Supreme Court of Canada
McGoey v Leamy, (1897) 27 SCR 545
Date: 1897-06-07
JAMES McGOEY (PLAINTIFF)
Appellant;
And
SARAH E. LEAMY (DEFENDANT)
Respondent.
1897: May 12; 1897: June 7
PRESENT:—Taschereau, Gwynne, Sedgewick, King, and Girouad JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Agreement respecting lands—Boundaries—Referee's decision—Bornage—Arbitrations—Arts. 941-945 and 1341 et seq. C.C.P.
The owners of contiguous farms executed a deed for the purpose of settling a boundary line between their lands, thereby naming a third person to ascertain and fix the true division line upon the ground and agreeing further to abide by his decision and accept the line which he might establish as correct. On the conclusion of the referee's operations one of the parties refused to accept or act upon this decision, and action was brought by the other party to have the line so established declared to be the true boundary and to revendicate the strip of land lying upon his side of it.
Held, reversing the judgment of the Court of Queen's Bench that the agreement thus entered into was a contract binding upon the parties to be executed between them according to the terms therein expressed and was not subject to the formalities prescribed by the Code of Civil Procedure relating to arbitrations.
APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side), which reversed the decision of the Superior Court, District of Ottawa, maintaining the plaintiff's action with costs.
[Page 546]
The circumstances under which the action was brought, and questions in issue, are stated in the report of the judgment on a motion to quash the pre sent appeal (), and are also referred to in the final judgment now reported.
Foran Q.C. for the appellant. This case depends upon the binding effect of the agreement the parties made in 1889 referring their dispute to the decision of a third party. That agreement must be carried out between them according to the provisions it contains, and does not call for the observance of the formalities required by the Code of Civil Procedure () governing submissions to arbitration. The appellant is not obliged to proceed to a bornage (), but is entitled to have the agreement fully carried out and validated as a link in his chain of title to the lands in dispute up to the division line which was ascertained and fixed by the referee on the ground.
The technical objections as to formalities taken in the Court of Queen's Bench and here, even if they can apply were not set up in defendant's pleadings filed in the trial court and thus she is not, in any event, en titled to succeed upon them, especially as it appears from the record that she was fully aware of the referee's proceedings and only claims title to the dis puted strip of land by virtue of long possession without any other title—"Omnia præsumuntur contra spolia torem." "Usurpateur n'acquiert que pied à pica" (). As to questoins not put in issue by the pleas, see L'Union St. Joseph v. Lapierre (); Bain v. City of Montreal (); Venner v. Sun Life Insuarance Co. (); Heyneman v. Smith (); The Queen v. Cimon (); Rolland v. Cassidy ().
[Page 547]
Geoffrion Q.O., (Champagne with him,) for the respondent. The deed of 1889 is a deed of submission, under which the surveyor Farley, the third party named therein, was bound to make an award and therefore he had to proceed under the rules contained in articles 1341 and following of our Code of Civil Procedure. His proces-verbal and survey do not con stitute an award or decision binding upon the parties, and as there was no award ever rendered the re spondent could properly refuse to sign the proces-verbal or accept the line. If the deed was not a submission, but a simple agreement to proceed to a bornage, and if the signature and acquiescence of the respondents were necessary, the respondents were justifiable in refusing to accept such bornage as unjust, erroneous and illegal. The deed does not comply with art. 1344 C. C. P., as the time within which the award must be given is not stated, and it appears that prior to his appoint ment Farley had already begun his proceedings, without the knowledge of the respondent.
Article 1352 C. C. P requires awards to be made out in notarial form, or deposited with a notary who draws up an authencic act of the deposit, and they must be given or pronounced to the parties, or served upon them, within the delay fixed by the submission. None of these formalities have been observed. On the effect of the informalities we refer the court to Chapman v. Hodgson (); Peters et al. v. Commissaires du Hûvre de Québec (); Hébert et al. v. Wright (). An award which has been neither pronounced nor served upon the parties within the time fixed by the sub mission is null, whatever knowledge the parties may have otherwise had of the award, and it can be pro nounced only by reading the award to the party.
[Page 548]
The respondents claim that it is clearly established that their possession for more than thirty years, of the land now occupied by them, is determined by a fence. The evidence both before the surveyor and before the Superior Court, shows these properties as separated by an existing fence for over forty years, and that the appellant and his auteurs recognized this fence as the division line. The surveyor adopted the fence as being the line for part of the way, and rejected it for another part; this is a mere caprice on his part as the fence is visible in all its course and is straight and without deviations.
The Superior Court held that Farley's survey was in conformity with the titles of the parties as to the contents of their properties, and that from the measure ment, it would appear that the fence encroaches on the appellant's side. Though the surveyor says as much in his proces-verbal, no titles were produced. At any rate titles are of no value against peaceable possession for thirty years, even beyond the limits mentioned in the titles.
The judgment of the court was delivered by:
Taschereau J.—This is an appeal by the plaintiff. His action was maintained in the Superior Court but dismissed in the court of appeal. By his declaration he alleged that the defendant and he were each owners respectively of two lots of land that were contiguous but not divided by any regular line or boundaries; that in November, 1889, he and the defendant agreed that for the future such a line should be established by a surveyor named Farley, binding themselves to abide by and accept the said surveyor's report as indicatigg the boundary line between their said respective properties. He further alleged that in the said month of November, and
[Page 549]
in December, January and February following, Farley proceeded to ascertain the true line of delimination and. declared by his survey and proces-verbal and plan that a line "D. H.," was the true boundary of the properties; but that although he, the appellant, accepted the result of such operations and had signed the proces-verbal, the other parties to the agreement, now represented by the respondent, had refused to do so on demand being made, and continued to occupy a considerable strip of land west of the line, and refused to allow appellant to enter upon it and to remodel the fences according to the surveyor's decision. The appellant's conclusions are that the line as marked in the field and recorded in the plan and proces-verbal of survey of Farley, the surveyor, should be declared the true line of division, that the respondent should be enjoined not to trespass beyond it and give up possession of all land west of it; that appellant should be declared proprietor of the land up to the line and be put in possession of it; and finally, that fixed and final boundary marks should be placed in the field along the line in question to determine the same.
The respondent by her plea admits that the parties are owners of the contiguous properties as alleged in the declaration. By several allegations she claims that she was at the time of the action, the owner of the land as divided from the appellant's by a fence for over forty years. The respondent further alleges that she never refused to proceed to a bornage, and she specially denies that she was bound to accept the boundary line as fixed and determined by the surveyor Farley; that the respondent refused to sign the said proces-verbal of survey because the same was irregular, erroneous, and not in conformity to the titles and possession of the parties; that the respondent was not obliged to sign or accept any proces-verbal of survey, more especially
[Page 550]
when said proces-verbal of survey was irregular, erroneous and contrary to the rights of the parties. By the conclusions of her plea, the respondent de clared that she is ready to run a line of division between the properties in question, according to the possession of the said respondent, and provided said survey takes place according to the formalities indicated by the, laws of the province.
The grounds upon which the court of appeal relied for reversing the judgment of the Superior Court are exclusively that the formalities required, for awards of arbitrators by the Code of Civil Procedure, arts. 1344 and following, had not been complied with. I am of opinion that we should not thus allow shipwreck of a good cause to be made on the rocks of refined technicality. This is not a case of arbitration under the Code, but of an agreement binding upon the parties. Here are two neighbours who, to avoid litigation and settle amicably the divsion line between their properties, agree that a line to be drawn upon the spot by a third party, be he a surveyor or anything else, shall thereafter be that division line and bind themselves to accept that third party's decision, but, now that this third party has fixed that line, the respondent refuses to be bound by his conclusions, because they are not in accordance with her opinions and contentions in the matter. She wishes us to read her agreement of November, 1889, as if she had expressly stipulated therein that she would not be bound by it if the third party's line did not suit her or was not in accordance with her views. We cannot do that. She cannot be so allowed to repudiete her engagements. No fraud or malversation of any kind is imputed to this surveyor's operations, and the Superior Court was right in maintaining the action. I would allow the appeal, and restore the judgment of the Superior Court. It does
[Page 551]
not, however, grant that part of the plaintiff's conclusions that final boundaries be placed in the field along the said line by said Farley or any other surveyor to be named by the Superior Court, according to said proces-verbal, but that may be added on the drawing up of the minutes if thought necessary.
Appeal allowed with costs.
Solicitor for the appellant : Thomas P Foran.
Solicitors for the respondent: Rochnn & Champagne.
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