Bowaters (Nfld.) Ltd. v. Mines and Forests (Nfld.) Ltd. et al., (1976) 9 Nfld. & P.E.I.R. 391 (NFCA)

JudgeFurlong, C.J.N., Gushue and Morgan, JJ.A.
CourtNewfoundland Court of Appeal
Case DateApril 07, 1976
JurisdictionNewfoundland and Labrador
Citations(1976), 9 Nfld. & P.E.I.R. 391 (NFCA)

Bowaters v. Mines & For. (1976), 9 Nfld. & P.E.I.R. 391 (NFCA);

    12 A.P.R. 391

MLB headnote and full text

Bowater's Newfoundland Ltd. v. Mines and Forests (Newfoundland) Ltd. and Reid Newfoundland Co. Ltd.

Indexed As: Bowaters (Nfld.) Ltd. v. Mines and Forests (Nfld.) Ltd. et al.

Newfoundland Court of Appeal

Furlong, C.J.N., Gushue and Morgan, JJ.A.

May 20, 1976.

Summary:

This case arose out of an action for an injunction and a declaration with respect to the title of land. The defendant conveyed 1,326,915 acres of land to the plaintiff. The conveyance reserved to the defendant the mineral rights with respect to the land. However, the mineral rights could be exercised by the defendant with respect to not more than 20,000 acres of the land conveyed to the plaintiff. The Newfoundland Supreme Court dismissed the plaintiff's action for a declaration that it owned the mineral rights to the land and for a declaration that the 20,000 acre limitation was void because it was repugnant and violated the rule against perpetuities - see 7 Nfld. & P.E.I.R. 208.

On appeal to the Newfoundland Court of Appeal the appeal was dismissed and the judgment of the trial court was affirmed. The Newfoundland Court of Appeal held that the defendant was the owner of the mineral rights and that the defendant could enter and use for mining purposes not more than 20,000 acres at any one time. The Newfoundland Court of Appeal held that the 20,000 acre limitation was valid and was not void for uncertainty or repugnancy and did not violate the rule against perpetuities.

Deeds and Documents - Topic 2562

Interpretation - Meaning of words in a deed - General principles - The Newfoundland Court of Appeal stated that the meaning of the words in a deed is to be found in the words used in the deed if possible - See paragraph 6 - The Court of Appeal stated that it is only if the words are not clear that the intention of the parties alone must be considered - See paragraph 6 - The Court of Appeal stated that a deed must be construed as a whole - See paragraph 6.

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions in deeds - A conveyance of land reserved to the grantor mines and minerals - The Newfoundland Court of Appeal held that the reservation was valid because the reservation was contained in the habendum clause and was clearly stated - See paragraphs 10 to 12.

Perpetuities - Topic 1802

Rule against perpetuities - Interests to which the rule does not apply - Limitations on vested rights - The defendant conveyed 1,326,915 acres of land to the plaintiff and the mineral rights to the land were reserved to the defendant - However, the mineral rights could be exercised by the defendant with respect to not more than 20,000 acres at any one time - The Newfoundland Court of Appeal held that the reservation of mineral rights and the 20,000 acre limitation were not void - The Court of Appeal stated that the rule against perpetuities did not apply because the 20,000 acre limitation did not convey a property interest.

Practice - Topic 3524

Interim proceedings - Accounts - Conditions precedent to an application for an accounting - Proprietary interest - And owner of land claimed an accounting of minerals extracted from the land - The Newfoundland Court of Appeal dismissed the application for an accounting because the claimant was unable to establish a proprietary interest with respect to the minerals - See paragraph 9.

Real Property - Topic 7289

Easements, licences and prescriptive rights - Extent of right to mine minerals - Meaning of "use or occupy" - The defendant had the right to "enter upon, use or occupy" for mining purposes 20,000 acres of the plaintiff's land - The Newfoundland Court of Appeal stated that the words "use or occupy" mean more than a physical presence on the land and mean a presence that interferes with the use of the land by the plaintiff - See paragraph 15.

Sale of Land - Topic 4632

Restrictive covenants - Use limitation by maximum area - The defendant conveyed to the plaintiff 1,326,915 acres of land but reserved all mineral rights - The defendant agreed to "use and occupy for" mining purposes not exceeding 20,000 acres - The Newfoundland Court of Appeal dismissed the plaintiff's claim that once 20,000 acres had been used by the defendant the defendant's rights of entry to the land ceased - The Court of Appeal held that the defendant could enter and use not more than 20,000 acres at any one time - See paragraphs 16 to 20.

Words and Phrases

From time to time - The Newfoundland Court of Appeal discussed the meaning of the phrase "from time to time" as found in a limitation in a deed of land - see paragraph 16.

Cases Noticed:

Reid Newfoundland Company v. Anglo-American Telegraph Company, [1912] A.C. 555, dist. [para. 8].

Earl of Cardigan v. Armitage, [1814-23] A.E.R. Rep. 33, folld. [para. 15].

Pearce v. Watts (1875), 44 L.J. Ch. 492, dist. [para. 25].

Authors and Works Noticed:

Halsbury's Laws of England, 3rd Edition, Volume 26, page 332, paragraph 698 [para. 9].

Halsbury's Laws of England, 3rd Edition, Volume 11, page 394 [para. 25].

Counsel:

J.J. O'Neill, Q.C., for the respondents;

Clyde K. Wells, for the appellant.

This appeal was heard by the Newfoundland Court of Appeal on April 7, 1976. Judgment was delivered by the Newfoundland Court of Appeal on May 20, 1976.

The judgment of the Newfoundland Court of Appeal was delivered by Gushue, J.A.

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