1900 Ross v. HUBTEAU. Patterson J. adhere. It was a mere undertaking or contract between the plaintiffs and their immediate vendees. It is worth remarking that Ross & Co. are not shewn to have lent their money in reliance upon the lumber being free from the lien. That phase of the matter probably was not considered by them when they made the advance. It is shewn, however, that they knew that the lumber was not paid for, and that they believed Little, with whom they had large dealings, to be solvent. It is also shewn that when the order of the 18th of January was shewn to them, the bought and sold note of the 12th, which contained the terms f.o.b., etc., was also shewn to them. I think the appeal fails on all grounds, and ought to be dismissed with costs. Appeal dismissed with costs. Solicitors for the appellant: O'Connor & Hogg. Solicitors for the respondents: Beatty, Chadwick, Black stock & Galt. GEORGE PATTISON (PLAINTIFF). . . . . . . .RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW BRUNS- Municipal corporation-Streets-Power to raise the level-Liability for injury to owners of abutting property. The city of Saint John, by its charter, had power to alter and repair its streets. Under this charter the corporation frequently altered the level of streets. An Act of the Legislature recited that, owing to irregularities of the ground upon which the city was situate, it had been found expedient to make alterations in the level of streets, that this had rendered it necessary for proprietors of houses to erect steps and stairways to obtain access to their properties, that the corporation had undertaken to authorize this being done but doubts had arisen as to its power so to do. The statute thereupon proceeded to empower the council of the corporation to permit such steps to be placed upon the highway so long as they did not encroach beyond a certain distance. In 1874 the corporation raised the level of Church street supporting the work in front of the plaintiff's house by a wall and placing a fence thereon, cutting off his direct access to the street. The plaintiff claimed first, that the defendants had no statutory authority to do the work complained of, and, secondly, that, in the construction of the work, the defendants had acted arbitrarily and oppressively, even if they had the statutory power to raise the level of the street. At the trial the plaintiff was nonsuited, the court holding that, in raising the level of the street, the corporation had acted within the powers granted by its charter and that there was no evidence to support the contention that the council had acted arbitrarily. On appeal to the full court it was held, the Chief Justice and Duff J., dissenting, that the non-suit should be set aside and a new *Incorrectly reported, Cass. Dig. 173. **PRESENT:-Sir W. J. Ritchie C.J., and Fournier, Henry, Taschereau and Gwynne JJ. 1880 CITY OF SAINT JOHN บ. PATTISON. trial had between the parties, the court holding that as a matter of law the defendants had not, under any act of the Legislature, authority to raise the street in the manner in which they did raise it, and that, whatever might be their jurisdiction over the street, the particular mode in which they raised the street in question was in excess of their jurisdiction. On appeal to the Supreme Court of Canada, Held, Fournier and Henry JJ., dissenting, that the judgment of the full court (18 N.B. Rep. 636) should be set aside, and the non-suit granted at the trial restored. Held, per Gwynne J., that, by the Act of Incorporation and other Acts of the Legislature, the power of altering and repairing the highway was restricted by no condition save the implied one that the work should be done so as not to constitute a public nuisance; and, if not a public nuisance, the convenience of all private persons, however great the damages suffered, had to yield to the public interest. Leader v. Moxon (2 W. Bl. 924), discussed. APPEAL from a decision of the Supreme Court of New Brunswick (a), setting aside a non-suit granted at the trial and ordering a new trial. The facts of the case are sufficiently set forth in the head note and judgments. Thompson Q.C., appeared for the appellants. The only reasons for judgment delivered were the following: HENRY J. (dissenting)-After a careful consideration. of the circumstances of the case I have reached the conclusion that the appeal should be dismissed. The respondent was non-suited on the trial, but on the argument of a rule nisi to set it aside and grant a new trial it was made absolute. From that decision the matter came to this court by appeal. (a) 18 N.B. Rep. 636. 1880 CITY OF SAINT JOHN v. The respondent was the occupier of a house, tinshop and premises on a street in the city of St. John, New Brunswick, on a level with the roadway and sidewalk, the latter being about four or five feet in width. The appel- PATTISON. lants caused the roadway opposite to respondents premises Henry J. to be raised between three and four feet and erected a fence on the retaining perpendicular wall about three and a half feet in height. Up to the time of that being done the respondent had access to the roadway from his premises and had the benefit of communication by means of carts, carriages and of customers to his shop from the roadway. These were substantial common law rights, the loss of which not only injured his enjoyment of the premises, but tended to injure his business and lessen the value of his property. If, therefore, the appellants were not justified in raising the roadway and erecting the wall and fence as they did, he is entitled to recover. They do not, and could not, claim to have been required by any legislative provision to raise the street in question, nor were they guaranteed by legislation against any failure, although acting bonâ fide in the execution of their powers. The result is that they must bear the consequences of any oppressive or negligent use of them by which wrong is done to another. Without questioning the general power of the appellants to alter, amend or repair the streets within their jurisdiction they are, in my opinion, amenable to legal principles, as to its execution. They have a discretionary power as to what streets shall be altered, amended or repaired, but it must be exercised within proper and reasonable bounds. So far as mere public rights or interests are concerned their decision is conclusive. When private rights are to be invaded the question is essentially different. If, in the opinion of the appellants, public interests called for the raising or cutting down of a street which could only be done by sacrificing the rights and interests of some of those whose property adjoined and by which the damage necessarily done to individuals by far exceeded the public bene 1880 CITY OF SAINT JOHN v. fit to be derived such a use of the power might be fairly submitted to a jury as arbitrary, oppressive or even malicious, and in such cases would, as done frequently in EngPATTISON. land, be decided to be an excess of authority. The case of Leader v. Moxon (b) establishes this sound doctrine, and Henry J. although thought to be questioned by Lord Kenyon in the Governors of the British Cast Plate Manufactures v. Meredith (c) is not really so. It has, on the contrary, been approved in several subsequent cases and most empha.ically by Gibbs C.J., in Sutton v. Clarke (d), where he approved the principles upon which it was decided. He says (referring to Leader v. Moxon (b)): The Commissioners were exercising powers given them by an Act of Parliament, but the court thought they were acting in a most tyrannical and oppressive manner, and that though they had a right to pave, and perhaps to raise, the street, they had acted so arbitrarily that they were answerable. With that judgment this court entirely agrees. If, then, the appellants having the discretion as to the public rights involved have done that which in respect of the vested rights of the respondent they have no justification, it is a question merely of damages for a jury. Added to the responsibility as to the exercise of their discretionary power before referred to, the appellants are responsible for the proper and careful use of the means employed and the mode adopted. Sidewalks and roadways are, as a general rule made on a level with each other, and it is the exception to find them deliberately made otherwise. The appellants in this case adopted a very unusual, exceptional, and, I think, unnecessary course when destroying the relative normal position of the two and by doing so would be justified only by shewing something like a controlling necessity. The respondent had a vested interest in and the right to the continuance of them as they existed in this respect before the change, and (c) 4 T.R. 794. (b) 3 Wilson 461, 2 W. Bl. 924. (d) 6 Taunton 29. |