The Ontario Reports; Containing Reports of Cases Decided in the Queen's Bench, Chancery, and Common Pleas Divisions of the High Court of Justice for Ontario Volume 26 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1895 edition. Excerpt: ...of the fence shall be kept up and maintained by each. They are agreed that each shall keep up and maintain one-half of it, and they are agreed as to which half each shall maintain, and there is no dispute between them as to quantity, description or price. lam unable to see that the case falls within the provisions of the statute, and for the like reasons I am of the opinion that the case does not fall within the provisions of the by-law, though these provisions differ somewhat from the provisions of the statute, and, besides, the action is for trespass to land, a part of the cause of action being that the defendant has a shed partly upon the plaintifi"s lands. There seems to have been a dispute as to the true location of the boundary between the lands of the parties. See the pleadings and the evidence given by the surveyor James, by which it was sought to shew that the boundary line between the lots was really not as had been supposed, the line from which the strip of land purchased by the plaintiff from the defendant had been measured or set off, and in this way the location of the present boundary came in question, and was decided upon by the trial Judge, as I have said. Neither party has, as I understand, set up and Ferguson, J contended that the summary remedy referred to in the statute or by-law is the one that should have been resorted to, instead of an action in this Court. The case H ubbell v. Peck, 15 Conn. 135, referred to on the argument indicates that when adjoining proprietors make a divisional fence the posts shall stand in the dividing line, but this indication is based upon the absolute provision of a statute on the subject: see also Wcentsu'rc'n. v. 3abin, 1 Lansing (N. Y.) 79, kindly handed me by C. J. Meredith