Nuisance and Neighbourhood in Late Nineteenth-Century Montreal: Drysdale v Dugas in its Contexts

• Author: Eric H. Reiter
• Pages: 35-69

ﾇﾉ

Nuisance and Neighbourhood in Late

NineteenthCenturyMontreal

DrysdalevDugasin its Contexts

EricHReiter

Introduction

Npersonal dimension that can bel ie the often relatively

modestlegalstakesinvolvedPiingneighbouragainstneighbourandin

volving perceived invasion of the homes, workplaces, or senses of the par

ties, nuisance complaints tend to elicit vehement reactions on both sides.

OnesuchaairisDrysdalevDugas, which reached the Supreme Court of

Canada in  Centring on a dispute between neighbours in Montreal,

the case pits Drysdale, who built and ran a stable in a residential neigh

bourhood, against Dugas, who complained of the horses’ unpleasant odours,

foulliquidsandincessantnoiseItalsohighlightsdicultissuesofprop

erty powers and duties, fault and liability, precedent and public policy, and

remediesMoreoverastheSupremeCourtsrstmajorpronouncementon

nuisance in Canada, Drysdalesinuencehasextendedbeyonditsoriginsin

thecivillawofQuebecRecentlyitsrelevancewasrearmedwhentheSu

preme Court endorsed its view of liability for nuisance in StLawrenceCement

vBarreeof

Like all nuisance cases, Drysdale sits at the intersection of t he law of prop

erty and civil liability, and it reveals lawyers and judges alike seeking co

herentoratleastworkablerulesandconceptsinamurkyeldoflaw

Like all Quebec nuisance cases, Drysdale also straddles the civil law and the

common law, with French and English principles and precedents mingling

ﾇﾊEricHReiter

sometimes in concert, sometimes in tension. Finally, like all legal cases of

whatever kind, Drysdalehasastorybehinditonethatbothllsoutandat

times challenges the rather lifeless published reports of the case. In this

article, I use Drysdale and its stories to explore the intersections of doctrinal

legal principles and lived social ordering in a time of changing urban land

scapes and neighbourly relationships.

Dramatis Personae: Dugas and Drysdale

N   concept. The smells, noises, smoke, vibrations, and

other physical irritants behind the legal idea of nuisance become problem

aticwhenindividualsliveincloseproximitytooneanotheranddierences

inpersonalitiessensibilitiesandlevelsoftolerancegiverisetoconictover

the irritants. It is also, of course, a legal concept, and the principles, inter

pretations and precedents of the legal system aect the so cial aspects of

nuisanceasthesocialaspectsaectthelegalBehindbotharepeople

neighbours, lawyers, and judges — who come to litigation with previous

historieswhichprovideanotherlevelofinuenceonthecourseofthecase

CalixteAiméDugastheplaintiinDrysdalewasaprominentandwell

connected member of the Montreal legal community. Though it was no se

cret at the time, it appears nowhere in the reported judgments that Dugas

was himself a judge of the Montreal Court of Sessions, the lower criminal

courtBornininStRéminearMontrealDugasstudiedlawwithboth

afutureQuebecchiefjusticeAADorionandafutureprimeministerof

CanadaJJCAbboAfteradmissiontothebarinhisfortunatecon

nections continued: he practised law with a future Supreme Court justice

DésiréGirouardandinmarriedSuzanneHarkinacousinofLewis

Drummond, justice of the Quebec Court of Queen’s Bench. Dugas served

brieyinmunicipalgovernmentandinranunsuccessfullyfortheprov

incial Liberals. Soon after his defeat he was rewarded with an appointment

as judge of the Court of General Sessions of the Peace, serving also as extra

dition commissioner. A proponent of military training, Dugas belonged to

thethBaalionMountRoyalRiesandsawactivedutyasaMajorlater

promotedtoLieutenantColonelduringtheNorthWestRebellionof

Dugas was also a member of several prestigious Montreal clubs, mingling

with the francophone elite at the Club Canadien and the a nglophone elite at

the Metropolitan Club.

NuisanceandNeighbourhoodinLateNineteenthCenturyMontrealﾇﾋ

Besides his position as judge and his general knowledge of the law,

two other aspects of Dugas’s personal history factor into this litigation: his

litigiousness and a speculative streak. Like many legal professionals with

knowledge of their rights and a drive to vindicate them, Dugas was involved

inanumberoflegalactionsovertheyearsAlreadyinthesasayoung

lawyerheparticipatedinawellpublicizedfracasoverhishavinghitched

his horse to a gatepost, as a result of which he was arrested for allegedly

assaulting a constable. Tellingly, he not only defended himself against the

charge but launched a  suit against the constable and the City of

Montreal for false arrest and violation of his rights.Ininanothercause

célèbre, Dugas successful ly brought private criminal l ibel charges against Ed

mundSheppardownerofthesensationalistandantiFrenchTorontoEven-

ingNews, over articles al leging cowardice, looting, and desert ion by Dugas’s

regiment during the Rebellion. Dugas also appears in various cases con

nected to his business deali ngs, such as a breach of contract suit arising from

plans to form a company to exploit an invention to turn garbage into fuel.

JudgeDugasMontrealQCbyWilliamNotmanSonDecemberThis

photograph of Dugas, like the pho to of Drysdale below, is by Montreal’s premier society

photographerWilliamNotmanMcCordMuseumIIReproducedwithpermission