1884. Paroisse de Ste-Anne du & the benefit of those concerned, and had acted within the La Corp. de la limits of their jurisdiction, and had caused Reburn no Bout de l'Isle damage; that if water remained on his property he had W. A. Reburn himself to blame, as he could force the railway to make their ditches sufficient to carry it off, and they, the mu nicipality, could not, but they had notified the railway to make the necessary work. It appears by the proof that the railway authorities objected to the procès verbal and maintained that any work done by them would be useless, the execution of the procès verbal to be effective, being impossible on account of the levels. Two of their engineers were examined and gave their opinion to this effect. Plans were also produced with profiles of the comparative levels of dif ferent parts of the ground, among others one showing the grade on the line between Pilon and Reburn from the entrance of the water course until it met the Grand Trunk Railway at the northwestern angle of Reburn's farm. This plan showed that the land rose from the entrance of the ditch for some distance, then gradually declined to a very depressed level, when it again gradually rose until it reached the railway ditch at the northwest angle of Reburn's farm, so that a ditch of considerable depth at both ends of this grade would be insufficient to prevent the water overflowing into Reburn's field at the centre of this space. The corporation, among other evidence, produced an elaborate plan of Reburn's land, showing the water course with carefully prepared levels taken at various points following the water course along Pilon's line, through the Grand Trunk ditch to the northeast angle of Reburn's farm, where it was presumed to join a water course running southward between Reburn and Meloche, until it found an exit through a discharge at a moderate. distance from the railway running northwards across the Meloche farm. By these levels it would appear that there was sufficient declivity down the Reburn and Pilon line to carry water from the entrance of the discharge on the Reburn farm to the Grand Trunk Railway 1884. La Corp. de la Paroisse de Ste-Anne du & ditch at the northwest angle, but the surface levels at the depressed locality were probably taken on the top of the embankment thrown up in making the ditch, and Bout de l'Isle the ground further east was depressed below the level w. A. Reburn. of the ditch in this locality, so that the water in the spring freshets flowed over the embankment and flooded Reburn's land to a considerable extent in this locality. The levels in the Grand Trunk ditch were lower throughout than where the water course discharged into it; the surface of the land was slightly more depressed at the northwest angle than at the northeast angle, but was more depressed at the centre between these two points, and to such an extent that here in spring freshets there was an overflow on to Reburn's land. The bottom of the ditch leading from the northeast angle up Meloche's line was only verified at the point of immediate exit from the Grand Trunk Railway ditch. At the point so verified it showed a level a few centimes of a foot lower than the lowest level of Reburn's land opposite the depression occurring in Reburn's western line between him and Meloche. The Superior Court by its judgment annulled the procès verbal, but refused Reburn any damages on the ground that he had not adduced proof of any specific amount. Reburn inscribed the case in Review, but the court there confirmed the judgment of the Superior Court. The municipality now appeal from the judgment of the Superior Court setting aside the by-law. One of the considérants of the judgment was a quotation from Mr. Brunet, the superintendent's, procès verbal which stated that the cours d'eau in the second and third articles of the procès verbal, viz., the affluents above mentioned, were to be made by Larente and Pilon who had asked them in order to exempt themselves respectively from the work of making a line ditch between their lands, which was far from being impossible to make. It may be remarked that the water course in question was not asked for by any notable part of the inhabitants 1884. La Corp. de la of the parish, and would appear to have been rather an Paroisse de expedient to avoid the necessity of making line ditches Bout de l'Isle than a matter of any general public utility, or of utility Ste-Anne du & W. A. Reburn. to any considerable number. A difficulty I have experienced in this case is from the fact of its being within the attributes of the munici palities to make by-laws for the opening of water courses, and the complainant in this case having exercised his right of appeal. Should not the result be considered final and conclusive as regards him? The court have concluded that it should not be so in a case like the present. It is true that the parties may be concluded as to anything that arises as to the regularity of the making of the procès verbal, but if the municipality have made a procès verbal to do something which is in itself contrary to law, a party injured must have a legal remedy to set it aside. In this case it is manifest that the carrying out of the procès verbal would greatly aggravate the servitude which Reburn's land would have to bear by his land being lower than that of his neighbours. It would oblige him to receive a largely augmented flow of water to which he was not previously liable, a great part of which, at least, should be carried off by a line ditch between his two neighbours to the south, and would, as will be seen by further examination, flood and deteriorate a considerable portion of his land without the possibility of a discharge from that water. It will be observed that Mr. Beaudry's figures show the level of some parts of the surface of Reburn's land opposite the water course in its approach to the northwest angle of his farm to be below the level of the bottom of the water course at that locality, consequently so long as water flows in the course there, Reburn's adjoining field will be inundated to a level corresponding with the surface of the water in the water course there, and although the level of the bottom of the discharge from the ditch of the Grand Trunk at the northeast angle may be a few centimes of a foot below the level in the depressed part of Reburn's land, yet the an 1884. La Corp. de la & distance between the two points is too considerable to make the small difference in the level operate as effective drainage. On the contrary it is manifestly in- Bout de l'Isle sufficient, because to drain this low part of Reburn's W. A. Reburn. field it would be necessary to cut at least a shallow drain, the bottom of which must be below the level of the bottom of the ditch at the northeast angle as indicated by Mr. Beaudry. Again Mr. Beaudry has not verified the level save at the immediate exit of this ditch, without following it up to the point where it should have exit by the discharge running eastward, and although he says he saw the water running in that direction, this was probably back water from ice obstruction or overflow of the Grand Trunk ditches in early spring. It would seem extraordinary although not impossible that this discharge should serve to carry off the water coming down Meloche's line from the south and serve the same purpose for the water coming up as it were from the north. This point might be lower than the land as well to the north. as to the south, but there is no explanation of it and it is a singular circumstance that Mr. Beaudry should have failed to verify the level here. It was correctly observed that the greater depth of the Grand Trunk ditch would make nothing for or against Reburn's case, because if the levels admitted of the water coming to Reburn being discharged through the exit ditch at the northeast angle, the greater depth in the Grand Trunk ditch would but retain a quantity of water at a lower level, that although not carried off could not return upon Reburn's land. The overflow at the centre point of the Grand Trunk ditch could not be complained of by Reburn after the water fell to a level below the bottom of the ditch at the northeast angle, but up to that point, Reburn had reason also to complain of that overflow. On the whole it is apparent that the execution of the procès verbal in question must operate a serious detriment to Reburn by aggravating his position, and that the remedy awarded him by the judgment of the Superior Court is just and justified by law. This Court therefore confirms that judgment. 1884. La Corp. de la W. A. Reburn. Judgment confirmed, RAMSAY, J., diss. Saint-Pierre & Scallon for the appellant. Laflamme, Huntington, Laflamme & Richard for the respondent. (J. K.) Dec. 9, 1884. Coram DORION, C.J., MONK, RAMSAY, TESSIER and CROSS, JJ. JOHN BLACK ET AL. (Defts. in the Court below,) APPELLANTS; AND ALEXANDER WALKER, (Piff. in the Court below), RESPONDENT. Simulated deed-Action of third party. Real estate estimated to be worth about $1200 was sold to a person without means, for a consideration stated in the deed to be $3,650. No money was paid, and the vendors remained in possession. The vendee executed a deed of obligation and hypothec in favor of the vendors for the unpaid instalments, Two of these instalments, amounting to $2,000, were subsequently transferred by the vendors to W. in payment of goods. HELD:-That the sale of the property and the obligation and hypothec in favor of the vendors being simulated and fraudulent, W. was entitled to have the deed of obligation and hypothec from the vendee to the vendors set aside as regards him (the vendee being a party to the suit), and to ask that the vendors be condemned to pay for the goods as his personal debtors. The appeal was from a judgment of the Superior Court, Montreal (TORRANCE, J.) in favor of the respondent. See 5 Legal News, p. 415, where the judgment of the lower Court is reported. The following was the text of the judgment appealed from : |