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for damages and an injunction. Said lane was a cul de sac running from Sherbourne street on the west, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of Ancroft Place to different parties, each deed giving a right of way over it to the grantee and to those to whom the owner had conveyed or might thereafter convey the lot to the north (now P.'s land). The deed to P.'s predecessor in title did not give him a similar right of way. The deed to the predecessor in title of S. had a plan annexed shewing Ancroft Place as a street fifty feet wide and the grantee was given the right to register said plan with the deed. The evidence also established that for several years before the action Ancroft Place had not been assessed and that the city had placed a gas lamp on the end near Sherbourne street; also, that for over twenty years it had been used by the owner of the lot to the north, and by the owners of adjoining lots, as a means of access to, and egress from, their respective properties. In 1909 the fee in the lane was conveyed to S., who had become owner of the lots to the east and south. Held, IDINGTON, J., dissenting, that the evidence was not sufficient to establish that the lane had been dedicated to the public and accepted by the municipality as a street. Held, further, IDINGTON, J., dissenting, that the lane was not a “way, easement, or appurtenance ’ to the lot to the north “held, used, occupied and enjoyed, or taken or known, as part and parcel thereof,” within the meaning of sec. 12 of “The Law and Transfer of Property Act,” R. S. O. (1897), ch. 119. Held also, that P. had not acquired a right of way by a grant implied from the terms of the deeds of the adjoining lots nor by prescription.
Appeal dismissed with costs.
Tilley and J. D. Montgomery, for appellant.
CROSS v. CARSTAIRS.
Appeal—Jurisdiction—Provincial Election—“Alberta Controverted Elections Act " — Preliminary Objections — “Judicial Proceeding ”—“Final Judgment.”
Held, per DAVIES, IDINGTON, and ANGLIN, J.J., that under the provisions of the “Alberta Controverted Elections Act,” the judgment of the Supreme Court of the province in proceedings to set aside an election to the legislature is final and no appeal lies therefrom to the Supreme Court of Canada. Held, per DUFF, J., that a proceeding under said Act to question the validity of an election is not a “judicial proceeding ” within the contemplation of section 2 (c) of the “Supreme Court Act” in respect of which an appeal lies to the Supreme Court of Canada.
Held, per BRODEUR, J., that the judgment of the Supreme Court of Alberta on appeal from the decision of a Judge on preliminary objections filed under the “Controverted Elections Act” is not a “final judgment” from which an appeal lies to the Supreme Court of Canada.
Appeal quashed with costs.
Ewart, K.C., for the motion.
CITY OF MONTREAL v. LAYTON. QUE.]
Construction of Statute—“ Quebec Public Health. Act ’’ — R. S. Q. 1909, Art. 3913—Inspection of Food—Duty of Health Officers—Quality of Food–Condemnation—Seizure—Notice–Effect of Action by Health Officers—Controlling Power of Courts — Evidence — Injunction — Appeal—Jurisdiction—Question in Controversy.
Per FITzPATRICK, C.J. :—In the Province of Quebec, in order to constitute a valid seizure of movable property there
must be something done by competent authority which has the effect of dispossessing the person proceeded against of the property; notice thereof must be given; an inventory made and a guardian appointed. Where these formalities have not been observed there can be no valid seizure. Brook v. Booker (41 Can. S. C. R. 331), referred to.
Per FITZPATRICK, C.J.:—Extraordinary powers, conferred by statute, authorizing interference with private property must be exercised in such a manner that the rights of the owners may not be disregarded. Bonanza Creel Hydraulic Concession v. The King (40 Can. S. C. R. 281), and Riopel v. City of Montreal (44 Can. S. C. R. 579), referred to.
Per FITZPATRICK, C.J., and DAVIES and IDINGTON, J.J.: —The authority conferred upon health officers by the “Quebec Public Health Act,” respecting the condemnation, seizure, and disposal of food, as being deleterious to the public health, is not final and conclusive in its effect, but it is to be exercised subject to the superintending power, orders and control of the Superior Court and the Judges thereof.
Per ANGLIN, and BRODEUR, J.J.:—The protection afforded by the provisions of the “Quebec Public Health Act” cannot be invoked in favour of proceedings taken by a food inspector who has acted without exercising his independent judgment in regard to the condemnation of food as deleterious to the public health, but merely for the purpose of carrying out instructions received by him from municipal officials.
In the result of the finding of the trial Judge that the food in question was fit for human consumption (Q. R. 39 S. C. 520), being supported by evidence, was not disturbed, and the effect of the judgment appealed from (1 D. L. R. 160), was affirmed with a variation of the order making absolute the injunction against the defendant interfering there with.
Appeal dismissed with costs.
Hon. A. W. Atwater, K.C., and Aimé Geoffrion, K.C., for the appellant. S. L. Dale-Harris, for the respondents.
HALIFAX & SOUTH WESTERN RY. CO. V. SCHWARTZ N.S.]
Statute—Construction—Railway Company—Right of Way—
Chapter 91, sec. 9 of the Revised Statutes of Nova Scotia, 1900, provides that “where railways pass through woods the railway company shall clean from off the sides of the roadway the combustible material by careful burning at a safe time or otherwise.” Held, that this provision is imperative and obliges the company at all times to keep its right of way so clear of combustible material that it will not be a source of danger from fire. Clearing it at certain periods only is not a compliance with such provision. DUFF, J., dissented, on the ground that it was not proved that the fire in this case originated on the right of way. Judgment appealed from (46 N. S. Rep. 20), affirmed.
Appeal dismissed with costs.
Mellish, K.C., for appellants.
SUPREME COURT OF ONTARIO,
Hellmuth, K.C., and Macdonnell, for defendant (appellant).
Arnoldi, K.C., and D. D. Grierson (contra.).
The defendant was the owner of certain mining stock, and desiring to obtain some financial accommodation from the plaintiffs, had certain dealings with them whereby this stock became vested in the plaintiffs; and part of the arrangement was that the plaintiffs, stock brokers, should give to the defendant a sale-note in respect of the stock; and that the defendant should give the , ...intiffs a boughtnote therefor at the price agreed upon. The defendant, to complete his purchase within ninety days, with the option to do so at an earlier date. The action was not framed as if the transaction was in substance a pledge of the stock by the defendant to the plaintiffs, but as one for damages for breach of contract on the part of the defendant in not accepting and paying for the stock. If the transaction was, in fact, a mere pledge by the defendant to the plaintiffs as security for a loan, and the action were merely to recover the deficiency arising on the sale by the plaintiffs of the stock, the questions of fact o be determined here would not have arisen. Both parties having seen fit to treat the transaction as an actual contract for the sale and purchase of the stock, we will dispose of it as if of that nature. We think the evidence justifies the inference that the transaction was entered into between the parties on the understanding that the defendant was to give to the plaintiff twenty-four hours’ notice of his exercising the option. There is a conflict of evidence as to what notice was given, and when it was given, and we are of opinion that the notice was given on the morning of Tuesday, the 28th, and if so, the defendant had twenty-four hours, viz., until the morning of Wednesday, the 29th, in which to tender the stock. He tendered it on the afternoon of Tuesday, the 28th inst., between three and half-past three. The defendant claims that the tender was too late, his contention being that the twenty-four hours' notice had expired at three o’clock on Tuesday. The evidence does not, we think, support this contention on the part of the defendant. When the stock was offered to him, shortly after three o'clock on Tuesday afternoon, he refused to accept it; thereupon the plaintiff, on the following morning sold it, and gave the defendant credit for the amount realized, bringing his action for the balance by way of damages. No attempt was made to say that the stock was not sold at its fair market value. We, therefore, think the judgment of the learned trial Judge was right, and this appeal should be dismissed with costs.