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 1 2 3 
 
 1 
 
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V 
 
 ^OVA SCOTJ4 
 
 PROVINCE HOUSE 
 
 I' 
 
 m^ 
 
Liitmiii ft m ' 
 
 (JIjo^i^ 
 
 ti^ictrit §ottrt, S'^vH 
 
 Il;T"^E}IS3:TBi 
 
 coim. 
 
 DONALD McDonald, Plaintiff. 
 
 AND 
 
 DUNCAN CAMPBELL et al, Defend'ts. 
 
 H. EC. BXilGhHL, 
 
 Counsel for Plaintiff 
 
 ISr. EC. JS^B-^G-HEE,, 
 
 Counsel for Defendants. 
 
 HALIFAX, N. S. 
 
 Wm. Macnab, Steam Job Printfr, Princk St. 
 
 1881. 
 
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 If 
 
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|/i^/m/r i^ourt M^^^ M^^^^'^* 
 
 IDSTTTEiensrESS, ss. 
 
 DONALD McDonald, Plaintiff. 
 
 AND 
 
 DUNCAN CAMPBELL et al, Defend'ts. 
 
 H- EC. SLIG-H, 
 
 Counsel for Plaintiff 
 Counsel for Defendants. 
 
 HALIFAX, N. S 
 
 Wm. Macnab, Steam Job PriniEB, Prince St. 
 
 1881. 
 
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• . ) 
 
 V 
 
 
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 I 
 
 
PHP 
 
 4* 
 
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 iisriDEix:. 
 
 
 PAOR 
 
 ;)ict •.v*':>p 3 
 
 t'leah ..... * 
 
 .4inut<'s ./' T-ial * 
 
 Plan oi Property ^ 
 
 Rule Km • 
 
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 '^^^mm 
 
DECLARATION. 
 
 INVKRNBH8,Si, 
 
 VliToRrA, tiy tho graco of QimI of thu Unitoii Kingdom of OrMt HriUin arul 
 IruUiul, Qumn Defender of thu Knith. aiut of thu ('hurch uf Kiiglaiul 
 on uArth the Htiprpino H<>a<i. 
 
 To the Shfriff of the County of Invfttifttit, or fo any other of our Shrrifft : — 
 
 Wu coiiiiuantl you to Niiinmon DuFtcan ('kiii[)U>II and FAri|iihar M. F'adi<t<an, lM)tlt 
 of tho north nidw of tho Littl« Narrows, in tho County of Invmni-Hs, Farinont, to 
 app«>ar in tho SupnuiH" (!c»iirt at Port Mood, within ton days aftor tho Norvieo of this 
 writ, at tlio nuit i>f D-jnahl McUoimld, who xayn that tiio said (Uifondantu hruko and 
 cntcrod cortain laniis of tho plaintitr, Hitiiato on tlio road loading; from Littlo Narrowa 
 to tho hoail of Lako Ainhlio, iH^^inninK on tho oantorn «ido of a brook running into 
 WliycHWoiiiBgh Hny, and forndng tlio i«aNtfiii lioiindry of hind« occupiod hy Mindoch 
 McLootl, AngUN McAuloyund others; tlionco ruIlnin^' by the iiin^nct north nixty-nino 
 degrooH fast, by tho M<iuthorn lino of ono hiindrod and ^«vonty<,n<^ ftort'iH oocupiud by 
 John Mathoson, Hixty-ono chainK »nd fifty linkn ; thonco south H«vonty-ono dogroea 
 oast tidrty-thico I'hairm and fifty linUw ; thotu-o south sixty-nino dogrooH wost xixty- 
 tluec chtiinH to tho brook ; thenco nortliwostoriy by tho brook to tho placo of coni- 
 monconient, containing two hundred and six acros, more or lesK.and cut, carried away 
 and destroyed largo (piantities of tindwr trees, polos and wood. 
 
 2. And also that tho said defendants broke and entered certain landn of the 
 plaintifl", situated on tho read leading from thi^ Little Narrows to tho head of Lako 
 Ainslio, b(»undf<i as follows:— On the west by the brook running into W'hycocomagh 
 Bay, and forming tho eastern boundary of lands occupied by Murdoch McLood, Angus 
 McAuley and others; on tho north by lands occupied by John Mathoson ; on tho oast 
 by Crown lands, and on the south by Crown lands, containing two hundrotl ami six 
 acres, more or less, and depastured the same with cattle ; and the said defendants, 
 by themselves and their .servants and with horses and vehicles, dug up, ploughed, 
 cut and destroyed the said land, and the trees, herbage and grass growing thereon, 
 and destroyed the fences and gates erected thoroon, to tlie great damage and loss of 
 tho plaintiff. 
 
 3. And also that the said defendants cut, took, carried away, and converted to 
 their own u.se the plaintiffs goods and chattels, to wit : r' ie hundred poles, nine 
 hundred logs, nine hundred fir trees, nine hundred spruce trees, and ono hundred 
 cords of wood. « 
 
 And the plaintifi' claims one thousand dollars damages. 
 
 Issued August the 1st, A. D., 1879. 
 
 jNO. A. McDonald, 
 
 Plaintifit Atty. 
 
 JAMES McDonald, 
 
 Proth'y. 
 
 10 
 
 SO 
 
 30 
 
 40 
 
n 
 
 i 
 
 I 
 
 r 
 
I '*-mm! 
 
 PLEAS. 
 
 I Tlu- .lt«f.n.l«nln, hy Samu* I McDonn-ll, tlwlr attorney, for ft pl«ft Hfty thftt 
 th«y tli'l not coniinlt th« wviirftl treupMiKis coiii|»Uin«<l of by the plftrntitf, nor ftny 
 or uithu*' of thoni. 
 
 g. An<l for a N€>cor.l plo«, th<' .l.f.-n.UnU fifty tliat tho lUild Uri'lH w«re not ftt the 
 tin.'* of th.' f..ii.niittiri« th« ii Itl H«vfr»l tnMpftMM, tho Iftndn an.l noil or thft property 
 of till* plHintitr. 
 
 S. An.l for A tlur.l p' a, a»« .li>f».n<l»ntii «y tliftt ftt tb« time of committing tho 
 MaM -Mjvi rul troHiMwwm the wii<i Iftiuls and prt-mlaee were not In thu potweMJon of 
 thi« pkintirt' °^ 
 
 4. And for a fourth pica, th« defcmUnU May that they did what U coniplftined 
 of by tho leave and licenne of tho plBintirt'. 
 
 R. Tho dofendantM, by Samuel McDonm^ll. thi-ir Htt«,.n«»y, for a fifth an.l addtd 
 plea, Hfty RM to tho third count of tliu plaintitfM .hclaration. that the nai.l KoodH and 
 chattelH were not, nor were any or either of them, the pUintirt"». oh alleged. 
 
 SAMUEL McDonnell, 
 
 Dejendanta Attomeu. 
 And tho plaintiff joins issue, wherefore let a jury come, &c 
 
 -T-' ' I^Hlinr- n-MUJi iliilligi 
 
I 
 
 I 
 

 I 
 
 MINUTES OF TRIAL. 
 
 Mc;UONALD v. CAMPBELL. 
 
 UO 
 
 Thuiwday, 17th June, 1880. 
 J. A. McDonald opens. 
 
 Donald McDonald, plaintiff: Have land on Lewes' Mountain, on thi 1 range, 1 J 
 miles from shore. Have held it since 184:i— thirty-st>ven years. McLean canie from 
 the old country. He, my uncle and myself, W(! measured tl.o breadth of the lot on the 
 shore which hail been surveyed to get the breadth ; put a stake on the nuddle of Mc- 
 Lean's lot (now John Matheson's). We measiuvd tlit breadth of 100 acres each side of 
 the stake, so as to make a two hundred acn^ lot. Then wr run Norman Matheson's 
 (the father of John and Norman, marked on plan) ; then we came insiile of McLean's to 
 r>m one hundred acres for myself. McLean's lot is the one marked John Matheson, 70 
 who bought from McLean's widow. We ran across from McLean's and marked off two 
 humhv.l for me. McL;'an and I lai<l a line between ourselves. Where we measured 
 otl" was not very far above where road is now. Our wistern boundary was the river 
 or brook. We ran the side lines square with the brook. I put a stake at end of line 
 to mark eouthe'a boundary It was Crown land on the south and cast ; not on the 
 west. On the west the land was in possession of others. We all held ou-. land.s as 
 we laid them out. We had a surveyor in 18G8. He made alteration in boundaries. 
 The surveyor was Francis McKenzie. He was County Surveyoi. He gave me all I 
 held befot'e, and made the lots wider and shortened them. I agreed that he .should 
 do it. He did the same with all the lands in the block. I made the tirst clearing at 80 
 the river, alongside of the line. This was the first summer— 1843. The next was 
 next McLean. I fenced, cultivated, and sowed it, (marked 2.) I planted first, then 
 sowed it, and then let it out to pasture. This was the next year after the first clear- 
 ing_l844. The next clearin- (No. 3) was at the road joining McLean, nea.- north 
 line., I cleared about three acres there, and fenced it all, p!ante<l and sowed it all. 
 The'fiist clearing was about a half acre, (01.) The second (02) one acre, the third 
 (03) three acres ; the fourth was in S. W. corner of the line and road (04.) I cleared 
 2'i or three acres ; I planted and sowed there too. There are some seven or eight acres 
 or more cleared, beside the^e four clearings ; one McLeod made the last-mentioned 
 clearing. Hemeon McLeod was there. He commenced clearing inside of my lan<l. 1 90 
 told him h." was on my land. He said : " If I am on your land when I find that out 
 I will clear out and leave it." He was just commencing. I consented to that and 
 left lii.u alone. He wss ten or twelve years on the place. I showed him he was on 
 my lan.l. He left over twenty years ago. I showed him he was on my land when 
 he commenced. McCauley lived on it and made one clearing afterwards. I told him 
 he was on my land. He saiil he did not expect to live there only a short time. I 
 suppose he was there two winters, when he went away. One McLean cut lumber on 
 it. He and I settled about it. McLeod told me at last he was sure he was on my 
 land. I never saw defendants inside my old or new boand^. I nmde improvement- <>n 
 it after McKenzie surveyed. I cleared between two and three acres since, and fenced it. 100 
 
 I 
 
 Iff 
 
t « 
 
6 
 
 McDonald tcndcrH a receipt for five dollarH from the Treasurer's office for tive 
 dollars received from Donald McDonald, duposited for Crown lands in the County of 
 Inverness, 24tli January, 1878. 
 
 McDonnell, Q. C, objects. I sustain objection. 
 
 Witness — This is the only land I paid money to the Treasury on account of. I 
 claim the land and the weed on it. I saw defendants hauling away from the place 
 they had piled. They hauled away 08 trees. They were not piled on my land. 
 They were outsido of the line. I traced wIuto they had come from by the trail. 
 They had hauled the whole t.ees, tops anti all. They came from the land I was 
 claiming. They were mine first. They wore cutting them up and hauling them 110 
 away. This was in the winter of 1878, — the winter before action was Drought. 
 
 Crofta-examined by Mr. M'^Donnell : — All the shore waa^ settled when I came out. 
 Thfc 1st and 2nd divisions were settled. The nearest settler was a J mile distant, — 
 one McLeod, who loft in 18;j2 ; \ny first dealing', J acre, is grown up w th wood. It 
 has been growing up since 184.'). The second cltsaring is covered with second growth. 
 It may have been growing since 184G. Sonn of the third clearing is second growth, 
 and some in pasture ; one crop of potatoes and one crop of oats. Never took a crop 
 off since. It has not been fenced since I made clearing No. 4. T took three crops out 
 of it ; the last about five years ago. I made the cletiring six or seven years ago. 
 Took no crops since. I fenced it last at the last crop. I have kept the fence up since 120 
 for my cattle. I have no cattle o* my own. I live about a mile and three-quarters 
 distant. I never lived on the lot. I am a married man. I live with my father. 
 McLeod did not nsk leave of me. I don't know how McLeod left it. There was a 
 bargain between me and McLeod wh-n he went there. He left over 20 years ago. 
 The house he lived in was rotted away. 
 
 Mr. McDonnell admits that the defendants cut trees within the bounds described 
 in the writ in the winter of 1878, but on forest land which had never been cleared 
 or cultivated. 
 
 James H. Austen sworn :— This receipt is signed by Mr. Jean, Cashier's Depart- 
 ment of Provincial Treasury. I think this money came first to the Crown Land 130 
 Department, and we handed it to the Treasury. It was paid for Crown lands. Some- 
 times the money is sent with a letter withoiit a petition, and we prepare a petition. 
 I have no <loubt this was accompanied by a letter or petition. This is my writing to 
 letters to plaintiff, dated 7th Febuary, 1878. I am chief clerk in the Crown Land 
 Department. This letter is from me. I usually reply to a letter addressed to the 
 ofiice. I think Mr. White was Connnissioner then. Where there is any difficulty, as 
 in this case, I usually consult the Attorney-General. Mr. White was then Attorney- 
 General. I am not positive if I consulted him about it, as he was sometimes in C. 
 B., and then I answered the letter on my own judgment. 
 
 Tendei-s letter, (objected.) I sustain objection. 140 
 
 Plaintiff recalled to prove value :— I would not give the trees less than $1.00 
 each, standing. There were 98. 
 
 I 
 
\ 
 
 ' 
 
 BiiiieiiiiiiHi i M.iiiyiiiiyi 
 
'it 
 ■M 
 
 ' 
 
 160 
 
 Croas-examined :— There were large trees. There wore Hr not spruce. At 15 
 feet long tliey would be H inclit-H through, and would nquare 5 inclum. There are a 
 great man^ on yet. There niiglit b.^ :UM) or 400 more on the lot. I won't swear I 
 could get £25 for it all at auction ; with good title would rather keep it than «oll for 
 that. A great deal of hard wood on it. 
 
 Plaintiff rests. 
 
 Mr. McDonnell moves for non-suit. 
 
 1. No title. 
 
 2. No pos,sc.ssion. 
 
 3. Pos-session provfd institHcient. 
 
 4. No proof of authority of surveyor. 
 
 J. A. McDonald claims to bo entitled to a verdict on 2nd count. 
 
 1. Because plaintitf has a constructive possession of the whole lot, and trespass 
 nduiitted to be within the boundaries. 
 
 2. On Ist count, on the ground that the lines fixed by the County Surveyor, ten 
 years before trespass, gave sufficient possession to nmintain trespa.ss, as it amounted 
 to a barren license from the Crown. 
 
 3. No plea denying property in the wood, under Ist or 2nd counts. The land 160 
 may belong to me and the wood to another, and the property alleged in l.st and 2nd 
 counts in the wood should have been traversed, as was done in lelation to the 3rd 
 count. 
 
 4. That the possession proved is sufficient, as against a wrong-doer. 
 I direct a non-suit. 
 
Tf 
 
 4| 
 
 mmm 
 
T 
 
 .4i 
 
 8 
 
 - > 
 
 \ 
 
 01 
 
 PLAN OF PROPERTY. 
 
 Vacant. 
 
 N. 09° E. 
 
 74 cha's. 
 
 Nonnan Matheson, 
 
 100 ac's. 
 
 Norman Matheson. 
 
 100 ac'fl. 
 
 John Matheson. 
 
 171 ac's. 
 
 N. or E. 
 
 (3) 61 50 
 
 Pet. 14204. 
 
 ()2 
 
 (4) 
 
 Donald McDonald. 
 
 (•.•) 206 ac's. 
 
 63.00 
 
 S. 69° W. 
 
 A. J. 
 
 Mcdonald 
 
 CAMPBELL. 
 
 Port Hood, 
 
 June 17, 1880. 
 
 30 00 
 
 I 
 
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 5» 
 
 ts 
 
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 P3 
 
 
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 f r 
 
 
 Scale 20 cha'a to an inch. 
 
w 
 
 I 
 
 mHm< 
 
I 
 
 170 
 
 RULE NISI. 
 
 INVKRNKSM. SS. 
 
 IN THE SUPHEMK (H)URT AT POUT HOOT), »HHO. 
 
 DONALD MCDONALD, Plainti^. 
 v», 
 DUNCAN CAMIMtKLL an.l \ i,,f„„iauU 
 
 Upon reR.UT,K tho Ju<1«o'h ...inutos Uk,.n al tl..> trial In.vof.ttn.l H... other paprs 
 put in .vi.lonc. at tho nai.l trial, nn.l thn pl^-a-linKs h..r.in..a...l upon mot.on it i. 
 or.L;"l tlat the non-.uit granf-l h.r.in ho ..t ani.!., with cohIh. np..n th., fullow.ng 
 groun^H : — 
 
 1. That the Hai<l non-suit in aj^aiiwt law an.l ov- -i "b. 
 
 2. The improper rejection of evitlence. 
 :] The improper reception of evitience. 
 
 4. Because the .lefen.lants m. their plea.lin,. .1- not .h-ny the pluinUft'H proper^v 180 
 in the titnher trees an.l poles u.enth.ne.l in an.l elaiu.e.l hy the plamt.ff '"^he first 
 count ..f this .leelaratioM ; an.l becauHo the nai.l plea.linKH of the .lefen.lants .lo not 
 operate an a .lenial of the plaintiH"s property therein, an.l >"''-:''''^' '^Y " ^j^^^^^^^^^^^^ 
 not .lenie.1. an.! the .lefen.lants having a.l.nitte.l the taking, cutting, an.l .lestn.ct.on 
 of the .sai.l property bv them, the verdict should he f..r the plamtifl. 
 
 5 Because the .lef.-n.lants. hy their attorney, having acknowle.lKcl on the 
 trial that the .lefen.lants cut. carried away and .lestroyed the said timhei trees ami 
 poles an.l woo.l. and that the san.e were taken from .,tt' the lan.ls elanne<l hy p am- 
 iff. an.l .lescrihed in the fi.-st an-l second counts of his .leclaratw.n an. l..f whtch Ja.w 
 he gave evidence of possession; the ver.lict should have been for the P a."t ff - 190 
 against the -lefen.lants, being n.ere wr.mg-.loors. entering without any nght or t.tle. 
 Because the plaintiff was proved to have been in possession of the lot by 
 metesand hounds, fron. which the sai.l timber trees and poles were cut. taken ami 
 destroye.1 at the ti.ne of the trespass, and ha.l goo.l title an.l r.ght aga,n.st the .le- 
 fendants, wlu> were wrong-doe,^, and proved neither right, title, nor possession in - 
 themselves. 
 
 Unless cause to the contrary be shown within the first four days of the ensuing 
 tern. .>f th.> Supremo (burt. in bavco, at Halifax, and that the plaintiff have twenty- 
 two -lays to nle sufficient bail under the Statute in the sum of one hun< red an.l 
 sixty .h'llars, to respond the judgment to be finally given in this '•ause. and to give 200 
 
 notice thereof. „ .i_ /-. i. 
 
 By the Court. j^MES MrDONALD, 
 
 - - Prothonutary. 
 
 On motion oi | 
 
 Mr. Gii.us, V 
 P. Plamtlff. ) 
 
 Dated at Port Hood. June IH, 1880.