Hamilton (City) v. Barton (Township)

CITY OF HAMILTON v. CORPORATION OF TOWNSHIP OF BARTON.

APPEAL from a decision of the Court of Appeal for Ontario (1) affirming the judgment of the Divisional Court (2) in favour of the respondents.

The action in this case was brought to restrain the city of Hamilton from entering upon lands in the township of Barton for the purpose of extending a sewer constructed by the city into the territory of the township. The defendants relied upon the provisions of 50 V. c. 28 s. 20, amending the Municipal Act Ontario, R. 0. (1887) c. 184 s. 479 as giving them authority to enter the adjoining municipality without first obtaining the latter's assent, and also claimed that the private owners of the lands affected were the only persons who could complain.

The courts below held, however, that the amending act did not take away the restrictions imposed by the Municipal Act, and that it is still necessary that the two municipalities should settle, by agreement, the terms and conditions of such entry, and if such agreement cannot be had the said terms and conditions must be settled by arbitration. The Supreme Court affirmed the decision appealed from adopting the reasons given by the judges of the Court of Appeal for deciding against the contention of the city of Hamilton.

New Brunswick refusing the plaintiff, Simonds, a new trial.

The action in this case was for trespass to plaintiff's land by placing ships' knees thereon whereby plaintiff was deprived of a use of a portion of said land and prevented from selling or leasing it. The defendants denied plaintiff's title. At the trial plaintiff gave no evidence of actual damage but claimed that an action was necessary to protect his title. Evidence was given to show that the alleged trespass was committed beyond the street line, and plaintiff claimed that the street had never been dedicated to the public and his ownership extended to the centre. Before the verdict was given the .jury viewed the premises, one of the terms on which the view was granted being that nothing said or done by any of the parties or their counsel should prejudice the verdict."

The judge charged the jury strongly against the plaintiff and a verdict was given in favour of defendants.

Plaintiff moved for a new trial on the grounds of misdirection and of improper conduct of one of the defendants at the view. The court below refused a new trial.

[VOL. XX. British Columbia affirming the decree made at the trial. The suit in this case was brought to enforce an alleged trust in a deed absolute on its face, or, in the alternative, to have the property reconveyed or sold according to the terms of the alleged agreement. The defendant claimed that he had given valuable consideration for the transfer to him of the property conveyed by the deed, and the plaintiff had accepted the same in full satisfaction and payment therefor.

At the trial parol evidence was given to establish the alleged trust and its existence was found as a fact by the trial judge who made a decree ordering the property to be sold and the proceeds applied as, according to the contention of the plaintiff and the evidence in proof thereof, had been agreed upon. The full court affirmed this decree.

The Supreme Court held that the fact of the existence of the trust having been found by the trial .judge, and such finding having been affirmed by the full codrt, it should not be disturbed on this further appeal.

YOL. XX.]

APPEAL' from a decision of the Supreme Court of New Brunswick refusing a new trial to the defendant (respondent).

The action was on a promissory note and the defence that the note was given in payment of a machine for polishing wood which machine did not do the work it was represented to do. The evidence at the trial showed that the machine had been used for some time in connection with building cars, and evidence for defendant went to prove that the work was under the control of a contractor with defendant; that before the machine could be used a fan had to be attached to keep off the dust ; that it spoiled the boards on which it was used; and that the contractor did not inform the defendant as to the defects and he knew nothing of them until the case came on for trial. It appeared, however, that the general superintendent of defendant's business watched the progress of the work in which the machine was used and inspected all the cars before they were delivered.