Judgment of the Court
J.-This is an appeal by the plaintiff His action was maintained in the Superior Court but dismissed in the court of appeal.
By his declaration he alleged that the defendant and he were each owners respectively of two lots of land that were contiguous but not divided by any regular line or boundaries; that in November, 1889, he and the defendant agreed that for the future such a line should be established by a surveyor named Farley, binding themselves to abide by and accept the said surveyor's report as indicating the boundary line between their said respective properties. He further alleged that in the said month of November, and in December, January and February following, Farley proceeded to ascertain the true line of delimination and M'EY declared by his survey and proces-verbal and plan that a
E. line "D. H.," was the true boundary of the properties;
but that although he, the appellant, accepted the result of such operations and had signed the proces-verbal, the other parties to the agreement, now represented by the respondent, had refused to do so on demand being made, and continued to occupy a considerable strip of land west of the line, and refused to allow appellant to enter upon it and to remodel the fences according to the surveyor's decision.
The appellant's conclusions are that the line as marked in the field and recorded in the plan and proces-verbal of survey
Farley, the surveyor, should be declared the true line of division, that the respondent should be enjoined not to trespass beyond it and give up possession of all land west of it; that appellant should be declared proprietor of the land up to the line and be put in possession of it; and finally, that fixed and final boundary marks should be placed in tbe' field along the line in question to determine the same.
The respondent by her plea admits that the parties are owners of the contiguous properties as alleged in the declaration. By several allegations she claims that she was at the time of the action, the owner of the land as divided from the appellant's by a fence for over forty years.
The respondent further alleges that she never refused to proceed to a bornage, and she specially denies that she was bound to accept the boundary line as fixed and determined by the surveyor Farley; that the respondent refused to sign the said proces-verbal of survey because the same was irregular, erroneous, and not in conformity to the titles and possession of the parties; that the respondent was not obliged to sign or accept any proces-verbal of survey, more especially when said proces-verbal of survey was irregular, erroneous and contrary to the rights of the parties. By the conclusions of her plea, the respondent declared that she is ready to run a line of division be- J.
tween the properties in question, according to the possession of the said respondent, and provided said survey takes place according to the formalities indicated by the laws of the province.
The grounds upon which the court of appeal relied for reversing the judgment of the Superior Court are exclusively that the formalities required for awards of arbitrators by the Code of Civil Procedure, arts. 1344 and following, had not been complied with.
[ am of opinion that we should not thus allow shipwreck of a good cause to be made on the rocks of refined technicality. This is not a case of arbitration under the Code, but of an agreement binding upon the parties. Here are two neighbours who, to avoid litigation and settle amicably the division line between their properties, agree that a line to be drawn upon the spot by a third party, be he a surveyor or anything else, shall thereafter be that division line, and bind themselves to accept that third party's decision, but, now that this third party has fixed that line, the respondent refuses to be bound by his conclusions, because they are not in accordance with her opinions and contentions in the matter.
She wishes us to read her agreement of November, 1889, as if she had expressly stipulated therein that she would not be bound by it, if the third party's line did not suit her or was not in accordance with her views. We cannot do that. She cannot be so allowed to repudiate her engagements.
No fraud or malversation of any kind is imputed to this surveyor's operations, and the Superior Court was right in maintaining the action.
I would allow the appeal, and restore the judgment of the Superior Court. It does