Manitoba r. Can. Pae. Ry. Co. (Telephone Connection and Communica-
tion Case i, 21 Can. Ry. Ca*. 445.
(Followed in Alberta United Farmers T. Can. Pae. Ry. Co.. 23 Can. Ry.
Cas. 104.]
.JITMSDICTION TELEPHOXES TEEMS CONDITIONS ROTTE MONET
PAYMENT.
In approving the route on a highway of the Bell Telephone Co.. the
jurisdiction of the Board is confined to fixing such terms, conditions or
limitations as refer to the lines, wires or poles within the municipality.
The Board has no jurisdiction to require, as a condition, the payment of
any money or the granting of free telephones to the municipality.
Windsor T. BeD Telephone Co.: Bell Telephone Co. T. Windsor. 22 Can.
Ry. Cas. 416.
'[Followed in Bell Telephone Co. r. London. 24 Can. Ry. Cas. 102.]
JURISDICTION CONDITIONS COMPENSATION BWWUE.
The Board is given no jurisdiction under s. 47 of the Railway Act. 1906.
to make the payment of compensation a term of an order approving the
location and construction of a telephone line upon a public highway or to
impose any condition for which a municipality may contend in bargaining
with a telephone company as a term or condition of such order. [Grand
Trunk Pacific Ry. Co. v. Fort William Landowners, etc.. [1914] A.C. 224. at
p. 229, 13 Can. Ry. Cas. 187. followed.] It is not the function of the
Board to decide upon the validity of Dominion or provincial legislation.
Under its charter, 43 Viet. c. 47, s. 3 and the interpretation clause of the
Railway Act. 1906. s. 2 (11), the Bell Telephone Co. has power to
carry its lines along a bridge on which there is a public right of travel-
ing.' [Anger et al. T. Grand Trunk and Can. Pae. Ry. Cos^ 19 Can. Ry.
Cas. 401. followed.]
Bell Telephone Co. v. Ottawa and Carleton. 22 Can. Ry. Cas. 421.
[Followed in Bell Telephone Co. v. London. 24 Can. Ry. Cas. 102.]
SERVICE PMYATE BBANCH EXCHANGE RESIDENTIAI. LINES SEPARATE usr-
ncc TOLL.
Where the telephone service in connect ion with which publication by
listing in the telephone directory is asked is not of the private branch
exchange line, but of the separate residential ones, and entirely distinct
from the contract covering the private branch exchange service, the serv-
ice asked for is a distinct one, and is subject to the separate listing toll.
Irish Manlson v. Bell Telephone Co.. 23 Can. Ry. Cas. 19.
JURISDICTION COST OF INSTALLATION AND MAINTENANCE.
Under s. 245 of the Railway Act, 1906, the Board has no jurisdiction
to direct railway companies to bear the cost of installation and mainte-
nance of telephones in their stations, but it has jurisdiction to direct them
to permit municipalities or corporations carrying on a telephone business
to install instruments without charge to the railway companies in their
stations. [People's and Caledon Telephone Cos. v. Grand Trunk and Can.
Pae. Ry. COBL, 9 Can. Ry. Ca*. 161: Manitoba T. Can. Pae. Ry. Co_ 21
Can. Ry. Cas. 445. followed.]
Alberta United Farmers v. Can. Pae. Rv. Co.. 23 Can. Rv. Cas. 104.
T;J2 TELEPHONES.
JURISDICTION LINES ON HIGHWAYS CONDITIONS COMPENSATION.
The Board has no jurisdiction under ss. 247, 248, of the Railway Act,
1906, to make the payment of rent, as compensation, a term of an order
approving the location and construction of telephone lines upon, along,
across or under a public highway, or to impose any condition, for which a
municipality may contend in bargaining with a telephone company, a term
or condition of such order. [Windsor v. Bell Telephone Co., 22 Can. Ry.
Cas. 41(i; Bell Telephone Co. v. Ottawa and Carleton, 22 Can. Ry. Cas.
421, followed.]
Bell Telephone Co. v. London, 24 Can. Ry. Cas. 102.
INCREASE IN RATES REFUSAL TO PAY REMOVAL OF INSTRUMENT NOTICE
MUNICIPAL POWERS NATURE OF RENTAL BAILMENT DURATION OP
CONTRACT.
Edwards v. Edmonton, 25 D.L.R. 825.
RIGHT TO MAINTAIN POLES AND WIRES IN STREETS COMPANY INCORPORATED
BY CHARTER UNDER ONTARIO COMPANIES ACT CONSENT OF TOWN TO
EXERCISE OF POWERS TRESPASS TO PUBLIC LANDS RIGHTS UNDER
CHARTER.
A telephone company has not the right to plant poles upon a highway
without sanction derived from the Legislature or from Parliament. The
municipality has no inherent legislative power to grant the right; and,
unless there is to be found some authority emanating from Parliament,
when the undertaking is under the jurisdiction of Canada, or from the
Legislature, when the undertaking is under the jurisdiction of the prov-
ince, or from the municipality, when the Legislature has given power to
the municipality, this non-natural use of the highway is unlawful. [Do-
mestic Telegraph Co. v. Newark (1887), 49 N.J. Law 344, 346, approved.]
A charter creating a company confers upon it the powers of a natural
person so far as such powers are enumerated. A company which has
power under its charter to own and operate a telephone line has no right
to exercise that power until it acquires it in accordance with the general
law of the land. The Companies Act confers power upon the companies
chartered; it gives no right to those issuing the charter to deal with the
rights of the public upon highways or to interfere with the public domain.
The provisions of the Municipal Franchises Act, R.S.O. 1914, c. 197, do
not apply to a telephone company.
Temiskaming Telephone Co. v. Cobalt, 42 O.L.R. 385, 43 D.L.R. 724.
[Reversed in 44 O.L.R. 366.]
CONTRACT KNOWLEDGE OF CONDITION CANCELLATION LIQUIDATED DAM-
AGES.
The signer of a telephone contract is presumed to know all the condi
tions appearing therein, and is bound by a stipulation that in case of
cancellation of the contract through the default of the subscriber the
balance due for the unexpired term shall become payable as liquidated
damages. [Bell Telephone Co. v. Duchesne, 21 D.L.R. 822, referred to.]
Bell Telephone Co. v. Zarbatany, 31 D.L.R. 641.
POWER TO GRANT USE OF STREET.
A resolution of a township council is not an authorized municipal meth-
od granting a telephone company the privilege under certain conditions
of constructing its telephone line, a by-law being necessary. (Per Mid-
dleton, J.)
Howse v Southwold, 5 D.L.R. 709, 27 O.L.R. 29.
TELEPHONES. 733
MLMCTPAI. TELETHOXE SYSTEM.
A municipality BUT establish a telephone system under 2 Geo. V., e. 38.
poo being properly petitioned to do so, without giving effect to all the
prajren of the petition, if the system complies with the Act in question.
Re Robertson and Colbome, 8 DJ-JL 149, 4 O.W.X. 274.
Notwithstanding the provisions of the Ontario Telephone Aet. 1910,
there is no jurisdiction in the Ontario Railway and Municipal Board to
make an order directing "connection, intercommunication, joint operation.
reciprocal use and tran-mi^ioo of basinet." involving the expenditure of
money upon capital account, by the subscribers to a telephone system.
constructed and installed under the provisions of the Ontario Local Munic-
ipal Telephone Act. 1908.
Bmssefe T. McKillop Telephone System; Blyth r. McKiDop, 2 DJ^R.
843, 26 O.LJL 29.
MrMCIFAI. TEUETHOXK SYSTEM - GOTEBXMEXTAL MGCTATIOXS.
The construction and installation of a telephone system under the pro-
of the Ontario -Local Municipal Telephone Act, 1908" by an asso-
of individual subscribers, even when operated under a certain
does not constitute them a corporate body or legal entity, and their
telephone a i stem and equipment used in connection therewith become vest-
ed in the municipality in trust for the benefit of the subscribers.
Brussels v McKillop Telephone System; Blyth v. MeKillop. 2 DJLR.
843. 26 O.LJL 29.
AlMIBMi'f tlWtU TELEPHONE COMPAME* JrmiSDICTIO*.
While the Ontario Railway and Municipal Board may "review, rescind.
change, alter or vary any rule, regulation, order or decision. " made by it.
it should not make an order having the effect of interfering with an agree-
ment entered into between two telephone systems or companies to which
the approval of the Board had already been given, except on a properlv
framed application for the purpose, and upon due notice to the parties in-
terested to appear and state their objections; the Board has no power or
jurisdiction to alter or vary such approved agreement except upon an
application of which due notice has been given to the interested parties.
Brussels v. McKillop Telephone System; Blyth v. McKillop. 2 D.LJL
843, 26 OJJL 29.
TEMPERANCE ACT.
Violation of Canada Temperance Act by express company transporting
liquor, see Crimes and Offences.
THISTLES.
TICKETS AND FABBm.
Regulation of street ear fares, see Street Railways.
Regulation of tolls and tariffs, see Tolls and Tariffs; Railway Board.
7J1 TICKETS AND FAEES.
Annotation.
Conditions of ticket. 2 Can. Ry. Cas. 106.
RAILWAY TICKET RIGHT TO STOP OVER.
By the sale of a railway ticket the contract of the railway company is
to convey the purchaser in one continuous journey to his destination ; it
gives him no right to stop at any intermediate station. [Craig v. Great
Western Ry. Co. (24 U.C.Q.B. 509); Briggs v. Grand Trunk Ry. Co. (24
U.C.Q.B. 516) ; and Cunningham v. Grand Trunk Ry. Co. (9 L.C.J. 57,
11 L.C.J. 107), approved and followed; 4 Can. Ex. 321, affirmed.]
Coombs v. The Queen, 26 Can. S.C.R. 13.
[Adapted in Emmerson v. Maddison, 36 N.B.R. 266; applied in Prov-
ident Savings Life Assurance Soc. v. Mowat, 32 Can. S.C.R. 156; explained
Lament v. .Can. Transfer Co., 19 O.L.R. 291.]
RETURN TICKET CONDITION OF IDENTIFICATION NEGLECT TO COMPLY WITH
EJECTMENT FROM TRAIN.
Plaintiff purchased an excursion ticket from Indian Head, N.W.T., to
Toronto and return, one of the conditions, which he signed, being that he
should identify himself to the authorized agent of the railway in Toronto
before he set out on his return journey, and obtain the agent's official
signature, dated and stamped at Toronto. On production of his ticket
he secured his sleeping berth, had his baggage checked and was admitted
to the train and started on his return journey, but neglected to identify
himself as required and was put off the train, after he had refused to pay
his fare, although he offered to identify himself to the conductor. In an
action for damages: Held, that he could not recover. Judgment of
Lount, J., affirmed.
Taylor v. Grand Trunk Ry. Co., 2 Can. Ry. Cas. 99, 4 O.L.R. 357.
TIMBER LICENSE.
Damage to timber licensees caused by fires, see Fires.
TIME TABLES.
See Train Service; Street Railways.
TITLE TO GOODS.
TROVER POSSESSORY RIGHTS WRONGFUL TAKING.
A person possessed of goods as his property has a good title as against
every stranger, and one who takes them from him, having no title in him-
self, is a wrong doer and cannot defend himself by shewing that there was
title in some third person, for as against a wrongdoer possession is title.
[Jeffries v. G.W. Ry. Co., 5 El. & Bl. 802; The Winkfield, [1902] P. 42;
Glenwood Lumber Co. v. Phillips, [1904] A.C. 405, referred to.]
Button v. Can. Northern Ry. Co., 19 Can. Ry. Cas. 72, 23 D.L.R. 43.
TITLE TO LANDS.
Conveyance of lands for railway purposes, see Expropriation.
Jurisdiction of Magistrate's Court and County Court involving title to-
land, see Jurisdiction.
TITLE OF LAXDS. 735
Restriction IB Contract of Sale as to user oi land. 7 D-LR. 614.
SALE or LAXV DEUVEKT OF rosscssiox TO AGEVT.
SL T. Drought an action to recover $3,200 as balance of the purchase
money of certain lands in Quebec sold by him to the X.S. Ry. Co. To
this action the railway company pleaded by temporary exception that out
of 3.307 superficial feet sold to them. SL T. never delivered 710 feet, and
that so long as the full quantity purchased was not delivered they were
not bound to pay. To this plea S. T. replied specially that he delivered
all the land sold to P. B. V.. the agent of the company with their assent
and approbation, together with other land sold to said P.B.V. at the same
time. At the trial it was -hewn that P. B. V. had purchased all the lands
owned by S. T. in that locality bat exacted two deeds of sale, one of
3,307 feet for the railway company, and another of the balance of the
property for himself By the deed to P. B. T. his land is bounded by that
previously sold to the company. P. B. V. took possession and the
railway company fenced in what they required: Held, affirming the judg-
ments of the Court of Queen's Bench for LX. that S. T. having deliv-
ered to P. B. V.. the agent of the company, with their assent and approba-
tion, the whole of the land sold to them together with other lands sold to
the said P. B. T. at the same time, he was entitled to the balance of the
purchase money. Per Tascherean. J.: That all appellants could dairn
was a diminution of price, or cancellation of the sale under arts. 1501.
1502, and that therefore their plea was bad.
Xorth Shore Ry. Co. T. Trudel (1887K 24 CK,J. St.
RIGHT OF PBE-EMTOOS LAXDS KESEBVED AG*icri.Tr*Ai- SETTUE*S.
By 47 Viet. e. 14, subs, (ft, (B.C.*. certain land conveyed to the E. Jt
X. Ry. Co. was. for four years from the date of the Act, thrown open
to the actual "settlers for agricultural purposes," coal and timber land
excepted. H. and W. respectively claimed a right of pre-emption under
this Act: Held, affirming the decision of the Supreme Court of British
Columbia, that the Art did not confer a right of pre-emption to lands
not within the pre-emption laws of the province: that only '^unreserved
and unoccupied lands" came within those laws and the lands claimed had
long before been reserved for a town site: and that the claimants were
not upon the lands as "actual settlers for agricultural purposes,*" but had
entered with express notice that the lands were not open for settlement
Hoggan v. Esqnimanlt A Nanaimo Ry. Co.: Waddington v. Esqnimanlt
ft Xanaimo Ry. Co., 20 Can. S.CJR. 235.
[Affirmed in [1894] A.C. 429: considered in Esqnimaoh. ete_ Ry. Co.
T. McGregor, 12 B.C.R. 270; referred to in Esquimault, etc.. Rj. Co. T.
Fkldkk, 14 B.C.R. 429.]
RIGHTS OF HUE-EMPTION.
Where the appellant claimed as "an actual settler for agricultural pur-
poses." that by s. 23 of the British Columbia Act. 48 Viet. c. 14, he wa*
entitled to a right of pre-emption over certain hinds included in a gov-
ernment grant for the purpose of the respondent railway, and it appeared
that the land in question had. prior to the Act. been reserved as a town
site: Held, that a settler means a person entitled to record land nnd-r
the Land Act. 1875. by reason of compliance with its provisions: that the
Act did not apply to reserved binds: that under 47 Viet. e. 14. no new
right of pre-emption was given, nor was the word "settler 7 * used in any
736 TITLE OF LANDS.
new sense. Accordingly, the appellant's claim failed, since he was not a
settler in the only sense known to the law of the colony.
Hoggan v. Esquimault & Nanaimo Ry. Co., [1894] A.C. 429.
LOCATION OF PERMANENT WAY FENCING LAYING OUT OF BOUNDARIES.
A railway company purchased land from P., bounded by a non-navigable
river, as "selected and laid out" for their permanent way. Stakes were
planted to shew the side lines and the railway fencing, at the points in
dispute, was placed, here and there, above the water-line, although the
company could not have the quantity of land conveyed unless they took
possession to the edge of the river. P. remained in possession of the strip
of land between the fence and the water's edge and of the bed of the stream
ad medium filum, and, after the registration of the deed to the company,
sold the rest of his property including water rights, mills and dams con-
structed in the stream to the defendant's auteur, describing the property
sold as "including that part of the river which is not included in the
right-of-way, etc." The plaintiffs never operated their line of railway,
hut, immediately on its completion, under powers conferred by their char-
ter, and the Railway Act, 14 & 15 Viet. c. 51, leased it for 999 years to
another company and the railway has been ever since operated by other
companies under the lease. On appeal the Supreme Court: Held (1),
that the description in the deod to the railway company included, ex jure
naturae, the river ad medium filum aquae as an incident of the grant and
that their title could not be defeated by subsequent conveyance through
their vendor and warrantor, notwithstanding that they may not have
taken physical possession of all the lands described in the prior convey-
ance. (2) That the possession of the strip of land and the waters and
bed of the river ad medium filum by the vendor and his assigns, after
the conveyance to the company, was not the possession animo doniini
required for the acquisitive prescription of ten years under art. 2251 C. C.
(Que.) but merely an occupation as tenant by suffrance upon which no
such prescription could be based. (3) That the failure of the vendor to
deliver the full quantity of land sold and the company's abstention from
troubling him in his possession of the same could not be construed as
conduct placing a construction upon the deed different from its clear
and unambiguous terms or as limiting the area of the lands conveyed.
(4) That the terms of the description in the subsequent conveyance by
P. to the defendant's auteur were a limitation equivalent to an express
reservation of that part of the property which had been previously con-
veyed to the company and prevented the defendant acquiring title by ten
years' prescription, and further that he was charged with notice of the
prior conveyance through the registration of the deed to the company.
(5) That the acquisitive prescription of thirty years under art. 2242
C. C. (Que.) could not run in favour of the original vendor who had
warranted title to the lands conveyed to the company because, after the
sale, his occupation of the part of the property the possession of which
he had failed to deliver, was merely on suffrance. The judgment of the
Quebec Court of Kings Bench, appeal side, was reversed on the questions
of law as summarized. On the question raised as to the right of action
to recover the lands and for damages caused to the permanent way, it
was held, affirming the judgment appealed from, that the lease to the
companies which held and operated the railway, amounted to an emphy-
TITLE OF LAXDS.
tewtie lease *"' the domtiime ntiV aad all 'W 1 pfaiaiifiV rights in
respect of the raflwar reserriag. however. the dnatiiae direct.
Ma*awippi Valley By. COL T. Beed. 33 Cam. S.C-R. 457.
[Applied ia Atty.^eaeral of Qaebee T. Fraser, 37 Cam. S.C-R. -590-.
Atry^Geaeral of Qjaebee T. Scott. 3* Caa_ S.C.B. 14; relied am im Tamgaay
T. Caaadiam Eke. light Co- 40 pu. &.CLB. *.]
ACT TO BMH.WAT Pjutrmo:* or
By agjuamimt throagh eorrespamdeaee tie G. T. B. Co. was to
for a triaagalar piece of lamd offered for sale by the Omtario Gorerm-
moemt. eomtaimimg 19 acres amd Manner half to the C-~P. B. Cbu which woald
mot temper. The drruiom was to be mode aceordiag to a plam of the block
of lamd with a lime drawm through the cemtre fromi east to west, the
C. P. B. Co. to hare the mortherm half. The G. T. B. Co. acqaired the
had. bmt the Gorenumeat resered fromi the gramt two acres im the
northerm half. Im am actiom bj the C. P. R. Co. for specific perfonmure
of the agnemwmt: IbU, mmmmmmr. the jndgmwnt of the Comrt of Appeal.
C. P. BT. Co. T. G. T. BT. COL. 14 OmdL I^B. 41. Harlemmam amd Doff. J J_
dtuMtims, that the CL "p. B. Co. was emtitkd to ome-half of the lamd
aetmmDr acamired by the G. T. B. Co. amd mot omlr to the balamce of the
mortherm half a* narked om the plam. The Comrt of Appeal directed a
iifciumu. to the Haster im ca^e the parties could mot agree om the ande of
diroiom: Held, that saeh referemce was mmmeessarr amd the jmdgawmt
appealed agaimst shomhl be Taried im this respect.
Gramd Trmmk BT. Co. T. Cam. Pac. BT. Co. 39 Cam. SLC.B.
DC THE X.W. TrKCTTOWX^ MlXES - BE^CXTATiOX OT G>A3CT
JLXDS ACT.
BT the Act 53 Viet. c. 4. the $appliamt raDwaj eomtpamr. amkoa* others.
was amthoraed to reeeire a gramt of Domumiom lamd? of &.400 acres far
each mule of it* railway, whem coAitrmcted. Umder the prorisiomc of s. 2
the gnats were to be made im the proportiam amd pom the eomditiom$
fixed br the order-im-commcfl mode im respect thereof, amd. except as to
smeh comditioM.. the said gramts shomhl be free gramts. subject omhr to
the paTawmt br the gramtees. respertJTelT. of the cast of sorrer of the
hnd& amd imeidemtal expem^^ The Act cam* imto force om the Ifith
of ilay. 1:890. Om that date there were certain regmJatiams im force, mnde
om the 17th September. 1S. mmder the prorKioms of the Domumiom Lamd?
Art. which pnnided that all patemts for lamds im Maaitob* amd the Xorth-
west Territories shomhl nserre to the Crowm all mumes amd mumerak which
usht he fommd to exist im such lamds. together with the mules of railway
comstrmeted. There was fall power to work the awe. Orders im coorneQ
amthorinmg the iasme of patemu. for the lamds im qmestiom. to the smppli-
amt railway comipaay were passed fromm tnae to tuae. aecordimg to the
mmmibrr of mules of railway eomstrmcted. There was mo lefeiemue im the^
orders to the regmlatioms respectimg the reserratiom of mume amd minerals
of 17th Septeamber. 1889: UefcL Aat the regnlatioms Rserrimg mnmes amd
rimerah applied to all gramts of buds mude mmder the prortaoms of the
Act. S3 Viet. c. Si. amd that the omussiom of referemce to srnch regmlatioms
im the orders-im-commcil amthorizimg patemts to be iamtd did mot altar
the posatiom of the svppliamt comipamy mmder the biw. Semtble. that where
Paiiiamatet gramts a smbsidy of binds im aid of the eomstroctiom of a rail-
way. amd mothimg miiai is stated, tb* graat is ande amder ordiaary coa-
ditioms. amd sahjeet to existiag regnlatioms comcermimg sach lamds.
Gafejary t Edmumtom By. Co. T. The Kimg. $ Cam. Ex. S3.
[nl im 33 Cam. 8JCJL <73; rerersed im [1904] A.C 7*5.
Cam. By. I- Dig. 17.
738 TITLE OF LAKDS.
PROVINCIAL GOVERNMENT GRANT OF LAND VALIDITY.
The Vancouver Island Settlers' Rights Act, 1904, defines a settler as
a person who, prior to the passing of the British Columbia Statute, c.
14 of 47 Viet., occupied or improved lands situate within that tract of
land known as the Esquimault and Xanaimo Railway land belt with the
bona fide intention of living thereon, and s. 3 of said Act provides that
upon application being made to the Lieutenant-Governor-in-council within
twelve months from the coming into force of the Act, shewing that any
settler occupied or improved land within the said land belt prior to the
enactment of said c. 14 with the bona lide intention of living upon the
said lands, accompanied by reasonable proof of such occupation or improve-
ment and intention, a Crown grant in fee simple in such land shall be
issued to him or his legal representative, free of charge and in accordance
with the provisions of the Land Act in force at the time when said land
was first so occupied or improved by said settler. The lands within the
said belt had been conveyed by the province originally to the Dominion
for the purposes of the railway, and by the Dominion transferred to the
railway company, which in giving grants or conveyances of portions there-
of, reserved the minerals. Defendant, who held from her predecessor in
title, applied for and obtained a grant under said s. 3: Held, on appeal,
that the railway company was entitled to be heard upon such application.
Held, further, that a grant issued without such opportunity being given
to the railway company to be heard on the application, was a nullity, and
that the defendant should be restrained from making use of it. Held,
further, that one of the conditions in the statute was that the claims of
applicants thereunder should be passed upon by the Lieutenant-Governor-
in-council, and the absence of compliance with such condition was fatal,
but held, further, that in the circumstances here the defendant should lie
permitted, on giving notice to the railway company, to proceed with her
application and that the Crown need not be a party to the action.
Esquimault & Nanaimo Ry. Co. v. Fiddick, 14 B.C.R. 412.
SUPERSEDING GRANT OF RAILWAY LANDS SETTLERS' RIGHTS ACT.
The British Columbia Vancouver Island Settlers' Rights Act, 1904,
directed that a grant in fee simple without any reservations as to mines
and minerals should be issued to settlers therein defined, and thereunder
a grant was made to the appellant of the lot in suit. By an Act of the
same Legislature in 1883, land which included the said lot had been
granted with its mines and minerals to the Dominion Government in aid