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HUNTLY (MARCHIONESS) v. GASKELL, H.L. when addressing Deeside people—as his hausted by the Scottish judgments, and true home, and the place where he felt at the only conclusion is that the appeal home. But it is a fallacy to regard this ought to be dismissed. as an election of one home in substitu

Appeal dismissed. tion for another. A great many people who have a house in town and a house in the country have two homes—they speak

Agents — L. Weatherley, agent for Alex.

Morison & Co., W.S., Edinburgh, for appelof them as such, each is the home when

lant; H. G. Church, agent for J. & A. F. the household gods are there ; and the Adam, W.S., Edinburgh, for respondents. country house, being the place of recreation, is generally the object of the more

[Reported by J. Eyre Thompson, Esq.,

Barrister-at-Lan. exuberant expressions of attachment.

But, speaking of the present case, it seems to me that this attempt to turn a strenuous English banker and great landed proprietor into a Scotchman is, on

1905. HAWTHORN CORPORATION the face of the broad facts, hopeless. The good sense as well as the law of the July 18, 19.

Nov. 7.

KANNULUIK.* matter were, as has been mentioned by my noble and learned friend on the wool- VictoriaLocal Government-Sewersack, expressed by Mr. Wood in answer Insufficiency of Drainage. to what clearly was the alarmed enquiry

A local authority which pours offensive of Sir William, “ Am I a domiciled Scot? “No; your domicil of origin is English,

matter into a receptacle or channel inAlthough you have a residence in Scot- sufficient for the purpose, and thereby land, you have not abandoned your

causes damage to private property, is guilty English domicil.” And in Sir William's

of negligence, and liable in damages to the

owner of such property; and it is no own considered descriptions of himself for books of reference the true perspective of defence that the system was sufficient at the his English and Scottish connections is

time of its construction. restored. I think it wholly unnecessary once

Appeal from a decision of the Supreme

Court of Victoria affirming a judgment of more to examine the authorities on the

Williams, J. The facts are stated in the law of domicil, as the facts of this case do not come near any question of delicacy. judgment. The case is reported 29 Vict.

L. R. 308. I have only to add an expression of regret that the parties should have brought on

Danckwerts, K.C., and Mark Romer, for themselves such enormous expense by

the appellants.—There has been no breach exploring and presenting minute and

of statutory duty, and, even if there be a complicated details when the broader

nuisance, it was not created by the appelfacts are conclusive.

lants. In these circumstances no action

will lie against the corporation-Glossop LORD LINDLEY.-I am entirely of the

v. Heston and Isleworth Local Board same opinion I have listened with

There has been no excess of great attention and great pleasure to the (1879)." extremely able arguments addressed to

powers or abuse of authority, and conseus by Mr. Eve, but the conclusion which quently no liability; the corporation have I have arrived at, after carefully con

only allowed the user of the drain

Att.-Gen. v. Dorking Union [1882].2 sidering the whole of the evidence to the

There is therefore no remedy open to the best of my ability, is that the only intention which is consistent with the whole appellantsEast Fremantle Corporation of this gentleman's conduct, and with

* Coram, Lord Macnaghten, Lord Davey,

Lord James of Hereford, and Sir Arthur what he said, is an intention not to

Wilson. abandon his English domicil.

I quite (1) 49 J. J. Ch. 89 ; 12 Ch. D. 102. agree.

I think the case is quite ex- (2) 51 L. J. Ch. 585; 20 Ch. D. 595.



Annois [1901],3 in which Sutton LORD MACNAGHTEN delivered the judg-

Clarke (1815] was approved. In ment of their Lordships : the view most favourable to the re- The conduit in the city of Hawthorn, spondent the corporation is not liable which is now known as the “main drain for other drains for which they are not

and for the most part is an open sewer, responsible--Raleigh Corporation v. Wil- was formerly a natural watercourse reliams (1893]." At most the appellants ceiving and carrying off nothing but the can only be charged with nonfeasance, surplus storm-water of a hilly district about and not with misfeasance, and it is well five hundred acres in extent. This dissettled that a public body can only be trict or drainage area, as it may be termed, made liable for the latter and not for the has been divided between the municipaliformer Cowley v. Newmarket Local ties of Hawthorn, Kew, and Boroondara. Board (1892] and Sydney Municipal Hawthorn has about half. The rest is Council v. Bourke (1895].?

comprised within the limits of the other [They also cited Brierley Hill Local two municipalities in nearly equal proBoard v. Pearsall (1884), Gibraltar Sani- portions. Kew on the north, and Boroontary Commissioners v. Orfila (1890],' and dara on the north-east and east, are at Carslake v. Caulfield Shire (1891).10] rather a higher level, and naturally drain

Hugo Young, K.C., and Oliver Lodges, through Hawthorn. for respondent.—There are abundant in- In 1888 the plaintiff Jaan Kannuluik stances of positive acts of misfeasance in purchased a plot of ground abutting on the the erection and permission of drains far watercourse at its lowest point in Hawbeyond the capacity of the main drain. thorn just where it turns to the south There is no statutory or other protection with a sharp bend after passing under for such acts, and the case is covered by Auburn Road. From a contour plan of Metropolitan Asylums District v. Hiú the drainage area it appears that the fall (1881] "; see also Canadian - Pacific to this point is not less than 140 feet. Railway v. Parke [1899].12 There was In 1889 the municipal authorities of a duty on the corporation to see that Hawthorn, under their statutory powers, injury was not done to private property took over the care and management of by these drains-Geddis v. Bann Reser- this watercourse and made it into a public voir Proprietors (1878] 13 and Whitehouse v. drain. They spent a good deal of money Fellowes (1861].14 Compensation for both upon it in the way of improvement at the present and prospective damage is intervals down to the year 1896. The due to the respondentsColac, President work was done in sections. The section &c. v. Summerfield (1893).15

adjoining Kannuluik's property [They also referred to Curry v. Benulla pitched and finished in 1889. “A number Shire (1895] 16 and Southwark and Vaux- of subsidiary channels have since been hall Water Co. v. Wandsworth District made by the municipal authorities of Board (1898)."']

Hawthorn, or with their permission, for Danckwerts, K.C., in reply.

the purpose of running off the stormwater and sewage into the main drain.

The result is that the water and sewage (3) 71 L. J. P.C. 39 ; [1902] A.C. 213. (4) 6 Taunt. 29.

from the upper parts of Hawthorn and (5) 63 L. J. P.C. 1; [1893] A.C. 540. from the parts of Kew and Boroondara (6) 62 L. J. Q.B. 65 ; [1892] A.C. 345. which drain through Hawthorn are con(7) 64 L. J. P.O. 140; (1895] A.C. 433.

centrated and poured into the main drain (8) 54 L. J. Q.B. 25; 9 App. Cas. 595.

with great violence. When there is heavy (9) 59 L. J. P.C. 95 ; 15 App. Cas. 400. (10) 17 Vict. L. R. 560.

rain the rush of water is so great and so (11) 50 L. J. Q.B. 353; 6 App. Cas. 193. sudden that the channel becomes choked. (12) 68 L. J. P.C. 89; [1899] A.C. 535. There is an overflow, and when the flood (13) 3 App. Cas. 430.

subsides the low-lying lands, and Mr. (14) 30 L. J. C.P. 305 ; 10 C. B. (N.S.) 765.

Kannuluik's premises in particular, the (15) 62 L. J. P.C. 64; [1893] A.C. 187. (16) 21 Vict. L. R. 159.

ground-floor of his dwelling-house and (17) 67 L. J. Ch. 657; [1898] 2 Ch. 603, the surface of his garden are covered


HAWTHORN CORPORATION v. KANNULUIK, with an offensive mixture of


and Their Lordships will humbly advise his slime.

Majesty that the appeal ought to be disAfter several ineffectual complaints Mr. missed, Kannuluik brought this action against the The appellants will pay the costs of the municipality of Hawthorn. The case was appeal. tried by Mr. Justice Williams without a jury. It occupied no less than seven days.

Solicitors-Roy & Cartwright, for appellants ; The learned Judge found in favour of the

Lee, Ockerby & Everington, for respondent, plaintiff, and assessed the damages at 2501.

[Reported by J. Eyre Thompson, Esq., On appeal, the Full Court affirmed the

Barrister-at-Law. judgment of Mr. Justice Williams, but not altogether upon the same grounds. The learned Judge who tried the case relied principally, though not entirely, on faulty construction in 1889. In the Full Court, where the leading judgment was

1905. given by Mr. Justice Holroyd, the decision


July 7. turned rather on the subsequent acts and

Nov. 14.

V. CITY OF MONTREAL.* conduct of the municipal authorities.

Their Lordships agree with Mr. Justice Canada Street Railway Contract Holroyd. The case seems to be a very between City and Railway-Percentage of simple one. The only question is, Have Earnings Due to CityOutside Munithe municipal authorities acted negli- cipalitiesCivil Code of Lower Canada, gently so as to do unnecessary damage to art. 1,018. Mr. Kannuluik? As for negligence, it is difficult to

By article 1,018 of the Civil Code of

Lower Canada, All the clauses of a conimagine a more conspicuous example of negligence than is shewn by repeatedly giving to each the meaning derived from

tract are interpreted the one by the other, pouring offensive stuff into a receptacle or

the entire Act." channel proved over and over again to be insufficient to hold it and

By a contract between a railway compass

it on. The municipal authorities might just as well

pany and the City of Montreal the company pour this stuff directly on the plaintiffs of the gross earnings of its said rail

was to pay to the city a certain percentage land. The damage to the plaintiff cannot be denied. It is nothing to the purpose,

way"; it was to establish lines of railway even if it be true, to

in the city,in the streets thereafter that the property

say in the plaintiffs hands and in the hands mentioned, and in such other streets as

should be determined by the city council ; of his predecessors in title was often flooded before the municipal authorities

in the case of annexation of outside muniturned the watercourse into a public cipalities the system was to be extended drain. Nor is it enough to prove that through such annexed territory. It was the work done in 1889 was sufficient at

also provided that the company was every the time. It is insufficient now. It has quarter to render to the city a true and been insufficient for some time past. The just account .; of the whole of their mischief grows as building increases, as

gross earningsand to allow inspection new roads are made, new channels formed, of the books and accounts by a person and more and more of the surface becomes

appointed by the city council. Outside

municipalities had independent powers, impervious to rainfall. It is not sug

and with them in case of extension separate gested that there is any real difficulty in remedying the mischief. Indeed, if the

arrangements had to be made :-Held, that evidence of the surveyors called on behalf

the city was only entitled to a percentage of the plaintiff may be trusted, the of earnings within the city, and that its matter can be set right at a very triling * Coran, Lord Davey, Lord James of Herecost.

ford, Lord Robertson, and Sir Andrew Scoble. VOL. 75.-P.C.



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MONTREAL STREET RAILWAY v. CITY OF MONTREAL. general power of inspection was only given ings as arise from the operation of its to enable a proper adjustment of earnings. railway within the linits of the city.

The contract was authorised by the Appeal by special leave from a decree city authorities by “ By-law No. 210, of the Supreme Court of Canada dated concerning the establishment and operaMarch 25, 1904,

tion of an Electric Passenger Railway in The question was whether on the con- the City of Montreal by the Montreal struction of a contract between the ap- Street Railway Company,” which was pellants and the respondents the latter accepted by the company on December 28, were entitled to a percentage of the gross 1892. The contract itself was executed earnings of the whole of the appellants' by the parties on March 8, 1893. At railway system or only of such part thereof the time of its execution the company as was within the limits of the city. The had in operation a railway worked by facts are stated in the judgment of the horse traction, situate in the city, with Board. The case below is reported short extensions into some of the adjacent 34 Can. S.C.R. 459.


The article of the contract relating to C. s. Campbell, K.C. (of the Colonial the payment of percentages is article

36, Bar), and Tyrrell T. Paine, for the appel- and is in these terms: “The Company lants.-If the contract be construed as a shall pay to the City annually, from whole it is clear that the percentage can the 1st of September 1892, upon the total only be claimed on the earnings in the amount of its gross earnings arising from city; the city council have defined the the whole operation of its said railway, routes and are to define future routes; either with cars propelled by electricity the line is also to be extended into any or with cars drawn by horses,” certain newly annexed territory of the city. If specified percentages. The reason for the railway were extended into outside including both methods of traction or municipalities, separate contracts would propulsion, by horses or by electricity, is have to be made with them. The power stated to be that the change from horse of inspection of the whole accounts of the power to electric power was necessarily to appellants is only to enable an apportion- be gradual, and might, under article 15 ment of earnings within and earnings of the contract, possibly not be completed outside the city.

until September 1, 1895. Atwater, K.C., and Ethier, K.C. (both The question which their Lordships of the Colonial Bar).-The language of have to determine is what is meant by article 36 is conclusive and unambiguous. the phrase, “its said railway," and upon The percentage is “upon the total amount this point the Courts in Canada have of its gross earnings arising from the arrived at different conclusions. Mr. whole operation of its said railway." This Justice Davidson, who heard the case in construction is fortified by the power of the Superior Court, in the first instance, inspection given to the city of all books, held that the percentage was limited to accounts, &c., belonging to the company. the earnings of the railway in the city, C.S. Campbell, K.C., replied.

and, upon appeal to the Court of King's

Bench, his decision was affirmed by a SIR ANDREW SCOBLE delivered the judg- majority of three to two. ment of their Lordships :

appeal to the Supreme Court of Canada, The main question in this appeal is the judgment of the Court of King's whether the city of Montreal is entitled, Bench was reversed by a similar majority under its contract with the Montreal of three to two. There were thus six Street Railway Co., to claim percentages Judges in favour of the one view, and five upon the gross earnings arising from the of a contrary opinion. Under these cirwhole operation of its railway, whether cumstances their Lordships had no hesiwithin or without the limits of the city tation in humbly advising his Majesty to of Montreal, or whether such percentages allow special leave to appeal to the King are payable only in respect of such earn- in Council.

But upon

MONTREAL STREET RAILWAY v. CITY OF MONTREAL. The law applicable to the construction to furnish a similar service as is furnished of this contract is thus expressed in to the City.” No such annexation, their article 1,018 of the Civil Code of Lower Lordships are informed, has taken place, Canada : “All the clauses of a contract but the insertion of this provision is a are interpreted the one by the other, clear indication that the city considered giving to each the meaning derived from that the territories of outside municipalithe entire Act.” Regarded in this light, ties were not included in the scope of the the contract is for the establishment and contract. operation of an electric passenger railway Looking at the contract as a whole, it in the city of Montreal. Article 1 pro- appears to their Lordships that the lines vides that “the Montreal Street Railway of railway contemplated by it were, as Company shall establish and operate, defined in article 1, "lines of railway for subject to the conditions hereinafter men- the conveyance of passengers in the City," tioned, lines of railway for the conveyance and that the expressions “ the said railof passengers in the City by means of cars way," " the said railway tracks," and " its propelled by electricity, in the streets said railway," wherever they occur in the hereinafter mentioned, and in all other contract, must be taken to refer to the streets which may hereafter be determined lines within the limits of the city. The by the Council of the City of Montreal.” percentages, therefore, claimable by the Article 12 provides that “the tracé of city are only upon the gross earnings routes in the different streets of the City, arising from the whole operation of the as well as the establishment and transfer lines within those limits. connections, shall be made and shall re- It is true, as pointed out by some of the main under the control of the City learned Judges in the Courts below, that Council. Until further orders the cars article 37 of the contract requires the shall run in the streets mentioned in the company to "render quarterly a true and schedule of routes herein-below indicated.” just account and statement in writing of This schedule is given in article 46, and the whole of their gross earnings, and enumerates nineteen routes, all of which allow proper inspection of all books, are in the city, and many of which pur- accounts, returns, and vouchers for the port to run " from the eastern City purpose of checking and verifying such limits" to "the western limits of the accounts by the City Treasurer, City City of Montreal.” As regards the privi- Auditor, or other accountant appointed leges conferred on the company with by the City Council”; and it was held by regard to the use of electric power in the Mr. Justice Girouard that this clause streets, the right to open the streets, and clearly intended to give an indisso forth, the city could only deal with putable effect to clause 36, and to permit the streets within its jurisdiction; nor the City to collect without trouble or had it power to regulate times and fares question its proportion of the gross earnbeyond its own limits. Every outside ings of the railway.” But their Lordmunicipality, into whose area the com- ships are of opinion that clauses 36 and 37 pany might desire to extend its opera- must be read together, and, when so read, tions, had independent powers in these lead to no such conclusion. Some of the respects, and with them the company had earnings of the company arose from traffic to make separate arrangements. Indeed, which began and ended within the limits the only reference in the contract to of the city ; but another, and possibly a areas outside the limits of the city is con- greater, was derived from traffic which tained in article 44, which provides that originated in the city and terminated in " in the case of annexation by the City of the suburbs, or originated in the suburbs any of the outside municipalities, the

and terminated in the city. For all Company shall be obliged, within three tratfic attributable to the operation of the months after being ordered by the railway in the city, wherever it originated Council, to extend their system through or terminated, the company was accountthat new annexed portion of territory not

able. The accounts of the whole earnings already provided with electric cars, and had therefore to be submitted and


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