Argument.

proper

execution of the trusts. I submit, as a matter of law, that the plaintiffs can give all reasonable leases. To determine whether a lease is reasonable or not, the Court should consider the nature and location of the property and other surrounding circumstances, also the rent which can, as the property now is, be obtained, and the income which may be derived under the agreement and proposed lease, and the reasonableness or unreasonableness of the trustees in making the proposed lease in the interest of the present cestuis que trustent, as well as in that of the remaindermen. In this case the testator made similar leases of similar property, and the proposed lease is shewn to be alike advantageous to the present recipients of the income and to the future owners; it will best conduce to the proper support and maintenance of the beneficiaries mentioned in the will, and will also make the estate more valuable for those who may afterwards be entitled, than if part of the estate is now taken to erect buildings; a tenant would not enter into binding covenants and pay large rents unless he secured a long term; the agreement is therefore a reasonable one and such, no doubt, as the testator contemplated; and it is not inconsistent with any provision in the will. See Sheehy v. Lord Muskerry, 1 H. L. Cas. 576. A trustee who has the management of property may grant any reasonable lease unless expressly or impliedly restrained: Underhill's Law of Trusts and Trustees, 3rd ed. p. 308; Hill on Trustees, 482; In re Cross, 27 Beav. 592. Trustees having a general power of superintendence and management, and a duty to repair, will be allowed sums expended in erecting and repairing buildings: Lewin on Trusts, 8th ed., pp. 576 and 595; Bowes v. Strathmore, 8 Jur. 92. It must therefore be within the powers of the plaintiffs to make a reasonable lease providing for the erection of buildings; and under the circumstances this is a reasonable lease Hill on Trustees, p. 428; In re Leslie's Settlement Trusts, 2 Ch. D. 185; Greason v. Keteltas, 17 N. Y. 491. Morson, for the defendant. We have no Settled Estates Act such as exists in England. Before that Act in England,

trustees could not give a building lease without express Argument. power or the consent of the cestui que trust: Emden's Law of Building, 2nd ed., p.7, and cases there collected. At least the power was so doubtful that the lease would not be forced upon an unwilling lessee. The Court (independently of the statute) would not authorize trustees for infants to grant a mining lease although the lease would be for the benefit of the infants: Wood v. Patteson, 10 Beav. 541. The Court also refused to give authority to trustees to grant leases of real estate for a term not exceeding ten years: In re Shaw's Trusts, L. R. 12 Eq. 124. Express power is usually given to trustees where it is intended that they shall make leases binding on the remaindermen : Sheehy v. Lord Muskerry, 1 H. L. Cas. 576; Mostyn v. Lancaster, 23 Ch. D. 583. By this will power to sell is expressly given, and therefore a power to lease should not be implied: Evans v. Jackson, 8 Sim. 217. Express power must be given to trustees to enable them to make leases for long terms: Hill v. Hill, 6 Sim. 136; Duke of Bedford v. Abercorn, 1 My. & Cr. 312; and the tenants for life cannot without express power create (by the undertaking to pay for the building at the end of the term) a burden. upon the inheritance which the remaindermen must pay off. To grant a decree for specific performance against the defendant would subject him to an action by the cestuis que trustent upon the death of the trustees.

Wilson, in reply. This is not a simple case of tenant for life and remainderman, where the former cannot for his own benefit incumber the latter's estate. Here the trustees have sole control during their lifetime of the interests both of the present beneficiaries and the future owners. The plaintiffs under their express powers can deprive any child or cestui que trust of all interest in remainder it is therefore not unreasonable that the trustees should have the lesser power of charging a portion of the property with the payment for buildings, when without the buildings the property would be practically useless to produce an income for the support and maintenance of the 17-VOL. XIX, O.R.

Argument.

children. The American more than the English cases are
applicable to the circumstances of a new country, but even
the English decisions are not contrary to the plaintiffs'
contention. I refer particularly to Greason v. Keteltas, 17
N. Y. 491, already cited, where the general power of manage-
ment given to trustees was held to authorize a lease by them
for twenty-one years, with a covenant to renew or to pay for
buildings to be erected by the lessee such sum as two
sworn appraisers might then fix; and to the language of
Pratt, J., at p. 501: "Indeed, it seems to me, if the
trustees had allowed the property
to have remained
vacant and unproductive, subject annually to the enormous
taxes,
they might well have been chargeable with
gross neglect of the duties which they had assumed in
accepting the trust. They would have been more culpable
than the unprofitable servant, who hid the talent entrusted
to him in a napkin, for in that case no expense would be
incurred in its preservation." In Naylor v. Arnitt, 1
Russ. & My. 501, it was held that a trustee to manage and
apply the rents of an estate might make a lease for ten
years, and that case was followed in Fitzpatrick v. War-
ing, 11 L. R. Ir. 35 in which it was said, at p. 53, (dis-
tinguishing Wood v. Patteson and In re Shaw's Trusts)
that a trustee without express power might make a yearly
or other reasonable letting of tenantable land. The Lord
Chancellor in Attorney-General v. Owen, 10 Ves. at p. 560,
shews that the power of a trustee (apart from his express
authority) depends upon the reasonableness of the lease,
and says that the ordinary husbandry lease is for twenty-
one years, and building leases are sometimes made for
sixty or ninety years, at a rent increasing from time to
time. I therefore submit that the plaintiffs have ample
power to make such a reasonable lease as that in question,
and the plaintiffs are entitled to have the lease executed
and a judgment for specific performance: Robertson v.
Patterson, 10 O. R. 267; Walsh v. Lonsdale, 21 Ch. D. 9,
per Jessel, M. R.

Judgment was given at the conclusion of the argument. Judgment.

ROSE, J.:

Held that power to manage the testator's property necessarily arose from the vesting of the legal estate in the trustees with directions to apply the proceeds or income therefrom as is in the will provided; that for the proper management of the estate it was necessary to make reasonable leases, and the authority to do so must be implied, particularly as such authority was not inconsistent with any provision in the will; that in ascertaining what was reasonable, a reference to the circumstances of each case was indispensable; that the terms of the agreement and lease in question were under the circumstances of this case, reasonable; that the trustees (the plaintiffs) had power to make such an agreement and lease, and in so doing to bind the trust estate; and that the defendant also was bound thereby, and should specifically perform the agreement.

The judgment of the Court as settled was as follows:

1. It is declared and adjudged that the plaintiffs as trustees have the right and power under the will in the pleadings set out to make, execute, and carry out the agreement in the pleadings mentioned and set forth, and the lease thereby agreed to be made; and that said agreement is valid and binding upon the parties hereto and the estate held and represented by the plaintiffs.

2. It is further declared and adjudged that the plaintiffs are entitled to specific performance by the defendant of the said agreement, and the defendant is hereby ordered and adjudged to specifically perform the same, and to execute and deliver to the plaintiffs forthwith the lease referred to in the statement of claim and tendered by the plaintiffs to the defendant.

3. And it is further ordered and adjudged that the defendant do pay to the plaintiffs their costs of and incidental to this action forthwith after the taxation thereof.

Rose, J.

Statement.

COMMON PLEAS DIVISION.

MASON V. THE SOUTH NORFOLK RAILWAY COMPANY.

Damages-Agreement for sale of land-Obstruction to land by railway company-Rights of vendor and purchaser as to damages.

The plaintiff was in possession of certain lands under an oral agreement of purchase at $450, payable in bricks deliverable as demanded, of which $100 worth had been demanded and delivered. The defendants, without making any compensation or taking any steps under the statute therefor, built their railway in front of the land so as to interfere with the plaintiff's right of access, whereupon this action was brought, and damages recovered by the plaintiff he being treated as entitled to the whole estate in the land and the injury permanent, reducing the value

of the land.

Held that the company were trespassers, and could not justify the acts
complained of under the statute that substantial damages, on proof of
them, were recoverable for the disturbance of the possession; but in a
first action only nominal damages for the injury to the reversion.
Held therefore that the damages here were not properly assessed, and a
new trial was directed.

Semble that the damages for injury to the reversion belonged to the
vendor; and leave was given to add him as a party plaintiff.

The position of a vendee un ler a contract for sale of land considered.

THIS was an action tried before STREET, J., and a jury, at Simcoe, at the Fall Assizes of 1889.

The action was for consequential damages occasioned by the defendant company building its road in front of the premises occupied by the plaintiff, and interfering with the way of access thereto.

The jury assessed the damages at $175, evidently treating the plaintiff as entitled to the whole estate in the land, and the injury as permanent, reducing the value of the land.

A motion was made to the Divisional Court to set aside the judgment entered for the plaintiff, and to enter judgment for the defendants.

In Michaelmas Sittings, 1889, E. D. Armour, supported the motion.

Robb, contra.

The authorities cited sufficiently appear from the judg

ment.