By the evidence it appeared that the plaintiffs' and defendant's predecessors in title held both properties in common, and by deed of partition, bearing date the 7th December, 1849, the predecessor in title of the defendant became entitled in severalty to the east forty feet of the said lot, and the predecessor in title of the plaintiffs to that portion of the lot lying west of the said forty feet of the defendant. At the time of the partition there were wooden buildings covering the land, the land of the defendant being occupied by his father, Joseph D. Clement, as a tavern, supposed to be forty feet in front on Colborne street, and coming up to the store of John Lovejoy, the father of the female plaintiff. These buildings were afterwards burned down, and the said Joseph D. Clement, in April, 1853, leased twenty-four feet next to Market street to Messrs. Cartan & Dee, and sixteen feet adjoining the plaintiffs' land to one Samuel Morphy for twenty years. There was a stone foundation under the wooden building of Lovejoy.

By the terms of these leases Joseph D. Clement was to have the right of buying the buildings erected by his tenants at the end of the term by paying two-thirds of the value of the walls. Carton and Dee and Morphy put up brick buildings.

There was conflicting evidence as to whether Morphy used the original foundation, or built a new foundation wall; but, whichever way that may have been, according to the evidence of the surveyor called by the plaintiffs, and the surveyor called by the defendants, the west face of the defendant's wall was within the forty feet owned by the defendant; and this wall was built sometime before there was a building put up on the plaintiffs' land. The foundation or cellar wall projected west of the defendant's wall about seven inches, and the joists of the plaintiffs' building in the cellar rested on this ledge. The joists of the floors above were let into the defendant's wall, the defendant's premises being then in the occupation of the lessee Morphy.

In 1860 the buildings were again burned down, and Morphy built again on the same foundation.

In May, 1860, John Lovejoy having died in 1858, a deed of partition was made and executed by and between his heirs.

By this deed the female plaintiff became entitled to the land adjoining the defendant by the following description: "a part of town lots seventeen, eighteen, and nineteen, commencing at a certain point on the north side of Colborne street, and west side of Market street, at the distance of forty feet west of the south-east angle of lot No. 19 on the north side of Colborne street," and giving metes and bounds including the land of the plaintiffs in respect of which this action was brought.

There was conflicting evidence of the nature of the damage done to the plaintiffs' premises by the alleged wrongful flow of water from the defendant's premises; but it is not necessary to refer thereto as the finding of damages by the jury in favor of the plaintiffs to the amount of $35 was not moved against.

The learned Judge's charge, as far as material, was as follows: "If you are of opinion in the first place there was an agreement and you may come to that conclusion if you think proper because of the long user it may be presumed that there was a binding agreement between the parties. If they continued to stand in the way for twenty years or more without any dispute with regard to it, it may be presumed, and the law generally directs that it is to be presumed, that there was an agreement at the foundation.

And then again, although it is objected that if there was such an agreement it was on the part of the lessee whose term was for twenty years only, and he could only make a binding bargain during that time.

I am not disposed to agree with the learned counsel in that respect, because in the first place his landlord was there, and he saw or may be presumed to have seen what was done. His agreement with his tenant was at the

conclusion of the lease he would take the improvements: that the value should be ascertained; and that he would pay two-thirds of the value. He said himself of the original cost when he was in the box; but I thought afterwards. it was rather shifted from that to the value at the conclusion or determination of the lease.

It appears, although not directly proven, it is admitted by the defence, and partly drawn out of Mr. Ford, that there was an arbitration, and that there was a settlement on those terms. I think that as a matter of law that implies, where no objection was made, that, whatever arrangement was made with regard to the party wall, that when the landlord took that from the tenant under these terms, that he accepted it under whatever arrangement he had made with the adjoining party. It seems to me that is the only reasonable way in which it can be looked at; and I am strongly disposed to think that is the legal effect of the whole. Having told you that, you will accept that from me, and you need not trouble yourselves on that point. I take the responsibility of telling you I think, if he made an arrangemnt with the adjoining party in that way it is binding; and you may, I think, infer the arrangement from the long user without objection having been made. Then if that is the case you are to determine upon the evidence upon which side of the line that party wall was built up."

Mr. Robertson, Q. C., for the defendant, objected to this direction: "The wall in question was built on and is on the defendant. The fact of the wall being on our land is not a disputed point. I submit that you should tell the jury, that if they find that the wall is on the defendant's land that there was nothing shewn to make it a party wall."

The learned Judge-" I will not tell them that, because I have told them to the contrary. I have told them they may presume from the long user, that there was an agreement, and that the defendant, or Mr. Ford, was bound by that."

Mr. Robertson-" What I was going to say-your Lordship should tell the jury if they believe the evidence of the surveyors, Jones and Fair, and there being nothing to the contrary, the wall was built and is on the defendant's land, and there is no evidence offered to shew that there was any agreement to make this a party wall, and that it was consequently not a party wall; in that case they should find for the defendant. I object to your Lordship telling the jury that there has been any such user of the wall shewn as entitled the plaintiffs to claim it as a party wall."

The jury found that the wall erected by Morphy was a party wall. And the learned Judge made, in addition to directing judgment to be entered for the plaintiffs for $35 damages, the following decree or order: "I also declare the said wall in the pleadings mentioned is a party wall as between the plaintiffs and defendant, and their said buildings; and I order that the defendant, his workman, servants and agents be, and are hereby restrained from preventing the use of the same by the plaintiffs, including the new part or continuation thereof upon payment by the plaintiffs of one-half the cost of the erection of such continuation or new part; and that the defendant, his workman, servants and agents be and are hereby restrained from permitting or allowing the water to drip or run from his said building, the roof, or eave-trough thereof, upon the said wall or any part thereof, and from permitting or allowing the discharge of water, snow or ice from the defendant's roof upon the said wall, or upon the plaintiff's adjoining roof; and I further order that the defendant shall pay to the plaintiffs full costs of this suit up to judgment."

The learned Judge further directed that it should be referred to the master to take an account of the cost of the new part of the wall, if the parties differed about the amount of such cost.

During Easter Sittings, May 20, 1886, Robertson, Q. C., obtained an order nisi calling on the plaintiffs to shew cause

why so much of the verdict as declared the wall in question to be a party wall should not be set aside, and a verdict entered for the defendant; or a nonsuit entered; or for a new trial, on the ground that the verdict was contrary to law and evidence, the wall in question being wholly on the lands of the defendant, and there being no evidence that it was in fact a party wall, or that it had been built by the plaintiffs or any of their predecessors in title; but, on the contrary, it appeared conclusively that the said wall had been built by a predecessor in title of the defendant, and no evidence to shew that there had been an agreement between the plaintiffs and defendant, or their respective predecessors in title; that the said wall should be a party wall; (2) and also for misdirection of the learned Judge in telling the jury that the plaintiffs, and their predecessors in title, having used the west side of the said wall into which they had inserted the ends of the joists of the building afterwards erected on the west side of said wall, for more than twenty years, constituted the wall a party wall with all the rights and privileges appertaining thereto for the benefit of the plaintiffs; (3) and also in charging the jury that the defendant was bound by whatever agreement might be entered into between the tenant of the defendant's predecessorin title, who had a lease of the defendant's land for twenty years for building privileges, the lessor to take such buildings at a percentage of their value at the expiration of the term.

During Michaelmas sittings, November 29, 1886, Robertson, Q. C., supported the order, and referred to Cubitt v. Porter, 8 B. & C. 257; Wiltshire v. Sidford, 1 M. & Ry. 404 ; Hutchinson v. Mains, Al. & Nap. 155; Matts v. Hawkins, 5 Taunt. 20; Taylor v. Stendall, 7 Q. B. 634; Murly v. McDermott, 8 Ad. & E. 138; Stedman v. Smith, 8 E. & B. 1; Wigford v. Gill, 1 Cro. Eliz. 269; Emden's Law of Buildings, 2nd ed., 447: Weston v. Arnold, L. R. 8 Ch. 1084; Knight v. Pursell, 11 Ch. D. 412; Watson v. Gray, 14 Ch. D. 192.

Hardy, Q. C., contra, referred to Sproule v. Stratford, 10. R. 335; Backus v. Smith, 5 A. R. 341 ; Cubitt v. Por16-VOL. XIII. O.R.