Majority
MOTION to quash an appeal from the judgment the Court of King's Bench, appeal side, pronounced on the 25th of November, 1903, affirming the judgment of the Superior Court, District of Ottawa (Archibald J.) by which a motion, on behalf of the respond ents, to have a surveyor's report as to a boundary line varied in part and homologated was allowed, and a motion, on behalf of the appellant, to have the report rejected in part and a different boundary line established was dismissed.
The action au petitoire was instituted, in 1901, by the appellant for a declaration of its title to lands. adjoining and lying in the bed of Brewery Creek, in the City of Hull, and for a bornage between said lands and the adjoining lands of the late Nancy Louisa :-Sir Wright, (respondents' auteur) and also for an injunction to restrain the mis en cause from the construction of certain buildings and improvements upon the locus
An interim injunction was granted, as prayed, by Lavergne J. and, on the commencement other constructions at the point in dispute by the city, an injunction was also applied for by the respondents.
Upon the'hearing on the merits the interim injunction was dissolved and the respondents' application for an injunction maintained for costs only, the judgment on the merits deciding the question of the title in favour of the respondents. This judgment also ordered a bornage according to the lines defined and recognized by the said judgments, the question of costs being reserved.
The Court of Review, at Montreal, affirmed these judgments and, on further appeal, the Supreme.Court of Canada on 26th May, 1902, affirmed the decisions of the said courts with an addition to the motifs as well as to the dispositif of the judgment of the Superior Court (Archibald J.) of the 30th of November, 1901, to the effect that the present respondents, who were also defendants in that action, bad, furthermore, "acquired the ownership of lot No. 95, (including the locus in quo) by the thirty years prescription
Subsequently, a provincial land surveyor, appointed by the court, made a survey in, situ of the properties in dispute and reported his proceedings to the court suggesting a boundary line. Thereupon, the respond- .
ents moved to reject portions of the surveyor's report as being inconsistent with his instructions for the location of the boundary and the findings in the judgments in respect to the title and, also, to have the report varied and the boundary line located in accordance with the judgments.
The present appellant also moved to reject the line suggested in the report and to have another boundary line adopted.
On a re-insLription before Mr Justice Archibald, for the bearing of these motions and upon the issues as to costs which had been reserved, the appellant's motion was dismissed, the respondents' motion was maintained and it was ordered that the boundary line should be located as set out in detail in the judgment pursuant to the former judgmeuts.
This latter judgment also adjudicated finally as to the costs in respect to the in junctions and the principal action.
On appeal, the judgment of Mr. Justice Archibald was affirmed by the Court of King's Bench and the City of Hull now asserts the present appeal.
Aylen K.C. for the motion. Th-- chief question at issue is in respect to the adjudication as to costs and, consequently, no appeal can lie.
Moir v. Village C.J.-(Oral.) For the reasons given in the case of Cully v. Ferdais (1) the motion to quash is granted with costs and the appeal is quashed with costs.