*wner of portions of the farm on both sides of the fine of railway, and has
a right of access to the crossing. A right-of-way may be acquired, al-
though the dominint tenement is not contiguous to the servient tenement,
judgment of Boyd. C-. ami mid.
Guthrie v. Can. Par. Ry. Co.. 1 Can. Ry. Cas. 1, 27 VR (Ont.| *i.
[Reversed in 1 Can. Ry. Cas. 9. 31 Can. S.C.R. 133: distinguished in
Grand Trunk Ry. Co. v. v'alliear. 3 Can. Ry. Cas. 399, 7 QXJL 361.]
EASEMENT RIGHT-OT-WAT Uses PKEHWTIOX.
A railway line passed over the northern half of lots 32. 33. 34 respertive-
rr, having a trestle bridge over a ravine on 34. near the boundary of 33.
G_ the owner of kit 33 'except the part owned by the railway company
for a number of years used the passage under the trestle bridge to reach a
lane on the couth half of lot 34 over which he could pass to a village on
the west side, his predecessor in tide, who onncd all these lots, having
used the same route for the purpose. The company having filled up th-
ravine, G. applied for mm injunction to have it reopened: Held. reversin~
the judgment of the Court of Appeal (27 AJL (Ont.) 64, 1 Can. Ry. Ca^
372 FARM CROSSINGS.
1), that such user could never ripen into a title by prescription of the right-
of-way nor entitle G. to a farm crossing on lot 34.
Can. Pac. Ry. Co. v. Guthrie, 1 Can. Ry. Cas. 9, 31 Can. S.C.R. 155.
[Distinguished in Grand Trunk Ry. Co. v. Valliear, 2 Can. Ry. Cas. 245,
1 O.W.R. 695; followed in Oatman v. Grand Trunk Ry. Co., 12 Can. Ry. Cas.
521, 2 O.W.N. 21, 16 O.W.R. 905; distinguished in Leslie v. Fere Mar-
quette Ry. Co., 13 Can. Ry. Cas. 219, 24 O.L.R. 206.]
DUTY TO PROVIDE RETROACTIVITY OF STATUTE.
Before the Railway Act of 1888 there was no statutable obligation upon
a railway company to provide and maintain a farm crossing where the rail-
way severed a farm, and s. 191 of that Act, providing that every company
shall make crossings for persons across whose lands the railway is car-
ried, is not retrospective. [Vezina v. The Queen (1889), 17 Can. S.C.R. 1,
and Guay v. The Queen (1889), ib. 30, in effect overrule Canada Southern
Ry. Co. v. Clouse (1886), 13 Can. S.C.R. 139, and approve Brown v.
Toronto & Nipissing Ry. Co. (1876), 26 U.C.C.P. 206.]
Ontario Lands & Oil Co. v. Canada Southern Ry. Co. et al., 1 Can. Ry.
Cas. 17, 1 O.L.R. 215.
[Followed in Carew v. Grand Trunk Ry. Co., 5 O.L.R. 653, 2 Can. Ry.
Cas. 241 ; relied on in Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 249 ;
followed in Wright v. Michigan Central Ry. Co., 6 Can. Ry. Cas. 133.]
"FARM PURPOSES" INJURY TO STRANGER DUTY.
The defendants having, in compliance with the requirements of s. 191 of
the Railway Act, 1888, made, and assumed the duty of keeping in repair
a crossing over their railway where it crossed a certain farm, nevertheless
allowed it to get into an unsafe and defective condition whereby a horse
of the plaintiff was injured. The plaintiff was at the time using the horse,
with the permission of the owner of the farm, in hauling gravel from a
part of the farm to the highway, for which purpose it was necessary to
cross the railway: Held, without deciding whether the right of user of
such a crossing is limited to a user for farm purposes, but assuming it to
be so limited, that the hauling of gravel was, under the circumstances, a
farm purpose, and that the defendants owed a duty, even apart from s.
289, towards one using the crossing by invitation of the owner.
Plester v. Grand Trunk Ry. Co., 1 Can. Ry. Cas. 27, 32 O.R. 55.
[Discussed in Tor. Ham. & Buffalo Ry. Co. v. Simpson Brick Co., 8 Can.
Ry. Cas. 464, 17 O.L.R. 632; referred to in Clayton v. Can. North Ry. Co.,
7 Can. Ry. Cas. 355, 17 Man. L.R. 432.]
PECUNIARY COMPENSATION IN LIEU OF CROSSING.
When the value of a piece of land enclosed by a line of railway is so small
as to be disproportionate to the cost of a farm crossing; and is of no
utility to the farm from which it is so separated, the Court has the power
and the discretion to grant to the proprietor a pecuniary compensation in
lieu of a crossing.
Martin v. Maine Central Ry. Co., 1 Can. Ry. Cas. 31, 19 Que. S.C. 561
NONREPAIR OF APPROACH WITHIN FARM INJURY TO TENANT OF FARM-
DUTY OF RAILWAY COMPANY AS TO REPAIR.
A railway company is not obliged or authorized to go upon the adjoin-
ing lands of the owner and repair the approaches to a farm crossing over
the railway. Where an accident to the plaintiff was caused by such ap-
proach being out of repair, held that the defendants were not liable, and a
FAKM CROSSINGS. 373
nonsuit was granted. [Peterborough v. Grand Trunk By. Co., 32 O-B. 154,
I il. 1 O.LJL 144, followed.]
Palmer T. Michigan Central By. COL, 2 Can. By. Cas- 239, 2 O.W.B. 477,
[Affirmed in 7 OJLJL 87, 3 Can. By. Ca& 194.]
Drrr TO PBOTIDE COSYETASCE OF LAS TO.
The plaintiff-* father in 1882 conveyed part of his farm to the Midland
By. Co., who constructed their railway so as to sever the farm, but did not
agree to make a farm crossing. In 1900 the father conveyed to the plain-
tiff all the farm not previously conveyed to the railway company: Held.
that the plaintiff could not compel the defendants, who had acquired the
Midland By. in 1893. to provide a farm crossing, either by virtue of the
Tlunliiikm Bailway Act or Ontario legislation applicable to the rail-
way before 1893. * Beview of the statutes affecting the Midland By. Co.
[Ontario Lands and Oil Co. v. Canada Southern By. Co. (1901), 1 O.LJEL
Carew T. Grand Trunk By. Co., 2 Can. By. Cas. 241, 5 O-LJL 653.
PRIVATE WAT ACBOSS KAILWAT LAKHS EASEMELVT BT
USEE XOT LVCOXPATIBLE WITH BEQUWEMEXTS Of EAH.WAT.
Bailway lands may be dedicated for public or other user so long as that
user is not incompatible with the present and actual requirements of the
railway. Where an adjoining landowner had used a well-defined path
across railway station grounds continuously for over 30 years, his user was
held to be confirmed by lapse of time. [Can. Pac. By. Co. v. Gnthrie. 1 Can.
By. Cas. 9, distinguished.]
Grand Trunk 'By. Co. T. VaJliear. 2 Can. By. Cas. 245, 1 O.WJB. 95.
[Serened in 7 OT.B 364, 3 O.WJL 98.]
BIGHTS TO APPOACHES DCTT TO KEPATR.
Where a railway severs a farm and the company have constructed a
farm crossing, no duty is cast upon them, in the absence of express agree-
ment, to keep in repair the approaches thereto within the farm. Semble, in
the ease of the approaches to an overhead bridge on a public highway, the
presumption would be that the approach is part of the bridge and to be
kept in repair by the railway company. [6 O J-B. 90, 2 Can. By. Cas. 239.
Palmer T. Michigan Central By. Co.. 3 Can. By. Cas. 194, 7 O-LJL 87.
TITLE TO JURISDICTION or MAGISTRATE'S corn.
In an action for a farm crossing, it is sufficient if the plaintiff be shewn
to be the actual bona fide owner, and in possession as such of the land
rnoanrrt by the railway, although his title is not registered: and the fact
that the land was purchased and cleared by him. long subsequent to the
building of the railway, is no bar to his right of action. The district
Magistrate's Court has no jurisdiction to order the construction of a farm
crossing even when the cost thereof is alleged to be less if the crossing
would create a servitude, and would be interfering with future rights.
Boldue T. Can. Pat By. COL, 3 Can. By. Cas. 197, 23 Que. SLC. 238.
CATTLE AM> FAKM PASSAGE TRESTLE BUDGE.
A railway company, desiring to fill up a trestle bridge under which there
is a farm and cattle passage, in lien thereof offered a farm crossing at rail
level: Held, that the application must be refused because the agreement
is valid and binding between the parties as to the crossing, and the appli-
374 FARM CROSSINGS.
cation is not in tlie public interest, but solely to save expense to the rail-
Anderson v. Toronto, Hamilton & Buffalo Ry. Co. (Farm Crossing
Case), 3 Can. Ry. Cas. 444.
MEANS OF ACCESS FOE CATTLE STATUTORY RIGHT OF LANDOWNER RIGHT
The owner of a farm has no statutory right under s. 198 of the Railway
Act, 15)03, to have a farm crossing constructed to sufficiently provide a
satisfactory means of access for his cattle to and from a spring. [V6zina
v. The Queen (1889), 17 Can. S.C.R. 1. applied.]
Re Armstrong and James Bay Ry. Co., 5 Can. Ry. Cas. 306, 12 O.L.R.
JURISDICTION OF SUPERIOR COURTS.
At the final hearing of a case, the Court has power to reverse an inter-
locutory judgment rejecting a declinatory plea, and to dismiss the action
for want of jurisdiction. The Superior Court of Quebec has jurisdiction in
actions to compel railway companies within the legislative .authority of
the Parliament of Canada, to make railway crossings, to pay damages for
their neglect to do so, etc., the Railway Act, 1903, having nowhere taken
away such jurisdiction by express words, or necessary implication.
Perrault v. Grand Trunk Ry. Co., 14 Que. K.B. 245.
[Reversed in 36 Can. S.C.R. 671, 5 Can. Ry. Cas. 293.]
RIGHT TO ENFORCEMENT OF STATUTORY CONTRACT.
The right claimed by the plaintiff's action, instituted in 1904, to have a
farm crossing established and maintained by the railway, company can-
not be enforced under the provisions of the Act, 16 Viet. c. 37 (Can.) in-
corporating the G.T.R. Co. Judgment appealed from 14 Que. K.B. 245, re-
versed, Idington J., dissenting in regard to damages and costs.
Grand Trunk Ry. Co. v. Perrault, 5 Can. Ry. Cas. 293, 36 Can. S.C.R. 671.
CROSSING UNDER RAILWAY HIGH EMBANKMENT.
The Board has jurisdiction under s. 198 of the Railway Act, 1903, to re-
quire a railway company to make a farm crossing under its railway.
Where the railway was carried across a farm upon a high embankment,
a/id any crossing over it would be inconvenient, the owner was held entitled
to an undercrossing, in addition to payment of the purchase money for the
land taken and damages. [Reist v. G.T.R. Co., 6 U.C.C.P. 421, approved;
Armstrong v. James Bay Ry. Co., 5 Can. Ry. Cas. 313, 12 O.L.R. 137, not
Re Cockerline and Guelph & Goderich Ry. Co.. 5 Can. Ry. Cas. 313.
[See Lalande v. Can. Northern Ontario Ry. Co., 21 Can. Ry. Cas. 194;
followed in Atkinson v. Vancouver, Victoria & Eastern Ry. Co., 24 Can. Rv.
SALE OF LAND TO RAILWAY COMPANY RESERVATION OF RIGHT-OF-WAY
On the sale and conveyance of land to a railway company, on which there
existed a bridge or viaduct spanning a valley, the vendors reserved "the
right-of-way under the said bridge as now enjoyed by the vendors." At
that time the only use made of the right-of-way was by persons on foot, or
with horses, carts, etc.: Held, that "as now enjoyed" meant "as now
use," i.e., for farm purposes, and did not justify the laying and xising a
railway under the bridge. [Dand v. Kingscote, 6 M. & W. 174, and United
FARM CROSSIXGS. 375
Land Co. r. Great Eastern Ry. COL, LR. 17 Eq. 158, 10 Ch. 586, dis-
QUL Pae. Ry. Co. T. Grand Trunk Ry. Co^ 5 Can- Ry. Caa, 400, 12 O JLR,
[Relied OB in Fraser T. Can. Pae, Ry. Co., 17 Man. KR. 672, 8
Wright having purchased lands on both sides of the CJS. Ry. Co. after
the line was constructed, for which no farm crossing had been furnished,
applied to the Board for a farm crossing over the railway. Without thi~
crossing an inconvenient route was necessary to reach the lands of the
owner across the railway: Held, by the Chief Commissioner, following
Ontario Lands (Ml Co. T. Canada Southern Ry. Co.. 1 Can. Ry. Ca& 17.
that the applicant had no absolute legal right to the crossing; that it could
only be granted by the Board in the exercise of the discretion given by &
255* of the Railway Act 1906 (subs. 2, & 198 of the Railway Act, 1903) ;
that the applicant should, therefore, bear the cost of its construction and
maintenance and the company should receive reasonable compensation, but:
Held, by the majority of tie Board that the railway company must con-
struct and maintain at its own expense an adequate and satisfactory farm
crossing over the railway on Wrighfs farm.
Wright T. Michigan Central Ry. Co., 6 Can. Ry. Cas. 133.
TEMPOKABY BOAD EXTRAXCE GATES AGKEEVEST TO novme.
The plaintiff* constructed their railway through a quadrilateral parcel
of bind owned by one S. the predecessor in title of the defendant. By an
agreement with S- the plaintiff* acquired (for a temporary road) a strip
of land crossing their tracks leading from the Hamilton road to the John-
son Settlement road, which was used as a diversion under s. 183 of the
Railway Act. 13*588. while a bridge was being constructed to carry the rail-
way over the Hamilton road and afterwards while repairs were being made.
In the deed from S. the plaintiffs agreed to erect in lien of farm crossings.
four gates for entrances to the temporary road from the four parcels of
land into which the original parcel had been subdivided. The plaintiffs
closed that part of the temporary road leading from their right-of-way to
the Johnson Settlement road and brought an action for an injunction re-
straining the defendant from trespassing npon it: Held, that the tem-
porary road had not been dedicated as a highway, but that the defendant
was entitled to a right-of-way over it to reach the Johnson Settlement road.
Toronto, Hamilton 4 Buffalo Ry. Co. v. Hanley. 6 Can. Ry. Cas. 321. 6
A railway constructed by the defendants" predecessors in title crossed the
plaintiffs" respective farms. In 1854. when the railway was being hud.
bridges and an underpass were constructed by the railway company to
enable the owners of the farms to pass from one side of the railway to the
other, and were for more than 50 years maintained and used in connec-
tion with the plaintiffs' farms, with the knowledge of the defendants and
their predecessors in title, without any objection on their part: Held, on
the evidence, that the bridges and underpass were provided for and en-
joyed by the plaintiffs' predecessors in title as part of the agreements or
arrangements under which the defendants' predecessors in title acquired
their right-of-way through the lands in question, and the il< fnadaali were
bound by them. There could be no question of ultra vires; the swbject-mat-
376 FARM CROSSINGS.
ter of the agreements was within the powers and authority of the railway
company in dealing for the acquisition of a right-of-way. The defendants
were in the wrong in assuming to alter or reconstruct the bridges and un-
derpass without the sanction of the Board; and it was for them, and not
for the plaintiffs, to apply to the Board. Judgments of Boyd, C., and
Meredith, C.J.C.P., 7 O.W.R. 798, affirmed.
McKenzie v. Grand Trunk Ry. Co.; Dickie v. Grand Trunk Ry. Co., 7
Can. Ry. Cas. 47, 14 O.L.R. 671.
[Followed in Toronto, H. & B. Ry. Co. v. Simpson Brick Co., 17 O.L.R.
632; Leslie v. Pere Marquette Ry. Co., 13 Can. Ry. Cas. 219, 24 O.L.R. 206. J
LANDLOCKED LANDS WAY OF ACCESS TO BRICKYARD LAND ON ONE SIDE OF
THE RAILWAY COST OF CONSTRUCTION.
H. N. (a brick manufacturer) applied to the Board under ss. 252, 253 of
the Railway Act, 1906, for an order directing the T. H. & B. Ry. Co. to pro-
vide and construct a suitable crossing where the railway abuts on the lands
of the applicant. By reason of the construction of the T. H. & B. Ry., N.
was deprived of access to a traveled road except by passing over the lands
of his sons and crossing a number of railway tracks. The object of the ap-
plication was to obtain access to the said road by a crossing over the rail-
way for the purpose of more conveniently carrying on his manufacturing
business, but not in any way for farm purposes or as a farm crossing:
Held, that the application for a crossing of the nature of a farm crossing
should be granted by the Board in the exercise of its discretion, upon the
condition that all expenses of construction and maintenance of the cross-
ing must be borne by the applicant.
New v. Toronto, Hamilton & Buffalo Ry. Co., 8 Can. Ry. Cas. 50.
[Followed in Richards, etc. v. Grand Trunk Ry. Co., 14 Can. Ry. Cas.
CONTRACT UNDERCROSSING SUITABLE FARM CROSSING.
An application was made to the Board under ss. 252, 253 of the Railway
Act, 1906, for an order directing the C.P.R. Co. to provide and construct
a suitable farm crossing. The applicant complained that the present un-
dercrossing was too small to carry on properly his farming operations, and
applied to have it enlarged: -Held, that the application must be refused,
the railway company having carried out their contract in regard to the
Stiles v. Can. Pac. Ry. Co. (Case No. 1141), 8 Can. Ry. Cas. 190.
MANUFACTURING PURPOSES USE OF CROSSING FOR BUSINESS OF BRICK-
YARDS AGREEMENT TO PROVIDE.
S. 191 of the Railway Act, 1888, is not restricted in its application to
crossings for farm purposes merely, notwithstanding the heading and side-
note "Farm Crossings," which may be taken as descriptive of the charac-
ter of the construction of the crossing, and not restrictive of the pur-
poses for which it may be used or of the uses to which the lands crossed
by the railway may be put, and notwithstanding the words of the section
itself, "convenient and proper for the crossing of the railway by farm-
ers' implements, carts and other vehicles," which may be similarly inter-
preted. The defendants, as lessees of S., occupied and operated a brick-
yard, in a city, on the north side of the plaintiffs' railway, and in connec-
tion with their business used a private lane over the property of M., lying
to the south of the railway. This lane led to a street, and was the only
means of access from the brickyard to a public highway. To reach this
lane, the defendants used a crossing over the railway and their right to do
FARM CROSSINGS. 377
so was called in question by this action. When the railway was built, the
land leased by the defendants and that owned by M. were the property of
the Messrs. B.. who in December, 1894, conveyed to the plaintiffs a right-of-
way through their property, and obtained simultaneously with their con-
vevance an agreement by which the plaintiffs covenanted to provide and
maintain "a farm crossing;** at the point now in question, which was duly
constructed. The Messrs. B. conveyed both properties to M. in 1901, and
in 1903 F. acquired from M. the premises afterwards leased by the de-
fendants. In his conveyance M. granted to F. a right-of-way over the lane
opposite the crossing. S. acquired title from F. and subsequently leased to
the defendants. This land had been in use as a brickyard since 1868,
but lay idle from that year until 1903, when S. established a brick-making
industry upon it. The plaintiffs were aware that S. bought with, the in-
tention of using the crossing and the lane to the south as the means of con-
veying from his yard, brick for local trade, and with, this knowledge they
reconstructed and kept in repair the crossing in question which was used
by S. and the defendants for that purpose, without objection by the plain-
tiffs, until 1906, when they complained of its use, and began this action in
July, 1907: Held, that a railway company acquiring a right-of-way may
take the land required subject to reservations in favour of the grantor of
such rights of crossing or other easements as may be agreed upon, and are
not inconsistent with the use of the right-of-way for railway purposes; an
agreement for a crossing contemporaneous with the deed of the right-of-
way is equivalent to a reservation in the deed itself; and, the vendors
having made such an agreement, the character and extent of the right of
crossing must be determined by the terms of that agreement. Subject to the
question of severance, the covenant of the plaintiff* with the '"vendors,
their heirs, executors and administrators,** enured to the benefit of the
assigns or grantees of the vendors, including lessees of such grantees; and
the use which the defendants were making of this crossing was within the
rights conferred upon the Messrs. B. by the agreement of the plaintiffs, not
being, upon the evidence, inconsistent with the safe operation of the rail-
way, nor unduly increasing the burden of the easement created by the
agreement: Held, also, that, although when the right of crossing was
created the lands on either side of the railway belonged to the same own-
ers, and were now held by different owners, there was no such severance as
would involve the cesser of the right of crossing. [Midland By. Co. v.
Gribble,  2 Ch. 827 ? distinguished.]
Toronto, Hamilton & Buffalo By. Co. v. Simpson Brick Co., 8 Can. By.
Cfcs. 464, 17 (XL.B. 632.
[Followed in Hillhouse, et al. v. Can. Pac. By. Co., 17 Can. By. Gas. 427.]
CATTLE PASS SIJBSTITCTLXG DRATSAGE PIPE.
In an action against the defendants for damages for filling up a culvert
used as a cattle pass under the defendants' embankment and substituting
a drainage pipe, the plaintiff claimed the right to have the culvert main-
tained at its full size under an agreement made at the time of construc-
tion, providing that the flow of the waters of a certain drain upon the
lands to be crossed by the railway should not be interfered with, that he
had acquired an easement by prescription, and that under s. 257 of the
Railway Act, 1906, the defendants could not fill in the culvert without
leave of the Board: Held, (1) that the defendants had the right to sub-
stitute any other means of drainage to enable the water to flow through
the drain mentioned in the agreement. (2) That no easement by preaerip-
378 FARM CROSSINGS.
tion had been acquired. [Can. Pac. Ey. Co. v. Guthrie, 31 Can. S.C.R. 155, 1
Can. Ry. Cas. 9, followed.] (3) That s. 257 of the Act did not apply.
Oatnian v. Grand Trunk Ry. Co., 12 Can. Ry. Cas. 521, 2 O.VV.N. 21.
COST OF MAKING PROPER ENJOYMENT OF LAND.
Application under ss. 252, 253 of the Railway Act, 1906, directing
the respondent to construct a farm crossing for the proper enjoyment by
the applicant of his land on the north side of the railway. The applicant's
farm of 72 acres was a subdivision of a larger farm provided with a cross-
ing, but was worked as a separate farm only, upon its being acquired by
the applicant, thus requiring a crossing to join the two portions of the
farm. The practice of the Board has not been uniform, but not infre-
quently the entire cost of making a farm crossing has been imposed upon
the railway company, especially in the Province of Quebec and Eastern
Ontario, the facts and circumstances, especially the size of the farms, being
considered in each case: Held, that the respondent should be directed by
agreement to construct at its own expense a farm crossing for the appli-
rant upon the dividing line 1 between him and his neighbour.
lliddell v. Grand Trunk Ry. Co., 13 Can. Ry. Cas. 216.
SEVERANCE OF FARM UNDERGRADE CROSSING AGREEMENT MAINTENANCE
In 1885, the predecessor in title of the plaintiffs conveyed to a railway
company, the predecessors of the defendants, a certain strip of land, running
across a farm, for the right-of-way of the railway. The conveyance was in
fee, the consideration was $40, and there was no reference in the deed to a
crossing. The defendants' predecessors, however, constructed an undergrade
crossing, which was necessary for the working of the farm, and this was
maintained and kept in repair by the defendants or their predecessors, and
was used by the plaintiffs or their predecessors until 1906, when the de-
fendants closed it up: Held, having regard to the surrounding circum-
stances and the evidence, that it was a part of the agreement and arrange-
ment, made at the time of the purchase of the right-of-way, that the
plaintiffs' predecessor should have an underpass for the passing of waggons
and cattle from one part of the farm to the other the granting of the pass
was a part of the consideration for the right-of-way; and the plaintiffs were
entitled to have it maintained. [McKenzie v. Grand Trunk Ry. Co.,
Dickie v. Grand Trunk Ry. Co., 7 Can. Ry. Cas. 47, 14 O.L.R. 671, fol-
lowed. Oatman v. Grand Trunk Ry. Co.. 2 O.W.N. 21, distinguished] :
Held, also, upon the evidence that the pass was used in con-
nection with and for the purposes of the farm for over twenty years; and
the plaintiffs had established an easement by continuous user as of right
for that period. [Can. Pac. Ry. Co. v. Guthrie (1901), 31 Can. S.C.R. 155,
1 Can. Ry. Cas. 9, and Grand Trunk Ry. Co. v. Valliear (1904), 7 O.L.R.