Kirkpatrick v. McNamee

Kirkpatrick v. McNamee

The appeal is allowed: the trial judge's finding that the defendants trespassed should be sustained (with variation), the referee erred by applying the severer fraud rule in assessing damages and must re-assess using the milder rule appropriate to gross carelessness (allowing recovery of cost of extracting gold plus washing), and the record should be amended to add the partner (Bonner) as co-plaintiff so the recovery binds all relevant claimants; accordingly the judgment below is set aside and the matter remitted for amended assessment.

Citation
(1905) 36 SCR 152
Parties
Plaintiff/appellant: Thomas W. Kirkpatrick; Plaintiff/appellant: James Munroe; Defendant/respondent: James McNamee, personally and as Executor of Mary McNamee, Deceased
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 May 1905
Procedural Posture
Civil Appeal (trespass/mining) / Appeal to Supreme Court of Canada From Territorial Court of Yukon (judgment on Liability and Referral on Damages)
Outcome
Appeal allowed with costs; trial judgment restored subject to amendment and reassessment of damages
Legal Topics
Wilful Trespass, Assessment of Damages, Amendment/adding Parties, Standard of Review for Appellate Courts
Source Language
English
Tort (trespass) Mining Law Civil Procedure Appellate Review Wilful Trespass Assessment of Damages Amendment/adding Parties Standard of Review for Appellate Courts

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Thomas W. Kirkpatrick

Plaintiff/appellant

James Munroe

Plaintiff/appellant

James McNamee, personally and as Executor of Mary McNamee, Deceased

Defendant/respondent

Procedural Posture

Civil Appeal (trespass/mining) / Appeal to Supreme Court of Canada From Territorial Court of Yukon (judgment on Liability and Referral on Damages)

Legal Issues

  1. 1 Whether defendants committed wilful trespass on placer mining claim
  2. 2 Proper legal rule to assess damages for removal of gold-bearing gravel (severe fraud rule v. milder rule)
  3. 3 Whether the record should be amended to add Bonner as co-plaintiff

Ratio Decidendi

The appeal is allowed: the trial judge's finding that the defendants trespassed should be sustained (with variation), the referee erred by applying the severer fraud rule in assessing damages and must re-assess using the milder rule appropriate to gross carelessness (allowing recovery of cost of extracting gold plus washing), and the record should be amended to add the partner (Bonner) as co-plaintiff so the recovery binds all relevant claimants; accordingly the judgment below is set aside and the matter remitted for amended assessment.

Court Disposition

Appeal allowed with costs; trial judgment restored subject to amendment and reassessment of damages

Orders

  • Appeal allowed with costs
  • Restore judgment of trial judge with amendment to add Bonner as co-plaintiff