1880 CITY OF SAINT JOHN v. PATTISON. oppressive to him. It is to be observed that Sutton v. Clarke (1) was a case quite different from the one before us; the frame of the declaration in that cause was for exercising the powers acknowledged to have been vested in them by statGwynne J. ute to carry water off from a turnpike road in so careless, negligent and improper a manner as by means of such negligence to have unnecessarily caused injury to the plaintiff, and it was held that, having acted under the advice of a surveyor and having honestly acted according to the best of their judgment and under the advice given, they were not liable. In the case before us the complaint is that the defendants had no legal warrant, authority or jurisdiction to do what they have done; that what they did was in excess of any jurisdiction they had, if they had any to raise the street at all. As to the observations of Gibbs C.J., upon Leader v. Moxon (m), the reports of Taunton, we know, have not the reputation of being very accurate, and the light in which the Chief Justice is reported to have viewed Leader v. Moxon (m) is not borne out by the report of that case in 2 Wm. Bl., from which it appears that the defendants in Leader v. Moxon (m) had grossly exceeded their jurisdiction and had no legal authority whatever to do what they did; whereas, in Taunton, the Chief Justice is reported to have said, referring to that case: That the commissioners did not exceed their jurisdiction and were exercising power 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. I cannot so read the judgment in Leader v. Moxon (m). The defendants, on the contrary, were held to have grossly exceeded their authority, and the case is no authority for the position, nor has any case been cited in support of the position that an Act which, as to the particular manner in (m) 2 W. Bl. 924. (1) 6 Taunt. 29. 1880 CITY OF SAINT JOHN v. which it has been done, is authorized by statute, can be pronounced to be actionable as being oppressive and tyrannical. A particular Act authorized by law can never be pronounced by the law to be tyrannical and oppressive. This PATTISON. is quite different from the case of persons having by statute Gwynne J. power to effect a named purpose which may be done effectually in divers ways, adopting a mode under circumstances amounting to negligence, the natural consequence of which was unnecessarily to injure the plaintiff, when the purpose authorized could have been effected in another way without doing any injury to anyone. The case before us being then, in my opinion, reduced to this, that the plaintiff cannot maintain this action unless he can establish the particular manner in which what has been done was done, constitutes a public nuisance, we have only to turn to the evidence to see whether any evidence in support of that position was offered, and we find that throughout the whole course of the trial this position was not taken nor was any evidence whatever offered in support of it. As to the fence on the retaining wall constituting a nuisance, if the retaining wall did not, that is out of the question, for, if the raising of the street as raised and the erection of the retaining wall were lawful acts, the erecting of the fence was, as indeed the evidence proved, necessary to perfect the legality of the wall, for without the fence it might well be pronounced to be a public nuisance, but yet not such a one as to give the plaintiff a cause of action, for it would not be the absence of the fence to which his injury could be attributed. The plaintiff's whole contention at the trial, and, indeed, since, was that the defendants had no authority whatever in law to do as they did to the prejudice of the private rights of the plaintiff without his consent; that in fact he was entitled to succeed although the act complained of was not or could not be established to be a public nuisance; that his cause of action arose wholly irrespective of the act being a public nuisance. His argument was, in 1880 CITY OF SAINT JOHN v. PATTISON. truth, more based upon the decision in Rose v. Groves (n), as recognized in Lyon v. Fishmongers' Co. (o), than upon any case cited, but Rose v. Groves (n) has no application to a case wherein the statutory authority to do the act comGwynne J. plained of is pleaded, and the act done is not in excess of that authority. The plaintiff has never rested his right to maintain this action upon the ground that the act complained of is a public nuisance from which he sustains peculiar injury, and as, in my judgment, the case is reduced to this, that he could not at all succeed without establishing the act of which he complains to be such public nuisance, the nonsuit was right and should be affirmed and the appeal should be allowed with costs, and the order for a new trial in the court below be discharged with costs. Appeal allowed with costs. Rules nisi and absolute discharged with costs as to rule nisi. Solicitor for the appellants: S. R. Thompson. (n) 5 Man. & Gr. 613. (0) 1 App. Cas. 662. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Municipal corporation-Highway-Snow-General and long continued bad repair-Loss of profits thereby to owner of omnibus line. W. was the proprietor of an omnibus line plying in certain streets of the city of Halifax during the winter of 1881-2, under a license from the city. About the 10th January the snow fell very heavily, and by about the 20th, owing to the snow being thrown from the sidewalks into the street, the roadway became filled with pitch holes, some of which were four feet deep. Other severe snow storms through the winter aggravated the condition of the road. The plaintiff alleged that, by reason of this bad repair of the highway, he had suffered damages to a large amount by the wrecking of his carriages, straining of his horses, breaking of harness, etc., and loss of profits through the diminution in traffic on his 'bus line. Plaintiff complained to the city authorities, asking that men be put to work to level the snow between the sidewalks, but his request was refused. The action was tried before McDonald C.J., and a jury, when a verdict for the plaintiff for $600 damages was found. The defendants obtained a rule to set aside the verdict and for a new trial, which, after argument, was discharged by the Supreme Court of Nova Scotia (16 N.S. Rep. 371). On appeal to the Supreme Court of Canada, Held, the Chief Justice and Gwynne J., dissenting, that the judgment of the court below should be affirmed and the appeal dismissed with costs. Held, per Strong J., that, under the Act incorporating the defendants and subsequent Acts amending the same, not only were the defendants liable to indictment for breach of their public *Cass. Dig. 175. **PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Henry, and Gwynne JJ. **Feb. 16. 1884 CITY OF HALIFAX v. WALKER. duties in respect of the matters complained of, but the plaintiff could also maintain an action as a person especially injured thereby. . Held, per Strong J., that the evidence was amply sufficient to warrant the trial judge in leaving the case to the jury, and, the condition of the street being one which might have been remedied by levelling the hillocks which had been formed, and which caused the damage the respondent complained of, the verdict should be upheld. Held, per Strong J., that the loss of profits claimed was not too remote, but was quite as much an immediate and natural cause of the injury as was the loss of custom in Lancashire & Yorkshire Ry. Co. v. Gidlow (L.R. 7 H.L. 517). Held, per Henry J., that the city of Halifax was liable for the negligence of the street commissioners although they were appointed by the city council and not by the Court of General Sessions as provided by R.S.N.S. (4 ser.) ch. 49. APPEAL from a decision of the Supreme Court of Nova Scotia (a), discharging a rule nisi to set aside a verdict at the trial in favour of the plaintiff. The facts of the case are sufficiently set forth in the following evidence on behalf of the plaintiff given at the trial, no evidence having been offered on behalf of the defendants. James F. Walker, plaintiff, ran a line of omnibuses, and kept a feed store. Ran five 'buses on wheels; had six sleigh 'buses last winter. Ran five of them pretty steadily, all six sometimes. Ran them on Lockman, Barrington, Bell's lane, Water, Granville and George streets, Hollis street, Morris street, Pleasant street. Inglis street, South Park street and Victoria road. These streets are used as highways and thoroughfares in the city. A great amount of traffic of Lockman street to Bell's lane. It is the chief traffic street of the city. The run from North street to the foot of Inglis street was about three miles. Used over twenty horses in the 'bus service; employed 9 or 10 men. Was running the 'buses on runners during the month of January last. The place was in good condition when the winter service began. It began to snow about 10th January last, and the roads began to get bad about the 20th. The snow began to get very deep, especially on Lockman street, from North to Cornwallis streets. They became pitchy, caused by snow being thrown from the sidewalks in hills into the (a) 16 N.S. Rep. 371. |