Kerr v. The Atlantic & North West Railway Co.

the judgment of Mr. Justice Taschereau.

J.-Under article 2261 of the Civil Code the appellant's right of aution was prescribed when he instituted these proceedings.

The doctrine of the continuance of damages relied upon by him to answer the plea of prescription, does not help him in this case

It has been carried too far in the cases he quoted.

The prescription runs from the act which causes the damage, when the damage complained of results exclusively from that act, without any new tortious act from the tort-feasor, and when the damage complained of could have been foreseen and claimed for at the time that the quasi offence which caused it was committed, or within two years therefrom. Had the plaintiff then a right of action, in which he would have recovered compensation for prospective damages, including those he now claims ? That is the question. If he then had that action, as the appellant here clearly had after the company's acts he complains of, the prescription runs from the time his right of action accrued. Breakey v. Carter

There is no new right of action arising every day of the year. The damages are consecutive but not successive.

And I can see no difference on this point between injuries to property and bodily injuries.

Compare Canadian Pacific Railway v. Robinson

I would dismiss the appeal..

GwYNNE J.-The sole question upon this appeal is J.

whether or not the defendants are responsible for the acts of an independent contractor employed by them in the construction of their railway in digging and carrying away and depositing upon the line of railway earth taken from a piece of land of one Howell altogether outside of the railway land but situate between the land of the plaintiff and a highway called Hallowell street, and over which land of Howell at the place where the soil was dry and the earth taken away therefrom the plaintiff claims to be entitled to a right of way from his own land to Hallowell street. The sole ground upon which the claim of the plaintiff to make the defendants responsible for these the acts of their independent contractor is rested, is a clause in the contract between the defendants and the contractor whereby, as is claimed, the defendants, by agreeing to provide the contractor with necessary borrowing pits, have made themselves responsible for his acts even though such acts should constitute trespass upon the property of others, or otherwise tortious to others. The only clauses in the contract having any relation to the question are those numbered respectively 22 and 32 and are as follows:

The necessary land for borrow pits in this clause mentioned are plainly, as it appears to me, places where by the consent in writing of the engineer given under clause 22 the contractor has been allowed to borrow earth.

It is not suggested that the place in question was such a place or that in point of fact the contractor had any actual authority whatever from the defendants to take earth from the place under consideration. Upon no principle of law can the defendants be made responsible for independent tortious acts of the contractor; for his acts if tortious to the plaintiff the contractor himself alone must be responsible.

Appeal dismissed with costs.

J.-I am of opinion that this appeal should be dismissed both on the ground of prescription and on the ground that the company is not liable for the wrongful act of the contractor.

KING J.-I concur in the judgment of Mr. Justice Gwynne.

GIROUARD J.-I agree with Mr. Justice Taschereau that the plaintiff's action was prescribed.

The appeal must fail also on the ground taken by Mr. Justice Gwynne.

OF

[VOL. XXV.. GEORGE

BARRINGTON

AND

*Oc.8.

OTH ERS ..........................

......

THE CITY OF MONTREAL ...... ....

-MAOTION to quash for want of jurisdiction, an appeal from the Superior Court for Lower Canada sitting in review at Montreal.

By R. S. C. ch. 135 an appeal would lie to the Supreme Court from the decision of the court of final resort in the province only such court, in the province of Quebec, being the Court of Queen's Bench.

By 54 & 55 Vic. ch. 25, an appeal was granted from the Superior Court in Review in cases where, and so long as, no appeal lies from the judgment of that court when it confirms the judgment rendered in the court appealed from which by the law of the province of Quebec are appealable to the Judicial Committee of the Privy Council.

In this case the appellants, Barrington and others, petitioned the Superior Court for a writ of mandamus t compel the City of Montreal to proceed with certain works on the streets of the city under the provisions of a statute of the province.

The Superior CourtBARIGTON ordered peremptory writ of mandamus to issue OF the Court of Review, on appeal by the city, reversed the judgment of the Superior Court and set aside the order for the writ. The petitioners then took an appeal to the Supreme Court from the decision of the

Court of Review.

The respondent's factum did not raise the question of jurisdiction but on the appeal being called for hearing:

Ethier Q.C. moved to quash the appeal.

This case is not within 54 & 55 Vic. ch. 25.

The judgment of the Superior Court was not affirmed and an appeal could have been taken to the Court

Queen's Bench. It is therefore governed by Danjou v.

Marquis and MacDonald v. Abbott

Court of Review are now allowed This case is within the terms of the present Act.

(Oral) .- It is quite clear that we have no jurisdiction to entertain this appeal. The case of Danyou v. Marquis expressly decided that an appeal did not formerly lie to this court from a decision of the Court of Review that court not being the court of last resort in the province.

By 54 & 55

Vic. ch. 25, passed since the decision in Danjou v.

Marquis an appeal is allowed from decisions of the

Court of Review in certain cases, but that statute does not apply to the case before us ; it only provides for such appeals when the judgment of the court of first has been affirmed, and no appeal lies to the OFQueen's Bench.

Here, the judgment of the Superior Court has been reversed by the Court of Review, and The Chief there was nothing to prevent the appellant from ap- Justice. pealing to the Court of Queen's Bench.

The case cited, and that of MacDonald v. Abbott (1), which follows it, govern the case before us and the appeal must, therefore, be quashed.

Ethier