of the construction of the respondents' railway, and in 1887 had been
by it granted to the respondents under the provisions of a Dominion Act
passed in 1884: Held, that the Act of 1904 on its true construction legal-
ized the grant thereunder to the appellant, and superseded the respondents'
title. Held, also, that the Act of 1904 was intra vires of the local Legis-
lature. It had the exclusive power of amending or repealing its own Act
of 1883. The Act, moreover, related to land which had become the prop-
erty of the respondents, and effected a work and undertaking purely local
within the meaning of s. 92, subs. 10 of the B.N.A. Act. 12 B.C.R. 257,
reversed.

McGregor v. Esquimault & Nanaimo Ry. Co., [1907] A.C. 462.

[Commented on in Burrard Power Co. v. The King, 43 Can. S.C.R. 56;
Esquimault & N. Ry. Co. v. Fiddick, 14 B.C.R. 413.]

MEANING OF WORD "LAND" RESERVATION OF MINERALS.

The E. & N. Ry. Co. executed an agreement to sell certain la vis to H..



TITLE OF ULXDSL 739

and paid the purchase
d to him which he refused to accept
as it iBteiied the minerals on the mad, while the agreement was for an
sale. In an action by H. for specific performance of the
the company contended that in its conveyances the word "land"
was always used as meaning land minus the mineral?: Held, irieimug
the jndfcmnrt of the Supreme Court of British Columbia "6 B.C.R. * ".
Tasehereau, J_ dissenting, that the contract for sale being expressed in un-
BMM^mmi language, and H. having had no notice of any reservations, it
could not he rescinded on the ground of mistake and he was entitled to a
decree for specific performance.

Hobbs T. Esquimanlt Jk Xanaimo Ry. Co_ 29 Can. S.CJL 450.
[Belied on in Raymond I_ t I. Co." T. Knight Sugar COL, Aha. LJL
1*3-1

EXBCCTHK AGAINST LJLSDS EQUITABLE 1TTJESEST ElTBCT OF ECBCCT1OX

Lc&xn TrTLis ACT.



Plaintiff sold certain land to defendant SL mder agreenkgnt for
aheli he becanw entitled to a transfer upon payment of the agreed pur-
chase price and compliance with stated coaditioa& SMbfeoventrjr the
American Abell Co. recovered a jod*ment a*atass S_ and registered exeev-
tion in the nsnal form against his land. :<_ after svch ne^i-tration. as-
agned his whole equitable interest ia such land to the defendant TJJS. The
k*gal title during this time remained in the plaintiff. la an action hj
plaintiff under the contract, the American Abell Co. claimed a. rigfct to
intervene as haring an interest in the land under their writ of execution :
Held. |1 that, having regard to the provisions of the Land Titles Act, it
was evideathr the intention of the Legislature that writs of execution
should hind onhr the interests of registered owners of hind, and that the
execution did not bind the equitable interest of the defendant S. That
no lien is created br an execution against bud. onhr such rights being ac-
quired as are given bjr the Land Titles Act, and which are not available as
against equitable interests.

Can. Pac. Er. Co. T. Sifeer. 12 Can. Rr. Ca*. IfiO. 3 SJ-BL 1*2.

PtrCHJtE5 WTTHCCT soncc ^Prwjc HICBWAT
LJLXV TITLES ACT.



On the 8th October. Vincent signed power of attorney authorizing the
execution and registration of a plan of land* including two lots owned by
him. ihi ing, a street which occupied 33 feet in width of his two kite.
On the 9th October, he himself agreed to sell the two lots to the Grand
Trunk Pacific without any reservation of any *tret or right-of-way over the
33 feet mentioned in the power. Vincent's attorney, without notice of the
ale to the Grand Trunk Pacific, executed a plan which was executed by
others shewing the street, and the plan was registered without any of the
signers of the plan being aware of the agreement with the Grand Trunk
Pacific. The street shewn on the plan did not communicate at either end
with, nor was there any outlet anywhere to. any highway. In aa action by
the Grand Trunk Pacific against Vincent for specific pi if manure of the
contract and against the other property owners for the cancellation of that
portion of the plan affecting the tro lots: Held, L. A parcel of hind n**d
by the public, terminating at one end as a cul-de-sac, can be a public high-



740 TITLE OF LAXDS.

way. [Bourke v. Davis, 44 Ch.D. 110, 62 L.T. 34, 38 W.R. 167.] But a par-
cel of lands closed at both ends cannot be a public highway: [Attorney-
General v. Richmond Corp., 89 I,.T. 700, 68 J.P. 73, 2 L.T.R. 628, 20 T.L.R.
131 ; Bailey v. Jamieson, 1 C.P.D. 329, 34 L.T. 62, 24 W.R. 456.] 2. The reg-
istration of a plan approved by the municipality in which the subdivided
land is situate which shews as a street a parcel of land closed at both ends
and from which there is no outlet to any ordinary highway, does not consti-
tute the parcel a highway, even though sales of land have been made accord-
ingly to the registered plan. Such a street becomes merely a private right-
of-way. Land Titles Act, s. 43 (g). The land mentioned in any certificate
of title granted under this Act shall by implication and without any special
mention therein, unless the contrary is expressly declared, be subject to
. . . (g). Any right-of-way or other easement granted or acquired under
the provisions of any At or law in force in the province. 3. The mere right
to a "way of necessity" until used or otherwise denned and located, cannot
be said to apply to any particular place suggested for it. 4. The last
clause of s. 188 of the Railway Act is intended to protect the railway coin
pany upon any agreement made by it with any owner, no matter what,
change of title may take place within a year and whether such change be
with or without notice of the company's claim, and the railway company
may enforce such an agreement as against any person, although he may be
a purchaser for value without notice. 5. The words "set out and ascer-
tained" (used in s. 188), are not restricted in their meaning to the filing of
a plan, profile and book of reference by the railway company, which is neces-
sary before expropriation proceedings may be taken; and where a railway
company obtained an order of the Board authorizing the construction of a
railway according to a plan attached to the order and shewing therein that
portion of the land which was the subject of a contract made within one
year before the order and which order and plan were registered within a
year. 6. That the lands required were by such order and plan sufficiently
"set out and ascertained" within the meaning of s. 188, and that the con-
tract could therefore be enforced as against the subsequent purchasers for
value without notice. Vincent's agreement for purchase of land provided
that conveyance should be "subject to any streets or right-of-way that
might thereafter be laid out on said lands in order to provide exit to streets
south and east of the property." No right-of-way was laid out and no
definite locality was determined for such right-of-way.' 7. That this clause
did not make the title subject to the implied reservation contained in s.
43 (g) of the Land Titles Act. The provision of that section is limited to a
right-of-way already definitely located and fixed in some way both as to
place and as to persons entitled to it.

Grand Trunk Pacific Ry. Co. v. Vincent, 12 Can. Ry. Cas. 465, 2 Alta. L.U.
393.

CONVEYANCE OF LANDS AFFECTED BY MORTGAGE.

The F. & St. J. Bridge Co., operating a work for the general advantage of
Canada, and to which the Railway Act applies, obtained under a special
Act a loan of .$300,000 from the Crown, for which a mortgage was duly cre-
ated under the said Act. Subsequently the company, under the pretence of
disposing of surplus land, sold some of the land so mortgaged to one of the
directors of the company. Held, that nothing passed under the said con-
veyance.

Hilyard v. The King, 16 Can. Ex. 36.



TOLLS AXD TARIFFS. 7rtl

TOLLS AHD TARIFFS.
A. Froght Rates; IB




JuTJadJftinu of Railway Board. **e Railway Board.

Lien for freight charges. * Carriers of Goods.

Regulation of shipping system as affecting: tolls and tariffs, see Gum.

Misrepresentation rates, see Fraud and Deceit.

Regulation of telegraph rate*, see Telegraph*.

Regulation of telephone rates, see Telephones.

Passenger tickets, see Tickets and Fares.

Continuous route, see Interchange of Traffic.

OUett railway fares, see Street Railways.



Interchange of Traffic between steamship and railway companies as con-
stituting a continuous route. 3 Can. Ry. Gas. 199.

Jurisdiction of Board respecting- joint tariffs in connection with inter-
national through traffic. 12 Can. Ry. Cms. 66.

Discretion of carriers to fix rates to Beet competition of other transporta-
tion agencies or markets. 13 Can. Ry. Cas. 182.

Regulation of rates and tariffs on through traffic. 13 Can. Ry. Cas. 55C.

Business and residential tolls. 18 Can. Ry. Cas. 525.

Equalizing of rates to meet business conditions. 18 Can. Ry. Gas. 357.

Mining-in-transit tolL 18 Can. Ry. Cas. 414.

Autbority of station agent to create special tolls. 19 Can. Ry. Cm*. 165.

A. Freight Rates; In General.
DISOUMI^ATIOS LriiBEK FBonrcrs.

Upon a complaint of discrimination on lumber, ties and poles made from
edar it appeared that an increase had been made in the rates on cedar
products without any material change in tW rate on common lumber and
similar products. This increase mas made 3y the railway company to re-
tard the shipment of cedar products required for their own use: Held,
a. discrimination within the meaning of s. 253. >ul*s_ i. The railway com-
pany were ordered to cease from levying rates on cedar products in excess of
the rates on other descriptions of lumber and their products. -Common
carriers in making rates cannot arrange them from an exclusive regard to
their own interests, but must have respect to the interest of those who may
hare occasion to employ their services and must subordinate their own in-
terests to the rules of relative equality and justice."

ScobeU T. Kingston Pembroke Ry. Co. {Cedar Lumber Products Case .
3 Can. Ry. Cas. 41i

[See ako Reynolds v. Western X.Y. A Penn. Ry. COL. 1 I.C. Rep. 6S5: re-
ferred to in Rideaa Lumber Co. T. Grand Trunk and Can. Pac. Ry. Cos., 8
Can. Ry. Cas. 339.]



742 TOLLS AND TARIFFS.

CARLOAD LOTS DISCRIMINATION OILED CLOTHING.

Oiled clothing when carried in carload lots is not given a carload rate
in the Canadian Freight Classification. Upon an application by the
T.O.C. Co. for a carload rating it appeared that carload shipments had been
made from Toronto to Halifax for fishermen's use, and it is alleged that
shipments might also be made to the Canadian North West for ranchers'
use, if the application were granted: Held, that although the discrimina-
tion involved in the difference between C.L. and L.C.L. rating has received
tacit assent, a shipper has riot thereby the right to demand a lower rate 011
carloads, unless possibly he can shew that the carload rate demanded would
pay reasonably for tht service and that a refusal would injure his business.
Upon the evidence a third class rate for carloads of not less than 20.000
pounds from Toronto to Halifax, Winnipeg and Calgary and other points
reached by applicants was ordered.

Tower Oiled Clothing Go's. Case, 3 Can. Ry. Cas. 417.

SPECIAL CONCESSION SUBSEQUENT INCREASE.

A manufacturing company was granted a special low freight rate for the
carriage of logs to its factory, upon condition that this raw material, when
manufactured into finished product should be handed over for carriage to
the same railway. After several years, the factory having in the meantime
become sufficiently prosperous to pay a more suitable rate, the rate was in-
creased from 3 cents per 100 Ibs. to 4 cents for the same weight. Upon ap-
plication by the company to the Board to have the old special rate re-
stored: Held, that since the increased rate is neither unjust, unreasonable
nor contrary to some provisions of the Railway Act, the application must .
l>e refused.

United Factories v. Grand Trunk Ry. Co.. 3 Can. Ry. Cas. 424.

CONCESSIONS IN BATES CONSTRUCTION MATERIAL MACHINERY OF INDUS-
TRIAL CORPORATIONS.

Certain railway companies, members of the Canadian Freight Assn., have
been granting a reduction of 25 per cent in freight rates on the material for
construction and machinery for equipment of new industrial plant. Leave
is now asked from the Board to authorize the continuance of these reduc-
tions: Held, that although the Board is prepared to give due effect to subs.
4 of s. 275 of the Railway Act, 1903, it must have a separate and distinct
application in such case, so as to judge of the eil'ect of its order upon other
industries, shippers and dealers. Application refused.

Re Canadian Freight Assn. and Industrial Corporations, 3 Can. Ry. Cas.
427.

FREIGHT RATES ON FRUIT CLASSIFICATION CHARGES FOR ICING IN TRANSIT.
On a complaint by the Association, (1) that freight rates on fruits are
Unreasonable and excessive; (2) that the charges for icing in transit are
too great. (1) By mutual agreement between the complainants and the
railway companies, certain modifications were made in the classification and
approved by the Board: (a) Apples in boxes in less than carloads, from
second to third class, (b) Pears in boxes and barrels, L.C.L. , from first
to third class, and in carloads, from third to fifth class; also the following
commodity rates, (c) On fresh fruits (small), from the fruit districts to
points in Eastern Ontario, Quebec, and the Maritime Provinces, fresh fruit
shall be carried at fourth class rates in carloads of not less than 20,000
Ibs., instead of third class rates, and at second class rates in L.C.L., of 10.-
000 Ib. and over instead of first class rates; (d) And from points in On-
tario and Quebec to Winnipeg, Portage la Prairie, and Brandon, at fourth



TOLLS AXD TARIFFS. 743

class rates in ear loads of not less than 20.000 los.. instead of third class:
Held (2*. that the present system of making fixed charges for icing cars,
irrespective of the actual cost of such service, is not based on sound princi-
ple, and most be discontinued; that the actual cost of the ice and the plac-
ing thereof in the cars should not be exceeded. Pending a decision of the
Board as to a reasonable charge, a charge of not more than SioO per ton
of 2JOOO Ibs. on the actual weight of the ice supplied was authorized.

Ontario Fruit Growers' Assn. v. Can. Pac. Ry. Co. (Fruit Growers'
Case), 3 Can. Ry. Cas. 430.

KATES OX SPLIT PEAS EXPORT RATES RATES OS GRAIX.

Until 27th October. 1902. split peas for export were carried at the rate for
grain products (flour, rolled oats. etc.). A milling company in Port Huron
complained to the Inter-State Commerce Commission that railways in
Michigan charged a higher rate, and the rate was then advanced on the
Grand Trunk and other railways in Canada. On local shipments the rate
on split peas is the same as the rate on flour. The Pea Millers* Assn. com-
plained of the increased rate and consequent loss of the British market:
Held, that the former basis of rates must be restored.

Pea Miller*' Assn. v. Canadian Railway Co's. (Pea Millers Case), 3 Can.
Ky. Cas. 433.

DlSCWJIIXATIOX BETWEEN SHIPPERS RATES O5T COAL.

Application was made by the Grand Trunk Ry. Co. for authority under
subs. 4. s. 275 of the Railway Act, 1903, to reduce the rate on bituminous
coal to Cobonrg used for manufacturing purposes by lOc. per ton below the
published rate, as they have been in the habit of allowing in the past, on the
ground that certain manufacturers were unable to pay the high rate and
carry on business successfully: Held, that the reduction could not be
allowed. The allowance of a reduction in the freight rate on any article of
merchandise to one class of shippers, and the refusal of the same rate to an-
other class, is unjust discrimination, and forbidden by ft. 252. [Castle v.
B. t O. Ry. Co.. 8 I.C. Rep. 333, approved.]

Re Grand Trunk Ry. Co. (Manufacturers' Coal Rates Case), 3 Can. Ry.
DM. 438.

[Referred to in Brant Milling Co. v. Grand Trunk Ry. Co.. 4 Can. Ry. Cas.
259; foUowed in Manitoba Dairymen's Assn. v. Dominion, etc.. Express Co..
14 Can. Ry. Cas. 142. 7 DXJL 868.]

ARBITRARY RATES BRAXCH AXD MATS LTSE RATES COAU

Under certain conditions rates to a point on a branch or lateral line may
be higher than to points on the main line, though at a less distance from the
junction point: but such rates must not be unreasonable or disproportion-
ately higher than to nearer points on the main line. The plaintiff com-
plained that the rates on coal to Almonte from the Niagara and Detroit
frontiers were unreasonably high as compared with the rates to Carleton
Junction, Ottawa, and adjacent stations. The rate to Carleton Junction.
Ottawa, and adjacent stations is $2 per ton from the Niagara frontier, and
32^25 from Detroit, while the rate to Almonte is 40e- higher, points on the
lateral line from Carleton Junction being charged on arbitrary rate above
the rate to Carleton Junction: Held, that circumstances warrant a higher
rate to Almonte than to Carleton Junction and Ottawa; but as to the arbi-



744 TOLLS AXD TAKIFFS.

trary rate to Almonte on 10th class traffic was only Ic. per 100 Ibs. (20c.
per ton) it must not be exceeded on coal between the same points.

Almonte Knitting Co. v. Can. Pac. Ry. Co. and Michigan Central Ry. Co.
(Almonte Knitting Co. Case), 3 Can. Ry. Cas. 441.

[Followed in Malkin & Son v. Grand Trunk Ry. Co., 8 Can. Ry. Cas. 183;
Can. Portland Cement v. Grand Trunk, etc., 9 Can. Ry. Cas. 200; Frederic-
ton Board of Trade v. Can. Pac. Ry. Co., 17 Can. Ry. Cas. 430; Huntin-
Merritt Lumber Co. v. Can. Pac. and British Columbia Elec Ry. Cas. 20
Can. Ry. Cas. 181.]

TOLLS SIMILAR CIRCUMSTANCES REDUCTION FOR CARTAGE SPECIAL TAR-
IFFS.

The Railway Act, 1003, requires equality in the tolls charged under sub-
stantially similar circumstances and conditions, and forbids discrimination
between individuals, persons, companies and localities. S. 252. No varia-
tion from the authorized tariffs of tolls can be made unless under circum-
stances or conditions specially provided for in such tariffs or by special
tariffs of general application and not discriminating between different
localities. Ss. 261-262. For many years prior to 1004 an allowance was
made by the railway company to the owner of a mill distant one mile from
the nearest railway station, for the cost of cartage of Hour and feed shipped
from his mill by the company's railway to distant points. This allowance
was withdrawn after the Railway Act, 1003, came into force. The mill own-
er applied to have the allowance restored, alleging that its continuance was
necessary to the existence of his business: Held, that the application either
for a continuation of the allowance previously made, or for a change in the
authorized tariffs of tolls, in favour of the applicant alone, must fail.
[Manufacturers' Coal Rates Case, 3 Can. Ry. Cas. 438, referred to; Stone
'v. Detroit, etc., 3 I.C. Rep. 613; Hazel Milling Co. v. St. Louis, etc., 5 I.C.
Rep. 57; Re Division of Joint Rates, 10 I.C. Rep. 681, followed.]

Brant Milling Co. v. Grand Trunk Ry. Co. (Brant Milling Co's. Case.),
4 Can. Ry. Cas. 250.

[Referred to in Crow's Nest Pass Coal Co. v. Can. Pac. Ry. Co.. 8 Can. Ry.
Cas. 33; followed in Montreal Produce Merchants v. Grand Trunk, etc.,
9 Can. Ry. Cas. 232; Michigan Sugar Co. v. Chatham, W. & L. E. Ry. Co.,
11 Can. Ry. Cas. 354.]

RATES ON STONE MILEAGE BASIS EXISTING INDUSTRIES.

In the making of rates for the carriage of freight the question of the
distance of haul while important to be considered is in many cases a
minor consideration. Where large quarries have been established and
capital invested for many years upon the faith of law rates for the
carriage of stone being given; upon application by the railway companies
for an increase of five cents a ton within certain areas, an application
was made by the operators to establish new rates upon a mileage basis
for points within a radius of fifty miles from the principal market:
Held, that as the adoption of such a rate would destroy many existing
industries, and in no way reduce the price of stone to the consumer, but
enure very largely to the benefit of the applicants, or some of them, the
application should be refused, and a new scale of rates as recommended
by the Chief Traffic Officer based upon the existing system was approved.

Doolittle & Wilcox v. Grand Trunk & Can. Pac. Ry. Cos., (Stone Quar-
ry Rates Case), 8 Can. Ry. Cas. 10.

[Followed in Saint David's Sand Co. v. Grand Trunk and Michi-iin
Central Ry. Cos., 17 Can. Ry. Cas. 279; Hagersville Crushed Stone Co.



TOLLS AND TARIFFS. 745

T. Michigan Central RT. Co^ 22 Cut. Ry. Cas. 84: distinguished in Pro-
vincial Stow 4 Supply Co. T. Can. Pae. Ry. Cou 22 Can. RT. Cas. 411.

FREIGHT KATES SHOBT A3 10X6 POLES DtSOUMIXATIOX SPECIAL, LO-
CAL AXD joorr TAMPTB.

On a complaint to the Board of unjust discrimination between the
rat** OB telegraph, telephone and trolley poles and those OB lumber and
other forest products: Held, 'I* that the rates chared on poles loaded on
one ear shall not be greater than those on common lumber as provided in
the special, local and joint tariffs of the railway companies. |2t That
on poles to long as to require more than one ear for their earriase the
railways be authorized to charge 20 per cent higher than for one car.
(3) That poles may be exported by Canadian railway companies with the
concurrence of their United States connections under joint rail rates
for general traffic at the lumber classification. [Scobell T. Kingston i
Pembroke RT. COL, 3 Can. RT. Cas. 412. referred to.]

Ridean Lumber Co. et aL T. Grand Trunk and Can. Pac. Ry. Cos_ 8
Can. Ry. Cas. 339.

Exrorr TRAFFIC TESMISAL CHAKES COMPECTTIOS BETWEEN OCEAS roars

UxKEASoxABtEjTESs AXD C~XJT;ST DXSCKDEESATIOX REFVSDS.
Application (li that the exporter of cheese in Montreal should be
placed upon as favourable basis as to terminal charges at the port of Mon-
treal on his export traffic as his competitor west of Montreal. (2i that
freight tolls on cheese should be put on a parity with those on bacon.
(3) complaining of alleged advances in freight tolls. It appeared that
cheese may be shipped direct to transatlantic ports from Ontario point*
via Montreal on a joint rail and ocean bill of hiding, or shipment might
be made on a separate rail and ocean bill of lading to Montreal for stor-
age and subsequent export. In the first case cheese shipments are switched
direct to the steamship piers, the wharfage and Port Warden's fees being
absorbed by the railway companies to meet the competition between Cana-
dian and United States ports and carriers. In the second case the cheese
is carted from the cars to the warehouse of the exporter and again from
the warehouse to the steamship piers. The Montreal exporter is charged
for inward cartage. Le_ from cars to warehouse, wharfage and Port
Warden's fees, these two hitter charges are absorbed in the case of his
western competitor: Held. (1) that the Montreal exporter should not
be placed upon a more favourable basis than his western competitor. (2t
That no comparison could be made between switching charges and in.
ward cartage charges in order to reduce the hitter, these cartage charges
not ahtaii to be unreasonable and unjustly discriminatory: the portion
of the complaint as to inward cartage charges should be dismissed. (31
But held, also that so long as the port charges are absorbed on ship-
ments on joint rail and ocean bills of lading these charges should also
be absorbed on shipments on separate rail and ocean bills of lading for
subsequent export, as the services are identical in each ease, and that a
tariff embodying these provisions should be fifed. (4) That the application
to put cheese and bacon on a parity should be dismissed, this being a phase
of the competition of markets, and the railway companies hare it in their
discretion whether or not to make tolls to meet the competition of markets,
-"hat the complaint of the advance in freight tolls should be dismissed,
the cartage charges being really attacked and it has been shewn to be due
to increased cost of service which the shipper or consignee does not pay
entirely but a portion is paid by the railway companies. (6 1 That the ap-
plication for refunds should be refused, being only allowed when provided



74G TOLLS AND TARIFFS.

for in the tariffs, and the Board has no power of retroactive action. [Brant
Milling Co. v. Grand Trunk Ry. Co. (Brant Milling Co.'s Case), 4 Can.