Calgary (City) v. Janse-Mitchell Construction Co.

(DE- APPELLANT; -6R14. FENDANT).........................

*Oct. 15,16. AND

JEU JANG HOW (PLAINTIFF) ...... RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FROM BRITISH COLUMBIA.

Per Duff and Anglin JJ.-The words "criminal charge" in sec. 39 (c) of the "Supreme Court Act" mean a charge preferred before a tribunal authorized to hear such a charge either finally or by way of preliminary investigation; and the Board of Enquiry under the "Immigration Act" is not a tribunal by which the respondent could have been convicted of a criminal offence. Per Duff and Anglin JJ.-The right of appeal given by sec. 39 (c) in cases of habeas corpus, does not exist where the court below has ordered the release of the person, the legality of whose custody was in question in the court below and that person is at large. Cox v. Hakes (15 App. Cas. 506), followed(l).

Mignault J. dubitante.

APPEAL from the judgment of the Court of Appeal for British Columbia(2), reversing the judgment of *PRESENT:-Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.

(1) NOTE.-See also Fraser v. Tupper (Cout. Dig. (2) 47 D.L.R. 538; W.W.R.

the trial judge, Murphy J.(1), allowing an application for a writ of habeas corpus and ordering that the respondent should be accorded his liberty and freed from the order for deportation issued by the Board of Enquiry under the "Immigration Act" (9 & 10 Edw. VII., ch. 27, sec. 73, sub-s. 7, as amended by 1 & 2 Geo. V. ch. 12).

A motion was made to quash the appeal on three grounds:

(1) That the right of appeal is taken away by section 48 of the "Supreme Court Act," as amended by 8 & 9 Geo. V. ch. 7, sec. 3; (2) That the proceedings for habeas corpus arise out of a criminal charge and are therefore not within clause of section 39 of the "Supreme Court Act"; (3) That the fact that the respondent was at large under an order for his discharge precludes any right of appeal. SirCharles Tupper K.C. for the motion, referred to Cox v. Hakes(2), and Barnardo v. Ford(3).

R. V. Sinclair K.C. contra.

THE CHIEF JUSTICE.-We were all of the opinion at the close of the argument on this motion that it must succeed.

The appeal sought to be quashed clearly does not come within any of the classes of enumerated cases stated in section 48 of the "Supreme Court Act" as amended, within which an appeal as of right to this court is given, and as no special leave to appeal as provided' for in sub-section (e) of that section was obtained, we are clearly without jurisdiction to hear the appeal.

This objection being, in my opinion, a fatal one, I do not discuss the other important points raised at the hearing of that motion.

As to the question of allowing costs, we were of the opinion that, as the case was not one within the rules requiring a notice of motion to quash to be given within the definite time prescribed by Rule 4 of the Supreme Court Rules (it being a habeas corpus appeal in which no security is required), the motion was in order; the applicant was not in fault or default, and was entitled to costs of his motion.

The order of the court, therefore, is to grant the motion to quash the appeal for want of jurisdiction, with costs both of the appeal and of the motion to quash.

J.-Under and by virtue of the amendment of section 48 of the "Supreme Court Act" it seems to me hopeless to contend that, without leave, this case is appealable.

The appeal should, therefore, be quashed for want of jurisdiction, with costs. The suggestion of Mr. Sinclair to let the case stand on the docket until the Crown had applied to the Court of Appeal for British Columbia to allow an appeal, seems at first sight, in view of what we have done in some cases, plausible, but after due consideration of all the facts leading up to this appeal and to the hearing of this motion, and no attempt having been made to invoke the sanction of the Court of Appeal, until now, I think we should not encourage such neglect or even suggest that it is a proper case for now giving leave to appeal.

J.-A fatal objection to the jurisdiction arises out of the provisions of the recent amendment of section 48, the appeal clearly not coming within any of the classes enumerated in that section and leave to appeal not having been granted; but it is desirable, I think, to deal with another exception to the jurisdiction of this court taken by Sir Charles Tupper which appears to be well founded.

Section 48 is a negative section which prescribes essential conditions, but it does not in any way dispense with the conditions prescribed by other provisions of * the. Act. A ground for jurisdiction must therefore be found under the enabling sections and the provision to which appeal is made 39(c).

It is argued that the proceedings in this case arise out of a criminal charge but it is plain enough that "criminal charge" in this provision means a charge preferred before a tribunal authorized to hear such a charge either finally or by way of preliminary investigation.

The board which directed the deportation of Jeu Jang How is clearly not a tribunal of that description.

Another objection, however, is advanced by counsel for the respondent, to which I think effect must be given, and that is that the right of appeal given by section 39(c) in cases of habeas corpus does not exist where the court below has ordered the release of the person, the legality of whose custody was in question in the court below and that person is at large. In Barnardo v. Ford(1), it was held unanimously by the House of Lords that an order directing the issue of a writ of habeas corpus to test the right to the custody of a child was an order within the meaning of section 19 of the "Judicature Act" of 1873 and as such appealable to the Court of Appeal.

This view of section 19 that orders and judgments in matters of habeas corpus were appealable under that section, was not considered ihcompatible the decision of the House of Lords in Cox v. Hakes(1), to the effect that under the same section no appeal would lie to the Court of Appeal from an order in habeas corpus proceedings discharging a detained person from custody.

The decision last mentioned was based upon two grounds which are best expressed in the judgments of Lord Herschell and Lord Halsbury.

Section 19 gives to the Court of Appeal general jurisdiction and power to hear appeals from "any judgment or order."

It was not denied that an order for the discharge of a person in custody was primd facie an order -to which the section applied, but it was held that the provision following this general provision (a provision which has its analogue in section 39 of the "Supreme Court Act") is obviously intended to make the power of review complete and effectual by furnishing the means of enforcing it. As in such a case-when the person in custody has been discharged-the order made by the High Court could not be effectively interfered with by the Court of Appeal, it was considered that such an order did not belong to the class of orders within the intendment of section 19 in respect of which a right to hear and determine appeals is given.

The other reason for the decision was that the granting of the right of appeal in such cases would, to adopt the language of Lord Halsbury, amount to a sudden reversal of the policy of centuries in regard to the summary determination of the right of personal freedom and that such a reversal of policy ought not to be inferred from general language which, having regard to the context, was reasonably open to another view as to its effect.

These reasons appear to me to govern the construction of section 39(c).

J.-A Board of Enquiry proceeding under sec. 73, sub.-sec. 7, of the "Immigration Act" (ch. 27, 9 & 10 Edw. VII., as amended by ch. 12, 1 & 2 Geo. V.), ordered the deportation of the respondent and an appeal by him to the Minister of Immigration and Colonization was unsuccessful.

Thereupon he applied for a writ of habeas corpus which was refused him by Murphy J. On appeal the Court of Appeal of British Columbia granted the writ and ordered the prisoner's discharge.

He is now at large in the Province of Alberta.

The Crown and the Controller of Immigration at Vancouver appeal to this court from the judgment of the Court of Appeal.

The respondent moves to quash the appeal on three grounds:

(1) That the right of appeal is taken away by section 48 of the "Supreme Court Act," as amended by 8 & 9 Geo. V. ch. 7, sec. 3;

(3) That the fact that the respondent is at large under an order for his discharge precludes any right of appeal.

The principle of Cox v. Hakes(1), would seem to me to be applicable to section 39(c) of the "Supreme Court Act."

I concur in what my brother Duff has said on this aspect of the case. Since, therefore, leave to appeal if obtained would be futile, the application to adjourn the motion to quash and the hearing of the appeal to permit of such leave being asked for should be refused and the motion to quash should now be granted.

J.-Concurs with the Chief Justice. J.-I would not 'care to say that in my opinion the principle laid down in Cox v. Hakes(1), and especially in the passage from Lord Herschell's judgment at p. 527, quoted in the decision of this court In re Charles Seeley(2), has the effect of restricting or cutting down the generality of the terms of section of the "Supreme Court Act."

This section, which is not found in any English statute that I know of, gives (subject of course to the other sections of the Mignault J. " Supreme Court Act ") a right of appeal from the judgment in any case of proceedings for or upon a writ of habeas corpus not arising out of a criminal charge. But the policy of the law seems to me to be clearly against interfering with an order of discharge or release obtained by means of the writ of habeas corpus. On that ground I concur in the judgment quashing the appeal, which of course must be quashed in view of section 48 of the "Supreme Court Act," without suspending our adjudication so as to permit the appellant to apply for leave to appeal.

Had the appellant applied to this court for leave to appeal, I would not, under the circumstances of this case, have granted him leave, and had he obtained leave from the Court of Appeal, for the reason I have stated, I would not have interfered with the judgment discharging the respondent. I therefore simply concur in the judgment quashing this appeal in view of the terms of section 48 of the "Supreme Court Act."

Appeal quashed with costs. *May' 1,20. (PLAINTIFFS .....................

*Oct. AND

DELLE M. NAULT

AND

OTHERS

RESPONDENTS. (DEFENDANTS)..................

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

Servitude-Servitude of support-Conventional-"Destination de phre de famille"-Common wall-"Pignon" or gable-Arts. 522, 551, 560 C.C.

The appellants are the owners of lot No. 694 of the City of Three Rivers, and the respondents are the owners of the adjoining lot No. 695.

These two lots formerly belonged to one Hart, who, in 1832, sold lot No. 694 to one Woolsworth.

One clause of the deed reads as follows: "I1 est convenu et arrbt6 entre les parties que Erastus Woolsworth aura droit A perp6tuit6 de bitir, accoter contre et sur le mur en pierres et en briques du pignon nord-ouest du magasin et maison du dit sieur vendant et 6rig~e sur I'autre partie du dit lot, de terre, lequel pignon sera mitoyen entre les parties."

Held, that the right of mitoyennetd claimed by the appellants is a conventional servitude and not a servitude par destination du phre de famille.

Held, that in the clause quoted the word "pignon" means not merely the triangular gable at the top of the wall but the entire northwest gable end of the grantor's house, and the whole wall, including its foundation, has been declared mitoyen by the deed of sale.

Duff and Mignault JJ dissenting.

Judgment of the Court of King's Bench (Q.R. 28 K.B. 14) reversed, Duff and Mignault JJ. dissenting. Delorme v. Cusson (28 Can. S.C.R. 66), distinguished.

APPEAL from a judgment of the Court of King's Bench, appeal side(1), Province of Quebec, maintaining the judgment of the Superior Court, Drouin J. in the Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.

(1) Q.R. 28 K.B. 14.

district of Three Rivers, and dismissing the * appellants', plaintiffs', action with costs..

The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

J.-For the reasons assigned by Mr. Justice Cross in the court below I would allow this appeal with costs and direct judgment to be entered on the terms his notes indicate.

Since. writing the foregoing I have read but not fully considered all my brother Brodeur has written and assent to the result he reaches.

J. (dissenting)-I concur with Mr. Justice Mignault.

J.-I have had the advantage of reading the opinions prepared by my brothers Brodeur and Mignault.

I concur in their view that the servitude or right of mitoyennet6, which the plaintiffs (appellants) assert, is conventional in its origin. Evidence of facts existing in 1832, when the deed creating it was executed, which would warrant classifying it as a servitude by destination of the proprietor-servitude par destination du pare defamille (art. 551 C.C.)-is lacking.

While I incline to think with my brother Brodeur that the servitude intended to be created was defined with sufficient precision in the Hart-Woolsworth deed, if it was not, I accept the view of the Court of King's Bench that the parties have by their conduct supplied any deficiency in that respect and that the admission in the defendants' plea of the existence in 1908 of actual conditions which conformed to the rights claimed by the plaintiffs fully meets the difficulty which the learned judge of the Superior Court found insuperable. This admission also answers any objection based on the omission from intermediate conveyances in the plaintiffs' chain of title of all reference to the servitude or right of mitoyennet6 which they claim, and, as the Court of King's Bench has said, fixes its nature and extent. The plea states explicitly that the building owned by the Bank of Hochelaga (under which the plaintiffs claim) prior to its destruction on the 22nd of June, 1908, "appuyait sur celle des d4fendeurs conformiment au droit de servitude dont il est question en cette cause."

Nor do I find the lack of precision in the plaintiffs' claim which the Court of King's Bench deemed fatal to their action. They no doubt, as is not unusual, claim more than they are entitled to. But when the evidence is applied to their demand it enables the court in my opinion to determine with reasonable certitude, within the limits of what they assert, the measure of their right.

The terms in which the right in question is conferred by the deed of 1832-notably that it should exist in perpetuity and that the north-west gable end (pignon) shall be a party wall (mitoyen) between the parties-in my opinion make it clear that it was not intended that that right should last. only so long as the house then upon the grantor's land should remain standing, but that it should be a true right of mitoyennet6 entailing all the incidents, including obligations of reconstruction, etc., indicated in arts. 512 et seq. of the Civil Code, so far as they are applicable having regard to its conventional origin.

I agree with my brother Brodeur that the word "pignon" as used in the deed in question means not merely the gable of the wall but the entire northwest gable end of the grantor's house. The right conferred is to build "contre et sur mur * * * du pignon nord-ouest "-against and upon the wall of the northwest gable end.

It is inconceivable that the parties intended that the right of mitoyennetg should exist only in the triangular gable at the top of the wall. No doubt the fact that there is a common or mitoyen lane between the two properties, which is to be kept open to a height of nine feet, over which the plaintiffs have the right to build, would present a difficulty if we were dealing with a claim of mitoyennet6 made under the common law.

But in this, as in other matters, the convention of the parties, if not illicit, constitutes their law.

(Art. 545 C.C.). Whether on the true construction of the deed of 1832 the title to the whole lane is common (mitoyen), or each party owns the half of it lying to his side of its central line, as the description in the conveyance would indicate, the wall in question has been declared mitoyen in explicit terms and it must, I think, be so treated as a whole, including its foundations.

Foundations and a wall to the height of nine feet adequate to carry above it a mitoyen wall sufficient to meet the legal requirements of the plaintiffs- are essential to the enjoyment of the right conferred by the deed. Both parties are interested in the foundations and lower wall and equity requires that they should bear equally the cost of their construction and maintenance.. The only reasonable and fair inference from the instrument taken as a whole is that while the entire wall was thereby made mitoyen, the right of the plaintiffs' predecessor in title to use it as such was restricted to the part of it above nine feet from the grounda provision perhaps quite unusual in regard to mitoyen walls but not illegal and therefore within the power of contracting parties to make should they see fit. The use and the extent of (conventional) servitudes are determined according to the title which constitutes them.

(Art. 545 C.C.).

Of course the height and length of the wall existing in 1832 would measure in those respects the extent of the plaintiffs' rights. The defendants may not be compelled to build a wall either higher or longer than that in which Hart gave to Woolsworth rights of mitoyennetg.

(Arts. 522 and 558 C.C.).

By the defendants' admission, however, the right as enjoyed by the plaintiffs' predecessor in 1908 was in conformity with that deed and may therefore be taken as the measure of what they are entitled to.

It is well established that the length of the party wall in 1908 was twenty-nine feet. The land on which it stood having since been expropriated by the city to a depth of 14 feet, 2 inches, no wall can be built on that portion of it. The plaintiffs' rights therein have been extinguished.

(Art. 559 C.C.).

But on the remaining portion, 14 feet, 10 inches in length, they continued, and to a party wall of that length and built on that land they are now confined.

I agree with my brother Brodeur that the case of Delorme v. Cusson(1), is readily distinguishable from that at bar which is neither a case of an improvement made in good faith under common error as to title nor of tacit acquiescence in the doing of an act, which the plaintiffs might have prevented, inconsistent with the right they now assert.

I also accept my learned brother's view that, notice not having been given the plaintiffs or their predecessor by the defendants J.

of their intention to build the wall of which demolition is now sought and that wall being admittedly insufficient to serve as a party wall, the defendants must bear the expense of its removal to the extent necessary to permit of a proper party wall being constructed; and I agree in the detailed disposition which he suggests of the appeal in other respects.

BRODEUR J.-Il s'agit d'une action confessoire et en d6molition institude par l'appelante contre les intim6s au sujet d'un mur qu'elle allgue 8tre mitoyen. Le litige porte surtout sur l'interpr6tation d'un contrat de vente par Moses Hart A Erastus Woolsworth le 21 f6vrier 1832.

Moses Hart 6tait alors propri~taire de tout le lopin de terre qui forme aujourd'hui les nos. 694 & 695 du cadastre de Trois-Rivibres.

Par l'acte de vente en question il a c6d6 ce qui forme le no. 694 A Woolsworth et le terrain vendu y est d~crit comme suit:- Deux autres dispositions de cet acte de vente doivent Atre cit6es textuellement afin de connattre l'6tendue de la servitude r6clam6e par I'appelante qui est aux droits de Woolsworth.

Elles se lisent comme suit:arrt6 a arrt6 Cet acte, il me semble, est assez clair.

La propridt6 vendue s'6tend pour le bas jusqu'au milieu de la porte de cour dans le passage mitoyen. Pour la partie sup6rieure du passage, elle s'6tend jusqu'au mur de la maison de Hart, puisque ce dernier donne A son acheteur le droit d'appuyer sa bitisse sur ce mur. De plus, le mur, quoiqu'il ne se trouve pas dans le bas aux extr6mitis des h6ritages respectifs, est d~clar6 mitoyen par les parties contractantes.

Nous avons done une propri6t6 qui pour neuf pieds de haut s'6tend h quatre pieds du mur en question mais qui au delh des neuf pieds s'6tend jusqu'au mur lui-m~me.

Et afin qu'il n'y ait pas de doute sur la nature du droit de propri6t6 du liur, on le declare mitoyen, c'est-A-dire qu'ayant 6t6 construit par Hart :seul, son voisin Woolsworth en acquiert de lui la communaut6.

Pothier, 6d. Bugnet, vol. 4, no. 129, p. 313. Woolsworth et ses ayants cause construisirent audessus du passage mitoyen et appuybrent leurs bAtisses sur ce mur d6clar6 mitoyen.

Le passage fut toujours conserv6 mitoyen.

En 1908 la ville de Trois-Rivibres 6tait pres- -qu'entitrement incendide;

et, entr'autres bitisses d6tfuites se trouvaient les propri6t6s en question en cette cause.

Les intim6s, qui 6taient les propri6taires du terrain no. 695, rebAtirent leur maison ou magasin; et, dans la ligne de s6paration, ils 6rig6rent un mur qui pouvait 6tre suffisant pour eux mais certainement trop faible pour supporter l'6difice que l'appelante, qui est propri6taire du terrain Woolsworth, le no. 694, voudrait J. construire.

ont fait ce mur sans en avertir cette dernire qui est maintenant forc6e de se pourvoir en justice pour faire reconnattre les droits qu'elle a dans ce mur mitoyen.

La Cour Sup6rieure et la Cour d'Appel (1) ont renvoyd Faction, mais pour des motifs diff6rents. La Cour Sup6rieure s'est bas6e sur le fait que le contrat de 1832 constituait une servitude 4tablie par destination de pare de famille et qu'elle n'avait pas la nature et l'6tendue que Particle 551 du Code Civil exige pour ces servitudes.

La Cour d'Appel a 6galement exprim4 l'opinion que c'6tait une servitude 6tablie par destination du pare de famille, mais que les admissions des d6fendeurs dans leur plaidoyer avaient suppl66 h linsuffisance de precision de l'acte de 1832.

Elle a renvoyd l'action en s'appuyant sur la cause de Delorme v. Cusson (2), parce que la demanderesse n'avait pas protest6 quand les d6fendeurs avaient 6rig6 le mur apris l'incendie.

D'abord, est-ce bien l une servitude 6tablie par la destination du pare de famille?

Je n'h6site pas A dire que non.

Qu'est-ce que la destination du pare de famille? C'est le cas ofi celui qui posshde deux heritages peut s'en servir de manire que l'un soit assujetti A l'autre. Cette disposition que fait un propri~taire peut devenir servitude lorsque les deux h6ritages cessent d'appartenir A la meme personne.

(Desgodets, Bdtiments, vol. ler, page 298).

Et alors, suivant Particle 551 du Code Civil, la destination du phre de famille, lorsqu'elle est par 6crit et que la nature, l'6tendue et la situation en sont spicifi6es, constitue une servitude valable. La servitude. r6clam6e par l'appelante n'est pas le rdsultat d'une destination faite par Hart quand il 6tait propri~taire des deux heritages; mais elle est consignde dans un acte entre Hart et l'acqu6reur d'une partie de son terrain.

Et alors ce serait une servitude conventionnelle ordinaire et non pas une servitude 6tablie par la destination du pare de famille. Les cours inf6rieures ont donc fait une erreur en classifiant la servitude en question en cette cause parmi les servitudes cr66es par la destination du pare de famille, Le mur originaire, qui 6tait de pierre et de brique, 6tait assez fort pour appuyer l'6difice de la demanderesse; mais il a t6 reconstruit, apris l'incendie de 1908, en brique et en bois; et alors il est certainement trop faible, de 1'aveu meme des d6fendeurs, pour qu'on puisse y 6tayer la moindre poutre.

Les intim6s ont voulu, lors de la plaidoirie, donner au mot pignon mentionn6 dans l'acte un sens trop restreint; et ils ont invoqu6 cette fin le dictionnaire de Larousse, qui d6finit le mot pignon comme signifi. ant la partie sup6rieure et triangulaire d'un mur. Mais les termes mimes de l'acte et la preuve d6montrent que le terme pignon n'a pas rapport seulement A la partie sup6rieure et triangulaire du mur mais A tout le mur lui-m6me.

Le mot a td employd dans son sens ordinaire et populaire.

Ainsi, quand on parle du pignon nord ou sud d'une maison, on r6fire A tout le mur qui se trouve du c6t4 nord ou du c6t6 sud de cette maison et non pas-A la partie sup6rieure et triangulaire seulement de ce mur.

Quand il est dit dans l'acte que l'acqu6reur pourra s'appuyer sur le mur du pignon nord-ouest du magasin,