KING J.-A preliminary question as to the jurisdiction of the court to entertain the appeal was dealt with by His Lordship the Chief Justice upon the argument, and the cases of Canadian Pacific Railway Co. v. Ste. Thirdse (1) and Virtue v. Hayes distinguished. Then as to the merits: The complaint is for erecting a porch upon the street line without first obtaining the certificate of the city engineer as to its location. To support this charge it is not necessary to prove that the building is beyond the line.
The act makes it the duty of persons intending to build upon or close to the street line to apply to the city engineer to lay down Ta the line.
It is not to be taken that this refers to an intention to encroach.
A building is upon the line of the street if the line of the building, in whole or in part, coincides with that of the street.
A building en- J. croaching on the street is likewise upon the line. The act extends also to buildings that are close to the street line, although not upon it. " Close to " is an approximate term and admits of more or less separation between the line of the building and the true line the street. The object of the act is to provide that the street line may be authoritatively and conclusively settled by the city engineer, who in such matter acts as on a judicial inquiry. The defendant having been charged with building upon the line of the street without first making application for the engineer to lay out the line, it is for the city, as the plaintiff in the case, to prove that the building was upon, i.e., coincident with, or beyond, the street line. In the case of a street that has no recorded boundaries the determination its line may depend upon the extent and nature of the public use and of the adjacent occupations.
Here the porch, the erection of which is complained of, occupies the site of a porch built in 1855, and removed in 1884, the foundation of which was found covered with three feet of earth. During the time that the old porch existed the space outside of it was a travelled portion of the street, and since its removal the place where it had been was used as part of the sidewalk.
The defenda-nt says that before he put up the present porch the place where he put it was "just like the rest of the sidewalk." Assuming that the defendant was entitled to the site of the old porch, the part outside of it was public street, and the line of the old porch coincided with the line of the street, and was therefore upon it, and upon the evidence the learned judge might very well have found this, and also that the porch complained of was upon such line.
A difficulty, however, arises by reason of the finding that the porch was close to the line of the street, and that the exact line was not located.
There may be implied in this an adjudication that the porch was not upon the line of the street, and as it is in respect of a wrongful building upon the line of the street, and not for a wrongful building close to the street, that the proceedings are instituted it would appear that the order complained of is open to objection, and that the judgment reversing it should be sustained. This appeal is therefore to be dismissed with costs.
J.-In my opinion the objection raised by the respondent to our jurisdiction on this appeal is well taken, and I would quash the appeal.
Appeal dismissed with costs.