Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. and Pelley, (1973) 5 Nfld. & P.E.I.R. 233 (NFSC)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 09, 1973
• Jurisdiction: Newfoundland and Labrador
• Citations: (1973), 5 Nfld. & P.E.I.R. 233 (NFSC)

Bowaters v. Pelley Ent. (1973), 5 Nfld. & P.E.I.R. 233 (NFSC)

MLB headnote and full text

Bowaters Newfoundland Limited v. Pelley Enterprises Limited and Cyril C. Pelley

Indexed As: Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. and Pelley

Newfoundland Supreme Court

At Trial

Puddester, J.

May 9, 1973.

Summary:

This action arose out of the plaintiff's claim against the defendants for damages for trespass. The Government of Newfoundland granted a timber licence to the Anglo-Newfoundland Development Company Limited, giving the company the right to hold the land for the purposes of cutting timber for 99 years for an annual rent plus royalties on timber cut. The timber licence was exchanged for another with the plaintiff, Bowaters Newfoundland Limited. Subsequently, part of the land was constituted a provincial park by the Parks Act, which prohibited cutting in the park. The defendants entered the timber land and cut and removed timber. The plaintiff brought an action against the defendant for damages and an injunction. The Supreme Court allowed the action and awarded the plaintiff $500.00 damages and granted an injunction against the defendants.

The Supreme Court held that the timber licence was a lease (paras. 11 and 12) and was assignable (paras. 13 to 17). The Supreme Court held that the plaintiff took all of the lessee's rights under the lease upon the assignment and was entitled to enforce its rights against the defendants by action (paras. 18 and 19).

The Supreme Court held that the trees were the property of the plaintiff and that the plaintiff was entitled to damages for removal of the trees from the park, notwithstanding that the plaintiff was precluded from cutting in the park (paras. 21 and 22). Further, the Supreme Court held that the plaintiff was entitled to damages for trees cut within 333 feet of the road, notwithstanding that the Crown was entitled to the trees under the Crown Lands Act (para. 23).

The Supreme Court held that an injunction was appropriate in order to protect the plaintiff from permanent damage. The Supreme Court held that the injunction would not be oppressive to the defendants, since they had no right to cut the timber on the plaintiff's leasehold property (para. 26 to 34).

Crown - Topic 6850

Crown lands - Public use of Crown lands for purposes of the fishery - The Crown in a timber licence to a company reserved the right of any person to cut timber for the "purposes of the fishery, for building vessels, for masts, for poles, for erecting fish flakes," etc. - The defendant contractor cut timber on the land for the construction of a center for fishermen under a government contract - The Newfoundland Supreme Court held that the timber was not cut for the purposes of the fishery and held the defendant liable for damages - Paragraphs 8, 24 and 25.

Damages - Topic 4281

Torts affecting land - Plaintiff with a limited interest - Statutory restriction on use of land - Crown Lands Act reserved to the Crown timber on plaintiff's property within 333 feet of a road - Defendant trespassed and cut timber on the 333 foot strip - Newfoundland Supreme Court held that the plaintiff owned the timber and was entitled to damages notwithstanding that the Crown was entitled to the timber when cut - Paragraphs 8 and 23.

Damages - Topic 4281

Torts affecting land - Plaintiff with a limited interest - Statutory restriction on use of land - Park Act prohibited timber cutting on plaintiff's leasehold property - Defendant trespassed and cut timber - Newfoundland Supreme Court held that the plaintiff owned the timber and was entitled to damages notwithstanding that the plaintiff was not permitted to cut the timber - Paragraphs 8, 21 and 22.

Injunctions - Topic 700

Principles - Considerations affecting grant of injunction - Balance between benefit to plaintiff and detriment to defendant and innocent persons - Defendant trespassed on plaintiff's leasehold timber limits and cut timber - Newfoundland Supreme Court held that an injunction would protect the plaintiff from permanent damage and would not be oppressive to the defendant, since the defendant had no right to cut timber on the plaintiff's property - Supreme Court granted an injunction restraining the plaintiff from further cutting - Paragraphs 26 to 34.

Injunctions - Topic 6930

Trespass by cutting on timber land - Defendant trespassed on plaintiff's leasehold timber limit and cut timber - Newfoundland Supreme Court granted an injunction restraining the plaintiff from further cutting - Paragraphs 26 to 34.

Landlord and Tenant - Topic 170

Lease distinguished from licence - Crown granted a company the right to hold certain land and cut timber for a term of years - Newfoundland Supreme Court held that the grant was a lease and not a licence, since it conveyed an interest in the land - Paragraphs 8, 11 and 12.

Landlord and Tenant - Topic 5120

Assignment of lease - Assignment of the term - Crown granted a company the right to hold certain land and cut timber for a term of years - The company exchanged the right to cut on the land with Bowaters - Newfoundland Supreme Court held that the grant was a lease and was validly assigned to Bowaters - Paragraphs 8 and 13 to 17.

Landlord and Tenant - Topic 5130

Assignment of lease - Assignment of term - Rights of assignee - Plaintiff was assigned a timber limit upon which the defendant trespassed and removed timber - Newfoundland Supreme Court held that the plaintiff took all the rights of the lessee under the lease - Supreme Court held that the plaintiff was entitled to enforce its rights against the defendant - Paragraphs 8, 18 and 19.

Landlord and Tenant - Topic 6700

Forfeiture - Option of forfeiture - Crown leased land to the plaintiff - Defendant trespasser asserted that plaintiff had no rights under the lease, since the plaintiff had breached some of its terms - Newfoundland Supreme Court held that the lease was voidable only at the option of the Crown and not by a person such as the defendant who had no connection with the lease - Paragraphs 8 to 10.

Torts - Topic 3000

Trespass to land - Basis of liability in damages - Plaintiff leased timberland from the Crown - Defendant trespassed on the property and cut timber - Newfoundland Supreme Court held defendant liable for damages for the timber removed and also granted an injunction restraining the defendant from further cutting.

Words and Phrases

Lease - The Newfoundland Supreme Court discussed the meaning of word "lease" in the law of real property - Paragraphs 8, 11 and 12.

Cases Noticed:

Jardine et al. v. Attorney-General for Newfoundland, [1932] A.C. 275, folld. [para. 10].

Glenwood Timber Co. v. Phillips (1897-1903), 8 N.L.R. vii (appendix), folld. [para. 12].

Newfoundland Pine and Pulp Co. Ltd. v. The Anglo-Newfoundland Development Co. Ltd. (1912-20), 10 N.L.R. 7, dist. [para. 14].

Errington v. Errington, [1952] 1 All E.R. 149, refd to.

Clapham v. Edwards, [1938] 2 All E.R. 507, refd to. [para. 14].

Warr v. London County Council, [1904] 1 K.B. 713, refd to. [para. 14].

Muskett v. Hill (1839), 5 Bing. N.C. 695, refd to. [para. 14].

Warrick Tyre Co. Ltd. v. New Motor & General Rubber Company Ltd., [1910] 1 Ch. D. 248, dist. [para. 27].

Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. D. 287, dist. [para. 27].

Canada Paper Company v. Brown (1922), 67 D.L.R. 287, appld. [para. 31].

Statutes Noticed:

Crown Lands Act, R.S. Nfld. 1952, c. 174.

Provincial Parks Act, R.S. Nfld. 1952, c. 49.

Counsel:

C.K. Wells, for plaintiff;

I. Mercer, Q.C., for defendants.