Supreme Court of Canada
Murray v Town of Westmount, (1897) 27 SCR 579
Date: 1897-06-07
JOHN S. MURRAY (PLAINTIFF)
Appellant;
And
THE TOWN OF WESTMOUNT (DEFENDANT)
Respondent.
1897: May 8; 1897: May 14; 1897: May 15; 1897: June 7
PRESENT:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ. (1) 19 L. C. Jur. 183.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Appeal—Jurisdiction—Title to lands—Municipal law—By-law—Widening streets—Expropriation—R. S. C. c. 135, s. 29 (b)—54 & 55 V. c, 25, s. 3—56 V. c. 29, s. 1.
In an action to quash a by-law passed for the expropriation of land the controversy relates to a title to lands and an appeal lies to the Supreme Court of Canada, althuugh the amount in controversy is less than $2,000.
The judgment on the merits dismissed the appeal for the reasons stated in the judgment of the court below.
[Page 580]
Appeal from the decision of the Court of Queen's Bench for Lower Canada (appeal side) affirming the judgment of the Superior Court, District of Montreal () which dismissed the plaintiff's action with costs.
The respondents adopted a by-law for the widening of a street, by adding a strip of five feet on one side, and of ten feet on the other, and authorizing the council to acquire the necessary lands by expropriation proceedings, the cost, indemnity and damages to be paid by means of a special tax levied, in part, upon the properties fronting on the street to be widened and for the balance upon such properties as the commissioners might declare benefited by such widening.
The appellant, whose property abuts upon the section to be so widened, brought an action to quash the by-law and the proceedings by which part of his lot was expropriated, as illegal, null and void, and as being ultra vires of the corporation. His action was dismissed by the Superior Court, and this judgment was unanimously affirmed by the Court of Queen's Bench on appeal.
On the inscription for hearing on the present appeal in the Supreme Court of Canada the respondents moved to quash on the ground that no appeal lay under the provisions of " The Supreme and Exchequer Courts Act," as the mateers in contooversy did not amount to the sum or value of $2000 nor involve or relate to any question or matter included amongst the provisions of section 29 of the said Act.
Geoffrion Q.C. and Dunlop Q.C. for the motion cited as to jurisdiction The City of Sherbrooke v. McManamy
(); The County of Verchères v. The Village of Varennss
(); Quebec, Montmorency and Charlevoxx Railway Co.
[Page 581]
v Mathieu (); Bell Telephone Co. v. The City of Quebec (); Dubois v. Village of Ste. Roee (); Webster v. City of Sherbrooke (); City of Ste. Gunegonae v. Gungeon (); Wineberg v. Hampson (); O'Dell v. Gregory (); Larivière v. School Commissioners of Three Rivers (); Sauvageau v. Gauthier (). There can be no appeal in corporation cases; arts. 1033 & 1115 C. C. P.
Falconer, contra. The by-law involves the expropriation of lands, and either deprives appellant of his title to the strip of land sought to be expropriated, or, if declared null, confirms him in his title. All the cases cited by respondent can he distinguished from such a case as the present; but such cases as Les Ecclésiastiques de St. Sulpice v. City of Montreal (); Blatchford v. McBain (); and Lefeuntun v. Véronneau (), are in point.
Their Lordships after hearing counsel decided to reserve judgment upon the motion to quash and directed that the appeal should in the meantime be heard upon the merits.
Upon the hearing on the merits,
Falconer and Gibb appeared as counsel for the appellant and Geoffrion Q.C. and Dunlop Q.C. for the respondents.
The judgment of the court was delivered by :
Taschereau J.—The motion to quash made by the respondent must be dismissed with costs. The controversy relates to a title to land, and the case is therefore appealable.
[Page 582]
Upon the merits, the appeal must be dismissed. There is nothing in the appellant's contentions but an attempt to override the clear intentions of the legislature by refined technicalities. He should have been convinced of the unsoundness of his contentions by the reasoning of the learned judge who gave the judgment of the court below and he cannot expect more from us here in rejecting his appeal, than a reference to that judgment, and the reasons given in support of it.
The appeal is dismissed with costs.
Motion to quash and appeal both dismissed with costs.
Solicitors for the appellant: Robertson, Fleet and Falconer.
Solicitors for the respondent: Dunlop, Lyman & Macpherson.
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