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li) tf^e Supreme ^ourt of Britisl? Columbia.
iisT msiE i^ttlxj coxjieT.
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.lAMKS M< NAMAKA,
A N 1 1
l!i:si'(iMiKNT.
I TIIF, colirolIAlloN ol' TIIK riTV (»K NKW WKS'IM I XS'IKI!,
Ai'ri:i.i.A.NTs.
Sbort Statement of Case.
'riii> .■ii'tiiiii i~ liroUirlit liy I'laintill' I'm' iliiiiiii^'c^ mHi'ltcmI to havr hfcn
>u>liiiiicil liy him in ihc flciiicrialinu <<{' ilic vmIuc> hI' iritain city Idt- nwncil l.y
liilji ill i'(ili>C(|iici;rc dl' the lowering; of lln' levels ol' llie sli'eets U|ioii uliieii >aiii
lots ari' situate, liy the eiitliii^; ilowii ol' >aiil streeir- liy ili>t'enilaiil< in tlic eouise of
ceilain iiii|iroveiiieiil- iiiaiie liy tiieni on llie streets. The aetioii eaiiie on rorlfiai
hel'oie His Honor .linli^e I'mh'. Local .ImlLte. on the I'.ilh. ■-':!ril and ■Jllli ilays oC
•iaiiUMi'y, A.I). Is'-i;!, who ;;a\e jniliiinenl in t'aMU'ol' tlie iilainlilt.
IJkiU KKN
I9 tl^e Supreme ^ourt of Britist? Columbia.
Writ issued llic 2Stli diiv (if Mav, l-SH-'.
JAMKS M( NAM AHA,
AND
I'l.AINI ll'K
TIIK COUI'oUArioN OK TIIK (MTV OK NKW WKSTMINSTKH,
DlClKNUANTr
Endorsement on Writ.
Tlie Pliiintilf s cliiiin is for (•(iiiiiiciisation for :li\iiiat;i's doiii' to his |iro]ifi'ty,
Iiciug r.ots iniiiiln red seven and cialit, in liioct; nmiilicrcd scvontciMi, in the City of
New Westiiiiiister, liv tiic eNcavalioii .ir alleralion of tlie line or level of Colnnihia
Strei't in front thereof.
And also fill' ( iiui|iensatinn for iJainaLie;- done (o his proiierly. heint: Kiit
munbeicd nine in Hloek twenty-seven, in the said City of New Westminster, liy
(lie excavation or alteration of tiio line or level of Carnarvon Street in the front
thereof.
And also I'or coniiiensation for ilaina^cs done to his [Uojicrty, heinfj; I,ot num-
bered four, in Block numbered seventeen, in thesaid City (d" New Westminster, by tiie
excavation or alteration of the line or lev(d of .Vrmstroui; Street in tlie front tliereof.
Statement of Claim.
1 At the times in the year< l.SS!) and IS'.IO hereiiiaftt'r uienticuied, ci'rtain
land, being Lots 7 and S in Bloik number scveuteen, in the City id' New Westniin-
-ter, iHi the Northerlv side of Ccdumlia Sireet ; and Lot rumiier '.• in Block 27
199451
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[8]
situated on I lie Nidtlicily side of Cariiiirvoii Street ; iiiid Lot luinilifr four in Hloek
soventeen situateilon tlie N'ortlierly side of Arnistroiig Street, of and in tlie said City
of Now Westminster, were and are in tiie possession of tlie I'laintilf as owner
thereof in fee siiMi>le.
2. Many years before tlu^said limes tiie surface of llie said ('oluiiil)ia Streel
was nearly on a level witli the said Lots 7 and S in liloek IT, and hy By-law or
Uesolntion passed by the [)efei»dMnl Corporation a ;^rad(^ was lixcd and tln^ lev(d of
the said street wiis excavated or lowered to the level of the said ;;rade and the said
street was thereafter until the saiil year iSlMI, us so graded, u.-cd by the I'laintill' the
predeeessiM's in title of the said I'laintill' tlu'ir tenants and other persons travi llinn
on tiie said street.
;{. Before tiie said year l.Sllt) the predecessors in title of the said I'laintitf had
applied for and obiaiiied from the 1)( f'endant ('orporation the giade line of the saiil
street an<l the street line (d' the said Lots seven and eif^lit and thereupon had
erected uiion ^iicli j;rade and line a strong cril Mng along the South boundary of
the said i^ots to prevent the soil of the said lots from caving f)r falling into the saiil
street or otiierwise. Thereafter the I'laintilf's predecessors in title erected two
housei- U[)on the said lands, ami the i'laintilf and his tenants liad ea>y acces< to
the same from the said street so gra<leil as aforesaid.
4: The Defendants in the year IN'.M) wrongfully ordered the I'laintill' t(.
remove the said cribbing and fence further back, and wrongfully excavated and
lowere(l the said street in front of the said Lot and cut in and trespassed upon the
said l.iOt aii<l witlnlrew sui)port to which the I'laintilf as owner of the said Lot was
entitled, whereby it became necessary for tiie I'laintill at great expense to erect a
new retaining wall to prevent the soil of the said Lots from caving or falling into
the said street, ami the said Lots by reason of such lowering of the grade of the
said street are rendered mu(di less valuable, and the right of ingress and egress to
and from the said Lots over the said street is rendered permanently more ditlicult
than it was before the said year ISiKl.
5. 'i'he Council of the (Mty of New Westminster before the doing t.f the acts
eoinplainod of had not passed any by-law as recpiired by the Act incorporating the
said City, authorising the doing cd' the Acts complained of, and the Defendants
have lowered the said street and done the said acts as alleged without any legal
authority, and without in other ways observing the formalities required by the Act
for altering or improving the streets of the said City.
6. The Plaintiff further says that before the said year IcSStI) the surface of the
above-named Carnarvon Street was nearly on a level with the said Lot it in Block
27, and for many years a foot path had existed and been maintained on the North-
erly side of the saiil streel abutting u|)oii the said Lot for the use of the I'laintilf,
his tenants and his and their predecessors in title to reach the said land and other
persons travelling on foot on the said street.
[4]
7. For iiiiiiiv yi'iir.s a Ikhisc luul lic<'ii Imill ii|piiii tlic ^iiid laml, uml IIh' I'liiin-
lilt, his ti'iiants ami liis ami tlicir predecessors in title imd aceess to the siiiiie fniin
the said street, access tn aii<l tVoni whiidi Ikuisc was easily elli'cted over llic >aid
street.
.S. The said laml was of rif^lil su|i|inrled hy tlie land of the said street.
!•. The Defendants in the year l.S'.M) wronjifuliy exciivated ilie said street in
front of the said l,ot, I (I feet or thereahonts, and tlierehy have withdrawn suiiliorl
to whicdi the I'laintilf as owner of tlie -nid l,c>t is entitled.
111. The i'laintilf was also entitled to have f(i' i,iin.-elf and his teiumls the nse
of the said street in its natural state from aii'' out of the suid l"t ami hack a^tiin,
to f;o, pass and repass to ami from tlie sai ,, cot, and the Defendants in the said
veii: ISOI) wron;,'fuily e.xcavateil ami lowered the said -treet to the deptli of 10 feel
or iiiereahonis, Ixdow the -ai'l lot, and thereby r< ini'i •<! the approaidi to ai\d from
the said iiot over the said street very ilitticnlt ami almost inipossilde.
11. The Defendants excavated and lowered ilie said street as allefjed
negligently, carelessly an<l unskilfully in not leaving a suttieient npport to tlie said
liOt from the soil of the suid street, an<l in not erecting a retaining wall or other
lixture to jirevent tin s<dl of the saitl Lot from caving or falling into Ihi' said street
ami otherwise.
12. liy reason of the said several and respective grievances the I'laintilf's
interest in the -aid Lot was greatly injured, uml the suid Lot is much less valuahle,
and the I'laintilf wa> forced at great expense to erect a st(Mie retaining wall to pre-
vent the soil of the suid Lot from euving or fulling into the suid street, und the
right of ingress and egress to uml from the suid Lot over the suid street wus
rendered pernnmently more diflicult than it hud hitherto heen.
i;!. The Council o( the City of New Westminster hefme doing the ucts
conipluined of had not pas.sed any hy-law as re(iuired hy the Act incorporufing tlie
snid ("ity, uuthorising the doing of the nets complained of, and the Defendants
hnve lowered the suid street ami done the said acts us alleged without legal
authority and without in other ways ol)serving the formulities required hy the Act
for altering or improving the streets of the suid City.
14. And the I'luintilf further suys tliut the surfuce opposite the above named
Armstrong Street, wus previous to the suid years l.SS',1 and l.SOO, nearly on a level
with the above named Lot 4 in b'^ck -27, which suid street had for many yeurs
been constructed and maintained for the use of the I'luintitl', his predeee.s.sors in
title and other persons travelling on the said i*reet.
15. The land of the suid Lot 4 wus of right supported by the lund of the said
street.
'»
F>]
1(). Tlie Defeiifiiints in the year 1889 wHbiiRfiilly excavated aiul lowered the
said street in front of the said Lot, 8 feet, or thereabouts, and tlierehy have with-
drawn support to which the Plaintiff as owner of the said Lot is entitled.
17 Tlie Plaintiff was also entitled to have the use of the said street in its
aforesaid state from and out of the said Lot and back again to go, pass and
repass, to and from the said street, and the Defendants in the years 1889 and IMMt
wrongfully excavated and lowered the said street to the depth of S feet en- there-
abouts below the said Lot, and thereby rendered the approach tf) and from the said
Lot ver\' difficult and alniost inijiossible.
IS. The Defendants excavated and lowered the said street as alleged
negligently, carelessly and unskilfully in not leaving a s-ufticient sn|>port to the said
Lot from the soil of the said street, and in not erecting a retaining wall or other
fixture to prevent the .-.oil of the said Lot from falling or caving into the said ^treet
or otherwise.
19. By reason of the said several and respective grievances the said Plaintiff's
interest in the said l.iot was very greatly injured, and the soil of the snitl Lot sank,
gave way and caved into the said street, and the said Lot is nmch less valuable, and
the right of ingress and egress to and from vhe saifl Lot over the said street is ren-
dered i)erinanentiy vei'y dillicult an<l almost impossibk' without the expenditure of
a large sum of monev.
20. The Council of the said City of New Westminster have not passed any
by-law as re(iuired by the Act incorporating the said City, authorising the lowering
of the said street, and the Defendants have lowered the same as alleged witho'Jt any
legft: authority, and without in other ways observing the fornuilties required l)y the
Act for altering or improving the streets of the said City.
Lorn
The Plaintiff claims
1. — riie cost of removing the stone retaining wall
opposite Lots 7 and 8 $ oOO 00
2. Depreciation in value of the said lots • 2000 00
'A. Damages for trespass upon the said Lots 1000 00
4. The cost of huilding retaining wall and steps
into the said Lot 9 in Block 27 400 00
r>. Depreciation in value of the said Lot nOO 00
(). The cost of building retaining wall and steps
into the said Lot 4 in Block 27 400 00
7. Depreciation in value of the said Lot i">00 00
$5300 00
Such further or other relief as the nature of the case may require.
The Plaintiff proposes that this action shall he tried at New Westminster.
DELIVERED this Stii day of July, A.D. 1892, by E. A. Jenns, of 40
Lome Street, New Westminster, B. ('., Solicitor for the IMaintiif.
To James W. McCoU, Esq., Solicitor for the Defendants.
[-]
Statement of Defence.
1. Tlio Defcuilaiils deny that tl)« I'laiiitiH' at tlic tiiiu i- wlu'U tlic acts coiii-
plaiiu'd of in this Statement of Claim wero alh'ji;e<l to have hccn connnittcd was in
possession of tlu' iii'ic'ililaments tiiorein as owner tliereof in fee simple.
2. The Defendants deny that at any time the prinlecessors in title of the
Piaintiif of Lots 7 and s Bloek 17 heinj^ part of the hereditanu'nts inenti<ine(l in
tlie Statement of t'laim, ohtained from tlu^ DelVndants the urade line of the street
and the street line of the Lots, and deny the allejied ereetion of stronj: erililiin;;-,
and the Defemlants du not admit any of the allegations contained in pariiiiraph ;>
of the Statement of Claim.
r>. The Defendants deny that they, in the year 18!)() wrongfully ordered the
Plaintitr to remove the erihhing and fence .said to have heen ereeted on the said
Lots further hack, and further deny the other allegations contained in paragraph
4 of the Statement (d' Claim and each and every of them.
4. The Defendants deny that t!ie said works were exeeuteil without the pass-
ing of a hv-hiw or without legal authority, and deny that the formalities re([uired
hv the said Act were not complied with or that compliance with the said foi-malities
or any of them were conditions preeodent to the exercise of their autlmrity to <ni
the acts complainecl of.
f). And with ri'Sjiect to fvol i), Hlock •j|7, the Defemlants ileny that any foot-
path had existed and was nuiintained on the Northerly side of Carnarvon Street
ahutting on sain Lot, for the use of the i>laintitr, his alleged predecessors in title
and his other tenants to reach the said hereditaments or for the use of other per-
sons.
<). The Defemlants do not admit that the I'laintill', his tenants and their pre-
decessors in title had access lo the said hereditaments from the said street, and (hniy
that access to and frf)m the said house to have heen erected on the said hereditaments
was easilv effected over the said street.
7. The Dcd'endants (k'ny the statements contaiiu'd in the Statement of Claim
and eacdi and I'very of them, and with respect thereto say :—
[S]
H. Tlial if it sliiill lie [iroviMi tliat the I'laiiitill' is so jiosscssimI nl' the salil iicri'<l-
ituiucnts so us to lie culilliMl to inaiiitiiin this uctidii, tlioii tlu' Dcfcndunts say that
they are a iiuiiu<'i|)al corporutlon incorporated hy and suhj(>cl to tlic provisions of
an Aet of tlie Ijcgislativc Asscnil)ly of the Province of Brilisli '.'ohniihia, pa-.-cd on
the tifty-first year of Her Majesty's reign and known as the "\fw \\'(stniin>t( r Ad,
ISSS," and of tlie Arts Aniendini,' the said Aet.
!l. The Defendants actih!,' in pursuance n{ tlie powers and in pcrforinance of
the duties conferred and cat upon them by the said Acts, for tlie purpose of re-
pairing, levelling anil grading the Carnarvon, (loluuibia and Armstrong Strect>,
cut down (he same in .-ouic places and rai-cd the same in other [daces, one of the
phu'CH where the same was so cut down being o|)posile to the hereclilaments men-
tioned in the Statement of Claim, but wilhiuit trespassing upon the i'laintilf's al-
leged lands or pi'ejuilicing the same, whi(di are the allegeil wi'oiigful acts (d'tlie de-
fendants in the I'liiintilf's Statement td' fMaim menlioiied.
10. Before the execution of the said works by the Defendants the said -treet
had no establishecl ji-.-ide or lev(d, and was not in a lit or pro|)er state lor use as a
public street, whend'ore the Did'endants caused the same to be put in a lit and pro-
per slate for use a-; ii public street, making only such (diauges in the sjid sli'eet a~
were necessarv owing |o the uneven nature (d' the sui'face of the groun<l, and
exercdsing proper care and skill in so doing, and thereby benelitting insteail of
injuriously alVecling the I'laintilf's said property, which are the alleged wrongful
acts of the I>efend:nits
11. The D(d'endants deny thai Ixd'ore the execution of the said works the sur-
face of the s,id streets was nearly levid with the said lands.
lo. The Defendants deii^- that the said lands or any part thereof was td' right
supported by the land of the said streets, and deny that the execution of the said
works has depriveil the rhiintilf of any support to whi(di the owner of the said laiuls
Would be entitled.
l.'J. The Did'endants ilciiy that the i'laintilf's said house was entitled to the
sui(i)ort of the lanil of the saitl streets, and deny that ihe execution of the said work
has dejirived the plaintitfof any support to which he was entitled as owner of tlie
said lands.
14. The Defendants deny that the I'lainlitf was entitled to have for his ten-
ants the use of the said streets in their natural state, and deny that the execution
of the said works has liatl the elfect alleged in the Statement of Claim.
1"). The Defendants deny that the works done by them in the said streets were
m
executed in u negligent, careless and unskilful manner, either by not leaving sutti-
cient support to the said Lots for the soil of the said respective streets or by not
erecting a retaining wall, and deny that the works done by them in the said streets
wns in any way done carelessly, negligently or unskilfully.
16. The Defendants do not admit that the Plaintiff has suttered any such in-
jury as is alleged in the Statement of Claim.
17. The Defendants deny that the said works were executed without the pass-
ing of a bylaw or without legal authority.
l!S. If the execution of the said works constitute an alteration of the said street
such alteration was duly made as authorized by the said act.
lit. The Plaintilfs did not before erecting the said houses or either of them,
obtain from the City Engineer or Surveyor the level or line of the said street.
20. The Defendants did what is complained of by the Plaintiff's leave.
DELIVERED this 1st day of November, A. D. 1892, by James W.
McColl, of the firm of Corbould, McCoU, Wilson and Campbell, Lome Street, New
Westminster, B. C.
Solicitor for the Defendants.
To E. A. Jenns, Esq.,
Solicitor for the Plaintiff.
Reply.
1. The Plaintiff joins issue with the Defendants upon their Statement of
Defence.
[10]
2. The Plaintiff denies that any such leave was given an alleged in |iara>;rtt|ih
20 of the Statement of Defence, but if so it was not in writing uml the Statute of
Frauds has not been complied witii.
DELIVERED this 24tii day of November, A. D. 185)2, by Eustace
Alvnuley Jenns of Lome Street in the Citv of New Westminster, B. C,
• Solicitor for the Plaintiff.
To J. W. McCoU, Esq.,
Solicitor for the Defendants.
Notice of Trial.
TAKE NOTICE of the trial of this action before a Judge at the
Court House, New Westminster, for the li)th day of January, A. D. 1S93.
Dated this IGth day of December, A. D., 1892.
E. A. Jenns,
Solicitor for the Plaintiff.
To James W. McColl, Esq.,
Solicitor for the Defendants.
in case
the Citj
objectio
Jai
Q.
Q.
[11]
\t} tl?e Supreme <5ourt of BritisI; <5olumbia.
(Before Mr. Jtstick Boi.k).
New Westminster,
January lUth, 1893.
McNAMARA
vs.
THE CORPORATION OF THE CITY OF NEW WESTMINSTER.
Mr. Jeniis an<l Mr. Eckstein for the I'luintift'; Mr. Churles Wilson for the
Defendunt Corporation.
[Agreed by Counsel upon both sides, upon intimation to them by the Judge,
in case Counsel wishes to take any objection, that he (the Judge) is a ratepayer of
the City of New Westminster, that even if such fact operates as a disqualification
objection to same is waived.]
James McNamaka. Called .nd sworn. Examined by Mr. Jenns.
Q. Your name is James McNamara ? A. Yes.
Q. Did you bring those deeds with you? A. No, sir.
(Leave given by Court to put in deeds later on.^
[12]
Q. Court (to witness): You have the deeds at home ? A. Yes, sir; here
at the hmd office, in tiie safe; Mr. Warwick's office.
sir.
Q. Mr. Jenns: You are the plaintiff in this action, are you ? A. Yes,
Q. Do you Icnow lots 7 and 8, hlock 17. A. Block 17.
Q. And lot 4 ? A Lot 4.
Q. In the same block ? A. Yes, sir.
(.1. Who is the owner of then' ' A. 1 am, sir.
(J. An<l you were the owner, Mr. McNamara, at the time this action was
brought V A. Yes, sir.
Q. Anil before. Are they built on ? A. Two of them.
ii. Which two are built on .■' A. Lots 7 and S, sir.
Q. How many houses are there on them? A. Well, there is a house on
each.
Court : But not on lot 4 '' A. No, sir.
(i. W'lien you bought lots 7 and 8, what sort of fences were tiiere? A. I'retty
good fenc.'s.
1 1. I'ow were they built ? A. They were built with cribbing antl board,
and piiin'.cd ''Utside.
(.J Are those fences there now? A. No, sii.
(i. Ilow did tliey come to be taken away. A. Well, as Hoy was passing
there (ine morning, 1 was standing outside, and he told nic that the Council was
going to cut ill a piece in there. I didn't seem to say anything and he went away
dowri the street, and after a while I came down and I saw going in out
of the sidewalk. There were some rose-bushes and flowers and things, and of course I
wanted to save my flowers and rose-bushes and good clay that was there to shovel
back ; and 1 shovelled it back, and then the wife got after me— she could not get in
or out.
Mr. Wilson : We don't want anything about that. A. Well this is the
truth. And then I went to Mr Hoy, and asked him for the right to cross and get
some stones over the other side, which he gave me. I told him nothing else would
do there only n stone wall, and 1 gave the contract then for a man to build a stone
wall, and had a ladder up there ever so long to cPmb up to ilie place.
[13]
(I Wlmt level wa:- tlie street on, out.«i(le ? A. Oli, the street ? I luid a
good grafle from the hall door down to the street at this time, and then when they
eut off this two feet jjiece, I had to move the steps down in another direction alto-
fjether, so as to go up, and then walked along the portion of the steps that was there
in the first place.
t^ The cutting down tlie street made you alter your steps '' A. Oh, yes, sir ;
too steep to get up.
Q. What was the cost of putting that stone wall up? A. Well, that stone
wall cost considerahle.
il How much was thai? A. All of sf.SdO.dO, jierhaps more, because I didn't
understand it.
Q. What did it cost you to alter your steps ? A. Well, the stei)s were
altered when 1 moved down the other side ; the steps were cut away.
Court : Hy reason of the change you had to alter your steps, what did it cost
you? A. Well, cost considerable, for I had to build a stone wall on each side.
Q. About how nnudi? A. Cost about !i!-J").0O, sir. I bad to build up there
a stone wall on eacdi side of it.
Q. Is there any difference in value of those lots before and after taking away
the old fence? A. I could not say sir.
(}. Aboul Lot 1'.' A. Lot 4,— they cut it right down.
(J. Heforc we ]iass fnun Lot S, block 17, you know the claim for depreciation
of Lots 7 and S, that is, a lessening in value. How much do you consider that lots
7 and S were r;'duced in value by reason of what you have described? —
that is, the cutting down of the street and tiie taking away of a part of thi' soil''
A. My lord, 1 could not say.
Mr. .lenns : 1 think 1 shall dr(>|) the claim for depreciation in that part. I
will call other witnesses for dei>reciation in value of Lot 4. We have offered for
the city to settle for the bare cost of the wall, so it is hardly worth while pressing
the adilitional charge now.
Mr. Jenns fto witness^: i^ot A, Mr. McNamara, in what state was that? A.
It is on Armstrong street and Tarnarvon.
(J. Before '!U in what shape was Armstrong street? A. It was in a poor
fix; not in very good condition. They cut it down; they commenced to eut my lot
down <> feet; H or (> leet.
Q. That is, you mean, they cut the street down opposite the lot. A. Cut
the street down, an<l .several feet of my bank too. About "2 feet; they went inside.
[14]
(^ Inside tlic str(>ct linos, luul put two I'cct of oaith away'.' A. Tlicy l)iiilt
a sidewalk tlicn; the clay was always droi)i>ing on il and I had to ^'ct a sliovcl to
koop it clear, and these men from the Goiiucil running hack and forwards in order
to kcH'p the sidewalk clear.
Court. I recollect quite well theeuttinfi of Armstrong street. It is Carnarvon
street that I have not looked at. It comes almost to the hack of l.ots 8 and U?
\. Yes, my lord. Tiiat clay was constantly coming down and there was a stone-
mason up at Mrs. Brighouse's and he come to me and told me he hud a lot of stones
up there, and I let him a contract to build it, and he built it for somewhere about
■HlOO; that is lot 4.
Mr. Jenns: Is lot 4 as valuable now since the street has been cut down as it
was before? A. I should think it would, after I put my wall up.
Cross-examine<l by Mr. Wilson.
(J. Then 1 supjiose my leained friend will strike the depreciation in value out
in that lot? It will lighten the ship a little further. Mr. McNamara like a straight-
forward, honorable gentleman says it is probably just as good as it was before?
A. Yes, at present, but not until I laid out $lt)() on it.
Mr. Jenns: That street was open for traffic before Armstrong street? A.
Yes, no sidewalk or anything of that kind there at all; merely a piece, a part lower
down, at the lower end of it. Mr. McColl built a small portion at the lower end of
liis own i)ropcrty; that is the only sidewalk -right through the mud.
Mr. Wilson: If we can get down to what is our actual record, it will save a
good deal of time. Nos. 1 to 7, No 1, is that retained?
Court: They arc going on with No. 1 as I understand it from my notes. The
two thousand is abandoned; the trespass is abandoned. Building retai'^ir.g wall on
lot 4, block 17, that still stands. The live hundred is abandoned.
Mr. .lenns: No; I don't know that we abandon that, although Mr. McNamara
-ays he does not think there has been any depreciation.
Mr. Wilson: Then l'> and 7.
Court: Are abandoned.
Mr. Jenns: No. 6 and 7 are retained.
Mr. Eckstein: No. o is abandoned.
Mr. Wilson: I was taking the recapitulation of them at the end.
Mr. Jenns: Six and seven are lot 4, block 17.
Cou
17. So
Mr.
ill froiil
tliat yi>u
Q.
Aliotit ()
Q-
11 gOO'l f
Q.
Q.
feet.
Q.
X(i: it \\
Q.
Council.
to tlie 1)
goes, he
Q.
Vt's; or
Q.
hllslic.-i 1
Council
(I
have p',1
Q.
reason ?
Q.
Q.
<lo\vu, a
[I-]
(^oiirt: Yes; thai is (lie very tliiuj;- that I want to (>()rn'ct; llial is lot it, Mock
17. So tlic claiiii iiiiw lii't'iirc tiic Coiirl is .tl tdd.
Mr. Wilson (to witness) .Mr. McXaniara you told us that tli'Te was a t'enee up
in front of the (Jolunihia street proiM'rty wiien you hou<i;hl it. VVlien was it
(hat you l)0UKhtit? A. I never hoar(le<l it, sir. It was hoarded when [ houfihl it.
(I And when did you purchase the lot>'.' A. Well, I eouldn'l say now.
Ahout <i years af;o, \ think. Six or seven years ajjo, sir.
(^ It was a <;ood fence when you got it (i or 7 years ago? A. Yes; it was
a good fence wiien 1 pulled it down.
(I Why did you pull it (hiwn ? A. I had orders to pull it down.
<i. Wholold you '' A. Mr. Hoy told lae my place inid got to he cut in J
feet.
(l If Mr. Hoy had told you to cut into it 10 fee' would you have done it. A.
N'o; it woulil have let my house down, and family.
(I Whv did he want yon to do it ? A. Hecause he u'as (duiirman (d' the
Council.
(l But you do not undertake to follow all Mr. Hoy's instructions with respect
to the managemeTit of your proi)erty V A. Well, as fa. as anything of that kind
goes, he is thvrcto give instructions, or to do it. 1 don't know the law.
(^ .Vnd so you simply did it hccause .Mr. Hoy asked you It) do it ? A.
Yes; or the same thing: if lie hadn't spoke to me ahout it, I would not have.
(.}. iielwecn ollrsclve^, di<ln't you lirt it willingly. A. Willingly ?
il Yes? A. What is the use of me kicking when the Council orders my
liushes and fence and everything down '' What is the use of my going against the
Council '.■' *
(J. If vou hail come to the .judge you could iiave kicked etTectually. He would
have put you right '.' A. He woiUd '.■"
(J. Yes. A. He woidd have put his fiwn piece right.
(^ You did luit kick then hccause you thought it was of no use? Is (hat the
reason ? A . K iek ?
(}. Yes. A. Yes; I didn't see no use in kicking.
<^ So, in conseiiuenee of what Mr. Hoy told you then, you took your fence
down, and what did you do '/—build the wall yourself? A, I just put hack the
n.
I'nl- it.
Q.
inii'lics,
Q.
paid tli(
tlicrc (|
Mr
A.
Hy
Q.
A.
I e
Q.
Mr.
Kel
Q.
\Vil>
licl'
Q.
A
It 1
Q.
tliiit
I h
<-l
witl
1 it 1
<J.
like
to a
Ctu
lie
slioi
slioi
' pin
Mr,
A.
No;
Q.
more.
[16]
i(i>(' liu.-lii's aiul lliiiifis, and ill the time (if year lliat I would lii>c tlicin; ton.
(^ And you |iiit U|i the wall ydiu-.-eif '.' A. Tut up the wall, yes, and I jiaid
I'nl- il.
(}. Ydu paid siinndiddy (dM' Id dc il ? A. ^'fs, sii'.
Q. Wild was il ydU paid to do ihat work ih'W ? A. Two or three ditlortiit
parties, sir.
(l Wild were tiiey '.■' 'I'idl us. A. I don't know their names. Mr. Ktdly
paid tiiein tiie innney. I don't hardly know lluir names. There is one gentleman
there (pdintiUL') vvlm did the Wdrk t'dr some ol'tlu'in.
Court: The late .Mr Kcdly was your ayent '.' A. Yes, sir.
Ml'. Wilson: Mr. I\(dly was your af^ont, and, aetinu' I'or yon, he paid them '.•'
A. Hy my orders.
(}. I understand it. Was it Mv. Kelly wiin en};a<^ed them, or was it yoursplf?
A. I engaf;ed them.
(J. And sent them to .Mr. Ktdly yoursidf'.' A. I gave theni an .)rder to
Mr. Kelly ahout paying them.
Q. Dcui't yiui think that Cdlninhia street is a great deal improved to what it
was lud'ore thi- altei-atidii was made in if.'' A. It might he, t'dr all 1 know.
<^ (>h, come now, i>e fail' ahout it. Don't you think iv is greatly iiniiroved'.'
A. It might he for some people: iidt for mv part.
C^ liut i.-n't it greatly improved in front cd' your property':' A. Oh, well,
that I ha<l to pay for.
(■i. Hut i> nut the street greatly imprdveil'.-' A. We seemed to get aldiig
with it heforc jusi as w(dl as now.
il. But you don't think (-ohimhia street shows any improvement? You ilon't
like to admit that'' A. It might.
Court: It is not the imjirovement tinit he (d>jects to, 1 think, hut the faet that
he should he asked to pay for the im|)rovement. Witness: That is where the
shoe pinehes, my lord.
Mr. Wilson: bo tiie faet is, it has improved, hut you don't like to pay for if
A. No: 1 pay for everything that ludongs to uu' iionestly,
<}. But you don't want to pay any more':' A. No; I don't want to pay any
more. I iiave paid too mucii already.
U-
lie,
i
l>a.
•k
w
f..i
(•;
II
^
A.
rii
Mr
till' will'
lliat. 1
llr ill \V
Cm
Mr
Icitinin!
Mr
waive d
I -iuliini
Cm
tllf Otlll'
Mr.
(•miti'uti
licr tclli
-aid a ;.
kiiii! -tl
Q.
wiiit so '
<J.
inj; me;
the iiiiit
Q
before li
Q.
Colli
[17]
ii. Villi iii'i' ,-alislicil with till' iiii|iMiV('iiu'iil-'.' A. Sal i^liril'.' 1 liii\ c ;iot id
I.e.
<^ Have VdU ;4iit In lie, on llic -aiiH' |>rilici]ilr as when ycai iim^cil (lie wall
liai'k wlii'ii Mr. Hoy idl.l you? A. I liavc ii,'>{ more laxo- lo ]>ay than I had lie.
fore: no (lrii|i iii llic taxes at all thai I >«'i'.
*i Don't you I'cincinlicr idling; Mi'. Hoy that yon wi'i'c satislicil with the work?
A. 'I'hat 1 was sali.-lii'il '.'
(} V(i« . A. I iniiiiil, for all I know. [ uni salislicil now
Ml'. .Ii'iin-*: I ohjcci (hat on tlic jilcailinjjs (hci'f is I he (Iffciicc raiscij Ihnt
tlic work wa-- ilonc hy consent of tlie phiintilf, ami tliese (jiiestions are relative to
(hat, Thi' reply to thai is Ihal if there was any a^Teement to that, it would have to
he in wi'itini; under the Statute of l''rauds as to ajii'eeiiu'nis eoueerniiiii' land.
('our(: I, el the (|Ue-iion lie taken siilijeet to (hat nhjeel ion.
/
Mr. .Kiiiii-. t'erlainly, your lonNhiji. 1 have no ohjeelion to your loid-lii|i
learninu all ahout ihe faeis of the ease.
Mr. Wilson: An a;j;reeiueiit eoneeriiin;^; land is one thiiiLT, iind a^reenieiit ti.
waive damages for imssihle injury (d land is another (hin;^; hut irres|ieetivi* of that,
I suhiuit, my lord, that I have a perfect rij;ht to cross-examine?
Court: Certainly. I <lo not propose lo slop you asking; the (piesliou, but, on
(he <ilher hand, it is only fair lo Mr. .leini- thai the olijtiodou should he noted.
.Mr. Wil-oii (III witness): I)o you renieinher tellinj; .Mr. Hoy thai you were
i-(>n(en(ed with the alterations that were lieintj iiuide'.' A. Xo: I don't ri'iueni-
lier lidliii;^ him anylhin;,' of tiie kind. 1 lui^ht have said il, for all 1 know. We
said a i^ood many thinu;s hack and forwarijs. I don't reiuemlier (.inything of the
kind -that I was salisliecj. If [ was salislied, I would not he hereto-day.
(^ Why did you wail so ion;j; hefore y<iu liroUL^ht this action'' A. I didn't
wait so hint:.
<^ Ex<'Use nie. The injury was iloiie lo you when? A. They were hlull-
iug m<!; wanted me to arliilrate. I was wuiliii;; to see if (hey would do anythiiif^ in
tlie nuitter.
(i. When was (he injury done to you? —in ISiH)? A. 1 guusd tlie Council
hefore last.
(^ Before IS'.KI? A. IS'M), sir'.' 1 don't know the year exactly. Mr.
CoUis (or c'ollins) was witli me, and Mr. Keary of the Finance Committee.
.:\
Q.
Q
<^
Mr.
Iirnll;.'lll I
iliilic l|ii>
(Villi
settled.
^^
riiiiniiitli
i'riiitratit
iiinl 1 \v«i
lieiir .-nil)
Mr. '
N'otliiiii;
lni-iiii'Sfi.
Mr. .
Mr. '
Villi llieri-
i.f llie kii
-aiil it.
Tliiii ilip
nf iliy (lit
eiiurse till
<^
iitidii s(>rv
leorporatic
Q. I
l.\. Xo; t
little hetli
[IH]
(^ I)(i you kiiou ilic yt'iir'.' A I iliink ''.M , 'H'.' I don'i km.w.
(I How iiiiiiiy years luick' A. Since lliey were iiiikiiij: I" iiie?
<^ No ; sihre llir work wa- done V A I lielleve :i Vear- this .lime eoinini',
Mr. Wilson: Von uaili'il IVom .Inne, Is'.tlt. llien, to .\la>-, I .s'.i-J, lielnre ynu
liroM;;lit tliis netioii — t'oi' Iwo ye.-ir-'' .Vnij yil you now tell us yon would not liave
ilont' t his if ynn were sat islied.
Coiii'l ; Why did ycui wait -o \ii\\<i'' A. 1 wa^ waiting; for them lo he
setth'(h
(^ Were tiiey tiilkinj: ahout ^ettliMl:? A. Ml'. Kearv was i>n tho Kiniincc
( 'oiiiiiiitlee, and toiik n:e into the liuu.se, and i si;_'ned a doeiiineiit k'siviiij^ it to
;'rhitrati<ni, and then I was wailiiiLt ami didn't hear aiiytliine; Iroiii him afterward,
and I went to my ajieni and told jiim I would like to liear I'rom him. f wanted to
hear sonietliin;,' tVom him,
>rr W'ilsmi: Weren't you waitin^Mlio result of Mrs. Brifrh use's case? A.
N'othiiii; of ihe kind. 1 never was in (.ourt Ik :oru; never inside tiiis |ilace, mi
hu^iliess.
Mr. .lenns: The writs w<'re all issiieil liefore the result was known.
Mr. Wil-oii; I >o you rememher telli nu' Mr. llov that if all the ]ieo]de were like
vou there would lie no kick ahoiii il, at all. A. I don'i rememher --ayinLr anythint;
of ihe kind to Mr. Hoy.
<^». i~ it |io<-iMe yon niitlht have said if.' A Ft is ]iiissilde I iniuhl have
^aid it. 1 lalkeil a i:iiod deal to Mr. Iloy hack and forward.
(J. I'oii't you reineinhor askini; them to diti the ;:round to [uit vonr wall in''
That the workmen should hr permitted to ilifr il away? A. What was the use
ot' my diuizinjr n [ilace for the wall, if 1 didn't know where the wall would he'.' Of
eonrse they had a surveycn- to put \\iv proper line.
<^ Kindly answer my (|ueslion. Do you rememher asking that the corp(U-
ation servants dig away the around to enahle you to put up the wall'' A. Tl'e
corporation did nothing of the kind, sir. I dug tlie [)1ace myself.
<^ I)id y(Ui yonrscdf dig out the foundation for the wall cm Armstrong street'.'
A. Xo; hut tiie men 1 ein|d<)yed did it.
(i>. I don't want to trap you Mr. McNamara. hut try to rememher that thing a
little lietter. .Vre Von sure von did that'/ A. I am sure the man 1 uave the
itIitlH
'
(•iiiitnu't
Q.
1 iliiln't.
Q.
Htreof be
ijct nut l!
i- ill f'nii
1111 my o\
is iiviiii;.
Q.
i.ciicf.
Q
;ti'('(>t to
'liiiiii ab(
ask i-('|U!i
iiskiup;?
<^
siiid a wii
Q
licl'iiri' ill
(I
IhkiIv.
(■(
III
,-trc
>'t,
n;
liib
Mayo
M
■. '
now
is
lie
not.
Q.
unniiiil
V
-ha
if.
I
tiiiit
Ill
II
[1!»1
ciiiitrai't ti) ilni;' it out .
<i. I?ut (liilii'l yiMi ii<k the <'(vi-]iiirati()n sci-vants to i\\^^ it out'' A. No, sir;
1 iliiln't. I never askeil tiieni fur aiiytliiiijj; (Hi lliat street at all.
(.1. Didn't yoti i-cpeatedly press thai the nnin'ovenieiits elleeteil on Arnistronj;-
street bf> made':' A. Certainly I wanted to see the street ii|iened. liciw eould I
U'et out the hack way'.' It i> more important t v to <j;et out the lia(d< way than it
i- in Front, 1 wanteil to u'et the -idewalk not hiiilt v here it is now. I wanted it
on my own -ide where the people <.ro into the liuildin<rs. ft is huilt where noliodv
is livini;.
<J. Oidn'l you a-k for Armstrong street tn lie imilt np'i* A. 1 did not.
<;, Are you sure about that'.' A. 1 am sure I never did, to thi' best of mv
b(di(d'.
(^ Ai'c yoii sure you never on more tban one occasion asked for Armstron};
street to be built up? Don't misunderstand me. It is the street you are makini; a
( laim about at the end id' the lot whi-di toU(die- on Armstrouii ,-treel. Didn't you
ask repeateiily that tl.al street be openi'ij up'' .\. What would be ihe u>e id' mv
uskinj;'.'
f^). Did you'' A. I dim't b(dieve I did. To the best of my belief, I never
said a word aliout il. What iuid 1 to do with the opening of tlieir streets'.'
(J. Is i( not a fact lliat befoi'c that Armstrong' street was liardly passable'' —
b(>fore the im|uovemeiits were elleeted':' A. We gnt along all the lime in it.
'^ Yes you i-a'i gel almig anywhere, au<l go tbrough the mud in L'um
boot-..
Court: \'\a^ it a good street'.' A. No, my lord. It was a bad .street, a poor
-treel, a;id it is ni'tliing extra, yet, and il wa> put to ac( immodate His Worship
Ihe iMayoi, there, from the up|ier end of it, and pretty lii^rl il is, too,
Mr. Wilsiui: Tuining back to your Columbia .-it reel lots again. The Lrround
now is not in its natural condition is it, in whi(di you bouglit it. .\. N'o, it is
not.
<i. Has it been built u|i at all there'' Is it terraced'.' Is there any nmre
ground put there':' A. No; no nmre ground |iut tlierc, Imt it is in ditl'iTent
hape, j had flowers Ixd'ori', but 1 \\;\\v none tin re now
Q. Let me ask you mu' thing; Take the land ,it the bai'k of vour house. Is
that in itsiuitural condition'' A. No, sir.
Q.
Q.
way bad
Q.
and put (
inside tli
Q.
1 took ou
Q.
ln'ought i
Q.
object, I
wish.
Cour
W^f.
Exai
Mr.
true copy
Cour
and rescr
Mr. '
erally.
Tow
Q.
Q. 1
Couri
Mr. )
Jamk
Cross
Q. 1
Q. Is that built up, at all? A. I worked at tluit to fix it as i.s now. I dug it
Q. That is lot 7. How far hack did you dig it? A. I dug it the whole
way hack.
Q. On lot 7? A. To where the house is huilt. 1 dug it up to the line,
and put down a big shed there inside, and quite a lot of clay inside; built a shed
inside tlie fence.
«
Q. How much did you take off the natural surface of the earth? A. Well,
1 took out considerable at one corner and some over at the other side.
(}. At which corTicr was it you took it out? A. In the north corner. I
brought it over to the west and south side.
Q. Mr. Wilson: I propose to use a riap, my lord, and if my friend will not
object, I will prove it afterwards, or I will put the witness in the box now, if you
wish.
Court: Yes. Mark the maps "A" and "B."
Wm. Noot. C'allcd and sworn.
Examined by Mr. Wilson.
Mr. Wilson: At present all that I projiose to do in to prove that that map is a
true copy. I am not going to submit my witness to cross-examination at present.
f'ourt : No ; let Mr. Noot be called for the purpose of proving these maps,
and reserve the cross-examiiuition about other matters.
Mr. Wilson ; I will undertake to put the witness in the box afterwards, gen-
erally.
To witness : Your name ? A. William Noot.
Q. What is your occupation, Mr. Nool? A. City Engineer.
Q. Did you nuike this nu>p produced now? A. I did.
Court: "B" is a copy of "A?"
Mr. Wilson: Yes.
Jamks McNamaua, recalled.
Cross-examination by Mr. Wilson, c(mtinuod.
(i. This is supposed to be a nuip of your property, Mr. McNanuira; that being
Colunihia
'lifl'orentlN
me whetl
Well, it is
Q. I
sonu' mail
(I I
wl.cii I he
H I
A. It is i
Q. '1
if Has t
wlioii I go
put any t
baek from
Q. I
some of it
Q. S
Q. i
q. \
q. I:
q. E
(J. N
siile was Ic
Q. T
down and
<^ 'i
picoc up al
Q. O
|si(l('. I |ii:
[•21]
Colunihia stmet and tlieso two loU are your lots on Columbia strcft. Tliis one
differently colored is your lot on Armstrong street. First, of all, I want you to tell
nie whether the land facing Columbia street is in its natural condition? A.
Weil, it is in its natural order.
Q. Haven't yoc -aised the ground in front here? , A. No, sir; never, except
some manure, sometli. ig of that kind — black stuff that I got.
Q. It is now as when you bought it, then? A. No; it was in a bad state
when I bought it.
(^ Don't misunderstand me. Is it as high now as it was when you bought it?
A. It is in back, but not in front.
(J. This pai't in front here, is that about the same height as when you bought
it'.' Has the surface been lowered? A. A portion of it is the same height a's
when I got it.
Q. And the rest you slojied down towards the stone wall? A. No; I never
put any towards the stonewall at all, only some Howers and stuff that I tlirowed
baek from the wall.
(^ Have you cut down the ground here or lowered it at all? A. I lowered
some of it next the fence up here.
Q. Shew me the part' A. Up from here; it was high from here
Q. How is it here, back of lot S? A. Well, I done that much.
(i. It is now as when you got it? A. No; it ain't raised any.
(]. Is it lowci-ed any? A. Well, if anything, it would be lowered.
(^ How is it here, at the back of lot 7? A. Where I dug down, it is lowered.
(J. Tell nie wliere that was? A. About this point.
Q. Near the boundary of lots 7 and 8? A. Ves, back at this corner. This
ide was low all the time, and that side was high.
(^ There was a little knoll here? A. There was a little knoll, and I cut it
down and divided it towards the fence.
(^ Tlie knoll between the boundary of lots 7 and S?
piece up at this point, and |)ut it along at this side.
A. Yes, I removed a
Q. On the Merrivale street side? A. Oh, no; it was the Merrivale sti-eef
ide. I ]iut it towarils Harvey's.
•2. '
Q. I
living on
Mr. \
^To witne
n- I
them?
n- '1
till' re';
(I I
one.
(J I
Q. I
in the fir.'-
Courl
architpct.
Mr. ^
A. Yes,
Q. '
Yes, Mr. \
Q. 1
down, or
awny fron
(I '
wide slied
only a vei
lie westei
t was.
(I. Vou? A. I |iut it iiloiif^sidc Iliirvpy'ri fence.
Q. How iiiucli liiis the street been cut down? A. Tliis is not the lot I am
living on at all. This is the lot I cut out somewhere round here.
Mr. Wilson: My lord, this is all wrong. lie lias got the thing inixtd up here.
^To witness): This is lot 7".' A. Yes.
(J. And this is lot ,S? A Yes.
Q. Let nie Ix'gin again. Lots 7 and S, did you e"t those down, or raise
tlieni? A. I never raised tliein at all. I sloiied them towards Clcdumhia street.
Q. They are about now, then, tlie same height as they were when you went
there? A. They are not as high, towards tlie fence.
Q. Did you build the house on those lots? A. No, sir; Mr. Hoy built this
one.
Q Lot S? A. Yes.
Q. Do you know who Imilt lot 7? A. I do not. Mr. Brew (?) had it built
in the tirst place.
Court: When Mr. McNamara says that Mr. Hoy built it, lie means he was the
i architect. Mr. Michaud was the owner? A. Yes, my h.nl.
Mr. Wilson ('to witness): At the back of this lot, you say there was a knoll?
[A. Yes, it was a rougli spot there.
(i. Which ground you took and (lut along between your lot and lot !•? A.
I Yes, Mr. Harvey's.
Q. Is the back of the lot in about its natural condition'.' Did you dig that
down, or raise it up, or do anything to it? A. Not mu(di; there is some cut
away from it; very little.
Q. Was there anything cut away from this part of lot ,S? A. I built a
wide shed all round it aliout !) feet, and I had to throw it out this way, and that left
only a very small corner to clear away. I had to drain all that.
Q. How much was the street lowered from the cornei of Merrivale street to
the western end of lot S? A. 'I'he street?
Q Yes. A. That is (.'(dumbia street?
(i. Yes; how Uiuch was it lowered? A. Well, I could not say how nuuh
t was.
J,
iiiy; tliore,
Q. 1
ing there
H I
I could not
The(
Mr. \
lent ilown
idowii iiiul
sonio i)l!ic
Re-.li
you first
loiif; time
went up
about tlie
see if he i
Adjo
Jas.
Mr. ^
iroduce t
it any tii
g. Isn't it u fact tliat it was not lowered at all? A. Well, tlioy were work-
ing; there,
Q. But it does not follow that they cut it down? A. What were they work-
ing there for?
{}. rutting in a new sidewalk generally. Hut did they cut it down":' A. 1
could not say. 1 would not swear that they did.
The Court suggests viewing the i-roperty.
Mr. Wilson: Mr. McNamara is perfectly straight about it. He won't say it is
cut down? A. I say nothing at all that I don't know to. They were cutting
fdown and tilling uj) there hack and forward. They cut down and tilled up again in
onie jdaces there.
Ke-direet hv Mr. Jeiins.
Q. Mr. Wilson a.sked yon why you did not start your suit sooner. When did
you first make yotir claim to the Council? A I could not exactly tell; it is a
long time ago. Mr. Kelly made the a])i)lication to them, and then these three men
went up to me one day. Three times I asked Mr. Kelly "did you hear anything
about these gentlemen?" "No," he says. "Well," I says, "you see Mr. Jenns.and
see if he can't get them to acknowledge sometliing.
Adjourned to '2 |).m. for the Court to view the [)roperty. Court to reassemble
at 2:'.W p.m.
.\FTHi; KKCKSS.
Jas. McNamaha. Recalled by Mr. Jenns.
Mr. Wilson: I am satisfied with the deeds, iny lord. He is not required to
roduce the deeds. That is, I want the deeds kept, and produced during this trial
it any time.
Mr.
I will gi\
ilii'iii.
Mr.
Mr.
Ye;-, in [1
lor tliciii
Q.
A.
No,
any
. I
s?
A
Q.
incut?
Q
Q.
ilnn'l kiK
■ if the Be
<i.
A. Woll
Q.
cil? /
all miiuil
uto.s ht'fo
Mr.
I'urporati
l"iration
[■■il]
Mr. .Iciiiis: ^■|)ll ilii not want to take them away'froni tlic rest of the |>a|)('rs.
I will give you my personal iindi-rtaking to produce litem at any moment you want
iliem.
Mr. Wilson: That is nil F want.
Mr. Jcnns (to witness): You lire in posHe.^sinn of those lots, ere you not? A.
Yes, in possession of the deeds and everything else belonging to it, and (laid
for them.
— RoHHoN. ('aile(I an<l sworn. Kxamined hy Mr. Kekstein.
(J. Yon are eity elerk, Mr. Hol)son? A. Yes.
t^. How long have yon Dceupieil that position? A. Hince Dee. 'HH.
(I. Do you prodnee any contract relative to the grading of ('olumhia street?
X. No, as far as 1 know.
(.1. In front of lots 7 and S, hlock 17? A. As far as I know, there is not
any. I believe it was done by day labor under the street foreman.
<J. Who carried out the improvenient on ("olunibia street op|)osite lots 7 and
s? A. J don't know what you mean by that (luesiion.
(I. Did the cor|)orati ".\ or any contractor in its behalf carry out the improve-
ment? A. The corporation I believe. I believe there is no contract.
t^ Who |)aid the laborers? A. The corporation, I suppose.
Q. Who ilirected the work? A. Well, I really coulil not tell you that. I
dnn'l know whether it wna under the city engineer, or whether it was the (diairman
■ if the Board of Works.
Q. At all <'vents, it was carried on under the instructions of the corporation?
A. Well, as far as [ know. 1 could not say positively.
(J. Could you be nu)re |>ositivc by reference to tlie minute books of the Coun-
cil? A. If 1 had time, but if you will allow me to say, I wi's asked to produce
:ill minutes and the resolution, but tlie subpiena was served on me only ten min-
utes before the Court sat, and I coiUd not possibly look at the books.
Mr. Kckstein: If my friend will admit the carrying out of this work by the
I'nrporation it will obviate the necessity of producing these books That the cor-
poration carried out this work.
[•■i'-l
Mr. WilMiii: On thc-c .slivcls.
Mr. ICckslciii: ^'I's.
.Mr. \\'il«iin: Ccrtaiiilv; we Miliiiit tlmt tlic ciii'iinral ion (•iiiTic<l dut llic w irk.
Mr. Kckstciii H" witness^: Did you !i( any time since Isss, or since tlie woi",
rnnini<tnce(l, receive any oHjeetior to tlie work iieinj; carrieil onV A. Well. I
ivaliv could not icinciuliei'. 1 don't renicniliei' reeeivini; any, l)Ut tiierc niij^lit have
lieen.
(l Old Mr. McNauuira at any lime, eitiier \>y himself or by his aj,'enl, make
iilinlicatKin to the Council for coni|ien.-aticur.' A. I dnu't rcMnemlier.
(J. Do you |iroilnc( any letters from Mr. McNamara or lii.s aj,n'nt relative to
upeii.^iitiou for e.\eavation'.' A. No; for the same reas<in 1 ilid not jiroduce
Miiyliiiiig else -1 had no time.
Mr. lOckstcin: My lord, 1 mu-t ask that tht! cxaniiuatioii can he deferred until
llie witness can produce those.
Co'M'l : Which aic those?
.Mr. Kckstein. The application o)' Mr. McN'auuira lor c(>m|ieusation.
Court: Have vou ^iven notice for them to he produced?
Witness: If your lordship plea.ses, there was a notice given; this was served
"II me leu minutes hefore the court sat, and I must look over for two, three, or four
vears.
Court (to Mr. Kckstein): Can vou not defer this?
Mr. Kckstein: Ves, 1 cannot coutiuue now without the |)roduction.
Court: ('ertainly defer it.
Mr. Eckstein: And I also wish Mr. Roh^on to {troduce the document signed
Iv Mr. McXamara with reference to referring the matter to arbitration.
Mr. Wilson: 1 suhmil that that is not evidence.
Mr. Jen us: I'roduce all papers.
Mr. Kckstein. I take it subject to my friiuid's objection; but I think T have a
iii;ht to a.A- for it. It is esi)eoially important in this respect that my learned friend
has made the (d)j(>etion that nti (daim Wii.s made until the matter had beconie very
-tale, anil I want to shew that such is r.ot the case.
Q.
[■2i\]
Cdiirl: I aiii imt |irciiinx'il tn siiy al a iiioniiiitV iinticf that Vdiii' Icaiiicil fricni]
i- IhiuikI to proiliicc that, tint sii])[iosiii<i; that lie docs not [iroil'icc it, you can then
apjily to jrivc evidence thai such an oH'er was made, when 1 can r.ik' wiiether that
evidence is adinissahh', or not. It nuiy he adtiiissahh' in the direction to sliew that
liiis (daiin was not the result of' an al'tcrthoojrht, inasmuch as the learned counsel
iuvs cross-exaniineil ahout the lirifiiiouse case ii may he ilesirahU' to sht w that,
a'thou<;h there is no jury. But for my part I cannot help sayliifi, dealing witli it
as a judf;e, that to my mind it is a matter of most supreme indifference whether
ilie matter was dealt with h( foic the Firiehouse claim, or whether Mr. McNamara
was ignorant of his hf^al riirhts, if he has any. I cannot say lie was guilty of
uuilue delay. There does not appear to nu' that the I'laintiif has imidied
;ici|niescence hy reason of anythniL' he has done.
Mr. Wil-on: 1 may say, my lord, I do not attach any impiu-taiice to that.
Kxaminatiou conl inued.
M.. Eckstein (to witness): Ymi keep all the minutes of the Councir.' A.
Ves.
(.1. lias Mr. MeXamara "ver sigeed iiuy document aciiuiescing in the right of
iiU' Council to make the,-c e.xcavatiou,- and iiuprovements on Columhia street?
.\. Not to my knowledge.
Q. Is there any record on lile among ihe paper> of the Council .-hewing that
!ie lias done -o'.' A. Not that 1 reme;.iiier.
Q. CouM \-ou -peid< more positively if you had an opportunity (d' .-ear(diing
iiuiong the |iaper.-'.' A. I suppose I could , although there might he some jiajiers
that are not in my ctistody. Sometimes papers are handed to committees and
not returned to mv custody, but I have no recollection of anything of that kind.
Q. Was there any contract hetween Mr. McNamara and the Council under
-eid, hy whi(di Mi . McNamara allowed the^c improvcinenls to he made':' A. Not
111 my knowdedge; 1 never heard of smdi a thiio^
(^ Hv rid'ei'ence to I'ecords in you.' oMiee could you he more positive as to
wlietiicr such a fact exists? A. We!!, ! f ei (juite sure, - that is if it was under
'he seal id" the corporaiion the seal would In aitiu'hed to it - and I am (luite sure I
never saw the seal.
(J. I may explain. I want to know positively.
Ohjccted hy Mr. Wilson that Counsel is cross-examining his
own witness.
Mr. l']ckst(dn : I have asked the witne>s to produce certain papers, and he
Mr.
Q.
Q.
lllCMI.
[•■^7]
raimiit lid s(i. aiul in (nidciicc ilie witness is nul positive. 1 sliiill iisk for the exani-
iiiiitidn to lie iidjunriietl so that he may go and search among the papers. On the
odiei' lutnd, if ttie witness' evidence is positive no such pai)ers oxisi, a search is
imneeessary.
Mr. Ecl<stfin (to witness): (Ian yon say whether any sncli paper is in exis-
lence — a paper signed iiy Mr. McNaniara, oi' on his hehalf, in which lu' allowed the
ini|)rovements to he made, a id ac(|uicsced in ilieni? A. I have no knowh'dgc of
>uch a document.
(J. Are you p^iiivc that none exists? A. Well, I <-annot say. It is a
matter that has run over a good nnmy years.
Mr. Ktkstein: I ask that the examination he adjourned so that he can he
positive.
(lourt : 1 have no doulil that if a reasonahle tinu' were allowed, you ccudd
liud or look iheni all up'.' A. 1 have no douhl, my loi'd.
Mr. Wilson: .M'lei' all, it is only negative evidenrc. He can only say they
are not among my paper-. They d<ui't find the evidence they want until a few
minutes before coming into court.
Court: \'ery well, Mr. Kohson, will you kindly .-cc if you can Mini the ]iapers.
lunl we will take vour evidence later on.
Wm. Xoo'I', called and sworn.
Ivxamined li\- Mr. lOckstein.
(}. Do you produce the proliles ot' Cidumhia stre(>l so t'ar as th. y refer to that
-tieet ojiposite lots 7 and ^, Mock IT'.'' A. In reference tolli' improxi-ments
rarried on there?
(}. Yes. A. .vo, I do luit.
<^. What ha\i' hceome of those profiles? A. 1 cannot sa\ I never saw
them.
(^ \V'ere the improvenuuils carried on without prcdiles? A. 1 caniml say.
hey were carried out hefcue I came lierc.
t^ l)o you prodiu'c the sjiecilicatimis uiuler whi(di those improvements were
uricd (Hit'.' A. I have no papers whatever referring to tho work.
Q.
nllicl' \vi
out.
Q.
ini'iits?
Q.
Q
A. No,
Q-
\\liatove
'^
i lll|ll'OVI'
Q.
A. Ilin
<^
Ic-I'l ill tl
Q.
iM-arly.
Q.
. lal.lisl
Q
rir\i()U;
Q.
n-
Im'IicIi I)
■1 ri'fen
I'liiit is
[■IS]
<}. Arc ymi then in this [lositioii that ymi cim httite uotliiii^; one way or the
niJKM' witli rdVri'iicf to tlic work? A. Not at the time tlicy wiie heiii<; canicd
out.
(^ ('ni\ yi)U slate wliat the ;:ra(k' of Ciihimhia street was |iri(ir In the iiniirove-
nieiits? A. No, sir.
(}. \i>\\ can state wiiat it i:- now and that is ail'.' A. Ves.
t^. Ciiii yon state aiiythinii rehitivo to the iin]iroveinents on Arinstronfi' street?
.\. No, sir.
(^». Vol! iia.ve no profiles of these improvements? A. 1 have no papers
\\hate\er of work earried ni\ previous to my arrival in tlie city.
(}. Is it enstoniary for the city engineer to make proliles hefore carrying out
iiupid\emenls'.' A. I always pre|iare proliles.
(}. Were any profiles prepared hefore your time in reference to any street?
.\. How am 1 to know that, sii-? 1 don't know anything ahoiit it.
(}. ^'ou liavi' not searclied to find wliether tliere were? A. N'o papers wei'e
Ict'l in the ollicc when i came there.
(J, I)(i vou mean to say thi' oiVice was without any pa|iers? A. Very
nearly.
(). Will you e.Nplain to the Court how the grade of Columhia street was
r .lalijished'.' .\. What grach' are you speaking aiiout now'.'
<.^ 'I'he grade ill front of these two hits in (|Ueslion - lots 7 and S. A.
l'ie\i(iu- 1(1 my arrival here?
<}. ^'cs. A. \o, sir; I could not.
Q. What is the I'stahl: died grade? A. A heneli mark at the post olhee.
(}. IIow do yon know that that estahlislies the grade? A. W(dl. it is the
lunch mark that we work from.
(I. \(H\ were told that that is the ease'.' A. No, sir; well, that is, we liu\-e
1 reference to t'nat on the existing ina|is. That is our law horik. sir, to start from.
That is our lia^e, the lines seen at the corner of tin post oflicc.
Q.
Q.
Yes
Q.
miw.
[29]
Q. How long has that hench mavk heen there so far as you know? A. I
could not say.
(.1 Do you suppose this last years? A. I could not say.
Q. Three years ago? A. I could not say.
Q. Might there not have been another bench mark there 7 years ago?
A. I don't know sir.
Q. If there had been another bench mark there seven years ago the
L,Ma<lc might have been different? A I don't understand your supposition at
all, sir.
Q. You say you wurk from a certain bench nuirk near the post office? A.
Yes.
(J. If that bench mark were changed in any res]iect, would the grade be
dianged? Explain what a bench mark is? A. Simply an altitude above high
water nuirk, and that is the way wo take the bench mark at the post office, just 34
I'cet above high water mark, liigii water mark is established, I suppose, by the
old ordnance surveyors when here many years ago, and maintained ever since.
Q. And you don't know why it was put there? A. Well, I suppose it was
reduced to that point by some former surveyor for the city when laying it out; but
1 don't know— we always accept that kind of thing everywhere.
Q. And the grade would have been made from that? A. From that,
imw.
Q. And the grade from that would have been made ten years ago? A. I
ilon't know; I would rather not say.
Q. It shou'd have been? A. I don't know. I have worked from that ever
>ince I have l)een here.
(.1 And if that bench mark b" oeen there ten years ago, the surveyors would
have worked from that, also? A. I should not like to give data for former sur-
veyors. -
Q. If you had been here ten years ago, you would have worked from that?
A. (Juite so.
Yo.s.
Q
iliiiik.
Q.
Q.
Q.
Q.
Q.
Q.
[30]
Mr. Wilson: I will not cross-cxtuiiim', imt 1 will exuiiiiuc him liy ami i>yo a:^
II V own witness.
— MoKKisoN. Callccl and sworn. ■*
Examined h\ Mr. Eckstein.
(.1 Vou were at one time, Mr. Morrison, the owner of lot 7, block 17? A.
Y>
(I When did you first occujiy that lot? A. Near 20 years since, I should
tliink.
Q. Do you know when the house on lot 7 was huilt. A. I do not.
(.1 Was it a new house at the time you occupied it? A. Oh dear no.
(.1 Who constructed the fence in front of that lot? A. I had it done.
(i. How lonj; afjo? A. Must he 14 or 15 years ago.
Q. Did you take any steps to ascertain the line of the street at that time? A.
We had to build from a line. I can't remember what the line was, but I think it
was a post at tlu' corner of the fence, hut it is so lonj: ago I cannot distinctly re-
inember, but we had something to go by, of course.
CJ. You got the line from Mr. Turner?
Objected to by Mr. Wilson.
Q. From whom did you get the line? A. I don't know, I think it was a
|ii)st that was stuck in the corner that we went by. I think so.
(i. Who was city clerk at the time? A. I was.
Q. Was Columbia street open at that time? A. Oh, yes.
(.1. W^as it graded? A. They were grading it just iAn.^x* the time I put up
liie fence; that was the cause of it. I think it was somewhere about that \inie.
(l After you put up your fence, did the city ever take any steps to re-grnde
if Was anything done towards improving Columbia street? A. I don't re-
ineniber.
Q
^'(■s.
(J-
[:!1]
Crf)Hs-«'XnniiiU'<l l>y Mr. Wilson.
(}. Do you roiiKMiil)cr tlu' lioi^lit of the crih at tlio coriuT, .say from tlic flion
Icvol of tlic strci'f.' A. iJcforc tlie alteration was iiiatle?
(i. That would lie when you lived there. You owned the proiierty, you know''
\: Yes.
(l Take it at the eorner of the street, what was the heif,'ht of the erih work
vou had there? You h «.d erih work? A. Yes. 1 had erih work. 1 think it
must have been 7 feet, perhaps more.
.1. \V. H.xKVKY. f'alled and sworn.
Exaniire<l hv Mr. .Jeiuis.
(^ You know the lots oeeupied hy Mr. MeNaniara. A. Yes, sir.
(J. Do you reineinher the old fence that stood there, before? A. You mean
•fore the road was cut down, at all?
(J. Xo: I mean the — A. — the old fenee?
(i. The old fenee when Mr. M(n'rison and others occupied the house? A.
(.1. Do you rememher when that was built, or about? A. No, I could not
(J. It was built before 1S77, was it not, Mr. Harvey? A. It was built be-
.re Mr. Kllard died, in 187«.
Mr. .Jenns: To go back a time further before that fence was^ built had the road
een gnule
(1 in front? A. It had been cut down
(.1. And the fence was built how? A. That was on the line of the road,
where the Council had cut it down.
C!ross-oxamined by Mr. Wilson.
(J. You have an action against the corporation, Mr. Harvey, havn't you?
X. I have, sir.
li-
ly the »
LM'lllltCul
w
Ex
Q.
Q.
Co
Ml
(i-
A. Yr
<i-
to the
lllil]!?
I hilt (1
iliis It'
viiluc i
iliiiiir 1
[32]
I) Vim nir siiiiij,' tliciii I'dI' iliiiim^i'-s':'
A. I
am.
il III tlio siiiiH' cliissan tlic tictioii now pi'inJin^'? A. 1 don't kiii'W cxact-
llic siiiiiP C'las!'; for puttiiij; ii|) ii stone wall.
Court: It is on lot '.•? A Yes; on lot i» -tlii' next lot.
NOTE: Willi icsiicct to llic cviilcncc to lie <;iv(ii l>y (lie witness
Rolison, who is to lie ciilli'il lit a later sta^c of the case to
proihicc (locnnicnts in liis custody, and to give cvidciHM'
toiuliint; his knowlcdm' of tiic nnittors in (luestion suh
jcct to the ahovc, the case for the plnintilf is closed.
Upon Mr. W'iUoii inovini; for a n(
in-siiil, Court noted the ii|i|dicatioh, an
ited leave to move for and arj;iic upon sanu upon the motion for judgment.
Wm. Noot. Called.
Examined hv Mr. Wilson
(^ From what is that map "f the district taken'.' A. it is the enlari,'ed
1 from the old ollieial plan id' the city
(I Have you jxol that idan'.' A. Xo, sir: tnil it is the ac<'epled jdan of tlu
-treets.
(lourt: 'I h<- olticia! mai
A. Yi
Mr. Wilsoi
he ollieial man
A. V:
am
I it is sinned hv his lordsli
(.J. What I want to estahlish i? that it is a correct ci py of tlie otli<dal ma]
A. V-
(i. An enlarficd copy of the otheial nia)) A. It is
<J. Perhaps you will
enoui;li to explain to his hu'dship with respect
lo the grade.s taken down, shewing the altitude from one point to another on that
map? A. If you follow this line of levels and you notice the altitude helow the
<ril)hin<i there at that first point. We are dealing with 7 and S. I will just say
It tl
Hs is reallv a pro
)fde fr
om pom
inl A to M, and then if vou will kindlv folh
liiis level yon will find that at the foot of the crihhing there— I will just call the
value in feet — it is ',1.20, and then ahove the crihbing it is 70. 70, or a rise id' .somc-
thiiu' like KJfl. there. Then ^ou take the centre of the street,at 74.40, and then
[;!;-.]
at the foot of the wiill Mr. M. Naniarii'^ wiill you will liiid it i> 7."). (Ill uml on tiie
u,il! SO. (■>(), jr.nl tlicn if you follow u|. to the l>ack of the property you have got
1(111 7 (?) and a (httted lino to sliew that tho level of the and the lev^M
(,r the pioperty ai-( exactly the same at that point. Then I want to draw your
attention to this point. Kroni that point a<j;aiii 1 am lalsini; a i.-vel at the side
entranee. If you notiee, I have seated thai carefully and produced that prohlc,
and you will see I have -hewn the rise of the crililiini; there, also the rise of the
wall, and the exa t declivity of tlH> property at the hack. And ! want [articularly
lo draw vo\ir attention to this fact, that wc have that orifjinal j^round at tliat point
Ml, tlie jiroperty, hccausc we have lari^c tre.'s growing there that have not heen
Mioved for the last '20 years, and I waul you, my lonl to notiee tliat we have taken
Mial a< the original ground. From that point I have produced that line to hclow
ihi- crihhing, ami 1 have drawn that, my lord, from there and there y<.u have the
nriiiinal line of the gi'onnd prcvion- to the lU'iginal breaking up of Columhia street.
.\ml on the face of that, if you notice there was lu'ver any cutting made at the
lorner of tiiat projicrty, it was not necessary. I also say distinctly tluit this
clevafed intuind for ornamental purpose.-;, that bank in front of Mr. McXamara's
uall. Ih' had no occasion to Imild that wall ; it is not requi^d'^or ,iny s]iecial
purpose, and iheref'ore it i> entirely with tlu' owner why that is|7mnp.
Court; Von -;av th.al if it had heen cut down from the naluri!! ground -per-
haps 1 do not exprc^- inysclf as technically as you do hut if it were cut down from
ilie natural grade then it would he a (pi._..tion whether the I'ity should pay tor the
wall which is necessary to support the land in its natural position?
Witncs-^: .Inst so.
(I Hot inasmmdi a-^ this prineii)le applies to land with an artificial incre-
ment, which comi's in and wa> not originally there, an<l was simply use(l for the
pleasure or otheiwi-e of the owners of the land, that the city should not h<' called
upon to pay for the einhankmcut which ln' placed there in making an arlilicial
platform alii)ve the normal grade, and which would not he recpiircd at all? A.
Tha.t is exactlv what I helicve it to he, and that is just it, that the wall i- not
icipiired Cm- any purpose whatever; it wa- siupply to support a mound jiut iii
there to hcantily anil ornanient the house,
(J. And to fcillow out the same line (d' thought, luid this artilicial incre.nent
not heen deposited here there would have heen a natural slope an<l rise here het ween
this point ami that point at the hack and front which wouhl remler any .-U( h wall
nnneeessary? \. <iuite so .And to make my argument a little more snh-
-tantial. there was a stone put in there previous to any worl; heiiig <lone, either
niiihing nv any work, hy Mr. Turner, and that stone is there now, and the grade
lia-i never heen changed .
A i'-tfr
[.•M]
(^. I (hiiik tlial stone liail some rct'crciicc to wliat i.s callc'l llic ai'lillcial lia:'(
"•' A. Vi's, as cstalilishoil hv stalule. 'I'licii, luv Im'il, I have liotliilii;, iiupic
1(1 say with respect
and S, and if yon please, I will jfo on to lot (. In takii
the l(>vels a<:;ain I took the }j;i'ound atrain, on lot !•, and I say that that is the original
line, the orij^inal !j;ri>iind there, and thei'c we Inu-e the les'el of SS.7I), and Ihen,
iiiiiiiediately on the road jn~t outsidi' thi' fenc('. we have '.M.-.'D.
i}. A diU'erenee ol' •'!, alionl'.
A Yes; and then we l;o across to tln' pn
erties on tlie opposite side, a
nil we have then ifJ.'.IO; we have !)(.'•»(», and ahoiu tl
-aine rise. 1 want to ilraw your attention to this fact, that you take lot 'A, adjoinini;
lot I ihei'c is the same ri-e, alionl ;! to ."> fei't, and then if yon take lot •'! you will
liud a sudden di'op of .'J.rtl) to Mr. McXannira's lot •! down to lot '.i, anil if you come
til the w(>st end of lot .'! you will find that the sid<'Walk and the h)t are exactly levcd,
,iiid if your lorilship wa- up there to-day, y<in saw stumps of trees ^rowinj;' there
ilial have never been moved, and thi'i'i' now to-day, and I say distinctly that piece
"I' uri'und ha- lieen raised m]i to Iniihi iiji the wall and to beautify the property. A
wall there i~ not necess;iry foi' roadmaking, and 1 can prove distinctly by the oriL'-
inal levids below here that the sidewalk i- hij:hei' than the (ii'i<rinal jjtround.
(}. I have useil (b,' word- ''art iliidal inrrement." liml it not lieeu ai:ain used
in lot I, and llu' natural antrle of the land left as it was, and un(dninjied by the ad-
dition of other soil, foi' the p\u'pose of nnd<in<jan ellicient r'>ad alonjj hero it would
he unnecessarv to buihl a -tone wall'.' .\. <^uite so. my
lord.
(^». Hut the addition ha> lieen madi' -ini]ily for t be bem'lil ofihe owner: and
llien comes another ijue-lion willi whiidi we have imthinii to do ju-t yet. Ilmv
I'lir is the owner entitled to the support for material aihled to the natural land'.'
Mr. \\'ils( ii: That i-^ a jioint et' law, my
l.ird.
Ciuirl: Yes. but I want the belter to cryslalli/.e the nuitter, a^ by and bye,
when i want to have th(> benetit of the notes, there can appear upon them this
l"iint. W'itnes-: I want to pres- this on yon very lirnily — the lev(d of lot 3 to-ilay.
Thei'e is no wall there yet. and yel they have put crib work on a cap of artilicial
larth runnini: throneh.
(}. You rely furti
Ml that as beinu artilicial soil. and without additional c.n-
■avation of the soil il would nol be fallinu o\cr'
A. Cerlainlv: and also upon
llie fact of the old fon-l the ^lulllp^. of tree- appearin;;' there to-day.
('I'oss-e.xaniined bv
Mr, Kck-tein.
Q. What
reason lia\e von tor sa
viiiij; that I hi> i< the orieinal soil
This, the fiii't that very old trees are yrowinj: there to-day, and looking at the na-
!iire of the -oil, and the soil below here, the cribliinii, and the u'l-a^- iirowinu there,
.iiid so on.
1m' |ircttv
<J. '
(I 1
<J.
ilicrc. lull
'I'licv ihIl;
<^
iliiMirv'.'
in;in siiii]
<^ .
i>riL:iniil 1^
<i.
Ilic ciirth
<^
ll'fcri'lHH'
I (•(M'tiiiiil
l;(iI to mil
u III Ilia
Ml
<v».
A 1
Inl
;in old su
('our
ilic front
I 'oliinil)iii
■ lUoiit c.i;
-ion lliiit
Mild IJiat
i:nil li'\cd
lilii'ial ill
[;!5]
ty What iiijc Wduld tlio.sc tri'cs In-? A. 1 could not .~ay, Iml tlu'V -(•ciii d
pretty iil<l.
<^ 'I'licv iiif t'lnit tr('(> to wliicli you rclVr'
A. 'I'l
H'V are iVuit tr('('>. n'c:
(y I)o you sU]i|uisc fruit li'ces could 1)C tran>|ilant('il at t lie a.i^e of 21) ycai
A. ^■ou arc 'ii: uic a (|Uc^ti(iii that is rather out of uiy liiU'.
().
Hut you hase your calculations u|iini the fact that thci-e afc old fruit t I'ce:
ihcfc. Iiut tho<c fi\iil trees uiiuht ha\e heen I raus]ilauled , t'oi' all you k\\<
'I'liev luielit have hecu.
I licorv
(.}, If y(]u had heen l<dd Ihey liad hecii. would yon >till a<liiere to the sauie
leui;e thai thev were. 1 wduld not helieve a
A. I'uless 1 had s
worn eviileiii/t
inau siniph' ma
kiiiL; the a-s(U-tion.
(}. And you ~ay that the >f>il nw the south side of Culunihia slreei i- -till Iht
'I'lUUial leve
A. 'I'here is a douht of that.
<i. Ill liriuuiiij:' Coluuihia sti'cet 1 may term it to a le\(l, wouldn't yon lal<e
Ihe earth from the north side and lill u|i on the soulli side'.' A. I ihink not.
<^ II
ow woulil vnu I
lo-:- A. B
ecausc 111 t 111.- wa V \ on mu-l a
Iwax's h
et'ciTiice ti> str<'ts ahove. If that street is jroint; throui;h, and only that street .tin
certainly wmild remove fr(Uii the u|i|ier
side to till the low(>r. hut secin;: I havi
it to make coiini'ctioii with ihe intersecting; -Ireets, ! -liiuiM -ay eeriaiiily not.
(}. ^'(lu ar( - peaking' friun what you call theiu'y".' A. No, no tlie(U-y.
(^ Will \ou lell me as a malter of hict where the soil on the south side ofCol-
iiihia street'.' A. I could iiol sav that.
(^>, I'hat i- still a tlu'ory of yours. Where do you ^up|lo-e it came from':
.\. 1 d(Ui't know.
i). Are you -ore it did not .■oiiie frcuii llie muth side'' A. Sure.
(^ Why''
;iii old sur\'ev(n'.
A. {■"lor. tiie .-iirroiindiu" streets, and the -trect ahove. and as
Court: He liiid- wilh re-peel to a certain lot that llierc was a certain Icvid oil
ilie front street, and llieii you follow that out to what is the next natural h vel (Ui
I ■oluiuhia street, and Iheii the natural levid of the hauk ami then a natural level
:houl (U'l feel from ihe hank, and, lia\iu<!- cmiipareil them, lie ciunes to the ciuiidu-
jiiece is not tlu' natural level, hut so and so, and he mentions it,
d wilh the level of the hauk .-hews us distinctly that it is the nal-
il levcd or so nearly ,-o that it should nol he interfered with in tllliui; up the ar-
I ilicial increment of the lot''
i(Ui that ihe t'roiit
iiid that ciuiipa:
[;;tij
\\'iliics.~: 'I'luit i~ cxnctly il my Iciil, if Vdii will ullou iih- In -ay nwv ihin};-
,i,,irr. I iiiul ()Vcrli)(ik<M| one fuel that will pcr!iii|is s\iKslaiitiati' wliiit I liiivc Ju.-^t
liri'ii sayiii^r. ^'cm know tlicrc is jir(i|](.rty on ('(ilmiiliia street lielinifiiiiir to Mr.
IMiiiiiiiils, lot Id. 'I'lierc, my lord, vou have the line ol'llie laml exactly from .\rm-
-treet riLrlit throiitrli Id ( 'olnmhia .streel, anil il has never hecn ehanLTcil; llie old
Icnce is there tii-(la\-, and the line of the land is exactly down on the sidi'Walk, and
lliev are liot h loi^el her,
.Mr. ICekslein: \\'hal i- I he aj^c of I hat fence? A. I should think it iiin-l lie
iVnm 111 to 2n yt ar- lo-ihiy
(). Mi'j.hl il nol have liei'o moved'.' A. Il mii;ht haxc heen mnved, hut not
-inec williin I he la~t 1 ■"> years.
(). What is ihi' L;i-adc from Mr. Ivlmonds".' A. M r. KduKMuls', jn^l inside
ihe fence is (i.-).:!!!: .Mii-ide the same There i> a rise id' in feet I'xaetly from that
|iidnl to Ml'. McNamara',- corner.
(I. .\nd you mean to s,,y thai if Mi'. I'-dumuds -hews ihe in'iuiinil land, thei'e-
fore all the loN alonji' Cnlumlua streel mu,-t he h.i-eil u|iou Mr. l'Mmoiid>' lol'.' .\.
\o, sir; I am simidy sayinj^ there we ha\e ihe old line of the land pui-e and simple:
uo enihankment made Iheri'.
(^». lint the phy-ical features of one lot are very often diU'ei-enl from iheniher.
^'uu hase e\erylliinu ou -ciiuililie lheor\ ',' A. No. sir.
(^». Ildw d(i you -peak a- to ihe fad- witloml knowint; iln- fact-'.' .\ . W'idi,
I know this to l,e the fact ll.at the survivor puttint; that stmie ddwn would noldi.i:
il up a<rain to put that -haft ('.') in. and that was (here previous l.o the emliankmenl
hiMiiij; made, or Ihe fence.
(}. If il were decdded to lower Cohimhia streel 10 feet, would you jirop il up
hv <lills -o as to keep ii lui llu' same Hue',' .\, No, sir. «
(^. llou do ymi know it has noi heen moved','' A. I am sure il has not
heen moved, hecan-e I sjiould have seen a record of il in ihe idlice. Thai is not the
-ur\'evor'< stoiK'; il was put in hy order of the (invernmcnl, and not to lie tampered
\\ ilh, and we mi<j;hl llnd an erroi' in that stone or another, and we are not allowed
lo |oU(di that stone. They are there, 1 lieliexc hy slatute, and we are nol allowed to
interfere with them (diher to lower or to lift them. They are there, and unless you
jet MU order from the Council lift m- lower them, you can in it interfere with them.
Ii was put in with reference to the line oi' the street and to <liew llie urade at the
I ime it wa- |inl ill.
(t. Nolliiu'j wilh nd'crence to the ,u,'i'ade of ihe lot'.' .\. (»h. dear no, sir.
(^ Have you any record in the ollice us to that stone heinj; pul in there'.'
[:;7]
\ ( )|lly (ML llH- lllllcKll lllll|l. W
:in'l all I'liail lilies.
licrc \\[v .-tunc i- -hewn, iiml »]-<> ;;iviii^' ilie nll-ei-
'^
WmiM ii Mir|ivise ymi te leiirii IIimI llii< street iiml lieeii at any time eut
.l.iun in IVnnl nl' lut T? A. It wimld -ur|iri.--e nie; 1
dnii'i lielieve it 1
las ever
I. cell cut (jiiUli,
(^ Von lielieve that i~ lie dii-inal ^rade'.' A. At that earner, I Inun-tly
l.rlieve that that ha- never heen ehani^ed imt :'. inehi'- i>ne way ni' t!ie other.
■-direel hv Mr. Wilson
(^. I nndrvstand yon to say.
Mr. N'oot. that there is an ancient I'ore-t growth
l-elow the elihliin;; on
Cohinihia street? A. ^'
(!. And an ancient forest :,'roulh, too, cm lot '■'<'' A. ^ e;
11. I Id'i . Called anil ^\vorn.
.xaniineil ii\'
Mr. W
(J. Vour name is".' A lleni'y Ih
(.). I n I ■'^'.li' were \on a memlier
ifiheCitv Conncil, Mr, IIov'.' A. I was
Conii: Chairman of the i>oard of Works'.' A. ^'es.
Mr. Wil.-on: Were yon ihecdiairman oflhe i'xiard of \\'ork>'' A. ^ es.
'i. And had xnnelhinu to do. as (diairnnni of the I'xiard of Woi'ks, with elfect-
iiiL' the imiil'ovcinenls whi(di were then made on the streets
A. Ves, sir.
(^), .\nd on Colnnihia <ti'ee( had you sn|iei'inten
nd alloiiethiM', with the lioard of Works.
lence id' till.' work'' .\. ^'es,
1^ Did yon 1
lave anv comersa
tion with Ml'. McNamara
Mr. i'-ekstein ohjects thai any eon ver-ation hetween the |ilaintilf
and witness irrelevant, the authorities shewin.i;' that Mr.
Hoy eiiuld not ha\e made a contract on liehalf of the cor-
jioration; and that conversations with individual mem-
Coil
ut'ttT h(
;i)iain.
Mr.
Willi Mr
IIU', tllfl
.lay's vv>
Mr. Me!
lino Wi
iil>out al
'inn woi
iM' iliilii
Q.
■_'ii inch
<i
his wall
(I
not: 1 t
Q.
I niiiflit
a-kcil h
Mr
witli Ml
lot (.11 C
Q.
was all
Q.
\ (HI?
[;!sl
liers of tlic ("(Hiiu'il ('(Hild not lie liiii'liiig uiion citln'r
party.
fonrt: I caiiiiol iil tlii- stiijr*' ^ay wIkIIk r it is ailiiiisfiblc or not. It may Ix
iflcr lio luis fiivoii i
t, I shuil lind it iuudinissibk'. iid, if so, I will strike it out
imam.
.Mr. Wilson fto uiliicssj: Von lnul, I nmliMood yuutosay, a conversation
itii Mr. McXanuira aliont tlic work? A. Wt-li. 1 niiglit slate, if you will allow
lie, tiu're was a ri'so
Intion passed in tin' (lonncil tliat the work was to he dont> by
day's work to widen the street and juit a new sidewalk down. I suggested to
Mr, XrcNatnara and others on that street that if they would put the fence on the
line we would nnike the street the full width ami make a good joh of it. That is
III If
ut all the conversation I had. 1 merely snggesteil it.
il. \<m sU;;;^ested to tlu'lii I
hat if tl ey put the fence on the line the corpon
lion would elfcct the improvements?
ue didn't like to put il down without.
A. Yes; it was quite a new sidewalk, an(
(J. Was Mr, McNamara's fence put hack'.' A Ves, sir, Il was out ahout
.10 inches on the street.
(I n<
know who dug out the ground to ennhle Mr. McNaii- ira to Imi
Id
liis Wi
A, Mr, MeXamara did that himself.
Q. l>id he do that on Armstrong street, too, do yon ki
)t; 1 think the eoijioration men did.
A. I believe
(I. Took o"l some ground there to em
hie him to hnild his wall there? A.
1 might say, in answer ti
that, the foreman at that time told me Mr, McNamara
■iked him to let him take out two feet of that, and 1 told him —
Oh.jected io hy Mr.
Olijeel
jei'lion i!llowe(
Mr. Wilson (Io viliu'ss): So that what you di<l ou Colnmhia street you did
ion? A We didn't take anvthing on
with Mr. McNamara's permiss
lot ou Columhia street, Mr, MeXamara dug his own.
il of hi;-
(J. Well, <lid yon do anything more than suggest that to him? A. That
was all.
Q. You understand what T mean? — he says you on
? A. No; I had no aulhoritv tr or<ler anylhin
lered him to do it. Did
Q. Von gave no order, as a matter of fact? A. 1 gave no order.
V.'«.
<^
til sec w
q.
*i.
Ill' WHS
if I Wl
Q.
iciiicm
^l
Me Nun
licvc it
Q
yod s|)(
111' liis [1
Q.
iiavi' to
[••«']
ii Ydii su^'^U'Sti'd ii 111 liiiii, ami he yichU'd a iciuly as.suiit'.' is tliiit it? A,
(}. It was ill coiiscinu'iict' 111' till' rcsdlutiou of tiic ('otiiicil tliat you went to
Mr. McNaiiiara in ciiiiiiiioii with other owners? A. Y(!s.
»/. Tlie Couneii, I take it, would not liave done tlie wori< if assent had not
lieen j^iven to it.
Ohjeeleil to liv Mr. Kcksteiii, ()l)jeelion sustained.
t'ross-exaniiiu'd by Mr. Jenns.
(^ Mr. Hoy, did you not in tiie lirst phice tell Mr. McNainara tliat his fenee
would have to he ciit down? A. No.
(J. When was it that you first saw him about flie nuitier? A. It was just
liefore we commenced work. I could not give you the (hite. It was in ISffl).
<l. Had the other property owners alonjr the street been soei. at that time?
A. I spoke to Mr. Kdmonds (irst. and 1 think Mrs. Mctiinnis asked nie one uiorn-
lufi if we were f^oiui: to do anything.
(). Had they liiven their asset
f A. Mrs. Mr(i
innis volunteered to do it.
<^ And what about the others? A. Mr. ^vlnl(^ld^ told me to -cud a man
to see what it was goinir lo cost.
(i. About Mr. Harvey, did he give hi- co
(^, In fad, he sent in a letter iirotestint; again
A. No.
~i it, .lidn't be'.' A. Well.
lie was the last one that came in, and then be came to me afterwards and asked
if 1 would do the grading, and I sai<l that 1 wouhb
CJ. Was that after or before this letter of protest was written'.' A. I don't
remember any letter of ]>rotest, Mr. Jenns.
(}. Was it hefore or after you spoke to Mr. Edmonds that you spoke to Mr.
.\lcNam:'ra about it? A. It was after, I believe. I am
lieve it was. rrid)abl\- the same dav. 1 would n.>t be sure.
not nos
itive, but 1 be-
Q Do you remember his standing on to|i of the bank, or where was it tliaf
-poke to liim ab(uit it'.' A. Oh, I ibm't know; it might have been in front
Von
if his iiremises
i}. ibit you are ((uite sure that you did not first tell him that the wall would
have to be cut down? A. 1 am positive 1 never told him that.
<i-
().
Q.
[40]
(i. He liiiil sonic rosi' bii.slios iunl llowcrs in I'ronl iilonj^ tlic eilgf (if tluit w.ill,
liu.ln'l lie'.' A. Yes.
(I W'tis anything siiid iiliout that at the time? A. No.
Court (to witness"): What would he the value of tlie stone wall alonp; 7 and «/
yon know the stone wall? A. Yes, my lord; 1 never tigured that up.
(.i. Nor on lot 'l'.' A. To make a foinpaidson, in front of my house it eost
me ;ii.(iut ifl (IH.dd a (diain.
Mr. Kckstein: What is the height .if yo\ir wall'' A. It is 4 feet,
(i What thickness? A. Ten imdies, 1 presume.
(). What kind (d' ciiping? A. It it cedar cojdng.
Court: Wduhl the stone coping he more expensive, Mr. Hoy? A. 1 expect
il would he.
.Mr. Kckstein; Wiiat is the height of Mr. McXaniara's?
()h;ected io by Mr. Wilson a.s being cross-examination by Iwo
c(Uin-el iin the same side. Sustained.
Court ("to witnes^^: It is all toe way bet ween 4 and o feet liigh'.' A. I
-hould siv -o, /
(,1. Wli<,t diirrrciice would the stone coping make by the chain"' A. I
' "idd (lot say.
.Mr. Wilson: There is one (pu'slion, my lord, which did not arise in .u-oss-
. \aiuination whi(h I was going to ask permission to put, and that is as to the char-
irlcr of the improvements on Columbia -treet?
Court; Ye.-, is the property imiu'oved iiy what has buen done, (U' ilepreciated?
A. Il must have improved it, 1 should say.
Mr. Wilson: Is it iv.t a fact, Mr. Hoy, that Columbia street, by reason of the
work then done, is greatly ini|>rovcd? A Yes.
(I And Columbia street in frcmt (d those lots?— is or is luit that greatly im-
proved? A. It is improved, yes.
(i Was not a large sum of money spent that year by the city on this work?
[■Ill
A, ^'fs; ([iiiU' ii liir<;i' ^uiji «i' iimiii'v, tlic slrci-l wiis widciii'd (Uit twice llic widlli.
(l Will yim tell us \v\uA was dono in fniiit of Mr. MrXainani'- lul "U C.iluiu-
liiii MrccI? .\ l'"rniii iiiiMiio,;,- 1 slinuld stale that the street was not more than
."o feet wide at that corner. It was iiuule t)ie full width of the street ~!li» feet. And
ihe^rcude wa- made hiither: there was a little fallin-- <lown in front o{ Mr. McXa-
iiiara's, hut no cut.
<^ And wa.> till' crihhinti hiiilt on the lower side of the si reef.' A. It was
Kiiilt that wav, yes.
(^ Do you kieo',- the heijjht of that crildiiiiLr?
Mr. Jenns (dijeet- to what is [iraclically re-e.\ainiinition uiion new
matter.
Witnes-: Sixteen to -jO feet, I -hoidd say.
( )l)jection sustaiiHMl.
\fr. Wil.^iHi: I a-k your lordship's iiermissicm to a-k this witness witii respect
to the improvements that liad oeeii elU'cleil there?
Court; What vou want to i.;et at, as I understand it, is this— that there has
lieen a "general improvement therc' insteail of depreciation'.'
Mr. WiUuii: And ih.U even assumiiijx that (he plaiiitilf i> entitled to recover
il.c dama>re —
Court: l)on"t .<,'o any fiirtlu-'r. (Tn witne-s.): To what extent should you say
Ihal pr,ipcM-ly ha- hcen .lamnu'ed hy the chan.ij;e< made in the street'?
Mr. .leiins: Of course I Ciiiinot ohjet^t to any (iiiestion [lUt by tlio Court, hut am
hound to in this way, that even if on direot examination, llie (|uestion eonld not he
put hy mv learned friend, l)eeause it was ru'cd in the l'.ri,u'housc case that if the
value (d'the property is increased hy the u'l'in'ral improvement on the whole Icnelh
nf ilie street, it coidd not he taken into consideration.
Mr. Kekstein: If your hu-iMiip plea>es, there is no counter-claim for improve-
iricnt ill value.
Court (to witnessl: You knew the property in IS'.MI'.' A. Yes, my lord.
*} It was w(Uih then $1,(1110 Hd—fm' the sake of arjimuent -how inucli less is
it worth now A. I eould not say. 1 shoul.l say it was not worth any less
(;. Would you say it was worth any more'' I am i\oi sjieakintj; now wi'h ref-
croiiei' to the tuird times when money ha- ceased alino-i to he a tliinji tiiat is known
III the countrv. hut assumius,' that it i- ordinary husine-s times, would you -ay that
n.
\iir(l.
Q.
[4-2]
:|„ |,n.|,M-ly i. worth iiK.rc or lc>^" A. Well. ! sl.ouM say the iiiii.rnv..im.nl,-
ilial havi' Ik-cu luadc mi tlic h)l liavc iiuproNHMl the value of it.
Mr. Wils.ni: Wlial [ wiiiit to ).'i't at, my hml, is that iiiii.ir,!iate!y in front ,,r
\|i-, McNamara's liodsc tlierc hiivc hct'ii iiiiiirovcnicnts cllVctt'd lo the vahie of how
much?
Wit lies.-: I couhl not say.
(}. One. two, liiree iminlreil dollar,- •.■' wlial do you think?
Couit: 1 Ihink. Mr, Wil-on, that you may leave that lo me. I have tiav<dled
,|, and down that street four times a <hiy fur \-> year,-, and <lurin,u' tlia' time I 1 ave
;a,idi' a tcderahle aequaintanee with the geographical peculiarities of r..
W.M. liK.MH.I';. Called and -worn.
Hxamini'd iiy Mr Wil.-on.
(}. Your name is'.' A. Win. i>eadle.
(l .\i,d you live in Surrey'.' A. 1 live over tin- other si.le -in Surrey.
(^ What 1- y<iur occupation'.' A. -(ieneral iiia-oii.
Court: Do yon know tin- wall in front of where .Mr. McXainara lives and in
IV,, lit of the hou><- of Ihe genll<Miian who lives next dom'.' A. Yes; I know it.
J ii Wli.'it would it cost to huild that Aall'' -there are lo'..' feet of wall.
Mr. .leiins: No; more than that, ymir lordship.
Mr. Wilson: You huill the wall, did you, at the corner of Merrivale and Col-
iiiiihiii streets? A. Yes, sir.
(^ ll.iw inindi of it? A, i huilt two (diains, less Id f<'et ,
(I How much were you jiaid for that" A. Five dollars and a half a euhie
\ard,
(,^ How many eiilde yard- were there in the wli(de of if A, 'riiirty-six,
//. 'rjjehtdfflit from the ground there, on Columhia siroct, wa- what'' A
It averiijjc'l *',■' inches
<^ I
«.'. i
<^ I
n- I
<^ 1
No, ^il■; I
■ ., .tiiis.ud
u'IkIcI' oil
Q. .
.lollar. a
Ciiili-
ri'luni, -
yards aui
n-
made the
Q.
luiilt it.
linii'.
Mr.
■_'ii(>i| |ii'i(
( 'iiu:
Mr.
;ili(lUl P'l
<^
liuilt on
I'ccI (Jll >
;dt()};('tlii
Q.
[i;;]
<^ Ami llii! liciglit 1)11 Mcrrivali' sti-fot? A. AvtM'a^cil .') reel.
1^ Ami llic tliiikiH^-<.s? A. lM{;lit('(>ii iiiciics.
<^ Dill Villi liii'l all till- nialiTiar.' A, Fmiml all.
(^ Laluir, anil cNfi'vlliiiif;'' A. l-almr.
'^ Dill Villi al-ii liiiilil ilic wall mi Ariiisi miii; sti'cct fm- Mr. McXaiiiara? A.
Xii, .-ii'; lull I iiiailc a tciidcr i>t' it for the niaii that diil. I iiiit;lit say that it ciiiiif
In .•(;l',).S,(l(i, ami Mr. Kelly, liis aj^ciit, wii.-; a week before he wouM pay me, aii<l he
;.,iii| iiic .•t;l!i.'..(lll.
• ^ ^'l||l -ay ymi iiiea-iireil I he wall on Ariii.-I nnij; stiH'el? A. I iiiaile the
M'liiler iiill t'lir llir man 1 hat Imill it, ^
<^ Ami you knou' the ilimen-ions ii[.:'ii which ymi lemlereir,' A. I'lve
'liillar.> a eiiliiu.»*-«nl.
Court (to witne-^i: How many feet were there'.' .\ . It measurers mi thai
ii'tlini, '2 feel mi tin- eni^ne- on each eml, ami there is a lireakl'or a uateway.
(i. What woiihl il total ii|i? A. ICii;hty feet in leniith: there is •J'i <'iiliic
> ards ami 7 feel in ll;<' wall.
(i. At how much a yaril'' A. Five clolhirs ami a half a enhic yanl. I
made liie tender of il, ami he told me he ^ol that price.
*,». W hai did ymi i^ei paid for il? .\. Well, il was another [larty tliat
liiiill it. 1 made the tend'r out for him; a man that was working for me al the
I inie.
Mr. Wil-iiii: Wen those prices wliicdi y mi were paid fair priei's? A. Yes;
_;'".'l |irices, I could make more than wa^cs; did do.
Cmni: It i- ahmit .tl'.i.s.lll) ,.ii 7 and S, and ahoul ifl'J'J.III) mi lot I.
Mr. WiUdii. .\nd ymi made alimit ;j!(i,(Ml a day on itV \. Yes; cleared
.lioiil *<•, 11(1 a day.
( 'r"ss-e.vaiiiiiied hv .Mr. .leniis.
(^ Yi'ii say that on the I'oluiuliia -ti'i i ; wall ymi huilt I'J'Jfeer.'' A 1
liiiill mi the Colii'iihia -treet wall -well, t h re is a chain on Columhia street , 1(1
feel on Merrivale .-Iroet, and the hreak of the i;atewa\ makes Id feet: that makes it
:illojzether. '1 (dia'lis los.s Ml feel.
<;. Who huill the halani'c of tlu' wall ' -how niu- n wall is there on I'liliiinlda
(.1 \Vli(. liuill Ihc IpalaiiccV A. Mi'. SniiMllcy.
{}. l»(i vdii kimw wliiil Mil- |iai
I liiin r.ir thaf A. Ili' wa,- paid .+
nil a
iiliic viiri
1 for iloiiii; the lalior and tiii.liiijr the lUDi-tiir, and I'm' man lliat found the
i.iiic was |)ui(
Nainara and Sine
1 I.IIO a riild.' vard. Al the time, llicrc' was ii
disiiutf lictwccii Mc-
dlcv alMiut lliu (inaiilily of nildr yard- it contai i:llify conld
iimI aitrci' aiH
1 callol nil' to ai'ldtralc it, to settle the (lucstion, an
il 1 went down ami
asnrcd l lie wall, ai
II.
found il -l-l fec;t iufS. I giive it nigh •■noiigli for
>■> loct, ^o
.ii|i|)os(> it wa- s<'ltl('d.
(}. 1 hii-i' wou
A Yfs, sir.
Id lie -I'l culiic van!:- in that, and thiTf were :ili in w
hat \(iu did''
(I And h
\ai'd- and 7 foil .
iw iiianv cnhic van
- in Ariiistroinj; sti'cfl"
.\. There i- 22 cuiiic
( 'dUi'l ; I >o vou mean to ^av th
here ar<' aiiotiier 'J'-' euhie var<l- in ('(dunihii
-trcel':
Mr. .lenns: Yes; the evidence L'iven hy my learned Iriem
1 onlv coneerns lot
not lot S.
To witness: &>() tiiat wonld he .")S euliie yart
,s, at $.')i"> a yar
d, and ■J'J.To vou
IV was $.").,')() a yar
il'.' A. \V'hal I dii
1 Inid Sji.").,')!) \'(>v, and the other, it eo-l
fs.lH) the lir.-t 'J'i euhi'- yards
-t $S.(HI.
<J. Mii^iit didlar^ a yar
,1'.' A. And the :ii; that 1 did.
il \\':\< ^''.'^^y:
A. V'wf dollar- and a hall
i). All
,1 then there were 'J'-' yards and 7 IVet on Arni-troni: street that another
man did: that e(
iiut the tend( r.
-t :|< .")..■> I )•' A. W
• 11. he told me thai he had that price. 1 madi
(^ And he al'tiu'ward- did tin wm
k-! A. Ye:
t: I understood ri.jht Ihrou.u'h that it was $.".. .".l> the amount per euhie
(Icu'r
i| on lot,- 7 and >^. ;ind now
he talks ah(Ult .^S-lr
Mr. .leiii.s: Yos; tlieie wen
(id feel at $S.li(l hy anothei' man, a
nd he was the
.■irhitrator to sett
le Ihe numher oi' yard- not the pri(
Court: Thai wonhl he -I'l .-nhie yards .at *S,IMI
Ml
r. .lenns: Yes; 1 can ge
t it oul 1 can reeapilulale
ilness: It U'ou
1,1 lie nne (d'ihe lot- on ('(diimhia sln'et-- 1 don't know
wliic'li
.f".,.")U.
wliicli (111 yiiii kiHiw ihf miiiilicr'.' A. N", sir; il uii- tlic i-cinur hii i liai \vii?i
'}. Ami llic oilier niif llial WHS ,|8. A. Yf^^.
Coinl : Were there •_'■-! (■ul)ic viirds (iii llie {•luiier \<<l'' A. N", sir; ;j(i.
(^. 'riiat would lie liow liiail>' ellliie vafil
: lie conier lot at .to. ."id.
A. 'I'liirlv-six 1 ul)ic; vanls on
Mr. .Ielin~: Doe- that ilicluile I he o|iiiij;'.' A. No, sir.
1^1. What ;i(lilili<Mial eo-t would that eoidiij.; make'.' A. Well, the roping,
I lii^ured it u|i for ihe man that put it on, and tin' lignres for the walU on Cohiui-
l.ia ~treel ami Men'ivale street wa- .$ r2.'>.(in.
Court: ( »n Arm^lrouj; -treef A. Well, .\rmstioni: -ti-eet wa- Sd ruiin ing
!i('t of {'opin^;-; 1 would jud.uc^ thai il wa> wortii al.oul tl"'.""-
l;e-dire(i hy Mr WiUon.
t.^ You told us that the stone wall in front of lot ^ eo^^i .f,s.(lll a foot how is
ihat?— i|i(S.()(! a <-uhic yard, 1 mean'.' A, Well, I think. Mr. .MeNainuru was not
well posted on tln' way to go ahout iietting a stone wall built at the time. In fact,
he lohl me -o him>elf, alioiit it,
(}. And the increased eo.-l arose from that, vnii ihink? A. Well, he .~aid
l'"i;.\NK l'"oi;iiKsr. Called and ^worn
Kxamined hv .Mr. Wilson.
(>. Yo\i are .-uperintendent of road.- for the city'
A. Yes, sii
1^ Mow lon.a- have you iieen livin.i: here' .\ Since the sjirine- of l.sii-J.
(^. I'>ul how many years have you hei'ii
down in New Westminster? .\.
come down 111
1 S7 I .
^i. \\\d have lieeii residiu.i;' here, .-inee then, h.-iveii't you':
A. Y(
( ourt: U lia
\\ hal lime did \ou y,d on the roads here
lirsf.' .\. Well, 1 don't
sa
^^ .4..
v/
%
<^«V^
a^ x^^
IMAGE EVALUATION
TEST TARGET (MT-3)
y
A
<5
L-P/
(A
1.0
■- 121 III 2'^
: 1^ 1^ III 2.2
!: I4£ 2.0
mil 1.8
I.I
1.25
1.4
1.6
^ ^ — —
6"
►
V]
<^
/i
/a
01
/^
'^
y
Photograptiic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. M580
(716) 872-4503
^Q^"
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tell III;
(',
n- ll
iiiailc
ilic lit
-Inlics
M
iil.lv
'hat.
(•
I'hiil 1
I'UI'IIII
[l'-']
tl It w,i.- lictnir IST'i, wa^ it ni'C' A I 'l""'! i\u\\v kiinu ; il i- m li'ii;;
I line ii<;i).
Mr. Wilsim: Viui kimw Mi-. McXaiiririi's l<ils at tlii' (•(.nicr nf Mcrrivalc ami
{'.ilniiiliia .-^trcct^? A. Ye.-.
(^. Do voii kimu- llial -loiic iiiiilcnicatli llic .-iilcwalk''' A. ^^-;I |int
ihat ill lln'ic.
(l I'.v uho-c (liri'i-tiiiii? A. Mr. rtnn.T, 1 tliiiik.
(J. lie \va- llic <urvcyi'i'.' A. Yc.-<.
(^>. WImii ili'l yiin pul iliai ill',' A Ft i- a lonir liiin> -^iiK'c.
Coiirl; Yoii an- -|i-Nikin;: of the -luiic cm llic I'a-c line, in tl;c ullicial map nf
lss.|'.' A. 'S'l-, iImtc aiT -liiiir- ail kvvv Inwn. nn cvcvv (■rn-'-iin:.
Mr. \\'il<iiii: Ynii -ay ymi |Mit tiiat stdiic in liv M r. 'riinicrV ilircctioii. Will
v.iu Icll ilsaliniil tlir vcar you |iiU it in, iiralioul if.' A. Well, IIktc was (iiic al Mr
McXiiniara'- ci.riHT im Mcrrivalr sli I, -not (lie cnriHT -Iml -n many link- oil'
ilii' cdriifi', ami i>m' .lowii al iJlai'kwodil -trcci, ami one at Kcary ,-lrcct, ami «w al
l>niii_'la> I'liail amM 'iilniuliia -Ircct.
() WImii did yiMi |int thriii in. Mr. FdiTcsl what yfav'.' A. 1 i-animt
Icll Ihat,
Court: l)o \"U ri-((dli'i-l win n the m\\ cily map wm- made' Wa- it imt dui-
iim III.' inakiiiL; nC thai -ufvcy that tlm^c wrrc pni in'.' Ymu recollect that map
* made ill IS.s;!" Mr Turner and .M r I'ha- WchkI- prepared i he new otlicial map of
the I ilv. .\ Ye<; hilt I don't mind ihe year.
(^ Unt linw loiii: was it tiel'ore the new map was nindc that ymi put llinsc
-tones in'.'
Ml. Wil-oii: Within ^aie year, mic or two year-, we are not particular |o a
\ ear.
Court; Snppiisiht;. Icr the -ake id' . irLinm. Mil , that the act pa.-scd in Is^l. pro-
l.iihly you pnl them in in lSS;i'' A. ^'es
Mr W'il-on; llow many year- iil'ter ynii came down rnmi Crihoo'' Thai
I- a u.>od way to recollect -oineliiiic-, \ 1 ima^;iue it i> a loue-er lime than
iliiit. I mind it is more than nine years.
Courl: Was linil llie time when you pnl iheiii in Ihat you were inakinu the
l..ise line for the purpose of u'ettiiij; an Act of rarliaiiieiil ahoiii tlie cily map'.'
That 1- the -survey in wliiih Mr. ('ha-. Wood- and Mr. Turner were en^fiiged for the
|iur|ios(. (d' making.' a new idty maji, ihen. that the time tlm.-e stones were put in''
^■^..
147]
A, I iliin'l ininil ; 1 caii'l miv .
Coiirl : Will, lie .-av< tliat llicy wi'ii' put lliiTc in umlcr Mr. 'I'liniciV iliitMl inn-,
iin.lliiiil i- ;■ niullcrMt'lii-i.iiicai I'ac!. TIm'iv i- no diliiciilty in jj;i't(inf;iinotlicr wilno-
1.1 prove tlnil Mr. Tnrncr iind Mr. Clias. Woods were tlic ^'fnllcnim who made thai
-urvi'y on wliiidi tlic oMi'dal ninji of l.s^l was hascd.
Mr. Wil-oii do uilM'—y: Mad yon idi.ir::i' of I hr men wlio laid I lie -nit-walls
on ("idnniiiia slrccf' A. Well, idiar<;i'? 1 seen who did it.
(^. Do yon Isnow Mr. Ivlniond-' fmic I Inrf'.' A. Vf.-.
(J, I)o von know how loni: ihal fcin'c ha- lircn there? A. Well, it ha-
Ix'en there a loni; time 1 eonld not -ay how many year-
ly, lla- tin-re hei-n any eli:in;ie made at the fence'.' .\. No; the fence
there i< no diliei-ence in the heij;hl.
(^ ,\'o rlian.L'e in the erade at Mr, Kdnmnd.-' uate-.' A. No.
(} Ila- there heeii any elianu'c in the -raih- where the -tone i- at the eornci-
nf Merrivale -treef.' A. No.
<l ^■on have l;.'! tlio-e Iwo -pol- lixed'.' A. 'I'hi' ho.\ ('.') on l')!aei<wood
•Ireet at tlii- end i- the -ame ;i- hefo e the .street was made, and Ivlinond-' uale i-
ihe same a- il w,i ■, .and I he nppei rner is tlie same lis it was. it i- even .i^rade
now it wa- hiizhei- in - piirl< tin si-lewalk was on a line with the road and
it was on a lim' with ihe i;ronnd and it was saLtircil np and ihiwn. ami we made an
even tirade llirou;^h.
i}. When vol] made ihal. liad Mr. McNamai'a nn'vcd hi- feiu'e lia(d<'.' ImiJ!
hi< stone wall'.' A. lie had moved hi- h-nee <dl the street. an<l his wall wa> hnill.
1 wa- often a-ked when on ihi- corner to take away I he dirt for him. W .■ tocdv
awav the dirt: we wanted all the dirt for lillini; \\]i the crihlnnu.
tl And took the din which he had thrown ont , to assist in lillin>r np Ihe
'lihliine'.' .V. ^'e^.
<^
'^'on kiniw .\rm-ironi: -treet, too, from .Meriivale to lllackwood? A.
(l What iM.ndilion wa- ihal in hehn'e these improvenn'lils were elfeeled"
A. Well, there wa- a kiml of a roadway Ihroiinh, Iml very muddy al the hack
of I'Minop.iU', and then it went up a sandy liill and there wa- a duekpmnl at thr-
'orner At the liollom of the fence it was very nearly as lii;;h a- you could lomdi
Aith your hand 1 have |ook<'d al that dil(di nniny a lime: it was full <d' mnddv
-tutl'.
mill so
plin'e I
before
Q.
-troet?
iii(>c(> r
[4«]
{}. Tlicn you ili<l not ciil it down -it was (illing in'' A. Ych.
(^ An<l weren't tiiere large stumps still leCt in tlie street there"' A. Yes;
iiml some sticking in the iliteh at the side: the roml was not cut. It wiis a narrow
plaee at one side of the dileh, and the sand and slack all come down on the road
liet'ore it was filled in.
(I Who dug away the ground here to allow the wall to he liuilt on Armstrong
street? A. (Hiarlio Wear, the foreman: and McNnniara said he wanted to cMt a
piece for his wall, and I said " all right."
(Adjourned to Mon<lay, January '2;!rd, IStto, at -J.;]*! p.m.)
/ hn-fh;/ rrrtifij the foregoing to he a Irnv and accurate report of
the said proceedings.
V. KVANS,
Otficial Stenographer.
Mr.
■19]
lO tl^e Supreme <$ourt of BrItisI? Columbia.
(Before Mr. Jistk k Hhi.k).
New WeKtiiiiuHter,
Jainiarv ■-'.'5. liSUS.
M.NAM A KA
V8.
TllK COHI'OIJATION oF TlIK CITY OF XKW WKSTMIXSTEU.
Mr. .Iiiiiis iuid Mr. Fckstciii Inr the I'li.iiilill' ; Mr. ('liarK> Wilson lor tlu-
DilVmlaiit Corponitioii.
F. FnUKKSr. I{('<'llll0(l.
('r<iss-i'xaiiiim"(l Ky Mr. Jciiiis.
(}. As 1 un.lprstood you, Mr. Forro.-)t, you said lluit tlicru liad bocu no cut liy
Mr. McXaniara'.s, (in Ctduiuhiii street, at any time, is tliat so'.' A. Tlie grades?
(l Yes. A. Xo; llie grade is liie same as it was heldre.
(-}. As it was liffore wlien'' A. Wlien tliey took it \\]>.
<^ Utll before that, liad the grade been eut down? A. I ihin't know that.
(l. How long have you been in tiie city, here'.' A. Hinee 1!S6'2.
.-,u]
ii l)o Null ifiiMiiilii r, \i\ llif fiiicfiiV llnicl.ii llij^lil of -ic|i- nimiint; up linn''
A. Yes; tlif old Coliiiuliiii Wii^ lilN'il ii|., iiinl I «iit'ss it is liijcil ii|i wiicrc llir
,.!(! Coildiiliia n>fii to lie; it i- liiiril lip hct'orc svc >:ct to tlic level ol' wliere the
-liect is now. 'I'lie ii1<l Colilliihiil ll-ed to he then'. 'I'liere wa- a place that ei.ine
up \>\ the old ("ohiiiihia House; the old street is all filled up eoiisiderahle all aloiij.'
I hell".
(}. Do you ICMieiiihel' Mr Wehsle
r > lidUse
A. \'
<i l>
ic| not the -Ireet fUii alnuist level u 1
\\'< hs'er, the time he wa- in
ih his front dooi'.' A. Yes; Mr.
the Couueil, and he done considcrahlc of that; away
ihove it was eiil down, hut we cui it down eonsi
lei'iihle -iliee the. the eity did.
H. Al the I
ihe Couueil, wa~ i
iuie il was consider, ililv cut down uliei
hen Mr. Weh.t
er wa? m
I i,ol alnio>l all lut down hv the (iueen's Hotel'.' A. There
as a little cut from the sidewalk, hut
>l from the centre of the ro id. You may
hv the irrade id' the (dil ^fround yet, you know. There was a little cut whe
re tin
sidewalk is, hut il wa.- tilled up in the road; the hank, you know, went that way
Il was lillod np, vou know.
g. How hi),'h doe- .Mr. \V.di>lcr
's front door stand ahove the roadway, nr
A. Well, I could hardly lell you; it stamls a >,'o..d hit, hut W(! found the centre
two different times since I liave
d' tlie road tlieic a
I Wid.sU
II
was tilled up
I'cn workinu for the cii\-
il A
11(1 liow otlei
ten ha- il 1
x'cii cut ilown:
A. Well, il was never cut
the street. It was cut hy the end id' the hank.
(}. Was it not cut down four several time-
A. W( 11, liitehie Burns had
iniitract, an
1 he plon"he(l that centre (d' the road all alonji of Iviliionds ahout
't until vou ciune to Merrivale street.
llUU'
(^ Al Kdmond's place, wasn't tlu' ground so hifih that he had steps at o
? A. Wtdl, I don't mind; il isalonf,Mime since. I don't mind for that.
<^ To <;o hack to Armstrong street -at the hack. In iS.Si* was not that cut
Iwav into it. Smith and Bavlis made a roa<hvay
A Tl
town .'
1st there at on
lere was a rrta(
,1'
e sul<', n
ext to Webster's.
(}. How inindi id' a cut
• d' a cut; 1
i;uess.
t was all filled, hut we weii
was made on that -lre(d. A. There was not nun h
I hack on the lots a little: il was IS imdies, I
Q. We will begin on
the other side of Merrivale, between Hlack's lot and
Webster's lot— how much did you cut in there? A. That is Mrs. Black's lot'.'
nil
[Bl]
(^ Mrs. Mlnck'- lot, iiimI Mi- VV.-l.slcr's lot?
Ml. WiUun. Wlii.li i- W.'liMor's'.' .\. Well, wr cut, I fiiirss, u very lil(l.-
nl'ilic i-(i;mI (III tlic niiidwiiy. Iml \\i- nit n little in llic >iil<'\\ iilk, jnwcri'd tlir -iili-
wiilk.
Mr. .li'Uiis: lldw iiiucli wdiild \mii ciil ill' the r(iii<lwiiy '.' A. 1 coiiiil mil
-ii\'; iiIkiiiI ti iiicJK's I ciiiild licit -iiiy.
<;. i)ci yiiii ii'iiiciiilicr ihr I'Mck diiiii III' .\| , . W'clislcrW A. ^'c-.
t). \),, yoii rciiii'iulicr lliiil llicr' >' - ii -t' m I'liuii ll' -^Ufi't iiiln lliiif.' .\. I
iliiii'l liiiiid. 1 diili't think \vr I'Vi'i' wiiit s(i I'lir line' is W'tdistcr's.
(y I),i yciii rcnii'i iii'i- lliiil iifli'i- tin f\:, iiislciid nt' tlitrc licili;; a >M'li duuii
|.i ilic lim-k. the stc|i n|i rnnii llic donr-tiMi lii.l I" lir altiTfd iImmc'.' A. 1 dnn't
ii'iiic'iiilicr.
tj [)ii yciii ii'iiicinlicr tl' • Imnk iil tlii' l>iirk uf McXa niMniV.' A. Vcs.
1^ Iliiu iiiiK ll did ymi cut llicri''.' A. Well, I j;in's> we ciil that is, wlu'rc
ihr cut uii- ilicrc uiis nil ciii 111 McN'iiiiiai-irs side. Tlic same Imards lluit
lime thai wa- at .McNamma'- -idc arc there yet. We took nil'. I think, tun or
ihicc lidiird- nil Curli-'-ide. The liank went u|i ^liKhlly, and we liriiuji;hl it dnuii.
h wa> full III' and -lull', and ,ve didn'l pick any nC it at all.
(^, Villi had III lilt iiUMuiic liiianU id' Mr. Curtis' In make the hank level"'
A. Ye.-.
(l How far down did you carry that cut'.' .\. ll didn't run i|uile down
a- far ns Mr. Ciirlis' — well, it mi^'hl, am! we followed the reuiaiuiler down.
(j. !)idii'l il run down only a.- far a.- .Mr. Kdmonds' old lot'.' A. Oli, it
didn'l run to Mr. McNaniiira's old corner. There was a hii; water iiond there all
Ihe time, and |ieo|ile that wie- liviiifi; liicre the youiiir ones, 1 don't, know wliicdi.
i used tofi" there and run it out several time.-, hut the; used to (h>ni it up. There
was a duek-|ioml. I think thai is what they had it for.
(} So ymi do not think the cut went ilowii hi^yond Mr. ("nrt i-' corner'.' A. 1
don't think; mil niuidi, anyhow.
(^. ll miirlit have Inline a little further? A. Oh, w(dl: it niif^lil. 1 could
harilly tell you now. you know. MiM ' know il was a hiii liH nH nt the lower end of
his lot.
i.1. How do you account then, Mr. I'urrest, for the droji in the irnuind from
the lovol of Mr. Me.Vamiira'- house on Colunihia strecst to tin- street' It is some Ii
or 7 feet there, isn't it' A. 1 don't umlerstaml what you say
kiiiiw i-
I he strc
I'.vi'W li
•livlinw
i- llicrc
;iiiil ina
Mr
ipit.
•toiid
liii I k
A. I .
I hat lu
Q
nai'VOl
<i
'J
('(lint (to witness): Mr. .Ii'iiuri wiiul.- lo know— Mr. McXiiniai-ii'- liousc, \\v nil
know is () or 7 feci nliovc llic .•^I'-cct'.' A. Ycrs.
(}. 'I'luil lisfil to lie Mr. MorrisoiiV house'.'' .\. Yes.
(}. How ilo you aiTouat I'or tlic lad that the house is so uiueh hijjher than
the street? A. Well, it was alway.- lii^^her. It wiis .'i or 4 slejis when .Fud^i'
I'.rew liveil there. I think so -I cannot niinil it hut there was a f^'ood few steji.-
.invhow, hut 1 put that crihhin^' for .MeXaniara Hi year:- a^o— f ir Morrison -ami it
i- there, what I put up, to-day. ami the stone wall i.- not a^ high as I had the eriii-
i.in>:. Morrison ha<l the crihhing liigli. and \\f had hlaek dirt haule<l and filled up
and made a llower hed, and the stone wall is not as high s,. the erihhin,tr.
Mr, ,lenn>: Unt from the top of I he erihliin;; to the hou>e, was not t hat levcd
tli,.n? A. 1 don't miml whether it wa~ a level piece or sleep to the door, (U'
not.
(^ .\'ot from thi' door, li\it from the ''"p id' t he erilihiui;- t o where the house
:-tood - wasn't it a le\(d garden'.' A. Ve>,
(^ How isn't it now'.' I> it terraced up'.' A. I don't know;l m^ver nwticed,
hm I know the stmie wail ain't -o high.
Court: Do von kimw how many cnliic yard~ id' wall are imilt on lots 7 and S''
.\. I don'i know.
<^ As yon have some experience in that kiml of wall huilding. what would
that he worth ii cuhic yard'' A. I dim't know niueh ahont that crihhing work.
(J. Do you know the wall that is on lot A' on the lot that runs up into Car-
iiarvfui street and that wall that is on A mist nmg street'.' A. Yes.
(^ Well, what do yon think that i.- worth a cuhic yard'.' A. 1 could not
^ay. I never had much experience.
rii.vs. Mi..\ri{. (,'alled ami sworn.
Kxamined hv Mr. Wilxui,
(J. Your name is ('has. Blair, is if A. Yes, .-ir.
(}. And you were foreman of the men who did the w(U'k for the corporatimi
-II
Cull
<^
■ II
Coll
till
lot
'^
<^
M.
Niii
t^lil yip
<^
<^
,!l|i| lie
<^
<i
A. Yi
<i
'^
lIllTC (
kllilW
uAi\ ii!
v\ii< a
We hi!
A V
A. li
[■'■■•']
Mil ('(.luiiiliiii street in IS'.iO'.' A. Yes.
(^ Actiiifj; midiT Mr. Fiin-e>l'< su|ieriiiteiiileiic.''.' A. Ve~.
{}. I)(i vdii reiiienilier diiiiif;; llie wmk in tV«mt of Mr. McNiiiniiiirs lut.s 7 and S
mu Cohiniliiii sti'eel? A ^'c:*.
(J. *A'a.- tlie Willi fifclcil licl'dif <!!■ iil'tei ynn diil tlie work'' A. Wei!, "U
the lot Jhiit Mr. MeXiimiira lived on wa- eoniidele liet'ore 1 eonnnenced the wurk.
(^ And the Dther nne/ A. The .ither one was not.
(^ Wiis it in eoiir.-e of erection'.' A. No. We exeavaled for that wall.
<l My whose diieelion'.' A. Well, tlie foreman t(dil nie to do it, and Mr.
Nli'Naiuaia Wi'.nled it done.
(^ Mr. MeNainaia want.'i] it doin-. and in eon-eiiuenee of that the foreman
tohj you III (111 if A. ^'es.
y (I 1),, von tememlier the sidewalk hefore thi- work was done'' A. Yes.
(^ |< llicre any a|i|ireeiaide dillerenee in the urade of thai sidewalk hefore
,.|i,,| un\\-' .\. I don't tiiiiik there i- any only that it is even ^n-ade.
(). \in\ al-o did work on Armslrons: street, did yo\i'.' \. Yes, -ir.
(i. Do \iiu rememher the eondili<m id' tlnil street hid'ore the work wa> done''
\. ^'es, sir, 1 do.
(^ What wa- it- eondilion A. it was very liad; it was hardly jiassahle.
(^ Who dnu out the lot-'' made the exeavation for the ereetioii of the wall
lliere on Armstroiig ^treet'' A I did.
(I iU- whose direct ion'.' A. Mr. McN'ainara wunfod it done, and iie ilidn'i
know wiielher iie would put a stone wall in it or a wooden fence, he said, and in"
told US th(\v were far enmi^'h hack— that he ,]io\it;ht we were far enoujih hack. !t
wa< a wet, sprinirv plaee, and it sli|pneil down th.-it nii;hl on the work we had done.
We had lo lake (hat out.
(^ \n\\ ilid the iliiitrin;:' there under tlie circumstances you have menlioiied"
A Yes
(}. You did tliat at >'■'■. M.'Xamara's re(|ue
-I' A. Yes, sir.
i). M(dow, in front of tinit place on Arnistroni; street, was it a till or acuf
\. It wus a lill.
Cni'tis'.
i now til
1 1 1 1 ■ n ■ ■'
!'. ki'i'|(
II out.
A Ye:
Mr.
Anii-trc
<^
lill it u|
( liiiri'li
Cn
Vrs. si:
<^
<^
I llclll II
IllC^-tl
A. Vi
lllMt \VI
1 1 If Af
hilt ill
[•><]
{}. WluTc \va- till' iiilliiiL; iloiic mi
Anii-triniL' -tri'ct'.' .\ I ii rr>int d' M r.
( lll'tlS
(). Tliiit i> wIhM'c tlir liallk i.~"' A. Vi's.
<^ Anil lliiit
IS al-ii 1 he liiii
k nf Mr. McN'aniafiiV < 'oluiiiliia -Irci'l lot- - il(
i now that':
A. Vfs. Ml-.
il At tlic liack of Mr. McN'aiiiara'- Lark rciicc. <Ii(l y<m take away an y <:r(.iiii
ilicp.-.' A. Tiiiik away a liltlc Tlicrt' was a Inj; ii|) in alonijsiilc the liank thct
[., kc<"|i llic carlli tVom .uoinj; in on tin' lot, ami we took tliat away, ami jiisl clcaiir
II o\ll.
{}. 'i'lic <liil llial you took away tinMi' w:
iii1 tlial wa- ai'tiliciallv tlii'ii
A Y
Oiijn-tKl to tiy Ml' Kckslcin a- li'ailinti.
Mr. Wil-on (lo witn('---l: W'liat (i('|)lli. i|o yo\i tliiiik. of a liii I iicrc wa- on
Aniistroii'j; -trci't'' A. \\'r\\. I coulci not s^y.
(^ Honuiily. Ml-. Hiaii'.' A. Woli. it was over a waLTon loa'l f^ dcci..
.iiivway. In tiiat one pia-'i' particiilai'ly tlicrc was a ilci'i), wet lioic and we liail to
liii it n|> consi.lci'alilc, llicM' was a piacc tlifvc tiilt-d out all tlic way to llic Catholic
( 'liiiri'h.
( 'ross-i'xaiiiinc'
hv Mr. l':('k>ti'ii
(}, In carryini; out tlicsc iniiuovcint'nis, yo\i woi
k('(i iVoiii |iioli
Yes. sir.
(i l)id yoii cxaniini' iho-c |irolili.-'' .\ Decidedly.
(}. What liceaiiic 'if those proliles'.' A. Oil. they were worn out . carry in
I lieni in 111 V pocket evi'rv dav.
(^ Di
<1 vou ha\'e IraeiiiLTs, or tlie nritiinals'.'
A . M r. ( 'olton ii;ave llieni to
lie —the enu'liieei
(}. I lireslll
t hose profiles woiilil shew
•xactlv the cuts and tills of the streets':'
A. Yi
(}. You have said in answer to a leadiny; iiue.-ition hy n>y friend that the dirl
that was taken away was artilieially there, that is, speakiiiK "f dirt tlieie in friuit of
(lie Arnistronji street lot. How <lo you know'.'' A. I saw that there was a lo^
put in there, and stiill' was Tilled in to make a sort id' a road way where tin- liank
i). Hut the hank is not the hank of Mr. McNainara's".'
A. Ye-, it
Hllv
1 Mil
[r»r.]
ciisii I'll cdriirr.
(^ III inv cxaiiiinaliiiii 1 liml in virw M i'. Mr\iiiiiiirir> lol nii A i'iii,-.troii
-licet. I tliolinht ycill WCl'i' spCll
-11-.. UK
Int.
kiim iif the dirt on Mr. McNaiiiiii-aV lot mi Ariii-
strctit lieiiij: artilicinllv there
A. Nil, iiii; the eastern cciriier of tlic "llier
(^, Dill villi lake tlie ilirt away at tlie rei|iii
-I (if Mr. Me.S'aiiiari
A. \V>
hail III la
ke the ililt awav; aliv ilirt lliat we luuk nill we liail In taki' awa,\
(J. .\( wlin.-e reiiue-f.' A. Of eiiiii-e I liad tn take it away fur (lie city.
When we exeavateil any dirt fmni I liese [ilaei .-. we liad tn liaiii it away nil the
,-treet.
(^ What (lit did ynii make nil Cnliiinhla ~lreel in Irnii
t in frmit nf Mr. MeNamari
|iiii|ierly ■
X. Didn't make any cut ; tilled it ii|i enii>ideralili
(I On hnlh r-ide^? A, V'
I. ill" liiere. iiartlv.
Iidtli side-; li
eeall^e liiere wa- a deeji erili-
{}. .\ii.l when yiiu striiek the crililnn
i;, lietwceii what may lie termed the
ihliine and the nld Mreet. ymi
iilled'.' .\. In frnlit nf the new ,-idewalk W(
lewalk.
till,., I it ti|, a little nil the street after we had uraded for the new >iilewa
(^ Why did ll
le earl li
frniii the Arm-trnnL; >treel h't^ -li|i dnwn'' .V. it
as wet and >|)riii,i;y ; wel. spunijiy.
(I Did it .-li|i diiriiifr the eoiiMriietinii nfthe wnrk>".' A. No, imt slip
iilv a little of the face eamc down.
(J. What war the prime cau-i
)f it enmiiiy,' dnwn'.' A. ih ,aiisO it war. wet,
<^ V
111 were Wnl'klniZ' nil
.Vrmstrnne' <treef.' A. ^ e>.
(^ And
■NcaNatlipj: there
A. N'es; v\ (■ were e.xeavat iiiji ahiiiit wli
had tn diy; it mit.
(I And the dirt slijiped iiitn ynnr exeavat inn-':
A. N^
i; we wer(> i;;ra(tiiiK
the sidewalk, and when Mr. MeX.imara a
• keil iir- tn take it niit fnr a fence or wal
lie was no
t decided at the time whiidi
he wnllld hiiild, whether a stnne
wall or a
wiiodon fence, and he tnld us we were far emuiiih hacdi, imt In take any iiinrc mil,
and then it rlipped dnwn a little.
(}. Ilnw deep did
von (
liir" .\. Onlv a little nIV the -idcwalk. and tilled up
the street.
Cniirt: Dn \nii kiinw the value of that stnne wa
11 nil lot I- A. Nn, sir; it
[.-,.;]
1- 11
(it ill iiiv liiii' III' liu>iiii'--.-
Mr. Wilson; W'.i- Ihr stmic wall ImiU wlnii ymi wen- on Aiiii-I mni; -I reel''
A. N'<>, sir.
(^ W'iiiit wii^ <l()iit' llicrc lii-sf A. '\'\\r wall wa> not Imilt wlicii I was
liiii»lii'(| there; there was iHitliiii;,' lidiie, I went hack -uiiie i inie after, ami I -ee it
hiiilt; 1 cldii'l know licw long after.
1). S. Ciirris Called and sworn
l'",.\aiiiined hv Mr Wilson
IJ. Your luinie i-'' .\. 1>. S. ("urtis.
I}. Von are the niayoi- of t lie city of New Westminster"' A. Well. I do
iioi a|i|iear in that ea|iaeity.
(;. But that i- your oMieial eharaeter, now'.' A. Yes.
(^. ^'oii have lived here how many years'.' A. Ki.i;hteen yeai.-.
(I. Twi) years a^'o, did you oeeiiiiy any otlieial [losition'.' What [position <lid
you oeeuiiv'' A. I was alderman for -.everal years.
(I Where do voii reside'' A. At the I'orner of Merrivaie and Carnarvon
streets.
(^. Youi' pro|ie;-ty extends from what street'' A. From Carnarvon to Ariii-
stronj;.
(^. ^'(lurs are numlKU'ed lots ."> and ti A. ^ es.
(}. Tlieii on the west it woiiM he your jirdiicrty adjoins Mr. MeNamara's lot
TV A. Xo, Mr. Wil.^on: it i^ ad.jaeeiit to lot I on Ariiistr(iii>; street.
(^ And ri;iht immediately at the haek of Mr. MeXaniara's lots 7 and N'.' A.
Yes, sir.
(}. Arinstrone street intervening; hetween lots 7 and S and your lots •'> and li''
A. Yes.
(.}. Will vou t(dl his hu'dsliip the eondit ion of Ariiistroii>; strt!(>t heforc the
iiiilirovenients were elfeeted'' A. 1 rememlier it as descrihed hy Mr. Hlair ami
Ml.
J
[■"]
Ml. r.Miot.
(^, 'I'liiil i-i, liiinlly |i;is-:iMc; full of Miiiiiiis'.' A AlmoM iiniiii-siMc: ii
-icIcxMilk, 11(1 L'l'iMlr. ami ~i'vcriil ~linii|i-<.
( 'nnrl : Ami n <liii-k |mii!
il" A. ^■|'>. -ii': I iciii'iiil'i-r till' 'luck iiMml.d
Mr. Wil-oii: A
.lu-l IllldUt tllClT.
iii| lliMi ihick hiMiii \va- III
I'l-Miil .if Mr. MiA'iiniarM'~ I'll'.' .\.
(J. 'j'lii'-i' iin|.rnvciiirnl-. «imi' i
ikcn I'l Villi alioul rtlrri ini; iiii|iriivciiii'iit-
irri-lc'd ill is'-'ii, Ilail Mr. MrXaiiiara I'VfV
lliiiV.' A. Vi'..
(,l. ( )n iii'irr ilia II n\
ic ncra-lMii :
A. Vi-. -ir.
( )liii'clci| Id i.v Mr. |-",ck.-loiii a^ irn-lrvaiit.
( 'oiii'l : It iiiii^rlii 1,,. a inallrr In lake iiiin (■iiii--ii|iTai lull . .a-* I !ia
I iiavi- tin' riliirticiiir
i|' a jurv, a~ to llic i|iit
-linn (if ilaiiia;;c- with rf>|)rct to liic (lc|irci'iiiti(.ii cil'llii' |in
itv. it'lhc wiirk^ in i|iic>tiiiii wciv iimdr al tin- nanicst or sii^rjrcstioii ol llir -cn-
llciiiaii wli" 111'"' a~k- '1 ii,i;c.-.
Ml
^>itili : 1 1 i-alih'il I'l' lilliillliiJ. nil "IH
-i(|c. all'! ii'ii I'iiiiliiii: iin tl
illlCT.
Coiiil : ir Ml-. MrXamara wci
il liaviiiu -nine il
1 1.1 Mr. Cuiii-, 111 lifin.u a pcr-nii in antlmriix
liiH'iico in tlif (lirtclion i<( nliUiiiiin^ ((rtain cliaii.L'o m' im-
Miicnls in till- -IriM'ts. am
pal ri'iin'.^cnlalnc- In
Milts of tlii- c niivciv-a
i r('(|n('st('il ami |«n's~iMl liini a- our ol'lhc niunii'i-
have llii.- cliam.:!' iiiiuli'. ami il can lie .-licwn a.- mic n|' t)ic rc-
linn that llic cliantic wa- iiiai
Ic, il inav lie 1 iln lint say it
will -isoiuc eimiii
il In rclv u]inn a.- inili^atinii of ilaiiiaiz;cs caii-
il liv a stal(
iliiiiii- a< 111 wliicli Mr. .McNiiiiiara hiinsclt' wa- the lir-l ninvinc |iarly.
Mr. Kck-icin: Will ynnr liiril-hi|i a-k llic uilnc.- wln'ihcr he wa- ahleniian ai
tl,ai linii.-.' .\. Mv Innl.lhc la-l lime thai Mr. McXamara ,i-kcil me In ijel iha!
il \va~ ill IS'.IO; il wa- late in llie I'all. I (nl'l liilM I c'.llhl linl i:e| i(
-Ireel n|U'm'
(.i[i('li. h(.'cail.-e we
ha'l, I hen . im t'limU.
(^. \ im were I lien an ahleriiia n '.
A. 1 wa- then an alilerinaii. hut I >aiil
uhl emieaxnr In u'cl il ilmie the
lirsl tiling ill 1 S'.U . alllmiliili 1 wii- iml in tin
( 'iiiiiici
1, ami it w.'i- the lirsl niece nf wnrk thai llic Cnuneil diil in IM'l.
(). In |MMi, \nii hciiic- then .in ahleniian, a (ier~nii in an
llioritv. .Mr. McNa-
niara app
ahlcrnian.
lied In Mill 111 have this wnrk dnn
A. Ill a.-ked me while I was an
<^ And Villi >av that ymi iHoniiscd him that, althmiuh it cniild iint he dmie
durim'- viiur leriii nl' nllice; ynii wnuld endeavor to u-e ymir iiillueiiec with the next
[.vsj
( iiiiiicii 111 iiMv !■ ii iiiiiii'' A. ^ I':*.
Mr. Wil-Hii: ll wu- on iiiuir ilia m' oicii-<ii.ir' lif wa- iv|.ciiIcmJ in In- ic-
,|,i,..Hr.' A. V»'>, Mi: ainl 1 coti-i'liM' tin' work 'Ion. has iiii|iroV(Ml \\\v |.ro|,crly a
Uii'al ileal, loo.
H. ('an vou a|i|ii'cixiiiialcly lix in your own iniml lln' im my value of tliai ini-
imiVfiniMil'.' A. I fonlil not: I ciuild if 1 owmd ilic |oi.
Olijcclcl lo liy Mr. .Iriin-. on llie jr|-,,uii(l llial in llie !'.ri;;liou-c
(■a>i' an\ ini|irovi'inciit in natural niouey valiii' liy ri-e ni
|(ricc of the loi couhl not be taken into <()ii-ii|erat ion in an
action al lau. alllionuli il niinlil \n- al arliilralioii,
Mr. Wil-on: I .liiln'l a^k for llial.
(dun (to Ml .leniisj: I tlimk Mr. Wilson may iisk tlii- (|ue>lion, l.eeau>e
icallv after all if voii elaiin ile|U'eeialioii, surely tlii'y have the riu'hl to put in I'vi-
clenee whet her I here iiu- hecn any ilepriMUat ion , or not I ilon't I hink I hey ean
^ive evhlenee ami -hew liow iiiueli the vuliie has inereased, hut I think I am rinht
in .>iivin;4 thai ina-mueh as your
pleadings allege di'preeiaiion they may on the
i--ne trive e\ nicnec II ha-
iio| de|ire('liltei|; and he
mav turllier -a> , i
f he lik.- I
rio
|i him iheie -o far a- de|ireeiat mii is eon*
i| I ihink ll ha- ilierea-ed III
value
Mr. .leiiii-: .My ol.jeciion fjoe.* a
little I'uitlier thiin tliat. heeaiise it woiihl h
tied down to whether
the <'nl in fnmt of tlie lot was the same us if Jt was level. it
I- i>n
l-foiir- with the Mrij;house e,
Court: I don't thin
k this is cxaetlv on all-four- with the l!ri;liou.-e ea.-e
Mr. .leiin-: 'I'hi- particular lot i- ahr-cdiitely on all-fouis.
Court: I think 'hat Mr. \\il><m may put tlii- qiie-l ion : - Ila- I he lot heen
d(^precialed in value and, if mi. to what extent, hy i he openinj; up of A rmstronj;
-I reel a- il i- now'.'
Mr. Wilson: The witie -s lia> already said that the lot ha- hecn increased in valuP.
and the ipiestiou to wliicli ohjeetion was taken was: "Can you form any idea in
vour own n
lind of the \alu<'ofanv increase
Court: I think vou may ask this, hut he must not say how much, heeaiir..-
vou would he imme(lialely raisin;: sunic
eounter-(daiin.
tiiini; outside the record in llic nature of
Mr. Wilson: I >iihmit I am entitled to show it in mitiLyilion ol daniaires
ihsolutely swei'pinn the other away.
[■>'■']
Coiirl: N'p; Iktuiim. I ^'ill P'll yon why: l.ccaiHc il is ulisoluti'ly iicM'('>,-,ary , ami
i^ tlic princiiilc, for iiiMuiicc, in casfs ol' iailn>ail iirl.ilratioii, ii> you know tlu' (iov-
.•riiiiifiit lias actually to iiilio.lu -r this iM-iiiciplc that with rcsptM-t to any (lc|iic< i;.
lion of the |iro|ifi1y they ha<l a riurhl lo -rl olVlhc iucrcascil valur hy I'casou of thr
works <'()ni|ilaiiieil of; shcwinii lliat iiiasiiiuch a- ihcy lunl ii\l roilurcd that statutory
|,rovisioii that l.ut for thai statutory iirovi>oii on an onlinarv ciuiuiry as to (lalna,^(■^
Ihc <'vhlciicc wouM lir liniil.'il ,,ii llir -hh' of l he dcfcinlaui to shcwin.u' I hat ihr
claini of the plaiutilf was nni well fiuiuilc-i; that the property had not (Icprcciatcd
i.ut had increased in vahie, f it at that stiii^e I hold that your evidence caiiuol -o
iin\' further.
Mr. \Vils<iir If your hud-hip will pard-ui nic, I -uluuii that there is no aiial-
o._ry in the ea-e of a railroad or one of this kind. Here we are in the piu torniaiu-e
of 'certain work whiidi i- lawful in it-elf, and ih.- claim i> thai the ivsult id' 1 hal
lawful W(U-k has resulieij in damage to sonieiuie eUe. It is to he iMirne in mind that
we are a pulilie hody carryin.ir out necessary and u-cful work-. In this ea-e. it ihe
|,ul>ii<' hody hd'l Ihe -ireel ill 1 he ciuiditiim ill whi(di il lia- lici'ii dcsclihed to you
ihe,\ would he ,-uhJer't to iiid ict iiieut . aiid ti. ndieve themselve.- from the pos.-ihilily
of any criminal indietineiit for that, tiipy (dVecl an improveimuil . The (daini tli.n
made i^ that in -o iinpi-.iviiiLr you have dime me injury . and m\ aii-wortoil, or
p;i -I (d' mv aii-wei lo ii that I wa- hound to do ihe wiu'k, that it wa- lawful foi- mc
to i!o !!;•• work, and if your property ha> hecu -lij^dilly in.jured^ the work 1 have
(hiiic will more than couipcu-atc y>ui I'or any injury you li.ave su-iained.
Mr. .lenii-^: That wa> all ihre-hed .lut in the |-;rii:hou-e ca-e
(niirl: Well, ihal i- the way I look at it. Voi; have the 1. i (dii of my ruliuu.
Ila- It depreciated in value'.' \o Has il increased in value'.'— Yes. [ja- it
materially iucrea-ed',' — Yes. .\i that -taire 1 am afraid you <'annot -o any further,
Iliit if thiu'c were a jury. 1 can point out another thin.ii', il may he i;rmind of o'.~(U'-
vaiioi- that the oilier -idc arc very aiiximi- to c(U\Hiie the evidiuiee in tlii- direclion
to the stricte>l leidmical line-. I I hiuk. on con-ideral ion. \ oil will liiid I hat I am
-irictly riuhl. Ikimw if I may say -o 1 u ould he imdined if I here were a jury
to leal verv .Mnuijly winui I came t.i lalk lo the jurv ahoui the fad, that there wa-
a disiiKdinalioii (of .'our-e ihey arc inside iheir |e>;al rii;lii<) iuil a di-^iindinat ion lo
raise anv di-cussion low.ard- the addiliou in value of ihe property hy reason of tie-
work complained of.
Mr. \\'ils(m: Verv well: 1 will not pre- the (|Ue-lion. You umhr-tand (lo
witness) that the improvement is a material one, Mr. Curtis'.' .\. He has .a
douldc-end(d lot. now, and he had only a hn with one eml l..eforc. Thai i- why 1
-ay il has improved.
Court: You think it i- niali'iially improved \. I ih'. most as-uredlv.
M
Mr. Ci
M
M
\vall !■'
(•
.•(iS.IMI I
Mill III
.". feet
for e«
it- <
(
roini.i
iil'iol:
11111:^1
tlli<. I
l.cl'dn
ncr i:
(
street
anil i
(
liair
Cfdiil
[I>(t
Mr. Wil-ii:i: Vini huilt a liloiic wall animid your owu \<vif\
lonortv. iliilu't vou,
Mr. ('iirti.<'.'
A. Yes. sir.
(}. .\rv you -iati--
licil willioul ail acli
linn a''aiii~l llic ril v'
A. I
(^ (^nit.' cDitcnr:
A. Vi-. sir.
Mr. Kckslciii. 'Dial ijiu- nm altrr the case mic liit.
Mr. Wilson: Will you tfll ii- jilcasc, wlial
ill cost ifldOnit ,1 chain.
tlial wall cost'.' A. The stiui
Coiirl: II
irl: llow iiiucli wou
Id liiat be [H'r cuiiii- yanl, Mr. .Mayor' .\ \\'<
.fS.lKi or .f.i.dO. i think, .tS.IMi
Ml. W
It ua- *ltl(i.()(t a chain what liciuh
f.' A. 1 never lijiureil it
• 111 Ihal wav.
."i feet lii^
ive a t'oiilraci to ma
ke the wall at ^slOlt.OO a chain; the wall was
h. I think it i~ TJ inehes ihick. Kiu'hl online ilollar> i.- the usual |uice
t'o|- leiiieiil wall-.
(), 1),, vou know anvlliin^ ahoul the position in t'nuit »( Columlua >treel ol
lis I an
I .S'.' l)o \(iu reineniher the old sidi
walk tliiMi
(^ h\len
linix iVoin Klackwoiid to Merri v.ile'.' A. V
^^
|)o vou know Mr. Kdiiioinls' <;ali' ti
lere
A.
(J. Was there any cuttinj:' down there
A. W(dl, 1 c(udd not give any in
uination on that. Mr. Wilson. All i reuuuiih(;r i,^ thi-. that the crihhin-; m trout
hail my head. 1 have [.assed there a hundred times; it
it' lots 7 and .s; u,is hmlier t
must have heen
feel liisih iiefore \vi ti)H(
hed the street at all. .\iid i am sure of
tlii<, thai il,.' s)U'li-e:i.liM-1y corner of that lol the wall is not a- lii;ih as it was
I.eforc. That i- the cu'iiei' of Merrivale and Coluiiihia street. I knowthat the cor-
ner i- not a- hiiili a- it wa>.
<^ w
lai iiii|Uoveiiients have been c
ii'cclcd on (!i>liimhia street".' A. Th
-I I'cel was t;rai
iiid It wa- .a
led mad
e all ev(Mi grai
le from Merrivale .street to Blackwood street,
l-o wideiieil in fr(ml ■■■( lot- 7 ;ind S.
(). .\nd widened
:i :^iio(t in
lUiiuvf.ct" :>li odd feel'.' .\. ^'es; a^ much a-
half a (diaiii. and prohahly more
(} \'n\\ rell
iher, vou t(dl U-. that old cedar crildunt;''
A. Yes. -ii
fl What wa- its (diaract
er
.\. W(dl, it was
liar l'a<:ed with hoards
icihir loj;s
t'olirl: I'acec
1 with lonnued and ifiooved hoards, [lainled' A. ^
[•11]
Mr. Wilson: In wliat l<iii.l of pivscrviilion' A. Well, 1 ivnicnilicr it iis
liiiviiiu Ix'f'ii >ii,Lrt;"ii-iiiit a little. I niiiv tie wr.iHu'. l"it, as to iliul, I ciiiiiiol \"'
('ross-cxmiiincil \>y Mr. .Iciins.
Mr. J. ■mis: As far a^ tliiit susfiinu' was coiiciTiu'd, was it any nioro than the
lioanls oulsiilc. or did yon fxaniint' the crililiiii,^.' A. I say, 1 am not very
|io>il ivr alioul I hat.
Cniii-l- 1 niiuhl lake Ihi' liberty of rcniindinL; hi^ worship that the safi.uini:
wa- on Merrivale strei'l. not on Colnnihia street.
Ml'. .Ienn~: (To witness) \n\\ -ay yon think that the lot on .\rni-trone -treet
has heen imliroveil? A 1 am sure it has.
(I Is it not neee—ary now to have steps ii]! on that lof.' \. Ves. sir.
(;, 1),„.~ not that make the lot nioiv (lillieiill of access'.' .\. No. -ir.
(;, li i- 1,.,., ilithciilt to walk lip step.- than to walk in from the level'.' .\.
I.e^s dilliculty to ;:el into thai lot than it wa ■ hefore : I will exiilain why : heeau.-e
th<' .i;ra(l(> of the lot oriL;imilly ran into the street and the ara.le wa.- -I rai,i:htened in
a sort of fashion oriLHiially into the street, aixl when they went to put a sich-walk
there the street was -iven an even erade, and was strai,L'liliMied out, and that made
the eiilraiic<' to the propei'ty pr(dialily. iii-ide. a little more of a -lope.
(I In what ci.ndition wa- that street hefore
A. Well, there wa- a water
m it. It i- >prine;y, tlie nature
if the soil i- -p
Ther
e I- a spriim
ninninj: oui I'rom my |iropprty now t
hat u-ed to keep the street in an iiiipa--ai
ition. and there wei-e -lumps there one or two larire slump
t). What do yon mean hy ■'an impassahle comlilioi
n '"' .\. r^ed to keep
the -Ifeet wet. all
I there wa- no detined irntter. heeaiise the -tn^et wa- not imnh
(1 |),, Villi mean lo ,~ay that the iriii'er wa- so iiiipas-ahh' it was not used:
A. It wa- iiseil on the olhei- side. nior(
(^ Wa-n'l il <'onl
mnoiislv iis(
d' A. Il
For in-taiiee, did not all llie i'mieral- from the IJoinan ('atholi<> (diureh
liehiw no ihronnh liiat -treet as il wa-
arniiiid there.
A. Ve-, p
dv tliev eonld net
I Were not horses ami hiiiitiie- kept e.niliimally on the .-treet'.' A. t'er-
tainlv.
(}. Do yon know whether il was used a, a foolpat
h ai all" .\. I think it
wan.
'}
hcail
I iliiii
'J
Woll,
jiralia
H I'll .'
I
(
(
Sfllt I
{
(
i 1 arl
l.rfi.l
[u->]
tllMl
il S.) tliat it uii- liiinlly imim^saMo" A lliinlly iiiipiissaM(>" I kii
Ml-. Eiliinmils l\a<l ii l)i>\ out tlicfc to keep lii- iiiiinu'c in, >ni tlif stvci't.
i}. YnU told lis t
1? A. Y.•^, sir.
liat llic crililiiii^ uii ('i.liiiiiliia ~lrrci wa- lii^'hcr tliiiii yiiiii
(^ TliMl fril'liiiiu'. 1 hclifvi', ran up I" llif li'Vi-1 of tiic firoun
,1 iusidf,' A,
I iliiiik it iliil.
(^ And now iiave you noticed as to wlici licr I lie j;round ir
not 'cvclicd oil".
A, It is.
il AlionI what licif^^lil would the };round lie'.' pultiiiKliir
wall aside
W
ell, my jud^nien
t would lie that it' llie (rfound was level a- it was hefore, tlie wall
irobahiv wouin
he ahon; the same height as it was het'ori
(^ l>o von know whelher any otl'ers were made you were m
in the rouneil that
A. I wa> ''.M,
(^. Do von remeinher uoniij; will
A, 1 do.
Ill Mr, Kearv and Mr, Walker to Mr. McXain-
(^ |)id yon
him then to eo |o arhiiralioii',' \ No, >ir
(^ What oiler did yon make? A. 1 didn't make him any oH'i
(}. What (lid you gf
A, We a>ked Mr, MiN'amara if he would eon-
nt to arhilration, it' we deeidecl to t;i
(.}. Was he willinu to eoiisenf,' A, He wa.s.
(J. Do von know wiiPtlier he has nia<le the city any otl'ers sini'e in rel'ereiu
ai'hitration or anv o
tlier settlement A. I think he ha
Court :
What wa- that otl'er'.' A. 1 don't reii
think I have a
reeidleelion of a certain communication.
Ml
1 do not think .~o, with in\' admission.
Mr Wilson: Hv recalling Mr, Hoy we can prove that 1 would have done
hcl'ore if it had heen asked m<'.
Wm, N'oot, {{ecalled hv Mr. Wilsmi.
Mr, Wilson This is the map, my
)rd, which the statute nia
kes evidonce. 1
IlllW I
cess li
tliiil t
"A" i
\
.\
'I
iillicii
in (),■
(
\
I'lU'c i
(
\
)
A. I
(
l.it 7,
an in
llarv
(
(
nllicc
Cilllil
were
(
I inie;
cnts'.'
a ijrc
i ix'l
tiic (i
[(i;!J
iiiiw [lilt il ill ;i> ruriiml iiroi)!', iiiid 1 am {,'i'inK '" 'I'^k yuii - my I'ricinl- I'un liii\f ac-
cess lo it at any iiKimcnt to allow nic to taki; il off tili' at any time. If il witc ikiI
tlial tliP statute made il t'"iiiial [inxil', I slioilM not I'P nlilijred to ]iiit il in Kxliildts
"A" and "iV ai'e exact enlari;eil eo|iies ot'llii-.
M
r. .leiin-.
il tlial till' (locumeiil- ali'ead\- in are exael coiiii
Mr. Wilson: Tln're i> anoliier doeuiiieiil llial I wani to pul in.
'I'm willies-: What is that'.' .\. Thai i- llie li^t ol' stones markecl on ll
)llicial map; t
le recoril o
r the hase line marked and of the dates thi>\ commenced
in Ocl. '7'-' and com|ileled iheir work on the -'11 Mar(di.
Court. I- it iieees.-,ary lo imirk this a> an exliilni?
Mr. .leiiiis: I do not think <o, with my admis-iim. I would liave doiu' it li
lore if it hail heen a-ked me.
Court: The otiicial maji ami the lpa-<- line nolc.-'.'
Witness: ^"e,-: orcominimU' called fudd notes.
Mr. WiUim (to win
■>.): II:
ive Voll cliei'kcil I he line
if Ihe street. Mr. XooC.
A. I ha\(', sir. from lUai'kwood lo Merrivale; we have Keen u-ini; those stones as
the Lrrade.
Court: What do you liiid with respect to the wall, imw'.' A. I Hiid that
lot 7. at Ihe corner of Merrivale and C<diimhia streets, the IJ_^ie of wall is ahout half
an iiudi on the -ireel at tin' point there, and. Ijetween lots ,S and '■', adjoining; Mr.
iiarvev's lot, the wall i- out in the -ti'ecl C; imdies.
Cross-examined hy Mr. Kidvslidn.
(^. iia\e Voll made any -earidi for the |n-otiles'' \ 1 liav(\ sir.
C^ ilaxe you found them'' A. Then> are no protiles e.xistini; to-day in the
otlice. sir I have never seen one, an<l I think |iiohaldy the foreman has heen just
Calliiifi pi-oliles what you woiihl call proliles to-day. the cuts and fill note^ that
were ijiven him hy the idty eiiijiiieer.
{). I saw ill Ihe Briiihoiise ca-e thi-re was a Imiu jiaper rollecl round sexcral
times, and il shewed exactly the wiiiditij,' of tiie streets and the dilfeient j^radesand
cuts'.' .\. 'I'e.-: 1 nnderslaud exactly what a profile is.
i}. If those were all in the city's ]iossession. it would -ave Court and Coiinsid
a ijreat deal of time and a lot of troiihh^ if tlii^y were produced ln're to-(hiy'' A.
i hidieve, sir, thev were projiared for contracts, l.uit wliere the idty men carried out
the day wm'k I don'l think they prepared ]iro!iles. 1 ihiiik they -imply went hy
llic llil
tioiifil
M
till- til
('(
M
Hoy f
('
for?
M
tllC M
incuts
si ret t.
("
you \
caso.
down.
N
owiiifi
atiiiiii
<hall
I a I' \v
[.il]
(lie (liirrthiii iit llic iMii;! lii'iT ; tlicir :irf im |
lo-ililV.
re iiii iii'iilil"'^ in I Im' |iii->i'<,-.
imi 1)1' tlic ( 'Diiucil
(^ x.
,r \il\)V- <\vvrf' A.
)i liHiki'il,
(^. I iIkmihIiI y(i\i sai'l iIh'IT uitc imur wli.iii'Vfr
A < M' the >tn'i'l iiicii-
I inlM'il
II
(iV. Keen
I.mI 1,v Mr. Wil.ni,
Ml'. Wilsmi: We liaVf it in cvi.lcncu, my \ni<\, ili;ii Mr. Hoy was iiM.rinai
1 at
t he tiini' these nniiinvenieii
ts were etleeteil.
( 'nlll't : Wefe \iiu, 1 lien'.
.\. Ye-, -
ii- l.s'.iii-.'
Mr. .leiin- : I wiMiM like t(i a>k
rniMJ I'rieiiil wlial lie i- reealiiiii; Mr
lin\- for'
Ciiint: 'I'es; M i. .leiin.- Iia- a rii;lil tn know wlial ymi |ir(.|ii)se
In recall liiiii
t'(.r'.'
Mr. Wil-Mli: I'aiilv on ihi' |iuiiit you ili'sireil in lie eleareii up witli i'es|>eel li
1 1 want to |iut anodier iiue-tioii oi' two as to lliese imiH'ove-
the arliiti'atloii, an
men
strei t.
ts wliieli have heeii ell'eeteil: that i-. li
ilhon A niistroiiL: street ami Coliimhia
("oiirt: Well, I ilo not know ih.at. It i- ^^o>ii
haek on the ease anain.
tell
,hat I think. ^■on mi^iht leav(
Mr. Ho\ till Miu come to the eml (it'yoiir
1 want lo rce.all him mv.-ell' and a-k him some iiue-tioiis.
i,ei Mr. FIov St:
Mr, Wilson: One of my wilnesse- ui
liroke hi- iie<'k on Aniistroiii; street
owin
fi lo the enniiilioii it was in
I want to eall him; not that he has an action
-! the cit\, ami he i-^ reall\' a very ri'luetaiit witiie;
Court : ( 'an voii com
iiel Mr. Wood-, a- he i- a i-eluelaiil witness, to t;ive evi-
Mi
•^hall not.
Wil-oii, I l.elieve. mv lord, tli.il I have ,i neht to do -o. l.ut, however,
Court: I reallv do not like to call anvoiie wlm is not suhieenaed in the reiru-
M
ill ^i)ii
Ci
iiiiiny
M
fiirtlii'
M
Well.
(
tlic 1
frimt
Hotel
(
in.n'ii
{
thiiil'
ruck ;
(
IIk' V
I
lol W
A.
[(■„-,]
Ml-. Wil.-un: I5ut il -I'l'iii^ to me tlml a };.'iilli ,...iii wlio Ims run ii sori.iu- risk
in ^roiiii; uviT lluil llHiMiut,'lifarc -lioulil l.c |iiTiiiittr,l |.> jj;iv.' hi•^ .■vidriirc
C.ml: Mr W'o.id-. Iia- |.iul.aM.v .'XiTci-cd it ( 'liiist ian lorlicaiaucc lliaii
luaii.v Wdulil ill nut siiiiij.' tlic city.
Mr. Wilson: And I want tiiiii to -arrv that ('liri>lian forla^arancc a ^tci-
I'lirtiii'r and a'wt' osidcnrc upon il.
Mr. K<k>ti'in. Mr. Wood- ,-lnuild not tr.ivcl alon;; lln' hack .itrc.'ls.
II Y. Smi-ih. Called and swoin.
KxamiiH'd tiy M'' \V'ilsiiii.
(•(iiirl: What i- yoiir ('liri>tian name .\. Henry Sm'.:!!.
Mr. W'il.-on: ^'oii air a >loiicnia>oii, 1 think'.' A. Yc>, sir.
il And you iiuill a stone wall I'or .Mr. MeN'aniara in front .>f lot S'.' A.
\V(dl. in front cif the h.mse wIkm-c he resides. I <hin't know tiie nuiniier.
(l Who u-ive yon th<' lines for l.iiildinfi that wall'.' A. W(d!, I really took
the lines myself from Mr. McNamara. There wa.- a little taek on I he feme in
front of Merrivale street, and 1 took the line from there that taek and the (illeenV
Hotel.
il Von look the line yonrself' A. 1 took the line mys(df. Mr. McNa-
mara shewed me where the taek was.
Court: How iinndi i- that work vWorth ja'r eiil.ie yard'.' A. W(dl, 1 should
think, that wall is split roek. and would he ^vorth ahoiit .fs.tto a yard, that split
rock; the other walls are dillerent.
(I How many yar(U in that j(di altoircther'.' A, 1 never measured it hy
the yard. I think it was aliiuit 'I'l yards,
(I Ami on the side'.' A. It was only just in front of Mr. McNamara's own
lot where he reside^: that is, 1 ehain.
(J, 'rw(-nty-t\
)ie yards in front of lot 7, 1 snpjiosc the same numlper'
A. I don't know, your lordship. 1 dhln't do it l.y the yar<l; 1 .lid the exeav.itinf;;
di<l it hy the lump sum, sir.
Mr, Wilson: That is mv etisp, my l(U-d; suhjoet, if ytuir lordshi]. wishes, to re-
['•••>]
cul! Mr. Hoy.
Coart: Vcs, ami ytui sec, Mr. Wilson, tliut is llic niosl, foiivciiieiit way to ilis-
l"iso of it, hccatisc 1 recall liiiii jicf cui laiii.
Mr .Iciiiis: I have two witnesses, or one al ail events wlioni I want tw call in
rebuttal. \Vc are all familiar with the circumstances, and know that the cut was
nmde some time ago on Columliia street, which would (extend from (:ai)t. I'itten-
dri<;h's (dd house -I don'l know who is livint,' in it now — down nearly to the
(Queen's. But Mr. Noot. in <;iviiiu' hi- evidence yesterday, was of o]dnion that no
cut ever was made.
Court: I think I v\oulii like to hear Mr. Ih>y lir-t.
11. llov ItccMllcd hy Court.
q. With resi)ect to the first matter, do you roc(dlect that Mr. McXumara
nnule any offers or entered into an.. ne<,n.tiatioiis with you as alderman of the Coun-
cil with respect lo alle^'ed damai;es to Ihi- Land. .\ , No.
(}. Dill the Council make any jiroposal lo him alioul settling hy arhiti'a.tion'.'
A. Not to my knowled<;e.
Court: The ...her mallei' you wanted !.i a-k. .Mr. Wilson'.' .lu-l reininl mc.
and 1 will lie triad lo ask il.
Mr. Wilson: Th.'! i- as lo wliellier they did. not want conse(Hienlial damc.ite-?
Court: l'"or lots 7 and .S'.'
Mr, Wilson: Ves.
Court: Their own iileadings slicw Ihat, a, id tli"n they ahandoned it.
Mr. Wilson: .\houl ihe improvim'nts there, Mr. Hoy".' Do you consider those
lots are f^really improved !
Objected lo by Ml'. I''ckslcin, Ihat (jucstion should be a>ked, if at
all. liy the Court.
Court (lo witnc- ): Were Ihey malerially iminovcd or de|ircciated by reason
of the W(U-k dono'.' A. 1 should say materi.'illy im|irovc<l, es|ieeially on Merrivale
street and A rmsl rout; street. I '' you will alh w me to correct about arbitration. I
niigilt stale that lasl year there was some coi les|ion<len(.'i' with Ml' McXamara's
y
^'•"l
hav(
Men
'I inkiiiii il to arliitrali', ami iIhmt was some coi-rrsjioiKlfiici. with my-cU' ami
others; we
A-eiit down liiere iind iiiel Mr. Kekst^Mii aii
Mr^
eiiiis 111
Mr. Kck.ilein's
olhc(% ami we wan
X'<1 to know what could he doiie; they told us that the Couusid
had no |)0Wf'r to arl)itrate, and the basis of arhitvatioii would i>e thai that Counsel
would iiive a sioiie wal
that is all I ki
<i.
-I of a stone wal
s| id' a sloiie Will
Mr. .hniiis: That was after the action ha.l coininencei
inld not sav lo that.
r.' A.
mav he
M
r. .leiin^:
lere is a c|uestloii arisiiiij; ou
t of thai tlial 1 would like vour
diip to put: Supposing; tiie plain' ill' had heen a jioor man and uiiaMe to put up
1 opiiosite these lot.s, would the witness then con.sider thfin im-
loru
he retaininL' wa
jiroved liy the ciitliiij^down'.''
Mr. \\'iU(Ui: That is horrible; because he wa- a tre-pa-ser on the street,
anvwa\', and lie had lo lake il do>vii,
Coiirl (lo wilne--): Siipposin;^ the stone wall had nol been put up, would tin
proiierlv have beiMi i iiipro\-e(| or deteriorated'.' .\. ^ es, my lord.
(^ Impioved no! wilh-landini: the want of ih- -lour wall'.' .\. It would
have been improNcd not wit li-landinj;: the want of ihe -lonr wall.
.Mr. Jeniis ; 1 wi-li lo rail Mr. Mor
eshv as to I lie j;i'
ade of Colunibia street in
the old days.
.Mr. WiNon: When':
Mr. .lenn.-: .\ijoul Hi vears af:<
M'-. Wilson: 'idial 1 object to, my
lord. 1 would like to lia\i' s(jme of Mr.
M
oi'i-siiv s i-|.|n
iiii-ceiice-.. lull unfoi luualelv we are bound b\' our ]deailinj,fs
Court ; 'PI
le ruie a- I limit
rstaml it with respect to ndmtlal e\ idem-e whitdi
lake^ Ihe olher partv rca^onaldv by su: prise may be rebutted.
Mr. W'il-oii: Yes. mv lord; but can ihis lia\-eany po-sihle cll'cci '■' I ausc on
urv IS I he rcvull ol worl
the pleiidilifis ilir alhM;alioii in ,ill ihri'c case.~ i>thal the inj
done ill l.^'.l^. and what was done bd'io-c then is ininnderial, ami • \i'ii if it were
eviilence could n
(daiin I
I not he irivcn id' il liecaii.-c there is no a
illeLr.ation in I he slalemenl of
hat it wa.s the result of work done before IS'.M) or IS'.M
Court: No; but I will Icll you wdiat it mi'ilil be. There is an allejrMlion (Mi the
pleadings tliiit tliese fences or whatever they were, were constructed according' to cer-
tain prudes u.s eslablisjicd by the then ;icl inu' corpiu-at imi ofthcCilyof New West-
.
[dS]
iniMst.T, aiul it may he -I d<m'\ say it is -li. at if these .grades weiv -iveu at a
former |)erio(!, it mav he a matter to shew thai on a former oceasioii a U'jially cnii-
stitutea (ilheer of the Coiuieil iixe.l the ^ra-h's ainl that those fences were hnih
in aeeordanee with tiie ,>^ra(U-s. Ueeau.-e 1 take it to he the hiw that a u.riH,rati.n>
couhl not f,n. and urhitrarily alter a Krade year after year. Tliey mnst ho honn-l hy
something, and it may l>o in tlie direction of estoppoi, hut conlining you strietiy 'o
tlu> fact -Was there a previous alteration? I am with you, and have given you
the rea>on whv.
W. Miu:i;si!V. Callefl and sworn.
Examiueil hy Mr. .hnns.
Mr. \Vil:-on: I vvant to make a further olijeclion if your lor.lshij) pleases, that
oven if that he I he <>videnee, then it is part of tiie plaiutilFs case, and, ucccu'ding to t!ie
agreonieiit or understanding with the plaiiitill', the case was closed, the only witness
to he called hoitig -Mr. Uohson. for the purpose of producitig docu.notits which he
had not had time 'o search for. This is not evidence rehutting our statement, hut
evidence which woitld he in .uppori of his own statement of claim: and he cannot
uow, I suhmit, hring iti evidence to bcdster up his case which he has failed to make
in the tir-t iiir-latice.
Court. The further groiiud that 1 allow it upon is this: Surjirise is always a
ground to hring in evidence in rehuttal. For my own [.art, 1 am taken immensely
l)v surprise, hocause I happen to know it is not in accordance with the fact; and it
has taken n'le verv nnudi liy suri)ris( — the testiin-Miy that has taken place. Mr.
.hums no douht, has a right to he surprised. No douht these gentlemen gave evi-
(lenco'arror.iiug to the best of their ability and ol)servation, hut I do not apiu-eheiid
any difliculty "would arise in calling 100 witnesses to prove that there was an
alteration.
Court (to witness): Mr. Miu'cshy, you kimw Columhia street in front of lots 7
aud «, what we UMMJ to <'allthe "old >hirrison lof.'" A. .ludge I?rew's pro-
perty?
(.1 Yes; and the Miidiaud lot lu'xt to it. A. Yes.
(J. Was the grade of the sidewalk 111 front, or of the street, was that altered
hefore ISOlt? A. You mean the preseni grade? -or <lo you mean, is there any
dirt heen taken away?
il Yes; any change. A There has heen dirt taken away, i think. 1
never measured it, hut I nMuemher when I used to walk out to the camp every day
we Wll
WO rill
(
lueasi
(
No <U
{
(
|>rop(
It III
tiilki
not J
rcinc
lllCllI
tlie(
of St-
sine
Mor
ram
tl>e
w.. u-,.lk,.(l nn.rly m, a l.'v-l with .I.hI-.. Brow's ,,ro,...rty. TUvw was n.aliy n-. .•ut
wortli s|.cakiii<; of, as far as 1 rciiii'inhfr.
q. As far as Mr. \Vcl,st,,r's-.' A. There was a slight sloiu-, hut llicre \va> a
good (hal I'Ut there.
(^ Have vol! anv .jouhl in your mi:i<l tliat there was euttiiig .h.wi. hefnre
helore IS'.IO-.' ' A. Ian. almost certain, but I eoiihl not say how muoh;l lu'v.'r
measured.
(,}. Bill there was a ehange in the grade of the soil in fnmt of that lof.' A,
No doulit ahout that.
(I And in the direction of heiiig lowered? A. i.owcred.
Cross-examined hy .Mr. Wilson.
(}. II, .w long ago is it that the ground was on a level witli Judge j?rew's
property" A. \V(dl; I am talking of early days; perhai)s 'C:]. 'til, and T.-'.
Q. So what yi>u have referred to was in lMi4 and IMi.")'.' A. In 'Hi or 'iVr.
it might have heon later, hut in the (id's.
(\mrt: No chan-e< sin.'c then-,' A. Oli, there ha~ hen changes, hut 1 am
talking ahou
t where we used to walk.
Q. Hut in
front of Mr. Webster'
not paid particuhir atti
ution.
A. I believe there has been, but T have
Some was cut down, ami some oftliat ftdl in again. I
rcmemlii'i'
nient tiiere, an
he Catludic Church was cut down; there was only a very little emhan
1 now there i- (fuite an ''ii
the Cat
of stciis there.
k-
iliankmen', and when I used lir.st to go in
lot
liuiic Chureh there w.Mvonly a very f.w stei», but now there i^ an immense
C. WoDiis. t'alled and sworn.
.xaminei
! bv Mr. .Iran
Court: Will von kirn
-nice
I s;h»v
Iv t(dl us whether any change has been made in the grade
11 be almost exactiv the sann' as Mr.
A. Yes; luv evidence
Moresby's, excei.t that I ccuihl bring it down to a more recent peri.x
Q. And what is the most recen
t period when the grade was lowereir.' A. I
cannot state
the date the grade was lowen
d, but I distinctly reinomber in 1S72 (iiat
the grade there was as
Mr. Moresby i
Icscrihed it — almost on a
'vel with the
liiiildi
Romii
linuso
coiipl
tlie (■
colk'c
(
small
Vl'licll
tlic |>
ill 111'
(
was (
ilcnci
have
iiif,' '
CDl'l"
Yes;
iiii;
Mr
nut
Yes,
[70]
liuililiii'^-; ill tlii> |iartirular
RDiiiaii (lallHilic (■liurcli -a 1
lilcick tlic iiiilv l)iiililiii,u^
that tlicn cxistoil were the
)usc llial is now known jis tlic K<lni(inils housd -two
iDiisos, ini
1 the I
)r'i|i('r
tv known as Jii(li;c Brew's, ami they wore all, I sliouM say
coiinlf of steps from llic sidewalk would |>ut you on a
level witli the l)uildiMi,'s, will
tl
le exception o
the Itoinan Calholie (
liuri h whi(di was rather hi^'her. My re-
C'olleetio
n was that the gra.ling was done -radually, lowered from time to turn
Q I >ujipose the Corporatiim
funds
were small in
those (lav-
A We IV
sina
11; 1
won t sav 11 li
tile done everv vear
hut done from time to time until it
reaclu'd its pvcsiMi
t m'adc; 1)111 I am posi
sitive tliere has lieen very li
ttle alteration m
the prese
lit iirade -I don't know wlietlicr 1 am i,'oin-^
too far -verv little alteration
in the ]iresent i:rade sinro 18711.
(l Till ISIKC' A.
I?l'l ween
1S7-J and 1S7'.I 1 think iim-t of that gradiiii;
was (lone
Mr. Wil-.m: With all iv-pcM. my lord, 1 fail to s,.,. the importance
(Icnce, liccau>('
the whole of the Liradini^ was done helween
lS7-i am
of this cvi-
I. 1 would
have admitted thai, hecaus
c we are (
To witness;
hariicd with damau'es lii
IS'.MI-.'
In iS'.Ki, ilhM'e was very liltle clian.u'e imuu
A. .Arc von talk-
if Columlia street'.
(i. Yes.
A. Practically no chanu'c in l.SOO.
Q. By Ih
wav, I hi
si reel ha- iiiM
n jfrently improved there, has it not'.' Th
corpo
ration did li'ood work'.' A. '\'es, 1 consider so
{}. And you think the jiroperty has l)een ioiprove
Yes; 1 should judu'c the property has heen improved.
d too, don't vou':
(..>.
iml on
Aniistroiii: street the saim
(J, Very materially imp
'' .\. Yes; 1 must admit it iia:-.
he opinion — I am talk-
A. Yes, I am of the op
iiii; now lather o
Mr MeNamara's
f the lots in question -I am not inute
lot as it stands, hut on the upper si
familiar with the position of
le of Ariiistroiii,' street, I am
no
t familiar with the LXi'adc, i imaii.
l^
You admit that alons,' here there is a ve
rv m iterial im|)rovement':
Y'es at the hack of lots 7 and S.
(}. And also h
A. Yes, also th
\
D. RonsoN. Recalled.
[Tl]
ExiiiniiK il li>
Mr. Ivkr-tcin
(^ Di
villi priniucc ;i II
Itci- wntl'Mi I'V
Mr, McNiiiiiMrn or his asoiit iiskiiii; for
(•onipciisalion wiili rclVrciicc lo Hir riilliuu' (l"wii o
WHS iiskcil to produce Mil iiirrffiiifiil .
f Coliimliia -trccf:
A. No; I
(l Wrll, I have rovlunatfly h tr.iii^^criiit oT tlir cvi'
■lice ilivcil til'' oilier day,
and lliat i- "lie ol tin' oia
Iters a
■ kv'\ r.ir, "l>o ynii |iroiliiei' any It
ller^ from Mi
MeXaliiara or !ii> a-eiil relative to coiiipeii-at inn for excavation :
Cniirl (I" witne--), II
iVe vou 'J,i>
t tiiiwe ill vi>nr cii-toily'
A. Yonr lonl-
11 II, when I It
I'l ilie witness stniHl
airre'Mneiil, I wa- i|
McN'ainara nn
wantei
ttie other day it wa< to jirodnce, 1 believed, an
ic-lionedas to the aufeennMit hetween th<' corporation and Mr,
llial tlie-e otlier records would lie
il,.,' -cal, and I wa~ not aware
1 Id lie liaiidrd lip at the -anir In
Mi
■-teiii :
If viiiir l.ird-lup Jilcasc
stalenieiit, ijuite correctly, lliat m view
notice was niven.
Mr llnli^oii came here and made a
r the -iimi time that had elapsed since
he wa- iinahle to produce the documents a-ked for.
Court: But Mr K
that wa- want
il. ( )f c iir-e if
diMiii verv I'airly explain- that he inisiinderstood what it was
Mr. KiiliMin ha.- tlc-e dneiiment- 1 have not the
., ,l,„il,t that he will he only too jrlad to p oduee tlnMii. and fur the purpose
haviuL' them produced we will lor e to let thiun stand over.
Mr. Wilson: I- ll
ere sui
h a document, or are my leavin
document w
Will
hi(di thev hope they will not liiid:
i„.lii ve, v.iur lor.Uhip. there wa-, hut the agreenuuit to which .Mr
d friend- hnntint; for
ICckslein refers, I have m
kliowleilnf of that.
{'(Mirt: The wit lie-- -ay- he helievi
there i- .-oine letter'
Witne--^: A-kiiiu for compensation.
Mr, W'il-ou: .\ll letter- frnm the city solicitors, mo
re es|ieciallv the mie ad\is-
lU'J the I ouii
Cmiucil thai ihey have no i
lefi-nce to the action, hot could as-es- tin
dama.e-es in (."ourt a^ cliea)
l„dialf of the plaintilV in the nialter
l„.ai,lv a- hy arhitration. and al-o all letters written hy or on
^he oiilv thiiiiis here are letUr- from the
itv solicitors Have you jj;o
t those, Mr, Uohson-,' A, I have the letter rt^ferreil
to in that.
^^. Have you ,!j;ot t
he Icllers written hy or on hehalfofthe plaint ill - any
letters written on his ludiall":
Mr, .huH
is: .11
Inst the letter- we are a-kiii.e- for, now. A. 1 have one letter
from t
he solicitors for the plaiiitilf, hut I have not the letter referred to.
IS.
[■
Mr. Wil-oii
I- til. .If siwli II l.lliT llial yuu knew (.1? A. I lliink iIutc
IS.
Court: W'l' will lake Mi'. I!iil..-c.ir^ ^tiitciiiciil t..-iii(irr(,w.
Mr. Wil-ini: ISul llii^ i~ n'll n |iroiirr siiliini'iiii wliu
li ciiulil not imiii'iilc lo tlic
niion whom it i- -itvcmI ulial i> w.iiilcl.
('o\iit: On Tlmr.sdiiv it I'lUiit
It wiial it wa.-i I
licv wimtc.l, ami 1 tliiiik Mr.
i!oli-iuii niisni
I
(Iffst
KlffSli'Ol
t' lice. WitiK
IMS no 0X1-
•illy if tiicrr wa-
■ito|l|HMi.
hliiMlioiifrlit thry Wire r.l'crrint: to an a^rfcnicnt wiiiel. rrally
Ifvour lonl^liip i.I.'i.m', Mr. Krk-trin a-kcd m.^ rcj-cat-
iicli an ani'ccnirnt, an
1 it wa- llicri' tliat tin- .■vnlcnco wa
Mr. Erk-'li'in: I have tlir v, iliic^V ^tatcnicnl iicrc
to (lif matter.)
(KcaiU iraiiscrii't rclVrrim.
Witness: i!ut linil is not where the examination ^toll||.
Mr. F.<'k<l'in; 1
k;H)u . ami I uent on emimeratini: other 'lorn men
t-. Witi
Mr. Wilson:
The mi-ehiet' is this: the llnles ,,f Conrt in-ovi
h' for the lirodue-
t ion o
til,, whole 111' the (locnmenlai-y evi
lenee loiei hel'nre trial; and they ha\
ai
led to a-k to have i !,• m produced hefore, and only Mil. poMia
lUles l,(.|ore Iriiil to |,iodnee llK'ni mid he exumine.l.
Mr. Hohsoli a few
('oiirl: l-ei 11- nil
lerstaiid exactly. Will yoii kiiidlv -|iecify what .lociinu-nlf
von want'
Mr .leini-: 'riiey are .ni tin' siih|.o.na; we want any
fereiici. to the cii.lin^ down <
the Cotincll al anv lime in n
time
hydaws or resfihitions id'
,f Ccdnmhia -trc.et at any
that is, the ch.iiiLie in tli(. line <d' ihe -street.
Mr. Wil-on: r.ef,.re my
hariied friend irces any fililher; that is too vague
,|,„.„.tlier anv hydaw- m- re.-oluti.ms of the Council at any lime
iiiv lea
Mr. Ivd<-tciii
nied friem
dial snl.i
Will
snl.p.cna, mv I'n'.l, is as ami'le I .'Xlu'ct as any served hy
A- I understand it, 1 wmild renuire t
hooks of Mie corporation and the minutt
o iro over the
s and the hvdaw- and the reports ami the
corresp<mili
ivdaws and .-o mi, i
nee t'or a i^rea
t inanv vears. and to take copies ot
those I'l.solutimis a
ml
it would re.iuire seveni
1 (lavs. If I knew exactly
what was
wan
for.
le.l, I would I
1 iirodrce it, hut I have pi'oduecl whatever was .siu'idlieally asked
Court: 1 think vou might give
Mr. lioh.-oii simie in
dicalioii of what i- winted
[T:-.]
I oiiimot (lisiTiiise fV' ni m;
■self tlic fact tliiit to follow ovory
ttiintr lliat is askoil for
lici-f would involve an exhaustive scan'
h in the archi es of the corporati
Mr, .k
the matter
that lii'l not exteii
Mr. Rol)soii is tl:e only [>erson in
whose knowledge
lies. The only thinj; I know is
hvla- 4, which was passed, May '<il,hut
il hevond the Winieniute factory.
C.urt: 1 tliink the hest thinj,' is not t.. i)er.sist on the
4rict le<ial rit,'hts on
eillier side
tion, an<
I am -'ure that
Mr. Kol.son would bo only too glad to give the iiifon
1 it ai)i>('arr to me a way to get o
ut of the diflieuUy vvould he for Mr. Kck-
steiii or Mr. Jeniis to
ttteiid and see Mr. Rohson in the nioniing.
Mr..lenns: 1 should li<
am (
Court.
utitled to have every .jocui
,nlv too happy ,but as far as my legal rights are .•oncerned,!
id record of the Council produced here iii
nent a
Court (to witne:
You are (luite willing as
to that? A. 1 would lu' (piite
willing to produ
ce all fhe iMK
,k<. 1 would rather do that than hunt them up
Court :
Wil
vou
kindlv do that, Mr. Jenns, an
1 let Mr. Rohson's statement
stand till to-niorrdw.
Mr. Rcd)son will he wai
d here to-morrow, and perhaps
had better see Mr. Hck.-tein or
Mr. Jenns and meet and discuss this (pi.-stion.
Adiourned until January '2;!rd at 11 a.m.
THIRD DAY
Jai
luarv J.'>
l:\. ■\r:,
Upon the Court assemlpjing
Mr. Wilso
Tl
lere is one
litlicultv about this thii
ind that is the mi>chie
[74]
.f tlic plaintiir splittiiit; uii
his case
in this horrible way. It is proposeil now, my
)V(1, to JJUt
in a hvhiw, and my ol.jeetion
that nnexjihiined that byla.v mi<;ht
create a very ma
to <:" ill, hill I want to explain it.
eeurate and misleading impression.
I am satisfied for the hylaw
Court: i think it" Mr. Roli-on comes ui) to pro.
lions uiioii it.
luce it, vou mav ask him (pies-
Mr. Wilson: h is just like this. There is no jury
,t«hlisliiii}i ,i;rades, ami I
am in
;lructed ri-'hlly or
the hyliiw is dated 1S7
wrongly that the grades in I-
—that these stones -have not been substantially changet
d, but were the same in
ISTo as now
Court: or (Murse, as you say
tl
lere is no jury
law, 1^7:], i
will call 1
t. Aiivhow. it will n<
ites tiie gra<les, and that those gra
You rely upon the fJrade l?y-
t niislead me, the bylaw which regu-
le^ have substantially never been change<l
Mr. Wil.-on.
Yes; that is what 1 say, my lord.
Court:
You s.'c, Mr. Wilson, as I >aid yesterday
• hanged sinci \>^Cvl, and I
was i-igh
t in IS?:!, and these wo
I knew that they had been
rks were carried (Uit in
IS74,
and '7(), am
1 1
re in the earlv |)art of ISi
i, w
hen some of tho-^c
rks were goi
wo
recidlection.
iiU <>
n. Cm ...ii-ly eiioug
The cutting down of streets in a town
h, that by-law bears out the accuracy ol my
is almost unknown exceiit in
railway con^tl■ucHon, am
then iinmakin;!: it.
1 it struck mc a- a very woiu
lerful habit, first makini:
Will you put in that by-law, Mr. Rolisoir;
Mr. Wilson: Tlicn it i- niK
l,.,-stoo,l without (■ailing Mr. Noot to prove that.
that is accepledV
Court: It is put in
evidence
Mr. Wilson: .\iid it i- acce]
1 lu substantial (diaiige'.'
lee
1 what I savV Tbal is to say, that there ha:-
Mr. I'ckstcin:
Wc are not g
t going to make any bai •. tins
Cnurt: Of course i
r thev consent
to do that, that will be sullicielit.
Mr. .)enn>: We -imply put in
the bv-law for what it is wcu'tb.
Mr. Wil-on
'rhcn I object to the iiy-law going m.
Mr. Kck^tcin: Of course
mv friend has a per
I'fect right to make any objection,
to sav that wc
have split up our case in any way
but with all due deference t(
him I submit that we have n
it ilone so; we
have split it to a certain extent, owing
lo Mr Hobson lieing unprepared.
(•
R(.1)S(.
the ('(
(111.
i'('(|\iii
time,
ccrtai
IIMVC
(
1 lliii
wild i
call
Ih'OIi
say
hut i
have
level
]i\U 1
ael ill
I Ml.
i- I)
\l) c
The
the ^
veye
[".]
Court: ()win<; t(i tlic fact tlial tlic notice given was
not siillicicntlv lont;; Mr.
IJolisiin ha
l\ol)son \vl
liaililiili<'ulty in iir(
11 1<
Ml as \vc ii
the Conrt with anviliinir materially licarinj.
The liinc clap-oi
ducini: the documents, and 1 at once snK.i,'ested that Mr.
it eHicient oilicer and only too k'-'' t" "^"I'l'ly
the case, -hould produce tliem later
i-iiniderstood <ome matter
now IS a mo
Mr. llol
son It a|i|>eareu m
(|uii'ed of him, a
d a fnrtl
ler adjournmen
t wa- had to enahli' him to liave further
time, at my su^g(
certain hvdaw.
tioii to see what vou wauled, and now he appears and |iroduce> a
What is that hv-law calleil
Will
The Columliia i-treet <j;rade l.y-iaw, IST:!.
Court (to Mr. WiUon): Yen (dgect to its |)roMuetii
Mr. Wil>on: I'nle-s I am permitte(l lo proiluce
ive ^talcd, mv lord.
Mr. Xoot to explain what I
('ourt: 1 prop
I think proper.
M
r. .It'im^
Mr. Noot, ami a-k him that (piesti(Ui, or any .pie^tion
I: If Mr. Xoot,
who IS a wilue
The only ohjectioii I liave to thai is this, my lore
. for liic .lefendant i.- recalled, 1 really rt'i,j;ht lo have the ri.ijht t.
ca
11 a sur\e\-or, my-
■ If. 1 know the ;j;rade of Columlda >lr<'et in some plat
iltereil ,'i ov (i feel, an I if in one ease, why not m aim
iher? Mr Noot mijiht
ly (exactly what 1 know U
ut ill another >pot .
rrect. Aj^aiii, Mr. Xoot ;iii,i;ht say not in thi.^ spol,
Mr. Kckstein
have two witnesse;
Another Ihini;. Mr. Xoot's theory is verv well indeed, li
ut we
here to shew that at oi
I one time CoUiuihia street ran almost ui
1 .1
lev(d with these lots, so 1 think wi" shonld have a surveyor ourselve-
Mr. Wilson: Mr. Noot is your own witness.
lUed him, voursi-lf.
.Mr. Kckstein: We arc not calling- him, now.
.Mr. .leniis. .Ml Ihi^ (luarclliii.L' i> a little previoii
s 1
lecaiise tlie liv-law
is not
jiut in, yet.
Court: Mr. Wilson, (he trcuihle arises from w
hat I mav call an iiievi
itahk
act loll.
1
annot sav luii
think the case has liceu very v c
11 handled (ui hoth sides
I ,.h,.uld certainly like to a-k Mr. Xoot.hnt i slioiiM certainly t
is of opinion
it is not (d I linked, I should very mui
hink thai if Mr. Xoot
h like if it can oossil.ly he done.
to call another surveyor
,dio has lieen ac(|uainti
1'lie only thilifi i;
the sutiieet.
this, Mr. Woods is a surveycn' an
d witii the ijjround all Ihc time
1 he wa< not ili-tiiictly (dear on
Mr. Eckstein: I would susisi'^st to youi
Im-dsliip that Capt. .leinmett who sur-
vevi'd t
his (dtv ruder instructions of this city, an<
<1 who drew the map which f(
•alh
[TO]
Idiifx liiiii' was tlic only one in cxistfiicc
liL'lit nil llic (iiu'>liiiii.
f(ir tlic filv, luiu'lil llwnw ;i troo.l
Ci.urt: Of cmirsc
I iiitciul to Ro on with tlie next ciisc, hut Mr. WiN'.ii wil
vini allow
nic to suy;fi;(>st thai
('apt. .IcmnuUt ho called hefore iir^uuicnl, licca
use lie 1^
perfect engineer an
1 1
i| lla^ also a
kllowlc'l.L'e n\' the locus ill (pio
Mr. Wilson: Ajjain it e<inies na
lied, I should like to ask liiin snm.' (|uesti<ins, niyse'
Lack to the old ililliculty, if ('apt. .leniinett l.
uch
as iliev
CV.urt: Well, if I call him. I shall porniit h.oth <ides to examine iiuu as niuci.
hev like, hut at tins stage I. will allow no more witnesses to he called.
Mr Wilson- An afHilavil of documents woi
lid have trot over all tins trouhle.
Mr. Ji'iins:
As 1
ay, all this is \n-i
iture. I do not intend to put it in.
Court: Then we have wasted half-an-h
Mr. Jen lis:
I hav
e never sun
1 1 was^roingto put it in; only a hundle of letters.
It was niv friend who >ai
1 1 was iroiiii;; to put it in.
Court: Now, what are you goiiiL' to put in':
Mr. Wilson: Xow. 1 want to seethe letters.
Tl'c documents that my learned
])ro|)oses to I
to put ill, my lord, are unohj
hiectiomdde with one excci
ition; -that is a let-
ter wi
doeunient.
itteu hv oiir-elves to the corporation, ami
that 1 say is a i
) r 1 V 1
leged
Ciiurl: Let me look at it.
Mr. Wilson: Well, if your lordship
ics at It It ml:
jlit as W(dl go in. It is a
letter written hy the city solicitors to the corporatum.
Mr. .Icnns: A copy of wl
lii(di appeared in the pnhlic newspapers at the time.
Mr. Wil.on: V
it mak<>s much "..erence, m
document. In that ease, if oiu
lo go in. It is veiy unfair to \n
of my letters and r
cannot jiut them in.
i|,l not put in a puhiic newspa[iev
It there is no i[\\^
1 don't know that
U'
stion ahoMt Its lieiiig a privileget
lur let
•k out half-a-do/en <
rht
locuments, ami to pick out one
ters are to no in. 1 suhmit they
i won't pu
t in the other ones, as niy ease i;
closed, and 1
Mr. .JeiiiH:
The other letter which my learned friend ohjects to is one enclos-
ig mine, written without prejudiei
I have no ohiecti(m to his going in. hut the
["]
■ttcr written willnnil |ircju(lici' ciiiiii
it he used.
Cuiirt: I'liit i-ciilly this is !i |iri vilcficil I'diiiiiiiiiii'atinu.
viiu, nor (
1|) striking ni
lo I seek to (■(.ntrol you in hamllin;,' your case
V niiml tiiat onlv so niucii of tlio oon'cs|i()M(
I am not coiitvoilin.t;
hnt it naturally cannot
liMicc that has vrumr in
resents ou.
side, ami
f\v I must sav won
Id ut)t \veie;h verv stroiifj;ly on n
il uitlio\il aiivthiiiL' else. In tin' eajiaei
ty of a jury I assume i
t is not unlikelv
I woul.l not attach so much \veij,'lit to letters whn
h onlv have rel'ereiu'c lo on
side, the ohversie heint; kepi aw.iy from me
II' much wcijiht i- to he attu(.
standpoint, it occurs to me t
1 cannot tell what this wa- in rei
kii
ilv t<
hed to this correspondence, speakuij; 'i'"'" 'i J^'T '^
lull the weight would only he the result of the whole
irrespoudenee, ami not a partial inspection
( )f course, It IS i.ir the
JlUt 111 w
delK'e is
this out.
hat evidence thev wish, hut it seems to me that the lu-ineii
to have tlie L'reatesl p'
ssihle weight, and I think it only right to [>
itilVs t(
iecl of evi-
lint
Mr. .lenn
,lv letter I oliject to is the one written without prejudice
have no ohj
the iMse.
hieclion to your lordship seeing it, hut it cannot lie p:
irt ol the recor
1 -.f
Court: You have no ehjection to my reading i
t, Mr. Wilsmi, have you';
Mr. Wil-on: Not at all, my hu'd. In point of fact, my idea is if any
)f tlie
corres])midence goes in, put it all m.
Court: 1 cannot s;
to allow that letter to
IV. .\lr.
Wil.-
•hat Mr. Jenns i
s doing wrong in declinin
in, hecause it s willni
1 the rule, and. on rea
d'll
iiiiii il, al-
though y<.n have ha.i the advantage of u'v knowing the workmt
the other side, still it is not (■vidence.
le miinis oi
Mr. Wilson
'here is nothing in il. anyway.
That is, it would have no ell'ect.
Of C(Uirsi'. all those suggestions contaiiHM
1 in that letter aiuouut lo notliing when
you con
le to liligalion, any more
than the suggestion contained m my
letti
a
mounts to auvlhinL'.
lese things
an I'l'oposa
not being arrived at, the parti
;;hange my position at all.
es are
r<degated to iheir legal rii
~als for settlement, hut .settlement
dits. That (hies not
Courl (to Mr. Jeniis): What letter <lo you pu' in'.'
Mr. Jemis: 1 simply as
eeived in the matter?
k Mr. Utdisim if Ihosi' are the leU'-rs that have been re-
Court: Are those the letters, Mr. U.dis.ur.'
A. Y
es, mv lo.'d
(Kight letters, marked exhibit "C.")
Mr. Jenns (io witness^: I vk[>
eel there is no
bvlaw ill reftrenee to Arin.-tron}:
stll'Ot
vclVi-i
[7.S]
strcof A. Not tliiit I iini iivvaiv uC, I don't lind any.
(I Kxccpt tlu' ...nc you told nu' of, Unit goM^nil bylaw ol' ISSS? A. Yes.
Q. Which WHS mentioned in tl.o Mri^jhouse ease'' A I 'l">i't think that
vcf.Tred to Armstrong street, or referred to any street at all.
Case closed on l-oth sides. Adjourned for argument to a day to
he iixed.
1 harbj/ rrrllfythcforajoinij to he a tnw and nccnralr report of
the said proceedings.
F. EVANS,
Ottieial Stenographer.
I'.Krv
IKH'I
his
ilcpf
injii
-crii
mill
t'roii
thp
assi
Id
Wo
1 li
[7-..]
■flu tbc Supreme Court of ^Siitisb (lolinnlMa.
I'.KrWKKN
.lAMKS M(XAMAI;A,
I'l..\INTll-K
ANI>
TllK COlU'OKA'rioN OF 'I'llK CITY oF NKW WKSTMIXSTKi;.
Dkiknuan'i
Tlir action iHMciu wa- l,n.u-ht U, ivrovcr .lanla,^-^ for injury alU-rd tn iiavc
l„H.n su.tainca l-y tlio plaiutilV in <.ons,.(,uci.rc of ,,,r .trwls, on \vl,icl, -..vral lot.,
his proi.M-ly, arc situate i.ciu- excavate,!, in onlc to lower the -mac to .ucl, a
,h.,,th thai tlie -oil of his l„t eave,! in an. 1 fell into the excavation, an.lfor other
injuries to plaintills land- hy rea-n> of such excavation.. At the trial it was not
seri.)usly c.nttcu.le.l that any iq.preciahlc injurv wa- .lone to the property on Col-
,„nhia Street other than what was caused hy the suhshlenee of the plainlitV. lands
(vnm want ,.f proper .upporl. rendered ne.a-sary hy the excavation .■■nnplained of.
After heann- the evideuce, which wa- voluminous, occui-vini: two days, and
thear-nnient of the learned counsel on hot), sides, whi.d. ^vere well .■alculaled to
assist the Court in coming to a con.dusion in the pr.Mniscs, 1 feel I can, in comin.u
in a conclusion, with propriety adoi^t the wonl. .d' Mr. . Justice (iwy.n.e, in N.-w
Westmin.t,.r vs. I5risl."use, 20 S.C.C, p. o7.;. as conveyin- exactly the view- which
1 hold:—
[,SU]
'The |ilai!itill i-^, in my nirin idu, iMitillnl to iiiMintaiii t lii< ::ct inn u]Hm (lie
iplc thill the iKiu-prcvciition (if (ho suhsich'iict' ci,' tlic iihiiiitiirVlaii'l- into the
excavation niaiic iiy tlic Corporation in
the h'tri'cts, liowi'\-cr Icj^ai tiic inakinii ot'ilic
cxcavatMn niav
iiavi hccn, if .-kiU'iillv rxcavatcil, institnji-il siicii n(i.'l('ct in the
manner in wliicli >u(h woiks were exeeiileil a.' I" entith^ th ■ phiintilV to recover in
this action."
Tt is clear upon flKM'videnee flial the injury (o the piaintiH"s hunls couiplaiueil
of and |>rove(l eouh! have Keen prevented ami any litigation rendered unn(>ce~sary
iiv the erection of a retainin;.; wall. It wa- therefore eneuinhent upon the Corpoi--
ation to have erected ;-U(di wall as an' a necessary |irceaution to jirexcnt the sin
k-
U'^ of (he plaintiff's hinds inti> llie excavation, made hy the ('oi']ioration for their
iwn i)urposes in the .-treets. And 1 cannot iieli) expressing regret that the C'orpor-
ition did ni't ca\r-e retaining walU to he erected instead of ccmipelling the plaintiff
to so hims(df, and t iien c<
lo this Court to realise the ci.~ts of doing that whi(h
ought to have lieen done in the firs! in-tauce hy the defendants. I am of opinion
thai the tiiainlilf i.as su>tained damage bv reitsou of the defendants' wrongful con-
\\\v{, wlii(di they should p
the extent of $d'J.', and 1 therefor(
.Itr-
ment foi- the plain
thi.s action.
tilf in suidi r^um of $120, with all the costs of and iinddental t(
w. xcitM w i'>()ij:, I. .1 s. c
Bkiv
llOUl
IH'.i:
.lay
Cl.ii
saiil
To
Dut
[81]
•fln tbe Supreme Court of 16riti9b Columbia.
ON Al'l'EAL TO Fl'LL COURT.
BKrWKKN
JAMES McNAMAKA,
Pl.AINTIlK,
AND
THE rOl'.POKATloN OF THE flTV OF NEW WESTMINSTER,
Oki-I'-.nhants.
NOTICE OF APPEAL ANI> OPvOrNHS.
Takk NdTicK that (he iil.ovc iiiuiu'd ili'lViiilants apiK'al \'v"U\ tlic ;ni<l,miicii* pro-
„,,„iic(m1 in tliis aclinn by I lis Honor .Iu.l.ij;c Hole on tlir 'isth day of Marrh, AT),
IS'.i:!.
And furtluM- take notiw that tho Full Court will he niovi'd on Monday, tlic Hiih
,lav of.luly, A.I). 1S!t;i, or so soon tliproat'tor as Counsel can he heard hy Mr.
Charles Wilson of Couu-el for the ahovmanKMl defendants on their hehalf, that the
,-uid iud.tiiii'-nt may he revised and judoinent entered for the defendants.
JAMES W. MrCOLE.
Solieitor for Uefendaiits.
To
E. A. JEXNS, Esii.
Solieitor for above nanuMJ plaintiil'.
Dated the :!rd dav of May, IS'.i;?.
p
l»
s
T(
[82]
lln tbc Supreme Court of Brltisb Coluntbia.
TurWKKN
JAMES McNAMARA,
Pl.AINTrKK,
ANr>
TllK CORPORATION OF THE OITY OF NEW WESTMINSTER,
Dkkkndants.
GROUNDS OF APPEAL.
Takk NorrcK tluit, the toUnuiiig are the grounds (if Appeal to the Full Court
from the .ludgnient of His Honor Judge Bole herein.
1. That lh( nialerial aUegalions in the Statement ofClaim are not proved.
2. That the material idlegatious in the Statement of Defence are proved.
8. That the learned Judge erred in tinding for the Plaintitf.
4. That the damages are excessive.
."). That the PlaintiH' is not entitled to maintain the action.
(i. That there wa- no negligence on the part of the Defendant Corporaticm.
7. That tnere is no duty on the part of the Defendant Corporation to erect a
retaining wall.
5. That the work complained of was done hy the Plaintiff's leave.
June 2-1, ISU;!.
Yours, etc.,
JAMES W. McCOLL.
Solicitor for Defendants.
To
E. A. JENNS, Es<j,
Solicitor for al».ve named plaintitf.
[83]
ln^er.
statement of Case
Statement of Claim ^
7
Statement of Detenre
9
Reply
Proceedings at Trial
. . .79
Judgment
81
Notice of Appeal