Dumont v. Fraser

-Nov. 4, AND

DONALD FRASER AND OTHERS (DE- *Feb. 18. FENDANTS)

........................

DE ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

The privilege of transmitting timber down watercourses in -the Province of Quebec given by article 7298 of the Revised Statutes of Quebec, is not granted in derogation of the obligation imposed upon those making use of watercourses for such purposes to make reparation for damages resulting therefrom by article (2) of the Revised Statutes of

The effect of the articles is that persons who avail themselves of the privilege thereby conferred are obliged to compensate riparian owners for all damages which result from the exercise of that right except in regard to such as cannot be avoided by the exercise of reasonable care and skill and those in respect of which the riparian proprietor himself may have contributed, or which have been occasioned his own fault. Tourville v. Ritchie R.L. referred to.

The judgment appealed from was reversed, Davies and Anglin JJ. dissenting.

Per Davies and Anglin JJ., dissenting.-The evidence shewed that the damages complained of were caused by the fault of a bond fide independent contractor and, consequently, the owner of the timber which was being driven down the watercourse in question was not responsible for them.

(NOTE.-Leave to appeal to the Privy Council was granted 15th July,

*PRESENT:-D.avies, Idington, Duff, Anglin and Brodeur JJ. Bench, appeal side, reversing the judgment of Cinon J., at the trial in the Superior Court. for the District of Kamouraska, and dismissing the plaintiff's action with costs.

The questions in issue on the present appeal are stated in the judgments now reported.

G.

J. (dissenting).-This is an action for damages caused by the negligent driving of logs by the defendants down the River Cabano.

The appellant was a mill owner carrying on his business on the river banks, and the damages were sustained by the damming back of the water upon his lands caused by a jam of the logs of the defendants just below appellant's mills. This -damage, it was alleged, was entirely owing to the negligence of respondents who, on the other hand, while denying any liability, contended that appellant's own negligence was largely responsible for the damages he sustained. The gist of the action is negligence causing or contributing to the damages and, if I was able to hold the defendants liable at all, I would concur in the distribution of the damages in the way and to the amounts respectively proposed by Cross J. in the court of appeal.

One main defence set up by the defendants, respondents, was that plaintiff's own negligence was the cause of the entire damage, but whether this was so or not need not necessarily be determined because the driving of the logs was not carried out or done by the defendants or any of them, but by one Gu6rette, rMNT an experienced driver, with whom a contract for the driving of the logs had been entered into either by the Cabano Log Driving Association, or by its individual members, who were the owners of the logs and the defendants herein.

The defendants, respondents, disclaimed having had any right of control or of having actually exercised any control over the work or driving operations of Gubrette.

The question, therefore, was fairly presented. Was Gu6rette, in the carrying out of these log driving operations, when the damages occurred, a bond fide independent contractor? After a careful examination of the evidence given at the trial, I have reached the conclusion that he was, and that the defendants neither exercised nor claimed the right to exercise any control over his actions or operations.

The contract was entered into with him by Mr. Fraser acting for himself and his co-partners in the Association, they being the owners of the logs and on behalf of the association as such. Whether the association had the corporate capacity to enter into the contract to drive the logs is beside the matter because, if it had not, the contract was made by Fraser with Gu6rette on behalf of himself and the log owners personally. I do not think, therefore, that these log owners are responsible for the negligence, if there was any, of Gu6rette in driving the logs. I agree with the judgment of the appeal court of Quebec as stated in the opinion of Chief Justice Archambeault on this ground, and do not, therefore, find it necessary to discuss any other grounds on which that judgment was sustainable.

The appeal should be dismissed.

1W1

J.-The respondents and others owned timber intended to be floated down Cabano River and same was driven down said river doing damage to the . property of appellant who was the owner of a mill and dam on said stream and property on each side of it at the place in question.

The respondents were found liable by the learned trial judge, but the court of appeal reversed this judgment on the ground that the work was done by an independent contractor and that he, as alleged, having same right as any one else by virtue of a section in the Revised Statutes of Quebec, 1909, to which I will refer later, was the party liable if any one.

The circumstances are very peculiar.

These owners of timber to be floated had themselves formed into a corporation known as "The Cabano Logs Driving Association" with powers for improving the river, but no power to drive logs therein or enter upon such a business.

One of the respondents says he bought from the association, for one Gu6rette, the job of driving said logs at so much per thousand feet.

It seems quite clear in law such a contract, being ultra vires the corporation, could give thereby no legal rights to any one.

Gubrette, who claims to have become their contractor, could not sue them.

That contract cannot, so far as I see, be relied upon as in law a contract independent or otherwise. The consequence seems to be that the respondents, who in fact seem to have managed the whole business, must be looked upon as those who caused the logs to be floated and driven.

In law they had a right to have stopped Gn6rette at any time, for by law he could not in such circumstances set up his alleged contract.

It may be that had he under such error done work at the instance of respondents he might have been able to recover some compensation for such work as he might have done, but he certainly could not have relied upon this contract.

Nor could he have sued for damages had he been dismissed from his employment.

I fail to see how this sort of alleged contract can be set up as an independent contract over which respondents had no control.

And to shield the employer by virtue of an independent contract he must not only shew he by the contract was or -became powerless to interfere, but also where there is or may be risk of danger or injury to others as, for example, upon a public highway he must be able to shew that he has by his contract or otherwise taken care to guard against such danger or injury. How can he in such a case rest on an absolutely void contract?

Again, it is alleged that under article 7298, either the respondents or Gudrette had a perfect right to drive logs down the river in question and neither were responsible for damages unless by way of negligence in the driving and any such negligence as is apparent was that of Gubrette and not respondents.

Passing the question of an employer without contract to shield him, as I have already indicated was the position of respondents, let us see how this legislation came to be in the singular position it is and how it is found in the revised statutes in the somewhat isolated position it is and what the legal effect thereof is. The construction put by this court on the Code and result in law in the case of Tanguay v. Canadian Electrio Light Co. (1) seems to take away any right in such a stream as this, only available at times of freshets for Iingon J. driving timber, save such as a statute may have given. - In fact the case has turned in the courts below upon statutory rights parties may have in such case. The history of this legislation may, for practical purposes herein, begin with 20 Vict. ch. 40, sec. 2, of which the first two sub-sections are as follows:- II. 1. No person shall enter upon or pass over the land of another, without permission of the owner or his. representative, upon pain of incurring a fine of not less than five, nor more than thirty shillings, excepting, however, any person in the discharge of any of the duties imposed by law;

This passed into the Consolidated Statutes of Quebec, (chap. 26,) with an amendment of the first two lines of sub-section 2, to read as follows instead of as. above:- 2. It shall be lawful, nevertheless, to make use of any navigable or floatable river or watercourse, and the banks thereof, for the conveyance of all kinds of lumber, otherwise the statute was as first enacted.

Again, these sub-sections passed into the Revised, improved, but not departing in any essential from the two features of legislative concession of right to pass over property -of others and the indemnification for all damages resulting from the exercise of that right so given.

The question is now raised whether or not this simple, just and comprehensive state of the law has been entirely changed by section 7298 in the Revised Statutes, 1909, which reads as follows:- The history of it seems to be this, that, in the Revised Statutes of 1888, art. 2972, under the caption of "Toll-bridges," were embodied provisions for the protection of these bridges.

Then, in 1890, these bridges apparently needing further legislative protection, 53 Vict. ch. 37 expressly enacted that sections therein should be added to said section next after sub-section 3 thereof.

There were thus added sub-sections (a) and (b) clearly relevant to these bridges and nothing else but their protection.

The next session 54 Vict. ch. 25 was passed, whereby sub-section (c) was expressly added to same section 2972, and, as if relating to same law, a number of sub-sections designated (d), (e), etc., follow under different headings.

Of these, this subsection (d) reads as follows:- This clearly is the section which was intended to be and should have been inserted in the Revised Statutes where it could by relation to the context be given an intelligible meaning.

As it read originally, using the words "subject to the provisions of this law," it was intelligible, either as relative to the whole Act then being passed, or in the larger sense if read as part of the Revised Statutes which were to stand amended by those sections; num- J. bered as if part of the Revised Statutes.

is now made to read as if subject to the section itself, but if we .pay heed to the divisions of this revision of the statutes we find "section" is used as a subtitle designating a group of sections.

I must say this -sub-section which has become so important in this case does not seem exactly in proper place where it is put, yet I cannot say it has been clearly misplaced, for it never seemed appropriately placed. Bearing in mind the history I have given of it and that it seemed as if a corrective of what had preceded it in legislative history, 'but to be read as if in harmony with the rest of the Revised Statutes of 1888, can I say it was intended to repeal the law as expressed in art. 5551 of said Revised Statutes? If not, was it so repugnant to any part thereof as by implication to repeal any part of it ? I think not. Then, does it confer any new right or is it merely a declaratory enactment to remove doubts in some one's mind relative to the extent of the operative effect of art. 5551 ?

Counsel could not suggest Why it was passed. Inasmuch as art. 7349, of the revision of 1909, appears therein repeating the law of which I outlined the history above from 20 Vict. (1857,) down to then, it clearly was not the intention to repeal the law which with amendments from time to time had remained substantially the same for half a century.

Indeed, the like legislation had existed from 13 & 14 Vict. ch. 40.

When this puzzling section was put into 54 Vict. ch. 25, that Act began with a distinct heading for its first section to indicate declaratory legislation was deemed necessary.

If permitted to surmise I would suggest that this new section was also intended to have been also declaratory to meet some ingenious objection that the law as it stood did not cover the possible case of streams which were mere streams at freshet times and at other times dry, and hence could not fall within the description given in the revision of 1888, and now art. T349 of the revision of 1909.

If that was the case then this stream does not, from what we are told at the bar, fall within the class the new section was intended to cover, for it runs continuously. If this stream then does not fall within the language of art. 7349, of the revision- of 1909, I fail to understand what could.

No case of the kind I suggest is made by the pleadings or is proven and I assume, therefore, that art. 7349 is what entitled the respondents to claim a statutory servitude over appellant's property. It was clearly in exercise of that right they had driven these logs and they must compensate for any damages done in this operation of driving.

In such case they fall within the law as declared by this court in the case of Dickie v. Campbell(1) in construing an enactment less express than art. 7349 in its provision for indemnification.

The statute that case turned upon gave indemnification rather by an implication derived from an exception relative to damages than from an express provision providing therefor.

In disposing of that case the court expressly anticipates the case of an independent contract and overrules such a defence. Whether this arose from facts m1ieont which do not appear in the meagre report I cannot say; yet on the possible facts the judgment deals with it expresses sound law. Nay, more, it surely is absolute justice that when a man acquires the right, as a matter of public expediency, to invade another's possession he should, when no other compensation is given, at least indemnify that other for the loss or expense he is put to by the exercise of the statutory right.

It would probably be impossible to estimate compensation in anticipation of what might happen in such cases and the least that should be done is to see that the man whose property is thus sbjected to a servitude by law does not suffer.

This principle has been so long adhered to by the legislature and in so many forms that one must be slow in giving an interpretation to an ambiguous sort of legislation that would conflict therewith.

The rules laid down in the interpretation clauses introductory to the revision of the statutes clearly indicate that such revision is to be treated, at least prima facie, as declaratory of the law.

On the facts, I repeat, we must find, and, except in a very express case pleaded and proven, assume the respondents were acting in the drive they directed under the law as set forth in art. 7349 and, therefore, be held responsible for the consequences of such act. I do not think we can rely entirely upon the grounds taken by Mr. Justice Cross; yet I feel there is great force in the facts he refers to shewing the respondents had no such independent contract as clearly put the movements of Guirette out of their control. I see no such clear governing reasons to quarrel with the findings of fact and assessment of damages made by the learned trial judge as to render it imperative J.. we should here interfere therewith, and, therefore, conclude the appeal should be allowed with costs here and in the court below, and the judgment of the learned trial judge should be restored.

DUFF J.-The first question arises upon the appellant's contention that the damages sustained by him in respect of which he claims compensation were "damages resulting" from the driving of the logs of the respondents and their associates and that he is entitled, under article 7349(2) of the Revised Statutes, of Quebec, 1909, to reparation for that loss. I will first consider the appellant's proposition of law that for all "damages resulting" from the driving of the logs in question the respondents are liable to an action before discussing the question how far the loss for which coiApensation is claimed falls within that. category.

The enactments to be examined are articles 7349 and 7298, R.S.Q., 1909; and it will be convenient to. quote them in full:- It is not disputed that if article '7349 stood alone the appellant would be entitled to reparation for all loss that can be described as "damages resulting" ftom the driving of the logs in question within the meaning of that article. The contention of the respondents is that the rights and obligations of persons making use of streams for the driving of logs during the "Spring, Summer land Autumn freshets" are stated in article 7298; and that the provisions of article 7349 (2) have no application to "damages resulting" from such operations when carried on during those seasons. The enactment that is now article 7298, (in a form not quite identical with its present form,) became law in 1890; and, at that time, the enactments now reproduced in article 7349 had been in force for many years. The majority of the Court of King's Bench have given effect to the contention of the respondents that, in respect of the matter to which it relates the use of streams during the seasons mentioned the later enactment must be taken to have displaced the earlier; and that, no duty to make reparation having been imposed by the governing enactment, the respondents' responsibility is only such as the law implies, namely, to make good such a damages as arose from the negligence of the respond- Dut J. ents themselves or of those for whose acts they are answerable according to the general principles of law. The effect of this view of the Act of 1890 put in concrete form is that when the driving is undertaken by a competent independent contractor during any of the seasons mentioned the owner is not, save in very exceptional circumstances, answerable for the consequences of any negligence in the execution of the work. With great respect, I cannot agree that the obligation imposed by article 7349 (2) was affected by the later enactment.

Before the passing of the lastmentioned Act (now articles 7297-7305) the owners of logs were entitled to make use of the streams of the province for floating them, but the owners of the lands traversed by such streams had a correlative right to be compensated for damages occasioned by such use. I have already said it is not disputed that this obligation to make such compensation (under the law as it was prior to the Act of 1890) rested on all persons availing themselves of the right, whether through independent contractors or otherwise; and, according to the construction we are now considering, this right of compensation, as regards damages caused during the seasons of high-water, was taken away by the Act of 1890. One of the most important principles of interpretation is that which rests upon the presumption that the legislature does not take away vested private rights or impose new servitudes upon private property without compensation. It is not suggested that for the valuable right of which riparian owners are said to have been deprived by the Act of 1890 any compensating benefit was conferred upon them; and .the effect of that Act, according to the construction J. proposed by the respondents, would, of course, be to augment the burden of the servitude declared by the earlier legislation.

As the principle just indicated seems to apply to such a case, one is bound, before adopting a construction having that effect, to see that it is quite clear that the proposed construction really gives effect to the intention of the legislature, as shewn by the statute.

Looking at the provisions of the Act of 1890 as a whole one sees thait the main object of the enactment was to sanction the maintenance of booms and other works for facilitating the use of the streams of the province for floating craft and timber and the improvement of the floatability of such streams and to define in a general way the rights and obligations inter se of the owners of such works, on the one hand, and other persons making use of the streams for the transmission of craft and timber, on the other. The Act was passed in December, 1890. In November of the previous year, the Court of Queen's Bench had held, in Tourville v. Ritchie(1), that the plaintiff, the owner of a boom in the River St. Francis, was not 'entitled to charge the defendant for the use he had made of that boom in floating his logs down the river; but, on the contrary, that the boom was an obstruction and that the plaintiff was liable for all damages occasioned by its presence in the river. The Act of 1890 first declares the public right to use the streams of the province during the Spring, Summer and Autumn freshets for flotation purposes. The provision quoted textually, (54 Vict. ch. 25,) is as It then proceeds to declare that the maintenance of booms and other works for facilitating the use of streams for such purposes and for improving the floatability of streams is and always has been lawful. Then follows a provision that the owner of any such work shall not be entitled to the exclusive use of it, but that he may acquire, upon application to the Lieutenant- Governor in Council, the right to charge tolls for the use of it by others. It seems to be clear enough that the subject the legislature is really dealing with is the rights and obligaitions inter of persons who are engaged in exercising the public rights mentioned in the statute and not the private rights of riparian owners. One is not surprised to find in a statute dealing with that subject a declaration, on the one hand, of the existing right to use the streams of the province for floating purposes and, on the other, of the existing right to maintain works of the description mentioned for facilitating such use. Looking more particularly at the language of article 7298-the article does not expressly or by necessary implication refer to the right of compensation given by the then existing law. The right of compensation was not a right of action for a wrong; it was strictly a right -to be compensated for the injurious consequences following upon the exercise of another right.

The declaration in article 7298, therefore, of the existence of the public right does not necessarily involve any negation of the correlative private right. In the absence of any indi- FA cation that the legislature had such private rights in view I think the weight of argument favours the narrower construction.

There is a passage in Lord Selborne's judgment in Ea8t and West India Dock Co. v. Hill (1), at page 23, which seems to me to be directly applicable here:- Subsequent legislation lends some confirmation to this view of the Act of 1890. That Act was amended, in 1904, by making its provisions applicable to "lakes and ponds." By the same statute the enactments now reproduced as articles 2256 and 7349(2) were similarly amended.

If the rights of compensation declared by article 7349 (2) and article 2256 were regarded as no longer available during the seasons of high-water, by reason of the provisions of the Act of 1890, 'it is strange that the 'language of those enactments was not brought into harmony with that state of the law by appropriate amendments. This consideration receives some additional weight from the fact that these same provisions of the law, without additional amendment indicating that they had in effect been modified by the enactment of the Act of 1890, were reproduced in the Revised Statutes of 1909.

In this view of the enactments in question, the law imposes upon persons who avail themselves of the public right the cobligation to compensate riparian proprietors at least for all damages which are caused by the exercise of the right and which could be avoided by the exercise of reasonable care and skill except in so FEE far as they may have been contributed to by the fault of the riparian proprietor himself. It is not necessary for the purposes -of this case to consider whether the right of the riparian proprietor is any higher. The learned trial judge has appraised the damages upon this principle and the questions involved on this head being questions of fact and the trial judge having heard the witnesses his conclusion ought to be accepted unless it is clearly erroneous. I think there is no sufficient reason for holding that it is.

But there is another ground on which I think the appellant is entitled to succeed. I shall assume that the provisions of article 7349 (2) do not apply in cases to which article 7298 is applicable and, consequently, that the appellant's right to compensation, if any, must rest upon some other foundation than the firstmentioned article. I shall assume also, for the purposes of this appeal without expressing any opinion upon the point, that an owner of logs who, during Spring, Summer or Autumn freshets entrusts the driving of his logs to a competent independent contractor without retaining any control over the execution of the contract, and without actually interfering in fact with the execution of it, is not answerable for damages resulting from the contractor's negligence. Having made these assumptions, I still think the evidence supports the view at which the learned trial judge, as well as Cross and Carroll JJ. in the Court of King's Bench, arrived - that the drive was not entrusted to an independent contractor and that it was in fact executed under the control of the respondents. was clearly beyond the powers of the Cabano Association either to undertake the driving of logs or to let contracts for the driving of the logs owned by the members of the association; and the so-called contract, therefore, between the association and Alexander Fraser, which the latter alleges was assigned to Gu(rette, was a mere nullity and may be entirely put out of view. The facts mentioned by Mr. Justice Cross and by the learned trial judge justify the conclusions, in my opinion, that in fact the understanding at the meeting of the association (at which the so-called letting of the contract to Alexander Fraser took place) was that Donald Fraser & Sons should undertake the drive and that in fact they never relinquished control of it. The -appeal should be allowed and the judgment of the learned trial judge restored.

(dissenting).-I would dismiss this appeal for the reasons given by the learned Chief Justice of the Court of King's Bench.

J.-Deux questions principales so prdsentent dans cette cause ci. La premibre est de d6terminer P'6tendue de la responsabilit6 d'un marchand de bois qui en descendant ses billots cause des dommages aux propri6taires riverains, et nous avons aussi h examiner si lentrepreneur qui a fait la descente du bois dans le cas actuel 6tait le pr~te-nom des d~fendeurs intimbs.

Ces derniers sont des concessionnaires de coupes de 'bois sur les terres de la couronne dans la province de Qubbec.

Ils coupent leur bois en billots dans le cours de l'hiver et an printemps ils jettent ces billots dans un petit cours d'eau; qui s'appelle la rivibre Cabano, pour les descendre it leur moulin qui est situ6 A son embouchure.

Ce cours d'eau est du domaine priv4 et les riverains en sont les propri6taires. Plusieurs dispositions statutaires out 6 pass~es cependant pour autoriser le flottage du bois dans ces cours d'eau privs.

Celle qui je crois doit r~gir le cas actuel se trouve reproduite dans les statuts refondus de 1909 it 'article 2256. Elle se lit comme suit:- Cette disposition de la loi est tr6s juste et tr&s 6quitable.

Le cours d'eau 6tant propri6t6 priv6e le propri6taire devrait pouvoir en jouir comme bon lul semblerait. Il est incontestable, par exemple, qu'il peut y 6riger des digues pour faire mouvoir un moulin et ce droit lui a 6t6 formellement reconnu par la 16gislation de 1854 dont il est fait mention h l'article 503 du Code Civil. La 16gislature voulant favoriser I'exploitation des forts sur les terres de la couronne a adopt6 la loi ci-dessus cit~e et elle a donn6 le pouvoir aux porteurs de permis de descendre leur bois sur les cours d'eau pourvu qu'ils paient les dommages qu'ils causeraient.

Ce privildge accord6 aux marchands de bois restreignait n6cessairement le droit de propri6t6 du riverain. Par exemple ce dernier, s'il avait brig6 des 6cluses, 6tait oblig6 d'y percer des glissoires pour y faire passer les billots des marchands de bois mais il devait 6tre indemnis6 si on lui causait des dommages. Dumont, P'appelant, est un de ces propri6taires riverains sur le cours d'eau Cabano. II avait 6rig6 une cluse pour alimenter ses moulins scie et A farine et afin de faciliter la descente du bois il avait une glissoire dans son 6cluse. Il est d'usage qu'h quelque distance de ces 6cluses ainsi pourvues de glissoires les proprietaires du bois tendent des estacades et dirigent ensuite les billots vers ces glissoires. Il est all6gu6 et il est prouv6 que les estacades 6riges pros de 16cluse du demandeur n'etaient pas attachdes soigneusement et alors une crue soudaine s'6tant produite les billots out bris6 P'6cluse et sont venus s'arr~ter un pen plus bas et out compl~tement barr6 le cours de la rivibre qui est sorti de son lit, et qui se frayant un passage sur le terrain de Dumont lui a caus6 de grands dommages. Tout cela aurait pu 6tre 4vit6 si on avait suivi les conseils de Dumont et si on avait, la veille de la nuit oti Paccident s'est produit, fait passer les billots dans la glissoire de l'6cluse.

Mais les d6fendeurs Fraser n'avaient pas 6tendu leurs estacades h Plembouchure de la rivibre et alors la descente n'a pas pu se faire.

Si les estacades (booms)

audessus de F4'cluse avaient 6t6 fortement attach6es laccident aurait probablement 4t6 Avit&. Mais les d~fendeurs disent "c'est la faute de l'entrepreneur it qui nous avons confi6 cette entreprise et nous ne sommes pas responsables de sa n6gligence."

J'examinerai plus loin cette pr~tention. Pour le moment je vais examiner la question de savoir si les d6fendeurs sont responsables qu'il y ait n6gligence on non.

Le propri6ta ire d'uu cours d'eau priv6, comme nous venous de le voir, est oblig6 de subir le flottage des billots des concessionnaires de coupes de bois, mais ces derniers, par contre, sont responsables des dommage qu'ils causent. Il n'est pas n~cessaire qu'Il y ait n6gligence de la part de ces marchands, ils engagent leur responsabilit6 du moment qu'ils causent des dom- 15' inages. O'est ce que cette cour a d4cid6 dans la cause de Dickie v. Campbell(1).

Dans une autre cause jug6e par cette cour, Ward v. FB *E. Township of Grenville (2), le juge Girouard, &, la page BrEdeur 3. 526, dit en examinant une disposition statutaire rbdigce dans les mAmes termes, que Particle 2256, R.S.Q., 1909:- It lays down the rule that the owner of logs and timber floating on a private river, like the Rouge, is responsible for the damage caused that passage, whether he is in fault or not, provided, course, the riparian proprietors are not in fault It was quite recently, (1902,) applied by the Superior Court, in Sherbrooke (Archibald J.,) confirmed in review by Tait, A.C.J., Loranger and Fortin JJ., in McKelvie v. Miller.

La cour de r6vision, dans une cause du Club de C(hasse et de P&ce Ouiatchouan v. La Cie. de Pulpe de Ouiatchouan (3), a jug6 ce qui suit:- 1. Les fabricants de bois, concessionnaires de coupes de bois, etc., ont le droit de flotter le bois qu'ils fabriquent dans les rivieres et cours d'eau de la province, f la condition d payer les dommages qu'ils peuvent causer.

L'Hlon. Juge Lemieux, h la page 140, dit:- Comme on le voit, le statut ne confere qu'au porteur d'un permis de coupe de bois le droit de se servir des riviares flottables, en tout temps, pour transporter son bois, saul A payer les dommages, etc. * * * Nous consid6rons que ce privilege

* * * est inh6rent A la personne et ne peut etre exerc que par un porteur d'un permis de coupe de bois.

Et s'il en est ainsi, il ne pent 0tre

6dd on transport6 A des tiers. Autrement le marchand de bois pourrait toujours se lib6rer du recours en dommages

*

* en donnant de contrats pour la deseente de ce bois A des personnes insolvables, etc. * *

Et il s'en suivrait que ces contracteurs, an d6ft de la loi, pourraient * * * faire le flottage on la descente des billots * * * . qui, en s'echouant, * * * nuiraient aux riverains, et commettraient des torts consid6rables, sans aucune crainte de recours en indemvit..

(6) Q.R. 31. S.C. 133. , - 1

Ce principe est parfaitement reconnu dans la jurisprudence mais on dit qu'une loi pass~e en 1890, 54 J. Vict. ch. 25, a restreint la responsabilit6 du marchand de bois. Un article de cette l6gislation de 1890 se lit comme suit:- Cette disposition ne doit pas s'appliquer au cas actuel.

Les defendeurs sont concessionnaires de coupe de bols, leurs droits et leurs obligations sont r6gis par les lois des terres de la couronne ou ce que j'appellerai notre code forestier. Ainsi, par example, dans une limite h bois il se trouve parfois des terrains qui out t cond&6s des agriculteurs. La loi, h larticle 1627, S.R.P.Q., 1909, dit que

Ces dispositions du code forestier lient les porteurs de coupe et ces derniers n'ont pas le droit de s'y sonstraire en invoquant la loi commune. C'est une des raisons pour laquelle les d6fendeurs ne peuvent pas invoquer la loi de 1890.

D'ailleurs il suffit d'examiner un instant les circonstances qui ont donn6 lieu h l'adoption de cette loi de 1890 pour se convaincre qu'elle ne saurait Atre invoquie par les d6fendeurs.

D&s 1857, par lacte 20 Vict. ch. 40, on permettait de faire usage des rivibres et cours d'eau pour le transport du bois mais 4 la charge de rdparer tous les dommage8 r6sultant de 'exeroice de ce droit. En 1891, lors de la codification du Code Municipal, on y a d6clar6 h Particle 891 que Pon pouvait utiliser les cours d'eau municipaux et leurs rives, mais, encore, avec 'obligation de payer tous les dommage caueds.

La m~me responsabilitk est enoncbe dans les lois organiques forestibres que nous retrouvons dans les statuts refondus de 1888. Cependant, en reproduisant dans ces derniers statuts la loi de 1857 on a en le soin de retrancher les rivibres navigables vu que leur contrble

16gislatif, par Facte de la Conf~dration, 6tait pass6 an parlement f6d6ral.

Dans une multitude de procs c6lbres de Tourville et Ritchie oft Pon soulevait les droits du public dans les rivibres navigables, ot Pon discutait le droit d'6riger des booms dans ces rivibres et d'exercer des saisies gagerie sur le bols qui y 6tait retenu, il y a en en d6finitive des dkcisions rendues par la cour d'appel, en 1889, qui paraissent bas6es sur

IF6quit6 plut6t que sur le droit strict. Nous retrouvons quelques uns de ces jugements dans la cause de

Tourville v. Ritchie(1).

Et alors, Yann6e suivante la 14gislature de Qubbee, afin de mettre fin h Fincertitude qui existait, a 16gifr6 et a reconnu le droit d'6riger des estacades dans toutes les rivibres, de pratiquer des saisies et de faire flotter le bois. Le but de cette 16gislation 4tait de faire disparaitre le doute qui pouvait exister quant & Finstallation d'estacades sur les rivibres navigables et ne pent pas Atre interprt6 comme diminuant la responsabilit6 de ceux qui pourraient causer du dommage. Cela est tellement 6vident que la vielle loi de 1857 et celle de 1890 ont 6t6 amend6es, en 1904, par chap. 14, 4 Ed. VII. de manidre & ce que deux dispositions statutaires J. couvrent 6galement les et les 6tangs.

8'il y avait eu intention de la part de la 16gislature en 1890 d'abolir la 16gislation ant6rieure de 1857, et si c'est par oubli comme on le pr6tend que cette ancienne 14gislation n'a pas 6t abolie, pourquoi alors I'amender en 1904 ? Dailleurs, dans cette 16gislation de 1890 on y d6clare formellement qu'elle n'affecte pas les 6cluses. Done ces dernibres continuent & 6tre r6gies par la vielle loi de 1857, et comme les dommages en question dans cette cause se rapportent pour grande partie A P'6cluse du demandeur les d6fendeurs ne peuvent pas se soustraire h leur responsabilit6. Ces lois de 1857 et de 1890 ont 6t reproduites dans nos statuts revis6s de 1909. L'une est reproduite au titre des servitudes; c'est la loi de 1890. L'autre se trouve au titre de la responsabilit6. Il est done evident aujourd'hui que, ces dispositions statutaires se retrouvant dans nos statuts, nous devons les interpr6ter lune par 1'autre. Je suis d'opinion, en resum6, que le marchand de bois peut descendre ses billots dans les cours d'eau et les rivibres, mais que dans le cas de cours d'eau priv6s ce droit est subordonn.6 h 1'obligation de payer les dommages.

Ce point d6cid6, l'appelant devrait r6ussir. Mais je dois ajouter que les intimbs doivent aussi Atre condamn6s parce que leur pr6tendu entrepreneur n'6tait que leur prdte-nom et que la descente des billots se faisait virtuellement sous leur contr6le. Or, en vertu de 'article 1054 du Code Civil, is se trouvent responstbles du dommage qu'ils ont alors caus6.

C'est 1H principalement une question de fait que de savoir si Gu6rette avait rbellement Penterprise h forfait, et 6tait ind6pendant des intim6s. La preuve n'est pas absolument certaine et quelque peu contradictoire.

Aussi les six juges qui se sont prononc6s, en cour sup6rieure et en cour d'appel, sur ce point sont 6galement divis6s. Mais, comme le juge instructeur a vu et entendu les 06moins, il est, je crois, en meilleure position de peser leurs d6clarations. Il est d'opinion que Pentrepreneur n'6tait que le pr~te-nom des intimbs et je crois que nous devons accepter son verdict.

En principe Pentrepreneur est responsable h l'exclusion du propri6taire des accidents et dommages survenus au cours du travail; ce dernier, cependant, est responsable lorsqu'il r6sulte des circonstances de la cause que le contrat est simul6 et n'a eu d'autre but que de substituer an regard des tiers h la responsabilith effective du propri6taire celle d'un r6pondant a'bsolument insolvable. Longmore v. The J.

II est bon d'ajouter que dans le cas actuel certains travaux de d6molition de la digue de Pappelant ont t faits sous la surveillance et les ordres formels des d6fendeurs.

L'appel doit tre maintenue avec d6pens et le jugement de la cour sup6rieure r6tabli.

Appeal allowed with co8t8.