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The QUEEN, Defendant. >iOTES. I^'itl, Sc|.U'ml'<'r. lH27,l7lliKpliriiury. Umy. *■ Itith Aiitriiot. 1H.T2, Mny. LANDS. •l^Ul, 20tli May. " :'Otli June. C*)H', l'ura;;raph 1. Ih. la Hidoaii (IniiJiI coimucnced uikUt Colonel By, Survey und plans of with lands .'^I't out, IJuilding Store Hoiihcs, &i!. Hideaii Canal Ad pa.-^.xed S Ceo. IV\,Ch. 1, U.C. Active openiti()n.s on Canal commenced at Bytown. Corner Stone laid at Bytown by Sir John Franklin, R. N. Canal completed and opened I'or traffic. Patent to Grace MacQneen, Lots E. & D , (/once«.sion D, 400 acres. " to " " I). & E., broken 200 " With usual rewervation.s, about GOO acrcB. l»t. Ol" above lanil.s. Col. I3y .set out on Plan 110 acres which he thought necesHary for Canal piiri)ose.s, and which the Canal Act forth- with vested in the (]rown tor such puvi)OHes, and since then hitherto they have been h(dd in the pos.session of the Crown or of purcha-sers from the Crown. Only 20 acres of the said 110 acres were iictually re- i|uired and used for the Canal purpo.ses, leaving 00 acres, the subject of this suit, not necessary nor iise . yr MA ■;»->■. I iil-il; !ft- 6J\%'^ 5 I'iir.i:.'ni|.li I the said Suppliant, cither lor the said 20 acres ho required and used for the ('anal, or for the said HO acres not necessary nor used therefor and siipertliious to the recjuirenients oi' the Canal. ord. For the purpose of this suit it is admitted, that the said llO acres cl' land were so set apart and vested in the Crown for the Canal [lurposes before the deatS ol said Grace MacQueen, the owner thereof, from whom they were taken. ttli. She died intestate on the l8th September, 1827, in possession of her said patented lands, h\s.s the said 110 acres thereof, so set apart 10 and vested as aforesaid, leaving, her surviving, her husband Alexander .Mactiueen, and also her eldest son, William .Mac(iueen,her heir-at a law, to whom her said patented lands desiiendod, less the said 110 acres, which never passed into bis possession. "ttli. Her husband AU-xandci-, by deed olTilst January, 1832, con- veyed his life estate in the said lands to the .said William MacC^ueen, who \)\ indenture of ")tb Fel»i-uary, 1832, purported to convey the same with- out reserve of any part thereof, to Colonel 15y, lor himself, his heirs and assigns for tlie />/'><• cousideration in the iiulenture mentioned. (itii. The llideau Canal was c:)ni|)lc'te(l aiul()|)ened lor trallic in May. i;(l I S.)2. and of the said I 10 acri's set apart ami vi'sted as aforesaid in the (,'rown, no more than tlie said 2)1 acres wen- recjuired and actually used for tlie said Canal, leavinL' the .s;iid !)l) acres or thereabouts unnece.ssarv and unused therefor. Tib. The said William Macticeen, whilst residing out of Canada, died intestate 20th October. 1S4."), leaving him surviving, the said Lucy Mact^ueen, the Sup[iliant, bis sole child and legal issue of his body. She was then a minor residing; out of Ontario, and has never since resided there. Sth. Upon the death of William Mc()ueen in October, IS4'), the :;() said Lucy .Mactjueen became and was by law the sole direct and imme- diate legal representative and heiress-of-law of said Grace McQueen in ami for the said 00 acres of supeitUious land as an estate in reversion to her for the same, and upon the detennination of the said vested in- terest of the Crown therein, she alone in her said heritable quality would be entitled by law to the I'estoration ol the said 00 acres as her estate in possession. 0th. Subseciuently, on the ISth of February, 1801), the (lovern- nient of Canada, acting for Her present Majesty by the Under-Secretary of State for Canada duly authorized in that behalf to represent Her -K) Majesty, published an advertiseuient, cojjy whereof is herewith for re- \./ n ferences, f<»r the Hiile by auction at tlio City of Ottawa, as hiiildinn; lot!4 of a portion of tin- «ai(l UO aniri of sii|ti'rlliiini-i lands no taken and vested hut not letpiired nor nscd for thi- (.'anal |un|)osi's, but retained in tlie possession of the (!rown as nfoii'suid : and on llie it'iiTiOl' Mnrcli follow- ini:, portions of tin' said W) acrt's wore sold for the hcndit of Ilor Majests in pursuance of the said advertisement, not withstniidin^ the (Javt-at and protest, whereof copy is herewith for reference, hy and on l)chalf of the Suppliant, ajrainst the said sale of the said lands, llic said advertisenu'nt and sale to all intents di>claring that the said lands were not wanted by H* the Crown for the Canal purposes for which they wen; taken and vested in the (!rown, thereby in etVect and absolutely deterniininj,' the vested interest of the Crown in the said JM) acres, which thereupon and by law became an estate in possession to the said Su^jpliant. Kith. The Statutes having reference tt» the (.'aiKil undertaking s\i{.'\\, thai t)\\\\ HO iiiiich of t/if Idiii/n utt uixirl aiidir (In: Rhhuu Ad /or (\uinl pui'iKmcn Olid no ri'^lid In t/if Crown for snc/i iinrpoHCH, ox s/ionlil In; ouni/ditiiil inn! found lo In: inrcMxari/ for the Cnnul and itn wor/cx, should be taken and surrench'red and used therefor, which, with the lands damaged by having Iteen cut through or built upon or injured by tlu' Canal, be- -'' came sul»jects of \ ablation or com[)ensation, to l»e found by a jury if necessary, and to be paid from Imperial funds, the claims for which were rcMpiired by the Canal Act to be made belbre the completion ol^ie (Janal, afterwards extended l)y the amending Canal Act of ISJJG. ©.W. 4, eh 6- in, U. C, and further by the Act of Is:;*), 2 Vic., eh. II), U.'C., to Ist .Vpril, 184 1, when the said valuations and compensations having become perst)nalty i)y law, were barred ab.sohitely after that date. 11th. No provi.sion was made in those Statutes lun- otherwise either l)y the Imperial or Provincial Legislatures for the aecpiisition or the payment by the Crown of the 1)0 acres so taken and vested l)Ut not .'511 necessary nor used for (,'anal purposes, and which by non-user thereof were outside of the operation and application of the said Statutes, the retjuirements for the canal purposes in so far as res[)eeted the said 1 10 acres having been e.xhau.sted under the Canal Act by the user of the said 20 acres only, tlierelbre such provision was oin.i of those cases which the law does not suj)pose, and tlierelbre nmkes no provision lor them, and specially, as in this matter, the land re(piirements Ibr the Canal being supplied from those parts of the set out and vested lauds which were actually taken and used therelbr ; and therefore any com- [lulsory taking of private lands, surperllous to the recpiirements and 40 necessities ol this work of public utility, the Rideau Canal, would have been a taking by the Crown in inrtfnin as a mere land speculation for the profit of the Crown without legislative authority therefor and an injustice \ \ to till' mipiiid luul unwilling owner and Miihjt'ct of llt-r Maji'.Hty, tlcstnic- tive of the owner's IVanchiMc in IiIh propi'rty ane i);issed to Colonel 1(1 lly Iiy the said conveyance, tiie saitl William Mactineen having no title to convey OP pass the same ll'l acri's of land or any part thereof to Colonel Iiy, who had no power to take the same l»y lliesaid conveyance, which was al)solntely void at law in respect ol" the said 1 Ht acres, as it was so decidi'd Ity the judgment of this llonontltle (.'itiirt ri'iidcri'd on the cull of .May, isys, hy the llonoralde ('hief-.l iistice llicliards, which ilis- nti.ssed the suit on IVtition of Itighl of Tylee ilnl, representatives of the then deceased ('olonel Hy, against II. M. the (iueen for the said lands. l.'llli. Thi\jll(lgment ol' tiie said Coio't so rcndeicd was as follows; — •• At the lime of the conveyance hy William .Mact^ieeii to(!olonel Hy, the 'J(l •' land (the said 1 lO acres) had heeii set out for the piu'poses of the ('anal, '• and was theiffore in the actual |K)ssi'ssion of the Ci\)wii, and by the "■ Statute vested in the Crown. This conveyance was void as to the 110 •• acres under the Statuie *J.!, lien. Hth,ch. !t. 'I'iiis principle was estah- " lished in numerous cases in I'pi'cr (^anada lH)th liefore and since the '• date of the Deed from .Mact^ieeii to Colonel Iiy, and was the well " setth'd law of ihe laud until the passing ol" the Statute in ISO, legal- " izing the contract of a mere liiilit of entry into or upon lands whether •' immediate or future, vested or c(»ntingent." The Chii'f-.Fustice eiteil ■• the cases of the Hishop of Toronto /s. (Jantwell, I 'J C. C. ('. P., p. Oil, :\\) •• and Smith >t ueeii, and of oth Kehruary, 40 lS:i2, hy William .MacCiueeu to Coloiu'l M\ , "were void as to .said I 10 •• ai-res in dispute, unless made ior the henedt of the Crown, if not, then it (tl le I'onveyanct ) wa s void The Deed heinji declared void, the aid judgment has not since l)een disturlied. •I I lltli Tlic Siippliimt iiiiikf'M no claim by thiH Hiiit for tho mvid '20 iicri's lu'tiially iimiuI i'nv the Huiil (Jaiial anti its works, iior for tlii-ir valiif, wliicli l»y tlifir UMfi for llic Cuiial and l»y law iKicainc pcrrtoiialty, liiit mIic claims at ('ommmi liaw and Uy Stalnlc, tlu' ri-storation to licr of the said l)l> iicics oi" sii|K>rllii()ii.s lands alon'said which ii'maincd in specie and in their original (|iiiilit y ol'real propeity as when set ont and vested for the C.Mnil purposes and have never since liecome personalty expressly or Miipli(>dly. loth. 'I'lie Cntwn WHS not jiistilied cither at (Common haw or by HI the Jtidean Cannl Act to set aptnl i'roni the saitl patented hintls of (Jrace Mact^ieen and to have vested in itsidl and to retain in possession lor itw «>wn henefit, more thereul'than was ,;ctnally necessary and used lor the ('anal pMrp«»ses, which coidd only have been asct-rlained asdirirted hy the Canal Act alter the completion of the Canal, and the said ;i;reater tpuin- lity, to wit, the said 1M( acres lieinji^ tonnd not to he nec«'ssary nor used for the Canal and thereby snperlluons to its re(|nirements, were bound to be restored to their said owner, or to lur heirs or representatives and assijius as was practised by Her Miijesty actin;r by the (lovernment of Canada in sevi-ral cases of similar superliuoiis lands which were restored -fl in specie ti> the respective representatives of their owners, from whom they had been taki'n for Canal pui|)osi's inith'r thi- Canal Act, by Letters Patent to the said llepresenlatiM's withcnit beinjr subjected to any statu- tory or other real p-operty limitation whatever in respect thereof. Kith. The followinir amoii}; other Fjctters Patent lor such restora- . tion were issued, on behalf of the Crown, namely, one, by Letters Patent of Canai\\ .luly, Im77, re- spectively, copies wheri'of are hcrewilli for referenci-, which severally^ recite ; " that the said lauds set out and restored by the said Letters •;() ■' Patent were taken for the Canal purpo.ses under the Hidean Canal Act, " S (Jeo. IV., ch. I, U.C., and htdd by Her .Majesty, ami when so set out ■' were the property of their oriuinal owners, the (iranti'cs thereof whose •• rij;ht and property therein had ])asscd tt» their respective representa- •• tives or assijjjus, and were ri'stored to them, as no consideration in '• money was paid for them, and they were fiamd to be unnecessary for '' the purposes of the said (Janal, and therefore deenieil to bo just and "expedient to lestore them to their owners, rcprosi'ntatives or assigns." These forejioiu^' recitals expies-ing also the Siippliantssimilar j^roundsof clait for the restoration roipiired to l»e maile to her oftiie .said DO acres. 40 I7th. Tho law in cases oi compulsory taking of private lands for public utility is elementary, and will be foinid detailed auujug other re- ferences in nF 1:1. 6 Broom's Maxims, p. 1 & Scg. - Ikice Ultra Vires, p. 4.) & Sog.-, and Brown's Loxicon & Dictionary, &c., iVotn wliich the following extracts are taken and are there snpportcd by numerous anthorities: !;,,,,i„ p. ((f) Assuming that the general rights of all Government^ to inter- lere with the private property of individuals for the public defense antl utility are indisputable, ''it beh)ngs to the Legislafiire to decide what ■• works or im|)rovements are of sullicient importance to justify the exer- 10 •• i'ise of the compulsory power, and to luithorize by a i)revious law the •• taking of the necessary property under such regulations to prevent '• abuse or oppression, a; the necessity may recpiire and upon reasonable " compensation therefor, because the law cannot authorize the compul- '• sory taking of ])rivate property for any other purpose than public " utility and for reasonable compensation." (/>) '-The authority by Statute to take private property for public '■ uses under compulsory powers, uuist be considered only of such property •' within such limits as are nec<'Osary for the puldic p\n'pose which, by " the Statutory (iraut, may be taken for sucli purpose The restriction •JO •• imposed is that not more land shall l)e taken and api»ropriated beyond •• the limits prescribed by the necessity of tlie purpose, l)ecause the fran- •• ehise of the subject in ids property is in elVect a branch of the " Sovereign power subsisting in the suliject by a grant from the Sove- •• reign, and can be recalled only to the extent re.iuired by the public •• ];urpose." (r) •• Tuljlic advantage re(iuiring the I'xercise of competent powers '• to tak(! private property, it would be ullm rhr^ and against the general •' principle of all such compulsory powers lor the public goi)d to appro- •• priate more tlinn is necessary for the purpose. The arbitrary nature :;() •• of the taking powe«- must l)e indidged with caution; the true principle •• iij-plicable to all such ciises being, that tlie i)rivate interest of the in- '• dividual is never to be sacrificed to a greater extent than is necessary •> to secure a pul)lic object of adeijuate imiun-tance." So held by Lord I/mgdale. .M. It., in C denian m. the Extern Ciunti.'s MM. (Jo., 16 L..I., Ch. p. 7S, and not since disturbed, " that since the public intere.-t is " to i.rotect the private right ..f individuals, and to save them from liii- " bilities which the powers by such Acts neces, Act, or than is iiece.s..arily ami properly in •• re(,uired Ibr the purpo.se, whiih it has .siiu^tioued." And, in U) Beaver Hep., p. , it is hiid down, " • that a Corporation has no existence for any •• other purpose than that for which it was created.' Therefore lands Itrirr |i, •„■,•. p. t:; 0».V.r.Sll' 6f.H..N 8.f .. 10 Bri^c, p Ir .-,.. ... i::. 5 0. K..N S..].. 171 21H. .I.('ii..|.. -10. S.B.. 10 y. I!.,, 1.;, " set apart for a special undertaking, but not re(iuiro(l nor used therefor, " are in excess of the power exercised," and in Great Western R. R. Co. rs. May, L. R., lie. of Ls. R., p. 282, it was held, ' that superlliious land " is land ac(|uired by the promoters of iin undertaking but not re(iuired " therefor. The word nijuiml does not mean demanded but necenmri/, " and when it cea.ses to be iirrcsntd-t/ it becomes Kiipcrjlaom, and if laore " land is (aken Ibr a spccinl pm-pose than on the execution of the work '■ appeared to be needetl, or, if taken tenipuraiily for such piiipose, when '' sucli purjtose is ascertained and it is not re([uired." Ill ('/) IJrice in ultra rin-^ also explains tiie distinction of ti»e practice of the compul.-^ory powers as exercised in C!re;it Britain and in the United States. " In (Jreat IJritian in determining ipiestions ol'ownersiiip, little " weight is att;iched to the mere I'act of the coMH)ul.- rircs in connection with " the public undertaking. The doctrine has curtailed the i)owers and '* obligations ol" Corporations which exist ft)r the attainment of certain '• objects only, and if their powers are not expressly tliey iire iui|»liedly '• restricted to such only as are necessary for the attainment of their liO " object, and conseipiciitly. they can perform no act or enter into no " tran.sactioiis, iScc, liut -ii as spring out of or ai'i- otluTwise inciib'utal '* to the j)urpo.-- ;;() •• seuci' of s[)ecial powi'rs to the contrary, very seldom, and if the Cor[)o- •' ration be within the Lands (Manses Act uevi-r can such lands be re- '' tained by it or alienated to others. Tiiey are governed by the provi- " sions of their Acts of Parliament, whether general or special^ which '• govern the /^/vrm riuhh of the parties interesti'd. Sj)ecial powers and ** privileges to take lauds compulsorily are given in a i/iiti/ijied iiuhhk r, •• 111)1 (disoli(triii I. :; M..>, i-ii hi'i l')\|ir.i|.ii;i I'll, |i. .■)!. (/) Similar com|)ulsory powers e.\ist in force in France and are recognized law from the buildin;; ol" the Canal of Languedoc two centu- ries ago. The jurisprudi'iice was then .settled and is still retained as a principle of public polii-y, where it is held that, '• no per.son can be de- *' i ., conditional accjuisition, and only for purposes •• ol' public utility trarnn.!' i/'i/tilifr jm/i/it/Kr. If this purpose is not realiz- '■ ed the expropriated owners or their representatives or assigiKs, lev an- '* cirji-s f)ri)firufy surrender to the Crown have since their setting out and vesting as aforesaid, anil s|iecially siiu-v the completion of the Canal without deviation thereof, have i)een unjustly retained by or through the Crown as aforesaid. 'JOtli. The foregoing establish the (Jomnion Law claims of the Suppliant, which is also vindicated by Statute Law, to wit, by the I'uited Canaila Act. 7 Vic , ch. 1 I. known as the Ordnance Vesting Act, which declaring that it was expedient to sell from time to time such por- tions of tlie laiuls and real property within the Province (to wit, the United Provinces of fiower Canada and ri)per Canada) held for military defense and to provide for the better administration of said lands and real property, authorized Her >L'ijesty to transfer and did in ellect tran.s- fer to the'4)riiu'ipal Ollicers of Her Majesty's Ordnance in i]ngland in trust for Her Majesty, Her Heirs and Succe.s.sors, all the said lands and real property referred to in the said Act, and specially the lands and real property within the said United Provinces described in the Lands Schedule annexed to the Act, including particularly " the -iuid Ridcau " Canal at liytown constructed under the said Act S, Geo- IV., ch. 1, and " the lands ami other real property lawfully purchased and taken and '' set out for the purposes of the said Canal," the said transfer .so made under the ixmicrs by Ihv Art ijfaatcd to the naid itrimipid ()(firi'rH and sab- Jert to the prnrisioiis of the sdii/ Art, to -Wit ixa iix\>res^ci\ iu the 1st and the '29th Sections ol" the Act as follows, as by the lirst Section : "t^ 1st. " Exempting from the operation of the Act all property 4K?- •J( ;;(i I'll I 10 •h, II.: ^ 2'.> " quired by the Provincial Covornmunt for Provincial puriHWcs, a) though '* in charge of the Ordnance Department." 2nd. " E.xeinpting as aforewaid lands before the passing of the Act •• granted by Her Majesty t)r Her Koyal Predeces.sors to any other per- " son unless «ubse(juently to the grant, lawfully purciiased or acquired •' or taken for the purposes of the Ordnance Department." r>rd. " Not to impair, diminish or allect any right, title or claim •' vested in or possessed by any person or party at the time of the pass- •■ ing of the Act to in or upon any laiuls or real property whatsoever," HI and, 4th. "Not to give to the said principal OHicers any greater oi- '' better title to any lands or real pro|)erty than is nt)W vested in the •' Crown or in some person or party for the <,'rown," and as l)y the 2S)th Section the following proviso therein enacted as follows: "provided al- " ways and be it enacted, that all lands taken from private owneis at •' Bytown under the authority ol" the Rideau (JaiuU Act for the uses of " the Caiml which have not been used for that pur[)ose be restored to the " party or parties from whom they were taken." Under the provisions and exemptions enacted in the lirst Sin-tiou of ■-II the said W'sting .Vet, the said 90 acres of superlluous lauds aforesaid un- necessary and uiuised for the Canal piu'poses, were in fact and in elVect exemi)ted from the operation of the said Act as forming part of the Royal Ijaud (irants to .said (jirace MacQueen now represented for the said laiuls by the Supi)liant, her heiress-at-law therefor, which were '• neither •• lawfidly [)ur('hased nor ac(|uired for the purposes of the said Ordnance •• De])artment nor for the Canal," nor surrendered to Her .Majesty nor [)aid lor out of Imj)erial or other public funds therefor, although retained by the Crown from the owner thereof or her said representative, "whose "right, title and claim possessed by her to the said lands," were bv :)(l the said provisions and exemptions '' lu^t to be impaired, diminished or •' alVccted by the said transfer to the said Ofllcers, who under the said '' provisions and exemi)tions were to have no greater or better title in or " to the said lands than Her Majesty had," and which said lands more- over as being in fact part of the "lands taken I'rom private owners at " IJytown under the authority of the Rideau Camd Act and which have •• not been used for the purpo.se," by the said proviso enacted in the 2{)th Section of the Act, were ordered " to be restored to the party or [)arties " from whom they were taken." These mentioned [irovisions and exemp- tions in the nature and purport of provisoes to the Vesting Act, are (juali- 40 lied by Dwarris as follows, "A proviso to an Act is something engrafteil *'upon a preceding enactment and is legitinuitely used lor the purpose of •' taking siK'ciiil cnwi'M out orilif ;.a'iu'nil i-iiiu-riiu'iit iiiid inovidiiig H\n>- '• rh\\\\ H.r tlu'in;" iiiul in Note II, \>. lis, it is addi'd, "tliu cHicc of ii •• proviso gciii-nilly is I'itlicr to rxcrpt soinciliiiiw Irom the t-Miartiiig •* clause' to restrain its gcncialilv. or to cxcludo sonu- possiMo gmund of •• niisintfiprctiition of it as oxtcnding t(» casi's not intended hv the Legis- " lature to l)e within its purview. " The proviso enaetineut. iiowever, preventing tiie3rineipal Onicors from retaining possession ol' certain of the inmsed CanjiT hinds at Iktown among whicii wa.- a hirge portion owned In Nitiiohis Sparks, tU)ul»ts ami I" (fi- '• rern 7.w uiidir H \\>v tlicir uiiihciI laiidH al JJvtowii tiii;,'iiially taken and Itrld hnl not iisi-d hy llu! Crown lor ('Hinil imrpoHCM, and aw Mncli it cannot Ik- rcsfrainnl hy n-strictive laws nor litive it.x (.'oninion F^aw ri}j;lit aliridjrcd Ity nii-ndy |MTnii«.Hivc words, and tliori-- liirc nin|naliru'dly itrotrcts tin- said IH) acres iVoni the operation of the transfer ol' the Vestinu' Act, leaving to th(> Suppliant her rij-htful claim at ConiinoM [i'lw to the said IK) acres, even irrespectively to her right iinder the said proviso. H) As to the matter of^efence to the cltiim, the objection of the Statute of [iimitations raised against the claim of the Snppliant for the recovery and rt'storation to her of the S4iid '.Ml acres of snperlluous lands is answered l)\ tlii" fact of hei' disaliiiitv of havin"- no lu-rson to sue there- lor and 1o_ wai^e her n'nieih llicrelor, because Limitation means aL'ainst some one, and "there must be not only a pt'rson to sue but a pcr- •• son to be sued." An^i'il liiiiiitiitioiis, No (I'J. WilkiiiNoii on Limita- tions, p. ol, .says, "to support the pK-a of the Statute there must l)e not " only a caii.s(' of action and a person to sue and l)e sued but a jurisdic- " tioii in which the action ina\ Ik' Miaintained. Cause of action is tin- •JO " rijfht to prosecute an action with effect and no one can ha\e a complete •• cause of action unless there be some person that he can sue, and no|laches •'can be attributed to one lor not suiiif^ whilst there is no one against ' whom he may bring his suit." it is notorious that until the existence ol'the Dominion liegislalion of IsTti the Suppliant was under disability to sue ll«'r Majesty in Ontarioj/lfri^oc/intil tlu- IVtition ol liight Act of that year, and the exclusive original cognizance of I'etitions of Rights thereby conferred upcm the Exclie(|uer (Vturt of (.'anada established in Ik7.'), Her Majesty could not be .sued ellectually in Upper Canada, now ')ntario, where the lands in (luestion are situate, and only at and froiii ;;(l the said year ISTO could Her Majesty be impleaded by suit or action in a conii>etent tJoiirt as between sul)ject and subject. Until therefore the incapacity so to sue Her Majesty was removed, the time of the Suppli- ant's disability was by law excluded from the computation of the time of limitation. Statutes of Limitation as regards the Crown are not retro- spective, as explained by Blackburn, J., concurred in by Cockburn, C.J., in Bristamjee *x The (iueen, L. K. !,({. B., p. 487, " if a Statute of "Limitations existed it has relation to actions between subject and sub- "ject; there is no pretence for saying that the Statute of Limitations "applies to the Crown at nil. It would be proper and right and judici- 40 •' ous for the Legislature to pass an Act to say that !a future some Sta- *' tute of Limitations shall apply but it has not been done yet." In this respect the Dominion Legislature has anticipated that of the Empire and here Her Majesty nniy be impleaded by Her subjects. In the United 13 States " Statutes of Limitation are not retrospective and being applied " only to a right of action which is to be commenced in future do not im- » pair vested rights." Angell, No. 22. See also 20 Grantf, Ch. R. U. C, p. 273. The Canada Central li, W. vs. The Queen. The i)lea of the Statute can have no eflect or begin to run until after the removal in 1876 <'f the Suppliant's disability to sue. The ol)jection that the claim of the Suppliant is barred by the lapse of time by her being out of possession of the said hinds in (juestion , and by the provisions of the Statute of Limi- 10 tations of Ontario is also answered by the fact of her disability to take proceedings by ejectment or other real action or .suit or writ of rijjjht asrainst Her Majesty's illejial and unauthori/A'd detention of the said lands from the said Suppliant. This objection is the so-called pre- scription of long years for giving or taking title, in efiect to divest the Suppliant of her right of i)rop;Mty in the lands in (juestion, and to ac- quire them to the Crown liy adverse po.s.sessioii. This i)rescription I'or title rests upon the supposition of a legal origin of the right and to complete the title acting \\\)0\\ pres\uui)tions such as the determination of a limited [jcriod to make an entry. No mere length of possession will in 20 law iuuount to a presumption of title; it merely excludes objections to a title which is [iriuKi fiuii- gotxi. and which by a long time in belief of the possession has so remained^witliout having been the subject of any claim or controversy, in other words without having been legally interrupted. It is only a fact with others to deterniiiie whether a conveyance has actually taken place. Broom says, "It is a general rule or maxim that " prescription does iu)t run ngainst })ersons not entitled to sue or not " enabled to sue lor their demands, loiilni iioii caUiiicin (lycre nan. currit " prr-siripflo." This is the rule of law between subject and subject, but until 1HV<) the possession of the Crown, however it may have originated :i() or been continued could not have been interrupted or arrested by pro- ceedings in justice before a competent Court^and till then prescription by mere possession could not run for Her Majesty. In respect of the said DO acres in (piestion, their tjuasi or temporary possession by the Crown was for the [)articular purpo.se of the Canal, and that purpose was limited under the Connnon Law for lands actually used and paid for or ascer- tained for payment being in possession of the Crown for the special pur- pose; the Crown could not be dhspossessed until the use for the purpose was declared anil given up by the Crown ; as was declared by the Adver- tisement abo\e referred to of February, 1869, by the Secretary of State 40 acting for Her Majesty for the sale as of building lotsof the lands mention- ed, being part of the said 90 acres.' After that, the mere detention by the (Jrown is no possession, the purpose of the possession cea,sing, the power to hold also ceases. Until the Crown declared its non-use of the said excess 14 as by above Advertisement of Sale, tlie disability of the Statute lias no eflect and tbe Crown remains a holder in trust for the o\vnerf«6i merely nominal holder against outside pretenders ; during that forcible divest- ment, the principle of law holds against the disal)ility of the Statute. The plea of the Crown imUuni hiiifnt.^, &c., runs for the (iueen, but when the use is abandoned, the rule of the subject, riifHaiififms, &c., runs for the subject, and oidy from the cessation of the use could the limitation for the (Jrown by adverse poss-sion begin to run, because oidy then the disability is removed from tliL; Owner or Claimant, and until then the rule id r()/,frt'y sc is only an introductory part to a link in the chain of title; by pos.session and will not simply of itself, however long continued, liar the right of I'litry of him who was .seized, and will create no ;;() positive title in any case. It might only be such a possession which the •M. R. said, ill the case of Lord (^holmondsley cs. Lord Clinton, 2 Jac. i.*c Walk R. 1, " however long continued it might be could never ripen into a '• title against anybody." Every presumption therefore is to be made in favor of the true owner, and a bare possession is evidence of no more than the fact of present occupation, and in 3 Cruise, Dig. 485, it is laid down, '"it follows that no person can plead the Statute of Limi- " tation unless his pos.session has been adverse to that of the person who " claims against him." The term adverse possession denotes di.sseisin expressive of any Act the necessary eifect of which is to divest the estate 40 of the former owner. The tendency of modern decisions in England has been to disclaim the admi.ssion of any species of disseisin where the con- sequence would be to work moral injustice, and particularly where the party entered by a good title ; the old learning on the subject is much qualified by recent cases. Angell, No. 388, iu fine. The J ■4 ■!i& !< 15 reversionary right of the Chiiniaiit for the recovery of the said Hiiper- fluoiis lands is eHtabli.shed by Ch. 88, ss. 1 & -i of the Cons. Stat, of UpiuT Canada, 1R50, consolidating Ihe U. (J. Act -4 W., 4 ch., 1, enacting, " that when the estate or interest chiinied sliall hivve been an estate or " interest in reversion or remainder or other liitin-c estate or interest, " &c., then such right shall be deemed to have accrued at the time at " which such estate or interest became an estate or interest in possession," and by a subsetjuent clause, •' that the ri<;ht to make an entry or to bring " an action to recover any land shall be deemed to have first accrued in 10 " respect of an estate or interest in reversion at the time at vviiicii the ■' same shall have become an estate or interest in jjossessiou by the de- " termination of any estate in respect of which such laud shall have I)ecu '■ held." The benefit of these enactments was supended so far as con- cerned the claim of the .Su[)pliaut until 1870 by the legislative existence of the said Petition of Right Act with its oiiginal cognizance of Peti- tions of Right by the Exchecpier Court of Canada removing therelty tin; Claimant's disability to sue Her Majesty as between subject and sul)ject, although in this case the determination of the conditional and tempoiary estate and interest and po.sse.ssion of the said supertluous lands had been 2(1 determined by the pulilic advertisement by the Crown in 18(j'J. it will be noticed that by the restrictions of the Rideau Canal Act and by ilu' (Common Law as above, the Crown interest and estate in the said 11(1 acres of land so set out for the Canal purposes was limited to so much thereol' as was necessary and used for the Canal where situated, luuneiv to the said 20 acres, actually n'(juired and u.sed theretbr, leaving the excess of UO acres superfluous and unused lands in s[)ecie and real [)roper- ty as when originally vested in the Crown for Canal purpo.-ies, and held in pos.-v wliicli tlicv could he Vostcd al)S()lnti'ly as a fco in the Crown, Tlic Cliief-Justice adinilrt that as at the time of the conveyance the said 110 acres were vested in the (.'rown us stated for Cainil i)ur])jses, no ahsohite surrender of those lands could he made without the iuithin-ity of the Crou n in whoso i)OHsessi(ni re, and that authority not licinj' ffiven the Deed was ahsolnttdy tl lev wo void as to them. The Chief-Justice also says in reference to this ima- l(t 'j-inarv .Mirrender that "if it was of a lesser ([iiantity tlmn that set apart, tl le suri)lus W( >u Id not he considered as vesting in the Crown," hut he omits to mention the converse position, equally effective in Law, " that " the Crown could not compulsorily vest in itself the excss of any larger " (piantity so set apart, remaining unrequired and miused for the Canal, '■ and therehy compulsorily divest the subject of her ])roperty even to the ■\tent ol'that actuallv used, which has never been piiid N o sucIj A ;i'eem.'iit or (' )ntra('t for Surrender haviuj,' been made, and no c )nsider- alion having l»eeu jjaid by the Crown for the landf soused lor the(Janal, altli;i;igh 1*0 acn's were so compulsorily used and the superlhious (piantity 'JO of 'JO acres compnlsoi'ily held in [tossession l)y the Crown, tlie Crown col dd assume or have no fee in the said snperlluous 00 acres, am nri( llln, nrcs, 101, says, -'the elVect ol' iiltm rlns upon tlie assumed fee by ••the /i(>hhr,\s not absolute, but indess surrounding circumstances" (which " do not o.xist hero) " raise a contrary iini)lication^ these fees are simply •• (lualilied and conditional, ])y reason whereof the ultimate and final re- '■ version remains in the original Grantor," (owner, or his representa- tive.) "Ti^make such fees there nnist be cimveyances to the parties in '•clear and explicit language nn\king them such and amounting to an ex tiniinishment of all the Grantor's ri •hts of re\-ersion or othi-rwise. ."(I T icri' beni'i' no su rrender lo the Crown of the 00 acres, there i-- no fee in them for the Crown. The etjiiitalde conversion of Colonel 15y"s void purehas"s into a valid couvevance in iMpiity for the benefit of the Crown is raided upon the as- sumption of his alleged fiduciary duty to the Crown as the Agent and Trustee for the Crown. The Deed of Conveyance shows no such delega- tion of power, and its adjudged voidance was on the gnnuid that the vendor William MacQueen had personally no title or right to make any conveyance whatever; without such power no sale could have b.-en efleoted tnul Colonel By's alleged purchase could have had no existeii. e 40 in favor of the Crown either directly or indirectly, as he coidd acciuire nothing under the void Deed. The circumstances before detailed show that the lands in (piestiim in this suit, to wit the said tlO acres of lands set out, but sni)erliuous to the re([uireuH'nts of the Canal, never were at WT 19 liny time llio property nv held in l\-J or in iiny wiiy ac<|iiiri!(l or imrclias- cdorpiiiil lor l)y tlic <'n)\vii mid were not neccHMiirv or nscd by ih*' Crown I'ni the Ciiiuil, and undiT tin- Common L.iw and l'id)lic Policy «§ KUi'li nnnt'ii'Msary and nnnsi'd and tuportluons landn, tlio Haid IM) acres (•von if so piUTlnisod could not Inivc been held in lee or in property bv the Crow II as uitliin tlie Stiitntory (Jrants of the Ridcau Cainil Act or the Cimiil lopiirenuMits, but subject to be divested iVoin the ('rown and restored to I heir owner or Ihc owner's representative, the Suppliant- It is clenieiilary to say that tli»' conversion by ere held by the Crown willioiit right (a- title as n Constructive Trust lor tlu Ownerorthe llcnreseiitative of the Owner, The absoliit(' want ol' property or pro- piiet(a-v iiilt'iTst by the Crown in the said superiluoiis land-^ ]»rcvented tlie allejicd conversion liy K(|iiit,\. mikI oI' right div ling the (•oii\eyan(,-e in I-:iw oI'm vciidoi' to sell iiiid oT ;i piirchiiscr to take, i*!:c., lel't the Deed ..rCoiivcNaiicc ;ibs(dutely void in Ivjiiity i'or the s;iid superlliuais lands, -" as it W!is adjudged to be !it Law In Chief-Justice Uichards by the judg- ment (.flliis iloiKUiiblc ('(Mirt in Is78. This e(piitable conversion sug- ii'ested b\ the Dcrcusc is therefore without foundation. QRDNANCE LANDS, OTTAWA. Puljlic Notice is hereby given, tliat on TUESDAY, the 16th Day of MAIK'II, Next, at Noon, at Gowan's Hall, Sparks Street, will be SokUov Let on Lease^ by Hector McLean, Anctioneer, to the highest bidder, the iollowing Lots and Pieces of Land, in Ottawa, and the Town.ship ul" Xepean : To Let or Lease for a term of Twenty-one years, Four Wharf Lots er^' Diidge, Nos. J>, It), 11 and 12. To be sohl, the following sub-Lots lying East of the Rideau (iinai, ly in Lot F, Concession D, Nepean : N..s, 2, 17, 18, 2(t, 21, 28, 2i>, .".0, :il, and ln'oken sub-Lots :)2 and 33. On the North of the Rideau Canal, being part of Lot K, (Joncession C, Nei)ean, sub-Lots 31, 35, 3G, and of Lot K, Concession B, sub-Lots 22, 23, 24, 2-5, 2G, 27; Gore of Gloucester, llogsback, front of Lot 21, sub- Lots 09, 70, 71 . In the City of Ottawa, on the South side of Maria Street, Lots 44, 4.'), 40, 47, 48, 49, oO, 51, 52, 53, 54, -)5, 50, 57. And on the North side of Gloucester Street, Lots 44, 45, 46, 47, 48, 19, 50, 51, 52, 53, 54, 55, -50, 57, and on the South side of Gloucester 20 Street, pieces of Land, nuinl)ered 51 , 52, 53, 54, 55, 5(5 ami 57 and b'tter A. Terras of Sale— Ten per cent, cash, and the balance in nine ('(pial tlu' rate of per cent. i>n uu|)al(l annuii 1 instalments, with interest amounts. Plans to be seen at the Ordnance Lauds Ollice. of this Department. Further conditions at time of sale. Rv Order, K. I'AIIENT, Under Secretary of State. WILLIAM F. COFFIN, Orilmince Lands Agent, Ottawa, February l8th, 180{». 21 CAUTION TO PURCHASERS At Ordnance Lands Sale, OTTA."W-A., The public are hereby notified that certain of the Lots (advertised by (lovernmont to be sold on the Sixteenth day of March, 1869, namely :— In the City of Ottawa, ON THE SOUTH SIDE OF MARIA STREET, Lots 44, 45, 40, 47, 4S, 49, 50, 51, 52, 53, 54, 55, 56, 57, and on the NORTH SIDE OF (ir.OUCESTER STREET, Lots 44, 45, 40, 47, 48, 49, 50, 51, 52, 53, 51, 55, 5(}, 57, and ON THE SOUTH SIDE 0F_ GLOUCESTER STREET, pieces of Land uumberod 51, 52, 53, 54, 55, 50, 57, and IclttT A, arc portions of the Land origiiial'y taken from Mrs. Guacf. Mc(iUEKX, dJocascd, for the purposes of the Canal, and being no longer r.^piired for the Canal, as the fact of their attempted Sale most clearly shows, now belong to her sole Heiress-at-Law, Miss Lucy McQuken, under and l)v virturof the proviso in the 29th Section of the Ordnance Vesting Act, 7 Victoria, Cap. 11, which declares that the lands no longer rcfiuired for Canal purposes shall be restored to the party or parties from whom the same were taken. Miss McQiTEEN now claims those lands, and is about to enforce her lights against all concerned. The Public are therefore hereby warned „ot to purchase., and on behalf of Miss Mc(iriCKN I b.-reby protest against the Sale. l/afrd Otfincii, \i}(h Mnnh. 1869. RICHARD R STEELE, Solicitor for LU(^Y McQUEEN