Supreme Court of Canada
Moore v. The Woodstock Woollen Mills Co. (1899) 29 SCR 627
Date: 1899-06-07
Frederick Moore and Others (Defendants)
Appellant
And
The Woodstock Woollen Mills Company (Plaintiff)
Respondent.
1899: May 3, 4, 5; 1899: June 7.
Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Highway—Dedication—User—Evidence.
In order to establish the existence of a public highway by dedication it must appear that there was not only an intention on the part of the owner to dedicate the land for the purposes of a highway but also that the public accepted such dedication by user thereof as a public highway."
In a case where the evidence as to user was conflicting, and the jury found that there had been no public user of the way in question) the trial judge disregarded this finding and held that dedication was established by a deed of lease filed in evidence, and this decision was affirmed by the full court.
Held, that as such decision did not take into account the necessity of establishing public user of the locus, it could not stand. Judgment of the Supreme Court of New Brunswick reversed.
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Appeal from the judgment of the Supreme Court of New Brunswick en banc, affirming the decision of the trial judge which directed that a verdict should be entered for the plaintiff for damages and costs.
The defendants moved, pursuant to leave reserved at the trial, to set aside the said verdict, and to enter a verdict for the defendants or for a new trial. The present appeal is from the judgment of the Supreme Court of New Brunswick refusing the motion. The questions at issue on the appeal are stated in the judgment of the court delivered by His Lordship Mr. Justice King.
Gregory Q.C. for the appellants.
Stockton Q.C. and Connell Q.C. for the respondent.
The judgment of the court was delivered by:
KING J—The action is for encumbering or obstructing a public highway which adjoins the plaintiff's property and preventing access to the main road.
It was sought to establish the existence of the public highway by dedication. This involves two things; (1) an intention on the part of the owner of the land to dedicate, and (2) an acceptance by the public of such road as a highway. This is evidenced by user.
As to the intention of the owner to dedicate, the plaintiff (the present respondent), relies upon a lease from the Connell heirs to Craig, through whom the defendants claim. Immediately following the description of the land, which made no reference to a road, and in which there was no reservation of a road, there was a diagram showing a public road in the place where the plaintiff claims it to have been and there was a covenant by the lessees, their, etc.,
that the road or street now open between the rear of the ]and deede to the late Richard English (the plaintiff's land), and the bank of the
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Maduxnakik to the River St. John and Maduxnakik Creek will be kept open for the use of the public, ten feet wide.
Assuming that, upon the construction of the lease, there must be taken to have been an intention on the part of the lessors to dedicate the way as shown in the diagram, still there remains the question of acceptance by the public.
There was evidence on the part of the plaintiff that there was a public user of a road where it is shown by the diagram, but the defendants had an equally large body of testimony showing that the user was where they claim that the road was, viz., nearer the bank of the creek. The jury have adopted the defendants' view, and according to their findings there was no way used by the public except where the defendants say it was.
The learned trial judge directed a verdict for the plaintiff, notwithstanding the findings, upon his construction of the lease, and the Supreme Court of New Brunswick has sustained his judgment. This conclusion, however, takes no account of the necessity to establish a public use of the alleged way. The company has entirely failed to get a finding in its favour upon the point of user, and has therefore failed in making out the case it set out to make. The judgment below must therefore be reversed, and, as all the facts were fully gone into, it would best meet the justice of the case to direct that judgment should be entered for the defendants.
Appeal allowed with costs.
Solicitors for the appellants: Hartley & Carvell.
Solicitors for the respondent: Fisher & A. B. Connell.
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