Osgoode (Township) v. York

OF

THE

APPELLANTS; OTHERS (DEFENDANTS) ......... .....

JAMES YORK THE ELDER, AND

RESPONDENTS. OTHERS (PLAINTIFFS)............

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. GWYNNE J.-This appeal must be dismissed. The OF OSGOODE question is as to the validity of an award purporting to be made by the engineer of the municipality of the Gwynne J. township of Osgoode, under the provisions of ch. 220 of the revised statutes of Ontario, entitled " an Act respecting Ditches and Watercourses " The question arises under section 6, subsec. a, of that act, whereby it is enacted that where parties interested in a ditch required by an owner of land for the drainage of his land shall not be able to agree upon the proportion to be borne by such owner of land to be benefited by the proposed ditch:

Any owner may with the clerk of the municipality in which the lands requiring such ditch or drain are situate, requisition in form supplied the act, shortly describing the ditch or drain to be made, and naming the lands which will be affected thereby and the owners respectively and requesting that the engineer appointed the municipality for the purpose be asked to appoint day on which will attend at the time and place named in the requisition, &c. Provided nevertheless that when it shall be necessary to obtain outlet that the drain or ditch shall pass through or partly through the lands of more than five owners (the owner first mentioned in this section being one) the requisition shall not be unless

(a) Such owner shall fiitt obtain the assent in writing thereto (including himself) a majority of the owners affected or interested. Upon the 2.5th of August, 1891, one George Comrie, claiming to be the owner of the south-west quarter of lot no. 27, of the 7th concession of the township of Osgoode, and as such entitled to avail himself of the above section, filed a requisition with the clerk of the municipality whereby, representing himself to be owner of the said south-west quarter of said lot no. 27, he required a ditch to be made through such lot and therein alleging that it would be necessary to continue the ditch through certain other lots mentioned therein, among others, the north-west quarter of the same lot no. 27 of which his father William Comrie was named as owner, and the west half of lot no. 28, in the 7th concession, and the north half of lot no. 27, in the 6th concession, whereof the appellant James York was named as owner, and alleging further that as the said or owners had failed to agree upon the respective portions of the proposed work, they required that the engineer appointed by the municipality for the purpose should J. name a day when he would attend at the locality the said proposed drain and examine the premises, hear the parties and make his award under the provisions of the statute. This requisition was signed by George

Comrie and his father and four others of the persons named as owners of the respective lots named, such owners including the municipality as owners of the roads to be crossed or benefited by the proposed ditch being in all ten in number.

The award made by the engineer upon its face professed to have been made in pursuance of the above requisition, so that several matters referred to in the argument as having taken place prior to the presentation of the said requisition can have no bearing upon the present question which must be determined upon the sufficiency of the above requisition to set the act in motion, the contention of the appellants being that as it was not signed by a majority of the owners of the lands affected by or interested in the proposed drain, the award affects the south half of lot 28 in the 6th concession, not named in the requisition at all, or professes so to do, of which the appellant Isaac York claims to have then been and to be the owner. The appellant James York the younger claims to have then been and to be the owner of the north half of lot no.

27, in the 6th concession, set down in the requisition as having then been owned by the appellant James

York, and who although being as stated in the requisition the owner of the west half of lot no. 27, in the 7th concession, did not sign the requisition

Now it is admitted that if James York the younger and Isaac

[1OL. York were respectively at the time of the presentation of the said requisition owners of the said respective TowNsmr lots claimed by them, and if George Comrie who was the person who as owner of the lot of which he was named to be owner was asserting the right to set the J. act in motion was not such owner, then the requisition was not signed by a majority of the owners of lands affected or interested as required by the act, and in such case the award which is impeached must be set aside as unauthorized by the act. Indeed it seems to me that if George Comrie who 'was the person who as the one requiring the drain to be made was the originator of the requisition was himself not an owner, that alone would be sufficient to invalidate proceedings originated by him, and taken upon his requisition, but it is not necessary to proceed upon this ground alone concurring as we do eit irely in Mr. Justice Osler, that James York the younger and Isaac York were respectively owners of the lots whereof they claim to have been owners and must be counted as such in estimating the sufficiency of the said requisition, and, that George Comrie was not such owner of the lot whereof he claimed to be the owner. It is difficult to see how the municipality are to assent in writing to the requisition to be presented to their clerk before it can be presented, but however that may be we entirely agree with the judgment of the Court of Appeal that they cannot be as such assenting parties to the requisition presented by George Comrie upon which the award which is impeached was made. The appeal must be dismissed with costs.

O'Gara, Tavish