t> ^>, p n V ^ Ci^ ^ signifie "A SUIVRE", le symbole V signifie "FIN". Laa cartaa. planches, tableaux, etc.. pauvant dtre filmiia i daa taux de rMuction diff^rents. Lorsque la document est trop grand pour dtra reproduit en un seul cliche, 11 est film^ i partir da I'angia sup^riaur gauche, de gauche ^ droite. et da haut en baa. an prenant le nombre d'Imagas nteassaira. Lea diagram mea suivants illuatrent la mithoda. 1 2 3 4 5 6 Wli ^OVA SC0TI4 PROVINCE HOUSE -.4 \ % I '4 •«9 l-^- iMiiiartlwii.flwiiMMiM'iwiii''iii'i mmiHWiiiM ^fS (h/^ ll^> IN THE ^xmt Court 0f Canak. ML ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Cause — WILLIAM H. CREIGHTON, Assignee of LEWIS P. FAIRBANKS, Plaintiff and Appellant, vs. * SAMUEL CHITTICK et al., Defendants and Respondents, and Cause.— WILLIAM H. CREIGHTON, Assignee of LEWIS P. FAIRBANKS, Plaintiff and Appellant, vs. TIMOTHY GRAHAM, Defendant and Respondent. l s; I! I APPELLANT'S FACTUM. JNO. S. D. THOMPSON, Appellants Attorney. RIGBY & TUPPER, Respondents Attom^s. HALIFAX : Wu. Maonab, Priktbb, 12 Pbinob SifiEwr. 188L ^^SSwWWllpPP^W^' yoao 'if )Ufmt fart o! faaba. I Cause— WILLIAM H. CREIGHTON, Assignee under the Insolvent Act of 1875 of the estate and effects of LEWIS P. FAIRBANKS, Plaintiff AND Appellant, vs. SAMUEL CHITTICK, JOSEPH CHITTICK and JOHNSTON CHITTICK, Defendants and Respondents. APPELLANT'S FACTUM. In *he year 1826 a corapany called the Shubenacadie Canal Company was formed in Nova Scotia for tv . construction of a Canal between the waters of Halifax Harbor and the waters of the Bay of Fundy in that Province. A statute passed in 182 1 authonzed the Governor of the Province to issue Letters Patent uader the Great Seal of the Province to such Company when formed, and conferred great powers and facilities. The Letters Patent were issued in 1826 a.id the Company commenced operations. The Line of Canal was to be " through the Dartmouth Lakes, the lakes and channels or course of the River Shubenacadie or by or along the banks of such lakes and river to such part of the River Shubenacadie between its place of discharge into the Basin of Minas and the Great Lake, (sec. 5, Act of 1826) The Company had power under this Act to do all things necessary for making a canal through these waters, including the right of directing and damming the same. Also to make towing paths along the line of water communication. By section 8 "The course and channel of such canal or water communication and the works to be erected thereon, and the waters and streams of the said river and lakes, so far as the same were o^ should be required or necessary to be used," &c, for such canal, " and all lands or real estate purcnased or obtained for such canal and through which it should be made, and the towing or tracking paths or roads wen. made the sole and exclusive property of the company for ninety-mne years, and this title was made perpetual by the Act, chap. 17, of 1827. By section 13 f f^l^^^^r^o^;^ tion Act of 1826, it was provided, that wheneve., for the course, channel or site of such 10 20 I fm mmmm II' h 20 canal, or the works thereof, or for cufctin;:^ or opening such canal, or for making or erecting any of the locks, dains, reservoirs, or einhankinents thereof, or for any of tiie other purposes mentioned an)rporation should rind it necessary that any lands lying in the course or direction of the Canal or contiguous thereto, or upon the shores or banks of the said river, lakes or streams, shoidd he purchased \)y, or vested in, the C'orpoiation, to enable them to make and complete and benericially use the said canal; then it should be lawful for the Corporation to adopt and take such course and proceedings iji "egard to such lands and the obtaining the same fc- ili use as by any present or future law of this Province, were or should be enacted or in fnica, (,oiii:liiug C.v. niakinu "i' altirin ,' auy public highway through the lands or any private persoii iu tl'-' Province ; and sucli proceedings as wore <>'■ aiiglit be requisite for 10 divesting the right and interest of the individual owner of the land required for a public highway, and appropriating such land for the use of the public should l)e used for divesting the estate and 'nterest of the respective proprietors of the lands required for the use of the Corporation, and vesting sueli lands in tlie Corporation. And in every such case, after such proceedings had, and after 'erdic*. of a juiy taken and confirmed, and the damages assessed in favor or the proprietor paid a'ld ..'.Listied, and all other provisions an'J. thet-e powers ve-o expressly given to the Company, which had th^ a bee. forricVi. Also '■ucb powers as had p.f viouHy been granted to Canal Com- panies in (xreat Britain, or Mhich inigiit be ff^asoaabi.! and necesssary. The Letters Patent also provided that their provisions shoulcl' be " taken, construed and adjudged in the most favorable and beneficial sense i'or the liest ad-antage of the Company." The principal parts of the line of water connnunication, (as regards extent and value), were the First and Second Dartmouth Lakes ; the locus in dispute is part of the First and Second Lakes and also part of the shore of both. In August ,32G, the Company desired to put in force the provisions above recited, in reference to the expropriation of lands, and accordingly presented to the Gustos and other Justices of the Peace of the County of Halifax the petition set forth in the case, and obtained the certificate of three persons who were appointed by the Court of Sessions to report upon their petition, to the effect that the pieces and parcels of land therein described were necessary to be vested in the Company to enable them to complete the canal. The statutory provisions then in force in the Province relating to the expropriation of property for highways are to be found in chapter 2 of the Provincial Acts of 1826, and are as follows : Section XTIF.— And be it further enacted. That where any new highway or common road from town to town, or place to place in any County or District in this Province, shall be want- ing, and wh«re old highways or roads with more conveniency may be altered upon application being made to the Court of General Sessions of the Peace within the said County or District, 40 the said Court is hereby authorized and required to appoint three persons, being freeholders of the adjoining Townships, having most occaeion for the said highway, to enquire into the necessity and conveniency thereof, and to make their report thereon, and the same being judged to be of common necessity or conveniency, the said Court shall issue a warrant to the 30 mmfimimimmmifgn Sheriff or his Dopnty to summon a jury out of the afljoinin;^ Townships to mnet at some con- venient ;lay and place therein mentioned, to view ami lay out or alter such hij,'hway or road, who shall have an oath administered to them by the said Sheriff or his Deputy, v/lio is lierehy authorized to ailminister the same, to lay out or alter such hi^^liway or road aemrdinj,' to their best skill and judgment, with most eonvenicney to the put)lic and least preiudiee or flamage to the owner or owners of the lands on which the said highway is to be laid out or altered, and to assess the damages to the own^r or owners of such lands as the said jury shall think reason- able for the value of the land and improvements made on the same ; and also for the making of fe"ces on the sides of siicli li".,diway. wliie'i liiivini; done, the saiil Sliei'iff or his Deputy shall make a return theriuf on the day appointed by the said Court, as well under his own as 10 the hands of jurors by whos(! oath the same is laid out or alteretl, to the end the same may be allowed of ami recorded and after known fur a public highway ; and all public highways liereafter to be laid out as aforesaid, shall noc be less than sixty-six feet wide. The Sessions issued to the Sheriff of the County of Halifax the Piecept set out in the case on tk» 8tli August, 182G, and the hKiuisitioii and Keiiirn thereon are also set forth at large. It is claimed that the deseriptiun in the Return beginning " On the second section of the canal line," covers r strip all arouml the shore of the First and Second Lakes, and includes the locus on which the ice-liouse of the defendants and the embankment under the ice-house, were afterwards constructed, and (jn which the defendants afterwards cut ice. These lands were at that timo low and swampy, and were afterwards submerged by the raising of the waters 20 consequent on the construction of the Company's dams and other works. The Company entered into possession of the tracts included in the return mentioned. .'Ust May, 1831, the Company executed a mortgage to the Hon. S. S. Blowers and Sir Rupei-t D. George, Trustt-es for the Britisli Government fConniii.ssioners of the Treasury), who made a loan of £20,000 stg. to the Company under the Imperial Act of 1st Wm. IV., entitled "An Act to authorize the advance of a certain sum out of the Consolidated Funds for the completion of the Shubenacadie Navigation in Nova Scotia." This mortgage inckded the two Dartmouth Lakes as well as the other portions of the canal line and also the lands which had been acquired under the Sheriff's infjuisition. En 1837 an act was passed in aid of the Company, and of this act the following abstract 30 is given : — An Act for increasing the Capital Stock of the Shubenrcadie Canal Company, and the number of Shares therein, for conferring further powers on that Corporation, and for other puiposes. (Pa.''8e(l 21st day of April, 1837.) Whereas, by an Act of the General Assembly of Nova Scotia, passed in the year of our Lord one thousand eight hundred and tvventy-f jur, and entitled " An Act to authorize the Incorporation of a Company for making a Canal by the River and Lakes of the Shubenacadie," it was enacted that whenever a si^tRcient number of persons should have associated themselves together for opening and making a navigable cut canal or water communication, between the 40 harbor of Halifax and the Easin of Minas, by, along or near to the course of the river Shuben- acadie, and the lakes thereof, and shall have agreed to raise sufficient moneys to effect the same, it shoi:ld and might be lawful for the Governor, Lieutenant-Governor or Commander-in- «*-«• (^hief for the time bong, at any ihw within li vo years from the pas^inj? ,.f that Act, V.y lottors patent under ♦he ^M-eat seal of this Province, to make, erect and incorporate, all un-l singular, the person, who from time to time should he .mI venturers in or parties to the sai.l un.lertaking and their assigns, into one body, politic and corporate, in dee.) and in nanie, und.r the t.tl.> of • The Shuhenaeadi.- Canal Compan, ," an-l hy that namn to have succession, to sue; a.id be sued to have a common seal, and to possess and enj.\v sueti powers, v.ith respect t.. the choice of a president an.) other officers, making by-laws, and rey.ilating the affairs of the said com- pany, as should he expressed in the same letters patent ; ^nri i»;/*.m««,' purMinnt to the said .tatrt.', lett.Ts patent, under the great seal of this Proviacd, an.l .lated the Hrst deXe ..f June, one thousand eight hundred an.l twenty-six, were l" duly and' in conformity to thj said Act mad.' an.l granted, whereby certain persons, inhabitauts of Halifax, particularly name.l in the sai.l letters patent, an.l their associates, successors nn.l assigns, were incorporated by the name an.l title, an.l for th.- purposes aforesaid, with a capital or joint stock or.Hine.l in the first instance to consist of the sum of sixty thousan.l poun.ls of lawful money of Nova Scotia, divide.l into two thousan.l and four h- ' ,).! shares, each share being of the sum of tweaty-five pounds ; out with power to the sav, . rporati.m te increase such capital stock to such greater sum r.s the object of the company might require; and the sai.l corporation, under the authority of the sai.i letters patent an.l of the statute aforesaid, therein recited, an.l un.ler the additional powers and reg-lationsvion' aed in another Act of the the general Assembly, passed in the year one thousand eight hundred an ^ twenty-seven entitled 20 " An Act in a.l.lition to the Act entitle.l An Act to authorize the Incorporation of a Company for makin:r a Canal by the River and Lakes of the ShubenauJie," and also, under the by-laws an. ordinances of the said company, estaUished by a general meeting of the proprietors of the saul ..ompany. held in Halifax on the 21st day of February, one thousand eight hundred and twenty-eight, and subsequently duly approved of an.l establishe.l by the then Lieutenant- Governor an.l His Majesty's Council, commenced their said undertaking, an! construct .d many lar^e and expensive works for the purposes of the said inland navigation, and proceeded the'-e- with until the en.l of the year one thousan.l eight hundred and thir.y one, at an experoe for the said canal works of seventy-two thousand pounds an.l upwar.ls. exclusive of other large sums paid for the purchase of lan.ls f..r the purposes of the undertaking and^ for the salary of the engineer employed thereon, and for other charges thereof; when the lunds ,.f the said corporation, .lerivsl from the grant of fifteen thousan.l pounds made by th. Genera. Assembly of the Province in ai.l of the undertaking, from ..art of the capital stock subscnbed for m th,« Province, to the extent of seven hundred and twelve shares from another portion of the said stock subscribed for in England to the extent of twelve hundred and fi%jha'-es, and from the loan of twentv thousand povrds sterling made in aid of the said work by His Majestv s Govern- ment on the "security of the canal, and the iolls and profits thereof, pursuant to an Act of the Imperial Parliament, having become wholly exhausted, the said corporation was compelled to suspend all further proceedings in their said enterprise ; and since the said year on. thousand eight hundred and thirty-one the works and construction, then in progress have remained and yet 40 are unfinished, for want of the necessary funds required for their completion, and for opening the navigation from the harbor of Halifax to the Basin of Minas. And xvhereas, upon a particular survey and examination recent'y made of the whole line of the said intended water communication, rarious alterations have been recommended to be 30 mmf mmmmm mmmm /> ,^mm /> adopted in the line and direction theieof, in its deptb and width, and in the position, nature and dimensions of tiie works, as originally designed, whereby the said canal would he rendered more suitable to the purposes for which a great inland water comnujnication through the Pro- vince, with its capital, is required, and be made more conveniently navigable by steamboats and sea-going vessels ; and plans and estimates have be^n made for the further prosecution of the said enterprise in an improved mod.e, and by works of a more durable character, and of greater extent and magnitude than were first intended, for the expense of which large addi- tional funds will be required by the said corporation ; and forasmuch as the completing of the said enterprise is deemed an object of great public utility and importance, it has therefore become expedient to autlxn-ize the said company to extend its present capital stock and nr.m- ber of shares, and also to grant uTito the corporation certain other and further powers and authorities, and make other regulations as hereinafter contained, for facilitating the enterprise anil works of the company, and for the more convenient management and conduct of its affairs. 1. lie it thevfore enacted by the Lieutenant- Govern or, the Coitncil avd Asspjnbbj.— (Marginal notes.) Joinu stocic may be incre'' ;ed to £2.")(),000; proviso ; preamble. 2. o Be it further ew«.oe'A) Complaints of damages by canal to adjoining lands ; provi.so. 12. .471'/ he it farther enacted, that all such parts of the said river Stewiacke, the Nine 40 Mile Tiiver, or other rivers, creeks, brooks and streams flowing into the river Shubenacadie on either side, as shall be rendered navigable by the works of the said company, shall be and be deemeu part and parcel of the canal or navigation authorized to be constructed by the said corporation. 6 And n-hereaji, tlie lUL'thod now liy law piovided for ciialiling the said company to obtain the title and possession of any land or real estate requireil for the purposes of the said navi- gation has been found very expensive and incovenient, — For remedy whereof : 13. Be it further eimc^erf.— (Marginal note.) Lands in vicinity of canal required by corporatiun. 14. ^1})^ he it further enacted. — (^Marginal note.) Fee simple in lands secured. 1.5. And I)e it further fni^f'^f.'f/.— (Marginal note.) Land may be taken by appraisement. IG. And lie if fnrfher enacted, that all and singular the provisions of the thirteenth section of the additional .\ct, aforesaid, with respect to the pi'oceedings touching the appraise- ment of damages occasi()ncsacted go or done, by the said board, when seven members attended or shall attend thereat, .shall be deemed and be resolutions, orders, acts, ati'airs and business, made, transacted and done by the board of the Shubenacadie Canal Company, until the new board aforesaid be established. Provided nhoai/n, that nothing herein contained shall prevent any member of the existing board from resigning his ottice at his pleasure. 20 L The mortgage to Blowers and George wr. ^ foreclosed, and the property sold by James W. Nutting, a Master in Chancery, 11th June, 1851, to the Hon. James McNab. On the 1st May, 1852, the Sheriff of the county of Halifax .sold under execution again.st the company, and conveyed certain lands which may not have been expressly included in the mortgage to Blowers and George. At this sale also the Hon. James McNab was the purchaser. 40 On 21st September, 1852, the same sheriflT, under another Igment .sold and conveyed certain other lands of the company to Hon. James McNab. On tst Januaiy, ISo.*}, Hon. Jann^s McNali inado ilcclaration^* of trust, \I..(i..4 .!..> san,.-, an.Ull worlc.uu.l unpn.ve^ „K.nts,a.af.resai.l,'which tlu-y ..ay rlunk n.-cssary th.-r.-fur, h.-I uKo for tl,. p.,r,H,se of payi.iiran.i ,ii,sH,ar;iin^Mill l.-^al an.l just outstamlin;,' d.in.s a^-ainst tlu- .•om,mny. oul.er l.y way of niort-a^e or preferential stock scc.re.l ..jkm, the eon.pany's property an, works, an.l a and upon sncl, rate of inCrest as they n.ay he enah|e,l t., nhtain the san.e an. that all an. every' lee.l. convevance, or n.ortgaKo nm-le an.l .'xeeMt.-l hy the .unetors of such co.npany ..f the property an.l v. -U of the con.pany, for seenring th.- payment ot all an. ..v.-ry s,K-h son, or snnm of money to be borrowed in the tern,s of this Act. shall be a ^....-1, le,^a and vah.l ohann. rn-l lien np.m sneh property an.) works, bin-lin^- the sa.ne, an-i eve.y imrt tb.-reo fn.n. the time such -lee.l, conveyance or mort«a.,n, is yiv..., any clause, matter or thm- in tb. sanl ,lee.l fron, the H.t.orable Jan.es McNab to such con.pany. or in the Act mcorp.nat.ng s...-h ..o.npany, or in the several Acts ther..af.e. pas.e.l altering', a,.,en.linjr, or in .-elat.on thereto, to the contmry notwithstan.lino. P.ovi.le.i, bowev. •. that no .t.,ckbol,l..r of s..eh c.....panv, or snb.,e,ibc.r io such preferential stock, shall be liable for or in .espect of such sun. or sun.s of money so bor.owe.l .....ler the te....s of this Act. or interest to accrue th .e,., n. for any farther or other j^reater sun. than the actual a,..ount or s,.m so taken or subscribe. ..-. and to such stock by such stockhobbn- or s.,bscriber, respectively, notwithstan.l.nK any Act. cku»e, ...atter or thin^' eont.ary thereto containe.l in the Act incorporating such Inland Navn,'at.on Company, or the several Acts thereafter passe.l alt«rinjr, amen.ling, or in .elation tc such Art. 4 The .lirectors of s.. 'h company shall, at any time, and at all times hereafter be at. lil,e.-ty t.. sell a...l .lispose of all ...• any part ..f the la.-ls an.t p.-operty cntained in the before- n,e,',tione.l .lee.l, which th.-y ..ay .leem not actually ..quired for the d-.e and convenient workin.roF su-l. canal or u.lan.l water co.u.nunication. anything contained in the befo.e- mentiore,o and John Stai.-s 18th June, 1862 ; and these persons, on the 9th December, 1862. declareo tha. muLwum r ' ' iUm mmm fm mM.jm 12 r 20 they held the property in trust for the Lake and River Navigation Company, to which ( '(.nipany they conveyed, on Ist May, iS67. This Company was formed under a statute of the Province called "An Act for the Incorporation and windinj,' up of Joint «tock Companies," the declara- tion of the Shareholders and other documuiits pertaining to the organization forming part of the case. The Lake and River Navigation Company conveyed all the property to Lewis P. Fairbanks by Deed uf April Lst, 1870. On .Slst May, 1«70, Lewis P. Fairbanks assigned, under the Insolvent Act of 1875, to the Plaintiff and Respondent, who afterwanls became creditors' as:;ignee of his estate and effects. This concludes the principal chain of title, and it is claimed that thereby the waters of 10 the First and Second Dartmouth Lakes and the lamls covered with the waters thereof, and the margins of these lakes became vested in the Plaintiff. In addition to this chain of title, however, there is another chain by which the rights or allied rights of other persons in th se lands and waters (including the persons u.ider whom the Defendan't's claim) became, at an early period, vested in the Plaintiff's grantors, and formed part of the property embraced in the later conveyances above enumerate .I I I ' 13 By e uiai'sin of tlie lake is concerned) to tlte Shnbenacadie Canal (^onii)any ; tliey go on to tlie will of Lawrence Hartshorne,— set out among ])laintitf's exhibits in the Bill of Complaint in the cause of [v(jhs et declaration charges, in the first count, a l>ieaking and ertering of plaintiff's close and lands known as section No. Two of the Shubenacadie Canal, and forming the reservoir thereof, and called the First and Second Dartmouth Lakes, kc, and on the lands bordering the said lakes, anil upon the margin thereof, and with throwing large quantities of stone thereon, and driving posts and stakes therein, and erecting buildings and cutting ice thereon. The second count i-epeats the same chai'ge and arimti fiuic evidence of Fairbanks being an Insolvent, and having regularly and properly a.ssigned, and of the plaintiff'", appointment, and of the regularity of all proceedings, antecedan t to the certificate. Insol. Act of 1875, Sec. 144. 8th. On the que.stion of fact as to Fairbanks having been a trader, there was some evi- dence at least for the Plaintiff, an.l none for che Defendants The verdict in the Plaintiffs favor, therefore should not have been disturbed, and was a finding of that issue in plaintitt's favor. !)th. Plaintiff showed a complete title to the locus, and proved the trespasses thereon, and the vjrdict affirmed his evidence as to all the trespas.ses alleged. • 10th. Defendants' attempts to prove title, failed. Their defence of license from G. A. S. Crichton could not avail them. Their title did not go back far enough, and it contained a reservation (jf the rights of the Shubenacadie Canal Company, the plaintiff's grantors. Their defence under the Hartshorne title cannot avail them, because Lawrence Hartshorne in his life time and his Executrix and Executor after his death conveyed all the property between the road and the Lake and in the Lake to the Tremains who conveyed to the Shubenacadie Canal Company. The making of conveyances after his death and after all his real estate had been partitioned in the suit of Ingles, et. al., v. Hartshorne, et. al., to cover this tract, was dearly an after-thought, -^d an attempt to make title, as the absence of any such property from the Inventory Inglis, et. al., vs. Harthorne, et. al, shows. The attempt to establish title under the Bartlen grant failed— the grant could not be located — it professed to grant " accord- ing to plan annexed " and the plan was not produced. Mr Hendry's attempt to locate it would make it apply as well to any other part of the country ; there was no internal evidence of the land granted being near any of the lakes, much less being part of the lakes as was con- tended ; reputation of part of the locus being considered part of the grant would not suffice ; the Administrator of Moreland could not convey, he was not the devisee, and no proof was given that he took any of the proceedings by which, without devise, such a person can convey, or that he really was Administmtor. 11th. The plea that the locus, ice house, etc., was the property of Johnston Chittick and Jessie Chiitick and Annie Ch.ittick, was not proved. 12th. There was at any rate no defence made as to the trespasses and conversion connected with that part of the locus in front of the embankment and ice house, or as to the hauling of the ice off the First and Second Lakes. Defendant, Samuel Chittick admitted (line 202) vir- tually that he did not own any lands in or under the Lake ; he says his property is bounding on the Lake. 10 20 30 40 \