While a substantial compliance only is needed with the provisions of
s. 158 of the Railway Act with respect to plans, profiles and books of ref-
erence to be filed prior to expropriation proceedings being taken, it must
clearly appear from the plans, profiles and books of reference filed, exactly
what portion of the land of each separate owner the railway company
requires, and the mere indication of the centre line of the proposed railway
is not sufficient; the book of reference is a necessary part of the filings
to substantially comply with the provisions; if the first definite informa-
tion of the owner as to the quantity of land to be taken is obtainable only
from the notice served, there has not been substantial compliance with the
act. In the absence of evidence that the company has been oppressive or
high handed, an injunction will not be granted to restrain the railway com-
pany from proceeding with the railway, even if there has not been sub-
stantial compliance witli the act, provided the railway company will
enter into an undertaking to comply forthwith with the requirements
of the act and to facilitate the proceedings for determining the amount
of compensation to be paid following Parkdale v. West. L.R. 12 App.
Cas. 602, 56 L.J.P.C. 66, 57 L.T. 602, and Hendrie v. Toronto, Hamilton &
Buffalo Ry. Co., 26 O.R. 607, affirmed 27 O.R. 46. But the Court will re-
serve to the plaintiff the right to apply to a single Judge for an injunction
to prevent any unnecessary delay in proceeding to comply with the Act
and pay compensation. Warrants of possession improperly granted to a
railway company which has not complied with the provisions of the Act
will not prevent or render invalid the registration of a plan subdividing
the lands required by the railway company, but: Held, that in the ab-
sence of acceptance by the municipality of the streets, and evidence of a
user of the streets by the public, or of evidence of the sale of lands in the
subdivision, the streets shewn on the plan do not become highways.
Quaere, per Stuart, J.: Whether or not the judgment of a Judge who is
persona designata is appealable in view of the decision in C.P.R. v. Little
Seminary of Ste. Therese, 16 Can. S.C.R. 606, since the enactment of s. 220
of the Railway Act. Quaere, per Stuart, J. : Whether or not a dissatisfied
litigant who has the right to appeal must appeal and is not a liberty to
bring the same matter before the Court in a different way, but: Held,
that where the right of appeal was doubtful and the plaintiff has given
notice of appeal, and at the same time brought an action for injunction,
in which action the validity of the order appealed from would have to be
inquired into, the matter was properly brought before the Court: Held,
also, that the Court will not be bound by agreements of counsel in a stated
ease as to the effect upon tie right of parties to the action by determina-
tion of certain questions submitted im eertaim specified ways.
Maria n T. Grand Tmk Pacific Rr. Co., 9 Cam. Ry. Cms. Ml, 2 Aha.
[Partly followed and distinguished im Gironard T. Grand Trunk Pacific
Rj. CouT 9 Can. Rr. Cas. 3*4. \ I.E. 54: considered in Samden v.
Edmonton, Dunregan A B. C. R j. COL, 16 Cam. Ry. Cas. 142.
ROCTE 3IA1" - IjOCATMOC
Application for approral of its location. ~Prinee Ropert westerly, mile
to Bile 3L23. 5 * The applicant proceeded to construct. the roadbed but
fomd that it could mot obtain MM 400.000 under its contracts with the
Government unless it was able to shew that the three and oae-^varter mules
of railway had beem eomstrocted nmder the proriaoms of the Railway Act.
190*. The applicant comtemded that thi* beim^ Merely the yard of the
eonpur, mo route mtap or loeatioo phm was repaired: Held (1. that
the compamy mot barin* complied with the prorisioma of mm. 157. 158, 15fi
of the Railway Act, the application most be refused. <2 . That the Boaid
had mo jvradietaaa mmder 9 t 10 Edw. YLL e. 3O, SL Z, emqmwerimp the
Board to approve of works eomstrneted without approral before DeeemAer
31st, 1909, simce the roadbed in question had beem constructed svbscqmemt to
Re Prince Rupert Location. Grand Trunk Pacific Rr. COL, 13 Cam. Rr.
DELAY rv COWVEXCCXG
Wmere the plan of the lime of a proposed railway has beem approved by
the Railway Commissioner of Manitoba, and filed in the land titles oflke
of the district, but mothin* has beem dome towards actually entihltuhing the
railway, except the obtaining of a charter which incorporated the pro-
rision* of the Manitoba Railway Act, and the payvemt in of a speeined de-
posit in respect of such charter, the railway company should with rea-
sonable dispatch exercise its right to acquire the land through which its
proposed fine runs by emument domain proceedings., and an owner throngii
whose property the proposed line runs ntay, am the companVs default
in proceeding within a reasonable time, apply pursuant to the provisions
of the Manitoba Railway Act, 3 Geo. V. (Man. , to hare the plamm set
Re Winnipeg Xorth-Eastern Rr. Co. Man.i, 15 Can. Rr. Cms. iC, 16
i Affirmed im U D -LIL 147.]
r*orn VACATESG ro DELAT.
Where the plan of the line of a proposed railway has beem approved.
by the Railway Commission of Manitoba, and filed in the land titles ofifa?
of Ac district, but nothing has beem dome towards actually establishing the
railway, except the obtaining of a charter which incorporated the pro-
visions of the Manitoba Railway Act, and the payment im of a specified de-
posit in respect of sn?h charter, the Public Utilities Commission of Mani-
toba has jurisdiction, upon the application of an owner through who?*
property the proposed lime runs, to set aside the plans on the company'*
default in proceeding within a reasonable time. fRe Winnipeg Xmth-
Eastern Rr. COL, 10 DJLR.4C9, affirmed as to jurisdiction.]
Re Winnipeg Xorth-Easterm Ry. Co. (No. 2, 11 DJUR. 147.
SENIOR AND JUNIOR RULE LOCATION PLAN DEPOSIT PRIORITY.
The provisions of the Railway Act, 1906, as to deposit of location plans
in the appropriate Registry Offices, and notice of such deposit override
the provisions of provincial Registry Acts, giving priority to plans for-
mally registered in accordance with their requirements; and, therefore, a
highway laid out on a plan duly registered under a provincial Registry
Act is junior to a railway built in accordance with approved location
plan, previously deposited in accordance with the Railway Act, but not
registered. Re Grand Trunk Pacific Branch Lines, 22 W.L.R. 515, 16
Can. Ry. Cas. 243, distinguished; Tennant v. Union Hank.  A.C. 45,
followed; Edmonton v. Edmonton, Yukon & Pacific Ry. Co., 13 Can. Ry.
Cas. 128, referred to.]
Regina v. Can. Pac. Ry. Co., 16 Can. Ry. Cas. 238.
LOCATION PLAN SUBSEQUENT REGISTERED PLAN PRIORITY.
A location plan having been deposited, under the provisions of the Rail-
way Act, the right of the landowner to lay out streets thereafter is sub-
ject to the railway company's right to proceed with its undertaking; and
subsequent registration of a plan opening highways is ineffective as
against the company.
Edmonton v. Calgary & Edmonton Ry. Co., 16 Can. Ry. Cas. 420.
[Affirmed in 22 Can. Ry. Cas. 182, 30 D.L.R. 222; followed in Midland
Ry. Co. v. Grand Trunk Pacific Ry. Co., 23 Can. Ry. Cas. 80.
LOCATION PLAN REGISTRATION SENIORITY.
The proper registration of the location plan of a railway approved by
the Board sufficiently establishes the railway company's seniority over a
municipality, at points of highways not previously dedicated by the filing
of plans or used, constructed or accepted by the corporation. [Edmonton
v. Calgary & Edmonton Ry. Co., 16 Can. Ry. Cas. 420, affirmed.]
Edmonton v. Calgary & Edmonton Ry. Co., 22 Can. Ry. Cas. 182, 53
Can. S.C.R. 406, 30 D.L.R. 222.
[Followed in Midland Ry. Co. v. Grand Trunk Pacific Ry. Co., 23 Can.
Ry. Cas. 80.]
LOCATION PLANS REGISTRATION EFFECT.
The date of the registration of the railway's location plan under the
Railway Act governs as to the compensation to be paid on expropriation;
and any change either in title or in improvement to the land to be expro-
priated is subject to the notice resulting from such registration.
Re Edmonton and Calgary & Edmonton Ry. Co., 15 D.L.R. 417.
An order of the Board authorizing an expropriation, and the plans and
specifications approved by it, for this purpose, can only be changed or
modified by another order of the Board.
Baril v/Grand Trunk Ry. Co., 46 Que. S.C. 295.
STREET EXTENSION RELOCATION OF RAILWAY LINE RECONSTRUCTION OP
A portion of a railway line being relocated under an order of the Board
in order to provide for a street extension, another and junior railway com-
pany whose overhead structure on the first or senior railway company's
land required reconstruction to permit the extension of the street must do
the necessary work at its own expense where there is no provision for such
work being done at the city's expense in the former order of the Board.
HaauKoa T. HaaultoB Electric d Toronto. Hamilton & Buffalo By. Cos.
(Birch Avenue Frtearioa Case,, IS Caa. By. Cas, 290.
PATHEST <W ODMPE*SATHX.
of the Board givia* Beare to a railway company to eoBstraet
of a spar track mad anthoriziBg the expropriation of the
had is coBclusrre, ual*. reversed OB appeal to tie Supreaw
Court, as to the right of the company to expropriate the laad aad coa-
stnct the exteBsioa, aad the met that the oner of the bud is boaa fide
proceeding to appeal to the Supreme Court tram such order would aot
justify a deby ia graatiBg a warraat, under ft. 217 of the Railway Aft,
19M, to pat the company ia possessaoa of the required bad before pay-
meat if the rompwation. as that >eetioa Bakes it the duty of the Judge
to grant the warraat oa a^l^* M to his
accessary. Sneh a warraat AooM, hovever. aot he graated
there is nave aipat aad sohstaatial aeed for iauaediate actioa ia the ia-
tereat of the railway itself or of the pablir , aad it is aot saficieat to shew
that the iateieats of aa individual, whose property would be rtached by
the spar liae vbea buDt, arvnttly call for saca coBBtnvliaB ia order that
he any profitably carry OB his haiaantn oa sach property. [Kiagstoa ft
PeBtbroke By. Co. aad llarphj (18SC), 11 PJL 384, aad CLP.B. T. Ste.
Therese. IS Cam. S.C.B. at p. C17, folkrwwL]
Be Caa. Xorthera By. Co. aad Blackvood, 20 Uaa. LB. 113, 15 WJJL
OF FOSSKSSHHC MA3fATOET PKOTISIOXS.
The effect of the ehaage of the word " BHiy rF ia SL 217 of the Baihray
Art. BJ&C. 1906, e. 37, to "shalF* is that, oaee it is established to the
tatbfartioa of the Judge that ianediate posseseJoa of the bud by the
tompaay Beeessary,, the Judge has BO aHeraatne but to graat the war-
raat. He Blast eserrke his diaeretioB. howwvr, as to whether Beeessity ia
established. Amd here there was mo saggestioB of the aecesftty of iawe-
diate prorisioa of facilities for the public-; the possesaoa was aot acces-
sary for aay urgeat parpoee of the c*BupaaylfNhe basis of the application
was the Betca*ilj of SL: aad B/s property rights were as aiuch eatxtkd to
eoBsideratiaB as the aecessities of S.
Be Caa. Xorthera By. Co. aad Bbckwood, 15 W XJL 454.
or FOSSESSIOX JraisMcnox or Jmcx AS PEBSOXA
rwEcmcvr DEPOSIT OF ruoc.
Be Graad Tmak Paeifie By. Co. and Mareaa, 9 WJLR. 2U (Aha.).
WAUULVTS FOB posiscsisioTt Sm TO BE PAD mo COCBT.
Be CaaqriwUford, Lake Oatario & Westera By. Co, 3 DJ^R. 889, 3
XoncE ESTEST or ncnr EASKVEXT ^LAXBS" AMEXPMEAT or NOTICE.
A Botice of expropriatioB *ntiig a ebnse: ~B*serrim to the said"
fbadowBeraf <b the right or piUDegt by way of easeaMat apoa the laads
expropriated of Buintaiaiag. repairiag and n$iag the dam*, sluice gates,
aad brad race at preheat constructed aad existiag apoa the said Hadit,
aad of wtaiataiaiag aad asiag ia their preseat ctwdhioa aad capacity the
hjdranlie rights aad prrrQeges thereby eoatrolled or ea joyed." By the
iaterpretarJOB clause of the Baflway Act, 1903. s. 2 |BUH, "Ike expression
bads' BHBBS bads the acqniriag' takiag; or usiag of which n iacideat:
to the exercise of the powers given by this Act or the special Act, and in-
cludes real property, messuages, tenements, and hereditaments of any ten-
ure. . . .": Held, by the reservation contained in the notice, if effect
were given thereto, the railway company would acquire an easement over
at least a portion of the lands of the owners, and as, under the above
clause of our Railway Act, the company have no right to acquire an ease-
ment, the order for immediate possession must be refused, unless the own-
ers permit an amendment in the notice by striking out the objectionable
clause. [Reference to s. 85 of the English Land Clauses Consolidation
Act; Hill v. Midland Ry. Co., 21 Ch. D. 143; Ayr Harbour Trustees v.
Oswald, 8 App. Cas. 623; Ontario & Quebec Ry. Co. v. Philbrick, 12 (an.
Re James Bay Ry. Co. and Worrell, 5 Can. Ry. Cas. 23, 6 O.W.R. 512.
SUFFICIENCY OF NOTICE IMMEDIATE POSSESSION.
The defendants had, under their special Act, power, to acquire "any
privilege or easement required by the company . . . over and along
any land, without the necessity of acquiring a title in fee simple thereto;"
and the act defined "land" as including any such privilege or easement,
etc. In giving notice of expropriation the defendants did not state wheth-
er it was the fee simple, or merely some easement or privilege over the
land which they sought to acquire, but only that they proposed to acquire
the land "to the extent required for the corporate purposes of the com-
pany:" Held, that such notice was too uncertain a foundation for expro-
priation proceedings, and the defendants were not entitled to a warrant
for immediate possession under s. 170 of the Railway Act, 1903.
Lees v. Toronto & Niagara Power Co., 6 Can. Ry. Cas. 128, 12 O.L.R.
IMMEDIATE POSSESSION STATION SITE PLANS NOT PREPARED.
A railway company having obtained an order from the Board authoriz-
ing it to take the lands of the owner for the purposes of a station the com-
pany made a motion under s. 170 of the Railway Act, 1903, for an order
for immediate possession of the said lands: Held, that as the affidavits
failed to show that the railway company was ready forthwith to proceed
with the erection of the station, the motion must be dismissed but with-
out prejudice to the right of the railway company to renew the motion
when the conditions have changed.
Re Williams and Grand Trunk Ry.-Co., 6 Can. Ry. Cas. 200, 8 O.W.R.
WARRANT OF POSSESSION PRACTICE.
Where a railway company under its powers to expropriate land obtained
a warrant for possession and the amount awarded the owner in subsequent
arbitration proceedings is less than the amount at first offered by the com-
pany, the costs of obtaining the warrant for possession shall be borne by
Re Vancouver, Victoria & Eastern Ry., etc., Co., and Milsted, 7 Can.
Ry. Cas. 257, 13 B.C.R. 187.
WARRANT OF POSSESSION APPEAL FROM RES JUDICATA.
The defendant applied for warrant of possession under the Railway Act
regarding expropriation of lands, and the Judge, sitting in Court, granted
the warrant of possession on facts which the Court en bane, in Marsan v.
Grand Trunk Pacific, 9 Can. Ry. Cas. 341, 2 Alta. L.R. 43, held were not
sufficient to give the Judge jurisdiction, and the order was therefore inval-
id. The plaintiff, instead of taking an appeal from the order, brought an
a**km against the railway company, -fagr injunction and
Held, that the plaintiff could maintain the action, for the reason that,
even if an appeal would lie front the order, the plaintiff was entitled to
additional relief by way of an injunction and damages which could not be
given on appeal: Held, also, the principle of res judkata would not ap-
ply, as the order granting the warrant of possession was made without
jurisdiction. [Attorney-General for Trinidad T. Enriche. 63 L-J.P.C. 6,
L.R (1893) A.C. 518, 1 R 440, 9 L.T. 50S. referred to] Held, also, that
the railway company having acted under the invalid warrant of possession
had committed a technical trespass and was liable for nominal damages,
which carried cost*. [Harsan T. Grand Trunk Pacific By. COL, 9 Can. Ry.
Cas. 341, distinguished.]
Gironard T. Grand Trunk Pacific Ry. Co, 9 Can. Ry. Cas. 3->4. 2 Aha.
FOB IM MiniATE POSSESSION JdHCIAt. MSCKETIOX.
Where a railway company moved, under s. 217 of the Railway Act, 1906,
for a warrant for immediate possession, it was held, that although it was
a case of hardship on the landowner there was no discretion left to the
Judge under the statute.
McCarthy v_ TOlsonburg. Lake Erie 4 Pacific Ry. Co.. l Can. Ry. Cas.
272, 2 O.W.X . 34.
op NOTICE ENFOWCING AWAJU> POSSESSION.
t of a notice to take lands for railway purposes, wader
the Railway Act, 1886, e. 109, a. 8, subs. 26, must take place while the
notice is still a notice and before the intention has been exercised by tak-
ing the lands. The proper mode of enforcing an award of compensation,
made under the Railway Act. is by an order from the Judge. Quaere.
whether sobs. 31 of s. 8, permits possession to be given before the price is
fixed and paid of any bind, except land on which some work of construc-
tion is to be at once proceeded with.
Can Pae. Ry. Co. T. Ste. Therfee. 16 Can. &.CJEL 60S.
ABJLVDOXMEXT SERVICE OF NEW NOTICE.
Defendant company proposing to expropriate certain lands of plaintiff.
served notice to treat pursuant to s. 193 of the Railway Act, 1906, but
upon disagreement as to price applied to a Judge for the appointment of
an arbitrator, under & 196, and also for a warrant of possession under ss.
217, 218. This aplication was refused because the notice to treat was not
accompanied by the certificate of a disinterested surveyor under s. 194.
Thereupon the company served a new notice, accompanied by a proper cer-
tificate, and at the same time served a notice abandoning and desisting
from the first notice and all proceedings bad thereon. Plaintiff treated
this bitter notice as given under s. 207 and proceeded to tax costs as of
an abandonment under ss. 199, 207. The costs were submitted to Clement.
J., the Judge applied to. who directed that they be taxed by the registrar,
and Clement, J. adopted the taxation. At the trial, Irving, J., came to
the conclusion that the confirmation by the Judge after preliminary tax-
ation by his clerk, amounted to a taxation in fact by him. and on the
merits was of opinion that there was no abandonment, and dismissed the
plaintiff's action: Held, on appeal, that the new notice to treat being
served at the same time as the abandonment of the first notice, was man-
ifestly a continuation of the original proceedings, and did not come within
a. 207, an abandonment under which is one with the intention of wholly
discontinuing and taking no further action. Held, further, that the sub-
ject was not res judicata by reason of the taxation by the Judge or by the
taxing officer on the Judge's direction. Semble, per Galliher, J.A. : That
it was competent for the Judge to direct the taxation as he did and then
adopt it as his own act, it not being the intention of the statute that the
Judge should perform the actual clerical work of taxation.
Atwood v. Kettle River Valley Ry. Co., 15 B.C.R. 330.
The abandonment of the usufruct from land need not be made in any
particular form. It may result from circumstances such as the conduct
of the usufructuary, his failure to exercise his rights, etc., from which the
Court may determine it. Expropriation for the purposes of an electric
railway (Art. 5164 et seq. R.S.Q.) does not affect the right of the owner
expropriated to damages for injury to the land which is left by the sub-
stitution of a steam for an electric railway. Therefore, this right is
independent of the enhanced value, if any, that is given to the land by the
railway and the arbitrators' award fixing the indemnity, is not a bar to
recovery of a claim, resulting from the expropriation. Such claim, more
over, is in no way based on the special provisions above referred to, but
is founded on the common-law liability stated in Art. 1053 C.C. (Que.).
Therefore it only applies to the damages actually suffered, to be revived
in case of fresh damage afterwards and cannot be determined by a gross
amount covering past and future damages.
Lapointe v. Chateauguay & Nor. Ry. Co., 38 Que. S.C. 139 (Sup. Ct.).
RIGHT ACQUIRED BY RAILWAY COMPANY ABANDONMENT BY RAILWAY EASE-
The title to land expropriated for a right-of-way by a railway company
that received a subsidy under 27 Viet. (X.B.), c. 3, 1864, and 28 Viet.
(N.B.), c. 12, 1865, is, by the provisions of such acts, limited to an ease-
ment merely, and upon abandonment thereof for railway purposes the
title reverts to the original owner.
Carr v. Can. Pac. Ry. Co. (N.B.), 14 Can. Ry. Cas. 40, 5 D.L.R. 208.
PROCEDURE WARRANT OF POSSESSION NONCOMPLIANCE WITH STATUTORY
A warrant of possession, issued under s. 217 of the Railway Act, 1906,
will be valid until set aside, although all of the statutory requirements
were not strictly complied with, as s. 220 of the Act provides that the
proceedings are to be continued in the Court which issued the warrant.
[Marsan v. Grand Trunk Pacific Ry. Co., 2 Alta. L.R. 43, 9 Can. Ry. Cas.
341, and Can. Pac. Ry. Co. v. Ste. Therese, 16 Can. S.C.R. 606, considered.]
Sanders v. Edmonton, Dunvegan & British Columbia Ry. Co., 16 Can.
Ry. Cas. 142, 14 D.L.R. 88.
[Referred to in 18 Can. Ry. Cas. 71.]
TRESPASS DEFENCES WARRANT OF POSSESSION SERVICE OF, ON REGIS-
TERED OWNER AFTER SALE.
In an action against a railway company for a trespass, a warrant of
possession for the locus in quo, issued under s. 217 of the Railway Act,
1906, will be a good defence, although some of the statutory requirements
pertaining to the issue of the warrant were not complied with, as the reg-
ularity of the warrant can be inquired into only in the proceeding in
which it was issued. The service on the registered owner of land of notice
of an application, under s. 217 of the Railway Act, 1906, for the issuance
of a warrant of possession, is a sufficient compliance with s. 220, requir-
ing that such notice shall be served on "the owner ... or the persons
empowered to convey the lands, or interested" therein, notwithstanding
that before the warrant was granted, the registered owner sold the land
to and it was then in the possession of a third person, whose transfer had
not been registered, and whose interest was not disclosed by caveat or
otherwise. (Per Harvey, CJ., and Scott, J.. affirming the decision ap-
pealed from on an equal division of the Court.)
Sanders v. Edmonton, Dunvegan & British Columbia Br. Co., 16 Can.
By. Cas. 142. 14 D.LB. 88.
'[Referred to in IS Can. By. Cas. 71.]
SERVICE OF XOTICE OWXER AT TIME OF DEPOSIT OF PLAN SCBSEQCEXT
PURCHASER ORDER RESTRAINING ARBITRATORS RIGHTS OF OWNER.
A railway company taking expropriation proceedings for its right-of-way
under the Bailway Act. 1906, is not entitled to proceed _ijon a notice to
treat served upon a person who was the owner at the time of the deposit of
its plan, profile and book of reference, to the exclusion of a purchaser whose
title was already registered at the time the notice to treat was served on
his vendor; the purchaser is entitled to have an offer made to him which
be can either accept or refuse and it is not sufficient that the purchaser
was offered the opportunity of taking the vendor's place in the arbitration
proceedings. Prohibition lies at the instance of the purchaser to restrain
arbitrators in expropriation proceedings under the Bailway Act, from pro-
ceeding upon a notice to treat served upon his vendor who has ceased to
have any title to the land in dispute upon the registration of the pur-
chaser's deed prior to such notice to treat.
Lachine, Jacques Carrier & Maissoneuve By. Co. v. Reid. 20 D.L.E. 816.
See also B. on p. 295.
(1) The costs of an owner who succeeds in an arbitration under the
Bailway Act shall be taxed as between solicitor and client. (2i The
tariff of costs prescribed for ordinary litigation may be accepted as a