There remains the question of the Plaintiff's conclusions seeking the demolition of Defendant's wall on the ground that the footing course extends more than nine inches upon the Plaintiff's land. I approach this question with much hesitation, as it has been on two occasions under consideration by the Court of Appeal. and opinions were expressed not in absolute harmony with the conclusions which I have formed. The Court of Appeals did not, however, lay down any certain rule to guide in all cases, but only that except in cases of necessity, the proprietor first building a wall destined to become mitoyen, had no right to extend his footing course more than nine inches on his neighbor's land.

The first case considered by our courts involving this question was Kough vs. Nolin, 5 R.J.S.C., p. 213, Tait J., where it was held, "A person who is building a common wall on the line separating his land from that of his neighbor is not entitled to take for that purpose more than nine inches of his neighbor's property either above or below the surface; and where the footing stones for the wall placed beneath the surface of the ground encroach beyond the nine inches, he will be ordered to remove the same so far as they so encroach."

This judgment was inscribed in review and was unanimously reversed, the court holding that, by the custom of the city of Montreal, as well as by its municipal bylaws, the footing course of a mitoyen wall could be placed more than nine inches over the neighbor's line, and that this did not constitute a taking of more than nine inches of the neighbor's land. The remarks of Mr. Justice Pagnuelo, rendering this judgment are reported in 5 R. J. Q. B., 206, as part of the report of the subsequent judgment in appeal, which in its turn reversed the judgment of the Court of Review and restored that of the Superior Court.

At p. 221 Lacoste, C.J., remarks:-" Quant à l'usage en Canada, je trouve un arrêt du Conseil Supérieur de Québec, du 7 juillet 1738. Une personne voulait faire bâtir un mur de trois pieds deux pouces d'épaisseur; le conseil n'obligea le voisin a fournir que neuf pouces de terrain et à contribuer à la construction du mur que dans la même proportion jusqu'à la hauteur de dix pieds. Aucun usage au contraire n'est prouvé. La preuve faite de l'usage ne s'applique qu'à la constructions des murs en général et n'a pas rapport au droit de mitoyenneté.

"Le code n'exige que neuf pouces. La servitude est de droit strict.... Le règlement de la cité No 107 n'a rapport qu'aux constructions en général et ne change ni modifie l'article 520.. ..

"A tout évènement le voisin ne serait tenu de fournir un excédant sur les neuf pouces que dans le cas de nécessité. L'intimé était tenu de prouver que l'excédant aurait été nécessaire pour la construction d'un mur de séparation ou de clôture."

Thus, in this judgment, we have the exception of necessity allowed, which leaves each case dependent upon its own proof of the existence of such necessity.

The same point was again raised in a case of Rafter vs. Burland, 15 R. J., S., C., p. 289, where the Superior Court again affirmed the right of the proprietor to extend his footing courses more than 9 inches in order to secure the solidity of the wall. This case did not seek the removal of such footing courses but it was an action of damages founded on the allegation that they had prevented the neighbor from seating his wall at depth desired.

In appeal the judgment dismissing the action was affirmed but only on the ground that damages had not been proved. The doctrine of the Court of Appeal seems then to be that, speaking generally, the right to

extend footing courses on a neighbor's land beyond nine inches does not exist, and that such a course would only be justified in case of necessity.

There is no statutory law, either in France or Canada, which regulates the thickness of house walls. That matter is entirely governed by the custom of particular localities. It is true that our article 520 does regulate the thickness of "murs de clôture" up to a height of 10 feet from the level of the ground "sur une épaisseur de dix-huit pouces chacun des voisins devant fournir neuf pouces de terrain; sauf à celui à qui cette épaisseur ne suffit pas de l'augmenter à ses frais et sur son propre terrain." This is all that is anywhere expressly enacted concerning the thickness of a common wall, and this manifestly refers to a fence wall alone. From several considerations it is clear that this article, by its very terms referring to a "mur de clôture ", cannot be extended to a house wall.

1. By this article one neighbor can compel the other to join in the construction of a fence-wall, and it has never been held that such can be done in regard to a house-wall. Indeed, the contrary has been held.

2. As servitudes are of strict law they cannot be extended beyond the terms of the act creating them, and. the terms of article 520 do not extend to house-walls.

3. Because the quality of the materials and the manner of construction of fence-walls are different from those required by the rules of art for house-walls. See Desgodets, p. 275, on this point.

By C. C., 510, there is a presumption of mitoyenneté in walls separating two buildings, yards, etc. See Marcade, 2, p. 595, in this regard.

At pages 278 and 279 Desgodets speaks of the manner of constructing the foundation of fence-walls, and of the materials of which they are to be composed, and points out that the whole is regulated by custom, and the rules of art.

It is clear then that a fence-wall, which one neighbor can compel his neighbor to join him in constructing, is quite distinct from a house-wall, and that in consequence art. 520, C. C., has no application to the latter, which is, therefore, governed by the special customs of the place. As to the custom in this city there can be no doubt, nor with regard to fence-walls referred to in art. 520. Such walls are never or scarcely ever constructed. I doubt if since the Code some 37 years, a half-dozen instances can be found. But the custom with regard to house-walls is undoubted, and provides for a foundation wall of 18 inches in thickness seated upon a footing course somewhat wider, and this custom is confirmed and made an essential rule of building by the by-law of the city relating to the matter passed on the 4th February, 1901, and numbered 260. See by-laws of the City of Montreal, 1902, p. 503.

This by-law regulates all matters concerning buildings including the thickness of foundation walls of the various classes of buildings, footing courses, etc.

This by-law was passed by the city in virtue of the provision of 62 Vict., cap. 58 (1899). Sec. 300, sub-section 44, of this statute is as follows: (under the heading of "Power to pass by-laws."

"To regulate the height, construction and materials of all buildings, chimneys, stacks and other structures, and to prevent the construction of such not of the required stability, and provide for their summary abatement, or destruction; to prescribe the depth of cellars and basements, the material and methods of construction of foundations, and foundation walls, the manner of construction, and location of drains and sewer-pipes, the thickness, materials and construction of party walls, etc.. .. to compel proprietors to submit the plans of buildings, and obtain a certificate from the building inspector before commencing, to phohibit the construction of buildings.

and structures not conforming to such regulations.. and to cause the demolition of any building not conforming to such regulations, if necessary."

At p. 526 of the By-law No. 38 is the following: "Sec. 38, Below all foundation walls, piers, columns, posts and pillars resting upon earth, rock, piles or concrete, a base or footing, course of stone or brick shall be laid below foundation walls of buildings of the third class, or the foundations of buildings of the second class, which do not exceed 35 feet in height, the footing shall be of stone not less than 8 inches in thickness, and be at least 12 inches wider than the bottom width of the wall. (Either sections provide for the thickness of the foundation wall, which is in no case to be less than 18 inches.)

Thus, in the city of Montreal, a proprietor cannot build a house whether it has mitoyen walls or not, unless the footing course is at least 2 feet 6 inches wide. In the case of a mitoyen wall that would put the footing course 15 inches instead of 9 inches on the neighbor's land. If this constitutes law for both parties it may be said at once that Defendant is within his rights.

In the case of Keough vs. Nolan, Sir A. Lacoste remarked: "Le règlement de la Cité n'a rapport qu'aux constructions en général; il ne change ni ne modifie l'art. 520." Since the date of that judgment both the legislative authority to pass by-laws have been changed in the sense of specifications of powers previously conferred in general language, so as now to leave no doubt that common walls are included. It might, however, still be said that the by-law in question changes our common law derived from the Custom of Paris, and involved the exercise of legislative authority which the Legislature could not delegate. I do not think that objection well-founded. The building of walls is a matter of architecture and not of legislation. Truly the legislature may say that walls