Page images
PDF
EPUB
[ocr errors]

person in whose favour it can run. Lightwood's Time Limit on Actions, 12.

But where the property is entirely enclosed by the person claiming by possession his mere absence does not, in my opinion, amount to abandonment or make the premises vacant. It may still be considered under his control, inasmuch as it excludes all others therefrom by his enclosure. If the owner himself claimed before the statute had barred him he could not reach his land without doing some act. He could not make an entry without at least breaking down, if not destroying, the fence. It is a notice to all the world that the property is claimed by someone, and that all others are excluded, and unless there is some act on the part of the trueowner to create a new starting point and the intruder retains possession by the enclosure and uses and cultivates the land as his own, either by himself or his servants, although not actually present in person or by his servants during portions of the year, the owner is excluded and his title barred after the statutory period.

Aside from the authorities, it seems to me plain that in the present case the owner's right of action first accrued when the lands in question were enclosed thereby excluding him. "No person shall make an entry or distress, or bring any action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims." Section 4, R. S. O. vol. 1. "Where the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession and has

been dispossessed

.

[ocr errors]
[ocr errors]

then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession."

It seems to me impossible to say, without disregarding the fair meaning of the word, that an owner of land is not dispossessed when another has enclosed his property without leave or color of right, and uses it as his own. By sec. 15, at the end of the period of limitation the right of the party out of possession is extinguished. Here, I can not doubt upon the facts as found by the trial Judge fully supported by the evidence, that during the period required by the statute, the true owner was excluded from possession by the act of the plaintiff who never abandoned the premises out of the

contrary "her possession has been all along, open, obvious, exclusive, and continuous. Until 1906, everything was done upon the land that an owner not residing upon it would do in reaping the full benefit off it, and since the spring of that year everything that an owner in actual constant occupation would do."

This is sufficient under the Act, in my judgment, to exclude any right or title of the former owner.

(Reference to secs. 4 and 15 of the Real Property Limitations Act; Halsbury's Laws of England, vol. 19, p. 110; Sugden's Real Property Statutes, 2nd ed., p. 47; Grant v. Ellis, 9 M. & W. 113, 128.)

The judgment in the Coffin Case may be supported by the facts which I have pointed out; but in so far as it purports to be applicable to a case like the present, and to declare that the winter months must be separated from the summer months, and that we must look at the acts of possession done during those months, by themselves, I cannot agree. And to that extent, and in so far as it is inconsistent with the view herein expressed, that case is overruled. The appeal is dismissed with costs.

MORRISON v. PERE MARQUETTE.

The plaintiff, who resided at Walkerville, on the line of the defendants' railway system, bought a return ticket from Walkerville to Marshfield (a stopping place on the defendant company's railway), and proceeded to Marshfield, intending to return by the evening train, which was due at Marshfield shortly before nine o'clock in the evening.

There had been a station-building at Marshfield, but it had been burnt down a couple of years before, and not rebuilt; but the point continued as an established stoppingplace on the line of railway.

The plaintiff arrived there to take the return train shortly before it was due, but the train was late-how late was not made known.

There was no place of shelter to which the plaintiff could go in order to await the arrival of the train, and accordingly he was obliged to remain at the stopping place in question, and being thus exposed to the weather for a considerable length of time, he contracted an illness caused by the omission of the defendant company to establish a proper building.

It was argued before us that the plaintiff's claim for damages was too remote, and reliance was placed upon claims for damages of that nature arising from breach of contract.

But the cause of action here is a statutory one. Section 284 of the "Railway Act" declares that "the company shall furnish at the place of starting, and at the junction of the railway with other railways, and at all stopping places established for such purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage upon the railway." And sub-sec. 7, of that section, declares that "Every person aggrieved by any neglect or refusal of the company to comply with the requirements of this section shall, subject to this Act, have an action therefor against the company, from which action the company shall not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the company or of its servant."

[ocr errors]

Here it was shewn that the company had failed to supply adequate and suitable accommodation" at Marshfield, the stopping place in question, whereby the plaintiff was exposed to the weather, and contracted the illness complained of.

There was evidence, which could not have been withdrawn from the jury, that the plaintiff's illness was occasioned by the defendant company's failure to observe the provisions of the section in question; and we agree with the view of the Divisional Court, and of the learned trial Judge, that the plaintiff's cause of action being a statutory one he is entitled to maintain this action in respect of the injury occasioned to him by the defendant company's failure to discharge its statutory duty.

We, therefore, think this appeal should be dismissed with costs.

MARITIME DOMINION.

A PAPER READ BEFORE THE INTERNATIONAL LAW ASSOCIATION AT ITS LAST MEETING.

When one considers the greatness and the grandeur of the ocean, it seems presumptuous to talk about the dominion of man over it. In a limited sense, however, the ocean is subject to us. The watery wastes of the world are a highway among the nations for all purposes, whether of war or peace, and the fish furnish food. The ocean is, in the full sense of the word, international. It is between the nations. Surely nowhere more than upon the sea there is scope for international agreement. It is sometimes said that the sea joins instead of divides the nations. Only in a very limited sense has that condition of things been realized. We find in history that the maritime policy of many States has been short-. sighted, exclusive, and narrow. It is not well that this be so. The tendency now is toward a broader and better point of view. My object is to help, however slightly, towards a recognition of the fact that the best interests of all can be served by international agreement. I go even further, and say that in modern conditions, if we would avoid retrogression, we must have international agreement.

The supreme position attained by maritime States was recognized by Ruskin when he wrote: "Since first the dominion of men was asserted over the ocean, three thrones, of mark beyond all others, have been set upon its sands: the thrones of Tyre, Venice, and England."

At least one other nation owed its greatness to the sea. The national power and wealth of the Dutch depended on their shipping trade, which in turn could scarcely have attained its importance apart from its fisheries. Between the Dutch and the English long existed keen rivalry, and many of the principles which have come to be recognized as applying to the question of jurisdiction over the sea took shape during the struggles and disputes between these two nations.

In the sixteenth century, nations first began to have world-wide interests. It was a time of expansion in every way. There was a new birth of knowledge derived from the

VOL. XXXIII. C.L.T.- -22

study of ancient writers. Another line of enquiry led to the displacement of the old idea that the world was the centre of the universe. It was realized that it moved. Discovery was also made of the great oceans and continents hitherto unknown to the inhabitants of Europe. Men found themselves in a wider world.

Some of the nations, for example, Denmark and Venice, had asserted certain rights over parts of the narrow seas. In the new state of things Spain and Portugal claimed exclusive sovereign rights over the great oceans. England, under monarchs of the Tudor line, made a stand for the freedom of the seas. Each nation adopted a policy calculated to serve its own interests, and abandoned that policy for another if circumstances changed. Thus, under the Stuart kings, who wore the crowns of both England and Scotland, claims were made to sovereignty over all the coastal seas around the British Islands, and to a vague dominion beyond. The right was claimed not only of compelling homage to the flag of England, but also of excluding foreigners from fishing in seas considered British.

The Dutch contested the pretensions of Spain and Portugal, and also the claims put forward by England to the sovereignty of the seas. Commercial rivalry between the Dutch and the English led not only to endless disputes and negotiations, but to several wars. These controversies have recently been admirably described in Mr. T. W. Fulton's book on "The Sovereignty of the Sea," ("The Sovereignty of the Sea," by T. W. Fulton: W. Blackwood & Sons, Edinburgh and London, 1911), a most comprehensive work, to which I am indebted for much information. Mr. Fulton points out that the birth of modern international law was associated with the controversies as to the freedom of the sea. "It was," he says, "the appearance of 'Mare Liberum,' in 1609, that heralded the dawn of the new epoch. The little book of Grotius was at once a reasoned appeal for the freedom of the seas in the general interest of mankind, and the source from which the principles of the law of nations have come." ("The Sovereignty of the Sea," page 338.)

The English reply to the Dutch was the publication of Solden's "Mare Clausum," asserting the right of the Crown of England to the dominion of the British seas.

Mr. Fulton has brought together in his book the various historical events which have occurred in relation to the ques

« PreviousContinue »