1891. The extension took effect 1st July, 1881. Judgment. able arguments have been presented to us KILLAM, J. Very full and by counsel for the Province for the propositions that the Provincial Legislature may prohibit the holding of lands in Mortmain within the Province by corporations, however incorporated, or impose conditions upon their being so held, and that under the provisions of our Acts relating to the Court of Queen's Bench, 38 Vic., c. 12, s. 1 (M. 1874), C. S. M. c. 31, s. 4; 48 Vic., c. 15, s. 7 (M. 1885), the English laws of Mortmain were introduced into this Province, and that no corporation can hold lands in Manitoba without a Provincial license. We do not, however, find it necessary to enter into a consideration of these questions. Before the territory in question was included in Manitoba, and when the Act, 44 Vic., c. 1 (D.) was passed, that territory was not included in any Province and was subject fully to the legislative authority of the Parliament of Canada in all matters. Whatever, then, might be the position in the Provinces, that Parliament could authorize any corporation to take and hold lands in the North-West Territories. It is difficult to conceive any more effectual mode of conferring such a power than is exhibited in the statute 44 Vic., c. 1(D.), the contract and the charter. And to wind up the transaction the lands are to be granted to the Company by the letters patent of the Crown. The argument for the Province is that the Provincial Legislature has a right to determine how lands in the Province shall be held, whether it is in the public interest that they shall be acquired or held by corporate bodies, or the conditions upon which they may be so held, although another authority may create the company and fix its corporate powers. But the Dominion Parliament determined these matters for the added territory and in respect of the lands in question before they became a part of Manitoba, and by the extension Acts that territory was to continue subject to the provisions thus enacted, both with respect to the railway and with respect to the lands. It is suggested, if I understand the argument aright, that 1891. these enactments still affected only the corporate capacity Judgment. of the company created, and that the question of the KILLAM, J. liability of the lands to be held by a corporation was left open to Provincial legislation. But it appears to us that the legislation of Parliament was complete and that nothing more was required to make those lands susceptible of being held by that corporation. The statute, 44 Vic., c. 1, (D.) shows that it was enacted upon public grounds, and that the Company was to be given the lands in return for a consideration of value to Canada. It is evident that the condition in the extension Acts was imposed to prevent such legislation by the Province as would deprive the Company of the price to be paid for its services. The condition, then, which the Province now seeks to impose upon the Company's enjoyment of a portion of that price is certainly inconsistent with the provisions of the Dominion Acts relating to these lands. 66 No distinction has been suggested upon the words dispose of, sell or contract to sell or grant" used in the case, and it does not appear to us that any arises. We will, therefore, answer both questions in the affirmative. 1891. Statement. SPRAGUE V. GRAHAM. Before BAIN, J. Real Property Act-Petition-Necessary Allegation—Practice. Where a petition to enforce a caveat, lodged pursuant to section 130 of The ARGUED: 19th February, 1891. DECIDED: 19th February, 1891. THIS was a petition to enforce a caveat lodged with the District Registrar pursuant to section 130 of The Real Property Act of 1889. The petition was filed after the expiration of one month from the receipt of the caveat by the District Registrar, but did not allege that the certificate of title was not issued. W. H. Culver, Q.C., for respondent. The petition is defective in that it does not allege that certificate of title not issued. J. S. Hough, for petitioner. BAIN, J.-Sec. 130, s-s. 2, of the R. P. Act, 1889, provides that, after the expiration of one month from the receipt thereof, the caveat shall be deemed to have lapsed, unless the person by whom or on whose behalf the same was lodged shall, within that time, have taken proceedings under the rules in schedule R. to establish his title, etc. But sec. 43 of the Act of 1890, provides that, notwithstanding anything in the said chapter 16 and amendments contained, a petition under a caveat may be lodged at any time before the issue of the certificate of title. In McKay v. Nanton, 7 M. R. 250, when the petition was filed before the expiration of a month after the caveat had been lodged, I held that the petition was not defective for not alleging that no certificate of title had been registered, as I would assume that the directions of the statute would be obeyed, and that, a caveat having been lodged, the District Registrar would not bring the land under the new system as long as the caveat was in force. But the case seems to me to be different where, as here, the petition has not been filed before the expiration of the month. The effect of sec. 43 of the Act of 1890 cannot be, as was contended, to repeal sub-sec. 2 of s. 130. The provision in the sub-sec. stands, and it is competent for the District Registrar, after the month has elapsed and no petition has been filed, to proceed with the investigation of the title, and to issue the certificate of title to the applicant. But then, by sec. 43, if after the expiration of the month, but before the certificate has issued, the caveator still files a petition, the caveat revives, as it were, and matters are put in the same position that they would have been in had the petition been filed before the expiration of the month. But a caveator can get the benefit of sec. 43 only in cases where the certificate of title has not issued; and, as there cannot be the assumption where the petition has not been filed till after the month has expired that there is when it is filed within the month, that the certificate has not issued, I am of opinion that the proceedings are defective in not shewing that the certificate had not issued. It is the fact that it has not issued, that enables the caveator to proceed with his petition, and it is incumbent on him to show to the Court that he is so entitled. The defect, however, seems to be one that I have power under rule 15 of schedule R. (s. 38 of Act of 1890) to allow to be amended, and I allow the caveator to amend as he may be advised. 1891. Judgment. BAIN, J. 1891. Statement. RE NICHOLSON & THE RAILWAY COMMISSIONER. Before BAIN, J. Arbitration Award—Expropriation—Railway Company-Compensation for lands injuriously affected-Prospective value. The compensation allowed to owners, for lands expropriated by railways under the Manitoba statutes must be limited to compensation for injury to land, or to an estate or interest in land. N. owned lands on the bank of the Red River, on which he carried on an ice business. The ice was hauled from the river by teams and stored in buildings on the land. A railway expropriated a portion of the lands immediately adjoining the river, so that the railway passed between the remaining portion and the river. The arbitrators awarded compensation, in addition to the value of the land and damage to buildings, for a contrivance called an endless chain, which N. intended to use for hauling ice from the river to the storage buildings, but would be prevented from using by reason of the railway passing between the buildings and the river. This contrivance was not in use when the land was taken. On appeal from the award Held, That the arbitrators should have considered the land as it stood when taken by the railway, and not have allowed any additional compensation, because the owners might, at some future time, desire to use appliances which the railway would interfere with. ARGUED 23rd January, 1891. DECIDED: 20th February, 1891. THIS was an application, under the Railway Act of Manitoba, and amendments (in 52 Vic., c. 35, s. 16) by way of appeal against an award giving compensation to Nicholson & McNaughton, for portions of their land that had been taken by the Railway Commissioner for the Red River Valley Railway. It appeared that Nicholson & McNaughton carried on business as ice men in the City of Winnipeg, and owned, and occupied for the purposes of their business, lot 38 and a portion of lot 37, D. G. S., St. Boniface, fronting on the Red River. The railway runs across the front of both lots, |