I thought I would take a bit of time and explain how this challenge got started and what got me/us to where we currently are. Late in the year in 2013 the town of Grimsby through direction of the Province of Ontario are of it through the local newspaper which gave a link to the draft copy of the by-law. As I skimmed through the by-law it had several maps that had designations for wet land, hazard overlay and restricted use that had never been listed on my property before. I purchased the property in December of 1980 and built my current house on it 3 years latter. It was apparent that if I had waited to build on the property now it would be unsuitable for residence to be built on it based on the new by-law. I attended public meetings that were required for the change of the by-law, made a presentation, appealed the changes made by the town to the OMB and also took my appeal to provincial district court. My motivation was that all of this did not seem right. What is private property? What limits ownership to regulation? Can rights be taken away, but most importantly how did private property come to be and what was the intent of it’s origin. All reasonable questions, try and get a straight answer from anyone at the town or your MPP. So I started upon this quest to get some answers.
I pulled out my deed from 1980 and read it and found the following paragraph,
“To have and to hold the said Grantees their heirs and assigns to and for their sole and only use forever, as joint tennants and not tennants in common SUBJECT NEVER THE LESS to the reservations, limitations, provisoes and conditions expressed in the original grant from the Crown.
My deed makes reference to another document “the original grant thereof from the Crown” And what about my sole and only use, who had the right to interfere with that. When I was in the lawyers office in 1980 completing the transaction for 2.81 acres of land I ask what is the Grantor and Grantee and was told by the lawyer it means buyer and seller. I accepted that only later to realize that it means a whole lot more. The transaction for the land was not only for the land but the rights that came with it. And where did the rights come from? The original grant from the crown dated August 12 1818. Private property. What is the definition? According to the Ministry of Transport their definition is as follows. “Patented land privately owned”. ( I will continue with this topic latter)
The patent for my property, the root of title is attached. In May of 2014 I contacted the Ministry of Natural Resources and ask for the current status of my patent. The following was their written response. Currently if you were to ask the same question that I did, the response would be to contact a lawyer.
“Good morning Mr. Kaluzny, On reviewing the patent record you attached, the reservations/conditions in place at the time of patent were:
- all mines of Gold & Silver
- all White Pine Trees
- the “Surveyor General of Woods” condition – (which starts near the end of the first page) – “Provided also, that no part of the parcel or tract of land hereby given and granted to the said Thomas Fitzgerald and his heirs, be within any reservation heretofore made, and marked for us, our heirs and successors, by our Surveyor-General of Woods, or his lawful Deputy; in which case, this our Grant for such part of the land hereby given and granted to the said Thomas Fitzgerald and his heirs for ever, as aforesaid, and which shall upon a survey thereof being made, found within any such reservation, shall be null and void, and of none effect, any thing herein contained to the contrary notwithstanding.”
- the “Time Limit – Dwelling Construction and Residency” condition – which starts near the top of the second page – “Provided also, that the said Thomas Fitzgerald his heirs or assigns; shall and do within three years erect and build, or cause to be erected and built, in and upon some part of the said parcel or tract of land, a good and sufficient dwelling house (he, the said Thomas Fitzgerald or his assigns not having built, or not being in his or their own right lawfully possessed of an house in our said Province) and be therein, or cause some person to be therein resident for and during the space of one year, thence next ensuing the building of the same.”
- the “Oaths Prescribed by Law” condition – which starts after the condition in #4 above – “Provided also, that if at any time or times hereafter, the land so hereby given and granted to the said Thomas Fitzgerald and his heirs, shall come into the possession and tenure of any person or persons whomsoever, either by virtue of any deed of sale, conveyance, enfeoffment or exchange, or by gift, inheritance, descent, device or marriage, such person or persons shall within twelve months next after his, her , or their entry in to, and possession of the same, take the oaths prescribed by law, before some one of the Magistrates of our said Province; and a certificate of such oaths having been so taken shall cause to be recorded in the Secretary’s Office of the said Province.”
- the proviso on the bottom of the first page – “Provided always that if at any time or times hereafter within the space of three years from the date of these Presents the said Thomas Fitzgerald by any deed of bargain and sale release exchange or other conveyance shall grant bargain sell alien(?) release or convey all or any part of the said parcel or tract of land hereby granted then and in such case this our grant for such part of the Land so given and granted to the said Thomas Fitzgerald and his heirs and aforesaid shall be null and void anything herein bef
updated it’s zoning and planning through a 300 page comprehensive zoning by-law. I was only awore contained to the contrary thereof in any wise(?) notwithstanding”
The current status of these reservations/conditions is as follows (referring to the numbering above):
- reservations of mineral rights in grants prior to May 6, 1913 are void (Section 61 of the Public Lands Act) – you would now own the complete mining rights
- reservations of trees granted under any Act prior to April 1, 1869 are void (Section 58 of the Public Lands Act) – you would now own all trees, regardless of species
- “Surveyor General of Woods” condition is void (Section 10 of the Public Lands Amendment Act, 1956)
- “Time Limit – Dwelling Construction and Residency” condition is void (Section 7 of the Public Lands Amendment Act, 1957)
- “Oaths Prescribed by Law” condition is void (Section 8 of the Public Lands Amendment Act, 1957)
- the proviso to not sell the land within three years is not void, but as you state below, provided Mr. Fitzgerald did not sell within three years, this proviso would have no effect today It is my understanding that the veteran’s entitlement was the grant of land, which Mr. Fitzgerald received by virtue of this patent.
I trust this all makes sense to you. Please don’t hesitate to contact me if you have further questions.
It would appear then that all of the trees and all of the water and minerals belong to me. The question now is then how can Conservation have interest in my trees and water if the Crown states they are mine?
I should be clear about one thing. The patent is the root of title and there are 3 types of land in this province. Native land, Crown land and Patented Land which is held as private property. Without a patent, the land escheats back to the Crown. So the question that is not being answered is if the town of the province does not hold a patent as valid, then it must escheat back to the Crown, because it isn’t patented any more. If that be the case then, the Crown should be sending me a cheque for invalidating the patent on my land and no longer allowing it to be private property.
And that is short order is what this challenge is all about.