Burland v. City of Montreal

16gal des conventions matrimoniales des parties. C'est ainsi que nous-interprtons les articles 807, 819 et 1411 du Code Civil.

BIENvENU. L'appel est renvoy6 avec d~pens.

o Gironard J. The is an appeal from a judgment of the Court of King's Bench, at Montreal, by which the appellant's action was dismissed. He claims thereby the value of 473 feet of land of which, as he alleges, the respondent is illegally in possession. The respondent pleaded that, if its officers or contractors had taken possession of any of the appellant's property, they were ready to return the possession of it to the appellant. The appellant replied that the respondent's offer was now too late, and that the city was bound to pay the value of his land of which it was in possession.

The judgments of the Superior. Court and of the Court of Appeal concede that the respondent is, in fact, in possession illegally of a strip of the appellant's property, but they dismissed the action on the ground that the appellant's remedy is by an action en bornage or au pititoire.

I would think -that the controversy between the parties, as it appears upon the record, ought to be determined in the present case so as to avert any further litigation in the matter.

What is now the real controversy between the parties? (See sec. 63 of the Supreme Court Act.) Nothing else than a controversy as to the extent of appellant's land which the respondent's contractors took possession of when they built, in 1892, a permanent sidewalk in front of it.

At the trial, one of the witnesses put it at 473 feet, and another one at 271 feet. So that, under the circumstances, the record should be remitted back to the

Superior Court for the purpose of ascertaining, by expertise or otherwise, as the court thinks proper, what is the extent of the appellant's property which is covered by the said sidewalk, and ordering that the respondent should, within the delay fixed by the court, restore the said property to the appellant in exactly the same state as it was when the said sidewalk was constructed, all the necessary amendments of the pleadings being treated as having beenamade.

There will be no costs upon this appeal nor in the

Court of King's Bench.

Costs in the Superior Court to be later adjudicated upon in its discretion.

Appeal allowed without costs.

Prdfontaine, Archer 4

Perron.