32 OJ-R. 141, 7 O.W.X. 197.
EC JTHOCSL.T AFFECTED.
Where one parcel of htnd is expropriated for railway purposes aad
another parcel of had of the same owaer injuriously affected by the
carrying ovt of rarh parposr^. the aaMHnts awarded ia aibitratioa pro-
ceediags ia respect to both subjects are to be treated as purchase BMMMT.
[Be MacPhersoa aad Tomato, 36 OJL 553. aad Re Dferies aad JaaMs
Bay By. Co_ 30 OiJL M. followed.]
Greem T. Caa. Xorthera By. Co, 8 SJLB. i*5. 9 W.WJR. 7.
TAIJTE~ OF uun FOB BTSTSESS r*wmiwn ox Brsnross MSTCBB-
AXCE ^Srcrui. JUHAFTABIIJTV" EtEMErr> OF rnt iwaa-
Be Sehooley aad Lake Erie & Northern By. COL. 34 OJL.R. 345.
AT BATE OF TJUEIXG-
Ia expropriatioB for railway parposes Bader the Railway Act, 190C,
the laadowaer's enBpeasatkH B to be fixed according to the value at the
date of expropriatioB. taking into aceooat the future poteatiaUnies of the
property only as they affect the present market valne. [Cedars Rapids T.
Lacoste* 16 DJL.B. UK, 3 Tiaw* L.R. 3, and Be Laeas and Chesterneid.
[1909] 1 KJB. 16, foDowed.]
The King T. Trudei et.aL. 19 DJLB. 270.
DATE FOB TAUTATIOX or LAXIKS Derasrr or PIAX NOTICE BEVOTT TO
IJL^BS XOT TAKEN - J?ET-OT - EXCESSTTE COMFEXSATIOX - JkPTEAI-
Where the expropriation of land is governed by the provisions: of the
Ontario Railway Act of 1906 the date for valuation is that of the notice
required by & 6S (1 . The effect is the saaw under the Act of 1913 if the
land has not been acquired by the railway company within one year from
the date of filing the plan. etc. The compensation for the land* expropri-
ated should not be diminished by an allowance for benefit by reason of the
railway to the lands not taken, the Ontario Railway Acts By^Jar: no pro-
vision therefor. On appeal ia a matter of expropriation the award should
be treated as the judgment of a subordinate court subject to rehearing.
The amount awarded should not be interfered with unless the appeal
Court is satisfied that it is dearly wrong, that it does not represent the
opinion of the arbitrators, or that their basis of valuation was
Where the land expropriated is an important and useful part
of one holding and is so connected with the remainder that the owner is
hampered in the use or disposal thereof by the severance he is entitled
to compensation for the eaaseqneatial injury to the part not taken: [Hold-
itch T. Can. Xorthera Ry. COL, 50 Can. 8LCR. 269, [1916] 1 A.C. 536. dis-
tinguished]. To estimate the compensatixn for bads expropriated the ar-
bitrators are justified in basing it on a svbdnisioB of the piopeiU if its
situation aad the evidence respecting it iihca that *W same m miJinbV
Held, per Fitzpatriek, C-J. and Angiin. J_ that to prove the value of the
lands expropriated evidence of sales between the date off filing the plans
336 EXPEOPRIATIOK
and that of the notice to the owner is admissible and also of sales subse-
quent to the latter date if it is proved that no material change has taken
place in the interval. Brodeur J., dissenting, held that the damages
should be reduced; that the arbitrators should have considered only the
market value of the lands established by evidence of recent sales in the
vicinity.
Toronto Suburban Ry. Co. v. Everson, 54 Can. S.C.R. 395.
WHEN COMPENSATION AWARDED DEPOSIT OF PLAN NOTICE.
The word "title" employed in s. 192 (2) of the Railway Act, 1906, as
amended by 8-9 Edw. VII. 1909, c. 32, is equivalent to the word "right"
and "effectively acquire a title under the terms of said statutes, to the
lands which a company requires for its works" means acquiring a right
which prevents the proprietor from disposing of his property. If an expro-
priating company has, within the year of the deposit of the plans and
book of reference, served on the interested parties the notice mentioned
in pars, (a) and (b) of s. 193, of the Railway Act, 1906, the arbitrators
must determine the compensation with reference to the date of such de-
posit, even if their award is made only after the expiry of. the year from
such deposit.
Forget v. Lachine, etc., Ry. Co., 24 Que. K.B. 174.
LANDLORD AND TENANT.
Where land expropriated by a railway company is subject to a lease
separate amounts should be awarded to both landlord and tenant. [John-
son v. Ontario, Simcoe & Huron Ry. Co., 11 U.C.Q.B. 246, referred to.]
Quaere as to whether a tenant has a right to have his compensation ascer-
tained by a separate award by a different board of arbitrators. It is con-
trary to sound construction to permit the use of a term not altogether apt
to defeat the intention of the Legislature, which must not be assumed to
have foreseen every result that may accrue from the use of a particular
word. [Regina Trustees v. Gratton Trustees, 7 W.W.R. 1248, referred
to.]
Pacific Great Eastern Ry. Co. v. Larsen, 8 W.W.R. 1.
D. Water Eights; Foreshore.
AWARD VALIDITY OF RIPARIAN RIGHTS.
In an award for land expropriated for railway purposes where there is
an adequate and sufficient description, with convenient certainty of the
land intended to be valued and of the land actually valued, such award
cannot afterwards be set aside on the ground that there is a variation
between the description of the land in the notice of expropriation and in
the award. A riparian proprietor on a navigable river is entitled to dam-
ages against a railway company for any obstruction to his rights of accea
et sortie, and such obstruction without parliamentary authority is an
actionable wrong: [Pion v. North Shore Ry. Co., 14 App. Gas. 612, fol-
lowed.] Taschereau, J., was of opinion that the award in this case in-
cluded compensation for the beach lying in front of plaintiff's property,
which belongs to the Crown, and, for that reason, should be set aside.
Bigaouette v. North Shore Ry. Co., 17 Can. S.C.R. 363.
[Referred to in Bannatyne v. Suburban Rapid Transit Co., 15 Man. L.R.
19.]
POWER TO EXPROPRIATE FORESHORE JUS PUBLICUM.
By 44 Viet. c. 1, s. 18, the C.P.R. Co., "have the right to take, use and
hold the beach and land below high-water mark, in any stream, lake, navi-
gable water, gulf or sea in so far as the same shall be vested in the Crown,
EXPROPRIATION. 337
and AMU mat be required by the Crown, to such extent as shall be re-
quired by the company far its railway asd other works as shall be exhibited
by a Map or plan thereof deposited in the office of the Minister of Bail-
ways." By 50 A 51 Viet. e. 56, s. 5, the location of the company's line of
railway between Fort Moody and the city of Westminster, iurfudrag the
foreclosure of Burrard Inlet at the foot of Gore Avenue. Vancouver city,
was ratified and confirmed. The Act of incorporation of the city of Van-
couver, 49 Viet, e- 82, s- 213 (B.C.) rests in the city all streets, highway*.
ete_ and in 1392 the city began the construction of works extending from
the foot of Gore Avenue, with the avowed object to cross the railroad track
at a level, and obtain access to the harbour at deep water. On an applica-
tion by the railway company for an injunction to restrain the city cor-
poration front proceeding with their work of construction and crossing the
railway: Held, affirming judgment of the Court below that as the fore-
shore forms part of the land required by the railway company, as shewn
on the plan deposited in the office of the Minister of Railway*, the jus
publienm to get access to and from the water at the foot of Gore Avenue
is subordinate to the rights given to the railway company by the statute
(44 Viet. e. L s- ISa., on the said foreshore, and therefore the injunction
was property granted. 2 B.C-B. 30C, affirmed.
Vancouver v. Can. Pae. By. Co, 23 Can. S.C.B. 1.
[Considered in Atty.-General r. Can. Pae. By. Co, 11 B.C.R. 299; fol-
lowed in Can. Pae. By. Co. v. Parke. 6 B.C-B. 15; referred to in Can. Pae.
By. Co. T. McBryan, 5 B.CB. 198.]
DBAIVAGE BIGHTS COMPESSATJOX XBCSSSABT AGBICCT.TTTULI. YOBKS.
The owner of the lower lands is bound, under Art. 501 C.C. (Qne.l
to receive the water brought from the higher lands upon his property by
a line ditch constructed by the owner of the higher lands for their culti-
vation, such necessary works not fllig within the exception in that
article as to artificial constructions. The compensation paid to the owner
of hind for an expropriation in connection with the construction of a rail-
way does not include damages caused by the penning back of waters.
Grand Trunk By. Co. v. Lanslois. 14 Qne. KB. 173.
[Applied in Lapoicte v. Tellier. 32 Qne. S.C. 531.]
or WATEB SCPTLT FOLXOWTSG En-BOPBiATiox COMPKXSATIOX
FOB LOSS Or WATEB-
In an arbitration to determine the amount to be paid to the owner of
land expropriated by a railway company, the arbitrators found for the
owner as compensation for the land. $2.950. and for loss of water supply
from a spring, obstructed in consequence of such expropriation, two of the
arbitrators awarded the sum of $1.200. The third arbitrator returned a
tmdimf against any compensation for deprivation of the water in the ab-
sence of a water record: Held, that the owner was entitled. Where the
three arbitrators agreed on the amount of compensation for land taken.
and the third returned a separate finding dissenting, on the construction
of a statute, from giving compensation for deprivation of a water supply.
and an appeal was taken: Held, on objection raised to the appeal as
being based on an insufficient amount in dispute, under s. 209 of the Bail-
way Act of B.C. that there was only one award given, and the appeal was
properly brought. The owner of land on which there is a spring or stream
has rights therein to the exclusion of all other persons not holding records
under the Water Clauses Consolidation Act, 1807.
Be Mikted, 13 B.C.R. 364.
Can. By. L. Dig 22.
338 EXPROPRIATION.
EMBANKMENT PREVENTING ACCESS TO WATER COMPENSATION.
Certain lands in the District of Rainy River vested in Her Majesty for
the use of the Province of Ontario, being taken by Her Majesty for the
use of the Dominion under 31 Viet. c. 12, and 37 Viet. c. 13 and 14 (D.),
for the defendants' railway, and the lands adjoining the railway lands
having been alienated by the province, the claim to compensation therefor
and for all damages which could be reasonably foreseen as likely to be
suffered by the province from the exercise by the Dominion of its powers
with regard to the said lands, became vested in the province. Part of the
lands so taken were covered by the waters of a bay on the Lake of the
Woods, across which the railway was first built on trestle work with rip-
rap foundations, protected by a cribwork of stone: Held, that the sub-
sequent construction of a solid embankment replacing the trestle work
was a proper exercise by the defendants, as successors to the right of the
Dominion, of its powers and such as might be reasonably foreseen, and
that, therefore, the plaintiffs, who became owners of the adjoining lands
after their severance by the railway and its first construction, were not
entitled to maintain an action for damages on account of the construction
of the embankment and the consequent deprivation of acces's to the waters
of the Lake of the Woods. Per McMahon, J. : Such claim, even if valid,
is barred by the limitation clause of the Railway Act, 1888, and in any
event the proper remedy is by arbitration under the compensation clauses
of the Railway Act.
Ross v. Can. Pac. Ry. Co., 1 Can. Ry. Cas. 461.
RIPARIAN RIGHTS COMPENSATION WHEN COMMON-LAW REMEDY NOT
SUPERSEDED.
Dorchester Elec. Co. v. Roy (Que.), 12 D.L.R. 767.
E. Gravel and Timber.
POWER TO ENTER LANDS AND TAKE MATERIAL FOR REPAIR OF HIGHWAYS.
The onus is on a district municipal council entering on land and taking
any timber, stones, gravel or other material for repair of roads, etc., to
shew what is intended to be taken, and the extent of the operations to be
carried on.
Cook v. North Vancouver, 16 B.C.R. 129.
TRAMWAY FOR TRANSPORTATION OF MATERIALS RIGHT OF PASSAGE ADDI-
TIONAL SERVITUDE.
The place where materials are found, referred to in s. 114 of the Rail-
way Act, 1888, means the spot where the stone, gravel, earth, sand or
water required for the construction or maintenance of railways are nat-
urally situated and not any other place to which they may have been
subsequently transported. Per Tasehereau and Girouard, JJ. : The pro-
visions of s. 114 confer upon railway companies a servitude consisting
merely in the right of passage and do not confer any right to expropriate
lands required for laying the tracks of a tramway for the transportation
of materials to be used for the purpose of construction.
Quebec Bridge Co. v. Roy, 5 Can. Ry. Cas. 18, 32 Can. S.C.R. 572.
TAKING GRAVEL RIGHT TO CBOSS HIGHWAY.
For the purpose of taking gravel from lands on both sides of a high-
way, a railway company applied to the Board for authority to construct
and operate tracks over such highway for a term of years, to close to pub-
lic traffic a portion of such highway, and to open a new road in lieu there-
of: Held, that it is not necessary to comply with s. 141 of the Railway
EXPKOPRIATIOX. 339
Aft, 1903, where the company can acquire the lands containing the gravel
and has a right-of-way thereto, that for such purpose? the company may
exercise the same powers for crossing and diverting highways as for the
construction and operation of its main line, and that a diversion of the
highway may be authorized for the time necessary to exhaust the gravel
pit upon proper terms for safeguarding the interests of the municipality
and of the public. [Railway Act. 1903, s. (<M and fbb), ss. 11$ (l"i
and (q. 119. 141. 186 referred to.]
Can. Pae. Ry. Co. v. Xorth Dumfries, 6 Can. Ry. Cas- 147.
[Followed in Campbellford. Lake Ontario & Western Ry. Co. T. Camden.
16 Can. R. Cas.
REMOVAL or GRAVEL RIGHTS or HOMESTEADERS ox DOMTNIOW LANDS.
The defendant constructed a line of railway across Government land
and opened a gravel pit thereon, from which large quantities of gravel
were removed. The plaintiff made entry for the land as a homestead. In
an action for trespass: Held, that a homesteader on Dominion lands has
the exclusive right to the possession thereof, and may maintain an action
for trespass. The company endeavoured to justify its action under a. If,
Seh. A. of 44 Viet. e. 1, which authorizes the company to take from adja-
cent public lands gravel for the construction of the railway. The evidence
shewed that the gravel was used for maintenance of the right-of-way:
Held, that statute referred to did not authorize the taking except for the
purpose of construction which did not include maintenance of the right-
of-way.
Smyth v. Can. Pac. Ry. COL, 8 Can. Ry. Cas. 265, 1 Saak. LR. 165.
FILING PLANS CONDITION PRECEDENT TO ENTERING LANDS RIGHT TO TAKE
GRAVEL.
The sale, by deed, stipulating for immediate delivery and possession, to
a railway company of all that portion of certain lots required by it for
its right-of-way and other purposes necessary for construction, maintenance.
or operation as the same appears on the plan* already filed or to be filed
in the land registry office of the county in which such binds are situate.
does not give the company any right to the possession for the purpose of
taking away sand and gravel therefrom, of binds outside of the bind*
designated upon the plan or plan- filed under the Railway Act. 1906. if
further binds are required, the new or amended plan must first be filed be-
fore the railway acquires any right of possession under such deed.
Ha Ha Bay Ry. Co. v. Larouche. 10 D.LJL 38$. 22 Que. K.B. 92.
EMINENT DOMINION LAND TAKEN BY RAILWAY TO OBTAIN GRAVEL.
Compensation for bind taken by a railway company under s. ISO of the
Railway Act, 1906. to obtain a -upj.ly of material for the construction.
maintenance or operation of a railway, is to be made as of the time when
the company takes possession of the land. (Per Harvey, C.J.. Simmons,
and Walsh. JJ.)
Saskatchewan Land & Homestead Co. T. Calgary & Edmonton Ry. Co.,
16 Can. Ry. Cas. 114. 14 D.L.R. 193.
[Affirmed in 19 Can. Ry. Cas. 126.]
FILING PLANS WITH RAILWAY BOARD PLAN FOR TAKING LAND TO OBTAIN
CONSTRUCTION MATERIALS.
S. 160 (2) of the Railway Act. 19O6. providing that copies of the plans.
etc.. of a railway, when sanctioned by the Board, shall be deposited in the
office of the registrar of deeds for the district or county to which they
540 EXPROPRIATION.
relate, does not apply to or require the registration of plans prepared un-
der s. 180 of the Act, for the compulsory taking of land to obtain stone,
gravel, earth, etc., for construction or maintenance purposes. (Per Har-
vey, C.J., Simmons, and Walsh, JJ.)
Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co.,
16 Can. Ry. Cas. 114, 14 D.L.R. 193.
[Affirmed in 19 Can. Ry. Cas. 126].
EMINENT DOMINION SURVEYS TAKING GRAVEL LAND.
Compensation for a gravel pit and the right of way thereto taken by
a railway company under s. 180 of the Railway Act, 1906, to obtain a
supply of material for construction purposes is to be made as of the time
when the company took possession of the land under Judge's order or as
of the service of the notice to treat and not on the basis of values some
years later when the arbitration took place. Gravel land which is required
by a railway company for obtaining construction material and the right-
of-way for a spur line to take it out may be expropriated under s. 180
of the Railway Act, without any plans being submitted to the Board; no
deposit of plans is required as would be necessary were the 'land required
for a right-of-way for its line, but a certified copy of the surveyor's plan
is to be served upon the property owner as well as the notice to treat.
Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co.,
19 Can. Ry. Cas. 126, 51 Can. S.C.R. 1, 21 D.L.R. 172.
[Saskatchewan Land & Homestead Co. v. Calgary & Edmonton Ry. Co.,
14 D.L.R. 193, 6 Alta. L.R. 471, 16 Can. Ry. Cas. 114, affirmed.]
F. Highways; Diversion.
AUTHORITY TO USE STREETS DAMAGES NONLIABILITY OF MUNICIPALITY.
By 16 Viet. c. 100 (Que.) the N.S. Ry. Co. was authorized to construct
a railway to connect the cities of Quebec and Montreal, with the restric-
tion that the railway was not to be brought within the limits of the city
of Quebec without the permission of the corporation of the city expressed
by a by-law. In July, 1872, the city council, by resolution, had given to
the company the liberty to choose one of the streets to the north of St.
Francis street in exchange for St. Joseph street, which had been at one
time chosen for that purpose. In 1874 the city council were informed by
the company that the line of railway had been located in Prince Edward
street, and the company asked the council to take the necessary step to
legalize the line, but the corporation did not take any further action in
the matter. In 1875, the company being unable to carry on its enterprise,
the railway was transferred to the Province of Quebec by a notarial deed,
and the transfer was ratified by 39 Viet. c. 2 (D.). By that act the
name of the railway was changed and the Legislature authorized the con-
struction of the road to deep water in the port of Quebec. It moreover
declared that the railway should be a public work and should b6 made in
such places and in such manner as the Lieutenant-Governor-in-council
should determine and appoint as best adapted to the general interest of
the province. After the passing of this Act the Provincial Government
caused the road to be completed, and it crossed part of the city of Quebec
from its western boundary by passing through Prince Edward street along
its entire length. The road -was completed in 1876. In 1878, L. (the
appellant), owner of several houses bordering on Prince Edward street,
sued the corporation of the city of Quebec for damages suffered on account
of the construction and working of the railway: Held, affirming the
judgment of the Court of Queen's Bench for Lower Canada, that the re-
spondent had no right of action against the corporation for the damages
EXPROPRIATION.
which he may hare suffered by the construction and work in* of the rail-
way in question. If the corporation gave the authorization required by
16 Viet, e. 100, a, 3, there was a complete justification of the acts com-
plained of. The imposing of terms was discretionary with the corpora-
tion. But the corporation never acted on the demand to legalize, and
never authorized, tae building of the railway through Prince Edward
street. If the corporation could have prevented the Government from
constructing the railway in the streets of the city, in the face of the pro-
visions of 39 Viet. e. 2," the respondent could also have prevented it. His
recourse, if any, was not against the corporation but against the Provincial
Government, the owners of the railway. Appeal dismissed with costs.
Lefebvre v. Quebec. See Cas*. Can.* S.CJR. Dig. 1893. p. 176.
REMOVAL OF TEEES ox HIGHWAY RIGHTS OF OWXEB OF ABJOIXIXG LAXD.
TV? right of property in shade trees on highways and to fence them in
conferred upon the owners of the land adjacent to the highways by s. C88
of the Municipal Act. R&M. 1902, c. 116, is not taken away by an act
incorporating a railway company with power to construct a railway along
the public highway with the consent of the municipality and according, to
plans to be approved by the council of the municipality, even although
such consent has been given and such plans approved. [Douglas v. Fox
(1880), 31 U.C.CP. 140. and Re Cuno (1888), 45 Ch. D. 12. followed.]
The defendants' act of incorporation provided that the several clauses of
the Manitoba Railway Act, R-S-M. 1902, e. 145, should be incorporated with
part of it. And the Railway Act provides that the several
of the Manitoba Expropriation Act, R.S3L 1902, e. 61. with re-
spect to the expropriation of land and the compensation to be paid there-
for shall be deemed to be incorporated mutatis mutandis with the Rail-
way Act: Held, that the defendants had no right to cot down the trees
on the highway or to lower the grade in front of the plaintiff's land, al-
though such action was necessary in carrying out the approved plans with-
out taking the ftimu steps, under the Railway Act and the Expropriation
Act, either to ascertain and pay the damage suffered by the plaintiffs to
their land injuriously affected by the intended construction, or to procure
aa order from a Judge, under s. 25 of the Railway Act, giving them tha
tjght to take possession upon giving security for payment of the compen-
sation to be awarded.
Bannaryne v. Suburban Rapid Transit Co., 15 Man. TJg. 7.
RIGHT TO cross STREETS EXFBOWUATIOX FBOCEEDIXGS OB COMPEXSATJOX
ExTErnox or crrr UMTS Ton. BOAD. PCBCHASE OF EFFECT OF.
Railways incorporated by the Dominion Parliament, where in the con-
struction of their lines of railway*, they have complied with the require-
ments of the Railway Act and obtained the con-eat of the Railway Com-
mittee, have the right to cross the highways of a city without taking; ex-
propriation proceedings under the Railway Act, or without making any
compensation to the city therefor. Where under the powers conferred by
51 Viet. e. 53, s. 9 (Ont.) for extending the limits of the city of Ottawa,
the city acquired at an agreed price, part of the road of a toll road com-
pany within such extended limits, such part thereupon ceased to have its
previous character of a toll road, and became a highway like the other
public streets of the city.
Canada Atlantic Ry. Co. v. Ottawa. Montreal & Ottawa Ry. Co. v.
Ottawa, 1 Can. Ry. Cas. 298, 2 O.L.R. 33ti.
[Affirmed in 4 6-LJL 56, 1 Can. Ry. Cas. 336, 33 Can. S.C.R. 376.]
342 EXPROPRIATION.
HIGHWAY CROSSING COMPENSATION TO MUNICIPALITY "AT OB NEAR" CITY
' POWER TO TAKE THROUGH COUNTY.
The plaintiffs were authorized by 47 Viet. c. 84 (D) to lay out, con-
struct, and finish a railway, .from a point on the Grand Trunk Ey. in the
Parish of Vaudreuil, in the Province of Quebec, to a point at or near the
city of Ottawa, in the Province of Ontario, passing through the counties
of Vaudreuil, Prescott, and Russell, and also to connect their railway with
any other railway having a terminus at or near the city of Ottawa: Held,
that "at or near the city of Ottawa" should be read as "in or near the
city of Ottawa," and the plaintiffs were authorized to carry their line to
a point in the city and to connect it with the line of the Canadian
Pacific Ry. Co. in the city. (2) That the plaintiffs had power, by impli-