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^OVA SCOT/4 
 
 PROVINCE HOUSE 
 
'^ '1 i. 
 
 fhr^ 
 
 in 
 
 i 
 
 McKINNON vs. McNEILL. 
 
 INDEX. 
 
 PAoa 
 Charge of Judge jg 
 
 Declaration , 
 
 Defendant's Exhibits 02 
 
 Deed to Plaintiff ^j 
 
 Evidence ^jg 
 
 Evidence for Plaintiff ^g 
 
 Evidence for Defendant Q-16 
 
 Evidence in Rebuttal ]7-18 
 
 ^^'^'bits "" ■ ;2o_2i 
 
 Exhibit B ^^ 
 
 '• c :'^^:!::^:'":":::::::::::: 21 
 
 " ^ 21 
 
 " H 21 
 
 Grant to Roman Catholic Episcopal Corporation 21 
 
 Grant to McDougall and others £0 
 
 Minutes of Trial ^jg 
 
 New Trial, Rule Nisi for 19-20 
 
 ^'"^ .....'. 2-4 
 
 Plaintiff's Exhibits , 20-21 
 
 Rebuttal Evidence 17-18 
 
 Rule Nisi for New Trial 19-20 
 
 Roman Catholic Episcopal Corporation, Grant to 21 
 
 Verdict , „ 
 
 Writ and Declaration t 
 
 Horal I Printlngr and PubllBhlng Company, 58 & 60 OranvlUo St. 
 
 '"sr*'T'^a.v!*r--' 
 
■ \f 
 
 «r 
 
 
 4^'^ 
 
4H 
 
 { 
 
 IKU'J 
 
 WRIT OF SUMMOTSrS. 
 
 CAPE BRETON, 8S. 
 
 VnrroiUA, by f.lif Gnue o/'God of the United Kimjdom of Great Britain and Ireland, 
 [f^- ^-J QiTiOKX, Dvfemhr of the F<ilth, <(nd of the (Jharch of Ewjland, on Earth the 
 
 Suprenie Head. 
 
 To THE SHKIUI-K or THE CoUNTY OK CaPK "'UKTON, OK TO ANY OTHER OK OUIi ShEKIKKS: 
 
 Wu. coimiiaiul you to mimnion John McNeil (Hill), Huctor McNeil (Donai'l's son), Roderick 
 McNeil (Allan's son), all of Grand Narrows ; Micliael McNeil (Tailor's son), Alexander McKiiinon 
 (\va..">i)-\vriglit). Tlii^rh McNeil (farmer's son), Munlock McKenzie (ban), all of Christmas Island ; 
 and Hector McKenzie (ban), of rear- of Cliristnia.s Island, and all of (Jape Breton (Jounty, yeomen, 
 to appear in the Supreme Court at Sydney, within ten days after the service of this writ, ui.on 
 them respectively at the suit of John McKinnon, who says that the defendants seized and took 
 the plaintilf s goods, that is to say : sixty wharf logs and one hundred and sixty logs: 
 
 That the defendants seized and took a platform staj^'e and wharf of the plaintiff at ('hrist- 
 iiias Island, in said County, and cast the same adrift, and deprived plaintiti of the use thereof: 
 
 That the plaintiff Imilt a platform stage and M'harf, and the defendants destroyed the same: 
 
 That the plaintiff constructed a platform stage and wharf, and the defendants Iroke up and 
 ilestroyed the same, and deprived the plaintiff of the use and possession of the said platform stage 
 and wliarf, and of the tiud)er and logs and other materials of which the same was constructed: 
 
 That the plaintiff intended building a ship or vessel at Christmas Island, and erected a, plat- 
 form stage and wharf there of logs and timber, on whicli the same was to be constructed, and 
 made all necessary preparations for proceeding with his work of ship-liuilding, and the tlefen- 
 ilants cast adrift or broke up, destroyi'd or injured the plaintiff's platform stage and wharf, and 
 deprived thi- plaintifl' of the use thereof, whereby he was delayed and prevented from building 
 his shi[), and hindered from prosecuting his work in coniU!ction therewith, and by reason thereof 
 hfis sustain('d damagts . 
 
 That the def'Midants on divers days and times broke and entered certain land of the plain- 
 tiff, (overetl with water, situati^ on the point adjoining the (Jlebe hands, near Christmas Island, 
 and destroyed ami dei)rived tlie plaintiff of the use of a platform stage ami wliarf erected thereon : 
 
 That the plaintiff on the shore of the Bras d'Or Lake, near ('hristmas Island, in saiil County, 
 and between high and low water mark, built a platform stage and wharf, and the defendants 
 broke and entered thereon, and de.-troyed t\v said platform stage and wharf: 
 
 An(| he claims six luuiilreil dollars damages, 
 issued the I'ltli day of Al'Ull., A. 1)., l.S7:t. 
 N. L. -MacKav, J'lii'intif's Attonietj. 
 
 C. E. LEONARD, 
 
 Protlionotary. 
 
 10 
 
 20 
 
 :«) 
 
I 
 
 ■i^pSKHIjlJ 
 
I . :Sj 
 
 PLEAS. 
 
 CAPE BRETON, SS. 
 
 .^iIlL 
 
 IN THE SUPREME COURT, SYDNEY, 1871). 
 John McKinnon, Plaintiff. 
 
 vs. 
 
 .loiix McNKri,, Hi;(T(»ii McNeil, R(-i)i:hick IVIrXKii,, Mkhakl McNkil, Ai.kxandkh McKtx- 
 
 NON, Hl-oh Mc.'Niai,, MuuDucK MrKKNZiE, and IIectou McKe.szie, Defttulants. 
 
 1. 'J'ho abuve named defendants, John McNeil, Hector McNeil, Roderick McNeil, Michael 
 M'-:i''mI, Alexander McKinnon, Hugh McNeil, Muruock McKenaie, by Murray Dodd, their Attor- 
 ney, fei' a first plea to the lirst co\int of the plaintiff's declaration, says, that they diil not seize 
 and take asvi.y the plaintiff's yoods that is to say— sixty wharf logs and one Inuidred amf 
 sixt)' ! gs, nor any uf them, as alleged. 
 
 2. .'vnd tor ", second plea to the said first count of the plaintiff's declaration, the (h.'fend- 
 a.'i's s.iy Uiat the sni 1 „-ot Is were not the good.s of the plaintiff, as in said declaration alleged. 
 
 .S. Ai.d for ?.. tniid plea to said fir.st count, the defendants say that the said goods were not, 
 at the time of tiic alK ,<;ud taking away arid seizure, in the poase.ssion of the plaintiff. 
 
 4. And tov a fourth plea to said first count, the defend mts say that at the time of the 
 alleged taking away and seizing, the land upon which the said sixty wharf logs and one hundred 
 and sixty logs were put or placed, was the freehold of the Church of Saint Barra, of the Roman 
 Catholic Corporation of the Diocese of Arichat ; and the defendants as the servants, and by the 
 command of the said Corporation of the Dioce.se of Arichat, because the said wharf logs and logs 
 were th- wrongfully in and upon the said messuage encundjering the same, and doing damage 
 there to the said corporation, did, by the conmiand, and as the servants of the .said corporation, 
 the. owners of the said freehold, remove the said logs from the .said land. 
 
 0. And for a fifth plea to the second count of the plaintiff's declaration, the defendants 
 .say that they did not seize and take away, and ca.st the same adrift, a platform stage and 
 wharf at Christmas Island, as in said count alleged. 
 
 T). And for a sixth plea tf» saiil second count, the defendant':? say that the said platform 
 stage and wharf were not, nor were any of them at the time of ll.e allegtd seizing, carrying 
 away and casting adrift, nor at any other time, in the possession of the plaintiff. 
 
 7. And for a seventh plea to said second count, the defendants say that the said goods in 
 said count mentioned and set forth, were not, nor were any of them, the goods of the plaintifl, as 
 in said count and declaration alleged. 
 
 IS. And for an eighth plea to said .second count, the defendants say that at the time of the 
 alleged .seizing, carrying away, and casting adrift, the Church of Saint Barra at L'lnistmas 
 
 40 
 
 GO 
 
 70 
 
 - ^esvmlatmmlm** wm-w 
 
 
J/ 
 
 l.'slaiul, of tlui Roman Catholic- (.'orporatioii of tlic Dioreso of Arieliat, was lawfully ^ohsi-ssimI of a 
 certain niosstiayi', an<l tlio saiil niussuayc was the friiohoM of the said Churcii of Saint Harra of 
 the Haiti llonmn Catholic Corporation of the Diocese of Arichat, and the said platform stage and 
 wharf were placed wionj,'fully on the freehold of the said Chnreli of Saint Haira, to the (hinia,i,'e 
 and injury of the said freehold ; and they, the defendants, a.s tlic servants and !iy the command 
 of the said Corporation of the Diocese of Arichat, because the said platform stage and wharf 
 were then wrongfully in an<l upon the said messuage, eiicumhering the same, and doing 
 damage there to tlie said C(n-poration,di<l by the command and as the servants of the said freehold, 
 remove th(^ said platform stage and wharf from the said land, which are tlie alleged trespasses. 
 
 !). And for a ninth pita to the third count of the plaintiff's declaration, tlie defendants say 
 that the plaintiff' did not build a platform stage and wharf, as in said eofmt and declaration 
 alleged. 
 
 10. And for a tenth plea to the said third count, the defendants say that they did not 
 destroy the said platform stage and wharf, a.s in said count alleged. 
 
 11. And for an eleventh plea to the said third count, the defendants set forth the same 
 allegalioiis and ilefence as contained and set forth in the eighth plea, and allege that the second, 
 third, fourth, aiul fifth counts of the plaintiff's declaration are .-;uljstantially for the same cause 
 of action. 
 
 12. And for a twelfth plea to the saUl third count, the defendants say that at the time of 
 the alleged destroying of the said platform stage and wharf, the said goods were not, nor vere 
 any of them, in the possession of the plaintiff'. 
 
 13. And for a thirteenth plea to the fourth count of the plaintiff's declaration, the defen- 
 dants say that the plaintiti did not construct a platfo'-ui .stage and wharf, as in .said count 
 alleged. 
 
 14. And for a fourteenth plea to the said fourth count, the defendants say that the sai'l 
 platform stage and wharf were not, nor were any of them, in the possession of the plaintiff at 
 the time of the alleged trespass. 
 
 1.5. And for a hfteenth plea to the said fourth count, the defendants .set forth the same 
 allocations and defence as contained in the eighth plea. 
 
 IG. And for a sixteenth plea to the fifth count of the plaintiif's ' elaration, the defendants 
 .say that the plaintiff did net build or erect a platform stage or whai. at Christmas Island of 
 logs and timber, as in said count alleged. 
 
 17. And for a .seventeenth plea to the said fifth count, the defendants .say that they did 
 not cast adrift, or break up, or destroy, or injure the plaintiff's platform .stage and wharf, as in 
 said count alleged. 
 
 18. And fov a!i eighteenth plea to the sai<l fifth count of the plaintiff's declaration, the 
 defendants set forth the same allegations and defence as contained in the eighth plea. 
 
 1!). And for a iiiueteeiith plea to the si.xth count of the plaintirt"s declaration, the defen- 
 dants say that the said land was iKjt the land of the plaintitt" as alleged. 
 
 «0 
 
 00 
 
 100 
 
 110 
 
I 
 
 I 
 
10 Aud for a twentieth plea t/> the saM .ixth count, the defendant-, say that they did 
 not L.vak an.I enter CT'.aiu laud, of the plaintiff covered with water, situate on the oints ad- 
 .)onnn« f ..e glebe hmdn nea. Chri.tnm. Inland, nor did they destroy, nor deprive the plaintitf of 
 the use ot a platform stage and wharf erected the. <on. as in «aid count alletro.1. 
 
 21. An.I for a twenty -first plea to the said sixth count, the defondact ; set forth the same 
 allegatioMs an.I .lefence as contained in the oiyhJi plea. 
 
 22. An.I for a twenty-second pl..a to the .seventh count of the plain tirt's declaration the 
 de en.lants ^ay that th- plauitiffdi.l not, on the shores .,f B.us d'Ur Lake, near Christmas Islan.l 
 between high an.I low warer mark, buil.l .. platform stage ^nd wharf, as in said count alle.^ed ' 
 
 23 And for a twenty-thinl plea to the said seventh count, the d "en.lants say that they 120 
 cvl not enter thereon and destroy th. • • platforn. stage and wharf, n. in said count of the 
 plaintitt s ileclaration alleged. 
 
 24 And for a twenty-fourth plea to the .said seventh count, the defendants .set forth the 
 ■same allegatioas and defence as contained in the eightl> plea. 
 
 <ieclaration. the 
 -ammittod witn 
 
 2.). And for a twenty-fifth plea to the several counts of the plainti 
 defendant:, say that the several acts and trespasses complained of were done -.■ 
 the full knowledge, leave, and licen.se of t!ie plaintiff 
 
 Yours, &c., 
 
 To the Plaintifi-or his Attorney. MURRAY DODD, Deft,' Att'y 
 
 MINUTES. 
 
 "^0 
 
 ( 
 
 McKinnon vs. McNeill. 
 
 '''''Tv^l''' P*'"'^«-^^^^' Pkopehtv and Thovcr Pi,ea,s i.vtkral titlk in a Romav Catholic 
 lNroui.(.nATioK, AND THAT Dkfkndants ukmovkd Timber hv ordku of Incorporation! 
 
 McKav opens at 10..50. 
 
 Hur.H M'.Kenzie, sworn. C.-^ty Snrvryor. This h a copy from Orown Land Ofhce of 
 the section ot the County at Grand Narrows; n lot is Ir.id down marked Hector Mr-Don.r.ll Lot 
 Wo 1., ; there is a creek laid down on the west line near the chapel, whica is west of It 'tIic 
 sketch marked "A J" is a good reprcocntation of the locality. The west line of number fifteen 
 runs acro.ss the creek to the liarbor. The plan or map also gives a fair representation. 
 
 Crass-^j^urnvned. I made skotch ; it is not a copy of the phn ; it is enlarge,!, and give.s posi- 
 tion o<^ bu.l.hng, kc. I am not responsible for the particulars. Did not see p!aintifl"s plattlrm. 
 Liot number fifteen is on plan, and depicted as in paper read to ine. 
 
 Itr-examined Made no actual survey of the property ; no road or .harf laid down on plan ; 
 part ot road to public wharf runs through the chapel land ; eastern entrance of harbor is closed 
 
 140 
 
 f|'^'-3«^-- 
 
m^ 
 
 ■ A ■ 
 
 '1 
 
M 
 
 I 
 
 by a Leach. [McKay tenders in evidence copy ol" a grant ; al.o notice of intention to produce 
 • copies of deed and grant. Service ad,nitte,l, and artidavit of searel. (^opy n.,t in and r .d o 
 
 can on,y . tHe i^ti I tt^. i^t:^: ^L- -tr^- 1^^^::^!:^^ 
 
 extends only to the creek, and dues not cover it. The di4anco ,iven in the ..ant for t V ne 
 
 veye^:^r::ritir=:i^n:^^^^^^ -^^ ^^ — — 
 
 [Witnesses .rdered to retire except plaintiff and defendant. J ponnit on'y one'of the 
 de endan s to ren.am to instruct counsel, as it has been avowed by defeLlants' couns U.^ 
 defendants who are also called as witnesses are only nondnally defendants. J)odd objects'] 
 
 John McKinnon. plaintiff. Grand Narrows. Have lived alongside of Hector McDou^alFs 
 Lot for about Inrty- wo years. This sketch. " A," shows position of platforn. ; it is nun.b r hf- 
 teon the pubhc wharf is as n.arked on sketch. I an. a far.ner. fisherman Zl 111 
 wnght; have budt eleven vessels, three at or near Christn.as llland. west of puX 
 wharl It was a more convenient place than at the point. I put up platforn. the last pa 
 of October and Nc>ven.ber 1877. to build a vessel on. I built below low-water n.ark^ " 
 he logs „. the woods and hauled then, out; I think one hundred or over one hundre whS 
 logs; I mtenaed to build it substantial, to build more vessels on They were laic7an 
 hfted together as a wharf i had ship tin.ber. tw. hundred and fifty or th!: 1 n re^^e ' 
 The .Inp tnnber was worth £40 to £.0 ; logs wortl a dollar a piece ; some of them were fJ^^rty-" 
 
 Jlf ; ;•"'; '^" '"\'"; *h^ '-^''- I '>-' -b' laid the timber on the platforn. 1 .ot the 
 ast of he tunber on the platform one evening about ten o'clock, about the loth November On 
 the lo h Novcnber, very early in the morning, I saw fron. n.y house, going to the priest's house 
 about twenty-s.x n.en ; they went from his house to the chapel ; the pHest'n.et thi. there afS 
 h^e to ten nunutes the pr.est went hon.e. and the n.en to the platforn. ; thev took stakiand 
 po.es from a once hey had to cross; I saw them putting the tind.er adrift tlult was on the pU 
 orm ; they set ,t all adr.ft ; they set the tind .r th« w.s on the platforn. adrift also, the whole ifc 
 spoKe to then,; 1 saul to then, that they were cruel u.en to destrov .ny property which wis , t 
 doing the... any harn.. and it was better for then, to leave it alone ; J spoke before the who e otl n 
 t ey cou d all hear me : all the defendants .nentiooed on the writ were there, a,.d Wrd '• 
 the:y a) took an act.ve part .n ren.oving the logs. My son John can.e down am] said " vou' 
 devds. eavo n.y hard work alone ; " John was helping ...e with the work ; this was while they 
 ere destroying the property; they wore excite.l ; six or seven of the.n pursued Jo 1. w t^ 
 stakes , they proceeded with the destr.,etio,. afterwards ; the., sixteen of the., went t.. n.^. hous 
 I had gone .,p befo.-e tlu-u ; they wanted John ; I recovered a few sticks of the ship-tin 1. .not 
 
 Ivnt V late eeto MeDougall ; h.s west hue is co.Tectly marked on the plan lot ; the ^rant plan 
 snoul.1 show the hue across creek to the shore; the phu. a,.nexed to orign.al gr^.t sCed the 
 
 150 
 
 IGO 
 
 170 
 
 180 
 
 f I 
 
6 
 
 by bln.os on little hu' :;^h^ T" 1 ^^ :::^i:"' "^^^'f ' ^^ ^^°= '* ^^^ '"^^^^^ 
 al.ouUwenty-ei.I:tvearsa.o.jr vainrl. f;^ ^''''"" "^' *" ^'^'' ^cGihivray ; it was 
 
 wanted to cfearllK/GMXYnd up t^thr inTT "r 1 '""^"* ''""""'"^*= '^^ ^'^'^^'^^ ^^ '^ '^^ 
 the piatfonn was ; ho lo t tT T^lS . t' . \ u ''' '* "P '^' '^^^ ''"'^ °" *^^^'* P''^"* where 
 
 point was only as .sab h.'t iT t "m n " f^''^'^^ '^ ^'^'^^^ *° *^^ P''^"'-" = t^- 
 and a son. Alexander whor^itLslT '^Z' ''T'' " '''"'' '"^ '^"^ ^ clan.hter, Marv, 
 tho,nsi,noda deed 17 ^ !x oT^! ' ' "t ^ ^^^^^^^^ ^^''''"^^' «--'^- -" "^ 
 
 presenc: [Deed tend r J -fl T . f rl^^'' " '' '"^' ^''^"' ' *^^^' S'"'^"*-'^ ^'j-'"-' *" "'7 
 
 icint incluiinrthe";t::.j' '"^'' ^'''''''' '"''' P'"' '" -'' ^^^^' --kod " C A. J." Deed of the 
 
 back^r::'::^:l,,i^;:t -^^^^-z-ft-;-^^^ *^^ ^^^^^ - -^-" '-^= -« ^-^t 
 
 dollars or six 13" o iris t T. ''/ ''"P""' ' ''''''''''' '"^ '"'^^ ^^ «^- '->-^-l 
 copy to each in P O • ,' '^ ""^ ^^^ ""• ^''''^^''^^ ""^ice marked "D. A. J"! Put 
 
 copy to each in P. 0., prepaid, a day or two after date Dec .n.ber G 1878 rP„t in , 
 
 Wntputm. Date 15th April. .87'..] Gave a notice to Jaines mIIi Le : t is 
 ther™:X::ln'r '' "^"T^r^^ "-^^ ^^^^^ ^--^ ^'^" Poi~.:f:ty years . 
 
 been c eared or anv m»4 ,>f u ;., n .• , "-J^'^'i^fUi .s lanci. me fomt has not 
 
 on lot number fifteen- the ifri^l^ P'°Pf'y'/"»<^' '^"d of oridge begins on east side of line 
 
 icoe lan.l. (^naiked X on sketch) ; this included the first part of the road down fn 
 ho creek; there is a curve in the road when it gets across ^he creek fr'm the ma ^ 
 oad It runs along straight till it comes to the mai4y place, then turns westTli til 7 
 
 S '^;r if .1?"^^"' ''"^ r r ^'^^" '' ''' ''-^' -' 'y ti-^^-^ t:MS: Jc 
 
 • , : • "" '"^ "'"'* '"'" ^^"*^'^''"" "'« '^"d t'^e ^'«be land marked " X •" the land 
 
 o -"-occupied by McNeil. No gate now between main road an bddj Th e 
 
 lZ^'ri'^''?Tl'^:t'' '''''''''' ,,,„,,,,,,. ^,^,,^ ^^^^.^ road on the Jlint 
 
 I.> 877 I lad out to build three vessels ; have not built them ; have one under way now I 
 wished to build near the public wharf; ask. d Father McKenzie for permission to bud.?- ", u'o 
 
 pucsts , I think It was in the house, , his usual sitting room, on rightd.an.l side of front .l„..r 
 as you go ,n ; n.enfoned once a place west of public wharf ; the firs^t time I mentioned a phc 
 somewhere east ot die wharf. All the conversations were in the priesf.s hou^ tlat fir 
 
 190 
 
 200 
 
 210 
 
 220 
 
 2;{0 
 
h. 
 
 
240 
 
 2oO 
 
 The last time I pointed to a place west of the wharf ; l,e said he would not allow n.e • said he 
 would make enquiries *he first time. The last time h.- said the Bishop had left it all to himself 
 and t :. Wardens ; that was in March, 1877. 1 was getting ready then for buil.iing ; I was cut- 
 ting I >lK;r then, and hauling it on the ice outside of the Point. Father McKenzie warned me 
 not to build on the glebe property, but did not mention the Point. I had heard a rumor that 
 the church claimed the Point. I got a notice f,om Father McKenzie ; I have not .^ot it in my 
 possession ; believe I .sent it to the Bishop. 1 don't think he mentioned the Point Tn the letter 
 [McKay objects. No notice to produce. Notice served five or six days a.ro.] 
 
 Crosa-exumined as to notice. The Bishop resides at .irichat. [I admit secondary evidence 
 McKay objects.] The letter said I would not be allowed to build about the shores of the .rlebe 
 property ; I hud put none of the property on the shore, but when ice went away it drifted al)out 
 in the pond ; it was laid outside of platform. I collected it again, and took it where I built the 
 platform While building I hauled .some of it on to the shore, but not on the grass ; the hi-hest 
 sticks were where the tide left them ; it was scattered about the shores from May to October • 
 «ome of It went ashore on the Point. I lost none that I know of. Don't remember askin- per- 
 mission again from May to October, or until I built platform. When I commenced 1 bromrht a 
 rcitt ot logs near the line which runs across the Point. I told Father McKenzie at the °hore 
 that I would not build a wharf there. There was a stake there then at the line. I was at the 
 west side of the line. I believe I moved my timber from there to the east .side of the line The 
 wharf logs were not there when ice broke. The limbers, some of them, became " <lry" or lotten 
 before I cc-il.l u",e them. I got thirty or forty pieces after ico broke up, mostly the next .spring 
 The timber was birch and beech. Ha 1 ship timber on the ice at head of creek. 
 
 Adjourned 2.80. 
 
 Thursday, 2(ith August, isiso— 10 A. M. 
 
 Cross-examination of Plaint 'J, John McKinvou, continued. In the sprin-r I looked after 
 the scattered timber, and took care of it. Did not bring tliem all to the platform until the 
 autumn. A few sticks remained where 1 left them, as it was shallow ; some of it would not 
 float, as It was ,so heavy. Birch and beech timber will sink soon after being placed in the water ■ 2G0 
 some of It will sink while green. I had theiv part of the timber for one vessel. I commenced 
 cutting in October, l,s7(i ; two of my sons as.sisted mo. It was smoothed on the sides only No 
 knees. In October 1877, I put it all in the platform. Some of them were in a con.Iition to float 
 and some not. I put more timber in the platform than was on the ice. I took steps for a few 
 days to recover the timber. The logs of the platform would float. No ties, no ballast; it stuck 
 in the bottom ; they were notched together; the upper logs kept the lower ones down. Some 
 were eighteen inches diameter. Water was from two to four feet deep at the platform The 
 side of the platform next the shore was over twenty feet outside of high water mark, and about 
 ten to ttfteen feet outside of low water mark. There is .scarcely any perceptible rise of tide • the 
 diflerence in the water is caused by the winds. To build the platform we had to go on the land 270 
 all about It ; we had a plank frcn the sho'e to the platform. Father McKenzie told me not to 
 build on the glebe land shortly before I commenced the platform. I got mv deed from McDou- 
 gall's the previous August. The spring previous (1877) I asked the priest for leave to build on the 
 glebe, and he refused. The grantors in the deed are Hector's children. I think there were three 
 others not parties to the deed. [Qmstion. Did children object to signing on the ground that it 
 
 .^aiii 
 
'Si^i ■■' ■■.W''iS!,^ ■ 
 

 After I irot 
 
 Uelonged to the church ? McKay olyects. I refuse testimony, Dodd objecting.] 
 it executed and registered I went on with my work. Have built one vessel .since ; not yet 
 finished. I did not intend to build throe at a time, but in sucee.ssion ; from sixty to .seventy tons 
 each. I intended to build one smaller and one larger than sixty tons. I was building them for 
 sale ; value of timber £45 ; whatever recovered, 30 or -,0 out of 2.')0 or 300 ; a good many on the 280 
 bottom about there yet. The wharf logs hoated ; most of them floated out through flie entrance 
 and up through the Narrows ; there was an easterly win.l ; did not look after any of them ; platform 
 about fiftj feet long and thirty-two to thirty-five feet wide. It was not planked ; I was going to 
 cove- it with poles, but I put the timber on it in the mean time to keep it steady. Th« lo<rs were 
 abotit two and one-half feet apart. 1 used no logs at my new vessel, only some small pieces of 
 second growth ; only one or two. My son took two of the logs to repair a public road, but they 
 were not used. The platform was in the water opposite the property I bought there. No loirs 
 or timber on the shore at the time ; had no other on the Point to my knowledgt. [Witness ex- 
 plains one of his statements ; not material.] 
 
 Re-examined by Mr. McKay. There was no fence on the west wide of the Point until 290 
 about three years ago. There was a fence from the west of the Chapel Brook over towards the 
 pond behind the public wharf, about thirty-.soven years ago. No fence east of the chapel until 
 three years ago ; it was all open ; my iwn cattle, and others besides the priest's, I have often 
 seen tl ere. The Point was never cleared nor cultivated. I sent the letter my.self, compared and 
 prepaid, to all the defendants. Ther.; is no entrance from the east into the hou.se ; it is tpiite 
 clo.sed up by a bank of sand— a sand beach. Have .seen vessels come up to end of my platform 
 to anchor; no wharf east of that. I bad a brig of "over 150 tons anchor to the east of my plat- 
 form. Parties landed with boat on the Point where I had my plf,tform ; I have used it for that 
 purpose thirty-four years. 
 
 Re-examined. Have had a boat most of the time for thirty-five years. I usually kept luy 300 
 boat at the Point. I was away six or seven years ; went to farm ; came back ; I think about 
 sixteen or seventeen years ; eighty. Had no boat there during that time. Had not a boat a 
 quarter of the time since I came back. I had the use of my neighbor's boat until I built a boat 
 three years ago. Where I went was about three miles distant. It was John McDongal, my next 
 door neighbor, that had the boat. After my property was destroyed had no conversation with 
 Father McKenzie about it. 
 
 John J. McKixxoN. Son of plaintiff. My father and I had platform in November, 1877. 
 I assisted liim in building it. It was destroyed by the defendants and others. The defendants 
 were all, as read from the writ, engaged in destroying it; they had levers; they threw all the 
 •ship timber into the water ; we had been getting the timber for a year or thirteen months. We 310 
 tried to stop them ; they turned on me and chased me, and threatened to take my life. There 
 were one hundred to one hundred and twenty wharf logs and t\, o himdred and fifty to three 
 hundred pieces ship tnuber, — hard wood. 
 
 Cw^H-extimined by Mr. Dodd. All of defendants took part; none of timber was put on tlio 
 land at any time ; none of it at any time was on tlie Point. The stage was about twenty fc->t 
 from high water mark when an easterly gale. In moderate weather only a couples of inchrs 
 difference of tides ; at the itnier enil water was about two feet deep ; sometimes we had a pl.ink 
 to get out. There Wiis no grass on the Point at that place. I went down ah-ad of my fatl^v; 
 I spoke to them civilly at first ; asked them what they were doing then;. They said it was uoue 3f20 
 
 ;;» i M i! iw w n >» « i »j i j i i f»i i 
 
 --'•»*i<^**y»^ * 
 
■imiSi ' 
 
9 
 
 of my basilicas. ] said tl.cy ha.l no business to destroy my property ; it was mine and my 
 tathers, in partnership ; I toM tliem they should not do it. There were about 2.-i0 to 300 piec/s 
 of hnrdwcod timber, and I will say 100 to 120 of wharf loys. If I stated otherwise it was a 
 mistake. I abused them ; I threw ston.-s at them ; di.l not threaten them with an axe Neither 
 I nor my father had an axe; my father was present. I only threw one stone, ami then they 
 chased me. I went back again when they went back and wanted them to stop. It took them 
 three or four hours to destroy the property. They kept me away. When I would want them to 
 stop they would chase me away. 
 
 Re-examined. I owned nothing. There was no partnership, only I worked with mv 
 
 father and expected to get an advantage when she was launched. I bought none of the timbe'r 
 
 n. r paid for any ; my father was the owner. [Notice to produce put in by consent, dated Hh 
 
 August 1.S80. McKay tenders notice of action Uecember Kith, 1878 ; put in and read, marked 
 
 hi. A. J. J 
 
 James A. McDougall. Know the Point. There is a little spo. cleared, where th.v fasten 
 their horses, near the bridge ; it is a little cleared like. Have .seen cattle feeding on both sides 
 of the road; have used Point w. a boat landing, and so have u.hers, I think, as long as I can recol- 
 lect. Remember of mailing letter to defendants; they were prepaid. I was Postmaster. 
 
 Cross-examined. I remember being there where the road is ; never saw remains of fences on 
 the Point. The gate has been there since roa<l was built. I think Father .McKinnon's servants 
 put ttrnce along the road. I never knew anything more of the Point but that it was attached to 
 the glebe lands. The priest's cattle were pa,stured there as long as I can recollect,-the 
 last four priests ; the cattle of all those priests pastured there, for I did not see any fence to pre- 
 vent them ; never .saw any tence except that put near the road since road was made. It is 
 eighteen or nineteen yeai-s since Father McKinnon was the priest, and his cattie fed there. I have 
 different time-', seen other people's cattle turned oni by Father McKenzie's servants and Dr 
 Cameron's. [Amtvsr to Gourt. I don't remember any time when cattle could get on the Point 
 without going through the glebe land.] McKinnon recovered a good deal of the timber; saw it 
 piled ; I am clear to say he got thiity to forty ; can't say .note. Timber is worth $6 to $H a ton ; 
 perhaps more. The wliarf logs 1 .saw were red spruce; hardwood timber would probably drift 
 out ot the harbor ; some would sink ; I only saw one stick of tiie timber sticking about after- 
 wards. 
 
 Re-examined. My father burnt one of the sticks ; saw none of wharf log..- that were cast 
 adrift piled up. Saw McKinnon's cattle put off the Point several times ; have seen cattle put off 
 three tunes whatever ; am thirty years old ; don't know of other than glebe cattle bein^ there 
 before bridge was built. Before the bridge was built I don't think cattle could get ov°er the 
 brook without crossing it above the fence between glebe house and chapel. They might have 
 come from the west on the beach, as the fence ran down only to the pond, but only in^ globe 
 cattle could get on the Poinc without breaking through unless the gate was lef. open. It would 
 not bo safe for cattle to cross the brook below the glebe fence, which leads to the pond, and be 
 tweeii that and plaintiff's fence. 
 
 [Plaintiff' re.sts.] 
 l>(jUO opens. 
 
 330 
 
 340 
 
 3^0 
 
 300 
 
 * w- 
 
10 
 
 Rpv. MfKKNZiK, P. P., Saint Bnrra, in Uioceso of Arichat, Know plaintiff- have 
 
 boon thoro over four years ; know gl..«l,e land ; l.avo occupi.-.l to tho water, inchulin- tho Point • 
 know a Imo snrvcye.) across the Point, (surveyed by Capt. Morgan ; tlie line marked on br.th 
 ends; not run through ; my cattle roamed over that property; it was a pasture for pi.^s and 
 cittle belonging to me. Some cattle use.l to get in when gate left opi n ; the boy nsed to turn them 
 out ; I used to tell him. The parish priest has right to use all the glebo property. Plaintilf is one 
 of .ly parishioners ; he asked permission of me to build a vessel on this Point, a.s I nndei-stood 
 him. He went to the window and shovve<l me the place where he wished to buil:' ; not much 
 more than this Point could be seen from that place ; it was in front room, east end of tli.- hou.se • 
 house faces south on thr plan ; the roo-<i ou right han.l as you go in ; could not sec public wharf 
 from there. lie pouiied out with his Hand the point on which he wished to build, to the bt'st of 
 my knowledge. This was previous to anything being done by plaintiff. I <lid nothing then but 
 refer to the Wardens and the Bishop. I did that ; was instructed to give an P.nswe" to plain- 
 tiff. I spoke to plaintiff verbally first, and told him he was refused permission. I sent him a 
 letter; I kept no copy; it was forbidding him to build on any i)arc of the shores of the rr|ebc 
 property. A quantity of material was then gathered ; I think it was in the month of Mlrch, 
 1877 ; he hauled after that, and went on hauling— that is after Iwing notiHed. When ice went 
 away the timber was left about, and some of it partly on the ground at the Point, an.l partly in 
 the water. I .saw him hauling logs round ^-hc shores of the Poirt in October or November. I 
 went down and told him he would not le allowed to build there. He had his horse there drag- 
 ging timber on .shore ; his .son was there. 1 believe he di.scontinuod th work for a few days. 
 The next time I went down the piatfc/rm was constructed , did not examine it ; it was partly on 
 the Point and partly in the water; did not go clon -nough to examine it, but I considered so. 1 
 saw some sticks on the lan.l ; can't say if they be. .ged to the wharf or not. I autiiorized the 
 Wardens and some of the people to remove w hat *vas on the glebe property ; this was in Novem- 
 ber. Saw plaintiff after that— about a month or less; he came to see me; 1 may have sent for 
 him ; lie appeared to be sorry; he claimed nothing; he may have said someth ing about the tim- 
 ber, but 1 can't recollect; it was after that when 1 heard of claim for damages, and shortly before 
 the writs were i.ssued. I could not see the platform from my hou.se ; I could see the place. It 
 was in the morning when the people went there ; don't think they were there more than a couple 
 of hours. The bank of the brook on one ' le from bridge at main road down to the cross fence 
 is high. Cattle could always since I was there pass across the road to the Point, the fences of 
 the road not being kept up. 
 
 Cros8-exumived. There was a fence on one side of the road only— the side next the Point; 
 it is there yet ; if kept up it would .separate the Point from the rest of the property. There never 
 was any distinction between the Point and the rest of the glebe. There are indications v' Us hav- 
 ing been cleared east of the church, and past the line near the bridge ; a small piece appe , ,-, to have 
 been cultivated. There is no feuce between the south line of the glebe and McKi inon ; the 
 brook is the line ; can't say whether cattle can get acro.ss. I have a documentary claim to the 
 glebe lot. 1 hold the property as agent of the corporation— a documentary title t • ..ii except the 
 Point. I think plaintiff's timber vVas on the east side of the line when he spoke to me— that 
 was when I warned him to take them away. Some of the sticks were on the gravel. I :v.iw 
 timber in an old scow besides plaintiff's timber. The platform was very near the same place ; 
 perhaps a little to the eastward. I did not say anything about the point ; particu arly forbid 
 
 I think the .sticks I saw on the shore were the ends of timber built 
 
 .')7o 
 
 380 
 
 390 
 
 400 
 
 him building on the glebo 
 
ii. >'i(', platform. I HUppaso 1 coiiid underKtan<l tiotn liim tliut he would look to tin- pprtit'H 
 conccrnutl for redrcHM, [Original [^jra»' to tJio R. K. Corporation of Arichat put in ai. read, 
 iimrked F. A, .1., datt.l .10th Julv, IWH,] 
 
 Ai-KXANOKK McKiNNON, Hchoo! Inspector, C. B. Know property in diNputc. Came here in 410 
 SeptcnilrtT, I8')8, to livf. Rev. Donald McKinnon wo.** then parisli prie.st there ; hois now <le- 
 ceaMcd. I live.', with hini on the>,'ivbo land. The Hr.-t yi'ur I was teaching' school. lie exercised 
 HctH of ownei-Mhip over this Point. A fence ran down the hrmik from main road, past where the 
 Inidgc is now, to a point at deep water, ei>.st of McDonpall's I" u>, so as to .siiut out cattle, I used to 
 help the boy at the fence ; when 1 went there the fenc" was there ; it wa,s a briisii f(!nce, part oli! ami 
 jxiit appeared new. The old part went east, past the bridge. Never .saw any lino pointed out acrcss 
 tiu) Point. In ni> opinion all the woo<l i^Towing then* tht-n was secoml growth. I have an idea where 
 an extension of McDougall's line would chop ott'tlio Point. There were east of tliat line decayed 
 stumps, and small spots which .seemed to lii,^ '«een parts of a clearing. It was used as 
 pasture for t'le priest's horses and cattle. No .ence \ .iween that and the rest of the pasture. 420 
 Nobody else pastured cattle there. Tl.ere was only one gent ral i-ntrance to glebe lot fniui main 
 road — it was >i road down to the glebe hou.se and thence to the chapel. Have known the pro- 
 perty ever since, except the lapse of seven years, from 18(12 to I8(i0. Was there during the seven 
 years. Father Mclsaac ex^.cised some privileges. The gate «fis put there in his time; it was 
 put there to protect the property inside of it. From tl>e bridge ip there is a swamp of perhaps 
 one hundred yards, with >». steep bank on the north side ; for one hundred yards we.-t of bridge it 
 was impassable ; it was po.iajble to get up the bank above that, but there was a tence there ; 
 heirs of Hjctor McUougall lived there. The fen™ was run sufficiently into the creek to keep 
 cattle from going round it. 
 
 Adjourneu -i o'clock. 
 
 Fkioav, 27th August, 1880—10 A. M. 
 
 4:]o 
 
 Alexander McKhinonH eTumindtioii continued. During the four years i was th(Te the 
 fence down the brook was kept up. Never knew there over was a line run across the Point. 
 
 Angus McDouOALl. .sworn. Son of Hector; he resided at Christmas Island; his property 
 adjoined Donald McNtil',s, on the we.st; plaintiti' bought iMcNeil's property; church property 
 was owned by oM Donald McNeil ; I am forty-eight years old ; was fourteen or fifteen when he 
 di'jd ; saw no one but the priest exercising acts of ownership ; saw the priest's cattle on it, and 
 .saw his servants clearing alders off it ; it was after my father dieil ; don't know of my father's 
 cattle being ^vr.i there to pasture ; the property was divided between three V)rothers ; there was a 
 meeting in my brother Sandy's house ; there were present .John Sandy McDougall and myseli; 
 also McKenzie (Jan)js) who wa'i- married to my si.ster ; the sons were Donald, John, Sandy, and 4,40 
 Angus; onl}' two daughters living then, Mary and Catherine. (V.therine was McKenzie's wife; 
 Donald was then at Cape North. Wi' threi' sons were living on the farm ; I>onald wanted to get 
 his share before that, and it was set off to him by con.sent, on eastern line, and he sold it ; we 
 three agreed on our shares, and made mark.s, and left it to McKenzie to say wliich sliould be on 
 the west; the next division fell to me, from the roa(i. to the roar. The parisli occupied in front 
 of me ; my brothers got their share to the water ; I only got to the i-uad. I never claimed the 
 front frouj that time. If my line had been extended it would have included the Point — the 
 whole of it. I never claimed to the north of the road. It v/as about twenty-four or twenty 
 
 T ' ' 
 
12 
 
 years more or loss, ayo. Mary wa,s then inarrie.I, and living at North Sychiey ; she ha« never 
 boon back there. The girl, have not lived on it since my father die.l. Father died on property ' 
 Rev^ John Grant. P. P.. attended hiu, ; he made no will by writing; never knew my father tJ 
 work on the Point. The priests have occupied it by pasturing cattle. 
 
 Cruss-exavihml It is over twelve year.s since I saw s° rvant clearin-r ; it wa,s east of mv 
 west ine, on the Point; I could show the old mark of the line yet; I iiv^.t remember the line 
 twenty-hve years ago ; Crawley, I think, ran the line. There was the old foundation of a panel 
 fence on the Point ; don't know who put it there ; saw no .stake s or blaze marks ; there were no 
 Indians there in my childhood. At that time I think Father Mclvan was the resident cler-^v- 
 man My father in my memory cropped the land north of the road, in front of me It is very 
 shallow water at the Point ; often landed there ; did not often haul boat:5 up there ; it w.^s not 
 convemont. I never cut poles on the Point, unless it might be a bush for a shade goin-^ out Hsh- 
 ing. Never took my cattle there ; it was not convenient. 
 
 Allan McNeil sworn. I resided on Cliristmas Island about sixty-six years ; born there • 
 .sivty-s.x years old. My father was Donald McNeil ; we were owners of the property before the' 
 U.urch got it-the glebe property-also tho plaintiff's farm. Know the Point well ; saw Father 
 McGi hvary clear up the Point, all the stuff that w..s on it, and till it up ; he was parish priest at 
 Grand Narro^^^s ; it was twenty-four or twenty-five years ago ; he died in Antigonishe over twenty 
 years since. I^atlier Mclntyre came next ; he was there one year only ; then Father McDonnell 
 who was there four years ; then Father McKinnon, who died there ; has not seen any one work- 
 ing there since McGillivary, but I have seen the priest's cattle on it ever since; no "other cattle 
 unles,s .such as might stray in; have seen neighbors' cattle stray in very often, but the priest 
 would not. allow them to stay there ; they turned them out. Fathers tJrant ami Mclntvre were 
 there before McGillivary ; their cattle pastured there on the Point ; saw the priest's pasture on the 
 Point forty-five years ago to the best of my recollection. Since Priest Grant first went there was 
 well on to fifty years ; he was there eight yeai-. From his time to the present the priest's cattle 
 have pastu"e.l there. During McDougall's life I saw a fence there; the fence was there as far 
 back as I remember anything; it was then an old rotten fence ; no one was keeping it up • have 
 seen no fence there since. The bridge was built when Caldwell was member for the County. 
 
 CVo.s,s-e.«(»UH«/. Wa,s present when the platform was destroyed ; took no part in it • I told 
 plaintiff they treated him right. Will not swear it was thirty nor twenty-one years since I ,saw 
 McGillivary clearing ; the parishoners cut the trees ; I .saw them chopping; can't swear to any 
 niun whom I saw cutting there ; I think there were more than four ; I think they u.sed the 
 poles cut for fencing ; saw blazes of old line ; knew it well ; there was good pasture on the Point • 
 most of It was grass ; it was not cleare.l between chapel and line : there are alders, kc, same a^ 
 on Point; there is no fence near the bridge, as brook is sufficient; there is no fence <l..wn from 
 McKiiinon's ea.st line to the bridge ; there is no fence now on anv part of plaintiff's north line only 
 the brook ; never saw a fence there; there might have been a fence there when my father 'came 
 there, but not since; no division line between plaintiff and the glebe, except the brook ; the 
 priests's cattle could come down the brook and cro.ss, if they could get across; there is no baid: 
 at McKinnon 's northern line to keep cattle from crossing ; they could cross it if they choose ; ncNvr 
 saw cattle cross. 
 
 RouY McLean. Born and lived at Narrows, close to Christmas Island ; to the west of it ; I 
 know the Point ; I worked on the Point one day cutting buslies out, or in at tlu; line— about the 
 
 450 
 
 4G0 
 
 470 
 
 480 
 
 4f)0 
 
:m 
 
13 
 
 It 
 
 lino ; it is about twenty years, more or less ; was cutting for the glebe house ; McGillivary was 
 parish priest ; I think the priest told me to go there ; I think there were three or four working 
 with ir.3, all cutting at one fence ; there were peo;le before us cutting the same year ; it was var 
 and spruce ; did not cut all ; about an acre ; one end was near the shore, ironi the salt water to 
 the poml near the bridge ; the others were cutting at the same place on the Point, so also those 
 who cut before us, were cutting on the Point; can't say about the line ; those b,.t'.ire us cut about 
 another acre ; did not pile it ; there was pasture there on the Point as there is now ; the priest's 
 cattle pasture; remember them going there a long time— forty years ago; 1 think it was com- 
 mon for all the cattle that choose to go there, but it has been stopj)ed since. Know brook ; I 
 believe there is a fence down the brook, but 1 have not been there for a long time ; don't know 
 of any fence along the brook except line fence ; bank not steep ; cattle could go up and down. 
 
 Crons-examhwd. Boys took away poles for fencing ; cut from salt water into pond. Saw 
 the stajfe when they were destroying it ; part of it was in the water ; I think there were six feet 
 on the land ; I am not sure ; could get on platform without wetting my feet, by walking on the 
 plank they hatl there. 
 
 JosKi'H McNeill, Grand Narrows. Know Point; know platform about middle of Point; 
 built witn logs, timber on top of logs ; part of platform was on the grass— the inner part ; it wa.s 
 built of a kind of logs ; it was in six or seven feet from the water ; it went out into the water 
 about sixteen or seventeen feet ; no difiiculty in getting on ; land was dry about it ; there was 
 one corner resting on the grass, and th> other corner about high water mark ; the west end was 
 on the grass ; the upper logs were longer than the lower ones : .some of the timber was on the 
 wharf ;"wharf was built with cross logs ; it was all one block on top ; there was tindier that was 
 not in the block ; it was, as I remember, about high water mark ; I was one of the parties that 
 went to remove the block ; it was moved by our hands and handspikes ; we pitched it out in the 
 water ; the timber was not injured ; there were no axes iised ; we were al)out an hour or an hour 
 and a half removing it ; remember John McKinnon, Jr., coming. 
 
 Vvoni^-t'xnrimed. About thirty logs were in t'-e wharf, I think ; twenty or thirty pieces of 
 timber on it ; the rest of timber and material was about high water mark. I think he had been 
 working with his son ten or twelve days at it. We remove.l it about fifteen feet from the .shore. 
 Went to the Poin befov(ahat with Father McKenzie to .see plaintiti: The prie.st .said he was 
 not allowed to budd there. He had tindier on the sh.uv, but had not bnilt any; was dragging 
 up logs on the grass ; this was about fifteen <iays Iwfore we destroyed it. 
 
 Zrons-examhud. I am brotlier ot one of tiie defendants. Some of the others began before 
 me, five or six minutes ; they began before 1 got there. 1 tiiink the platform was eighteen or 
 twenty feet wide ; it was pretty near s(iuare ; it went fifteen or twenty feet into the water ; the 
 water" is .shallow there ; woidd have to walk from high water fifteen or twelve feet to get up to 
 one's knees ; would go six or seven feet from high water mark before 1 got o\ er my boots. I 
 would have'done it Tf all outside of high water mark if aske.l. Some of logs were below the 
 water. WHien we took the upper part ott' we pried up others that were in tlic mud under the 
 water. 1 think the tide rises about a foot there. Diil not count the wharf lugs ; can't say how 
 the logs were placed; .some of tindier was at high water mark away from thr platforms; we 
 shoved ott'some of that into dee]) water. Will not swear plaintifi'was not at work for a month, 
 1 think the logs were where the platform was put afterwards ; can't say exactly. By the grass, 
 the same fus in the pasture, two feet of ti>e sticks came on the grass ; sticks were thicker at one 
 end than the other. 
 
 ■)00 
 
 .-)10 
 
 'rlQ 
 
 .V-iO 
 
 m 
 
kiU 
 
 ■ ™..«.nT.nnn.»».fc» 
 
 i 
 
 14 
 
 IIkctoh McKenzik, a defendant. Know the Point; went to remove the platform, with 
 others, bnilt with a kind of logs ; it liad cross pieces ; there were four logs and cross pieces ; 
 three cross pieces, others laid on top of them ; four logs on top of them and cross pieces, forming 
 the second tier ; it was then covered with a kind of p j'as ; wome of it was on the shore five or six 
 feet, as far as I know ; the top pieces were coming on the shore ; there were two logs running out 
 on top of second tier ; the end of these were on the beach from five to six feet ; these top logs were 
 covered near the shore with a pole here and there across ; the platform only ran ou*^. the length of 
 one log at the bottom, and had two logs in the second tier ; there was nothing outside of the log tluit 
 was on the bottom ; on the top there was a ship timber. Nothing had been done when I got down ; 
 I was among the first. I think not more than thirty or thi.xy-five wharf logs in the structure ; saw 
 no other wharf logs abo t there ; there was timber on the .shore and on the platform ; about sixteen 
 or .seventeen pieces on the platform ; we did not place timber on the shore ; we found it there. 
 Width of platform about sixteen or seventeen feet, length twenty-five or twenty -six feet. We 
 removed structure out into the water; it did not sink, as far as my knowledge; don't think we 
 were more than an hour ; we did not remove all that was on the shore; the logs were .second 
 growth red and wliite spruce. I sold straight timber at four dollars a ton. Could get on the 
 platform with dry feet ; I walked right on it ; did not wet my boots. The innermost portion 
 of platform was three or four feet inside of high water mark. It was a fine day. 
 
 Oroi^s-examined. Never sold ship timber; tide only three or four inches; both sides of 
 platform were touching the shore five or six feet from the water edge ; they went five or six feet 
 on the beach ; they went as high on both sides as high water mark, above high and low water 
 mark ; some of the logs were tv little longer than others. There was an old scow there. I won't 
 sv. ear there were not a couple of plank there from the old scow ; can't say I went on by those 
 plank. Some of the parties got their feet wet. Don't recollect any hand.spikes bting used. 
 Will not swea: there was not more than one length of logs in the botto:n. The bottom logs 
 were, to my knowledge, twenty-five or twenty-six feet. I don't think there were thirty men ; 
 can't say ; there were twenty-two or more. Did not measure block ; we were excited ; can't say 
 it was not twenty feet wide. 
 
 Jie-ejximhied. It was not sixty ; don't think it was forty, but will not swear. 
 
 MicHAKL McNeill. A defendant; know Point for twenty years; remember when wood 
 was cut off' from it. Father McCJillivray was the parish priest then. It was cleared north of 
 chapel, but can't .say if it was cleared eiist of wliere the road is now. Went with the re.t to 
 remove platform ; requested to go ; platform made of logs and poles. Did not go on it. I think 
 it was two logs in length out from the shore. The inner end was on the land, five or six feet 
 inside of high water mark. They were touching on the grass above the beach, above high water 
 mark. The inner end and lower tier were resting ca the land, outside of the water's edge ; plat- 
 form had parallel logs going out into the water; can't say how many. There wo' > about 25 or 
 30 logs out of the water, and about 40 or (iO, or more, in the water. I meant the timber of the 
 logs. I can't say there were more, than 30 or iO pieces. There was a pile of timber which wo 
 did not touch,— of ship timber. There was about four logs laid out, and another tier above on 
 the cro,ss pieces ; there were poles on top. I call them poles ; they were not large. ''" .utts of 
 some were nine inches through and the tops two inches; some five incnes in the butt , ,. ^y wore 
 smaller than the logs I have seen in wharf at Chri.stmas Island. We moved some that was on 
 the shore into the water. The water would be four or five feet deep at outer edge, i' my opinion, 
 
 540 
 
 550 
 
 5G0 
 
 570 
 
 580 
 
 I 
 
:.. I 
 
 fcVl 
 
I 
 
 o'M 
 
 15 
 
 ror nn.e poles »l.oO , they were about same .size as tliose I saw on the wharf I siw hi,„ \.;,.H„ 
 timber out of the pond. There was a pile there ; can't .ay log., or thnber ' '"° 
 
 r..i./'7r''""^- ^'"^" ^"" '"■ "" ''''^'''^ ■^°'"^'"'"^*^ '«««• Jt was land grass where the sticks 
 aiDo^einer. L^ ns. <o Co«r« ; The platbrm was about three feet thick at inner end • it was ^t tlw. 
 
 RoRY McNeill (Gtie/ic interpreter sworn. Not sure how old he i. • thJnt fw . • 
 th.rty. Went with the rest. A little of the timber wa in ^,e watl ' Sa v tirf fh""."' 
 
 or and. There were about two tiers in the inner end of the .st^ ucture and three tiers in the outer 
 Cross-exavuned. I talked with the other witnesses. Understuo.l before 'l Inff hn,„ f 
 
 Adjourned o o'clock. 
 
 Hatubdav, 28th August, 1880—10 A. M. 
 
 Wor^T'T^ ^'^'"- ."^r "' '^^^■^"^^"t- G--^"^' Narrows, two udles above Christ.„a.s Island 
 Went to help remove platform. It was about thirty feet long and fifteen or sixte fTet t^d " (310 
 Some ot It was on the water an.l some on the shore. I walked up on it • did TnTLl I i 
 
 gomg on. There ..ere some timbers on the platform ■ we put h m off 'w . Z 
 
 out in the water. The logs were smaller than'wharf bg. Nev w tch a w^ f S.^^^^^^^^^^^ 
 uubers on the shore and the grass. I was one that r^inoved it ; Z-H^ iC,:' i ' ^ """^ 
 moved It into the water further out than the platform. It was about 18 in, 1, s 'h> n l .' 
 
 ou t..tnUhewat.r; it wa^ not above my knL. I think there ti:'..^: :':t ^1;^;:;;' 
 and two of cross pieces ; cross pieces on top. The cro.ss pieces were about five inch at 1 en ' 
 
 taike?rt=i„fT;::::t:-;tf^ -- - - 
 
 us here. Did not agree about the si.e, and neVer heard" a gra . X W :f th " V' 
 
 were the s,ze I have mentioned. I don't think any of them were a fW 'tone . n 1 ' ^ 
 any of them were eighteen inches ; will not swear'. Did not la:urp;:tforr' Th^^^^^^^^ 
 
-^ 
 
K 
 
 16 
 
 from the platform were, sonio of tliem, on tho grass. I rolled some off the grass. Know there 
 was an old .scow that had timl-jer in. The {ilatfonn would bear the weight t)f a boat ; can't say if 
 it was large enough to build a schooner. The wharf logs were, by my estimation, fourteen or 
 fifteen feet long ; don't think I saw any thirty feet long ; there miglit be some thirty-five feet 
 long, i)ut I did not see them ; I know that tlie lower tier ran out ; I mean the logs in the bottom ; 
 I helped to remove all of them, the bottom ones and all. Don't know that there were two tiers 630 
 in any part nmning out. There were two crilis ; one outside of the other ; can't .say if they were 
 built together or seperate. There were between thirty-tive and forty wharf lo.<;.-. of a!' kind-t; 
 twenty-eight or thirty of what I call whr.rf logs. Not covered with poles ; only one here and 
 there to keep up the ship timber; about half a dozen of what I call poles ; did not count any of 
 them. 8ome had hand.spikes; there were twenty-three ,i- twenty-four of as. It took us af)0ut 
 half an hour, pernaps a quarter of an hour. I walked round the platform to put out the logs so 
 as they would float in the water ; I mean the ship timber ; it was eight, nine and ten inche., thick. 
 It was not above my knees at outside. There was wood besides; the most of it was round. I 
 did not go in above my knees. The top of the platform W-s seventeen or eighteen inches above 
 the water. Only two log.s at outer end above one another ; can't swear ; only two thicknesses at ^■^^ 
 outer end. Have sold better than any of them ; liesidi^s one or two for twenty-five cents. Tliere 
 were fifty or sixty sticks of ship timl'er not on the platfovm, — a few on the platform ; did not 
 put them all adrift. 
 
 H. F. McDoL'GALL, Esq., M. P. P., Cape Breton County, Christmas Island. Know the Point 
 and road to wharf. The whole of the south end of the bridge is east of the line, and nearly all 
 of the north end ; all l)ut one or two feet. Bridge was built between fifteen and sixteen years 
 ago.- Tb.! bridge was built imder direction of Fatlier Mclsaac. The end of the road next the 
 north enu of bridge is partly over the line. It was built six or seven years ago. The gate was 
 put there under direction of the priest ; his .servant put it there ; the priest's boy has always 
 looked after it. There is about two feet of the gate west of the line. Road and wharf built OoO 
 under my direction. The priest gave permission to build the road. About one-third of the Point 
 shows indication of having been cleared some twenty years ago ; most of it pretty good pasture- 
 The woods on it are of second growth. No heavy wood oo it. Saw platform at a distance ; 
 could form no estimate of its size or height. I don't remember buying wharf logs over fifty cents. 
 They woidd be hemlock, &c., twenty-four feet long and nine inches or ten at small end. Not 
 much danger of timber being lost at that place. Was at meeting of Wardens when plaintiffs 
 ap[)lication for leave was considered. He was not present. [Evi.lence tendered as to what the 
 priest said at that meeting, as plaintiff's agent. I refu.-e, Dodd objecting.] 
 
 Cross-examined, The Point is not what I c?M deared pasture land, no part of it. Probably 
 an easterly wind would drive wharf logs out of the harbor. Plaintiff and I are not good friends. GGO 
 
 MiCiiAKL McNeil. Live at . Belong to the Narrows ; sixteen years since I left 
 
 there. Was servant to McGillivray, P. P., about twenty -seven years ago ; I cut for him over to 
 the Point from the chapel. 
 
 Cross-examined. Can't read nor write. Cut north of chapel ; left poles there ; cut toward.^ 
 the bridge ""d down to the Point. 
 
 [Defendant rests.] 
 
 f 
 

IV 
 
 RKBMTTAL 
 
 Plaintiff recalled. On a wharf sixteen feet wide and twenty-five or tliirty feet long 1 
 could only iHiild a small boat. The timber I had gathered would build a vessel of seventy tons 
 or a vessel of three hundred tons ; there w.rc .icks enou^d. f.r the smaller vessoUnd they were 
 large enough for the larger vessel, but not enough of them. At the outer end I considered there 
 was between four and five feet of water. Heard Hector McNeil's testimony as to depth of water 
 and height of platform. There were large logs (many of themj from twenty to tw.nty-hv,! feet 
 long ■ a .rood many of the long ones were over eighteen inches diameter; cound n.,t build a ves- 
 sel of seventy tons on such i^oles as were descrilwd ; the first layer at the outer end was five or 
 six cross pieces lying parallel to the shore in the wind ; pieces from toward the shore lay on them. 
 There is a little bank above the beach two or three feet high, with grass growing on it ; the 
 beach below is about seven feet wide at the lowest water. The first tier of logs leading out did 
 not extend inwards to within about ten or twelve feet of the west face of the wharf; then there 
 were cro.s8 pieces ; the next tier came out to the western face ; there were cross pieces on that 
 a<'ain • then another tier on top ; this was the la.st ; it came in towards the shore ; 1 put the largest 
 in the bottom and the straightest on top, so as to be level for the covering. 'H^o west face ot 
 the wharf was about twelve feet from the edge of the water; two planks led to the .shore, one 
 lar"er thr... the other heading to the beach, not quite to the foot of the bnnk. The planks w-re 
 about rou" inches thick ; there w,eiv about eight logs parallel lying out fr.MU the shore ; m soine 
 cases there were two lei gths and in some three lengths ; there was no place in which a single 
 lo.' led all the way out ; there were either two or three logs in each case ; there were three cross tiers 
 at^the outer end and two at the inner end. [Produces and explains plan of wharf marked " A. 
 J."J Had conversation with Father .McGillivray about twenty-seven or twenty-eight years ago. 
 He wanted to clear second growth down to the Point ; he brought me to show him the line, and 
 he cleared to the line and no further. 
 
 C,'o»^-exavdned. Could only conveniently build a small boat on that platform a.s described. 
 1 built no vessel of 200 tons ; the largest I built was IfsO tons— a heiniaphrodite brig. The long 
 lo-rs were roil spruce. We were about a month building it ; put stakes to hold down the lower 
 tier- .staked also secoml tier; ui.: not stake them to th.- bottom; they all Hoated until the weight 
 cam- on them. 1 had a boat. They were notched in the water. Ha.l two slippers on one sme 
 to slip the .ship timber up. The logs were about two feet apart. There is no clearing between 
 the line and the Point; no indications of any clearing east •.: the line, except a few sniall trees 
 lately cut on a little corner next the water. Can see platform from the road near the "lore. 
 lUodd proposes to prove a paper signed by plaintifi", which has come into his possession since r,,e 
 previous examination ol" piaintili'.] This is my signatm-e and marks on explanation, t athei Mc- 
 Kenzie .sent for me, and threatened to expo.se me in chapel next Sun.lay, an.l I thought it was 
 better for me to sign this, end I would get a place to build, un.i 1 then asked for another site, 
 and he said no. Then I said I would not consent to that paper. [Put in and read. Acknowl- 
 edcn, ent of plaintitl', dated 1st Dec, 1877, marled H A. J.] Commenced about twenty ieet from 
 bank in about a foot of water ; about twelve or fifteen over thirty feet long ; there was one hun- 
 dred whatever, large and .small. It was level two feet above ^^ ater all ronnd. The flooding ot 
 poles would raise it about five inches ; the blocks below keel would be two and a half feet high ; 
 the stern of vessel would be five feet high ; depth of water there four or five feet, but getting 
 deeper ; such a vessel would draw six or seven feet at stern, and three or four forward. I in- 
 
 070 
 
 080 
 
 090 
 
 700 
 
 710 
 
18 
 
 toixltiil to build lier storn out. Tim storn would [)iojoct a littlo over tlm platfonu. Thv planks T 
 had were got out of the scow that was floating iihout ; end ut" planlc wa.s on tho heacii ; notliiiig 
 wa.s lying on tho Point. 
 
 Re-examined. I have not finished my new ve,s»ol, as I have to launch her on the ice. 
 
 McKknzik. p. p., recalled to explain as to the paper. Read Bishop's letter. Plaintiff said 
 he hdil no claiiii, and did not make any clain.. Expressed his willingness to sign; ho signed it 
 without a word. Made no threat of exposing him. 
 
 Vross-exumlncd. I was much annoyed at plaintiff huilding there ; I spoke publicly in a 
 general way; did not mention his nami; ; perhaps the people understood wh )ni I meant; there 
 might have been a reference made to the timl)er, or getting a plact; / build, at tliL time; d,)n't 720 
 think I threateneil him at all in any way, directly or indirectly. He did not repudiate the paper 
 after he had signed it. 1 think I told him it was of no legal use — I meant not properly drawn. 
 Tie objected to an expression after signing, and I wrote it over. He made no condition when he 
 signed it. 
 
 John M( KlNNoN, Ju., recalled. This plan of wharf is a correct -sketch There were three 
 or four feet of water outside. Some of logs thirty to thirty-Kve ; largest eighteen to iwenty-two 
 inches at big end ; two planks to the shore, one short and one long. Could build a vessel of sixty 
 tons on platform. Length of platform I estimate at Irom fifty to sixty feet, 'nd fifty feet wide, 
 bo the best of my knowledge. It was longer out from the shore than in middle; could see 
 <lifference in length of .sides. 1 worked ten or twelve days on it; my la-other worktid longer 730 
 than I. Could easily .lee difference in length of sides ; ten or twelve feet difference, I think. 
 
 Plaintifi r ;sts rebuttal at 1.40. 
 
 Recess. 
 
 Dodd calls attention to Act for Incorporation of Religious Congregations and Societies, R. S. 
 139, and the Act to Incorporate the Roman Catholic Bishop as corporations sole, which is not in 
 the court hou.se. 
 
 Dodd at 2.4.'), to Jury ; cites Phear on Rights of Water, 70 ; citing Green.sdale vs. Halliday, 6 
 Bir,g. .S79 ; Davis vs. Williams, 1G2, B. 540. 
 
 MacKay to Jury at 3..".5. 
 
 Charge at 740 
 
 Jury retire at .^.oO. At 9. .50 I sent for the jury, and they inquire whether the-" can allow 
 for the plaintiff's labor on the structure, vm' i informed them that they may ilo so, as it is a part 
 of plaintiff's Icjs.-:. They retire, and at 10.10 the jury return and find a verdict for the plaintiff o-. all 
 the ^'our (juestitms submitted to them, and a general verdict for plaintiff, $152, the .tmount 
 beino- u -••"■■s;'d its explained by the foreman from the sum named in answer to the fourth question, 
 by the adtiition of the plaintiff's labor. 
 
 Adjourned at 10.30. 
 
■'Wmrf 
 
 19 
 
 CHARGE. 
 
 V ■ . 
 
 I submitted to the jury the four followinjr questions : — 
 
 1. Had tlie Chu'-ch authorities exclusive and continual use and possession of this Point for 750 
 twenty years before action was brought ? Ahhwit. — Yes. 
 
 2. Did the plaintiff's platforn, .-est on the shore at any point above low water mark ? 
 Anstver. — No. 
 
 3. Did defendants remove any of the plaintiti's logs or timber that were in or over tie 
 water, and not resting on the lands above medium high tides ? Answer. — Yes. 
 
 4. What was the value of the logs and timber so removed ? 
 
 I told the jury that the plaintiff had made a prima facia title t(. two undivided fifths of the 
 point of land in dispute, that the defiwidants had set up title by possession to the land, and if they 
 were of that opinion they would express it l>y their answer to the first question. I told them 
 that if they found the first question for the defendants, as to which I thought not improbable 7C0 
 under the evidence, then the defendants had an undoubted right to remove, on the command of 
 the t'hurch authorities, which had been proved, any logs or timber placed on their land by the 
 plaintiff without permi.ssion, but no more ; but if the plaintiff's erection wa.s not on the land, but 
 wholly in the sea, if a nuisance at .ill, it was a public nuisance, and could not be abated by any 
 private individuals, unless the erection did a special injiuy to such individuals, or th:;se under 
 whom they acted, citing Roscoe N. P. 71.'); that i ha<l prepared th( second and third tjuestions 
 in order to ascertain distinctly the opinion of the jury as to the actual position of the 
 wharf, which was very material, and I left the auiount oF damages, if they found for the r>laintiff, 
 the credibility of the witnesses, and all of the questions of fact in the case, entirely open 
 to them. ypj-Q 
 
 CAPE BRETON SS. IN THE STIPREME COf'RT AT SYDNEY, 18S0. 
 
 JoHX M( KfN.NdX, J'Inintirf'. 
 
 vs. 
 
 John McNeil, Hkctou McNeii,, RmKHicK McNkii,, M[l'llA^;L McNkil, Alk.\.vxiji:u M( -lixxox, 
 
 HrjGH Mc:Nkil, Murdoch McKioNZtK and Hkctou McKkxzie, Defendnnii^. 
 
 Upon moti(m it is ordenwl that the verdict for the phnntlfi', obtained in this cause, be set 
 aside and a new trial granted upon the following groiuids, namely: — 
 
 1. That the said verdict is against law and e\ idenee. 
 
 2, That eviilenee was improperly received at the trial of the cause. 
 
Ai 
 
20 
 
 3. That evidence was rejected at said trial which was properly tendered. 780 
 
 4. That tlie learned judge who tried the cause misdirected the jury. 
 
 5. That the jury having found thu lands in dispute was po.sse.ssed by the Corporation of 
 the Diocese of Arichat, or the Church of St. Barra, the defendants, as their agents were justified 
 in committing the trespa.ss complained of. 
 
 6. Th»t the alleged trespasses were committed after notice to the plaintiff to refrain from 
 erecting the structure on the lands of the c.rporaticm for whom the defendants were acting, and 
 were only such a> were sufficient t« prevent the erecti(m of the said .structure on the lands of the 
 said Roman Catholic Corporation of the Diocese of Arichat. 
 
 7. That the plaintiff" erected a nui.sance on the borders of the lands of the Church of St. 
 Barra, or of the Corporation of the Dioeese of Arichat, and the defemlants, at the instance of the 790 
 owners and occupiers of the same, removed said nuisance, as they lawfully might, which was the 
 alleged trespasses. 
 
 8. Such other grounds as may be raised by counsel at the argument. 
 
 Unless cause to the contrary be shown before the Supreme Court, in bane.., within the first 
 four days of the next ensuing ter-i at Halifax. 
 
 Dated at Sydney this 1st day of September, A. D. 1880. 
 
 By the Court, 
 
 (Sg'd) C. E. LEONARD, P rothonotary. 
 
 PLAINTIFF'S EXHIBITS. 
 
 " B." A. J. — (JliAXT FROM TUl') ( 'ROWN. 
 
 To Hector AfcDuH;/ul/, Air/iiba/d Afr/)oa;/.i//, Hoderlck McDou'iall, Jului JfcKliuwn and Donald McXeil, 
 
 datfd Xoivmhrr J,th JSS3. 
 
 800 
 
 "To the said Hector McDougali, Lot No. 1.5, opposite Christmas Island, .south side Little 
 l^ras d'Or ; bounded by a line beginning at tlie north-east corner boundary of Lot No. 14 ; thence 
 running, by the magnet in the year bsOS, south ten degrees east, 10!> chains, more or less, across 
 a small iidet to a general rear line; thence north seventy degrees ea,st, in the year aforesaid, 
 twenty chains and nine links, more or less, till the aiu'ient boundary between Lot No. 15 and No. 
 10 be in a direetion north ten degrees west; tlience north ten degrees west, in the year aforesaid, 
 one hundred and eleven chains, more or less, across a .small inlet to the shore ; thence along the 
 shore westerly and across the two iidets to the place of eonunencement, containing two hundred hiq 
 acres, more oi' less, agreeably to the aniu'xed plan." ' 
 
w^^^ 
 
 ^V-^. 
 
 J 
 
 lfc 
 
21 
 
 "C." A. J. — Deed Dated August 15, 1877. 
 
 '^^unald, of ths 
 of 
 
 Froin " Alexaiuler McDougald ami his wije Mary McDougnld, and Ida sister Mary Me, 
 North Bar, in the County of Cape Jireton and Province of Nova Scotia, and Jnh 
 Christmas Island in the County and Province aforesaid, and Sarah McDo\<';mv •\,iia ■^.,:^r.dne 
 HcBougald, being the heirs of the late Hector McDougall, deceased, of C'ht'i'ciH's island, in tht 
 County ami Province aforesaid." To " John McKin,i09i, of Uh'-i-itnuio ul\-i:'i, in ihe GourUy and 
 Province aforesaid," 
 
 Conveys " a certain piece or pai'cel of land, lying and being at Christmas Island Harbor 
 aforesaid, known as part of a lot of land grant to the late Hector McDougall aforesaid, and 
 bounded southward by the glebe land, and bounded west, north and east by the waters of 
 Christinas Island Harbor, containing by estimation one acre, more or less, together with the 
 improvements," &c. 
 
 DEFENDANTS' EXHIBITS. 
 
 " F." A. J.- -Okant from the Ckown. 
 
 To the Roman Catholic Episcopal Corporation of the Diocese of Arichat, dated July 30, 1818. 
 
 Grants "a lot of land containing twenty-eight acres, in the t!ounty of Cape Breton, and 
 bounded as follows : Beginning on the northern side of the Post Road and on the western line 
 of Lot No. 14, in tlie first range of Iocs on tin; soutiiern side of the Grand Narrows, and directly 
 opposite Christmas Island; thence lujrth-easterly by the northern side the said road, fifteen 
 chains and eighty-eight links ; thence north six degrees west, four chains, to a brook ; thence 
 north-easterly l)y said brook and a cove, five chains and eighty links, to the eastern line of said 
 Lot No. 14; thence north six degrees west, five chains, to the shore ; thence westerly by the 
 shore at high water mark to the western line of said Lot No. 14 ; thence south six degrees east, 
 sixteen chains and forty links w the place of beginning, * * * wliich lot is particularly 
 marked and describetl in the annexed plan." 
 
 820 
 
 830 
 
 " H." A. J. 
 
 I, the undersigned John McKinnon, of Christmas Island, do hereby abandon all claim for 
 
 ever to a piece of land which the Churdi clauus, and of ,vhieh I received horn some of the heirs 
 
 of the late Hector McDougall their pretended right to it. I will, as soon as possible, transfer 
 
 back whatever title I got upon it ; and further express jny regret for having given my Parish 
 
 Priest and Bishop so much trouble about it. I also pro >iise never to give my assistance directly 
 
 or indirectly to <'eprive the Church of the lot of land in question. 
 
 (Sg'd) JOHN McKINNON. 
 In presence of M. McKenzie, P. P. 
 
 Christmas Island, 1st December, 1877. 
 
 840 
 
 #•