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Nov.28.}

MONTREAL STREET RAILWAY v. CITY OF MONTREAL. checked, in order that the proper per- 1905.

GRIEVE V. TASKER. * centage payable to the city might be Nov. 28.) ascertained and verified. A second question discussed in the

Practice-Special Leave to Appeal

Petition for Leave to Appeal from Judglocal Courts was as to the method on which the accounts between the city and

ments Out of Time-Leave Refused. the company had been adjusted. From Where an appellant is out of time for the nature of the case, it was impossible appealing from an order he cannot bring to separate the earnings inside from those himself within time by a fresh application outside the city with anything approach for the same purpose to the Court below, ing mathematical accuracy; and accord- the refusal of which is within time. ingly the Judge of first instance, by an The appellant obtained leave to appeal order of November 19, 1898, very pro- from an order made in March, 1905. He perly referred it to two experts, one of then petitioned for leave to appeal from whom was the treasurer of the city of orders of June, 1899, and August, 1904, Montreal and the other the comptroller in respect of which the time for appeal had of the Canadian-Pacific Railway Co., to expired, on the ground that they were examine into the method of calculation to necessary to the conduct of his appeal from be adopted in order to secure a just the order of March, 1905. All three orders apportionment. These gentlemen re- were substantially the same. Appeal from ported that, “after considering divers order of March, 1905, dismissed, and other methods by which such apportion- appellant's petition refused. ment might be arrived at," they were of opinion “that the system now pursued These were two petitions, the first by the Montreal Street Railway Company being that of the respondent to dismiss is the most practical one and in its opera- the appellant's appeal from an order of tion just, but that if any change were to the Supreme Court of Newfoundland on be made it would be to increase the the ground of its being out of time, withearnings per car mile in favour of the out a hearing on the merits. The second outside districts." The learned Judge petition was by the appellant, who had adopted their report, and it was confirmed obtained leave to appeal from an order of by the judgment of the majority of the March 20, 1905, for special leave to Court of King's Bench. Their Lordships appeal also from orders of June 7, 1899, see no reason to dissent from this conclu- and August 20, 1904. The ground of sion.

appeal alleged was that these orders were Their Lordships will humbly advise his as necessary to the hearing of the appeal Majesty that this appeal ought to be from the order of March 20, 1905, as allowed, and the judgment of the Supreme that order itself.

that order itself. The circumstances are Court reversed with costs, and that of sufficiently stated in the judgment. the Court of King's Bench confirmed. The respondents must pay the costs of

Sir R. T. Reid, K.C., and J. W. the appeal.

Gordon, for the first (respondent's)

petition. Solicitors-Paines, Blyth & Huxtable, for

Asquith, K.C., and Kerly, for the appellants ; Blake & Redden, for respondents.

second (appellant's) petition. [Reported by J. Eyre Thompson, Esq., LORD Davey delivered the judgment of Barrister-at-Law.

their Lordships :

Their Lordships are of opinion that the appeal which has been presented to his Majesty in Council is incompetent, and that the first petition (the petition of the respondent) ought to be granted, and

Coram, Lord Davey, Sir Ford North, Sir Andrew Scoble, and Sir Arthur Wilson.

GRIEVE V. TASKER. their Lordships will state shortly their motion for an order setting aside the reasons for coming to this conclusion. above judgment, or limiting its effect to

It is not necessary to go through the its being made the subject of proof whole of this long and complicated story. in the bankruptcy proceedings. This The starting point is an action com- motion was dismissed by an order dated menced by the respondent against the June 7, 1899. He did nothing more till appellant on December 23, 1896, in the 1904. He then applied for an order Supreme Court of Newfoundland. In which was substantially the same as he this action judgment was given on Octo- had applied for in June, 1899. This ber 13, 1897, declaring the liability of application was refused on August 29, the appellant, and on April 6, 1898, the 1904. Again, he did not appeal to his Supreme Court made a final decree for Majesty in Council from the order of payment by the appellant of 22,295 dol- August 29, 1904. It appears that on lars. The objection which is taken December 1, 1904, leave was given to against that decree is that at the time the respondent to issue execution. On when it was made the appellant (the March 20, 1905, an application by the defendant) had obtained his discharge in appellant for what was in fact exactly the certain bankruptcy proceedings in Scot- same thing as he had already applied for land.

in August, 1904-namely, to restrain Their Lordships are not satisfied that execution—was refused. He then obthe appellant did not know the fact of his tained leave to bring the appeal which is having obtained his discharge before the now before their Lordships-namely, from judgment of October 13, 1897. If it the order of March 20, 1905. were necessary to express an opinion It is manifest, if those dates are looked upon that point, their opinion would be at, that, in the first place, the appellant that there is evidence that he did know cannot move a step without first getting of the discharge, because he must have rid of the previous judgments of 1897 received, and it is not denied that he and 1898, and that therefore the appeal could have received, the letter of Sep while those judgments stand, would be a tember 27, 1897, which has been men- perfectly idle appeal; and, in the second tioned. The inference from the date of place, that the order from which he has that letter is that it was a letter convey- obtained leave to appeal in the colony is ing the intelligence that the discharge only a repetition of an order made in the had been granted. That, however, is previous year from which he could not immaterial, because the final decree in appeal. It need scarcely be stated that the suit was not made till April 6, 1898, this Board would never allow an appeland it is not disputed that long before lant, who is out of time for appealing that date the appellant knew that the from an order, to make a fresh application discharge had been granted in Scotland, to the Court for the same thing over and, in fact, had obtained copies of the again, and to get it refused in order to discharge. If he intended to raise this enable him to bring himself within time. point in the action, what was his proper It would be trifling with the practice of course? His proper course at that time the Board to allow him to do so. The was to have moved the Court to discharge appellant seems to be perfectly aware of the previous order of October 13, 1897- his difficulty, because in his present petiwhich, after all, was not a final judgment, tion he asks for leave to appeal against but an interlocutory order—and to give the orders of June 7, 1899, and August 29, him liberty to amend his pleadings by 1904. He is perfectly aware of the objecpleading this discharge. He did not do tion which has been stated to the comso, but he applied for and obtained leave petency of his appeal. Their Lordships to appeal to her late Majesty in Council, are not prepared to say that the appelthough in that appeal he could not, lant ought to have leave to extend his apparently, have raised the point in appeal in that manner. He is asking for question. This appeal he subsequently an indulgence from the Board. Is he in abandoned. In June, 1899, he made a a position to ask for that indulgence ? GRIEVE V. TASKER. Having regard to the delay he has allowed A Crown charter granting a mill Cum to take place in the assertion of what he stagnis aquæductis aliisque integris thinks are his rights, and to his neglect, privilegiis et pertinentiis ejusdem quibuswhen all the facts were known to him cunque," cannot be construed as conferring and his advisers, to bring the matter pro- rights beyond those of ordinary dams or perly before the Court, and having regard, stagna, and gives no exclusive property in further, to the impossibility of his getting the running water. any relief, such as was refused to him Decision of the Court OF SESSION by the orders of June 6, 1899, and (42 Sc. L. R. 330) reversed. August 29, 1904, without setting aside the final judgment of April 6, 1898, their Appeal from an interlocutor of the Lordships think it is not a case in which Second Division of the Court of Session they should advise his Majesty to allow in Scotland. The respondents were the him to extend the appeal in the manner pursuers in the action and were owners of sought.

the old mill of Partick on the river Kelvin, Their Lordships will therefore humbly otherwise known as the Bishop Mill

. advise his Majesty that the respondent's They raised their action for declaration petition ought to be granted and the against the appellants, who were owners appeal dismissed, and that the appellant's of the Scotstoun Mill on the opposite side petition for leave to appeal ought to be of the river, their claim being-first, that dismissed.

they were entitled to the “first waters" The appellant will pay the costs of the of the river Kelvin for the use of their appeal and of both the petitions.

mill to the extent of 6,000 cubic feet a minute, without prejudice to their rights

in case of any further extension of their Solicitors-Taylor, Lewis & Davis, for mill, and in preference to the Scotstoun respondent petitioner; Hollams, Sons, Coward

Mill; and secondly, that the owners of the & Hawksley, for appellant petitioner.

Scotstoun Mill were not entitled to draw [Reported by J. Eyre Thompson, Esq., any water from the dam of the river immeBarrister-at-Law.

diately above the respondents' mills, or to allow any water to pass through their sluices except when the dam was full and the water either standing level with the dam head or running over, and then only

to the extent of 2,077 cubic feet a minute. [IN THE HOUSE OF LORDS.]

The Lord Ordinary (Lord Kincairney) JOHN WHITE & Sons

found (July 6, 1904) that the first part of 1905.

AND OTHERS V. the conclusions of the summons seemed to Dec. 4, 5, 7, 8, 15. J. & M. WHITE AND

claim unrestricted use of the water in the OTHERS. *

dam so long as it could be utilised for the River,Riparian ProprietorsServitude Bishop Mill. That the second part of Conferred by Charter Construction

the conclusions seemed to deny the appelClaim to Abstract River Water without lants' right to draw water from the dam Restriction.

except when it was full; and the learned By the general law applicable to running conclusions.

Judge absolved the appellants from these streams every riparian proprietor has a

The learned Judge stated the facts right to the ordinary use of the water flow

follows: The Bishop Mill is of ing past his land ; and he may also, pro

very ancient date. A charter of King vided that he does not interfere with the David the First was produced. rights of other proprietors below or above appeared that the magistrates of Glasgow him, dam up the stream for the purpose of possessed the Bishop Mill for a very long a mill.

period as kindly tenants, and that they Coram, Earl of Halsbury, Lord Robertson,

in 1738 obtained a Crown charter, which and Lord Lindley.

proceeded on the narrative that past

as

It

66

cum

JOHN WHITE & Sons v. J. & M. WHITE, H.L. human memory the magistrates possessed untill our works at our Slit Miln on the the dam with the mill house and certain water of Kelvin for rolling and slitting of ground, being parts of the barony of iron and grinding of tools is next served, Glasgow," as kindly tenants and rentallers. they being declared to have the second The charter then proceeded to dispone to water, the same being hereby limited to the magistrates and their successors three wheels the foresaid Waulk Miln of heritably and irredeemably the mill of Partick hereby disponed being only to Partick, on the water of Kelvin, with have the third water and for one wheel thirlage and multures and the services at only. But in case at any future period the mill all in the ordinary terms

we or our foresaids shall find it convenient stagnis lie damms inlairs et aquæductis or necessary to discontinue the manufacaliisque integris privilegiis et pertinentiis tory of rolling and slitting of iron and ejusdem." Prior to that date it does not grinding of tools and shall instead thereof clearly appear that any one except the erect any other milns or machinery which magistrates made use of the dam. But may require a greater quantity of water about that time a company called the than is now used by us, then and in that Smithfield Co. built what is called a slit case the second water so now reserved for mill-namely, a mill for splitting iron- our present works shall in all times thereand they applied to the magistrates for after during the scarcity of water be leave to carry an aqueduct from the Par applied for the driving the new machinery tick Mill dain to a dam to be erected on so to be erected in the proportions stated, their own ground for their slit mill. This namely, three-fourths of said water petition was granted by the magistrates, shall be applied for the use of the and the aqueduct and dam were con- machinery so to be erected by us and our structed, but the minute bears that the foresaids, and one-fourth thereof shall be operation is to be conducted " in such applied for the use of the Scotstoun Miln manner that the said mill of Partick aforesaid, or our said works so to be shall receive no detriment or prejudice, erected shall go eighteen hours of the and shall be kept in the same order and twenty-four, and Scotstoun Mill shall go condition as it is now."

the remaining six hours.

But in case This minute bears date May 30, 1738, that we or our foresaids shall have occabefore the Crown charter, but it was sion in future to erect upon our works confirmed by another minute dated any waterwheels beside the foresaid three, January 3, 1740.

all such wheels above three shall have no The owners of the Scotstoun Mills privilege of water (until the Scotstoun were not mentioned in these proceedings. Miln is fully served) whether used as a

A deed dated 1780 by the Smithfield corn miln or for other purpose, and shall Co. bears to sell and dispone to one John only be used at such times when there is Craig, Scotstoun Mill, with certain other a surplus quantity of water in the river subjects mentioned. First, the Scots- Kelvin running over the dam head after toun Mill was a waulk mill or fuller's serving the Miln of Scotstoun as aforecloth mill, for which, it was said, a mill said.” dam was not essential. But that was not The owners of the Bishop Mill were of importance, as the deed bears that “it not parties to this deed, although their was now” (that is in 1780)“ made use of right to the first water is affirmed or as a corn mill.” This disposition by the acknowledged in it. Then it is also said Smithfield Co. (Slit Mills) to Craig bears

that the Slit Mill is to have the second the following clause : “But alwise with water limited to three wheels, and the and under this condition and provision Waulk Mill of Partick-namely, Scotsas it is hereby expressly conditioned and toun-is to have the third water and for provided that the said John Craig and his one wheel oply. foresaids and the miln before disponed, Owing to the American Revolution and sball have no right to the water of Kelvin the loss of that market for split iron, &c., until the Old Miln of Partick is first the Slit Mill was closed a considerable served, she having the first water, and number of years ago, and no water has per minute.

JOHN WHITE & Sons v. J. & M. WHITE, H.L. since been drawn from the dam on its property of the alveus; it has not been account.

suggested that any one is proprietor of the The Bishop Mill, after passing through alveus except the respondents under their intermediate owners, was sold and dis

Crown grant.

But this question is about poned to the pursuers in 1897. Scotstoun the water, not the alveus.

For more Mill appears to have remained in the than forty years the respondents drew a possession of John Craig and his suc- comparatively small part (1,200 cubic feet) cessors until 1839, when it was sold to of the water from the dam and left the John Blackwood, and by him in 1854 to rest to others. The appellants maintain John White, father of the appellants, that, as riparian proprietors, though they from whom it passed in 1897 to the were nothing else, they could object to present appellants. With regard to the the respondents' summons.

They said possession and use of the dam by the that, conceding the respondents' right of Bishop Mill and Scotstoun Mill, it appears property in the dam, still the respondents that the parties are agreed—first, that could not abstract more water from it Bishop Mill was entitled to draw, and did than their prescriptive use warranted, draw, the first water; and secondly, that because it was flowing water. The appelfrom 1780 to 1865 the owners of Bishop lants further maintained that no property Mill drew no more than 1,200 cubic feet in the water could be acquired without

Further, the parties are appropriation. agreed that about that time the Scotstoun The respondents maintained that their Mill was in use to draw 2,077 cubic feet case was not affected by the negative per minute, but that only after the prescription because, although they did Bishop Mill's right to the first water was not make full use of their property, their satisfied.

abstention was res merce facultatis, and Frequent litigation took place between could not affect their right. For much the parties, the most important of which more than forty years (perhaps a hundred) was before Lord Neaves in 1854.

the proprietors of Scotstoun supplied their In 1900 the pursuers (respondents) put mill with water from the dam. They and up a turbine wheel and maintained that the pursuers were using the dam together. they were entitled so to use their “ first But now it was objected that they (the water.” They also alleged that the Scots- respondents) had no title on which their toun Mill had on various occasions drawn plea of prescription could be rested. water when the dam was so low as not to The Second Division of the Court of be sufficient for their preferable uses, and Session (Lord Young dissenting), by intervarious other occasions of complaint and locutor dated January 20, 1905, recalled difference have arisen and questions as to the Lord Ordinary's interlocutor, and their relative rights have been raised, to found in terms of the declaratory conclusettle which this action was brought. sions of the action.

As to the meaning of “first water,” the Scotstoun owners admit that the Bishop The Solicitor-General for Scotland (Avon Mill owners are entitled to a certain pre- Clyde, K.C.) and W. J. Cullen, K.C. (of ference which they call “first water.” the Scottish Bar), for the appellants.But they maintain that the amount of The preferential right claimed by the first water must be determined by the respondents is limited to 1,200 cubic previous usage—that is, to the extent of feet a minute, and subject to that the 1,200 cubic feet per minute. On the appellants are entitled to 2,077 cubic feet. other hand, the Bishop Mill owners claim

In Scotland each riparian owner is the right to the water absolutely without entitled to the natural flow of the stream any restriction, unless it be only that passing his ground, and apart from they are bound to use the water for the agreement or prescription he can prevent mill. They maintain that the deed of the withdrawal of water by an ex adver 80 1738 gave them an absolute right just as proprietor. Any prescriptive right must if the dam was a rood of agricultural be restricted to the extent of the prescripland. There is no question about the tive user, which in this case does not

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