Judgment of the Court
J.-At the conclusion of the argument I was strongly of the opinion that the plaintiff (respondent), whose only claim to the lands, for trespass upon which he brought this action, was alleged possession, had entirely failed to make out a case to go to the jury and should have been nonsuited. Mr. Hazen, for the respondent, submitted that there was some evidence, however slight, for the jury and urged very strongly that the evidence subsequently given by the appellants shewed that there had been some negotiations on the part of the railway company with the plaintiff to buy out his claim, and that the Government of New Brunswick had a year or two ago recognized plaintiff's claim to the remainder of the block of land not taken by the railway company, and that all this evidence, combined with the plaintiff's user of that block of land for the last fourteen or fifteen years, together constituted sufficient evidence to warrant the finding of the jury that, at the time the railway company entered upon and took possession of the strip of land required by them for the track of their railway the plaintiff was in possession of it.
J. The question upon which the case largely, if not entirely, turned was whether or not the plaintiff was at the time of the taking of the land in question by the railway company its actual possessor. If he was not, then no other question need be considered and he must be nonsuited.
The evidence shews to my mind, beyond any doubt, that plaintiff was not only not in possession of the land at the time referred to, but that he knew that he was not, and that it was not till many years afterwards that the idea first entered into his mind that he could have any claim for damages for the land against the appellants. In his evidence he says he was working with Ritchie, a sub-contractor of the railway, near, but not on, the locus and goes on to say:
And then, being asked the question:
Later, being asked as to whether Daniel Chisholm was not in possession at the time the railway was built, he said:
INot a.single overt act of possession was attempted to beproved by plaintiff before and up to the time the railway company entered beyond the vague claim that he had used the land for pasture one summer in common with Chisholm and others.
As the land was vacant and admittedly being used also for pasture by Chisholm and others at the same time, it-would be difficult to hold such vague evidence of casually pasturing cattle on it as evidence of possession.
The fact was that such evidence as there was of actual possession in any one of the land in question at the time the railway entered shewed it to have been in Chisholm who paid rent for it to another man. Chisholm left there and abandoned the possession in 1893, two years after the railway company had entered and built their track and with respect to such part of the "point" as the railway company had not taken, it was after that possessed and occupied by plaintiff.
Such rights as he had in these lands outside of the railway belt and specially excepting that belt, were purchased from the plaintiff by the provincial Government about a year or more before this action was commenced.
ft would be impossible, however, to infer possession by the plaintiff of the railway belt at the time the railway company entered on the land under the evidence given by the plaintiff himself, from the subsequent user by him of the remainder of the land or from the purchase of his squatter's rights in such remainder by the Government.
His possession previously to defendants' entry seems to have been purely imaginary and such as he did have arose subsequently and never embraced the railway track which has been fenced off for the past fifteen years or more. The finding of the jury on the point was not one which reasonable men could fairly have come to under the evidence and must be set aside and the appeal allowed with costs and a judgment of nonsuit entered as proposed by Chief Justice Tuck in the court below.
Appeal allowed with costs.