Second count: That before and at &c., plaintiff was pos sessed of a dwelling house and close in the City of Hamilton, bounded on the east by James Street, on the south by Robinson Street, on the north by Duke Street, and on the west by lands of Robert Roy, which streets before and at &c., were on or about the same level with the said close of plaintiff, whereby the soil and earth of said close was supported and kept from falling, and plaintiff had free access to and from said streets into and from said close at all times, for carts, carriages, horses, and foot passengers, &c. ; yet defendants, well knowing, &c., wrongfully, negligently, improperly and injuriously, to wit, on the first of August, 1853, dug and excavated the said streets, and lowered the same below the original level without leaving sufficient support to prevent the earth and soil of plaintiff's close from falling away; by reason whereof a great portion thereof did give way and fall in and upon the said street, and was washed down and carried away, and also thereby the plaintiff's fences around said close gave way and fell down, and plaintiff prevented access in any manner to his said close and house from the said streets until he made a foot way at great expense from Duke street up to said close, and at large expense built a stone wall and stair-case to allow access on foot, and hath been deprived of any access from said streets to said close, for horses, carts, carriages, &c., whereby &c.

Third count: That before and at &c., plaintiff was possessed of a dwelling house and close in the City of Hamilton, bounded as before described; that before and at the time. when, &c., the said streets were, and from time immemorial had been, on or about the same level with said close of plaintiff, by means whereof the soil and earth was supported, &c., and plaintiff had free access therefrom into and upon, and to and from said close, at all times, for all horses, carriages, foot passengers, &c.: yet defendants, well knowing &c., to wit, on the first of August, 1853, wrongfully dug and excavated the said streets adjoining said close, and took and carried away the soil and earth thereof, &c., and greatly lowered the same, &c., as in last count,-omitting any charge of negligence.

Plea-Not guilty by statute. Defendants referring to 14 & 15 Vic. ch. 54, on being called upon by a judge's

summons.

At the trial, before Draper, J., autumn, 1854 :

On plaintiff's part evidence was given-that by the defendants' book of minutes it appeared that on the 24th of August, 1852, the council passed a resolution for the preparing plans and specifications for grading and gravelling Upper James street; that tenders be advertised for according to such plan. That on the 1st of September, 1852, the council passed a resolution appointing Carr (or Kerr) to superintend the improvements on John, James and York streets, or any other work let out on contract. That on the 15th September 1852, the council resolved that the tenders for grading and gravelling James street be referred to a committee to accept the most beneficial tender: that on the 20th September 1852, by articles of agreement, executed under hand and seal of Garratt Kenney and Patrick Cain, (but not by defendants) but stated to be entered into by said Kenney and Cain of the first part, and the Mayor, Aldermen and Commonalty of the City of Hamilton, of the second part; the parties of the first part agreed, according to the specification annexed, to grade, drain, macadamize and gravel that part of James street in said specification mentioned and described, &c., on or before the first of December then next, to be paid as the work progressed upon the estimates of (defendants') engineer, and the ultimate balance upon his certificate of satisfaction with the work, &c., with various stringent clauses or checks upon the contractors. It concludes as if the Mayor had, or was to sign and seal it with defendants' seal. The specification stated that the work on upper James street would consist in lowering parts of the hills, filling up hollows, building culverts, and repairing the same; macadamizing, gravelling, forming and regulating the surface throughout to one uniform and regular plan as therein described, and according to grades laid down on the profile plan of said street. It then refers to the plan, shewing the length and levels, &c., as they were, and were to be made; the breadth of the road to be thirty feet inside or between

the water tables or ditches, and the breadth of metalling to be 20 feet. The side-slopes &c., to be one and a half horizontal to one perpendicular &c. The side streets leading to and from it to be graded at the junction to a rise or fall of one in twenty, so as not to have a steeper slope than one in twenty where they join James street, with a variety of detailed particulars; to be observed and approved of by the engineer in charge, in relation to the grading, metalling, &c. That opposite plaintiff's property in Upper James street there is a very steep hill, and also on McNab street, to both of which streets plaintiff's property extended. That there was a sharp turn from James street into Augusta street, so as to render it likely a carriage might over-turn, but at the time of the trial the road was on a moderate scale, as one witness stated. Ker the engineer, being called for plaintiffs, stated, that the work had been done under his superintendence by Kenny and Cain, and it was proved they had received payments on account of their contract. That the intention was to cut the road thirty feet wide and about two feet on each side, but that the contractors did in fact cut nearer than that to plaintiff's land without directions. That Duke. street was cut and lowered on the north of plaintiff's land and the soil taken by Kenny from Robinson street, which is south of plaintiff's property, and used upon part of James street that James street was raised three or four feet higher than Augusta street, but Augusta street was not adjoining plaintiff's close. That at thirty-four feet width for the improved road, there would at the base (or bottom) be sixteen. feet left to plaintiff's land, measuring from the centre. (17×16=33, or half a chain). That the defendants' cut at plaintiff's was about six feet, and allowing seven feet to be cut off the sixteen feet at the top, nine feet would remain untouched before reaching the plaintiff's land: that so far as the James' street work was concerned, no part of it was done carelessly or negligently: that the alteration of the street was a great general improvement. Kenny the contractor said, that opposite plaintiff's they cut James street according to the plans and specifications and directions of the engineer, and opposite to the plaintiff's lot cut up to the

lot very nearly, and went the distance they were obliged to go: that the cutting was very hard, and he had to blast the underpart: that they cut on the street south of plaintiff's land, though forbid by him (plaintiff); that he Kenny informed the mayor, and aldermen, and members of the street committee, who told him he might take soil from there and they would stand any damage for his so doing. That the soil removed from Duke street was taken to fill up and level on James street, but that Duke street was not cut up to the line of the plaintiff's land. Allan, street-inspector in 1852 and 1853, said he had in that character cut away soil from the street (Duke street), North of plaintiff's, but did not cut it down very much, four or five feet, nor within six or seven feet of plaintiff's. That defendants paid for that work. That before this a place had been cut nearly close to the plaintiff's fence near the corner of James street, but Duke street was not then a travelled road, that the natural level of the street (James street), sloped upwards to plaintiff's land which also sloped upwards, and that plaintiff could have got out from his land on the level of Duke street before the cutting, if his fences were removed. That Duke street is now a good travelled road that plaintiff had not access to all parts of James street, but there might have been at the upper part near Robinson street, and there is not now much difference in the grade between the grade of plaintiff's land and the improved street: that before the improvement James street was scarcely passable, and now there is an excellent road: that according to the present grade plaintiff's land is now higher above the present level of the street than formerly: that land sufficient to support plaintiff's close and fences was left by this witness in what he did.

Another witness, McIntosh, stated that in consequence of cutting down James street, plaintiff's fences required support and the earth from his lot falls into James street, and so along Robinson street for sixteen or twenty feet: that there is no way to get from James street or Duke street into plaintiff's land except a foot stairway of thirteen or fourteen steps made by plaintiff, and that he must drive round to the rear to get a wagon in, and in winter, owing to the ice, the staircase

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VOL. V.

at times is often impassable: that at the corner, James street is four or five feet below the level of Robinson street: that in Duke street it is graded off to within one foot of plaintiff's fence, done by persons acting under the defendants' inspector. Another witness (Nixon) proved that he put up a stone wall for plaintiff last summer to prevent the earth falling into James Street, which street is lowered ten feet, as also Duke Street, and at the corner near Robinson Street the grade of the street is five feet below the level of plaintiff's land. That it would cost £75 to put a wall along Duke street, and £80 to do so along James Street, and that plaintiff erected steps, and put up a wall two years ago worth £50.

That plaintiff erected his house in 1851 and 1852; and about one hundred feet from Robinson and James streets, and had to cut the slope along James Street to get a perpendicular or flat surface for his foundation walls. That the first five feet of plaintiff's land is light, and can only be secured by a retaining wall, below that level it is heavy and solid. This witness thought it would cost half the price of the land to cut it down to a level, for houses on James Street.

It appeared upon the whole of the plaintiff's evidence that his close was on the side or ascent of what is called the mountain, bounding the city of Hamilton on the south, and that his land, in common with all others, slopes or inclines downwards from south to north, and consequently the improved grades of the streets passing his property form inclined planes, and do not leave his land at a uniform higher level, but varying. At the close of the plaintiff's case the court adjourned till the next morning, and it was arranged by consent of parties that the jury should in the mean time view the premises.

For defendants, Kerr, the engineer, was called, and denied instructing or authorizing Kenny to work James Street, otherwise than the specifications &c., directed and required; but said that, being requested, he refused. That he planted posts as near the centre of James Street as he could for the guidance of the contractors. That they acted under his orders, and he acted under the specification. That opposite plaintiff's house, James Street had been con