should occupy the land during her life in the lieu of dower. I have no doubt that up to the time of her death this was her own position and (though that is not material) it must have been the plaintiff's own view until very shortly before she brought this action."

This judgment was reversed by the Divisional Court, and the judgment of the Divisional Court was subsequently affirmed by the Court of Appeal.

Arnoldi, for the appellants. Possession will not inure. to make a title under the statute when it can be referred to a lawful title, per V. C. Wood; Thomas v. Thomas (a); Doe d. Milner v. Brightwen (b).

Mrs. Ross's statements to witnesses that the property was on her death to go to her husband's heirs are admissible in evidence as declarations which at the time that they were made were against the apparent interest of the person making them. Baron de Bode's Case (c); Doe d. Daniel v. Coulthred (d); Woolway v. Rowe (e); Doe d. Perry v. Henderson(f); Queen v. Governors of Exeter (g); The Queen v. The Churchwardens, etc., of Birmingham (h); Taylor on Evidence (6 ed.), secs. 617-620; Best on Presumption of Law and Fact, pp. 615-8.

Bain, Q.C., for the respondent. The evidence clearly establishes that Madeline Ross in her lifetime had acquired a title to the land by length of possession, and neither a mere acknowledgment of title made in her lifetime, nor an acknowledgment made by the respondent after her death, would affect the title thus acquired. Sanders v. Sanders (i); Workman v. Robb (j); Doe d. Perry v. Henderson (k).

(a) 2 K. & J. 79.

(b) 10 East 583.

(c) 8 Q.B. 208.

(d) 7 A. & E. 235.
(e) 1 A. & E. 114.

(f) 3 U.C.Q.B. 486.
(g) L.R. 4 Q.B. 341.

(h) 1 B. & S. 763.

(i) 19 Ch. D. 373.

(j) 7 Ont. App. R. 389.

(k) 3 U.C.Q.B. 486.

1885

OLIVER

v.

JOHNSTON.

1886

OLIVER

v.

JOHNSTON.

The court was unanimously of opinion that the appeal should be dismissed with costs. The only reasons for judg

ment were

SIR W. J. RITCHIE C.J.-Was there any sufficient evidence of an agreement between the heirs of Charles Ross and his widow that she should occupy the land during her life in lieu of the dower? I can discover none.

There is nothing, in my opinion, to shew that the heirs at law of Charles Ross could not have brought an action and recovered the land at any time from the death of Charles Ross till the date (the first day of July, 1877) when the right and title were extinguished or ceased by virtue of the statute, because the widow could not have resisted such a claim by the heirs by setting up that she was entitled to dower in the land. The appeal should be dismissed.

GWYNNE J.-The case appears to be free from all doubt. The right of entry of the heirs of Charles Ross, who upon the 8th September, 1864, died intestate and seized of the land in question first accrued upon the death of Charles or at the latest at the expiration of the quarantine of his widow, who from his death until her own death on the 6th October, 1881, remained in uninterrupted possession by herself and her tenants. She by her will dated the 19th May, 1874, after certain specific devises in her will mentioned, devised all the rest and residue of her estate of which she should be seized or possessed or to which she should be entitled at the time of her decease to the plaintiff. The Statute of Limitations then began to run against the heirs. of Charles Ross not later than the 18th October, 1864, between which date and the 1st July, 1877, nothing whatever occurred of which there is any evidence to stay the running of the statute so that upon the last mentioned day the title of the heirs of Charles Ross, by force of the Ontario statute, 38 Vict. ch. 16, because absolutely extinguished and the possession of Charles Ross's widow became matured into

1886

OLIVER

v.

JOHNSTON.

a title in fee simple. It would seem from the evidence that she had been advised that it would require twenty years' possession to perfect a title to her in the land by prescription, as was the law prior to the passing of 38 Vict. ch. 16, so that it is not improbable that she died in ignorance of Gwynne J. having acquired a title to the land. At the date of her will her possession certainly had not matured into a title, but her will was framed so as to pass a future acquired estate, and as she was seized of the land by statutory title at her decease the words of the will are sufficient to pass and did pass to the plaintiff the estate so acquired. The evidence offered by the defendant John Ross in support of his defence, namely, that Mrs. Ross, the widow of Charles Ross, who died seized, had accepted an estate for her life from some persons or other not named, the heirs of Charles Ross, and that this was the title in virtue of which she held possession until her death, was wholly inadequate; indeed, there was not any legal evidence in my opinion offered in support of this contention. The loose scraps of conversations with strangers which were relied upon were quite irrelevant. The appeal must be dismissed with costs.

Appeal dismissed with costs.

Solicitors for appellants: Howland, Arnoldi & Ryerson.
Solicitors for respondent: Bain, Laidlaw & Co.

Government railway-Expropriation-Injuries to property-Crossing at embankment and cutting-Riparian rights-Access to shoreAssessment of damages once for all.

K. was the owner of certain lands bounded on one side by Halifax harbour, and the Government of Canada constructed its railway through the land cutting off her access to the shore and gave her no crossing. Proceedings having been taken in the Exchequer Court to fix the compensation to which K. was entitled, she was awarded (2 Ex. C. R. 21) for damages occasioned by reason of the absence of the railway crossing, the sum of $500. On appeal by K. to the Supreme Court of Canada:Held, Gwynne. J., dissenting, that the judge of the Exchequer Court erred, on a question of fact, in not taking into consideration that the character of the embankment and cutting made and the nature of the ground on each side would forbid the making of a reasonably practicable crossing, and that the consequence of the severance would remain notwithstanding all that under the circumstances could be done towards making a crossing, and also had erred, in law, in not giving compensation for the severance once for all, and that, instead of allowing K. $125 a year for four years' severance, he should have awarded her a sum which would produce $125 a year for all time.

Held, that there is no obligation in law to construct a crossing over a government railway apart from contract.

Held, per Gwynne J., when a railway is constructed across property and severs it into parts in such manner as to make a crossing necessary to the full enjoyment of the several parts, the owner cannot against his will be deprived of a suitable crossing and compelled to accept compensation in lieu thereof.

*PRESENT:-Strong, Fournier, Taschereau, Gwynne and Patter

son JJ.

APPEAL from a decision of the Exchequer Court of Can

1889

ada (a) against the amount awarded as compensation for KEARNEY lands expropriated by the Crown.

In 1884 the Government of Canada constructed the Dartmouth branch of the Intercolonial Railway through the town of Dartmouth, and across the lands of the appellant, and tendered her $150 for the right of way. No arrangement with her having been arrived at, the appellant instituted an action in the Supreme Court of Nova Scotia against the contractors for the construction of the branch railway, for trespasses alleged to have been committed upon the property in question. The defendants justified the acts complained of by alleging entry under direction of the Government of Canada for the purpose of constructing the railway. A judgment in favour of the appellant in that action having been reversed by the full court, and an appeal from the last-mentioned court having been taken to the Supreme Court of Canada, an arrangement was come to between the Crown and the appellant that, without prejudice to her appeal, it should be referred to the Exchequer Court of Canada to determine the amount to which she was entitled as compensation for the damages complained of, and that the evidence taken in the case of the appellant against the contractors should be used as evidence on the said reference, along with such other evidence as might be taken before a commissioner and transmitted to the registrar of the Exchequer Court.

The reference came on for hearing before a judge of the Exchequer Court, who gave the following decision with respect to the damages by reason of the absence of a railway crossing:

"Apart from the general question of the depreciation of the claimant's property by the severance of the part expropriated, she contends, and I think justly, that she has suffered loss by reason of the absence of a railway crossing.

(a) 2 Ex. C. R. 21.

บ. THE QUEEN.