Judgment of the Court
(oral).-The Supreme and Exchequer Courts Act, as amended by the statutes of stief 1891 and 1893, extends the jurisdiction of this court to controversies involving questions of " title to lands tenements, annual rents, or other matters or things where rights in future may be bound," and it seems clear that this case comes within these provisions two points.
First, the question is one which relates to a title to lands.
If the parties had agreed to the line in the first instance between themselves the plaintiff would have been entitled to a piece of land in possession of the defendant.
It appears that the parties executed a notarial deed for the purpose of settling the boundary between contiguous lands of which they were respectively pro-. prietors, and thereby constituted a provincial land surveyor, therein named, their referee to run the line, and it is upon his report made in conformity with the agreement that the action is based.
So far as the present motion is concerned the deed must be regarded as if it had in fact contained the report of the surveyor as subsequently made, and thus read it constitutes a title to lands and tenements.
The case of Wineberg v. Hampson (1) referred to on the motion depended on the jurisdiction as settled by the statute before the amendments mentioned, and is referred to and distinguished in Chamberland v. Fortier (2), as having been overruled by the amending Acts. This latter case determined that the court has jurisdiction in cases of servitude, and it must be followed in cases like the present.
On the other point, although the action is not actually in the form of an action en bornage, the plaintiff seeks such relief as is usually granted in such cases, which is in effect to have the boundaries established for the purpose of quieting the titles to the contiguous lands, and under the present practice the form of action is immaterial.
In such a case the rights in future of the parties would certainly be bound by the judgment. Therefore, on this ground also the court has jurisdiction to hear the appeal. The motion must therefore be refused with costs.
Motion refused ioith costs. Solicitor for the appellant: T. P. Foran.
Solicitors for the respondent: Rochon & Champagne. DEMERS v. THE BANK OF MONTREAL. jury-Final APPEAL from a decision of the Court of Queen's Bench for Lower Canada (1) affirming the judgment of the Superior Court by which the application of the defendant to have the issues in the cause tried by a jury under arts. 348-350, C. C. P., was refused on the ground that the action was not founded on a debt, promise or agreement of a mercantile nature.
A motion was made by the respondent (plaintiff), to quash the appeal taken by the defendant, on the ground that the judgment appealed from was rendered upon a proceeding which was interlocutory only and was not a final judgment within the meaning of " The Supreme and Exchequer Courts Act."
:-Sir