Supreme Court of Canada
Burland v. City of Montreal, (1903) 33 SCR 373
Date: 1903-06-08
GEORGE B. BUBLAND (PLAINTIFF)
Appellant;
And
THE CITY OF MONTREAL (DEFENDANT)
Respondent.
1903: May 20; 1903: June 8
PRESENT :—Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Nesbitt JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE PROVINCE OF QUEBEC.
Municipal corporation—Construction of sidewalks—Trespass Action en bornage — Petitory action — Amendment of pleadings — Practice— R. S. C. ch. 135, s. 63.
The plaintiff brought his action to recover the value of a strip of land of which the defendant was illegally in possession. The courts below dismissed the action on the ground that the proper remedy was by action en bornage or au pétitoire. In order to cease litigation, the Supreme Court of Canada reversed the judgments of the courts below, directed that the record should be remitted to the trial court for the purpose of ascertaining the extent of the property affected by the trespass and ordered the restoration thereof to the plaintiff.
APPEAL from the judgment of the Court of King's Bench, appeal side, affirming the judgment of the
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Superior Court, District of Montreal, which dismissed the plaintiff's action with costs.
The case is stated in the judgment now reported.
Perron for the appellant.
Atwater K. C. and Archambault K. C. for the respondent.
The judgment of the court was delivered by:
THE CHIEF JUSTICE. This is an appeal from a judgment of the Court of King's Bench, at' Montreal, by which the appellant's action was dismissed. He claims thereby the value of 473 feet of land of which, as he alleges, the respondent is illegally in possession.
The respondent pleaded that, if its officers or contractors had taken possession of any of the appellant's property, they were ready to return the possession of it to the appellant. The appellant replied that the respondent's offer was now too late, and that the city was bound to pay the value of his land of which it was in possession.
The judgments of the Superior Court and of the Court of Appeal concede that the respondent is, in fact, in possession illegally of a strip of the appellant s property, but they dismissed the action on the ground that the appellant's remedy is by an action en bornage or au pétitoire..
I would think that the controversy between the parties, as it appears upon the record, ought to be determined in the present case so as to avert any further litigation in the matter.
What is now the real controversy between the parties? (See sec. 63 of the Supreme Court Act ) Nothing else than a controversy as to the extent of appellant's land which the respondent's contractors took possession of when they built, in 1892, a permanent sidewalk in front of it.
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At the trial, one of the witnesses put it at 473 feet, and another one at 271 feet. So that under the circumstances, the record should be remitted back to the Superior Court for the purpose of ascertaining, by expertise or otherwise, as the court thinks proper what is the extent of the appellant's property which is covered by the said sidewalk, and ordering that the respondent should within the delay fixed by the court restore the said property to the appellant in exactly the same state as it was when the said sidewalk was constructed, all the necessary amendments of the pleadings being treated as having been made.
There will be no costs upon this appeal nor in the Court of King's Bench. Costs in the Superior Court to be later adjudicated upon in its discretion.
Appeal allowed without costs
Solicitors for the appellant: Préfontaine, Archer & Perron.
Solicitors for the respondent: Ethier & Archambault.
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