Majority
As to the " breather," I believe that it lacked novelty, and that many years before Skelding obtained his letters smDuG patent, this device was of a public and open character. DAY. This appeal should, therefore, be dismissed with costs. Taschereau J.
Judgment of the Court
J.-This is a motion by the appellant for special leave to appeal under section 41 of the Supreme Court Act.
The appellant is the owner of some land on the Etchemin river, in the province of Quebec, and of an island in the same river.
Some eighty years ago, a wooden dam was built on this river. It was replaced in 1913 by a concrete dam about eight inches higher. It was again raised another fourteen inches or so in 1928. The dam is owned by the defendantrespondent.
The appellant claimed that, through the raising of the dam, his land was damaged by flood and by erosion; and, in the conclusion of his declaration, he asked that the respondent be condemned to pay the sum of one hundred and fifty dollars for damages caused during the two preceding years; but, moreover, that the defendant be condemned to demolish his dam, on the ground that it had been raised illegally and without complying with the formalities required by the Watercourse Act (R.S.Q., 1925, c. 46).
The respondent pleaded that he had acquired by prescription the right to flood the lands of the appellant; that the raising of the dam consisted merely in ordinary repairs and did not require compliance with the enactments of the Watercourse Act; that the raising of the dam did not bring the Etchemin river at a higher level than it had been previously raised when the dam was at its original height; that no damage had been caused to the appellant's land through the raising of the dam; and that, at all events, the whole matter was within the exclusive jurisdiction of the Quebec Public Service Commission, and the Superior Court was not competent to hear and determine the case.
Langlais J., by whom the case was heard in the Superior Court at Quebec, dismissed the action on the ground that, in view of the provisions of the Watercourse Act, the Court had no jurisdiction.
In the Court of King's Bench (appeal side) the majority (Rivard, Bond and Barclay JJ.) were of the same opinion. They adopted the view of the trial judge and they confirmed his judgment on the ground of jurisdiction. L6tourneau J.A. was inclined to share the opinion of the majority so far as the ascertainment of damages was concerned; but he thought that the prayer for the demolition of the dam was within the competency of the Superior Court because, as he remarked, the conclusion of the appellant in his declaration was clearly based on the illegality of the construction on account of the fact that the respondent had not complied with the requirements of the Watercourse Act in failing to obtain the previous authorization and approval of the Lieutenant-Governor in Council (subs. 2 of s. 5 of the Act).
He proceeds, however, to inquire whether, in the premises, the mere raising of the dam did not come within s. 11 of the Act exempting from the necessity of previous approval by the Lieutenant-Governor in Council works constructed before the 9th of February, 1918.
After having examined the evidence, he comes to the conclusion that "une sur6l6vation, un changement dans la hauteur, n'est pas en soi la construction du barrage ". Accordingly, he expresses the opinion that the raising of the dam in this particular case was not that kind of work which required the authorization and the approval under the Act and that it cannot be said, in the circumstances, that the new work was illegal.
For that reason, in his opinion, the appellant's prayer for the demolition should not be granted. So far as the damages were concerned, as already mentioned, he thought they came expressly under the jurisdiction of the Quebec Public Service Commission.
As for Galipeault J., he dissented from the majority, on the ground that the Superior Court was competent to assess and award the damages claimed by the appellant, and he would have allowed one hundred dollars for the two years preceding the introduction of the action. Although holding the view that the raising of the dam in 1928 was subject to s. 5 of the Watercourse Act and that this new construction was illegal, he was for reserving the appellant's right for its demolition in a subsequent action, if necessary (art. 1066 C.C.).
RinfretJ. The appellant applied to the Court of King's Bench for special leave to appeal to this Court. This was refused on the ground that la permission demand6e n'est pas justifi6e et qu'il n'y a pas lieu pour cette Cour de l'accorder.
There is no denying the fact that the matter in controversy is of such general importance that leave ought to be granted, if it can be shewn that this Court has the required jurisdiction to grant it.
At the outset, perhaps it would not be out of the way to reiterate that the highest court of final resort having jurisdiction in the province in which the judicial proceeding was originally instituted, exercising the authority to grant special leave to appeal to this Court under s. 41 of the Supreme Court Act, is not limited by any rule supposed to be laid down in this Court touching the exercise of that jurisdiction, as observed by the Chief Justice in Canadian National Railway Company v. Croteau & Cliche (1).
This court has no authority, and, of course, never pretended to exercise any authority, to lay down rules restricting the scope of the jurisdiction or governing the exercise of the jurisdiction conferred by s. 41 upon provincial courts of appeal. The statute gives a discretion to such courts, and, where a statutory discretion is conferred upon a court, it is not within the authority of any other court to give directions as to the manner in which the discretion is to be exercised. Attorney-General v. Emerson (2).
The granting of special leave by the provincial court of appeal, conferred by s. 41, " is untrammelled and free from restriction, save such as is implied in the term 'special leave '."
In support of the contention that the present petition for special leave ought not to be granted by this Court, the respondent relied on our decision in Hand v. Hampstead Land and Construction Company and The Town of Hampstead (3).
(1) [19251 S.C.R. 384, at 385.
(2) (1889) 24 Q3B.D. 561, at pp. 58, 59. (3) [1928] S.C.R. 428.
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In that case, the point was whether a transfer of land was invalid on the ground that the consideration was illegal because in contravention of a provision of the municipal law of the province of Quebec.
The Court of King's Bench had granted the conclusion of the plaintiff's action and had declared the transfer null and without effect. This judgment no doubt involved the validity of the title to the land acquired by the municipality from the mis-en-cause Hand.
Special leave to appeal from the adverse judgment of that Court had been refused by the Court of King's Bench, for the reason that
Upon application to this Court for special leave to appeal, the judgment of the Court, delivered by Anglin C.J.C., decided that leave would not be granted to appeal from a judgment solely because it involved the construction of a provincial statute of a public nature. The emphasis here should be placed on the word " solely," for the Chief Justice said:
Generally speaking, of course, a strictly municipal matter is of a somewhat local character and of restricted interest. In such a case, the matter in controversy, even if it does involve the interpretation of a provincial Act, may not always be found of such general interest and of such importance as to warrant the granting of special leave to appeal to this Court. That is the ground upon which special leave was refused in the Hand case (1); but the decision in that case is far from holding that, whenever the construction of a provincial statute is involved, ipso facto the matter in controversy will not be found of sufficient importance to justify the granting of special leave. This principle was applied in refusing leave, on June
17th, 1936, in St. Catharine's v. Hulse, and, on May 7th,
1940, in Harper v. City of St. Thomas, two judgments of this Court which have not been reported because it was not Rinfret felt necessary.
The present case, however, is an instance of the contrary situation.
Not only does it raise a " question law of great importance " (Street et al. v. Ottawa Valley
Power Company (1), but it concerns the whole working and operation of the Watercourse Act throughout the province of Quebec, and still more the ousting of the jurisdiction of His Majesty's courts on a point likely to arise frequently and of general application.
The question remains, however, whether the matter in controversy comes within one of the sub-paragraphs of section 41 of the Supreme Court Act.
It may come under sub-paragraph (c), as being within the words
The respondent does not indicate any intention of cutting down his dam to the level at which it was before 1928.
On the contrary, not only does he show every intention of maintaining the dam at its present level, but he even contends that he has acquired by prescription the right to flood the appellant's lands, as he is at present doing.
The damages which allegedly the dam causes to the appellant's lands are continuing damages. If they exist, which, of course, will have to be decided on the merits of the case, they will persist so long as the dam stands as it is.
It would seem that the appellant on this point could rightly rely on Christie v. The York Corporation (2).
But we think the appellant's case clearly comes under sub-paragraph (d) of sec. 41: " the title to real estate or some interest therein."
The exercise by the respondent of the right to flood the appellant's property, by the raising of the level
Etchemin river through his dam, is a servitude established by law, having for its object public utility and that of
SUPREME COURT OF
S.C.R.]
the owners of mills or factories bordering on rivers or streams. It is a real servitude imposed as a charge on one real estate for the benefit of another belonging to a J different proprietor (Arts. 499 & 503 C.C.; Planiol, Trait6 Elimentaire de Droit Civil, tome ler, nos. 2880 & 2886; See what is said by the present Chief Justice in Gale v. Bureau
The appellant, in the present case, disputes the legal title of the respondent to the real servitude which he is exercising.
The appellant contends that the respondent has not fulfilled the formalities and the conditions required for the purpose of acquiring a valid title to the servitude which he claims. That puts undoubtedly in controversy as between the parties the title to an interest in the real estate of the appellant; and on that ground there is jurisdiction in this Court to entertain the application for special leave to appeal.
If authority should be required for that proposition, it will be found in several cases in this Court, where jurisdiction was entertained (Blachford v. McBain (2); Macdonald v. Ferdais (3); Chamberlain v. Fortier (4); Berthier v. Denis (5); Riou v. Riou (6); Lafrance v. Lafontaine (7); Grand Trunk Railway Co. v. Perrault (8); Audette v. O'Cain (9); Cliche v. Roy (10); Tanguay v. Canadian Electric Company (11); King's Asbestos Mines v. South Thetford (12); Thompson v. Simard For the above reasons, the petition for special leave ought to be granted, costs to follow the event.
Petition granted, costs to follow event.
Cases cited
- Hand v. Hampstead Land & Construction Co. scr-1928-428
Statutes and regulations cited
-
Supreme Court Act
-
Unresolved citations
- s. 5 of the Watercourse Act
- paragraph (c)
- paragraph (d)