands Act," chapter 5i of the Revised Statutes of Canada, and by and with the advice of the Queon's Privy Council for Canada, is l)lcased to order that the following regulations for the disposal aud governance of placer mining claims along the North Saskatchewan River, in the North-West Territories, shall be and the same are hereby adopted and established. interpretation. "Bar Diggings" shall mean any part of a river over which the water extends when the river is in its Hooded state, and which is not covered at low water. '' Rench Claiia " shall mean a part of the present bank of the river overlying a portion of what was originally a gravel bar in tlie river, and shall include " bar diggings." " Legal Post " shall mean a stake standing not less than four feet above the ground and squared on four sides for at least one foot from the top. Both sides so squared shall measure at least four in- dies across its face. It shall also mean any stumj) or tree cut oil" and squared or faced to the above height and size. "Close Season " shall mean the period of the year during which placer mining is generally suspended. The period to be fixed ])y the agent of Dominion lands in whose district a mining location is situated. SASKATCnEWAN PLACER REaULATIOXS " Locality " sliall mean a stretch of river Avitliin ten miles from any i)oint on. the river. " ]\linoriil "' shall include all minerals whatsoever other than coal. NATURE AND SIZK OK CLAIMS. For "har cli(iginJiners holding two or four adjoining claims may for the purpose of operating them l)y steam power combine and work one ol' the claims and the work thereon will be sullicient to hold the re- mainder subject to the hona fide working of the claim in the manner already provided by these regulations. Provided that an agreement between the parties concerned is fded with the agent of Dominion lands and his consent to the agreement is obtained. The agreeniont sliall ))rovide that the owner of each location or his representative sliall be employed in the work performed upon the claims. I'ro- vidcd also, that the agent of Dominion lands shall be furnished from SASKATCUEWAX PLACER KEOULATIOXS i3l time to time with such particulars as he may require in relation to tlie operation of the claims. IS. AVhen claims are to be operated by steam power the agent may give a period of sixty days from the date of recording the claim, to place machinery on the ground and to commence operations, 13. The forms of application for a grant for placer mining, and the grant of the same, shall be those contained in forms 11 and 1 in the schedule hereto. 14. The entry of every holder of a grant for placer mining, ex- cept in the cases provided for in section one of these regulations, must be renewed and his rccci])t relinquished and replaced every year, the entry fee being paid each time. 15. Xo nuncr shall receive a grant of more than one mining claim in tlie same locality, but the same miner may hold any number of claims by purchase or assignment. 16. Any miner or miners may sell, mortgage, or dispose of his or their claims, provided such disposal be registered with, and a fee of h\o dollars paid to the agent, Avho shall thereupon give the assignee a certificate in form J in the schedule hereto. IT. Kvery miner shall, during the continuance of his grant, have the exclusive right of entry upon his own claim, for the miner-like working thereof, and the construction of. a residence thereon, and shall be entitled exclusively to all the proceeds realized therefrom; but he shall have no surface rights therein, unless acquired by jmr- cbase; and the Superintendent of Klines may grant to the holders of adjacent claims sucli rigbt of entry thereon as may be absolutely necessary for the working of their claims, upon such terms as may to him seem reasonable. IS. ICvery miner shall be entitled to the use of so much of the water naturally flowing through or past his claim, and not already lawfully ajjpropriated, as shall, in the opinion of the Superintendent of ^Mines, be necessary for the due working thereof; and shall bo entitled to drain his own claim free of charge. 11>. If the land upon which a "bench claim" has been located is not the property of the Crown it will be necessary for the person ll ,1? V r r j hi. ■ > i II I i I ii! mSmsssmsaasm4 T32 DOMINION wlio applies ioi- entry to furnish proof that lie has acc^uired from the owner of the huid the surface rights before entry can he granted. 20. If tlie occupier of the lands lias not received a patent tliero- for, the 2>iii*chase money of tlie surface riglits must be paid to the Crown, and a patent of the surface rights will issue to tlie party who acquired the mining rights. The money as collected Avill either be refunded to the occupier of the land, wlien he is entitled to a patent therefor, or will ])e credited to him on account of payment for land. 21. When the party obtaining the mining rights to lands cannoi nmke an arrangement with the owner or his agent or tlie occujiant thereof for the acquisition of the surface rights, it shall be lawful for b'lu to give notice to tlie owner or his agent or the occupier to ap- point an arl)itrator to act with another arbitrator named by him, in order to award the amount of coniiiensation to which the owner or occupant shall be entitled. The notice mentioned in this section shall lie according to a form to be o])tained upon application from the agent of Dominion Lands for the district in which the lands in ques- tion lie, and shall, when ])racticable, be ])ersoiially served on such owner, or his agent if known, or occupant; and after reasonable elforts have been made to ell'ect jiersonal service, without success, then such notice shall be served by leaving it at, or sending by regis- tered letter to, the last ])lace of abode of the owner, agent or oecu- ] ant. Such notice shall be served, if the owner or agent resides in the district in whicii the land is situated, ten days, if out of the district and within the Province, twenty days, and if out of the Pro- vince, tliirty days, before, the expiration of the time limited in such notice. If the ])ro]n'ietor refuses or declines to ajipoint an arbitrator, or wher, for any other reason, no arbitrator is appointed by the pro- prietor in the time limited tlierefor in the notice ])rovided for by this section, the Agent of Dominion Lands for the district in which the lands in question lie, shall, on being satisfied by afhdavit that such notice has come to the knowledge of such owner, agent or occujiant. or tliat such owner, agent or occupant wilfully evades the service of such notice, or cannot be found, and that reasonal)le efforts have been inade to effect such service, and that the notice was left at the last l)lace of abode of such owner, agent or occupant, appoint an arbi- trator on his behalf. 22. (d) All the arbitrators appointed under the authority of these regulations shall be sworn l)efore a Justice of the Peace to the impartial discharge of the duties assigned to them; and they shall DOMINION MINING REGULATIONH 733 forlliwilh ju'cccod to estimate the reasonal)le (lamagcs wliicli tlie own- ers or oc'C'iii)ants of siitli lands, according to tiieir several interests therein, shall sustain hy reason oi' such prospecting and mining operations. {b) Jn estimating such damages, the arbitrators shall determine the value of the land irrespectively of any enhancement thereof from the existence of minerals therein. (r) Jn case such arbitrators cannot agree, they may select a third arbitrator, and when the two arbitrators cannot agree upon a third arbitrator the Agent of Dominion Lands for the district in which the lands in question lie shall select such third arbitrator. {d) The award of any two such arbitrators made in writing shall be final, and shall be filed with the Agent of Dominion Lands for the district in which the lands lie. 93. If any cases arise for which no provision is made in these regulations, the provisions of the regulations governing the disposal of mineral lands other than coal lands ai>proved by His KxccUency the Governor in Council on the 9th of Xovcmber, 1881), shall apply. LEASES. 24. A lease for five years may be granted to dredge the bed of the river below low Avater mark for a distance not exceeding five miles upon such terms as His Excellency the Governor in Council may designate. Provided that any person who may receive entry un- der these regulations shall be entitled to run tailings into the river at any jioint thereon also to mine two feet below the surface of the water at low water mark by putting in wing-dams whether he shall locate before or after the date of such lease. For Schedule of Forms to these Regulations, see Appendix IL Regulations governing the disposal of Mineral Lands other THAN Coal Lands (called "The Dominion Mining Regu- lations "). 1. These regulations shall bo applicable to all Dominion lands, with the exception of those situated in the Province of British Col- >n if I if i. 11 734 DOMINION iiiubia, containing f];ol(l, silver, r'"'ma1>nr, load, tin, coppor, iron, or other mineral deposit ol" ceonon' .\ with the exception of coal. 2. Any jiorson or })erso explore vacant Dominion lands not a])]ir()priated or reserv( overnment for other ])uri)(ises, and may Fcareh tiierein, either h^ .rfaeo or snhterranean jjrospecting, i'or mineral de]iosits, with a vii'w to o])taining nnder these regnlations a mining location for tiie same; but no mining location or mining claim shall he granted until actual discovery has been made of the vein, lode or deposit of mineral or metal within the limits of the location or claim. I.— QUAKTZ ^IIXIXG. 3. A location for mining, except for iron and mica on veins, lodes or ledges of quartz or other rock in place, shall not exceed the folhiM-ing dimensions: Its length shall not be more than 1,.')0() feet, its bnadth not more than (100 feet; its surface boundaries shall ije four straight lines and the side lines and end lines shall be parallel lines, except where ]irior locations may i)revent, in whicii case it nuiy be of such sliape as may be a])provcd by tlie Superintendent of Mines. Its length shall not ])c. more than three times its breadth. Its bound- arie-i bi'neath the surface shall l)e the vertical planes in which its surface lioundaries lie. 4. Any person having discovered a mineral deposit may obtain a mining location therefor, nnder these regulations, in tlie following- manner: (a) He shall mark the location on the ground by ])lacing at eadi of its four corners a wooden post, not less than four inches scpiare, driven not less than eighteen inches into the ground, and showing tluit length above it. Jf the ground be too rocky to admit of so driving such ])osts, he shall build about each of them, to support it and keep it in place, a cairn or mound of stones, at least throe feet in diameter at liie base, and eighteen inches high. Tf the location be timbered, a line shall be run and well blazed joining the said posts. If it be not so tind)ered, and the ground is of such a miture that any one ])ost cannot be seen from the ends of either of the lines wiiich form the angle at Avliich the said ]K)st is placed, posts llattened on two sides (such flattened portions facing the directions of the line) shall l:c ])lantod or mounded along the side lines wherever necessary, so that no difFiculty may be experienced by a subsequent prospector DOMIXION MiyiXG REaULATIOXS or exi)lorc'r in tlisoov('vinuv made within a town- ship of which at least one boundary has been surveyed, to protect himself the discoverer may str,i\(! out his cliiim in conformity with these regulations; but before the issue (d' the patent, the claim shall, it' rciiuircd by the ^linister of the Interior, be described by legal sub- divisions or fractional i)ortions thereof, upon a survey nuide by a Dominion Land Surveyor, acting under instructions from the Sur- veyor-! icneral. II. AVhere two or more ]iersons lay claim to the same nuning loca- tion, the right to accpure it shall be in him who can i)rove he was the first to discover the mineral deposit involved and to take posses- sion, by demarcation in the manner prescribed in these regulations, of the location covering it. 10. Priority of discovery alone shall not give the right to ac- quire; but a person subsetpiently and independently discovering, who has complied with the other conditions prescribed in these regula tions, shall take ])recedence of the first discoverer if the latter has failed to comply with the said other conditions: Provided, liowevei-. that in any ease where it is proved that a claimant has, in bad faith, iisi'd the jirior discovery of another, and fraudulently atlirms that lir made indeiK'iident discovery and demarcation, he shall, apart from any other legal consequences, have no claim, and shall forfeit tin' deposit made with his application, and shall be absolutely del)arreil from obtainii.g another mining location. 11. Not more than one mining location shall be granted to any individual claimant U])on the same lode or vein. la. Where land is used or occupied for milling purposes, reduc- tion works, or other purjioses incidental to mining operations, either by the ])roprietor of a mining location or other jjcrson, such land may be ai)plied for and i)atented, either in connection with or sei)aratp from a mining location, in the manner hereinbefore i)rovided for the apidication for and the patenting of mining locations, and may be hehl in addition to any such mining location; but such additional land shall in no case exceed five acres in extent, and shall be paid for at the same rate as a mining location. i ItOMlSlOS MlMXfl mWlLATlOSS 731) IJI. Tlu' Alinislcr of tlie Interior iiiny \iv\\\\[ n Inciilion I'or (li(> mining of ii'on iiiid mien not oxeee(lin assignee of the right to purchase a mining location, and such claim is duly recognized and registered, as hereinbefore provided, such assignee shall by complying with these regulations become en- titled to purchase the location for the price and on the terms pre- scribed thereby. 1 1 ,; ! 1 I I 740 DOMimoy II.— n \OEE MINING. 17. Tlic regulations Iiereinbefore la. .' vlown in respect of Quartz Mining shall be ai^plii'^ble to Placer Minuig so far as they relate to entries, entry fees, assignments, marking of locations, agents' receipts, and generally where they can be applied, save and except as other- wise herein provided. NATURE AND SIZE OF CLAIMS. 18. The size of claims shall be •(» J'ollows: — (fl) For "bar diggings," a strip of land 100 feet wide at high water mark, and thence extending into the river to its lowest water level. (b) For " dry diggings," 100 feet square. (c) " Creek and river claims " shall be 100 feet long, measured in the direction of the general course of the stream, and shall extend in width from base to base of the hill or bench on each side, but when the hills or benches are less than 100 feet apart the claim shall be 100 feet square: Provided, however, that in any case where the distance from base to base of the hill or bench exceeds ten chains, such claims shall be laid out in areas of ten acres each, the boundaries of such areas to be due north and south and east and west lines, and if within surveyed territory the said area of ten acres shall consist of one-fourth of a legal subdivision, and shall bo marked on the ground in the manner prescribed by these regulations for marking quartz mining locations: Provided further, that any such claim interseetod by a creek or river, shall, in addition to the stakes at the four corners thereof, have the points at which its boundaries may be intersected by the high water mark of the creek or river, on both sides of the creek or river, designated by posts of the same size which shall be driven into the ground the same depth and showing the same lenglli .tboye it as the posts prescribed by these regulations ii respect of (juartz mining locations, and the said posts shall have marked upon them legibly, with a cutting instrument or with coloured chalk, the name of the claimant in full and the date of such marking. (d) " Bench claims " fihall he 100 feet square. (e) Every claim on the fare of any hill, and fronting on anv natural stream or ravine, shall have a frontage of 100 feet drawn DOMINION MINING REGULATIONS 74 ^ parallel to the main direction thereof, and shall be laid out, as nearly as possible, in the manner prescribed by section 4 of these regulations. (/■) If any person or persons shall discover a new mine, and such discovery shall be established to the satisfaction of tlie agent, claims of the following size, in dry, bar, bench, creek, or hill diggings, shall be allowed: — To one discoverer 300 feet in length. To a party of two 600 " " three 800 « " four 1,000 " and to each nionibor of a party beyond four in number, a claim of the ordinary size only. A new stratum of auriferous earth or gravel, situated in a locality where the claims are abandoned, shall for this puprose be deemed a new mine, although the same locality shall have been pre- viously worked at a dilforent level; and dry diggings discovered in the vicinity of bar diggings shall be deemed a new mine, and vice versa. M l!ii; RIGHTS AND DUTIES OF MINERS. 19. The forms of ajjplication for a grant for placer mining, and the grant of the same, shall be those contained in forms II and I in the schedule hereto. 20. The entry of every holder of a grant for placer mining must be renewed and his receipt relinquished and replaced every year, the entry fee being paid each time. 21. Xo miner shall receive a grant of more tlian one mining claim in the same locality, but the same miner may hold any number of claims by purchase, and any number of miners may iiuito to work their claims in common u]ion such terms as they may arrange, pro- vided such agreomont be registered with the agent, and a fee of five dollars paid for each registration. 22. Any n\iner or miners may sell, mortgage, or di^poso of his or their claims, provided such disjiosal be registered with and a fee of two dollars ])i\u\ to the agent, who shall thereupon give the assignee a certificate in form J in the schedule liereto. i iiiil li 743 DOMINION S3. Every miner sliall, during the continuance of Iiis grant, have tlie exclusive right of entry upon his own claim, for the minor- like Morking tlicreof and the construction of a residence tliereon, and shall be entitled exclusively to all the proceeds realized therefrom; but lie shall have no surface rights therein; and the Superintendent of ]\Iines may grant to the holders of adjacent claims such riglit of entry thereon as may be absolutely necessary for tlie working of their claims, upon such terms as may to him seem reasonable. 34. Every minor shall be entitled to the use of so much of the water naturally llowing through or past his claim, and not already lawfully appropriated, as shall, in the opinion of the Superintendent of ;Mines, be necessary for the due working thereof; and shall l)o entitled to drain his own claini free of charge. 25. A claim shall ])v deemed to be abandoned and open to occu- pation ami entry l)y any person when the same shall have remained unwoikod on working days ])y the grantee thereof for the space of seventy-two hours, unless sickness or otlier reasonable cause be shown, or unless the grantee is absent on leave. 20. A claim granted under these regulations shall be continu- ously, and in good faith, worked, except as otherwise provided, by the grantee thereof or by some person on his behalf. 2T. Tn tunnelling under hills, on the frontage of which aTigles occur, or which may be of an oblong or elliptical form, no party shall bo allowed to tunnel from any of the said angles, or from either end of such hills, so as to interfere with parties tunnelling from the main frontage. fiH. Tunnels and shafts shall 1)0 considered as belonging to ihe (■1ain\ fm- the use of which they are constructed, and as abandoiicl or forfeited by the abandonment or forfeiture of the claim itself. 29- I'or Die more convenient working of back claims on l)oncliis or slopes, the Superintendent of ]\lines may ])erniit the owners 1 here- of to drive a tunnel tlirough the claims fronting on any creek, ravIll.^ or water-course, upon sucli terms as he may deem o,\i)edient. ADMINI.STRATION. 30. Tn case of the death of any minor while entered as lli" holder of any mining claim, the provisions as to abandonment shall not apply cither during his last illness or after his decease. DOMINION MINING REGL'LlTIONfi »1. The ]\rinistor of tlie Interior phall take possession of tlie mining proi^erty of the deceased, and may cause sncli. mining property to be duly worked, or dispense tlierewitli, at his option; and lie shall sell the property by private sale, or, after ten days' notice thereof, by pidjlie auction, upon such terms as he shall deem just, and out of the proceeds pay all costs and charges incurred thereby, and pay the balance, if any, to the legal representatives of the said deceased miner. 33. The Minister of the Interior, or any person authorized l)y him, shall take charge of all the property of deceased miners until the issue of letters of administration. III.— BED-ROCK FLUMES. JJ3. It shall be lawful for the Minister of the Interior, upon the application hereinafter mentioned, to grant to any bod-rock flume company, for any term not exceeding live years, exclusive rights of way through and entry \\\h)\\ any mining ground for the purposes of construction, laying and maintaining bed-rock Humes. JJ4. Throe or more persons may constitute themselves into a bed- rock Hume comi)any; and every application by thorn for such grant shall stale the names of the applicants and the nature and extent of the ]>rivilogos sought to bo aocpiired. Ten fnll days' notice thereof shall 1)0 given between the months of June and Xovember, and be- tween the months of Xovond)or and June one month's notice shall be given, by allixing the same to a post planted in some conspicuous part of the ground or to face of the rock, and a copy thereof con- spicuously upon the inner walls of tlio land ollico of the district. Prior to such a[)i)lication, tlio ground included therein siiall be marked out in the manner prescribed in sub-clause {a) of clause four of these regulations, it shall be competent for any person to protest Itofnro liio agent within the times lieroinbofore ])rescril)ed for the notice of siuh ai)plication, but not afterwards, against sucli applica- tion being granted. Every application for a grant shall be accom- panied by a deposit of $100, which shall be returned if the application Ijo refused, but not otherwise. 35. I'vei-y such grant shall be in writing, in the form K, in the schedule hereto. •JO. riio holders of claims through which the line of tlie com- l^any's llunic is to run may put in a bed-rock Hume in their claims to connect with the company's Hume, upon giving the company ten .H:i i! i MP < <44 DOMINION days' notice in writing to that effect; but they shall maintain the like grade, and build their flume as tlioroughly, and of as strong materials, as that built by such company. 37. Every bed-rock flume company shall lay at least fifty feet of flume during the first year and one hundred feet annually there- after, until completion of the flume. 3S. Any miners lawfully working any claims where a bed-rock flume exists, shall be entitled to tail their sluices, hydraxdics and ground sluices into such flume, but so as not to obstruct the free working of such flume by rocks, stones, boulders or otherwise. 30. I'pon a grant being made to any bed-rock flume company, the agent shall register the same, and the company shall pay for sucli registration a fee of $10. They shall also pay in advance an annual rent of $10 for each quarter of a mile of right of way legally held bv them. IV.— DRAINAGE OF MINES. 40. Tlie Minister of the Interior may grant to any person or per- sons permission to run a drain or tunnel for drainage purposes through any occu})icd mining land, and may give such persons ex- clusive riglits of way through and entry upon any mining ground for any term not exceeding five years, for the purpose of constructing a drain or drains for the drainage thereof. 41. Tlie grantee shall compensate the owners of lauds or holders of claims entered upon by him for any damage they may sustain Ijy the construction of such tunnel or drain, and such compensation, il' not agreed upon, shall be settled by the Superintendent of Mines, and be paid before such drain or tunnel is constructed. 42. Such drain or tunnel, when constructed, sliall bo deemed to be the projjerty of the person or persons l)y whom it shall have been so constructed. 43. Every application for a grant shall state tlie names of the applicants, the nature and extent of the proposed drain or drains, tiio amount of toll (if any) to be charged, and the privileges sought to be ac(,uired, and shall, save where the drain is intended only for the drainiige of the claim of the ])erson constructing the same, be acconi- panied'by a deposit of $25, which shall be refunded in case the a])))!!- ; DOMINION MINING REQULATION,^ 745 cation is refiisetl, but not otherwise. Xotice of the application shall bo given and protests may be made in the same manner as provided in regard to bed-rock Humes. 44. The grant of the right of way to construct drains and tun- nels shall 1)0 made in the form L in the Schedule hereto. Tiie grant shall be registered by the grantee in the office of the agent, to wliom ho shall at the time pay a registration fee of $5, or, if the grant gives power to collect tolls, a fee of $10. An annual rent of $10 shall be paid, in advance, by the said grantee for each quarter of a mile of right of way legally held by him, save where the drain shall he iov the purpose of draining only the claim of the person constructing the same. v.— DITCHES. 45. The Minister of the Interior may, upon application herein- after mentioned, grant to any person or persons, for any term not exceeding five years, or in special cases for such length of time as he may determine, the right to divert and use the water from any stream or lake, at any particular part thereof, and the right of way through and entry upon any mining ground, for the purpose of constructing ditches and Humes to convoy such water: Provided always, that every such grant shall be deemed as apjuirtenant to Ihe mining claim in respect of which it has been obtained, or is recpiired in connection with reduction works, sami)ling works, stamp mills, concentrating works, or other works connected with mining operations; and when- over the claim shall have been worked out or aljandonod, or when- t'ver the occasion for the use of such water upon the claim or in con- nection with such works shall have permanently ceased, the grant sluiU cease and determine. 46. Twenty days' notice of the ajiplication shall be given, in accordance Mith l-'orm !M in the schedule to those regulations, by iilhxing the same to a post planted in some conspicuous part of the ground, and a coi)y thereof cous])icuously posted upon the inner walls of the land office for the district, and any iierson may protest witliin such twenty days, but not afterwards, against such api»lication being wholly or partially granted. 47. Every apidication for a grant of water exceeding 200 inches shall be accomiianied by a deposit of $2."), which shall be refunded in case the application is refused, but not otherwise. i' i'l !l 1 I 1 III 74 fi DOMIXIOX 48. Every such application sliall state the names of tlie ap])U- oants, tlie name or description of tlie stream or hilte to be diverted, the quantiiy of water to be taken, the locality for its distribution, tlie price (if any) to be charged for the use of such water, and the time necessary for the completion of the ditch. The grant shall be in tho form X in tlie schedule hereto. 40. Every grant of a water j)rivilege on occupied creeks shall bo subject to the rights of such miners as shall, at Ihe time of such grant, be working on the stream above or below the ditch head, and of any other pel-sons lawfully using such water for any purpose whatsoever. •>0. If, after the grant has been made, any minor or miners locate and honn fdc work any mining claim below the ditch head, on any stream so diverted, he or tliey collectively shall be entitled to 10 Inches of water if 200 inches be diverted, and 00 inches if 300 inches be diverted, and no more, except upon paying to the owner of the ditch, and all otlier jiersons interested therein, compensation equal 10 the amount of damage sustained by tiie diversion of such extra ([uantily of water as may be required; and in coni[)uting such dani- age, the loss sustained by any claims using water therefrom, and all other reasonable losses, shall be considered. m. Xo person shall be entitled to a grant of the water of any stream for the purpose of selling the water to ]>resent or future claim liolders on any part of sucli stream. The ^Minister of tho Interior may, however, grant such privileges as he may deem just, when such ditch is intended to work bench or hill claims fronting on any sueh stream, i)rovided that the rights of miners then using the water ho ap])lied for be protected. *513. The Minister of the Interior may, on the report of the .Su- perintendent of Klines that such action is desirable, order the enlarge- ment or alterations of any ditch, and fix the compensation (if any) to be jiaid by jiarties to be benefited thereby. ♦5IJ. livery owner of a ditch or water privilege shall take all rcasonal)le means for utilizing the water granted to him; and. if he vilfully take and wa.ste any unreasonable (piantity of water, the Min- ister may, if sucli olFence be persisted in, declare all rights to the water forfeited. S4. The owner of any ditch or water privilege may distributi^ tiic water to such persons and on such terms as ho may deem advis- DUMIXION MIXIXU RKGULATIOM^ uIjIo, within the limits mentioned in this grant: Provided always, that such owner sliall be bonnd to supply water to all miners who make api)lication therefor in a fair proportion, and shall not demand more from one person than from another, except where the diiUculty of supply is enhanced. 55. Any person desirinji; to bridge any stream, claim or other place, for any jjurposc, or to mine under or through any ditch or flume, or to carry water through or over any land already occupied, may, in proper cases, do so with the written sanction of the Superintendent of Mines. In all such cases the right of the party first in possession shall prevail so as to entitle him to compensation if the same be just. 50. in measuring water in any ditch or sluice, the following rules shall be observed: The water taken into a ditch or sluice shall be measured at the ditch or sluice head; no water shall be taken into a ditch or sluice except in a trough placed horizontally at the idace at which the water enters it, and Miiich trough shall be ex- tended two feet beyond the orifice for the dischai'ge of the water; one inch of water shall mean the (luantity lliat will ])ass through a rec- tangular orilTce two inches high by half an inch wide, with a constant head of seven inches above the ui)per side of the orifice. 5T. Whenever it shall be intended, in forming or upholding any ditch, to enter upon and occupy any part of an entered claim, or to dig or loosen any earth or rock, within four feet of any ditch not belonging solely to the registered owner of such claim, three days' notice, in writing, of such intention shall be given before entering or npi)roaching within four feet of such other property. 58. Any person engaged in the construction of any road or work may, with the sanction of the ^Minister of the Interior, cross, divert or otherwise intt'rfere with any ditch, water i)rivilege or other mining rights whatsoever, for such period as the ^linister shall approve. 5tt. The ^linister shall order wliat comi)ensation for every such damage or interference shall be ]iaid, and wIumi, and to whom, and whether any and what works, damaged or alTected by such interfer- ence as aforesaid, shall be replaced by flumes or otherwise repaired by the person or persons causing any such damage. «0. The owners of any ditch, water i)rivilege, or mining right shall at their own expense, construct, secure and maintain all culverts 1 I i ; 748 DOMINION necessary for tlie passage of waste and siipcrlliioiis water flowing through or over any such ditch, water privilege or right. Gl> The owners of any ditcli or water privilege shall construct and secure the same in a proper and substantial nuxnner, and niaiu- tnin the same in good repair, to the satisfaction of the Superintendent of Mines, and so that no damage shall occur to any road or work in its vicinity from any part of the works of such ditch, water privilege or right. ©2. The owners of any ditch, water privilege or right, shall ho liable, and shall make good in such manner as the Superintendent oC Mines shall determine, all damages which may be occasioned by or through any part of the works of such ditch, water privilege, or right, breaking or being imperfect. 63. Xothing herein contained shall be construed to limit the right of the Lieutenant-Governor of the Xorth-west Territories in Council, or of the proper authority in any Troviuce containing Do- minion lands, to lay out, from time to time, public roads across, throiigh, along, or under any ditch, water privilege or mining right, without compensation. VI.— GENERAL PrvOVISIOXS. INTERl'KnXATION. 64. In these regulations the following expressions shall have the following meanings respectively, unless inconsistent with the con- text: — "Minister" shall moan the Minister of the Interior. " Agent " or " Local Agent " shall mean the Agent of Dominion Lands for the district, or other oflicer appointed by the Government for the i)articular purpose referred to. " Mineral " shall include all minerals whatsoever other than coal. " Close Season" shall mean the period of tlio year during which placer mining is generally suspended. "ilincr" shall mean a person holding a mining location or a grant for placer mining. DOMIXIOX MIXIXO REGlLATIOySi 7-1 [t " Claim " shall inoan the personal right of property in a placer iiiino or diggings during the time for which the grant of such mine or diggings is made. " Claimant " shall mean a person wlio has obtained an ontry^for a mining location with a view to patent. " Bar Diggings " shall mean any mine over wliich a river extends when in its Hooded state. "Dry Diggings" shall mean any mine over which a river never extends. Tiie mines on benches shall be known as " Bench Diggings," and shall, for the purpose of defining the size of such claims, be excepted from " Dry Diggings." " Streams and Eavinos " shall include water-courses, whether usually containing water or not, and all rivers, creeks and gulches. " Ditch " shall include a flume or race, or other artificial means for conducting water by its own weight, to be used for mining pur- poses. "Ditch Head" shall mean the point in a natural water-course or lake where water is first taken into a ditch. " riacor Alining " shall mean the working of all forms of deposits, excepting veins of quartz or other rock in place. " Quartz ^Mining " shall mean the working of veins of quartz or other rock in place. " Location " shall mean the land entered by, or patented to, any person for the purpose of quartz mining. ':\\ HEARING AND DECISION OF DISPUTES. 05. The Superintendent of Klines shall have power to hear and determine all disputes in regard to mining property arising within his district, subject to appeal by either of the parties to the Coiumis- 6ioner of Dominion Lands. OC Xo particular forms of procedure shall be necessary, but the matter complained of must be properly expressed in writing, and a copy of the complaint shall be served on the opposite party not less than seven days before the hearing of the said complaint. no DOMiyiON 67. Tlu' coiiiijlaint may, l)y leave of the Su].crinton(Ieiit of Mines, be amended at any time before or during the procccdinga. HH. 'Vho compliiinaiil shall, at the time of llling his complaint, deposit therowith a l)ond-ft'(i of $20, which shall he returned to him if the comi»laint proves to have been well founded, and not otherwise, except for special cause, by direction of the ^linister of the Interior. 0». In the event of the decision of the Superintendent of ^l'n\os being made the subject of an ap])eal to the Commissioner of Dominion Lands, the appellant shall, at the time of lodging the appeal, deposit with the agent a bond-fee of $20, which shall he returned to the said ap])ellant if his appeal jjroves to have been well founded, and not otherwise, except for special cause, by direction of the ^linister of the Interior. TO. The appeal must be in writing and musi be lodged with tlio Superintendent of ^Mines not more than three days after his decision has been communicated in writing to all the parties interested, and must state the grounds upon which the said decision is appealed from. 71. If the Commissioner of Dominion iiands decides that it is ne- cessary to a proper decision of the matter in issue to have an investi- gation on the groumi, or, in cases of disputed boundaries or measuro- imnts, to employ a surveyor to measure or survey the land in ques- tion, the exi)enses of the inspection or re-measurement or re-survey, as the ciise may be, shall be borne l)y the litiganls, who shall [)ay into the hands of the said Commissioner, in ecpuil parts, such sum as he may think sullicient for the same, before it takes place; otherwise, it shall not i)roceed, and the party who refuses to i)ay such sum shall be adjudged in default. The said Commissioner shall subsei|UenMy decide in what ])roporlion the said expense should be borne by the ])arties respectively, and the suridusage, if any, shall then be returned to the parties, as he may order. 73. All bond-fees adjiulged as forfeited and all payments re- tained nnder the last preceding section, shali, as soon as decision has been rendered, and all entry and other fees or moneys shall, as soon as they have been received by him, be paid by the said agent or Com- nussioner to the credit of the l{eceiver-(ieneral in the same manner as other moneys received by him on account of Donu)nion Lands. L DOMIMOX MiyiXG REflLLlTlOyS 751 LEAVE OF AltSENCE. 78. The ngcnt in each district sluill, xintlcr instructions from the Minister of the Interior, (.leclare tlie close season in liis district. 74. I'lacli lioldor of a mining location or of a grant for placer mining shall be entitled to he absent from his mining location or diggings and to suspend work thereon during the close season. 75. The agent shall have power to grant leave of aljsencu lo llic holder of a mining location or gram for placer mining pending the decision of any dispute in which he is concerned untler these reguhi- tious. 70. In cases where water is necessary to the continuance oC miji- ing operations, and the supply of water is insullicient, the Su[)i'rin- tcndent of Mines shall have power to grant leave of absence ta the holder of the grant during such insullieiency, but no longer, except by permission of the ]\liiiister of the Interior. 77. Any miner or miLers shall be entitled to leave of abtsence for one year from his or thei;- diggings, upon proving to liie satisi'ac- tion of the Superintendent of Mines that he or they has or liave ex- pended on such diggings, in cash, labour or machinery, an um uint of i!ot less than $"^00 on each of sucli diggings, without any return of gold or other minerals in reasonable quantities for such expemlilure. 7S. The time reasonably occupied by the locator of a claim in going to, and returning from, the ollice of the agent or Superinten- dent of Mines to enter his claim, or for other purposes prescribed by tiiese regulations, shall not be counted against him, but he shall, in such cases, be deemed to be absent on leave. I II MISCELLAXKOUS. 7tt. The lilinister of the Interior shall, from time to time, as he may think iit, declare the boundaries of mineral and mining dis- tricts, and shall cause a description of the same to be published in the Canada Gazelle. 80. The ^Minister of the Interior may direct mineral and miniiig locations to be laid out within such districts wherever, hom report of the Director of the Geological Survey, or from other information, he 752 DOMIXIO.W lias iviison to boliove lliurc are iiiiiR'nil (li'|»o.sits of ocoiioinic valiK.-, 1111(1 limy sell the saiiio to apjilicaiits tliLTd'or, who, in Jii.s oiiiiiioii, mv able and intoiul in j^ood I'aitli to work the same; or ho may, J'roin timy to tiiiio, niuso tlio wiid locations to bo sold by public unction or tender. Such sides shall bi' I'or cash, and at prices in no cai e lower than those j»rescrilied I'or locations sold to orij-inal discoverers, and shall othei'- wise bo sniiject to all the provisions of theso regulations. HI. The Minister of the Interior may grant to any person or per- sons who have a mining location and are actively tleveloping the same, an additional location adjacent to and not exceeding it in area, \n'o- vidcd the person or persons holding such location shall show to the eatisfaction of the Minister of the Interior that the vein or lode being developed on the location will probably extend outside of either ol' the vertical linos forming the side boundaries of the location before it has reached the depth at which it cannot be profitably mined. 53, i'ersons desirous of obtaining quarries for stone on vacant Dominion l.ands may do so under these regulations; but the ^linisier of the Interior may require the i)ayment of a royalty not exceeding;' live per cent, on account of the sales of the product of such (piarries, or the bind may be sold not subject to such royalty at such price as may be determined. SJ$. ]{eliirns shall be made ])y the grantee, sworn to by him, or bv liis agent or other employee in charge of the mine, at monthly or other such intervals as may be required by the ^Minister of the Inter- ior, of all ]»roducts of his mining location and of the price or amount he received for the same. 54. The Minister of the Interior shall have the power to sum- marily order any mining works to be so carried on as not to interf'MT with or endanger the safety of the public, any public work or high- way, or any mining property, mineral lands, mining claims, bed-nirk drains or flumes; and any abandoned works may, by his order, be either filled up or guarded to his satisfaction, at the cost of the parties who may have constructed the same, or in their absence upon such terms as ho shall think fit. H!i. The Superintendent of Klines, acting under instructions, to 1)0 from time to time issued by the Minister of the Interior, shall caiw.' to be laid out, at the expense of the iierson or persons applying for the same, a space of ground for deposits of leavings and deads from nny tunnel, claim or mining ground. YUKON DHi:nai\a leasl iiuauLATioss ir,Q FORFKITUUE. HO. In tlio event of tlio breach of tliesc regulations, or any of tlieni, liy any person holding a grant for (Quartz or I'laeer Alining from tho Crown other than Crown Putonts, or from the Minister of tho Interior, or from any duly authorized olllcer of Dominion Lands, such right or grant shall In; absolutely forfeited ipso ftirlo, and the person to olVending shall be ineapal)le thereafter of acquiring any such right or grant, unless for special cause it is otherwise decided by tho Min- ister of tho Interior. For Schedule to Mining Operations, see Appendix II. >r>' k\;j.ll- lie Irti''^ Kegulations governing the issue ok leases to UKEDGE EOU Minerals in the beds of rivers in the Provisional District of the Yukon, North-West Territories. (Approved of by the Order in Council Xo. 125, of the 18th January, 1898.) The following regulations arc ado])ted for the issue of leases to )icrsons or com[)anies who have obtained a free miners certificate in accordance with the ])rovisions of the regulations governing placer mining in the Provisional District of Yukon, to dredge for minerals other than coal in the submerged beds or bars of rivers in the Pro- \isional District of Yukon, in the Xorth-West Territories: — 1. Tho lessee shall be given the exclusive right to sul)a(iueo.is uuning and dredging for all minerals, with the exception of coal, in ;ind along an nnbroken extent of five miles of a river following its sinuosities, to he measured down the middle thereof, and to be de- scribed by the lessee in such manner as to be easily traced on tho gnmnd; and although the lessee may also obtain as many as five (.tlier leases, each for an nnbroken extent of five miles of a river, so measured and described, no more than six such leases shall be issued in favour of an individual or company, so that the maximum extent of river in aiuT along which any individual or company shall be given the exclusive right above mentioned, shall nndcr no circumstances exceed thirty miles. Tho lease shall provide for the survey of the leasehold under instructions from the Surveyor-Ceneral, and for the filing of the returns of survey in tho Department of the Interior within one year from the date of the lease. 48— M i I I' II!: I 1 754 DOMINION 2. The lease shall be for a term of twenty years, at the end of which time all rights vested in, or whicli may be claimed by the lessee under his lease, are to cease and determine. Tlie lease may be re- newable, however, from time to time thereafter in the discretion of the Minister of the Interior. 3. The lessee's right of mining and dredging shall be confined to the sul)mergcd beds or bars in the river below low water mark, that bonndary to be fixed by its jiosition on the first day of August in the year of the date of the lease. 4. The lease shall be subject to the rights of all persons who have received or who may receive entries for claims imder the Placer Alin- ing Regulations. 5. The lessee sliall have at least one dredge in operation upon the five miles of river leased to him, Avithin two seasons from the date of his lease, and if during one season when operations can be carried on, lie fails to eflficiently work the same to the satisfaction of the ^linister of the Interior, the lease shall become null and void unless the Minister of the Inferior sliall otherwise decide. Provided thiit when any company or individual has ol)taincd more than one lease, one dredge for each fifteen miles or portion thereof shall be held to be compliance with this regulation. O. The lessee shall pay a rental of $100 per annum for each mile of river so leased to him. The lessee shall also pay to the Crowa a rcj^alty of ten ])er centum on the output in excess of $15,000, as E-hown by sworn returns to be furnished monthly ])y the lessee to tliu (lold Commissioner during the ])eri(id that dredging operations are being carried on; such royalty, if any, to be paid with each return. Oa. The lessee who is the holder of more than one lease shall 1)0 entitled to the exemiition as to royalty ])rovided for by the next ]iiv- ceding regulation to the extent of $15,000 for each five miles of river for which he is the holder of a lease; but the lessee under one lease shall not be entiiled to the exemption as to royalty ])rovided by (lio next two ])rcceding regulaiions, where tlie dredge or dredges used by him have been used in dredging by another lessee, or in any ease in respect of more than thirty miles. T. The lessee shall bo permitted to cut free of all dues, on any land belonging to the Crown, such timber as may be necessary for YUKON DREDGING LEASE REGULATIONS 755 the purposes of his lease, but sucli permission sliall not extend to tim- ber wliieli may have been heretofore or may hereafter Ijc granted to other persons or corporations. S. The lessee shall not interfere in any way with the general right of the pul)lic to use the river in which he may be permitted to dredge, f(n- navigation and other purposes; the free navigation of tlto river shall not be impeded by the deposit of tailings in such manner as to form hars or banks in the cliannel tlicreof, and the current or stream shall not be ol)strucled in any material degree Ijy the accumu- lation of such deposits. O. The lease shall i)rovide that any ])orson who has received or who may receive entry under the I'laccr ^Mining Kegulatious siiall 1)0 entitled to run tailings into the river at any ])oint thereon, and to construct all works which may l)e necessary for properly oj)erating and working his claim. I'rovided that it shall not be lawful for such person to construct a wing-dam within one thousand feet frniu tho ])lace where any dredge is being ojierated, nor to obstruct or interfere in any way with the operation of any dredge. 10. The lease shall reserve all roads, ways. l)ridges, drains, and other public works, and all improvements now existing, or which may hereafter be made in, ujion or under any ])art of the river, and tho ])ower to enter and construct the same, and shall ])rovide that the lessee shall not damage nor obstruct any ])ublic ways, drains, bridges, works and improvements now or hereafter to be nuulc upon, in, over, through, or under the river; and that he will substantially bridge or cover and protect all the cuts, tlumes, ditclies and sluices, and all ]iiis and dangerous places at all points where they nuiy be irossed by a iiul)lic highway or freciuented i)ath or trail, to the satisfaction of the Minister of the Interior. 11. That the lessee, his executors, administrators, or assigns, shall not nor will assign, transfer or sublet the demised premises, or any jiart thereof, without the consent in writing of the ^Minister llvst had and obtained. 768 DOMINION Kegulations dated 21st July, 1897, as amended by Hegue^a- TioNS DATED 29tii July, 1897; IStii January, 1898, and 28th February, 1898, respectively, respecting the issui-: of leases to dredge for minerals in the submerged beds OF RIVERS IN Manitoba and the Xorth-AVest Territories, The Agent of Dominion Lands in wliose district the poi on of the river desired to be leased is situated is hereby authori/ to accept applications, and leases may be issued by the Minister ol the Interior upon the following conditions: — 1. The lessee shall be given the exclusive right to subaqueous mining and dredging for minerals, witli the exception of coal, in and along an unbroken extent of five miles of the river following its sinuosities, and to be described by the applicant in such manner as to be easily traced on the ground. 2. The lease shall be for a term of twenty years, at the end of which time all rights vested in, or which may be claimed by the lessee are to cease and determine. The lease may be renewable, however, from time to time thereafter in the discretion of the Minister of the Interior. ?. Tlie lessee's right to mining and dredging shall be confined to the submerged bed or bars in the river, below low water mark. 4. The Icise shall be subject to the rights of all persons who have received or who may receive entries for bar diggings or bencli claims under the mining regulations. 5. The lessee shall have a dredge in operation within one year from the date of the lease, and if during one season, when operations can be carried on, he fails to efficiently work the same, the lease shall become null and void, unless the ^Minister of the Interior shall decide otlierwise. O. The lessee shall pay a rental of $50 per annum for each dredge used, such rental to be paid in advance, and to commence to accrue on the date upon which the lease is issued. lie shall also pay to the Crown a royalty of two and one-half per cent, on the out- ]iut after it exceeds $10,000.00, as shown by sworn returns to he fur- DREDGINQ LEASES IN MANITOBA AND N.W.T. 757 nisliccl monthly by the lessee during the period that dredging oper- ations arc being carried on. Said royalty to be paid montlily. T. The lesi^oe shall not interfere in any way with the general right of the public to use the river in which he may be permitted to dredge, for navigation and other purposes; the free navigation of the river shall not bo impeded by the deposit of tailings in such Mianner as to form bars or banks in the channel thereof; and the current or stream shall not be obstructed in any material degree by the accumu- lation of such deposits. 8. Tiie lease shall provide that any one who has or who may receive entry under the mining regulations shall be entitled to run tailings into the river at any point thereon, also to mine two feet below the surface of the water at low water mark by putting in wing dams. 9. The lease to be issued shall reserve all roads, ways, bridges, drains, and all other public works and improvements now existing, or which may hereafter be nuide in, upon or under any part of the river, and tlie power to enter and construct the same. It shall also 2)rovido that the lessee shall not damage nor obstruct any public way, drains, bridges, works and improvements now or hereafter to bo made npon, in, over, through, or under the river; and that he will substantially bridge or cover and protect all the cuts, flumes, ditches, and sluices, and all pits and dangerous places at all points where they may be crossed by a public highway or frequented path or trail, to the satisfaction of the Minister of the Interior. Amended the 29th day of July, 18!)7, by providing that the said regulations shall not apply to the Yukon Kiver and its tril)utaries iind all creeks and rivers connecting therewith in the North-West Territories. Amended ISth .lanuary, 1898, by providing that the said regula- tions of 21st July, ISDT, ""shall only apply to rivers in ^lanitoba and the Xorth-West Territories outside of the Provisional District of Yukon; and further, that said regulations shall be and the same arc hoteby amended by providing that not more than two leases, eacli including an unbroken extent of five miles of a river, shall bo issued ill favour of any one applicant or comjiany." Amended 28th February, 1898, by providing '" that all persons obtaining leases to dredge for minerals in the submerged beds of rivers in Manitoba and the Xorth-West Territories outside of the !i 1-i i I 758 DOMINION Provisional District of Yukon, and all persons in the employ of such persons engaged in dredging upon sucli rivers shall be required to take out free miners' certificates, in the manner provided for in the regulations governing placer mining in the said Provisional District of Yidvon, and that in default of sucli certificates l)eing taken out and ke])t in force such leases shall l)e forfeited." ReGULATIOXS for the survey, ADMINrSTRATIOX, DISPOSAL A\D MANAGEMENT OE DOMINION LaNDS WITHIN THE FoRTY-MI EE liAiLWAV Belt, in the Province of Uritish Columbia, approved by hls excellency the (foveknor-(f eneral in Council, on the 17th September, 188!), in force from a\d AFTER THE 13tH ^IaRCH, 18!)0. WiTH ADDITIONS AND AMEND- MENTS PROVIDED BY ORDERS IX COUNCIL DATED, RESPEC- TIVELY, THE 13TII November, 18!)(), the 12th December, 1891, the 21st March, 181)3, and the 10th November, 181)3. *«!»'' mining and mining lands. Sec. 31. Lands containing coal or other minerals, whether in surveyed or unsurveyed territory, may be disposed of in such manner and on such terms and conditions as may, from time to time, be fixed by the Governor iu Council by regulations to be made in that behalf. Sec. 32. It is hereby declared that no grant from the Crown of lands in freehold, or for any less estate, has operated or will opera te- as a conveyance of the minerals therein, unless the same are ex- pressly conveyed in such grant. ditches. Nee. 33. The provisions of " The Dominion Alining Regula- tions," having reference to the diversion and use of the water frcin any stream or lake, and the rights of way necessary for the construc- tion of flumes and ditches to convey such water, shall api)ly to tlie diversion and use of the water from any stream or lake, and the righh of way necessary to the conveyance thereof in resi)ect of the irrigu- ticn of agricultural lands; Provided, however, that the forms :M, N and 0, in the Schedule to these regulations, shall be used. For Forms, sec Ai)pondix II. LANDS /iV RAILWAY BELT IX B.C. 7 59 As TO Homestead entries and sales affecting timbered LANDS, THE PROrERTY OF THE DOMINION, WITHIN THE RAIL- WAY Belt in the Province of British Columbia. All the landi^ within the Kaihvay Belt in the Province of British Colunil)ia are open for homestead entry, including (l)y Order in Council of 11th July, 1895,) the agricultural lands in the New West minster Land District. By R. 8. C. (1880), c. oG, s. 14. All merchantahle tinihor grow- ing or being npon any land entered or sold within the limits of Dominii>n lands in British Columliia, and all gold, silver, copper, lead, iron, 2)etroleuni, coal or other mines or minerals shall he con- sidered as reserved from the said land, and shall he the property of Jler Majesty. "THE INDIAN ACT."i (Part.) 4. The Minister of the Interior, or the head of any other De- partment appointed for that purpose by tlie Governor in Council, shall be the Superintendent-Ceneral of Indian Affairs, and sluill, as such, have the control and management of the lands - and property of the Indians in Canada. 10 Vict. c. (i, s. 1. SO. Every i)erson, or Iiulian other than an Indian of the band to which the reserve belongs, who, without the license in writing of the Superintendent-CJeneral, or of some olficer or person deputed by him for that purpose, cuts, carries away, or removes from any of tlic said land, roads or allowances for roads, in the said reserve, any of the trees, saplings, shrubs, underwood, timber or liay thereon, or removes any of the stone, soil, minerals, metals or other valualdes from the said land, roads or allowances for roads, shall, on conviction thereof before any stipendiary nmgistrate, ])olico nuigistrate, or any two jus- tices of the i)eace or Indian agent, incur (c) For removing any of the stone, soil, minerals, metals or other valuables aforesaid, a penalty of twenty dollars, and the costs of prosecution in each case. illt 1 i 1 Hi! 7G0 DOMINION (5) Xothing herein contained shall be construed to prevent the Superintendent-General from issuing a license to any person or In- dian to cut and remove trees, wood, timber and hay, or to quarry and remove stone and gravel on and from the reserve, if he or his agent, acting by his instructions, first obtains the consent of tlie band thereto in the ordinary manner, as hereinafter provided. 43 Vict. c. 28, s. 27, part ; 45 Vict. c. 30, s. 3 ; 47 Vict. c. 27, s. 7. 27. (Provides for the punisliment of Indians trespassing on land of another Indian, or removing certain things, including " any of tlic stone, soil, minerals, metals or other valuables," etc., except same be " for tlie immediate use of himself and his family.") 41. All Indian lands, which are reserves or portions of re- serves, surrendered or to be surrendered to Iler ]\Iajesty, shall be deemed to be held for the saiue purposes as before the passing of this Act, and shall be managed, leased and sold as the Governor in Council directs, su1)ject to the conditions of surrender and the pro- visions of this Act. 43 Vict. c. 28, s. 40. ' R. S. C. (1886) C. 43. = " Indian Lands" is defined by s. 2, ss. '/./). to mean "any reserve or portion of a reserve which has been surrendered to the Crown:" 1 Indian Lands, Consolidated Mixing Hegulations of IStii Septemher, 1888, as amended by Orders in Council of 2\D Decemuer, 1889, and 15tii June, 1893. On the recommendation of the Superintendent General of Indian Affairs, and under the ])rovisions of chapter 43 of the l{o- vised Statutes of Canada, intituled " The Indian Act," His Excellency in Council has been pleased to make and does hereby make the following regulations to govern the disposal ol' Indian lauds containing minerals other than coal: — MINING regulations TO GOVERN THE DISPOSAL OF MINERAL LANDS OTHER THAN COAL LA^IDS. Seo. ]. These regulations shall be ap])lical)le to all Iiuliiiii lands containing gold, silver, ciimabar lead, tin, copjter, ])etroloimi, iron or other mineral deposit of economi-^ value, with the exception of coal. INDIAN LANDS MININO REOULATIONS 761 Sec. 3. Any person may explore vacant Indian lands that have been surrendered by the Indians and not appropriated or reserved by the Department of Indian AlTairs for other purposes, or Indian reserve lands, provided the approval of the Superintendent General of Indian Affairs shall have been previously obtained, and may search therein, either by surface or subterranean ])r()speeting, for mineral deposits, with a view to ol)taining under these regulations a mining location for the same, l)ut no mining location or mining claim shall be granted until tlie discovery of tlie vein, lode or deposit of mineral or metal within the limits of the location or claim. T. — QUARTZ MINING. Sec. 3. A location for mining, except for iron, on veins, lodes, or ledges of quartz or other rock in place, shall not exceed forty acres in area; except in the district of Algoma, whore the area of a min- ing location shall not exceed one hundred and sixty acres. Its sur- face boundaries shall be straight due north and south and east and vest lines not more than four in number. Its length shall not be more than three times its breadth. Its boundaries beneath the sur- face shall bo the vertical planes in which its surface boundaries lie. Sec. 4. Any person having discovered a mineral deposit may obtain a mining location therefor, under these regulations, in the following manner: — (a) lie shall mark tho location on the ground l)y placing at each of its four corners a wooden post, not less than four inches square, driven not loss than 18 inches into the ground, and showing that length above it. If the ground be too rocky to admit of so driving the posts into it, be shall build about each of thorn, to sup- port it and keep it in place, a cairn or mound of stones, at least throe feet in diameter at the base, and 18 inches high. On the most north- easterly post he shall mark, legibly with a cutting instrument, or Avith colored chalk, or with a pencil, his name in full, the date of such marking, and the letters ^I. L. 1, to indicate that the post is a mining location post No. 1. Proceeding next to the most south- easterly post, he shall mark it with M. L. 2, and with his initials. Next, the most south-westerly post shall be marked ^M. L. 3, and with his initials; and, lastly, the most north-westerly post with his initials and the letters II. L. -i. Furthermore, on one of the faces of ^/M 7G2 DOMINION each post, Mliicli face shall in tlio planting thereof be turnod towards the ])ost wliich next follows it in the order in which they are lioru named and numbered, there shall be marked in figures the nund)er of yards' distance to such next following post. If means of measure- ment are not available, the distance to l)e so marked on each of t!u> posts may be that estinuited. If tiie corner of a location falls in a ravine, bed of a stream, or any other situation where the character of the locality may render the planting of a post impossil)le, the corner may ))e indicated by the erection at the nearest suitable point of a witness ])ost, wliich in that case shall contain the same marks as those ])rescribt.! in this clause in regard to corner posts, as well as the letters W. ]'., and an indication of the bearing and distance of the site of tlie true corner from such witness post. (In this manner any su])se([uent prospector informed of these regulations, will, on meeting any one of tlie jjosts or mounds, ))e enabled to follow tliem all round, from one to anotlier, and avoitl encroachment, either in search or in nuirking out another location in tiie vicinity for himself). (h) Having so marked out on the ground the location he de- sires, the claimant shall within ninety days thereafter file with the local agent, in tlie Indian ofTice for the district in which the location it situate, a (k'clnration on oath according to Form A in the Scliedule to these regulations (which may be sworn to before the said agent, or may have been previously sworn to before a justice of the peace or commissioner), setting forth the circumstances of his discovery, and desc]'ibing, as nearly as may ])e, the locality ami dimensions of the claim marked out i)y him as aforesaid; and sludl, along with sucii declaration, ])ay to the said agent an entry fee of five dollars. (r) If the land has been surrendered l)y the Indians for pur- l)oses of sale, the agent shall then give him a receipt, according to Form li in the .Scliedule to these regulations, for such fee. This recei|)t shall authorize the claimant, his legal representatives or as- signs, to enter into possession of the location ap])lied for, and during the term of one year from its date, to take therefrom and dispose of any mineral dcjiosit contained within its boundaries. (d) If the land is within a reserve and unsurrendered, the agent shall report the facts of such discovery and application to tlie Super- intendent General of Indian Affairs, and he shall state at the same time whether the interest of the Indians would be prejudicially af- IXniAN LANDli MiyiXa KKUVhATlOy^ 768 ft'ftetl hy the location nppliod for being .sold or otherwise, and shoidd the Superintendent (ienernl of Indian All'airs (k'eide tliat it would be in tlie interest ol' the Indians to sell the location, he siudl instruct the local agent to submit the question of surrendering the same to be sold for their benefit to the Indians in council for a vote thereon, and should a majority of the Indians entitled to vote decide to sur- render the land, a formal surrender in writing shall be taken from them signed by the chief and |)rincii)al men and duly attested l)y one of Iheni and the agent in the nuinner required by law. (c) The agent shall then forward tlie surrender to the Superin- tendent (ieneral of Indian Alfairs, who shall upon receipt of the same subnnt it to Ilis Kxcellency the (lovernor-deneral in Council for acceptance. (/') Sliould the surrender be accepted by the (iovernor-( ieneral in Council, the location applied for shall be dealt witli in the man- ner prescribed by these regulations for the sale of mineral lands. Sec. Si. At any time before the expiration of one year from the date of his obtaining the agent's receipt as aforesaid, it shall be open to the claimant to ])urchase the location on filing Mith the local agent proof that he has ex[)ended not less tiian live hundred dollars in actual mining <)[)erations on the same, such i)roof to con- sist of his own sworn statement, accompanied and confirmed by the aflidavits of two disinterested ])ersons, sotting forth in detail the nature of such operations and the amount expended. This section shall not apply to the district oi Algoma; except that the right to l)urchase a location shall be limited to twelve months from the date of obtaining tiie agent's receipt as provided in sub-section (r) of section 4 above. See. O. The price to be ])aid for a mining location shall l)e at the rate of [ ion | ^ dollars per acre cash.^ " In the original section tills was " five," but was altered by Order in Council, da.ted 2nd December, 1889. = The words " except in the District of Algoma, where the price shall bo at the rate of three dollars per acre," were left out in the clause which was substituted for former section 6 by Order in Council, dated 2nd December, 1889. By Order In Council, dated the 15th Juno, 1893, the price of mineral lands controlled by the Department of Indian Affairs, and consisting of surveyed townships, situated in what are known as the Garden River, Batchewana and Goulais Bay tracts, lying north and east of Sault Ste. Marie, In the District of Algoma, has been reduced to $4.00 per acre. i( ■! f * i 1 i ! i I' '1 764 UOMINIOS Noc. 7. On milking the application to ijurcliase n mining location, and paying tlio price thururor as licroinboforc provided, tho claimant sliall also deposit with the agent the snm of llfty dollars, o.Ncept in the district oi" iMgonia, where lie shall deitosit with the agent the snm of one hundred dollars, which shall he deemed pay- ment hy him to the Department of Indian All'airs for the survey of his location; and upon receipt of the plans and iield notes, and the a])l)roval thereof hy the sjiid Depart nuMit, a patent shall issue to the claimant in the form D in the Seliedule hereto. If, on account of its remoteness or other cause, a mining location cannot, at the tiuu> of the deposit of fifty dollars, or in the district of Algoma one hun- dred dollars, as aforesaid, l)y the applicant for the purpose, i)e sur- veyed by the said Department for that sum, he shall he snhject to the alternative of waiting until the enii)li)yuu'nt of a surveyor by the Department on other work in the vicinity of the claim renders it convenient to have the survey nuule at a cost not exceeding fifty dollars, or in the district of Algoma one hundred dollars, as afore- said, or of sooner ])rocuring at his own cost its survey hy a duly commissioned surveyor of the province, district or territory in which the lands are situated, under instructions from the said Department; in the latter case, on receipt of the jdans and field notes of the sur- vey and approval thereof by the said De|iartment, as hereinbefore jirovided, the claimant shall be entitled to receive his patent, and to have returned to him the fifty dollars, or in the district of Al- goma one hundred dollars, as aforesaid, deposited by Iiiin to defray cost of survey. Sec. S. Should the claimant, or his legal representatives as aforesaid, fail to prove within one year the expenditure prescribed; or, having proved such expenditure, fail within that time to pay in full, and in cash, to the local agent, the price hereinbcfure fixed for such milling location, and also to ]»ay the sum of fifty dollars herein- before prescribed for the survey of his location, then any right on the part of the claimant, or of his legal representatives, in the loca- tion, or claim on his or their part to ac(piire it, shall lajise, and the location shall thereujion revert to the Crown and shall be held, along with any immovable improvements then^on, for disposal, under lhe>o regulations, to any other person, or as the Su|)erintendent (Jeneral of Indian Afi'airs may direct; ])rovided that the Superintendent deneral of Indian Afi'airs may, upon sulficient cause being shown, extend the time within which the claimant may ])nreliase his mining JWIAN LAXfJS MlXIXa REdVLATIOyH 7()5 location for the additional term of one year, iipon payment by the claimant of a new entry I'ce and tlie rolin(HUsliment of his ori^nnnl receipt, in exchange for wliich tlie agent sliall, wiien so directed liv the said Minister, give him a new receipt in tlie Form C in the Schedule hereto. Wee. 1>. Wliero two or more persons lay claim to tlie same min- ing location, the right to accpiire it shall he in him wlio can ])rove ho was the first to discover tlie mineral deposit involved, and to take possession hy demarcation, in the manner prescribed in these regulations, of the location covering it. See. lO. Priority of discovery alone shall not give the right to acquire; hut a person suhseqnently and indejiendently discovering, who has complied with the other conditions prescribed in these regnlations, shall take precedence of the first discoverer if the latter has failed to comply with the said other conditions: Provided, however, that in any case where it is proved that a claimant has in bad faitli nsed the prior discovery of another, and rraiidulonily af- firms that ho made independent discovery and demarcation, he shall, apart from any other legal conseq\iences, have no claim, and shall forfeit the deposit made with his ap]dication, and shall be abso- lutely debarred from obtaining anotlier mining location. See^ 11. Xot more than one mining location sliall be granted to any individual claimant npon tlie same lode or vein. See. IS. AVliere land is nsed or occupied for milling purposes, reduction works or other purposes incidental to mining operations, either by tlie ]iroprietor of a mining location or otlier jierson, such land may be applied for and ])atented, either in connection with, or separate from, a mining location, in the manner hereinbefore pro- vided for the application for, and the patenting of, mining loca- tions, and may be held in addition to any such mining location; but such additional land shall in no ease exceed five acres in extent and shall be paid for at the same rate as a mining location. Sec. IJJ. The Su])erintendent General of Indian Affairs may grant a location for the mining of iron not exceeding 1(50 acres in area: Provided, that should any person making an aiiplication pnr- porting to be for the purpose of mining iron thus obtain, whether in good faith or fraudulently, possession of a valuable mineral de- i: '.> ' I '■ ii i 700 DOMIXIOX jKwit other tlini" iron, his rij:ht in sndi dcjiosit shall bo rostrictod to the area lu'rciiilK'I'ori' pirscrilicd J'or dtlicr niincinls, and Ihu rest oi' tho location shall tlu'ivupon rovort to tho Crown for such disposilioii as Ihe Minister may direct. Hvc I'l. When there are two or more apjdicants for any niin- in not nnconditional and in all re8])ects in accordance with the pro- visions of this clause, and accompanied by the registration fee herein ])rovide(l for, shall be recognized by tho local agent or registered in the l)c]iartinent of Indian Alfairs. Sec. Itt. If application bo made under tho next preceding sec- tion l)y tho assignee of the right to punnaso a mining location, find such claim is duly recognized and registered, as hcreiidieforc jirovidod, such assignee shall, by complying with all tho provisions of sections ') and 7, become entitled to purchase the location for th(^ price and on tho terms i)roscribed in those regulations, whether or not his assignor may have jjroviously acquired a mining location under them. IXHIAX LASDS Ml\l\(l ItllillLATlOSH 707 II. — I'LACICU MINING. Ni'O. 17. The rcj,ailiili<)iis lu'ruinhcfort' laid down in respect of qiiiirtz niininjf sluill l)i' iipiilicnliK' to |>liu'(.>r mining' so i'ar as they lehito to entries, entry fees, assi<;nineiits, niarkini; of h)i-ation, agents' ri'eeipts, and generally where thty can he applied, save that tiie bonndaries of placer mining claims need not he due north und south iind cast and vest lines, and except as otherwise herein provided. Kiilitrc and Size of Claims. See. IH. The size of claims shall he as follows: — ((/) For '* har diggings," a strip of hind lOU feet wide at high water mark, and thence extending into the river to its lowest water level. {h) For '' dry diggings," 100 feet sciuare. (r) *' (.'reek and river claims," shall he 100 feet long, measured in the direction of the general course of the stream and shall extend in wiiltli from hase to hase of the hill or hench on each sidi', hut \\hen the hills or benches are less than 100 feet apart the claim shall be 100 feet square. ((/) "• Ik'nch claims," shall Ijc 100 feet square. ((') Every claim on the face of any hill, and fronting on any natural stream or ravine, shall have a frontage of lOO I'eet, drawu ])arallel to the main directi(>n thereof, and shall be laid out, as nearly as ])ossible, in the numner prescribed by section -1 of these regula- tions. (/) If any miner or association of miners shall discover a new mine, and such discovery shall l)e established to the satislV.ction of the agent, claims of the following size, in dry, bar, bench, creek, or hill diggings, shall be allowed: — To one discoverer 300 feet in length. To a party of t vo GOO 1 hree 800 " « four 1,000 " i !■ 768 DOMINION and to each member of a party beyond four in numbc • a claim of the ordinary sim only. A new stratum of auriferous earth or gravel, situated in a lo- cality wliere the claims are abandoned, shall for this purpose be deemed a new mine, although the same locality shall have been pre- viously worked at a different level; and dry diggings discovered in the vicinity of bar diggings shall be deemed a new mine, and vice versa. liifjhts and Duties of ^Liners. Sec. lO. The forms of application for a grant for placer min- ing, and the grant of tlie same, shall be those contained in Forms F and G in the Schedule hereto. Sec. 20. Tlie entry of every holder of a grant for placer min- ing must be renewed, and his receipt relinquished and replaced, every year, the entry fee being paid each time. Sec. 31. No miner shall receive a grant of more tlian one mining claim in the same locality, but the same miner may hold any nundjcr of claims by purchase, and any number of miners may unite to work their claims in connnon u})on such terms as they iiiay arrange, jjrovided such agreement be registered with the local agent. Sec. SS. Any miner or association of miners, may sell, mort- gage, or dispose of his or tlieir claims, i)rovided sucli disposal be registered witli, and a fee of two dollars ])aid to the local agent, who shall tliereupon give tiie assignee a certilicate in Form II in the Scliedule hereto. Sec. 2JJ. Every miner shall, during the continuance of his grant, have the exclusive right of entry upon his own claim, for the miner-like working tliereof, and the construction of a resi- dence thereon, and sludl be entitled exclusively to all the ])roceeds realized therefrom; but lie shall have no surface rights therein; and the local agent may grant to tlie holders of adjacent claims such right of entiy thereon as may be absolutely necessary for the work- ing of their claims, upon such terms as may to him seem reasonabK'. Sec. 24. Every miner shall be entitled to the use of so much of the water naturally flowing through or ])ast his claim, and iml already lawfully appropriated, as shall, in the opinion , . the local "V who the INDIAN LANDS MINING liEQULATIONH 769 agent, be necessary for the due working thereof; and shall be en- titled io drain his own claim free of charge. I Sec. 25. A claim shall be deemed to be al ,'ndoned and open to occupation and entry l)y any person when tlie same sliall have remained unworked on working days by tlio grantee thereof for the space of seventy-two hours, imloss sickness or other reasonable cause be shown, or unless the grantee is absent on leave. Set*. 20. A claim granted under these regulations shall 1)C continuously and in good faith worked, except as otherwise pro- vided, by the grantee thereof or by some person on his behalf. Sec. 27. In tunnelling under hills, on the frontage of which angles occur, or which may be of an oldong or elliptical form, no party shall be allowed to tunnel from any of the said angles, or from either end of such hills, so as to interfere with parties tunnelling from the main frontage. Sec. 28. Tunnels and shafts shall bo considered as belonging to the claim for the use of wliicli they are constructed, and as al)aa- doned or forfeited by tlie abandonment or forfeiture of the claim itself. Sec. 2il. I'or the more convenient working of back claims on benches or slopes, the local agent may permit tlie owners thoroof to drive a tunnel througli the claims fronting on any creek, ravine or water-course upon such terms as he may deem exi)ediont. Leave of Absence. Sec. 30. Tn cases where water is necessary to the continuance of mining 0]>erati()ns and tlie supply of water is insuilicient. the agent sluill liave power to grant leave of absence to tlie liolder of the grant during such insulViciency but no longer, except by pernussion of the Superinteiulent Oeneral of Indian Affairs. Sec. 31 . Any miner or association of miners sliall l)e eniitled to leave of absence for one year from his or their diggings upon prov- ing to ilie satisfaction of the agent tliat lie or they have expended on such diggings in cash, lalior or machinery an amount not less tlian five liundred dollars on eacli of sucli diggings without any re- turn of gold or other minerals in reasonable (luantities from sucli cxpcndilure. 4D-M 770 DOMINION Hee. 33. The time occupied by the hu-ator of a chiini in going to and returning from the oflice of the local agent to enter his claim, or for other purposes prescribed by these regulations, shall not be counted against him, but he shall, in such cases, be deemed to bo absent on leave. Administration. Sec. 33. In case of the death of any miner while entered as the holder of any mining claim, the provisions as to abandonment shall not apply either during his last illness or after his decease. Sec. 34. The Iccal agent shall take possession of the mining property of the deceased, and may cause nch mining property to be duly worked, or disi)ense therewith, at Jiis oi)tion, and he shall sell the property by private sale, or after ten days' notice thereof, by public auction, upon such terms as he shall deem Just, and out of the proceeds pay all costs and charges incurred thereby, and pay the balance, if any, to the legal representatives of tlie said deceased miner. Sec. 35. The local agent, or any person authorized by him, shall in every case take oliarge of all the property of a deceased miner until the issue of letters of administration or the probate of his will. III. -BED-ROCK FLUMES. Sec. 30. It shall be lawful for any local agent, U])()n the ap- plication hereinafter mentioned, to grant to any bed-rock lluine company, for any term not exceeding live years, exclusive rights of way through and entry upon any mining ground in his district, fnr the purpose of constructing, laying and nuiintaining bed-rock lluuie.--. Sec. 37. Three or more persons nuiy constitute themselves into a bed-rock Hume com])any, and every application by them fur i^uch grant shall state the names of the applicinils and the nalnri; and extent of the ])rivileges sought to be acciuired. Uetwccn llic months of June and Xovember, ten clear days' notice lluTeof shall bo given, and between the nionths of November and June oiu' month's noti'.e shall l)e given, by allixing llie same to a post planli'il in some consjiicuous part of the ground or to the I'acc of the ruck. INDIAN LANDS MINING RECVLATIONS 771 linie oi: I'or ine?-. lives I'or |l\in' \W hall OlU' IuIimI |'(icl<. and a copy thereof conspicuously upo« the inner walls of the Indian ollicc of the district. Prior to such application, the ground included therein shall be marked out in the manner prescribed in sub-section (a) of section 4 of these regulations. It shall be competent for any person to protest before the local agent within the times herein- before prescribed for the notice of such ai)i)lication, but not after- wards, against such ajjplication being granted. Every application for a grant shall Ije accompanied by a deposit of $100, which shall be returned if the application be refused, but not otherwise. Sec. 38. Every such grant shall be in writing, in the Form I given in the Schedule hereto. Sec. 30. The holders of claims through which the line of the company's flume is to run may put in a bed-rock Hume in their claims to connect with the company's Hume, upon giving the com- pany ten days' notice in writing to that effect; but they shall main- tain the like grade, and build their Humes as thoroughly, and of as Btrong materials, as that built by such company. Sec. 40. JM'cry bed-rock flume company shall lay at least 50 feet of flume during the first year and 100 feet annually thereafter, until completion of the flume. Sec. 41. Any miners lawfully working any claims where a bed- rock flume exists, shall be entitled to tail their sluices, hydraulics and ground sluices into such flume, but so as not to obstruct the free working of such flume by rocks, stones, boidders or otherwise. Sec. 45i. Upon a grant being made to any bed-rock flume com- pany, the local agent sliall register the same, and the company shall ]'ay for such registration a fee of $10. They shall also pay, in ad- \ance, an annual rent ( f $10 for each quarter of a mile of right of way legally held by them. IV.- l)K.\;N'.\r.K OV MINES. Sec. 43. 'Pile Superintendent (Jeiu>ral of Indian Affairs may grnnt fo any person, or association of ])ersons, jierinission to run a drain or funut'l I'or drainage purposes through any occupied mining land, and may give sncli persons exclusive righls of way through and entry upon any mining grounn for any term not exceeding fivo 111]; 772 DOMINION years, for the purpose of constritcting a drain or drains for the drain- age thereof. Sec. 44. The grantee shall compensate the owners of lands or holders of claims entered upon liy him for any damage they may sustain by the construction of such tunnel or drain, and such com- pensation, if not agreed upon, shall be settled by the local agent and be paid before such drain or tunnel is constructed. Sec 45. Such tunnel or drain, when constructed, shall bo deemed to be the property of the person or persons by whom it shall have been so constructed. Sec. 46. Every ai»plication for a grant shall state the names of the a])]»licants, the nature and extent of ilio pro])osod drain or drains, the amount of toll (if any) to l)e charged, and tlie jtrivileges sought to 1)0 ac(|uircd, and shall, save where the drain is intended only for the drainage of the claim of the ])ors()u constructing the same, be accompanied by a deposit of $'i."), which shall l)e rei'iinded in case the application is refused, but not otherwise. Xotice of the ap|)licatii)n ."^hall be given, and ])rok'st may be made, in the same nmnner as pro- vitled in regard to bed-rock ilumes. Sec. 47. The grant of the right of way to construct drains or tunnels, shall be made in the Form J in the Schedule hereto, 'ilie grant shall be registered by the grantee in tiie oilice of the locul agent, to whom he shall at the time i)ay a registration fee of $."), or, if the grant gives power to collect tolls, a fee of .$10. An aniunil rent of $10 sliall bi' ;'ud, in advance by tlie said grantee; for each quarter of a mile of right of way legally held by him, save wlieic the drain sliall be for the ]>ur|»ose of draining only tiie claim of the jierson constructing the same. V. — niTCiiF.s. Sec. 4S. The Superintendent (Jeneral of Indian .Affairs n)iiv. upon the application hereinafter mentioned, grant to any peisoii. or association of persons, for any icr-.n not evceeding five ye:M's, tlu' riglit to divert and use the water from any stream or lake, at iiiiv particular jiart thereof, and the rights of way through and entry upon any mining ground, for the imrpose of constructing ditches mid flumes to convey such water; provided alwavs, that everv such i^rnnl INDIAN LANDS MININd IfEOULATlONS 773 shall be deemed as appurtenant to the mining claim in respect of wliich it has heen ohtaincd, and, whenever the claim shall have been worked out or abandoned, or whenever the occasion for the use of such water ui)on the claim shall have permanently ceased, the grant shall be at an end and determinGd. Tlie grantee shall record the said grant witli the local agent during each year of the continuance of tlie same, and whilst it shall be in operation. See. 411. Twenty days' notice of the application shall he given, by aflixing the same to a ]iost planted in some conspicuous part of the ground, and a copy thereof conspicuously upon the inner walls of the Indian Otlice for the district, and any person may protest within such twenty days, and not afterwards, against such application being wholly or partially granted. Sec. 50. l-'very application for a grant of water exceeding 200 inches, shall be accomi)anied by a deposit of $"^5, which shall be re- fuiuled in case the api)lication is refused, but not otherwise. See. 51. Every sucli applicaiion shall state the names of the applicants, the name or descri[)ti()n of the stream or lake to be di- verted, the quantity of water to be taken, the locality for its distri- bution, and the price (if any) to l)e charged for the use of such water, ami the time necessary for the completion of the ditch. The grant shall be in Form K in the Schedule hereto. Sec. 53. Every grant of a water ])rivilege on unoccupied creeks, shall be subject to the right of such miners as shall, at the time of such grant, be working on the stream above or below the ditch head, and of any otlier persons lawfully using such water for any purpose whatsoever. See. an. If. after the grant has been made, any miner or miners locate and hand fide work any mining claim below the ditch head, on any stream so diverted, he or th(\y collectively shall be entitled to 10 inches of water if 200 inches be diverted, and (!() inches if 1300 inches be diverted, and no more, except upon paying to the owner of the ditch, and all other ])ersons interested therein, compensation e(pial to the amount of damage sustained by the diversion of such extra quantity of water as may be required; and, in com])uting such damage, the loss sustained by any claims using water therefrom, and all other reasonable losses, shall be considered. r ill It •I- P 774 DOMINION Sec. 54. No person shall 1)0 entitled to n prnnt of tlie water of any stream, for the purpose of selling the water to ]n'esent or future claim holders, on any ]iart of such stream. The Snjierinten- dent fieneral of Indian Affairs may, however, grant such ])rivileges as he may deem just, when such ditch is intended to work hench or hill claims fronting on any such stream, ])rovided that the rights of miners then using the water so a])plied for he protected. Sec. 55. The Superintendent Ueneral of Indian AITairs may, on the report of tlic local agent that such action is desirahlo, order the enlargement or alteration of any ditcli, and fix tlie compensation (if any) to he paid hy 2>arties to l)e ])cneliled therehy. Sec. 50. Every owner of a ditch or water ])rivilege sliall take all reasonable means for utilizing tlie Mater granted to him; and if no wilfully takes aiul wastes any unreasonable quantity of water, the Minister may, n])on the report of the local agent, if such offence be persisted in, declare all rights to the water forfeited. Sec. 57. Tlie owner of any ditch or water privilege may dis- tribute the water to such ])ersons, and on such terms, as he may deem advisable, witliin tlu^ limits mentioned in his grant; provided always that such owner sliall l»e hound to sui)ply water to all miners who make a])plication tlierefor, in a fair i)roportion, and shall not demand more from one person tluui from another, except where the difficulty of su])ply is enhanced. Sec. 58. Any ])erson desiring to bridge any stream claim, or other ])]ace, for any purpose, or to mine under or through any ditch or Hume, or to carry water througli or over any land already occu- pied, may, in proper cases, do so witli tlie written sanction of the local agent. In all such cases, the right of the party first in posses- sion is to prevail, so as to enable him to compensation if the samo be just. Sec. 51>. In measuring wat(>r in any ditcii or shiiro, the follow- ing rules shall be observed: TUq water taken into a ditch or sliiici! shall be measured at the ditch or sluice head. No water shall be taken into a ditch or sluice exco])t in a trough placed horizontally at the place at which the water enters it. One incli of water shall mean half the cpiantity tliat will pass through an orifice 2 inclus high by 1 inch wide, with a constant head of T inches above the upper side of the orifice, INDIAN LANDS MINING liKCWLATlONti 775 Sec. OO. Wlieiiever it AvaW he intended, in forming or uphold- ing liny ditcli, to enter upon and occiii)y any part of a registered daiin, or to dig or loosen any earth or roek, within i feet of any ditch not l)elonging solely to the registered owner of such claim, tlirue days' notice in writing of such intention shall he given heforo entering or a])[)n)aching witliin 4 feet of such other property. Seo. Ol. Any ])erson engaged in the construction of any road or work may, with tin sanction of the Su[)erintendent General of Indian Affairs, cross, divert, or otherwise interfere witli any ditch, water privilege, or other mining rights whatsoever, for such period as tlie j\linisler shall api)rove. Sec. 02. Tlic ^Minister shall order what compensation for every such daiii.ige or interference shall he paid, and when and to whom, and whellier any and what works damaged or affected hy such inter- ference as aforesaid shall Ite rcidaced hy flumes or otherwise repaired hy the person or persons inflicting any such damage. Sec. GJ$. The owners of any ditch, water privilege, or mining right shall, at their own expense, construct, secure and maintain all culverts necessary for llie })assage of Maste and superfluous water ilowing through or over any such ditch, water privilege or right. Sec. 04. The owners of any ditch or water privilege shall con- struct and secure the same in a proper and suhstantial manner, and maintain the same in good repair to the satisfaction of the local agent, and so tliat no damage shall occur to any road or work in its vicinity from any part of the works of such ditch, water privilege or right. Sec. 0*5. The owners of any ditch, water privilege or right, shaii be liable, and shall make good, in such manner as the local agent shall deternune, all damages which may l)e occasioned by or through any parts of tlie works of such ditch, water privilege or right breaking or l)eing imperfect. Sec. ««. Xotliing herein contained shall he construed to limit the right of the T.iiMitenant-fJovernor of the Xortli-"\Vost Territories in Council, or of tlie proper autlKU'ity in any rrnvinoe containing Indian lands, to lav out, from time to time, ])ul)lie roads across, through, along or under any ditch, water privilege or mining right, without compensation. 1' ii ti: ! 'y\ ( M ';i5 iU! ^' ! 4 w I 77G DOMINION VI. — GENERAL TROVISIONS. Interpretation. See* 07. In those regulations the foHowing expressions sliall have the following meanings respectively, unless inconsistent with the context: — "]\Iinister" shall mean the Superintendent Ueneral of Indian Affairs. "Agent" or "local agent" shall mean the Indian agent, Indian BU])erintendent or Indian lands agent, as the case may l)e, for tlie district, or other oilicer appointed by the Oovernment for the par- ticular purpose referred to. "Mineral" shall include all minerals whatsoever other than coal. "Close season" shall mean the period of the year during which placer mining is generally suspended. "Elinor" shall mean a person holding a mining location or a grant for ])lacer mining. "Claim" shall mean the ])ersonal right of i)ro]K'rty in a placer mine or diggings during the time for which the grant of such mine or diggings is made. " Jiar diggings " shall mean any mine over which a river extends when in its flooded state. "Dry diggings" shall mean any mine over which a river never extends. The mines or benches shall be known as "' bench diggings," and shall, for the ])nrposes of defining the size of such claims, be ex- cepted from "dry diggings." "Streams and ravines" shall include waler-courses whether usually containing water or not, and all rivers, creeks and gulches. "Ditch" shall include a flume or race, or other artificial means for <. inducting water by its owu weight, to be used for mining pur- poses. "Ditch head" snail mean the poiut in a natural water-course or lake where water is first taken into a ditch. INDIAN lANIhS Ml\l\(l KlJIllLXTlOSS 111 " ClaiiiiiiiU " slinll iiicnn a person who has olitaiiu-d an entry for a iiiiiiiiig location witli a view to patent. " rineer mining" shall mean tlio working of all Forms of He- liosits excepting veins of ((nartz or other rock in place. "(Jiinrtz mining" shall mean the working of veins of ([iiartz or other rock in jilaee. "Tiocntion" shall mean the land entered hy or palenled to any person for the ]inr[)ose of (piartz mining. Jlcariii;/ (ind Dccisi'iu of Jfispiiles, See. iiH. The local agent shall have jjower to hear and deler- iiiino all disputes in regard to mining ]>ro[)erty arising within his district, suhject to appeal hy either of the parties to the Deputy Superintendent (leneral of Indian Atl'airs. Sec 01>. Xo i)articnlar fornis of i)roeednre shall he necessary, but the matter complained of must he |)ro[ierly expressed in writing, and a copy of the complaint shall he served on the opposite party not less than days before the healing of the said complaint. Sec. TO. The complaint may, hy leave of the local agent, bo amended at any time before or during the i)roceedings. '"'co. Tl. 'J'he complainant shall, at the time of fding his com- plaint, deposit therewith a bond-fee of $1U, which shall be returned to him if the complaint ju'oves to have been well founded, and not iitlierwise, except for special cause by direction of the Superintendent (leneral of Indian Ail'airs. Sec. TiJ. Tn the event of the decision of the local agent being made the subject of an ajipcal to the Deputy Suix'rintendt-nt (leneral (if Indian AlTairs, the aiipcllant shall, at the time of lodging the ap- jical, de|)osit with tin- local agint a bond-fee of $10, which shall bo returned to the said appellant if his aitjieal proves to have been well founded, and not otherwise, exce|)t for special cause l)y direction of the Superintendent (i(Mieral of Indian Atl'airs. Sec. 71$. The appeal must be in writing and must be lodged with the local agent not nu)re than three days after he has given his BCsescsBB mm 77H DOMINION decision, aiul must hIhIc llic frromuls iipnii wliicli (Iio wiitl (Iccisiun ifci ii|t])L'iilod from. Neo. T4. If till' Deputy Supcriniciulcut Ociu'ral ol' Tudiiui Ai'- J'aii's (loci(1o8 Hint it is necessary to a proper deeisioii oi' tiie matter in issue to liave an investiiiatioii on tlie ^froiind; or in cases of dis- puted boundaries or mcasurenu'iits, to employ a siirveyi' I" measui'c or survey the land in (luestit)ii, the expense of tlie inspection or \v- measiirement or re-siirvey. as tlie case may he, shall he home hy the litijiiiiits, who shall pay into the hands of the said i)e|)uty Siiperiii- lendeiit General of Indian Atl'airs, in ciiual parts, such sum as he may think sutlicieiit for the same before it takes place; otherwise it shall not proceed, and the party who refuses to pay such sum shall he ad- judjj;ed in default. The said Deputy Sii|)erintendeiit (Jeneral of Jndian Alfairs shall subse(|uently decide in what [trojiortion the said e.\])ense should be borne by the parties respectively, and the sur- plusage, if any, shall be returned to the parties as he may order. Nee. T»1». All bond-fees adjiid^'ed as forfeited by the local n^^eiit or DeiniTy Superintendent (ieneral of Indian .Ail'airs, and all jiay- nicnts retained under the last i)rccedin^f section shall, as soon as decision has been rendered, and all entry and other fees or moneys shall, as soon as they have been received by him, be paid by the saiil agent or Deputy Superintendent (Ieneral of Indian Ail'airs to the credit of the IJeceiver (Jeneral in the same manner as other moneys received by him on account of Indian lands. Leave uf Absence. Sec. 76. The agent in each district shall, under instructions from the Superintendent Cieneral of Indian Ail'airs, declare the close season in his district. Sec. 77. Kacli holder of a mining location or of a grant fnr placer mining shall be entitled to be aliseiit from his mining loca- tion or diggings and to susjiend work thereon during the close season. Sec. 7S. The local agent shall have jiower to grant leave of absence to the holder of a mining location or grant for jilacer milling- pending the decision of any dispute in which he is concerned iiiulcr these regulations. Sec. 7». The Superintendent (^encn I of Indian Affairs shall. from time Co time, as he may think lit, declare the boundaries uf IXOfAN A.IA7).S' MlMSd l,'i:(ll l.\TI<)\S 770 iiiiiuTiil iiiul iiiiiiini,' distrii'ls, and hIiiiII cnuso n (l('S('rii)ti(»n oi the siiiiu' to l)f |iiil)lisli('(l ill I lie ('(111(1(1(1 (Idzelle. Hev, Hi}. 'I'lic SM])orintoii(lt>iit (Jciiornl of Indimi AlVairs may direct iiiincral and iiiiiiiii<^ locations to be laid out witliiii sucli dis- tricts wlici'cver, from liic report of the director of the (ieoh)};ical Survey, or from other information, lie has reason to believe there arc mineral deposits of economic value, and may sell the same to a|i]>licants therefor, who, in his o|piiii(iii, arc able and intend in uood faith to work the same, or he may from time to time cause the said locations to be sold by ])nblic auction or tender. Such sales shall he for cash, and at ])rices in no case lower than those |>reserilji'd for locations sold to original discoverers, and shall otherwise hi; subject to all the provisions of these regulations. Jioi/dlh/. Nec. H\, ]{oad as follows: '" 'I'lie ])atcnt for a miniiifx or mine- ral location shall reserve to the Crown, forever, a royalty of 4 ])er cent, on the sales of the jiroducls of all mines therein in trust for the Indians interested in the land i>atented," bat was repealed by Order in Council dated 2nd December, 18S!). Sec. S2. T?ead as follows: " Keturns shall be made by the grantee, sworn to by him, or by his agent or other employee in charge of the mine, at monthly or other snch intervals as may be reijuired by the Superintendent (Jcneral of Indian AlVairs, of all ])roducts of his mining location, and of the price or amount he received for the same. The foregoing sections numbered 81 and 83 shall not apjdy to the district of Algoma," but was repealed by Order in Council dated 2nd December, 1S8!), by which it was also provided "That the fore- going amendments so far as royalty is ccnicerned, also apply to any mineral lands which may have been patented or ajiplied for since the 1st of October, 18S7, being the date of the Order in CouiumI establishing the first Indian Lands Mining Kegnlations, provided an amount be jiaid in cash to make up the dilfcrenec! between the ]irice already paid and the price hereby fixed for mining lands." ! l\ Misrellancovs. Sec. S3. The local agent shall have the power to summarily order any mining works to be so carried on as not to interfere with IMAGE EVALUATION TEST TARGET (MT-S) % 1.0 I.I 1.25 If 1^ 1^ UI.8 1.4 1.6 Photographic Sciences Corporation 23 WIST MAIN STRIET WnSTER.N.Y. MSSO (716)872-4903 f 780 DOMINION or endanger the safety of the public, any public work or highway, or any mining property, mineral lands, mining claims, bed-rock claims or Humes; and any abandoned works may by his order be either lilled up or guarded to his satisfaction, at the cost of the parties who may have constructed the same, or in their absence upon such terms as he shall think fit. Sec. 84. The agent in each district, acting under instructions to be from time to time issued by the Superintondent General of Indian Affairs, shall cause to be laid out, at the expense of tlie person or persons applying for the same, a space of ground for deposits of leavings and deads from any tunnel, claim or mining ground. Forfeiture. Sec. 85. In the event of the broach of those regulations or any of them, l)y any i)erson holding a grant or riglit of any doscrii)tion from tlio Oow^n, or from tlic Superintendent CJenoral of Indian Affairs, or from any duly authorized officer of Indian lands, such right or grant shall l)e absolutely forfeited ipso facto, and the person so offending shall be incapable thereafter of acquiring any such right or grant, unless for special cause otherwise decided by the Superin- tendent General of Indian Affairs. (For Schedule of Forms to these regulations, see Appendix 11.) Eegulations for the disposal of Coal Lanps, the Propertv OF THE Dominion Government, in Manitoba, the Xorth- West Territories and British Columbia, as emuodikd IN the regulations approved by Orders in Council (NO. 2167) OF THE 17th September, 1889, and Oth July, 18!)'3. Sec. 34. (a) Lands containing anthracite coal may be sold at an upset price of $20 per acre, cash, and coal other than anthracit(> an upset price of $10 per acre, cash, or may be sold by pul)lic com- petition if the Minister of the Interior shall so decide. (b) Not more than three hundred and twenty acres shall l)e sold to one applicant. Sec. 33. When there is more than one applicant for tlie same coal location, the Minister of the Interior may invite coinpeti- COAL LANDS IN MANITOBA AND N.W.T. 781 lion between the several applicants, or oiler the land for sale at pub- lic competition by tender or by auction, as he may think expedient, at the upset price of coal lands. Sec. 30. In cases where the ^Minister of the Interior satisfies liiniself that companies, or persons, having expended considerable sinus of money in exploring for coal on lands for which they may have applied under the regulations of tlie 17th of December, 1881, the said lands may be sold to such companies or persons at the upset price fixed for such lands. Sec. 37. The boundaries beneath the surface of coal mining locations shall be the vertical planes or lines in which their surface boundaries lie. Sec. 38. The rights of lessees, and of persons in favour of whom Orders in Council authorizing leases have been passed, shall not be affected by these regulations. Sec. 30. The IMinister of the Interior may upon application grant permission to prospect ^ for coal for a period of sixty days, and such permission may cover any single tract of laud not exceeding three luindred and twenty acres in extent. ' The license fee Is $10. Sec. 40. If the land sought for be not included in any sur- veyed township, the applicant shall stake out the same, by placing at each angle or corner thereof a stake or post at least four inches square, and standing not less than four feet above the surface of the ground; and upon each post he shall inscril)e his name and the angle repre- sented thereby thus: "A. P>.'s N. E. Corner" (meaning north-east corner) or as the case may be; except such posts arc so planted before an application for permission to prospect is made, all the proceedings taken by the ap]ilicant shall bo void; also with his application he shall forward to the ^linister of the Interior a map or sketch of the land as staked out, specifying metes and bounds, and showing thereon the host information in his power respecting the same, and all boundaries so staked out shall be due north and south, and east and west lines, aud the length thereof shall not exceed twice the breadth; if, however, the land has already been included in any general survey, then the odicial number of the section or sections, parts or legal subdivisions of a section, shall be given. Sec. 41. The parly or parties to whom permission to prospect may be given, shall within one month from the date of such perniia- f ;il !-l i n I 1 :■ 792 DOMlNIO}f sion commence operations and carry on the same continuously throughout the remainder of the period covered thereby; and sliall expend in such prospecting a sum at the rate of not less than $2 per day from the time of commencement of the same; and the permission so given shall become void if the said operations cease for one week during the remainder of the period for which such permission is given. Sec. 43. On application to the ^finister of the Interior, the time covered by permission to prospect may be extended, if the ap- plicant has complied with the above requirements, and provided there are no other applicants for the lands comprised therein; should there be others, however, it will be necessary that the right to prospect be acquired by competition amongst the applicants. Sec. 4J$. If the time covered by permission to prospect W extended it will be necessary that prospecting operations be carried on continuously from the date of such extension. LANDS PATENTED OR ENTERED, ON WHICH THE MINING RIGHTS HAVE BEEN ESERVED. Sec. 44. (a) Any person or persons desirous of obtaining permission to prosjiect for minerals on lands that have been patentt'd or entered and on which the mining rights have been reserved, shall make application therefor to the ]\Iinister of the Interior. (b) Such application shall be in writing, defining clearly the area applied for, Avhich area must not exceed 320 acres. (c) If the ^Minister of the Interior sees no objection to the appli- cation being granted, the applicant will be given permission to pro- spect for a jieriod of sixty days, upon furnishing the ^finister wilh proof that he has complied with the provisions of the following suli- seetion. (d) The applicant shall enter into a bond, with two sureties In the satisfaction of the Superintendent of ]\lines, to recompense the owner or occupant of the soil for damages that may be done id his lands. (fi) If the ])roprietor of lands so entered upon shall seek damago>!. be shall, before the end of two months after the expiration of the ])ormission given, make his claims in writing against the jirospeetnr, detailing the ])articulars and amount of claim; and if the claim is not I COAL LANDH IN MANITOBA AND N.W.T. 788 adjusted by agieenicnt botwoou the parties with in one month after notice tliereof as aforesaid, it shall he settled by arbitration in the manner prescribed in sections 50 and 51 of these regulations. Hee, 45> (a) The permission given to prospect shall be sub- ject to the conditions of section 41 of these regulations. (h) A renewal for a further period of sixty days may be granted ]irovided that the conditions of these regulations have been complied with; but should there be other applicants for the lands over which j)crmission to prospect has been given, competition amongst the sainc will be invited. Sec. 40. No permission to prospect shall authorize entry upon any buildings or the curtilage appertaining to any house, store, barn or buildings, or upon any garden, orchard, or ground reserved for ornament, or under cultivation by growing crops, and inclosed, except with the consent of the occupier or permission from the Minister of Ihe Interior upon special application setting forth the circumstances under which the same is applied for, and on such terms as the case may require. Sec. 4T. Jf, at the expiration of the period for which permis- sion has been given to prospect on lands, it be desired to acquire the mining rights thereunder, they will be sold at the rate and on the terms prescribed by the mining regulations, less the price ruling for surface rights in the class in which the lands may be situated. Sec. 4S. Before a patent of the mining rights of any lands can be issued, it will be necessary for the party obtaining the same io furnish proof to the Minister of the Interior that he has acquired the surface rights of land from the owner oi- agent or occupier of such lands. Sec. 49. If the occupier of the lands has not received a patent tJicrefor, the purchase money of the surface rights must be paid to Ihe Crown, and a patent of the surface rights will issue to the i^arty wlio acquired the mining rights. Tlie money so collected will oitlier he refunded to the occupier of the land, when he is entitled to a jiatent therefor, or will be credited to him on account of payment for liind. Sec. PSO. When the i>arly obtaining the mining rights to lands cannot make an arrangement with the owner or his agent or the MH: 784 DOMINION occupant thereof for the ncqiiisition of the surface rights, it shall bo lawful for hiju to give uolice to the owner or his agent or the occupier to appoint an arbitrator to act with another arbitrator named by him, in order to award the amount of compensation to which the owner m occupant shall l)e entitled. Tiie notice mentioned in this section shall be according to a form to bt- obtained upon application from the agom of Dominion lands for the district in which the lands in question lie. and shall, when practicable, be personally served on such owner, ov his agent if known, or occupant; and after reasonable ell'orts havt; been made to elfect i)ersonal service, without success, then such no- tice shall be served by leaving it at, or sending by registered lelicr to, the last place of abode of the owner, agent or occupant. Siu li notice shall be served, if the owner or agent resides in the district in which the land is situated, ten days, if out of the district and within the province, twenty days, and if out of the i)rovince, thirty days, ho- fore the e.\])iration of the time limited in such notice. If the i)ri)- ])iietor refu.-cs or declines to appoint an arbitrator, or when, for ai)v other reason, no arbitrator is ai)pointed by the ])roprietor in tiie tiii.o limited therelor in the notice jn'ovided for by tiiis section, the aj^ent of Dominion lands for the district in which tiie lands in question Ho, shall, on being satisfied by ailidavit that such notice has come to the knowledge of such owner, agent or occujiant, or that such owner, agent or occupant wilfully evades the service of such notice, or can- not be found, and that reasonable clforts have been made to ellVct such service, and that the notice was left at the last place of abode nf such owner, agent or occui)ant, appoint an arbitrator on his behalf. Sec. 51. {(t) All the arbitrators app<)inted under the authority of these rcgulalion.s shall i)e sworn before a Justice of tlie J'eace to the impartial discharge of the duties assigned to theni, and they shall forthwith proceed to estinuite the reasonable damages whic' the owner or occupants of such lands, according to their several interoals therein, shall sustain by reason of such prospecting and mining opera- tions. (0. in C. !)th jidy, tS92.) {!)) In estimating such damages, the arbitrators shall deternii.ic the value of the land irrespectively of any eidianeement thereof from tlic e.xistcnce of minerals therein. (c) In case such arbitrators cannot agree, they may select a tliinl aibitrator, and when the two arbitrators cannot agree upon a tliinl arl)itrntor, the agent of Donnnion lands for the district in which the lands in question lie shall select such third arbitrator. COAL PERMITS FOR DOMESTIC PURPOSES OyiT 785 (d) Tlic award of any two such arbitrators made in writing shall be final, and shall be filed with the agent of Uoniinion lands for the district in which the lands lie. Kegui.ations for the issue of permits to mine Coal on Do- minion Lands, for domestic purposes only, approved by His Excellency the Governor-General in Council on THE Dth day of Feuruary, 1897. 1. The following regulations apply to coal mined on Dominion lands for domestic purposes only: 3. The frontage of a coal mining location shill not exceed three chains in width measured in direct distance, and the length thereof ehall not exceed ten chains, nor shall it be less than five chains, ex- cept where the ground is covered by a prior location. Its boundaries beneath the surface shall be the vertical planes in which its surface Loundaries lie. 3. The location shall be narked on the ground by placing at each of its four corners a wooden post not less than four inches square, driven not less than eighteen inches into the ground and showing that length above it. If the ground is too rocky to admit of so driving such posts, the claimant shall build about each of them, to support it and keep it in place, a cairn or mound of stones, at least three feet in diameter at the base, and eighteen inches high. If the location be timbered, a line shall be run and well blazed joining the said posts. If it be not timbered, and the ground is of such a nature that any one post cannot be seen from the ends of cither of the lines which form the angle at which the said post is placed, posts flattened on two sides (such flattened portions facing the directions of the line) shall be i)lanted or mounted along the side lines wherever necessary so that no difliculty may be experienced by a subsequent prospector or explorer discovering or following the boundaries of any location. If the location be laid out with its boundaries due north and south and east and west, then the claimant shall mark on the post at the north-east angle of the location, legibly with a cutting instrument or with coloured chalk, his name in full, the date of such marking, and the letters M. L. No. 1, to indicate that the post is ^Mining Location Tost No. 1. Proceeding next to the south-easterly angle of the locatFon, he shall mark the post planted there with the letters M. L. No. 2, and his initials; next to the south-westerly angle of the location the post 50— M 1 i 786 DOMINION planted at which he shall mark with the letters M. L. No. 3, and his initials, and lastly to the north-westerly angle of the location, the post planted at which he shall mark with the letters M. L. No. 4, and his initials. If the location be laid out by other than due north and south and east and west lines, the first mentioned post shall be the one at the northerly angle; the second the one at the easterly angle; the third the one at the southerly angle, and the fourth the one at the westerly angle; furthermore on the face of each post, which face shall in the planting thereof be turned towards the post which next follows it in the order in which they are named and numbered, thei(> shall be marked in figures the number of yards distant to the next following post. If means of measurement are not available, the dis- tance to be so marked on each of the i)Osts may be that estimateil. If the corner of a location falls in a ravine, bed of a stream, or any other situation where the character of the locality may render the planting of a post impossible, the said corner may be indicated by the erection at the nearest suitable point of a witness post, which in tliat case shall contain the same marks as those prescribed in this clau,«a with regard to corner posts, together with the letters W. P., and an indication of the bearing and distance o^ the site of the true corner from such witness post. 4. If the location is situated within territory where no surveys have been made, it shall be connected with some prominent foatui'o in the locality, the connection to be shown on a sketch to be furnishod by the claimant. If it is situated on the bank of a stream, the claim- ant shall show on the sketch the general course of the stream, any ravine running back from the same, and such other topographical features as are noticeable. 5. If the location is situated within territory which has not boon subdivided, but where one or more township lines have been estai)- lished, it shall be connected with some point on such established boundary. 6. Having so marked the location on the ground, the claimant shall within thirty days thereafter fde with the agent for the land district within which the location is situated, an application for I ho same with a sketch showing its position, and if within a surveyed tract the quarter-section within which it is situated. 7. If within thirty days after staking a location the claimant has not made application to the agent therefor, it shall be open to any I ; I COAL I'ERMITH FOR DOMESTIC PURPOSES ONLY 787 other applicant who complies with the requirements of those regula- tions. S. Where two or more persons lay claim to the same location, tlio right to acquire it shall he in him who can prove that he was the first (() discover the mineral deposit involved, and to take possession liy (leniarcation in the r,,aiiner prescribed in these regulations of the location covering it. O. AVlien there arc two or more applicants for a location, no one of whom is the original discoverer, the :Minister of the Interior, if he sees fit to dispose of the location, shall invite their competitive tenders. 10. A permit to mine coal on the location staked out will be issued upon payment of the annual rental of five dollars for any area less than one acre, and for an area of one acre or over, at tlie rate of five dolhirs an acre, lleturns on a form to be furnished by the IDe- partment of the Interior shall be made by the permittee every month to the agent of Dominion lands within whose district the location is situated showing the quantity of coal j 'lined, and payment shall at tlie same time be made of the royalty thereon at the following rates — namely, twenty cents per ton for anthracite coal, fifteen cents ])er ton for bituminous coal, and ten cents per ton for lignite coal. Jlven if no coal has been mined during any one month, the per- mittee shall send in a return to that effect. A declaration as to the truth of the return shall be made before a Justice of the Peace, a Commissioner, or an agent of Dominion lands, but if the location is not situated within a radius of five miles of tlie place whore such declaration can be taken, it will be sufficient if the permittee sends in an interim return of the coal mined during the month and pays the royalty thereon. In such case, the permittee shall every three months make a declaration before a Justice of the Peace, a Commissioner, or an agent of Dominion lands, as to the accuracy of such returns for the next preceding period of throe months and send it to the agent of Dominion lands. 11. A permit may, in the discretion of the IMinister of the In- terior, be renewed from year to year so long as the land described tlieroin is vested in the Crown, provided the permittee has complied witli all the requirements of these regulations, and is operating his mine to the satisfaction of the Minister. If at any time during the period the permit is in force the per- mittee desires to cease operations on his claim, ho may do so on mak- 7S8 DOMINION !: ing to tho ngent of Dominion lantla a return of all coal mined between the date of his last return and the date upon which he cea^'ed o])erations, paying the amount for royalty and ground rent, and returning the permit issued to him. 12. The permit while it remains in force shall give to the per- mittee sole and undisputed possession of the location therein de- scribed. In case the applicant for a permit is the owner of the siii-. face rights of the location, no ground rent therefor shall be charj^cil. If the surface of the location is not the property of the Crown, and tiie permittee desires an easement to the mine, it will be necessary lor him to acquire it in accordance with the provisions in that behalf of the regulations for the disposal of coal lands approved by Orders in Council of the 17th September, 1889, and the 9th of July, 1892. 13. Tlie permit shall be returned to the agent on the date speci- fied therein. 14. No permit shall be issued to mine coal on lands which are not situated within territory designated from time to time by iho ]\linistor of tlie Interior as a coal mining district for the purposes of these regulations. 15. If a permittee fails to comply with the requirements of any of the provisions of these regulations, the permit may be forfeited l)y the Minister of the Interior. Regulations respecting Coal Lands within Indian Eeservks IN Manitoba and the North-West Territories, dati-d IStii September, 1888. On the recommendation of the Superintendent General of In- dian Affairs, and under the provisions of chapter 43 of the Eevisoil Statutes of Canada, intituled " The Indian Act," His Excellency in Council has been pleased to make and does hereby make the following regulations respecting coal lands witliiu Indian resen'es in the Province of Manitoba and in the North- West Territories. COAL ON INDIAN LANDS IN AlAMTOUA AND N.W.T. 789 REGULATIONS. The Indians owning reserves on which coal lands arc situated may surrender the same to Her ^Majesty the (Jueen, in accordance with the provisions of " The Indian Act," aforesaid, to be sold for lliuir benefit under the following conditions: — Sec. 1. A royalty of ten cents on every ton of coal excavated shall be paid by tlie purchaser or purchasers of any coal lands situ- ated within an Indian reserve. Sec. 2. Coal lands situated on any reserve within the Cascade coal district which have been surrendered shall be sold at an upset ])iice of $12,50 per acre, cash, and the lands situated on Indian re- serves within all other coal districts at an upset price of $10 per acre, ca:?h. I (a) Not more than three hundred and twenty acres shall be sold to one applicant. (h) When there is more than one applicant for the same coal location the Superintendent General of Indian Affairs may invite competition between the several applicants, or olfcr the land for sale at i)ublic competition by tender or by auction as ho may think ex- pedient, at the upset price of coal lands in the district in which such coal location is situated. (r) When applications arc made to purchase coal locations situ- ated outside of the organized coal districts, the Superintendent (iencral of Indian Affairs may sell the same to the applicants at the price and on the terms which would apply if the lands wore within an organized coal district. Sec. 3. The boundaries beneath the surface of coal mining loca- tions shall be the vertical pianos or lines in which their surface boundaries lie. Sec. 4. AH the employees, not being Indians of the reserve, cn- >9 7. m Geo. in. (1815) cap. 134. 800 8. Boundaries of the Stickecn Territories 801 Doininion— 0. Boundaries of tho Dominion and N. W. T 802 J(>. Boundaries of the unnamed Districts of the N. W, T. 803 and Manitoba 806 11. " The North-West Irrigation Act 806 12. As to minerals in Rocky Mountain Park 810 13. Sections from the Dominion Land Titles Act 810 14. An Act to encourage Silver- lead smelting 831 Ontario- is. Boundaries of 831 Ontario — Cvntinued. Page 16. Boundaries of Michipicoton Mining Division 833 1". Regulations applicable to Mining Divisions 833 18. Authority to purchase Dia- mond Drill 842 19. Regulation regarding Dia- mond Drill 842 20. Regulations governing pay- ments out of tho Iron Mining Fund 846 21. Act respecting the construc- tion of roads by Mining Companies 849 22. The Mining Companies' In- corporation Act 850 New Brunswick— 23. Boundaries of . . , Nova Scotia— 24. Boundaries of British Columbia— 861 862 Boundaries of 863 " Water Clauses Consolida- tion Act " (part) 863-4 Act to encourage the erection of smelting works 877 "Explosives Storage Act." "Execution Act" (part) .... 879 Extraordinary powers of Companies (R. S. B. C. (1897) c. 45) Part III.... 879 31. "Land Act" (part) 882 25. 26. 27. 28. 29. 30. f M 792 APPENDIX I, B. N. A. ACT, 1867. VI.— DISTRIBUTION OF LEGISLATIVE POWERS. POWERS OF THE PARLIAMENT. Sec. Ol. It shall bo lawful for the Qiicen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces, and for greater certainty, l ' not so as to restrict the generality of the forc- g(ting terms of thi> ection, it is hereby declared that (notv.'ithstand- iiig anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say: — 1. The public debt and property. 2. The regulation of trade and commerce. 3. The raising of money by any mode or system of taxation. 4. The borrowing of money on the public credit. 5. Postal service. G. The census and statistics, 7. Militia, military and naval service and defence. 8. The fixing of and providing for the salaries and allowauccs of civil and other officers of the Government of Canada. 9. Beacons, buoys, lighthouses, and Sable Island. 10. Xavigation and shipping. 11. Quarantine and the establishment and maintenance of marine hospitals. 12. Sea coast and inland fisheries. 13. Ferries between a Province and any British or iorvh^n country or between two provinces. 14. Currency and coinage. 15. Banking, incorporation of banks, and the issue of paper money. 10, Savings banks. B. .V. -1. ACT, 1867 798 17. Weights and measures. 18. Bills of exchange and promissory notes. 19. Interest. 20. Legal tender. 21. Bankruptcy and insolvency. 22. Patents of invention and discovery. 23. Copyrights. 24. Indians, and lands reservcl for the Indians. 25. Naturalization and aliens. 26. Marriage and divorce. 27. The criminal law, except the constitution of Courts of Criminal Jurisdiction, hut including the procedure in criminal matters. 28. The estahlishment, maintenance and management of peni- Iciitiarie.s. 29. Such classes of suhjects as are expressly excepted in the enu- meration of the classes of suhjects hy this Act assigned exclusively lo the Legislatures of the Provinces. And any matter coming within any of the classes of suhjects enu- merated in this section shall not he deemed to cnuie within the class of matters of a local or ])rivate nature comprised in the enumeration of the classes of suhjects hy this Act assigned exclusively to the Le;i,islatures of the Provinces. Sec. OS. In each Province the Legislature nuiy exclusively make laws in relation to matters coming within tlie classes of suh- jects next hereinafter enumerated, that is to say: — 1. The ameudiuent from time to time, notwithstanding any- thing in this Act, of the constitution of the Province, except as re- gauls the othce of Lieutenant-Governor. 2. Direct taxation within the Province in order to the raising of a revenue for provincial purposes. 3. The borrowing of money on the sole credit of the Province. 4. The estahlishment and tenure of provincial olhces and the appointment and payment of | provincial oiHccrs. 11'! TT- 794 APPENDIX I. 5. The management and sale of the pxiblic lands belonging to the Province, and of the timber and wood thereon. 6. The establishment, maintenance and management of public and reformatory prisons in and for the Province. 7. The establishment, maintenance and management of hospitals, asylums, charities and eleemosynai-y institutions in and for the Pro- vince, other than marine hospitals. 8. Municipal institutions in the Province, 9. Shop;, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local, or mimicipal purposse. 10. Local works and undertakings other than such as are of the following classes: (a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province; (6) Lines of steamships between tlie Province and any British or foreign country; (c) Such works as, although wholly situate within the Province, are before or after their execution declared by the Parlia- ment of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces. 11. The incorporation of companies withi provincial objects. 12. The solemnization of marriage in the Province. 13. Property and civil rights in the Province. 14. The administration of justice in the Province, including the constitution, maintenance and organization of provincial court?:, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts. 15. The imposition of punishment by line, penalty or imprison- ment for enforcing any law of the Province made in relation to any matter coming witliin any of the classes of subjects enumerated in this section. IG. Generally all matters of a merely local or private nature in the Province. Sec. lOS. The public works and property of each Province enumerated in tlie third Schedule to this Act shall be the property of Canada. B. N. A. ACT, 1867 795 Sec. 109. All lands, mines, minerals, and royalties belonging to the several Trovinces of Canada, Nova Scotia and New Brunswick at the union, and all sums then due or ypayable for such lands, mines, minerals or royalties shall belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same. Sec 117. The several Provinces shall retain all their respec- tive public property not otherwise disposed of in this Act, subject to the right of Canada to assume any lands or public property required for fortifications or for the defence of the country. THE THIRD SCHEDULE (B. N. A. ACT). PROVINCIAL PUBLIC WORKS AND PROPERTY TO BE THE PROPERTY OF CANADA. 1. Canals, with lands and water power connected therewith, 2. Public harbours. 3. Lighthouses and piers, and Sable Island. 4. Steamboats, dredges, and public vessels. 5. Eivers and lake improvements. 6. Railways and railway stocks, mortgages, and other debts due by railway companies. 7. Military roads. 8. Custom houses, post offices, and all other public buildings, except such as the Government of Canada appropriate for the use of the Provincial Legislatures and Governments. 9. Property transferred by the Imperial Government and known as ordinance property. 10. Armouries, drill .sheds, military clothing and munitions of war, and lands set apart for general public purposes. BOUNDAUIES OF LAHIJADOU. Boundaries of that part of Labrador which is a boundary of Newfoundland, as set forth in draft of letters patent passed under the groat seal of the United Kingdom, constituting the olHce of Governor and Commander in Chief of the island of Newfoundland rii M i':'! i 796 APPEyOIX I. and its dependencies. Dated 28tli Marcli, 1876 (see the Consolidated Statutes of Newfoundland, second series, 1893, page 1107). "All the coast of Labrador from the entrance of Hudson's Straits to a line to be drawn due north and south from Anse Sablon on the said coast to the fifty-second degree of north latitude (which f-aid island and coast together with the Island of Newfoundland, are hereinafter referred to as our said colony . . .). BOUNDAUIES OF ALASKA. Boundaries of Alaska, as set forth in convention' for the cession of the llussian possessions in North America to the United States. Concluded March 30th, 18C7; ratifications exchanged at Wash- ington, June 20th, 18G7; proclaimo^l June 20th, 18C7. The eastern limit is the line of demarcation between the Rus- sian and the British possessions in North America, as estaldished by the convention between Russia and Great Britain, of February 28-16, 1825, and described in Articles III. and IV. of said conven- tion, in the following terms: — " Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 51 degrees 40 minutes north latitude, and between the 131st and 133rd degree of west longitiule (meridian of dreenwich), tlie said line shall ascend to the north along the channel called Portland or silver may be extracted out of the same; but, notwii'i^',," O'j; the good provisions by the said statute to prevent the discoarayuig of their Majesticb' good sub- jects Avho have mines of copper, tin, iron or lead in their soil from digging and opening the same, many doubts and questions have arisen upon the said statute, whereby great suits and troubles have arisen to many of the owners and proprietors of such mines. Whore- fore, for the better explanation of the said statute: », II. Be it enacted by the King's and (Queen's most excellent ^Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assem- bled, and l)y the authority of tlie same, that all and every person or jjcrsons, being subjects of the C'rown of England, bodies politic or corporate that now are, or hereafter shall bo the owner or owners, proprietor or proprietors of any mine or mines within tliis kingdom of England, Dominion of Wales, or town of Berwick-upon-Tweed, where any ore now is or hereafter shall Ijc discovered, oj)oued, found or wrought, and in which there is copper, tin, iron or lead, shall and may hold and enjoy the same mine or mines and ore, and continue in the possession thereof, and dig and work the said mine or mines or ore, notwithstanding that such mine or mines or ore shall be pre- tended or claimed to be a royal mine or royal mines; any law, usage or custom to the contrary notwithstanding. III. Provided always, and be it enacted and declared tliat their Majesties, their heirs and successors, and all claiming any royal mines under them, shall and may have the ore of any such mine or mines in any part of the said kingdom of England, dominion of Wales or town of Berwick-upon-Tweed (other than tin ores in the counties of Devon and Cornwall), paying to the proprietors or owners of the said mine or mines wherein such ore is or shall be found, within thirty days after the said ore is or shall be raised and laid upon the ;'l! Hi lir ,1 f. 800 APPEXDIX I. banks of the said mine or mines, and before tlie same be removed from thence the rates following (that is to say): for all ore washed, made clean, and inerchantable, wherein is cojjper, the rate of los. per ton; and for all ore waslied, made clean, and merchantable, whoroin there is tin, the rate of 40s. per ton; and for all ore washed, made dean, and merchar.table, wherein there is iron, the rate of -lOs. \)cv ton; and for all ore washed, made clean, and merchantable, wherein there is lead, the rate of 9s. i)er ton. And in defanlt of payment of snch res}>cctiYe sums as aforesaid, it shall and may be lawful for the owners and i)roprietors of the said mine or mines, wherein such ore is, are or shall be found, to sell and dispose of the said ore to his and their own uses; any law, statute or custom to the contrary not- withstanding. IV. Provided always, that nothing contained in this Act shall alter, determine, or make void the charters granted to the tinners of Devon and Cornwall by any of the king-s and queens of this realm, or any of the liberties, privileges and franchises of the said tinners, or to alter, determine or make void of law, customs or con- stitutions of the stannaries of Devon or Cornwall. (See 1) Ann, c. 2-i, for the Regulation of Mines and Adventurers.) 55 George III., chapter 134 (1815). An Act for Altering the Eate at which the Crown IMay Exercise Its Eight of Pre-emption of Ore in which there is Lead. [4, therefore, thiit the same shall he increased, may it therefore i)leaso your ^Fa- jesty that it may be enacted, and l)e it enacted I)y the King's most excellent ^lajesty, by and with tlie advice and consent of tlie Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and liy the authority of the same, that, from and after the passing of this Act, the rate which shall be paid Ijy his Majesty, his heirs, successors, and all claiming any royal mines under them, in ex- ercising the right of pre-emption given them by tin? said recited Act, so far as respects any ore wlierein there is lead, sluill be '«J5s. per ton for all ore, washed, nuule clean and merchantable, wherein there is lead, instead of the rate of 9s. per ton as by the said recited Act is directed, anything in the said recited Act to the contrary notwith- standing; and such increased rate shall be i)aid su1)ject to the pro- visions and according to the regulations stated in the said recited Act, and now in force, with regard to the said original rate of 'Js. per ton. THE STICKEEN TERRITORIES. On the lUth July, 1802, an order (see Appendix to Revised Statutes, B.C., 1871, pp. 189, et seq.) was promulgated by Her Majesty Queen Victoria, persuant to Imperial Acts, G Vict, and 24 Vict., that certain territories adjacent to tiie colonies of British Columbia " but not being within the jurisdiction of the legislative authority of any of Her Majesty's possessions abroad, here- inafter called the Stickoen Territories, . . . shall comprise so much of the dominions of Iler Majesty as are 1)ounded to the west and south-west by the frontier of Russian-America (now Alaska), to the south and south-oast bv the boundary of British Columbia, to the cast by the 125tli meridian of west longitude, and to the north by the 68nd ])arallol of north latitude, and it is further ordered that ihe Governor for the time being of British Columbia shall be ad- ministrator of the Government of the said territories." BOUNDARIES OB' THE DOMINION OF CANADA.' " A synthesis of the boundaries of the various Provinces, as given above, furnishes the data for a description of the boundary of the Dominion as a whole " : — "Beginning at the intersection of the shore of the Arctic Ocean by the 1-llst meridian, the Arctic and Atlantic Oceans form 51 -M 802 APPENDIX I. the boundary as far as Hudson's Straits. Labrador, the Gi.lf of St. Lawrence and the Atlantic Ocean continue it as far as Cai)e Sal)lo, including the Alagduleno Islands, Anticosti, Prince Edward Island, Cape Breton, Sable Island, and all other islands within six leagues of the coast in the CJulf of St. Lawrence, and within forty leagues of the Atlantic coast of Nova Scotia. From Cape Sable to the mouth ol' the St. Croix Kiver the boundary is a line drawn across the entrance of the Bay of Fundy, so as to give the Grand Mauan group of isliindw and most of tliose in Passamoquoddy Bay to Canada. It follows the St. Croix to its source, runs due north to the St. John, and then passes by a very irregular route to the intersection of the south bank of the St. Lawrence by the 45th parallel. From that point it fol- lows the navigable channel of the St. liawrcnce to Lake Ontario, passes through that lake, the Niagara liiver. Lake Erie, Detroit liiver, Lake St. Clair, Kiver St. Clair, Lake Huron and the lower part of the St. Mary River to the foot of the Neebish Rapids. From the Neebisli Rapids the boundary is continued up the St. jMary River to and through Lake Superior to the mouth of Pigeon River, thence ]>y way of Rainy Lake and Rainy River to the north- west angle of the Lake of the Woods. From the north-west angle of the Lake of the Woods the bound- ary runs due south to the -19th pai'allel and along that parallel to the Strait of San Juan do Fuca, and througli it to the Pacific Ocean. The western boundary of the Dominion is the Pacific Ocean and the Portland channel to tlie inland terminus of the latter, the Rocky Mountains to their intersection by the 141st meridian, and that meridian to the Arctic Ocean." ' (See Houston's Const. Doc. p. 280.) BOUNDARIES OF THE NORTH-WEST TERRITORIES. (Houston's C. D. p. 279.) " This title * is applied to the whole region formerly known ns ' Rupert's Land ' and the ' North-West Territory,' except the Pro- vince of Manitoba and the District of Keewatin.^ It is bounded on the south by the 49th parallel of north latitude; on the west by tlio Rocky Mountains, the 130th meridian, the GOth parallel of north latitude west to Alaska, and the 141st meridian to the Arctic Ocean; and on the east by the western boundaries of Manitoba •'' and tin* District of Keewatin.* Politically the ' North-West Territories ' is a unit, there being but one Lieutenant-Governor and one Legisla- tive Assembly for the whole territory; but the southern portion of it has been divided ' into four ' provisional districts ' — Assiniboia, Al- berta, Saskatchewan and Athabasca." ' See Dom. Stat. 43 Vict. c. 25; R. S. C. 1886, c. 50. BOUND.UIIES OP DOMlXIoy A\D X.W.T 808 "For the boundaries of Kfewatin, see Dom. Stat., 39 Vict. c. 21; R. S. C. 1886, c. 53. ' (See Houaton'B Const. Doc. p. 278.) * This Is a lino diu> north to the Arctic Ocean from " Cedar Portage " at the head of Lake Winnlpegosis. " By order of the Governor-General in Council on the 8th of May, 1882: see Dom. Scss. Paper of 1882, No. 172. nOUND.\RIES OF UNXAMKD DrSTUICTS OV TIIK XORTIF-WICST TKRKITOIUKS. By Order in Council of the 2ncl of Octol)cr, ISO."), tlio whole of the unnrgiinizcd niifl iinnnmod districts of the Xorth-AVcst Terri- tories Avere divided into .four ])rovisionnl districts, to lie named TTngava, Franklin, ^Inckenzio and Ynkon. The boundaries of such districts were defined as follows: 1. Ungava— 'I'lie district of I'ngava, of indefinite extent, to he hounded as follows: On the nortli hy TTudsrn's Strait; on the west l)y tlio east coast of ITiidson's Bay and James' Bay: on the sonth hy the Province of Qnelfcc; on the east hy the boundary between Canada and the de- pendency of Xewfonndland, on the coast of Labrador. And witli re degrees 22 west (from Greenwich)fand latitude 08 degrees 54 north; i- II ill II ! 801 APPExnrx I. thence soutlicrly, nlonp tlie onHtcrn hoimdnry of the district of Yukon to the COth piiniUi'l of north hititiuU"; tlicnco due cast on nnid |mriillul, for a distance of about 17 miles, to its intersection with the TiOth nieridiiin; tlicnce due oast on tlio ;52nd correction line of the Do- minion hinds system of township surveys (very nearly on the ()Oth ])aralh'l), for a distance of about T!)0 miles, to its intersection with the lUUth meridian; thence due nortli, on said meridian, for a dis- tance of about 5;K) miles, to the Arctic coast and termination of tlie mainland of tlie continent (in latitude about (i7 dei^rees 48 north); tlicnce westerly fcdlowing the windinjjs and sinuosities of said coast, and including all islands within a distance of three geographical miles, to tlie i)lace of beginning. 4. Yukon — 'riie district of Yukon, about 285,000 square miles in extent, to be bounded as follows: — Beginning at the intersection of the l-ilst meridian of west longitude, from Greenwich, with a point on the coast of the Arctic Sea, which is. a[)proximate north latitude r>9 degrees 39, and named on the Admiralty Charts " Demarcation Point "; thence due south on said meridian (which is also the boundary line between Canada and Alaska for a distance of about (550 miles, to a point in latitude about GO degrees 10 north, at which it will intersect the disjjuted boundary between Canada and the Ignited States, on the north Pacific coast; tlience in an easterly direction, along the said undetermined boundary, iv / a distance of about 55 miles (in a straight line to its intersection nith the 60th parallel of north latitude; thence due east along the ])arallel of latitude (which is also the north boundary of ]?ritish Columbia), for a distance of about 550 miles, to the Liard liiver, in approximate longitude 123 degrees 30 west; thonce north- erly, along the middle line of said river, for a distance of about ton miles, till opposite the highest part of the range of mountains which abuts u]ion the river near the mouth of Black River; thence to fol- low the summit of said range in a north-westerly direction to the southernmost source of the Peel Iliver; thence to follow northward the summit of the main range of mountains which runs ap])ro\i- mately parallel to Peel River, on the west, as far as the intersection of the said range Avith the 136th meridian; thereafter to run due north to the Arctic Ocean, or to the westernmost channel of the Mackenzie Delta, and along that channel to the Arctic Ocean; thence north-westerly, following the windings of the Arctic coast (termina- tion of the mainland of the continent) including ITerschel Tslaiid. and all other islands which may be situated within three geogra])hical miles, to the place of beginning. Provided, that in respect of that part of the line between tlio Liard River and the southernmost source of the Peel River, the sum- UUlNDAItlHti OF YI'KOX 805 liiit to bo I'oIIowcmI is tlio wutorshcd siiiumit scpiiruting strt'iuiis uiitcr- ing the Jiiaid Jfivor below JMutk l{iver, or lUnving directly into tho Muekenzio furtber nortb, from Htreaiiis flowing wostwiird eitbor to ilio Vukiin or to upper briuicbe.s of tiie Liard Hiver. Provided tbat in respcet to tbo part oi' tiie boundary described as foUowiug iiortiiward tbe main range of mountains on tiie west side of I'eel ]{iver, tbe line sluiU run along tbe watersbed between streams llowing eastwardly to tbo Peel Hiver, and tliose Jlowing westwardly to brandies of tbe Yukon, Porcupine, etc., except wiuu'e sucli watersbed sliall 1)0 more tban 'H) miles distant from tbe main ijtieam of tbo Peel, wben tbe bigbest range witbiu tbat di«tanco sliall be tbo boundary. Jt was furtber ordered tbat tbero bo added to tbe district of Atbabiiska, tbe territory colored yellow on a map annexed to tbo saii along and wi h the said parallel, shall be the line of demarcatimi between the tc 'tories of the United States and those of His IJritan- nic ^lajesty, ani *:hat the said line shall form the northern bouudaiv of the said territories of the United States and the southern l)ouii(liiiv of the territories of His Britannic Majesty, from the Lake of tlir Woods to tlio Stony Mountain." ^ ' As defined by tho London Convention of 1818. 57-58 VICTOHLV {\)0M) CHAPTKR XXX. An Act respecting the I'tilization of the Waters of the Xortli-Wesi Territories for Irrigation and other purposes (as ameiuled in 1S95 Ijy 58-5!) Vict. c. 33). Assented to 2'3rd July, 1891. TTLB ^L\JKSTY, by and with the consent of the Senate an.l -*--■- House of Commons, enacts as follows : — 1. TbisAct may ho cited as "The North- West Irrigation Act." 2. In this Act, unless the context otherwise requires, — N. W. IRRWATIOX ACT 807 (a) The expression " Minister " means the Minister of the In- terior ; k>ub-section (b) repealed and following substituted : (b) " The expression ' agent ' means the agent of Dominion lands for the district in which tlie land or water is situated." (f) The expression "' Dominion land surveyor"' means a surveyor duly authorized, under the provisions of " The Dominion Lands Act,'' to survey Dominion lands; (d) Repealed and following substituted: ((/) '' The expression ' compauy ' means any incorporated com- pany, the ol)jects and powers of which extend to or include the construction or operation of irrigation or other works under this Act, or the carrying on thereunder of the business of the sup- ply or tlie sale of water for irrigation or other purposes, and in- cludes any person who has been authorized, or has applied for au- thority to construct and operate such works or carry on such busi- ness, or who has obtained a license under section 11 of this Act, and also includes any irrigation district incorporated under an Ordinance of the Xorth-West Territories." (e) The expression " works " means and includes any dykes, dauis, weirs, lloodgates, breakwaters, drains, ditches, basins, reservoirs, canals, tunnels, bridges, culverts, cribs, embankments, headworks, fliiir.e-, aqueducts, ]ii])es, pum])s and any contrivance for carrying or conducting water or other works whicii are authorized to be con- structed under tiie provisions of this Act ; (/') Tlie expression "duty of water" means the area of laud that a unit of water will irrigate, which unit is the discharge of one cubic foot of water \)ov second. 3. This Act sluill a])ply to and be in force througliout the Xorth- West Territories. Section 4 of 57-58 Yict. c. 30, was repealed by 58-5!) Vict. c. 33, 8. 2, and the foHowing section substituted therefor : " 1. The property in and the right to tlie use of all the water at any time in any river, stream, watercourse, lake, creek, ravine, canon, lagoon, swamp, marsh or other body of water shall, for the purposes of this Act, be deemed to be vested in the Crown, unless and until, and cxcejit only so far as some right therein, or to the use thereof, inconsistent with the right of the Crown, and which is not a puldic riglit or a right eominon to the juiblie, is established; and save in the exercise of any legal right existing at the time of such diversion or use, no person shall divert or use any water from any river, stream, watercourse, lake, creek, ravine, canon, lagoon, swamp, 898 APPENDIX I. fi I marsh or other body of water, otherwise than under the provisions of this Act." 5. Except in pursuance of some agreement or undertaking ex- isting at tlie time of the i)assing of this Act, no grant shall be hero- after made by the Crown of lands or of any estate, in such terms as to vest in the grantee any exclusive or otlier property or interest in, or any exclusive right or privilege with respect to any hike, river, stream or other body of water, or in or with respect to the water con- tained or llowing therein, or the land forming the bed or shore thereof. G. After the passing of this Act no right to the permanent diversion or to the exclusive use of the water in any river, stream, watercoiu'se, lake, creek, ravine, canon, lagoon, swamp, marsii or other body of water shall be acquired l)y any riparian owner or any other person by length of use or otherwise than as it may be accpiired or conferred under the provisions of this Act, unless it is acquired by a grant made in jnirsuance of some agreement or iindertaking existing at the time of the passing of this Act. Section t of 57-58 Vict. c. 30, was repealed by 58-59 Vict. c. 33, s. 3, and the following section substituted therefor : " 7. lv\ce})t for domestic piu'poses, as hereinafter describt'd, every person who holds water rights of a class similar to those which may be acquired under this Act, or who, with or without authority, has constructed or is operating works for the utilization of water, siiall obtain a license or authorization under this Act before the first day of July, one thousand eight hundred and ninety-six. (2) If such license or authorization is obtained within the time limited, the exercise of such rights may thereafter be continued, and such works n\ay be carried on under the ])rovisi()ns of this Act; other- wise such rights or works, and all the interest of such ])ers()n tlierciu, shall, without any demand or proceeding, be absolutely forfeited to Iftr ^fajesty, and may be disposed of or dealt with as the Governor in Council sees fit. (3) The application of such license or authorization shall i)i' made in the sanu' mnniu'r as for other licenses or authorization under this Act, and the like |)roceodings slndl l)e had thereon, and the like infoi'uiation furnished in connection therewith." 8. Any water tlie ]»roperty in wliich is vested in the Crown may be acquired for domestic irrigation or other ])urposes, upon applica- tion therefor as hereinafter ])rovided; and all applications made in accordiuue with the i)rovisions of this Act shall have precedeiu'e, N. W. IRRIGATION ACT 809 except applications iinder section 7, according to the date oJ! filing them Avith the agent, if for the same purpose, but not otherwise. (2) The purposes for Avhicli the right to water may bo acquired arc of three classes, namely : First, domestic purposes, which shall he taken to mean household and sanitary purposes and the watering of stock, and all ])urposos connected with the working of railways or factories by steam, but shall not include the sale or barter of water for such puri)oses; second, irrigation purposes; and, third, other purposes. (3) Applications shall have precedence in this order irrespective of the date of filing, so that all applications for domestic ])urposes shall have precedence of all those for purposes within the third class. 0. Xo application for any pur^jose shall be granted where tlie proposed use of the water M'ould dei)rive any person owning lands adjoining tlic river, stream, lake, or other source of supply of what- ever water he requires for domestic purposes. 10. "NYlien any person abandons or ceases to use any waters ac- ([uired by him for the purposes for which they were acquired, or wastes such waters, his right to use them shall cease. The remaining sections of the Act from 11 to 27, inclusive, re- late to the method of obtaining a license to do the necessary pre- liminary work in connection with the location of such works, I'k'., etc. t?S. Any company having the riglit to the use of water fen- irriga- lion or other i)urposes .shall dispose of any surplus water llowing in ils works which is not being utilized or used for the purposes au- Ihorized, to any person applying therefor for irrigation purposes, and tendering ])ayment for one niontli in advance at the regular prices. 2d. No comi)any undertaking to sell water conveyed by ils works shall, subsequent to the llrst four years after the construction of such works as are necessary to convey the water to the user, dis- criminate between the users of sucli water regarding the price thereof. ("2) If from any cause tlu^ whole amount of water agreed to be !^ii|iplied by a company is not avaiialile. then each user shall have liiiiii-Iu'd to him by the company so much water as shall bear to the nvailabh' wafer the same proportion as his usual su|)|)ly I)ears to the whole amount agreed to De furnished. 8 i I I 810 APPESDIX. I. I '62. Under this Act tlie clitjcliarge of one cubic foot of water pci- second shall be the unit of measurement of llowing water, aud tho cubic foot or acre foot the unit of measurement of quantity. Tlie acre foot is equivalent to forty-three thousand five hundred auil sixty cubic feet. 4G. All regulations made and forms prescribed by the Governor in Council under this Act shall be published in the Canada Gnzelh'. aud shall be laid before both Houses of Parliament within the flr^i lifteen days of the session next after the date thereof. Minerals in Bocky Mountain Park. Lands containing coal or other minerals, including lands in the Kocky ^lountain's Park, shall not be subject to the provisions of this Act respecting Sale or llouu'- stead Entry, but the Ciovernor-(jieneral in Council nuiy, from time to time, make regulations for the working and development of miiir< on such lands, and for the sale, leasing, licensing or other dis[)(i.sil thereof; IVovided, however, that no disposition of mines or minii);; interests in the said ])ark shall 1)0 for a longer period than twenlv years, renewable, in the discretion of tlie Governor in Council, from time to time, for further periods of twenty years each, and not ex- ceeding in all sixty years. 55-56 Vict. (1892) c. 15, s. 5, repealiim section 47 of "The Dominion Lands Act,"' 11. S. C. (1880) c. 54. aiiil substituting the above therefor. (Selected sections from) An Act to consolidate and amend the Aii< respecting Land in th',' Territories. Assenlcd to 23rd Jxdy, ISO',. HVAX ^lAJESTY, by and with consent of the Senate and Iloii^o of Commons of Canada, enacts as follows: — 1. This Act may be cited as "The Land Titles Act, 1894." 2. (a) The expression "'land" means lands, messuages, tene- ments and hereditaments, corporeal and incorporeal, of every naluic and description, and every estate or interest therein, and wliether siU'h estate or interest is legal or e[ Court, or other act of law, sale for arrears of taxes, or ui)on any settlo- mmt or any legal succession in case of intestacy. (r) The exjjression "grant" niciins any grant of Crown land. whether in fee or for years, aiul whether direct from Her Majesty er pursuant to the provisions of any statute. (w) The expressions " endorsed " and " endorsement " apply to anything written upon any instrument, or upon any ])aper attaelu d thereto by the registrar. (.!•) Tiie expression " possession" when applied to jiersons elaini- ing title to land, means also alternatively the reception of the renl- and profits thereof. nOMlXION LAND TITLES ACT B18 (y) The expression " afTidavit " includes an application when made l)y a person entitled to allirm. DESCENT OF LAND, 3. Land in the Territories i-linll go to the personal representa- tives of the deceased owner tliercof in the same manner as personal estate now goes, and he dealt witli and distril)uted as personal estate. 4. No words of limitation are necessary in any transfer of any land in order to transfer all or any title tlierein, hut every instru- ment transferring land sliall operate as an ahsolute transfer of all such riglit and title as the transferor has therein at the time of its execution, unless a contrary intention is expressed in tlie transfer; but nothing herein contained shall preclude any transfer from operat- ing by way of estoppel; and hereafter the introduction of any words of limitation into any transfer or devise of any land, shall have the 1 ko force and meaning as the same words of limitation would have if used by way of limitation of any personal estate and no other. 5. Xo devise shall l)e valid or elTeetual as against tlic peisonul representative of the testator, until the land affected tlierel)y is trans- ferred to the devisee thereof, by the personal rei)resentative of the devisor, saving and excepting such devises as are made l)y the testator to his personal representative, eitlier in his representative capacity or for his own use. C. Xo widow wliose husl)and died on or after the first day of January, one thousand eigbt hundred and eighty-seven, sliall be entitled to dower in the land of her deceased husband; l)ut she shall have the same right in such land as if it were personal pro])erty. 7. Xo husband whose wife died on or after the first day of Janu- ary, one thousand eight hundred and eighty-seven, shall be entitled to niiy estate ])y the curtesy in the land of his deceased wife; but he sliiill liave the same right therein as a wife has in the personal pro- perty of her deceased husband. 8. Whenever land is transferred to a man and his wife, the trans- fe.e;'s shall take according to the tenor of the transfer, and they shall not take ])y entireties unless it is so expressed in the transfer. f). A man may make a valid transfer of land io his wife, and a woman may make a valid transfer of land to her husband, without in either case the intervention of a trustee. : i !; 1 ' 1 i t It I '' K 1 |B ■ ' ffi ■ ' w f il 1 I ■ m ^! 814 APPEXDIX I. 10. Any devise or limitation whieli heretofore would liave created an estate tail yjiall transfer ahsohito ownership, or the greatest estate; tliat tlie devisor or transferor had in the land; and no estate in fee simple shall he changed into any limited fee or fee tail, but the land, whatever form of words is used in any transfer or transmission or dealing, shall, except as hereinafter otherwise ])rovided, be and remain an absolute estate in the owner for the time being. 11. A married woman shall, in respect of land, acquired by hor on or after the first day of January, one thousand eight hundred au'l eijihty-seven, have all the rights and be subject to all the liabilities of ix feme sole and may, in all respects, deal Avith land as if she were unmarried. in. For the purposes of this Act, there shall be in the Xortli- West IVrritories five land registration districts, respectively known and described as follows: — 1. As- accei)ted by the registrar and dealt with by him in all res[)ecl.s as if the same were letters patent in favour of such company. The notification shall state the nature of the grant and shall specify any mines, minerals, easements or rights which arc excepted from the grant. 40. The owner of any estate or interest in any land, whether legnl or equi'.able, letters patent for which issued from the Crown before the first day of January, one thousand eight hundred and eiglity- seven, or which otherwise had prior to that date ]iassod from the Crown, may apply to have his title registered under the provisions of this Act. 2. If at the time of the grant of the certificate of title, thovi! are no registered encuml)rances or conveyances afTecting such liunl. the certificate may be granted to the patentee, \ipon payment of such fees as are fixed in that behalf by tarilf made from time to time by the Clovenior in Council, but no fees shall be payable therefor under the provisions of section one hundred and fifteen of this Act. EFFECT OF REGISTR.\TION, 53. In every instrument transferring, encumbering or chargimr any land for which a certificate of title has been granted, there shall be implied the following covenant by the transferor or encunibran- I ^•alent to, art iC the said com- iis or poi- iS or parts; I Act." nunl prinr Ailrod anil ,' witli til'' thorel)y is said I'ltin- of the In- Iho Cana- iin\)any cn- ?arlianiout, all rospocls [)aiiy. Tho specify any \ from llu' letlicr le.iiid 'owu hel'nri' i\nd eiglity- 1 from the Iro visions ot title, theve sneh liinil. tent o£ sneh to time hy [re for under Act. lor charpini: there shall Icncumhran- nOMlMOX LAND TITLIJS ACT H17 cor, that is to say: That the transferor or enciunl)rancer will do such acts and execute such instruments as, in accordance with tlio provisions of this Act, are necessary to give effect to all covenants, (!(»nditions and purposes e.\])ressly set forth in such instrument, or by this Act, declared to be implied against such persons in instruments of a like nature. 54. After a certificate of title has l)een granted for any land, no instrument, until registered under this Act, shall be ell'ectual to l)ass any estate or interest in any land (except a leasehold interest for three years or for a less period), or render such laiul lial)le as security for the i)ayment of money ; but, upon the registration of any instrument in manner hereinbefore prescribed, the estate or in- terest specified therein shall ])ass, or, as the case may be, the land shall become liable as security, in manner and subject to the coven- ants, conditions and contingencies set forth and specified in such instrument, or ))y tliis Act declared to be implied in instruments of a like luitrire. 55. Tiie owner of land, for which a certificate of title has been granted, shall hold the same subject (in addition to the incidents implied by virtue of this Act) to such encumbrances, liens, estates or interests, as arc notified on the folio of the register -which con- ptitutes the certificate of title, absolutely free from all other encum- hranccs, liens, estates or interests whatsoever, excei)t in case of fraud wherein he has participated or colluded, and except the estate (>i interest of an owner claiming tlie same land under a prior certifi- cate of title granted under the provisions of this Act. 2. Such priority shall, in favour of any person in possession of land, be computed with reference to the grant or earliest certificate of title under which he or any person through whom he derives title, has held such possession. 56. The land mentioned in any certificate of title granted imder this Act shall, by implication, and Avithout .any special men- tion therein, unless the contrary is expressly declared, be subject to — (a) Any subsisting reservations or exceptions contained in the original grant of land from the Crown ; (b) Any municipal charges, rates or assessments on the land for the year current at the date of the certificato of title, or which are thereafter imposed on the land, or which have theretofore been 52— M III I 818 APPENDIX I. imposed for local iinprovoinenta and which arc not tlien (liu( and payable, and any charges, rates or assessments in respect oi" whiih tlic right oi! the municipality to have recourse agidnst tlie land is not matured, not exceeding tliree years' cliarges, rates or assessmeiils in the wliole ; (c) Any public higluvay or riglii of way or other pul)lic case- ment, howsoever created uj)on, over or in respect of the laud; {(1) Any subsisting lease or agreement for a lease for a period not exceeding tliree years, where there is actual occupation of the land under the same ; (e) Any decrees, orders or executions aj^ainst or aft'ectino- tlio inlere.-t of the owner in the land, which have been registered and mainlaiue i in force against the owner ; (/■) Any right of exjjropriation which nuiy, by statute or ordin- ance, be vested in any person, body corporate, or Iler ^lajesty. 57. Every certificate of title granted under this Act shall (('xci'|it in case of fraud, wherein the owner luis |»articipated or colhidcd), so long as the same reuuiins in force and uncancelled under tliis Act, be conclusive evidence in all Courts as against Her ^fajesty and all persons whomsoever, that the person named therein is entitled to the land included in the sanu;, for the estate or interest thcnin P|)eeili('d, subject to the exceptions and reservations mentioned in the next preceding section, except so far as regards any portion (if land, by Mrong description of boundaries or parcels included in siu k certificate of title, and except as against any i)erson. claiming under a prior certificate of title granted under this Act in respect of the san;e land ; and for the pur])ose of this section that person shall bo deemed to claim under a ])rior certificate of title who is holder of, or whoso cLnm is derived directly or indirectly from the person who was the holder of the earliest certificate of title granted, notwilli- standing that such certificate of title has been surrendered and a nmv certificate of title has been granted upon any transfer or other in- strument. 58. A purchaser, mortgagee or encumbrancec for valuable con- sideration sliall not be affected by the omission to send any notito by this Act directed to be given, or by the non-receipt thereof. 59. After the certificate of title for any land has been granted, no instrument shall be effectual to pass any interest therein, or to nOAHMOX LAND TITLES ACT 811) iTiidor tilt' land liaMc as sociirity for the paviiiciit of money ns nfninst any hoini fide (ransforoo of tin' land nndiT tlii.s Act, niilcss siicli in- slnunenl is cxccntod in aceordanci! witli the provisions of this Act • and is dnly remastered therenndcr; iind tlu' rcfristnir shall have ])o\vcr to decide whether any instrument, which is presented to liini for rc^Mstration, is suhstaiitially in conformity with the i)roper form in the siliednle to this Act, or not, and to reject any inslriinient whicli he may decide to he nnlit for rejrist ration. 00. \() memorandum or entry shall he made n[)oii a certifieato of title, (U- upon the dnplicate thereof of any notice of trnsts, whether expressed, implied or constructive ; ))iit tiie rej^istrar shall treat any instruniont containing- any such notice as if there was no trust ; anil the trustee or trustees therein named shall he deemed to he the al!Si>hite and beneficial owners of the land for the purposes of this Act. TRANSFERS. (il. AVlien hind, for which a certificate of title lias heen granted, is intended to be transfe. .' or any ri. ''The registiar shall keep a book in convenient form in wliich shall be cniered according to the respective dates of the receipt tliereof in his ofTice, a record of all powers of attorney or duly certi- lifd co])ies of ])owers of attorney, dejiosited, filed, or received in his ollice; and such book shall be kept in aljihalietical order, so as to show tlie names of all persons whose lands are or are intended to bo alTected liy such powers, and the day, hour and minute of their receipt by liim." " S8. Any such ])ower of attorney may be revoked by a revocation in the form " T '' in tho schedule to this Act; and the registrar shall not give ofTect to any transfer or other instrument, signed pursuant to such ])ower of attorney after the registration of a revocation of such power, unless under any registration abstract outstanding at the time. 828 APPENDIX I. CAN'KATS. !19. Any pprson claiiniiifi: to bo intorostod uiulor aiv cttlo- moiit, or tnistoo, or any iiistnuiu'iit of transfer or I' ion, or under any unrogisterod iiistriiiiii'nt, or nnder an c.v wlioro tin- execution creditor seeks to affect land in which the .dion debtoi' is interested beneficially, but the title to wliich is registered in tiie name of some other person, or otherwise howsoever in any land, iu;iy lodge a caveat with the registrar to the eil'ect that no disposition of, or certificate of title to, such land be made, either absolutely, or in ^iueh manner and to such extent only as in such caveat is expressed, or until notice has been served on the caveator, or unless the instru- ment of disposition or certificate of title be expressed to l)e subject to the claim of the caveator as claimed in the caveat, or to any lawful conditions expressed therein or (in case the title has not been re<;i.s- tered under this Act) that (he title of any porsaii other than tlie caveator be not registered. 2. A caveat shall be in the form *' V '' in the schedule to this Act. and shall be verified by the oath of the caveator or his agent, aiiil Bliall contain an address within the registration district at which no- tices may be served. 3. V\)o\\ the receipt of a caveat, the registrar shall enter the samo in the day book, and shall make a memorandum thereof upon a certi- ficate of title of the land atl'eeted by such caveat, and shall fortli- witli send a notice of tiie caveat thi'ougli the post ofiicc or otherwise to the person against wliosj title the caveat hn- been lodged; but in the case of a caveat before registration of a title under this Act, the registrar shall, on receipt thereof, enter tiie same in the day book. 4. So long as any caveat remains in force the registrar shall iint enter in the register any memorandum of any transfer or other in- strument pur])()rting to transfer, encuml)er or otherwise deal with or alTeet the land in respect to which such caveat is lodged, except sub- ject to the claim of the caveator. 5. 'Y\\Q owner or other person claiming the land may, by siuii- mons, call upon the caveator to attend before a .hidge to show eaiiM' why the caveat should not be withdrawn, and the said Judge inny, upon proof that such last mentioned ])erson has been summoned, an 1 Tipon such evidence as the .ludgc recpiires, make such order in the ]ii;'- mises, either ex parte or otherwise, as to the said Judge seems lit. nOMlMOS LAXn TITLES ACT H2d fi. Such caveat sliall lapse unless, before the expiration of three months from the recei])t thereof by tlio registrar, proper proceedings in a Court of competent jurisdiction have Ijeeii taken to cstal)lisii tli'^ caveators title to the estate or interest speciiied in tiic caveat, and an injunction or order has been granted restraining the registrar from ^ranting a certilicate of title or otherwise dealing witli the land. 7. The caveator may, by notice in writing to the registrar, witli- diaw his caveat at any time; but notwitlistanding such withdrawal llie Court or Judge may order the ])aynient by the caveator of the costs of the caveatee incurred prior to such witlidrawal. 8. A memorandum shall be niade by the registrar, \i])on the certi- licate of title, and upon tlie duplicate certificate of the witlidrawid, of any caveat or of any order made by the Court or a -ludge in con- nection therewith: and, after such withdrawal, la])se or removal, it nhall not 1)0 lawful for the same person or for any one on his behalf to lodge a further caveat in relation to the same matter, unless Ijy leave of the Judge. 9. Any person lodging or continuing any caveat wrongfully and without reasonable cause, shall be liable to make compensation to any person who has sustained damage thereby, and such comjiensation, with costs, may be recovered by ])roceedings at law if the caveator has withdrawn such caveat, and no proceedings have been taken by the caveatee as herein ])rovided; but if proceedings have been taken by tie caveatee, then tiie compensation and costs shall be determined by the Court or Judge acting in the same proceedings, 10. The Judge, on a])])lication for that purpose, on behalf of any ]ierson who is under the disal)ility of infancy, lunacy, unsoundness of mind, or absence from the territories may, i)y order directed to the registrar, ])rohibit the transfer of or dealing with any land belonging to any such person, and the dealing with any land in any case in which it appears to him that an error has been made by misdescrip- tion of such land or otherwise in any certificate of title or other in- strument, or for the i)revention of any other improper dealing. i1 \h. ATTESTATION OF INSTRUMENTS. 100. Every instrument cxecutefl within the limits of the Terri- tories, other than instruments under the seal of any corporation, caveats, orders of a Court or Judge, executions or certificates of any judicial proceedings, attested as such, requiring to be registered under 880 APPEXniX I. i this Act, sliall be Avitnossod l\y ono porsori, who shall sijjn his iiaiue to the inslnuiieiit as a witness, and who sliall appear hel'ore the in- spictor of the land titles ollice or the rej^istrar or deputy reffistrar of the regiHtmtion district in wliicli the land is .sitnated, or liel'ore a Jud<;e, stipendiary niagintrate, notary public, conwnissioner for tak- ing attidavits or a justice of the peace, in or for the Territories, aiKl make an atHdavit in the forni " W " in the schedule to this Act. 101. Every instrument, executed without the limits of the Terri- tories, other than grants from the Crown, orders in Council, inslni- ments under the seal of any eor])oration, or cavi'ats required to be re- gistered under the provisions of this xVct, shall be witnessed by one person, who shall sign his name to the instrument as a witness, ami who shall appear before one of the following persons, and make an aflidavil in the said form " W " : {a) If made in any Province of Canada, before a Judge of any Court of Record, any commissioner authorized to take alTidavits in such Province for use in any Court of Pecord in the Territories or before any notary piddic under his ollicial seal; or, (h) If made in Great Rritain or Ireland, bef(U-e a Judge of the Supreme Couit of Judicature in I'higland or Ireland, or of the Court of Sessions or the Judiciary Court in Scotland, or a Judge of any oF the County CouHs within his county, or the mayor of any city or incorporated town under the common seal of such city or town, or before any commissioner in (Ireat i'ritaiu or Ireland authorized to take aflidavits therein, for use in any Court of Record in the Terri- tories, or a notary public under his olhcial seal; or, {r) If made in any ]?ritish colony or possession out of Canada, befoie a Judge of any Court of Record, the mayor of any city or iu- corj)orated town under the common seal of such city or town, or notary jnddic under his oflicial seal, or {(J) if made in any foreign country, before the mayor of any city or |incorporated town, umlcr the common seal of any such city or town, or before the British con- sid,, vice-consul or consular agent residing therein, or before any Judge of any Court of Record, or a notary public under his olheiMl SCil. 103. After a certificate of title has been granted therefor any person dejirived of any land, in consequence ofi fraud, or by the regis- trat'on of any other person as ow-ner of such land, or in consequence^ of any fraud, error, omission or misdescription in any certificate of title or in any memorandum thereon, or upon the duplicate thereof. may, in any case in which the land has been included in two or more own, nl- )rizt'(l ti> ic Teni- ("anailn, y or iii- lown, or forci.Li'u n, iimliT >isli ooii- 'oiv any IS ollui;!! ofor any ho rotris- sociuonco ificato of tlioronf. 5 or more f^lLVER-LEXn SMELTIXG H81 frnints from tlie Crown, bring nnd prosecute an action at law for the lecovcry of damages against such person as a Judge appoints, and in any otlicr case against the person ujjon wliose application tlie errone- ous registration was made, or who accpiired title to the laiul in <[uos- tion Ihi'ongli such fraud, error, omission or misdescription; |M'ovi(led always, tiuit exco[)t in tlie case of fraud or error occasioned by any omission, misrepresentation, or misdescription in tlie application of such person to he registered as owner of sm li land, or in any instru- UK nt executed by him, such person siuiU, u[)on the transfer of sueli laiul hiiia fide for value, cease to l)e lial)K.' for the payment of any damages which l)ut for tiu' transfer, miglit have heen recovered from him under the ])rovisions hereinliefore contained, and such damage?, with costs, nuiy, in such last mentioned case, l)e recovered out of tlio insurance fund lu>reinafter provided for, l)y action against itlie regis- tiar as nominal defendant. 101. Xofhing in this Act contaiiuMl shall he so interitreted as to leave subject to action for recovery of damages, as aforesaid, or to ac- tion of ejectment, or to deprivation of laml in resi)ect to which he is rcjiistcrcd as owner, any purchaser or mortgagee haiid .fulv for valuable consideration of land under this Act, on the plea tluit his transferror or mortgagor has been registered as owner tlirougli fraud or error, or has derived from or througli a person registered as owner through fiaud or error, except in the case of misdescription, as mentioned iu section 102. "AX ACT TO EXCOUJtAGE SII.VKU-LEAI) SMELTIXU " (58 VIC. D.C.) In 1895 an Act entitled " An Act to encourage Silver-lead Smelling'' (assented to 22nd July, 1S!>5), was passed authorizing the Governor in Council, subject to certain provisions, to pay a bounty not exceeding fifty cents per ton and not exceeding in all $150,000 " on Canadian silver-lead ore nnd other ores of silver and g(dd smelted in Canada between the first days of July, 18i)5, and 1900," but (l)y section 4) not "on any ores snudted in smelting works which are not established and in operation before the first day of January, 1S97." BOUNDARIES OF ONTARIO. By " The Canada (Ontario Boundary) Act," Imp. Stat. 52 & 53 Vict. c. 28 (assented to 12th August, 1889), the following are de- clared to be the westerly, northerly, and easterly boundaries of the Province of Ontario, that is to say: K»2 Al'PIlXniX T. " Cnmiiioncing iit a ))oiiit wIhm'c tlic iiitcrmilionnl lioimdarv lic- hvcon tlio I'liitofl States of America and Canada strikes the western shore (if Jiako Siii)orior, thi'nee westerly al(iiiii;;' a line drawn due north, nntil it strikes tiie midiMe line of the eonrso of Ihu river disehar^dn^f the waters of tlie lake called lialTe Sen), or the J.onely Lake, whether above or l)eh)W its conlhienci' with the stream llowin<;' from the liake of the Woods towards l-ake Winnipeg', and Ihcnco jiroceedinj,' eastward from the ])oint at which the heforp- iiientioned line strikes the middle line o\' the course of the river hisl afori'siiid, alon^' the noddle line of tiie course of the same river (whether called hy the name of the lOnglish River, or, an to the piirt Iielow the continence, liy the name of the i{iver Winnipe;,'), up to I^ake Seul, or the Lonely liake, and thence alon;,' the middl(> line of liake Seul, or Lonely Lake, to the head of that lake, and thence hy a strai;;ht line to the nearest ]»oint of the middle line of the wati'rs of Lake St. -loseph, and thence alonj,' that noddle line until it roaches the foot or outlet of that lake, and thence alon;,' the noddle line of the river l»y which the wati'rs of Lake St. Joseph disehiirife tliemselvi's to the shore of the jiart of Jludson's Bay, commoidy known as .lames' l>ay, and thence south-easterly following' njion the paid shore to a |)oint wiiere a line drawn due north from the head sterly ends of these lines of lati- tude, where tlicy touch Lake Superior, by the shore line of said lake, containing about five thousand scjuare miles, bo so declared a minin;? division, and tliat the name thereof be the " ^licbiiiicoton Minin-' Division." Reoulations for Mixin'o Divlsions. Copy of an Order in Council ajjproved i)y His Honor the Lieutenant- Governor the 2!)tli day of January, A.l). 1808. Fpon the recommendation of the lEonorable the Commissionei of Crown Lands, the Committee of Council advise that tlie ac- coiii|>aiiying draft re^ndations for mining divisions, revised and amended in accordance with the ])rovisions of chapter 11, HI Victor'.-i, l.riiig an Act respecting Alining Claims, be approved of by your Honor. Revised and Amended Regulations fou Mining Divisions. Approved by the Lieutenant-fjlovernor in Council, January ••?!•, LS98 1. Any person may explore for minerals on any Crown lands not for the time being marked or staked out and occu])ied. except on such lands as by the Lieutenant-Oovernor in Council may have hron withdrawn from sale, location or exploration as being valuable for their pine timV ' . or for any other reason. 53— M ! ; :l 834 APPENDIX I. 2. Whore Croxsi. lamls arc .situated within a Mining Division tliey may he occupied ns mining claims under miners' licenses. 3. The Lieutenant-Governor may appoint for ever} :»ining division or for any i)art thereof an inspector, who shall be an olTieer of the Bureau of Mines. 4. Every inspector shall have power to enter, inspect and ex- amine any mine or portion thereof or works connected therewith re- lating to the health and safety of the persons employed in or alxmt tlie mine or works, and to give notice to the owner or agent in writing' of any i)articulars in which he considers such mine or works, or •my portion thereof, or any nuitler, tiling or practice, to be danger/v.^ i,c defective, and to require the same to be remedied within the period of time named in such notice; and on the occasion of any examiiiii- tion or inspection of a mine the owner shall produce to the inspector, if required so to do, an accurate jtlan of the workings thereof up (o the time of sudi inspection, and shall also permit the inspector to take a coj)y or tracing thereof. 0. Every inspector shall be ex officio a justice of the peace of the county or united counties, district or districts which a minill^• division coni])rehends or includes, in whole or in part, or in which or in any portion of which a mining division lies. G. Every insi)ector shall have power, within the mining division for which he has been apjiointed, to settle sumnuirily all disput,.s between licensees as to the existence or forfeiture of mining claims, and the extent and boundary thereof, and as to the use of water and access thereto, and generally to settle all difficulties, matters or (pi's- tions which may arise between licensees; and the decision of the in- spector in all such cases shall be iinal, except where otherwise pro- vided by the ^Mines A't, or where another tribunal is r.pi)ointcd uudor authority of the Act; and no case under the Act shall bo reiuo\il into any Court by ccrtinrari. 7. Every insjjoctor of a mining division a]>pointed under ilio Mines Act may a])point any numl)er of constables not exceeding four; and the persons so a])j)ointed siiall be constituted constables and ])(•,..,' ofTicers for the pur])oses of the Act for and during tlie terms ami within the mining divisions for which they are appointed. 8. Xo person shall be appointed or authorized to act as an in- spector who practices, or acts, or is a partner of any person who ai is as a mining agent, or who is employed by the owners of or is iutcr- eeted in any mine. )ivision 1 officer and ox- iwilh ro- or about 1 writin,^ ri, or -viv Uc povinA cxamiiia- inspcftor, :eof lip t" specter t'l e peace i>l! . a luiuin;^ n wliicli or iig divisi'iu 1 aii^pul.'* nj>; claims water ami rs or (111 ■" of the iii- (M'wise lirn- ntcd unil'H- )c romo\''d under llio ted in If fo'.ir; ; and ]«'.u v^ terms ami k as an in- lon win) arts or is inter- KLUVLATIONS FOR MINING DIVISIONS (ONTARIO) 83J 9. The Director of tlic Bureau of Mines sliall have all the powers, riglits and autliority tlirougliout the Province which an inspector has or may exercise in any mining division, and sucli other powers, rights and autliority for the carrying oxit of the provisions of the Mines Act as shall be assigned to him by regulation. 10. Xo Director, inspector or other ollicer a})poijitcd under the ]\Iines Act shall directly or indirectly purchase or become interested in any C*rowii lands or mining claim; and any such purchase or in- terest shall be void; and if any odicer violates this regulation lie shall forfeit his oflice and be liable in addition to a i)enalty of $500 for every such oil'ence, to be recovered in an action by any person who sues for the same. 11. The Lieutenant-Governor in Council may liy Order declare any tract of country therein described to be a mining division; and by any subsequent Order in Council may add to or diminish the limits of the division, or may otherwise amend any such Order, or may lancel the same. 18. On ]iaymeut of a fee of $10, or such other sum as may be fixed by regulation, the Director of the lUirean of ^Finos (or the in- spector of a division when so authorized by the Commissioner of Crown Lands) may grant to any person, registered partnership, or mining company incorporated under the laws of the Province ajipl}'- iiig therefor a license to be called a " miner's license,'' Mliich shall be in force for one year from the date thereof, and shall not be trans- fcralile except witli the consent of the Director of the Bureau or the inspector of the division. i;^. The person, partnership or coniiiany named in a license shall be called the " licensee," and upon payment of the fee fixed by law or regulation, and production of proof under oath that the mining con- ditions have been duly jierfornied u])on the claim or claims staked out and held, such licensee shall have the right to renewal if aj^idica- tion is made therefor before the expiration of the license or within leu days thereafter, 11. Every licensee shall ]m)duce and exhibit his license to tl\(> inspector for the division, and ]n'ovc to the satisfaction of the inspec- tor that it is in force, at the time of recording his claim, and at any other time when required by the inspector so to do. 15. A miner's license shall authorize the licensee to explore anv portion of the mining division named in his license, and to mine dur- iH i * 'I I 83G APPENDIX I. ing one year from tlic date of the license on any mining claim marked or staked out by such licensee on Crown lands, and he may employ any person to assist him in working such claim, or may organize a company to work the same, and in either case the working conditions shall he deemed to be complied with Avhen the equivalent of one man's hibor for the year in actual mining has been performed as hereinafter required; but no licensee shall have the right to cut down or usi; any timber which may be upon his claim except for purposes of build- ing, fencing or fuel, or other purposes necessary for working the mine upon the said claim. IG. A licensee who discovers a vein, lode or other deposit of ori; or mineral in ])lace within the division mentioned in his license shall liave the right to mark or stake out thereon a mining claim, providin.;' that it is not included in a claim occupied by another licensee, or is not on Crown lands withdrawn from location or exploration, or on hinds the minerals and mining rights whereof have been reserved iiv the Crown; and he shall have the right to work the same, or he may transfer his interest therein to another licensee upon payment of a fee of $5 to the inspector of the division, who shall record the trans- fer in his book. 17. If the working conditions have been complied Avith as heiv- innfter required for a period of three years on a claim of twenty chains square, or for two years on a claim of fifteen chains scpiaro or less, or when the equivalent of such working conditions has bopii com])lied with in a less period of time in the respective cases, the licensee may apply for and obtain a patent or lease for the land em- braced in the claim, free from any further working conditions, upon a survey thereof being made and filed according to section 27 of " Tlio Mines Act," \\. S. 0. 1897, and upon payment therefor to the De- partment of Crown Lands of the purchase price or first year's rcnial at a rate per acre as provided in sections 31 and 35 respectively of the said Act; and the time when the royalties may begin to be v.w- posed or collected upon ores or minerals mined, wrought or taken from a claim so patented or leased shall be reckoned from the dale of recording such claim in the inspector's office. 18. A mining claim shall be marked or staked out by plantiiitr a discovery jiost of wood or iron (on which is written or stam])ed tlio name of the licensee, number of his license, and date of his discovon) upon an outcropping or show of ore or mineral in place within the boundaries of the claim, and by planting at each of the four cornois a post of wood or iron in the order following, viz.: ?^o. T. at the REGULATION a FOR MIXING DITIfllONf^ (ONTARIO) 837 north-east corner; No. II. at the south-east corner; No. III. at the soiith-wcst corner, and No. IV. at the north-west corner, the number in each case to be on the side of the post towards the post which fol- lows it in the order in whicli they are named. See fig. 1. 19. If one or more corners of a claim fall in any situation where the nature or shape of the ground renders tbe })lanting of a post or ]i0i?ts impracticable, such corner or corners may be indicated l)y placing at the nearest suitable point a witness post, which in that case shall contain the same marks as those prescribed for corner posts, Bl&zcd line Bla.z(d lint Fig No I. togctber with the letters " W. P." (witness post) and an indication of (lie Ijcaring and distance of the site of the true corner from such witness post. See iig. 2. 20. AVhcro there arc standing trees upon a mining claim so staked out, tbe licenseo sliall l)o required to ])]az;e tbe trees and cut (lio underl)rusli along tbe bouiulary lines ol" tbe claim, and also along a line from tbe first corner post to the discovery post. 21. A mining claim sliall bo a square of fifteen chains or DOO fiH't. borizontal measurement, containing tweniy-two and one-balf acres, or of such other extent, greater or less, but so as not to exceed 1! 1 |i I 838 APPENDIX I. a square of twenty chains or 1.320 feet, containing forty acres, and eliall be laid out with houndary lines running nortli and soutli and east and west astronomically, and the ground included in each claim shall be deemed to be bounded under the surface by lines vertical to the horizon; but an irregular portion of land lying between two or more claims may be staked out with boundaries conterminous thereto, provided that its area shall not exceed forty acres. A valuable wator- ])ower lying within the limits of a claim shall not be deemed as part of it for the uses ot the licensee. Bl&zed line 22. Xo more than one claim shall be staked out by any indi- vidual licensee n])on the same vein, lode or de])osit of ore or niineiiil, unless such claim is distant at least sixty chains from the nearcsl known inine, claim or discovery on the same vein, lode or deposit, but no licensee shall stake out and record in the same mining divisim', within a radius of fifteen miles, more than four claims in one calendar year. 2.1. For each additional mining claim after the first mnrked oi- staked out l)y a licensee, whether upon the same vein, lode or deposit, or upon another, he shall pay to the inspector of the division a dv of $10 a year in advance when recording the same if liio area is moio ! i > I I ! ItEOULATWMS FOR MINING DIVISIONS (ONTARIO) 839 than twenty-two and one-half acres, and $6 if it is twenty-two and one-half acres or less, and a like fee in each case shall be paid for every additional claim so held at the time of renewal of the license. 24. Every inspector of a mining division shall keep a book for the recording of mining claims therein, and such book shall be open to inspection by any person on payment of a fee of twenty cents. 85. Every licensee who has marked or staked out a mining claim shall, within thirty days thereafter, supply under oath to the inspec- tor of the division an outline sketch or plan thereof, showing the dis- covery post and corner posts, and the witness posts (if any) and their distances from each other in feet, together with a notice in M'riting setting forth under oath the name of the licensee and the number of his license, the name (if any) of the claim and its locality as indi- cated by some general description or statement, the length of the boundary lines if for any cause they are not regular and the nature of such cause, the situation of the discovery post as indicated by distance and direction from the first corner post, the time when dis- covery of ore or mineral was made and when the claim was marked or staked out and the date of the said notice; and every licensee shall accoii pany his sketch or plan and notice with an atlidavit showing the discovery of valuable ore or mineral upon the claim by or on behalf of such licensee, and that he has no knowledge and has never heard of any adverse claim by reason of prior discovery or otherwise. 26. The inspector shall forthwith enter in his book the particu- lars of the notice of claim presented by every licensee, and shall lile the notice, sketch or })lan and alUdavit with the records of his office, and if there is no dispute as to the rights of the licensee to the claim by reason of prior discovery or otherwise, the inspector nun' at the expiration of ninety days from the date of the record thereof grant to the licensee a certificate of such record. 27. If the licensee fails to comjjly with the provisions of regula- tion 25 so far as they relate to him, or if, having complied with them, he or any person in his belialf shall remove any post for the purpose of changing the boundaries after the plan and notice have ])Ocn tiled, the mining claim marked or staked out by him shall be deemed to bo forfeited and abandoned, and all right of the licensee therein shall cease. 28. A mining claim shall also be deemed to be forfeited and aban- doned and all right of the licensee therein shall cease in case the 1' ' M f r 840 APPENDIX J. miner's license has run out and has not been renewed, or if the an- nual fee for a claim has not been prepaid, or if actual mining opei'a- tions shall not be carried on upon each claim taken up except as pro- vided in regulation 2d for at least live months of one num's time, or an equivalent if more than one man is employed on the same claim, in every calendar yeai*. 2d. For every four claims or less held by the same licensee or by different jjcrsons agreeing to combine their mining operations witliiu a radius of one mile, all sucli mining operations may be carried on upon one of the claims; but notice of an intention to carry on sueli oiierations must be filed with the inspector, and a record of all mining operations carried on by a licensee during Iiis license year verified l)y oatli shall be iiJed with the inspector, who shall enter an abstract thereof in his book. 30. A licensee may at any time abandon a mining claim by giving notice in M-riting to the Inspector of the Mining Division of his intention so to do, and from the date of the record of such notice in tlie inspector's book all interest of the licensee in such claim shall cease. 31. A party wall at least fifteen feet thick (seven and one-haU' feet on each side of the boundary lines) shall be left between adjoin- ing claims on Crown lands, which shall be used in common l)y all parties as a roadway for all purposes, and shall not l)e ol)structe(l hy any person throwing soil, stone or other material thereon; and if it is found necessary or cx])edient to remove such party wall the person so removing it shall if required construct a new roadway in no wia' more difficult of ajjproach than the one destroyed by the removal of the party wall; and every ])erson obstructing a party wall or failing to construct a new roadway in place of the one destroyed shall 1)0 liable to a fine of not more than $5 and costs, or in default to bo imprisoned for any period not exceeding one month. 32. Xo person mining upon Crown lands shall cause damage or injury to the holder of another claim, by throwing earth, clay, stones or other material thereon, or by causing or allowing water to flow into or upon such other claim from his own, under a penalty of not more than $.') and costs, aiul in default of payment he may be im- prisoned for any period not more than one month. 33. Any jierson wlio removes or disturbs witli intent to reninvo any stake, picket or other mark placed under the provisions of the liEGULATWMS FOR MJXING DIVISIONS (OyTARIO) 811 i\lincs Act shall forfeit and pay a sum not exceeding $::iO and costs; and in default of payment may be imprisoned for any period not exceeding one month. 34, Any i)crson contravening Part III. of the Mines Act or any rule or regulation made under it, in any case where no other penalty or punishment is imposed, shall for every day on which such con- travention occurs, or continues, or is repeated, incur a line of not more than $20 and costs; and in default of payment nuiy be im- jirisoncd for a period not exceeding one month. 35. Every person wlio pulls down, injures or defaces any rules, notice or abstract posted up by the owner or agent of a mine shall be guilty of an offence against the Mines Act. 3G. Every person who wilfully obstructs an inspector in t!io execution of his duty under the Mines Act, and every owner or agent of a mine who refuses or neglects to furnish to the inspector the means necessary for nuiking an entry, ins])ection, examination or enquiry under the Mines Act in relation to such mine shall be deemed to l)e guilty of an oifence against the Act. 37. Every inspector of a Alining Division may convict u])on view of any of the oifences punishable under the provisions of I'art III. of the Klines Act or any regulations nuide thereunder. 38. The Lieutenant-Ciovernor in Council nuiv, as often as occa- sion requires, declare by proclamation tluit he deems it necessary tliat the Act respecting Kiots near Tublic Works (H. S. (). 1897, c. 38,) shall, so far as the provisions therein arc applicable, be in force within any Mining Division; and upon and after the day to l)e named in any such ])roclamation section 1 and sections 3 to 11 inclusive of tlie said Act, so far as tlie })rovisions thereof can bo aj)i)lied therein, shall take elfcct within the Alining Division designated in the proclama- tion; and the provisions of the said Act shall apply to all persons employed in any mines, or in mining witliin the limits of such divi- sion, as fully and ellVi'tually to all inli'uts ami purposes as if the per- siins so em|)]oyed had been specially mentioned and referred to in the said Act. 39. All the ])rovisions of Part IV. of the :Mines Act, IJ. S. C). 1897, lieing the part under the heading of Mining Regulations, shall npiily in every particular to all mines and other ojienings from which ore or mineral of any kind or class is raised or taken, and to all works I I 842 APPENDIX I. for smelting, nulling or otlierwitjo treating ores or mineral for any economic object, which are situated within the limits of a Mining Division. Extracts Fuom the Mining Laws. Section l."> of an Act relating to Mines aiid Mining Lands (oT Vict. c. 16): 15. The Commissioner of Crown Lands may, ont of the nionev-f voted for that i)iirj)ose, purchase not more than two diamond drills to he nsed in exploratory drilling of ores or minerals in the I'rovinci'. under rules and regulations to be made by the Lieutenant-GovenuM in Council. The Regulations shall, amongst other things, provide : (1) For the control and working of the drills under the direction of a person or persons employed for the purpose by the Bureau oL Mines. (2) As to the payment of freight charges where the drills aiv, used upon mines or laiuls other than those owned by the Crown; (;5) As to the aj)])licati()n for the use of the drills ami the metliorl of dealing therewith; (4) As to the charges for the use of the drills and for damage^ thereto, or wear or tear connected therewith, and otherwise as to the Lieutenant-CJovernor in Council shall seem meet. Rules and Regulations fou the Conthol and Working of Diamond Diiills. A])proved by His Honour the Lieutenant-(iovernor, Septemher l'.. 181)1, and April 9, 1890. 1. The "Rureau of ]\Iines may employ diamond drills to explmv ])ublic and private lands in the Province for ores or minerals subject to the following rules and regulations, made under authority of " Th.' Mines Act, 1892," and the amending Act of 1894. 2. The Commissioner of Crown Lands may request a skillcil and competent person to examine any locality or territory of tlic 1 j i( DJAMOXD DRILL REOULATinXf! (OyTARIO) 848 ])ul)lic lamls of the Provincp, and upon roceivinfj; a report of a roason- iiblo pr()S[icct of ores or minerals being found thereon l>e may require an exploration of the lands to be made with a diamond drill, and may (leal with them as provided in the third elause of section 13 of '' The Mines Act, 18!)2." 3. The Commissioner of Crown Lands nuiy grant the use of a drill to explore mines or mineral lands in the Province owned or leased by any corporation, com])any, syndicate, firm, person or per- sons when ajtplication is made therefor in writing to the Director of the Bureau of Mines, subject to the following terms and conditions, viz. : — The applicant or ap[)licants to give a bond in the form of Schedule A hereunder, or to the like ell'ect, with sullicient sureties, or other security to the satisfaction of the Commissioner, for i^ayment to the Treasurer of the Province at Toronto of costs and charges for — (1) Carrying the drill and all necessary plant to the mine or h)cation and setting the same in place for running under proper cover; (2) Working the drill, including superintendence and labour, fuel and water; (3) Loss or breakage of bits, core lifters and core shells; (4) Wear or loss of diamonds, to be ascertained by weight and computed at an advance of ten per cent, upon cost price, to cover unusable fragments; (5) Other re])airs of breakages and wear and tear of ma- chinery, such sum per niontli as shall be estimated and certified by the mechanical manager, subject to appeal to the Director of the Bureau of Mines; (fi) Together with an additional charge of fifty dollars per month for use of the drill f.'om the date of rejiort to the Commis- sioner tiiat the mine or land has been shown through the use of tlie drill to be a valuable mineral pro^jerty, where work is con- tinued thereafter. All such costs and charges firstly above mentioned to be jiaid within one iiuuith from the date of ]uitting the drill in ])lace ready for operation, ami all other costs and charges at the end of each and every month thereafter during the continu- ance of the M'ork. 814 APPENDIX I. But to encourngo llie exploration of mines and mineral lands am' to doMionstrato the utility of diamond drills in sueli worlc, it is provided that fifty per cent, of the agj^n-egate of costs and charges aljove enumerated (except as to the charge mentioned above in nuiii- her (!), shall lie liorne by the I'liireau of .Mines in 18!) t and l.SIC), forty-live per cent, thereof in 18!)() and 1S!)7, and thirty-live per cent, thereof each year thereafter until the end of the year liino. Nevertheless, no part of such costs and charges sindl he home or assumed hy the JJureau of ]\Iines after a report has been made to the Conniussioner by the Director and ({eologist and Mineralogist ol the llureau, based U])on exanunation of the cores of the drill, :nii| other satisfactory evidence, showing that the mine or mineral lainl under exj)loration has been proven by the use of the drill to be a valuable mineral property. 4. Ai)plications for use of drills will be dealt with in the order of the date of receipt; but satisfactory evidence may be required in show that there is a reasonable pros]iect of valuable ore or mineral being found upon a property before the granting of a drill to exjiloiv it is sanctioned by the Commissioner of Crown Lands. The Com- missioner may also in writing give precedence to a later ai)plicaliini where in the case of an earlier one there is neglect or delay in com- pleting the preliminary arrangements, or (to prevent loss of time and extra cost of transportation) where two or nmre applications are from the same or a contiguous locality, but in such case he shall state in writing the reasons for giving such precedence. The J^ieutenani- Uovernor in Council nuiy also give precedence to an ai)[>licalion in explore a recent and promising discovery of ore or miiu'ral where ii ai)])ears to be in the public interest that a speedy test should be made, or where substantial exploratory or mining work is being carried on, or for such other special reasons as may appear to best serve and ])n)mote the interests of mining in the J'rovince, and in such ca-c the Order in Council shall set forth the reasons for giving such pre- cedence. 5. The Commissioner of Crown Lands nuiy upon the report of the Director of the lUireau of Mines suspend or terminate the work- ing of a ilrill at any time, and the corporation, company, syndicalf, firm, ])ers()n or jiersons for whose benetit such drill was being uscil, shall not have any claim to compensation on account of such suspen- sion or termination. (I. A competent mechanical manager appointed by the Men- teiiant-Goveriu.)r, upon such terms as to a trial and otherwise as may VlAMOi\D DRILL h'KdlLATIOSS (DM'MtlO) 845 be (liH'iiiod (k'siralilo, slinll liavo the control iiiid uorkiii;;- of fadi drill, sid)jt'c-t to tlii' iiiHtnietioiis of the Director of the liurcau of Jlines, and shall I)(! responsilile for the cHicieiit and ccononiie work- ing of flic drill, and for tiie care and safe Isecpinj^ of the drill, hoiler, jiuinp, e(|nii)nient and stores, lie shall also lie rei|uiri'd — (1) To have oversight of the hoiler, conduct the running of the drill, set or relit the diamonds when necessary, keep an accurate daily record of tlii' pi'ogress of liorings, and preserve the cores in ho.xes supplied for the |)nrp()se in such a way as to show a complete and continuous section of the rocks, forma- tions, veins or mineral deposits so ex|ilored; (2) To superintend transportation of the plant and its re- moval from one site to another, to set it up in a jiroper manner where horings arc re(|uired to he made, and to erect a snllicient cover for the drill and hoiler so that operations may he carried on in any weather; (3) To act upon the advice of the person authorized to mark the site and indicate the course of each boring and the tlepth to which it shall be continued, unless otherwise instructed by the Director of the Bureau of Minos; (4) To keep an accurate and detailed account of all expenses of transportation, labour, re])airs, fuel, sup])lies, etc., re(iuired in connection with the employment of the drill, and to make a report thereof monthly to the Director of the Bureau, and to transmit therewith all bills and vouchers for the same; (5) To make a weekly report of ])rogress to the Director of the liureau while in the field, and to report forthwith any stoppage of operations due to accident or other causes; (()) To make a detailed re])ort to the Director of the Bureau of the operations of each year. 7. The mechanical manager shall not impart or reveal the know- ledge or information acipured by him in exjdoring with the drill, nor exhibit the cores and cuttings of the drill, except to the Direc- tor of the Bureau of Klines, or to any jierson whom the Director may designate in writing, or to an authorized agent or reiiresentative of the corporation, company, syndicate, firm, ])erson or ])ersons for whom the proj)erty is being explored, and he shall dis])ose of the cores and cuttings of the drill only as he nniy be instructed by the Director. 840 APriJSDlX J. 8. Till' iiiecliaiiicHl iiuinngcr hIiuU give a Ijond witli sullicioiit sui'L'tk's or other ut'i't'i)(al>li' sociirity in the huiii of not Ichh than one tliousand doUarf, I'or tho faithful pcrforinanco of his duties as nie- cluniiiiil iiiana^'er and for the ri^dit care and use of the plant, e({ui|)- ment uiul stores placed in liis charge. {). The CoMiniissioner of Crown Tiands uiny, when nooessarv, einjdoy a (irenian to assi' t the mechanical nianaj^er in operating,' each drill at such rate of \vaj;es and allowance for e.\|)enses as may In' ajjreed upon for the ])eriod of his employment in the Held, reckoned from the day of ^^)in<; out to the day of returninjj, and the person so aitpointed shall, in all matters appertaining^ to his dr.ties, he suh- ject to the orders of the manager. Hi ItFOULATIOXS TO (JoVKUN I'AVMKNTS Ol'T OF THE luoX I\llNIN(i Fr\l), ClIMTKU 10, SS. 11, 12, 1.3 AND 14, 57 VlCT., ClIAI'Ti:i! i;},s. (i, 5!> Vict. .\i)proved hy Order of the Lieutenant-(!overnor in Council, daliij l^")th April, ISDC. 1. The Comnnssioner of Crown l/mds may ajipoint a eompetoiil person to analyze for their metallic contents all iron ores upon whii h hountics may he claiuu'd for payment out of the Iron Mining ImiihI, as ])rovi(h'd by sections 11, 12, 13 and 11, ehajiter K! of ^u N'ic,., and section (>, chapter 1.'5 of o!) Vict., and such person shall scIihI for this ])urpose fair average samples from the ore ])iles at the minis or from the cars or stockhouse after delivery at a blast furnace in tln' Province, and shall rejHirt thereon for the lots of each nuner or pm- duc(>r of ore separately to tho Director of the I^ureau of Mines, and ])ayments ont of the fund may be made by the Treasurer of the I'rd- vince pro rala according to sucli analyses, based on the total (luantity of ore snu'lted in the furnace and of the pig or metallic iron ])yn- duet thereof. 2. The miner or producer of ore who proposes to make a claim upon the fund sliall notify the Director of the Bureau of Klines of Ills intention so to do at least one week before shipment of ore i^ made to a blast fnrnaco in the Provinco, and snbseqnently when sncli shipment has been made, in order that samjdes th(>reof may be ])rn- cured, and in fding his claim for ])ayment ont of the fund, wliidi JUON iHM.SU FU\U UlJULLATloyH HI? ho hIuiU do on or hcforc tlio lirst day of DecL'mhL'r in ciuli year, witli a statutory di'rlaration of the corrootm,'«,H tliereol', lio shall uc- cojiipany tlu! saiiu! with a ccrtilitMl statciiit'iit (also vrriliod hy a statu- tory di'claration of the c-orroctiu'ss tliorcof) from llu' luaiuiger or su]K'riiitt'n ores, the jiroduct of mines situate outside of the Tro- unce of Ontario, arc used with those of Ontario uiiiu>s, the manau'er or superintendent of any hlast furnace usin;; such ores shall notify llie Director of the IJureau of Klines in order that samples may he lid\en of the various kinds and firades of such other ores for analysis, iiud shall on or l)efore the first day of l)eceml>er in each year furnish a stntemcijt (verilied hy statutory declaration) of the total (luantities (if ores snudted in the furnace durinji the twelve months cndinj^ ;ilst liny of Octoher next precediiif;, distinjiuishinjf those of each of the Ontario nums from all others, and also of the ]n'^ or metiillic iron [ii'oduct of all such ores, and i»ayuu'nts out of the fuml U[>on such ores the product of Ontario mines may be made hy the Treasurer of the I'roviuce to the parties entitled thereto as ])rovided in the lirst rci^ailation hereof. ■I. Or if the owner of the hlast furnace has re;];ularly in his em- ploy an analyst, whose duty it is to make analyses of all ores smelted ill the furnace, th(> Commissioner of Crown Tiands may at his option iiuree with the miner or jtroducer of Ontario ores to accept such iiiialyses as the data for estinuitinf; the ]tiji: er metallic iron j)roduet iif all ores smelted at the furnace, whereon to compute ])ayments out (if the fund to mim'rs or ]»roducers of ore as provided in th(> (irst loiiiilation liercof; but tlie commissioner may reserve the ri. 7. Xo harbour or river improvement shall be made under (his Act, or any property taken therefor, so as to interfere with the navi- gation of the harbour or river, or until the proj)osed ])lan and extent thereof, and of the works therewith connected, have been submitted to and aiijirnved by the Lieutenant-Governor in Council; luit tlie ]dan may afterwards be altered and extended with such consent and approval". R. S. 0. 1887, c. 1G3, s. 7. R. S. 0. 1897, c. 197. An Act respecting the Incorporation and Regulation of .Mining Coinpanies. ER Majesty, by and with the advice and consent of the Legisla- tive Assendjly of the Province of Ontario, enacts as follows:— H L This Act may be cited as " The Ontario Mining Compan- ies Incorporation Act." 2. The Iii('utenant-(iovernor in Council may, by letters patent under the great seal, grant a charter under the Ontario Compniiii's Act, to any number of persons, not less than five, who shall iietitinu ONTARIO MINING COMPANIES INCORPORATION ACT 851 therefor, constituting such persons, and others who may become share- holders in the company thereby created, a body corporate and politic, for the purpose of carrying on within the Province of Ontario, or any of the counties and districts therein, the business and operations of a mining, milling, reduction and develoi)ment company, or such busi- ness and operations as shall be set forth in the letters patent. Is derived from 1874, c. 35, s. 3, omitting after " charter " on 2nd line, the words " under The Ontario Companies Act," and omitting all ;he words after the word " for " on Cth line, and reading therefor, " any purposes or objects to which the legislative authority of the Legislature uf Ontario extends, except the construction and working of railways and the business of insurance." This is continued in 1877, R. S. O. c. 150, s. 3, and is also continued in 1887, R. S. O. c. 157, s. 4, adding after the word " insurance " at end of section, the words " other than as provided by section 4 of the Ontario Insurance Act," R. S. O. 1877, c. 150, s. 3, and remains unchanged until enacted In 1897, c. 29, section 2. 3. Eveiy such company shall, if the letters patent permit, have ]mwer for its mining, milling, reduction and development operations only: (a) To prospect for, open, explore, develop, work, improve, main- tain, and manage gold, silver, co])per, coal, iron and otlier mines, min- eral and other deposits and j)roperties and to dig for, raise, crush, wash, smelt, assay, analyze, reduce and amalgamate and otherwise treat ores, metals and minerals, whether belonging to the company or not, and to render the same merchantable, and to sell and otherwise disi)ose of the same, or any part thereol', or any interest therein; (h) To acquire by purchase, lease, concession, license, exchange or other legal title, mines, mining-lands, easements, mineral proper- ties, or any interest therein, minerals and ores and mining claims, options, jjowcrs, privileges, water and other rights, patent rights, letters patent ol" invention, ])roccsses and mechanical or other con- trivances, aiul eitlier absolutely or conditionallv, and either solelv or jdintly with others, and as principals, agents, contractors or otherwise, and to lease, mortgage, ])lace under license, hypothecate, sell, dispose of and otherwise deal with the same or any part thereof, or any in- terest therein; (c) To construct, maintain, alter, make, work and operate on the property of the company, or on ]iroperty controlled by the company, tramways, telegraj)!! or telephone lines, reservoirs, dams, ilumes, race and otlier ways, water-powers, aqueducts, wells, roads, i)iers, w1 .rvos, buildings, shops, stamping-mills and other works and nuichincry, plant, and electrical and other appliances of every description, and to buy, sell, manufacture and deal in all kinds of goods, stores, im- 1} \ I'l I' i I' 852 APPENDIX I. plenients, provisions, chattels and elfects requirecl by the company or its workmen or servants; ((/) To build, acquire, own, charter, navigate, and use steam and other vessels; (c) To take, acquire and hold as the consideration for ores, metals or minerals sold or otherwise disposed of, or for goods sui)i)lied, or for work done by contract or otherwise, shares, debentures, bonds or other securities of or in any other company having objects similar to those of a comjiany incorporated under this xVct, and to sell or otherwise dispose of the same; (/') To enter into any arrangement for sharing profits, union of interests, or co-operation with any other person or company, carrying on or al)out to carry on any business or transaction which may be of benefit to a comj)any incorporated under this Act; (g) To purchase or otherwise ac(|nire and undertake all or any part of the assets, business, pro])erty, privileges, contracts, riglits, obligations aiul lia])ilities of any person or company carrying on any part of tlie l)usiness which a company incori)oratcd under tliis Act is authorized to carry on, or poseessed of projierty suitable for the pur- poses thereof; and, (//) To subscribe for and take and hold shares or stock in any company incorjjorated as provided by section 1(5 of this Act for llio pnrpn.-e of acipiiring, holding, constructing, maintaining, and keei)ing in repair roads, ])ridges, improvements in waterways, or other means of communication, and drainage works, and other improvenu'nis, upon, through, over or adjacent to, or leading to or from the lands of a company incorjiorated under this section; Provided, that the con- sent of the shareholders shall be first obtained by resolution passed at a special general meeting called for that purpose. (i) To do all such acts, matters and things as shall bo incidenfnl or necessary to ,lie due attainment of the above ol)jects, or any of Iheni. -U (, SPECIAL PROVISIONS RKSPECTING MINING COMPANIF" 4. — (1) Xotwithstanding anything to the contrary in the On- tario Companies Act contained, the letters patent incorporating a mining < ompany under this Act may, if the petition of the apidii-ants so re(|nires, contain a provision that no liability in excess of tlip amount actually paid, or agreed to be paid, to the company for sliarofs therein shall attach to any holder of such shares, provided, Iiowevor, ONTARIO MINING COMPANIES INCORPORATION ACT 853 thiit no such shares shall be issued at a discount, or any rate other than had previously been sanctioned by the company, unless ex- pressly authorized by a by-law of the company fixing and declaring the rate of discount and any other, if any, terms and conditions of issue; and further provided that a copy of sucli by-law shall, within twenty-four hours after the by-law was sanctioned, be by registered let- ter transmitted to the Provincial Secretary, and that such copy shall be verified as a true coj)y by the joint alTidavit of the ])resident and secretary, and if there are no such ollicers, or they, ir eitlicr of them, arc, or is, at tlie projjcr time out of tins Province, or otherAvise unable to make the same, by tlie allidavit of the president or secretary and one of the directors, or two of Ibc directors, as tlie case may require; and if tlie president or secretary does not nuike or join in the aindavit, the reason tliereof sludl be stated in tlie substituted allidavit; and any company wliich refuses or fails to comply witli the provision of this .-^ectiun, relative to the transmission of a copy of the by-law to the Provincial Secretary, isliall incur a jieiialty of $20 for every day during which the default continues. 57 Vict. c. IG, s. 18. No personal liability, etc., is derived from 1894, c. 16, s. 18, in the following abbreviated form: "Where application is hereafter made to the Lieut.-Governor in Council for the incorporation by letters patent under the Ont. J. S. Companies L. P. Act, of any Company for mining purposes, such letters patent, may, if the petition of the applicants so requires, contain a provision that no liability beyond the amount actually paid upon stock in such company, by the subscribers thereto or holders thereof, shall attach to such subscriber or holder," and is first enacted in its present form in 1897, c. 29, s. 4 (1). (2) Where letters ](ateiit incorporating any such conijiany have hecn granted with tlie provisions mentioned in this section, ev(}i7' stock certificate issued by the company shall bear upon the face thero- pf, distinctly written or iirinted in red ink, after the name of the cnnipany, the words, '* Incorporated under The Ontario Alining C'om- ]iaiiies lm'(U'poration Act," and where such stock certificates are issiu^d in respect of sliares subject to call, the words "Subject to Call""; or if in respect of sliares not suliject to call, tlie words " Xot Subject (o Call,"' as the fact sliall be. 57 Vict. c. Ifi, s. 10. 1894, c. 16, s. 19, read after " been " cm 2nd line, and before issued " on 3rd line, the words " issued containing the provision men- ticinod in section 18 of this Act, every certificate of stock "; and omit all words after " under " at end of 5th line, and read " section 18 of an Act relating to Mines and Mining Lands," " and where such stock iu issued subject to further assessments the word ' as.sessable,' or it not suljjoct to further assessments the word 'non-assessable' as the case may be," and is enacted for first time in its present form, 1897, c. 29, s. 4 (2). 854 APPENDIX J. (3) Every mining company, the chartci' of whicli contains the said provision, sliall have written or printed on its charter, prospectus, stock-certificates, l)onds, contracts, agreements, notices, advertise- ments and otiier ollicial i)ul)lications, and in all bills of excliange, promi^^sory notes, endorsements, cheqnes, and orders for money or goods purporting to I)e signed by or on behalf of the company, and hi all l)ills of i)arc('ls, invoices, and receipts of the company, imuic- diately after or under the name of such c()nii)any, and shall have on- graved upon its seal the words " Xo Personal Jjiability "; and every such comjiany which refuses, or knowingly neglects to comply wilh this provision shall incur a penalty of $20 for every day during whidi such name is not so kept written or printed; and every director and manager of the company who knowingly and wilfully authorizes or permits such default shall be liable to the like penalty. 57 N'ict. c. k;^ s. 20. " No personal liability to appear " Is derived from 1894 c. 16, s. 20. On 10th lino this section reads " non-personal liability,"and read " section " for " provision" on 12th line; in all other respects it is the same as 1897, c. 29, s. 4 (3). (4) In the event of any call or calls on shares in a company so incorporated remaining unpaid by the holder thereof for a period ol' sixty days after notice and demand of payment, such shares nuiy be declared to be in default, and the secretary of the company may iid- vertise such shares for sale at public auction to the highest bidder f(ir cash by giving notice of such sale in soni»' newspaper published ul llie l>lace where the principal ollice of the comj)any is situated, or in case no new.spaper is ])ublished thereat, then in a newspaper ])ublislie(l in the nearest i>lacc to said ollice, for a period oi one month; and sail] notice shall contain the mnnbers of the stock-certilicate or stork- certidcatcs in respect of such shares and the nuiul)er of shares, IIk^ amount of the assessment diw and unpaid and tlie time and phuc of sale: and in addition to the puliliiation of the notice aforesaid, noiicc thall be personally served upon such shareholder by registered Icltci- mailed to his last known address; and if the lioldcr of such shaivs shall fail to ]iay the amount <\\w u])on such shares with interest up^n the same and cost of advertising before the time fixed for such sale, the secretary shall proceed to sell the same, or such portion thereof as shall suflice to pay such assessment, together with interest and co^t of advertising: provided tliat if the i)riee of the shares so sold exceed the amount due with interest and costs thereon, the excess thei'eoL' shall be jmid to the defatdtiiig shareliolder. 'u \\v\. e. !(!, s. ^;l. 1874, c. 35, 88. 29, 30, 31 and 32, provides for calling in instalnionts, and enforcing calls by action, and forfeiting unpaid shares, which may lie oyTARio Mixiya companies incorporation act 855 disposed of by by-law or otherwise, and while differing in language pre- serves the chief features of 1894, c. 16, s. 21, which seems to be the origin of the section under review. Insert between " the " and " holder " on 2nd line " subscriber thereto or "; read " stock " for " shares " at beginning of 4th lino; read " stoclc " for "shares" on 5th line; and on 11th and 12(h lines read "certificate" and "certificates" only. Instead of "stock certi- ficate" and "stock-certificates"; and on 16th line read "stockholder" instead of " shareholder"; and on 17(h line read "subscriber or holder of such stocjf," instead of "holder of such shares"; and on 18th line read " stock " for " shares." Otherwise same as in 1897, c. 29, s. 4 (4). (5) Xo sliarelioldor in any coiiipaiiy so incorporated sliall be personally liable for non-payment of any calls made upon his shares, nor shall such shareholder be personally liable for any del)t contraeled by the company or for any sum payable by tlie company. 5? N'ict. e. l(j, s. 23. Derived from 1894, c. 16, s. 22; add between "shareholder" and •' in," on 1st line, the words " or subscriber for stock "; read " stock " for "shares" begirning of 3rd line; and add between "shares" and "the," on 3rd line, " beyond the forfeiture and sale in the event of non-payment of such calls of the amount, if any, already paid on the stoclv held or subscribed for"; also inserting "or subscribers" between "shareholder" pnd "he" on 3rd line; and adding at the end of section the words "be- yond the amount, if any. ;jald by him upon such stoclt"; and appears for first time in its present form in 1897, c. 29, s. 4, s.-s. 5. 5. Xolwithslandinfi: anything to the contrary in The Ontario Companies Act contained, any niinin. Xotwithstandiiiif anylhin^r contained in this Act, the direc- tors of the company shall be jointly and severally liable to the labourers, servants and a])prentices thereof, for all debts not oxceed- iiii: one year's wages due for services performed for tlie company while they are such directors respectively; but no director shall be liable to on action therefor, nnless (he company has been sued therefor within one year after the debt I)ecame due, nor yet unless such director is sued thercftn- within one year from the time when he ceased to be such director, nor yet before an execution against the comi)any has been returned unsatisfied in whole or in i)art; and the amount due un such execution shall be the amount recoverable with costs against Hie directoi's. K. S. 0. 1887, e. 157, s. GS. Liability of directors for wages is derived from 1874, c. 35, s. 52. 1887, c. 157, s. 68. 1894. c. 16. s. 23," Notwithstanding anything contained in this ..\ct, the provisions of section 68 of the Ontario Joint Stock Companies' Letters Patent Act shall apply to jiny company incorporated imdcr this Act, and to the directors, labourers, servants and iipprontices thereof," and forms 18^7, c. 29. s. 6. 7. In addition to the facts to be stated in the returns required of companies incorporated under The Ontario roinjianic's Act, eviMv mining company . . . shall state the nundjcr of shares thcroin ONTARIO MJMya COMPANIES INCORPORATION ACT 857 !!okl or disposed of by the coinpiuiy iindor the provisions of this Act, or of any other Act, and tlie rate at whii-li such sliares were sold d,r disiiosed of, and shall fortiiwith furnisli such fiirtlior and other in- formation as shall at any lime he required hy the rrovincial Secrc- tiirv, or hy tiie Director of Klines, and any company which refuses or fails to comply with the provisions of this section shall, in addition to any other ]ienalty, incur a jjcnalty of $20 for every day during which ilofaidt continues. This section Is original, and is in addition to 1874, c. 35, s. 42 and sub-sections; also 1877, R. S. O. c. 150, s. 49, and sub-sections; also 1887, K. S. O. c. 157, s. 57, and sub-sections. 8. Xo share in a mining company shall he issued, sold, or he in imv other manner dispo.'ied of at a rate less than par, unless under tlic authority of a by-law passed by virtue of this Act; and any direc- \i)\\ ofTicer or agent of a company who acts in contravention of this f-wtion shall, on conviction thereof, he liable to a flue of $300 and to llu' costs of conviction, and in defaidt of payment of such fine and costs may l)e sentenced to imprisonment for a period not exceeding tliivc months. Selling sliares below par seems to be derived from 1874, c. 35, s. 24, part, which provides In general companies that no by-law is valid for sale of stoclc at greater discount or less premium until the same has been confirmed at a general meeting. This is continued in 1877, R. S. O. c, 150, s, 35; also in 1887, R. S. O. c. 157, s. 43, and appears in its present form for the first time in 1897, c. 29, s. 8. !l. Xo extra-provincial mining, milling, reduction or develop- ment company liaving its head otficc elsewhere than within this Pro- \iii('0, sl'.iill, cither directly or indirectly, sell or otherwise dispose of williin this Province any of its siuires, stock, stock-certillcates or other fci urities by whatsoever name known, unlei^s and until it shall have rrct'ived from the liieiitenant-Ooveruor in Conmil a license authoriz- ing it to sell and dispose of its shares and other securities, and any pt'ison who in contravention of tliis section acts for an unlicensed conijiaiiy shall, on conviction thereof, be liable to a fine of $'^0 per day for every day wl\ile he so acted, and, in case the fiiu> be not paid, -li ill in the discretion of the Court lie imprisoned for a period not ijxcceding three months. 10. Xo license shall he issued to an extra-i)rovincial mining, /nilling, reduction and development comjjany having its head olTico I'lscwherc than within this Province until the company shall have i.- ii 858 APPEXDrX I. eatisCicd tlio Dirootor of the Ikireau of Mines tlint it iias been duly inc'orporatt'd and tiiat it posscpsos the real estate, property and asscis, and tiiat it is carrying' on its operations on a scale and in a uianiicr to connniuid the conlidence of tlic public, and for this pin'pose the Director shall luivepowertoretjuireot' thcconipanysuch sworndoeu- inentary and otiier evidence us lie shall deem to he i-etpiisite in tlie premises, and ii])on a report that he is satisfied that Hie company is one which may he licensed under this section, and n[)on the recoin- niendation of the Provincial Secretary, the Lieutonant-CJovernor in Council may direct the issue of a license upon such terms and condi- tions as to him shall seem proper, and he may summarily revoke aii(| annul such license for any cause that to him shall appear to he sulli- cient. LIAlilLITY FOR KALSK STATKMEN'TS. 11. If any jierson in any return, report, certificate, halance-slui I. or other document required hy or for the purposes of this Act, wil- fully makes a statement false in any material particular, he shall lie lialilc on conviction on indictment to imprisonment for a term iiut exceeding six months, with or without hard labour, and on suinniiirv conviction to imprisonment not exceeding three months, with or withont hard lal)our, and in either case to a fine of $100 in lien of or iu addition to snch imprisonment as aforesaid; provided that a per- son charged with an olVence under Ibis section may, if he thinks lit, tender himself to be examined on his own behalf, and thereupon may give evidence in the same manner and with the like clfect and con-i'- quonces as any other witness. 1874, c, 35, s. 40, provides that no officer shall make false entry in any book, or shall refuse or neglect to make any proper entry therein; penalty, criminally and civilly, liable for loss and damage. This is con- tinued in 1877, R. S. O. c. 150, s. 47, also in 1887, R. S. O. c. 157, s. 55, and appears for the first time in its present form in 1897, c. 29, s. 11. 12. "Where a ]irospectns, [advertisement, or any ])rinted or wiit- teu document answering the jnirpose of a prosjiectus. advertiscmont | or notice, (])ublished or circulated in Ontario], invites persons lo subscribe or ap])ly for shares, delienture stock of a company, or ullirr secnrities fby whatever name known or mentioned, of any niinimr. milling, reduction or exploration compiiny whatever |, every pcr-oii who is a director of the company at the time of the issue of th(> pro- epectns, fadvertisement] or notice, and every person who. liiiviiiL;- autliorized sudi naming of liim, is named in the prospectns, [advcr- ONTARIO MINING COMPANIES INCORPORATION ACT 850 liscnient] or notice ns a direi'tor of the coiiipnny or as having agreed to become a director of the company, either immediately or after an interval of time, and every promoter of tlie cnniipany, and every [ler- s,(iii who lias aiitiiorized tlie issue of tlie [irospeetiis, | adviTtisemeiit | or notice, shall he liaitie to pay to all persons so snhscrihing or ajtply- in" on the faitli of siuh prospectus or notice, com])ens*ation for the loss or damage they may have sustained hy reason of any untrue state- incnt in the prospectus or notice, or in any report or memorandum appearing on the face tlu'reol", or hy reference incorporated therein or issued therewith, unless it is proved, Liability for statements in prospectua, etc., is derived from 1891, c. 34, s. 4 (1), which embodies the same In a more abbreviated foriii, as 1S97, c. 29, B. 12. (d) With respect to every such nntruc statement not purporting to lie made on the authority of an expert, or of a ]»ul)lic ollicial docu- iiicnt or statement, that he had reasonahle ground to lielieve. and u]) t(i the time of the allotment or issue of the shares, dchenturc stork, aniniities on lives, or other scenrities, as the case nuiy lie, did believe thai the statement was true. Derived from 1891, c. 34, s. 4 (a), inserting between " storlf " and "or" on 5th line, the words "annuities on lives," otherwise identical with 1897, c. 29, s. 12 (a). (/() With respect to every sucli untrue statement purporting to be a statement by or contained in what purports to l)e a copy of or extract from a report or valuation of an engineer, valuer, accountant, or other expert, that it fairly represented Die statement nnnle by such engineer, valuer, accountant, or otlier expert, or was a correct and fair copy of or extract from the report or valuation. Provided al- ways that notwithstanding that such untrue statement fairly repre- sented the statement made by such engineer, valuer, accountant, or ntlier expert, or was a correct ami fair copy of or extract from the lejiort or valuation, such director, ])erson named, ])r()moicr, or other person, wlio authorized the issue of the pros]>eetns or notice as afore- >iii(l, shall be liable to i)ay compensation as al'oresaid if it lie piNucd tliiit he had no reasonal)le ground to believe that the i)ers(in making the siatement, rejiort or valuation was competent to nial authority or consent; or tlwit the prospectus, [advertisement | or iki- lice was issued without his i\no\vle(ljj:e or consent, and tliat on l)eeoii|. iii^f aware of its issue lie forthwith <;ave reasonahio pid>lie notice tliat it was so issued wiliiout his Ivnowled^'e or consent; or that alter the issue of sui'li ])rospeetus, [advertisement J or notice and before allol- inent or issue of the sluires, del)enture stocl<, annuities on lives, ^r other secnrities as the case may l)e, he, on becoming' aware ol' any iin- true stiitenient tiierein, withdrew Ids consent thereto, and caused rea- sonable public notice of such withdrawal and of the reason therefor, to be given. 54 Vict. c. 34, s. 4. Derivoil from 1891, c. 3t, s. 4 (o); omitting " ailvortlsemont " from stli line, and 9th line (2n(l); also omitting the word "advertisement" wliirc- ever it appears In this section; and inserting between "stock" and "or" on Kith line the words " Hnnuitles on lives"; and substituting "thereunder" for "as the case may be" on same line (IGth); in all other respects same as in 1897, c. 29, s. 12 (c). i;?. Sections IT, IS, 1<), '^^0, ;;>! and '>2 of the Act pass..! i„ the o^th year of Her Majesty's reii:n, entitled An Act relatiiiu- \„ !Mincs ami Mining' Lands, are repealed, and all nuning conipaiiirs. whether heretofore or hereafter incorporated under any general Ad in force in this Province, shall be sul)jcct to the provisions of this Art. Repeals 57 Vict. c. 16, s.-s. 17. 22. CO.MIVWIKS roK Ct)XSTRUCTI\G WOKKS OX MINING LANDS. It. — (1) {Subject to the ])rovisions of The Ontario Companies Act, the I.ieufenant-(iovernor in Council may, by TiCtters Patent im- dei- the (ireat Sea!, giant a charter to any inuuber of persons, not los than five, who shall petition therefor, constituting the said ])ersons and others who may become shareholders in the company theiiliv cnatcd a body corporate and politic for the purpose of acquiring, liolding. constructing, nmintaining and repairing roads, bridges, im- ])rovements in waterways, and other means of communication and drainage works, and other improvements upon, through, or over or adjacent to, or leading to or from, mining lands. Incorpor.ition of companies for constructicm of works on miniiis lands, together with sub-sections (2) (a), (b), (c), (d), (e), (f), is original. OyTAItlO MIS'I\(I COMPANIES I\CORI'ORiT!ON ACT HOl Historically reforonce Is niaile to 18(!4, c. 23, a. 1 and s.-s. I to 10, which is repealed by 1874, c. 35, s. 59; bcc alHO 1881, c. 18, s. 3, s.-bb. 1 to 5; soo nlso 1887. R. S. O. c. 157, b. 78, and sub-scclionB. (2) Kvery coinpiiiiy incorporutctl uiulor thin section sliall have power, i'or carrying out the oiijecls of incorporation only: (a) To construct, maintain and keep in repair, roads, bridges, waterways, drainage works and other hnproveinents and means ul' coniniuniciition, thr(nigli,(ner, or adjacent to, or leading to or from, mining lands. (b) To ac([iiire hy purchase, h'ase, concession, license, exchanuo or other legal title, and hold lands and other proi)ertics necessary for the construction of such works, and from time to time to sell and dispose of all such lands as may he found to be unnecessary or unsuitable for the purposes of the com- pany. (c) To demand and receive from jiersons and corporations for the use of such works, such fees and tolls as may be (Ixi'd by tlie company, subject to approval by the Lieutenant-(iov- enior in Council. {d) To build, acquire, own, charter, navigate and use, steam and other vessels. (e) To enter into any arrangements for sharing profits, union of interest, or co-operation with any other person or company, carrying on, or about to carry on, any business or transac- tion which nuiy be of benefit to any company incorporated under this section. (/) To do all such acts, matters and things as shall be incidental or necessary to the due attainnxjnt of the above objects or any of them. BoUNDAItlES OK NkW BkUNSWK^K. (See Houston's Const. Doe. p. 2r2.) " That New Brunswick shall be bounded on the west by tho boundary of the T'nitcd States, as traced by the Commissioners of Boundary under the Treaty of Washington, dated August, lS\'i, from the source of the St. Croix to a point near the outlet of Pech-la- il i' hi 862 APPENDIX I. M'ce-kaa-co-nios or Lake Bean, inarked A in the accomjianying co[)\- of a i)art of plan 17 of the survey of the boundary under the abino treaty; thence ^^y a straight line connecting that point with anotlier jjoint to be de> 'mined at the distance of one nnle due south from tlu' southernmost point of Long Lake; thence by a straight lino drawn [i> tlie southernmost point of the fiefs Jladawaska and Temiscouata, ainl along the south-eastern boundary of those fiefs to the south-east anglo of the same; thence by a meridional line northwards till it meets a line running cast and west, and tangent to the height oi; land dividing the waters flowing into the Kiver Himouski from those tributary tn St. John; thence along this tangent line eastwards until it meets an- other meridional line tangent to the height of land dividing waters flowing into the River liimouski from those flowing into the Resii- gouche River; thence along this meridional line to the 48th parallel of latitude; thence along that parallel to the Mistouche River; and thence down the centre of tlie stream of tliat river to the Restigouchc; thence down the centre of the stream of the Restigouche to its iiiomh in the Bay of Chaleurs; and thence through the nnddle of that bay to tlie Gulf of the Saint Lawrence; the islands in the said rivers ]\lis- touche and Restigouche io the mouth of the latter river at Dalhou^iu being given to Xew Brunswick." BouNDAiuEs OF Nova Scotia. (See Houston's Const. Dor.'ments, \) 272.) "To the northward, our said Province shall be bounded by the southern boundary of our Province of Quebec as far as the west- ern extremity of tlie Bay des Clialeurs ; to the eastward by the said bay, and tlie Gulf of St. Lawrence, to tlie cape or promontory called Cape Breton in the island of that name, including that island, ilie island of St. Johns, and all other islands within six leagues of ihe coast; to the southward hy the Atlantic Ocean from the said cape |i> Cape Sable, including the island of that name, and all otlier islands witliin 40 leagues nf the coast, witli all the rights, members and a])- purtcnances, whatsoever, thereto belonging ; and to the westward. although our said Province hath anciently extended, and doth ef right extend, as far as the River Pentagoet or Peno1)scot, it shall I>o bounded by a line drawn from Cape Sable across the entrance of the Bay of Fundy, to the mouth of the River St. Croix; by the said river to its source, and by a line drawn due north, from thence to the southern boundary of our colony of Quebec." ^ 'See Hali'liirton's History of Nova Pcotia, Vol. 11., pp. 1-2. lying copy the aboYo th another h from the lg drawn to 20Viata, ami i-ea?t an;iU' it meets a nd tlividiiig tributary to t mcetrt an- ding waters 3 the Resti- :8th parallel River; and Itcstigoiielic; to its moiuh f that l)ay to I rivers Mi- at I)alhoii-ie I. 1-2. li. C. WATER CLAUSES ACT 8G3 BOUXDAIUES OF BRITISH CoLUMlUA. 29 & 30 VICT. (IMP.) C. 67. CHAPTER LXVII. An Act for the union of the Colony of Vancouver Island with the Colony of British Columbia. [6lh Awjitst, ISGG.] Section 1. This Act may be cited as " The British Columbia Act, 1866." 7. Until the union, British Columbia shall comprise all such territories within the dominions of Her ^Majesty as are bounded to the south by the territories of the Ignited States of America, to the west by the Pacific Ocean and the frontier of the Russian territories in Xorth America, to the north by the sixtieth parallel of north latitude, and to the east, from the boundary of the United States nortl. wards by the Rocky Mountains, and the one hundred and twen- tieth meridian of "-est longitude, and shall include Queen Charlotte's Island and all oilier islaiuls adjacent to the said territories except Vancouver Island ami the islands adjacent thereto. 8. After the union, British Columbia shall comprise all the ter- ritories and islands aforesaid, and Vancouver Island, and the islands adjacent thereto. CHAPTER 190. (British Columbia R. S. 1897.) An Act to confirm to the Crown all unrecorded and unappro- l)riated water and water power in the Province, and to consolidate and amend the law relating to the acquiring of water-rights and ])rivileges for ordinary domestic, mining and agricidtural purposes, and for making adequate ])rovision for municipal water sup]dy, and for the application of water power to industrial and mechanical pur- poses. Whereas by the "Water Privileges Act, 189?," all water and water power in the Province, not under the exclusive jurisdiction t :■; !!'■ i'; 1,1 864 APPENDIX 7. i i of the Parliiuiiont of Canada, remaining iinrecortled and miappio- priated on the 23rd day of April, 1892, were declared to he veslud in the Crown in right of the Province, and it was hy the said Act enacted that no right to the permanent diversion or exclusive use of any water or water j)ower so vested in the Crown should after tliu said date he acquired or conferred save \inder privilege or power in that hehalf granted or conferred hy Act of the Legislative Asseml)ly theretofore passed, or thereafter to he passed: And whereas the "Land Act," the "Placer Mining Act, LSH!,'" and the "Mineral Act, 189G," contain i)rovisions aiitliorizini;- ; Ik,. f^i\ersion and use of water from natural water-courses^ and \\w acquisition of rights to the use of water upon the conditions a> to such acquisition and diversion in the said Acts contained: And whereas it is necessary and expedient at the i)res(Mit ses>inii. to provide for the due conservation ol; all water and wator-pni t so vested in the Crown as aforesaid, and to jn-ovide means wlu'iv!,v such water and water-power may be made availal)le to the fnll'^t possible extent in aid of the industrial development, and of ihe agricultural and mineral resources of the Province: And whereas for the furtherance of the purposes aforenaii!, it is exj)edient to enact an exclusive and comprehensive law govcniin- the granting of water-rights and ])rivileges, and to jtrovide and ii 'fil- iate the mode of acquisition and enjoyment of such privileges, ,iiid the royalties payable to the Crown in respect thereof: Therefore Iler Majesty, hy and with the advice and consoii of the Legislative Assembly of the Province of JJritish Coluiid)ia, ciiirN as follows: — ' SHORT TITLE. L This Act may be cited as "The Water Clauses Consolida- tion Act, 1897." ISilT, c. 4.-,, s. L INTERPRETATION. 2. In the construction and for the ])urposes of Ibis Act (if not inconsistent with the context or subject nuitter) the following tenns shall have the respective meanings hereinafter assigned to them:— "Cliicf Commissioner (if Lands and Works" sliall mean iinl include the Chief Commissioner of Lands and Works, and any pci-Hi for the iinie being lawfully acting in that capacity. (if ni>t J,' ti l'M\~ 'in: ■ail lUl'l V !» i-.m Ji. C. WATER CLAUSES ACT 8G5 " Coinnussioner " shall mean the Chief Commissioner of Lands and Works of this rrovince, or the person acting as sucli for the time being, and shall include every Stipendiary Magistrate for the time being in charge of any district, and every person duly author- ized by the Lieutenant-Cjovernor in Council to act as and for the Chief Commissioner of Lauds and Works, as Assistant Commissioner of Lands and Works in any district in which the land that may be referred to lies, other than that in which the chief ollicc of the Lands and Works Department is situated, and any other district or dis- tricts for which no such Assistant Commissioner of Lands and Works as aforesaid has been appointed. " Crown Lands '' shall mean all lands of this Province, held by the Crown without encumbrance. " Gold Commissioner " shall mean and include the person for llie time being holding the oilice of Cold Commissioner by appoint- ment of the Lieutcnant-Covcrnor in Council under the " Mineral Act," and having territorial Jurisdiction: ''Water" or "streams" shall include all natural water-courses, whether usually containing water or not, and all rivers, creeks, and }:ulches; and all water-power, not being waters under the exclusive jurisdiction of the Parliament of Canada. " Unrecorded water " shall mean all water which for the time being is not held under and used in accordance with a record under this Act, or umler the Acts repealed hereby, or under special grant ))y Pul)lic or Private Act, and shall include all water for the time bi'iiig unappropriated or unoccupied, or not used for a beneticial purpose. " Ditch " shall include a Hume, pipe or race, or other artificial means for conducting or diverting water. "Ditch-head" or "point of diversion" shall mean the point in ii natural stream or lake, or other source where water is first tak<;n into a ditch. " Kecord " shall mean an entry in some olllcial book kept for that purpose. "^line" shall include "claim" and ''mineral claim," and shall moan any land held or occupied under the previsions of the mininsc 55— M ii i ! 866 APPENDIX I. laws of the Province, for the purpose of winning and getting there- from ininorals, whether precious or hase; and whether held in fee simple or by virtue of a record or lease; and " owner of a mine "" shall mean owner of a mine as above defined. " Owner of land " shall include pre-emptor or other lawful occupant of Crown lands: " ]\Iunicipality '' s^hall include municipal corporation. " T^nincorporated locality'' shall moan and include any portion of the Province not exceeding two thousand acres in area, and not being or comprising a municipality, or portion thereof. "Siieeially incorporated company" shall mean a company in- corporated pursuant to the provisions of section 138 hereof." Tn defining any word or expression used in this Act relatinir to a municipality, or to municipal matters, and not by this section o\-- pressly defined, reference may be had to the interpretation sectioii of the " ^Municipal Clauses Act." Tn defining any word or expression used in this Act relating to mines and minerals, and not by this section expressly defined, refer- ence may 1)0 had to tlie interpretation section of the "Mineral Ad. 189(5," and of the "Placer Mining Act." 1897, c. 45, s. 2. Sec. 3 (not printed). i PART I. Confirming to the Crown all T^nrecorded Water. 4. The right to tlie use of the unrecorded water at any tim(> in any river, lake, or stream, is hereby declared to be vesied in ilii' Crown in tlie right of the Province, and, save in the exercise of any legal riglit existing at the time of such diversion or ap]M-opriutiiiii. no person sliall divert or appropriate any water from any river, walri- oourse, lake, or stream, excepting under the provisions of this Ari. or of some other Act already or hereafter to be passed, or excoj)! in tlie exercise of tlie general riglit of all ])orsons to use water for domestic and stock supply from any river, lake or stream vested in the Crown, and to which there is access by a public road or reserve. 1897, c. 45, s. 4. Jf. a. WATER CLAUSES ACT 8G7 5. No right to the permanent diversion or to the exehisive use o£ the water in any river, hilce, or stream shall be acquired by any rij)arian owner, or by any other person, by length of use or otherwise than as the same may be acquired or conferred under the provisions of this Act, or of some existing or future Act. 1897, c. 45, s. 5. G. The Lieutenant-Governor in Council may from time to time impose and reserve to the Crown, in right of the Province, such rents, royalties, tolls and cliarges in respect of the waters, or of tlie lands of the Crown and of tlie powers, rights and privileges, which may be acquired in pursuance of this Act, as by the Lieutenant- Governor in Council shall be deemed to l)e just and proper, and inay likewise malce and pass such regulations and rules as may be deemed necessary and advisable for the collection and enforcement of such rents, royalties, tolls and charges, or any of them: (a) Provided, that where by Order in Council such rents, royal- ties, tolls and charges arc fixed in respect of any power, right or privilege, the same shall bo permanent, for the space of three years next succeeding the passing of such Order in Council fixing the saine, and thereafter shall be subject to triennial adjustment, in- crease or decrease. PART II. T'lE Acquisition or "Water by Record for Ordinary Domes- tic, Agricultural, and Mining Purposes. 7. Every riglit, power, and privilege conferred by and acquired inuler this Act shall be subject to and conditional upon the reason- able use for the pur})oses for which such right, power, or privilege is conferred and acquired: (a) Provided that a mortgagee or encumbrancer shall, notwith- standing abaiulonment or non-user on the part of the mortgagor, under his mortgage or encumbrance, hold all records and water rights a|i[mrtenant to the lands or mine cliarged for such period as may be reasonable to enable him to realize his security; f.nd the question of what is a reasonable lime shall, in each case, be a question of fact dependent on the special circumstances, and to be doterminod by the Commissioner or Gold Commissioner. 1897, c. 45, s. 7. 8. Every owner of land may secure the right to divert unre- corded water from any stream or lake for agricultural, domestic, or 868 APPENDIX I. -1^ . for mechanical or industrial purposes, and purposes incidental there- to, to an amount reasonahly necessary therefor, upon obtaining a record thereof in manner hereinafter appointed. 1897, c. 45, s. 8. 9. Thirty days previous to tlie making of the record, the appli- cant shall post, at the following places, a notice in writing of his intention to apply for the record therein referred to, viz.: At tlio point of proposed diversion; on the ground on which such water is intended to be used; on each person's land to be crossed by the water in course of transit to the place of user; and in the office oC the Commissioner for the district. (2) Such notice shall contain the following particulars: (a) The name of the applicant; (h) The name, or if unnamed, a sufficient description of the stream, lake, or other source from which such water is intended to be taken; (c) The point of diversion or intended ditch-head where the water is diverted from any stream for the purpose of developing power; the applicant shall also state tlie point at which it is to be returned, and the diU'erenee . in altitude between the point of diversion and tlic point where it is to be returned; where the water is to be used for mining purposes, the point where the water is to be returned to the stream shall be given; ((/) The means by which it is intended to store or divert the same; (c) The number of inches of water applied for; (/) The ])ur]K)se for which it is required, stated witli rea- sonable particularity; (g) The land upon which the water is to Ijc used; {h) Tlio date of the ])ostiiig of the notice, and the date on uJiich application will be made to the Commissioiier for the granting of the record. 1897, c. '15, s. 9. 10. Every owner of a mine may secure the right to divert un- recorded water from any stream or lake, for any mining ])urpose, er other purposes incidental thereto, or for milling, concentrating, rr B. C. WATER CLAVffEH ACT 8G9 other purposes in connection witli the -working of his mine, to uw amount reasoniil)ly necessary lliercfor upon obtaining a record tliercof in manner hereinafter provided. 1897, c. 45, s. 10. 11. Thirty days previous to the mailing of tlic record the appli- cant shall post at tlie following places a notice in writing of his in- tention to apply to the (lold Commissioner for the record therein referred to, at the following places, viz.: — (1) At the point of the proposed diversion; on tlie mine on which such water is intended to be used; on each mine or person's land to be crossed by the water in course of transit to the yjlace of user; and in the office of the Mining Recorder for the district; and shall forward a copy of his notice of application to the Gold Com- missioner; (2) Such notice shall contain the following particulars: — («) The name of the applicant; (i) The number of the applicant's free miner's certificate; (c) Tlie name, or if unnamed, a sufficient description of the stream, lake, or other source from which siicli Avatcr is intended to be taken; {d) The point of diversion or intended ditch-heud ; Avlierc water is diverted from any stream for the ])urpose of dcvelojiing power, tlie applicant shall also state the point at which it is to 1)o returned, and the difference in altitude between the ])oiut of diversion and the point where it is to be returned; where tlie water is to be used for mining jiurposes, the point where the water is to be returned to the stream shall be given; (c) Tlie means by whi^li it is intended to store or divert the same; (/) The number of inclies of water applied for; {g) The ])urpose for which it is required, stated with rea- sonable particularity; (//) The mine u])on which tlie water is to be used; (i) The date of the posting of the notice, and the date on which apjilication will be made to the (iold Commis- sioner for the granting of the record. ISOT, c. lo, s. 11. !i ! 1 870 APPENDIX I. Vi. On the clay mentioned in the notice of application, or at a subsequent clay and time to be fixed l)y the Commissioner or Gold Commissioner, as the case may bo, application sluill ])e made by or on behalf of the applicant, either ])y attendance in person or by agent, or in writing, for a record in accordance with the terms of the notice, 1897, c, 45, s. 13. 13. The Commissioner or CJold i'ominissioner shall at such day and time proceed to adjudicate upon the application, and upon proof to his satisfaction of the publication of notice in numner aforesaid, and of the right of the applicant to apply for a record under tlio foregoing provisions of this Act or any of them, and of the voliniio of unrecorded water available for diversion, having regard to existing rights and records, whether held by land owners or mine owners and to pending applications, may grant to the ai)i)licant a record of such amount of water and for such purposes as in the discretion of tin- Commissioner or Cold Commissioner shall be reasonably rcNpiired I'v the applicant for the purposes specilled in his notice of application. 1897, c. 45, s. 13. 14. The Commissioner or Cold Commissioner may adjourn siu Ii adjudication from time to time as circumstances may render expedi- ent, and shall have power to take evidence by statutory declaration and to sunnuon and examine witnesses upon oath, and to hear nil parties whose rights are or may be aifected by the ap[)licati(in. 1897, c. 45, s. 14. 15. The record granted upon such apidication shall be forth- with entered by the Commissioner or Cold Commissioner in the Book of Record of Water Eights, and shall contain the ])artiouliiis recpiired to be contained in the notice of a])])lication as confirmed by or modified upon the adjudication, and any other ])articulars directed to be in.'.erled therein l)y regulations in that behalf, with such addi- tions and variations as circumstances may recpiire; (2) A certified copy of the record shall l)e furnished by the Coni- niissionor, or (Jold Commissioner, to the applicant, and shall, with- out proof of the signature of the Comnussjoner, or Cold Conuiiis- .'^ioner, be evidence in all Courts and proceedings of the nuitters in guch record set forth; (3) The Cold Commissioner shall forthwith forward a certified copy of every record made by him to the ^Mining Recorder of the dis- trict or place in which the water comprised in such grant is to be n. C. M'ATER CLAUSE!^ ACT 871 used, and tho rccordor shall, without fee, transcribe such copy into his IJook oi' Kccord of Water Eights. 1897, c. 45, s. 15. l(i. On any dispute arising prior to record, priority of notice o£ application shall constitute priority of right. 181)7, c. 45, s. 1(J. 17. A record shall speak from the day on which it is made. 1897, c. 45, s. 17. 18. Any owner of land or owner of a mine who would bo en- titled to apply for a record of the water in any stream or lake, if tho same were unrecorded, and who is desirous of obtaining a record of the same, but is j)revented, wholly or in i)art by the existence of jirior records, whether obtained under tiiis or any other Act, may apply ex jHiiie to tiie Commissioner, or CJold Comnussioner, for leave to apply for a record, notwithstanding the existence of such i)rior records, and upon the furnishing to such Commissioner, or (iold Commissioner, (A' i^rima fan'r ])roof that the water allowed to be diverted by any or all of such existing records is wholly, or in i)art, unused thereunder, or unnecessary for, or in excess of the require- ments of the purposes specified therein, such Commissioner, or Cold Commissionei, shall, by writing under his hand, authorize such owner to give notice of his intention to ap[)ly, and to apply, for a record of tlie water of such lake or stream, and such owner nuiy thereupon iipply for a record accordingly, and shall i)ost up and forward notice of his application, and proceed therein in form and manner herein- before provided for the nuiking of an application for a record of un- recorded water; {2) The Commissioner, or Cold Connnissioner, in adjudicating upon the apidication of .^uCii owner, shall, after hearing all i)arties in interest and their witnesses, if any, or, if any party in interest do not appear, upon its being proved to his satisfaction that such party has had notice of the terms of such ai)i)lication and of the date and time on which it is nuide, either refuse the ap[)lication, or where it is proved to his satisfaction that he is justified in making a cancel- lation or reduction as hereinafter mentioned, grant a record for such amount of water as, in his discretion, is reasonably necessary for the purposes specified in the application, and may, for the adjust- ment of the sup[»ly of availal)le water, cancel any existing record obtained under this Act, or any Act hereafter to be passed, on tho ground of abandonment or non-user, and reduce any such existing record in part, either as to the amount of water, or as to the times of using such water, where it is proved to his satisfaction that the 872 APPEXnTX I. niiioiint of wator tlicrol)y recorded is in excess of tlie anioiint reiiiiired for tlie iniri»oses spccilied in the record, or tliat such water is neces- sary for sudi purposes only during certain periods, and may during the intervals be applied to other jjurposes, and may: (3) In respect of any existing record obtained under any Act lieretofore passed, in respect of which privKt facie abandonment or non-user, in whole or in part, is jiroved to his satisfaction, grant to the applicant an interim record entitling the applicant to the use of the water comprised in such existing record, in whole or in part, nntil the owner of such existing record, npon giving notice of his intention in that behalf at the time and in manner lixed by the Com- missioner (to be not less than three months' notice in any case) shall, if entitled by law so to do, bona fide resume under his original recf)rd the use of the water comprised in such interim record, or such part thereof as he may reasonably require, to he ascertained by the Com- missioner, or Oold Commissioner, and the rights of the holder of the interim record shall, at the expiration of the jjcriod iixed in such notice, and in respect of the water therein s])ecilied, absolutely cease and determine, and he shall have no claim or right to compensation for any loss or damage caused to him by such resumption of use under the original record. 1897, c. 45, s. 18. 19. I'lvery record obtained by the owner of land or the owner of n mine, shall be deemed as ai)[)urtenant to the land or mine in re- spect of which such record is obtained; (2) All assignments, transfers, or conveyances permitted by law of any mine, or of any pre-emption rights, and all conveyances of land in fee, whether such assignments, transfers or conveyances were or shall be made before or after the passing of this Act, shall be construed to have conveyed and transferred, and to convey ami transfer, any and all recorded water privileges appurtenant to tlui l>remises assigned, transferred, or conveyed, and shall pass with any of the premises aforesaid \ipon devise or descent. 1897, c. -15, s. lH. 20. Whenever a mine shall have been worked out or abandoiii'il, or a pre-emption cancelled or abandoned, or whenever the occasion for the nse of the water npon the mine or pre-emption shall havi^ permanently ceased, all records a^ipurtenant thereto shall be a! nn end and determined. 1897, c. 45, p. 20. 21. Where any record authorizes the diversion of water for t\v) or more purposes, or to be nsed in two or more ])laces, or where the holder of the record desires to apportion the water in specified pro- i I I U. C. WATER CLAUSES ACT 878 j)ortions between two or more parts of the liuul or iiiiiu' on wliicli llie water is authoiizcd to be used, tbo Conimis.sioner, or (lold Coinniis- sionor, upon npplii-ation iniulo to bini for that purpose I)y tlic bolder of tbe record, or any ])erson ebuniinj^ tliroiij,di or under biin l»y an- fciignnient or otberwise, and u[)()n its beiiiy be nuule upon similar application where luincs or lands are consolidated or pass into a single or joint ownership, ami it is proved to the satisfaction of the Commissioner, or (.{old Commissioner, that it is expedient for the ]nirposc of the more cfTectual and beneficial use of the water autliorized to be diverted, that the original records be consolidated in accordance with the terms of the transfer or consolidation of the lands or mines. 18t)T, c. 45, s. 23. 23. "Within (10 daj's after the record is made, or within such lurther time as the Commissioner, or Cold Commissioner, may, in his discretion, upon proof to his satisfaction of special circumstances rendering further time necessary, by writing duly recorded in the hook of the record of water grants, the liolder shall commence the excavation and construction of the ditch, ilumes, and works in or by means of which he intends to divert, convey or utilize the water, and shall prosecute the work diligi'utiy and uninterruptedly to comple- tion: Provided always, that the Commissioner, or Gold Commis- sioner, may, in his discretion, allow such work to cease for any neces- sary or reasonable time, ui)on cause being shown. Upon tiie non- riillilment of any of the conditions of this section, the Commissioner, or Gold Commissioner, may, upon notice, cancel the record. 181)7, c. •i:., s. 23. 2-1. The right of entry on and through the mines and lands of others for carrying Mater upon, over, or under the said mines and lands, and for the construction of all necessary works in connection lliercwith, may be claimed and exercised by the holder of a water record, upon giving, previously to such entry, adequate security to the satisfaction of the Commissioner, or Gold Commissioner, for any loss or damages which may be caused by reason of such entry; such f^ocurity to be tendered to the Commissioner, or Gold Commissioner, i I IMAGE EVALUATION TEST TARGET (MT-3) fe {./ A 2(i 1.0 I.I 40 IIIII2.0 1 2.5 us li£ 1-25 III 1.4 III 1.6 ^ 6" ► ^ <3^ /3 / Photographic Sciences Corporation 4^ m o ^. 23 WIST MAIN STMiT WIISTIR.N.Y. MSM (71*) •72-4503 9 k 874 APPENDIX I. d for approval, with a notice, a copy of which dhall be served on the owner of mines or lands affected, that at a day and time to be speci- fied in such notice, application will be made to the Commissioner, or Gold Commissioner, for approval of security, and upon such applica- tion, upon hearing what is alleged by all parties in interest, the Com- missioner, or Gold Commissioner, may either accept or reject such tendered security, in whole or in part, and so from time to time imtil adequate security is tendered and approved. (a) After such entry, the holder of the water record so entering shall make full compensation to the occupant or owner of such mines or lands for any loss or damages which may be caused by reason of such entry; and for the recovery of such loss or damages, the owner of the mines or lands entered upon, or other person damaged liy such entry and works, may sue upon the security so given to tlio Commissioner, or Gold Commissioner, irrespective of the form and manner in which security may be made and given. 1897, c. -iS, s. ?31. 25. Whenever, in pursuance of the power conferred by the pre- ceding section, it is intended to enter upon mines or occupied lands, three days' notice of such intention shall be given to the owner or occupant. 1897, c. 15, s. 25. 26. The holder of a water record may enter mines and lamls for the purpose of repairing and maintaining the ditches, flumes, and works for conveying water under his record, but shall, if sucli mines or lands are occupied, give three days' notice to the occupiuil of intentic n to enter, except in cases of emergency, when immediate entry may be made. 1897, c. 45, s. 26. 27. The holder of any record may obtain permission from tlio Commissioner, or Gold Commissioner, to change the place of diver- sion or the course of his ditch or flume, on giving such notices and complying with such terms as the Commissioner, or Gold Commis- sioner, may require or impose. 1897, c. 45, s. 27. 28. Every holder of i record shall take all reasonable moans for utilizing the water gumted to him; and if he wilfully waste any water, or take a quantity of water in excess of his actual require- ments, the Commissioner, or Gold Commissioner, may, upon notice, cancel or reduce the record, or impose all necessary conditions. 18!)t, c. 45, s. 28. 29. If, after a record of all the water in any stream has boon made, for mining purposes; any placer mines are located and hoiia B. C. WATER CLAUSES ACT 873 fide worked below the point of diversion on the stream, tho owner of such placer mines shall be entitled to the continuous flow in the stream past the mines of forty inches if two hundred inches be di- verted, and sixty inches if three hundred inches be diverted, and no more, except upon paying to the holder of the record compensation equal to the amount of damage sustained by him on account of the allowance to the claim of such extra quantity of water; and, in computing such damage, the cost of the ditch shall be considered. 1897, c, 45, s. 29. 30. The owner of any ditch, flume, or pipe, shall, at his own ex- pense, construct, secure and maintain all culverts necessary for the passage of waste and superfluous water flowing through or over any such ditch, flume, or pipe. 1897, c. 45, s. 30. 31. The owner of any ditch, flume or pipe shall construct and secure the same in a proper and substantial manner, and maintain tlie same in good condition and repair to the satisfaction of the Commissioner, or Gold Commissioner, so that the -.ame shall at all times be of sufficient strength and capacity for the fulfilment of the purposes for which it was constructed and is used, and so that no damage shall occur to any road or work in its vicinity from the use of such ditch, flume, or pipe. 1897, c. 45, s. 31. 33. The owner of any ditch, flume or pipe shall be liable for and shall make good, in such manner as the Commissioner, or Gold Commissioner, shall determirc, all damages which may be occasioned by or through such ditch, flume, or pipe breaking or being defective in construction, or out of repair, or of insufficient strength and capa- city for the purposes, or any of them, for whieix it was constructed, or is from time to time used. 1897, c. 45, s. 33. 33. Any person heretofore or hereafter engaged in the construc- tion of any road or work may, with the sanction of the Connnissionor, or Gold Commissioner, cross, divert, or otherwise interfere witli any ditch, water right, or other mining rights whatsoever, for such period, and upon such terms as the said Commissioner, or Gold Commis- sioner, shall direct and impose. 1897, c. 45, s. 33. 34. .N'othing herein contained shall be construed to limit the right of the Chief Commissioner of Lands and Works to lay out, from time to time, the public roads of the Province, across, through, along, or under any ditch, water right, or mining right, in any Crown ( M'S-— — ^rnn^^^^m^i 876 APPEXDIX I. land, ' without compensation, provided that as little damage as pos- Bible shall be done. 1897, c. 45, s. 34. Section 36 provides for an appeal to the Supreme or County Court from the decision of a Commissioner, or Gold Commissiouor. Section 37 provides that the respondent may apjily for the security of costs. Section 38 provides for the jurisdiction of the Judge of the Court of Appeal. Section 39 provides for an appeal to the full Court. 143. In measuring water in any ditch or sluice, in the abpciiro of any rules in that behalf established, by order or orders in Council, and applied to any record or any class of records, the following rules shall be observed: The water taken into a ditch or sluice shall Ijo measured at the ditch or sluice head. No water shall be taken into a ditch or sluice except in a tiough placed horizontally at the iilneo at which the water enters it, and which trough shall be extended two feet beyond the orifice for the discharge of the water. One inch of water shall mean the quantity that will pass through an orifice two inches high by half an inch wide made in a two-inch plank, the Mater to have a constant head of seven inches above the upper siilo of the orificCj and every additional inch of water shall moan so imich as will pass tlirough the said orifice extended horizontally half an inch. In cubic measurement, one inch of water shall mean a How of water equal to 1.G8 cubic feet per minute. 1897, c. 45, s. li:!. 146. Any holder of any water record, or other person wlio shall wrongfully waste any quantity of water heretofore or hereafter ac- quired, by record or otherwise, by diverting any more of it from its natural course, through any ditch or otherwise, than the quaiiliiy actually required by himyfor the purposes specified in the record by virtue of which such water has been diverted, or for any otiicr itur- pose for which such water may lawfully be used, shall, upon sum- mary conviction before a Commissioner, or Gold Commissioner, who sliall, for the purposes of this section, have all the powers of a Sii- pendiary Magistrate, be liable to a jienalty not exceeding one liuii- drcd dollars for each such olTence. 1897, c. 45, s. 146. 'II B. C. EXPLOSIVES STORAGE ACT 877 49 VICT. CHAP. 18 (B. C). (So. 56.) — An Act to encourage the erection of Smelting Works. [Gth April, ISSO.'] HER MAJESTY, by and with the advice and consent of tlie Legis- lative Assembly of tho Province of British Columbia, enacts aa follows: — 1. It shall be lawful for the Chief Commissioner, sul)ject to the approval of the Lieutenant-Governor in Council, to contract with any person for the payment to him out of the Consolidated Revenue of the Province of any sum not exceeding seven thousand dollars, by way of bonus, for the erection of smelting works at some place in the Province with, under, and subject to such terms and conditions as to the said Chief Commissioner, with such approval, may seem advisable; but the contract shall contain conditions that the bonus shall not be paid until smelting works shall have been erected, capable of crushing, reducing, and treatiug at least thirty tons of ore per day of twenty-four hours, nor unless a quantity of not less than one thousand tons of ore shall have been first crushed, reduced and treated. R. S. B. C. (1897)— CHAPTER 74. An Act respecting the Storage of Gunpowder and other Explosive Substances. HER MAJESTY, by and with tho advice and consent of tho Legislative Assembly of the Province of British Columbia, enacts as follows: — SHORT TITLE. \ li: 1. This Act may be cited as the " Explosives Storage Act," C. A. 1888, c. 43, s. 1. i ■ 878 APPENDIX I. PRELIMINARY. 2. Every building used for storage or keeping of any quantitv of gunpowder exceeding two hundred pounds in weight, or used for storage, or keeping any quantity of any otlier explosive .sub- stances exceeding ten pounds in weight, shall be deemed a powder magazine within the meaning of this Act. 0. A. 1888, c. 43, s. 2. 3. This Act shall not ap])ly to, nor affect, any magazine belono-. ing to Her Majesty, nor to the conveyance of gunpowder or other explosive substance or stores to and from Her Majesty's magaziiios by Her ]\[ajesty's naval or military forces, nor shall this Act a|)ply to any magazine erected by proprietors of coal mines in or aljont any colliery for colliery purposes, nor to any magazine erected 1)\ railway companies in or about the line of any railway for railwaj purposes, nor to the conveyance of gunpowder or other explosive substances to or from such magazine. C. A. 1888, c. 43, s. 3. STORAGE AND CONVEYANCE OF EXPLOSIVES. 4. Xo powder magazine shall bo kept or erected within tlio limits of any city in the Province, nor within two miles thereof. C. A. 1888, c. 43, s. 4. 5. The Lieutenant-Governor in Council shall, from time to time, make all necessary regulations, consistent with the provisions of this Act, for the receipt, conveyance, storage, and delivery of gnu'- powder, or any other exj)losivc substance, within two miles of the limits of any city. C. A. 1888, c. 43, s. 5. 6. Xo gunpowder, or other explosive substance, shall be storod. kei)t, conveyed, receivoii, or delivered witliin two miles of any cilv, except in accordance with the regulations made, or to be made, ])y virtue of the last preceding section. C. A. 1888, c. 43, s. C. 7. Xo nitro-glycerine shall be kept in any building or elsewli'M'o, except a license from tlie Li-uienant-Governor in Council shall Ijc first granted therefor. C. A. 1888, c. 43, s. 7. PENALTIES. 8. The regulations to be made by virtue of this Act may impose penalties for all infractions thereof, or for any infraction of this U 1 Ai B. C. EXTRAORDIXARY POWERS OF C0MPAXIE8 879 Act; the same may be recovered in a summary manner, before any justice of the peace having jurisdiction within the said limits, who may order any person convicted before him of any such infraction, to pay ?"cli ])enalty or penalties with costs, to l)o im])risoned for a term not exceeding two months, unless the said penalty or penalties and costs, including the costs of conveyance to gaol, be sooner paid. C. A. 1888, c. 43, s. 8. 9. Every person who shall keep or erect any ]iowder magazine within the limits of any city in the Province, or within two miles of iiny city, shall be guilty of an offence against this Act, and shall, upon summary conviction thereof before any justice of the peace, be liable to a penalty not exceeding five hundred dollars. C. A. 1888, c. 43, s. 9. 10. Every proprietor or lessee of any powder magazine, shall he personally liable for any penalties imposed for the contravention of any regulations made by virtue of this Act, in respect of the con- veyance of poAvder, or other explosive substances, to or from such magazine. C. A. 1888, c. 43, s. 10. Extract from "Execution Act," R. S. B. C. (1897) c. 72. 12. Any interest which a free miner has in any mineral claim before the issue of a Crown grant therefor, or in any mining pro- perty as defined in the " Mineral Act," and any placer claim and property, as defined in the " Placer Mining Act," may be seized and sold by the sheriff, under and by virtue of an execution issued against goods and chattels. 1895, c. 21, s. 3. R. S. B. C. (1897). CHAPTER 44. PART III. EXTRAORDIXARY POWERS OF COMPANIES. Issue of shares without personal liahiUty hi/ Mining Com panics. 5G. The Memorandum of Association of a company incorpor- ated or re-incorporated under this Act, the objects whereof are re- stricted to acquiring, managing, developing, working and soiling 880 APPENDIX I. mines, mineral claims and mining properties, and the mining, getting, treating, refining and marketing of mineral therefrom, may contain a provision that no liability beyond tlio amonnt actually paid upon shares or stock in such company by the subscribers thereto or holders thereof shall attach to such subscriber or holder, and the Certificate of Incorporation, issued under section 20 of this Act, shall state that the company is specially limited under this section. (rt) The licence or certificate of registration to any extra-pro- vincial comi)any (the objects whereof are restricted as aforesaid) issued under the provisions of Part VI. of this Act, may, if applied i'oi" the application for such license or the petition for such regis- tration contain the provision aforesaid. 1897, c. 2, s. 56. 57. Where a certificate of incorporation incorporating any sueli company, or a license or certificate of registration to any extra- provincial company has been issued containing the ])rovision men- tioned in section 56 of this Act, every certificate of shares or stock issued by tlie company shall bear upon the face thereof, distinctly written or printed in red ink, after the name of the company, tlio words "Issued under section 56, respecting Mining Companies ol: the ' Companies Act, 1897,' " and where such shares or stock are issued, subject to further assessments, the word *' assessable," or if not subject to further assessments, the word " non-assessable," as the case may be. 1897, c. 2, s. 57. 58. Every mining company, the Memorandum of Association of which contains the said provision, shall have written or printcil on its charter, prospectuses, stock certificates, bonds, contracts, agroc- nicnts, notices, advertisements, and other official publications, and in all bills of exchange, promissory notes, indorsements, cheques, and orders for money or goods pur])orting to be signed by or on beliall' of the company, and in all bills of parcels, invoices, receipts, and letter-heads of the company, innnediately after or imder the nann' of such company, and shall have engraved upon its seal the woids " non-personal liability; " and every such company which refust-. or knowingly neglects, to comply witli this section shall incur .i penalty of twenty dollars for every day during which such nauio i^ not so kept written or printed, recoverable upon summary cnmit- tion; and every director and manager, secretary and officer of tlic company who knowingly and wilfully authorizes or permits suoh default shall be liable to the like penalty. 1897, c. 2, s. 58. B. C. EXTRAOltUINARY POWERS OF COMPANIES 8H1 59. In the event of any call or calls on assessable shares in a company so incorporated, remaining unpaid by the subscriber thereto, or holder thereof, for a period of sixty days after notice and demand of imynient, such shares may be declared to be in default, and the secretary of the company may advertise such shares for sale at public auction to the highest bidder for cash, by giving notice of such sale in some newspaper published or circulating in the city or district where the principal ollico of the company is situated, for ft period of one month; and said notice shall contain the number of the certificate or certificates of such sliares, and the nuinlier of shares, the amount of the assessment due and unpaid, and the time and place of sale; and in addition to the publication of tlie notice aforesaid, notice shall be personally served upon suoli subscriber or holder by registered letter, mailed to his last known address; and if the subscriber or holder of such shares shall fail to pay the amount due upon such shares, with interest upon the same, and cost of advertising, before the time fixed for such sale, the secretary shall proceed to sell the same or such portion thereof as shall sutfice to pay such assessment, together with interest and cost of advertising; jM'ovided, that if the price of the shares so sold exceed the amount (hic with interest and cost thereon, the excess thereof shall be paid to the defaulting subscriber or holder. 1897, c. 2, s. 59. 60. No shareholder or subscriber for shares in any company, so incorporated, shall be personally liable for non-payment of any calls made upon his shares, beyond the forfeiture and sale, in the event of non-payment of such calls of the amount, if any, already paid on the shares held or subscribed for, nor shall such shareholder or subscriber be personally liable for any debt contracted by tlie com- (jany, or for any sum payable by the company beyond the amount, if any, paid by him upon such shares. 1897, c. 3, s. 60. 61. Wherever any shares have been heretofore issued by nny compony, duly incorporated under any Act, as fully paid up shares, oitlier at a discount or in payment for any mine, mineral claim, or mining property purchased or acquired by such company, or for the acquiring whereof such company has been incorporated, all such shares shall, except as to any debts contracted by the company before the passing of this Act (in regard to which the liability on such shares shall be the same as if this Act had not been passed) bo deemed and held to be fully paid up, and the holder thereof shall be subject to no personal liability thereon, in the same manner as if the memorandum of association of the company had contained the pro- vision aforesaid. 1897, c. 2, s. 61. . 56— M 14 882 Al'l'EXDIX I. R. S. B. C. (1897)— CHAPTER 113. An Act to Amend and Consolidate the Laws atlccting Crown Lands. HER MAJl-'STY, by and with the advice and consent of tlic Legislative Assembly of the Province of Britisli Coluuibia, enacts as follows: — SHORT TITLE. 1. This Act may be cited as the "Land Act." C. A. 188S, c. GG, s. 1. 58. There is reserved to and for the use of Iter Majesty, lior lieirs and 'Successors, a royalty of fifty cents for every thousand feet, board measure, upon and in respect of all timber suitable for spars, piles, saw logs, or railroad ties, props for mining purposes, shingle or other bolts of cedar, fir or spruce, and a royalty of twenty-five cents for every cord of other wood cut upon Crown lands, patented lands, timber leaseholds, or timber limits, and upon any lands hereafter granted. Piles shall be measured by the running foot, and railway ties and props shall be measured by the cord; and for the purposes of this Act two hundred running feet of piles, or one cord of ties or props, shall 1)e taken respectively as equal to one thousand feet board measure. 1896, c. 28, s. 2. 63. This Act shall not be construed so as to inflict penalties upon free miners engaged in prospecting, nor upon travellers, nor upon persons engaged in merely scientific pursuits, or exploring, nor upon farmers cutting timber in connection with their farms, nor upon persons cutting cordwood for personal use for fuel for domestic purposes and not for sale, or cutting cordwood for school purposes. 1896, c. 28, s. 5. FREE miners' RIGHTS. 81. Nothing herein contained shall exclude free miners from entering upon any land in this Province, except, however, all lands reserved or used for naval or military purposes, and searciiing for and working minerals; Provided that such free miner, prior to so doing, shall give full satisfaction or adequate security, to the satis- faction of the Gold Commissioner, to the pre-emptor or tenant in fee simple, for any loss or damage he may sustain by reason thereof. If liltlTIKIl COLVmtlA L.WI) ACT RS8 the amount of compensation (if any) cannot be a{,'rec(l upon, tlio (iold Comniissioner of the district wherein the land lies, with the iissistanco, if desired l)y either party, of n jury of five persons to he summoned by liim, shall, decide the amount thereof, and such deci- sion and award shall be final. The Judges of the Su])reme Court, or any of them, or. any Judge of the County Court, within his county, may perform any of the duties or powers of a (iold Commissioner under this section. C. A. 1888, c. G(), s. 1)5; 181)1, c. 15, s. U, and 181)0, c. 21, s. 10. 83. Nothing in this Act contained shall he construed so as to iiiterrero prejudicially with tlie rights granted to free miners iinder ihe "Mineral Act," or any subsequent Acts relating to gold mining; Trovided, that there is hereby reserved from the lands whereon a i rce miner may enterand prospect all lands reserved or used for naval or military purposes, whether in the grant or reservation thereof, for i^uih purposes the i)recious or base metal, or any of them, were re- served to the Crown and its licensees, or were not so reserved. C. A. 1888, c. G6, s. 9G, and 1896, c. 28, s. 10. RESERVATION OF ROYALTY ON COAL. 83. There is reserved to and for the use of Her [Majesty, her lieirs and successors, a royalty of five cents upon and in respect of each and every ton of merchantable coal raised or gotten from any lands acquired under the provisions of this Act; and in any Crown grant to be issued in pursuance of this iVct there shall be contained a reservation of the said royalty; Provided that no royalty be reserved ( n dioss or fine slack. C. A. 1888, c. 6G, s. i)7. niners from 81. In all Crown grants heretofore issued, or which may bo hereafter issued, by which the coal is reserved to the Crown, the coal so reserved shall become the property of the grantees and their as- signees, and shall be subject to the royalty by this Act reserved. 1891, c. 24, s. 4. 85. All lands for which prospecting licenses have been issued under the " Coal Prospecting Act, 1883," shall, in case the same are purchased under the provisions of this Act, bo subject to the royalty hereinbefore reserved. C. A. 1888, c. 66, s. 99. APPENDIX II. FORMS, GENERAL AND STATUTORY. General Forms : paok 1. Agreemont to ftuthovizo trial t)f a miiio 889 2. Agreement for lease of mine 890 li. Agreement for mining syn- dicate or partnership . . . 892 4. Exception of mines in con- veyance (surface of land not to be disturbed) .... 904 5. Exception of mines in con- veyance (right to disturb surface, but not to take away support) 905 0. Exception of mines in con- veyancing (with right to disturb surface by subsi- dence only) 906 7. Exception of mines in lease (with right to dam- age surface by subsidence only, and without liabil- ity to pay compensation) 906 8. Reservatii"(!)Nm:18S'J), (sit2)erseded (11 March, 1K08) iiH tit Qnarh Mininij Glaimn), nee. 1, gnpva : :U. "G." Certificate of the assignment of a mining location 926 35. " H." Affidavit and ai)i)li- cation for grant for jjlacer mining 92(5 3(!. "I." Grant for placer mining 928 37. "J." Certificate of the as- signment of a placer mining claim 928 38. " K. " Grant to a Bed-rock Flame Company 929 3'.). "L." Grant for drainage. 931 40. "M." Notice of applica- tion to use and divert water 932 41. "N." Grant of right to divert water and con- struct ditches 932 V. Yukon Dredijing Lease Reij- nliitiuns{18Jan., ISHS) : 42. Lease (not printed) VAQE VI. DredijiiKj Leimes in Huhmer- Al'l'LJNDIX 11 IS Dominion — Continued. paok 55. "I." Grant to a Bed-rock Fliinio Comiiiiny 941 56. "J." Grant for amiiirtgo. 94:} 67. "K." Grant of riyht to divert water and con- struct ditches 944 IX. "Lund Titles Ad, ISD/f" (as amended) : 58. "E." Certificate of title. . 944 59. "J." Transfer 945 60. "K." Lease 946 61. "L." Short covenants in lease 947 62. "M." Sunender of lease. 948 03. "N."Mortgaso 948 G4. " O." Eneunilnance 949 65. "R." Short covenants in mortgaife 950 66. "S." Power of attorney . 953 (i7. " T." Revocation of power of attorney 954 68. "V." Form of caveat for- bidding registration or dealing with lands 954 69. " W." Affidavit of attestiv- tion of an instrument . . 955 Ontario— ''The Mines Ad." 70. Application for mining lands and affidavit of discovery 955 71. Affidavits in support of application for land.... 956 72. Affidavit of original dis- coverer in support of ap- plication for free loca- tion of 40 acres 95" 73. Affidavit of Ontario Land Surveyor re application for free location of 40 acres 957 74. Crown lease (not printed). 75. Transfer of mining lease.. 958 PAGE Tn Michipicoton Mining Did- sivn : 76. Notice of mining claim and ai^davit of discovery 'X>'.) 77. Certificate of record of mining claim itcii 78. Transfer of mining claim. !)iii) ''The Companies Ad" : 79. License from Ontario to Extra-Provincial Min- ing Company !i(;i "The Land Titles Ad": 80. Certificate of ownership. . '.Mil 81. Caution against first regis- tration 'M\7} 82. Affidavit in supiMjrt of caution before first regis- tration !l(i,") 8.3. Cauti(m after registration. lN),"i 84. Affidavit in support of caution after registration iKKI 85. Application for notice to terminate cautiim iniii 86. Authority to notify with- di'awal of caution '.ili7 87. Affidavit attesting execu- tion of withdrawal of caution '.Ki; 88. Application for inhilntini,' order '.ii;; 89. Application to register restriction !Mlti 90. Application to withdraw or modify restriction . . . '.tiS 91. Charge or mortgage witli bar of dower '.Hill 92. Transfer of charge or mortgage '.Hi'.l 93. Transfer of freehold or leasehold land '.irO 94. Transfer of freehold or leasehold land (in parcels I '.ir" FOltMH—aESEliiL ASL) STATUTOlty 887 PAGE !i(;i itini,' '.t(17 • . . . !it;7 istlT . . . . IMlti haw 1 . . . ',»/,« witli . . . . '.lli'.l or . . . . IKl'.l I or . . . . '.170 or Cl'lsl 1170 Ontario — Continued. paok 95. Special application to no- tify cessation of incum- brance or lease created before first registration.. 971 96. Application for registra- tion of notice of lease or agreement for lease .... 971 97. Application to annex con- ditions or covenants to reyistei-ed land 972 98. Affidavits attesting execu- tion of instrument when bar of dower, and iden- tifying parties 972 99. Affidavits attesting execu- tion of tran.sfer of land when transferor un- married 973 100. Affidavits when instrunient is executed under apower of attorney 973 101. Power of attorney to make transfers 974 102. Revocation of power of attorney 974 103. Affidavit or shares shall be deemed to be one partner.) 7. U])on the neglect or refusal of any jjartner to pay his projx)!'- tion of the capital or any instalment thereof, it shall be lawful for iTie other j'artners for the time being, either to charge such default- ing ]iartner with such projjortion, and with interest thereon at tlic late of per cent. ]ier annum, or at their option to sell ami dispose of all or any of the shares or share of such partner in manner hereinafter prt)vided, in case of a breach of any of the agreements herein contained; and in case they shall sell and dispose of all ilio share and interest of such partner in the company, then to expel such jiartncr in manner and with the consequences hereinafter ])ro- vided. 8. of, etc., shall be the first manager of the com- pany, and shall continue to act as such manager for the period of twelve calendar months from the date of these ])re8ents, and there- after, unless and until he shall resign his appointment by giving to the company notice in writing of his intention to resign at least throe calendar months before such resignation, or unless and until he sliall be removed or dismissed in manner hereinafter provided. QEXERAL FORMS 8!)5 9. Tl>o said innnnger sliall mnnngo and trnnsnct the works and ))iisiiioss of the company, and act for and on behalf of the company, at such sahuy as shall l)e agreed upon, hut sul)ject in all respects to the superintendence, management, direction and control of the said company, and to removal or dismissal by them at any time after the expiration of months from ihe date of these presents, with or without previous notice or cause assigned; Provided tliat the said manager, in case he shall bo removed or dismissed, shall be en- iitled to his salary, or an apportivtned ])art thereof, for the full period of next following the day on which he shall receive notice of such removal or dismissal. 10. The company may from time to time a])point and remove iiny other person (whether partner or not) to l)e manager of the com- jiany, with such powers and authorities, upon such terms, and svd)- jeet as aforesaid, subject to any agreement between the company and such other person on his appointment. 11. The manager for the time being may engage and employ !-uch clerks, agents, servants, miners, labourers and workmen, and at puch salaries as ho shall think fit (but subject to such control as i.r>)rc- said), and may make all usual and proper contracts and jiaymcnts for the management and carrying on of the business and works of the company; and such manager shall observe and perform in all respects the covenants and conditions contained in the above recited lease, and in every other lease of any hereditaments and premises to lie for the time being employed for the purposes of the com])any. But such manager shall not, without the previous sanction of the siiid company, unless there be an urgent necessity for doing so, .com- mence or prosecute any action or ju-oceeding against any person or I'crsons; nor release or compound for any debt or debts amounting to $ or upwards, which shall be owing to the company and not fully paid; nor on any account without such previous sanction, draw, make, accept, sign or endorse any l)ill of exchange, promissory note, or other draft or security, in the name or on account of the company, cxce]it in the ordinary course of transacting the necessary business of the company; and any manager who shall break this last condition, shall immediately pay to the use of the company twice the amount of the sum for which such bill, note or other draft, or security shall purport to make the company liable as liquidated dnmages. 12. No partner, except the manager for tlie time being, shall buy, order, sell, or contract for the purchase or sale of any goods, wares. 690 APPENDIX It merdiandist's, or articles for tlio said compnny, or draw, iiiako, accopi, bign, or fiulorse any bill of t'xchangc, promissory note, draft, or otlicr security, or enter into any other contract for or in behalf or on ac- count of the company (otherwise than by voting as aforesaid), oi- meddle or interfere (otherwise than as aforesaid) with the goods, effects, or business of the company. VA. Kach of the partners for the time being of the company shall, from time to time, i)ay and discharge all the private and sepn- rate del)ts now or hereafter due or owing from him or her to the company, or to any other person or persons whomsoever, and sliiill keep indemnified the comjiany and the other mend)crs thereof, and the property, estate and etfects of the company and members from and against such private and separate debts and all actions, execu- tions, i)roceedings, costs, damages, and expenses for or on account of the same or relating thereto. 14. The company shall meet at on the in every in every year, or on such other day within days next, before or after such day, as the manager for the time being shall ajjpoint, and that in all cases days' previous notice of each such meeting shall be previously given by such manager by advertisement in some newspaper published and generally circulated within , and also by a circular letter to be sent through the post by .such manager to every member of the said company, whose address shall be known to or readily discoverable by such manager. 15. On the written requisition of any of the members of the company, an extraordinary meeting of the company shall be convened at not less than notice by means of such advertise- ment and circular as aforesaid, to be respectively signed, inserted and issued either by such manager, or in case of his refusal or neglect, by the members, or any of them requiring the same; Pro- vided always, that the object of calling such meeting shall be ex- pressed in such advertisement and circular respectively, and that .nieli meeting shall not have any authority or power to bind the company in respect of any matter which shall not fairly come within the object of the meeting, as expressed in such advertisement and circular respectively. 1(5. Each holder, or the collective holders of one th share in the company, shall be entitled to a vote in respect of such share, and OENERAL FORMS 807 each holder or the collective holders of more than one th share f^hall be entitled to a vote in respect of each th share so held by such holder or collective holders; and such vote or votes may be given by such holder or collective holders personally or by any mem- ber of the company whom he or they may, by writing under his or their hand, authorize to vote on his or their behalf at any particular meeting, or on any particular question at such meeting, such au- thority being given within the weeks next preceding sucli meeting, but extending (unless revoked) to any adjournment of such meeting. 17. A special resolution within the meaning of these articles ehall mean a resolution passed at an extraordinary meeting of the company by a majority in number, and not less than in value (in respect of shares) of the members voting personally or by proxy as aforesaid at such meeting. 18. All questions rclaang to the company and its property and business, not hereby expressly required to be determined by a special resolution, may be determined either at a or extraordinary meeting by an ordinary resolution, that is to say, a majority in num- ])t'r of the members voting personally or by proxy at the meeting. In case of an equality of votes on an ordinary resolution, the same shall be deemed to have been negatived. 10. The manager, for the time being, shall attend every and extraordinary meeting, and shall enter true and accurate minutes of all resolutions passed at, and proceedings of, such meeting in a book to be kept for the purpose. 20. All usual and necessary books of account shall be provided at the expense of the company, and kept by the manager for the time being, in which shall be clearly written or entered a just, true, com- plete and particular account of all sums of monej paid and received, and of all debts contracted and sales and purchases made, and of all otiier matters and things conducive to and proper for manifesting the true state and condition of the affairs of the company, which books, together with all deeds, securities, maps, plans, letters, docu- ments, and vouchers, belonging to the company, shall be kept at the principal office of the company, and be there subject to the free inspection of every member of the company, or his agent or solicitor at all reasonable times, for the piirpose of perusing or examining the same, or of taking extracts or copies from or of the same. 57— M 1 1 898 AI'l'KXDIX II 81. All bills, notes, receipts, accounts, and securities shall he made and taken hy the manager or trustees for the time being in the name of the company, and all bonds, conveyances, securities, and assurances shall be made and executed in the names of the said (trustees), or such other persons as shall be appointed by the com- pany for such i)urposc. 23. In the meeting which shall take place in or for th« of in each year, a general account in writing shall be taken and made by the partners of all sales which shall hav.' been made, and of all the stocks, monies, credits, debts, and lial)ili- tit'8 of the company, and of all such other matters as are usually comprehended in annual accounts, of the same nature, or shall Ijc necessary and proper in relation to the business and transactions of the company, and a just valuation and appraisement shall be nmdo and approved by the parties present at such meeting, of all the par- ticulars and matters included in such account which are C'apal)le of being appraised, and the materials for such appraisement shall ha furnished by the manager for the time being, who shall also dis- tinguish to the best of his ability between the good and bad debts duo to the company, and such general account and valuation sluiU from time to time be entered in a book (to be kept as aforesaid), and signed by the members of the company for the time being, who shiill also sign any duplicate thereof, which may be required and ten- dered to be signed by any of the said members; and the allowanc. and signature of such account by the majority of the members pre- sent at such meeting as lastly aforesaid, or at any adjournment of such meeting (the time and place of such adjourned meeting having been duly notified in manner aforesaid at the least bcforu the happening thereof), shall be binding on all the members of flio comiwny, excei)t as to any manifest error to the amount of $ or u])wards which may be discovered within the year following such meeting; Provided always, that no such member shall be entitled to receive any dividends or profits arising from the partnership trans- actions, unless and until he shall have signed such annual account. 23, It shall be lawful for any partner during his life or, by will, after his decease, with the consent of the other partners expressed by special resolution, to introduce into the company any one persmi. being of full age, whom ho may think proper, and to transfer to liiiii all or any of his shares or share in the company; and also, by will. without such consent, bequeath to any son or sons, being of full iifro. all or any of the shares or share which such testator shall hold at UEMUtlL FOUilS 81)9 ]m death ; I'rovidcd always, that notliin>{ icroiu conlaincd shall aiithoii/o the transfer or bequest of less tiian one entire share to any person. 5J4. If any partner shall during the continuance of the company hcconie insane, or banlvrupt, or sull'er a receiving order to be niado a;;ain8t him, or enter into any composition or arrangement, statu- tory or otherwise, for the benefit of his creditors generally, then sucli partner shall, HO fur as he is concerned, cease to be a niemher of the company. 85. Any partner may retire from the conijjany on the day of in any year during tiie partnership term upon leaving for the manager, or sending to him through the post, at the ollice for the time being of the company, not less than previously, a notice in writing of his intention to retire. 26. If any i)artnor shall die iluring the continuance of tho company, or so cease as aforesaid to be a member of the company, or retire therefrom, the partnership relation or contract hereby intended to be constituted shall not lie determined as between the otiier mem- lurs of the company, but shall continue until the end of the part- nership term, suljject to the covenants, stipulations, and provisions herein contained so far as apj)licablc to such continued partnership; and in such case, if the partner so ceasing to bo a member of tho company or dying shall not have transferred or bequeathed the wliole of his shares or share in the company, tho value of the shares or share for the time being held by him shall be ascertained, and aftor deducting therefrom the amount (if any) which shall be re- quired for the settlement and discharge of tho demands of tho com- pany /.c;ainst such member, shall be paid out to him, or his com- mittees, assignees, or executors or administrators, out of the capital, assets, and profits of the company. 87. For the purposes of the payment to bo made pursuant to the last article, in the case of a partner so dying or ceasing to be a member of the company, or retiring therefrom as aforesaid before the day of , then the value of each share held by him for the time being shall be taken to bo an aliquot share of the esti- mated value of the said mines, and premises comprised in tho said lease, and of the money-capital contributed by him, for the time being, with interest thereon at the rate of per cent, per annum, to be computed as to the estimated value of the said mines and pre- ¥ 900 APPENDIX II iiiises as from the date of these presents, and as to the said money- capital as from the time at which it shall have been contributed; and in the case of a partner so dying or ceasing to be a member of the company, or retiring therefrom after the day of next, then the value of each share held by him for the time being shall be taken to be an aliquot share of the property and assets of the company as shown by the last preceding annual general account (which account shall for this purpose be binding and conclusive on all persons interested), with interest thereon at the same rate from I he date of such account; Provided always that in addition to pay- ment of the value of the shares or share so ascertained as aforesaid and of interest thereon as aforesaid, the person or persons entitled lo receive payment of the same shall also be entitled to repayment by the company of all advances made to the company, or undrawn 2)rofits left in the business pursuant to paragraph 5 hereof, and in- terest accrued due thereon. 28. The sum to be paid out under paragraph 2G hereof, shall Ijo paid either immediately, or as soon as conveniently nuiy be, in onu aggregate sum, with interest at the rate aforesaid as from such death, cessation of membership, or retirement as aforesaid until actual pay- ment thereof, or (if the surviving or continuing jiartners shall so determine) by equal instalments to be secured in manner hereinafter mentioned, that is to say, the surviving or continuing partners shall enter into a joint and several bond in a sufficient penalty for securiiii;- the amount of the said sum to the ])erson or persons entitled thereto by equal instalments at the respective periods of next after the date of sucli d'.acli, cesser of meml)ershi|) or retirement as aforesaid, with interest as from that date for ,so much of the said sum as shall for the time being remain unpaid at the date of the payment of each instalment, but with power for tlii> surviving or continuing ])artners or partner at any time to ])ay oil'. by way of anticii)ati()n, tlie whole of the instalments or instalmenr for the time being iinpaid of the said sum, with any interest accrueil due up to the day of payment, on giving to the person or persons entitled to receive such payment days' notice in writing of their intention so to do. 2!). All shares and interest of a partner so dying, ceasing to Ijc a member of the company, or retiring, of and in the good will, pro- perty, assets and ]m)fits of the company, shall as from the deatli. cesser of nembership, or retirement belorg to, and the whole of liis liabilitit'S in respect of the business and transactions of the company, GENERAL FORMS 901 after that date shall be borne by the surviving or continuing part- ners alone, and all proper and necessary assignments, transfers, and assurances, shall be made and executed by the executors or ad- ministrators of the partner so dying as aforesaid, or by the partner so ceasing to be a member of the company, or retiring, or his com- mittees, trustees, or assigns, for effectually vesting his shares or i-liare and interest in the company in the surviving partners and for releasing the surviving partners from all claims and demands of such partner, his executors, administrators, committees, trustees, or as- signs as the case may require; and all the surviving partners shall, by bond or otherwise as may reasonably be required, effectually indemnify and thereafter keep indemniHcd siicli partner, or his executors, administrators, committees, trustees or assigns, and his and their estates and effects against all actions, proceedings, claims and demands on account of the partnership. 30. If any member of the company, except as aforesaid, shall draw, make, accept, sign or endorse any bill, note, draft, or security on account of the company, shall be attached, seized or taken in execution on account of any private deljt or engagement of any mem- ber, or if any member shall apply to his own separate use any of such effects, property, or money, it shall be lawful, by a special resolution, to dissolve and put and end to the i)artnorship, and to expel him therefrom, and the sliare and interest of such member in the partner- ship shall, at the option of such majority, be either retained by the company, at its value, to be ascertained l)y valuation as provided in paragraph 27 hereof, and the value of such share or shares shall be api)lied in the settlement or reduction of the demands of the com- pany against such offending member on his making and executing such assignments, transfers, and assurances as may be necessary for vesting his shares or share and interest in the property and assets of the company in the continuing partners, and for releasing all demands against the company in respect of his partnership therein. 31. It shall be lawful for the members for the time being, by special resolution, cither to discontinue and dissolve the said part- nership before the expiration of the said term of years (siich (lisLontinuance or dissolution not to take effect before tlie expiration of from the day on which such meeting shall l)e held), or during the last year of such term, to continue and extend the liii'-tncrship for any additional term of not more than upon the terms herein contained, and to promire a renewal of any lease or leases which shall then belong to the company; Provided 1 If ' m !■ ' I 002 APPEXDIX II that no such dissolution or extension of the partnership shall he vi.lid tmloss the proposal to make the same shall have heen notified l)y such advertisement and circular as aforesaid, at least two weeks prior to tlie meeting at which the same shall be made. 33. Immediately upon the expiration of the said term of , or of such extended time as aforesaid, or upon other the determination and dissolution of the partnership, a general ac- count in writing shall be made of all the partnership estate, assets, effects, credits, debts, and liabilities, and such estate, assets and credits, shall be immediately realized, sold, and converted into money, and tlio proceeds, after the full and complete discharge of or provi- sion for all the partnership debts and liabilities, shall be divided among ancl paid to the members of the company for the time being, or their respective executors, administrators, or assigns, in the severiil shares and proportions, in which they shall respectively be entitled thereto. 33. (Insert usual arbitration clause). In witness, etc. BILL OF SALE. Mineral Claim. Know all men by these presents, that I B.C., free miner. Free ^Miners Certificate Xo. Issued at 189 for and in consideration of the sum of dollar ($ ) of lawful money, to in hand ]iaid, the receijit whereof is hereby acknowledged, do by these presents, bargain, sell, assign and transfer unto Free Miner's Certificate Xo. 189 , his executors, administrator- {Description of Claim.) day of Issued at and assigns situated located the recorded at A.D. 189 , and A.D. 189 . upon the day of hereby covenant that ha FORMS— DIUTISH COLUMBIA 903 good title to the mineral claim aforesaid, and right to transfer the same. In witness whereof ha hereunto set hand and seal this day of A.D. 189 , at Witness : (Seal.) (Seal.) (Seal.) iiiinistrat()i> ATTESTxVTION CLAUSE AXD CERTIFICATE OF EXECU- TION OF DEED BY FOREIGN COMPANY. In witness whereof the said grantor has caused these presents to l)e executed and suhscribed by its President and Secretary, and its corporate seal to be hereto affixed on the day and year first above written. (L.S.) Attest : Its President. Secretary. Signed, sealed and delivered by the said Company in the presence of residing at and by occupation United States of America, state of ss. county of I hereby certify that personally known to mc, appeared before nie, and acknowledged to me that he is the portion whose name is mentioned in the annexed instrument as Sccre- lary of the Company, and whose name is subscril)ed thereto as such Secretary; that he subscribed his name to the annexed instrument as Secretary of the * Company, and affixed the seal of the said Company to the said instru- iiiont, and that he, the said secretary, was first didy authorized to subscribe his name, as aforesaid, and to affix the said seal to the said instrument, and that he knows the contents thereof, and that he a' tlie said Company executed the sanu voluntarily. :?ii| i ' 904 APPENDIX II In testimony whereof I have horennto set my hand this day of A.D. 189 . Commissioner for taking aflidavits iu and for the Courts of CKKTIKJCATE OF EXKCITIOX OF DEED FOR REGISTRA- TION IX liRlTlSil COLUMBIA. I'rovince of County of To wit : I hereby certify that personally known to mc, appeared before nie and acknowledged to me that he is the perscjii whose name is subscribed to tlie annexed instrument as witness, ami after being duly sworn before me he proved to me that tlie grantor in the said conveyance is personally known to him, tlie said witness, and tliat ho, the said subscribed liis name to the annexed conveyance as grantor, and aiTixod his seal to the said instrument, and tluit he knew tlie contents thereof, and that tlic said executed the same voluntarily. And I further certify that the County Court of the County of is a Court of Record within and for said Province of and that the said Court has a seal, and the seal hereto attached is the seal of said Court. And I further certify that I am the Judge of the said Court, duly qualified and acting, and the foregoing acknowledgnu^nt ai)il proof were taken before me as such Judge of said Court this dav. 189 "Witness my hand and seal of said Court this day of EXCEPTIOX OF MIXES IX COXYEYAXCE — SFRFACl': OF LAXD NOT TO BE DISTFRBED. Excepting and always reserving out of these presents, and tlir grant and conveyance hereby made unto the said, (grantor), his a[)- pointees, heirs and assigns, all mines, veins and deposits of , and other mines and minerals lying within or under the said piece of land hereby granted and conveyed, or any part or parts thereof ro- GEKEKAL FORMS 905 EGISTKA- spcctively, with full liberty, power and aiitliority for tlie said grantor and for his appointees, heirs and assigns, and his, their or any of Iheir lessees, agents and workmen, and every or any other person or ])ersons by his, their or any of their order or permission, at any time or times, and from time to time, to search for, get, win, mine, take iind carry away the same, and sell and convert to his and their own use the said excepted mines, veins, deposits of and other mines and minerals, or any of them, or any parts or part thereof, at ])lcasure, and to do all things necessary for eirectuating all or any of the purposes aforesaid, but without entering upon the surface of the said lands or any part thereof, and so as not to disturb the said sur- face, or any part thereof, by or in consequence of underground workings. c Countv of KXCEPTIOX OF MINP]S IN CONVEYANCE OF LAND- EIGHT TO DISTURB SURFACE, BUT NOT TO TAKE AWAY SUPPOIIT. Except and reserving unto the said (grantor) his heirs and assigns, all and every the mines, veins, strata and deposits , unopened as Avell as opened, in, under or upon the hereditaments hereby granted and assured, with full and free liberty and authority for the said (grantor), his heirs and assigns, and his and their agents, workmen or servants, to search for, Avork, take and carry away the same for his and their own use and benefit, and to dig, sink, drive, make and use all such shafts, i)ils, levels, adits, air-grates, water- courses and all other works which may be required for winning and working the said nunes and minerals according to the most approved ]iriictice, with full iwwcr to occasion a subsidence of the surface, if such subsidence should result or take place while working according to yuch approved practice, and also to ai)propriate and use any part of the lands hereby granted and assured, either under- fii'ound or on tlie surface, as nuiy ])e proper or necessary, iis well for depositing and laying down the said minerals, and placing and heaping the waste, refuse and rubbish which may be worked along with them from time to time, as for washing and cleansing any of the said minerals, and for effoctu- iilly separating them from all the soil and other substances mixed witli ilioui, and also for supjjlying such mines and works with water, and with good and fresh air, or for freeing the sanu> froi" water or foul air, for the purposes aforesaid, to erect, nuike and employ all such fire, steam, water or other engines, buildings, workmen's houses. 906 AI'PEXDIX II shops, crushing mills, sheds, machinery and works which may ho proper and reasonable, and which are now or may he hereafter ust'd for similar purposes, and also for full liberty and authority to con- struct or repair and use any railroads, tramways, or other roads or ways which may be reasonably required for tlie elTectual workiiijr and management of the said mines and works, or for the delivery of the said minerals; provided always, that all such minerals whit h shall have been so produced, shall be taken away from the lands hereby granted and assured witliin a reasonaldc period from the time of their production; provided also, that the said (grantor), his heirs and assigns, shall from time to time make comi)ensati()n to the owners and occupiers for the time ])eing of the said lands and premises horel)y granted and assured, in respect of the injuries sii>- tained by tlieni in the prosecution of the mines and works afores;ii(l, whether such injuries be of a permanent or of a temporary nature; and such coinjiensation shall ajijdy as well to all buildings crcciod thereon after the day of the date of these presents as previoiislv, and to all new im2)rovements of the surface generally. EXCEPTIOX OF :MTXES with lUGlIT TO DISTURB SFJJ- FACE BY SFTBSIDENCF ONLY. Excejit and reserving out of the conveyance hereby made, all the mines and minerals whatsoever, unopened as well as opened, in or under the hereditaments hereby assured, with full lil)erty to sem, li for, win, work and carry away the same, by means of undergrdnnd workings only and with full liberty to make use of or employ any su( h underground workings for any purposes whatsoever; jirovided always that reasonable compensation be made from time to time for all in- juries to the surface and buildings thereon, or to either, whicli may be sustained by the owners or occujiiers for the time being of tho said hereditaments by reason of the prosecution of the mines and works aforesaid. EXCEPTTOX OF MIXES IX LFASE, WITFI \iUi\\T To DA:\IA(iF SFRl-WCF BY SFUSIDEXCK OXLY. AND WITIIOFT LIABILITY TO PAY COMPEXSATIOX. Except and reserved out of this demise all mines, seams, lied-;. veins and de])osits of , and other mines, minerals, snh- sfances and quarries lying under the said demised land, with full power and free liberty to and for the lessor, and all and every, or any person or 2)ersons whomsoever claiming, or to claim from or under OEXERAL FORMfi 907 CURB SI R- him, and his and their lessees, tenants, workmen and others, l)y his and their authority, at all times henceforth, during the continuance of this demise at his or their pleasure, hut without entering upon the surface of the said demised land, except under ])owers already con- ferred or agreed to he given in or hy any lease, or assurance or agree- ment already made or suhsisting to get, win, carry away, sell and dispose of the said coal and other mines, minerals, mineral siil)- stanccs and quarries, and every or any part thereof respectively, either alone or together, with any and other mines, minerals, mineral suh- stances and quarries within or under any adjacent or other land, and either with or without leaving support to the surface, and whe- ther the surface or any huihlings thereon for the time heing may or may not Ije therehy lowered or dei)ressed, or injured in any wise, and without any lial)ility whatever to make compensation for any injury to the surface, or to any huildings thereon for the time heing. RESERVATION OF MINERAL WAYS IN AN ORDINARY LEAS]-]. Except and reserved at all times during the continuance of this demif^e unto the said (lessor), his heirs and assigns, full and free lilicrty and authority to use and appropriate all such pieces or parcels of land as may at any time hereafter l)e re([uired l)y the said (lessor), his heirs or assigns, or any other persons wlu)insoever, for the pur- jiose of forming any railways or other ways for the conveyance of coal or any other minerals, articles or nuxterials whatsoever, or of ])assengers, and in any manner whatsoever, or which may he reason- nl)ly required for the pro])er use and enjoyment of any sucli ways, or for the purposes connected therewith, with full liberty and authority to convert such pieces or parcels of land for the purjjoses aforesaid, and to do all necessary and ])r()per acts for making, repairing and jiiaintaining in proper order and condition any such ways, and for C'fi'octiially draining and fencing oif the sanu> from any of tlie ad- ioining lands comprised in tliis demise. Provided always, that the paid (lessor), his heirs and assigns, or other persons aforesaid, shall make all i)roper and reasonable compensation to the said (lessee), iiis executors, administrators or assigns, for the injury sustained by him or them in the formation and maintenance of any such ways or works aforesaid, and shall at all times during the said term ePTeetu- ally fence off the same from any of the adjoining lands hereby de- iiiisod. And also that the ,said (lessor), his heirs or assigns, shall at all times nnike all proper abatements and allowances in the amount of the rent hereby reserved in conseciuence of such ways and works. fj i I 908 APPENDIX n WAY-LEAVE, GRANT OF. Tliis indenture, made, etc., between (grantor) of the one part, and (grantee) of tlie other part, Wii- iicsscth that in consideration of the rents, covenants and agreements hereinafter mentioned on the part of tlie said (grantee), liis execu- tors, ndniinistrators and assigns to be paid and performed, lie, Ihc said (grantor), doth by those presents grant and demise unto tlie said (grantee), his executors, administrators and assigns, full, free am] irrevocable license, right and authority for himself and themselvi's, his and their agents, workmen and servants, to use and employ. Top the purjioses hereinafter mentioned, at all times between the hours of in the morning, and in the evening, all that railway extendinjr in one continued line from to (describe the way), together with full and free liberty for him ;iiul them, within tbe hours aforesaid, to pass and repass along the siitl line hoi'ein])efore described, with all usual waggons and other car- riages, either drawn l)y Jiorses or drawn or propelled by steam, i,v other engiiu', or by any other ])ower or contrivance to convey all siuh coal and other minerals as shall from time to time be raised by iho said (grantee) his executors, administrators or assigns, from an.) And also shall and will at all times during the said term ]8. [('ontaining Forma "A" to '• N "• inclusive, and Sdiedule of Fees to he charged]. FOini " A." (21st March, 18!)8.) FOR A FULL CLAIM. Dominion Lands District. I, A. B., of , in the Dominion Lands J)istrict, free miner, make oath and say: — 1. I im the holder of F'ree ^liner's Certificate Xo. ^ dated day of , 18 , and issued at 2. On the day of ,18 , T located the mineral claim, situated (here descrihe position of claim as nonr as possible, giving the name or names of any mineral claim or cliiim^ it may join). 3. 1 liave jdaced ])osts Xo. 1 and Xo. 2 and a discovery po^l of the legal dimensions on the said claim, with the legal notices on v\\c\\ post. 4. I ha\e written on Xo. 1 post the following words: — 5. I have written on Xo. 2 post the following words: — (If any of the corners are indicated by witness posts the ]iar- liciilars as to such posts to l)e fully set out). 0. That I liave found mineral in ])lace on the said claim. 7. That T have marked the line between Xo. 1 and Xo. 2 po>t-. OS required by section 11 of these regulations. 8. That to the best of my knowledge and belief the ground com- prised within the boundaries of the said claim is unoccu])ied by niiv other ])erson as a mineral claim; that it is not occupied by any Imilil- ing or any land falling within the curtilage of any dwelling house, or any orchard, or any land under cultivation, or any land reserved from entry under the Alining Regulations. 0. That the said claim has not heretofore been staked out liy any one in my interest. I FOI{^^H I'MtKR QVAinZ MINIXG UK(U (nOMIMOS) 911 staked out l)y FORM "Al.» (21st Mareli, 1898.) FOR FRACTIONAL CT.AI.Nr. Duiiiiiiiou Lands District. I, A. B., of , in the Douiiniou Lands District, free minor, make nalli and say: — 1. I am tlu! lioldor of Free Minor's Cortificato No. , dated day of , If^ , and issued at . 2. On the day of , 18 , 1 located tlie fractional mineral claim, situated 3. This is a fractional claim hounded on the north by , on the south by , on the east ])y , and on the Avost by , and is more particularly described on the sketch plan on the back of (or attached to, as the case nuiy bo) this declaration. 4. I have placed (liere enumerate each of the posts placed on tlio ground in locating the claim) with the legal notices on each post. 5. I have written on No. 1 post the following words: 6. I have written on No. 2 post the following words: 7. I have written on my post at intersection with the ]\Iincral Claim, the following words: (The partic\dars written on each intersection post to be fully i-et out.) 8. I have found mineral in })lace on the said fractional claim. }). I have marked the line between Xo. 1 and No. 2 posts, as required by section 14 of these regulations. 10. That to the best of my knowledge and belief tlie ground (omi)riscd within the boundaries of the said fractional claim is un- occupied by any person as a mineral claim; that it is not occupied l)y any building or any land falling within the curtilage of any dwell- ing house, or any orchard, or any land imder cultivation, or any Indian reserve, or other reservation nuule in the Alining Regulations. n. That the said claim has not heretofore been staked out by nny one in my interest. ! [ I 012 APPENDIX II FORM " B." (21st March, 18118.) RECORD OF A MINERAL CLAIM. Mineral Claim. Uertificate No. Located by of , from vhom I liiivo this day received the sum of $5, l)eing the foe prescrihod l»y the Mining Kcgulations for recording a mineral claim. The claim is situated The direction of tlio line from No. 1 post to No. 2 post is The distance in feet is (If any of the corners arc indicated by witness posts the particii as to such posts to bo fully set out.) The claim was located on the day of , 18 l?ccordcd this day of , 18 . Mininij llecorder. I'-t T, FOHM " C." (21st March, 1898.) APPLICATION FOR A CERTIFICATE OF WORK. Affidavit. of of , in the district , free miner, make oath and say: — That I have done, or caused to be done, work on the ^liueral C'laiii!, situate at in the Dominion Lands District, to the value of at least one hundred ddl- lars, since tlie day of , 18 . The following is a detailed statement of such work: — (Set out full particulars of the work done in the twelve moiitli-; in which such ivork is required to be done, as shown ])y section ;;].) Sworn, etc. FOini " D." (21st March, 1898.) CERTIFICATE OF WORK. (Name of Claim) Mineral Clnim. This is to certify that an atlidavit setting out a detailed stiilr- nieut of the work done on the above claim since the day FOUMH UNDER QUARTX illSIXO RtJU. (D0MIX10.\) 913 of , 18 , iiindo by hns this dny ht'cn filed in my olVico, nnd in piirHiiaiico of the ])rovisionH of tho ^linini; IfcjiulatioiH, I do now isHUo tliis f'ertificnto of Worlc in re- spect of tlif iihovc elaiui to TliieJ ccrtificato ontitlin to continue in IKissossion of tlic said olaini for oiio yoar, dat('(l from Miirng llecorder. (21 st March, ISDS.) CKRTIFICATE IN CASES OF PARTNERSII II' THAT ANM-AI. EXPENDITURE MAY, AFTER RECORDING CLAIMS, HE MADE ON ANY ONE OF TlIK CLAIMS AFFECTED BY SUCH TARTNERSIIIP. No. Department of tlio Interior, Agency, 18 Tliis is to certify that in accordance witli tho provisions of claiiso :]\ of tlie Dominion Minin,u' Kcjfidations (A. H.) of , who obtained entry Xo. for tho mining location described as follows: On tho dny of , 18 , and (('. D.) of , who obtained ( iitry Xo. for the mining location described ns follows: on the day of , IH , and (!•:. F.) of , who (ilitained entry Xo. for the mining location described as follows: on the day of ,18 , nnd ((j. 11.) of , who obtained entry Xo. for the mining location described as follows: on tho day of , 18 , having com- ]'liod with tho conditions required by said clause 151, in so far that they have tiled a certificate of a partnershii) entered into at dated the day of , 18 , may make the annual (■\|HMuliture required by each on any one of the mining locations aroreniontioncd. ^Mining Recorder. r)8-M 914 APPENDIX II FORM " F." (21st ^Farch, 1898.) CERTIFICATE OF IMPROVEMENTS. Mineral Claim. This is to certify that of , in the Dominion Lands District, free miner's certificate Xo. , hns proved to my satisfaction that he has com])licd Avitli all the provi- sions of the Dominion Mining Regulations, to entitle liim to a cciti- ficate of improvements in respect of the Mineral Claim, situated at , in the Dominion Lands District, and in pursuance of the provisions of tlic said reiriilii- tions I do now issue this certificate of improvements, in respoei of tlie ahove claim, to Dated Mining Recorder. This certificate will hecome void unless a Crown grant is apjiliod for wilhin tliree months from its date. ^ (Form may be altered to suit circumstances.) FORM " G." (21st ^larch, 181)8.) NOTICE. Situate in the When; located Mineral Claim. Dominion Lands Di-tiici, Ta] vf htim. An/./, y. iiASKATVllEWAN lll^aULATlUSii ()25 aforesaid FORM J.-CERTIFICATE OF THE ASSIGNMENT OF A PLACER MINING CLAIM. No. Departiuoiit of tho Interior, Uouiiiiion Liuida Ollice, Agency, is . Tills is to certify that (JJ. C.) of Jias (or liave) lilud an asssignnicnt in duo form dated IS , and accompanied |jy a registration fee of two dollars, of tlie of (insert description of 18 , (13. C.) (A. B.) grant to (A. J3.) of the riglit to mine in claim) for one year from the This certilicate entitles the said to all the rights and privileges of the said in respect of the claim assigned, that is to say, to the exclusive right of entry \i])ou the said claim for the miner-like working thereof and tiie constiuction of a residence thereon, and the exclusive right to n\\ the proceeds realized therefrom, for the remaining portion of the year for which the said claim was granted to the said (A. Ji.) , that is to say, until the day of 18 . The said (B. C.) shall be on- titled to the use of so much of the water naturally ilowing tliroiigh or past his (or their) claim and not already lawfully appropriated, as shall be necessary for the duo working thereof, and to drain the claim fj-eo of charge. This grant does not convey to the said (B. C.) any surface rights in the said claim, or any right of ownership in the soil covered by the said claim; and the said grant shall lapse and be forfeited unless the claim is continuously, and in good faith, worked by the said (B. C.) or his (or their) associates. The rights hereby granted are those laid down in the Doniinion Mining Regulations, and no more, and are subject to ail the pro- visions of the said regulations, whether the same are expressed herein or not. Agent of Doniinion Lands. Note. — The wording may be changed if the applicant has ac- quired the surface rights. U26 AVPE^DIX 11 rOlJM G.— C'KIJTIIICATK 01- TlIK ASSIGNMENT OF A MIN- ING LOCATION. Depaitinent of the Interior, Dominion Lands Office, Agency, 18 . Tills is to certify that (15. ('.) of Ims (or luive) iilod an as.sijfnnient in due form, dated l.S , and ac- comimiiied by a re;jristration IVe of two dollars, of the right of (A. \\.) of to piirihasc the mining location in (here insert s^eneral dcscri])tion of locality) applied for hy the said (A. J5.) on the 18 . ' This certificate entitles the said (1?. ('.) or his (or their) legal representatives or assigns, to all the rights and privileges of the saiil (A. \\.), in respect of the claim assigned and hereinafter descriljt'd; that is to any, to enter into possession of the said mining location, and during the term of years from the date of the recei|it No. granted to the said (A. J5.), dated the day of ,18 , to take ther"from and dispose of any miner.il ieposit contained within its boundaries, and, on due compliance m any time within that period with the several requirements in that behalf of the Dominion Alining Kegulations, entitle him or them t'l juirchase the said loeation, which, provisionally, and until survi v thereof, may he known and described as follows: — If the said (J5. ('.) or his (or their) legal rei)rcsentatives or a-;- signs, fail to comjdy as aforesaid with the conditions that would en- title him or them to purchase, within year of the date of tln' receipt granted to (A. 15.) and now deposited with me, or having so complied, do not within that time make i)ayment in full for the land. and also pay the sum of iifty dollars prescribed in the said regula- tions for the survey of the location, then the right to purchase shall lapse, and the mining location shall revert to the Crown, to be othei'- wise disposed of, as may be directed by the Minister of the Tnteii..r. Agent of Dominion Lands. JOKM 11.— APPLICATION FOR GRANT FOR PLACER MIX- ING AND AFFIDAVIT OF APPLICANT. I (or we) of hereby apply, under tli.' Dominion Mining Regulations, for a grant of a claim for placer ain- ing as defined in the said regulations, in FORMS rsin:i{ DOMixioy Aiiyi\a ittUirLvnosH 927 (here cl( H'l'ibe locality) ami I ("I" we) solemnly swcnr: — 1. That I (or we) have cliscovcrcd therein n deposit of (hero iiunie the metal or mineral). 3. That r (or we) am (or are) to the best of my (or our) know- ledge and belief, the lirst discoverer (or discoverers) of the said deposit; or — ;). That the said claim was previously granted to (here name the last firantee), hut has remained unworked ])y the said grantee for nut less tiuin 4. That T (or we) nm (or are) unaware that the land is other than vacant Dominion liinn Lands OF A TLA- OfHce, IS. the use of so [his (or their) necessary fur If charge. FORMS rynini noMiyioy minixg KEGiLATioya 929 This grant does not convey to the said (B. C.) any surface rights in the said claim, or any riglit of ownership in the .soil covered by the said claim; and the said grant sliall lajise and bo forfeited uidess the claim is continuously, and in good faith, worked by the said (B. C.) or his (or their) associates. This is to certify that (B.C.) of has (or have) tiled an assignment in due form dated 18 , and ac- companied ])y a registration fee of two dollars, of the grant to (A. B.) of of the right to mine in (insert description of claim) for one year from the 18 . This certificate entitles the said (B. C.) to all the riahts and privileges of the said (A. B.) in resi)eet of llu' claim assigned, that is to say, to the exclusive right of entry upon tlic said claim for the miner-lila'\vorkinRMH VKDER D^ IiyiON MINn'^r REOULATIOXS 931 FORM L.— GRxVXT FOR DRAINAGE. Xo Department of the Interior, Dominion Lands Office, Agency, IS In consideration of the payment of a deposit of twenty-five dol- lars required by clause forty-three of tlie Dominion ]\lining Regu- lations, to be made witli the application for a grant of riglit of way to construct drains, and of the further sum of dollars, being iho fee for the registration of this grant required by clause forty- four of the said regulations. The ]klinister of tlie Interior hereby grants to (name or names of grantee or grantees) the right to run a drain or tunnel for drainage purposes through the occupied mining lands here specified: (here describe mining lands) and further, for a term of from the date hereof, exclusive riohts of way through and entry upon the following mining grounds: (here insert description) for the purpose of constructing a drain or drains for the drainage thereof; and the right to charge the following tolls for the use thereof (insert tariff of tolls): Trovided, that the grantee (or grantees) shall construct such drain or drains of suilicient size to meet all requirements within from the date hereof, and keep the same in thorough working order and repair, and free from all o1)structions; and shall, within a reason- able time, construct proper tap drains from or into any adjacent claims, upon being requested by the owners thereof, aiul in dofaidt thereof shall permit such parties themselves to make them, in whicli case such parties shall only be chargealde with one-half the rates of drainage-toll herein authorized: Provided also, that the said grantee (or grantees) shall compen- sate the owners of lands or holders of claims entered upon by for anv damage they may sustain by the construction of such tunn-d or drain: , s , ,, - Provided furtlier, that the said grantee (or grantees) shall pay lO the local agent, in advance, an annual rent of ten dollars for each (jtiarter of a mile of right of way legally held by Provided further, that this grant is s\d).ject to all the provisions of the Dominion :Mining Regulations in that behalf, whetlier the same aie exuresscd herein or not. . . Agent of Dommum Lands. Ml 932 AI'PEIWIX 11 FORM M.— NOTICE OF APPLICATION TO USE AND DIVKIIT WATER. Notice is hereby given, in pursuance of the provisions of (he Dominion Mining Regulations, tliat I (or we) of at the expiration of twenty days from Iho (late hereof, intend to apply to the :^finister of the Interior of ('n:i- ada, for authority to take, carry away, and divert to my (or m\y) mining claim or from its natural channel, inches of the unentered and unappropriated water of the (stream or lal<.') known as for purposes, diiiiuLf tlie term of years from the date of entry, with ilio object of Such diversion will be made nr a point situate on the end or side of the said (str^Hin or lake), marked on the ground by a conspicuous post: and it \f ntended that such water shall be carried in and through a (dihli. 0' '.lume, or both), in a direction over the laiiil< of as indicated by like conspicuous ])osts jtlanted about every quartci' ot a mile along the proposed location (of the ditch, or Hume, or both). (Signed) Post Office Address. Dated the day of , 18 . at FORM N.— GRANT OF RIGHT TO DIVERT WATER AND CONSTRUCT DITCHES. Department of the Interior, Dominion Lands Office, Agency, 18 In consideration of the payment of a deposit of tweiity-fivi' dol- lars, rcijuired by clause forty-seven of the Dominion .Mining K(j;nla- tions, to lie made with the ap])lication for the right to divert water and construct ditches: The ^Minister of the Interior hereby grants to {\. \\.) for the term of years from the date lioioof, the right to divert and u.se the water from (specify si ream or lake) to the extent of inches, and no iiioiv, .ND DIVEIIT visions of the ^'atp:r and FORMS— n. C. RAILMAY BILL (D0.1//A70X) 933 t„ be cliHtribiitcd as follows: (describe locality of distribu- tion) together with the right to charge the following rates for the use of said water: (insert rates to be charged) and tlie rights of way through and entry upon ihe following mining grounds (insert description) lor the purpose of constructing ditches and flumes to convey such water. ])rovided such ditclics and Humes are constructed and in work- iii'f order within from tiie date liereof: Provided, that this grant shall be deemed to be appurtenant to ininiiig claim No. , and shall cease and determine wlienever tlie said claim shall have been worked out or abandoned, or llie occasion for the use of such water upon the said claim shall have permanently ceased: Provided also, that this grant is subject to all the provisions of the Dominion Mining Kegulations in that behalf, wliether the same are expressed herein or not. Agent of Dominion Lands. Form M. Notice of Application for Eight to Divert Water. Notice is hereby given, in pursuance of the provisions of the rcnilations for the disposal of Dominion lands witliin the railway belt in the Province of liritrsh Columbia, that I, of , at the ex])iration of 20 days from the date hereof, intend to apply to the local agent of Dominion lauds at in the Province of liritish Columbia, for authority to take, carry away and divert to my (farm or mining claim) from its natural (.l,(„„icl inches of the unentered and unappropriated water of the (stream or lake) known as for purposes amiii"- tlie term of years from the date of record with the ol)iect of irn<;ating (or sluicinjr) my said (farm or mininf,' claim) ; such diversion will be made at a point situated on the (nortli, cast, south ov wi'st, end or side) of the said (stream or lake) marked on tlie ground hy a ('(mspicuous post, and it is intended that such water shall be carried in and througli a (ditch or ilume, or both) in a direction over the lands of , as indicated by like posts planted, where in-acticablo, every (piarter of a mile along tlie proposed line of the (ditch or flume, or liotli). (Signature). Dated this day of ,18 , at i ' 11 nr !■ I I 934 APPEyOIX II Form N. Affidavit in support of Application for Eight to Divert Water. I'rovincc of British C'oluinhia, To Wit: } I, of , make oath and say: — 1st. That the document hereunto annexed and marked with tlio letter " A " is a true cojiy of a notice given by me , m pm-snancc of tlie provisions of the rcguhitions for the disposal of (ho Dominion lands within the railway belt in the Province of 15riiish Columbia, and posted up by me on the day of the date thereof at ilio point of diversion therein named, 2nd. That on the day of , A.T). 18 , T iilso posted up a like copy of such notice in a conspicuous place on llio lands of each of the following persons, viz.: 3rd. That the lands of the said several persons named in tlic last above parngraph, and of no others, will be aiTected by the propnscd division in the said notice mentioned. 4th. That I am lawfully entitled to hold land under tlio snid regulations, and I am lawfully occujtying (and bona fide cultivating,' or working, as tlie case may be) the (land or mineral claim) to wliiili the c^aid water is intended to be diverted. oth. That I have ])lanted posts in accordance with the terms of, and along the proposed line of , as indicated in the saiil notice, and I believe that I have performed all conditions iirccidciit necessary to entitle me to a record of the water i)rivilegc in t]u> notice mentioned or referred to. Sworn before me, this day \ of A.D. 18 , at I (Signature), in the paid Province. j Local Agent. FOKM 0. Grant of the Right to Divert Water. To all whom it may concern — Crektixo: Know ye, that , of , having com- plied with the provisions of the regulations for the disposal of l>>i- FORMIC rxnKIt INDIAN LANDS M. REQ. {DOMINrON) arked with iho 935 luiiiion lands witliin tlio railway bolt in the Province of British Columbia, as ajtpcars by alfidavit of hinisolf, with notice annexed filed with the undersigned on the day of 18 , is hereby authorized to divert for his own use, for a period of years from the date hereof inches of unrecorded and unappro- ju'iated water of , or so much of that quantity as may be lawfully diverted and used by him under and in accordance with the provisions of the said regulations, and the said is entitled to all the rights conferred by the said regulations upon the recorded owner of a water privilege. Civen the day of 18 , at in the Province of British Colundiia. Local Ajient. SCIIEDI'LK TO COXSOLIDATKI) ^lIXINTi} REOrLATIOXS PKLATINd TO INDIAN LANDS. Form A. — Application and affidavit of discovf.rer of QUARTZ mine. T, (A. B.) of herel)y apply, under the Indian Lands Mining Bogulations for a mining lo- cation in (here give general location of ])renuses) for the purpose of mining for (here name the metal or mineral), and I hereby solemnly swear: — L That I have discovered therein a deposit of (here name the metal or mineral). 2. That I am to the best of my knowledge and belief the first discoverer of the said deposit. ;?. That I am unaware that the land is other than vacant In- (liiui land. I. That I did, on the day of mark out on tiie ground, in accordance in every ])articular with the ]ir()visi()ns of sub-section {n'- scribed in the said regulations for the survey of the location, tlien the right to jmrchase shall ' 'nd the mining location shall revert to the Crown, to be otherw, dispox'd of as may be directed l)y the Superintendent General of Indian Affairs. Indian Agent. FOR MI\- roHMs I .\ni:i{ ixniAy laxds m. re'j. woMiyios) 937 FuKM C. — HkCKII'T I'OU I'lili ox EXTENSION OE TIME lOK I'LK- CIIASE OE A MINING LOCATION. No. Department ol' ]iulian Ail'airs, Ullico of the liulian Agency at ,18 Kcceivcd from (A. li.) oi , five dollars, being the fee required by section eight of the Indian Lands Mining Regulations, accom])anying his application No. , dated , 18 , for the extension of the time within which lie may purchase the mining location described as follows (insert description in detail) for whicli he obtained an entry Xo. on the , 18 . This receipt authorizes the said (A. B.) his legal representatives or assigns, to continue in possession of the said mining location, and during the term of one year from the , 18 , to take therefrom and dispose of any mineral deposit contained within its boundaries, and, on due compliance at any time witliin that jjcriod with the several requirements in that behalf of the said mining regulations, entitles him or them to purchase the said loca- tion which, provisionally, and until survey thereof, may be known and described as above. If the said (A. B.) or his legal representatives or assigns, fail' to comply, as aforesaid, with the conditions that would entitle him or them to purchase within one year from this date, or having so complied, do not within that time make payment in full lor the land, and also pay the sum of fifty dollars prescribed in the said regulations for the survey of tlie location, tlien the right to purchase siiall lapse, and tlie mining location sluiU revert to tlie Crown, to be otherwise disposed of as may be directed by the Super- intendent General of Indian Ail'airs. Indian Agent. Form D. — Patent oe a mining location. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith — To all to whom these presents shall come. Greeting: i I ; (! il 988 APPEXDIX 11 Know Yc thnt Wc do by tlicsc presents, for T'^s, Our heirs ami suc'cosi^ors, ill consideration of (tlu! ruKilnient of tlu' Indian Land^ iJining l{ej,'ulations oi" Our Dominion of Canada) j^ive and <;ranl unto h heirs and assigns, all that parcel or lot of land situate and nundjenul on the otliciul phin of survey of the said , to have and to hold tlic said jiarcel of land, and all minerals, precious and base, Mliich may be found tliercin, unto the said h heirs and assigns forever; Provided that it shall at all times he hnvful for Ts, Our liciis and successors, or for any ))erson by Our authority, to resume aiiv portion (not exceeding onc-lwentieth |)art) of the said lands for mak- ing roads, canals, l)ridges, towing paths, or other works of ])ub|ii utility or convenience, but no sucli resumption shall be made of lainl on whicii any permanent buildings nuiy have Ijcen erected, withoni compensation; I'roviih'd, also, that it shall be lawful for any person duly author- ized by Ts, Our licirs and successors, to take and occupy such watci' ])rivileges, and to have and enjoy such right of carrying water ovrr, through or under any parts of the hereditaments hereby granted iis may bo reasonably required for agricultural or other purposes in tlif vicinity of the said land, upon i)aying therefor a reasonable com- pensation to the aforesaid h heirs and assign-:. Note. — The form in the Consolidated Mining Regulations contained ii further proviso to the following effect: "Provided further, that u royalty of two and one-half per cent, shall be paid to us, our heirs and successors, upon all the gold and silver produced from the said lands." Hut by On'or in Council of 2nd December, 1889, it was provided: " 2nd. That section.s M and 82 be n>pealed, and also the clause regarding royalty in Form ' I)' of said regulations." Note. — " In the case of the patent of a mining location situate in ihe District of Algoma the last clause of Form ' D' respecting royalty shall be omitted from said Form." Imirm E. — Certificatk of tiuc assignment of a mixinc location. No. Department of Indian Affairs, Oflfice of the Indian Agency at This is to certify that (B. C.) of assignment in due form, dated ,is . , has filed ;mi . 18 ami A MIXI.NC FOL'ilS I'XDEli lyOLiy L.l.VDS M. REQ. (DOMISIOX) 039 ac'C'oinpaniod by a ivyiiitration I'oo of two dollars, of tho riylit of (A. J5.) of , to [)iii'cluist' till' milling locution in (lioiv insLTt gouurai ilt'scriptioii of locality) ainiliod for by tliu said (A. Ji.) on the , 18 . Tins ceititiciite entitles tliu said (U. C.) or his legal roprcsonta- tivt's or assigns, to all the rights and privileges of the said (A. li.) ill respect of the claim assigned and hereinafter described; that is to vay, to enter into possession of the said mining location, and during the term of one year from the date of the receipt No. , granted to the said (A. B.) dated the day of ,18 , to tiike therefrom and dispose of any mineral deposit contained within its boundaries, and on due compliance at any time within that period with the several re(iiiirenients in that behalf of the said mining regulations, entitles him or them to imrchase the said location, which, ])rovisionally, and until survey thereof, may be known and described as follows: (insert deserijjtion in detail). If the said (H. C.) or his legal reiireseiitatives or assigns, fail to comply as aforesaid with the conditions that would entitle them to purchase within one year of the date of the receipt granted to (A. J5.), ttud now dejiosited with me, or having so complied, do not within that time make payment in full for the land, aiul also pay the suiii if iifty dollars prescribed in the said regulations for the survey of the location, then the right to purchase siiall lapse, and the mining location shall revert to the Crown, to be otherwise disclosed of as may be directed !)y the Superintendent CJeiieral of Indian Affairs. Indian Agent. Form F. — AprLicvTiox for grant fou i'lacer mixing and AFFIDAVIT OF Al'l'LICANT. I, (A.B.) of , hereby apply, under the Indian Lands Mining Regulations, for a grant of a claim Jor ]»lacer mining, as de- lined in the said regulations, in (here descrilio locality) and I solemnly swear: 1. That I have discovered therein a deposit of (here name the metal or mineral). 2. That I am, to the best of my knowledge and belief, tho first discoverer of the said deposit; or (2.) That the said claim was ])reviously granted to (here name the last grantee), but has remained unworked by the said grantee for not less than 11 illO di'i'Ksnix II I I 11 i 3. That I am unaware that tlic land is otlicr than vacant Indian land. I. That I did, on the (lay of , mark out (in the jironnd. in accordance, in every particnhir, with the provi.sions of siih-section (") '>f section 4 of liie said minin;? re^'uhitions, tlie claim for wliicli I make tliis application, and that in so doin<,' I did not encroach on any other claim or mininj; location previously laid out hy any otiier jierson. .'). Tbiit the said claim contains, as nearly as I could measure or estimate, an area oi' s(|uare I'ect, and that the description (and sketch, if any,) of this date hereto attached, sijrned Iiy me, set forth in detail, to the best of my knowledge and ahility, its ])osition, form and dimensions. (!. That I make this ap|)lication in good I'aith to acipiire Ihi' claim for the sole purpose of mining to he prosecuted l>y myself, or Ity myself and associates, or by my assigns. Sworn before me at ] this day of \ Signature. 18 ) Form G. — Grant for placer mining. Department of Indian Affairs, Olbce of the Indian Agency at , 18 . In consideration of the jmyment of five dollars, being the fee required by the i)rovisions of the Indian Lands Mining Hegulations. sections tour and twenty, by (A. J5.), of , accompanyim: bis apjtlication No. dated , for a mining claim in (here insert description of locality); The Superintendent General of Indian Affairs hereby grants In the said (A. 15.) , for the term of one year from thi' date liereof, the exclusive right of entry npon the claim (here describe in detail the claim granted) for the miui'i- likc working thereof, and the construction of a residence thereon. and the exclusive riglit to all the proceeds realized therefrom. The said (A. 1?.) shall be entitled to the use nf so nnich of the water naturally flowing through or i)ast his claim, and not already lawfully appropriated, as shall be necessary for the due working thereof, and to drain his claim, free of charge. 'J'his grant does not convey to the said (A. B.) iiny surface rights in the said claim, or any right of ownership in tlu' !] FORMS VyDER IXniAX LWHS M. lilUI. U><).UIM(>\) ()\\ Koil cDVcrcd l)y tlio siiiil iliiim; ami the said ^'raiit sliall lapso and lit' I'drlVitcd iiidi.Hf tlio flaiiii is contiiiiioiisly and in j^ood luitli wdrlvud by the said (A. J5.) or his associati's. 'I'lic rigids iu'reby graiitt'd arc timsc laid down in the aforesaid mining regulations, and no iiiorc, and are sidiject to ail the provi- sions of the said regulations, whetlu'r the same are expressed or not. Indian Agent. J''()K.\I II. — t'lCUTIl'IC.Vrii OK TlIK A.SSl(;.\MK.N T Ul" A I'LACICU MINING CLAI.M. No. Department of Indian AiVairs, Ollice of the Indian Ageiiey at of ,18 . This is to certify that (H. <'.) of , has tiled an assignment in due form, dated , IS , and aeeom- panied hy a registration fee of two dollars, of the grant to (A. ]{.) of , of the right to mine in (insert (leseriptiou of claim) for one year from the , 18 . This grant does not convey to the said (U. C.) liny surface rights in the said claim, or any right of o\\nershi[) in the soil covered hy the said claim; and the said grant shall lapse and he forfeited unless the claim is continuously and in good faith worked hy the said (li. C) or his associates. The rights hereby granted are those laid down in the aforesaid mining regulations, and no nu)re, and are subject to all the provi- -ioiis of the said regulations, whether the same are expressed herein ur not. Indian Agent. I''oUM I. — (iUANT TO A nKD-KOCK IM.lMl': COMl'AN'V. Department of Indian AlVairs, Office of the Indian Agency at , IS . In consideration of the ])ayment of a di'posit of one hundred dollars, required by section thirty-seven of the Indian Lands .Mining Ecgidations to be made with the application of a bed-rock ilumo (ompany, and of the further sum of ten dollars, being the fee for the registration of this grant required by section forty-two of tho paid regulations; 942 APPijynix 11 f :: - \ The Supcrintondont ("Jcnoral of Indian All'airs hereby grants In (names of members of company) forming together a bed-rock ihuni; company [known as the (title of the company)], the following rights and privileges, that is t- say: — («) The rights of way throiigh and entry upon any new and unworked river, creek, gulch or ravine, and the exclusive right to locate and work a strip of ground 100 feet wide and 200 feet long in the bed thereof to each individual of the company; {h) The rights of way through and entry upon any river, creek, gulch, or ravine, worked by miners for any period longer than two years ])rior to such entry, and already wholly or partially abandoned, and the exclusive right to stake out and work both the unworked and abandoned jjortions thereof, 100 feet in width and. \ of a mile in length for each individual of the company. (f) The rights of way through and entry upon all claims whicli at the time of the notice of application, are in good faith beiiiL;- worked, for the ])urpose of cutting a channel and laying their fluiuc therein, with such reasonable s])ace for constructing, maintaining and re])airing the flume as may be necessary. (ubject to all the itrovisioiis of the Indian Lands 'Mining Ifegulations in that behalf, whether the same are expressed herein or not. This grant shall cease and determine at the cxj>iration of years from the date hereof. Indian Agent. FORMS lyDEli IXDIAX LAXDS M. REO. {DOMIXIOS) 943 No. Form J. — Grant for drainage. Department of Indian AflPairs, OiFice of the Indian Agency at 18 In consideration of the payment of a deposit of twenty-five dol- lars required l)y section forty-six of the Indian Lands Alining Regu- lations to he made with the application for a grant of right of way to construct drains, and of the further sum of dollars, heing the fee for the registration of this grant required by section forty- seven of the said regulations; The Superintendent CJeneral of Indian Affairs hereby grants to (name or names of grantee or grantees) the right to run a drain or tunnel for drainage purposes through the occupied mining lands here specified (here describe mining lands) and further, for a term of from the date hereof, exclusive rights of way through and entry upon the following mining grounds: (hero insert descri})tion) for the ])urpose of constructing a drain or drains for the drainage thereof; and the right io charge the following tolls for the use thereof: (insert tariff of tolls); Provided, that the grantee shall construct such drain or drains of suiricient size to meet all requirements within from the ilate hereof and kec]) the same in thorough working order and repair, and free from all obstructions; and shall, within a reasonable time, construct ]n'oper ta])-drains from or into any adjacent claims, iipon being requested to do so by the owners thereof, and in default thereof f-liall iiermit such i)arlies to make them themselves, in which case such parties shall oidy be chargeable with one-half the rates of drain- age toll herein authorized; Provided, also, that the said grantee shall compensate the own- ers of laiuls or Ixdders of claims entered upon by for any damage they may sustain by the construction of such tunnel or drain; Provided, further, that the said grantee shall i)ay to the local ngent, in advance, an annual rent of ten dollars for each quarter of a mile of right of way legally held by Provided, further, that this grant is subject to all the provisions of the Indian Lands "Mining l?egulations in that behalf, whether the same are expressed herein or not. Indian Airent. M '■ I ' dU APPEXDIX II Form Iv. — Grant of right to divert water and construct DITCHES. No. . — Department of Indian Affairs, Otlice of the Indian Agency at , IB In consideration of tlie ])ayment of a deposit of twentj'-livc dol- lars, reqnired by section fifty of the Indian Lan'U ^Mining Hogulatioiis to be made witli tlie application for the rig' to divert water ainl construct ditclies; The !Sui)erintendent General of Indian Aifairs hereby gnints to (A. 1>.) for the term of years from the ihilf liercof, the right to divert and use the water from (specify sti'cam or lake) to tlie extent of inches, and no uum\ to be distributed as follows): (describe locality of distrilm- tion) together with tlie right to charge the following rales for tlie use of the said water: (insert rates to be charged) and the rights of way through and entry ujion the following iiiiniiii,c grounds (insert descrijition) for the purpose of cun. structing ditches and ilunies to convey such water, provided siuli ditches and flumes are constructed and in working order witliin from the date hereof; Provided that this grant shall be deemed to be appurtenant to mining claim Xo. , and siiall cease and determine whenever llic said claim shall liave been worked out or aliandoned, or the occasii>ii for the use of such water ujion flic said claim shall have i»eriiuuuiiil\ ceased; Provided, also, that this grant is subject to all the provisions uf the Indian Lands .Mining Kegulatioiis in that behalf, whetlier the fcume are expressed herein or not. O. ('. Oct. 1, 1887; May 2, 1888. Indian Agent. DOMINION LAND TITLES ACT. Form E. Cerh'firnfc of Title. Canada — Territories nisfrict. Kegislralioii. This is to certify that A. 15. of , is now the owner of one esfatr (descrilic the eslafe) of and in (describe the propiTlv) siiii- FORMS l\DER DOiUyiON LAXD TITLES ACT 945 iect to the encumbrances, liens and interests notified by mcmorandmn underwritten or endorsed hereon, or which may hereafter be made in tlie register. In witness whereof, I have hereunto subscribed my name and affixed my official seal this day of , A.D. 18 . And if subject to a mortgage say: The title of A. B. is subject to mortgage, dated the day ,,f , made by A. B. to W. B. to seer re (here state the amount secured, the rate of interest per cent, per annum, and tlie ret^pective dates from which the principal and interest are secured) payable as therein mentioned. If mortgage is discharged, say: The above mortgage Xo. , is discharged this day of , A.D. (here state tTie distinguishing letter or uuuiber of the register and the number of the folio therein). And if subject to a lease, say: The title of A. B. is subject to a lease, dated the day of , made by A. li. to Y. Z. for the term of years. When the transfer is absolute, say: This certificate of title is cancelled and a new certificate of title No. issued this day of , A.D. IS , Form J. Transfer. I, A. B., being registered owner of an estate (state the nature of estate), subject, however, to such enoiunl)rances, liens and interests as are notified by memorandum underwritten (or endorsed 'hereon), in all that certain tract of land containing acres, more or less, and being (part of) section township range in the (or ns the case may be), (here state rights of way, ])rivileges, easements, if any, intended to t)e conveyed along with the land, and if the land dealt witli con- tains all included in the original grant refer tluM-eto for de- scriptions of ])arcels and diagrams; otherwise set forth the bound- aries and accomjiany the description by a diagram), do here1)y in con- sideration of the sum of dollars ])aid to nu^ by E. F., the receipt of which sum T hereby acknowledge, transfer to the sai day of 18 . Signed by the above named A. B. ] in the presence of ' (Signature.) Form V. Form of Caveat Forhiddimj Iteijistralioii or Dcaliiuj ivith Lands. To the Registrar district : Take notice that I, A, B., of (insert description), claiming (Iumy> state the nature of the estate or interest claimed, and the groiimls upon which such claim is founded), in (here describe land and rclci' to certificate of title), forbid the registration of any transfer or otlur instrument until this caveat is withdrawn by the caveator or by tli ■ order of a Court of compcient jurisdiction, or a Judge thereof, u' unless such dealing is subject to the claim of the caveator, or until after the lapse of days from the date of the service of notice' on the caveator at the following address : (insert it.) Dated this day of Signed by the above named I in the presence of 18 (Signature of caveator or his agent.) FOllMS IXDEU nOMIXION LAND TITLEU ACT 955 I, the ui)ovi' 11111110(1 A. W. (or ('. 1)., ii;,'i'nt for tlu- al)ovt' A. U.), nf (ri'siclt'iife and dt'seriptioii), iiiakf oatli (or allinii, as tlio ease iiiiiy lie), and Hay that all alli'pitions in the above caveat aiv trm- in suli- titaiU'O and in fact (and if no jiersonal knowled^'o, as 1 have bi-cii ill formed and verily believe.) Sworn, etc., (Signature.) ]'ORM W. Affidavit of Atleslution of an Inslnimenf. I (A. B.), of in the make oath and say : — 1. I was jiersonally present and did see niiiiK'd in the (within or annexed) instrument, who is personally known to ine to be the person named therein, duly sign and execute the same for the purposes named therein : 2. That the same was executed at the in the and that I am the subscriliing witness tlicrcto. 3. That I know the said and lie is, in my belief, of the full age of twenty-one years. Sworn before me at in Mie this day of A.D. 18 . (Signature.) FORMS TO "TllK MIXES ACT" (OXTAHIO). roinr of appltcatiox for ^iixixti laxos axd of AFFIDAVIT OF DISCOVERY. The Commissioner of Crown Lands, Toronto: Sir, — I hereby apply for a (grant or lease) under the terms and provisions of "The Mines Act," R. S. 0. 1897, of a mining location consisting of acres more or less aud described as follows: (If in a surveyed townshii) give name of town.ship and number of t I 'If s ; i J! 956 APPENDIX It concession and section or lot or part thereof. If in iinsurveyed terri- tory give the h)cality as descrihed hy the phins and fiekl notes of the surveyor, or, if the huid applied for has not heen surveyed, such other description as will enahle the Director of Surveys to indicate the locality upon the office mai:)). Dated at , 189 . District of ] I, of tlie [ of , in the To Wit: j of make oath and say: 1. That on the day of , 189 , I, or (name ol' party) on my behalf, discovered valualjle ore or mineral on tiie loca- tion named in the above application, that is to say: (Particulars of discovery). 2. Tliat I have no knowledge and have never heard of any adverse claim to tlie said location by reason of prior discovery or otherwise. Sworn before me at in the district of this day of A.D. 189 . AFFIDAVITS IX SUPrOKT OF APPLICATIOX FOR LAM) UNDER THE MIXES ACT. Ontario, Distnct of To M-it: I, of the township of , and I , , in the dis- , do solemnly swear: , I personally visitnl in the in tlie district of of the township of trict of 1. That on the day of and carefully examined lot number concession of the township of , and at that time there was no person residing on said lot, and there were no improvements thereon (or according as the fact is). 2. That there was no visible trace nor indication oi' work havinu' been done on said lot, hy any ])erson or persons for mining or other ])urposes (as the fact is). 2. And, that to the best of my knowledge ami heliel' there is no claim to said location hy any person or persons adverse to lliat of , till' a|»])licant. on the ground of priority of dis- covery of mineral thcreitn, or otherwise. Sworn before me at | in the district of this davof A.D. 1S9 . s" FOR LAN!) of work liaviitu' FORMS— OyTARIO 957 AFFIDAVIT OF ORIGIXAL DISCO VRHER IX SUPPORT 01 APPLICATION FOR FREE LOCATION OF FORTY ACRES. Ontario District of To Wit; I 111 I, of the district of , do solemnly swear: 1. Tliat on the day of , A.D. 189 , I dis- covered valuable mineral in a vein or lode on (describe tlie location), such mineral consisting of , and that I have no knowledge or information of any previous discovery of valuable mineral on said location, and verily believe that I am the original discoverer of the same. 2. That by careful examination on the ground I have ascer- tained that the mineral so discovered by me on said location is (state tlie kind of metal, ore or mineral), and is on or in a vein, lode or deposit at least ten miles from the nearest known occurrence of the tame metal, ore or mineral. ;?. That the nearest mine, vein or h)de of tlio same metal, ore or mineral to, the mineral so discovered by me of wliicli I have any knowledge or information is situated (describe the location). Sworn before mc at the \ of in the of j. this day of , A.D. 189 . ) A Commissioner in 11. C. J. The material portions of this affidavit are to be confirmed by the affidavits of two disinterested persons, stating tlie facts in their knowledge I'ud their means of knowledg(>. It is desirable that one of the two should, where that is practicable, be an Ontario Land Surveyor. The form is given hereunder. AFFIDAVIT OF ONTARIO LAND SURVEYOR RR APPLICA- TION FOR FREE LOCATION OF FORTY ACRES. Ontario District of To Wit: the I, of the of , in of , do solemnly swear: 1. That I am a duly qualified Ontario Land Surveyor. 2. That on the day of , A.D. 189 , T visited (dtscribo the location) and saw the valuable metal, ore or mineral on [I 5 1 11 i 91 *- I u 5i ■ •i ■I ■ 1 i 958 APPENDIX II or in a vein, lode or dejiosit thereon, of which one claims to be the original discoverer, sucli metal, ore or mineral consist- ing of , . . 3. That on the said date I carefully examined the location of ^aid metal, ore or mineral, and that to the best of my knowledge and information the same is at least ten miles from the nearest known mine or occurrence of the said metal, ore or mineral. 4. Tliat the nearest known mine, vein, lode or deposit of metal, ore or mineral of wliich I have any knowledge or information is situated (describe its location). Sworn before me at the of in tlie of this day of , A.D. 189 , A Coi >missioner in H. C. J. The nl}ove affidavit may be used by others than surveyors ia proof of claim, striking out clause 1 in such case. TRANSFER OF MINING LEAST-: No. of tlie of in the of being the lessee of the lands demised by a certain mining li'uso granted by Her Majesty the Queen to dated the day of 189 , and numbered in the register of mining leases in the Department of Crown Lands as Number wliich lands may he more particularly known and described as fol- lows, that is to say: in consideration of the sum of dollars paid to by of the receipt of which sum is hore])y acknowledged, and of do liereby tran \ A Commissioner in If. C. J. MICIIIPICOTOX MINING DIVISION. Notice of Miuiuy Chiim and Afpdarit of Discovery. To the Inspector of Klines: Sir, — I, of in the (Province or state) holder of ^liner's License No. do hereby present a notice of claim under the terms and provisions of '* The Mines Act,"' K. S. 0. I ! u > I w i F-- HI 960 APPENDIX II 1897, and of the Eogiilations for Mining Divisions made thercund r, for a mining claim consisting of acres more or less, accord- ing to the sketch or ])lan attached hereto, and which nifiy be nioic j)articularly described as follows: Memo, for Licrtisrc. Set forth the name (if any) of the claim, and iis locality as indicated by some general description or statement; length of boundary lines if for any cause they are not regular, and nature of sue li cause; situation of discovery post as indicated by distance and direction from first corner post; time (date and hour) when discovery of ore or mineral was made; when claim was marked or staked out and lines blazcii; and date of this notice. See No. 18 to 25 inclusive of regulations approved by the Lieutenant-Governor in Council, January 29, 1898. Signatnre of licensee in full. Dated at 189 CEKTIFICATK OF EECOliD OF MINING CLAIM. (Michipicoton Mining Division.) This is to certify that licensee iind.r Alining License Xo. did on the day of tile in this oiTice the sketch or jjlan, notice and allidavit in accordaiuo with section 25 of the Kegiilations for ^Mining Divisions of -^'-Hh Jannarv, 1S!)8, relating to ^Mining Claim No. described as follows: And tliere being no, dispute as to the rights of the said licensee to Iho said claim by reason of jirior discovery or otherwise, this certilicito is granted i)iirsuant to section 2(5 of tlie said Regulations. Dated 18 Inspector of the Division. TIJAN8FKK OF .MIX1\(; CLAIM. T, licensee under .Miner's License Xo. , Slichipicoton Alining Division, in consideration of dolhu's to nic paid by licensee under Miners License Xo. in the said "Mining Division, do hereby transfer to llic said my interest in Mining Claim No. deserilicd as follows : I- ' 2 thereiuiclM-, r less, accovd- nmy be moir claim, and Us lent; length of nature of such t and direction irery of ore or id lines blazed; itions approved usee in full. :)LAIM. licensee undiT t in accordance isions of •.'!)th described as icensoe to I lie :his certititato ons. tlie Division. "uso No. , dollars r'ri License Xn. sfer to the said dcscrilMd I'Oh'Mti—OyTAUIO 901 Dated this Witness, District of I To wit : f That I know day of 18 . Signature. T, of the of make oath and say: — in the above named, and was present and saw him duly sign and execute the above transfer of mining claim at in the of Sworn before me at the of in the of this day of lOHM OF LICENSE FROM ONTARIO TO EXTRA-PROVIN- CIAL ]\TINING COMPANY. (Signature of Lieutenant-Governor.) (Signature of Attorney-General.) PUOVINCE OF OnTAUIO. ViCTOiu.^, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, etc., etc. To all to whom these presents shall come. Greeting : Whereas by the statute of the Legislature of our Province of Ontario, intitided " An Act respecting the Incorporation and J{egu- lation of Joint Stock Companies,'' it is, amongst other things, enacted that any company incorporated otherwise than by or under the au- thority of an Act of the said Legislature, desiring to carry on any of its business, which is within the scope of the said Act, within our Provin(e of Ontario may, through our Provincial Secretary, petition our liieutenant-Governor in Council for a license so to do, and that our Lieutenant-Governor in Council may thereupon authorize such coin|iany to use, exercise and enjoy any powers, privileges and rights set forth in the si id license, but that no such license shall lie i.ssued il l)G2 APPENDIX II until such coni]iany has deposited in the olfice of our Provincial Sec- retary a true copy of the Act, charter or other instrument incor|in- rating the company, verified in the manner wliieli may he salisl'aclorv to our Lieutenant-Governor in Council, togcliier witli a duly exe- cuted i)o\ver of attorney under its common seal empowering sonic person therein named and residing in our Province of Ontario to at i as its attorney, and to sue and be sued, plead or he imi)leaded in anv Court, and generally on belialf of sucli company, and within our said Province, to accejjt service of ])rocess, and to receive all lawful not id's, and for the purposes aforesaid to do all acts and to execute all dccils and other instruments relating to the matters within the scope of the jjower of attorney. And whereas it has been made to a])pear that a company incir- ])orated under the laws of tlie Imperial Parliament of our l^ingdoiu of (Jreat IJritain and Ireland on tlie day of nuc thousand eight hundred and ninety desires to carry on ( . r- tain of its l)usiness within our Province of Ontario, and for thai imi'- pose has ap])lied to our Lieulenant-Oovernor in Council for the i»iip of a license in that ])ehalf, and lias de])osited in the olfice of our i'm- vincial Secretary a true co])y of the memorandum and articles of association of the said comi)any, together with a duly executed pduer of attorney, verified in the manner which is satisfactory to our Li n- tenant-Oovernor in Council. And whereas it lias a])])eared to our Lieutenant-Ooveriior in Council expedient to grant to the said authority to use, exercise and enjoy within our said Province of Ontario such of tlie powers, ])rivileges and rights as are hereinafter set forth. Xow, know ye, that hy and with the advice of our Kxciiiiive Council of our Province of Ontario, and under the authority of the hereinbefore recited statute, and of any other power or authmiiv whatsoever in us vested in this behalf, we do, by this our license, g'nuit to the powers, ])rivileges and rights rccpiiivil lor the due carrying on within our Province of Ontario of the biL-in-ss hereinafter si)ecificd as fully as if the said the liad been incorporated under the said Act resj)ecting the Incoipcia- tion anil Regulation of Joint Stock Companies, that is to say: — To carry on, in all its branches, the business of a mining, mill- ing, reduction and development company, and, for the said piiriicMS only, (a) to i)rospect for, o])en, explore, develop, work, improve, maintain, and manage gold, silver, coi)per, coal, iron and other mines, [ FORMS— OXTAltIO 9C8 niincral and othei- deposits and properties, and to dig for, raise, crusli, wash, smelt, assay, analyze, reduce and amalgamate and otherwise treat ores, metals and minerals, whether helonging to the eomi)any or not, and to render the same merchantahle, and to sell and other- wise dispose of the same, or any i)art thereof, or any interest therein; (/)) to aeipiire hy ])nrehase, lease, concession, license, exchange or other legal title, mines, mining lands, easements, mineral properties, or any interest therein, minerals and ores and mining claims, op- tions, junvers, privileges, watcM- and other rights, ])ateiit rights, letters imtent of invention, ])rocesscs and mechanical or other con- trivances, and either ahsoluteiy or conditionally, and either solely or jointlv with others, and as principals, agents, contractors or other- wise, and to lease, mortgage, place under license, hypothecate, sell, (lis])0se of and otherwise deal with the same or any ])art tliereof, or jiiiv interest therein; (r) to construct, maintain, alter, make, work and ojierate on the property of the company, or on property con- trolled hy the comi)any, tramways, telegraph or telephone lines, re- siTvoirs, dams, ilumes, race and other ways, water ])()wers, aipieducts, walls, roads, ])iers, wharves, buildings, sho[)s, stamping mills and other works and nuichinery, i)lant and electrical and other a])pliances uf every descri])tion, and to buy, sell, manufacture and deal in all kmh of goods, stores, implements, provisions, chattt'ls and eil'ects required hy the company, or its wcn-kmen or servants- (d) to build, acciuire, own, charter, navigate and use steam and other vessels; (c) to take, acquire and hold as the consideration for ores, metals or iiiiiicrals sold or otherwise disposed of, or for goods su|)plied, or for work done by contract or otherwise, shares, debentures, l)onds or other securities of or in any other eomi)any having objects similar til those of the company hereby lieensed, and to sell or otherwise dispose of the same; (/') to enter into any arrangement for sharing lu'ofits, union of interests, or co-operation with any other person or (oiiipany. carrying on or about to carry on any business or transac- tion which may be of benefit to the company hert>by lieensed; (i/) to luircliase or otherwise accpiire and nndertake all or any ])art of the assets, business, property, jirivileges, contracts, right>, obligiitions iiuil liiiliilities of any ])erson or company carrying on any part of the liusiuess which the company hereby lieensed is authorized to carry on, or possessed of ])roi)erty suitable for the purposes thereof; (h) to Miliserilie for and take and hold shares or stock in any comjiany in- corporated as iu-ovid(>d by section II of the Act respecting the fn- corporation and Kegnlation of ■Nfiniug romi)anies for the iiurjiose of iicquiriug, holding, constructing, maintaining and keeping in n-pair i. ! if {)M APPENDIX H roads, bridges, iiiiprovonionts in waterways, or other means of com- municiition, and drainage works and other improvements upMn, through, over or adjacent to, or leading to or from the lands of ii comj)any incorporated under section 3 of the said Act; provided that tlie consent of the shareholders shall he first obtained by resolu- tion passrd at a special general meeting called for that purjjose, an 1 (i) to do all such acts, matters and things as shall be incidental ay necessary to the due attainment of the above o])jects, or any cf them. And we direct that the said shall be subject to such ])rovisions as the Legislature of our Province of Ontario niav deem to ])e expedient in order to secure the duo management of its affairs within our said Province. And we further direct that this our license shall l)e forfeited liy non-user during two consecutive years at any one time. In testimony whereof we have caused these our letters to lie made ])a(ent and the Great Seal of our Province of Ontario to lie hereunto allixed. Witness: The Honourable Lieutenant-Governor of our Prnviiho of Ontario. At our Government House, in our city of Toronto, in our snid Province, this day of in the year of Our Lord nno thousand eight hundred and ninety and in the yonr of our reign. Bv command. Assistant Secretnrv. Tlh' following forms are sanctioned by "The Land Titles .\(t." P. S. 0. lSi)r, c. L38. 7.-F0RM OF CERTTFTCATR OF 0WXKP8I111'. (Rule 40.) I-AND TITI.V.S ACT. Tills is to certify that A. B. is the owner (etc.. in terms of the entry in the register). ir of owv rrnviiiio ant Secretary. in terms nf tlic FOIfMH—OXTAlflO 10.— CAUTION UND1<:R section 85 AGAINST I'lUST KKGISTKATION. (Ihile 20.) LAND TITLES ACT. I, A. B., of etc., have sueli an interest in the land liereinal'ter particularly described as entitles me to object to any disposition thereof being made without my consent, and I am entitled to notice of any application that may be made for the registration of such land. The following is a particular description of the said land, that is to say (here insert description of land to be all'octed l)y the caution). My address for service of notice is , in the of , in the county of ; my post ollice address is Dated this day of , IS . (Signature of the cautioner or his solicitor.) i;.— AFFIDAVIT IN SUPPORT OF CAT'TIOX LODGED BE- FORE FIRST KE{J1STRATI()X I'NDER SECTION 85. (Rule 20.) LAND TITLES ACT. I, A. 13., of, etc., make oath and say as follows: My interest in the land described iji the above (or annexed) cau- li(in entitles me to object to any disposition of tlie said land being made without my consent, and the nature of such my interest is as fdllov.s: [here state particulars of cautioner's interest.] Sworn, etc. 19.— CAUTION UNDER SECTKJN To AFTER RE TRATIOX. (Rule 21.) LAND TITLES ACT. I, A. B., of, etc., being interested in the land registered in the iiiiino of G. H., as parcel 40 in the register for the township of York (nr in the charge registered as No. , in the name of ]•]. V., of, I ! ) '! 9G6 ArPEXDIX II otc, ns ownor and h^'mp on pnrc-ol 10. lownsliip of York |i\s tlu- cum' may l)C'|,) rt'ciuirc that no doaling with such hmd (or char^jc) he hud on the part of the ref,dstcrod owner until notice has l)een si'rvid upon me. ^ly address for service of notice is h)t , in the cnnc('<- sion, in the county of , and my post ollico address is Dated this day of , 18 . yiitnaturc of the cautioner or liis solicitor. 20.— AFFIDAVIT IN SUPPORT OF CAUTION LODOl'l) AFTER REGISTRATION UNDER SECTION 75. (Rule 21.) LAND TITI.KS ACT. I, A. IJ., of, etc., make oath and say, as follows: — 1 am interested in the land (or charge) mentioned in the almvo (or annexed) cantion, and the particulars of my interest are as I'ul- lows I here state particulars]. Sworn, etc. 21.— APPLICATION FOR NOTICE TO TERMINATE CAUTION' IN RESPECT OE LAND. (Section TO, Rule 22.) A. 1?., the regi' "ed owner (or the transferee of C. 1)., the n -i- tored owner) of the land registered as parcel 48() in the registci' nf Laud Titles for the township of York in the name of the said A. 1!. (or C. D.), applies to the .Master of Titles for a notice to he scimiI with a view of terminating Caution -IS-KI lodged liy E. (i. nMpiiriii:,' that no dealing with the said land should be had on the |)art of the registered owner until notice (etc., according to the terms of ilic caution). This application is made because (state grounds of a|)pli(;itio:i). The address of the said A. B. for service is the ollice of his solicitor N. Y., 1-1 Court Street, Toronto. Dated this day of , A.D. 18 . N. Y., Solicitor for A. 15. FOUMS—OM'AUIO 0(57 23.— AtJTlIOmTY TO NOTIFY WITHDRAWAL OF CAUTIOX. (Kulu 22.) LAND TITLES ACT. I, A. B-, of, etc., who roj,'istori'(l ii cmition in respect of the land lo^ri^'fored as imrcel 10 in tlio ri'jfistiT I'or liio townsliip of Vork (or ill ri's|iect of a cliarf^e registered as No. , and heing on jjarcel ID, township of Yorlt, as tiie ease may l)o) hereby autliorizo the Mas- ter of Titles to enter in the register a withdrawal of the said caution and to cancel the same. Dated the day of , 18 . A. IJ. AVitness: E. F. 2t.— AFFIDAVIT ATTESTING ilNECTTION OF WITH- DRAWAL OF CAUTION. (Rule ;i2.) LAND TITLES ACT. I, (J. H., of, etc., a solicitor of the Supreme Court of Judica- ture (or as the case nuiy he) make oath and say: — 1 am well acquainted with A. 15. named in the above withdrawal of caution, and the signature purporting to be his signature at the foot of the said document is in his handwriting. 1 l)elieve the said A. 15. to be tlie person who registered tiie caution referred to in the said document. The said A. B. is of the age of 21 years or over, and is of sound mind, and signed the said document voluntarily at Toronto, in the I'l'ovince of Ontario (or as the case nuiy be). 1 am a subscribing witness to the said document. Sworn, etc. 25.— AITLICATION FOR IXlIir.lTlNO ORDKK IXDFR SECTION 81. (Rule 2;?.) LAND TITLES ACT. ('. D., of, etc., being interested in the land registered in the otlice of Land Titles at , in the name of , as i)arcel in the register for the township of (or in charge No. in ^>. IMAGE EVALUATION TEST TARGET (MT-S) .<^'^,^ ^j <^ ^° M^ 1.0 I.I 1.25 1^ ^ 1^ 12.2 2.0 m ■ 4 1.4 1.6 Photographic Sciences Corporation 33 WBT MAIN STRUT WnSTIR.N.Y. USM (71«)«72-4S03 ■4^ ^ A \ 968 APPENDIX II registered the day of , 18 , in the name of on the land, etc., as the case may be) hereby requests the Master to inhibit imtil further order or entry (or otherwise, as the case may be) any dealing with the said land (or charge). The grounds of this application, and evidence to be produced in support thereof, are stated (or referred to) in the affidavit of the said C. D. (or of E. P., the solicitor of the said C. D.) filed herewitli. The address of the said C. D. for service is (here state address). Dated, etc. '(Signature of C. D. or his solicitor.) Affidavit to be filed stating particulars of applicant's title. 26.— APPLICATION UNDER SECTION 82 TO REGISTEPt RESTRICTION. (Rule 24.) LAND TITLES ACT. A. B., the registered owner of the land registered in the office of Land Titles at , as parcel in the register for the township of , requests the Master to make an entry in tlie register that no transfer shall be made of, or charge created on such land, unless [hers ins-irt the terms of the restriction required to bo entered]. Dated the day of , 18 . (Signature of owner.) 27.— APPLICATION UNDER SECTION 83 TO WITHDRAW OR MODIFY RESTRICTION. (Rule 24). LAND TITLES ACT. A. B., the registered owner of the land registered in the otlioc of Land Titles at , as parcel in the register for the township of , C. D., of, etc., and E. F., of, etc., request tlut tilt ■restriction on transfo' ing or charging the said parcel on llio register, a note whereof was made on the register on the diiy of , 18 , may be withdrawn (or modified in the following manner, here state the nature of the modification required). Dated the day of . 18 . ♦(Signatures of A. B., C. D., E. F., etc.) "Witness to all the signatures, X. Y. • The applicants must be all the persons Interested in tho restriction. FOUiia—O^iTARIO 9G9 28.— CHARGE OR MORTGAGE WITH BAR OF DOWER. (Sections 33-39, Rule 25.) LAND TITLES ACT. I, A. B., the registered owner of the land entered in the office of Land Titles at , as parcel in the register for , in consideration of ($2,000) paid to me, charge such land with the payment to C. D., of, etc., on the day of , 18 , of the principal sum of ($2,000) with interest at the rate of per cent, per annum, and with a power of sale to be exercised after de- fault, and months' subsequent notice of the intention to sell (or as the case may be). (Add any covenants which are agreed to and are not implied under the Act or otherwise). I, E. B., wife of the said A. B., hereby bar my dower in the said land. This charge is made in pursuance of " The Act respecting Short 1- ornis of Mortgages " (where it is desired that the covenants, etc., should operate under that Act.) Dated the day of , 18 . (Signatures of A. B. and E. B.) Witness, X. Y. (Xo seal necessary.) NpTE. — If no interest is to be payable, or no power of sale given, substitute the words " without interest," or " without a power of sale," as the case may be. For affidavits of executioi; see Forms 46 and 47, and where executed under power of Attorney see i' 'rm 48. 29.— TRANSFER OF CHARGE OR MORTGAGE. (Section 57.) LAND TITLES ACT. I, C. D., the registered owner under the Land Titles Act, of the charge dated the day of j 18 , made by A. B., etc., and registered as number , charging the land registered as parcel G, township of York (as the case may be) in coi^sideration of ($2,000) paid to me, transfer such charge to E. F., of, etc., as owner. [Where the charge is transferred upon an agreement to re- transfer the same upon the payment of a sum of money or upon the performance of any other conditions agreed upon, insert: A. B. hereby agrees that he will, upon payment to him of the sum of on the day of , 18 , Avith interest thereon 1 1 ?70 Al'PE^'DIX II at per cent, from the day of , 18 , re-transfcr tlie said charge to the said C. D. or as the case may be.] Dated the day of , 18 . (Signature of registered owner of charge.) Witness, X, Y. (No seal necessary.) 30.— TRANSFER OF FREEHOLD OR LEASEHOLD LAND. (Sections 41-56, Rule 30). LAND TITLES ACT. I, A. B., the registered owner of the land (or leasehold land) registered in the office of Land Titles at , as parcel G, township of York (as the case may be), in consideration of ($3,000) paid to nie, transfer such land to C. D., of., etc. Dated the day of , 18 . (Signature of registered owner.) Witness, X, Y. (No seal necessary.) Note. — For affidavit of execution, see Forms 46 and 47. and wlieie under power of Attorney, Form 48. 31.— TRANSFER OF FREEHOLD OR LEASEHOLD LAND IX PARCELS. (Sections 41-5G, Rule 30.) LAND TITLES ACT. I, A. V>., the registered owner of the freehold (or leasehold) land registered in the office of I^and Titles at , as parcel in the register for Nortli-West Toronto, in consideration of $1,500 [laiil to me, transfer to C 1)., of, etc., the land hereinafter particularly described, namely (describe portion transferred), being i)art of the said parcel. And 1, E. ]{., wife of the said A. ]i., hereby bar my dower in the said land. Witness, X. Y. (Signatures.) (No seals necessary.) Note.— For affidavit of execution, see Forms 46 and 47, and wliere under power of Attorney, Form 48. FORMS— OyTAlUO 971 ;32._SPECIxiL APPLICATIOX TO NOTIFY CESSATION OF INCUMBKANCE OR LEASE CHEATED BE FORK FIRST RFOISTRATION. (Section 30, Rule 35.) LAND TITLES ACT. A. B., the registered owner of the land entered in the register for as parcel herel)y recjuests the Master to notify on the register the cessation of the incuniln-ance (describing it) (or the determination of the lease, describing it), entered upon the register, tlie same being discharged (or determined), as appears by the abstract of title marked B. (or as appears from the receipt endorsed upon the instrument of incundjrance, or otherwise, as the case may be), and the atlidavit of lodged herewith. Dated the day of , 18 . (Signature of A. B. or his Solicitor.) 37.— APPLICATIOX FOR RKOISTRATIOX OF NOTICE OF LEASF:, OR AGREEMENT FOR LEASE. (Sections 73 and 73, Rule 36.) LAND TITLES ACT. C. D., of, etc., being interested in tlie land entered in the regis- ter for as parcel , of whicli A. !>. is the registered owner, by reason of the lease (or agreement for a lease) annexed here- to, hereby requires the blaster of Titles to enter a notice of the said lease (or agreement) upon th > register. A. B., the registered owner of the above land, concurs in this iipj)lication. The address of the said C. D. for service is (here give address). Dated this day of Witness to the signature of C. D., E. F. Witness to the signature of A. B., X. Y. ,18 Signatures of C. D. and A. !>. ! V' IP 972 APPENDIX II 45.— APPLICATION UNDER SECTION 104 TO AN^EX CON- DITIONS Oil COVENANTS TO KEGISTERED LAND. (Rule 39.) LAND TITLES ACT. A. B., the registered owner of the land entered on the register for as parcel , and part of which is ahout to be trans- ferred to C. D., of, etc., pursuant to the instrument of transfer lol'f herewith, hereby requests the Master of Titles to register, as annexoil to the part of the land to be so transferred, the conditions (or cove- nants) a copy of which is left herewith. The said C. D. consents to this api)lication. Dated this day of , 18 . (Signatures of A. B. and C. D.) Witness, X. Y. 4G.— AFFIDAVITS ATTESTING EXECUTION OF INSTRC- 3IEXT WHERE BAR OF DOWER AND IDENTIFYING PARTIES. (Rule 54.) LAND TITLES ACT. I, G. IL, of, etc., a solicitor of the Supreme Court of Judicature (or as the case may be), make oath and say: I am Avell acquainted with A. B. and C. D., named in the within document, and saw them sign the said document, and the signatures jjurporting to be their respective signatures at the foot of the said document arc in their handwriting. The said A. B. is, as I verily believe, the owner of the land within mentioned, and the said C. B. is reputed to be, and is, as I verily believe, his wife. The said A. B. and C. B. are each of the age of 21 years or over. are each of sound mind and signed the said document voluntarily at , in the county of , in the Province of Ontario (or as the case may be). I am a subscribing witness to the said document. Sworn, etc. Note. — Where the afHdavlt is made by a clerk in a law office or other employee, this fact should be stated and the name of the employer given so as to facilitate identification. Where it is' unlikely that tlic Master of Titles is acquainted with the with 'ss the Commissioner should add a certificate that the witness is well kno vn to him and is of good repute. FOUMH— ONTARIO 973 I \ LAND TITLES ACT. I, A. B., above (or within) named, make oath and say: That C. B. who executed the above (or within) instrument is my wife, and that we are both of the age of 21 years or over (or as the case may be). 47.— AFFIDAVITS ATTESTING FXKCITTIOX OF TRAXSFEE OF LAND WIIEKI-: TKANSFEHOll UNMARIUED. (Kule 54.) LAND TITLES ACT. I, G. IL, of, etc., solicitor of the Supreme Court of Judicature (or as tlie case may be), make oath and say: I am well acquainted with A. B. named in the within document and saw him sign the said document, and the signature purporting to be his signature at the foot of the said document is in his hand- writing. The said A. B. is of the age of 21 years or over, he is reputed to within mentioned. The said A. B. is of the age of 21 years or over, he is repuetd to be, and as I believe is, unmarried, he is of sound mind and signed tlie said document voluntarily at , in the county of and Province of Ontario (or as the case may be). I am a subscribing witness to the said document. Sworn, etc. LAND TITLES ACT. I, A. B., above (or within) named, make oath and say that I am i.n unmarried man and am of the age of 21 years or over. Sworn, etc. 48.— ADDITIONAL AFFIDAVIT UNDER KULE 50 WIIEIIE INSTRUMENT IS EXECUTED UNDER A POWER OF ATTORNEY. LAND TITLES ACT. I, C. D., of, etc., make oath and say: That the power of attorney under which I executed the witliin (or above) instrument on behalf of A. B. is unrevoked and in full force. Sworn, etc. C. D. ! 974 APPENDIX H id.—VOmi OF POWER OF ATTOUNKY TO MAKE TKAXS- FERS. (Rule 50.) LAND TITLES ACT. I, A. B., do appoint C, 1). my attorney to transfer to E. F. abso- lutely (or ])y way ofiuortj,'a{j;o, as the case uuiy be), all luy lands i-s entered and described in the register for the township of in the olTicc of Land Titles at as parcel , and my cstalo therein. Dated this day of , 18 . Signature of A. 13. (No seal necessary.) Witness, X. Y. (If such is the intention, add: This power shall not be revoktil by the death of the said A. 15., and the exercise of the same after his death shall bo l)inding on his representatives). Note. — For affidavit that power of Attorney In force, see Form 48. 50.— FORM OF REVOCATION OF POWER OF ATTORNEY. LAND TITLES ACT. I, A. 15., of , hereby revoke the power of attorney, givrn by me to ('. 1)., dated the day of , 18 . In witness whereof I have hereunto subscribed my name lliis day of , 18 . (Signature of A. 15.) Witness, X. Y. 53.— AFFIDAVIT OF VAEFE FOR FIXING INSURANCF FEES. (Section i;5().) LAND TITLES ACT. in the county of , make oaili T, A. B., of the and say: 1. Tiiat I am the registered owner of lot (describing land) ro- gistered in the Land Titles Office at as parcel 2. That the said land is not worth more than dollars. Sworn, etc. II roKMt^—oyTAiiio 975 FORM OF BOND. Know all men by these presents that we ol' ilio of in the of of the of in the of jind of the of in tlie ,,f are respectively lield and liniily l)oiind to Our Sovereign Lady the (Juccn, Her heirs and suceesriors, in tlie several sums following, that is to say: the said in the sum of dollars, the said in the sum of dollars, and the said in the sum of dollars, lawful money of Canada, +o he paid to Our Sovereign Lady till' (^ueen. Her heirs and sucessors, for which payments well and truly to be made we bind ourselves severally and respectively and not each for the otlier, and our respective heirs, executors and ad- ministrators, firmly by tliese presents. Sealed with our seals and dated tbis day of , 18 . Whereas by section 15 of an Act ])assed by the Legislative As- sembly of the Province of Ontario in the fifty-seventh year of Her .»r'-ijesty's reign, entitled, " An Act relating to Mines and ^Mining Lands," it was provided that the ("ommissioner of Crown Lands might purchase not more than two diamond drills to be used in exploratory drilling of ores or minerals in tlie Province under llulos and Regulations to be made liy the Lieutenant-Governor in Council, and whereas the above named has applied to the said Commissioner for the use of a diamond drill i)iircliased under iiiithority of the said section to exjilore for ores or minerals upon tlio following lands, that is to say: of which lands the said is (owner or lessee), and the said Commissioner has agreed to allow tbe use of the said drill to the said for the [)ur- I loses aforesaid under and suliject to the rules and regulations made and ap])roved by the Lieutenant-Governor in Council dated the fifteenth day of September, 1894. Xow the condition of this obligation is such that if the said shall well and truly jiay to the Treasurer of the Province of Ontario all the costs and cliarges of and incidental to the use of the said drill upon the said lands to the amounts and at the tinios and jilaces and in tlie manner prescribed by the said rules and regulations, and shall in all respects observe and c(nn])ly with the terms of the said rules and regulations, then this obligatian to be void, otherwise to be and remain in full force and virtue. Signed, sealed and delivered 1 in the presence of ' ; 976 APPENDIX Jl APPENDIX OF rORMS TO QUEBEC MIXING ACT. SCHEDULE A. Form of Private Lands' Mining License, wheue the Mixix(; Right helongs to the Crown, under Article 14G0. Province of ) Quebec. ) Mining division of E. F. , having paid a fee of five dollars mid m. annual rent of dollars per acre, is hereby authorized to iniiio for (here indicate what mineral) during twelve months from the day of the month of 18 , upon tlic hands of (here give the name of the private owner aiil describe the land) in this division, sul)ject to the conditions and lo- etrictions set forth in the (Quebec Mining Law and the regulations made in conformity therewith. Dated at , this day of is . (Signature), A. B. Commissioner of Crown Land-. 43-44 Vict. c. 12, Schedule A, and R. S. Q. 1478. SCHEDULE B. Form of Public Land.s' Mining License under Article 14()0. Province of Quebec. Mining Division of E. F. , having paid a fee of five dollars and a lent of dollars per acre, is hereby authorized to mine for (licie indicate what mineral), during twelve months from tho day of tho month of , 18 , ii|iim (describe the lands) in this division, subject to all the conditions and restrictions set forth in the Quebec Mining Law, and to tlie rcu illa- tions made in conformity therewith. Dated at , this day of , 18 . (Signature), A. B. Commissioner of Crown Lniids 43-44 Vict. c. 12, Schedule B, and R. S. Q. 1478. lOUMa—QLEULV U77 SCHEDULE C. FollMOl-'NoriCE TO WOUK Ll'ON PRIVATE LANDS GIVEN UXDEll AllTlCLE 14(J0. I'lovince of ) (Jiiebcc. J MiiiiiiL' J)ivisioii of 1 (or wc, as the case may bo), residing in tlio county of , in the district of (or having made elec- tion of domicile at ), in the Mining Division of , hereby give you notice: 1. That I intend to mine for (here indicate tlu> mineral on your laud) : 2. That T am ready to enter into any possible amicable arrange- ment with you to enable me so to mine; Therefore, witliin one month from the service of this notice, be ('ood enough to come to an amicable xinderstanding with me, unless vou prcl'or to take the steps required by law to mine upon your own Innd, and give notice without delay to tlie proper iierson. Signed at , this day of the month of , one thousand eiglit hundred , in. presence of the Inspector of the Mining Division of (Signature), C. D. Petitioner. (Countersigned), A. B. Inspector of the Mining Division of 43-44 Vict. c. 13, Schedule G, and «. S. Q. 1484. SCHEDULE D. Form of Notice, if the trivate person refuses to come to a MLTUAL understanding, UNDER ARTICLES 1408 AND 1471. Province of | Mining Division of Quebec. f ° Whereas it appears, by the return of service made by ])aililf of the Superior Court, or by the certificate of service made l,y , constable for the Mining Division of ()2— M I I 978 APPENDIX II (as the cflfc may be), on the day of the month of one thousand eight luindred , tliat the proprietor of tlic lot situate and being in the range of ([larish or townsliii)) in the county of , district of , which lot is bounded by , is absent from tip' Province, or, is unknown, or, has refused to come to a mutual niidci- standing with the petitioner. Public notice is hereby given by the undersigned , of the parish of , county of district of (or, having elected his domicile al ), that: 1. He intends to mine for (here indicate the minerals) on the above described lot; 2. lie is ])rci)ared to pay the sum or rent deemed necessary i!> compensation for such lot or damages assessed by arbitration accord- ing to law; and that 3. The name of his arbitrator is , of (lie jmrish of , county of , in the district of ; Therefore the said (name the proprietor o1' the lot if known). projirietor, is called upon to appoint his arbitrates, within one iiioiilh from the first insertion of the present notice in the newspapers i\r- cording to law. (Signature), C. D. Petitioner. (Countersigned), A. B. Inspector of the Mining Division of 43-44 Vict. c. 12, Schedule H, and R. S. Q. 1487. SCHEDULE E. Form of Answer by a private person to a notice REotiRiN-f: THE RIGHT TO A MINE ON HIS LANDS, UNDER ARTICLE llU'l. } Mining Division of Province of Quebec. I (or we, as the case may be), in answer to your notice, dnti'il the day of the month of , 18 , docliiiv that I desire to enter into an amicable arrangement with yon, ros|iort- ing the mining operations, which you wish to commence on niv Inml (or if the private person wishes to mine his own land), that T iiitoml to take out a license, within the legal delays, to mine my own Inml: . FORMS— QVEnEC U7!) (niul if the privnto person should appoint an urMtmlor) timt T luivo n])poiutctl .Mr. , of tlio parisli (or townsliip) of , in the county of , district of , to act 08 my arbitrator in the arbitration nM(iiircd by you. Dated at this day ol' the niontli of , 18 . (Signature), K. F. Proprietor. 4:5-1-1 Vict. c. 12, Sdiedulo T. and 1?. S. (J. IIST. sr'iiKDrLi-: f. Form oI' Xotick, resi'ectinc. tmr chofcr axd nKSCRrpTro>j oi' MINING LAND, GIVEN UNDER ArTICEICS 14!) 1, 14U2 AND 1493. riovi-ice of \ ^ij„ij^,^. Division of (Quebec. j To the Inspector of the !Mininp; Division of I (or we), (give the name of the person, fij-m or company) (jf give notice: 1. That I have chosen and staked out mining land upon ])u1)lic lands, as follows, to wit: (describe the claim by its extent, boundaries and exact situation, and produce a jdan if necessary) in the ])arish ((ir township) of , on the day of , 18 ; 2. That, to conform to the Quebec ^Mining l-aw, T make an elec- tion of domicile at (the precise locality), in the parisli (or township) of and require the registration of these ])resents. (Date and signature). Applicant. IT A'ict. c. 23, s. 26, Schedule C, and T?. S. Q. 1508. SCHEDULE Q. Form of Free Licenee, to ttte Discoverer of a Xew Mine, UNDER Article 1 104. Province of |. ^^inj^g Division of Quebec. ) E. F. , of the parish (or township) of , in the district of , having reported, under the Quebec Mining Law, t' 1 -i 080 AITEXDIX II that ho has discovered a new mine in tliis division, is herel)y authorized to personally mine for (indieate the kind of mineral) dur- ing one year from this dav of the month of 18 , throughout the whole extent of the claim descrihed on the back hereof, subject to the conditions and restrictions of the Quebec ]iliii- ing Law, and of the regulations luade in conformity therewith. This license is not transferable and may be annulled, if it is proved that the jn-etended discovery did not take place in confonnitv with tlie (Quebec Mining Law. Dated at , this day of , 18 . (Signature), A. B. Commissioner of Crown Lands. (Endorsed on License.) Description of Mining Land. Kame of the mineral Extent Locality (Signature), A. B. Commissioner of Crown liands. 43-44 Vict. c. 13, Sche lule D. SCIII-:i)ULE 11. Form of License for a Crushixg Mill or Machine, uxnKii Article 1503. 1 Mining Division of Province of ) Quebec. i E. l'^ in the district of , of the parish (or township) of , having paid a fee ni' fivo dollars, is hereby authorized to employ and make use of a mill (ir machine, for the crushing or reducing of (piartz, or obtaining g(»M or silver tlierofrom by crushing, stami)ing, amalgamating or othorwiso, under the ju-ovisions of the Quebec Mining Law, subject to tlie con- ditions and restrictions set forth in the said law and the regulations made in confornn'ty therewith. Dated at , this day of ,18 (Signature), A. B. Commissioner of Crown Lands. 43-44 Vict. c. 12. Schedule F, and R. S. Q. 1517. ulietli the Provil eats ij in an J crs of I reser\i it is on I or owni'il cccdij 31inei| J boil>, beariil FORMS— \l-: W BUiyi< WICK 981 SCHEDULES. (A) This Indenture, made this day of 111 tlie year of our Lord one thousand eight hundred and , Letwcon the Queen's ^Most Exeollent ^Majesty of the one part, and , hereinafter described as lessee, of the other part, WITNESSETH, That in consideration of the royalties hereby served, and of the covenants and agreements herein contained, and on the part and behalf of the said lessees, their executors, adminis- trators and assigns to be observed and performed, our Sovereign Lady the Queen, of her special grace, certain knowlelge and mere motion, doth grant and demise unto tlie said lessees, their executors, tidniinistrators and assigns, all that certain tract of land situate at gold district, in the county of known and de- scriljed as follows, that is to say: — An area composed of area of Class Xumber One, and nundjered on tlie plan of said gold district, signed by the Sur- veyor-General and filed in his ollice, as by reference to the same will a]ipear. AxD ALSO, xVll and singular the beds, veins and seams of gold and silver, gold-bearing and silver-bearing quartz, and other gold- bearing rocks and silver-bearing ^^ocks and minerals, and gold- bearing and silver-bearing earth, and all the gold and silver, whether in quartz, grain or otherwise, in, situate and being within the limits of the said tract, and within, under or upon the same. Provided always, and it is the true intent and meaning of these pres- o]its and of the parties hereto, tliat nothing herein contained shall in any manner interfere witli any of the riglits of the owner or own- ers of the land in which such area is situated, but the said rights aro reserved unto the said owner or owners, their heirs and assigns; and it is further agreed and understood, that tlie said lessees shall not outer into the said area without the special leave and license of the owner or owners thereof, unless the said lessees shall have taken pro- ceedings in accordance with the general Mining Act of *• Mines and Minerals." To Have and to Hoi.n tlu^ said tract of land and tlie said beils, veins and seams of gold and silver, and gold-I)earing and silver- bciiriiig quartz, and all otlier the gold-bearing rocks and silver-bear- U ■ ' 982 AITEXDIX 11 iiig rocks and minerals, and gold-bearing and silver-bearing earth, and gold and silver, whether in qnartz or otherwise, in, mider and upon the same, to the said lessees, their exccntors, administrators and assigns, for, during and nnto the full end and term of twenty years, to commence and be computed from the day of , fully to be complete and ended; yielding and render- ing to our Sovereign Lady tlie (iuoen, her heirs and succossoiv. quarterly and every quarter, upon the first days of January, Api'il, July and October, in each and every year during the continuance ui this demise, at the Crown Land Office, a royalty of two and a Jiiili per cent, upon the gross amount of gold and silver obtained, niiiu'il. had, wrought, or gotten from or out of the said demised prcniiscs. or out of any quartz, slate, rock, mineral or eartli mined, ol)taiii(d, had or gotten out of the same in any other way than from quartz nr other material crushed by licensed mills, at the rate of nineteen dollji n ])er ounce troy, for smelted gold and eighteen dollars for unsniolU'd gold, and at the rate of one dollar per ounce troy, for silver iiiiu; hundred fine. And the said lessees do hereby covenant, promise and agree to and with our said Sovereign Lady the Queen, her heirs and suc- cessors, that the said lessees, their executors, administrators and as- signs, shall and will well and truly ]iay and deliver, or cause to he paid and delivered, to our Sovereign Lady the (Jueen, lier heirs and successors, at the times and places, and in the manner aforesaid, the said royalty hereby reserved under tlie terms and provisions of ihis lease. And also, That the said lessees, their heirs, executors, adminis- trators and assigns, shall aiul will during the continuance ol' this de- inise, keep or cause to be kept, one or more book or books of aciounr. wherein the entries shall 1)0 made of all sucli gold and gold-l)eaiiiiu' quartz, silver and silvor-])earing ((uartz and mineral, and otlior n;ik containing gold or silver, and all gold or silver in grain or otherwise. as shall from time to time I)e mined, wrouglit, had, gotten, or de- tained out of the said demised premises, and also o[ the names of the men actually employod in tlie working of the said demi-ed jiremisos, and the number of days' lal)our ])erfornied liy smli men. with the respective dates thereof, and also tlie names of tlie iieisoii or persons to whom any (piartz or g(dd-beariiig or silver-In ,ir- ing earth, or other gold-bearing or silver-liearing material raised from the demised ]»remises lias been s(dd or disposed id', with the ])riee or ])eroentage upon tlio yield thenvif received thend'nr, and also the weight of any quartz or other gold-bearing or silver- WOlJ lab or an( linii Slip cnu dea ]nii' mill will ably siieh time posse ]ireii mills as sli and bor, FOinilS—NEW BKUXiiWIVK 083 bearing material raised from the demised premises, which may ho sent to any licensed mills for crushing quartz, the name and descrip- tion of the mill to which the same has heen sent, and also the yieUl of gold and silver from such quartz or other material as returned by the mill owner; and also that such hook or books of account shall at all times l)e open and subject to the inspection and examination of the Surveyor-General or his depuly, or any inspector of mines, and also of any other person or persons thereto specially appointed l)y the Surveyor-General for the tiine being; and also that the said lessees, their executors, administrators or assigns, shall upon the first days of January, April, July and October, in each and every year during the continuance of this demise, deliver, or cause to be de- livered to the Surveyor-General or his deputy, a true and correct re- turn on forms to be supplied by the Surveyor-General, which shall show tlio particulars prescribed and required by the General Alining Act, verified by an affidavit of some one or more suitable person or persons employed in or about the working or management of the mines hereby granted and demised, and shall in all respects obey, abide by, perform, and fulfil all the requirements of the said Act. And Likewise, That the said lessees shall annually cause to be employed on the demised premises so many men as shall make the whole lal)Our performed thereon during the year in oj-ening and woikin"; the said mines amount in all to the number of .-,' days labour; and also shall and will during the continuance of this grant or demise work the said mine in a good and workmanlike manner, mid i^hall and will from time to time and at all times during the con- tinuance of this grant or demise well and ell'ectually maintain and sii])port all and every the working pits, shafts, levels, drifts and water- courses of and belonging to the said mine, with all such tindjer and deals and other materials as shall 1)e necessary or rccpiisite for that purpose, and so as to prevent the same and the roofs of the said mines from falling in, or being otherwise damaged; and shall and will at the end or other sooner detci luination of the said term peace- ably and quietly yield and deliver unto the Surveyor-General, or to such other person or persons as the Lieutenant-Governor for the time being shall appoint under his sign manual to receive and take possession thereof, all the said mines and all and singular other the ]iremises hereinbefore mentioned, except such furnaces, engines, mills, forges, foundries, railroads, implements, houses and buildings as shall not be attached to the freehold, in such good order, ]dight and condition as fair wrought mines ought to l)e left, with such tim- ber, deals and other material as aforesaid (such mines as during the net APPEXDIX IT i I term liereby granted sliall bo abandoned by reason of their being un- productive only excepted.) Provided always and it is herel)y agreed and declared, and the said lessees, for themselves, their heirs, execu- tors, administrators and assigns, do accej^t tliis grant or demise under the condition, that in case default shall be made by the said lessees, tlieir executors, administrators or assigns, in keeping such book oi- books of account, or in making sucli entries therein, or in delivcriii;;' snch aindavit or affidavits as aforesaid, or in payment of the said royalties hereliy reserved for the space of ten days after the periods hereinbefore appointed for paying the same, or in the keeping an- nually employed on the demised premises the amount of labour here- in above specified, or if the affidavits hereinbefore set forth and iv- quired to he made shall be false and fraudulent, or any other coven- ant herein contained shall not be kept and observed, tlieu and in every or any or either of the said cases these presents and all ninl every the powers and privileges hereby granted shall l)e utterly unll and void, anything to the contrary thereof in these presents notwith- standing. PROVinED Always Xevertiieless, That it shall and may bo lawful for the said lessees, their successors, executors, admiuistralors and assigns, at any time or times hereafter when so minded, to givo notice in writing and fde the same in tlie Crown Land Office, settinu' forth that they arc desirous of surrendering this lease, and in sncii case, as soon as any such notice shall be so filed in the Crown Lund Office, the interest and estate of the said lessees in tlie demised premises sliall forthwith revest in Her said Majesty, and the s.iid lessees, their executors, administrators or assigns shall theuceforih cease to have any interest therein, or to be liable under tlie terms and provisions of this lease for any royalty, except the royalty on g(d(l or .silver mined or obtained up to the date of said surrender, or in iiny other way than from quartz or other material crushed at licciiMil mills. Provided Also Further, And it is the true intent and nicnn- ing of these presents that the said lessees, their executors, adminis- trators or assigns, shall continue and remain liable under the eonili- lions of this lease for and in respect of any matter or thing luTciii nr hereby covenanted to be done or performed, and for which a liidiilily shall have existed at the date of such surrender, and also sliall cmhi- linue and remain liable for all royalty due as last above meiitiimid at the date of such surrender. Ix Witness Whereof, Our Sovereign Lady the Qiiocn Ims caused Survevor-Ceneral for the Province of New Brims- FORMS— \f:w Ji!{[ WSWirK 085 wick, to subscribe his liand and seal to this iiulontiiro, and tlie said lessees have subscriljed their hands and seals thereto. Signed, sealed and delivered by the said ) Surveyor-General, in the presence of ) ])y the said Lessees in , [L.S.] presence of [L.S.J (B) We, of , in the county of , do hereby de- clare that we are the legal owners under lease Xo. , District , dated the day of , A.D. 18 , of shares in said Icasu' mentioned. Given under our hands and seals this day o? , A.D. 18 . Personally appeared before nie, , of , who heing sworn, says that duly signed the foregoing declaration in his I'restnce. Sworn before mo this day of , x\..D. (C) KnoAV all 'Men by these Presents, That T , of , in the County of , in consideration of dollars to me, in hand well and truly paid by of , have sold, assigned, transferred, and set over, and by these Presents do sell, assign, trans- fer, and set over to , of , his executors, administrators iind assigns shares owned by me, under mining lease Xo. , ill [dated , parish of , county of y to have and to hold the same to the saiil , his executors, administrators and assigns. ' Inserted by 56 Vict. c. 10, s. 15, in lieu of tlie words " gold district." In witness whereof I have hereunto set my hand and seal this day of , A.I\ IS .' Signed, sealed and delivered ^ in presence of ) Personally appeared before me, , of , who being sworn, says that duly signed the above transfer in his presence. Sworn before me , this ) day of , A.D. 18 . f J.P. ■I ; 986 APPEXDIX Tl District. No. of Lease. Date of Lease. Date of Date of Registry. Description To Whom Leased. Siiares or Paris. To Whom Le.\sed. Siiares or Parts. No. By Whom Sold. Sliaie^ ' Date of or Parts, liegistry. I Conveyance. To Whom Soi n (E) To A. B. and C. D., lessees of certain miniiiy areas, by virtiK' df a lea.sc from ITer Majesty the Queen to , bearing date tl\e day of , A.D. 18 (or if the lease \\\\f. been assigned, to A. J{. and C. T)., assignees of the lessees of certain. etc , etc., as above.) WiiKRKAS, It has been represented and eonie to the knowK'd'^e of the Siirvcyor-Ceneral, that the mines and minerals in th(> siid lease described and conveyed have been abandoned for the simic ol' one year, have not been effectively or continuously worked, or liavo been worked only colourably, and that the Ici^isee or lessees (or their ass'gneos) have failed to comply with the terms, covenants and stipu- lations in the lease contained. 7'0/?.)/.S— AA'ir lillLWSWlCK 987 You are hereby notified that the said charge or complaint will be investigated before me at my ollice in Fredericton, on the (lay of , in the year of our Lord one thousand eight hundred iind Dated the day of , A.D. 18 E. F., Surveyor-General. V or G. H., Acting or Deputy Surveyor-General. In pnrsiiancc of a notice duly served on the lessee or lessees (or • ignces as the case may be) under a lease of certain mining areas iiate and being at in ihe County of made between i ,c Queen of the one part, and A. B. and C. D. of , etc., of the other part, and dated the day of , A.D. 18 . I have examined into the matter of complaint against the said lessee or lessees (or assignees, etc.) for not working the said mining areas ofl'octively and in accordance with the terms, covenants and stipida- tions in the said lease contained, and the true intent and moaning of the laws in such case made and i)rovided; and on due consideration after the examination of witnesses and the facts of the case, I, being satisfied that the charge has been fully made out, have decided and declared, and by these presents do decide and declare the said min- ing areas and every part and jiarcel thereof to be forfeited. Witness my hand at Fredericton, this day of A.D. 18 . E. F., Surveyor-General. or G. n.. Acting or Deputy Surveyor-General. Bond to ihe Queen avd Her Successors in jwucdtj/ of •'■\ dav-< of January, Ai)ril, July and Octo])er in each and every year, diuiiiu' the continuance of this demise, deliver or cause to l)o delivered to the Commi-sioner of Puhlic Works and Klines, at Halifax, oi' In tho Dei)uty Commissioner of Klines for the district, a true and ciirrict return on forms to he supjjlied hy the Conunissioner, which >liall show the j'articulars prescrihed and required hy the (ioih scciimi of chapter 7 of the l?evised Statutes, " Of Mines and Minerals," vni- lied hy an allidavit of some one or more suitahlo [lerson or pcrsi)ii>i employed in or ahout the working or numagement of the mines liero- hy granted and demised, made hefore the Comniissioiu'r (d' Mines, or a deputy, or a justice of the ])oace, and shall in all respects olny. abide by, ])erform and fulfil all the ro(iuirements of the said cha|iicr. And likewise, that the said lessees shall annually cause lo In.' employed on th'! demised premises, so many men as shall make ili" whole labour p Tformed thereon during the year, in o|)eniii.;- ami M'orking the said mines, amount in all to tlie number of days' labour; and also shall and will, during the continuance of this irraiit FORMS— yOYA SCOTIl 091 or ilciiiiso, work tho paid iuii\cM in a good and \Vf)rkmanlil<(' iiiaiiiior, nnd sliall and will from tiiuo to tiino, and at all times during tho continuance of this grunt or domiso, well and uH'octually iiiaintaiii mid snppiirt all and every the working-pits, shafts, levels, d lifts and watercourses of and belonging to the said mines, with all such tind)er tiud deals ^ and other materials as shall l)o reiiuisite or necessary for tlint purpose, and so as to prevent the same and the roofs of the said niino from fulling in, or being otherwise damaged ; and shall and will at the end or other sooner determination of the said term, peaceably and quietly yield and deliver unto the Commissioner of Public Works and Iklines, or the Deputy (Commissioner of tlie district, or such other person or persons as the ]jieutenant-(iovernor for the time being shall uiipoint under his sign manual to receive and take possession thereof, all the said mines and all and singular other the premises hercinbeforo mentioned, except such J'urnaees, engines, mills, forges, foundries, rnilioads, implements, houses and buildings as shall not be attached to the freehold, in such good order, plight and condition as fair- wronght mines ought to be left, with such timber, deals and other material as aforesaid (such mines as during the term hereby grautod sfliall bo abandoned by reason of their being uni)r()ductive only ex- cepted). Provided always, and it is herel)y agreed and declared, and the said le:-sees, for themselves, their heirs, executors, administrators and assigns, do accept this grant or demise under the condition, that ill case default shall be made by the said lessees, their executors, ad- ministrators or assigns, in keeping such book or books of account, or in making such entries therein, or in delivering such alhdavit or afll- davits as aforesaid, or in payment of the said royalties hereby reserved for the space of ten days after tho periods hereinbefore apiiointcd for paying the same, or in the keeping annually employed on the de- mised premises the amount of labour herein above specitied; or if the aflidavits hereinbefore set forth and required to be made shall be false and fraudulent, or any other covenant herein contained shall not bo kept and observed, then and in every or any or either of the said cases these i)resents and all and every the powers and privileges hereby granted shall be utterly null and void, anything to the con- trary thereof of these presents notwithstanding. Provided - always, nevertheless, that it shall and may be lawful for the said lessees, their executors, administrators and assigns, at any time or times hereafter when so minded, to give notice in writing and file the same in the office of the Dcjnity Commissioner of :\Iines of the distiict, or of the Commissioner of Public Works and :Mines in any district where there is no deputy, setting forth that they arc desirous I ii: !)S)2 AI'l'IJXDlX II of siirri'iulerinj,' this It'ii.se ; iiiid in hiu'Ii ciiso, ao noon iis niiv siuli notice shall hi' ^so lllod in tlie ollii'c of the I'oiiiiiiissioiu'r ol' I'tililic Workri 1111(1 MiiU'f, the interest and ostato ol' tlio said k'ssi'.s in the dt'inised proinises shall i'oi'tliwith revest in lii-r said Majesty and the said lessees, their exeeiitors, administrators or assij^ns shall thcnecl'orth tease to have any interest therein, or lie liahle imdir the terms and provisions of this lease for any royalty, except the royalty on field or silver mined and obtained up to the date ol',,siii(| eunender,.or in any other way than from ([iiartz or other matorid! crushed at licensed mills. Provided also further, and it is the true intent and iiieaniiiii' nf these ])resents, that the said lessees, their executors, adminislnilDis and assigns shall continne and remain liable under the condition- if this lease for and in respect of any matter or tliinji herein or lu ivliy covenanted to he done or iierformed, and for which a liability shnlj have existed at the date of such surrender, and also shall conliniic and remain liable for all royalty due as last above mentioned at the date of said surrender. In witne.-s whereof our Sovereign Lady the Queen has caihid , ('omniissioner of Public Works and .Mines for the Province of Xova Scotia, to subscribe his hand and s(.'al df ofVice to this indenture, and the said lessees have subscribed tlu'ii' hands and siils thereto. Li^. s.i Signed, sealed and delivered, by the said \ ('omniissi(mer of Public Works and y ^Miues, in the ])resence of By the said lessees in the i>resence of [ [L. S.| B. We, of in the county of , ijo hereby declare that we are the leyal owners nnder lease Xo. district dated the day of A.l). IS . of shares in said lease mentioned. (liven under our hands and seals this day of A.I). 18 . Personally appeared .before mo of who, bi'iiiLj swoin, says that in his presence. Sworn before me at dav of this A.D. 189 duly signed the foregoing decluraiinn I J.P. i'M F(>iiMs—\ovA aeon A U08 c. of Know all men by tlicao presents, th r I in the coimly of in consideration of dollars to WW in hand well and truly paid hy of have gold, assigned transferred, and set over, and by these presents do sell, assign, transfer and set over to of his execu- tors, administrators and assigns shares owned by nic under mining lease No. in gold district To hav(> and to hold the sanio to the said his executors, administra- tors and assigns. In witness whereof I have hereunto set my hand and seal thi* day of A.D. 18 Signed, sealed and. delivered i in the presence of I Personally appeared before me of who, being sworn says that duly signed the above transfer in his jjresence. Sworn before me at this ) day of A.D. 18 I J.P. D. District. Ko. of Lease. Date of Lease. Date of Issue. Date of Be^istry. Description. To wliom Ijeasecl. Shares or parts. To wlioni Leased. Shares or parts. No. By whom sold. Shares or parts. Date of llegistry. Conveyance. To whom sold. • 1 1 ! I II 03— M 994 APPENDIX II E. To A. B, and C. D., lessees of certain mining areas, by virtue of a lease from Her Majesty the Queen to bearing date the day of A.D. 18 (or, if the lease has been assigned to A. B. and C. D., assignees of the lessees of certain, etc., as above). Whereas it has been represented and come to the knowledge of the Commissioner of I'ublic Works and Mines, that the mines and minerals in the said lease described and conveyed have been [il);iii- doned for tlie space of one year, have not been effectively or coiitimi- ously worked, or have been worked only colorably, and, that the lessee or lessees (or their assignees) have failed to comply with the tei'iiis, covenants and stipulations in the lease contained. You are hereby notified that the said charge or complaint will be investigated before me, at my oilice in the Province Building, at Halifax, on the day of A.D. 18 . E. F. Commissioner of Public Works and Minos. F. In i)ursuance of a notice duly served on the lessee or lessees (or assignees, as the case may be), under a lease of certain mining areas, situate and being at ;in the county of mndo between the Queen, of the one part, and A. B. and C D. of etc., of the other part, and dated the day of , A.D. 18 . I have examined into the matter of complaint apiinst the said lessee or lessees (or assignees, etc.), for not working the sniil mining areas effectively and in accordance with the terms, eovemuits and stijmlations in the said lease contained, and the true inttiit and meaning of the laws in such case made and provided; and on duo consideration, after the examination of witnesses and the facts nf Hi,. case, I, being satisfied that the charge has been fully made oiil, have decided and declared, and by these presents do decide and dcclari'. the said mining areas and every part and parcel thereof to !»■ fi)r- f cited. Witness my hand at Halifax, this day of , A.D. 18 . B, F., Commissioner of Public Works and, Mines, or F. M., Deputy Commissioner of ^Mincs. FORMS— ^'OVA SCOTIA 995 0. Bond to the Queen and Her Successors in Penalty of $600, Whereas, the Surveyor-General hath by a decision dated the day of A.D. IS , decided and declared certain mining areas formerly leased to A. B., and C. D., by lease dated the day of , A.D. 18 , forfeited, and the above bounden G. II., J- I^-, etc., have appealed against the said decision to the Su- preme Court (or a Judge of the Supreme Court, as the case may be). Now the condition of tliis obligation is such that if the said G. II., J. K.J etc., do and shall obey and abide by the judgment that shall be given herein, and shall well and truly pay all costs which they may be adjudged to pay in the premises, then this obligation shall be void, otherwise the same shall remain in force. Signed, sealed and delivered in presence of G. II. [L.S.] J. K. [L.S.J H. Nova Scotia Act (1892) cap. 1. Form of Oath re Survey. I (A. B.) of , in the county of (occupation), do swear that I will well and faithfully perform he duties I may be called upon to perform as (chainman or whatever the employment 'may be) in making the survey of property held under (lease or li- cense) by (describe the property proposed to be sur- veyed). So help me God. Sworn to before me at \ in the county of this day of , 18 . ) Surveyor. FORM OF NOTICE OF EXPLOSION OR ACCIDENT TO BE SENT TO THE DEPARTMENT OF MINES. Name oC ^lino Date To the Honorable the Commissioner of Public Works and Mines, Halifax, N.S.: I 1 11 ii ■ M ll' 1 1 090 APPENDIX II Sir, — In pursuance of chapter 8 of the Eevised Statutes " Of the Kegulation of Mines," I beg to give you notice that an ^ lias occurred at this mine, of which the following are the particulars: Place where the accident occurred Date of the accident CJiaracter of the accident If from explosion, whether of gas, powder or ) any steam boiler. ) Number, ages and names of persons killed Number and names of persons ■> injured seriously / Number and names of persons ) injured slightly * • Number and relation of persons dependent on persons killed 1 am, Sir, Your obedient servant, (Signature.) » " Explosion " or " Accident." -In case of any explosion. SCHEDULE OF FORMS TO " THE MINERAL ACT " (B1UTJ8II COLUMBIA). Form A. Location Notice. Mineral Claim. I, , have this day located this ground as a mineral claim, to be known as the ]\Iineral Claim, Hot in length by feet in breadth. The direction of No. '3 post is , and feet of this claim lie to the riirlil and feet to the left of the location line. Dated this day of . 189 . Take care to number the posts 1, 2. making the initial post 1. 1897. c. 28, s. 23. FORMS— B [{I TIN U VOL UM BIA 997 < Form B. Record of Mineral Claim. Mineral Claim No. of certificate. Located by — Set out the name of claim and' number of receipt form of ixiy- ment of the record fee of each locator, and the No. of each locators Fre". Miner sCertlficate opposite such name. The claim is situate The direction of the location line is Tlie length of the claim is feet. The claim vns located on the day of Eecorded a day of , 189 . Minin in tlio ^Miniiif; Division District, free minor, make oath and say: — 1. I am the holder of Free Miner's Certificate Xo. dated day of , 18 , and issued at 'Z. On the day of , 18 , I located ilie Mineral Claim, B\i\iaU)d[hcreile/^crlhe}wsi( ion of claim IIS near as possible, giving the name or names of any mineral claim or claims it may join.] 3. I have placed a No. 1 and a Xo. 2 and a discovery post of the legal dimensions on the said claim, with the legal notices on each post. 4. I have written on the Xo. 1 post the following words: — 5. 1 have written on the Xo. 2 post the following words: — G. That I have fonnd mineral in place on the said claim. 7. That I have marked the line between Xo. 1 and Xo. 2 posts as rcipdred by section 10 of this Act. 8. That to the best of my knowledge and belief the ground com- prised within the boundaries of the said claim is unoccupied by any other person as a mineral claim; that it is not occupied by any build- ing or any land falling within the curtilage of any dwelling-house, or any orchard, or any land under cultivation, or any Indian reserva- tion. Note. — This declaration may be made by an agent. 1896, c. 34, Form S. Form T. For Fractional Claim. Mining Division, District. I, A. B., of , in the Mining Division of District, free miner, make oath and say: — 1. I am the holder of Free Miner's Certificate Xo. dated day of > 18 J «i^d issued at ! lOOti AIPENDIX H 'i. OU till! clay of tl ic till 18 , I locuted fractional iniuoral claim, situated .'i. Tim is a fractional claim bouiiiloil on the north by on the soiUli by tlio west by ami on tho cast by and is more particularly descril)ed on n sketch i)lan on the back of (his declaration. 4. I have placed a No. I and a No. 2 and a discovery post of iIh. legal dimensions on the said claim, with the legal notices on oiidi l)08t. 5. I have written on the No. 1 post tho following words:-— <>. 1 have written on the No. 2 post the following words: — . 7. I have found mineral in place on the said fractional claiin. S. 1 have marked the line between No. 1 and No. 2 posts ns ip. quired by section K! of ''The ^lineral Act." !>. Tbat to the liest of my knowledge and belief the ground i nin. jirised within the boundaries of the said fraetiomil claim is niiuicn. jiied by any other person as u mineral claim; that it is not ociMiiiied by any building or any land falling within the curtilage of any ducll- ing-house, or any orchard, or any land under cultivation, or anv Indian reservation. NoTK. — This declaration may be made by an agent. 18!)(5, c. ;U, Form 'J'. SCHEDULE OF FORMS REFERRKD TO IX THE " PLACldi M1NL\'(J ACT " (B. C). Location Notice. [Set out name of claim] Placer Cliiiui. Take notice that [set out the name of each locator] luivc this day located tliis ground as a placer claim (or, as a set of placer (hums), to be known as the Placer Claim, ivA in length. Its general direction is Dated [^fark one post " Initial Post," and fix this notice on that post. If a .set of claims is located only one notice is requisite, but llicro must be an initial post for each claim.] I'OltMS—UlilTJ.SU VOLUMUIA 1007 B. liecord of a I'Inccr Claim. [Xiimo of claim J Plncor Cluim. Located by Xo. of certificate, [Set out tlio iiaiiio of each locator, and the iiimd)cr of osch lo- cator's free iiuiier'.s certiticate, opposite s\icli name. | The claim is situate The length of the claim is feet. Recorded for years. J.ocated on tlie day of , 18 . l{econlcd this day of , 18 . 18!)1, c. 20— B. C. lie-record of a Placer Claim. [Xame of claim] I'lacer Claim. [Set out the name of each holder of an interest in such claiiii, and the nundjcr of each holder's free miner's certificate.] The claim is situate l?e-recorded for years, to commence to run from the day of , 18 . Ke-recorded this day of , 18 , 1891, c. 2G— C. D. Record of a Set of Placer Claims. I Set out the name of each claim.] Located in the partnership name of The mendjers of the ])artnership and the numbers of their re- Rpt'ctive free nnner's certificates arc: — The claims arc situate The length of each claim is feet. l?ecorded for years. Located on the Eecorded on this 1891, e. 2G—D. day of day of IS IS t' 1008 APPENDIX II E. Tunnel or Drain License. To all whom it may concern: — Take notice that , a free miner and the owner of , having given security to the amoiiiu di for any damage he may do, has this day ol)tainoil a license from me to run a tunnel (or drain) from to hij; Baid claim. The said license is granted on these express condition,; [Set out conditions, if any.] Dated Gold Commissioner. 1891, c. 26— E. V. Application for Pvhlic Drain Grant. We [Set out names in full of each applicant], the undersiL;ncil free miners, do herel)y apply for a public drain grant, to cnablo us to construct a drain [Set out nature and extent of proposed drain], and to charge the following tolls to all persons using such drain [Set out pro])Osed tolls], such grant to run for years, and we do further apply for the following privileges to be included in such grant : — [Set out privileges sought to be acquired.] Dated To the Gold Commissioner. [Post notice on ground and on Mining llecorder's olTice, settini' out ai)plication.] 1891, e. 20— V. Scale (if Fees to he Charged. For every free miner's certificate issued to an individual .... $.") fio For every free miner's certificate issued to a joint stock com- pany, (a) Having a nominal ca]""i«l ( f $^00,000 or less. . .'in 00 {h) Having a nominal cr.,ital ov- ^'-ag $100.000. .' |oo 00 Every substituted certificate i oo TJocording any claim (for each year) '^' .Vl l?c-recording any claim (for each year) 2 "lO Recording any "lay-over,'' or every other record recpiirod io be made in the " Record Book " 2 -Vi VORMH-itRlTlHH COLlMJilA ]009 According every abandonineut, including the memorandum to be written on tlie record ^2 50 For any <^tlier record made in tlie " llecord of Abandon- ments" a 50 lor recording every affidavit, where the same does not ex- ceed three folios of 100 words 2 50 !"or every folio over three, 30 cents per folio. The above rate shall be charged tor all records made in tlie '• Kecord of Affidavits." J.'or all records made in the " liecord of Conveyances," where the same do not exceed three folios 2 50 For every folio over tliroe, a further cliarge of 30 cents per folio. For all copies or extracts from any record in any of the above-named books, where such copy or extract shall not exceed three folios, per copy 2 50 Wliere such copies or extracts exceed three folios, 30 cents per folio for every folio over three. iMir filing any document 1 00 j'or every lease 5 00 ' 1 (14— M APPENDIX III. GLOSSARY OF MINING TP^HMS. ABSOLUTE PKESSUEE. The pressure reckoned from a vacuiii!i. ABSOLUTE TE.AIPEKATUKE. The temperature reckoned Inun 15!) F., or 2T3 C. ACCESSOKY :MIXEHALS. That is, minerals found in crystiillmr rocks in such snuiU proportions that their absence would imt alter the lithological name of the rock. ACKQUIA. A ditch. Spanish. A('li) HOCK. A rock containing much silicic acid (free silica), as opposed to basic rock, in which the alkaline bases [)rcd()iiiinalc'. ADIT. The water level of a mine. ADVEXTl'HEH. Original promoter, or speculator in a mining enter])rise. AEROLITES. Meteoric masses of metallic or other mineral: ^iih- staiKH's which have fallen to the earth through the aii'. The metallic aerolite consists ])rincipally of metallic iron, nickt'l ami chrdiiic; and the non-metallic or crystalline rocks, resemliliiij;' greenstone; others consist of nuxtures of these. ALl{OPIIOXE. A respirator in tlie form of a tank reccivinu ilie exhalations from the lungs, which contain chemicals (Icsiuiicil to revive the air and render it iit for breathing. It is used liy rescuers after nunc accidents. AFTEH-DAMP. Another name for choke- per cent, (.f >ilv(r and 13% of suljthur; heavy blackisli gray in color; nialKaMc. easily cut by a knife; it is an important ore of silver, conininu in the Thunder Bay silver region. ARGILLACEOUS. Containing clay, either soft or hardeiicd, n> in sl:ale, slate, argillite, etc. ARRACJE OR ARHLS. A sharp point or corner. AT{SK.\'TC. The element, as a mineral, usually called native aixiiii. ARTESIAX WELLS. Named from Artois, in I'Vance, wliciv tli,. system has 1)een largely followed tliough borings of tlic same kind have been made in the East from a very early dale. ASBKSTOS. A fibrous, fiexildo variety of hornl)lende. Cliivxitil,.. a fibrotis variety of serpentine, is also called asbestos. Ii fns.s at a lower temi)crature, but for steam-packing answers th.' same purposj as true asbestos. t or lianlciKMK ii> ULOtiSAltY OF MINIXn TERMfi 1013 ASCENSION TIIEOEY. The theory referring the filling of fissures to mutter from below. VSSAY. A test of the mineral contained in a larger mass by extract- in"' and weighing the product of a sample. ASSAYING. I'imling or determining the i)roportion of metals in oies by smelting in the way ai)[>ropriate to each, (iold and silver require an additional process called cupelling, for the pur- pose of se] aiating them from the base metals. ASSESS^ilKXT WOKK. The annual labor required to hold a claim. ATTx\.Ia Waste rock. Al'lUFEUOrS. (i old-bearing. AZOIC. Without life. Ap])lied to all the ancient crystalline rocks, because they show no evidence of the existence of life on the earth at the time of their formation. B. 11A15Y. A balance weight near the end of a pit rope. I'ACK. The portion of a lode lying between a level driven in a lode and the surface. Ii.VCK-riiESSUKE. The loss expressed in pounds per square inch due to getting the steam out of the cylinder after it has done its work. BAL. A mine; more properly, the surface of a mine. llALAXCE-liOi). A heavy triangular truss, the long horizontal arm of which su])|)orts a weiglit at one end liallasted to balauii' tiie weight of pumji-rods at the other. r.ALX-STONE. Roof-stone. HAND. Rock interstratified with coal or any mineral. r.AXKSMAX. The loader of the coal. 15AXK. The surface at the i)it's mouth. li.VXK-C'LAIM. A claim which includes the bank of a river or creek. I'.AXK-b'lCillT. Trivilege of diverting to a l)ank claim. r.AR-l)I(i(;iX(iS. Cold washing on river bars. ]\\ll. A band of hard rock crossing a lode. BAinJIKR. A thick wall of coal left l)etwecn two mines. liAHlillORS. Posts of unworked gangue or coal left tc drainii,.(| to anticlineal or dome, where the rocks dip away from a coiniuna line or jioint. BASIC I{()CK. A rock in which the alkaline bases predouiinair over the free silica. r.ASSET. Outcrop of a lode or stratum. .BATIX(i. Lowering a drift or lode. BAT'l'i-;i{V. A number of stamps in a mill arc called a liattnv (usually five). BEAKl'lHS. Snp])orts to engine ])nmps in the shaft. lU'lATKW. A tool for charging a blast. IJKAHIXG-ri' STOP. A i)artition of brattice or jdank that serves to conduct air to a face. r.KCIIK. A boring-tool. liKl). Stratum or layer. lii^D-Cl^AIM. A mining claim on the l)ed of a stream or rivii'. I)KI)-l?OCK. The stratum immediately underlying loose or driliid matter. P.ELLAXD. Dusty lead ore. BKLL AXD IIOPPKP. The instrument through wliicli or.'. Iiul and ilux are charged into the blast furnace. PICLLIi'lS. A swelling nuiss of ore in a lode. P)ELT. Xanie given to a band of strata and to groups of slrata ili>- tingnished l)y similarity of mineral characteristics. See " Zoin'," BKXCir. The divisions of a coal-bed caused by seams of clay er slate; also used to exjtrcss the artificial divisions in the [irocoss of mining; also a terrace at the outcrop of a scam. T'T GLOSSARY OF MIXIXG TERMS 1015 iiun'fury, and the l)asos prcdoiiiiiiut e called a luitifi' r ])]ank that sitvc^ rli wliich ore. I'lifl BEXK. Tlie face of the coal in work. JJJNxV. Hard clayey substance. ])IliLKT. A small bloom. J'lLND. Sandstone or hard shale. BIT. The steel point of a borer or drill. IMTl'MKN. Mineral pitch; it is composed of carbon and hydrogen. JUTUMIN'OUS. Containin^f disseminated l)itumen or its elements, which may generally be distinguished by the dark color or the odor. BITTKIi SPAR. Also called pearl sjjar: the crystalline form of carbonate of lime and magnesia; the i)ure form of dolomite. It consists of one part, or equivalent, of carbonate of lime and one of carbonate of magnesia. BLACK-DAMl*. See " Choke-damp." BLACK SAXD. Commonly applied to all the black and heavy minerals which usually accom|)any gold. BLACK-LEAD. So called from the reseml)lance of the finer kinds to lead, only blacker. See Graphite. ]iLACK TIX. Tin ore ready dressed for smelting. IJLAXCIL Lead ore mixed with other nnnerals. BLANKET TABLE. An inclined phme or tal)le covered with green baize and placed at the end of a ripple board table to catch the fine gold, pyrites, etc. BLAST. A strong force or current of air. ]>LAST-ErRXACE. A smelting furnace into which large volumes of iiir are foi'ced by a iiiechanical means under iiigii pressure, known as the blast. In the consumption of coal it takes up the oxide of iron and leaves the metallic iron free. ]?LEXDE. Sulphide of zinc. BLIXI) CREEK. A line of drainage in which water Hows only during very wet weather. JiLIXD DRIFT. A horizontal passage in tiie mine not yet con- nected with the other working. BLIXD LEAD, OR BLIND LODl']. A vein having no outcrop. BLOCK-CLAIM. A claim bounded by right lines fixed and defined by pegs, ]K)Sts, or trenches at each angle of the claim. BLOCK COAL. Coal that breaks freely into rectangular l)locks. BLOCK TIX. Metallic tin. lUiOOD-STOXE. A dark green variety of chert or jasper, with small red spots. BLOOM. A roughly prepared mass of iron intended to be drawn o\it xmder the hainn\er or between rollers into bars. 1010 Al'l'EXDlX III. l>LOSS()]\r. A coloured voin-stonc tlctachccl from an outcrop. JJLOWEH. A disi'luirge of gas from coal; also a fan for forcing air into a BLOW-OUT J ore or rock which lias been displaced from n lode. ELOW-I An instrument by which a current of air is driven throuj,.. ihe flame of a lamp or gas-jet. BLUFF. Blunt. A high bank or liill witli precipitous front. BOB. Sec Balance-bob. BOfJ-TROX OBF. A spongy variety of liydrated oxide of iron or limonito. Found in layers and lumps on level, sandy soils \vlii,ii have been covered with swamp or bog. BOXANZA. l-'air weather at sea; a large l)ody of paying ore. JiOO^IIXG. A kind of placer mining where the water is acciinni- lated in a dam and let out at intervals so as to utilize its ( ni- ting power in the form of a torrent. BOO.^I-DITCIL (J) The ditch from tlie dam used in booming: {•>] A sliglit channel cut down a declivity into whicli is let a sudilin head of water intended to cid; to bed rock, and prospect for tin. apex of any underlying lode. BORKASKA. Spanish word for adversity; name given to a mine when unproductive. BOULDFK. Large, loose, rounded masses of stone detached finm the parent rock. BOULDFK-CLAY. Tlu' stiff, liard and usually stratified clay of Ww drift or glacial period wliich contains boulders scattered tliicuiuii it; also called "till," hard-pan, drift-clay or boidder-dril't. BOUZF^, Undressed lead ore. BRASSES. Sulphate of iron in coal. BRAT. A tliin l)ed of coal mixed with pyrites or carbonate ol lime. BRATTICE. A canvas or plank i)artition nailed to posts loiiuitn- dinally within a level or shaft to divide the same into two (niii- ])artments for the purpose of separating two air-currents. BRAZIL. Iron pyrites. BREAK TIIROUUII. A narrow passage cut through a i»illar von- necting mine chandjers. BRPLVKF-S. Fissures in old coal workings. BRKAKIXGS. Tlie poor part of ore ready for being cruslicd. BREAST. The working face or front of a drift, tunnel. BRECCIA. Rock formed of angular fragments cemented Idgcilur. r-1 displaced from n t of air is drivoi litoiis front. ^ LMven to a iiiiiic no detached iVo oiigh a pillar vm- aiossARY OF Mixrya 7tam/.s' 1017 lUiri'TliK SILVKlf. Staphanito. Sulphide of antimony and silver, containing 08.5 per cent, silver, with the antimony variable. Sometimes contains iron, copper and arsenic; variable in coh)ur, hardness and .specillc gravity. P,1{()A('111N<'- Trimming or straightening a working. 1',1J( )()]). Impure matter mixed with ore. I'.IIOWN COAL. A name given to lignite. PdiOWSE. Oie imi)erl'ectly smelted, mixed with cinder and clay. r.j{YLK. Surface indications of a vein in decomposed mineral matter. UIDDLE. A circular tub, ])it, or inclosure, for separating linely divided ores from the waste by means of water. P.lDDliKS. ^lachines for washing slimes. I'dtUiY. A small nuno-waggon for conveying coal from face to gangway. lUHIJ-STOXK. A porous, silicious rock used for mill-stones, 'i'he kinds most in \ise come from tertiary formations in I'hirope. ]')i'liljlN<'-BAl{. An iron bar u.sed to pouml clay into the creviees crossing a bore hole, which is thus rendered gas-light. lU'LJi ri'MP. A single-acting direct i)umi), consisting of a steam cylinder over the shaft. The steam drives its piston, to which the pump-rods are attached. iJy means of the i)iston attached to the rod, the water is lifted by the steam [)ressure. The down stroke is ell'ectcd ])y the weight of the pump-rod. JULLiOX. rncoined gold or silver. r.rXX'll. A snudi, rich deposit of ore. mXTOXS. Timbers placed horizontally across a shaft. They serve to brace the wall i)lates of the shaft lining, and also l)y means of ])lank nailed to them to form compartments for hoist- ing or ladder-ways. lilEHOW. A heap of. refuse. lUTT. The end faces of coal. lU'TT-ENTHY. The gallery driven at right angles with the butt- joint. ' IJVTTY. A miner working on contract by weight or measure. (ACIIK. A place where a prospector's jjrovisions or oiUlit is buried or hidd en. CAKX-STONE. A fine grained, cream-coloured magnesian lime- stone from Caen in Xormandy. It is so soft when freshly quarried that it may be cut by a saw; but hardens on exposure. Much esteemed as a building stone. Ill I 1018 .w'/'/;.v/»/.v ///. CACJK. A I'niiiu' in which trniii-ciirs nri' h>\vi'iT(l nnd rnisod in min, shni'ts. CAINO/OIC. Soc TcTliary. CAKKS OF OWK. Flat iniissos. CAIiAM I N I']. Carhoiiiitc nl' zinc, one of its most easily reduced (ir,,; ocelli's 'I'lih ill IhmIs and veins, mostly in the carhonil'eroiis aiiil liiglii ('ATi('Al{K( . Contaiiiiiii; carhoiiatc of lime, as n calcareous sainl- stoiie oi v'oniposed of it, as calcareous si)ar or calic spar. (ALCAWKorS-'I'CFA. A sponjiy, ])or()iis, or vesicular dep()>ii oi carbonate of lime from water. It often encrusts ve^i'talilc iiml animal suhstances, which are thus said to he petrilied. Winn the carbonate of limo is dei)osited in a more solid form ii i, called travertine or calc-sinter. Stahictites and stalajiiiiitc- .\w of this nature. C'ALCHDONY. See Chalcedony. CAHIiOXATK OF LniK. ('. ('. limo ."i'i.O; carbonic acid ll.d. CALC-SrAR. Sec Calcareous. CALCIFKHorS. Carbonote of lime. C. C. lime nO.O; carbMiiir acid I 1.(1. CALClNINlJ. Hnrninf>- or roastinj; ores or other minerals as pjnt of their treatment for smelting, crushing, or otherwise iitih/.iiu- them. CALIFOWMAX PFMP. A pump worked by water, liorsr-p.nver, or manual labor, and used oidy in shallow, alluvial ground. ('AM. Contrivance attached to the revolving cam shaft of a ^laiiip mill for lifting the stamiis, being an inv(dute of a circh' liaviiiu for ,'ts radius tlie distance between centre of stem and the ciuii shaft. The object of tlie cam being to convert tlie niiildriii rotary motion of the cam shaft into an upward motion df thi' stamp stem, each that the rate of lifting shall be uniform, ih.' action being intermittent, so that time is given to admit nf it< l)ulling freely with accelerated velocity under the ad inn nf gravity. C.\^I-SII AI'"T. A strong horizontal revolving shaft to which a num- ber of cams are attached, in such a manner that no two of them may strike the ta])pits at the .same instant, thus distributing tlic vvciLrhts to be lifted. C.A^IR'RrAX. Derived from Cambria, the ancient name of Walrs. The name given by the late Prof. Sedgewick, of the T'liiver-itv of Camln-idge. to the most ancient system of fossiliferous nxk-. Ill rnisod in iiiin iiic acid I l.n. 10 50.0; carliniiir ator, horsi'-iiiiwiT, uvial ination of carbonic acid with hases. Soft carbonates have lead for a base; bard carbonates bave iron for a base, it also means an ore of lead and silver. ('AUX1''L1.\X. One of the varieties of Chalcedony, originally only the red, but now of any color. (Ab'TIJilXiK. A paper tube tilled with explosives. CASiXCr. The lining of a shaft, the tubing of a well; also a]iplied to the decomposed matter sometimes found between a vein and the wall-rock. ( Al'XTKH OK C()\T1{A J.ODK. A vein intersecting anotber ob- li(|uely. ( .VX'KKXOl'S. Containing cavities or caverns, sometimes ([uite large. ^Tost frecpient in limestones and dolomites. (V.LKSTIXK. Sulpbate of .strontium. (■l'"^rMXT. Not a nuning term in the proper use of tlie word. (KNTHK. ^Unv i)ro|)erly a building term. (KHrSSITK. Carbonate of lead (white lead ore). ('IIALCKl)OXY. Translucent varieties of ((uartz. such as Carneliaii. Cll.VLK. Cretaceous limestoiu'. CifALYUKATI'-. Irony. Waters containing iron, usually the car- bonate of iron, in solution, are called Chalybeate. ('11AMP,K1{IX(;-T0()I.. Tool for enlarging drill bole at entrance end, to enable charge to be concentrated more ell'ectively. ('IfKHT. A rock resembling Hint, but more brittle: a mixture of lime and silica. ('liniXKY. A deposit of ore in the shape of a chiuinev or vertical flue. CI1L0I?IDES. Comjiounds of chlorine with other elements. ,, 1020 ,i/'/'/;.Y/)/v ///. CliriOlMTK. A soft, (lark pvcii niiiu'nil, ontt'riii^' lar^'cly into tli, (•()m|>(»sili(iii of cliloritic schist. It is a silicate of aliiiiiiiia, iiiiii: iicsia and inm, and lias a peculiar earthy n»h)r when I'lvshly l)r()l with the regidations of the district in which it is sitii:ii,i|, CliAMP. A bracket (u- support for a pump. CLASTIC. Fragmental. CLAYlNd-lKON. A tapering bar having a liole at the thick, sr end. It is used in wet ground. (.'LAY JJA.Nl). I'sually found in llie coal measures. Clayey cnr- bonate of iron. A heavy, compact or iine-grained looking >ir ore which has accumulated in the various contrivances for Miviini- it by mining machinery. CLKAHAXCM is the general clean-uit of the whole mill, whidi is usually done once a month, inside peates being usually cIimiumI up every week. CLEAT. A joint ])roduced by the natural tendency of coal nv rmk to .'leave or split in a certain direction not parallel to ilic iilaur of licdding. CLKA\'A(tl']. IMie ])roperty of separating into layers. ('OAL. ^lineralized vegalable matter. 'IMie vegetabli' niatli'i' ;i|i- pear.s to luive tirst taken tliefonn of peat, then lignite, and liii.illv bituminous coal; the latter, by the loss of its bituniin hiis in some ])laccs been converted into anthracite or bard coal. COAL 3IK.\srj{|']S. Those strata in the carboniferous sv>(riii in which coal is found, usually designated to upper and h<\u'v cniil n.casures. -1. : iS of wtKid, ii-i I li' at tlic tliickisr autssAUV or \ii.\i\(i v/./m/.s 1021 COASTI'Mf. Oiu' who ]...'lss (1iiiii|w, or jrlcnns in h1)i\iii1oium1 ininos I'or ori! ill siglil. ( (»15Al/r. (OlUUNd. Oiv sorting. liitcniliy to lirc;ii< into "Colihlos." ( ()IUUil'l-S'l'()NI''.S. Siuootli, lliittoiu'd, roiiiidcd, or cionjzati'd stoiU's, larinT tlinii pobhlos and sniallor tlian iKtnldcrs. Tlicy foi'ni dur- able strt'ot pavi'ini'iits hy licing set on cd.Lic ciosi' tojictlu'r. roi'FKI?. Mortar. COl'l'TN'. Old open excavations. COKE. Carboiiizi'd coal. CULLAK. (1) Tlio top of n shaft or win/,e ; (2) tho tiinl;erin<; of u slinft when carried above tiie surrounding surface, col, Oh'. An Australian cxjtression when rock or gravel shows traces of g(dd. C()LI'MN'A1{. Jicsi'nd)ling columns. 'I'he clilTs of trap|)ean rock-- or diabases of Thunder Cape, T^ake Xepigon, and the country north of JMack Bay have a columnar structure. COLUMN'-PlPI'l. The line of pipe through which the water of a mine is pumped. ( OMI'ACT. Of a tirm texture. CO.MIM^E-^- In mineralogy, containing many ingredients, eom- ])()und or composite. Some Cnited States geologists u,-e the word as a noun to indicate a com|ilex set of rocks folded together or intricately mixed, involved, comi)licated or enlarged. C0-MJ'1\I"1SSI()X. The act of compressing anything, in mining usually applied to compressing of air. ( ONCKNTHATIOX. The mechanical separation of a mineral from the ore. COXCllOlUAL. Name given to a certain kind of fracture re- seudiling a bivalve shell. COXCKKTIOXAHY. Tending to grow together or mix and hold together. COXFORMAliLl'i. When one series of strata is i)arallel to another the two are yaid to be conformable, when not parallel, uncon- formable COXOLO^IKllATK. Rock composed of rounded and water-worn stones cemented together. COXTACT-VEIN. A vein between and in contact with two distinct formations where the deimsit lies upon and f(dlow& the iindula- t ion of the surface of the older one. COXTEMrORANEOUS. Existing together or at the same time. I ; 1022 APPENDIX III. CONTOKTKI). Bent or twititeil together. Used where strata an* very iiuu'h I'ohlet' or cnni'i)li'u on a considerable scale. If on a small scale, they are said ) be corrugated. COXTKACTIOX. Shrinking. Jvocks in passing from a vitreous Id a crystalline texture shrink considerably, which may account Wn- the sul)sidence of cf^rtain areas. The whole glol)e of the earth has shrunk by cooling. 'JMiis contraction is a cause of volcanic action. CO-OrEI{ATIVK CLALM. One in which tiie partners or ow ium^ are employed. COIM'KK; red; fusing j;.,int l,!t;K) degrees F. Symbol, C'u. Alomic weight 03.5. SjJeciHc gravity 8.9. ('OPKOLITK. A piece of petrified dung. COKK Oil COKPS. A miner's day's worlc, equal to eight hours. COinU'iJATKl). Wlien beds on a snuill scale are much wrinkled. folded or crum])lcd, they are said to l)e corrugated. On a laii;vr scale they are said to be contorted. COSTKAXIXG. Costean, Cornish term (cothas, find; stean. tin); tracing the rim of a vein l)y cutting trendies at riglit-aiiulrs along its course. COST-BOOK SYSTK^r. A system of mining i)artnershi[) local to Cornwall and Devon. COUXTER OH COXTKA. A vein intersecting anotlier obli.|iu.!v. COrXTKP-BALAXCK. Counterpoise. A weight used to balaiKr anotluM" weight. C()rXTEI{-(iAX(;-WAY. One wliicli is driven diagonally to the rise until liie workings are reached, wlien it turns oil' parallel to tlie main haulage way. COrXTKY, COrXTHY-HOCK. The strata througli which tli. lodes traverse, or in which ore deposits are found. COURSE OF VKIX. Its direction. COTRSIXO. Coiulucting the air in different directions by moans of doors and stoppings. C0T1?SIX(;. Course. Cornish name for vein, and coursing is often used to indicate the direction. CRAB. An iron windlass for nu)ving heavy weiglits. CRAH-IIOLES. Holes met with in the bed-rock in alluvial mininiK SHAFT. Usually the principal sluift in a mine, and the one at wh'ich the hoisting and pumping are done. EOCENE. Tiie oldest division of the Tertiary system. This name was introduced by Sir Charles Lyell, and means the dawn of the recent. EPIDOSJTE. An intimate mixture of epidote and quartz, fonning an exceedingly hard and tougli rock. EQUlN'AJjE^'T. Used in geology in regard to rock of c()rres[)ond- ing age in regions far from each other. In chemistry, that \)oy- tion of a simple element or of a compound wiiiili will unite chemically to the corres])onding equivalent of some other element or compound. These proportions are always delinite, no more or no less being adnutted. EllOSlOX. The gnawing or wearing away of rocks by means of denuding agencies. The disintegrating processes already re- ferred to soften the rock, which are then removed l)y tlie agency of ice or water, aided by gravitation, etc. EHITTION. A violent breaking forth to the surface of pent-up matters, such as lava, volcanic ashes, stones, mud, water, etc. ESCAIU'.MENT. A perpendicular diif, especially of stratilied rock. EXEMPTED CLAIM. A claim allowed 1)y tiie mining laws to remain idle for a certain term, and for which an exemption certi- licate has been obtained. 1028 APPEXniX III. m EXFOLIATE. To fall off in leaves or scales, as some rocks do |,v weathering. In this way, the concretionary structure of soin,. kinds of i,,ii of })owder. EXPLOITATIOX. Discovering, developing and floating a coiii|i;inv to work a mine or similar undertaking. EYK. The top of a shaft or pit. r. FACE. The exposure of rock at which work is being done; nl-o, ^ per])endicular wall of rock. FAN. A machine used for forcing air down or exhausting finin a mine. FAXG. An air course along the side of an adit or shaft. FATHOM. Six feet— a cubic fathom, feet x fi feet x (i feet. FAULT. Dislocation along a fissure. FAT'XA, The animals collectively of any given age or region. FEEDKIJ. A small vein falling into or joining a larger oiir, and often enriching it or otherwise affecting its character. FELDSPAll. A crystallized consituent of granite, gneiss, |ior|ilivrv and many other rocks. FELSITIC. A massive, amorphores, felspathic rock forming dvkes and mountain masses. FIKH-Cr.AY. Fire clays derive their name from their liiglilv iv- fractory or infusible nature; from their containing littlr (ir do lime, protoxide of iron or alkaline earths. FIRE-DA^IP. A carburettcd hydrogen gas, inflammable ainl sped- fically lighter than air. FIKE SIOTTIXCr. Tbe ju'ocess of ex])osing very hard I'ock tn iiitciiH' heat, rendering it thereby easier of l)reaking down. FISSILE. Capable of being split, as scheist, slate and siialc KrSSl'HE YKIX. A crack or rent cutting tiirough various strata at any, most frequently at right angles, and containing: vein matter. FJORDS. Deep narrow arms running in from the sea. 'j'hcv aiv very numerous on the coasts of Xorway, (Jreenland, and I'lastuiii liabrador. FLACJGY. Capable of being split in jtarallel faced slal)s tliickrr than slates. QLOfiSARY OF MINlXlj TERMS 1029 I'J.OAT. Float or " blow out," displaced, outcrop of an auriferous vein. FLOAT CiOLD. Very fine gold dust which fioats on running water. I'l.OATING EEEF. Loose masses of displaced auriferous rock. I'LOOKAN. Flookan or " Flukan," a cross vein filled with a soft, greasy clay. Also a vein containing a preponderance of clay is called a "' lUikan lode." ILOUK. A horizontal rock surface left by a joint or bed; the bot- tom of a drift or other working in a mine. I- LOU A. The plants collectively of a given age or region. KLOrh'-OOLI). The finest gold dust. rLOL'HlNU. The coating of quicksilver with a thin film of some sulphide by which it is rendered useless for amalgamation pur- poses also called " sickening." I'lA'.MK. A wooden trough, sluice, or race, for conveying water. KLl'Olit^l'AK. Fluoride of calcium. A matrix though l)y no means so common as quartz; it often forms or is mixed with the gangue of copper, lead or silver-bearing lodes — often called l)erl)yshiro spar. I'LL'TINOS. Smooth, gutterlike channels, or deep, smooth furrows worn in the surface of rocks by glacial action. ILUVIATILE. I'ertaining to rivers. I'LL'X. A substance used to promote fusion of metals in the reduc- tion of ore. --« FOLIATFI). Arranged in leaf-like laminae, such as mica or mica schist. J'OOT WALL. The underwall of a lode. l-"Oh'AMlNlKKl{A. ^linute marine animals of the lowest and sim- ])lest organization, but having beautiful shelly coverings. LOliFFlTUlJE. The loss of possessory title as the result of aban- donment or the failure to comply with the conditions under which the title was held. I'OliK. (t'ornish.) The bottom of the pump in which the water is collected at the bottom of a mine. FOliK. (Derbyshire.) A prop for kee})ing up soft ground. FORMATION. "Any assend)lage of rocks which have some char- acter in common, v, hether of origin, age or comjiosition." — Lyell. Li chronological geology, formation constitutes as it were the unit, and several fonnations may go to make up a system. The word is often looselv used to indicate anything which has been formed or brought into its present shape. 1 il 1080 AiTKynix in. FOSSrCKKH. One who gleans the crevices ami cracks for oio aftor the miller. FOSSIL. Tlie animal or vegetalilo remains found in rocks. FKACTUKK. The character or appearance of a freshly broken sur- face of a rock or mineral. Peculiarities of fracture afl'onl !> per cent, of carbon. See lihwK load. CJIfASS. Ore l)rou td 43 i)er cent.; cond)ined witli iron, zinc, silver, mercury, arsfiijc and antimony. Jt varies in color, hardness and si)ecilic grii\iiv. GREKNSTOXK. A general name i'or tiie crystalline gniuular ti'ip rock, siicli as diolite, dial)ase, basalt, etc., and is a conveiiii ni term for use in the field, where it is diilicult to distinguish I'lcso rocks from one anotlu'r. Trap has too wide a range of nieuuin:'', GItEYWA('KE. A grey, ashy-looking rock, consisting of a mix- ture of grains of fels|)ar and (piartz, with some amorphorus miiK.. ral, and often containing rounded and angular fragments of mH sizes, from that of peas up to boulders of .a quartz felspar nnk. These are often so abundant as to constitute a brecciu-cunLild. merate. (Jreywackes are very comnu)n rocks in the lluidiiiiiu system, from the shore of Lake Huron northward. (iRIT. Sandstone in which the grains are sharper or more aii,i:iilai than usual. UKOUND-SLl'ICK. A channel cut in the bottom or bed rock into which the earth is conveyed by a stream of water. GIU'B-STAKK. Provisioning a prospector on a bargain to slime his discoveries. GUIDK. The timbers nailed to the timbers of a shaft, for the |inr- ])ose of guiding the cage. GULLY. A small valley with deep sides, usually cut or woiii (uit of clay or earth. GYl'STM. (Alabaster.) Sulphide of lime used extensively for manures and for the manufacture of jdaster of i)aris. H. irALVAXXKl?. The dresser of the halvans. HALA'AXS. Refuse ore--usually applied to refuse copjior ores. Tf I OLOatiAm- OF MLM.M) TtlU.MH 1038 ILEMATITK (blood like), or ml oxulo of iron. Occurs in sovonil viirit'tit'H as kidney-oiv in renil'orni masses; coni|)act wiien void of crystallino toxtiiiv, ml-odiro or argillacooiis liatMiiiitKc when soft and clayey, as specular when in crystals of a steel-gray colour, and as iiiicaceons when foliated. Liiiionite is sometimes (inaccurately) called hrown iuiematite. 'i'lie finest kinds of steel and iron are made from haematite. One of the conniKinesl ores of iron; it is the peroxide or sesiiui-oxide, and when pure con- tains about TO per cent, of metallic iron and ;{(l of oxygen. lIAN(ilX({ WALL. The npjjcr side of a lode. llAb'DNL.SS OF aUNKHALS. :\lineralogists liave adopted a con- ventional scale of hardness for minerals, it is divided into ten degrees, and the following minerals are used for refi'rence as standards: 1, Talc; 2, rock salt; 3, calcspar; 1, lluor spar; .">, apatite; (), orthoclase fels])ar; 7, quartz; H, topaz; !», corundum; 10, diamond. There is no scale of hardness for rocks which are generally composed of mixtures of diil'erent minerals, l)ut ?oiue varieties may be referred approximately to the scale for minerals. IIEAD-CiEAK. A pit head frame. IIKADINO. The section of tunnel driven in advance of the lower section or bench. HEADINGS. The mass of gravel and ])ay dirt above the gold-bear- ing wash or pay dirt. lIl'iAYK. A fault by which the lode is thrown upwards. IIKAVY (jIOLD. (iold in large particles. HEAVY SPAH. ]jargely used for adulterating white lead (in Canada often called " Presbyterian white lead "). IIELYE. A handle. IIEWI'HJ. A coal miner; one who hews or undercuts the coal. HEXAGONAL. Having six angles, and conseiiuently six sides. 15asaltic columns and crystals of quartz, a[iatite, etc., are ex- amples. HIGH EXPLOSIVES. Those of greater detonating force than black powder. HITCH. A shoulder or hollow cut in the rock to support one end of a stull or other timber. HOG BACK. An anticlinal and rounded ridge having the ai»pear- ance of a hog's back. HOLING. The picking of a groove in the lower part of a coal seam for the purpose of facilitating the breaking down of the up' . mass. HOXEYCOMB. Basalt, or any rock containing many cavities. f\ 10H4 Al'I'HSDIX HI. IIOI'I'KU. A box in the form of nn inverted |>yrnnii(l, and imvin^' an opening at (lie ajiex used for directing broken rock, earth. etc., to a contracted Hpace, in the manner of a funnel. IIOIJJZON. Jn geology, refers to the age or \)\acv, of rock in tlir clironological scale. A I'ock is spoken of as belonging to a liiglier or lower iiorizon according as it is newer or older tliaii some other rock. II()]{.\ r»M']N hK. A mineral of a greenish-grey black composed n\' siiiiates of lime, jnagnesia, also iron, alnmina, etc.; has a horiiv glistening histri' (hence its name). llOlfNS'ro.Nl']. 'i'lic cherty and chalcydonic varieties of (piartz. IIOKSK mass of country rock enclost'd in a vein and all nus entirely surrounded by the vein stulf; sometimes called bould up '■I'-. ll-riMC!*;. The portion of a column i)i[»e containing the vahc (,i; the pump. IH'DCiK. An iron bucket for hoisting. IIUMMOCKY. Lumpy or in small, nneven knolls. lirj{()XIAN SYSTKM. The great system of azoic or crystiilliiu. rocks lying between the Laurentian (below) ami the Cainbii.in system (al)ove). 'I'his name was lirst given by Sir ^\■illi;|||l Logan and Dr. T. Sterry Hunt to these rocks, as they \V( lo largely developed on the north side of Lake Huron, but the hriu lias been pretty generally adopted for rocks of correspoinlin.^f age all over the world. in'NiJliV. Uarren; starved-looking. ]Il'Slll\(i. Discovery of veins by accumulation and sudden dis- charge (d' water. lirTCll. A cistern or box for washing ore. lIYDIkATMD. Containing water in chenncal cond)inati(iii. iuid hence in a definite i)roportion in each case, as gy|)sum. wliich CO ntai lis water of crvstallization,"" hvdrate of lime, or lllir which has absorbed water on slacking; hydrated oxide ol ii lire, which can be readilv converted into tl or vet low o( !<■ anil "II. I,,-, (Irons, or red oxide, by driving olV the water by heat. IIYDIJATIOX. The process of impregnating with water. irVDKAlLlC llOSK common iiose \]!ii'(\ in gold wasiiinu'. aim conveying wati'r to the alluvial idaims, where by (he lal ])r(ssnre of (he water, the detritus is broken down and wn-hc. HYDKACLIC CK.MKXT. Cement which sets under water. 'I'll rocKs w hid 1, on heinjr calcined and ground verv tine, vielil ihi cement must contain, in addition to lime, certain propdriimi^ of alumina, silica and iiiagne.''ia. A little iron is also usually present. ULOBBAItY OF MlNiyo TERMS 10»r) IIYIHIAT'LIC MINlNMi. \Viisliiii;r dnwii ;,n.lil-l)('nrin;j; onrth l»y iiu'iins of a Inrjii' ami iiowcrl'iil jet of water liruiijilit from a con- hidcialilt" lit'ifrlit and tlirt'ctcd l)y a hose pipe, so as to liave a iiressure of from M to loo pounds or more to the sipiaie iiuli. Tliis process lias Ix'eii e.\tensively used in Califoriiiii, and lias iilso bci'M tried in the Cliaiidiere ;;(dd rej,'ioM of tiie Province of (^ucl)cc. IlYPlfAl 1''^'^- 'rinit inelliod of placer mininjx where the irravel is washed by n stream operating; umh'r iiydraulie jiressure. ITYI)ll(>-<'A'{'^^*^''^' Suhstaiiees eom|iose or cover of a lode, it being usually colored by the decouiposition of the iron (gassan). lEON PYRITES, or Pyrit. Bi-sulphide of iron. A hard, heavy, shiny, yellow mineral, generally in crystals, of the cul)ic system. It may be distinguished from copper pyrite by being of a paler yellow color, harder and giving a blade ])ow(ler, wliereas c()pi)er pyrites gives a yellow ])owder. When struck by steel, or when two pieces are struck briskly together, sparks of fire are emitted, accompanied by the odor of sul|)hur. A very common mineral. 5larcasite has the same composition, but is wlute and crystallizes differently. Pyrihotite, or magnetic pyrites, is the mono- bulphide of iron, and is of an iron-gray or bronze color. IRON STONE. Any ore of iron from which the metal may be smelted, commercially, but tisually restricted to stratified ores, especially to clay iron stone — the ore from which a great deal of the h'on of Great Britain has been formed. In distinction to iron ore, being a rock or stone containing a low grade of iron, such as the " gray band," " black band '' ironstones found in the coal measures. ISOCLINAL. Applied to strata which have been so completely overturned that the upper fold or inverted portion dips in the same direction as the corresponding lower portion. JACKANAPKS. The small guide pulleys of a whim. JASFKR. Compact opa(pie varieties of cpiartz, with coneoidal frac- ture, and usiuilly cai)able of a high polish. The lolors are red, brown, green-spotted, nearly white, etc. ,ll(i. A machine for concentrating ore by means of selves. JKfGING. One of the ojierations in the dressing of crushed ores, . such as those of lead, copper, etc. The usual process consists in shaking or jerking the ore in a wire-bottomed sieve, suspended in a vat of water. JIGGING MACHINE. A power machine for dressing ores. hi ; ■ 1038 APPENDIX in. JE"\VEIJiEl?S' SHOP. Xamo given to a very rich patcli of gold drift. .TU^IP. To take forcible possession of another man's chiini. JUMPKK. A steel drill weighted in tlie centre and used for drillin-- holes by hand by lifting and dropping it. JUMP-l'P. A short winze dug in the roof of a drive. JOWL. To strike with a hannner on a wall of coal to determine lis thickness. JUDD. A mass of coal tliat lias been holed oi under-cut for tlii> purpose of being thrown dow n by wedges. JUILVSSIC SYSTK.M. The system whicli succeeds the triassic; <,) called after the Jura mountains, on the Iiorder between Switzer- land and France. It corresponds with the Oolite of England. K. KA^Il'lS. Ikidges of sand and gravel of which the stratification i< rudely paralk'l to the slopes of the surface. Their origin has not l)een satisfactorily accounted for. KAOLIN (Cliina clay.) Taken from Chinese word (Kan-ling, lii^ii ridge), a clay formed of decomposed felspathic rock. KEI'IPS. ^lovable frames or brackets of iron near the top of a >lialt. KEE\'E. A large vat. KJBP.LI']. A large l)arrel-sliaped ])ucket, strongly bound with irmi hoops, hung by a rojjc and used for hoisting ore, etc., up .-hafis in mines. KIES. The jiure or separated sulphide, ns distinguished from iho vein matter in l)ulk. KITiX. A large recc])tacle for calcining ores, limestone, etc. KINDLY. A miner's term for a rock which is considered coiijzrnial or likely for carrying ore. KINDLY (^I'AIiTZ. (Quartz having the appearance of that which usually contains gold. KIXK. 'i'o curl into knots, as ropes; to twist into angled knots. KXOCKSTOXE. A stone or piece of iron for breaking lead ore on. KIKYING. See Holing. L. LABRADORITH Lime soda felspar; a sylicate of of aliiniiiui. liiiu' and soda. Crystallization triclinic. See Felspar. LACCOLITE. A mass of igneous rock which has not reached thn surface, but lias been forced between two beds of rock wIhtc it has spread out. Examples occur in the Thunder l?ay region. GLOSSARY OF MlXIXd TlJh'MS 103D LACUSTKINE DEPOSITS. Deposits formca in tlio bottom of lakes. I.AGGING. Tlie slal'H or small timber placed between tlio main timber-sets and ilie roof or wall to prevent small rock from fall- ing into the drift. J..VXl)SLn)KS, or SUPS. Large masses of clay, earth or rock, which have lost their sup])ort and slid down, sometimes tempo- rarily blocking np streams. J.APPIok. (Cornish.) Ancient term given to 1 ose who formerly dressed ore uith their feet in a huddle. LATir. A plank laid over a frame-centre or used in poling. I.AI'XDKIJ. A cruite or trough for conveying jxjwdered ore, or for carrying water to or from the crushing api)aratus. LAUXDUY-liOX, OR LArXDKK JU)X. A l)()x at the surface re- ceiving the water pumped n[i from below. LAl'KKXTIAX SYSTE:M. The system of very ancient essentially crystalline Archean rocks underlying the Clastic Huronian strata. The Laurentian is not known lo l)e fossilifernus, unless the doubtful Eozoon CanadensL> be of organic origin. LEAD. A metallic element; bluish-white; fusing point, (11 T degrees F. Symbol Pb. Atomic weight, 2(>7. Specific gravity, IX.'i. Galena and carbonates are its most connnon ores. LEAD. (Australian.) Well detined and prolitable bed of ]iay dirt in auriferous drift. Ll'^ADEK. A small ore vein, or branch vein indicating tlie presence of a larger or better one. LEAN. Applied to ]ioo/ ores, or those containing a lower per- centage of metal than is usually worked. Li-;i)(iK. A term in use on tlie Pacific slopes synonymous with lode. LEXCTIL A certain portion of a vein when taken in a horizontal line on its course. LEXTICULAE. Of an onion shape. Applied chiefly 'o quartz vein assuming t his form. A horizontal uallerv in a mine, LKVKL. A horizontal gallery in a mine. LIFT. All the mine workings connected with, opened from, and mined out at one level; also the lengtli of pump-[iipe between stations. LKJX'^TTF. Fossil-wood or wood-coal. Jji^IKSTOXK. A rock composed of carbonate of lime; of all colors, and varies in texture from compact or amorithous to closely crys- talline. "White marble is a iinely crystalline variety. Chalk is a soft form. Limestone may be distinguished from other rocks bv being easily scratched with a knife, and by effervescing when acid is placed npon it. 1040 Ari'E\DIX III. 1 LIMOXITE. Brown liomatito; hydratcd oxide of iron. LJTIIAUOE. The protoxide of load. LITJJOLOGY or PJ':TIK)L()(;Y. The study of rocks as such; a branch of geology whicli is being mucii developed in recciii years. By making thin sections and developing them under tin- microscope, the nature of a rock may be determined, as well lnr most purposes as by chemical analysis. LITTLK (JIANT. A jointed iron.pii)e and nozzle, clecreasing in diameter with the increase of the hydraulic pressure; u;5e(l in l^lacer mining. LIVE QI'ARTZ. A variety of quartz usually associated wiih mineral. LOAM; A mixture of sand and clay. If decayed vegetable maltiT be added it assumes a dark color, and is called vegetable Inani. LOB OF GOLD. A rich deposit of gold contained within a small area. LOCATIOX. Those successive acts by which a claim is appnipii- ated. (2) The claim itself. LODE. An aggregation of mineral matter containing ores in fis- sures; a vein of metallic ore; a ledge. LOXG-TO^r. A trough for washing gold-bearing gravel or eartli. LOXG WATiL. The system of working a long wall or face of cdal, shale, fire-clay, ironstone, rock salt, gypsum, or other niinoial ocrurriiig in beds or seams. The main ways are usually driven to the boundary, and the Avholc of the seam is removed by work- ing a long wall or face backwards to the shaft, leaving no pillars, and allowing the roof ultimately to subside, thus excavatiiit;- the whole of the mineral. LUSTRE. The character of the light reflected by minerals: it (in- stitutes one of the means of distinguishing thein. I.iYDIAX-.STONl<]. A compact or close-grained, nearly lihuk variety of jasper. Til. ^LVriTTXE-WTTni. A winding drum with a vertical axis operatr.l by steam power. ]\rArROSrOPT('. Readily seen by the naked eye. On a largo scale. compared with microsco])ic. 1\IAGXESTAX LniKSTOXE. See Dolomite. ]\IAGXETIC IROX PYRITES. See Iron Pyrites. OLOiilgART OF MINING TERMS 1041 MAOXETITE, or Magnetic iron ore. Black oxide of iron. In ad- dition to its mafrnetisni it may be distingnished from hematite by yielding a black streak and jjowder. :MALT1IA. The pitch or gum resulting from the drying np and oxidation of petrolenm, as when it has reached the surface of the ground. :\l.\M.^llLLATI':i). Having the form of paps or breasts. ;;\iA.M^H)TIi. A fossil elejdiant, allied to the living species, but larger. ]\rANDKILL. A pick for undermining. MAX(iti,,ii oxides, as bismuth, chrome, antiuiony and cobalt oclires. OLD KKI) SANDSTONE. See Xew Hed Sandstone. 01J(;0('L.\CE. Soda lime fels])ar;a .silicate of alumina, soda ami lime. Crystallization triclinic. See l-Vlspar. OLIVINE. An earthy looking olive green or brown mineral, oc- curring in many trappean rocks. OOLITI']. A limestone composed of small round grains reseinliliiiu' fishes' eggs, hence the name. GLOSSARY OF .V/A7A7/ JA'AM/S 1015 (ll'AL. A g'^'i" eomposod of silica, with from .") to 10 ]u;v cent, of water, having a " play of colors," or rolloctiiig raiiihow-liku colors with a hrilliaiico of '* fire," that gives to some pieces a great value. Generally white, and having a hazy or milky trans- lucency. ol'ALKSt'KNT. Hescmhling opal. oJ'MX (TT. A longitudinal surface working not entering cover. OI'KX C'UTTlNd, OU Ol'KX-CASK. A cutting or excavation in a mineral de])OHiit, or for the i)urpose of reaching one. (•PKlfATOli. One who works a mine either as owner or lessee. (lUH. Properly speaking, combinations of metals with oti\er sub- stances, but also applied to the matrix from which metals such as fold, silver and copper are extracted. Sometimes also a[iplied to other nunerals won by mining, as ai)atite, byrites, etc. ()IM\ KKSIOHVKS. 'I'he ore body when exposed ready for sloping. OhM-l-SllOOT. A large and usually rich aggregation of miiu'rals in a ve in. Distinguished from pay-streak in that it IS a more or less vertical zone or chimney, or rich vein nmtter extending from wall to wall, and having a delinite width laterally. OUGANK'. Having organs for carrying on vital processes. Ani- mals and plants are thus organized, as distinguished from minerals or inorganic substances. When these organs or organic struc- tures become mineralized, they are fossils or organic remains. OETIIOCLASE. Potash felspar; a silicate of alumina and [)otash. Crystallization monoclinic. See Felsi)ar. Ol'T-CKOP. The exposed portion of a vein on the surface or out- cioj s of ui)turued strata coming to the surface. Ol'TLET. An exit jiassage from the mine. OL'TLIKP. A i)ortion detached from the main body, an island, as it were, surrounded by some other kind of rock. orTPUT. The gross produce of a mine. OVEKLAP. When strata extend over an ancient i'oundatioii fur- ther than those immediately preceding them; this is called an over la}) OVEUTUKNEl). Where strata have been highly tilted until they pass the per])endicular, so that the lower fall becomes turned upside down, they are said to be overturned. OXIDE. The combination of a metal with oxvgen. OUTBYK. Nearer to the bottom of a pit. OVERWORKINGS. Tlie excess of mineral produce uncovered by a certain rent. ( 104G Ai'i'uxnix III. P. rAINT-GOLD. Gold found in ctMuent of such roninrkalile fineness n» to resemble |)!unt or gilding. PALAKONTOl.OdV. The study of aniient life, espeeially of ani- mal remains; that of plant remains or fossil, botany l)eing (ullcil palaeobotony. PALAMOZOIC. The seeoiul of the five grand division i)eriods ir age.-! of the rocks of the earth's crust; so called from containing- evidences of the most ancient life on the [danet. The palaeiiznic ]H'riod includes (in ascending order) the ('and)rian, SiluriiH), Devonian, Carboniferous and I'ernuan systems. PAN. An iron basin used in gold i)rospecting. i'ANKL. The division of a mine which is isolated from neighlxiriii:; districts ami provided with distinctive haulage and niiimii; system. PAHOXYlS^l. In geology, any violent or sudden natural otiiii- rence, as a volcanic eruption or sudden Hood, etc. PAHTlNlf. A selvage. A thin layer se[)arating greater masses of rock, usually beds, as a parting of shale between beds of -..ii: 1- stone or limestone. Also separating the silver from the guM m the l)Utton derived by cupellation. The silver is dissolvnl l,v nitric acid, the gold remaining as powder. PASS-JiY. A siding in which the tuljs pass one another umlcr- ground. PATCH. A simill placer claim outside tlie main gulch. PATCITY. Distributed in i)atches or in an irregular iiiiiniicr. ,is when ore occurs in buiu'hes or sporadically. J'A'J'IO. A yard or court. The space where ore is mixed and iinial- gainated by the tread of horses. PATJO PHOCKSS. The .Mexican method of amalgamation dl >i!\, r ores. PAY ]{nCK. The lode material in which the mineral or p;iv is found. PAY STREAK. The richest streak or part of a lode. PKA8Y. Lead ore in grains about the size of peas. PisA'l\ A mass of vegetal)le matter formed in bog.s and innvslKs. its i)rincipal constituent is sphagnum nutss, but rushes, nnls. sedges, grasses, algae, etc., may also conl-ribute. Peat soiiiftiiin's accumulates to considerable depth; the lower portion becdiius black and dense and is used for fuel. The rotten wood roiiml in the bottom of swamps is not peat properly speaking, bin cilKil " bog oak," bogwood. ■^T" aL08SARY OF MINIXO TFRMS 1017 l'I':(iMATlTE. A very conrse vnrioty of prnnito, com posed princi- pally of quartz and crystalline felspar, l)Ut often li()l(lin<,f sheets of mica. It usually forms great veins or enlargements of veins cutting mica schist, gneiss, etc. Formerly applied also to liner mixtures of quartz atid felspar, called Hinary granite, now known as grnnitite and ([uartz felspar rock. I'KNT IIOrSE. A shed or horizontal barricade across one end of a shaft, made of strong timbers loaded with rock to protect against any accidental falls from above; more jiroperly the roof or slielter over a windlass or shaft. PEHMIAN SYSTEM. Named from the ancient kingdom of " Perm " in Hussia, where these strata are undeveloped. The system next above the carboniferous, formerly called the new ri'd sandstone; the Devonian or next system below the carboni- ferous, being the old red sandstone. This name (introduced in 1841 by Sir Roderick Afurchis(m) is derived from the govern- ment of Perm in central Kussia, where the system is well de- veloped. There, as in the north of iMigland, it is made up ]»rincii)ally of red sandstone. PETRI KY. 'I'o become stone. Organic substances, such as shells, bones, wood, etc., embedded iu sediments, become converted into stone by the gradual rej)lacement of their tissue, particle by ])article with corresponding amounts of inllltrated mineral mnt- tei'. Thus not only the outward form, but even the minutest detail of the organic tissues are preserved. FETHOLKU^r, OU 1?0CK OIL. Li(|uid hydrocarbon; lormed in large ([uantities in some rocks which contain organic matter. FKTHOLOtiY. See Lithology. PETHOSILIX, A compact silicious felsite having a fracture like Jaspar, but distinguishable from it iu being fusii)le before the blow i)ipe. PIIEXO^MENOX. In science, any natural occurrence or appearance. PlIOSPflATE OF LLME. See Apatite. Via IRON. Produced by deriving from iron ores (and scrap iron) the metallic iron they contain. See lilast Furnace. I'lKE. A pick. J'JKF.MAN. The man mIio holds or cuts the coal. T'lLL.XRS. Poitions of the vein or bed left standing to siip[iort the roof. PINCIf. The narrow space where the walls come close together, or also a contraction in the vein. 1,3 li \f a i t h i i'l i (i \ ■ i hi III) t ii 1U4H ai'1'i:m>i.\ III. ril'K. (1) An c'lon^atc'd body of uiiiR-rnl. ('v') The imiup f;ivfii i , the I'ofsil trunks of (rccs fannd in coal veins. (M) 'To sniijt'ci i.i tlio action of a stroni; .stream of water from u liyilraulie uoz/.l ■. I'lT. A shaft. rrr-KYK-lMLLAH. A solid mass of coal left round the holtom of shafts of foal mines. I'lTCJl. Tile di|) of a lode. I'lTUIiSTONK. A (Ifirk, j,das.sy or pitchy lookinji; ijjneous rock, occurring as (Tikes, and also as heds which have llowcd upon the former surface. It is a natural glass with spliiilery fractun's, although translucent only on thin edges, and has the cniinst of tlio Torti.iry .systems ; .li- vidc'il into till' oliliT iilio(riu', in wliicli froin ;{:, (,, ;,o ,^^,y ,,,,,,1 „t' iiH iiiil.-dili'il .si»ec'ifs arc ^till living, ami tlif ncwor i.lioceiK' in wliicli tilt' iiroiiortioji is I'loiii !Mt lo '.i.") per coal. I'Ll'^AIUAdO. Si'c (liiipliitc. I'LTMIiACilXorS. Containing pliiinimgu, as pliiiiiliaginous .-oliist; .soiiif crystuUino liniL'sloiifs arc also pliiinliagiiious. I'M'MJJ. Vortical. PhUM.MKT. A string of lino copper win- atiadicd to u |„'avy wciglit; used for dftcrinining the vcrticality (d' shaft linilicriiig. l'lirNrominent crystals of felspar. I'ULROZH. The pit nnder a water-wheel; Vol Hoz— Cornish for wheel pit. TOST AXD STALL. See Tillar and Stall. ! m I- i 1050 Ai'i'hjyDix in. POST TKllTIARY TERIOD. Also called quaternary. The luw- cst of the five grand divisions of geological time. It inchules tho jileistocene and the recent or prehistoric systems which brin^' ns up to the present or historic time. rOT HOLES. Kettles. Circular holes, sometimes much dcopir than wide, worn into the solid rock at falls and strong rapids l>v sand, gra^'el and stones being spun round by the force of the current. rOT STONE. A coarse or impure variety of soap stone; so carud from being easy to cut into pots, owing to its softness. POWKlt DIULL. A rock drill employing steam, air or eloctricitv as power. rRKCiriTATK. "When a substance held in solution in a liquid is thrown down in a solid form by the addition of some othur -mI,- stnnco in solution, the resulting solid is called a prefi[ii!;Uo, AVhen a sulistance held only mechanically in suspension in a liquid settles to the bottom, it is called a sediment. PEIAX. Ore com])osed of small pebbles in a clay matrix. PlilLL. A good-sized i)iece of pure ore. PEIMAHY. See Palaezoie. PRLMITIN'E. See Archean. PIUMOKDIAL. The name given by liarrande to the oldest fo^sili- ferous rocks as developed iu Bohemia. It corresi)onds to the British Candjrian. PROP. A piece of timber or metal placed normally to the roof ,jr vi.U for its support. PROSI'E( T. The name given to umlergrounl workings, tin' \:\\\w of which has not yet been made numifcst; tiic an undeveloped mining proj)erty. name ,avLU to PROS]'K("!MN(J. A search for deposits; applied both to the scckiuL' of undiscovered veins and ti» tiie investigation of the vahie of known veins liy exploration. PR(lSiM']C"rOi{. A |)erson engaged in exploring for vahialil(> uiiih- r;d-; or in testing su|)posed discoveries of the same. ]'ROTO(iK.\K. A variety of granite in which talc takes the place of mica, so called Ity tiie French, who su[)posc(l tliat it was tlio first form of the granite. The granites of Cornwall, l",ii,i,'laii>l, which decompose and yield Kaolin are of this kind. PSErnOMOHlMI. :alse form; Oic name given to crystalline tuiiih of a ciimposition not pi'oper to such forms. They may be nun' castes occupying cavities from which crystals have been ivmuvci!. P[ l)Dl\(j-STt).\'E. C()iiglomerate, w . round pebljlet in It. ■ir ; i GLOSSARY OF MINING TERMS 1051 Meim J'l'DDLl"'- To temper clay. I'UDBLK-C'LAY. ruddle clay, the tempered clay made use of in puddling a shaft. PUMICK. A very light, porous and vesicular lava, which will float on water; a sort of volcanic froth. Its color is generally whili^h or light gray. rUMP. Any mechanism for raising water out of a mine. PUTTEE. A young man who conveys coal from the workings to the horse-way. I'YIUTES. (White). A sulphide of iron. (Yellow). A sulphide of copper. Also see Iron Pyrites. PYEOLFSITE. lilack oxide of manganese; used for making oxy- gen for illuminating. I'yPO-SCIlISTS. Bituminous shales Avhich yield hydrocarhon, oils and gases on distillation. PYROXENE. See Augite. PYEHIIOTITE. See Iron Pyrites. PULS()iM^Tl"]K. A kind of a steam condensing pump, acting on the princi[)les of a vacuum i)umi); more i)roperly a pulsating steam pimip. Q. QFAliEY''. Any open work in rock on a plan of excavating the en- tire mass, as distinguished from working a seam or vein by shafts or ap})roaclies under cover. QUARTZ. A common mineral occurring in a great variety of forms. It is composed of the elements silicon and oxygen. It crystal- lizes in the hexagonal system. The trans[)arent, colorless variety, which is the purest form, is called rock-crystal. AVhite, or milk (piartz is a very common vein stone, (jold occurs most fre- quently with quartz, hut only a small proportion of ng the Iluronian rocks, great de])ths of (piart/:- ite^ occur from Lake Huron north and nort'i-easlward, and on the north-west side of Hudson Hav. i ll l: i! li [] I f 1052 AI'PEyDIX III. QUA'PEKXAKY. See Post-Tertiary. (Jl'KI']!?. A small cavity or fissure. Ql'lCK. (Adjective). Soft running groiiiul; an ore or pay strcik is said to be quickening when the associated minerals indicaio licher minerals ahead. (JT'ICKLIMIO. When carl)onate of lime has ])een thoroughly cil- cincd, this results. ]?y the addition of water, it forms liydir,((> of lime, the process being called slacking. QT'ICKSILVER. A common name for mercury; one of the nuM,il!i(. elements remai-kable for its low melting point, being liim] down to 40 degrees F. ])elow zero. R. I?Arp]. An artificial canal for conveying water. 1?ACK. An inclined frame on which the ores are washed and ,|i;|. rated from the slime K.\FTK1? TLAlJiKHlNti. Tliat in which tiie timl)ers apiMMi lik,, roof rafters. IfAISl']. A shaft or winze which has been worked from bi'Idw. ]{.VKI']. A term a])])lied to a vein when obliijue or vertical. IJAXnOM. The direction of a raking vein. JJ.VNCiK. A chain of mountains or hills; also a belt or siii|i of country within which certain economic minerals aiv siij.|i(i.sO(l to occur or run. ]?AW QI'AK'i'Z. (Quartz that has undergone no treatment. >\\v\\ n> burning or reduction, prior to being placed under staui|ilii;i(], ]{API'l\i{. A level' at the top of u shaft or inclined plane fur simuils fr.ini the bottom. 1?KA('I1I']R. .V slim ])rop reaching from one wall to the dilnr. iJKAMKIf. An eidnrging tool. J{K('i"]NT. The present geological time, although it exteml- hack through a vast period of years. .Ml or nearly all existing s|HL'i(.'s of aiiiuials havi' lived through the recent epocli. l{KI>r( 'l.\(;. 'i'lie se])aration of a nu'tal from its c(uii|iniiiii]. IiKKF. In mining often a|>plie(l to (putrtz veins, or \v\u< nf any kind; also to solid or lixeil rock in general, as opposed \<\ jooso materials. l»'KFlXiN(i. Purifying the ores. l{I'Xf I'LATOif. A sliding doo; to api)orti(Ui tlie amount of aii' in 'ic admitted into a section of a mine. liKSlX. Mineral resin. Substances allied in coniiiositioii tn the resins of coniferous trees, such as amber. i QL08i 1 1 i j. IE \itV M. 1054 .irJ'£'-VZ)/A' ///. RUCK WATKK. Water that percolates througli rock. liOOF. TJie stratum overhead. KOUF "\V01\K. A])plied to a vein worked overhead. KOOM. A working place in a flat mine; corresponds to stope in a steep vein. KOTTKX 8T()NE. A soft, light, earthy suhslance, consisting uf silica in fine grains, resulting from a deconi|)osilion of silicinii^i linicslonc. EOYALTY. A rate or duty payahlc to the government or to in.li- viduals on the produce of a mine. KUBBLlv Loose stones. ]{UH13LY 1?E1-:F. a vein much hroken up. Kl'X. A mode of contract work in which steep parts of coal siamg are driven and paid for by the lineal foot or yard of progress. RUSTY. Oxidized. Ore coated wilh oxide. A])plicd to gold wliiih will not easily amalgamate, ajul to decomposed pyrites covciin!,' a lode. RI'TILK. A mineral consisting of oxide of titanium. It is Iniinil associated with litaniferous ores, aiul occasionally in mi, a- schist, granite, etc. S. SADDLE. The ridge of .-^i stratum or ore bed. SAFKTY CAOL. One supplied with safety appliances. SAFK'J'Y LAMl'. A lamj) in which the llame is ])rot('cteil I'miii imuu'diate contact with the surrounding atmosphere. SALTIXO. Placing foreign ore in the crevices of a vein, oi' cIm!- where, to fraudulently raise its apparent value. SAMSOX-POST. An upright supporting the working l)eani wiiidi communicates oscilhitory motion to pump or drill rods. SAXD-PUMP. Pumj) for pumping sand and water. SAXDSTOXK. Rock composed of sand more or less consdliilatiMl or cemented together. SACniAROlDAIi. Having the texture of loaf sugar, as fino- graincd crystalline limestone or nuirble. SCALK. A loosened fragment of rock threatening to break oiT aiid fall. (2) The incrustation deposited in boilers froui ovapniMicd waters. SCAI.K 01'" ,\TR. Air abstracted from the main current. S('AI>E OF TIARDXESS. The relative hardness of minerals is one of their most convenient tests. There are ten degrees. Sec Hardness. ULOl^iiAJiy OF MINIMI TKHM.S ior,5 SCHIST. Crystalline, foliated rock, splittinj,' into irrc^riilnr lonli- ciilar or wedge-shaped, jjlated. Tliero are many kinds of schists, such as chloritic, ealcoid, dioritic, mica, hornblende, etc. Sec Slate and Cleavage. SCHISTOSE. Kesenihling or having the natnre of schist. SCOVAL LODIO. A tin lode. SCKAPER. A tool for cleaning ont drill holes. SKA^l. This word was once used to indicate the divisional i)huio or lino between beds of rock; it now a])i)lics to the bed itself. It usually indicates a bed of a dilTerent kind from the otliers willi which it is associated, as a seam of coal. SI-:COXDAEY. See Mesozoic. SisCTlON. In geology, either a natural or an artificial rock-cut, or the representation of such on paper. HI'^PniENT. Any matter, such as mud, sand, etc., wliich has settled down from suspension in water. Most stratilled or sedimentary rocks have been found in tliis way, although some, iis certain limestones and colomites, have l)een i)reeij)itated. See Precipi- tate. SKEl)-i'>AC!. A water-tight packing of thixseed around the tube of drill hole, to prevent the inllux into the hole of water from above. SECih'EOATION. A ]irocess by which mineral nuittcr has been transfused or exuded into veins and openings, especially in crystalline rocks. SE(iKE(}ATK)NS. All those aggregations of ore having irregular fr)rm, but definite linuts. Tliey diilVr from beds and lodes !)y tlie irregularity of their form; from im[)regnations by their definite limits. SKLKNITE. Gypsum in transparent crystals. SKLVACJE. A lining; a gouge; a thin band of clay often foimd in the vein upon the wall. SP]PTUM. A division or i)artition, such as those in an ortluiceras. SEQl'ENCIv Following, succession, coming after, continuation. SKKICITI']. A tale-like hydrous mica. (Muscovite). Oicurring in small scales, and forming serii'itic schist, which is also called talcoid schist, and ofien spoken of by prospectors as talcose Schist, hut this term ])roperly applies to scliists composed largely of talc, which arc much rarer. SERIES. In geology, a group of rocks in a certain ord(>r or succes- sion, or a set of beds having something in common. TT! lOotJ Ai'i'KMtiy III. 'I !^ Mi I! SEKPKXTIXE. A compact rock, rather soft or scctilc, with a cimi- coiilal and .splintery i'ractiirc and waxy lustre. Wiion powdered, lias a greasy feel. Capahle of a high polish, and is called niarMr. Translucent on Ihin edges. Jn color it has various shades of green, generally dark and leek-green; often spotted or veiiu'il; these are called vert-anticjue; also brown, red, yellowish, viv. Composed of hydrated silicate of magnesia and a little iron. Tin. name has reference to its colors, suggestive of those of snakes. SKTT, OR S1':T. (I) A frame of tindx-r; (2) a portion of gn.un,! taken by a tributer. SHAFT. A deep pit or Ixde sunk throngh earth or rock for the piir. pose of reaching iiunerals. Sliafts are generally rectangulai' in cross section, and i)er|)endicular, or a])pro.\imately so. If iliov underlie far from the perpendicular they are called slopes. SHALK. Fissile argillaceous rock, sjtlitting with the beddin- us distinguished fron) slate, which cleaves in ])arallel lines in.lo- pendent of the bedding. Shales are generally softer than slato;:, There are many varieties, as ordinary argillaceous or clavcv shah', bitinniiious (like the Ftiea) shale, arenaceous, feniiuiu- ous, calcareous, etc. SIIAKIXtJ TA15LF. A slightly inclined table to which a lainal shaking nu)tion is given by means of a small crank or an i'\. centric. AVater is allowed to flow over them and they are (ov- ered with co])per ])lates coated with mercury for the ])urpo.-i' of amalgamating gold or silver. They may also l)e provided wjih ripples or ruilles and used in separating alluvial gold. SITFAA'I*]. A grooved wheel over vijch a rope is turned. SlIFLF. The .solid rock. SlIEFJj AfAlfL. A light cre are usually two shifts of ten hours each, in the 21 Immv, but when great expedition is re(|nired, three shifts of eight hdins each may be worked. STIIXfil/K. Pounded stones and jiebbles, larger than gravel aii'l smaller than boulders, fornn'ng ancient or modern beiieliev STTODi-:. OP SllOAl). A fragment of ore washed down natiuall.v from its bed. GLOSHARY OP MINING TEHMS 1057 SIIODIXG. The tracking of liouldors towards the vein or rock from whicli they have come. SHOE. With which the stamps in gohl mills are shod. SHOOT. Sec Chute. Also the richest ore streaks in a vein wliicli, in the profde of the vein, may run at any angle to the horizon. SirivENING OF QUICKSILVER. See Flouring. SILICA. Siles. The same in composition as quartz; used more frequently in chemical language for tills suhstanee. SILICIOUS. Ilelating to silica. SJLICIFIED. Made into silica. Organic remains, hoth plant and animal, are often thus converted. SILL. The floor piece of a tindjcr sett, or tluit on whieli tlio track rests. Also a windlass frame. SILT. Mud, fine sand, etc., deposited in harl)ors, estuaries, lagoons, etc., from the slacking of tlie currents wliieli have borne them along. SILFRIAN SYSTP^M. The second system in ascending order of the apalaeo/oic period. SILVER. A metallic element; the whitest of the metals; specific gravity 10.53; fusing point 1,873 degrees. Symbol Ag. Atomic weight 108. SILVER GLANCE. Sidphidc of silver. SINK HOLES. A lump or sink at the bottom of a shaft. SINUOUS. Curving, winding. SKID. A wooden beam, scantling or other timl)er, used for sliding heavy weights upon. SKIMPING S. The iskimmings of m-jisIc oil' tlie Ijody of ore lying in a vat. SlvlP. A hoisting bucket. SLAB. A wide fiat stone; the outside cut oil' a log of wood in sawing it into planks. SLACK. Small dirt or coal, SLAO. ^letallic dross or recrement. SLATE. Bony coal and hard clay. SLEEPING PARTNER. A shareholder in a claim who does not work in it. SLIDE. One kind of faiilt, — the vertical dislocation of a lode. Also the mass or loose rock overlying either lode or country. See Fault, or Dislocation. SLIMES, ;^[ud containing ores. SLIP. A dislocation, as to a vein. SLITTER. See Pick. (>7--M ' . ji f 1058 APPENDIX III. SLOl'E. An incline. It is an inside slope when it does not exUn,! to the surface. i^LnXil']. Mud llo\vin<^ from a ])udd]inj^ niacliine. i!«LrDtiKl?. A cylinder having an upward openiiiff valve at the Imt. toni, which is lowered into a hore iiole to pump out tlie shiil-v or fine rock resulting from drilling. SLUK'K. A series of ho.xes set in lime and iloorod with miHo bl()cllu(lc. Siili)lii(li' is llio iiioro roceiil and aii- pro'od term. S1311*. A dt'openiiifi at llio Ixittoin of a sliaft to rccoivo tlio difiiii- a-'o of a mine, and From wliicli the watur is piimiJod. SUrKlfFlClAL DKroSITS. Deposits foriuiiiff tliu surfaco mostly of a soft or incoherent character, in Canada they inchide llie Pleistocene, or Post-Pleistocene and recent deposits. SUI'KWPOSITION. The order in wliicli rocks are placed ahoo' one another. SrHKACK (iKOIiOCJY. The geo]o<:y ol' tiie siiporlicial deposits and of the surface of the fundamental rocks. SWA15-ST1CK. A stick frayed out at one end; used for cleaning;' the sludge out of holes in process of heing bored for blasting. SWALLCJW IlOliKS. Natural holes on the surface, caused l)y sub- sidence of rocks; also caverns or openings where the water dis- appears. SWAMP. A trough-shaped basin in a coal mine. SYENITE. Originally ai)plied to a reddish crystalline granitoid rock, from Syenc in Egypt, consisting of felspar, hornblende and quartz; now called quartz-syenite, while syenite has come to mean a crystalline granitoid rock, consisting of felspar and hondjlende without quartz. SYNCLINAL. When stratitied rock dip from opposite sides toward a common line, the arrangement is called a synclinal; the re- verse of anti-clinal. SYNDICATE. An association or council of persons; in use to de- signate any combination formed to carry out a great linancial enterprise. SY8TE.M. A great series of strata, having some general character in common. As a division of the rocks of the earth's crust, the system ranks next above the fornuition in comj)rehensiveness. Formations are somewhat local divisions, aiul many of them can only be recognized in one country, whereas the systems are suf- ficiently comprehensive to be recognized in all parts of the world. The systems in ascending order are: Laurentian. 11 u- ronian, Cambrian, Silurian, Devonian, Carl)(miferous, Pernu'an, Triassic, Jurasic, Cretaceous, Eocene, Pliocene, Pliocene, Plie- stocenc and Recent. IMAGE EVALUATION TEST TARGET (MT-3) V. -^ -i. ^-^-^ y 1.0 I.I 11.25 |25 1^ 1^ 12.2 -K4 '^ us llfl 1^ U 111.6 Photographic Sciences Corporation 4^ \ s? \\ \. 23 WIST MAIN STRICT wnSTH.N.Y. MSM (716)«73-4S03 i\ i? ^ 6^ 1062 APPENDIX III. T. TACK. Applied to vein-stone much mixed with Mullock. TACKLE. The windlass, rope and bucket. TAILINGS. The fine Avaste material from jiggers and crusliiiiuf mills, that from the latter is carried out by water and is as fiuo as sand. TAIL EACE. The channel for carrying off the spent water of a mill, or irom a washing process. TxilL ROPE. The secondary rope used for balance, which is at- tached underneath the cages of a hoisting plant, or at the tail- end of the loaded and empty trains of cars on a slope for raising the empty cars or skips. TAILINGS MACHINE. A machine for dressing the tailings. TALC. A very soft mineral, being 11 in the scale of hardness; occurs in laminae like mica, but is not elastic; has a pearly lustre and greasy feel; prevailing color, greenish; is a silicate of magnesia; enters into the composition of talcoso, schist, soapstone or steatite, the variety of granite known as protoj,a'no, etc.; is used in the manufacture of crayons, crucibles and porcelain. TALCOID. Resembling talc, as talcoid schist. See Sericitc. TALCOSE. Containing talc; as potstone, stetite and talcose schist. TALCOSE GRANITE. See Protegene. 'J'ALUS. In geology, the sloping mass of fallen rocks, accumulated at the base of a clitf or precipice. TAMPING. The crushed rock or other material which is ham- mered tightly down over the explosive in a drill hole for blast- ing. Also the process of making a bore hole gas-tight by tlie use of clay. TAMPING BAR. An iron bar shod with copper to obviate striking- fire, used for driving down the tamping. T\PPET. The projection on the stamp shaft lifted by the cam. TAH. Soft pitch or thicKened petroleum, found in cavities of sdiuo limestones, as those of the corniferous formation in Ontario; also in those of the township of Keppel, west of Owen Sound. Along same parts of the Athabasca River in the Nortii-Wost Territory, much mineral tar has exuded from the rocks. TEMPERING. The act of reheating and j)roperly coolii;^ a bar of metal to any desired degree of elasticity. BHtMBflMVfiW ^P GLOSSARY OF MINING TEliAIS IOCS TERRA COTTA. The " baked earth " of the Italians. Kiln-burnt clay, assuming a peculiar reddish-brown color, fashioned into vases, statuettes, and other mouldings. l^ERRA SIENNA. See Ochre. TERRAIN. A group of strata, a zone or a series of rocks. This word is used in the description of rocks in a general provisional, or non-committal sense. TERRACE. A nearly level shelf of land abutting on higher ground and dropi)ing oft' suddenly on the lower side. This steep bank is due to the former wearing action of some body of water which cut it away. TERTIARY PERIOD, OV AGE. Also called the Cainozoic period. The third grand division of geological time above the Azoic, or the fourth in all. • It comprises (in ascending order) the Eocene, Miocene and Pleiocene systems. TESSELLATED. A surface divided into squares or figures ap- jiroaching squares, by joints or natural divisions. TEXT I' RE. The coarseness or fineness, character, arrangement etc., of the component grains or particles of a rock. THREAD. An extremely small vein, even thinner *han a string. THROUGHS, or THIRLING. A passage cut through a pillar to connect two rooms. 'JTIROW. The amount of dislocation of a vein. TILL. The Scotch name for hardpan, boulder clay or the unstrati- fied stony clays of the drift formation; a convenient term now generally adopted by geologists for these deposits, TIPPLE. The place where cars have their contents dumped. TITANIFEROUS. Carrying titanium, as titaniferous iron ore. See Ilmenite. TITANITE, or SPIIENE. A mineral consisting of silicate of tit- anium and lime, generally darkly colored, occurring among the upper Laurentian rocks. TITANIUM. A widely distributed dark grey metallic element, found in small quantities in many minerals. TOR. A rounded mass of rock left by the decay of surrounding parts in elevated situations. TOSSING. The process of finally towing or rinsing by agitation in water. TOUIOIAIjINE. a mineral occurring in long, usually striated pri.-ms, in the ancient crystalline rocks; generally dark in color, harder than quartz, and complex in composition, but consisting principally of silicate and borate of alumina, with some iron, magnesia, lime, fluorine, and dilferent alkalies. 1084 APPENDIX III. il: :!' TKACIIYTE. A volcanic rock or lava, common in Tertiary and Post-Tortiary times; consisting principally of a glassy variety of orthoclase, called Sanidine, and some triclinic felspar, to- gether with hornblende, mica, magnetite, etc. It is character- ized by its rough fracture. TRAM. The car of a tramway or light railway. TRAMMER. One who pushes cars along the track. TRANSITION. Intermediate. A term used by the older geologist-: for rocks which came between their better defined divisions ; but little used at present. TRANSLUCENT. Admitting the passage of light, as milk-quart x. but not capable of being seen through. TRANSPARENT. That may be seen through, as rock crystal, I( t - land spar, selenite, etc. TRAP. A general term for igneous rocks, such as the greenstones, basalts, amygdaloids, most porphyry, etc., but too indefinite fi)r modern geological language. TREMOLITE. A variety of hornblende in radiating or colunimu' aggregates, generally light colored with pearly lustre. TREND. The course of a vein. TRIASSIC SYSTEM. The first or lowest system of the messozoie or secondary period. TRIBUTE. A system of contract mining by which the minor re- ceives his pay out of the gross value of the ore sold, less a certain deduction for royalty to the mine owner. TRIBUTERS. Miners paid by results. TROLLY. A small carriage truck having no body. TRILOBITES. A family of crustaceans, so named from their bodies as viewed from above, being divided longitudinally into three lobes. They embrace many genera and species; arc iiiost abundant in the Cambrian and Silurian systems, dying out in the Carboniferous; so that the rocks in which the remains of these creatures are found may be i)ronounccd to be l)ol()\v the ooal-bearing strata. TROUBLE. See Fault. TROUGH. In geology, synonymous with basin and synclinal, whiili see. TRUCK. A small tramcar for carrying coal, rock or ore aloiiu' a level in a mine or out to a shoot or dump. Also goods [laid instead of money for wages. TUBBING. An iron or wooden cylindrical lining of shafts. TUBING. The tube lining of bore holes. l-»! GLOSSARY OF MINING TERMS 10G5 TUFA. Any open, porous, or vesiciilar masses, as volcanic tufa, cal- careous tufa, etc. TUFT. A soft sandstone; also calcareous tlcposits. TUNNEL. A level driven from the side of a hill, etc., into a mine, or driven within the mine; equivalent to adit, level gallery, etc. TUNNEL CLAIM. A claim worked hy means of a tunnel. '{'RUNCATED. Cut or hroken off abruptly. TURTLE STONES. Large nodular concretions found in certain Hays and marls. In form tliey have a rough resemblance to turtles, and this appearance is increased by their being divided into angular compartments by cracks filled witli spar, reminding one of the plates on the shell of a turtle. They are common m the cretaceous marls of the North-West Territories. TUT WORK. Dead work, workers in barren ground; work paid for in the lump, as distinguished from tribute work. TUYERE. The aperture for admitting air into a furnace. TYMP. A short piece of timber placed horizontally for supporting the roof. 1^ U. UNCONFORMABLE. See Conformable. UNCTUOUS. A greasy feel, such as that of soapstonc, powdered serpentine, certain clays, etc. UNDERHAND WORK. Picking or drilling downwards. UNDERIIOLDING. See Holding and Curving. UNDERLAY. Applied to an inclined vein. UNDERLIE. The inclination of a vein from the perpendicular; whereas dip is the inclination of a bed from the horizon. UNIVALVE. A mollusc having a single shell. A l)ivalve mollusc has two shells. UNSTRATIFED. Rocks which arc not in beds or strata, as granite, syenite, greenstone, etc. UPCAST. A ventilating shaft where the air ascends. UPHEAVAL. A lifting up as if by some force from below, of stra- tified or other rocks. UPRAISE. An auxiliary shaft; a mill hole carrying from one levfl up toward another. UPTHROW. An upward displacement of rock along a line of break or fissure. 1066 APPENDIX III. V. m il VEIN. An occurrence of ore usually disseminated through a ganjijuo or vein-stone, and having a more or less regular development in length, width and depth. VEIN-STONE. The mineral matter filling a vein, exclusive of tlic ore. See Ganguc. VEINED. Marked or streaked with veins or lines of color in various directions, as of some niarhlos. VENA. The hranches of the Veta, or main vein. (Spanish). AENA or VHTA MADRE. A mother vein. VEED-ANTIQUE MARHLE. A variety of green serpentine will: patches and veins of white calcspar, and capahle of a fine polisli. A])un(lant in eastern townships, Province of Quebec. VER^IILION. A bright red pigment, consisting of the sulphide of mercury. See Cinnabar. VKRTKIiHA. A joint of the backbone of any vertebrate animal. VKRTFiliRATA. One of the jirovinces or primary divisions of the animal kingdom. \'ESICULAR. Containing little bladder-like cavities, such as rtoiiu; lavas. VETA. A vein. VITREOUS. Like glass. VITRIFY., To nuike like glass. VOLCANIC. Pertaining to volcanoes. Volcanic rocks are tlioso of igneous origin, formed at or near the surface, such as lava, amygdaloid and volcanic ash; whereas igneous rocks formed at a de])th and under pressure are generally crystalline, and arc called ])lutonic. See Igneous. VOLT. Tiie unit of electromotive force. VOLTAGE. Electromotive lurce reckoned in volts. VUGH. A cavity in the rock. W. WAGON-BREAST. One from which ore or coal can be carried liy wagon. WALL. Tile jilane of a country where it touches the side of a vein when used in reference to lodes. The side of a level or diil't, when used with reference to workings. WALLS OP A VEIN. See Foot Wall, also Hanging Wall. QLOHiiAKY OF MINiyO TERMS 10G7 WASH DIRT. Gold-bearing earth worth washing. WASTE. The debris of an excavation. See Ool} and Goaf. WATERSHED. The lieight of land or divide from which the na- tural drainage of a district Hows in opposite directions. WEATHERING. The change which tlie surface of a rocic under- goes by exposure to weather. WEDGINtJ. The material, moss or wood, nsed to render the sliaft lining tight. WHEAL. A pit or hole in the ground. A mine. Tlie names of most mines in Cornwall are preceded l)y the word Wlieal. Old form, Huel. (Cornish). WHIM. A winding drum with a vertical axis turned l)y a horse at- tached to a beam and walking round in a circle. WHIN. Whin-stone or whin-rock. The Scotch name for llorn- stonc. In Nova Scotia the miners ap])ly this term to a thick l)cd of rock composed of grains of quartz witli ai-gillaceous or fel- spathic matter wliich might be called a greywacke. WHIP. A beam over a shaft, with a pulley and rope for raising or lowering a l)ucket or kiblde. This is done 1)y means of a horse going forward and back again. WHITE-DAMP. The noxious gas called carbonic oxide gas. WINCH or WINDLASS. A hoisting machine, consisting of a hori- zontal drum operated by crank-arm and manual labor. WINNING. Gaining or mining the ore. WINZE. Winds or Wize. A snuUl shaft sunk from one level to another underground. WIRE-DRAWING. The operation, accidental or otherwise, of ,c ducing the i)ressure of steam l)etween the boiler and the cylinder. WORKIN({-BARREL. The cylinder in wliich the pump-piston operates. WORKINGS. Any underground development from which ore is being extracted. Z. ZEOLITES. A numerous family group of minerals found chiefly in volcanic rocks. In composition they are allied to the felspars, but contain water in addition. ZINC. A metallic element ; bluish-white; fusing point. 773 degrees F. Generally found as a sulpliide (bleudo), or as a carbonate (calamine). Atomic weight, ()5.2; specific gravity, 8.i). [ i 10G8 APPENDIX III. ZINCBLENDE. Natural sulphide of zinc. A crystalline mineral with a bright resinous lustre; generally of resinous or dark color; gives a white streak. See Blende. ZIKCON. A hard and heavy mineral found in granitic rocks, it consists of silicate of the metal zirconium. The commoner varie- ties are generally of a reddish-brown color. When traspareut it is prized as a gem, and called " Hyacinth." ZIECONH'M. An earthy metallic element that is prepared as a black amorphous powder, as steel-grey shining scales, resembliii';- graphite, or as crystalline laminae, resembling antimony. Zir- conium has of itself no practical application, but its salts llini limited use and are chiefly derived from Zircon. ZONE. See Belt. ZOOLITKS. Certain hydrous silicates of alumina (with alkali, etc), they swell up and boil when exposed to the heat of a blow-jiiiio flame a 1 INDEX. •»• Cros$-re/erences in capital Uttera refer to a title icnnl in Index ; those in Italics to sub-heads. ABANDONMENT (See WORKING). presumption of, 170. ABATEMENT (See CONTRACTS). ABSTRACT OF TITLE, 81. ABSTRACTION, gas, of, 225. oil, of, 225. water, of (See- WATER), 225. ACCRETION, 160. 282. ACCEPTANCE (See CONTRACTS). ACCIDENT (See BRITISH COLUMBIA Ooiil Mines Reg. Ar/.o; Inspection of Met. Mines .1(7; NOVA SCOTIA, Reij. of Mines; ONTARIO, Mines Act). by Inevitable necessity, 230. ACT OF PARLIAMENT (See TABLE OF STATUTES). doed under, 158. provisions, directory or imperative, 408, 532. rules for construction of, 609. ACT OF GOD. what is, 230. ACTION (See WRONGFUL ABSTRACTION; DEATH). British Columbia, in (See BRITISH COLUMBIA, Mineral Act), Ontario, In (See ONTARIO, Mines Act). ACCOUNT (See WRONGFUL ABSTRACTION ; CO-OWNERS ; MORT- GAGES; WRITING). ACQUIESCENCE (See DELAY). ADJOINING OWNERS (See NEIGHBOURS; ONTARIO, Mines Act; SUP- PORT). AD MEDIUM FILUM, 161, 162, 163, 164. ADMINISTRATION (See BRITISH COLUMBIA ; MANITOBA ; NEW BRUNSWICK ; NOVA SCOTIA : ONTARIO ; PRINCE EDWARD ISLAND ; QUEBEC). ADVERSE POSSESSION (See LIMITATIONS, Sfntnteof; MINERALS, pos- session of). ADVENTURE, mortgage, 190. AGENT (See CONTRACTS). AGREEMENT (See CONTRACTS; LEASE). 1070 INDEX I • AIR. barrier, 234. course, blocking up, 234. grant of right to, 235. prescription, none In, 235. Tentllatlon, t35. AIRWAYS (Seo RAILWAYS; STATUTE LAW). Nova Scotia, In (See NOVA SCOTIA Rcij. of Mlncii). ALASKA, boundaries of, 796. ALBA'NY RIVER (ONTARIO), 805. ALBERTA, boundaries «f, 31, 803. ALGOMA (ONTARIO). ALIENS, British Columbia, in, 148. Canada, throughout, 145. capacity of, 146. escheat, 147. holding land, 146. Jurisdiction, as to, 146, 793. New Brunswick, in, 147. Nova Scotia In, 147. Ontario, in, 147. Quebec, In, 147, 325. real estate, holding, 146. ALLUVIAL DEPOSIT, 160, 282. Nova Scotia, Gold Mining, In (See NOVA SCOTIA, Mines ami Minerals Act). ALLUVION, 160, 282. ALVEUS, of river, 164. AMBIGUITY (See LEASE). APEX RULE, British Columbia, in (See BRITISH COLUMBIA, Minimi Act). APPARATUS, when damage to, is an offence, 264. hindering working of, is an offence, 264. APPEAL, from decision of justice, as to, 264. ARBITRATOR (See ARBITRATION). ARBITRATION, British Columbia, in (See B. C. CmI Mints Act; (U,al |/. Itry. Act; Mincnil Act). New Brunswick, in (See N. B. (icncral M. Act). Nova Scotia, in (See N. S. Minvn and Mincnil Act; linj. nf MincH. Ontario, in (See ONTARIO Mincn Act). Quebec, in (See QUEBEC Mininn Luir). AREA, British Columbia, in (See BRITISH COLUMBIA Mines Ad; I'hun Mininij Act). New Brunswick, in (See NEW BRUNSWICK (Icncral Miiiinn .!<•/). Nova Scotia, in (See NOVA SCOTIA Mines and Minerals Act). AREAS, NOVA SCOTIA, in (See NOVA SCOTIA lioj. of Mines). Quebec, in (See QUEBEC Mining Law). AREAS UNDER WATER, 161. Nova Scotia, in (See NOVA SCOTIA Miiie^ ' and Minerals Act). ? ' INDEX 1071 ARSON, Indictable offence of, who la guilty of, 236. ARTIFICIAL WATER COURSES (See WATER). ASSESSMENT (See TAXATION). ASHDURTON (See TREATY OF). ASSINIBOIA, boundarh'8 of 31, 803. land n'glBtratlon district, 814. ATHABASCA, 31, 803. ATTORNEY-GENERAL, Ontario, in (See ONTARIO Minis .IrO.puwiT of, 149. AWARD (See ARBITRATION). BANKS (See RIVER; WATER). BAR DIGGINGS, British Columbia, In (Soe BRITISH COLUMBIA Mhimil Art). Dominion, in (See DOMINION MhiiiKj UiviihitiunK; Iii- dion Lntuh Mininy ItcijuUitinus; Simh-dtrhnnni I'Uirrr liifiuhitionx). BARRIERS (Soe LEASE; SUPPORT). BASE METALS (See METALS). BED, of strt'am (See BEDS; STREAM; WATER). of St. Lawrence, vested in Crown, in right of Province, 1G3. BED-ROCK FLUME, British Columbia, in (See BRITISH COLUMBIA I'luccr Miniuij Act). Dominion, in (See DOMINION Minimi Itcnnhitinns; In- dian Lftnds Mining RvouUituinx; Ynknn I'lncrr Minin;/ Itriiuhitiimtt). BEDS (See BED; NAVIGATION; WATER; LAKE; RIVER), of navigable waters vested in Crown, 163. Province, 161. BENCH CLAIM (See DOMINION Minimj KtynUitimH; Indian Lands Mininij ItrijnhitionM; Sankatvhciran I'loccr RrnnhitionK). BENCH DIGGINGS, British Columbia, in (See BRITISH COLU: TBIA). BILLS OF SALE (See LEASES). BLACK CAWK, person liable, who conceals, 262. BLACK LEAD, person liable who conceals, 262. BOARDS (See ARBITRATION). BOND (See CONTRACTS). BOUNDARIES (See LEASE; STATUTE LAW). Alaska, of, 796. Alberta, of, 31, 803. Asslnibola, of, 31, 803. Athabasca, of, 31, 803. British Columbia, of, 863. Canada, of, 802. Franklin, of, 31, 803. Keewatin, of, 31. Labrador, of, 795. McKenzie, of, 31, 804. Manitoba, of, 806. Michipicoton, of, 833. ! 1072 IXDEX B()UNDAIllES-C'..nh*i.(f'(/. New Brunswick, of, 861. Nova Scotia, of, 862. North-West Terrltorlfs, of, 802. Ontario, of, 831. Saskatchewan, of, 31, 803. Stlckt-en Territories, of, 801. Ungava, of, 31, 803. Yukon, of, 31, 804. BREAKING BOUNDS (See WRONGFUL ABSTRACTION). BRICK, n mineral, 36. BRIDGE, when damage to. Is an offence, 264. BRITISH COLUMBIA (See ALIENS ; CORPORATION, FOREIGX ; CHINESE; CROWN; DOWER; EX'iUA- PROVINCIAL ; MINES), acquisition of water for mining purposes, G7. administration of mine , 30. boundaries of. 9, 863. civil law, not in force. 7. civil laws of England introduced into, 9. Coal Mines Aot. arbitration, proceedings on, 642. submission to, 643. arbitrator, single, 643. time for making award, 643. whether more than one, 643. arbitrators, costs of, 643. award (See Aibitnitiun), 643. not to be set aside for Irregularity, 643. coal (See J'artiicrshii)), 640. discovery of, 639. lands working, 640. prospecting for, 638. coal lands, conveyance of, 642. costs in discretion of arbitrators, 643. County Court, prospecting license, to decide dispute as to, G41. damage, security for, 641. discovery (See Coal), 639. error (See Irmjularity), 443. exploration, 640. Gazette, notice of application for license to be published in, 638. irregularity, award not to be set aside for, 643. land. (See I'roapectiiuj License), 639. \ land used for transporting and shipping coal, 641. \ taken, compensation for, 642. \ lands reserved, prospecting for coal in, 641. INDEX 1078 BRITISH COlAJMrnX—ConUnued. Coal Mlnea Act—Contlniuil, lands (Seo Cool). lease, annual rental, 639. llcenso, of lands covered by, 638. survey, 639. lessee to carry on coal mining, 6J0. Lieutennnt-Qovorncr in Council may lenso lands covered by prospecting license, 639. license to prosecute work of coal mining, 639. license to prospect, extension of, 640. mine, communication witli sea sliore, 641. partnership to prospect for coal, 640. partnership, 640. license ceases at expiration, 640. license, nj other on same land, 640. patent, lessee, when entitled to, 639. petroleum, prospecting for, 638. I lands, working, 640. (See I'urtncn^hii)). prospecting license, application for, 639. extent of land, 639. I land to be defined, 638. ( lease of lands covered by, 639. extension of, 640. holder of, may use timber and stone, 641. dispute as to, 641. notice of transfer to be given, 641. leased lands, not to cover lands of which timber license, issued, 641. penalties for disobeying summons, 643. penalty, how recovered, 644. reference (See Arb'ttratiun). rental (See Lease), 639. reserved lands, prospecting for coal in, 641. rights of way, 641. river, communication with mine, 641. royalty (See Lease), 639. sea shore, communication with mine, 641. security, damage, for, 641. submission, arbitration to, 643. survey (See Lease), 639. transfer, prospecting license, of, notice to be given, 641. umpire (See Arbitmtors), 643. working, coal lauds, 640. petroleum landr 640. way, rights of, 641, 642. 68— M 1074 IXDEX BRITISH COhUMBIA-Continued. Coal Minea Regulation Act. Abandoned mine, working discontinued (See Mine), 663. Abstract, defacing or obliterating, 685. of rules and Act, 685. Acquisition of mine may be ordered by Inspector, 669. Amendment of special rules, 684. Appeal from summary conviction, 687. Arbitration, appointment of umpire, 671. as to special rules, 684. death of parties, 670. notice of, 668. parties to, 670. (&Vc Arbitrator), 670. provisions as to, 670. Arbitrator, appointment of, 670. appointment of new arbitrator, 671. \ failure to appoint, 670. death of, 671. incapacity to act, 671. qualifications of, 670. (See Arbitrator), 670. (See Aioiril). to be pj'actical mining engineer, 672. Arbitrators, may examine witnesses, 672. paymvint of, 672. person may consult counsel or scientific, 672. Award (See Arbitrator). Barometer, 680. Board of examiners, 657, 689. proceedings of, 657. Brake to be provided, 680. Cage, in mine, to be stationary, 681. Certificate of competence, applicants for to give evidence of sobriety, 658. of competency, cancellation to be registered, GGO. may be restored or renewed, 660. of manager, loss of, 661. Certificates of service, 658. Change in name of owner, etc., notice to be given, 663. Charge not to be unrammed, 677. Chinamen, not occupy position of trust in mine, 681. Consent to prosecution, 688. Contravention of rules, 682. Coroner holding Inquest, 673. Coroner's inquest, 672. Costs of arbitration, 668. of Inquiry, 660. " IXDEX 1075 BRITISH COLUMBIA— C(-«/nu/eci. Coal M.lnea ReKulation Act — Continued. Court may suspend certificate of manager, 659. of summary jurisdiction, 688. Cover overhead when lowering ov raising person in working shaft, 680. Damage to mine, 680. Dangerous mine, duty of inspector, 666. Defacing (See Special Rules). Directions to be observed, 680. Drum on machinery for lowering or raising persons, 680. Employees in mine, may appoint person to inspect mine, 681. when guilty of offences, 686. Entrances to place where no worlting, 675. Entry by means of machinery, 679. Evidence, minutes of, to be kept, 688. Examination of machinery, 681. E^xamination, foes for, 661. Examiners, board of, 657. duties of, 658. Exception, how described, 687. Expense of inquiry, 660. of witness, 660. Expenses, how to be defrayed, 661. Explosives, not to be pressed into hole of insufficient size, 677. regulations as to, 676. where inflammable gas, 677. Explosion, penalty for, may be distributed among persons in- jured, 689. Failure to send notice of opening new shaft, 663. False statement, by owner of mine, 684. Fees for certificates of managers, 689. Fence, removal of, 679. Fenced, top of shaft to be, 679. Fences, fly-wheel and exposed parts for, 680. Fencing, where shaft abandoned, 663. Fly-wheel, to be securely fenced, 680. Gazette, riiles and requirements to be advertised in, 684. General signal not to be used for lowering or raising persons, 680. (See Rules), 674. Gunpowder, regulations as to, 676. Imprisonment, with or without hard labor, 687. Incompetence of manager, 659. * Inflammable gas in mine, 674. (See Exiilosiies), 677. Injury, personal, notice of, 662. resulting in death, notice of, 663. Inquest, jury, 673. I '! 1076 INDEX BRITISH COLUMBIA— Continmd. Coal Mines Regulation Aot — Continued. Inquests, coroners, 672. Inquiry, as to certificated manager, 659. by Minister of Mines, 659. costsi of, 660. expenses of, 660. Inspector, dealing witli special rules, 683. finding mine dangerous or defective, 666. may be directed to make special report, 670. notice of appointment, 665. obstructing, 666. of mines, how appointed, 665. of mines, who qualified as, 665. of mines, decision of arbitrator, 667. powers and duties of, 666. to make annual report, 670. to submit special rules to Minister of Mines, 683. Inspectors of mines, duties of, 666. Inspection, Minister of Mines, may appoint inspectors of mines, Jury, inquest, 673. Justice of the Peace, jurisdiction of, 688. Loss of certificate of manager, 661. of life, notice of, 662. Lowering persons, cover over head, 680. Machinery, entry by means of, 679. to be examined, 681. Manager, certificated, incompetencey of, 659. Managers, certificates of competence, 657. Man-holes for place of refuge, 678. Man-hole, access to, 679. to bo kept clear, 679. Means of signalling, etc., 680. Mine, containing dangerous accumulation of water, 678. danger from inflammable gas, 675. dangerous and defective, 667. dangerous because fir ) in, 680. divided into separate panels, 678. employment of incompetent persons, 667. employment of Chinamen, 681. person unable to speak English, 681. Inflammable gas in, 674. inspector or ofllcer. acquisition of, 669. inspection at instance of employees, 681. owner of, to make return, 661. persons unable to read Instructions, 667. plan of abandoned, 664. INDEX 1077 BRITISH COLUMBIA— Oontiniferf. Coal Mines Begnlatlon Act— Contimied. special rules, 682, to be visited by inspector, 666. . ■ . where less than 30 men employed, exempt from sec. 33, 657. •where Inflammable gas not found, 675. where dangerous on account of gases, 675. Mines, managers of, certificate of competence, 657. Minister of Mines may publidh results, 662. notice ol loss of life or personal injury, 662. special rules to be submitted to, 683. to grant certificate of competence to man- agers, 657. to make rules for examinations, 658. Natural strata, not safe working, 679. New shaft, notice of opening, 663. Notice, costs of. 668. loss of life or personal injury, 662. of abandonment of mine, 663. of discontinuance of working, 663. of arbitration, 668. Notices, falfclfying, 684. to be in writing, how served, 664. Nuisance, when shaft deemed a, 664. Observance of directions, 680. of rules, 685. Observance, of directions, 634, 680. Obstructing, inspector of mines, 666. Offence, who guilty of, 682. Offences, description of, 687. penalty for, 688. provisions as to complaint to be laid in these minutes, 687. punishment of, 688. where notices given, 686. when employees guilty of, 686. Owner, change in name of, notice to be given, 663. not to be prosecuted if he has taken reasonable means to prevent commission of offence, 688. of mine to make return, 661, 689. to keep accurate plan of workings, 669. to post up rules and notices, 684. Penalty for neglect to send notice, 688. may be distributed among persons injured, 689. Penalties, offences. 686. Persons disqualified from acting in Court, 688. Plan of workings of mine, 669. Practice, dangerous, duty of inspector, 666. I what is a dangerous, 667. 1078 INDEX BRITISH COhVMBIA—Continved. Coal Mines Regulation Act — Continued. • * , Proceedings of board of examiners, 657. of examiners, 689. Prosecution must be by Inspector, or with consent of Minister of Mines. 636. to be by Inspector or with consent of Minister of Mines. 688. Record of report of examination of machinery, 681. Recovery of penalties, 687. Report to be recorded in book, 676. to be recorded, 681. Requirements, for worlcing mine to be published, 682. Return by owner, occu'^ier or manager of mine, 689. failure to mak , ^. form of. 662. to be made to Minister of Mines, 661. Returns, notice aud abandonments, 661. Road, travelling to be secure, 679. underground, 678. Rules, contravention of, 682. general, 674. (See Special Rules). (See General Rules). Safety lamps, 674. when required to be used, 676. Service, certificates of, 658. Signals, to be provided, 678. working shaft, 679. Shaft, abandoned, to be fenced, apparatus for raising persons, 679. fencing, 664. not fenced deemed a nuisance, 664. top of to be fenced, 679. Sobriety, etc., evidence of to be given, 658. Special rules, amendment of, 684. certificate of copy, 686. copy of, 686. defacing, 685. ■^ establishment of, 682. for prevention of dangerous accidents, 683. Minister of Mines, may propose new, 684. modification of, 684. objection of owner, 684. objection to, 683. objections may be sent to inspector, 683. observance of. 682. publication of, 685. Station at entrance to mine, 675. HiT IXDEX 1079 BRITISH COLUMBIA— C'on^ui(e(/. Coal Mlnea Regulation Act — Continued. Steam-boiler, to be provided with steam gauge and water gauge 680. Steam-gauge, to be provided on boiler, 680. Storage of gunpowder nnd explosives, 676. Summary conviction, appeal from, 687. jurisdiction. Court of, 688. Support, of ladder-way, 633. Supreme Court, 660. Tamping trod. Iron or steel, not to be used for ramming explo- sives, 631. Thermometer, 680. Travelling road, to be secure, 679. , Umpire, appointment of, 671. death of, 671. decision of, to be final, 671, Underground roads, 678. Ventilation of mine (See Ventilation). rule as to, 674. what is adequate, 674. Water, dangerous accumulation of, 678. Water-gauge, to be provided on boiler, 680. Witness, 660. expense of, 660. owner, agent or manager may be, 687. Working, approach, dangerous accumulation of water, 678. notice of fencing, etc., of mine, 663. place where accumulation of gas, 676. shaft, lowering or raising persons, 680. shaft signals, 679. to be made secure, 679. when discontinued, notice to be given, 663. where natural strata not safe, 679. Workings, accurate plan to be kept, 669. Coal, reservation of royalty on, 83. " Coal Prospecting Aet, 1883," 883. Companies, extraordinary powers of, 879. Corporeal tenements, 156. Execution Act, 877. Explosives Act. 877. Formerly called New Caledonia, 7. Gunpowder, storage of, 877. Inspeotlon of Metalliferous Mlnea Act, 1897. Abandonment, of mine, 629. Act, adaptation of English legislation, 623. application of, 623. Agent. (See Manaijcr). (See Owner). to keep register, 626. 1080 [NDEX \ ! ; f BRITISH COLUMBIA— Co»/uu(eri. Inapeotlon of Metalllferona Mines Act — Cotilinucd, Appeal from aummnry conviction, 635. Appliances, inspection of, 624. Boy, unJer sixteen, employment underground, 626, under 12 not to be employed, 625. employment of, 625. Cage to be provided, 632. Children, employment of, 625. Comp.laint, information, offence, description of, 636. Daily inspection of mine, 632. Description of offence, 636. Directions to be observed, G34, 680. Discontinuance, of working, 627. Discretion to be exercised by inspector, 625. Directions to be observed, 680. ^ Disobedience to regulation or order of inspector, 625. Duty of inspector, 625. Employees, when deemed guilty of offences, 635. Employment, of females, children and boys, 625. Engines, inspection of, 624. English legislation, 623. \, Escape, means to be provided of, 633. Evidence, minutes of, to be taken, 636. Exits, how to be collected, 633. inspection of, 624. to order more to be provided, 633. Explosives, device for thawing, 631. gunpowder, inflammable substance, storage of, G31. inflammable substance not to be stored with, 631. Females, employment of, 625. Fencing, what is su acient, 629. Fire protection, code of signals, 631. Guages, pillars, 634. General rules, non-compliance with, 634. penalty for contravening, 634. Hoisting, 624. and landing men, 632. Indictment for offence, 637. Inflammable substance not to be stored with explosives, 631. Information, not to be disclosed by inspector, 624. Inspector, duties of, 623. entitled to see plans, 629. may be romoved, 625. not to act as manager or agent, 623. not to report on mine for party interested, 623. not to disclose information, 624. not to obstruct working, 624. of metalliferous mines, 623. IXDEX 1081 BRITISH COLUMBIA.— Gontinned. Inapeotlon of Metalllferons Mine* Act — Coiiflniied. Inspector, penalty for refusing to admit, 624. penalty for disclosing informntion, 625. report of, 630. to devote whole time, 623. to examine mino, 624. to be admitted to mine, 624. to exercise his discretion, 625. to notify owner of dangerous practice, 625. to Investigate, 625. Inspection, daily, of mine, 632. Interested in minerals, who arc, 628. Justice of the Peace, jurisdiction of, 636. Ladder, to be strong, 633. way, 633. way to be supported, 633. Landing men (See lloifttiiuj), 632. Lessee, of mine, whether interested in, 628. Machinery, inspection of, 624. person in charge of, 626. Magazine for storage of explosives, 631. Manager, to keep register, 626. ■" Metalliferous mines (See Inspeetioii), 623. Mill-holes (See Wiiacs). Mine, abandoned, notice to be given, 627. abandonment of, 629. loss of life, 627. personal injury, 627. plan of workings, 629. sanitary condition, 624. to be inspected daily, 632. ventilation of, 624. Mines, dangerous, 625. plans of, 629. rules as to. 630. (See Innpectorfi). what Act applies to. 623. who is lessee, 628. Minerals, royalties, person interested in, 628. who are interested in, 628. Minister of Mines, consent to prosecution, 636. may instruct inspector to examine condition of mine, 624. plan of abandoned mine to be sent, 629. ' return to, 626. to publish results, 627. r i 1082 INDEX m i ! BRITISH COLUMBIA— C'..»i/i(i.(«(;. Inspection of Metalllferoua Mines Act — Continued. Notice, abandonments of, 626. of accident, 624. of loss of life, 625. of opening new mino, 627. penalty for nogloct to give, 637. to be givon where loss of life or serious accident, 625. whore loss of life, 627. whero mine abandons', 627. Observance of directions, 634. Owner, disobeying order of Inspector, 625. may be witness, 636. of mine, to Itecp plans, 629. to admit inspector to mine, 624. to keep register, 626. Penalty for neglect to give notice, 637. for refusing to admit inspector, 624. when person liable to, 635. Penalties, offence, who guilty of, 634. how recovered, 635. Person, in charge of machinery, 626. Pillars, gauges to be provided, 634. Plan of abandoned mine to be sent to Minister of Mines, 6J9. Plans, concealment of, 630. Inaccurate, 630. of mines, 629. to be produced to inspector, 629. Platform to be covered, 633. Practice, dangerous in mine, 625. Provincial Treasurer, penalties to be paid to, 637. Recovery of penalties, 635. Register to be kept, 626. Report of inspector, 630. form OJ". 626. to be sent Minister of Mines, 626. Returns, notice and abandonments, 626. Ropes, inspection of, 624. Rules, general, as to mines, 630. to be advertised in British Columbia Gazette, 63t. Signals, code of, 631. code of, to be plainly printed, 632. to be arranged, 632. Shafts, compartments required, 632. timbered, to be well, 632-634. top to be well protected, 632. Storing, gunpowder, etc., 631. Sufficient (See Frnclny), 629. Summary conviction, appeal from, 635. IXDEX ". 1088 BIUTISH COLVMmX -Continued. Inspection of Metalliferona Minea Act— C'oti((»uc({. Timbering, 634. Wages, not to be puld in public house, 626. Winzes and mill holes, 633. Witness, owner, ngont or manager, may be, 636. Working, discontinued, notice to be given, 627. of mine. 625. Workings, plan of, to be kept, 629. Lioenao, may be revoked, 153. to extra provincial company, 153. Lands Act, 882. Lands Registration Act, 201. Mineral Act, 516-580. abandoned, mineral claim, re-location of, 539. abandonment, mineral claim, of, 535, 540. notice, 539. of claim, 523. partnership, by, 539. (See Miniiif/, I'aitnvr), 537. absence. Mining Recorder, of, 534. acquisition of water rights, 578. action, final judgment, in, 544. time for commencing, 524. administration (See Death), 567. adverse claim. Crown grant, 544. proceedings, 580. affidavit, before whom made, 576. apex rule, abolished, 528. appeal from County Court, 571. time, 743. application, Crown grant, for, adverse claim, 544, record, for. 530. appointment, of Mining Recorder, 559. assessment (See Mining, I'artniinhii)). assessments, payable in 30 days, 556. bill of sale (See Limited I/mlntity), 558. to be recorded, 548. boundaries, mineral claim, of, 526. " cause " meaning of, 519. certificate, free miner's, 560. (See Free Miner's Certificate). Impeachable only for fraud, 539. issue of, 561. of improvements, adverse claim to part, 547. evidence, prima facie, 542. impeachable only for fraud, 524, 544. lapse of mineral claim, 546. 1 1084 INDEX f BRITISH COLVMBlA—ConHiiiml. Mineral Aot— Continued. curtihuatu uf itiiinuvuiiiuiitH, no work rei|iiire(l nftur, 545. railway bolt, Crown grant, 545. sale of claim after application for Crown grant, 546. (See Crown Crunt), 546. transfer of, 546. ,» . whore salo or transfer of claim, 510. where part disputed to be Issued for remainder, 547. to be taken out by free miner, 520. of work, 535. of improvements, 561. Chancery, information in, as to, 520. chattel interest, in mineral claim, 541. Chief Commissioner, of lands and works, 567. papers to be seiu lo, 662. claim, mineral, change of name, 577. sale for taxes, 577. clay, not a mineral, within meaning of Act, 517. coal, excepted in definition of mineral, 517. collection of taxes, 577. Commissioner, discretion of, 554. duties of. 553. company. Joint stock, may be free miner, 520. (See Joint Stock Company), 523. owners of shares in, not owner of mineral claim, 340. compensation, damage, for, to lands lawfully occupied 523. determined, how, in case of dispute, 525. conveyance, to be recorded, 548. conviction may l>e obtained against company working without free miner's certificate, 522. co-owner, failure to renew free miner's certificate, effect of, 593. interest of, when to become vested in his co-owner, 523. copies, documents of, 562. costs (See Mining Jurisdiction). County Courts, action between employers and employees, 569. for supplies for mining purposes, 569. appeal from, 571. injunctions, 570. Jurisdiction of, 568. not to delay, 571. transfer of action, 570. ■ ' • ' trespass to mineral claims, 569. • ' • where mining property in different districts, 571. (- IXDEX 1086 nillTISH COLUMBIA— Coii/iiiiiec/. Mlii«r*l Act — Continued. Court (See Mining Jnrimllction). jurisdiction, B78. to extend tlmo, 545. mny decide on ground In dispute, 572. mining account on ground, 572. Crown grant, action In Supreme Court, 544. conveys what, 538. dlscovi'ry, necessary, 542, duties of purchaser, 541. mineral claim, of, 583. claims held as real estate, 541. on occupied lands of, 547. mineral reserved, where, 547. mill site, lease of, 550. mill site, of, 551. what passes by, 551. form of, 551 (see App. II.). not to Invalidate Hen. 546. notice, Ir British Columbia Gazette, 543. to be posted, 542. requirements for, 542, 543. section 9 does not apply where issued, 523. survey, 542. transfers of minerals except coal, 547. when Issued to new holder of claim, 546. when holder of mineral claim entitled to, expendi- ture, 541. when deemed to have been validly issued, 574. Crown, lands of, rights of free miner, 524. damage, free miners, by, how estimated, 525. lands lawfully occupied, security for, 524. date of free miner's certificate, 522. deads, deposits of, 56G. death, of holder, 549. (See Admhiistrafinn), 567, " decree," meaning of, 519. declaration, record, to secure, 530. default, locator, of, 532. partner, by, 556. discovery post, 527. (See Tunnel). discretion, how exercised, 554. ' '• dispute, mineral claim, as to, 538. dissolution of mining partnership, 569. dividend (See Limited Liahiliti/). document, how recorded, 562. of title to be recorded, 548. documents, copies of, 562. to be forwarded to Gold Commissioner, 567. drain, free miner's certificate, 522. drains (See Tunnels), 553. 1 1080 I\l)KX ■I i BRITISH COLV yimX-Cmfinued. Mineral Act — CoiitlnimL duties of JudgoB (Set> Ciniiitii CoiirtH), 571. of Mining Recorder devolvo on Gold Commissioner, wlim, 664. dwelling, curtlliig*> of, no riglit to prospect in, 524. employee's license, fee for, 524. employers (See Cimiiti/ VoiirtK). enter right to, 547. entry, to show date, 562. error, record in, of mineral c!'>lniH, 534. evidence, certificates of Mining Recorder, to be, 562. of party to proceedings, 580. (See Cvrtiflnitc nf Iiiiitroirmc)itn), 542. examples of modes of laying out claims, 528. expiration of free miner's certificate, 522. expressions, meaning of, 516. extra-lateral rights, 529. extension (See Timv), 545. fee, for free miner's certificate, may be left at Mining RecorJers office, if absent, 521. fees, collection of, 663. not entitled to interest In mineral claim located by anotlur free miner unless, writing, 573. to be paid or given free miner's certificate before destioyid or lost, 522. flume, free miner's certificate necessary, 52. form, declaration of, 530 (see App. II.). forms, record, mineral claim, 533 (see App. II.). forfeit, claim, when 523. forfeiture of rights and Interest in mineral claim, when takes place on expiration of free miner's certificate, 522. fractional mineral claim, 526. (See Mineral Chiim). fraud, Attorney-General to sue for, 539. to be set up by Attorney-General, 539. free miner, abandon claim, may, 539. abandoning mineral claim, may take away ma- chinery, ore, 539. certificate (See Partner). death, mineral claim, notice of, 539. hold, may, only one mineral claim on same vein, 539. interest In mineral claim, a chattel, 541. license to run drain or tunnel, 553. machinery, etc., may remove, from abandoned claim, 539. may hold only one claim, 539. (See il/i7Z .S'iZc). mineral claim, right to hold, 539. • ^ meaning of, 519. IXDEX 10H7 imiTISH COhVMlMA- Conlinued. Mineral Aet— Continued. free miner not to suffer from default of Government offlclnl, 649. prospect, right to, 524. purchase of claims, 539. Recorder, du ies of, 561. rights of, d'.rlng continuance of certificate, 524. right" -^.der Placer Mining Act, have, 526. re-locate, when may, 539. free miners and their privileges, as to, 520. to take out free miner's certificate, 520. who may be, 520. who may be, 520. certificate, application for, at Mining Recorder's ofllce, 521. as to, 523. every person engaged In mining for minerals other than coal shall take out. 522. expiring, to .^e renewed on or before day following expiration, 522. failure of renewal by co-owner, effect of, 523. form of, 521. how to be obtained In case of Mining Recorder's absence, 521. if destroyed or lost, true copy may be obtained, how, 522. Joint stock company, to, sha'il be issued in corporate name, 520. may be got for one or more years. 520. may run from applicant's t:,en existing certificate, 520. miner's claim not to be recognized with- out, 522. on expiration, owner to forfeit all rights when, 522. owner, person, or joint stock company, shall be named therein, 521. original or substituted evidence of, 522. persons who work, or mine without, liable to conviction, 522. runs from the date thereof, 520. right not to be recognized without, 522. shall be marked " substituted certifi- cate," when, 522. shareholders in joint stock company need not possess, 523. transferable, not to be, 520. 1088 INDEX f ! h tH 1 I BRITISH COLVMBIX— Continued. Mineral Act — Continued. free miner's certificate to company expires 30th iay of July, after issue of, 520. wlien commences to run, 521. wiien free miners entitled to, 521. " full interest," meaning of, 519. game, free miner may kill, 525. gazette, notice in, 543. rules and regulations, to be put in, 576. gold, and other mineral, except coal, 516. Gold Commissioner, appointment of (See Commissioner), 564. application for Crown grants, 546. certificate of improvements, 541. consent to ^-emove posts of fractional min- eral cl.' .1, 531. discretion a. to tunnel, 553. drains and tunnels, 564. leave of absence, may grant, 536. license to run drain or tunnel, re-location, 565. may permit free miner to re-locate mineral claim, 565. may issue lease fur mill site, 566. order as to mining works, 566. powers of, 565, 566. public safety, 566. to fix time for taking away ore from aban- doned claim, 539. to send papers to Chief Commissioner of Land and Works, 562. to mark out space for deposits, etc., 506. to be governed by " Ofllclal Administrators Act," 568. where none in locality, 559. where no mining recorder, 564. written permission for re-location, 540. government employee not to use information for his own benefit, 540. ofBcial omission of appeal of official (See (Imfni- mcnt Official), 549. ground veins, in tunnel, to be marked, 540. hill claim fronting on stream, discretion, 554. horizontal, boundaries of mineral claim, 526. Impeaching (See Certificate of Improivmeuts), 544. imperative, what provisions are, 532. impossible, location line to mark, provisions as to, 533. improvements, certificate of, 541, 546. incidental, powers of, 567. I I^DEX 1089 BRITISH COLUMBIA.— Cuntinned. Mineral Act — Continued. Indian reserves, prospect, no right to, in, 524. Information in Cliancery, as to, 520. Initial post, how marlted, 527. Interest, whether license carries legal or equitable interest in soil, 520. intrusion, writ of, as to, 520. injunctions (See County Courts), 570. Irregularity, effect of, on title, 539. joint stock company, free miner, may be, 520. meaning of, 519. only one shall be named therein, 520. procuring miner's certificate to procure in incorporated name, 520. / shareholders in, need not be a free miner, 523. Judgment, meaning of, 519. to be entered in record book, 548. jumping claims, 538. jurisdiction of County Court actions (See Covnty Courts). land, another of, using, 525. " Land Registry Act," what provisions applicable, 548. lands lawfully occupied, security for damage, 524. last illness (See Death). lease cancelled, 569. legal post, marked how, 527. meaning of, 517. placed how, 527. what is, 532. liability, miner, of, 520. license, natural incidents what are, 520. water to divert, 564. whether carries legal or equitable interest In soil, 520. lien, Crown grant not invalidated by, 546. previous to Crawn grant, 546. liens (See Crown grant). Lieutenant-Governor may make rules and regulations, 576. limestone not a mineral within meaning of Act, 517. limited liability, bill of sale, 558. correct accounts, 558. dividend, 559. indebtedness of partnership, 559. part of partnership name, 558, sale by partner, 558. litigation pending, not affected, when, 574. location, evidence of, destroyed, 578. how many claims may be held on vein, 539. 69-M ill 1090 INDEX BRITISH COLUMBIA -Co)i/m Kerf. Mineral Act — Continued. location line, impossible to mark, 533. meaning of, 517. mlnenil claim, of, 528. notice of, to be given, 533. record of, within 15 days, 533. location, mineral claim within meaning of Act, 517. priority of, 530. locating mineral claims, 526. lode, meaning of (See Vein), 517. majority (See Mining Partnership), 556. marble, not a mineral within meaning of Act, 517. maxims (See MAXIMS), meaning of words and expressions, 516-9. " mill site," meaning of, 517. application for, 566. certificate by Gold Commissioner, 566. form of Crown grant, 552. (See Appendix II,) free miner may locate, 549. (See Free Miner). location of mill site, how marked out, 550. notice, 550. not to exceed 5 acres, 549. requirements for Crown grant of, 550. survey, 550. works on, 566. mine, coal, excluded from definition of, 517. definition of, 517. right to, on occupied lands, 547. Mineral Act Amendment Act, 1898, 579. claim, abandoned, machinery may be removed from, 639, when deemed, 546. abandonment of, 539. adjoining, work upon, 535. application for record, 530. assessment work, 541. area of, 528. bona fide, attempt to comply with Act, 532. boundaries, how mentioned, 526. of, 526. certificate of provincial land surveyor of, 573, conveyance of, 538. Crown grant of, 538, 541. what conveyed by, 538. default of locator, 532. where actual discovery, 532. defaults of person other than owner, 578. description, what to bo given, 530. destruction of record, 578. equivalent to lease, 541. ! i INDEX 1091 I I BRITISH COLVMBlA—drnt inned. Mineral Act — Continued. mineral claim, error in survey, 540. fractional, between other claims, 531. description of, 531. how located, 530. recorded, 530. staked, 527. interference with other claims, 531. marked how, 531. regulations may be made, as to, 532. removing posts, 531. side not to exceed 1,500 feet, 531. survey of, 531, 532. '• ■ full size, how recorded (See Claim; Mining Part- 7iersliip), 530. holder entitled to minerals, 528. not entitled to mine beyond boundary lines continued vertically downwards, 528. not to record transfer, after certificate of improvements, until Crown grant, 546. held as real estate, 566. improvements, certificate of, 541, 546. irregularity, effect of, 539. does not affect title, 539, located and recorded, free miner may hold, 535. how, 526. location a pre-requisite, 538. line, 528. may be re-located, 566. marked by legal posts, how, 527. ho.w, 527. not open to location for 12 months after death of holder, 549. owner of shares in company not owner of any part of claim, 540. on land, not timber land, 547. payment in lieu of work, 537, 541. by assessment work, 541. plan, 531. record, description necessary for, 530. of in wrong mining division; 532. plan to be filed, 531. when free miner entitled to, 533. recorded how, 527, 533. right to free miner to hold, 535. surrender of, 539. survey of, 531. 1092 INDEX BRITISH COLUMBIA— Co>ihni(ed. Mineral Act — Continued. Crown grant of, transfer, to be in writing, 548. what is Bufilcient, 536. when holder entitled to Crown grant, 541. work by partnership, 535. construction of cabin, 536. necessary, 535. where title disputed, 537. mineral claims, 526. disputing title to, 525. examples of modes of laying out, 527. fractional, how located, 532. jumping, 538. on occupied lands. Crown grants of, 547. minerals, definition of, 517. gold and other, except coal, as to, 516. holder of mineral claim entitled to, 528. reserved Crown grant, 547. mineral stone, any, not a mineral within meaning of Act, 517. miner, free miner's certificate necessary, 522. miner's claims for which a Crown grant has been issued, single right not to apply to, 523. where no Gold Commissioner, 560. meeting, where no Gold Commissioner, 560. mining claims, recorded, where, 534. Court, trial by jury, 572. Courts, may create, 570. not to appoint Judges, 570. ditch, free miner's certificate necessary, 522. division, establishment of, 534. divisions, how established, 563. jurisdiction. County Courts, 570. costs, 577. mining partnership (See Assessment; TAmited Liability), appoint- ment of foreman. 559. business of, 555. dissolution of, 569. failure of partner to keep up free miner's certificate, 555. holding mineral claim, 555. majority to decide, 556. vote. 555. yearly, '555. " mining property," meaning of, 517. mining recorder, absence of, record of mineral claim during, 534, 539. appointment of, 559. ' books to be kept by, 560. . ' ; Tl INDEX - 1093 BRITISH COLUMBIA— ConhjiKef/. Mineral Act — Continued. Mining Recorder's certificate of work, 561. certificates, evidence, 564. duties of, free miners, 561. mill site, 563. to forward documents, 567 notice of abandonment, 561. ofilce of, place for records, 534. open, 564. particulars to be furnished to, 527. rights not to be affected prejudicially, 575. to collect fees, 563. issue free miner certificates, 560. record, etc., 562. where none, 564. in locality, 559. mining property, trespass to (See County Courts; Ejectment; Fore- closure; Redemption; Lien; Enforcing Spicifto Performance; Cancelling Sale), 569. mining transfer, arising out of business of County Court, juris- diction of, 568. Minister of Mines, right to enter, 576. minor, who is a free minor, to be treated as of full age, 520. mortgage, to be recorded, 548. notice, abandonment of, 539. abandonment of, surrender implied, 539. Crown grant for, 542. occupied lands, right to mine on, 547. OflBcial Administration Act, to govern Gold Commissioner, 568. onus of proof, 574. order, meaning of, 519. owner, free miner's certificate necessary, 522. partner, entitled to sell interest in partnership property, 557. failure to keep up free miner certificate, 55'i. making default, 556. when liable for indebtedness of firm, 557. partnership (See Mining Partnership), 555. abandonment of share, 556. limited liability, failure to comply with Act, 559. property, sale of, interest in, 557. working how, 556. penalty for working, without free miner's certificate, 522. penalties, fines, how collected, 575. permit, ground covered up, not open to record, 573. to search lode crossing valley, 573. alluvial deposit, 573. petroleum, when said to be " in place," 517. " Placer Mining Act," free miners have rights under, 526. -I 1094 INDEX BRITISH COhVMBl A— Continued. Mineral Act — Continticd, plat, 648. mill, site of. 550. plats, surface rights, Crown grant of, 573. post, discovery, how marked, 527. fractional mineral claim, removing, 531. how marked, 531. initial, how marked, 527. legal, how marked, 528. of stone, where wood available, 532. what is, 532. particulars of, to bo furnished Mining Recorder, 527. prejudice, by omission of Governmenet offlcial, 549. privileges, free miners, and their, as to, 520. proceedings, evidence of, party to, 580. may be returnable forthwith, 572. property; mining, of a minor who is a free miner, to be subject to liability, 520. provincial inspector, right to enter actions, 576. Revenue Tax Act, collector, under, 577. provisions, what imperative, 532. public inspection of books, 562. safety (See Oohl Commissioner), 566. railway belt, 545. Crown grant, application to Gold Commissioner, 546. real estate, claim held ns, as to, 541. meaning of, 519. record, declaration to secure, 530. failure, as to third parties, 548. to affect either party, 548. invalid. 574. mineral claim of, forms (See Appendix II.), 533. time for, 533. of, forms (See Appcndi.c II.), 533. when free miner entitled to, 533. of mineral claim, destruction of, 578. office for mining recorder, 564. requirements for, 530. valid location a pre-requisite, 538. record book, abandonments, record of, 560. affidavits, record of, 560. conveyances, record of, 560. free miner certificates, record of, 560. documents to be recorded, 562. entry of judgment in, 548. open to public inspection, 562. recorded, meaning of, 519. registry of mineral claim (See Land lieijiHtry Act), 548, 549. INDEX 1095 BRITISH COhVMBJA— Continued. Mineral Act — Continued. registration, meaning of, 519, 548. re-locate, free miner not entitled to, without consent of Gold Commissioner, 539. re-locatlon, written permission of Gold Commissioner, 540. repealing clauses. Acts, repealed, 578. right (See Enter). rights for mineral claims, 566. " rock, in place," moaning of, 517. being one of the essential attributes, 517. not necessary to lie between defined walls, 517. not necessary to lie in vein or ledge, 517. what Is, 525. salt water, subterranean, when said to be " in place," 517. shareEolders, shall bo entitled to buy, sell, hold or dispose of shares in joint stock company, although not a free miner, 523. sheriffs (see County Courtn). soil, whether license carries legal or equitable interest in, 520. stake, what is, 532. statute of frauds, sale of mining claim, 541. transfer of mining claim, 541. when holder entitled to Crown grant, 541. Sunday, location made on, not invalid, 533. Supreme Court, action in, 544. appeal to, 571. Courts, jurisdiction of County Court Judges, 571, transfer of action to County Court, 570 survey, certificate of improvements, 542. fractional mineral claim of. 541 mill site, 550. mineral claim of, 531. taxation, of mines, 576. taxes, collection of, 577. timber lease, claims on lands occupied under, Crown grant, of, 547. time, action for commencing, extension of, 545. appeal from order extending time, 545. extension of, 545. may be extended after 30 days, 545. proceedings, to commence, 545. record for, of mineral claim, 533. title, claim to, where intervening owner neglects to take out free miner's cortlflcato, 523. free miner, of, 525. mineral claim to, irregularity, 539. titles, disputes as to, 525. 1090 INDEX %t I'i BRITISH COLUMBIA— ft.n/ninerf. Mineral Act — Coniinucd. transcript of entries, 564. transfer, attorney or agent, of mineral claim, by, 548. in writing, to be, 549. registry of, 548. (Soo Crnwn (Inints), 546. trees, blazed, to be, 527. trespass, action for, 536. trial, by Jury (See Mininij Action), 527. tunnel, expenditure on construction, 540. free miner's certificate, 522. right to veins, 540. veins in claim, 540. tunnels and drains, 553, 565. powers of Gold Commissioner, 564. " valuable deposits of minerals," meaning of. 518. vein, free miner may hold only one claim, on, 539. " vein," or lode, meaning of, 517. vote (See Mining I'artncrshiit). wages, earned by persons, not to be prejudiced, when, 522. walls, defined not necessary that rock in place should lie be- tween, 517. water, applications for, 553. duties of commissioner, as to, 553. exclusive right, 553. to, 554. license to divert, 554. public rights of, 575. right, free miner's certificate necessary, 522. right to take, 553. rights, law ns to acquisition of, 578. riparian, proprietor of, 553. subterranean, salt, when said to be in place, 517. Water Clauses Consolidation Act, 863. words, meaning of, 516. " cause," 519. " decree," 519. " free miner," 519. " full interest," 519. " Joint stock company," 519. "Judgment," 519. " legal post," 517. "location line," 517 " mill site." 517. " mine." 517. " mineral." 517. " mineral claim," 518. " mining property," 517. "order." 519. INDEX 1097 BRITISH COLUMBIA— Con//»u(ecZ. Mineral Act — Continued. words, " real estate," 519. " record«>d," 519. " registered," 519. " registration," 519. valuable deposits of mineral, 518. work, adjoining, mineral claims, upon, 535. after certificate of Improvements, none required, 545. certificate of, 535, 536. not affected by irregularity, 539. company of free miners, by, 535. Crown grant, n'qulrements for, 541. mineral claim on. 537. not done, claim deemed abandoned, 535. payment In lieu of work, 537. what necessary to hold; 535. workmen, discharge of, disputes, 556. writing, required, 573. transfer oi mineral claim, 549. or interest therein, 548. writ of intrusion, as to, 520. writs of capias, 572. Mineral claim, sale of, under execution, 877, 879. Mining statutes, 30. Partition In. 193. Placer Mining Act. abandonment, after notice of, what liability is incurred by mem- ber. 599. and record of notice, 599. notice of (See Xoticv), 599. not deemed to be until service, 599. of ditches, as to, 599. of placer claim, when deemed to have taken place, of shafts, as to, 592. of tunnels, as to, 592. of claim. 586. effect of failure of co-owner to keep up free miner's certificate, 586. of claim and flume, by claim-holder, shall enure to use and benefit of grantee, 603. notice of, effect of on liability of partner for debts, 600. record of, to be kept by mining recorder, 609. receipt of notice of, what mining recorder shall do upon, 610. absence, leave of, to be recorded, 6, 10. a'lsolute, forfeiture of placer claim to be, 593. Act, an, to amend the Gold Mining Ordinance, 1867, taxation of grants under, 620. f:! 109R INDEX i BRITISH rOLr:SII{IA—('..)i^)i -»»'(/. Placer Mining Act— Cuntlntivd. actions, mining (See Mhiliiii Avilniis), 617, adjacent claims, tup-drains from, into, 596. administration, of property of deceased free miner, 614. affldnvlts, as to making of, before whom to be made, 618. age, minor, person possessing free miner's certificate treated as of over age, 583. agent of transferer of placer claim to bo authorized in writing, 594. agricultural purposes, mining ground available for, lease of, not to be granted, 605. application for leave of absence to be signed by all holders of claim or set of claims, 593. bed-rock flume to be in writing, 601. to bo left at Mining Recorder's how to be addressed, 601. what to contain, 601. grant of right of way to set out, what, 595. grant of right of way, to be affixed to conspicu- ous part of ground, 601. grant of right of way, protest against, 601. lease of placer mining ground to bo made, how, and when. 604. lease of placer mining ground to be In dupli- cate, 604. lease of placer mining ground, may be with- held by Gold Commissioner, 605. placer mining ground, to bo accompanied by plan of ground, 604. placer mining ground, how many acres or distances may bo Included, 605. to Gold Commissioner to be received by Mining Re- corder, 611. notice to bo posted, how, 595. If refused, deposit to be returned, 604. prior, ground to be marked out by legal posts, 001. deposit, when, forfeited, 604. areas, of placer mining ground, how many may be included in application, 605. assessment, power to be contained In grant, of right of way, 590. extent of manner of levying to be decided, how, 597. for default of. In payment, as to, 599. liability for, to be personal, 599. of property of partnership, interest of partner may be sold to pay, 599. of mining partnership to be payable within five days, 599. INDEX 1099 liKlTISH C()U'Mn\\~Cnnl!nm-l. Plaoer Mining Act — Con tinned. assessor, powers and duties of, 620. assets and liabilities, correct account of, to bo kept by parlnur- shlp, 600. attest of transfer by subscribing witnesses necessary, 5D4. auction, public, sale of partner's Interest to be by. 599. auctioneer to sign bill of sale of partner's Interest, 599. authorities, or other powers of attorney, to be recorded by copy- ing out verbatim, 610. balance sheet, monthly, to be made out, 600. to be open to Inspection by creditors, 600. bar diggings (See I'luvvr Vluiin), 588. leaseholder engaged in, 607. new stratum to be deemed a new mine, 589. bed-rock flumes, as to, 601. application for, to be In writing, 601. construction of, 614. •forfeiture of, 603. grant for, may be extended, 003. right of free miner, to tall sluices into, 603. bench diggings (See I'lurcr Claim), 588. lease-holder engaged in, 607. limits of, may bo extended by Gold Commis- sioner, 613. highest bidder (See irujhvst Itiddcr), 588. bill of sale, placer claim to bo recorded, 594. of partner's interest as to, 599 to be signed by auctioneer, 599. to confer title upon purchaser, what, 599. effect of, on liability of partner for debt, 600. to be recorded by copying out verbatim, 610. books, to be kept by mining recorder, 608. entries in, transcript to be made, when, 612. of partnership, to be open to inspection, of Record, to be open to public Inspection, 610. cash, expended on, amount of, to entitle to leave of absence, 593. cement, new stratum, to be deemed a new mine, 589. certificate, free miner's (See /'*•((' Miner's Cvrtilicaie). proper ofBce for recording, 611. certified copy of record of transfers may be registered, when, 595. cession, of claim-holder's Interest to grantee of right of way, 603. change, of name of claim, what effect has, on creditors, 620. changing, name of, claim, as to, 620. channel, old, lease-holder, engaged In, 607, charge, tax, shall form a, upon claim, 620. ' I 1100 jypFx iii ' iti: " icr ■ m^ BRITISH COUmmX—Contimied. Placer Mlnlns Aet—<'»ntlHUfil. tia.m, tnx ahnll form a charge upon, 620. creok, discovory of (See Crcfk Cluliii). 539. each to be staked as an ordinary placer claim, 620. name of, as to changing, 620. ono man to be employed to each, 620. claim-holder, as to right of, to become partner of, grantee ot right of way, 602. C(^slon of interest of, to grantee, 603. may abandon claim and flume, 603. claims, adjacent (See Adjarcnt Clalmsi. set of (See Set uf ClalniH), 593. may be recorded In one record, 597. partnerships, may be located and recorded as, 597. working (See Workinii), 597. close season, placer claim need not be worked during, 593. location of placer claim in, as to laying over of, MS. location of placer claim in, as to laying over dur- ing, 593. roal mining. Jurisdiction of County Court does not extend to, fil4. collector, entitled to be furnished with list of employees, 58(J. company of free miners (See Free Minrrs Co., of), 593. for damage arising from entry, 587. compensation, to be made by free miner to occupant of land, how to be determined in case of dispute, 597. conditions, terms and, upon which water right may be granted, 597. consent, of free miner occupiers, necessary for lease, 605. tacit, mining partnership to be renewable from yt;ir to year, by, 597. consolidation, of adjoining leases of placer mining ground, as to. 620. of lease, when, may be made, 606. construction of Act, not to prejudice mining rights, 618. contract for sale of partnership Interest in property, 599. foreman or manager may bind, 597. contracts of foreman and manager, as to, 600. for sale to be recorded by copying verbatim, GIO. contractor, to pay fee for free miner's license, any employee, 518, conveyances, record of, to be kept by Mining Recorder, 009. of placer claim bill of sale to be recorded, 594. to be recorded by copying out verbatim, 610. record of, transfer of placer claim to be recorded in, 594. conviction for Infraction of Placer Mining Act, 618. for providing false statement of employees, 587. co-owner, failure of, to keep up free miner's certlflcnte, effect of. 586. ■^1' IXDEX 1101 imiTISH COLrMMX-ContltoKd. Placer Mining Act — rontiniial. cost of repairs, levied, how, 596. costs follow penalty, when, 585. counterfoil, of true miner's ccrtiflcato, as to, 600. County Court, jurisdiction of, as to omploycrs and cmployeea, 614. action of trusts, 614. coal mining, jurisdiction does not extend to ac- tions between employers and employees, when, 614. contracts for supplies, Jurisdiction as to, 614. employers and employees, jurisdiction as to, 614. ejectment, jurisdiction as to, 616. foreclosure, jurisdiction as to, 016. jurisdiction of, 610. Hen, as to enforcing. 616. redemption, jurisdiction as to, 616. reforming, jurisdiction as to, 616. specific performance, as to, 616. agreement for sale, 616. Injunctions, 616. leases, 616. mining partnership, 616. purchase, 616. supplies, contracts for, jurisdiction as to, 614. Court having jurlsdlctlim in mining disputes may summon fore- man or manager, 597. County Court summons, " mining jurisdiction," to be written on, 616. arrest, orders for, 618. costs In, 617. document In action, " mining jurls- ' diction," to be written on, 616. judgment debtors, detention of, 618. process, " mining jurisdiction " to be written on, 616. writs, " mining jurisdiction," to be written on, 616. writs of en. re., as to, 618. covenant, of lessee, to mine ground In miner-like manner im- plied, 606. for continuous working, as to, 606. covenants, implied, in grant of right of way, 596. creditors, of claim, rights of way, name, change, 620. creek diggings, application for placer mining ground in, 602. claim (See Placer Claim), 582, 588. discovery claim, extent of, not to exceed 1,000 feet, 589. creditors, names to bo shown on monthly balance sheet, 600. entitled to inspect monthly balance sheet, 600. to inspection of books of partnership, 600. P 1102 INDEX BRITISH COLUMBIA— 6' i used by him for mining purposes on his minim; claim, 597. to mark out ground for placer mining, how, 601. to post notice of placer mining ground, how, 601. to make application for lease of placer mining ground, in writing, how, 604. what rights and privileges shall have, 587. will pay placer claim to record what, and when, 500. to be entitled to printed copy of Act, free, 618. free miner's certificate, person having, to be considered as live miner. 583. not transferable, 584. to joint stock company, shall Issno in its corporate name, 584. may be granted for one or more years 584. runs from date thereof, or from the ex- piration of then existing ceiiifiiaie 584. to joint stock company, ends on uuih June, after issue of certiflcaie, 5S3. to be issued on payment of fees, 5s 1. only one person to be named llieivin 584. application at recorder's office, dniing his absence, as to, 585. conviction for working without a, 5S5. » destruction of, 585. every person in joint stock comiian.v in- gaged in placer mine shall lake out a, 585. evidence, substituted certificate, to ije oi what, 585. fees for, whom may be paid to in tlir mining recorder's absence, ns.-i, form of, 584. (See Aiiiiniili.r ID if lost may be re-Issued as " substitnted certificate," 585. loss of, 585. only one joint stock company to be named therein, 584. ixDi:x 1107 imiTISH COLUMBIA -C'../i/mi unl Flaoer Mining Aci—Coiitininil. free miner's certificate, pennlty for working witliout a, 585. " substituted certificate," may be issued, wlien, 585. " substituted certificate," to be evidence of what, 585. worliing, person engaged in placer mine to take out a, 585. as to necessity for in case of placer mine for which a Crown grant has been issued, 580. effect of, on title to subsequent holder, 586. game, right of free miner to kill, 587. gold, not included in right to mine for precious stones, C05. Gold Commissioner, discretion to reduce amount of Hume to be laid, as to, 603. applications to, to be received by Mining Recorder, 611. as to powers of, 612. discretionary powers of, to grant leave of absence, 593. has absolute discretion as to granting or withholding license to construct drain or tunnel, 595. if satisfied with reason for not working, forfeiture will not take place, 593. may grant right of way for, 014. may issue license to construct drain or tun- nel. 595. operation of, as to entitling locator of placer claim to be entitled to have laid over, 594. powers of, 614. power of, as to dealing with application for lease of placer mining ground, 605. power of, to sell claim for default in paying taxes, 620. requirements of, may be performed by Mining Recorder, 611. when to perform duties of Mining Re- corder, 612. " Gold Mining Amendment Act, 1872," taxation of Crown grants under. 620. Gold Mining Act, 1873, Crown grant issued under, as to, 017. Government reservations for town sites, may not be located on, 587. u 1108 INDEX BlUTLSH COLUMBIA— C'o»i/iii»e(Z. Placer Mining Act — Continued. grant of right of wny, to bo in writing, 601. to be signed by the Gold Commissionor 601. to be for term not excet-dlng five years, 601. to bo recorded, 596. rent to be paid for (See Rent), to water right, froe miner may obtain, how, 597. grantee, of right of way, what rights and privileges to be on- titled to. 601. entitled to gold or other minerals in his flume, 602. of right of way, as to right of claim-holder to become partner with. 602. what amount of flume to be laid, 603. to record grant of right of way, how and when, 60,1. Interest of, in grant, to be deemed to be a chatiol in- terest. 603. to pay fee for record, 603. to pay annual rent, 603. of right of way to make good damage, 596. gravel, new stratum, to be d«'emed new mine, 589. sluices, of free miner, may be tailed Into bed-rock, 003. Her Majesty, rights of, mining rights to be deemed to be subject to. 618. highway, working so as to endanger, as to, 613. highest bidder, sale of partner's interest to be to, 599. hill diggings (See Vhtar Claim), 588. holiday, public, location on, not to be invalid, 589. horizontally, size of placer claim to be measured, 589. hydraulic claims to be laid over if supply of water insufllciont, 594. hydraulics, of free miner, may be tailed into bed-rock flume, G03. ignorance, effect of, on title, 590. implied covenants in grant of right of way, 596. Imprisonment, may be imposed for default of payment of fine or penalty, 618. Indian reservations, may not locate on, 587. inequality of surface of ground not to be regarded, 589. informality, presence of, effect of, on transfer, 594. " initial post," to be written on Initial post in writing, 597. initial stake (See Stake), 597. Inspection of books, to be free of charge, 610. balance sheet, creditors entitled to, 600. documents, may be made upon payment of foo, 6II. Instrument, when transfer makes entire interest, 594. Instruments, affecting claims, proper notice for recordinpr, fill. insufficiency of water, notice of, to be posttnl, how, 594. interest of free miner in placer claim may be extended, how, 591. of partner, correct record of, to be kept by partners, GOO. INDEX 1109 IjKlTISH COLrMHlA— Cod^HK.'i/. Placer Mining Act — Conlinual. Interpretation, 581, 582, 583. joint stock company shall tak'.« free miner's certificate in Its corporate name, 584. shareliolder in, may not be free miner, 586. Judges, County Court, jurisdiction as to, 610. jury, wiiether mining disputes to be tiled with or witliout, 587. labor or Improvements, expenditure upon, when tax not to be levied in respect of, G20. performed, amount of, to entitle to leave of absence, 593. land falling within curtilage of any dwelling house, may not locate on, 587. occupied for placer mine, may not locate on, 587. held under mining leases, provisicms for leavt; oi absence not to apply to, 593. provisions as to laying over for insuflleiency of water not to apply to, 594. occupied by any building, may not locate on, 587. already lawfully occupied as to right of free miner to enter thereon. 587. occupied or unoccupied, drain through, license to be ob- tained. 595. law, rule of, effect of, on forfeiture and on placer claim, 593. lay-over to be recorded, *)10. placer claim need not be worked during, 593. lease, interest of, grantee, in right of way, being equivalent to, for the term of such grant, G03. of unoccupied and unreserved Crown land, term of, G03. of unoccupied and unreserved Crown land, tcnn of con- ditions upon which to be made, 603. of placer mining ground, renewal of, 605. none to be granted without sanction of Lieutenant- Governor in Council, 605. of mining ground, to be in writing, 605. copy of, to be filed in office of mining recorder, 605. to be signed, how, 605. what to provide, 606. what covenant to contain, 605. when to bo declared forfeited, 606. extension of, granted by endorsing memorandum on, 606. how to be declared forfeited, 606. p*" bed of river, for dredging purposes, as to, 607. of bed of river, reservations in, 607. shall bo granted for placer mining only, 606. shall not bo assigned or sub-let without consent, 606. leases shall in all matters bo governed by terms thereof, 593. I ! lit n t jl ?, 'I If I IKi > ,i» II I'. tin 1110 BRITISH COH'MniA Placer Minli* leave o' jyuEX Cfiiiliinicd. , to be recordttl, 610. application for, how to bo signed, 593. effect of. 593. effect of, on free minor's certificate, 593. records, 593. re-records, 593. free miner entitled to, 593. not to apply to land hold under mining leases, 593. not to apply to mining property held undoi- mining loases, 593. leavings, deposits of, space for, may be marked out by Gold Commissioner, 613. legal post to be placed on side lino, when and how, 589. legal posts (See Posts, Legal). levy, power of, to be contained in grant of right of way, 596. liability for assessment to be personal by partner, 599. limit of, as to. 599. may be limited, how, 600. notice regarding limited, 600. of partnership, partner when not liable to, 599. of partner for debts beyond amount of his proportion, 600. of partner disposing of share for debts, 600. liabilities to be paid before dividend declared, 600. assets, correct account of to be kept by partnorshij), 600. license fee for employees, effect of failure to pay, 587. to construct drain or tunnel necessary, 595. Lieutenant-Governor in Council, sanction of, essential to grant of lease of placer mining ground, fi05. in Council jurisdiction to mako orders, 618. In Council, jurisdiction to mako forfei- tures, relief against, 618. limit of liability with partnership namu, 600. locate, free miner shall be entitled to, what lands, 587. location made on Sunday not to bo invalid, 589. notice shall bo on first initial post, 597. lodes, free miner may enter on leased mining ground and mine for. 606. machinery, amount expended in to entitle leave of absenco, 593. manager and foreman may be chosen by majority, 597. measurements. Gold Commlsssloner may define, 613. memorandum of sale, maker's entire interest, 594. mile, rent of, to be $25.00 per quarter, 597. mine, now, what to bo deemed, 589. IXDEX 1111 BRITISH COLVMm\—C„)>lliiii,;l. Placer Mining Act — ('onthiiird. mine, tunnel or drain to be consldertul as part of, 595. mineral claim, location and record of, by holder of placer claim, 592. on placer claim, may be entered on iind recorded by free miner, 593. minerals, in ground, bed-rock flume, 585 mines, taxation of, 618. mining actions, when Court decide, 617. business of partnership to pertain solely to, 597. claim, rent of water used by free miner on his own, 596. disputes, what Court has jurisdiction in, as to, 597. ditch bed-rock flum<', 585. divisions, Lieutenant-Governor may subdivide a district into, 611. " mining jurisdiction " of County Court, as lo, 616. mining ground occupied by free miners, lease not to bo granted, 605. lease, bed-rock flume grant, 585. leases, mining property held under, leave of absence not to apply to, 593. land or mining property held under, provisions as to laying over for insufllciency of water not to apply to, 594. mining partnerships (See I'lirtiicrsliiiht). mining property, disposing of, as to, 617. held under mining lease, leave of absence not to apply to, 593. held under mining lease, provisitms as to lay- ing over for insufficiency of water, not to apply to, 594. Mining Recorder, as to appointment of, 608. deposits of money, when to be received by, 611. duties of, when to be performed by Gold Com- missioner, 612. entitled to be furnished with list of employees, 580. may perform requirements of Gold Commis- sioner, when, 612. notice of insufficiency of water to Le posted in office of, 594. rents, when to be collected by, 611. shall keep record book, 590. to keep certain books, 608. to receive applications intended for Gold Com- missioner, 611. Mining Recorder, as ic appointment of, 608. flled in, 606. hours of, 612. to be only proper place for records, 590. I ( i ! i i \ ' 1 Hi w :[ i ■ '■ 1112 INDEX UUITISH VOLVSUMX-Conlinmd Placer Mining Act — Coiiliniial. miiUug rights, to be di-emed to be subject to rights of Her Ma- jesty, G18. not to be preJmUcally affected by construction of Act. 618. to be subject to rights of way and water, fil8. to be deemed to be subject to Act, free iniiu'r to be entitled to printed copy of, free, 018. minor, liabilities of, is treated iis a free miner over age, 583. moneys, Invested in mineb, taxation of, G18. mortgage vt placer claim, bill of sale to be recorded, 594. mortgages, to be recorded by copying out verbatim, 610. name, changing of claim, G20. partnership limited liability, part of, 600. now mine, what to be deemed, 589. newspaper, notice of sale of partner's interest to be published in. 599. notice of abandonment to be in writing, 599. to be duly recorded, 599. for lease of placer mining ground, liow to be posted, Gn). for lease of placer mining ground, what to contain, Gi)4. on legal posts, to be in writing, 589. state what. 589. of Insufflclency of water to be posted, how, 595. location (See Ltivulinn Sitlin), 597. jippllcatlon for right of way to be posted on ground, 595. sale of partner's interest, how 1o be made, 599. sale of partner's Interest, where to be posted, 599. if partner absent from ilis- trlct, 599. sale of partner's interest to be published in news- paper, 599. regarding default of payment of assessment, 599. service of record of, 599. obstruction, implied covenants to keep right of way free from all. 596. occupied lands (See Lumh Ocvuincd), 595. mining ground, lease of, not to be granted, 605. officers. County Court, jurisdiction as to, 616. operative words, effect of omission of proper, 594. orchard, may not locate on, 587. order, working (See Workhnj OiiU'i). orders, jurisdiction of Lieutenant-Governor to make, 618. ordinary claim, discoverer's claim considered as one, 5S9. owner to pay fee for free miner's license for any employee, SSU. to furnish list of persons in employ, when, 58G. where evidence of location destroyed, 620. IMJLX my BIUTISII COHMIWA— 0-/i/niM,7/. Placer Mining Act — i'mitiniirtl. partner, right of clalm-hdldfr to become, with grantet' of right of way, ti02. dlachurgo by foreman or maiuiKer, as to, 597. interest of In partnership property may be sold to pay asscsHmcnt, 5U'J. may contract for sale uf inleri'Si, 59y. may sell and dispose of hla Interest to free miner, (iOO. not liable for debts beyond amoiini of prtpporiiDn, (loo. of contract shall bo entitled to sidl his Interest in, u9'J. shall be entitled to sale, 599. to be personally liable fur assessment, 599. what liabilities Incurred by, after notice of abandon- ment, 599. partners, names of, correct, to be kept by partnership, COO. partnership mining to be governed by provisions of Act, 597. balance sheet anl books to be open to Inspection by creditors, COO. business of to be raining, 597. claims, how to be located, 597. claims, partner entitled to vote, liow, 597. debts of, Unbiliiy of partner's inierest fur, 599. indebtedness of, liability of partner after sale re- corded, 599. liability for debts of, may be limited, how, COO. meeting, majority of votes In, to decide, what, 597. mining assessment In, to be payable wilhiu live days after being made, 597. mining can locate and record a placer diiim fur eiich partner who Is a free miner, 597. mining, to be usual partnership, unless otherwise agreed, 597. monthly balance sheet, what to show, COO. name " limited liability " to be part of, COO. not to declare dividend until liabilities paid, COO. of written effect of, on mining partnershi]), 597. renewals from year to year by tacit consent, to be represented by majority, 598. to bind foreman or manager, to keep correct list of names of partners, COO. to keep record of Interest of each partner, 600. what debts liable for, CIO. penalty for providing false statement of employees. 5S7. penalties, collection of to be made by Mining Recorder, Cll. may be recovered by distress or sale, CIS. permit license, leave of, to be recorded, GIO. placer claim, right in, not recognized without free miner's cer- tificate, 585. i i ! i I i Ml I i I [ ■'* 1111 JM)EX ii n I :i \i 13^ BRITISH COU'MnTA -Conll,i»<;l Flaoor MinliiR Act- riniliiuictl. placer claims, bIzo nml mitiirt' of, 587. bar (llKKlngH, IcukHi of, wldlli of, 588. bill of Halo, convcynnco or mortgage of to bo re- corded, 694. crcok oliilm, size of, 588. dlaputo as to lillo, priority to govern, 590. dispiitoB as to tltlo to, 592. dry (llgKliiRS to b(> 100 foot squaro, 588. each partnership to be stakod as ordinary, 597. free miner entitled to record for one or nioiv years, 591. free miner having located and recorded shall \,i'. ontltlod to hold during existence of rocoi,), 591. re-record, 591. free minor may he entitled to leave of abaend', 593. forfeiture of, to be absolute, 593. hill dlggliiKH, legal posts to be placed 100 f((>i apart, 588. holder of, not entitled to vein or lode, unless lio shall have n-corded and located ground ;is mineral claim, 592. how many may be held by mortgagee, 588. how many may be held by purchaser ^Gs. how many may be located, 588. Interest in free miner may extend for one or more years, 591. interest of free miner in, equivalent to a lease, .",92. interest of free miner in to be deemed to ])<• chattel Interest, 592. Interest of free miner in to be held as real esl.ito, 592. Interest of free miner in, to be renewed at ond thereof by re-recordIng, 592. irregularity prior to date of, within curnnt re- cord, effect of on title to, 592. laying over of, 593. limit may be extended, 588. mining Interest of free miner In, on renewal to be subject to conditions, what, 592. no claim to extend beyond post, 588. no transfer of to be enforceable unless In writing, 594. size of, 588. what may be located, 587. where may be located, 587. width of, 588. IXJtKX lUu 15K1TISII l'< >F,rMHI A— ^'<>/l^lll(.l/. Placer MIiilnR Act-CniiliiiiKd. placer cIuIiiih, one may be locntfil for each piutiier who Is n I'lvo minor, 597, one stiiko for recording, (ill. placer mining, ground, lease of, renew.ii of, (!03. Act, offence against, 1118. ground. Gold Commissioner may grant lease of, 614. leases shall be granted for, only, 606. ground adjoining, lease of, as to consolidation, 020. when ground efficiently worked, lessee may ob- tain extension of lease, 606. " Placer Mining Act (1891) Amendment Act, 1898," 620. post, legal, to be placed at each corner of ground for lease of placer mining, 604. posts, legal, to be marked, how, 589. first initial, location notice to be on, 597. mining, may be removed by Gold Commissioner, 613. removal of after recording placer claim, effect of, 590. to be at Intervals of 150 feet, 601. posting of notice of Insufficiency of water, as to, 594. of notice of application for right of way, as to, 595. of notice of sale of partner's interest, 599. power, discretionary, of Gold Commissioner to grant leave of absence, 593. 1116 INDEX BRITISH COLUMBIA— C'o/if/n iR",'. Placer Mining ^ct — VonlinncO. powers contalm i in grart of right of way, term of, 596. of attorney, to be m' orded by copying out verbatim, 010. of Gold Commi8s;oii r (See Gold Coinmissionvr), 612,011. precious stone diggings, lease of, 603. application for mining ground, area of, 605. precious stones, right to mine, what included, 605. precious metals, not included in right to mine for precious stones, except when, 605. presumption as to p'^rfect title, 592. priority of locatio'- +o go. crn In cases of dispute as to title of placer claim, 590. privilege, granted, to be recorded, 610. privileges of, sought to be acquired, to be shown in application, 595. proceeds from placer claim, free miner to be entitled exclusivoly to all realized therefrom, 592. proof may be given if wrongly, improperly or Insufflcionily staked, 592. property of claims taken up as partnership claims to be property of partnership, 597. prospect, free miner shall be entitled to what lands, 587. protest, of free miner, against right of way being granted, GOl, public auction (See Auvtwn, I'liblir), 599. public holiday, location on not to be invalid, 589. purchaser of claim where previous holder allowed, is free mimr's certificate to expire, duty of, 586. purchaser of partner's interest, what entitled to, 599. quarter, rent of right of way, per, 597. rates of toll (See Toll lititr), 596. real estate, transfer of, when to be in writing, 594. power of County Court, as to, 617. reasonable cause for not working, placer mine need not l)e worked during, 593. record, of abandonment, to be kept by Mining Recorder, (509. application for, during office hours by Mining Ri'corclci's absence, as to, 591. book to be kept by Mining Recorder, 609. form of. 609. entry of re-recorded, to be made in, 591. by Mining Recorder, when void, 610. free miner to be entitled to, in case of absence of Min- ing Recorder, 591. new, after error, to bear date of first record, 509. of affidavits, to be kept by Mining Recorder, 609. of conveyances, to be kept by Mining Recorder, 609. of water grants, to be kept by Mining Recorder, 609. INDEX jjj^ TjKlTISH C()Lr]MBTA-C<.).///iiK'(i'. iHaoer Mining Act — VoniinticiJ. record, to be made in Mining Recorder's offlco only, 590. of claim, free miner entitled to, for one or more years 591. of placer claim, necessary in record of convej'ance, 594. of conveyance, placer claim to be recorded in, 594. of set of claims, what to be shown on, 597. of notice of abandonment, 599. set of claims may be recorded in one, 597. to be kept, of grant of right of way, 39G. records, of mining property may be made by person appointed at meeting of free miners, when, 608. effpct of leave of absence on, 593. proper office for recording, 611. re-record of claim by free miner, 591. effect of leave of absence on, 593. free miner to be entitled to in case of Mining Re- corder's absence, 591. to be entered in record book, 591. what to be shown In, 591. ro-recording interest of free miner in his placer claim, to be renewal by, 592. re-recording Interest of free miner in his placer claim on re- newal to be subject to conditions as to, 592. registrars. County Court, jurisdictiim as to, 616. regulations and rules, may be made by Lieutenant-Governor in Council, 618. renewal of placer mining ground, 605. lease, Gold Commissioner may grant, 614. mining partnership, as to, 597. renewable, interest of free miner in his placer claim to be, 592. rent, to be paid by grantee, of right of way, 603. for water used for mining purposes, as to. 597. of right of way to be paid annually to Mining recorder, 597. to be $25.00 p«'r mile per quarter. 597. to commence from date of grant, 597. rents, to be collected by Mining Recorder, 611. repair, implied covenants to keep right of way in, 596. repairs, costs of. how levied. 596. representing discoverer's claim as to, 589. representation, interest of free miner in his placer claim, on renewal, to be subject to conditions as to, 592. representations on every placer claim to be by holder thereof, or some person on his behalf, 593. requirements, to be performed by Gold Commissioner, may bo performed by Mining Recorder. 612. implied covenants, that drains shall be of suffi- cient size to meet, as to, 596. I 11! 1118 IXDEX i I BRITISH COUJUBIA-Conflnued. Placer Mining Act — Couihiucd. requisites of procuring leave of absence, 593. residence, free miner may construct on claim, 592. reservation of rights of free miners, to be made in lease of min- ing ground, 606. right of entry, free miner to have exclusive upon his plaror claim, 592. of way, length of, 601. period, 601. carries exclusive right to stake and work, what, 602. carries gold or other minerals in flume, 602. free miner may apply for grant of, 595. grant of applicant for, to deposit $25, 595. covenants to be deemed to be part of, 596. exclusive for bed-rock flume, 601. to be signed by Gold Commissioner, 590. to be for not longer than 20 years, 596. what rights to be given, 596. for tunnels. Gold Commissioner may grant, 614. riparian proprietors, entitled to use natural flow of water, 009. rights to water may be acquired througli the Dominion Government as trustees, when. 609. river, lease of bed of, for dredging purposes, as to, 607. rocker, mining operations may be conducted by, 607. rules and regulations may be made by Lieutenant-Governor in Council, 618. salary liability to deduction for free miner's certificate, as to, 536. sale, memorandum of (See Memo, of .svj/r). bill of, of partner's interest, as to, 599. bills of, to be recorded by copying out verbatim, contracts for, to be recorded by copying out verbatim, of partner's interest, as to notice of, 599. to be by public auction to higiiesi bidder, 599. seal, whether instrument und(>r or not when transfers maker's entire interest, 594. security, to be given by free miner before entry upon land al- ready lawfully occupied, as to, 587. set of claims, as to leave of absence from, 593. (See f'laims). 597. record of what, to be shown on, 597. shafts connected with placer claim, as to, 592. sheriffs, County Court, Jurisdiction as to, 616. J\DEX 1119 BRITISH COLUMBIA— CoJicorder, is, 610. vote of partner or agent, how entitled, 697. votes to be determined by number of full interest, 597. in partnership meeting to decide, what, 597. majority of, may choose foreman and manager, 597. majority of, to decide, what, 597. not to be determined by number of partners' votes, 597. wages, right to collect, not to prejudice, when, 535. liability to deductio,i for free miner's certiflcato, as to 586. water, right of, to be provided for in lease of mining ground, 606. beneficial use of, person not to bo deprived of, 609. fouling of, 609. grants, record of, to be kept by Mining Recorder, GOD. insufficiency of supply of, to entitle claim to be laid over.. 694. legislation as to, 597, 609. public rights of, 618. right, bed-rock flume, 585. notice of insufficiency of, to be posted, how, 594. right, free miner may obtain grant to, how, 597. unappropriated grant to make right, free miner may obtain, how, 597. used by free minor, rent of, 597. way, rights of, to be provided for in lease of mining ground, 606. public rights of, mining rights to be deemed to be subject to. 618. wing-dams, reservation in lease of river for running tailings Into, 607. not to be constructed within 1,000 feet of any dredger w'.ille working, 607. reservation of, free miner to construct, 607. witnesses, subscribing, attest by, of transfer necessary, 594. words, in British Columbia, meaning of, 581. bar diggings, 582. bench diggings, 582. 71— M 1122 INDEX il .J BRITISH COLUMBIA— 6'..>i^/H(«;. Placer MiniuB Act — Conllnucd. words, In British Columbia, creek diggings, 582. cloBo season, 683. cost, 583. decree, 583. diggings, 581. ditch, 582. ditch head, 582. dry diggings, 582. free miner, 582. full interest, 583. hill diggings, 582. joint stock company, 583. judgment, 583. legal post, 582. mine, 581. mining property, 581. placer, 581. placer claim, 581. precious stones diggings, 582. real estate, 583. record, 583. register, 583. registration, 583. words, operative (See Operative 1l'or(/.v), 694. work, on placer mining ground, 603. on mining claim, after lease consolidated, 620. done, payment for, right to not prejudiced, when, 585. on placer claim to be continuous, 693. bona flde. 593. how much to be done to entitle locator of placer clnini to have claim laid over, 594. on hydraulic or placer claims, if water required to, claims to be laid over. 594. notice of insufficiency of water to be posted within llireo days from cessation, 594. works, mining, may be ordered to be carried on by Gold Com- missioner, 613. working, employee to have free miner's license, 586. of discoverer's claim, as to, 589. free miner may have right of entry upon other than his own for the purpose of working his, whrn and how, 592. Interest of free miner in his placer claim on re- newal, to be subject to conditions, as to, 592. when failure to work, abandonment and forfeitnio, il93. days, what are, 593. order Implied, covenants to keep drain in, 596. INDEX 1123 BRITISH COLUMBIA— Co>.(()u(e(7. Placer Mining Act — Continued. ■worklDg, when, how long nnd in what to be decided by majority of votes In partnership meeting, 597. labor partner in partnership may represent his Interest in, by, 597. continuous. Implied covenant as to. In lease of mining ground, 606. what may be dispensed with, 614. writing, necessary to transfer placer claim, 594. authorize agent to transfer, 594. holders of adjacent claims may request construction of tap-drain by, 596. to be necessary for application for bed-rock flume, 601. words " Initial post," to be written on Initial stake, 597. year, leave of absence may be granted to free miner for one, 593. to year, mining partnership to be deemed to be renewable from, 597. Placer Mining Claim, sale of, under execution, 877. Power of attorney, 153. Registration In, 201. Royalty on coal, reservation of, 883. Section 109 of British North America Act, applicable to, 25. Smelting works. Act to encourage erection of, 874. Title to public lands, 24. What lands, mines, minerals and royalties belong to, 12. BBTTISH NORTH AMERICA ACT, construction of, 13. how far applicable to Provinces not therein named, 10. provisions of, 792, 795. BRITISH STATUTES, what in force, 5. BRITISH SUBJECT, (See ALIENS). BRITISH TERRITORIES, (See CANADA). BUILDING, (See SUPPORT). setting fire to, is arson, 263. when damage to, is an offence, 264. CANADA (See ALIENS; DOMINION; GREAT SEAL; NAVIGATION), area of, 2. boundaries of, 1, 802. British territories annexed, 1. creation of, by B. N. A. Act, 1. Federal Union, 1. laws in force at Union, continued, 2. Newfoundland and its dependencies excepted, 1. North-West Territories acquired, 1. II; 1124 INDEX CANADA, original provinces, 1. Parliament of, 261, 792. Prince Edward Island admitted, 1. provision for new provinces, 1. Rupert's Land acquired, 1. what public property belongs to, 12. CANAL (See SUPPORT; WATER). CANNEL COAL, person liable who conceals, 262. CARIBOU (BRITISH COLUMBIA). CASSIAR (BRITISH COLUMBIA). CAUTION (See LAND TITLES ACT). cessation of, 198. CAVEAT EMPTOR (See CONTRACT), 88, 94. CENTRE OF EARTH (See OWNER), 155. CERTIFICATE OF IMPROVEMEN TS (See STATUTE LAW). CERTIFICATE OF FREE MINER (See STATUTE LAW). CESTUI QUE TRUST (See TRUST). CHAIN, when damaging or unfastening, Is nn offence, 264. CHINA CLAY, a mineral, 37. CHINESE, British Columbia, In, 148. (See B. C. Coal M. Reg. let.) CHONKOTSKI, Cape of, 797. CIVIL CODE, of Lower Canada, 4. CIVIL LAW, applicable, how far, «. navigable waters In Ontario, 6. Nova Scotia, 6. Quebec, 6. rule of, 6. usufruct, 137. water, as to (See WATER), 6, 221. CIVIL LIST, 7. CIVIL RIGHTS (See PROPERTY), 3, 794. property and. Province has legislative jurisdiction as to 794. CLAY, a mineral, 36, 37, 38. China, a mineral, 37. common, 38. COAL (See MINERALS; DOMINION; STATUTE LAW). British Columbia, in (See B. C. Coal Mines Act). British Columbia, in (S(»e B. C. Miiirral Art). domestic purposes (See DOMINION Coal Prrmit.t). New Brunswick, in (See N. B. Gcncrnl Mining Act). Nova Scotlii, in (See N. S. Mines anil Minerals Act). on Indian lands (See DOMINION Reg. as to Coal on Indian LiiikU). person liable who conceals "'"' reservation of royalty on, ii. . c, 633. CO-ADVENTURER, theft from, 262. CODE, Napoleon, model of Civil Code, L. C, 4. COLONIAL LAWS, validity of, 10. COLONIES, take English common and statute law, 8. COMBUSTIBLE SUBSTANCE, setting fire to. Is arson, 263. INDEX 1125 COMMON EMPLOYMENT, (Sec BRITISH COLUMBIA, Employees ; ON- TARIO). COMMON LAW, as to navigable rivers, not applicable in Canada, 6. of England, 6. COMPANY (See DOMINION Yukon I'Invrr M. Key.). British Columbia, in (See B. C. Mineral Act). Dominion, In (See DOM. Qitart;: M. Rvij.). New Brunswick, In (See N. B. (lenentl M. Act). Ontario, lu (See ONT. Mines Act). COMPANIES (See CONTRACTS; CORPORATIONS; STATUTE LAW). B. C, extraordinary powers of, lu, 879. incorporation of, having provincial objects. Province has legislative jurisdiction, aa to, 794. other than provincial objects. Do- minion has jurisdiction, as to, 794. jurisdiction, as to, 794. regulation of mining, in Ontario, 850. trading (See CONTRACTS). COMPENSATION (See RAILWAY, WORKING). CONCEAL, ore, to, an indictable offence, 2G2. CONCEALING, gold and silver, as to, 262. CONDITION, repugnant, 177. special, 166. CONDITIONS (See CONTRACTS; CROWN). CONSENT (See CONTRACTS). CONSTITUTIONAL ACT, provisions of, 4. CONSTRUCTION (See CONTRACTS). contra proferentem (See DEED), 69, 110. Crown, grants of, 176. deed, of, rules for, 69. vjiisdeni yenvris, 169. reservation, of, 166. CONSTRUCTIVE POSSESSION (See POSSESSION). CONTRACTS, abatement, of purchase money, 79. acceptance, letter, by, when complete, 49, 50. post, by, when may be used, 49. oral, may be, 43. unconditional, must be, 43. agent, who may be, 57, 58. agreement, for a lease, 74. amalgamating process, property of metals in, 65. bonds, working, how construed, 44. definition of, 44. minerals, property in, won during, 45. writing, must be in, 44. caveat emptor, when doctrine applies, 88, 94. clauses, mining, customary, what are, 75. QUE. Mining Law). repugnant condition, 159. reservation In, 159. right to resume part of land, 159. transfer before patent, 159. what minerals pass by, 159. CROWN GRANTS, 28, 159. (See STATUTE LAW.) British Columbia, in (See BRITISH COLUMBIA), construction of, 176. effect of Union Act, 7. lefeul estate, in Crown, 8. not transferred to Province, 7. vested in Sovereign, 7. CURTESY, tenant by. 180. CUSTOM OF PARIS. 3. DAMAGE, to any shaft or passage of mine, when an offence, 264. DAMAGES (See WRONGFUL ABSTRACTION ; CRIMINAL LAW ; OB'FENCES; RAILWAY; SUPPORT; WATER; LEASE; see also Particular Titles). DANGER to life, criminal responsibility for neglect of duty as to, 2(il. offence relating to, 261. undertaking acts which may be, liability as to, 261. DEAD RENT (See LEASE). DEATH (See WRONGFUL ABSTRACTION; ADMINISTRATION'; DOWER), parties to action, of, 259. DECISION of Justice, subject to appeal, as to, 264. DEDUCTIONS, 483 (See STATUTE LAW). DEED (See LICENSE. RESERVATION). Act, under, 158. construction of, 69, 168. construction of n'servatii)n of mines and minerals in, 34, 36. construed most strongly, contra proferentem, 69, 110. containing reservation, execution by grantee. 105. grantee, execution by, 165. necessary to create easement, 107. unregistered, effect of, 201. INDEX 1181 DEFECT, patent (See CONTRACTS). DELAY (See WORKING), 141. DEMARCATION POINT, situation of, 804. DENISON (ONTARIO). DEPOSITS, alluvial, 160. DEROGATE (See GRANT). from grant, 69, 176. DESCRIPTION, 160. falsa demon Stat io, 160. general, 160. specific, 160. DESCENT, 158. DESTRUCTION, act of, will be restrained, 258. wrongful abstraction of minerals, is, 258- DEVISE, 158. DEVOLUTION, 158. DIP (See WORKINGS). mine, on, 136. DISCOVERY (See CONTRACTS, INSPECTION). DISTRESS (See LEASE). DITCH (See DOMINION Quartz M. Raj.). DITCHES (See DOMINION Indian Lands Mining Rcj.). DIAMOND DRILL, regulations relating to control and working of, 842. DOCTRINE, of Dixon v. Snetsinger, 6. DOCUMENTS, how interpi^ ■. 115. DOMINION. Arrangement of Title Heads jf index to Chapter XIX. on " Mines in lands belonging th, or administered by, tlie Dominion of Canada, including Indian lands " (See Chap. XIX., p. 691). Coal, on Dominion lands, regulations for the issue ot permits to mine (See this title at p. 1132). Coal, on lands in Manitoba and the North-West Territories (See this title at p. 1132). Coal lands, within Indian Reserves (See this title at p. 1132). Drainage, under, (See this title at p. 1138). Dredging leases in Manitoba and North-West 'I'erritories (See this title at p. 1133). Dredging leases in Yukon, (See title, Yiikan I'luirr I)rv per cent, on output, 756. returns, sworn, to be furnished monthly, 756. royalty, 2Vl> per cent, on output, 756. monthly, to be paid, 757. submerged beds of rivers in Manitoba and N. W. T., 756. Yukon River Regulations not to apply to amendments of regu- lations, 757 (See VhA-o;i ilrnhjiiiij leases, remiJoliuns as to), 753. Indian Lands Consolidated Mining Regulations, application of, 760. discovery, condition, precedent to grant of location, 761. disputes, hearing of, decision of, 777. explore vacant Indian lands, any person may with license of Superintendent General, 761. forfeiture, regulations, breach of, for, 780. Indian Act, mining regulations, 760. regulations under, 760. lands surrendered may bo explored, 761. local agent, appeal from, 777. license to search, 761. ' 1134 INDEX DOMINION— Co>i(iHi/«^ Indian Lands Conaolldated Mining Regulations — Continued. mineral lands, other than coal lands, to govern, 760. procedure before, 777. mining claim, forfeiture of, for broach of regulations, breach of, 780. minister, definition of, 775. safety, public, of, not to be in danger, 779. time of appeal, 777. Superintendent General of Indian affairs, license to search, may grant, 761. Ditches, under, 772. absence, leave of, may be granted, 777. iigont, instructions t^) act under, 780. local, of, disputes, power to hear and determine, 777. definition of, 775. alteration of, may be ordered, 773. appeal, time for, 777. writing to be in, 777. application, deposit to iicconipany, 773. grant, for, 773. notice of, 773. enlargement, may bo ordered, 773. compensation for damage, 775. constniction of, 775. owner of wasting water, 773. grant, ditch of, 773. interpretation clauses, 775. water, diversion and use, grant of, right to, 772. grant of rights under, 773. privilege, owner of, to utilize, 773. measuring in ditch, 773. words, bar-diggings, definition of, 775. bench diggings, definition of, 775. claim, definition of, 775. claimant, definition of, 777. close 8«vi8on, definition of, 775. complaint, amended, may be, 777. ditch, definition of, 755. ditch-head, definition of, 775. dry diggings, definition of, 775. location, definition of, 777. miner, definition of, 775. mineral, definition of, 775. placer mining, definition of, 777. quartz mining, definition of, 777. royalty, payment of, 779. returns to be made, 779. streams and ravines, definition of, 775. INDEX 1135 DOMINION— CVnnfr(/. Drainage, under — ('(lulimnd. duties of free miners, 741. entry of holder of grant for placer mining to bo renewed nnniially, 741. fee for entry ()f grant to plac(>r mining, as to, 741. form of grant for placer mining, 741. (Seo Apiwndi.v II.) application for grant for placer mining, 741. (Sc,. Appniili.r If.) fret* miners, rights and duties of, 741. grant for placer mining, form of, 741. (See AppriHllv II.) hill diggings, size of claim, where new mine, 741, interpretJition clauses, 748, 749. leavings, space of ground to be laid out for, 752. location, additional, may be granted to adjacent holder, 7."2. locations, mineral and mining, may be laid out, 751 may be sold by public auction of tender, 752. price for, 752. miners, rights and duties of, 74i. Mining Claim, abandoned, when claim shall be deemed to be, 742. abandonment, provisions as to, not to apply during last illness or decease of miner, 742. ndministralion, of miner's estate, as to, 742-3. agreement to work claims in common to be registered, 741. appeal (See l^iiiwrhitrndciit of Mines), from, 749. claim tunnel, to which belong. shafts, to which belong, 742. death, free miner, of, 742. deceased miner, as to possession of mining property, of, 7t3. as to working of mining property, of sale of property of, 743. dispose of, miners may, claims, when and how, 741. drain, miner entitled to, free of charge, 742. drainage, mines, of, 744. entry, miner to have exclusive right of, upon his own claim, 742. fe.T for registration of agreement to work claims in common, 741. fee for registration of grant or mortgage of claim, as to, 711. for n of certificate of registration of claim, as to, 741. miner not to receive a grant of more than one In same locality, 741. deceased, as to disposition of proceeds of property, 71."). property, how to be taken chai'ge of, 743. issue of lease of administration, 743. mines, drainage of, 744. mortgage, miners may claim, when and how, 741. 7 INDEX 1141 DOMI'SlO'S—Confhim-d. Mining Regnlationa — Vontlnucd. Mining Claim— Vantliiucd. proceeds reiilized from claim, miner to be PwiiUcd exclusively to, all, 742. registration, agreement to work '■lalms In common, as to, 741. of ngreement lo work claim In common, fee tor, 741. of Slant or mortgage of claim, 741. rights, free miners, of, 741. sale or properly of deceased miner to bo by public auction, 743. soil, miners may claim, when and how, 741. shafts, abandoned, nil deemed to be when claim abandoned, 742. surface rights in claim, miner to have none, 742. time, working, when claim may bo abandoned or not, 742. notice, length of, In case of sale of property of deceased miner, 742. tunnelling under hills must nut Interfere with tunnel from main frontage, 742. tunnels, which claim, belong to, 742. water, miner to be entitled to use of, flowing through or past claims, 742. work, back claims on benches or slopes, 742. working claims in common, miners may unite, 741. agreement to be registered, 741. fee to be paid for registration of agreement, 741. holder of adjacent claims may have right of entry, for purposes of, 712. discontinuance of, for 72 hours, constitutes abandon- ment, 742. sickness. In case of, 742. leave of absence, when granted, to be continuously, and In good faith, 742. Minister of the Interior, to administer properly of deceased free miner, new mine, what deemed to be, 741. bar-diggings discovered In vicinity of dry-dlgglngs, when deemed to be, 741. vicinity of bar-diggings, when deemed new mine, in, 741. notice, one month's to be given by bed-rock flume company, apply for grant, 743. penalty, breach of regulations, for, 753. placer mining, entries, as to, 740. agents' receipts, as to, 740. application for grant of, form of, 741. assignments, as to, 740. claims, nature and size of, 740. fees, as to, 740. marking out locations, as to, 740. size of claims, 740. 1142 iM)i:x DOMINION— C../1/ //I »«■(/. MlnlnK Regnlatlons— C'ln/Zxrifd. ; OBt to be fixed to, how, 743. post, notice of b<'(l-rock Hunie company to be fixed to, how, 713 proleat against iipplication for bed-rock ilunie company for grant, 743. quartz mining claims, BiiporB<f, not necessary to do work, 707. holder of, ontillod to Crown grant, requirenunts for, 704. HuU , 707. disputed, lis to part, 708. mineral claim, 705. plan of mill site, 710. claim, how laid out, 699. owners, rights of, under former regulations protected, 700. held as real estate, 704. company (See Julut stack Cinntiinii/), G45. co-owner (Soo (JiTHfinilf), (i'.Hi. compliance with requirements, 700. complainant, to dispute, bond, 712. Court may direct inquiries, 715. Crown grant, form of, 707. issuance of, not to invalidate lien, 707. of mill site, 710. what passes by, 711. payment for, 707. registration, 709. what passes by, 707. what passes by, where surfac(> rights disposed of, 708. when holder of mineral claim entitled to, 704. where surface rights disp()sed of, 708. damage by owner of one claim to another, 714. security for, 712. danger (See Siifrtii), 712. death of holder of mineral claim, 709. decision of mining recorder, appeal from, 715. discovery by free miner, 698. certificate of improvements, survey, 704. disputes, hearing and degision of, 712. Dominion land surveyors may take up post, 700. documents executed after Crown grant to be registered, 709. to be forwarded mining recorder, 706. dwelling houses, curtilage of, 697. form of aplicatlon for mineral claim, 700. (See Appendix II.) fraud, suit by A.-G. of Canada, based upon, 703. free miner, definition of, 694. discovery by, 698. joint stock company, may be, 694. right to prospect, 697. 1144 INDEX DOUmiO'S— Continued. Quartz Mining Regulations — Continued. free miner not entitled to record until particulars furnished, 702. may hold only one claim on same vein, 703. may abandon mineral claim, 703. not to suffer from omission, etc., of officials, 710. right to hold mineral claim, 702. right to remove machinery, 703. miner's certificate, how obtained, 695. miners' recorder, appointment of, 701. free miner certificate, form of, 695. (See Appendix II.) granted for one year, 695. certificates, where obtained, 696. when entitled to grant miner's certificate, 696. miner certificate, cancellation of, 715. miner's certificate necessary for title to mineral claim, 696. hearing and decision of disputes, 712. holder, mineral claim of rights of, 700. not entitled to mine outside boundary lines continued vertically downwards, 700. illness, last, of holder of mineral claim, 709. impeachment (See Certificate of Improvements), 706. "in place," (See A'wA), 693. Indian reserves, not to be prospected, 697. injury to holder of claim, 714. Interpretation clauses, 691. interest (See Minerul Claim), 709. of free miner in claim a chattel interest, 704. iron, regulation for mining, 700. joint stc?k company (See Free Miner), 693. charter of, G95. free miner's certificate to, 695. shareholders in, need not have certlficato, 697. judgment, certified copy of, 706. includes order or decree, 694. Land Titles Act, application of, to mineral claims, 709. legal post, definition of, 694. defacing or removing, 715. how placed, 698. may not be removed, 699. removal of, 699. license to run drain or tunnel, 711. lien not to be invalidated by Crown grant, 707. litig.ition pending, not affected, 715. locating mill site, 710. h cation line, 699. area of, 700. Jl^^DEX 1145 DOMINION— 0«()7 In md. Qnartz Mining Regulations — Continued. location, forfeiture of, 700. for mining, 700. made on Sunday, 700. priority of, 703. requirements as to, 701. lode, definition of, 693. machinery, right of free minor to remove, 703. mica, regulation for mining, 700. mill sites, definition of, 694. application for Crown grant, 711. crown grant of, 711. crown grant of, what passes by, 711. erection of machinery, 711. location of, 710. requirements for, 710. whore valuable water power, 710. mine, definition of, 693. mineral, definition of, 693. claim, definition of, 694. abandonment of, 703. application for, 700. boundaries of, 698, 700. certificate necessary to title, 696. change of name, 714. conveyance, etc., 709. death of holder, 709. disputed title to, 703. holder of, entitled to surface rights, 702. how marked, 698. location, 701. mineral claim, holder of, when entitled to Crown grant, 704. notice of, 705 on land undrr timber lease, 708. payment in lieu of work, 702. purchased, n-om miner of, 097. record of, 701. right to, 700. right of free miner to hold, 702. work on, 702. sale of, after certificate of improvement, 707. transfer of, to be in writing, 709. mineral claims (See Trmisfvr), 709. minerals, except coal, pass by Crown grant, 707. mining location, roviilty to be reserved in patent fc , 708. property, definition of, 694. recorder, 693. r J I 1 (' 114G INDEX DOMINION— C())(//)n(.'(/. Quartz Mining Regulations— ConHiiMCd. mining recorder of district, 702. recorder, permission to malte re-location, 712. appeal from decision of, to Minister of Inter- ior. 712. appeal from, 712. may employ Dominion land surveyor, 713. may grant license to run drain or tunnel, 711. may investigate on ground boundaries dis- puted, 713. may mark space for deposit of leavings and deads, 712. may permit re-location, 712. power to act summarily, 712. proc(>dure before, 712. right to enter on mine, 714. to determine disputes, 712. rights not to be prej' iliced, 714. Minister of the Interior, 693. appeal to, 712. misrepresentation, by free miner, 715. notice, of abandonment, 703. for ajiplication for certificate of improvements, 70.5, of location, 099. of mineral claim, 705. not to be defaced, 699. ofHcial, omission of, not to prejudice free miner, 710. particulars of legal post, 09S. post (See Lrr/iit Post), 694. priority of locathm, 703. prospect, right of free miner to, 697. purchaser of mineral claim to comply with regulations, 701. record, mining claim of, 094. failure to, 709. of companies, etc., 709. of conveyance, etc., of mineral claim, 709. where destroyed, 715. where made, 702. Recorder's office, where none, 701. registration, mining claim, of, 694. regulations. Dominion land surveyors, 700. re-location. Mining Recorder may permit, 712. removal, legal post, 699. requirements of certitlcate of improvements, 704. rights (See /•'/•(•(■ }fhiir ; Crrli/irulr]. forfeited on explniticm of certlflcate, 696. under certlflcate, 697. rock in place, definition of, 693. royalty, how collected, 708. INDEX 1147 DOMINION— C<»)i//Hi(t'(^ Quartz Mining Reenlations — Continual. safety, Mining Rt'cordor may prevent clanger to abandoned works, 712. security for damage, 712. strenms, definition of. 094. substituted certificate. 696. surface rights, holdi-r of mineral claim ontitled to, 702. pass by Crown grant, 707, 708. time, action, for commencement of, 706. appeal from Mining Recorder, for, 713. for recording mineral claim, 701. timber lease, mining location, particulars of, 708. trees, to be blazed, 699. tunnels, and drains. 711. vein, definition of. 693. water rights, North-West Irrigation Act, 712. work, after certificate of improvements, 707. Railway Belt. regulations for the survey, administration, disposal and man- agement of Dominion lands within the 40-mile, in the Pro- vince of B. C. 758. agricultural lands, included in lands open for homestead entry, 759. coal, in surveyed or unsurveyed territory, huw disposed of, 758. forms under, 758. (See .!/ /A.) annual fee for claim, 722. application, for free miner's certificates, 717. grant, for placer mining, 722. placer mining, for form of, 722 (See Aniirndi.v II.). assignee, mining claim of, to receive certlflciites, 72fi. bed-rock fiume grant, free miner's certificate necessary for, 718, boundaries, claims of, to be measured horizontally, 721. certificates (See Fm- Minn's), 716. necessary to interest in placer claim, 718. certificate, assignee of mining claim, to be given, 726. chute, defined, 718. claim (See Hill (tiid liirn), 720. (See Cnrk, (liildi), 719. abandonment of, 727. forfeiture of, on removal of post, 726. INDEX 1153 DOMINION— Cont'd ia'<^ Ynkon Placer Mining — riivliniint. claim, c'uti;r(Hl how, 7'22. not to be, unless staked, 722. entry, fee for, 722. recorded, to be, within ten days, 722. staking, affidavit of, 722. cancelled, for default in payment of royalty, 720. boundaries of, to be nK-asurcd horizoutally, 721. free miner may sell, etc., 720. removal of post acta as forfeiture, 720. reserved for Crown, penalty for trespass upon, 721. Government, to be disposed of by Minister of Interior, 721. close season, defined, 710. company (See -hiiiit Sturly- iUiiiiiuniii), 710. compensation, owner of lands, to make, for entry, 719. damages for, how deterniinod, 719. co-owuor, failure to keep up oertiliuate, 71H. interest of, on abandonment, 718. creek claims, boundaries of, how measured, 719. defined, 719. showing how claim slaked, 725. diagram of, 724. direction of boundaries, 719. plan, sectional, of, 724. size of, 719. Crown, defraud, attempt to, punished by cancellation of claim, 726. damage, free miner to give security for, 719. damages, compensation for, how determined, 719. definitions, free miner, etc., of, 710. diagram, creek claims, sectional plan of, 7"it. gulch claims, sectional, plan of, 724. river claims, sectional, plan of, 725. entry, free miner to have exclusive right of, 727. holder of creek, gulch or river, claim, may obtain, 720. placer claim, of, holder of, must be n-newed by, 720. exclusive right, free miner to have, of entry, 727. expiration, free miner's certificate of, effect of, 718. evidence (See I'nc M'uki'x ('irti/ictilc), 718. free renewal of, entry for, 726. flume, defined, 718. forms (See Aitiniuli.r If., tit. Yiih-'tit I'Utirr Ifiiiiihitidiis). free miner, discovery by, 722. entry, excluslv<' right of, to have. 727. hill claim, may hold, in addition to other claims, 726. mining claim, may hold, in addition to other claims, 726. 73— M I n #!' y.i- 1151 INDEX DOMINION— Cm! hi wtl. Yukon Placer Mining — ('(inliinicd. freo tuiuer iuiuiii<{ claim, iu iuiuinf{ ilistiict, ouly entitled to one, 726. privileges of, 716. rlghlB of, 716. rights (luring continuance of certificate to outer on lands, 719. soil, otc, thoir claims, may, 726. security, to give, before entry on lands, lawfully occuplod, 719. shareholder In joint stock company, need not he, 718. water, right to use, 727. free miner's certificate, transferable, not, 716. dostnictlon of, 718. offoct of expiration of, 718. evidence of all mutters thoroln ron- talned to bo, 718. fees for, 716. form of, 717. (See Apitoidi.r IT.) granted, for one year, 716. Joint stock company, may be Issued to, 716. necessary, to right or Interest In mining property, 718. obtained, whore, 717. right to work claim, is property, 719. rights, granted by, 717. substituted certiflcalo, 718. under, lap.'^e on expiration of, 718. free minor's recorder, act, as mining recorder to, 722. appointod, how, 722. default of, 722. duties of, 722. fraud, royalty in, statements as to, 726. Gold Commissioner, decision of, 1o bo final. 726. Mining Recorder to render statement to, 722. royalty, for collecting, rcgulatiim?, to make, 722. Government of Canada, every altornat^ ten claims reserved for, 721. grant, placer mining,. for form of, 722. (See Appmdi.r II.) gulch claim, boundaries of, how measured, 719. diiigram of, 724. direction of boundaries, 719. sectional plan of, 724. size of. 719. hill claim, boundaries of, 720, 721. defined, 720. length of, 720. INDIJX 165 DOMINION- r../i//.M«'r^ Yukon Placer MininK— *'<'» I i mini. Indian rcHcrvcH, prosppctcd, not to \u\ 719. IntPrprctation, froo minor, di-flnod, 715. Joint Block company, doflncd, 71(1. fro(< minor, may bo, 715, Bharch.ilder In, nood not bo froo miner 718. legal post, doflnod, 7Ifi. mine, new, what 1b, 722. mlnornl, defined, 710. minors (See I'irv Minns), 71C. work claim In oomnion, may imlto to, 72fi. mining ditch, froo minor's cortlllouto nocessary, 718. leaRC, froo miner's certificate necessary, 718. Recorder, absence from office, 722. defined, 71C. Gold OomtnisHioiier. to render Htatemeiit to. 72(). obtaining entry afler staking out claim, as to, 72n. "parallel." construed In |)opiilar senso, 721. placer claims, alternate, every ten reserved for Government, 721. marked by legal post, to be, 721. ro(^tn,iiyiilii,r in turiii, to bo, I'll. how marked, 721. size of, 721. placer mining, application for grant, for, 722. post (See /-(•(/((/ I'ost), 71t;. removal of, acts its forfoitiire, 720. property, right of, froo miner to work cliiim is, 71D. prospect, free miner has right to, 710. provisions, where no rognlations, 727. recorder (See Miiihifi Hirnnhv), 710. regulations, provisions In, where no, 727. renewal, entry for placer mining of, 720. reservations, town sites, for, not to be prospected, 719. rights, free miner's, of, 719. rim-rock, boundaries of creek or guUh claims to be traced along, 720. river, definition of, 720. river claim, boundaries of general direction of, 720. exceed 250 feet, not to, 720. measured, how, 720. plan of, 725. river to be only on one side of, 720. eeclional plan of, 725. royalty, collected, how, 722. default in payment of, 726. ton per cent., 722. season (See CUixr Snisoii), 710. sell, free minor, may, 726. statement. Mining Recorder, to be rendered by, to Gold Com- missioner, 722. %, vr< ^ IMAGE EVALUATION TEST TARGET (MT-3) t ^ ^/ /. .^ V m 1.0 I.I 1.25 i^ 12.8 110 ^ 1^ |2.2 :!f y£ 12.0 1.4 IHII^^ 1.6 Photographic Sciences Corporation ^^ ^^ \ r9. mining claims in Nova Scotia, 52. New Brunswick, in (See N. B. (lenrral Minimj Ad). Nova Scotia, in (Se^; N. S. Mines and Minerals Ad), 52. Ontario, in (See ONTARIO Mines Act). partnership, 59. '\W INDEX 1159 FRAUDS, Statute of, part performance, 58. profit a prendre, 104. text of, 524. trusts, 53, 63, 64. vendor's lien, 188. FREE GRANT (See CONTRACTS tit. f. g. ONTARIO), 270. Ontario, in (See ONT. Mincn Act). FREE MINER, British Columbia, In (See B. C. I'hicrr Mining Act). DOMINION, in (See DOMINION Qnurtz M. Ihy.; Yukon riucer M. Uvij.) FREE MINER (See DOMINION Yiihm I'tuwr .1/. Reg.); DOMINION Quarts M. Reg.). FREE MINER'S CERTIFICATE, British Columbia, in (See B. C. Mincrctl Act; Placer Mining Act; DOMINION Quartz M. Reg.). FREE MINER'S RECORDER (See DOMINION Quartz M. Reg.); DOMIN- ION Yukon Placer M. Reg.). FREESTONE, as to being a mineral, 37. FRENCH Canadian Law. 4. Law. 3. as to water (See WATER), 221. re-introduced, 3. FUEL, setting fire to mineral or vegtable, is arson, 263. GAS (See WORKING), abstraction of, 225. American decisions, collected, 225. natural, a mineral, 37, 137. within meaning of section 657. Municipal Act, Ontario, 37, 243. property in, 137. GAS WELLS, Ontario, in (See ONT. .l/i/ics Act). GENERAL RULES (See BRITISH COLUMBIA; NOVA SCOTIA). GOD. act of, what is, 220. GOLD (See PRECIOUS METALS; STATUTE LAW.) and silver, concealing, 262. belonging to Crown, whether larceny can be committed of, 262. British Columbia, in (See B. C. Mineral Act). New Brunsw ck, in (See N. B. lUneral Mining Act). not a metal where others named, when, 40. Ontario, in (See ONTARIO Mine>t Act). ore, description of, in information, 262. piece of, person liable who conceals, 262. smelted, may not be purchased by persons not owners or agents of mining claims, when, 263. GOLD AND SILVER, Statute against multiplying, 797. GOODS (See FRAUDS, STATUTE OF). GRAND FORKS (BRITISH COLUMBIA). GRANITE, a mineral, 37. IIGO INDEX ill V,' Jj'i GRANT (See PRECIOUS METALS, RIGHTS, SUPPORT). agreement to derogate from, 158. construction of, 167. construed against grantor, 176. corporeal tenements. Ho In, 155. derogation from, 158. grantor can not derogate from, 233. implied, different from implied reservation, 173. license coupled with, 105. land on navigable water, 163. land of, excepting minerals, 167. prima facie, carries minerals, 155. support, right of, 209. stipulation as to derogation from, 158. worlt mines, right to, 156. GRANTEE, should execute deed containing reservation, 164. GRAVEL, a mineral, 35. GRAVITATION (See WATER, WORKING). GREAT SEAL, 24. under what, rights of Crown pass, 33. GRUB-STAKE (See CONTRACTS, tit. g. s), 48. GULCH CLAIM (See DOMINION Placer M. Reg.). GUNPOWDER, storage, etc. (B. C), 877. HARBORS. 27. HASTINGS' (ONTARIO). HAZARDOUS (See DELAY, SPECULATIVE). HEREDITAMENT, includes mine, 41. corporeal (See CONTRACTS, tit. /*.). lie in grant, 155. incorporeal, 156, 254. right to work mines is, 156. Incorporeal, deed necessary to create, 107. HOMESTEADS (Sec ONTARIO), 27. HUDSON BAY COMPANY, 10. HERSCHEL ISLAND, 805. HIGHWAYS (ON.ARIO). by-law, for sale or lease, as to, 243. to be posted up, how, 243. for one month, when, 243. conveyance, of minerals, under highways, to contain what proviso, 243. council, county, powers of, in regulation of roads, 242. township, powers of, in regulation of roads, 242. gas, natural, held to be a mineral, 243. lease, of minerals, under highway, to contain what pro- viso, 243. minerals, includes natural gas, 243. mines, under road, townships or counties, have jurisdiction to lease. 242. ' INDEX 1101 HIGHWAYS, natural gns, held to be a mineral, 243. notice, to be posted up for ono month previous, 243. of sale or lease, as to, 243. proviso, to bo contained in conveyance as to protection of travelling public, 243. road, over minerals to be protected for public travelling, 243. sell or lease, how to be made, 243. travelling public, not to be interfered with, 243. HILL CLAIM (See DOMINION Yukon I'hicvr .¥. licy.). HYDRAULIC, mining, 209. British Columbia, in (See BRITISH COLUMBIA rhicrr M. Act). IGNALOOK, Island of, 797. IMMOVABLE (See QUEBEC). IMPEKIAL STATUTES (See TABLE of STATUTES). decisions collected, 8. wliat ill forc(! in Canada, 5, H. IMPRISONMENT, for life, person guilty of arson, is liable to, 263. liability to, for offence relating to danger to life, 261. person liable to, who conceals ore of any m,etal, 262. IMPROVEMENTS (See FIXTURES; MORTGAGES). INCIDENTAL RIGHTS, 1(51, KiT. rights in reservation of minerals, 170. INCOME (See TAXATION). INCORPOREAL (See HEREDITAMENT). INCUMBRANCE (See MORTGAGE). INDIAN, effect of surrrty, 136. setting Are to, is arson, 263. slate concern, when held to be, 38. soil, containing the minerals, constitutes a, 36. sub-soil, containing the minerals may be meant, 3". surface, not Included in, a, 34. when damage to any shaft or passage in, is an offence, 264. MINER'S LICENSE, Ontario, in (See ONT. Mineti Act). MINERAL (See STATUTE LAW). Act of Parliament, construction of, in, 34. ' boat, embedded, not, a, 38. brick, a, 36. china-clay, a, 37. British Columbia, In (See B. C. Inni>ritioii of Met. M. Act). CLAIM, British Columbia, in (See B. C. I'liirer Mining Act; DOMINION Quartz M. licij.). clay, a, 36. as to, 37. china, a, 37. common, not; when, 36. : fire, a, 35. construction of, in legal documenis, or Act of Parliament, 34. coprolltes beneath the surface, a, 37. context may determine meaning of, 34. definition of, 34, ct scq. earth, a, 36. flint, a. 37. fuel, setting fire to, is arson, 263. freestone, as to being, a, 37. gas, natural, within meaning of Municipal Act, a, 37. granite, a, 37. gravel a, 35. r^ 1174 INDEX MINERAL— Cf>H//wMf(7. next V. Gill, rule i, 34-5. construction, rule of, 35. Ironstone, a, 35. language of Instrument may restrict meaning of, 34. legal document, construction of, In, 34. limestone, a, within meaning of Railway Clauses Act, 36. limestone, a, 35. marble, a, 35. * meaning of, 34, ct scq. metal, less extensive in meaning than, 40. method by which Wi ought. Immaterial, 35. mines, and, construction of, 34. mines may not have as wide a meaning, as, 34. nivtuml giis, under Municipal Act, a, .'^7, 2-i'A. nature of case, may determine meaning of, 34. New Brunswick, in (See N. B. (Iiitcial Min'uuj Act). Nova Scotia, in (See N. S. Minva and Mincnils Act). Ontario, in (See ONT. Mines Act). ore, meaning of, 40. person linble, wlio conceals, 262. prima facie, sense of, extensive, everything got from beneath surface for profit or possessing commercial value, 34, 35. explained, 36. quarry of stone, a, 37. sand, not a, 38. scattered pieces of, may not constitute a mine, 36. stone, a, 35. dug from quarries, a, 37. stratum of, included in, 37. surface, not Included in meaning of, 34, 35. MINERALS (See DOMINION Yukon Dredging Leases Itcg.). a ^verse possession of, 170. conveyance of, implies power to mine, 161. dower, in (See DOWER), enjoyed to be, 161. exception of, 170. natural user of, 231. possession, adverse, of, 170. power to get, a necessary Incident to grant, 161. railways under, 236. reservation of. Incidental rights, 170. in conveyance, 175. right to get, limited by right of support, 156. subject to exception, 165. title to. 166. what belong to Province, 795. INDEX 1175 ft MINES (See LICENSE). criminal law, &a to, 261. dower, in (See DOWER), 177. duties of owner of, 164. exception of, 171. subject, 165. gold and silver (See PRECIOUS METALS), mischief to, whon indictable offence, 263. possession of, 254. preservation of, 171, 168. right to work, an incorporeal hereditament, 156. what, belong to Provinces, 12, 795. MINES AND MINERALS, construction of, where reserved in a deed, 34, 35. meaning of, 34, ct scq. not definite terms, 34. quarry of stono included, when, 37. reservation of the, includes china clay, 37. not a quarry of freestone suitable for building, 38. not limestone quar- ; rled out of the surface, 38. not common clay, 38. flints, 37. every species of stone, 35. brick, earth and clay, 36. open or surface operations within Ry. Clauses Act, 35. open or surface operations under Ry. Clauses Act, 35. MINES ROYAL (See PRECIOUS METALS). MINING COMPANY, Ontario, in (See ONT. Mines Arts). DIVISION, Ontario, in (See ONT. Miiicn Art). DIVISIONS (See ONTARIO Minim/ Divisions). boundaries of mining claims, how settled, 833. Crown lands, situated within, may be, 834. Director not to purchase Crown lands or mining claim, 835. of Bureau of Mines, powers of, 835. discovery post, as to, 837. disputes between licensees of, settlement of, 833. 1170 INDEX MINING DIVISIONS— Cow «n«ed. exploration for minerals, on Crown lands, 833. extent of mining claims, how settled, 833. fee for miner's license, 835. inspector, appointment of, 833. may summarily settle disputes between licensees, 833. power of, 280, 833. io be ex officio Justice of the Peace, 833. to keep book, 837. who may be, 834. license, miners, may be granted, 835. licensee, notice of location to be given by, 837. miner's license may be granted, in, 835. mining claim, forfeiture of, 837. how marked out, 837. size of, 837. offences, 841. party wall, 837, MINING LANDS (See CONTRACTS; DOWER; STATUTE LAW), LEASE (See LEASE; STATUTE LAW). LICENSE, Quebec, in (See QUE. Mining Law). LOCATION, Ontario, in (See ONT, JUines Act; DOMINION Indian Lands Mining Keg.), PARTNERSHIP (See PARTNERSHIP ; STATUTE LAW). Ontario, in (See ONT. Mines Act). British Columbia, in (See B. C. Mineral Act; Placer Mining Act). PROPERTY, partition of (See PARTITION, 192). Dominion, list of regulations, 691, 692. :* . • Indian lands (See DOMINION), 760. Michipicoton, 833. New Brunswick (See NEW BRUNSWICK). North-west Territories (See DOMINION). NOVA SCOTIA (See NOVA SCOTIA), i Ontario (See ONTARIO Mines Act). Quebec (See QUEBEC). Yukon (See DOMINION). REGULATIONS, British Columbia (See BRITISH COLUMBIA). RIGHTS, conveyed by unreserved sale of immovables, 156. Quebec, In (See QUE. Mining Law). SUB-AQUEOUS (See DOMINION Yukon Dredgimj Lease i?tv/.). TERMS, construction of, 41. MISCHIEF (See CRIMINAL LAW; WATER), to mines, when an indictable offence, 263. MISTAKE (See CONTRACTS). MISREPRESENTATION (See CONTRACTS). MONCRIEP (ONTARIO). MONEY, payable or reserved by lease, to defraud Crown of, is indictable offence, 263. -i^' INDEX 1177 MORTGAGE (See WRONGFUL ABSTRACTION), account, 257. companlea (See CONTRACTS), equitable, 191. Limitations, Statute of, 189. mine, opened after date of, 189. mines, of, 189. mortgagee, damage, liable for, 258. in possession, right to work mines, 189, 190. new mine, may open, when, 189. 0]»en mines, may work, 189. prudent owner, 190. speculailon by, 190. misconduct of, 258. ■wrongful abstraction by, 257. mortgagor, min^s, may work, 189. receiver, when mortgagor entitled to, 190. registration in Nova Scotia, 200. security insufficient, 190. MORTGAGEE, in possession, right to work mine, 189. when may open mine, 189. MORTGAGES, mines of, 189. MORTGAGOR, mines may work, 189. MORTMAIN, alienation in, voidable in Ontario, 149. alienation in, defined, 5. corporation, 5. in force, as to, 5. license by Crown, 5, 149, 151. prerogative right, 149. rights of corporation, 149. what are statutes of, 5, 149. MOTIVE, elfect of. 228. MUNDIC, person liable, who conceals, 262. MUNICIPAL CORPORATION (See HIGHWAYS; TAXATION). NANAIMO (BRITISH COLUMBIA). NAPOLEON (See CODE Napoleon). NATURAL (See GAS; OIL; SUPPORT; WATER). NAVIGATION (See WATER), 220. beds of navigable waters, vested in Province, 161. jurisdiction, as to, 792. NAVIGABLE (See WATER). WATERS (See AD MEDIUM FILVM). beds of, 27. English Common Law rule, inapplicable to Lake Ontario, 163. 1178 INDEX vi ' m '■ NEGLIGENCE, 142 (See STATUTE LAW; WRONGFUL ABSTRACTION). NEIGHBOR (See SUPPORT; WATER; WRONGFUL ABSTRACTION), 136. 227. NELSON (BRITISH COLUMBIA). NEW BRUNSWICK (See ALIENS; CORPORATIONS; CHINESE; COM- MON LAW; CROWN; MINES; REGISTRA- TION). bounilarieB of, 861. decisions collected, 9, General Mining Act. Act, retrospective, 399. Admini8trat?on of Act devolves upon Department of Crown Lands, ?64. Advertisement, where owner of land unknown, 368. Affidavits, 397. Aliens, may enjoy benefit of Act, 363. Alluvial mine, definition of, 362. mines, how laid out, 365. Amendments to general Mining Act, 361. Agreement as to subsequent damages, 369. Applications, areas, for lease of, 366. area, to define, 365. (ueiis previously np[)lied for, not to be received, 2(15. areas under license or lease not to be received, for, 365. leases for forfeited areas, for, 379. license for prospecting, 365, 511. ■writing, to be in, 365. Appeal from decision of Surveyor-General, 381, 393. bond, on, 381. from Justice, 380. notice of (See \oticr), 394. perfection of, 378. Applicant for mining lease to execute lease, 397. first, surveyor unable to decide who Is, 379. Application for license, 371. mines, other than gold, to search, 382. Appraisement of damages, 388. penalty for neglect to set up posts, 388. Arbitrator, nppointineiit of. JHUi. to assess damages, 366. Arbitrators to be sworn (See Airard), 367. Arbitration, private lands, 384. proceedings on, 367. Areas (See Quartz Mines; Class No. 1). beneath waters of, m,ay make tunnels, 395. measurement, horizontal, 365. ST] INDEX 1170 NEW BRUNSWICK— rfj«»H«frf. Qeneral Mlnlas Aet—Coiithuird. areas on private lands, lease of, 366. possession of, 371. staking of, 371. vertical boundary, 365. Area, of lenso, how defined, 387. first application, 383. second application, 383. on forfeiture, to vest in Crown, 370. payment for, 365. to be granted, 383. Associated Metals, conveyed by lease of copper and lead mines, 387. Attachments, descriptions of, to be recorded In Crown Lands office, 397. registry of, 397. Auction (See I'lihllc Auction). Award of arbitrators final (See Arbitrators), 368. to find amount of damages, 369. cervalnty, 369. setting aside (See Irregularity; Error), 369. Bankruptcy, transmission by (See Innolrency), 399. Barrier to be reserved in lease, 385. in case of mining lands covered by water, 385. Bills of Sale, registry of, 397. Bond (See Appeal). Boundary lines, 365. Bouu^aries, changing, 364. Buildings, removal of, by lessee, 370. entry on, not authorized by lease of prospecting license, 372. Certificates of registry, 396. Class No. 1 (See Quartz Mines). areas, 371. Coal mine, lessee to obtain consent before transfer, 386. royalty on, 389. Company working mines, 396. copy of charter to be filed, 396. Colorable working, forfeiture in case of, 392. not to prevent forfeiture, 393. investigation as to, 393. Consent to transfer of lease of coal mines as to, 386. Conditions of licenses to be performed before lease issued, 385. in lease, re-working mines, 385. of renewal, 386. Copper mines, lease of, conveys associated metals, 386. royalty, 390. lUil 1180 INDEX i ■! NEW BRUNSWICK— Coti^MMrrf. General MIhIhb Act— i'oiiiinucd, CorniT posts, 387. Corporations (See Compaiiu). Contestation as to damages, lessee not to be Impllcaled, 369. Cost of survey, 382. Counterpart (See Lease). Court of Apponl, appeal to, from Surveyor-General, 378. Covenants, In lease, 370. lessee not discharged from, by surrender, 392. Crown grant, 363. title to miii^rals, 363. title to precious metals, 363. out of possession, 363. grant by, when out of possession, 363. lands, Department of, 364. area vests In, on forfeiture of lease, 370. lands, unlawful working of, 380. penalty for, 380. construction of grant, 383. exception, 383. lands may be leased by Surveyor-General, 394. lands office leases to be registered, 396. Lands Office, 397. Cultivation, land under, not to be entered on, 372. Damages, how assessable, 366. how estimated by arbitrator, 368. to be paid before entry, 369. subsequent, 369. by placing posts, 388. how assessed, 388. for tunnelling, 395. agreement aa to, 396. Damage (See Private Lands). Defacing poses, 389. penalty, 389. Department of Crown Lands, 364. to keep record, 365. Decision of Justice, subject to appeal, 380. Dofftult (See Lircnml Mill Oicner). Deputy Surveyor-General to have no interest In mines, 364. Destroying posts, 389. penalty, 389. Dispute as to ownership, 368. as to title, 369. District (See GnU District). Documents of Title, description of to be recorded in Crown Lands office, 397. registry of, 397. f INDEX llHl NEW BRUNSWICK— (7o««nMfd. General Mining Aet—Contlnind. Duty of Surveyor-Gi'neral, 364. Dumping ground, 367. Duplicate, lenses to be, 396. EncumbranccB rpiglsiry of, 383. Entry, agrecnent with owner before, 366. daina>;e8 to be paid before, 369. In p'lvate lands, 382. Escheat ot mining leases, 400. Exception of mines and minerals in Crown grant, 363. Expense of survey, 383. Exploration by Government, 364, 400. Exemptions from royalty, 400. Error In award, how rectified, 369. Fixtures, removal of, by lessee, 370. Forfeiture of lease or license, 366. effect of, 370, 392. investigation by Surveyor-General, 393. notice of, 392. not prevented by colorable working, 393. where work'ng colorable, 392. Forms to be prescribed, 395. (See AiipnuUx II.) General Mining Act, amendments, 361. Gold bearing, definition of, 362. Gold and Gold and Silver Mines, 364. Gold district, proclamation of, 364, 395. district boundaries, 364. royalties, 370. district, areas in, 371. license to search for (See IfnjxiUi)), 371. and silver, property of owner of mines, 380. district, lease of Crown lands in, 394. Government, how to encourage exploratloi; , 364. Goverpor in Council may proclaim fold district, 364. must consent to transfer of lease of coal mine, 386. may make regulations, 395. Grant from Crown, effect of, 363. Incorporated (See Company). Informality in award may be rectified, 369. Insolvency, transmission of lease by (See lidnl-niiilcji), 399. Interest, royalties to bear, 391. in mines, none by Surveyor-General, Deputy or any offlcer, 364. Interpretation clauses, 362. definition, 362. Investigate (See Surrciinr-Genrral). Investigation, colorable working, 393. Iron, royalty on, 390. ! •S^ 1182 INDEX ^t 1 NEW BRUNSWICK— OonHnued. General Mining Act — Continued. Judge of Supreme Court may make order, 369. to pronounce judgment, 378. Judgment to be registered, 379. Judgments, description of, to be recorded in Crown Lands Office, 397. registry of, 397. Jury, '[vlieie verdict of, considered desirable, 378. trial by. 378. finding of, 378. Land covered by water, 395. to be used by lessee for mining purposes only, 370. Lands (See Private Lands). to be used in least injurious way^ 370. Labor to be prescribed by Ordor-in-Council, 370. Liability to forfeiture, notice to be given, 377. Lead, royalty on, 390. mines, leases of conveys associated metals, 386, Lease to bo executed by lessee, 397. transmission of, 398. conditions of, 304. registry of, 395. forfeiture of, 392. of Crown lands by Surveyor-General, 394. area of, how defined, 387. boundary lines, 387. rental, 386. when renewable, 386. of coal mine, surrender of, 386. barrier, 385. (See Conditions). default in payment of royalty, 377. labor requirements, 370. effect of forfeiture, 370. covenants in, 370. surrender of, 370. forfeiture of, 370. failure to pay royalties, 370. forfeiture if entry before agreement, 366. of areas on private lands, 366. how executed, 366. deduct in payment, 366. forfeiture of, 366. form of, 366. Leases issued prior to Act governed thereby, 399. when terminated, 398. to be registered In Crown Lands Office, 396. renewals, 391. lyoEX 1183 NEW BRUNSWICK— Con of. 406, 418, 453. for mining coal, extent of, 437. for mining iron, extent of, 437. for mining particular mineral, 437. forfeiture for non-working, 464. gold district, meaning of, 409. Governor in Council, powers of, 442. how construed, 442. how executed, 410. how signed, 409. how surrendered, 449. impeachable on extrinsic grounds, when, 469. Issue of lease cures irregularities, 409. lead mines, leases of, 442. 1104 INDEX t ■i i I, i '■ li ■ h; \'4 : NOVA SCOTIA— f'oH//Hi/«5 NOVA BCOTJA—Cnnttniied. Minei and Mineral* Aot — dinlinurd licuiiHO, in force for tvvelvo iiiontlm, 4'JO. land applied for to bi> described, 420. number of areas In, 420. properly, 401, 421. requirements, 421. to search, 402, 434. application for, 409. aBslgniiblo, when, 417. not to be granted over land previously applied for. 434. when Invalid, 430. what tract covered, 134. licensee, expenditure by, 476. right to attack prior lease, 436. right to lease, 436. royalty, 476. statement of work done, 476. when entitled to lease, 408. licenses, when assignable, 460. licensed mills, 401, 421, 422, 424. duties of, 422. mill owner, 422, 423. may be recovered by nction, 422. owner, 424. returns by, 423. surrender of license, 424. death of, 424. effect of (See lAccnml Mill Oiciicr), 424. owners, false entries by, 423. revoking license, 423. owner, 474. failure to make return, 474. registration, free for, 474. royalty, 422. Hen (See Aira), 466. magnetic, 467, 477. meridian, 405. manager, agreement with, 454. authority of, 454, 455. marriage, transfer by, 460. meridian (See Maonctir), 405. mill license for, necessary, 423. penalty, 423. mine, defined, 401. officials not to be interested in, 404. It! 1196 INDEX ;i Ml '1.1 !!• 11 ; J:! NOVA SCOllA— Continued. Mines and Minerals Act— Continued mines, gold, 410. other than gold mines, 434, 437. application for license to search, 434. application (See License to Search), 434. license to search in force for one year, 434. license to search, rights imder assignable, 434. license to search, application for, how made, 434. •what sections applicable to, 437. mining, area, interest in transfer of, 454. areas before 1892, 405. lease, effect of Including too many areas, 411. over private land, 411. when invalid, 411. misrepresentation, 473. mortgagees, leases, registry of, 455. effect of non-registry, 455. to be registered, 457. " nearest recurring anniversjiry," 441. non-working (See Forfeiture), 410. notice. 466. condition precedent to jurisdiction, 451. necessary to forfeiture, 452. of forfeiture, 464. to forfeit. 450. service of, 450. notices, how served, 461. how addressed, 473. posting up, 452. oath, power to administer, 406. objections to lease, 409. obliterating monuments, 407. occupying, when a condition precedent, 408. office of commissioner, 402. offlcers not to apply for ar^-as, 467. act as igei't, i67. j."ii.''ty for, 467. officials (See Mine), 40 operation of law (Surrender). ore (See Mine). payment of rental, provisions for, 474. payments, 410. annual. 410. labor. 410. ■ Tn INDEX 1197 NOVA SCOTIA— C'0Hssee to remove buildings, 419. to other minerals, 437. royalty, 407, 425, 459. action for, 426. default In payment of, 425. 1198 INDEX i NOVA SCOTIA— Continued. Mines and Minerals Act — Uontimied royalty, nuvy be increased, 447. payment of, 440. to bear interest. 447. two per cent., 421. when quartz crushed at licensed mill, 425, royalties. 459. collection of, 460. warrant to sheriffs, 460. collection of, sheriff (See Warrant), 460. extension of time for payment of, 449. forfeiture on default, 418. in arrears, 453. search. 431. second rights, 434, 435. sections (See Hold and Silver), 433. certain, applicable only to mines other than gold and silver mines. 453. sheriff, 430. silver (See Prosiiccting Licenses), 419. staking off, 408. when a condition precedent, 408. statute law relating to mines and minerals, where found, 402. subsidence, arbitrators, to be sworn, 414. award of, 415. caused by previous lessees, 413. compensation, 413, 414. damages, 413. evasion of service, 414. liability for, 412. caused by, 413. of subsequent lessees, 413. notice to arbitrator, how served, 414. what necessary, 414. Royal Gazette, 415. substitutional service, 415. surface property, 413. workings by previous lessees, 413. summary declaration for forfeiture, 440. summonses, how served, 461. support, right to, 412. surrender. 441. consent, required, where notice for forfeiture, 449. effect of, 449. lease of coal mine, 462. power of commissioner to accept, 473. surveys, 406. expense of, 406. how made, 406. "■ INDEX 1199 NOVA SCOTIA— CoiiUnncd. Mines and Minerals Act — Uontinved surveys, lessees of iidjoininj^ properties to bo notified, 406. oaths, power to administer, 406. objections to, 406. system, change In, leases and licenses, 419. tin, royalty on, 447. title of Act. 461. to mine, defined, 401. transfer, form of, 457. transfers of Interest in mining areas to be registered, 457 registry of, 458. trespass, 430. Injunction, 430. trover, 402. tunnel, damages by tunnelling, 457, damages, how ascertained, from adjacent land, 456. plan of working, 457. unlawful entry and working, 430. mining, search warrant, 432. working, penalty for, 430. validity, award of, 411. wardens, duties of, 411. right to enter, 411. water, areas covered by, 456. weekly return, 408. will, administration of, 461. working, arbitration, 439. barrier, 438. colorable, 449. effect of, 451. unlawful, 430. Partition in (See PARTITION), 193. registration in, 200. of judgment, 200. of lease, 200. Reginlation of Mines, 478-515. Abandonment, notice to be given, 488. Access to man-hole, 499. Accommodation above ground, 501. where more than twelvo employed in mine, 501. Accumulation of water, -(langerous, 498. Agent, change In name of, notice to be given, 488. definition f>f, 479. may be witness, 507. Air-way, 497. Amendments, to special niles, 504. Apparatus, proper, for lowering persons in any shaft, 485. proper, for raising persons required in any shaft, 485. 1201) INDEX NOVA SCOTIA— Go>i/(HHfrf. Regulation of Mines — Vontinued. Appliances, damaging, 502. Application, of Attorney-Gene'-al, 485. Appointment, of managor o08. Approaching, place whPie accumulation of explosive gas, 496. Arbitration, 490. Areas, submarine, 513. Attendance, of witnesses, how secured, 512. Attorney-General, may apply for injunction prohibiting impropor working, 485. to prohibit Improper working in submarine area, 514. Back balance, 499. Barriers, 513. Board of Examiners, 508. conducting examination, 510. duties of, 510. head of, 508. rules by, 510. Boy, definition of, 479. Brake, 501. Cases, where provisions re single shafts not to apply, 485. Certificate, cancellation of, 512. of competency, 481. of special rules, 505. renewal of, 512. restoration of, 512. Certificate, competency of, by an English Secretary of State, 511. managers, for, 509. overmen, for, 509. service, of, 510. underground managers, for, 509. Chain, single link not to be used, 501. Check-weigher, 483. appointment of, 483. duties of, 483. facilities to be afforded, 483. order of, 484. proceedings to remove, 484. removal of, 484. working not to impede, 483. Coal, weighing of, when royalty payable, 514. Commissioner, abandonment, 486. consent of, to prosecution, 507. definition of, 479. enquiry by, 511. may direct special report by inspector, 49'_'. may extend time, 486. for remedying defects, 491. INDEX 1201 NOVA SCOTIA—Coiitiiuicd. Regulation of Mines — Couliniicd. Commissioner, notices, 480. power to exempt, 485. powers of, 511. returns, 486. to furnish forms for, 487. special rules may be submitted to, 503. Communication, between shafts, 485. Competent person, to examine machinery, 502. Complaint, to be brought in six montlis, 507. Condition, of mim>, inspector to examine, 490. Conical drum, 501. Continuation, of special rules, 515. Coroner, evidence on inquest, 493. inquest by, 492. jury, person interested in mine not to be on jury, 493. person interested in mine not to be on jury, 493. proceedings on inquest, 493. provisions as to, 492. Costs of enquiry, 512. Counter balance, 499. Damaging appliances, 502. Dangerous accumulation of water, 498. parts to be fenced, 501. Defacing rules, 505. Detiuitioii (Sue Aijnit ; liiuj ; CdtiiiiunnldiiiT dined Plane ; Munat/cr ; Mine Oirncr Manager), 479. Deputy inspector, definition of, 479. Discontinuance, notice to be given, 488. Dresses, changing, accommodation for, 501. Drum, of machine, for raising or lowering people, as to, 501. Drunkenness, 511. Drying clothes, accommodation for, 501. Effect of contract. 489. Employment of boys, 480. boys over ton and under twelve years not to be employed more than 60 hours in one week, 480. or more than 10 hours in one day, 480. hoys under tea years not to bo ouii)lnyed in mine, 480. Engine, back balance (See Counter huldiirc), 481. counter balance, 481. worked by an animal, driver of, 481. (See Communiratinn), 481. English Secretary of State, certificate by, 511. Entrances to coal mine, 495. Examination before firing shot, 497. Exemptions by commissioner, 485. 76— M Drpuli/ ; 1 nupi'ftiir ; Tn- ISIuift ; Lnilcrgruiina 1202 INDEX NOVA BCOTIA—C uniinucd. Regulation o£ Mine.-CoH*in./cd. Explosive gas, accumulation of, 496. Exposed parts to be fenced, 501. False statement, 504. Fencing, temporai-y removal of, 500. top of shaft, 500. Flanges on drum, 501. Fly-wheel, to be fenced. 501. ForniH (See A2>pendix 11.), B84. General Rules, 494. Gin (See Communication), 481. Granting certificates, 510. expenses of, 510. Gunpowder, charge of, 496. how to be stored, 496. quantity in mine, 496. undermining, 496. J^S'er'^or^ntta -.».«« »r«, ..y be proH.W.ea by injunction, 514. Inaccurate plan, 491. Inclined plane, definition of, 478. incorporated company, change in officers, notice to be given, 488. Indicator, 501. Inflammable gas, 495. issuing, 497. report as to, 495. Injunction against improper working, 485, 514. Injuring rails, 505. Inspection, 489. of mine, 495. Inspector, appeal to commissioner, 490. Commissioner may direct special rules by inspector, 492. definition of, 479. duties of, 489. evidence before, 492. finding mine dangerous, 490. finding mine defective, notice to be given owner, 4yo. obstructing, 490. owner to remedy matter complained of, 490. powers of, 480, 492, 507. Right to production of plan, 491. to carry out regulations, 490. Iron ore, weighing of, when royalty payable, 514. Ladder, when to be provided, 501. Loss of life, where, notice to be given, 487. .-I IlSlDEX 1203 NOVA SCOTIA— Conthuicd. ReBulatlon of Mines — Continued. Lowering (Soe ApixiratiiK), 485. Machinery, to be examined by compotent poraon, 502. Manager, appointment of, notice to be given, 508. change in name of, notice to be given, 488. certificates for, 509. definition of, 479. incompetency of, 511. may be witness, 507. provisions as to where less than thirty persons em- ployed, 509. qualifications of, 508. underground, to control underground workings, 508. unfit to discharge duties, when, 512. Managers, 508. Manholes, 499. distances between, 499. provided, when to be, 499. Manhole, access to, 499. refuge, pliice cif, to be kept clear, 499. to be kept clear, 499. Mine (See Cominunivutinn), 481. abandoned plan to be filed, 489. definition of, 478. egress, 485. gunpowder in, 496. ingress, 485. notices to be given, what, 488. outlet, 484. scale of plan, 489. to be under control of manager, 508. two shafts required at least, 484. when worked by machinery, 500. Mining returns, provisions for procuring, 486. Natural strata, unsafe working to be secure, 500. Negligence, 511. Notice of offence, 506. to be given where loss of life, 487. within twenty-four hours, 487. Notices, how served, 515. Noxious gas in mine, 495. Obstructing inspector, 490. Offence, who guilty of, 506. Offences, prosecution for, 506. Overmen, 508. certificates for, 509. incompetency of, 510. qualifications of, 508. unfit to discharge dudes, 512. 1204 INDEX NOVA SCOTIA-Co)iNnwcd. KeKiilatl. " yiinem-ConHnued. Owne '• in name of, notice to be given, 488. litlon of, 479. jay be witness, 507. mny submit special rules, 503. ity, 481, 506. for contravention of special rules, 502. how recovered, 507. misrepresentation of parent, effect of, 481. when to be distributed amongst persons injured, 507. Penalties, 506. Person whose case is enquired into may be witness, 511. Persons Injured, when to receive penalty, 507. Personal injury, resulting In death, notice to be given, 488. where notice to be given, 488. Plan, definition of, 479. Plane, underground, for travelling, 498. Plans, Inspector to be furnished, 491. produced to inspector to be, 491. when and how to be kept, 491. Platforms on ladder, 501. Powers of commissioner, 511. Prosecution, 506. Inspector to be by, 507. Provisions where no qualified manager, 509. Raising (See AppamtiiH), 485. Recommencement, notice to be given, 488. Record of cancellation of certificate, 512. Recovery of penalty, 507. Register of certificates, 510. Removing appliances, 502. Report as to Inflammable gas, 496. Returns, 486. Return air-ways, 502. Road for travelling underground, 499. Roadways, to be safe, 495. Royalty, weighing material, when payable, 514. where payable, 514. Rules (See General Rules), 494. (See Siiecial Rules), 515. Service, certificates of, 510. Shaft, definition of, 478. person under eighteen not to have charge of engine, etc., in, 481. Shafts, communication between, 485. for purposes of ventilation, 485. used for ascent and descent, 501. Shift, definition of, 480. INDEX 1205 NOVA SCOTIA— Cuntinucd. Regnlatlon of Mine* — Conliniicii, Single shafts, 484. cases where shafts or outlet unnvallabh>, 48G. cases where working has reached boundary of property, 486. extension of time for double shaft, 486. for opening new mine, 485. for prospecting, 485. in coal mines, 486. where inflammable gas, 486. where no infl.ummab!(> gas, 485. Single llnlc chain not to be used, 501. Signalling, underground plane, 198. Signals in working shaft, lowering persons in, 500, raising persons in, 500. Special rules, amendments to, 504. certificate of, 505. considera.tlon by commissioner, 504. duties of commissioner, when not sufficient, 504. Injuring or defacing, 505. may be submitted by owner or manager, 503. objections to, 503. observed, to be, 503. owner luay submit, 503. publication of, u05, to be observed, 502. when to continue, 515. State of shafts to be examined, 502. Statement of case to be made, 511. Stations, 495. Steam gauge, 501. Submarine areas, 513. coal in, 513. minerals in, 513. opening of new level, 514. passage ways to, 513. penalty for improper working, 514. reference to Governor in Council, 504. system of working in, to be approved by inspector, 514. Subpoena, issue of, to witnesses, 512. Top of shaft, when to be fenced, 500. Underground manager, 479. certiflcntes as to, 494. certificates for, 509. incompetency of, 510. plane for travelling, 498. signalling, 498. 120G INDEX NOVA. aCOTlk—Coutinved. Begnlation of tHinen— Continued. Unduiground nmiiHKer, unrtt to diHchiirge duties, whoii, 512. working to be under control of under- ground manager, 518. Ventilation, apparatus, 602. commissioner to decide as to, 480. his decision final, 480. inflammable gas, 494. report as to, 495. safety lamp, 494. when required, 494. what required, 494. where Inflammable gas, 497. workmen engaged for purpose of, 480. Wages, deductions, special agreement for, 482. depending on amount of mineral gotten, 482. public house, wages not to be paid at, 482. mineral gotten to be actual weight, 482. special agreement as to deductions, 482. where not to be paid, 482. penalty, 482. responsible, who, 482. Water, dangerous, accumulation of, 498. Water gauge, 501. Weighing mineral when royalty payable, 514. What liuuli, mines, niinenvlH and royalties, belong to, 12, 7i)5. Windlass (See Commuiiivatlun), 481. Witness, who may, 507. Working, coal in submarine areas, 513. Impede, check-weigher not to, 483. improper, restrained by Injunction, 485. 514. of submarine areas, 513. minerals In submarine areas, 513. plan of, 491. shaft to be provided with guides, 500. signals in (See Ahandonmvut), 500. to be made secure where natural strata unsafe, 500. timbering shaft, 500. NUISANCE, action for, 259. OFFENCE (See CRIMINAL LAW; MINING REGULATIONS; STATUTE LAW), concealing, an indictable, when, 262. indictable, when fraud Is, 262. of arson, who is guilty of, 263. exploration or scientific investigation, not a, to take for, any specimen, when, 262. relating to act, which may be dangerous to life, 261. INDEX 1207 OIL (See GAS; PETROLEUM), abstraction of, 225. declBions ns to, 225. Injunction restraining boring for, 137. minora], feme naliinir, 225. right to boro for, 137. OIL WELLS, attempt to Injuro, with intent, when an Indictable offence, 264. Ontario, In (See ONTARIO MIhch Art). Betting fire to, Is nrsop, 263. when an attempt to convey water Into, is an offonce, 264. earth into, is an offence, 264. rubbish Into, Is an offence, 264. OKANAGAN (BRITISH COLUMBIA). ONTARIO (Soo ALIENS; COIU'OII.VTIONS, FOIlKKiN ; COMPANIES; CROWN ; DOWER ; HIGHWAYS ; MINES ; PRO- VINCE ; REGISTRATION ; UPPER CANADA), boundaries of, deflnetl, 2, 835. companies, mining, Incorporation of, in, 850. corporeal tenements, lie In grant, 155. covenants for title. In, 177. Department of Mines, 29. diamond drills, rules and regulations relating to control and working of, 842. free grants, 29. ■* grant, corporeal tenements He In, 155. Incorporation and regulation of mining companies. In, 850. Iron mining fund, regulations ns to Government payments out of. 846. laws In force at Union, continued, 2. Mines Act. • ^ abandon, mining claim, licensee may, when, 300. -"^ abandoned, mine, duties of owner, as to prevention of accident, 305. work, when, on shaft Is, notice to be given to in- spector, 310. abandoning of applications (See AppUcatloii), 284. abandonment, mining claim of, may be Inferred from default in compliance with section 51, 299. ,, If miner's license run out or not renewed, 299. mining operations not carried on, 299. notice to be given on recommencing work, 310. access, mining claims to, disputes as to, 280. accident, inspector may be directed to make special report as to, 311. prevention of, 305. 120H INDEX OJ^TAniO-Coutliuird Mines Act — I'ntiliiiind. accidents, death result Ing from personal Injury, notice to bo given of, 311. notice (if, to be given to Director of Diirt'au of Mines, 310. account, trcsiynsHcrB may bo liable to, 289. accretion by alluvion, us to, 282. whether to land patented or to road allowance, 282. acreage, of mining lands, 284. nets, regiilntlons for the purpose of, as to, carrying out, 273. acts, list of (See Tahli of Slaliilis). action, patent, to set asld(> a, for fraud, whether Attorney- General necessary party to, 275. suit, or compensation, may be brought to ascertain, when, 'i'J4. "Actual mining operation," expenditure on, 288. to be made In, 280, operations, forftdture, if not carried on, may work, 299. meaning of, 288. mining, worlinii(l. ugrlcultiiral, lands granted, least'd or lociiitod for, what surface rights re8«'rvfd to the Crown, an to, 207. Algoma, roqvilronifnts (if mining locationH In, 2S1. Algonquin Park, mining oxplorallou and iiroHpec'ting In, when, 286. alluviou, land created by, iiatoutccH not entitled to, '282. nmbigultii's, may bo cured by reference to prior maps and sub- sequent survey, 27G. amendment, of Order in Covincil, 291. amount, bounty, of, for I'licouragonient of Iron mining, UTfi. annual statistical return, may be required at end of each month or quarter, 305. returns to l)e made, when, 304. what information to contain, 304. apparatus, stamps or other crushing, included in machinery, 267. appeals, inspectors of divisions, from decisions of, as to, 273. appliances, all, of whatsoever liind used in or atjout, or in con- nection with, the mine, included in machinery, 267. applicant, furnish, should within specified time, surveyor's plan of field notes and description, 283. purchase price, payment of, by, 284. requirements, failing to comply with, lapse, as to, 284. to pay one-quarter of, 284. within 00 days, 284. three-quarters of, 284. three months after ap- pliciition, 284. application, miner's license, for, should be made before expira- tion of license, or within ten days thereafter, 295. radius, limit of, to 15 miU»s, 284. applications, acres. In any one year limited to 320, when, 284. lapsing, or becoming abandoned, entitles applicants to make other applications, 1284. mining lands, for, made prior to 13th April, 1897, as to, 285. appropriation. Iron mining fund, for, 270. cease and determine, shall, when, 276. aqueducts, construction of, regulations as to, 273. maintenance, regulations as to, 273. opening, regulations, as to, 273. using of, regulations as to, -73. arbitrators, appointment of, or mining boards, regulations as to, 273. mining boards, or, duties of, as to, etc., 273. powers of, \i\y,i. 1210 INDEX i ONTARIO— Continued. Mines Act — Conlhuicd. jirbi'.iators, powers of, 293. niiii'ii"^ boards, mode of procedure, as to, etc., of 273. powers, as to, etc., of, 273. areas, locations, as to, to be not less than 40 acres, 282, 284. may be composed of separate, 284. artificial reservoir, explore, no right of entry to, 294. assigns, not provided in section 35, s.-s. 5, 288. astronomical, bearings of outlines of mining locations, 281. line, preferred to magnetic, 284. Attorney-ooueml, action to set aside patent or Crown grant, when .should be i)arty to, 275. when need not be party to, 273. for fraud, whether necessary party to an, 275. actions in which patent attacked has bi'en set aside, when a ])arty to, 275, upheld, when a party to, 275. consent in writing, of, requisite to insli- tute prosecution, when, 313. auction, public (See Public Auction), 286. balance, Iron Mining Fund, of, to be returned to and become part of the consolidated revenue fund of the province, 277. bearings, mining locations, of, course of, 281. outlines, locations, of, 282. beer, place for sale of, wages not to be paid at, 304. beer-shop, Avages not to be paid at, 304. blazing, of trees, on mining claims, as to, 297. blasting, regulations as to (See Rajulations), 306. blocks, included in machinery, 267. body, corporate (See Cinpoiati' liochj], 205. boilers, included in machinery, 267. book, inspector, to be kept by, to contain records of mining operations, 299. record, of, notice of abandonment in, 300. boundaries, claim, of, discovery post to be planted in, 297. determining, in, astronomical lines preferred, 284. discrepancy, between, as to, 284. lines, length of, to be supplied by licensee, to in- spector, 299. surface under, by lines vertical to the horizon, to be, 298. boundary line, mining claim, of, how to be laid out, 298. underbrush on, to be cut, 297. boundary lines, underbrush along, licensee to cut, 297. boy (.See Emjihiiji'i'), .'102. building, patentee entitled to use trees for, 292. public, no right of entry to explore, 294. INDEX 1211 ONTARIO — Continued, liiines Act— Continued. Bureau of Minos, and oiBcers, 277. Director of, 277. establishment of, 277. calendar year, claims, not more than four, to be staked in, 298. mining operations to be carried on in, as to, 299. number of clairus which may be staked within, 298. cancellation, of Order in Council, 294. case, under Act, not to be removed into any Court, by certio- rari, 281. cemetery, no right of entry to explore, 204. certified copy, of field notes admissible in evidence, 283. patent iulmissible in evidence, 283. certiorari, case under Act, not to be removed into any Court by, 281. chain reserve, along chain of lake or river, as to, 281. chains, included in machinery, 267. change in name of mine, when occurs, notice to be given to inspector, 310. agent of mine, when occurs, notice to be given to inspector, 320. owner of mine, when occurs, notice to be given to inspeclor, 320. officer of Incorporated company, which is owner of mine, when any is made, notice to be given to inspector of, 310. clay, works for treating, etc.. Part IV. of Act, applies to, 302. " clergy lands," what are, 269. included in Crown lauds, 267. clergy reserves, what secularized, 269. claim, ground Included in dimensions of, how bounded, 298. location, of, surveyor's pliin, etc., not regarded iis, un- less filed forthwith, 283. one, no more tliau, can lie sfjiked by licensee, '2!>7. name of, to be supplied by licensee to inspector, 298. claims, mining, disputes as to, etc., 280. four or less, held by same licensee, operations may be combined, when, 298. four, not more than, to be staked out by one licensee in one year, 298. co-lessee, delinquent, notice to, 290. co-lessees, co-owners, or, contribution of proportionate ex- penditure by, 290. combine mining operations, when licensee may, 299. 1212 INDEX. ill ONTARIO— CoH/iHMe(f. Mines Act — Continued. commissioner may limit time for completing requirements, 284. refer question between co-owner and co- owner and co-lessee to High Court, 290. require special report, 311. report, cause, to be made public, 311. " common school lands," what referred to by, 268. communication from one part to another, in mine, who may take charge of. 303. compensation, failure to agree upon, as to, 293. may be given in manner prescribed by Direc- tor, 293. may be ascertained by suit or action, 294. compass, variation in, as to allowance to be made for, 284. company, incorporated, acreage which may be obtained by, L>84. mining, incorporated, may procure miner's lieeiiso, 295. organize, licensee may, to worli claim, 296. incorporated, which is owner of mine, when any change is made in officer, notice to be given to inspector, 310. compliance, with working conditions, as to, 296. complaints, to be laid within three months, 314. conditions, vt^orking, compliance with, 296. on which locations to be held, 286. and coveuiints, lease to be subject to, as provided by regulation, 287. conditional acceptance of rent, may not prevent waiver of forfeiture, 289. con.sont by owner or lessee, or litcatoe, to exploriition, tis tn, 294. consolidation of legislation relating to mining in 1892, 2ii(). and revisi(m, of existing mining laws in 1897, 266. Consolidated Revenue Fund, of the Province, fees, piiinlty and fines, to form part of, HI 4. expenses of carrying Act into effect to be paid out of, 314. constables, may be appointed by inspectors, 281. contract, based on false statements, as to, 291. contravention of sections 61, 62, 63 of Act, as to, 303. contribution, by co-owners or co-lessees of proportional ex- penditure, as to, 290. construction, aqueducts, of regulations as to. 273. ditches, of, regulations as to, 273. patent, of, when other grants are admissible to aid in, 276. M INDE3 1213 ONTARIO— CoH ««wed. Mines Act— Continued. construction, prior patent, of a subsecpient patent cannot affect, 276. race-ways, of, regulations as to, 273. road, of, regulations as to, 273. contiguous locations, expenditure may be made on one, 287. conviction, may bo made by inspector upon view, when, 314. co-owner, delinquent, notice to, 290. co-owners, or co-lessees, contribution of proportionate expen- diture by, 290. copper, nicliel and, royalty on, 271. from ores on lands patented after 1st January, 1900, 271. copy, correct, included in plan, 267. plan, of, may be made by inspector, 280. sworn, admissible in evidence, 283. corners, indication of, how to be made, where rough ground, 297. post to be planted at each of four, how, 297. corporate body, proprietor, who is the immediate, or lessee, or occupier of auy mines, or of any ])art thereof. Included in meaning of word " owner," 267. rent, who merely receives, from a mine, not included in meaning of word " owner," 267. royalty, who merely receives, not included in meaning of word " owner," 2G7. fine, who merely receives, from a mine, not included in the word " owner," 267. proprietor, who is merely, of a mine, subject to any lease, grant or license for the working thereof, nor included in mean- ing of word " owner," 267. cost, actual, of labour and explosives for mining and raising ores or minerals, deducted in calculating royalty, 271. actual, of labour and explosives, deducted in calculating royalties on ores, won from lands patented, after 1st January, 1900, 272. treatment, of, subsequent to mining and raising ore, de- ducted in calculating royalty, 271. convictions, of, form part of Consolidated Revenue Fund, 314. survey, of, to bo borno by applicant, 283. under Act, 812. County Court, suit or action for possession, may be brought in. 294. i 1214 INDEX ONTARIO— Co««nMcd. Mines Act — Continued. * Court (See IIi(>h Court), 291. case not to be removod Into any Court, by ccrtiomri, 281. Justice, of, High, Ontario, jurisdiction of, 274. covenants and conditions of, performed and fulfilled, ronew.il of lease may be made, 287. and conditions, lease to be subject to, as provided by regulation, 287. covenant, re-entry by Crown for breach of, 289. rent, to pay, statutory, lessee may be liable lor without any, 289. crops, if liable to damage, no right of entry, 294. Crown, ministers and officers representing, may waive forfei- ture, 289. re-entry or taking possession after forfeiture, 289. under no obligation to claim forfeiture, 289. Crown lands, explorafi(m, withdrawn, from, persons may not explore on, 274. explore, on which, person may, for mines and minerals, what, 274. exploring, illegally, penalty for, as to, 274. minerals on, as to, 274. location, withdrawn from, persons may not ex- plore on, 274. " mining locations," what may be used or Icnsod as, 274. occupying, illegally, penalty for, as to, 271. cannot be marked or staked out, 276. " ' party wall between adjoining claims to bo left, 300. possession of, resumed, effect of, 289. ' ■ ' working, illegally, penalty for, as to, 274. mines on, in mining division, to be subject to Part III. of Act and regulations, 295. mines, etc., on, reserved by the Crown, cinnot be marked or staked out, 296. withdrawn from exploration cannot be markeil or staked out. 296. sold as mining lands, price of, 285. Crown, Court cannot enforce specific performance against, when, 275. grant, action to set aside, when Attorney-Gencnil is a necessary party to, 275. unsurveyed lands of. Null inn Tcmims Art, does not apply to, 269. dam, no right of entry to explore, 294. \ INDEX 1215 ONTARIO — Continued. Mines Act — Continued. damage, agreement for compensation for, 393. compensation for all, as to. 294. injury, or, to surface, the Director may prescribe compensation for, 293. dangerous openings, to be kept fenced, 305. date, of record, to be supplied by licensee to inspector, 299. decision, of Inspector, to be final, except in certain cases, 280. decisions, of inspectors of divisions, appeal from, as to, 273. declaration, of tract of country, as mining division, as to, 295. definition, of mining rights, 280. surface rights, 293. definitions, " his interest," 291. lessee (See Lr.sxrv). delinquent co-lessee, notice to, 290. co-owner, notice to, 290. demise, or lease of mining lands, may be made instead of grant, 287. deposit, of ore, discovery of, as to licensee, 296. rights of discovery of by licensee, 296. individual licensee to stake out on, 297. description, in patent, when extrinsic, evidence admitted to explain, 276. of location to be furnished by applicant, 283. determination of boundaries (See Rnundarics), 284. of rights in case of forfeiture, 289. difficulties, between licensees, settlement of, 280. dimensions of locations, what are, 281. mining claim, 298. to be bounded under surface by lines vertical to the horizon, 298. director, empowered to appoint arbitrator, when, 293. of Bureau of Mines, 277. powers, rights and authority of, 278. schedule, to prepare, for col- lecting statistics, and send- ing by mail to owner or agent, 305. discharge of boy from employ upon discovery of contraven- tion, 304. discontinuance of working, duties of owner as to prevention of accident on property, 305. notice to be given on recommencing work, 310. dlBcoverer, definition, former, as to, 296. dropped in consolidation, 296. first of valuable metals entitled to free grant, when, 285. 1216 INDEX ONTARIO— r'0H/i»i/frf. Mines Act — CoiithiKal. discovery, definition of, 296. post of wood or iron, 296, 297. to be shown on plan, 298. posts, how should be marked, 297. what should be shown on, 297. how should be marked, 297. should be planted, how, 297. vein, of, liconsee who is, as to marking out, 296. written or stamped, what to be on, 297. boundaries of claim, to be planted within, 297. discrepancy, definition, former, as to, 296. bt'tween, and work on ground, 284. between boundaries, as to, 284. disputes between licensees. Inspector shall have power ^o settle, certain, 280. disqualification, of oflBcer, as to, owning or being interested In mining claim, 279. District Court, suit or action for possession, may be brought in, 294. ditches, construction, maintenance, regulations as to, 273. opening, regulations as to, 273. regulations as to, 273. using of. regulations as to, 273. divisions of Ontario, territorial, 282. drilling, exploratory, with diamond drill, 277. rules and regulations regarding, 277. driver, young person, none shall be employed as such wlio is under sixteen years of age, 303. dualin, regulations for (See Kciiutdtionfi), 306. dues, payable by lessee who cuts trees, 292. licensees who cut timber or saw logs, 292. patentees, or licensees who cut trees, 292. duty, what lands, ores and minerals, exempt from, 263. duties, in respect of minerals extracted from lands patenteil under Free Grants and Homesteads Act, prim- to 14th April, 1892, qutere whether same aro Inc from, 269. prior to 4th May, 1891, repealed, 269. of inspector, powers and, 279. dwelling house, no right to enter to explore, 294. dynamite, regulations for (See Ifriiuliitidiis), 306. employee, boy over 15 or under 17, employment of, below, be- gins at time of leaving surface, 302. period of employment, for boy or young person, 302. begins at time of leaving surface, 302. INDi:X 1217 ONTARIO—f OH till ncih Mines Act— Con tin mil. employee, licensee, by, any person may be, 296. in charge of engine, etc., who may be, 303. age of, when represented by parent or guardian, may exempt owner fnmi penalty, 301. employees, boy under 15 years of age not to be allowed below ground, 302. girl or woman, not to bo, 302. number of, to be set forth in annual statistical an- nual, 304. employer, person acting as, to report to owner or agent of mine, 303. employment, of persons by licensee to assist in work, 296. encroachment, of the lake, point may shift with, 283. engine, who may take charge of, 303. entertainment, house of, wages not to be paid at, 304. entrance to mine, who may take charge of, 303. entrances (See .S'/ff/ZO, 305. entry, right of, what, prospector or employer has, 294. evidence, extrinsic, when admitted to explain description in patent, '276. certified copy of patent admissible in, 283. sworn copy, admissible in, 283. upon oath, may be taken by inspector in enquiry, 311. examination of mine by inspector, 280. excuse, may be proved though not specified in information, 314. exemption, from penalty, regarding paying wages at public house, 304. may be proved, though not specified in informa- tion, 314. executors of co-owner or co-lessee, notice to, '2i)0. expenses, of carryiu}» Act into etTect, how to be paid, 314. expenditure, what is included in, 290. to be made in actual mining operation, 286. may consist of labour, actually performed by grown men at certain computation, 237. where two or more locations are contiguous, 287. in default of, rights to revert to Her Majesty, 287. on leased lands, 288. not made, renders lease liable to forfeiture, 288. proportionate, contribution by co-owners or co- lessees, 290. explore, for mines or minerals, on Crown lands, who may, 274. penalty for attempting to, illegally, 274. miners' license authorizes licensee to, 1296. explorer or prospector, right of entry, as to, 294. 77— M 1218 INDEX ONTARIO— Contfnwed. Mine* Act — CoiitiiiKid. exploration provided In mining license, may be made by liconsec, 296. Crown lands withdrawn from, cannot be marked or staked out, 286. exploratory drilling, with diamond drill, 277. explosives, for mining and raising, actual cost of, deducted from value of ore or mineral in calculating royalty, 271. actual cost of, deducted in calculating royalty on ores won from lands patented after 1st Janu- ary, 1900, 272. false statements, effect of, 291. foe, annual, for claim, if uot prepaid, may work forfeiture, 290, fees, for miner's license, 295. form part of Consolidated Revenue Fund, 314. to be paid by licensee, 298. fencing, duty of owner, as to, 305. patentee entitled to use trees for, 292. field notes, certified copy of, evidence, li83. to be furnished by applicant, 283. fifteen miles, limit of radius of application, 284 filing, of surveyor's plan, when regarded as constituting a claim, 283. fine, under Act, 311. fines, form part of Consolidated Revenue Fund, 314. fire clay, mineral, a, 294. firm, acreage which, may be obtained by, 284. foreman, in mine, may be guilty of offence, 312. forfeiture. Crown under no obligation to cl;iim, 289. mining claims, of, disputes as to, 280. lease, of, machinery may be removed on, when, 288. for non-exi)eiiditure, '288. defeated, may be, by lessee, how, 289. Incurred, not to be, by receipt of rent unless due on a day after forfeiture incurred, 289. re-entry, by Crown officers, 289. mining claim, of, may be caused for breach of spc. 51, 299. take place, may, if miner's license run out or not renewed, 1.'99. waived, may be, 288. take place, may, if annual fee not prepaid, 299. take place, may, if actual mining operations not Tied on. 299. form of mill ... < i. p, 295. of transior of mining claim (See Appendix II.). r INDEX 1219 1 ONTARIO— CoH < (wHcrf. Mines Act — Cinillniml. fraud, whether Attorney-General, necessary party to set aside a patent for, 275. Free Grants and Homesteads Act, 269. compensation for damage, as to, 294. patents under, prior to 14th April, 1892; qmvir as to royalties on mine- rals, extracted from lands patented under, 270. provisions of sections, do not apply to lands patented under, 270. fuel, patentee entitled to use trees for, 29-. pine trees not to be used for, when, 292. furnaces. Included in machinery, 267. for smelting, etc.. Part IV. of Act applies to, 302. garden, no right to explore, 294. gas, wells, Part IV. of Act applies to all, 302. gear, winding or pumping, included in machinery, 267. gin, who may take charge of, 303. girl (See Etuitlmjrv), 302. gold and silver mines, unnrvr whether passed by patent under Free Gnints and Homesteads Act prior to 14th April, 1892, 270. reservations of, what rescinded, 269. grace, ninety days of, given for payment of rent, 291. grant, of surface rights, 29G. free, of location, when discoverer entitled to. 285. grants, patents, when other, are admissible to aid in construc- tion of. 276. gravel, in mineral, 294. great seal, grant of land from Crown must bo under, 275. ground-work, on the, governs, 284. guardian, misrepresenting age, to be liable, 304. gun-powder, regulations for use of, 306. ' Heir and Devisee Commission, commissioners under, are not bonuil by strict rules applic- able to Courts of law, 275. Crown not bound to issue pat- ent to oliiimant found en- titled by, 275. heirs, entitled to personal service, 291. meaning of, 291. of delinquent co-owner or co-lessee, notice to, 290. 1220 INDEX M iih; iji.f' OKTARIO— Continued. Mines Act — Continuvd. High Court of Justice, authority of, to make order regarding contribution between co-owner iind co-lessee, 290. jurisdiction of, 274. reference to, of questions between co- owner and co-lessee, 290. meaning of, 291. " his interest," meaning of, 291. holding, mining claims, staking out, and, 296. horizon, grouud incluilcd in claim, liow bounded, 298. horizontal, measurements of mining claim, to be, 298. house of entertainment, wages not to be paid at, 304. imprisonment for obstructing party wall, 300. under Act, 312. improvements, meaning of, 291. inclined plane, may be taken charge of, by whom, 303. Incorporated company, acrcnge which may be obtained by, 2St. mining company, may procure miner's licenses, 295. indictment, may be made under Act, 314. Inflammable substance, regulations for, 306. information to be laid within three months, 314. what need not be specified or negatived in, 314. Injury, agreement for compensation for, 293 to surface, director may prescribe compensation for, 293. personal, notice of, to be given to director, 310. Summary Convictions Act to apply to offences, 314. inspection, 280. duties of owner as to, 279. may be had of book containing mining claims, 298. Inspector, local agent, or (See Jnspcrfnr), 276. Director of Bureau of Mines has same authority as, 278. decision of, in cases under Act to bo final, except in certain cases, 280. local agent, has same authority as, 278. appointment of, for mining division, 278. of mining division, shall be ofllcer of Bnre.ni of Mines, 278. duties and salary of, 278. who may be appointed, 278. powers and duties of, 279. to make annual report. 280. to bo ex officio Justice of the Peace, 280. may be Justice of the Peace without property qii.ill- fications, 280. I2iDEX 1221 ONTARIO— C'OH/Oiucd. Mines Act— Vimtiniird. Inspector, iniiy bo Jimtico of tlio Poivco witliout ruHuliny in tlio (liBtrlct, 280. shall bavo piiwer to settle, summarily, certain dis- putt's between llcenseen, 280. decision of, In cases under Act to bo final, except In certain cases, 280. may an'olnt constables, 281. to keep book for recording mining claims, 1298. to keep particulars of licensees' notice In book, 299. to enter record of mining operations In his book, 299. notice of abandonment to be given by lessee to, 300. Inspectors to duterniinu interest of licensee (See Jiinix'clor), ;W(). may be directed to make special report as to acci- dent, 311. may conduct Inquiry, Into cause of loss of life, or personal Injury, 311. In inquiry, may take evidence upon oath, 311. obstruction of, in performance of duty, an offence against Act, 312. may institute prosecutions, 313. may convict upon view, when, 314. may try offences, 314. of divisions, appeals from decisions, as to, 272. Intention to abandon, notice of, to be given by licensee to in- spector, 300. interest acquired in Crown lands or mining claim by officer, void, 278. in mining claim, transfer of, 296. of delinquent co-owner of co-lessee may vest in him, 290. in any Crown lands or mining claim, officer cannot become owner of, or interested in, 278. Interpretation, section referring to, 2G6. inquiry, as to cause of loss of life or death, may be made by Inspector, 311. evidence may be taken upon oath in, 311. iron, royalty on, 271. after 1st January. 1900, 27-'. mining, encouragement of, 27G. fund, establishment of, 276. regulations to be made under, avti. (See .1/)- pcihUx I.) ore, raised or smelted in province, bounty on, 276. metallic product of ore, 276. post may be of, 297. post, discovery, may be of, 297. steel, or, tamping rod not to be used, 306. stemmer, not to bo used, 306. wood, or, discovery posts should be of, 297. 1222 INDEX i I: ONTARIO— rod ^/H i/frf. Mine* Act— Citnthiiicd. iHlaiulB, contiiininR not more than 30 acres, as to, 282. Ju8tici> of the peace, Inspector mny be <■'• o/jlclo, 280. Jurisdiction, ns to offences, 314. labor, actual coat of, deducted from value of ore or mineral, In calculating royiiltles, 271. actual cost of, deducted In calculallnj? royalties on ores won from lands patented after tst January, 1900, 1272. equivalent, on mines, to be demised, compliance with working conditions. 276. condiiiuii-^ eciiiii'iied wiiii, on niiues, as to, 2U(}. lake, mining location on chain reseive on, 281. land, grant of, from Crown, must be of record under the Orent Seal, 275. lands, uusurvcyed, of the Crown, yuUidii TcmitKs Act does not apply to, 269. rent of, 287. graded according to location of, 287. leased, expenditure on, 288. subjiicent, or adjacent, liable to support for, 293, lapsing, of applications (See Aiiplii-dtiniis), 284. law, regulations, certain, after publication In Ontario Gazette to have force, and effect of, 274. laying out, mining claim, 298. lease (See Lnisrs). for location, not ti> be Issued until survey filed, 284. of surfiice rights, 296. of rich section, may be withdrawn, by regulations, 28G. or demise, may be made of mining lands. Instead of grant, 287. to be subject to covenants and conditions provided by regulation, 287. may provide for removal of machinery, when, 288. forfeiture of, for non-expendlturo, 288. for mining claim, when licensee may obtain, 297. leased, lands, expenditure on, 288. leases, of mining locations, shall contain reservations, 282. may be obtained after compliance with working condi- tions, 297. of mining rights, limitations appliciible to, 292. legal estate, owner of, c (See I'tilnil). level, may be taken charge of, by whom, 303. levels, to be ventilated, SO.^. liable to pay rent, lessee may be, on implied covi«nant, 289. license, miner's (Heo Afliirr'n /wVciiw), '290. shall be produced to inspector by licensee, it required, 300. licensee, to blaze trees, and cut underbrush, 297. has authority contained In mining license, 290, holding four claims or less may combine operations, when, 299. in default of complying with section 51, may have his claim forfeited. 299. mny abandon mining claim by giving notice to in- spector, 300, may employ persims fo assist in working, 296. may organize company to work, 296. may work, or transfer his Interest. 29G. name of, on discovery post, as to, 297, no individual, can stake more than oue claim, 297. or Inspector, to file record of mining operations, 299. person, any, may be employed by, to assist in work- ing, 296. right of, to renewal of miner's license, 295. shall produce license to inspector if required, 300. shall prove to inspector that mining license in force, if required, 300. surface rights In mining divisions, how to proceed as to. 296. to cut timber or saw-logs, may enter on lands, -92. to makt' necessary roads, 292. and remove trees, 292. to supply outline sketch to inspector, 298. to supply to inspector, notice in writing, with his name, , and number of his license, and name and claim of locality, 298. trees, to blaze, 297. who has complied with working conditions may apply for, and obtain patent, 297. work, when has right to. 290. underbrush, cut, what shall, 297. underbrush, to cut along boundary lines, 297. ;1 1224 INDEX I i! ■! ONTARIO— Continued. Mines Act — Continued. licensee, individual, Hhall nut stake out ninre than one claim, 297. mining claims, number of, which may stake out, and record, 298. fee, annual, $10, in advance, 298. to pay such as may be fixed by regulations, 298. not to stake more than four claims, in one calendar year. 298. licensees, disputes between, power of inspector as to, 280. settlement of difficulties, etc., between, 280. who are, 295. who discover vein, rights as to making out, 296. to pay fees of 10 por cent, in advance, 298. not entitled to valuable water power, 298. Lieutenant-Governor, authority of, regarding appointment of Inspector of Mining Division, 278. may declare tracts of country to be mining divisions, 294. may withdraw rich section from sale, 286. life, loss of, in mine, notice of, to be given to director, 310. limitations may bo imposed respecting locations rich in oils and minerals, 284. applicable to leases of mining rights, '292. lino, astronomical (See Astmnonticul Line), 284. lines, boundary, to be supplied by licensee to inspector, 298. liquor, place for sale of, spirituous or fermented, wages not to be paid at, 301. local officers, to receive applications for sale of mining lands, appointment of, 278. locality, of claim, to be supplied by licensee to inspector, 298. locatee, of legal estate, consent by, to exploration, 294. location, of surface rights, 296. co-owners, or co-lessees of, contribution of propor- tionate expenditure, by, 290. Crown lands withdrawn from, cannot be marked or staked out. 296. mining, form, size and price of, 281. mining (See Minimi Lncalions). regular, mining, dimensions of, 281. areas to be not less than 40 acres, 282. areas, may be composed of separate, 284. sold as mining lands, price of, 285. to be held, conditions on which, 286. when contiguous, expenditure may be made on one, 287. lode (See Apitcndi.r III.). ns to, 296. rights of individual licensee, to stake out of, 297. INDEX 1225 ONTARIO — Continued. Mines Act — Continued. loss of life, in mino, notice of, to be given to director, 310. machinery, wliat included in, 267. may be removed, according to proviso, 288. magnetic line, astronomical, preferred to, 284. maintenance, of roads, regulations as to, 273. minerals, on Crown lands, as to, 273. manager, Included in meaning of word agent, 268. maps, prior, when ambiguities may be cured, by reference to, 276. manufactory, no right of entry to explore, 294. marble, a mineral. 294. mark out, mining claim, when licensee may, 296. marking, or staking out, mining claim, 296, 297. right of, 296. discovery posts, as to, 297. ou(:, time wlion, to l)o sui)i)lied \>y liceiiseo to inispec- tor, 298. out, mining claim, what shall be deemed to be, 297. measurements, of mining claim, to be horizontal, 298. mechanical power, where employed to drive engine, etc., who may take charge of, 303. Michlpocoton, division, as to, 295. mine, nieaiiiiin ot the nnun, "iCil). meaning of the verb, 266. entrance to, who may take charge of, 303. miner, person holding miner's license may, in mining division nfiiueil in his licun.so duriujf one year, exercise autlior- ity, 277. rental of, 287, 297. right to mark, or stake out, when licensee has, 296. staked out, not more than one, shall bo, by any- individual licensee, 297. surface, boundaries t. ider, to be deemed to be lines vertical to the horizon, 298. trees standing on, to be blazed, 297. water power, valuable, what not deemed part of, 298. " mining claims," Crown lands, situated within a mining divi- sion, may be occupied and worked as, 274. does not includ(> valuable water power, 298. disputes as to existence or forfeiture, 280. as 1o extent of boundary thereof, 280. when deemed to be marked or staked out, 297. measurements of, to be horizontal, 298. number of which licensee may stake out and record, 298. recorded, to be-, in book, by inspector, 298. work on, time not to run when suspended by Order in Council, 300. staking out and holding, 29G. mining company, incorporated, may procure miner's license, 295. conditions, performance of, 295. " mining division," when the surface rights have been disposed of, in a, qiKinr, whether there is any right to stake, 269. mining division. Crown lands in a, uiinrrr, as to authority to sell or lease, as mining locations, 276. inspector, how notice to be givi>n to, when office vacant, 280. Michipicoton, 295. patents of, regulations relating to mining divisions provide for the issue of, 276. portion named in license, may be explored by persons holding miner's license, 2'.t(l. regulations relating to, provide for issue of patents of mining claims, 276. 1228 INDEX ONTARIO— Continued. Mines Act — Continued " mining divisions/' Crown lands not situate witiiin, may be sold or leased as " mining locations," 274. appointment of inspector for, 278. boundaries, limits of, may be amended, 294. declaration of tract of country to be, 295. Lieutenant-Governor in Council, may de- clare any tract of country, to be, 294. limits of, may be extended by Order in Council, 294. mines on Crown lands, in, to be subject to regulations, 295. miner's license, as to, 295. company, mining (See Mining Company), 295. fee for. 295. to be fixed. 295. force, to be in, for one year from date thereof, 295. form of. 295. grant of, to be by Director of Bureau of Mines how long in force, 295. if allowed to run out, may work forfeiture, 299. licensee, whom to be called, 295. may not be transferred, 295. mining company, incorporated under laws ot province, applying therefor, may obtain, 295. oath, proof of, under, that the mining condi- tions have 1)een duly perfonneil, necL'ssuiy { to renewal, 295. or inspector of division, properly authorized, 295. partnership, registered, may obtain, 295. person, any, may obtain, 295. registered partnership, may obtain, 295. renewal, right to, when shall have, 295. transferable, shall not be, except when, 295, with what consent, 295. want of renewal of, may work forfeiture, 299. mining license, form of, 295. renewal, application for, to be made before expiration of license, or within ten days thereafter, 295. shall be produced to inspector by licensee, if required, 300. what authorized by, 296. INDEX 1229 ONTARIO— Oon«»Med. Mines Act — Vontinued mining location, griuiteo to make expenditure in strippmg or opening up, etc., 286. rights connected with, shall revert to Her Majesty in default of expenditure, 287. " mining locations," what are, 274. application for, to be accompanied by afB- davit, 281. declaration as to, to be published in On- tario Gazette, 294. dimensions of, 281. form, size and price of, 281. in specified townships, dimensions of, 282. in unsurveyed territories to be surveyed by Ontario land surveyor, 283. in unsurveyed territories, to be connected with previous survey, 283. in unsurveyed territory, in Algoma, 281. in Thunder Bay, 281. in Rainy River, 281. in Nipissiug, 281. Lieutenant-Go/ernor may declare tracts of country to be mining divisions, •294. orders of, may be amended, 294. limits may be extended, cut off, or di- minished, 294. magnetic line, astronomical, preferred to, 284. published, to be, in Ontario Gazette, 294. regular, to be rectangular in shape, 281. reservation, of chain reserve, 281. shall conform to certain requirements, 281. •within territories of Algoma, Thunder Bay, Rainy River, and Nipissing, '282. mining operations, actual expenditure on, 288. actual (See Actual Mining Operations), 299. plant, proviso for removal of, in case of forfeiture or non-renewal, 288. record of verified on oath, to be filed by licensee, with inspector. 299. rights, price per acre, for patent of, 285. rentals of, 288. definition of, 289. reserved to Crown, may be granted, when, 293. lands reserved by the Crown, cannot be marked ■ or staked out, 290. 1280 INDEX OiiTAmO— Continued. Minea Act— Continued. misrepresentation, of age, to bo offence under Act, 304. name, of licensee, should be stamped on discovery posts, 297. to be supplied to Inspector, 298. neighbors, injury by throwing earth, clay, stone, etc., or by causing or allowing water to flow on adjoining claim, 301. nickel, royalty on, 271. and copper, royalty on, 271. after 1st January, 1900, 272. Nipissing, requirements of mining locations, in, 281. ^ti)i compoK mvnlix, provision for service on persons, 291. non-renewal, proviso for removal of machinery, on, 288. notice, required to be given, may be given to Director of Bureau of Mines, in certain cases, 280. abandonment, in writing to be given by licensee to, 300. accident, of, to be given In writing, 311. delinquent co-owner or co-lessee, to, 290. heirs of, 290. when dates from, 290. explosion or accident, to specify charicter of, 311. name, to be given in case of change of, of owner or agent, 310. new shaft, to be given to inspector of working of, 310. officers, name of, of any incorporated company, such as owner of mine, to be given, etc., 310. persons killed, to specify number of, 311. shaft, of discontinued working of, to be given to in- spector, 310. writing, in, to be given of death resulting from iici- sonal injury, 311. Xtdlum 7V;h/)».s Act, does not apply to unsurveyed lands of the Crown, 268. nursery, no right upon, to explore, 294. number, of license, of licensee to be supplied to inspector, 29S. nuisance, any unfenced shaft, pit, etc., to be, a, 305. obligation, to claim forfeiture. Crown under no, 289. obstruction, of party-wall (See Fitrty-xmll), 1:00. iiisjicctor, ill |n'rfiinii;iiK'c' df duty, an nftV'iicii, '.\\'l. occupy, penalty for attempting to, illegally, 274. " occupying any other mining claim, or persons not," struck out of Act. 296. offence, of purchasing or becoming proprietor, or interested in any Crown lands or mining claim, 278. against Act, by contractor, 312. ag<> misrepresentation of, to be, 304. consist, may, of not giving notice of change of owner- ship or name of mine to Inspector, 310. IXDUX 1231 ONTARIO— C'«n//n»c(/. Mines Act — Vonthiiicd ofl'cnce, consist, niiiy, in not givin<,' notice of accident or deiith, 311. damage, for causing, or Ciiusing or allowing wat'ei to flow upon neighbor's claim, etc., 301. description of, what shall be sufficient, 314. fence, neglect to, shiift or opening, to be, 305. foreman, may be committed by, 312. obstructing inspector, 312. officer, is guilty of, when, 278. punished, not to be, twice for tho same, 314. under any other Act or otherwise, prosecutions may be directed for, by Court, 314. wagos, payment of, at public house, etc., to be, 304. "Sffences, obstructing party- wall, 300. against Act, 311. injury. Summary Convictions Act to apply to, 314. tried, may be, before two .Justices of the Peace, 314. inspector, 314. view, conviction may be made upon, by inspector, when, 314. offlcc, of Mining Inspector, 280. contiguous to public house, etc., what not to b(>, 304. officer, violating provisions, liable to penalty, 278. definition of, 278. officers, Bureau of Mines and, 277. local, to receive applications for sale of mining lands, appointment of, 278. appointed under this Act incompetent to purchase or become proprietors of. or interested in, any Crown lands or mining claim, 278. peace, may be appointed by inspector, 281. Crown, of the, and Ministers, Acts of, 289. oil woUs, Part IV. of Act applies to all, 302. works, for treating, etc.. Part IV. of Act applies to, 302. Ontario Gazette, regulations to be published in, as to, -73. declaration of Lieutenant-Governor as to mining divisions to be published in, 295. publication of, 294. Ontario Land Surveyor, milling locations in unsurveyed terri- tories, to be surveyed by, 283. territorial division of, 282. opening roads, regulations as to, 273. aqueducts, regulations as to, 273. ditches, regulations as to, 273. expenditures to be made in, 286. race-ways, regulations as to, 273. up, expenditure on, 288. i ^s ipf 1282 INDEX OUT \mO— Continued. MlmeB Act — Vmiilnncd openings, dangerous, by reason of depth, to be kept fenced, 305. operation, actiuil mining, expenditure to be made in, 286. what is meant by, 288. operations, actual mining, expenditure on, in case of lease, 288. actual mining (See Artiiol Mining Operations), 299. orchard, no right upon, to explore, 294. Order In Council, cases requiring Executive action previous to 1845, were dealt with by, 265. amended, may be, 294. cancelled, may be, 294. Court cannot enforce specific performance against Crown, when, 275. declaration, limits of, 294. limits of mining division, may declare, 294. may extend, etc., 294. mining divisions, as to, 294. publication of, in Ontario Gazette, 294. work on mining claims, may be suspended by, 300. ore. as to, 296. blasting or breaking in roast heaps (See Regulations), 30G. deposit of discovery, 296. deposit of, discovery of, by licensee, 296. Iron, bounty to miners or producers, 276. or mineral in place, discovery post to be planted on, 297. taken for purpose of experiment, may be free from royalty, 273. ores, royalty on, 271. minerals, and, other than silver, nickel, nickel and cop- per, and iron, royalty on, after Ist Jan., 1900, 272. minerals, and, what are subject to royalty, 270. reserved to Crown, may be granted, when, 293. openings, from which may be raised, or taken, part IV. of Act applies as to, 302. works, for treating, etc., part IV. of Act applies as to, 302. organization, of company to work, as to, 296. outcropping, discovery post to be planted upon, 297. outhouse, no right of entry to explore, 294. outlines of locations, bearings of, 282. owner, agent, or, to make returns, 305. failing to make returns, to be guilty of offenc(>, 305. legal estate, of, consent by, to exploration, 294. making false return, guilty of offence, 305. mine, of, to keep registry recording employment of boy or young person, 302. of mine, when change occurs, notice to be given to in- spector, 310. lyDijx 128» ONTARIO— roH//H»/f<7. Mine* Act — (Utntinucd. owners, of mine, to keep registry recording employment ol boy or young p«rson, 30..'. parent, misrepresentatlun of age, to be liable for, 304. partnership, acreage, which may bo obtained for, 284. party wall, meaning of. 2G7. common, to be used in, by all parties as roadway, 300. fifteen feet thick, to be left between adjoining claims on Crown lands, 300. not to be constructed by any person throwing stones, etc., 30(). person obstructing liable to fine, 300. rcnioviil iif, linliility to construct new roadway, 1500. patentee, trees, to pay duns for cutting, when, 292. alluvion, not to be entitled to land created by, 282. riparian proprietor, where there is a road allowance is not a. 282. trees, may cut and use certain, 292. patent, action to set aside, when Attorney-General is neces- sary party to, 275. cases in which, has been upheld, Attorney-General being party to, 275. cases in which, has been upheld, Attorney-General not being party, 275. fraud, for, whether Attorney-Gen- eral necessary party, to, 275. patent, certified copy of, admissible in evidence, 283. Crown not bound to issue a, to claimant found entitled by Heir and Devisee Commission, 275. construction of, when other grants are admissible to aid in. 276. description in, when extrinsic evidence admitted to explain, 275. mining claims, of, regulations relating to Mining Divi- sions, provide for the issue of, 270. subsequent, cannot affect the construction of prior patent, 276. patent for mining claim, when license.^ may obtain, 297. patents, mining locations, for, shall contain reservations, 282. construing, in, reference to description by metes and bounds, may be made, 283. land, what, will pass under description in, 283. location, for, not to issue until survey filed, 284. mining claim, for, by licensee who has complied with working conditions, 297. mining rights, for, price per acre, for, 285. 78- M ! 1284 INDEX hi I li ONTARIO— Com Inucd. Mines Act — Continued. proviso, mny be proved though not specified in Information, 314. Issued prior to 4th Mtiy, 1891, royalties, etc.. In, re- pealed, 269. reservation, shall contain, of pine trees, 291. payment, iron mining fund, may be made on pro raid basis, 276. patent or lease, what necessary to be made for, 297. payments, what are included in, 290. peace offlcers, may be appointed by inspector, 281. penalty, officer, against, who violates provisions of section 18, 278. damage or Injury or allowing water to flow on ad- joining claim, for causing, 301. exemption from, in case age represented by parent or guardian, 304. indicted, person may be, for, 314. parly wall, for obstructing, 300. penalties, against Act, 311. form part of Consolidated Revenue Fund, 314. person, owner, immediate proprietor, or lessee or occupier of any mine, or of any part thereof, included in meaning of word, who is, 267. fine, who merely receives, from a mine, not included in meaning of word owner, 267. owner of the soil, who is merely the, and not inter- ested in the minerals of the mine, not included in the meaning of the word owner, 267. proprietor, who is merely a, of a mine, subject to any lease, grant or license for the working thereof, not included in meaning of word owner, 267. rent, who merely receives, from a mine, not included in meaning of word owner, 267. royalty, who merely receives a, not included In mean- ing of word owner, 267 person, young, male (See Kmplotic'), 302. personal service, necessary on heir, 291. " ])ersonally, and not through another," struck out of Act, 29 (3. pine trees, reserved In patents, 291. not to be cut, when, 292. used for fuel, when, 292. pit, included in shaft, 267. pits, Part IV. of Act applies to all, 802. to be kept fenced, 305. place, minerals in, discovery of, by licensee, 296. plan, what included in, 267. INDEX 1285 ONTARIO— CoH/ZHi/erf. Ifllinea Act — Con I In mil . plan of workings of mine to be produced to inspector on ex- iiminatlon, 280. to be shown of mine up to within six months from time of in- spection, 280. to be miirl<('d to show progress of worl Im Hiipplied l>y licousouH to inHpuc- tor, 299. of mining claim lo l)e in inspet'lor's ofllce, 297. operatlonH vciiflcd on oatli, to bo flleil by in- sppclor, 299. receipt, of rent, may waive forfoiturc, 289. not a waiver of forfeiture except it bo of rent duo on a day after forfeiture Avas incurred, li89. registered partnership, may procure miner's license, 295. registry, entries to bo made therein, 303. to be produced to Inspector, 303. record of employment of boy, etc., to be kept In, 302 Regulations, as to vontlitition, 305. accommodation to dry, and cliange clotlies, 008. accumulation of water not lo be allowed, 307. appliances for pumping, mine to be provided with, 307. arbitrators or mining boards, for appointment of, as to, 273. blasting, for, 308. boiler (See Sliain lioilrr), 309. break, tackle to be provided, 308. break, 308. cage, position of, to be shown by Indicator, 308. casing in, of ladders, 307. chain, short coupling, when, may be single linked, 308. chain, single linked not to be used, when, 308. charge, withdrawing, 308. clothes, proper place to be provided for drying and changing, 308. conical, when drum Is, as to, 308. cased, workings to be, when, 307. cover for head, to be provided, 308. communication, means of, to be provided, 307. damage to mining appliances, as to, 309. drawing or drilling out of charge, how to b<' done, 308. drum of machine, to have flanges, 308. horns, 308. on machine, when to be used, 308. when conical, as to, 308. entrances, to be fenced, 307. fence, may l)e tom[)oriirily removed, when, 807. fenced, top of .sluvft to be, 307. J ll 1238 INDEX i ! ONTAmO— Continued. Mines Act — Conthivcd. Regulations, fencing off, portions, 307. fenced, entrances to be, 307. exposed and dangerous parts to be, 308. flanges on drum of machine, 308. fly-wheel to be securely fenced, 308. foot-way to be provided, 308. guage, steam, to be attached to boiler, 309. water, to be attaoiiod to boiler, 309. guides, to be provided, 307, gun powder, for use of, etc., 306. head, for, cover, to be provided, 308. horns, drums of machine to have, 308. indicator, 308. iron or steel pricker not to be used, 306. ladder to be provided, 308. to have substantial platform, 308. not to be fixed vertically of, for hanging position, when, 308. ladders, casing in of, 307. lessee, who is. 309. line, workings to bo, when, 307. lowering persons in shaft, as to, 308. njacliiue, what shall have drums on, 308. machinery, mine to be provided with, 307. exposed, dangerous part, to be fenced, 308. man holes, to be provided, as t'^. 306. occupier, of any mine, who is, 309. owner, whom included in term, 309. ])ayment, of bounty, not to be made till regula- tions approved, 276. powd(>r, withdrawing charge, 306. pressure of steam, to be shown, 309. proprietor, who is, 309. raising persons in shaft, as to, 308. removal of fence, when, 307. relatiuj; to Miuinf* Divisions (See Appendix I.), 8;^3. road, position of, to be shown by indicator, 308. roast h-^aps, blasting, or breaking up, 306. removal, of mining appliances, as to. 309. rope, to prevent slipping, BOB. royalty, person w'^o merely receives, not owner, when, 309. safety valve (See Vahr, Stifrtu), 309. height of, in, to be ~hown, 309. gauge, to be attached to boiler, 309. secure, workings, to be, when, 307. signals, distinct and definite, means of, to be pro- vided, 307. INDEX 1239 ONTARIO— CoH'iH«ed. Mines Act— Cuiiiiinml. Regulations, slipping, to prevent ropj, 308. steam pressure, to be b-.own, 309. timber, workings to be, when, 307. to bo published in Oiitdrii, daxvttv', 273. laid upon table of Legislative Assembly, 274 under Act, 295. underground road, how, to be constructed, 306. tool not to be used, when, 306. valve, proper safety, to be provided, 309. waggons running on tram roads, 306. weight, exceeding 10 tons, as to, 306. water, flowing of, not allowed, when, 307. water gauge (See (Itnujv, Wutcr). height of, in boiler, to be shown, 309. mine to be kept free from, 307. what, shall be provided by, 277. regular, mining locations, to be rectangular in shape, 281. dimensions of, 281. removal, of case, not to be made into any Court by n'rtiimiri 281. trees, by licensees, as to, 292. party wall (See hirtii Wall). of miner's license, 295. renewal of lease of mining lands may be had, 287. at expiration of second term, 287. every 20 years, 287. proviso for removal of niachinory on non- renewal of, 288. rent, to be 60 cents per acre for lands not specified in sec. 31, s.-s. 1, 287. if unpaid, how less"e may defeat forfeiture, 289. received conditionally, may not prevent forfeiture, 289. reserved, statutory, lessee may be liable for, without ex- press covenant, 289. rental, of location, as to payment of, 284. for first year $1 per acre, 287. for each subsequent year, :'' cents per acre, payable in advance, 287. of mining rights, 288. contrlbut'.on of, by co-owners or co-lessees, 290. first year's, may be treated as purchase money, when, 291. of mining claims, rate of, 287, 297. re-entry, by Crown, after forfeiture. 289. repeal, of royalties, in patents prior to 4th May, 1891, as to, 269. report, of Inspector, to be laid before Legislative Assembly each year, 280. 1240 INDEX : ! : t ill it ONTARlO-Co7iHniied. Mines Act — Can tin mil. requirements, mining locations, to be rectangular in shape, 281. time for completing, may be limited by Com- missioner, 284. rescission, of reservations of gold and silver mines, as to, 270. reservations, of gold and silver mines, what rescinded, 2G9. may be dispensed with in case of islands, 282. for road allowance, may be dispensed with, 282. to be made in patents and leases, 282. of road allowance, when discretionary, 283. imperative, 283. of timber, 291. returns, annual, statistical (See Aitmutl Statistictil Ih'tiirnn). returns, incorrect, or false, to be deemed an offence, 305. reverter, of interest pur. lased by inspector, as to, 278. rights to Her Majesty, in default of expenditure, 297. mines luul minerals, in case of non-expenditure, 289. interest to Crown, where Crown resumes posses- sion, 290. roadway, party wall between adjoining claims, may be used, as, 300. rich section, may be withdrawn from sale, 286. ridge, of road allowance, mining location on lake or river, 281. right to stake, »/""''''' whether there is any, when the " surface rights " have been disposed of, in " mining division," lifiO. right, of marking or staking out, as to, 290. of entry what, prospector or explorer, has, 294. rights, in location, to revert to Her Majesty, 287. determination of, in case of forfeiture for, 289. surface and mining, as to, 293. riparian proprietor, patentee is not, where there is a road al- lowance, 282. riot, near public works, Act respecting, 301. Act respecting, proclamation declaring that Act not in force, 301. may be proclaimed to be in force, 301. river, mining location on, chain reserve on, 281. road allowance, mining location on lake or river, 281. as to, statutory, 282. when reservations, discretionary, 283. Imperative, :.:83. travelling, in mine, to be ventilated, 305. underground, how to be constructed (See UiiiiiJutt'in^), 30U. roads, opening, 273. ai to making, necessary, by licensees, 292. INDEX 1241 ONTARIO— Con/iH«rrf. Mines Act— Con tiniieil. roads, conHtiuction, 273. maintenance of, 273. using of, 273. rocks, works for treating, Piirt IV. of Act aiJpliuH to, ;?02. ropes, or tools. Included in machinery, 267. royalty, what liinds, ores and minerals exempt from, 269. what ores and minerals are subject to, 270. rate at which reckoned, 271. is reserved in respect of certain ores and minerals, notwithstanding that it is not expressly reserved by the grant, patent, or leas(> of the land, 27!;. what is highest rate which may be levied, 271. ore taken for purpose of experiment may be free from, 273. royaltie.'?, prior to May, 1891, repealed, 269. in respect of minerals extracted from lands patented under Free Grants and Homesteads Act, prior to 14th April, 1892, qtnuTV whether same are free from royalties, 270. how calculated, -n. when calculated, 271. when not to bi' imposed or collected, 271. reserved by section 4, to be in lieu of larger royalties reserved under section il of e Grants and Homesteads Act, prior to 14th April, 1892; iiiinnr, whether same are free from taxes, 270. prior to 4th May, 1891, what repealed, 267. terms, " of persons not occupying any other mining claim," 296. " personal and not through another," 296. " three miles," 298. " his interest," 291. heirs (See llvlrn), '2^\. 1244 INDEX m i\\ ONTARIO— CoH/in(/c<7. Mines Act— Continued. territorial divisions of Ontario, as to, 282. Thunder Bay, requirements of mining locations, In, 281. timber, licensee, entitled to notice to clear, when, 292. removal of, for clearing purposes, as to, 292, reservation of, 291. time, exploration, illegal, imprisonment for, 274. for completing requirements may be limited by commis- sioner, 284. for payment of application, how reckoned, 284. giving notice of accident, to director, 310. in each complaint for information to be laid, 314. mining operations to be carried on, for at least five months, of one man's, 299. not to run, when work suspended by Order in Council, 300. occupy, illegally, imprisonment for, 274. of employment, of boy or young person (See Employees), 302. when, application should be made for renewal of miner's license, 295. royalties begin, how reckoned, 297. application should be made, 295. claim was marked, and staked out, to be supplied by licensee, to inspector, 298. within, which application for renewal of miner's license, to be made, 295. title to Crown land, 279. prior to 14th April, 1892, 279. ton, bounty of, $1.00 per, on iron, 276. tools, iron or steel, not to be used for certain purposes (See IteuuJatUins), 30G. ropes or, included in machinery, 269. tracing of, original plan, included in plan, 267 of plan, may be made by inspector, 280. tramways, included in machinery, 267. transfer, interest of licensee, in mining claim, 296. licensee, when may, interest in claim, 296. of, in mining claim, form of (See .\pi)vnd\x 11. ). tribunal, if another than inspector appointed, decision of in- spector not to be final, 281. travelling road, in mine, to be ventilated, 305. treatment of miners, to be set forth in annual statistical re- turns, 305. trees may be cut, and disposed of, by patentee, if necessary to clear land, 292. other than pine, application to cut, to be made to com- missi(mer, 293. INDEX 1^45 ONTARIO— CoH tlnucd. Mines Aot—C(intiniivd. trees, pine, not to be cut, when, 2i)2. property of Hor Majesty, 291. reserved In patents, 291. standing, on mining claims, as to blazing, 297. which may be cut, and used, by licensee, as to, 292. trespassers, persons entering, where forfeiture not completed, may be treated as, 289. trucks, included In machinery, 262. underbrush, on boundary lines, to be cut, 297. licensee to cut, along boundary lines, 297. what licensee shall cut, 297. underground stables, to be ventilated, 305. unsurveyed lands, of the Crown, XiiUinn Tcmpiis Act dots not apply to, 2G9. territories, mining locations in, to be surveyed by Ontario Land Surveyor, 283. using of roads, regulations as to, 273. ditches of, regulations as to, 273. vacancy, in office of Mining Inspector, how notice to be given, when, 280. valuable water power (See ^V(lt^l■ I'oinr), 298. as to meaning of, 298. valuator, director empowered to appoint, when, 293. powers of, 293. value, of mineral, to be set forth in annual statistical returns, 271. of ores or minerals, what, royalty calculatcil upon, 271. values, fixed and ascertained, how, for purpose of royalty, 271. ores wou from laud patented after Ist January, IDOO, 272. vein, discovery of, as to licensee, 29(5. rights of individual licensee, to stake on, 297. (See Apinndi-r III.). discovery of by licensee, 296. ventilation, regulations as to (See UrfinhitUiUH), 305. view, conviction may bo made by Inspector upon, when, 314. vineyard, no right upon, to e.Kplore, 294. wages, average rate of, and *otal amount of, to be set forth in annual statistical returns, 304. not to be paid at public house, 304. waiver, of forfeiture, 288. wall, party (See Purttj WiiH), 300. water for mining claims, disputes as to, 280. water-power, not to be part of mining claim, if valuable, 298. not to be caused or allowed by one person to flow into or upon another claim, 301. for mining purposes, conveyances and passage of, regulations as to, 273. valuable, what not deemed part of mining claim, 298. 124G INDEX OJHTAlilO—Continned. Mines Act— Viiiiltnucd wattT-powers, valuable, what are, 298. water works, no right of entry to explore, 294. disputes, as to, betwt-en licensees, inspectors have au- thority to settle. 298. week, means what, 302. weight of mineral dressed, to be set forth in annual statistical returns, 304. undressed, to be set forth in annual statis- tical returns, 304. wells, oil (See Oil Wrih). gas (See (Jan U(7/.s). salt (See Salt mils). winding or pumping gear. Included In machinery, 267. windlass, who may take charge of, 303. wine, place for sale of, wages not to be paid at, 304. winzes, to be ventilated, 305. witness posts, as to, 297. how to be placed, 297. marks, what to contain, 297. woman (See Emphiiiw), 302. wood or iron, discovery posts, should be of, 297. post, may be of, 297. words, "agent," 268. " common school lands," 268. " Crown lands," 267, 268. " his interest," 291. "heirs" (See y/oV.w), 291. " High Court," 291. " improvements," 1!91. " inspector," 291. " lessee " (See Lc.ssrv), 291. " machinery," 267. " manager," 268. " mine," the noun, 266. " mine," the verb, 266. "mining" th(> participle, 266. " mining division," 267. " mining rights," 267. " owner," 207. " party-wall," 267. " plan," '267. " reserved to the Crown," 269. " school lands," 268. " surface rights " (See Siirfavv h'itllils), 267, 293. " stone " (See Sloiir). " surface rights," 267. " shaft," 267. INDEX 1247 ONTARIO— (7()ii of, 20, 23, 26. title to, 28. vested in Crown, 28. PRESCRIPTION (See CONTRACTS; LEASE; WORKING), air, 235. casements, 20Ci, 207, 2Xi, 2:U. English legislation reproduced, 234. support, 207. water, as to (See WATER), 233, 234, 609. PRESUMPTION, abandonment, as to, 143. ml medium fllum, as to, rebuttable, 162. ns to support, 205, 213. land, including minerals, that rebuttable, 155. lo.st grant, of, 2.'i5. minerals go with land, 155. that mining license non-exclusive, 112. water, easements, 235, 233. PREROGATIVE (See Crown; MORTMAIN), 25. PRINCE EDWARD ISLAND (See CANADA; COMMON LAW). ceded to Great Britain, 8. PROCEDURE, In criminal matters, as to legislative authority in, 261, PROFITS A PRENDRE (See LICENSE), 104, 169. 79-M 793. &. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I m 1^ 2.2 1! Hi L25 III 1.4 III 1.6 Photographic Sciences Corporation 33 WIST MAIN STRUT WIBSTH.N.Y. M5M (716)1731.4503 if f .-mf b- 6^ 1250 INDEX PROMOTERS OF COMPANY, 103. PROOF, burden of (See EVIDENCE; ONUS OF PROOF; SUPPORT). PROPERTY (See LAND; STATUTE LAW; SUPPORT; TAXATION). abandoned, liability of owner to fence, 261. manager, to fence, 261. and civil rights, French law as to, re-introduced, 3. jurisdiction as to, 794. legislative power as to, 13, 150, 794. manager liable, as to, 261. mine, right to work, is, 136. natural gas, in, 137. of Canada, what is, 795. superintendent liable, as to, 261. unused liability of owner to fence, 261. manager as to, 261. superintendent as to, 261. user of, 142, 228. water, none in (See WATER), 220. definition of, 169. PROPRIETOR, riparian (See RIPARIAN), 222. PROSPECT (See CONTRACTS ; STATUTE LAW). PHOSPECTINi; LICENSE (See STATUTE LAW). PROVINCE OF CANADA, severed, 2, 795. PROVINCIAL LEGISLATURE, legislative powers, of, 2, 793. PROVINCE, beneficial interest in lands, 8, 13, 14. Crown lands, title of, to, 8, 795. jurisdiction of, over lands granted by Dominion, 24. legislative power of, 151, 793. not named in Britisli Nortli America Act, as to, 10. precious metals, in Indian reserves, 26. prerogative of Crown, 151. rights of, where no Indian surrender, 17, 23, what Crown lands belong to, 14. PROVISO, in grant of land, 177. PUBLIC LANDS, administration of, 13, 24, control of, 13. management of, 13, 795. right to beneficial use of, 13. sale -;, 13, 29, 794. PURCHASE, of golu xii quartz from person not owner, when an ciffuiiee, 263. title, 24, 28, 81. QUARRY (See MINES). conveyance of mines and seams of coal do not pass, 39. definitions of, 38, 39. land, includeu a, 40. mines and, distinction between, 39. mines, minerals, do not include a quarry of freestone suitable for building, 38. INDEX 1251 QUARRY— Gontimied. primary sense of, implies surface worlcing, 39. stone from, a mineral, 37. surface included in, 39. QUARTZ (See MINING REGULATIONS; STATUTE LAW). QUEBEC (Sec ALIENS, COMMON LAW, CORPORATIONS, FOREIGN. CROWN, DOWER, LOWER CANADA, MINES, REGISTRA- TION), dower in (See DOWER), 188. grant of mining lands, 29. indemnity whore mining rights reserved, 156. laws in force at Union continued, 2. limits of enlarged, 3. Ordinances revoked, 3. purchase where mining rights reserved, 156. registration of title in, 199. resiliating sale, 156. right to administer, 29. Quebec Mining Law Ac(iuired rights— See 1424 and fol., and sec. 3 of thip 'let, pp. 326. 327, 328, 329, 330. Acquisition of mining lands, 1440, p. 333. Mode of acquisition, 1440 and 1441, p. 333. Price of acquisition, 1444, 144(5, 1401 ,ind 1580, pp. 334, 335, 338, 339, 359. Advertisement of sale of mininy concessions, p. 354. Affidavit for obtaining sale of mining concessions, p. 335. Aliens, privileges and rights of, p. 325. Allegations in prosecutions, p. 357. Analysis of Act of 1892, p. 320. Appeal docs not lie from conviction or judgment of inspectors, 1570, p. 357. Applications of dues, fees and fines, 1571 and fol., p. 358. Applications for permits lor mining explorations. Art. 1453, p. 337. Applicant to furnish security, Art. 1454, p. 337. Applicant to make return, Art. 1455, p. 337. Miscellaneous provisions respecting, Art. 1491 and fol., p. 343. Arbitration, costs of. Art. 1483, p. 342. Distribution of moneys. Art. 1488, p. 343. When private person retuses to mine on his own land, Arts. 1466 and fol., p. 339. Arbitrators, appointment of. Art 1473 and fol., p. 341. Duties, Art 1477 and fol., p. 341. Meetings of. Arts. 1475 and 1477, p. 341. Oath, Art. 1477, p. 341. Powers, Art. 1477 and fol., p. 341. Their award, Arts. 1477 and 1486, pj). 341, 342, 343. Third arbitrator, appointment of, Arts. 1475 and 1476, p. 341. Area of mining concessions. Art. 1443, p. 334. Arrests, penalty for preventing. Art. 1543, p. 352. Attachment, writs of, issued by inspectors, Art. 1559, p. 355. 1252 INDEX Quebec Mining Iace. Art. 1557, p. 355. Powers ns to imprisonment of defendants, Art, 1569, p. 357. Powers in giving decisions, Art. 1559, p. 355. Power to appoint constables, and with respect to them, Art. 1521, and fol. p. 348. Power to enter upon mines being worked. Art. 1524, p .?49; Art. 1559, p. 355, and Art. 1560, p. 356. Power with respect to sale of liquors at mines. Arts. 1552 and 1553, p. 354. Proceedings before. Art. 1559, and fol. p. 355. Property qualification not required. Art. 1558, p. 355. Registers to be kept by. Art. 1463, p. 356. Settle all difficulties, Art. 1561, p. 356. Interpretative and dec .latory provisions. Art. 1421, p. 323. Commissioner, meaning of. Art. 1421, sec. 14, p. 325. Concession, meaning of. Art. 1421, sees. 12 and 13, p. 324. Crown lands. Art. 1421, sec. 4, p. 324. Inferior metals, m«>aning of, Art. 1421, sec. 11, p. 324. Licensed mill or machines. Art. 1421, sec. 10, p. 324. Licensed mill or machine owner. Art. 1421, sec. 9, p. 324. Licensees, meaning of, Art. 1421, sec. 7, p. 324. Mill license. Art. 1421, sec. 10, p. 324. Mine, Art. 1421, sec. 1, p. 323. Minerals. Art. 1421, sec. 2, p. 323. Mines, Art. 1421, sec. 2, p. 323. Mining, Art. 1421, sec. 1, p. 323. Mining division, Art. 1421, sec. 3, p. 324. Mining concessions. Art. 1421, sec. 3, p. 324. Mining license. Art. 1421, sec. 7, p. 324. Party wall, Art. 1421, sec. 8. p. 324. INDEX 1255 Quebec Mining lia\r—C(inthiuc,h] Obstructing party wall or passage. Art. 1530, p. 350. Obstruction or removal of party walls or passages. Arts. 1507, p. 346. Pits, shafts, etc., not fenced In, Art. 1509, p. 347. Preventing arrest, Art. 1543, p. 352. Refusing to allow officers to visit land, Art. 1539, p. 352. Removing party walls or passages, Art. 1531, p. 350. Removing stakes, Art. 1534, p. 351. Unprovided cases. Art. 1542, p. 352. Using other than hand mills without license. Art. 1535, p. n,"l. Witnesses refusing to appear. Art. 1541, p. 352. Working without giving full description of concession, Art, l.j2s, p, 350. Periods of French law before the Revolution, 318. Period of free mining, 318. concession of all mines to one person, 318. vacillation, 318. Permits for mining explorations. DurRtion of, Art. 1453, p. 337. Petitioners wishing to mine on private lands, Art. 1467, and fol, p, 340. Pho.sphato of lime, 330. Pits to be fenced in, Art. 1509, p. 347. Power of arbitrators to have them made, Art. 1481, p. 342. Police force. Appointment of officers. Art. 1512, and fol. p. 347. Control of commissioner. Art. 1518, p. 348. Control of inspector, Art. 1518, p. 348. Duties, Arts. 1516 ,and 1517, p. 348. Laws and regulations of, 348. Powers, Arts. 1516 and 1517, p. 348. Regulations for. Art. 1516, p. 348. Salary, Art. 1512, p. 347. Posts, fixing of, on mining lands. Art. 1491, and fol. p. 343. Penalty for removal. Art. 1532, p. 350. To bo set on corners of lands, Art. 1491, and fol. p. 343. " Practical suggestions on mining rights and privileges i.. Canada," 31G. Precautions respecting excavations. Art. 1509, p. 347. Pre-emption given to owner of soil, under old French law, 317. Prerogative rights of King of France and King of England, compared, 319, Price of mining concessions. Arts. 1443 and 1444, p. 334, and Ait, 1580, p. 359. INDEX 1259 Quebec MlninK Ijuvt— Continued. Price of mining license, Art. 1461, p. 338. Price of mining oxploration, Art. 1453, p. 337. Private lands, moaning. Art. 1421, sec. 5, p. 324. private porson, meaning, Art. 1421, sec. 6, p. 324. Privilege of Umlt-holders of cutting certain trees. Art. 1448, p. 336. Ending of such privilege, Art. 1448, p. 336. Privileges of aliens, Art. 1422, p. 325. Proceedings before arbitrators. Art. 1478, and fol. p. 342. Proceedings before Inspectors, Art. 1559, and fol. 355. Procedure to obtain exploration permits and the sale of mining conces- sions, Art. 1455, and fol. p. 337. Property in minerals, dlstlncthm, gold and silver, and baser metals, 319. Property, Crown's right In all minerals not expressly conceded, is declared to be a, 320. Proprietors selling their mining rights, their duties, Art. 1442, p. 333. Prosecutions. Allegation In, Art. 1569, p. 357. Clerks of Inspectors and their fees. Art. 1562, p. 356. Fees of advocates, bailiffs, etc.. Art. 1566, p. 357. Law respecting Indictable offences and summary convictions to apply, Art. 1554, p. 354. No appeal from convictions or judgments of inspectors. Art. 1570, p. 357. Power of inspector to imprison clefondivnt and sell liis etibcis, Art. loG'J, p. 357, Suits for contraventions brought by a complainant. Art. 1555, p. 354. Suits for recovery of fines, before whom brought. Art, 1556, p. 355. Suits for royalties, in whose name brought, Art. 1555, p. 354. Prospecting allowed on lands not occupied as mining concessions or other- wise, Art. 1452, p. 337. Prospecting licenses. Art. 1452, and fol. p. 337. Duration of the license, Art. 1453, p. 337. Price of the license. Art. 1453, p. 337. Protection of workmen in mines. Art. 1548, p. 353, Public lands, moaning of. Art. 1421, sec. 4, p. 324. Purchase of mine by holder of liconso, Art. 1456, p. 337. Quarts mill-owners, duties. Art. 1504, p. 345. Quartz mill, license for. Art. 1502, p. 345. Reports by owners. Art. 1505, p. 346. Recovery of fines, suits, before whom brought. Art. 1556, p. 355. Registers to be kept by inspectors and open to public on payment of fee, Art. 14o3, p. 355. Registers to" be kept by mill owners. Art. 1504, p. 345. Regulation by Lieutenant-Governor in Council, Art. 1580, p. 359. Regulations under Act, 1892, no general, have been made, 329. Report to bo made by applicant for exploration or mining permit. Art. 1455, p. 337. 1200 JNDEJL Quebec Mining l,tLvr—<'oiilliiiir(l. Report to be sent monthly, by mlU-owners, Art. 1505, p. 346. Ifi's Xullliis, view of, urged, 319. Reservi' of mining rights, Art. 1423, p. 325. Reserve of rights of cutting timber on mining concessions, Art. 1448, p. 336, Right of way, how acquired. Art. 1489, p. 343. Rights of aliens. Art. 1422, p. 325. Riots In vicinity of public works, Art. 1545, and fol. p. 353. Royal prerogative, view of, urged, 319. Royally. Amount of. Art. 1435, p. 331. In favor of Crown, Art. 1435, p. 331. In what It consists on certain minerals. Art. 1435, p. 331. Suits for, In whose name brought. Art. 1555, p. 354. Sale of mining concessions. By auction after advertisement, Jr^ct. 1445, p. 335. Conditions of, Art. 1440, p. 333. Not to be granted unless real Indications of minerals and spoclmcns produced with affidavit. Art. 1447, p. 335. Of either mining rights or property, resolves confusion, 321. Price of. Art. 1444, p. 334. Upset price, Art. 1445, p. 335. Security to be furnished by applicant for permit for mining exploration, Art. 1454, p. 337. Seignior's reduction in purchase of mining righ's, when, 321. Seignior, can purchase mining rights over tue whole seigniory, but not over a less extent, 321. or the censltaire, neither he nor she, lan acquire more than tlie maximum amount, 321. Settlers under location ticliet, 321. Shafts, to be fenced in. Art. 1509, p. 347. Soil, ownership of, by Civil Code, carries what fs above and below it, 321, excavations, below, as to, 321. Specimens to be produced with affidavit, Art. 1447, p. 335. Stakes, penalty for removing. Art. 1534, p. 3M. Statutes, based on old Fr"ii?h law, 323. Streams, Art. 1533, p. 351. Suits (See Prosecntionti). Summoning of defendants and witnesses before inspector. Art. 1561, p. 356. Superior metals, meaning of, Art. 1421, sec. 11, p. 324. rights of purchase of, 321. Survey of un.surveyud c'niice.s.siiiii. Art. 14;.'j;i. Ticket, location, settlers under, 321. Timber limits, owners of, may cut timber for certain time on mining concessions sold. Art. 1448, p. 336. Title, grantees under gratuitous, 320. Transfer of mining rights, notice of 30 days to be given to tlie commis- sioner, Art. 1442, p. 333. Underground mining concessions, meaning of. Art. 1421, sec. 13, p. 324. Unsurveyed mining concessions to be surveyed. Art. 1439, p. 333. INDEX 12U1 Quebec Mining! Law-Contlniwd. Upset price at sale of mining concessions, Art. 1445, p. 335. Vacillation, porlod of, 318. Valuation of mining lands. Art. 1579, p. 359. Wati-r-coursi'S on mining conceaalons, Art. 1475, p. 341. Penalty for not complying with decision of Inspectors as to. Art. 1533, p. 351. Wltnceses, penalty for refusing to appear, Art. 1544, p. 352. Summoning and examination of, Art. 1545, and fol. p. 353. Women or girls not to be employed In the WDrking of mines, Art. 1548, p. 353. Work, right to, when land acquired by settler's patent previous to July :24th, 1880, with reservation of the mining rights, cannot without purchasing the mining rights, 321. Work, right to, when land acquired by settler's patent previous to July, 1880, without reservation of the mining rights, may work without such purchase, 321. Workmen In mines, protection of. Art. 1548, p. 353. QUBBEC ACT (See TABLE OF STATUTES). QUEEN (See CROWN; MAJESTY). QUEEN CHARLOTTE ISLAND (BRITISH COLUMBIA). (iUESNELLE (BRITISH COLUMBIA). QUIET ENJOYMENT (See LEASES). RAILWAY BELT, letters patent may be issued under Great Seal of Can- ada, 33. RAILWAYS, minerals under, 236-242. British Colnmbla. compensation, reasonable, to be given mine owner by company, for damages caused by examination under section 26, 242. railway, mines under, same provisions as in Ontario (Soo Ii((il- uay, Ontario), 242. Canada. company, meaning of, 242. railway, mines under, may not obstruct, interfere or injuriously affect running of, 242. workings of mines under railways, not to be obstructed, when, 242. New Brunswick. railway, mines under railways, makes no special provision as to, 241. Nova Scotia. land, what included, 242. mines, under railway, Nova Scotia Railway Act makes no pro- visions as to, 242. railway, mines under. Nova Scotia Railway Act makes no pro- visions as to, 242. 1262 JND^X RAILWAYS, iiiineralH under— Gontimied. Ontario. additional expense (See Expenses), 240. expense incurred by, to Ije paid by company to owner, 240. airways, cut and made, may be, when, 240. made, not to bo, without consent in writing of Com- missioner of Public TVoikH, 240. so as to injure railway, li40. hinder passage on rail- way, 240. apparatus of owner, may be used by company, for purpose of inspection, 241. arbitration, disputes as to, between company and owner. 240. coal, not mentioned in Ontario Act, 238. company, apparatus or machinery may use, of ownor for pur- pose of inspection, 241. entitled to notice of intention to worlt, 238. expense, recover by action, occasioned by default, may, 240. expenses, to pay to owner additional, incurrod by reason of severance, 240. intention, to give notice of, to enter and inspect, 241. value of working, may show to Commissioner of Pub- lic Works, 238. comper.sation, determined, must be, by indications and pro- babilities disclosed by evidence, 231t. division of, between tenants for life, and re- maindermen, 239. owner, to be made to, 238. settled, to be, in case of no agreement as to, as in Acts ])roviiled, 238. contents, of land need not be proven by costly tests, 239. damages, working of, improper, to be made good by owner, 239. discovery, mines, of distance of, from railway may be had from company, 241. dispute, owner, between company and, as to settlement of, 240. drainage of mines, how to be made, 240. expenses, of construction, by company of necessary works to protect railways, as to, 241. disputes, touching amount of, as to, 240. occasioned to company, by owner's default, may be recovered by action, 240. experiments, costly, need not be made, 239. forfeit, person refusing to allow company to enter and inspect, may be liable to, 241. gateways, may be cut and made, when, 240. not to be made so aa to hinder passage on railway, 210. railway, 240. INDEX 1263 PAILWA\S, minerals under — Continued. Ontario — Continued. headways, may be cut and made, when, 240. not to be made, so as to hinder passage on rail- way, 240. Injury, apprehended, to the railway, as to, 240. inspection, of mines, lawful by company, after notice given, 238. person interfering with right of, forfeit certain sum to. 241. Iron, company not to be entitled to any mines of, 236. lessee, entitled to pay additional expenses incurred by reason of severance, 240. may work mines if company do not treat before 30 days, 239. losses, disputes touching amount of, as to (See Expcnscn), 240. machinery, of owner, may bo used by company for purpose of inspection, 241. minerals, meaning of term, 238. not purchased by company, as to payment of value of, 240. under railways and highways, 236. mines, in solido, and without any exception, reserved to mino owner, 237. meaning of term, 238. mines, and minerals within 40 yards from railway, as to work- ing, 237. if expressed in name of conveyance, will pass, 230. If expressed, or convoyed, will pass, 236. not purchased, deemed to be excepted in conveyance, 236. notice, after. In regard to improper workings, if risk continued company may construct nocessary works, 241. by company, to owner, to bo in writing, 241. In writing, of intention to work, to be given company, 238. may be given by company to owner of intention to en- ter and inspect, 241. may be given by company to owner, regarding improper workings, 241. to be given 30 Jays before comraencemont of work, 238. occupier, entitled to be paid additional expenses incurred by reason of severance, 240. may work mines if company do not treat before 30 days, 239. owner, entitled to additional expenses, incurred by reason of severance, 240. may work mine, if company do not treat before 30 days 239. to make good, damages, by improper working, 239. ^ ! Mi; li r i: 1264 INDEX RAILWAYS, minerals under — Gontinued. Ontario — Vouti ii ucd. owners, of adjoining mines, on both sides of railway, rights of. 240. parts, only entitled to such, as may be necessary to be ust'd in construction, unless purchased, 236. purchase, company only entitled to minerals purchased, 236. questions, between company and owner, as to settlement of, 240. railway company, may acquire mines, 236. may enter and inspect, for the purpose of investigation, as to, 241. may not work mines, as part of regular oc- cupation, 236. obligation of, to ascertain if minerals requi- site for support after notice served, 237. railway, minerals under, as to, 236. refusal, by owner or person, to permit company to enter and inspect, renders offender liable to forfeit, 241. removal, may be made by company, if not by owner, 239. repairs, may be made by company, if not by owner, 239. severance, losses incurred by reason of, to be paid by company to owner. 240. station, expropriation of mines, as site for, 236. tests, costly, need not be made, 239. ventilation, how to be made, 240. water levels, may be cut and made, when, 240. not to be made, so as to hinder passage on rail- way, 240. work, improper, to be made good by owner, 239. notice of intention to, to be given to company, 238. owner may, if railway company do not treat within 30 days. 239. to be done, in manner proper and necessary, 239. according to the usual manner of working, 239. working, continuous interruption of, additional expense incurred by, as to, 240. if prevented by apprehended injury, how may be pro- ceeded with, 240. mines, as to. 240. about to be, discovery of, by railway, 241. mines and minerals, within ^0 yirds of railway, as to, 237. notice to be given 30 days before commencement of, 238. of mines, contrary to Railway Act, as to, 241. discovery of, by railway, 241. of parts of mines, discovery of, by railway, 241. restrictions, as to, 240. so as to damage railway, 241. INDEX 126^ KAILVVAYS, minerals under— Continued Qnebeo. company cannot work mines, unless WGrking mines are within statutory powers, 241. may acquire mines, although it may not work them, 241. and, alienate mines, although it may not work them, 241, mines, under railway, no special provisions in statutes as to, company, may acquire, and alienate them, 241. mining rights, not presumed, to be observed, when, 241. railway, mines under, no special provisions in statutes, as to 241, Water, diversion of, 233. RAINY RIVER DISTRICT (ONTARIO). RAT PORTAGE (ONTARIO), 16. RATING (See TAXATION). I{ECEIVER, when mortgagor entitled to, 190, RECORD (See STATUTE LAW). FREE MINER'S (See STATUTE LAW), RE-ENTRY (See LEASE). REFUGES (See STATUTE LAW). REGALIA (See PRECIOUS METALS). REGISTRATION (See LAND TITLES ACT, LICENSE, TAX\TION). assignments, 195. British Columbia, in, 201, effect of, in N. S., 200. Ontario, 194, 195. equitable lien, 194. instrument defined, 200. lease of, in N. S., 200. mortgage before patent, 195. New Brunswick, in, 199, 200. North-West Territories, 201. notice, 194, 200. Nova Scotia, in, 200. Ontario, in, 107, 194, 197. priority of, 194, Quebce, in, 199. Registry Act, Ontario, 194. REGULATIONS (See MINING REGULATIONS; STATUTE LAW; WORKING), statutory, mining, 145. RELIEF, for forfeitures against (See LEASES), 132. REMEDY (See PARTICULAR TITLES). RENEWABLE (See LEASE; STATUTE LAW). RENT (See LEASE), 118, REPAIR, easement, 206. 80— M J :i;i 1266 INDEX REPEAL, effect In Canada of repeal of English Act, 5. in England not binding In Canada, 6. RESCISSION (See CONTRACTS). RESERVATION (See DEED, EXCEPTION). construction of, 165, 167, 174. construed strictly, when, 177, 212. Crown grant, in, 159, 325. defined, 164. effect of, 167, 325. Implied, of easement, 233. minerals, of, 174. what operates as, 165. what ambiguous, 175. RETURNS (See STATUTE LAW). REVELSTOKE (BRITISH COLUMBIA). RIGHT (See SUPPORT). derogate from grant, to, 158, 176. land, right to resume part of land granted by Crown, 159. mines, to work incorporeal hereditament, 156. mine, to, for precious metals, 26. work mines, to (See LEASE). RIGHTS, incidental, 161, 170. Incidental to grant, 158. preserved by Quebec Act, 3. r.IPARIAN proprietor (See RIPARIAH^ RIGHTS, WATER), 221, 159. patentee not, when water reserved, 160. rights of, 161, 219, 609. rights (See WATER), 219. RIVER, definition of, 720. parts of, 164. RIVERS (See WATER), 220. RIVER CLAIMS (See STATUTE LAW). ROADWAY (See WAY). ROCK IN PLACE (See STATUTE LAW), 517. ROSSLAND (See BRITISH COLUMBIA). ROYAL MINES (See PRECIOUS METALS). 799. PREROGATIVE (See PRECIOUS METALS). ROYALTY (See LICENSE; LEASE; STATUTE LAW). ROYALTIES (See .11 It A liEdAUA, PRECIOUS METALS), belong to Provinces, 12, 795. In B. N. A. Act, 27. meaning of, 25. rights of tlowresa (See DOWER), what are, 26. RULE ejus dan i/i'mtis, 169. RUPERT'S LAND (See CANADA), 10. SALE (See CONTRACTS; DOWER; GRANT; LEASE; PARTITION; REGISTRATION; STATUTE LAW), bill of, 134, 135. INDEX 1267 SALE — Continued. land, of, where minerals reserved, 166. minerals, of, 54, 115, 334. partnership property, 142. partition, in lieu of (See PARTITION), 192. power of, where Indian title not surrendered, 17, 23. public lands, of, 29, 794. resiliatlng, in Quebec, 156. unreserved, of immovables, carries mining rights, 156 SALT WELLS (See STATUTE LAW). SAND, not a mineral, when, 38. SASKATCHEWAN, boundaries of, 31. regulations, 691. SAULT STE. MARIE (ONTARIO). " Saving and reserving," good words of exception, 165. SCHOOL TAX (See TAXATION). SCOTCH LAW, water as to (See WATER), 221. SEA (See B. C, N. B., N. S., STATUTE LAW). SEAL, Great, what to be u.se(l, .S,*?, 275. SEAMS, mineral substance lying in, called mine, 36. SEIGNEUR, 319. SEINP7 RIVER (ONTARIO). SERVIENT TENEMENT, repaid, 206. SERVITUDE (See WATER, EASEMENT, WORKING), 136, 227, 229, 327. SETTLED ESTATES, British Columbia, 202. mineral may be reserved, 202. Ontario, 202. SEVERANCE (See WRONGFUL ABSTRACTION; RAILWAYS; SUP- PORT), rights and liabilities should be specified in instrument of, , 123, 164. rights consequent upon, 175, 327, 208. tenement of, 55, 233. SHARES, company, in (See CONTRACT). SHAFT (See STATUTE LAW). SHOAL LAKE (ONTARIO). SHORT FORMS of Leases, 127. SILVER (See PRECIOUS METALS; STATUTE LAW), not a mineral when others named, when, 40. SLATE, concern when held to be a mine, 38. quarry included in mines, 37, SLEEPING RENT (See LEASE), 126. SLOGAN (BRITISH COLUMBIA). SOCAGE, free and common in Upper Canada, 4. SOIL (See LAND). containing the mineral, included in mine, 36. layer of, sustaining vegetable life, not included in the word mineral, 34. meaning of, 40. SOVEREIGN (See MORTGAGE LAW). 1268 INDEX SPECIAL PURPOSE, grant of land for, 158. SPECIFIC PERFORMANCE (Sec CONTRACTS). SPECITLATION (See MORTGAGE). STAKING OUT (See STATUTE LAW). STANDING BY (See DELAY, WORKING), 141. STATE or NATURE (See DOWER). STATUTE LAW (TABLE OF CONTENTS; TABLE OF STATUTES). British Columbia, 316. Dominion, 691. Now Brunswick, 361. Nova Scotia, 401. Ontario, 265. Quebec, 316, "Superintendent," 2(58. STATUTE LAW (See TABLE OF STATUTES). STATUTE OF FRAUDS (See FRAUDS, STATUTE OF). STATUTES (See BRITISH STATUTES; TABLE OF STATUTES). English, may be enforced as to part, 6. what English, in force, 7. STATUTORY MINING REGULATIONS. 145. STICKEEN TERRITORIES, 11. boundaries of, 801. how administered, 12. now included In Yukon, 12. STICKEEN RIVER (BRITISH COLUMBA). STIPULATION that grant be derogated from, 158, 176. ST. LAWRENCE, bed of. In Crown in right of Province, 163. STOCK (See SHARES). STONE, a mineral, 35. dug from quarries, a mineral, 37. stratum of, included In minerals, 37. STRATUM, reserv* •. or granted, 167, 179. STREAM (See AD MEDIUM FILUM, DOMINION, QUARTZ, STATUTE LAW, WATER). SUBJACENT mines (See SUPPORT). SUBSIDENCE (See LEASE, SUPPORT), 413. SUBTERRANEAN water (See WATER), 223. SUDBURY (ONTARIO). SULTANA ISLAND, surrender of, (ONTARIO), 15, 18. SUPPORT (See GRANT ; LEASE ; STATUTE LAW ; SURFACE WATER), accidentally flooded mine, 204. agreement as to, 158, 207. buildings, 205, 210, 217. building, support, right to, how acquired, li05, 206, 209, 210 217. burden of proof, 205. as to right of, 205. clear words necessary to exclude, 122, 205. common right as to, 205. INDEX 1269 SUPPORT— Contin ned. compensation, 211. effect of, 216. consequence, of right may be that mines cannot be worked, 203. damages, 208. damage, by subsidence, 218. derogation from right of, 158, 213. derogate, grantor, cannot, from grant, 209, 211. dominant tenement (See Easement). easement, 206, 207. acquired, how, 206, 217. repair, entry to, 206. repair, owner of dominant tenement must, 206. flooded mine, pumping out, 1.'04. general rule as to, 203. grant, of right of support, 209. grantee of minerals, rights of, 215. hydraulic mining, support as to, 209. implication of right of, 209. increased burden, 206. inference at common law, 213. injunction, restraining injury to, 203, 211. land, grant of, 211. lateral, 203, 214. severance, 208. lessor, cannot derogate from grant, 209. right of support of, 212. maxims (See Maxims). may be excluded, 204. mine owner. 213. reserved, where, 174, 214. nature of right, 206. pillars, 215. prescription, 207, 217. easements, 207. support, 207. presumption as to, 213. principle, as to interference, 204. railways, right to, 210. renounced, right may be, 204. reservation, construed strictly, 212. minerals, of, 173, 175, 214. right of, 156, 212, 412. of absolute, 208. depends on terms of document, 123, 156. not qualified, 203. of lessor, 212. of, protected by injunction, 174, 203. 212. of, may be varied, 214. 1270 INDEX fiVPFORT— Continued. right, waived, may be, 204, 213. to work subjacent mines, 211. to waive, 213. rights of griinteo of minerals, 215. rule as to, 122, 175, 207. may be waived, 204, 213. servient tenement (See Eascmml), severance, of ownership, vertical, 208. lateral, 208. specific, where grant for, 158, 209. Statute of Limitations, support, 208. subsidence, 208. subjacent mines, support, 208. strata, support from, 212. subsidence, 216. compensation for, 218. damage, 218. excavation, caused by previous, 218. injunction, 203. liable, who, for, 217, 218. Statute of Limitations, 208. subterranean water, 204. support from, as to, 204. surface, description of, 215. disturbance, 207. enjoyed, to be, 174, 205. enjoyment of, 207. owner, prima facie, entitled to support, 175, 213, 214. undermined, may be, 215. compensation for, 215. vertical support, 203, 214. waiver. 204, 213. where additional wanted, 216. compensation, 215. grant for specific purpose, 209. whether right is easement, 206. of property, 206. working, causing subsidence, 215. works, right to support of, 158. SURFACE (See LAND, SUPPORT), damage to, 174. duties of owner of, 164. for agricultural purposes, not a mine, 34. meaning of, 40, 156. minerals and, severing title, 109, 155, 157, 55. Ontario, in (See ONTARIO Mines Act). owners, rights of, 156, 175, 207, 214, 224. power to destroy, 123, 158, 174, 214. right to let down, 156, 205, 215. user of, 144. INDEX 1271 SURFACE RIGHTS (See STATUTE LAW). Ontario, in (See ONTARIO Mines Act). SURFACE WATER (See WATER), 224. SURRENDER (See INDIANS, INDIAN TITLE), by operation of law, 441. TAILINGS (See STATUTE LAW). TAXATION. British Columbia, in. account, books of, proper, to be kopt upon premises, 250. active production, mine in, 249 appeal Court of Revision, power of, 251. objfcts before, 250. assay, of samples or specimens, 250. object to, how to be disposed of, 251. value of ore may be dotermined by, 250. assessment, of mines and minerals, 248. assessed value, basis of, 248. duty of, 249. assessor, information to be supplied to, 249. descend pits, shafts, and use tackle, etc., for certain purposes, may, 250. books, may examine, 251. authority, of assessor, if not satisfied with correctness of return, 250. distress or sale, shall have power to collect by, 251. extracts from books, may take, 251. ingress, shall have free, 250. of account, proper, to be kept upon premises, 250. shall contain record of weight and value, 251. return, if not satisfied with, authority of, 250. to notify manager, 250. carrying ore from premises, when unlawful, 249. cement, mine for gold. Included in mine, 248. circumstances, what, to be kept in books 251. claim, mineral, owner or manager of, 249. coal not Included in term mine, 248. collection, authority of assessor as to, 251. combination of elements, 248. Court of Revision, appeal, objections, before, 250. revision and appeal, power of, 251. Crown, to have lien for tax, 251. Crown tax, amount of, 248. cu™ ilative exercise of powers, may be, 251. date of sittings, notice of, to be given in writing, 251. distress, assessor may collect by, 251. districts, different, may vary periods when taxes due, 248. 1272 INDEX TAXATION— (7..»i given, 251. to assessment, how to be disposed of, 251. ore, market price of, basis of, 249. not removed from mining premises not liable to taxation, 249. quantity and value of, how determined, 250. remaining unsold, not liable to taxation, 249. remove from premises, when unlawful, 249. shipping of oru from premises, when unlawful, 249. silver (See Mhurul) 248. sittings, date of, to be given in writing, 251. smelter, returns, to be, referred to in case of dispute, 249. record of, to be kt'pt in books, 251. Speedy Incorporation of Towns Act, 1897, taxation of laud pur- suant to, 252. stratum, any natural, included in mine, 248. substances gained, taxation on, 248. gotten, taxation of, 248. mineral-bearing, unsold or removed, not liiiblu to taxation, 249. mineral-bearing, quantity and value of, how de- termined, 250. mineral-bearing, value of may bo* determiiud by assay, 250. mineral-bearing, sold, record of, to be kept In books, 251. mineral-bearing, what may be removed from pre- mises, 251. raised taxation, 248. sums, payable in accordance with returns, payable to assessor, 249. taking ore, from premisi'S, when unlawful, 249. tax, when due and payable, 249. imposed, shall constitute lion, 251. taxation, of mines and minerals, 248. time, length of notice of appeal, to be given, 251. time to time, information to bo furnished to assessor from, 249. tninsmission, of returns, on failure of, penalty for, 251. unlawful acts, regarding shipping ore, etc., 249. value, basis of, assessed, 248. ore, of, how determined, 250. of ore, etc., to be recorded, 251. particulars of, to be kept in books, 251. vein, included in mine, 248. weight, particulars of, to be kept in books, 251. of ore, etc., to be recorded, 251. written notice, objections to be given, 251. INDEX M 275 TAXATION— Oonhnned. Manitoba, In. mines and minerals, taxation of, in Manitoba, 253. no special provision as to ta cation of mines and minerals, 253. taxation, of minos and minerals in Manitoba, no special pro- vision as tu, 'J53 New Brnnswlok, in. appralBi'ment, of real and personal property, basis of, 247. authority, of Council, to exempt, 247. buildings, may be exempted, 247. cash value, full, basis of rating, 247. council, municipal, authority of, regarding exemption, 247. exemption, authority of municipal council regarding, 247. indebtedness, reduction for, to be considered in appraisement, 247. machinery, may be exempted, 247. period, during which plant, etc., may be exempted, 247. personal property, how rated, Ml, plant, may be exempted, 247. property, real and personal, how rated, 247. rating, of real and personal property, 247. real property, how rated, 247. reduction for Indebtedness, to be considered in appraisement, 247. value, full cash, basis of rating, 247. works, may be exempted, 247. North-Weit Territories, in. assessed value, of property, basis of levy, 253. different proportion, not permissible, 253. direct taxes, what levied upon, 253. distinction, none to be made in one or more kinds of property, 253. exemptions, not liable to taxation, 253. hereditaments, included In term land, 253. Income, liable to taxation, 253. kind of property, no distinction to be made in, 253. land, liable to taxation, 253. moaning of, 253. levy, of taxes, shall be made, upon what property, 253. basis of, 253. mines. Included In term land, 253. personal property, liable to taxation, 253. property, real and personal, liable to taxation, 253. proportion, not to be different, 253. rates, what levied upon, 253. school tax, usually largest item in municipal taxes, 253. taxes, what levied upon, 253. tenements. Included in term land, 253. value, assessed, of property, basis of levy, 253. 1276 INDEX T AX ATIOl^ -Continued. Nova Scotia, In. assessed value, levy to be in proportion to, 248. assessment, for local and direct taxes, 248. council of municipality, power of, as to taxes, 248. kinds of property, no distinction In the, 248. levy, of local and direct taxes, 248. municipality, power of council of, as to taxes, 248. poll tax, local and district, taxes shall be raised by, as to, quar- ter. 248. power, of council of municipality as to taxes, 248. property, real and personal, levy upon, whole, 248. no distinction between kinds or Eoecies, 248. species, of! property, no distinction in the, 24b taxes, local and direct, how raised, 248. value, levy to be in proportion to the assessed, 248. Outario, in. accidents, risks of ordinary, by fire, 246. acreage, annual tax of, 246. affixed to the land, things, what included, 244. Algoma, tax In territorial district, 246. annual sum to be provided against risks of explosion and flood- ing, 246. appraised value, to be basis of assessment, 244. assessed value, to basis of assessment, 244. balance, of gain over loss, true meaning of income, 245. buildings included in land, 244. business, commercial, for a year, moaning of, 245. cash value, to be basis of estimate, 244. commercial business, for a year, meaning of, 245. computation, of " balance of gain over loss," meaning of, ?AG. costs, on sale of land, for arrears of taxes, 246. debt, just, from a solvent debtor, value of, on same basis as, 244. debtor, value on same basis as on appraisement of a just debt from a solvent, 244. direct taxes, how levied, 244. districts, territorial, taxes in, 246. entire year, meaning of, 245. equality, of levy, 244. erections, on land, 244. exemptions, what are, 244. expenditiiro, other than repairs and renewals of fixed plant and buildings, 246. expenses, working, meaning of, 246. explosion, and flooding, 246. fire, indemnity against, 246. loss by, 246. risks of ordinary accident by, 246 INDEX 1277 TAXATION— Contimted. Ontario, in — Continued. fiscal year, meaning of, 245. flooding, risks of explosion and, 246. fossils, included in term land, 244. fund, capable of being assessed, meaning of, 245. gain, balance of, over loss, meaning of, 245. income, derived from any mine or mineral work subject to taxation, 245. meaning of, 245. means the balance of gain over loss in the fiscal year, or for a period of computation, 246. Indemnity, against a loss by fire, etc., 246. land, what included in, 244. covered with water, 244. lands, mineral, to be valued and estimated on basis of use for agricultural purposes, 244. levy, mode of, 244. local taxes, how levied, 244. loss, by destructive agency of time, inevitable, 246. losses, items of, not to be excluded, 245. machinery, taxation of, 244. Manitoulin, tax in territorial district, 246. minerals, taxation of, 244. mineral lands (See Landu, Mineral), 244. mines, taxation of, 244. belonging to Her Majesty, not included in term land, 244. municipal taxation, how levied, 244. neighbourhood, mineral lands to be valued and estimated on value of other lands in, for agricultural purposes, 244. operations, extending over entire year, 245. peril, Indemnity against loss by, 246. personal property, liable to levy, 244. plants, fixed repairs and renewals of, 246. profit, apparent, meaning of, 245. items of, not to be solely considered, 245. property, liable to taxation, what, 244. whole rateable, liable to levy, 244. proportions, not to be different, 244. Rainy River, tax in territorial district, 246. rates, municipal, etc., how levied, 244. real property, what included in, 244. liable to levy, 244. real estate, what included in, 244. realty, taxation of, 244. renewals, of fixed plant and buildings, whether included, 246. repairs on fixed plant and building, whether included, 246. ricks, of ordinary accidents by fire, 246. of explosion and fiooding, 246. sale, for arrears of taxes. In territorial district:;, 246. 1278 INDEX TAXATION— Couhnttei. Ontario, in — Continued. storm, Indemnity against loss by, 246. taxation, income from any land or mineral worked subjuit to 245. taxes, municipal, etc., how levied, 244. territorial districts, territorial taxes in, 246. Q'hunder Bay, tax In territorial district of, 246. time, inevitable loss by destructive agency of, 246. trees, growing upon land, assessment of, 244. underwood, growing upon land, assessment of, 244. value, assessed, basis of levy, 244. to bo estimated at their cash, 244. work, mineral, income derived from, subject to taxation, i;45. working expenses, meaning of, 246. year, entire, meaning of, 245. Qnebec, in - apportionment of municipal taxes, must bo fair, 247. buildings, existence of, when to bo taken into consideration, 247. code, municipal, provides for taxation, 246. county purposes, municipal taxes imposed on taxable propirty for, 247. crown, not liable for municipal taxes, 247. land, taxable property, 246. dependencies, existence of, when to be taken into consklciation, 247. duties, of valuators, 247. , excavation, existence of, when to be taken into considenition, 247. exemption, of mining rights from municipal taxes, 247. exemptions, privileged debts are exempt, from formalliy of registration, 247. existence of mine, when to be taken Into consideration, 247, Immovable property, valuation of, 247. method of valuation of, 247. increased value, when to be taken into consideration, 247. lands, mining, valuation of taxable, method of, 247. local purposes, municipal taxes are regarded as privileged, 247, location tickets. Crown lands occupy whether under or wiilumt deemed to be taxable property, 246. machines, existence of, when to be taken into consuleratlon, li47. mills, existence of, when to be taken into consideration, 247. minerals, existence of, when to be taken into considoratinn, 247. mine, existence of, when to be taken into consideration, 247. mining rights, are exempt from municipal taxation, 247. municipal code, provides for taxation, 246. taxes, cannot be recovered from the Crown, 24C, mining rights are exempt from, 247. INDEX 1279 TAXATION— OontwHed. Quebec, in — Coiithnicd. ores, existence of, when to be taken into consideration, 247. pits, existence of, wlien to be talten into consideration, 247. privileged debts, municipal taxes are regarded as, 247. property, subject to the payment of taxes, -47. immovable, valuation of, 247. proportion, according to valuation roll, and taxable value, 247. registration, municipal taxes are exempt from formality of registration of, 247. shafts, existence of, when to be taken into consideration, 247. structures, existence of, when to be taken into consideration, 247. taxable property, what is, in Quebec, 246. value, municipal taxes are regarded as privileged debts, 247. mining lands, method of valuation of, 247. taxation, municipal, mining rights are exempt from, 247. taxes, municipal, cannot be recovered from the Crown, 246. tunnels, existence of, when to be taken into consideration, 247. vahi' creased, when to be taken into consideration, 247. valuiKors, duties of, in valuing, 247. valuation, of taxable mining lands, method of, 247. TENANCY IN COMMON, inconvenience of, 140. TENANTS IN COMMON (See CO-OWNERS; PARTITION), 192. TENEMENT, includes mine, 41. TENEMENTS, 156. TERRITORIES (See DOMINION), annexed to Canada, 11. defined, 10, 201. laws continued, 11. section 109, B. N. A. Act not applicable to, 12. TERRITORIAL (See CROWN). REVENUES, 7. TESLIN (BRITISH COLUMBIA). THUNDER BAY (ONTARIO). TIDE, flux and reflux not test of navigability in Canada, 1G3. TITLE (See ABSTRACTION, CROWN). as between vendor and purchaser, 81. covenants for, in Ontario, 177. deeds on assignment of dower, 182. minerals, to, 166. not affected by Quebec Act, 3. surface and minerals may be sevei'ed, 155. to Crown lands, 7. when valid, 28. wrongdoer as against, 155, 254. TORRENS SYSTEM (See LAND TITLES ACT). TRADE, mining is, 133. Tl{ADlN(i (See CONTRACTS, tit. coinpiinies, C()MPA.S1ES). 1280 INDEX TRAIL (BRITISH COLUMBIA), TRAMS (See LEASE). TRANSFER (See CROWN LANDS). mines, of, 158. TREATY (See ASHBURTON), 8. North-West Angle, No. 3, 15. of Paris, French possessions ceded, 3. effect of. 3, 320. Russia and Gt. Britain, between, 796. U. S. A. and Gt. Britain, between, 797. of Utrecht, 7, 8. TRESPASS (See ABSTRACTION), 133, 142, 259. TROVER, 259. TRUSTEE (See CONTRACTS). TRUST or interest in B. N. A. Act, 27. TRUSTS, existing, protected, 12. TUNNEL (See STATUTE LAW). ULTRA VIRES (See CANADA, CONTRACTS, RAILWAYS), 148. UMPIRE (See ARBITRATION). UNCERTAINTY (See CONTRACTS, MAXIMS), 205. UNDER WATER, areas, 131. UNGAVA, boundaries of, 31. UNION ACT, effect of title to Crown lands, 7. UNOPENED MINE (See MINE). UPPER CANADA, first Parliament, 4. now Ontario, 2. USE of water (See WATER), 220, 221, 227, 234. USER, land of (See WATER), 228, 230. land of another, of, 525. minerals of, 117, 136. property of, 164, 230. surface, of, may give title to minerals, 144. USUFRUCT (See WASTE, WORKING). UTRECHT (See TREATY OF). VALIDITY (See Gohmkd Laws). VANCOUVER (BRITISH COLUMBIA). VEIN (See MINING REGULATIONS, STATUTE LAW, WORKING). VENDOR, entitled to royalties paid under lease, 161. VENDOR'S LIEN, 187. assignable, 188. Statute of Friiud.s, 188. VENDEE'S LIEN, 188. VENTILATION (See AIR, MINING REGULATIONS, STATUTE LAW). injunction to remove impediments to, 235. right of, protected by law, 235. right to, 234. VICTORIA (BRITISH COLUMBIA). VIGILANCE (See WORKING), 141. INDEX 1281 VIS MAJOR, 229. 230. VOID (See LEASE; MORTMAIN; PATENT). lease not for non-payment of rent, but only voidable, 130 VOIDABLE (See VOID). WABIGOON (ONTARIO). WAHNAPIT^ (ONTARIO). WASTE (See CO-OWNERS, WORKING), bricks, digging earth for, 139. cases collected, 138-9. destructive, will be restrained, 138. equitable, 138. impeachment of, 117, 138. law of, based on civil law of usufruct, 137. regards substance, 138. ordinary, none between tenants in common, 138. permissive, 138. usufruct, 137. water, of (See MINING REGULATIONS; STATUTE LAW), working open mine is not, 137, 181, 189. (See WORKING). WATER; MINING REGULATIONS; PRESCRIPTION; STATUTE LAW Act of God, 2:29. what is, 230. Appropriation of, 222, 231. continuation of, 225. Artificial channel, 223. Bank, riparian right relative to, 219. Barrier, 234. Bed of stream, 219. title to soil, property in, 222. British Columbia, in (See BRITISH COLUMBIA). Canals, 232. Clauses Consol. Act, 863. Cellar, percolation of water into, 231. Channel, artificial, 223. when none, 224. Civil law, as to, 221. Common enemy, 227. Contact, lateral, suflScient for riparian right, 220. Course, 196, 223, 225, 230, 233. Crown, right to foul, 227. Damage, from, let in, by wrongful working, 232. Derogate, grantor cannot derogate from grant, 233. Development, of natural resources, 226. Discharging, upon land of another, 233. Diversion, by railway company, 233 Diverting, 233. Drainage, natural of, 226. 81-M 1282 INDEX WATER— Continued. Easement, abandonment of, 223. BiCquiring by prescription, 234. continuance of, 223. exists for benefit of dominant owner, 223. implied grant of, 233. implied reservation of, 233. non-apparent, continuous, 233. severance of tenement, on, 233. Easements, as to, 232. Edge (See Ad Medium Filum). English Iaw, as to, 221. Enjoyment of, for twenty years, 233. Escape of, 229. canal, from, 232. King's enemies, caused by, 230. vis major, when caused by, 230. Extnionlinivry use of, 221. Ferae yatiirae, oil or minerals are, 225. Flow of, 219. gravitation, 227. Fouling, 226. by others no answer to action for pollution, 226. Crown, by, 227. Foundation of right to, 219. French law, as to, 221. God, act of, 229. Grant, lost, when presumed, 235. Grant, of, 225. Grant, exclusion in, 160. Grantor, cannot derogate from grant, 233. Gravitation 231. Interference with, 227. Heating, 226. High, mark, 164. Higher mine, 227. Implied grant of casement, 233. Injunction, restraining fouling of, 226. use of, 222. Injunction, ventilation, 235. Interests of community, 226. Interfering with flow, 232. King's enemies, causing escape of, 230. Land, natural user of, 136, 228. covered by, 23, 27, 161. riparian rights attached to, 222. Land Titles Act, 196. Lateral contact, sufficient for riparian right, 220. INDEX 1283 Vf AlER— Continued. Lawful trade, no excuse for fouling, 226. Leave, 234. Legislation, as to, 233. Letting river into mine, 230. Liabilities, as to, 234. Lower mine, 227. Malice, effect of, 228. Mine, flooding, 230. higher, 237. lower, 227. on terra flrma, in adjoining water, 221. right to restrain op- erations, 221. owner, obligation to continue drain, 223. of, may not divert water by artificial channel, 231. may work as he pleases, 231. percolation of water into, 231. working, percolating water, 224. Minerals, natural user of, 231. Mischief by, 229. where water escapes, 229. Motive, effect of, 228. Natural drainage of, 226. stream of, 219. (See stream), 220. user of mineral land, 231. Navigable rivers (See Riparian Riyhls), 220. Navigation, public right of, not to be obstructed, 220. Necessity, inevitable, 230. Neglect, to make drains, sufficient, 232. Neighbors, 227, 231. No property in, running, 220. Non-riparian proprietor, grant to, 222. North-West Territories, in, 233. Pennsylvania doctrine, 226. Percolating into mine, 226. Percolation of, 224, 230. Incident to mining, 224. noxious, 231. when mine owner responsible, 231. Pollution restrained by injunction will be, 226. Prescription, 233, 234. Presumption of grant, 233. Privilege, 222, 233. Property in, 220. Proprietor (See Riparian), 222. Pumping, 227, 233, 307. 1284 INDEX WATER— Gontinmd. Railway company, diversion by, 233. Railways, 232. Reasonable use of, 221. Reservation, implied, of casement, 233. Right, owner, of, riparian, 219. Right, assignable, whether, 222. enjoyment, of, 219. grant, of, 222. Irrigation, to divert for, 220. license, of, 222. owner, of riparian, 219. pollute, 233. restrain operations in adjoining waters, 221. wharf, to build, 221. Rights (See UlvaHan). us between neighbors, 227. of riparian owners, 221. riparian, attached to land, 222. soil, 222. Riparian owners, fouling, 226. owner, license to use, 222. rights of, 221. proprietors, who are, 221, 282. relative to bank, 219. right, foundation of, 220. lateral contact sufficient, 220. what contact necessary, 220. rights, 219. law as to, applicable to navigable wators, 220. tidal rivers, 220. on banks of navigable waters, 221. tidiil waters, 221. River, definition of, 720. Scotch law, as to, 221. Servient owner, no right to have easement continued, 223. Servitude, 227. between upper and lower mines, 229. Soil (See Bed). Statutory property in, 220. Storing, 229. Stream, flow of, 221. grant of, 220. natural, of, 219, 220. pollution of, 226. purity of, 221. Streams, what are, 721. INDEX 1285 WATER — Gontinued. Streams, grant of, 225. running, general law applicable to, 220. Subterranean, 223. support from, 225. Support, from subterranean, 225. Surface, 223. lost by percolation, 224. Tenement, severance of, 233. Throwing back, 232. Tidal rivers (See Riparian Rights ; Title Rights), 220. Underground, fouling, 226. Use, extraordinary, of, 220. mining purposes, for, whether natural, 226. ordinary, of, 220. property of, 227. reasonable, of, 221. User, natural, of land, 226. non-natural, 228. Vapours, noxious, 235. Vendor cannot, on behalf of the public, impeach grant by him- self of water power, 220. Water course, definition of, 223. diverting natural, 230. under ground, 225. flowing from one mine to another, as to, 229 power, grant of, 220. privileges, 232. right to build wharf, 221. Wharf, right to build, 221. When no channels, 224. Working wrongful, letting in water, 232. WAY (See CONTRACTS; WORKING). lease of mine, what granted by, 172. necessity of, 173. right of, 173, 196. how created, 107, 172. to chose, 172. WAIVER (See LEASE; SUPPORT), 129, 202, 204 213 289 WAY-LEAVE, 145, 172, 255. WHARF (See WATER), 221. WIDOW (See DOWER), 177. WIFE (See DOWER). WINDING-UP foreign corporations, 154. WORDS (See GLOSSARY; MINING REGULATIONS; STATUTE LAW) " boy " (See STATUTE LAW). " buildings and erections," 133. " directly," 48. 1280 INDEX WORDS— Gontinned. " fairly " (See LEASE). " feeder." 127. ^ " ferae nulurac," 225. " from," 48. " get " (See LEASE). "getting and severing" (See LEASE; WRONGFUL ABSTUAC- TION) " girl " (See STATUTE LAW). " Immediately," 48. ■Mnstroke," 125. " Interest," 27. " land," 40, 54, 55, 191, 244. " latent defect," 84. " mining lease," 132. " on," 48. " parks soli," 24, 319. " rents and profits," 122. " res nuUius," 319. " royalties," 25, 27. " separation," 125. tt?chnlcal, not necessary to create lease, 115. "tononientN," 5(i. " trams," 124. " trust," 27. " upon demand," 48. " usual," 122. " won," 125. " workmnnlike manner," 125. MINE, not a definite term, 34 (See WORKING). may have a wider meaning than mineral, 34. WORKING (See CONTRACTS; LEASES; MINING REGULATIONS; RAILWAYS; SUPPORT; STATUTE LAW; WATER), abandoned mine, 137. abandonment (See Presumption), 143. account (See Co-owners), 139. bricks, digging earth for, whether waste, 139. compensation, for negligently exercising right, 142. distinction be- tween and trespass, 142, contingency, affecting mining property, 141. contribution, between tenants in common, 140. co-owners, account between, 139. digging earth for bricks, 139. right of, to enter, 139. waste, as between, 138. working, as between, 138. co-parceners (See Co-owners), 138. danger, obligation to fence, 142. INDEX WORKING— Continued. delay, effect of, In mining trnnsactlonB, 141. dowresB, workings by, 178, 182. employer, must take reasonable precautions, 143 employers, liability of, 143. (See Employvrs' Liubiliti/ Act), 143. fee simple (See Owner), 136. fencing, duty to fence, 142. gas (See Natural Gas), 137. gravitation, injuries due to, 136. hazard (See Delay), 141. Inconvenience of tenancy In common, 140. injunction, restraining boring for oil, 137. restraining waste, 138. joint tenant (See Co-oinifrs), 138. land, profitable holding of, favored by law, 138. lessee, by, 116, 117, 126, 129. lessee, right to bore for oil, 137. (See Tenant), 138. liability (See Employers), 143. liabilities (See P'trtncrship), 140. liberty of. 111, 169. licensee, by, 104, 111. Hen (See Tenant in Comninn), 140. limitation. Real Property Limitation Act, 145. Statutes of, 143. limited owner (See Oicner), 136. open mines, may work, 136, 178, 182, 191. • waste, without Impeachment of, 138. work, right to, 137. mine, abandoned, 137. causing percolation of water, 224. co-ownership of, 140. income from, 137. open, 136. digging new pits, 137. case of, not a paradox, 137. opening new, 136. on dip servitude for benefit of owner of, 136. partnership in, 140. possession of part, 144. property, right to sale of, 142. miner, leaving mine on his owii business, as to, 143. mines, right to work, 136. minerals, owner of, may bo dispossessed, 144. severed, right to sell, 138. user of. 136. 1287 1288 ■ INDEX WOllKlNU-t'oHtmnetJ. ,.„ ,a .„ qTATTTTE LAW) mining partrnTshlp. 140 (See STArUTB L.AW). partlcH standing by, 141. property, 141. delay, 141. naturi' of, 141. vigilance, 141. regulations, Blututory, 145. mine owners, duties of, 142. rights of, 142. mortgagee, by, 189, 191. natural gas, a mlm-ral, 137. whether property, 137. neighborhood, not sufficient foundation for servitude, 130. non-user (Seo J'rvsiimittUni). 143. obligation, of fencing, danger, 142. oil, right of h^ssee to bore for, 137. open mine (See Mini), 117. ouster (See TniantH in Common), 140. owner In fee simphs right to work, 136. (See Limited Otrncr), 138. true, barring title of, 145. partition, by tenants In common, 140. partnership (See Mininy). 140. in mine, rights and liabilities, 140. in working, 140. mine, in, 140. property of, personal estate, 140. property, partition oV. 141. property, right to sale of, 141. working, In, 140. part, possession of. of mine, 144. percolation injuries due to, 136. personal estate (See lyrtnaslup), 140. possession, actual, 145. adverse, 145. mine, of, 144, 254. minerals, of, 144. 143. railway company, by, 236. regulations, statutory mining. 145. responsibility, for, 136. right to work mines. 104, 116. 123, 136, 169. riehts (See rdftncrKhip), 140. 3ct". o, Pr.c,lc., science, .pocimen o. o„, tor. »5. Bervltudc, on owner of upper mine, 136. INDEX 1289 WOKKINO— C(i»ihnue(/. ■haft, duty to fence, 142 (See STATUTE LAW). Bpi'clmen, of ores for School of Practical Science, 145. standing by, 141. statute (See l^lmUtiliitiin), 143. BtatuWy, mining regulations, 145. stranger, user by, 144. subsidence, caused by, 136, 203, 216, 217, 218. surface owner, rights of, 142, 156, 175, 207, 214, 221. duties of, 142. tenant in common, lion, none for moneys expended, 140. licenst' by, 139. share of, of minerals won, as to, 139. right to work (See Ijckmcc), 138. tenancy in common. Inconvenience of, 140. contribution between (See Co-owners), 140. ouster by, 140. upper mine, of, 136, 231. user, by stranger, 144. of minerals, 136. usufruct (See Wuslv), 137. vein, continuous possession of, 145. •waste, destructixe, by co-owners, 138. tenant in common, 139. digging earth for briclts, 139. equitable, 138. Impeachment for, 138, injunction restraining, 138. ' injuries must bo appreciable, 138. law of, based upon civil law of usufruct, 137. regards substance, 137, 138. permissive, 138. way-leave, 145, 255. work, employer must take reasonable precautions, 143. right to, mines (See WORKMEN'S COMPENSATION ACT), 14.S. working, abandoned mine, 137. dormant mine, 137. partnership in, 140. proper, of mines, begets no responsibility, 136. wrongful, letting in water, 230, 232. WRITING (See CONTRACTS ; FRAUDS ; STATUTE L\W). WRONGDOER (See ABSTRACTION). title as against, 133, 155, 254. WRONGFUL ABSTRACTION. act of destruction, is, and will bo restrained, 25R. account, principle upon which, directed, 256. taking, of minerals, when will be treated as inadver- tent, 256. accounts, taking of, between mortgagor and mortgagee, 257. actio personalis, etc., as to, 259. 82— M 1290 INDEX yj. case WRONGFUL ABSTRACTION— (7on(mi(ed. action, against estate of deceased person, confined, to what casos 259. may be maintained against executors or administr.itois of deceased persons committing wrong, wlion, 2 within one year of decease, 259. administrators, action against (Seo ACTION), 259. allowance for carriage, but none for getting, rule as to, 25(]. severing or getting, not allowed except in of innocent wrong-doing, 254. appropriation, by deceased person, of property of another, gives right of action, when, 259. assessment, of damages, for wrongful abstraction, as to, 251, bank, bringing mineral to, cost of, allowed, when, 251. belief, bona fide, as to, 256. bounds, breaking of, considered as fraudulent act, 259. chattels, coals, when severed, are, 256. corporeal, hereditament, mine is, 254. cost, of bringing mineral to bank, allowed, when, 254 to bank will be allowed when working inad- vertent, 256. coal to pit's mouth, when must have boon in- curred by plaintiff, as to allowance for, 256, getting, when not allowed, 256. severance, may not bo allowed to mortgagee, 257. severing will be allowed when commencement inadver- tent, 256. when not allowed, 256. coals, when severed, are chattels, 256. common law, rule modified, 259. corporation, could not commit fraud, 259. damage, to property, by mortgagee, will render him liable, 258. damages, allowance is made for costs of bringing niimral to bank, as, 254. for wrongful abstraction, how assessed, 254. estimated, 254. deceased person, action again.st estate of (See Action), 25'J. wrong committed by, 259. dial, order for liberty to, in defendant's mine, 260. diligence, Statute runs from time to time, when, l)y rtasdnalile, fraud might have been > iscovered, 259. discovery, of fraud. In cases of fraud, starts Statute of Limita- tions to run, '''hi. distinction, between post: 'sion of : !neb, and possession of otlicr property, 254. error, common to both parties, distinction between, and fraud, 255. examples, of allowance of cost of raising, 256. executors, action against (See Art inn), 259. fouling water for, rule as to, 259. INDEX 1291 WRONGFUL ABSTRACTION-0ou^Hi(«L fraud, as to intention to commit, 259. distinction between cases, 259. breaking of bounds, will be cousidered as act of, 259. concealed, deprives party of benefit of Statute, 259. corporation, could not be committed by, 259. defendant, acting under bona flde belief of title not guilty of, 254. in cases, of. Statute of Limitations, does not begin to run until fraud discovered, 258. robbing of neighbor, renders person defrauding liable to value of whole property taken, 255. getting, allowance for carriage, but none for, 257. mineral, cost of, not allowed except in case of innocent wrong doing, 254. hereditament, corporeal, 254. incorporeal, 254. improper conduct, of mortgagee, as to, 258. incorporeal, right of working mine, is, 254. inadvertent, if taking, is, costs of severing and getting may be allowed, 254. when acts will be regarded, as, 256. working, when treated as, Statute of Limitations jipplies ti), 2515. injunction, will be granted to restrain wrongful abstraction of minerals, 258. inspection, always allowed if it can be done without injury, 260. as to order for, 260. may be had by witnesses, on order, 260. jury, on order, 260. obstruction to, may be ordered to be ronioved, 260. payment of expenses incurred, to defendant, as to, 260. terms, upon which granted, 260. will be allowed, though injury contradicted, 260. jury, as to inspection by, 260. Limitations, Statute of (See Statute of Limitafitntu), 254, 256. loss, to property, occasioned by mortgage, will render him liable, 254. machinery, order for use of defendant's, to inspect defendant's mine, 260. measure, order for liberty to, in defendant's mine, 260. mine, defendant's order for inspection of, 260. is a corporeal hereditament, 254. right of working an incorporeal hereditament, 254. mines, distinction between possession of, and other property, 254. possession of, may be sufficient to enable holder to bring trespass against wrong doer, 254. minerals, wrongful abstraction of, damages for, 254. mortgagee, allowed deduction for cost of bringing to surface, but not of severance, 257. damaging proper'y, will be charged with damage or loss, 258. 1292 INDEX WRONGFUL ABSTRACTION— Oon<«ii«erf. mortgage, improperly allowing sub-lessees to take coal, will b; treated as having taken it himself, 257. may be charged not only with royalty, but with full value, 257. wilful default of, as to, 258. modification, rule of common law, as to actio jui- sonalis, 2o9. negligence, defendant acting under bona fide belief of title, not guilty of, 254. neighbor, robbery of, renders person defrauded liable to value of whole property taken, 255. notice, effect of, on prior inadvertent commencement, 256. nuisance rule as to, 259. obstruction, to inspection, may be ordered to be removed, 2G0. plans, order to make plans of defendant's mine, 260. possession, of mines and other property, distinction between, 234. of mines may be sufficient, to enable holder to bring trespass against wrong doer, 254. property, inspection of, by jury and witnesses, 260. quarry, abandoned, liability of owner to fence, 261. abandoned, liability of manager to fence, 261. superintendent to fence, 2G1. liability of owner, as to, 261. manager, liable as to, 261. superintendent, liable as to, 261. unused, liability of manager to fence, 261. ( owner to fence, 261. superintendent, 261. quartz, person liable who conceals, 262. may not be purchased by persons not owners or agents of mining claims, when, 263. purchase of gold in, when an offence, 263. remedy against estate of deceased persons (See Action), 259. restoration, of gold or gold-bearing quartz, when may be ordered, 264. restrain. Court will, wrongful abstraction, of minerals, 258. rubbish, causing, to be conveyed into mine, when an offence, 261. rule, as to actions of trespass, trover or nuisance, 259. all actions for wrongfully carrying minerals over or through property of another, 259. all actions for falling water, 259. rule in Llynvi Co. v. Brogden, 258. Martin v. Porter, 256. Morgan v. Powell, 256. Phillips V. Homfray, 256. Taylor v. Mostyn, 257. Livingston v. Rawyard's Coal Co., not binding, 257. rules for actions to divert water-course, 259. as to actions for flooding mines, 259. INDEX 1293 WRONGFUL ABSTRACTION— Continued. road, whon damage to, Is an offence, 264. rope, when damafiing or unfastening, is an offence, 264. search warrant, general, when may be issued, 264. by whom may be issued, 264. severance, when wrongful act, no allowance for expense of sever- ing, 256. sevfiring mineral, cost of, not allowed except in case of innocent wrong-doing, 254, 256. sliver, and gold, concealing, 262. piece of, person liable, who conceals, 262. silver, smelted, may not be purchased by persons not owners or agents of mining claims, when, 263. smelted gold, may not be purchased from persons not owners or agents of mining claims, 263. statement, making false, is indictable offence, when, 263. Statute of Limitations, applies to mines, 254. as long as wrongful working is treated as inadvertent, 256. concealed fraud, will deprive party of benefit of, 259. does not begin to run in cases of fraud until fraud is discovered, 258. time begins to run if by reasonable dili- gence fraud could have been dis- covered, 259. stone, person liable, who conceals, 262. structure, setting Are to, is arson, 263. substance, combustible, setting fire to, is arson, 263. superintendent liable as to, abandoned mine, 261. support, as to cases where element special and exceptional need of, absent, 255. surface, cost of bringing to, may be allowed to mortgagee, 257. surface, support to, cases when absent, 255. surveys, order to make surveys of defendant's mine, 260. tenant in common, theft from, 262. theft, is committed by secretly concealing, with intent to de- fraud, 262. title, defendant acting under bona fide belief of, not guilty of fraud or negligence, 254. trespass, may be "brought by person in possession against wrong- doer, 254. trespass, of, rule as to, 259. trespass, wilful, as to cases when element of wilful, absent, 255. trover, rule as to, 259. unused mine, manager liable, as to, 261. liability of owner, as to, 261. superintendent liable, as to, 261. vegetable fuel, setting fire to, is arson, 263. veins, separate grains, may be, 262. 83-M I 1294 INDEX WRONGFUL ABSTRACTION— (7o»i