CO885-(2-3) — Page 129

PUBLIC RECORD OFFICE

Reference --

C.O.885

3 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

No. 11.

Fishery Reserves. Presumption from possession against the Crown. Meaning of

** coast."

Sir,

14

No 11.

Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir G. GREY.

Temple, August 29, 1854. WE were honoured with his Grace the Duke of Newcastle's commands contained in Mr. Merivale's letter of the 14th January last, in which he stated that he was directed by his Grace to transmit to us copy of a correspondence which had passed between the Lieutenant-Governor of Prince Edward's Island and the Colonial Office, and a report from Mr. Hensley, the Attorney-General of that island, to the Lieutenant-Governor, of the 19th November last, stating certain questions on the subject of the Fishery reserves in that island.

Mr. Merivale then stated that he was to request that we would take the report in question into our consideration, and favour his Grace with our opinion on the several questions submitted by the Attorney-General of Prince Edward's Island.

That with reference to the 6th question asked by Mr. Hensley, Mr. Meri- vale stated he was to direct our attention to the provisions of the "Act to commute the Crown Revenues of Prince Edward's Island," and the Act to amend the same (especially Sections 12, 13, and 14 of the former).

In obedience to his Grace's commands we have taken the several docu- ments transmitted to us into our consideration, and have the honour to report— That we are of opinion that neither the 21st Jac. I, cap, 5, nor the 9th Geo. III, cap. 16 (by which a possession of sixty years bars the Crown under the exceptions contained in these statutes), apply to Prince Edward's Island.

The first of these statutes cannot, in any view of the case, apply, because it only applies to lands which had been enjoyed for sixty years at the passing of the Act.

The 9th Geo. III. cap. 16, does not apply, because at the time that statute passed Prince Edward's Island was part of the province of Nova Scotia, and the province had then a legislative constitution of its own. The statute, therefore, not being extended to the colonies, would not apply to Nova Scotia or Prince Edward's Island.

·

2. The question whether a grant should be presumed after sixty years' enjoyment would be a matter to be determined by a jury. It would be a question to be determined, under all the circumstances of the case. We think that if a jury should presume a lost grant, a Court would not disturb their finding.

3 The meaning of the term "coast" in the grant must, as it seems to us, be taken to mean the shore of what may be properly called the sea. Such is the ordinary acceptation of the term, and we see nothing to vary its sense in the present instance. We cannot, therefore, go the length of the opinion given by Sir F. Pollock and Sir W. Follett in that the term "coast" will include the

shores and bays, inlets and rivers, where the tide ebbs and flows. It may or may not comprehend the shores of bays and inlets, according to circumstances. We think it does not include the shores of rivers.

4. We are of opinion that the Crown cannot claim to be owner of 500 feet of land above the present high-water mark, in cases where the Crown having granted all the soil except the 500 feet nearest the high-water mark, the sea has encrouched on the land, and has swallowed the 500 feet so excepted.

The grant from the Crown vested in the owner all the soil, except a parti- cular 500 feet. The sea having swallowed up the latter, there can be, so far as the grant is concerned, no pretence for calling on the owner to make good the loss, and there is no prerogative right in the Crown to land so circumstanced.

5. We are of opinion that the fact of the Crown receiving land-tax since 1847 would not prejudice its title. Land-tax is paid (in this country, at least), from Crown lands when occupied by private persons.

The utmost effect of it would be, by way of evidence, to support a presump- tion of ownership in the soil; but its effect for such a purpose would be very slight.

6. An information of intrusion is the right mode of proceeding to establish

* Sic in orig.

15

the Crown's rights. It is true that by a local Act (14 Vict., cap. 3), the manage- ment of the Crown revenues of Prince Edward's Island was transferred to the General Assembly; but this is not material, for by a subsequent Act (15 Vict., cap. 7), so much of the former Act as relates to land was repealed, and the legal estate in ungranted lands was continued in Her Majesty for the benefit of the country.

The form of information proposed is correct, but it appears to us too minute in detail as regards the description of the land. It would be sufficient to give such a description of the locus in quo as would be sufficient in an action of trespass.

*

7. The onus of proving title would depend on the state of the pleading. If the defendant simply pleads not guilty," the title of the Crown would not be put in issue; and there will be no necessity to prove it.

If the defendant by his pleading denies the title of the Crown, that title must be proved. If he sets up title in himself, he will, such title.

have to prove

of course,

We say this, however, on the assumption that the rules of pleading in Prince Edward's Island are substantially the same as those in this country.

We have, &c. (Signed)

The Right Hon. Sir G. Grey, Bart.,

&c.

&c.

&c.

SIR,

Vancouver's Island.

No. 12.

A. E. COCKBURN. RICHARD BETHELL.

า

Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to

Sir G. GREY.

Temple, December 28, 1854.

No. 12.

WE were honoured with Mr. Peel's letter of the 7th September last, in Legislative power which he stated that he was directed to transmit to us copy cf an Act passed cannot be vested in by the Governor and Council of Vancouver's Island, intituled "An Act to

the Council by establish a Supreme Court of Civil Justice in the Colony of Vancouver's Island Colony by occupa-

Commission, in a and its dependencies," and to request that we would favour you with our opinion tion, but must be on the following questions:-

in Council and That Vancouver's Island was situated on the north-west coast of America, Assembly. was part of the Indian territories or parts of America not within the limits of Lower or Upper Canada, within the words of the Act 43 Geo. III, cap. 138, and was recognized as a portion of Her Majesty's dominions by the Treaty with the United States of 15th June, 1846;

That Vancouver's Island was erected into a separate Colony in 1849, under circumstances which would be collected from the annexed Charter or Grant of the Island to the Hudson's Bay Company; the printed correspondence between the Colonial Office and the Hudson's Bay Company thereon; the Governor's Commission and Instructions; and the Act 12 & 13 Vict., cap. 48, “to provide for the administration of justice in Vancouver's Island ;"";

That it was presumed (subject to our opinion on the point) that Vancouver's Island was a Colony by occupation, not by conquest;

That the Commission grunted to the Governor power, with the advice of

the persons designated in the Instructions, to constitute a Council to make and enact such laws and ordinances as might from time to time be required for the peace, order, and good government of the Colony. It also gave power to the Governor, with the advice and consent of the Council, to call together a General

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