Manitoba. Nova Scotia. Canada. Nova Scotia. Ontario. JUSTIFICATION OF TRESPASS (a). A trespass may be justified upon any valid ground, and that although some invalid reason may have been given at the time of trespass (b). RIGHT OF WAY: USER IN EXCESS (c). The removal and tearing down of a gate on the property is an excess in the exercise of a right of way (d). The mere user of a right of way (in the absence of any legal right) will not entitle a plaintiff to damages against a defendant for obstructing the way (e). PUBLIC WAY (ƒ). For consideration of the doctrine that an abutting owner owns ad medium filum viæ, see O'Connor v. Nova Scotia Telephone Co. (g). EASEMENTS (h). The grant of a right to maintain a water tank on the plaintiff's premises will not justify the maintenance of a considerably larger tank, thus imposing a greater burden on the land (i). LEAVE AND LICENCE (k). The licence must have been given by a person authorised to give it (l), and must be co-extensive with the trespass (m), and the defendant must have strictly complied with the conditions of the licence (n). A document not under seal, and not sufficient to create an easement, may be sufficient as a licence to prevent the plaintiff recovering damages (o). breaking and entering plaintiff's close and debauching his daughter cannot set up the leave and licence of the daughter: Ross v. Merritt, 2 U. C. R. 421. (m) Thompson v. Van Buskirk, 14 U. C. R. 388. (n) Lunn v. Turner, 4 U. C. R. 282. (0) Robinson v. Fetterly, 8 U. C. R. 340. Cf. Brougham v. Balfour, 3 U. C. C. P. 297, must be at least a written agreement; Burnside v. Marcus, 17 U. C. C. P. 430, doubtful lease: Canada Co. v. Pettes, 9 U. C. R. 669, effect of letter by corporation; Nicol v. Tackaberry, 10 Gr. 109, oral agreement when enforceable. For the pleading of leave and licence and evidence thereof, Ontario. see cases below (a). REVOCABLE LICENCE (b). A defendant having gone in under a revocable licence cannot Nova set up expropriatory powers not originally acted on (c). LICENCE WHEN NOT ASSIGNABLE (d). Scotia. It does not follow that because a licence is coupled with Ontario. an interest it becomes assignable; the personal quality of the grantee may be material (e). IRREVOCABLE LICENCE (ƒ). Where the sheriff had seized goods under fi. fa., and allowed Ontario. them to remain on the defendant's premises on the understanding that they should be sold there on a future day if the money were not paid before: Held, that the licence thus given to enter on the premises and sell the goods accordingly could not be revoked by the defendant (g). WRONGFUL WORKING OF MINERALS (h). The measure of damages for ore negligently abstracted by British trespass workings is the same as if the trespass is wilful, and Columbia. only the cost of bringing the ore to bank will be allowed. The value of the ore so abstracted is value to the owner at the time of the taking (i). But where the abstraction has been done by a predecessor in title, and left lying on a dump, the value is its market value as it lies, and not before abstraction (k). (a) Haggarty v. Pryor, 9 N. S. R. (3 N. S. D.) 358, should be pleaded if evidence given of leave and licence; Slee v. Graham, fraud in obtaining should be pleaded; Crosswaite v. Gage, 32 U. C. R. 196, survey; Marrs v. Davidson, 26 U. C. R. 641, trespass done partly after revocation of licence; Walter v. Dexter, 34 U. C. R. 426, licence omitted from conveyance ; Dawson v. Murray, 29 U. C. R. 464, entry under fence-viewers' award treated as under licence; Brown v. Street, 1 U. C. R. 124, long possession of an easement proof of leave and licence. Ontario. Alberta and STATUTES OF LIMITATION (a). Each province has a Statute of Limitations as to realty, generally adapted from the Imperial legislation. The decisions on these statutes are too numerous for the limits of this work. R. S. O. 1897, c. 133 (Real Property Limitation Act) (b). C. O. N. W. T. 1898, c. 31, s. 2: The Real Property Limitation Saskatche- Act, 1874 (Imperial), declared in force. wan. British R. S. B. C. 1897, c. 123 (Limitation of Action), Part II., as to real property. R. S. M. 1902, c. 100 (The Real Property Limitation Act). C. S. N. B. 1903, c. 139 (Limitation of Actions in respect to Brunswick. Real Property). Nova Ontario. Ontario. Ontario. Ontario. R. S. N. S. 1900, c. 167 (The Statute of Limitations). WASTE BY PERSON IN POSSESSION (c): Generally a mortgagor in possession is not liable for waste (d) until after foreclosure (e). WASTE ALTERATION TO TENEMENT (ƒ). WASTE THE WORKING OF MINES UNOPENED (h). WASTE CUTTING TIMBER (4). All the niceties of the ancient learning as to waste are not to be transferred without discrimination to such a country as this province (). Thus where the timber actually growing was not (a) P. 363, supra. (b) The Ontario decisions on the Statute of Limitations are too numerous to be inserted here. A good many of them have been collected and examined in Hunter's Real Property Statutes (1894). (c) P. 376, supra. (d) Wafer v. Taylor, 9 U. C. R. 609. 142; see also Scott v. Vosburg, 8 P. R. (g) 11 O. R. 1 (1886). (i) Lancey v. Johnston, 29 Gr. 67. (1) Hixon v. Reaveley, 9 0. L. R. 6 (1905). suitable for the needed repairs, it was held not to be waste to sell Ontario. just sufficient timber to recoup the expense of repairs provided the timber was cut with due regard to the situation of the bush and the cleared land (a). Cutting down timber on wild land for the sole purpose of bringing it into cultivation is not waste (b). A tenant in dower is entitled to cut down trees for fuel, Nova fencing, improvement and cultivation, but not to sell the wood Scotia. for other and different purposes to the permanent injury of the reversioners; and for such injury is responsible to the reversioners (c). WASTE REMOVAL OF BUILDING (d). The right to restrain waste involved in the removal by a Manitoba. tenant of a building forming part of the freehold is clear (e). PERMISSIVE WASTE (f): TENANT FOR LIFE (g). No action will lie for permissive waste against a tenant for Ontario. life (h). Accidental fire is permissive waste for which a lessee is not liable in the absence of an express covenant to repair (i). Allowing thistles or other noxious weeds to grow on the land is not permissive waste, but ill husbandry (k). (a) Hixon v. Reaveley, 9 O. L. R. 6 (1905). (b) Drake v. Wigle, 24 U. C. C. P. 405 (1874), discussing Weller v. Burnham, 11 U. C. R. 90. See also Tayler v. Tayler, 5 0. S. 501; Saunders v. Breakie, 5 O. R. 603; Munsie v. Lindsay, 10 P. R. 173. Cf. Campbell v. Shields, 44 U. C. R. 449, tapping for maple sugar; Lewis v. Godson, 15 O. R. 252, removing stones. (c) Titus v. Sulis, 9 N. S. R. (3 N. S. D.) 497. Private nuisance defined. NUISANCES are of two kinds, private and public. A private nuisance has been defined to be "anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another, and not amounting to a trespass" (a). It includes all kinds of damage arising from water (other than that caused in certain cases by mine water), filth, fire, gases, or other noxious things being caused or permitted to pass from the defendant's land on to the plaintiff's (b), all damage arising from improper use of a natural stream, damage arising from the excavation of the defendant's land, and the consequent withdrawal of the support to which the plaintiff's land is entitled, obstructions of easements of all kinds, and injuries to rights of profit à prendre. But to amount to a nuisance the degree of hurt or annoyance must in each case be substantial. Thus where the plaintiff complained that the trees and other vegetation on his land were damaged by the escape of fumes from the defendant's smelting works, the jury were held to have been rightly directed "that the law did not regard trifling inconveniences; that everything must be looked at from a reasonable point of view; and therefore in an action for nuisance to property, arising from noxious vapours, the injury, to be actionable, must be such as visibly to (a) Stephen's Com. 1st Ed. Vol. 3, p. 499. (b) As to the duty to prevent damage of this kind, see below, pp. 425, sqq. 2 1 1 1 |