pealed from (8 Alta. L.R. 363), Duff and Brodeur JJ. dissenting, that the
delivery of the receipts in advance of payment afforded means of inducing
the defendants to pay over the amount represented by them to their agent
and, consequently, the plaintiffs were estopped from denying actual receipt
of payment of the freight charges. Per Duff J. dissenting. In the cir-
cumstances disclosed by the evidence in the case the principle of estoppel
could not be applied. [Gentles v. Can. Pac. Ry. Co., 14 O.L.R. 286, dis-
Continental Oil Co. v. Can. Pac. Ry. Co., 52 Can. S.C.R. 605.
See Expropriation (B.) ; Pleading and Practice.
See GonnBwnt Railway* : Jnrisdktion.
See Sale and Foreclosure
Execution Hen affecting title to lands, see Title to TMJJJ
OF BOABD MKECTIXC P ATM EXT BT COMPAXT TO MUNICIPAL COBPOBA-
TIOX OF PABT OF COST OF BUDGE ODEB MADE BCT OF CoCBT ISSCl
FI. FA. MOTIOX TO STAT ESBCTnOS JrMSWCTIOX OF SCFVEME COCVT
or OXIABIO JrKi<Dicnox or BOABD SALE or "^FTBLJC nmn rx-
MDt ESECCTIOX POWZX OF DOMTSIOX TO ADOPT MACHTVEBT OT PBOVIN
OAI. GOCKTS COVTBOL OF PBOVIXCIAL COCBTS OTEB OBDEBS OF BOABD
FtXALTTT OF OBDEB OT BOABD UXCOXDITIOXAI. DIBECTIOX FOB FAT-
JCEST FOBM OF OBDCB.
Be Toronto and Toronto Rr. COL, 4f OJ^R. 82. 43 D.LR. 739.
front taxation, see A*srs*nwnt and Taxation.
See Lonitation of Uabilhhr; EmpIoTces.
Regulation br Board as to the carriage of explosives, Bee
Exposure of explosives to children, see Negligence.
See Assessment and Taxation; Carriers of Goods: dainw (B) : Tolls
Safe of money orders, see Agents.
Transportation of liquor, see Crimes and Offences; Carriers of Goods
EXPE O P EIA TI X .
A. In General.
B. Arbitration and Award.
D. Water Bights; Foreshore.
B. Gravel and
J. Location; Plans; DeriatiOB.
Appeal front award of arbitration, see Appeals.
Expropriation for Crown railways, see Government Railways.
Lands acquired by contract, see Title to Lands.
Injunction in default of compensation for interference with access to
bridge by reason of railway crossing highway, see Injunction.
Measure of damages for injuries to land, see Damages.
Jurisdiction of County Court to award damages for trespass to lands
involving dispute of title, see Jurisdiction.
Support of land by minerals, see under (C) above.
Evidence of value, see under (C) above.
Interest on awards, see Interest.
Jurisdiction of Board respecting Provincial railway lands taken by
Dominion railway, see Railway Board.
Taking of lands for railway purposes and compensation therefor. 1 Can
Ry. Cas. 484.
Provincial legislation affecting awards, interest, costs, and filing plans
3 Can. Ry. Cas. 120.
Expropriation of lands of another railway company. 3 Can. Ry. Cas.
180, 13 Can. Ry. Cas. 134.
Remedy of landowner for taking lands under expropriation. 3 Can. Rv.
Lands injuriously affected by the construction and operation of a rail-
way. 4 Can. Ry. Cas. 33.
Notice of expropriation. 5 Can. Ry. Cas. 28.
Expropriation and compensation, (i Can. Ry. Cas. 331.
Right of compensation by occupant of land under possessory title. 6
Can. Ry. Cas. 180.
Appeal from award. 6 Can. Ry. Cas. 199.
Conduct of arbitrators. 6 Can. Ry. Cas. 194.
Payment of compensation into Court. 6 Can. Ry. Cas. 202.
Expropriation of mines, the power to expropriate and compensation. 6
Can. Ry. Cas. 217.
Damage resulting from the exercise of corporate powers, and the right
of recovery. 6 Can. Ry. Cas. 365.
What constitutes an interest in land or lease, and the loss of profit and
injury to business, goodwill, liquor license, etc., entitling to right of com-
pensation. 6 Can. Ry. Cas. 404.
Validity of award exceeding powers of arbitrators. 7 Can. Ry. Cas. 343.
Statutory power of Board to order railway company to acquire lands
within a fixed period. 12 Can. Ry. Cas. 91.
Compensation, and payment of to proper party. 13 Can. Ry. Cas. 411.
Compensation to abutting landowners upon construction of railway upon
highway. 14 Can. Ry. Cas. 199.
Taking by Dominion railway company of lands of Provincial railway
company. 18 Can. Ry. Cas. 144.
Reasons for award required from arbitrators. 16 Can. Ry. Cas. 77.
Lands dedicated to public use. 18 Can. Ry. Cas. 442.
Injuries caused by taking lands. 20 Can. Ry. Cas. 109.
Arbitrators reasons for award. 21 Can. Ry. Cas. 332.
Compensation for special adaptability to owners business. 21 Can.
Ry. Cas. 349.
Power of Appellate Court to remit award to arbitrators. 21 Can. Ry.
Jurisdiction in appeals from awards. 21 Can. Ry. Cas. 381.
expropriated in eminent domain proceedings, measure of eom-
1 D1.R. 368L
A. In General.
PBOYISCIAI. muc LAXBS.
Th* Parliament of Canada has power to appropriate provincial public
lands for the purposes of a railway connecting two or more province*.
Attorney-General (R.C.) T. C-P.B. Cou 11 B.C.B. 289.
[Referred to in Atty.-General v. Ruffner. 12 B.CJL 301, followed in
Laehine, Jacques Carrier, etc.. By. Co. T. Montreal Tramways, etc, By.
Cos, 18 Can- By. Cas. 133.]
LA3KB OW3EED AXB T/SEB BT MTXICIFAI. CO*FO*ATIOSS.
Under ss- 118. 139 of the Railway Act. 1903. railway companies nuj
expropriate the lands of municipal corporations used by them for munici-
Be Grand Trunk By. Co. and Ste. Henri and Ste. Cunegoude, 4 Can. By.
STOUT KAH.WAT AcQcismox OF LAXD ron, CAK
The Toronto By. Co., which has no powers of expropriation, acquired
by purchase from the owners certain land in a residential locality, on
which they proposed to erect car bans, being a purchase authorized by
the agreement with the city, as validated by 53 Viet. c. 90 (Oat.) and
submitted the plans to the city for its approval, whereupon a petition was
presented to the Board of Control, by the residents of the locality, askin*
the intervention of the city against such proposed use of the land, as
well as against the laying of tracks on certain streets as a means of ac-
cess to the bams, which was referred to the corporation's counsel for his
opinion as to the city's powers. The city had at that time under con-
sideration the acquisition of a specified block of land in the locality for
park purposes, but subsequently to the presentation of the petition the
Parks and Gardens Committee recommended the expropriation of the com-
pany-~ hind for such purpose, and under their instructions a by-law there-
for was drafted by the city solicitor. On the matter coming before the
council, the recommendation was struck out and the question of prorurmr
park lands referred back to the committee, and on the following day, but
after the plaintiffs had commenced this action, the architect was instructed
by the Board not to deal with the plans, pending the result of the pro-
posed expropriation proceedings. There was nothing to shew that the
course pursued by the city was not actuated by good faith. In a action
tiffi s T"'"g a declaratory judgment of the company's right to so use tb*
bud: Held, that while there was undoubted power in the Court to grant
declaratory judgments it was a discretionary power; and that in thi*
ease, the exercise of the discretion by the trial Judge, in refusing to grant
such a judgment, would not under the circumstances be interfered with
Toronto Rv. Co. T. Toronto, 13 OJLR. 532.
:CE WTTH EXnOFHATIOX PRIVATE BICHT-CT-WAT.
In an action by a railway company, which had the right to expropriate
the land in dispute, to restrain the defendant from interfering with tb*
construction by the company of its railway across a certain road, in which
action a counterclaim was made by the defendant for a declaration of hi*
right to the road as a private way and for an injunction restraining th*
company from trespassing thereon, the ex parte injunction granted th%
j should not be dissolved and the injunction awarded the defend.
ant upon the merits in accordance with his counterclaim should not be
made operative until an opportunity is given to the company to take ex-
propriation proceedings. [Sandon Water Works & Light Co. v. Byron
N. White Co., 35 Can. S.C.R. 300, followed.]
Can. Northern Ry. Co. v. Billings, 5 D.L.R. 455, 3 O.W.X. 1504.
ADDITIONAL LANDS RAILWAY YARDS.
Under the provisions of s. 178 of the Railway Act, 190G, giving the
Board the right to give a railway company permission to take more land
for railway purposes than they are entitled to take under subs, (b) of s.
177 of the Act, providing that there may be taken for stations, depots,
etc., an area one mile in length by 500 feet in breadth including the width
of the right-of-way, if such additional land is shewn to be "necessary,"
the word "necessary" should be given a liberal construction. (Dictum
per Brown, J.)
- Prince Albert v. Can. Northern Ry. Co. (Sask.), 10 D.L.R. 121, 15 Can.
Ry. Cas. 87.
COMPULSORY EXPROPRIATION MANDAMUS.
(1) A written offer to sell, land on certain terms, accompanied by an
intimation that, if the purchaser takes possession, the vendor would treat
that act as an acceptance of the offer, and the subsequent taking of such
possession, without further communication with the vendor, together con-
stitute a binding contract of purchase and sale of the land, which is taken
out of the Statute of Frauds by that act of taking possession, such act
being in itself a part performance of the contract, as well as an essential
in the making of it. [Carlill v. Carbolic Smoke Ball Co. (3893), 1 Q.B.
256, followed.] (2) If there had been no contract between the parties
respecting the land taken by the defendants for their right-of-way, the
plaintiff would have been entitled to the alternative relief claimed by
way of mandamus to compel the defendants to proceed to have the com-
pensation determined under the provisions of the Railway Act. (3) Relief
by way of mandamus may now, under Rule 879 of the King's Bench Act,
be obtained by an action. [Morgan v. Metropolitan Ry. Co. (1808), L.R.
4 C.P. 97, followed.]
Carr v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 258, 17 Man. L.R. 178.
DUTY OF COMPANY TO TAKE LANDS.
A railway company, in its requirement of right-of-way, included, inter
alia, land in which the plaintiff had a lease-hold interest, bvit the right-of-
way was at no time wholly upon the plaintiff's property, the greater por-
tion being upon adjoining lands. The company, without proceeding to
arbitration, acquired the interest of the plaintiff's lessor, and built its
road clear of but adjoining that portion of the indicated right-of-way
over the land in which the plaintiff was interested. In an action to com-
pel the company to acquire and pay for the right-of-way as indicated,
the company contended that it could be compelled to pay for only that
portion of the right-of-way which it actually took possession of, and
Irving, J., at the trial, dismissed that contention and held that the plain-
tiff was injuriously affected by the construction and operation of the rail-
way: Held, on appeal (Martin, J.A., dissenting), that the trial Judge
McDonald v. Vancouver, Victoria & Eastern Ry., etc., Co., 12 Can. Ry.
Cas. 67, 15 B.C.R. 315.
[Reversed in 12 Can. Ry. Cas. 74, 44 Can. S.C.R. 65.]
ACTJOX TO COMPEL EXnonUATIOX COMFESSATIOX.
The approval and registration of plans, etc., of the located area of the
right-of-way, under the provisions of the Railway Act, 1906, and the sub-
sequent construction and operation of a railway along such area, do not
render the railway company liable to mandamus ordering the expropria-
tion of a portion of the lands Jiemn upon the plans which has not been
physically occupied by the permanent way so constructed and operated.
Judgment appealed from, 12 Can. By. Cas/67, 15 B.C.R. 315, reversed, the
Chief Justice and Danes, J., dissenting.
Vancouver. Victoria 4 Eastern Ey_ etc., Co. T. McDonald, 12 Can. By.
Cas. 74, 44 Can. S.C.R. 65.
LANDS rcr TO ITBXIC USE PBOTTXCIAI. STAICTK.
lands dedicated to a public use under a provincial statute may be ex-
propriated under the Railway Act for railway purposes.
Lachine. Jacques Carrier, etc- By. Co. T. Montreal Gas Co, IS Can. Ry.
QTEBEC STATCTE RErnoACtn
By the Quebec Act of 1912, 3 Geo. V. c. 42. the arbitration in the matter
of expropriation by railwaj companies is abolished and replaced by an
enonete before a Judge of the Superior Court, but tikis Act has no re-
troactive effect, and does not apply to an arbitration started before Decem-
ber 21, 1912. the date on which the Act was brought into force.
Guard T. Ha-Ha-Baie By. Co_ 47 Qne. S.C. 325.
This was an application to the Supreme Court of Xova Scotia aAing
ft to set aside, in a summary manner, the whole appraisement of bind
damages awarded to be paid by the county to the several proprietors of
lands in Pieton county, whose lands had been expropriated for the line
of railway extending from New Glasgow, in Pieton county, to the strait
of Canso. and known as the Eastern Extension. This appraisement was
made on the assumption that under the contract with the Xova Scotia
Government for the construction of this line of railway and the statutes
relating thereto, and. providing for the expropriation of lands for right of
way, etc.. appraisement of damages or compensation to the proprietors
and payment thereof, the right-of-way was furnished to the company free.
and the *pati for bind damages was to be paid after appraisement
in the manner prescribed by the Custos of the various counties Ihniagh
which the line ran issuing debentures for the amounts due to the proprie-
tors, which debentures were to be redeemed by means of local taxation.
Before the Provincial Government of Nova Scotia had entered into the con-
tract for the construction of the Eastern Extension Line, and while they
were negotiating therefor, the Xova Scotia legislature, on the 4th April.
1S76. passed e. 3 of theActs of 1376. to enable the Government te* enter
into a contract for the construction of this line of railway, and made provi-
sion thereby for the payment of a subsidy and grants of bind to those un-
dertaking it, and for the expropriation of land for the right-of-way for the
line. On the same date e. 74 of the Acts of 1S76 was passed, and. in or-
der to incorporate and give any contractors whose tender for construction
honH thereafter be accepted the same corporate powers and privileges as
those mentioned in c. 74, s. 4 of the Acts of 1876 was passed. By s. 36
of e. 74, and also by s. 6, e. 3, Acts of 1876, certain ss of e. 70 of the
Revised Statutes, third series, are incorporated in these enactments and
made applicable to this line of railway, which sections more particularly
relate to the mode of acquiring lands for the right-of-way, stations, etc.,
the procedure for appraising damages, and the mode of assessing the
various counties for the payment of the amounts awarded. C. 70 Revised
Statutes, third series, comprises in consolidated form all enactments in
force in Nova Scotia at that date, relating to provincial railways. For
convenience the various railway companies in Nova Scotia, such as the
Windsor & Annapolis Ry. Co., the Western Counties Ry. Co. (see c. 34
Actg of 1868, c. 81, Acts of 1870), have, in obtaining their acts of in-
corporation, availed themselves of similar clauses from c. 70, Revised
Statutes 3rd series, by express enactment, without repeating them in the
Act or providing other machinery for the expropriation of lands, and the
ascertaining of land damages. When the Revised Statutes, 4th series, was
prepared, certain Acts of the province not re-enacted were continued in
force, and among them so much of c. 70 of the 3rd series as was therein
specified. (See the Act to provide for the publication of the Consolidated
Statutes, 30th April, 1873, Revised Statutes, 4th series page 2.) Mr.
Abbott, having entered into the contract with the Government for the
construction of this line, sought, under c. 4 of the Acts of 1876, incor-
poration and the benefit of the provisions of c. 74, Acts 1876, and obtained
a certificate of incorporation under the name of the Halifax & Cape Breton
Ry. & Coal Co. The company was organized under this Act, and the right-
of-way having been obtained under the statutes, the damages were ap-
praised and the work of construction began and was carried on. In 1877
an order was made by the Chief Justice of the Supreme Court of Nova
Scotia, on the petition of a number of the property owners whose lands
would be affected by the building of the railway, directing the prothono-
tary of the county to draw and strike a jury, under the provisions of c.
70, of the Revised Statutes, third series, to appraise the lands and prop-
erty taken for the purpose of the Eastern Extension Ry. In 1878 a rule
nisi was taken to set the whole proceedings aside, but a year later it was
discharged on motion of the party who had obtained it. A question having
been raised as to the validity of the incorporation of the company under c.
4, Acts of 1876, by the Local Government, and legislation being about to
be passed to remove such doubts, another rule was obtained in 1879, on
the ground that the Halifax & Cape Breton Ry. & Coal Co. had no legal
existence. After the argument of this rule, and before the judgment, cc.
60 and 70 of the Acts of 1879 were passed by the Legislature of Nova
Scotia. After hearing the Gustos of the county by counsel before a com-
mittee of the Legislature, two sections of the Act were added in th inter-
est of the county. The Supreme Court of N.S. held that the county of
Pictou were estopped by those statutes last mentioned from disputing the
appraisement of the lands taken, and by their act in issuing debentures
to parties to whom damages had been awarded for the lands appropriated
to the railway, some of which had been indorsed to third parties. (See
1 Russ. & Geldert, 448.) On appeal to the Supreme Court of Canada:
Held, that the judgment of the Court below was not one from which an
appeal would lie, there being no finality about the order made by the Chief
Justice of the Court below in 1777, which was what this appeal sought to
Hockin v. Halifax & Cape Breton Ry. & Coal Co. Cass. Can. S.C.R. Dig.
1893, p. 423.
ARBITRATION AWARD MATTERS CONSIDERED BY ARBITRATORS.
A railway company, having taken certain lands for the purposes of their
railway, made an offer to the owner iu payment of the same which offer
was not accepted and the matter was referred to arbitration under the
Consolidated Railway Aft, 1879. On the day that the arbitrators met
the company executed an agreement for a crossing over the said land, in
addition to the money payment, and H appeared that the arbitrators took
the matter of the crossing into consideration in making their award. The
amount of the award was less than the sum offeied by the company, and
both parties claimed to he entitled to the costs of the arbitration, the
company because the award was leas than their offer, and the owner be-
cause the value of the crossing was included in the sum awarded which
would make it greater than the offer: Held, affirming the judgment of
the Court of Appeal, and the judgment of the Divisional Court, 5 OJL
674. Gwynne. -J_ dissenting, that under the circumstances neither party
was entitled to costs. [Appeal dismissed with costs. 5 OJL 674, affirmed.]
Ontario * Quebec Ry. Co. v. Philbrirk. 12 Can. S.CJL 2ML
Aw AID VAIUHTT or DescBirnox OF LAXD.
The plaintiffs, joint owners of land in the city of Quebec were awarded
S11J900 under 43-44 Viet. e. 43, s. 9, for a portion of said bind expro-
priated for the X.S. Ry. Co. and brought an action against the company
based on the award. The company not having pleaded, foreclosure was
granted. The notice of expropriation and the award both described the
land expropriated as Xo. 1. on the plan of the railway company deposited
according to law. but in an^Ttrr part of the notice it described it as
forming part of a cadastral lot 2345, and in the award as forming part of
lots 2344-2345. Judgment was rendered for the amount of the- award.
From this judgment the railway company appealed to the Court of Queen's
Bench and that Court reversed the judgment of the Superior Court, bold-
ing inter alia the award bad for uncertainty, and that the case should be
sent back to the Superior Court. On appeal to the Supreme Court of
it was: Held, reversing the judgment of the Court of Queen's
that there was no uncertainty in the award, as the words of the
award and notice were sufficient of themselves to describe the property
intended to be expropriated and which was valued by arbitrators.
Beandet et al. v. North. Shore Ry. Co^, 15 Can. S.CJL 44.
[The Privy Council refused leave to appeal in this ease, 10 Can. Gaz.
463. Followed in Wynnes v. Montreal P. A L Ry. Co.. 9 Qne. Q.B. 497.]
AWAKD AnraATOBS Jrasmcnox or LASDS rsjriorsi.T AFFECTED.
In a railway expropriation case the respondent in mwiig his arbitrator
declared that he only appointed him to watch over the arbitrator of the
company, but the company recognized him officially and subsequently an
award of $1.974.25 damages and costs for land expropriated was made
under Art. 5164, RJ?.Q. The demand for expropriation as formulated in
their notice to arbitrate by the appellants was for the width of their
track, but the award granted damages for three feet outside of the fences
on each side as being valueless. In an action to set aside the award:
Held, affirming the judgment of the Courts below, that the appointment
of respondent's arbitrator was valid under the statute and bound both
parties, and that in awarding damages for three feet of hind injuriously
affected on each side of the track the arbitrators had not exceeded their
jurisdiction. Strong and Tasehereau, J-J., doubted if the amount in con-
troversy was sufficient to give the Court jurisdiction to hear the appeal,
the amount of the award being under $2,000, and to make up the appeal-
able amount, either interest accrued after the date of the award and after
action brought or the costs taxed on the arbitration proceedings would
have to be added.
Quebec, Montmorency & Charlevoix Ry. Co. v. Mathieu, 19 Can. S.C.R.
[Distinguished in Dufresne v. Gugvrement, 26 Can. S.C.R. 219.]
ENFORCEMENT OF AWARD ADDITIONAL INTEREST CONFIRMATION OF TITLE.
On a petition to the Superior Court, praying that a railway company
lie ordered to pay into the hands of the Prothonotary of the Superior Court
a sum equivalent to six per cent on the amount of an award previously
deposited in Court under s. 170 of the Railway Act, 1888, and praying
further that the company should be enjoined and ordered to proceed to
confirmation of title, with a view to the distribution of the money, the
company pleaded that the company had no power to grant such an order,
and that the delays in proceeding to confirmation of title had been caused
by the petitioner who had unsuccessfully appealed to the higher Courts
for an increased amount: Held, reversing the judgment of the Court
below, that by the. terms of s. 172 of the Railway Act it is only by the
judgment of confirmation that the question of additional interest can be
adjudicated upon: Held, further, that assuming the Court had juris-
diction, until a final determination of the controversy as to the amount
to be distributed, the railway company could not be said to be guilty of
negligence in not obtaining a judgment in confirmation of title. (Rail-
way Act, s. 172.)
Atlantic & North-West Ry. Co. v. Judah, 23 Can. S.C.R. 231.
[See Atlantic & N.W. Ry. Co. v. Judah, 20 Rev. Leg. 527; referred to in
Neilson v. Quebec Bridge Co., 21 Que. S.C. 332: followed in Montreal v.
Gautier, 26 Que. S.C. 354; Montreal v. Lemoine, 3 Que. Q.B. 199; referred
to in Montreal v. Baxter, 15 Que. S.C. 152.]
DEATH OF ARBITRATOR PENDING AWARD.
In relation to the expropriation of lands for railway purposes, ss. 156,
157 of the Railway Act, 1888, provide as follows: "156. A majority of
the arbitrators at the first meeting after their appointment or the sole
arbitrator, shall fix a day on or before which the award shall be made;
and, if the same is not made on or before such day, or some other day
to which the time for making it has been prolonged, either by consent of