Joyce vs. Hart.

works, and that Defendant be held to place the wall in the same state it was prior to the making of these works, and to pay the sum of five hundred pounds currency for damages.

The Defendant met the action, first, by a demurrer, defense en droit, denying any right of action on the part of Plaintiff to obtain the demolition of the works, which, as appeared from the allegations of Plaintiff's declaration, were completed before the action was brought; and also denying any right of action, other than for the indemnity fixed by law, for rendering the wall of Plaintiff's house common. Defendant also pleaded the same law-grounds by a second plea, of Exception peremptoire en droit; and, thirdly, answered specially, denying all the allegations of Plaintiff's declaration save as expressly admitted in their answer, alleging that in using the wall of Plaintiff's house as he had done, Defendant acted only as by law and custom he was allowed to do, said gable wall not being built entirely on Plaintiff's property; that before erecting his said building, the Defendant did request Plaintiff to have the indemnity determined and fixed, and did offer to pay such indemnity, but that Plaintiff refused to name an expert or have an expertise for said purpose; that Defendant acted in good faith and in accordance with the custom and practice of builders, and in a manner to cause no damage to Plaintiff; and that he, Defendant, deposited in Court, with his plea, the amount of indemnity as fixed by his own expert, after action brought, although such indemnity was not demanded of him by Plaintiff's action. Defendant also pleaded the general issue.

The Plaintiff answered generally the parties were then heard upon the demurrer, which was dismissed by the judgment of the Superior Court, Montreal, of the thirtieth day of November, one thousand eight hundred and seventy-four.

Joyce vs. Hart.

The case was then inscribed for proof, and the evidence being finished, the case was heard upon the merits; and on the thirtieth day of April, one thousand eight hundred and seventy-five, the Superior Court at Montreal rendered judgment, dismissing Plaintiff's demande, in so far as it asked for the demolition of the works complained of, as the building of the Defendant with respect to which the Plaintiff complained, was done and completed before the institution of the action, and ordering an expertise for the determination of the question of damages.

From this judgment, as an interlocutory one, the Plaintiff obtained leave to appeal to the Court of Queen's Bench of Lower Canada, which Court, on the twentysecond of June last, rendered the judgment from which the present appeal arises.

JANUARY 16th, 1877.

Mr. M. A. Hart, on behalf of Respondent, made a motion to quash the appeal for want of jurisdiction, on the ground that the amount in dispute was settled by the judgment of the Court below, and did not exceed $2,000. In support of his motion he cited: McFarlane v. Leclaire (1); Cuvillier v. Aylwin (2) and Stats. L. C. (3).

Mr. L. H. Davidson, Q. C., contra, referred to Richer v. Voyer (4); Buntin v. Hibbard (5); and In re Louis Marois (6).

The Court reserved judgment on this point until after the argument of the appeal on the merits.

JANUARY 20, 22, 1877.

Mr. L. H. Davidson, Q. C., for Appellant:

The action brought is one en demolition de nouvel

(1) 6 L. C. Jur. 170, & 15 Moore P. C. C. 181; (2) 2 ̧Knapp's P. C.-C. 72 ; (3) 34 Geo. IlI., c. 6, sec. 30; (4) 2 Rev. Leg. 244; (5) 1 L. C. L. J. 60; (6) 15 Moore P. C. C. 189.

Joyce vs. Hart.

œuvre, and when brought the new works complained of were completed. No action en demolition de nouvel œuvre lies when works are completed. It is only necessary to refer to the following authorities to establish the truth of this proposition. Carou Actions Possessoires p.p. 30, 31, 33, 40; Daviel, "Cours d'Eau," Du Domaine Public, par. 471; Ferriére (Dict.) Verbo Denonciation de nouvel œuvre. Brown v. Gugy (1) shows that authorities commenting the French code are inapplicable to this case. The French code is different from what the old French law was, and it is that law which prevails in Canada.

Appellant contends that in this action the conclusions of the declaration ask for the demolition of the whole wall, from top to foundation, and are strikingly like those given by the authors as conclusions in an action en denonciation, and dissimilar to those of an action possessoire. In a possessory action it is necessary to allege expressly, and prove positively, Plaintiff's possession for a year and a day before the trouble. Cardinal v. Belanger (2); C. C. L. C., Art. 946; 2 Doutre Proc. Civ., p. 258, Art. 1468; Jourdain v. Vigereux (3).

Nor can the Plaintiff's demand be maintained as one in the nature of an action petitoire. In that case the plaintiff would ask to recover the absolute and free ownership of her gable wall, and not demolition of works and damages. (4).

By Art. 518, C. C., Plaintiff's ownership is affected by the equal right of her neighbor to make use of the wall.

(1) 2 Moore, P. C. C. N. S., p. 341; (2) 10 L. C. J., p. 251; (3) Robertson Digest, p. 12; (4) See Ferrière (Dict.) Verbo Petitoire; 2 Demolombe, liv. II, tit. IV, Cap. II, No. 367.

Joyce vs. Hart.

Neither is prepayment of the indemnity mentioned in Art. 518 absolutely required. This article is a reproduction of Art. 594 of the Coutume de Paris, but the word prepayment is left out.

The Appellant therefore claims that the only action left to Plaintiff after completion of the works, was a personal action for damages. The decisions given in Louisiana under Art. 680 of the Louisiana Code, which is almost a copy of Art. 518 of our Code, are favorable to Appellant's contention that prepayment is not necessary, and that the only action which could be maintained is one of damages. Graihle v. Hown (1); Murrell v. Fowler (2); Davis v. Graihle (3).

Lastly, can this action be maintained as one of damages? The Appellant respectfully submits that it cannot. There was no wrongful act committed. By Art. 514, C. C., all the works complained of are allowed, and moreover by the judgment no special damages have been appropriated for the alleged trespass.

[The learned Counsel also referred to Beck v. Harris (4), Duranton, Vol. 5, p. 337 on Art. 657 of C., and Washburne on Easements, p. 472]

Mr. A. M. Hart, of the Montreal Bar, on the part of Respondent :

Plaintiff, before being interfered with her acquired rights, and before the new works were proceeded with, was entitled, under Art. 518 and Art. 519, to be asked her consent and, on her refusal, Defendant could have caused to be settled by experts the necessary means to prevent the new work from being injurious to the rights of the other.

The decisions under Art. 661 of French Code, of

(1) 1 Louis Rep., p. 149; (2) 3 Louis Rep., p. 165; (3) 14 Louis Rep., p. 338; (4) 6 L. C. J. p. 206; (5) 13 L. C. J., p. 108.

Joyce vs. Hart.

which our Art. 518 is a reproduction, prove beyond all controversy that prepayment was necessary, and that Plaintiff can have an action not only after works were completed, but also an action in rem. against any subsequent purchaser of Defendant's property. Pochet v. Des Rocher (1); Demolombe (2); and Ferrot (3); Odiot v. Rousseau (4) is expressly in point. Although this case was not cited in any of the Courts below, your Lordships will be surprised to find how strikingly similar are the considerants of the judgment in that case with those of the judgment in this case given by the learned Chief Justice Dorion.

Now, as to the nature of this action, it is immaterial to Plaintiff whether the action of the Appellant for the removal of the works made on his gable wall is considered as of the nature of an action, petitoire or of an action possessoire and en denonciation de nouvel œuvre. By Art 20 of the C. C. P., it is sufficient that the facts and conclusions be distinctly and fairly stated, without any particular form being necessary, and, by referring to the following authorities, it will be seen that an action en denonciation de nouvel œuvre, can be merged into a petitory or possessory action. Vide Merlin, Question de Droit (b); Curasson, des Actions possessoires (6); Troplong (7).

The case of Gugy v. Brown, cited by Appellant, is not in point. In that case the question of denonciation de nouvel œuvre was only casually touched upon in a dissertation, and there was no adjudication as to whether an action asking for the removal of works illegally

(1) 40 Jour. du P., p. 638; (2) P. 408, No. 367, liv. 11; (3) Lois du Voisinage, p. 364; (4) 26 Jour. du P., p. 76; (5) Denonciation de nouvel œuvre, p. 6; (6) No. 23, p. 30 and p. 32; (7) Vol. I., Des Prescriptions Nos. 313, 328, 479 and 487.