Atlantic Concrete Ltd. v. MacDonald Lavatte Construction Co. Ltd. and Sydney Steel Corp., (1975) 12 N.S.R.(2d) 179 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 31, 1975
• Jurisdiction: Nova Scotia
• Citations: (1975), 12 N.S.R.(2d) 179 (CA)

Atl. Concrete v. MacDonald Con. (1975), 12 N.S.R.(2d) 179 (CA);

       6 A.P.R. 179

MLB headnote and full text

Atlantic Concrete Ltd. v. MacDonald Lavatte Construction Co. Ltd. and Sydney Steel Corporation

Indexed As: Atlantic Concrete Ltd. v. MacDonald Lavatte Construction Co. Ltd. and Sydney Steel Corp.

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.

June 16, 1975.

Summary:

This case arose out of a claim for damages for the wrongful conversion of rock stockpiled at a quarry. The plaintiff was granted the right to extract rock from a dolomite quarry. The plaintiff's right to extract the rock was terminated at a time when the plaintiff had stockpiled at the quarry 7,089 tons of material. The defendant removed the stockpiled material from the quarry without the plaintiff's permission. The Trial Division allowed the plaintiff's action and awarded the plaintiff $14,006, damages plus $2,000. exemplary damages. The judgment of the Trial Division dated September 3, 1974, is not reported in this series of reports.

On appeal to the Appeal Division of the Nova Scotia Supreme Court the $2,000. exemplary damage award was set aside but the judgment of the Trial Division was otherwise affirmed. The Appeal Division stated that the plaintiff's right to extract rock from the quarry was an interest in land and that the provisions of the Sale of Goods Act were not applicable. The Appeal Division held that the stockpiled material became the plaintiff's property the moment that it was severed from the soil regardless of any provisions for payment.

MacKeigan, C.J.N.S., dissenting in the Appeal Division, would have reduced the plaintiff's damage award to $356. MacKeigan, C.J.N.S. stated that the stockpiled material was subject to the provisions of the Sale of Goods Act and that, except with respect to 89 tons of armour stone, the property or title to the stockpiled material did not pass to the plaintiff. MacKeigan, C.J.N.S., stated that the title to the stockpiled material did not pass to the plaintiff because the material was not 'unconditionally appropriated to the contract' within the meaning of rule 5(1) of s. 20 of the Sale of Goods Act - see paragraphs 52 and 53.

Real Property - Topic 7264

Profit a prendre - Ownership of subject matter of the right - The plaintiff was granted the right to extract rock from a dolomite quarry - The plaintiff's right to extract the rock was terminated at a time when the plaintiff had stockpiled at the quarry 7,089 tons of material - The defendant removed the stockpiled material without the plaintiff's permission - Whether the stockpiled material was the plaintiff's property - The Nova Scotia Court of Appeal allowed the plaintiff's action for conversion and awarded the plaintiff damages of $14,006. - The Court of Appeal held that the rock became the plaintiff's property the moment that it was severed from the soil regardless of the provisions for payment.

Real Property - Topic 7261

Profit a prendre - Definition - The Nova Scotia Court of Appeal stated that a profit a prendre is a right to enter the land of another person and to take some profit of the soil or a portion of the soil - The Court of Appeal stated that a profit a prendre is a grant of ownership of an interest in land - See paragraphs 65 and 83 to 85.

Damages - Topic 1301

Exemplary damages - Wrongful conversion of goods - The defendant removed stockpiled material from a quarry without the plaintiff's permission - The Nova Scotia Court of Appeal set aside an award for exemplary damages where there was a question as to the plaintiff's title to the stockpiled material - See paragraphs 77 to 81 and 100 to 102.

Cases Noticed:

Berkheiser v. Berkheiser et al., [1957] S.C.R. 387, folld. [para. 25].

Duke of Sutherland v. Heathcote, [1892] A.C. 475 (C.A.), folld. [para. 26].

Lynch v. Seymour (1888), 15 S.C.R. 341, folld. [para. 26].

McLeod v. Lawson (1906), 8 Ont. W.R. 213 (C.A.), folld. [para. 26].

Detomac Mines Limited v. Reliance Fluorspar Mining Syndicate Limited, [1952] O.R. 783, folld. [para. 26].

McColl-Frontenac Oil Company Limited v. Hamilton, [1953] 1 S.C.R. 127, folld. [para. 26 & 66].

James Jones & Sons, Limited v. Tankerville, [1892] 2 Ch. 440, folld. [para. 34].

Kursell v. Timber Operators and Contractors, [1927] 1 K.B. 298 (C.A.), folld. [para. 35].

Heilbutt v. Hickson (1872), L.R. 7 C.P. 438, folld. [para. 35].

Hingley v. Lynds (1918), 52 N.S.R. 422 (C.A.), folld. [para. 36].

Joggins Coal Company Limited v. The Minister of National Revenue, [1950] S.C.R. 470, folld. [para. 39].

McColl-Frontenac Oil Company Limited v. Hamilton, [1953] 1 S.C.R. 127, folld. [para. 40].

Morgan v. Russell & Sons, [1909] 1 K.B. 357, dist. [para. 45].

National Coal Board v. Gamble, [1959] 1 Q.B. 11 (C.A.), folld. [para. 50].

Mason v. Clarke, [1955] 1 All E.R. 914 (House of Lords), folld. [para. 65].

Cherry v. Petch, [1948] O.W.N. 378 (Ont. High Court), folld. [para. 65].

Gowan v. Christie, L.R. 2 H.L. Sc. 273, folld. [para. 66].

Saskatoon Sand & Gravel Ltd. v. Steve et al. (1974), 40 D.L.R.(3d) 248 (Sask. Q.B.), folld. [para. 67 & 83].

Rookes v. Barnard, [1964] 1 All E.R. 367 (House of Lords), folld. [para. 77].

Cassell & Co. Ltd. v. Broome, [1972] 1 All E.R. 801, folld. [para. 77].

Banks v. Campbell (1974), 45 D.L.R.(3d) 603, folld. [para. 78].

Denison v. Fawcett (1958), 12 D.L.R.(2d) 537, folld. [para. 79 & 100].

Morgan v. Russell & Sons, [1909] 1 K.B. 357, folld. [para. 86 & 89].

Anglo-Iranian Oil Co. Ltd. v. Jaffrate, [1953] 1 W.L.R. 246, folld. [para. 93].

Statutes Noticed:

Sale of Goods Act, R.S.N.S. 1967, c. 274, sect. 1(h) [para. 43]; sect. 20, rule 3 [para. 73]; sect. 20, rule 5(1) [para. 49].

Counsel:

A.J. Mollon, for the appellant;

A.R. Moreira, Q.C., and R.W. Cregan, for the respondent.

This appeal was heard by the Appeal Division on January 31, 1975. Judgment was delivered by the Appeal Division on June 16, 1975 and the following opinions were filed:

MacKEIGAN, C.J.N.S. - dissenting, see paragraphs 1 to 62.

COOPER, J.A. - see paragraphs 63 to 82.

COFFIN, J.A. - see paragraphs 83 to 103.