If it was but the question of boundary that was to be tried, then the claim for injury to the right of way was excluded, and it is not here for consideration. That appears to have been so considered in the court below. One of the learned judges so expressed himself, and the others did not deal with it. If it had not been abandoned the learned judges would no doubt have referred to it.

I may, however, say that the appellant has shewn no right or title to the continued right to use the way in question as such. His deed was in 1882, and it contains, as far as can be seen by the abstract in the case, no conveyance of the right of way. So that, although his grantor may have had such right, it was not conveyed to him. He has not, therefore, any such right, either by grant or prescription. Taking the view I do of the evidence, documentary and otherwise, I am of opinion that the appellant, independently of the question of the conventional line agreed to by Mrs. Lowe, has wholly failed to make out a case.

To destroy the possession of the respondent by the fence spoken of under his title it was necessary for the appellant to have shewn where the true line was to be found, that would permit him to affect the twelve years' possession of the respondent as shewn by the acts and admissions of those through whom the appellant claims title. This he Icould only have done by establishing the starting points referred to in the conveyances and by tracing them round to the place of beginning. Nothing of that kind was done

or

shewn

to have been done, and how is any court to assume

that had such been done the result would have shewn a line different from that agreed upon? In this part of the case there was, I think, a fatal failure. The appellant took his deed from Wentworth in 1882 and agreed to be bound by the south side-line of the respondent's lot. On that line there was then a well made board fence, 6 or 7 feet high, and it would require little to justify the conclusion that when he purchased the lot he knew that that fence was the boundary settled upon and agreed to by those under

Henry J.

1887 MOONEY

v.

Henry J.

whom he should claim. He therefore knew that the respon

dent's possession was limited only by that fence. It would be MCINTOSH. monstrous then to sanction a recovery by him in an action, quare clausum fregit. The respondent broke no close in possession of the appellant, for he, the respondent, had been in possession of what he claims ten or twelve years, claiming it as his own, and that position admitted by and agreed to by those through whom the appellant derived title.

I am of opinion that the appellant wholly failed to sustain the allegations in his claim, and consequently that the appeal should be dismissed with costs.

GWYNNE J.-The majority of the court below appear to have overlooked the fact that this action is one brought under the Judicature Act, ch. 104, of the 5th series of the Revised Statutes of Nova Scotia, which has abolished all forms of action and the technicalities which had been incidental thereto.

In Coverdale v. Charlton (l), which was one of the cases cited in argument, Lord Justice Brett made use of the following language, which has direct application to the present

case:

This action is brought under the Judicature Acts, and since the passing of those Acts, forms of action no longer exist. This is not necessarily an action of trespass. It is an action in which the plaintiff states the facts of his case and asks for remedy. The plaintiff has stated facts which he alleges shew that he is entitled to a remedy against the defendant in respect of certain acts of the defendant.

In the present case the plaintiff's action was dismissed because, in the language of one of the learned judges, "the plaintiff had not, in his opinion, sufficient possession to enable him to maintain trespass," and in the language of another learned judge because, as he found the fact to be (although no such point had been raised at the trial and although the parties themselves had at the trial agreed to confine the enquiry to a wholly different point), that by the

(1) 4 Q.B.D. 104.

MOONEY v.

Gwynne. J.

deed which the plaintiff produced in evidence of his title he 1887 took no estate in the particular piece of land upon which the defendant was making the excavation which was com- MCINTOSH. plained of, inasmuch as, in the opinion of the learned judge, the defendant, at the time of the execution to the plaintiff of the deed under which he claimed was in actual possession of that piece of land by disseizin of the plaintiff's grantor, and that such disseizin while it gave a cause of action to the plaintiff's grantor, yet that by reason thereof the plaintiff had no cause of action in respect of the matters complained of by him. This reasoning not only ignored the fact that the action is one brought under the Judicature Acts, but, also, set aside as not to be considered the points which the parties had gone to trial upon, and especially the single point upon which the parties had at the trial agreed to rest the case; and, assuming, first, the land in question to be within the description of the deed under which the plaintiff claimed, which was one of the points upon which the parties were at issue; it assumes, next, to make for the defendant and to decide in his favour a point not raised or suggested by him, and of which there does not appear to have been any evidence, namely, that he had disseized the plaintiff's predecessor in title, and was still in actual possession of the piece of land in question by virtue of such disseizin.

To

say that the defendant had been, and was, in such

actual possession by disseizin of the piece of land in question, was an exercise of judgment by the learned judge upon a matter of fact as if undisputed, which was not then before the court, and which, to say the least, was open to controversy for the plaintiff's claim was, that unless the piece of land in question was the property of the plaintiff and in his possession it was land of which, as a lane affording access from the street to his dwelling house and messuage where he lived, he and those under whom he claimed title had been in the actual use and enjoyment continuously from day to day, and every day, for more than twenty

1887

บ.

Gwynne J.

years. So that the point, if it had been made at the trial, MOONEY could have been readily answered. Of such user there was MCINTOSH. copious undisputed evidence. There was also evidence that the defendant had in like manner used the lane for access to the rear of his premises, so that the defendant never had such actual exclusive possession of the lane as would constitute disseizin of plaintiff's grantor of that part of the lane which adjoined the plaintiff's dwelling house and which was covered by the description in his title deeds. It is sufficient, however, to say that no such point as that upon which alone the majority of the court below have adjudicated, had ever been suggested or tried, and that the point upon which the parties proceeded to trial and agreed to rest the case has not been adjudicated upon.

The plaintiff in his statement of claim as amended, in short substance, is, that in the month of September, 1884, he was and still is the owner and occupier of a house and lot of land fronting on Main street, at Stellarton, in the county of Pictou, describing it by metes and bounds, and that on divers days in the months of September and October, 1884, the defendant with horses and carts, etc., etc., broke and entered the plaintiff's close, and dug up and carted away his land, and obstructed and carted away the soil of a roadway from the street to the rear of the plaintiff's premises, which said roadway has been used and enjoyed by the plaintiff and those under whom he claims for a period of more than twenty years.

That in the plaintiff's said house are the following ancient lights, viz., a dining room window on the ground floor in the north end, and two windows on the second floor in the north end.

That the defendant is digging a foundation and is about erecting a building which will, if not stopped, deprive the plaintiff, 1st, of his land; 2ndly, of the use of the roadway from the street to the rear of his premises; and 3rdly, will obstruct and diminish the light coming through the said windows, and he claimed damages and an injunction.

1887

MOONEY

บ.

The defendant, in short substance, pleaded that the locus in quo was his own property, and that the plaintiff and those under whom he claims have not used or enjoyed MCINTOSH. the said road for a period of more than twenty years—and the plea following:

That about fourteen years ago Sarah Lowe, then owner of the said close, now owned by the plaintiff, met with defendant and the defendant and the said Sarah Lowe agreed upon and fixed the boundary between the lot now owned by the plaintiff and that of the defendant as follows (setting out a certain line; and proceeds) and said line was by the said Sarah Lowe while she was owner of the

said lot and by Neil Sutherland and James Wentworth subsequent grantees thereof and up to the year 1882 recognized as the boundary between the lot of the plaintiff and that of the defendant.

The defendant also pleaded that the plaintiff's lights are not ancient. Besides joining issue on the defendant's pleas the plaintiff, to the plea of conventional boundary, replied that neither he nor the said James Wentworth nor Neil Sutherland had any knowledge or notice of the said conventional boundary, and that they were respectively purchasers for value by registered title of the land as described in the plaintiff's statement of claim.

In the notes of trial furnished to us the following entry appears to have been made during the progress of the examination of witnesses for the defence:

It was

agreed to strike out of the pleadings all reference to

lights and drain and to try the question of boundary only.

Gwynne J.

The true construction of this would, I think, seem to be that the question to be tried was, what was the true boundary line between the lot of the plaintiff and that of the defendant, according to their title to be collected from the Ideeds under which they respectively claimed, and not a question whether or not by some agreement between the defendant and the plaintiff's predecessors in title the plaintiff was estopped from insisting upon the true boundary as appearing on his title deeds.