Judgment of the Court
J.-In this case there is first to be disposed of a motion to quash the appeal upon the ground of acquiescence in the judgment of the trial court. The respondent has failed to take advantage of this exception before the Court of Appeal in accordance with article 1220 of the Code of Civil Procedure. He is too late do now and the motion is rejected with costs.
On the merits, we have only a few remarks to make. While recognizing the power of the Superior Court of the Province of Quebec, and in some cases its duty, to provide for the construction of protective works for the purpose of putting an end to further damages and of avoiding multiplicity of actions for the same causes, we do not think that this is a case where that power should be exercised.
The dam ordered by the court to be constructed in the Chambly Rapids is a difficult piece of work, involving the expenditure of a large sum of money, fixed by the experts named by the court at $20,993; it may be more, for, as we know, experts' estimates are seldom not exceeded in the execution.
After the rendering of the judgment of the trial court, the appellants commenced to comply with its directions, but they soon had to stop, the work done being carried away by the strong current. It was, no doubt, in view of these difficulties, due to the locality and the character of the constructions, that the building of the original dam and other works and the specifications were settled and agreed to by both parties.
They proved to have been insufficient.
The parties had foreseen this possible result and have agreed upon the remedy to be taken in such an eventuality. Clause 11 of the agreement says:
We believe that, under this clause, the respondent has only an action for the recovery of such damages as he may suffer from the works in question at any time, and especially in the spring, for it is admitted that it is generally during that season that floods may happen.
The appellants prefer to run the risk of the money satisfaction or indemnity provided for in the contract rather than the more or less expensive and uncertain protective works ordered by the court. We believe that this agreement between the parties should be carried out. We will, therefore, reform the judgment appealed from by striking out that part which provides for the construction of protective works. We have also come to the conclusion not to admit the three items of $150, $350, and $347, which the Superior Court had also rejected and the Court of Appeal accepted, for no apparent reason, amounting altogether to $747.
The appeal is allowed with costs. The judgment appealed from is modified accordingly, and the judgment on the appeal from the interlocutory judgment of the 10th of June, 1901, is reversed with costs, on both appeals, against the respondent.
The action of the respondent is maintained for $8,500 and interest from the date of the judgment of the Superior Court, 18th November, 1902, and costs of suit incurred in said Superior Court, less all costs of expertise which shall be paid by the respondent.
Appeal allowed with costs. Upon the argument of the appeal the attention of the court was not called to the fact that if the appellant succeeded in having the order for the protective works set aside, the items of damage which had been struck off by reason of the contemplated works should be added to the damages awarded to the plaintiff, or a reference made to the courts below for some final adjudication with respect thereto. This point was first raised upon the settlement of the minutes of judgment, and an application was subsequently made, on 31st May, 1904, to the full court* to vary the form of the judgment as pronounced, and to increase the amount of damages to the $12,042 found by the trial judge. The court having heard the parties by their counsel upon the motion to vary the minutes of judgment, as drafted by the Registrar, on the 1st June, 1904,* added a paragraph to the minutes reciting that, whereas three items of damages forming part of the statement or group of items referred to in the judgments of the Superior Court as " Group B., " namely, item 2, for $3,300; item for $190; and item 12, for $1,650, had not been finally passed upon, either by the Superior Court or the Court of King's Bench, and inasmuch as they were considered as provided for and included in the protective works recommended by the experts, and it was ordered that the said three items should be referred back to the Superior Court to be investigated and adjudical ed upon, the costs of such investigation and adjudication to follow the event. No costs were allowed on the motion, as the question was not raised at the hearing of the appeal.
Motion allowed without costs.