Chamberland v. Fortier

Chamberland v. Fortier

Amendment to s.29(b) rendered the appeal competent because the judgment would bind future rights; on the merits, contributions by province and municipality without an order in council and without statutory expropriation procedures do not convert a private way into a Crown-owned colonization road, so the plaintiff retained title and the servitude claimed by defendant was not established.

Citation
(1894) 23 SCR 371
Parties
Appellant/plaintiff: François Chamberland; Respondent/defendant: Ferdinand Fortier
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
31 May 1894
Procedural Posture
Action Negatoria Servitutis (appeal) / Appeal From Superior Court of Lower Canada (sitting in Review)
Outcome
Appeal allowed. Judgment of Court of Review reversed. Action negatoria granted; plaintiff's property declared free of defendant's claimed servitude.
Legal Topics
Servitude (right of Passage), Expropriation and Indemnity, Appeal Jurisdiction, Public Road Vs Private Road, Statutory Interpretation of Colonization Roads
Source Language
English
Property Law Civil Procedure Administrative Law Servitude (right of Passage) Expropriation and Indemnity Appeal Jurisdiction Public Road Vs Private Road Statutory Interpretation of Colonization Roads

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Parties

François Chamberland

Appellant/plaintiff

Ferdinand Fortier

Respondent/defendant

Procedural Posture

Action Negatoria Servitutis (appeal) / Appeal From Superior Court of Lower Canada (sitting in Review)

Legal Issues

  1. 1 Whether the appeal to the Supreme Court was competent under amended s.29(b) of R.S.C./Supreme & Exchequer Courts Act
  2. 2 Whether contributions by the provincial government and municipality converted a private right of way into a Crown-owned colonization (public) road without formal expropriation procedures
  3. 3 Whether the plaintiff was deprived of property or entitled to indemnity under civil code and R.S.P.Q. provisions

Ratio Decidendi

Amendment to s.29(b) rendered the appeal competent because the judgment would bind future rights; on the merits, contributions by province and municipality without an order in council and without statutory expropriation procedures do not convert a private way into a Crown-owned colonization road, so the plaintiff retained title and the servitude claimed by defendant was not established.

Court Disposition

Appeal allowed. Judgment of Court of Review reversed. Action negatoria granted; plaintiff's property declared free of defendant's claimed servitude.

Orders

  • Appeal allowed with costs
  • Action negatoria granted; property declared free of defendant's claimed servitude