Judgment. HAGARTY C.J.O. Long before the time of the grant, the Government had raised the waters of the Scugog by a dam, which naturally backed up the water on land above it, granted and ungranted. The plaintiffs admit that they cannot claim damages resulting from the continuance of this dam, but urge that the keeping up of bracket boards, something under a foot wide, have caused damage to them by throwing back water in the dry season when the river is low, which would not otherwise lie on their land. On the 13th of May, 1851, the Crown Lands Department assent to the proposal to purchase the whole lot, reserving all the land covered by waters, as they at present exist, formed by the mill dam on the River Scugog." I think the evidence fully warrants my learned brother Proudfoot's finding at the trial that at that date either the brackets were then on, or the water was so high as not to require them. I think it very clear on the evidence, that for a considerable time in the year when the river was full the water ran over the dam at a bigher point than the bracket boards could have raised it; or, in other words, that the penning back caused by the dam alone affected the plaintiffs' land in the extent of overflow as largely at least as the presence of the boards ever could affect the land when the river was low. We then come to the grant of the 10th of January, 1852, which of course is referable to the previous contract of purchase. The description is peculiar and very significant of the intention. 60 acres of land, more or less, are granted. They are not spoken of as a part of any lot, but an alternative description is added, viz: "being composed of lot number 9, in the 4th concession of Ops, exclusive of the lands covered by the waters of the Scugog River, which are hereby reserved." Therefore the grant did not pass any land so covered. I can attach no other meaning to this grant except that whatever land the Scugog River waters may cover in the Judgment. ordinary changes of the seasons, sometimes to a greater HAGARTY and sometimes to a lesser extent, are not to pass, but remain in the Crown. Once it is conceded that for some periods of the year, when no bracket boards are used, the waters cover the part now claimed to be injured, the plaintiffs fail in their proof of title. Their claim seems to rest on this, that in the dry season when the waters are low, the use of the boards press the waters back on the portion in question, when it would otherwise be dry enough for cultivation. But if during the full season such land would be covered by water for a considerable period by the action of the dam alone, then it seems to me it would be land excluded from the operation of the grant. It cannot be that it could be regarded as land reserved to the Crown during high water, but passing to the plaintiffs as soon as the water was low. We can fully understand that in the case of a lot which had to be servient to the user of a dam legally existing, any raising of the water by boards or other means beyond the legalized height might create an actionable wrong to the owner, by, as it were, increasing the burden of the servitude. In dry seasons his land would be kept wet, which otherwise might be dry. But the construction I feel bound to place upon this grant creates the difference in the cases. I think the judgment of the trial Judge should be restored. OSLER, J.A.: Neither in the pleadings, nor at any stage of the proceedings below, have the plaintiffs contended for the construction of the patent argued for in one of the judgments delivered in the Queen's Bench Division, viz., that the land. reserved from the grant was the land covered by the C.J.O. OSLER Judgment. waters of the Scugog River in its natural channel, i. e., the waters between the shores of the river in its natural condition. And I do no injustice to the learned counsel for the respondents in saying that they made no attempt to contend for the rights that such a construction would give them, but confined their complaint to the use of the bracket boards alone. It appears to me that the language of the description, when we attempt to apply it, is of such a character as necessarily calls for parol or extrinsic evidence to explain it within the limitations of Lord Wensleydale's exhaustive dictum on the subject in Baird v. Fortune, 4 Macq. at p. 149. He says: No parol evidence can be used to add to or detract from the description in the deed, or to alter it in any respect, but such evidence is always admissible to shew the condition of every part of the property, and all other circumstances necessary to place the Court, when it construes an instrument, in the position of the parties to it, so as to enable it to judge of the meaning of the instrument." See also Shore v. Wilson, 9 Cl. & F. at p. 565, per Tindal, C. J., and the passage from Taylor on Evidence, sec. 1194, cited by the learned Chief Justice Armour in the Court below. Now when the condition of the lot in question at the time of the grant is shewn it appears that it was a 200 acre lot, of which a very large portion was overflowed in consequence of the existence of the dam mentioned in the third paragraph of the statement of claim-a dam which necessarily had the effect of backing up not merely the waters of the Scugog River alone but also the waters which East Cross Creek contributed to it, and which had become part of the river before it reached the dam in question. It was of course physically impossible to distinguish what was covered by the waters contributed by the creek from what would have been overflowed by the river alone without those of its affluent, and therefore seeing that lot 9 was in fact partially overflowed at the date of the grant -seeing a permanent dam which accounted for its being OSLER in that condition-and seeing also that the quantity of land Judgment. professed to be granted corresponded with reasonable accuracy to the amount of dry land remaining in the lot, while there would be at least twice as much if the lot was not overflowed at all, it is evident that in order to ascertain the quantity really comprised in the grant, we must ascertain the meaning of the reservation "exclusive of the lands covered by the waters of the Scugog River." This might mean either the land covered by the waters of the river in its natural channel-an unusual and improbable reservation, considering that the river in its natural condition was a non-navigable one-or it might mean the waters as dammed back by the Lindsay dam, which would of course include the waters contributed to the river by its affluents before reaching the dam. Evidence was therefore properly admitted of the surrounding circumstances, and of the surveys, plans, and reports and applications preceding the patent, for the purpose of explaining this ambiguity, and of shewing what was really meant by the exception, and when admitted it shewed, I think, conclusively that the exception meant and referred to the land drowned or overflowed in consequence of the existence of the dam. It is unnecessary further to discuss the evidence on this point, as I agree with the view which has been taken of it by the trial Judge and Mr. Justice Street, and the other members of this Court in the judgments just delivered. The land thus excepted from the grant would necessarily comprise all that was liable to be overflowed at the usual period of ordinary high water, when the depth of the water flowing over the dam was two feet or thereabouts, and inasmuch as it appears that the use of the brackets for holding or retaining the water did not cause a greater or more extensive flooding than that caused by the dam itself at the period of high water, the plaintiffs have failed to prove that any land granted to them by the patent has been flooded either by the dam or by the use of the bracket boards. As I rest my decision upon the construction of the OSLER Judgment. patent, it is unnecessary to advert to the effect of the alleged interruption in the use of the bracket boards, or to the other questions argued. I think the appeal must be allowed, and the action dismissed. Appeal allowed with costs. Statement. Judgment. MENDELSSOHN PIANO COMPANY V. GRAHAM AND WEST. THIS was an appeal by the plaintiffs from the judgment of the Queen's Bench Division, reported 19 O. R. 83, and caine on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ. A.) on the 23rd of May, 1890. R. S. Neville, for the appellants. E. Coatsworth, Jr., for the respondent West. May 26th, 1890. The Court dismissed the appeal with costs, agreeing with the conclusions arrived at in the Court below. |