turns to the north and enters the original road allowance.

1905

TAYLOR

v.

or near this point there is a wooden culvert crossing the roadway from the west to the east through which are discharged waters collected in the ditch on the north side of the highway; and it CORPORATION was owing, in very large if not sole measure, to this culvert that the damages for which the plaintiff has judgment were allowed.

But the defendants contend that, notwithstanding that it has been found that the culvert in question-spoken of in the evidence as culvert No. 1-causes damage, and that the award is now acquiesced in, there should be no injunction in respect of it.

It is said first that it was constructed with the consent and acquiescence of one Kirby, a former owner of the farm through whom the plaintiff derives title, and that the plaintiff acquired his title with notice and knowledge of the existence of the culvert and the way in which it had been used, and was therefore precluded from objecting to it. What appears is that when it was proposed to construct the culvert with a view to carrying off some of the water which came down from the area above the highway Kirby was willing that the waters coming through the culvert should be carried off through a corner of his field adjoining the turn of the highway to a large ravine or gully on his farm, and himself dug or made the drain through his lands for that purpose. But there is nothing to shew more than a revocable license to carry the waters to the ravine in that way. It cannot be said that there was such an expenditure, if indeed there was any, on the faith of an agreement to permit the use of the land as to make a case of irrevocable license. There was nothing in writing and no consideration, and nothing to prevent Kirby or his successors in title from revoking the license at any time.

But, assuming an agreement binding Kirby, the defendants have not succeeded in establishing such notice and knowledge of that agreement to the plaintiff as purchaser with a registered title as to prevent him from objecting.

It is not sufficient to shew that he was aware of the existence of the culvert and the drain through his land. It is necessary to go further and shew that he knew that the drain

OF

TOWNSHIP

OF

COLLING-
WOOD.

Moss, C.J.O

C. A. 1905

TAYLOR

V.

CORPORATION

OF

TOWNSHIP

OF

COLLING-
WOOD.

was there under agreement: Ross v. Hunter (1882), 7 S.C.R. 289; Harrington v. Spring Creek Cheese Manufacturing Co. (1904), 7 O.L.R. 319, at p. 325.

The defendants also contend that the comparatively small amount of the damages is a reason for withholding the injunction. But the damages are fairly substantial; the cause is a continuing one, it is not unlikely to recur, and there is a Moss, C.J.O. prospect of the use, if allowed to continue, growing into an easement by prescription. Against these consequences the plaintiff is entitled to an injunction for the protection of his rights.

The next culvert affected by the injunction is that spoken of in the evidence as culvert No. 2. It is a 12-inch tile culvert on the south or upper side of the turn of the Mountain road and conveys water from the ditch on the south side of the highway in a south-easterly direction into the ravine. It is found, and the evidence shews, that the water conveyed into the ravine by means of this culvert caused no damage to the plaintiff. It is extremely doubtful whether any part of the culvert is situate on the plaintiff's land.

The plan prepared by Mr. Gaviller, P.L.S., for the plaintiff, and put in by him at the trial, shews the culvert to be wholly situate on the land of James Lunan, the proprietor of lot 14 of the second concession of Collingwood. From the plan prepared by Mr. McDowall, C.E., for the defendants, it would seem that its terminus is on the original road allowance just west of the line of the plaintiff's farm; and the evidence does not clearly shew that any part of it actually encroaches on the plaintiff's land. The objection to it is that it leads water into the ravine thereby causing it to flow in the stream there. But, as has been found, the water coming through it causes no damage to the plaintiff. If this had been the sole ground of the plaintiff's action he must have failed upon the evidence and the findings; and there could have been no injunction interfering with the operation of this culvert. But the injunction granted does interfere with and will prevent the defendants from using it for the purposes for which it was placed there. As appears it was placed where it is as part of a scheme for relieving the highway from the flow of waters from the mountain side; carried out pursuant to the directions of Mr. McDowall the township engineer.

It was sought to bind the plaintiff to this scheme as a work done under and in pursuance of the Ditches and Watercourses Act, and of an agreement by the plaintiff. But it is plain from the circumstances, as well as from the testimony of Mr. McDowall, that, in recommending or directing the work in question, he was not acting under the agreement with the plaintiff, or making an award under the Ditches and Watercourses Act. However, the placing of the various pipe culverts at different points of the highway, and their operation in the manner directed by Mr. McDowall, tend not only to relieve the highway of the descending waters, but also to reduce very considerably the flow of water towards and into the wooden culvert No. 1.

It is said that at the time of the overflow in 1902 there was not an opening in the ditch at the mouth of culvert No. 3, or a dam to prevent the waters coming through it from flowing east to culvert No. 1. But this was denied, and it seems that at the time of the trial the opening and dam were there.

However that may be the injunction granted appears to be more extensive, and to impose greater obligations upon the defendants than the plaintiff is entitled to demand. All that he is entitled to upon the case, as developed, is the prevention of injury to the field known as the road field from the action of the water brought to culvert No. 1, the course of which is shewn in the plans. And the wide general terms of the injunction granted should be modified accordingly.

Probably an injunction restraining the defendants from maintaining or using the ditch on the north side of the highway and the culvert No. 1 in such manner as to thereby discharge or cause to be discharged waters from the said highway upon or over that part of the plaintiff's farm, designated "the road field," will be sufficient to give the plaintiff all he is entitled to. But the form of the order may, if necessary, be spoken to in Chambers. If the defendants require it the operation of the injunction may be suspended for a reasonable time to enable them to take such steps as may be necessary in consequence of the injunction.

The defendants will pay the plaintiff two-thirds of the costs of the appeal.

G. F. H.

C. A.

1905

TAYLOR

v.

CORPORATION

OF

TOWNSHIP

OF

COLLING

WOOD.

Moss, C.J.O.

1905

May 12.

[STREET, J.]

PLENDERLEITH V. SMITH.

Parties Mortgagees Joint Interest Trustees Foreclosure-Devolution of
Estates Act-60 Vict. ch. 14, sec. 29 (0.), 54 Vict. ch. 18, sec. 1 (0.)—
R.S.O. 1897, ch. 121, sec. 13.

By sec. 29 of 60 Vict. ch. 14 (O.), sec. 1, of 54 Vict. ch. 18 (O.), is inter-
preted as applying only to the estates of persons dying on or after May
4th, 1891, and this interpretation is made retrospective, save as to convey-
ances theretofore made.

A husband, who with his wife had jointly mortgaged certain lands, died in
1890, having appointed his wife his executrix and devised to her all his
estate. The wife died in the same year, having appointed two
executors, and devised all her estate to the plaintiff. Default having
been made in the payment of the mortgage which had been assigned to two
persons as trustees, although no trust appeared on the face of the
assignment, who had taken a renewal with a covenant to pay subse-
quent to the passing of sec. 13 R.S.O. 1897, ch. 121, the surviving assignee
brought an action against the wife's executors and obtained judg
ment of foreclosure and entered into possession. He subse-
quently sold the lands to one of the defendants, who also entered
into possession and mortgaged to the other defendant. In a redemption
action brought by the daughter of the mortgagors against the defendants:-
Held, that the husband and wife having died before the 4th of May, 1891, the
equity of redemption at the time of the foreclosure action and judgment
was vested in the wife's executors, so that the judgment recovered against
them was effective, the daughter not being a necessary or proper party.
Held also, that the personal representatives of the deceased assignee were not
necessary parties for under sec. 13 of the R.S.O. 1897, ch. 11, the
mortgage was vested in the two assignees jointly, so that the survivor was
entitled to receive the money and enforce payment, although, but for
that statute, had the defendants objected, the personal representatives
would have been necessary parties.

THIS was an action tried before STREET, J., upon the pleadings and the written statement of Mr. Justice Maclennan, at the non-jury sittings at Toronto, in May, 1905.

T. Hislop, for the plaintiff.

J. B. O'Brian, for the defendants.

The facts, so far as material, were as follows:

On 13th October, 1882, Mary Ann Plenderleith and her husband John Plenderleith joined as mortgagors in mortgaging certain lands in the city of Toronto to one Byrch as security for a loan of $2,600 and interest.

On 7th August, 1884, Byrch assigned the mortgage to James Maclennan and John Downey, who took it as trustees

was

for certain clients of theirs, with whose
it
money
purchased, but no trust appeared on the face of the assignment.
On the 1st October, 1887, an agreement under seal was
entered into between the mortgagors and Messrs. Maclennan
and Downey, the assignees of the mortgage, by which the time
for payment of the mortgage money was extended to 1st
October, 1892, and the rate of interest was reduced, and it was
agreed that all the covenants, powers, provisions and conditions
expressed in the said mortgage should apply to the extended
term. And the mortgagors covenanted with the assignees to
pay the principal money and interest at the new dates
mentioned in the agreement as if those dates had been inserted
in the original mortgage.

John Plenderleith died on 14th July, 1890, leaving a will whereby he devised all his real and personal estate to his wife Mary Ann Plenderleith, and appointed her to be his sole executrix. This will was proved by her on 23rd July, 1890.

Mary Ann Plenderleith died on 22nd September, 1890, also leaving a will whereby she appointed the defendants, James M. Brown and Jessie Brown, to be her executor and executrix, and whereby also she devised all her real and personal estate to her daughter Eliza Plenderleith, the plaintiff in the present action, then an infant. Probate of this will was granted to the executor and executrix named therein on the 2nd October, 1890.

John Downey, one of the assignees of the mortgage, died on 11th April, 1894, leaving a will and appointing executors.

On 28th November, 1894, the surviving assignee of the mortgage, Mr. Justice Maclennan, brought an action to foreclose the mortgage against James M. Brown and Jessie Brown, executors of the estates of Mary Ann Plenderleith and John Plenderleith. In the statement of claim it was alleged that the plaintiff and Downey held the mortgage as mortgagees in trust, and that the plaintiff after the death of Downey was entitled, as surviving mortgagee and trustee, to the moneys secured by the mortgage. The defendants filed an answer admitting their character of executor and executrix to the estates of John Plenderleith and Mary Ann Plenderleith they set out the devise by the latter to her daughter

1905

PLENDER

LEITH

v.

SMITH.