Majority
where rights in the future might be bound, the only question being the location of a servitude, not the right or title to it. The dispute as to that was settled J.-An objection taken in the respondent's factum to the appellant's right of appeal has to be disposed of. In a former case between the parties, it was declared by the Superior Court's judgment, confirmed in this court on the first of May, 1893 (4), that the respondent had a certain right of way, therein described, over the appellant's land
Judgment of the Court
The respondent, in execution of that judgment issued a writ of possession ordering the sheriff to put him in possession of the road described in the said judgment. The appellant filed an opposition to that writ of execution, alleging that he had duly offered a vy and delivered to the respondent, present and accepting, a right of way upon his land (though not the one described in the judgment), in due compliance with and in execution of the judgment of the court, in virtue of the right to do so reserved to him in the said judgment.
This opposition, upon contestation by respondent, was maintained and the writ of possession set aside by the Superior Court. The Court of Appeal reversed that judgment and dismissed the opposition. The controversy between the parties is consequently merely as to the localisation of the road in question. It is admitted, if that could possibly affect here the question of jurisdiction, that this road is not worth $2,000, and conceded on the part of the appellant, at the hearing, that the only ground upon which his right to appeal can at all be supported is that the controversy relates to a title to land and to a matter where the rights in future may be bound.
But there is here no controversy of the title to the appellant's land or to any part of it; O'Dell v. Gregory (1); and the respond- .ent's right of way over that land is not now in controversy.
That controversy is at an end.
It was settled in 1893 by the judgment of this court upon the action above referred to.
That case being an action confessoife was, as actions ndgatoires also are, appealable.
Rion v. Riou (2); Chamberland v. Fortier (3) ; La Commune de Berthier v. Denis
But this is merely a contestation on the execution of that judgment. Rights in future may be bound by the judgment a quo, but they are not Tights 'relating to a title to land.
The appellant would contend that as this is a con- ?testation on the execution of a judgment which was appealable, and, in fact, appealed, therefore the judgment upon this execution, or the contestation thereof, m.LJy is likewise appealable.
But such a contention cannot VERDAIS. prevail.
It would be opening the door to a multiplicity of appeals in the same case, not intended by the statute.
The case of McGoey v. Leamy (1) has been relied upon to support the right to this appeal. But in that case the controversy between the parties exclusively and directly related to the title to a strip of land. Neither does the case of Chamberland v. Fortier (2) help the appellant.
All that was determined in that case is that an action ndgatoire is appealable.
The case may not be free from doubt.
As forcibly pointed out by Mr. Lafleur, the judgment a quo determines the precise spot where this right of way will be exercised on the appellant's land.
However,. the right to appeal is not clear, and the rule as to appeals is that the court cannot assume jurisdiction in a doubtful case. I refer to the cases cited on that point in Langevin v. Les Commissaires d'Acole St. Marc
The appeal is quashed with costs of a motion. Appeal quashed with costs.