Grand Trunk Pacific Ry. et al. Cos.. 45 Can. S.C.R. 346, 13 Can. Ry.
Cas. 162; Boland v. Grand Trunk Ry. Co., 18 Can. Ry. Cas. 60; Kammerer
v. Can. Pac. Ry. Co., 21 Can. Ry. Cas. 74, followed.]
Beverly Coal Mine and Humberstone Coal Cos. v. Grand Trunk Pacific
Ry. Co., 23 Can. Ry. Cas. 64.
SPURS LOCATION CONSTRUCTION FACILITIES ACCOMMODATION.
Where the trackage for siding facilities offered by a railway company
BRAXCH LE\E8 AXD SIDIXGS. 63
wfll onry sore a particular site but does not give suitable accommoda-
tion for the warehouse of the applicant. the railway company may be
ordered to provide siding facilities for the *ite selected by the 'applicant,
but at no greater cost than if these facilities were furnished at the site
proposed by the railway company.
Wbiferille Fruit Co. v. Dominion Atlantic By. Co_ 24 Can. Rv. Cas. U.
IXDCSTCUU. STUB HIGHWAY REMOVAL.
An industrial siding crossing a highway should only be removed by
direction of the Board and not upon notice given by the council of the
municipality controlling the highway. Toe terms on which it mav
erofls the highway were fixed by the Board.
[Shragge v. City of Winnipeg. 4 Can. Ry. Cas. 61, followed.]
Grand Trunk Ry. Co. v. Cobourg. 5 Can. Ry. ta*. SS.
STUBS REMOVAL Nonet APPLICATION 10 BOABD.
A municipality, on giving notice, may require a spur to be removed.
If there are reasons why this should not become operative the railway
company may apply to the Board to stay the effect of the notice.
Shragge v." Winnipeg. 4 Can. Ry. Cas/6L.
Einrxcs LssTAiiATiox JCBISWCTIOX AGSEEMEXT FACIIJTIES.
The Board has no jurisdiction under s. 2S4 of the Railway Act. 1906, to
direct that facilities, such ae sidings, should be installed between stations,
and the fact that such siding has been installed by agreement between
the parties does not extend the powers of the Board.
[Kammerer v. Can. Pac. Ry. Co_ 21 Can. Ry. Cas. 74. followed.]
New Minas Fruit Co. v. Dominion Atlantic Ry. Co_, 24 Can. Ry. Cas.
Cbsrsiwrenox OF STTB FOB SHTPPEB EXPENSE DETEBMTSED BT BOABD.
When an order is made by the Board for the construction of a spur
line for the accommodation of a shipper, under s. 226 of the Railway
Act. 1906. the question as to payment of expenses should be dealt with
by the Board not only the question as to work or practices which may in
the future mean expenditure, but also the disposition of the resultant
Re S. A. Hamilton Co. and Can. Pac. Ry. Ox. 2S W.L.R, 109.
SPCBS IXDCSIKIAI. OB Bcscress TEAM TSACKS GexttAL IXTEBSWITCH-
General Order Xo. U of the Board, dated July S, 190S known as the
General Interswitching Order, was confined in its operation* to indus-
trial or business spurs, and did not extend to team tracks which form
part of a railway's terminals.
Re Interswitching Service. 24 Can. Ry. Cas. 324.
rcHxsG GESEBAL, OBDEBS Xos. 230 AXD 252.
In view of the fact that interswitching from and to private spur* has
been freely accorded in the past by the carriers to one another, those pro-
visions of General Order No. 230. issued pursuant to the judgment of
May 15. 191S. which were designed to protect the initial carrier in its
enjovment of the line haul, were amended by General Order No. 252,
so as to apply to team tracks only, and not to be applicable to shipments
interswitcLed from private spurs.
[Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. and London (London
Interswitching Case), 6 Can. Ry. Cas. 327, followed.]
Re Interswitching Service, 24 Can. Ry. Cas. 324.
A. Construction and Maintenance.
B. Injuries on Bridges.
See Highway Crossings.
Bridge as a means of farm crossing, see Farm Crossings.
Statutory height of bridges and penalties for violation, 4 Can. Ry.
Bridges at Highways, 1 Can. Ry. Cas. 497.
A. Construction and Maintenance.
CANAI, BRIDGE AGREEMENT BETWEEN GROWN AND COMPANY AS TO CON-
The suppliants' predecessor in title applied to the Minister of Railways
and Canals for leave to construct a railway bridge across the Otonabee
River, undertaking at the same time to construct a draw in such bridge
in case the Crown should at any time thereafter determine it to be
necessary for the purposes of navigation. By order in council, and
agreement made in pursuance thereof, between the suppliants' predecessor
and the Crown, permission was given to the former to construct a bridge
across the river, on their undertaking to construct at their own cost a
swing in the bridge, should the Government at any time thereafter con-
sider that to be necessary, or in case of the carrying out of the proposed
canal for the improvement of the Trent River navigation, and a swing
in the said bridge not being necessary, that there should in that case
be a new swing bridge over the said canal, the cost of the swing and the
necessary pivot therefor to be borne by the said company. The canal
having been constructed, it became necessary to have a new swing bridge
over the canal on the company's line of railway. This bridge was built,
and the suppliant company discharged the obligation to which it sue-
ceeded to pay the cost of the pivot pier and of the swing or superstructure
of the bridge. Held, that in the absence of any stipulation in the agree-
ment between the parties as to which should bear the cost of such main-
tenance and operation, the suppliants having built the pivot pier and
swing as part of their railway and property, should maintain and operate
them at their own cost.
Can. Pac. Ry. Co. v. The King, 10 Can. Ex. 317.
[Affirmed in 38 Can. S.C.R. 211.]
SWING BRIDGE COST OF CONSTRUCTION MAINTENANCE.
The C.P.R. Co. applied for liberty to build a bridge over the Otonabee,
a navigable river, undertaking to construct a draw in it should the
Government deem it necessary. An order-in-council was passed providing
that "the company . . . shall construct either a swing in the bridge
jiow in question . . . the cost to be borne by themselves or else a
new swing bridge over the contemplated canal (Trent Valley Canal)
in which case the expense incurred over and above the cost of the swing
itself and the necessary pivot pier therefor shall be borne by the Govern-
menu"' A new swing bridge was constructed over the eanafbv agreement
with the company: Held, that the words 'the cost of the swing itself
and the necessary pier" included, under the circumstances and in the
connection in which they were used, the operation and maintenance also
of the swing by the company. 10 Can. Ex. 317. affirmed.
Can. Pac. Ry. Co. v. The King. 38 Can. S.C.R. 211.
HIGHWAY CROSSING DIVERTING STREAM UNDER HIGHWAT ERECTION OF
suBSTrruTioNAL BRIDGE LIABILITY TO KEEP ix REPAIR.
A railway company, desiring to cross a highway at a point where it
was carried by a bridge over a small stream, in pursuance of its statu-
tory powers, diverted the stream to a point >ome distance away, and built
a new bridge over it where it there intersected the highway: Held that,
whatever remedy the municipality might have if it- had sustained damage
by reason of the exercise by the railway company of its rights, the latter
was under no liability, in the absence of special agreement, to keep the
bridge substituted by it in repair.
Peterborough v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 494. 32 O.R. 154.
[Affirmed in 1 O.LJI. 144, 1 Can. Ry. Cas. 497:* discussed in Palmer v.
Michigan Central Ry Co.. 6 O.L.R. 90: distinguished in Hanley v. Toronto,
Ham. & Buffalo Ry. Co., 11 OJUR. 91; followed in Palmer "v. Michigan
Central Ry. Co., 2 Can. Ry. Cas. 239, 2 O.W.R. 477.]
HIGHWAY BRIDGE ESPLANADE TRIPARTITE AGREEMENT RAILWAY COM-
MITTEE JURISDICTION OF.
3y the Esplanade Tripartite Agreement, dated 26th July. 1892, between
the City of Toronto and the two railway companies (G.T.R. and C.P.R.),
confirmed by statute 55 4 56 Viet. c. 48 (D) the C.P.R. agreed to build a
highway bridge over the tracks of the railway companies the por-
tion of the cost to be borne by each to be settled by arbitration or paid
equally by the C.P.R. and the City, in case the G.T.R. was found to be
exempt from, or entitled to idemnity against, liability for any portion
of the cost. The rights of the G.T.R. as to such exemption or indemnity
were, by the agreement, to be decided by the submission to the Court
of a special case between the City and the G.T.R. After the bridge was
built, in accordance with plan> and specifications approved by the Rail-
way Committee and while an action brought by the City against the
G.T.R. and C.P.R.. in lieu of such special ease, was pending, an appli-
cation was made by the City to the Railway Committee for an order
to authorize and ratify the construction of the bridge, and direct the
terms upon which the cost of the work was to be borne: Held, that the
application must be refused, the question involved not being cf a public
nature, but the settlement of a dispute of a private nature, which the
parties by their agreement had left to be settled by the Courts.
[Merritton Crossing Case, 3 Can. Ry. Cas. 263, followed.]
Toronto v. Grand Tnmk Ry. Co. and Can. Pac. Ry. Co. (York Street
Bridge Case), 4 Can. Ry. Cas. 62.
VIADCCT HIGHWAY PROTECTION ACCESS TO HARBOUR.
Prior to 1888 the G.T.R. Co. operated a portion of its railway upon the
"Esplanade," in the city of Toronto, and. in that year, the C.P.R. Co.
obtained permission from the Dominion Government to fill in a part of
Toronto Harbour lying south of the "Esplanade" and to lay and operate
tracks thereon, which it did. Several city streets abutted on the north
side of the "Esplanade." and the general public passed along the pro-
Can. Ry. L. Dig. 5.
longations of these streets, with vehicles and on foot, for the purpose
of access to the harbour. In 1892, an agreement was entered into between
the city and the two railway companies respecting the removal of the
sites of terminal stations, the erection of overhead traffic bridges ana
the closing or deviation of some of these streets. This agreement was
ratified by statutes of the Dominion and provincial legislatures, the
Dominion Act (56 Viet. c. 48), providing that the works mentioned in the
agreement should be works for the general advantage of Canada. To
remove doubts respecting the right of the C.P.R. Co. to the use of portions
of the bed of the harbour on which they had laid their tracks across the
prolongations of the streets mentioned, a grant was made to that company
by the Dominion Government of the ''use for railway purposes" on and
over the filled-in areas included within the lines formed by the pro-
duction of the sides of the streets. At a later date the Dominion
Government granted these areas to the city in trust to be used as public
highways, subject to an agreement respecting the railways, known as the
''Old Windmill Line Agreement," and excepting therefrom strips of land
06 feet in width between the southerly ends of the areas and the harbour
reserved as and for "an allowance for a public highway." In June,
1!)09, the Board, on application by the city, made an order directing that
the railway companies should elevate their tracks on and adjoining the
"Esplanade" and construct a viaduct there: Held, Girouard and Duff,
J.J., dissenting, that the Board had jurisdiction to make such an order;
that the street prolongations mentioned were highways within the mean-
ing of the Eailway Act; that the Act of Parliament validating the agree-
ment made in 1892 was not a "special Act" within the meaning of the
Railway Act and did not alter the character of the agreement as a private
contract affecting only the parties thereto, and that the C.P.R. Co.
having acquired only a limited right or easement in the filled-in land, had
not such a title thereto as would deprive the public of the right to pass
over the same as a means of communication between the streets and the
Grand Trunk and Can. Pac. Ry. Cos. v. Toronto (Toronto viaduct case),
11 Can. Ry. Cas. 38, 42 Can. S.C.R. 613.
[Affirmed in  A.C. 461, 12 Can. Ry. Cas. 378; followed in Oak-
ville v. Grand Trunk and Canadian Pacific Ry. Cos., 22 Can. Ry. Cas.
VIADUCTS HIGHWAY PROTECTION.
The Railway Committee, in the exercise of powers preserved to it under
s. 238 of the Dominion Railway Act, 1906, on January 14, 1904, ordered
the appellant and respondent railway companies to carry a bridge over
their respective lines at Yonge street, in the City of Toronto. The Rail-
way Board constituted by the Railway Act, 1903, consolidated in 1906, on
June 9, 1909, ordered the said two companies to construct an elevated
viaduct several miles in length, for the purpose of carrying four of the
tracks of their railways through the said city: Held, that under the said
s. 238, and the amending, Act of 1909 (8-9 Edw. VII. c. 32), ss. 237.
238, the Railway Committee and the Board had jurisdiction to make these
orders, the latter of which virtually superseded the former. The evidence
shewed that the lines of rails were laid "upon or along or across a high-
way" highway being defined by s. 2, subs. 11, of the Railway Act, 1906.
as including "any public road, street, lane or other public way or com-
munication." As regards the respondent company, the lines were laid
along an esplanade, which was deemed a public highway under 28 Viet,
c. 24. As regards the appellant company, they were laid along a route
*s to which there was actual user by the public, whether by right or leave
and license express or implied. It was accordingly within the words
-public communication." and exposed to the danger from which the
public were under s. 238 entitled to be protected: Held, further, that
the Board, where it has jurisdiction, may in its discretion make any
order of this kind for the protection, safety, and convenience of the
public, except where it IB restricted by a. 3 of the Act of ll*)6, which
enacts that, where the provisions of the Act of 1906. and of any special
Act passed by the Parliament of Canada, relate to the same subject, the
latter, so far as necessary, shall override the former. But the Dominion
Act, -56 Tict. c. 48. relied on by the appellants, which la a special Aet
within the meaning of s. 2, subs. 28. of the Act of 1906, does not relate
to the same subject as the Act of 1906. The former empowers the eom-
panies affected thereby to construct and use certain specified works; the
latter empowers the Board to require railway companies to construct
such works as it may deem necessary for the protection and convenience
of the public. Effect can be given to Loth statutes, and >. 3, consequently,
does not in this case restrict in any way the power of the Board. [42
Can. S.C.R. 613, 11 Can. Ky. Cas. 38. affirmed.]
Can. Pac. By. Co. T. Toronto and Grand Trunk Ry. Co. (Toronto Vit-
duct Case),  A.C. 461, 12 Can. Ry. Cas. 37S.
OVERHEAD BRIDGE RAIL WAT CROS.SEXG SENIORITY EXPENSE or REMOVAL
On an application under s. 227 of the Railway Act. 1906. for leave to
cross the main line of the respondent by an overhead bridge, the ques-
tion arose as to who should bear the expense of removing the spur of the
respondent and relaying it under the bridge. The location of the ap-
plicant was approved before the location of the respondent, but the
respondent's spur had been constructed for some time before: Held (1).
that "construction" and not "approval of location" gave priority. (2.
That the respondent was senior to the applicant at the crossing and all
the expense connected with the removal of the spur should be borne by
the applicant. [Can. Northern Ry Co. v. Can. Pac. Ry. Co, 7 Can. Ry.
Cas. 297, followed.]
Can. Northern Ry. Co. v. Can. Pac. Ry. Co.. 11 Can. Ry. Cas. 432.
[Followed in Midland Ry. Co. v. Grand Trunk Pacific Ry. Co.. 23 Can.
Ry. Cas. 80.]
XT/ITBEB AXB SPEED OF TRAIXS YEHICTLAR AVD PEESTRIAX TRAFFIC.
Application for the construction of a highway bridge to he substituted
for a level crossing over the main line of the respondent: Held fl). that
the three main factors to be considered as creating the necessity for
protection at a highway crossing are. the number of trains, and especially
the rate of speed at which trains run over the crossing, the amount of
vehicular and pedestrian traffic over the crossing, and the view whica
those using the highway have of trains approaching in both directions.
(2) That the rate of speed at which trains run is a matter of greater
importance than the number of trains passing over the crossing. (3)
That only limited weight should be given to arguments based on the
amount of vehicular or pedestrian traffic pas-ing over the crossing. (4>
That the rate of speed at which trains pass over the crossing is a very
important factor. (5) That the extent of the view at such crossing is
a matter of the greatest consequence. (6 That the application should be
granted and a highway bridge substituted for the level crossing over
the double track main line of the respondent notwithstanding the fact
that the traffic on the highway at the point in question is comparatively
Front of Escott v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 315.
COST OF OVERHEAD BRIDGE MUNICIPALITY.
Leave was granted by the Board to a municipality to carry a highway
over the right of way and tracks of two railways by means of a bridge
where no highway existed and the development of a village had been
retarded for want of a .crossing upon condition that the municipality bear
the whole cost of construction. An easement was granted over the right
of way, with right of support by piers without payment of compensation
to the railway companies.
Bridgeburg v. Grand Trunk and' Michigan Central Ry. Cos., 14 Can.
Ry. Cas. 10, 8 D.L.R. 951.
[Followed in London v. Grand Trunk Ry. Co., 20 Can. Ry. Cas. 242.]
OVERHEAD BRIDGE RAILWAY CROSSED BY HIGHWAY SUITABLE STRUCTURE
In dealing with an application by a municipality to direct a railway
company to carry a new highway across its tracks by an overhead
crossing, the Board's jurisdiction is confined to giving directions as to
the structure when railway property is interfered with and upon the
municipality passing a by-law providing a proper and suitable structure
for the purpose an order will go approving of same, and in such case the
whole cost of the new highway will be upon the applicant.
Mission District Board of Trade v. Can. Pac. Ry. o., 14 Can. Ry.
HIGHWAY CROSSED BY RAILWAY BRIDGE RAILWAY YARD APPORTION-
MENT OF COST.
Where an application was made by a local improvement district for a
bridge carrying the highway over railway tracks, and the limits of an
adjoining city were afterwards extended so that the highway became
wholly within the city limits, the Board decided that the district should
not bear any portion of the cost of such bridge, that the city should con-
tribute $5,000 of the cost for that portion of the bridge which crosses the
through tracks, of the railway company, who must bear the whole cost
of extending the bridge across their yard, 20 per cent of the cost of
the whole bridge to be paid out of the Railway Grade Crossing Fund and
the balance by the railway company.
Saskatchewan Local Improvement District No. 161 v. Can. Pac. Ry.
Co., 14 Can. Ry. Cas. 337.
HIGHWAY BRIDGE COST OF MAINTENANCE.
The usual rule in cases of repairing and maintaining highway bridges,
apart from special circumstances, is, that the railway company is re-
sponsible for railway structures, and the municipality for structures handed
over to it for municipal and highway purposes.
Assiniboia v. Can. Northern Ry. Co., 14 Can. Ry. Cas. 365.
BRIDGES OVER HIGHWAYS.
A bridge crossing a river, connecting the separated parts of a public
highway is part of the highway itself and is also a public place, and is
within the operation of s. 248, subs. 2, of the Railway Act, 1900.
Haldimand v. Bell Telephone Co., 2 D.L.R, 197, 25 O.L.R. 467.
Drrr TO ERECT IRRIGATION WORKS.
Where an irrigation company had received, under the North-West
Irrigation Act, 61 Viet, (Can.) c, 35 (now R.S.C. 1906, c. 61 , a license
to take water to use in its business in the North-West Territory, and
obtained authority to cross with its works road allowances not yet' used
as public highways reserved from its lands by the Crown for future use
as public highways, such company is itself bound, it being the partv
lor whose convenience and profit the road allowances had been interfered
with, to build bridges when the road allowances afterwards become pub-
lic highways on both sides of the works constructed across them by the
company, even though it had never stipulated that it would maintain
the necessary bridge or bridges at the points indicated in an accompany-
ing plan, where their works crossed road allowances or public highwavs
as provided by subs, (bt, s. 11. of the said Irrigation Act (now subs.
1 (b) s. 15, R.S.C. 1906, c. 61) which it did in an application required
of every applicant for license under the Act to file with the Commis-
sioner of Public Works for the North-West Territories, by the aforesaid
subsection for the right to construct any canal, ditch, reservoir, or other
works referred to in the memorial, across any road allowance or sur-
veyed public highway, which may be affected by such works. [Rex v.
Alberta Ry. & Irrigation Co.. 3 Atla. L.R. 70, affirmed on appeal; Alberta
Ry. t Irrigation Co. v. Th- King. 44 Can. S.C.R. 505. reversed on appeal.]
*Rex v. Alberta Railway & Irrigation Co., 7 D.L.R. 513,  A.C.
OVERHEAD BRIIX.K CONTRACT TO MAINTAIN CHANGE TN TRAFFIC CONDI-
On it becoming necessary to repair or replace an overhead bridge
carrying the tracks of a railway company over the road of another rail-
way company, the latter is bound to provide a structure sufficient for
the conditions of modern traffic, although the bridge displaced was
ample for the needs at the time it was built, where, by contract, it
was required at its own expense to maintain such bridge in a good and
safe state, so as not to endanger the property, fixed or moveable, of the
other company, and to save it from damage due to the construction or
nonmaintenance of the bridge.
Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. (Myrtle Bridge Case), 15
Can. Ry. Cas. 433. 12 D.L.R. 475.
[Affirmed in Can. Pac. Ry. Co. v. Grand Trunk Ry. Co., 17 Can. T
Cas. 300: distinguished in Hamilton v. Can. Pac. and Toronto H. *
Ry. Cos. (Hamilton Bridge Case). 20 Can. Ry. Cas. 159; referred to in
Windsor v. Can. Pac. Ry. Co.. 21 Can. Ry. Cas. 66.]
RAILWAY CROSSINGS OVERHEAD BRIDGES MAINTENANCE FCTCRE TRAF-
FIC SENIOR AND JCNIOR.
A junior wishing to cross the lino of a senior railway company, con-
tracted for four crossings, three by overhead bridges and one by .
subwav under a bridge of the senior, to be constructed according 1
plans "and specifications approved by the chief engineer of the senior,
and having agreed that if it failed to maintain such crossings to 1
satisfaction, the senior could cause the necessary work to be done at t
cost of the junior, was oblige,! not only to keep the cross.ngs in goo
and sufficient repair in the condition they were in when the contr,
was made, but could at any time be ordered by the Board to mak,
them fit for the heavier traffic caused by the increased business oi
senior. [Grand Trunk Ry. Co. v. Can. Pac. Ry. Co. (Myrtle Bridge Case),
15 Can. Ry. Cas. 433, affirmed.]
Can. Pac. Ry. Co. v. Grand Trunk Ry. Co. (Myrtle Bridge Case), 17 Can.
Ry. Cas. 300, 49 Can. S.C.R. 525.
LIGHTS APPORTIONMENT OF COST.
By an order of the Board, the Grand Trunk Ry. Co. was ordered to
construct an overhead bridge at the crossing of the Upper Lachine Road
by its railway at Rockfield, Que., the cost of construction and maintenance
being divided amongst the various parties interested, including the City of
Lachine. After the bridge was constructed the city applied to the Board
to compel the railway company to erect the necessary poles and wires and
to light the bridge by electricity as a part of the work directed to be done
under the order. Electric lighting of a highway bridge falls within the
purview of the municipality, and the parties (other than the municipality)
contributing to the cost of maintenance, should contribute only an amount
representing the cost of the additional light required beyond that neces-
sary for the highway, if the bridge had not been constructed.
Lachine v. Grand Trunk Ry. Co., 20 Can. Ry. Cas. 82.
TRAFFIC BRIDGE RAILWAY AND HIGHWAY PROTECTION.