Supreme Court of Canada
The Town of Truro v. Archibald
(1901) 31 SCR 380
Date: 1901-05-13
The Town of Truro v. Archibald
1901: Feb. 22, 25; 1901: May 13.
Present:—Taschereau, Gwynne, Sedgewick and
Girouard JJ.
(Mr. Justice King was present at the
argument but died before judgment was delivered.)
Municipal drains—Continuing
trespass—Limitation of actions ex delictu—58 V. c. 4, s. 295 (N. S.)—Verdict.
Appeal from
a judgment of the Supreme Court of Nova Scotia, en banc,
reversing the judgment entered for the defendant on findings of the jury at the
trial and maintaining the plaintiff's action with costs.
The plaintiff's action was for trespass by
the municipal corporation constructing and maintaining a drain through his
land. The jury found that the drain had been constructed in 1886 "by
virtue of the Streets Commissioner's power of office." The plaintiff,
although aware of the existence of the drain at the time, made no objection
till 1896, when the land caved in. The court below held that the jury had found
that the defendant had constructed the drain by its agent, and that the
trespass, being a continuing one, was not barred by the limitation provided in
the "Towns' Incorporation Act of 1895" for actions ex delictu against
towns.
After hearing counsel for the parties, the
court reserved judgment, and on a subsequent day, dismissed the appeal with
costs.
Appeal dismissed with costs.
Borden K.C. and Lovett for the appellant.
Mellish for the
respondent.
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