and did so, and that the action of the Crown and its officers being lawful
and not tortious, they were justified. But, as the agreement was still a
continuous, valid and binding agreement to which they had no right to
put an end, this defence failed. Therefore, the Crown, by its officers, hav-
ing acted on a misconception of or misinformation as to the rights of the
Crown, and wrongfully, because contrary to the express and implied stipu-
lations of their agreement, but not tortiously in law, evicted the sup-
pliants, and so, though unconscious of the wrong, by such breach become
possessed of the suppliant's property, the petition of right would lie for
the restitution of such property and for damages. Prior to the filing of
the petition of right, the suppliants sued the W.C. Ry. Co. for the recovery
of the possession of the Windsor Branch, and also by way of damages for
moneys received by the W.C. Ry. Co. for the freight or passengers on
said railway since the same came into their possession, and obtained
judgment for the same, but were not paid. The judgment in question was
not pleaded by the Crown, but was proved on the hearing by the record
in the Supreme Court of Canada, to which Court an appeal in said cause
had been taken, and which affirmed the judgment of the Supreme Court of
Nova Scotia: Held, por Ritchie, C.J., and Taschereau, J., that the sup-
pliants could not recover against the Crown, as damages, for breach of
contract, what they claimed and had judgment for as damages for a tort
committed by the W.C. Ry. Co., and in this case there was no necessity to
plead the judgment. Per Fournier and Henry, JJ., that the suppliants were
entitled to damages for the time they were by the action of the Government
deprived of the possession and use of the road to the date of the filing of
their petition of right.

Windsor & Annapolis Ry. Co. v. The Queen and Western Counties Ry.
Co., 10 Can. S.C.R. 335.

[In this case on appeal to the Privy Council the judgment of the Su-
preme Court was reversed in part. See 55 L.J.P.C. 41.]

[Applied in McLean v. The King, 38 Can. S.C.R. 546; discussed in Re
Massey Mfg. Co., 11 O.R. 444; distinguished in Brigham v. The Queen, 6
Can. Ex. 418; McLean v. The King, 38 Can. S.C.R. 549; followed in R. V.
Dartmouth, 17 X.S.R. 317; referred to in Johnson v. The King, 8 Can.
Ex. 369; relied on in Hall v. The Queen, 7 B.C.R. 92; Reg. v. Mowatt, 1
N.W. Terr. (Pt. 1) 87.]

PETITION OF RIGHT INTERCOLONIAL RY. CONTRACT CERTIFICATE OF EN-
GINEER A CONDITION PRECEDENT TO RECOVER MONEY FOR EXTRA WORK.

Berlinquet v. The Queen, 13 Can. S.C.R. 26.

[Commented on in The King v. Stewart, 32 Can. S.C.R. 499.]

CONTRACT TO BUILD GOVERNMENT RAILWAY CONDITIONS PRECEDENT.

The compulsory powers given to the Government of Canada to expro-
priate lands required for any public work can only be exercised after com-
pliance with the statute requiring the land to be set out by metes and
bounds and a plan or description filed; if these provisions are not com-



GOVERNMENT RAILWAYS. 43l

plied with, and there is no order-in-council authorizing land to be taken
what an order-in-council is necessary, a contractor with the Crown who
fan upon the land to construct such" public work thereon is liable to the
owner in trespass for such entry. 20 N.SJL 30, reversed.
Kearney v. Oakes, 18 Can. S.C.R. 148.



CLAIM FOB EXTKA AXD ADDITIOXAI. WORK DOXE OX IXTERCOIXJXIAI. RAIL-

WAT CERTIFICATE BY CHIEF EXGIXUM APPBOVAI. BT COMMISSIONER OK
jamumm.

In 1879 the respondent filed a petition of right for $608.000 for extra
work and damages arising out of his contract for the construction of s.
18 of the LCJt. without having obtained a final certificate from F.. who
held at the time the position of Chief Engineer. In 1880. F. having re-
signed. F.S. was appointed Chief Engineer of the I.CJR. and investigated
the respondent's claim, and reported a balance in his favor of 812O.371.
Thereupon the respondent amended his petition and made a special claim
for the $120.371, alleging that F.S.'s report or certificate was a final
closing certificate within the meaning of the contract, which question was
submitted for the opinion of the Court by special case. This report was
never approved of by the I.C.R. Commissioners or by the Minister of
Railways under 31 Viet. c. 13, s. 18. The Exchequer Court, held that
tibe suppliant was entitled to recover on the certificate of F.S. On appeal
to the Supreme Court of Canada: Held, reversing the judgment of the
Exchequer Court, (1) per Ritchie, C.J. and Gwynne, J., that the report
of F.S.. assuming him to have been the Chief Engineer to give the final
certificate under the contract, cannot be construed to be a certificate of
the Chief Engineer, which does or can entitle the contractor to recover
any sum as remaining due and payable to him under the terms of his
contract, nor can any legal claim whatever against the Government be
founded thereon. (2 Per Ritchie, C.J. : That the contractor was not
entitled to be paid anything until the final certificate of the Chief Engineer
was approved of by the Commissioners or the Minister of Railways [31
Viet, e, 13, s. 18, and 37 Viet e, 15; Jones T. The Queen. 7 Can. S.CJJ.
570.] (3) Per Patterson, J.: That although F.S. was duly appointed
chief engineer of the I.C.R.. and his report may be held to be the final and
closing certificate to which the suppliant was entitled under clause 11 of
the contract, yet as it is provided by clause 4 of the contract that any
allowance for increased work is to be decided by the Commissioners and
not by the engineer, the suppliant is not entitled to recover on F.S.'s certif-
icate. Per Strong and Taschereau, JJ. (dissenting) : That F.S. was the
Chief Engineer and as such had power under clause 11 of the contract
to deal with the suppliant's claim and that his report was "a final
closing certificate" entitling the respondent to the amount found by the
Exchequer Court on the case submitted. Per Strong. Taschereau and Pat-
terson, JJ.: That the office of Commissioners having been abolished by
37 Viet. c. 15, and their duties and powers transferred generally to the
Minister of Railways, the approval of the certificate was not a condition
precedent to entitle the suppliant to claim the amount awarded to him
by the final certificate of the Chief Engineer. 1 Can. Ex. 321, reversed.

The Queen v. McGreevy, 18 Can. S.CJt. 371.

[Applied in Burroughes T. The Queen, 20 Can. S.CJL 429; followed in
Ross v. The Queen, 4 Can. Ex. 397 ; Ross v. The Queen, 25 Can. S.C.R. 564 ;
referred to in Goodwin T. The Queen, 5 Can. Ex. 324.]



432 GOVERNMENT RAILWAYS.

PETITION OF BIGHT SUBMISSION MEDIATORS AWABD REASONS FOB SET-
TING ASIDE.

McGreevy v. The Queen, 19 Can: S.C.R. 180.

[Referred to in Quebec Bridge & Ry. Co. v. Quebec Improvement Co.,
16 Que. K.B. 112.]

DEPARTMENT OF RAILWAYS CLAIMS FOR SUPPLIES.

S. 23 of the Act respecting the Department of Railways and Canals,
R.S.C. 1886, c. 37, which requires all contracts affecting that department
to be signed by the Minister, the Deputy Minister or some person specially
authorized, and countersigned by the secretary, has reference only to con-
tracts in writing made by that department (Gwynne, J., contra). Where
goods have been bought by and delivered to officers of the Crown for pub-
lic works, under orders verbally given by them in the performance of their
duties, payment for the same may be recovered from the Crown, there
being no statute requiring that all contracts by the Crown should be in
writing. (Gwynne and King, JJ., contra.) 6 Can. Ex. 39, affirmed.

The Queen v. Henderson et al., 28 Can. S.C.R. 425.

[Commented on The King v. British American Bank Note Co., 7 Can.
Ex. 135; distinguished Ross v. The King, 7 Can. Ex. 287.]

ACCIDENT PRESCRIPTION CONSTRUCTION STIPULATION RELIEVING THE

C'ROWN OF LIABILITY INSURANCE.
Saindon v. The King, 15 Can. Ex. 305.

CONTRACT BETWEEN EMPLOYEE AND I.C.R. AND P.E.I. EMPLOYEES BELIEF

AND INSURANCE ASSOCIATION TO RELEASE CROWN OF LIABILITY RE-
CEIPT GIVEN IN ERROR.
Hudon v. The King, 15 Can. Ex. 320.

B. Expropriation; Compensation.

EXPROPRIATION OF LAND FOR RAILWAY PURPOSES VALUE OF LAND FOR BUILD-
ING PURPOSES DAMAGES RESULTING FROM WANT OF CROSSING.

The Crown had expropriated a certain portion of land which the claim-
ant contended was held for sale as building lots. It was established in
evidence that such land had not been laid off into lots prior to the expro-
priation, and that none of it had, therefore, been sold for building pur-
poses. There was evidence, however, to shew that there was a remote prob-
ability that the land would become available for such purposes upon the
extension of the limits of an adjoining town. By the absence of a cross-
ing over the railway, claimant was deprived of access to the shore, and
thereby suffered loss in the use and occupation of the property remaining
to her: Held, per Burbidge, J., in the Exchequer Court of Canada (see
2 Can. Ex. 21) that, while such remote probability added something to the
value which the property would otherwise have had, compensation should
not be based on any supposed value of the land for building purposes at
the time of the expropriation: Held, also, that claimant was entitled to
compensation in respect of the damage resulting from the want of a cross-
ing. On appeal by the claimant to the Supreme Court of Canada:
Held, that the amount of compensation awarded should be increased, on
the ground that it did not appear that such compensation was assessed in
view of the future damage that might result from the want of a crossing.
2 Can. Ex. 21, varied. ,

Kearney v. The Queen (1889), Cass. Can. S.C.R. Dig. 1893, p. 313.

[Followed in Re Gilbert and St. John Horticultural Assn., 1 N.B. Eq.
448; Can. Northern v. Billings, 19 Can. Ry. Cas. 15)3.]



GOVERNMENT RAILWAYS. 433

EXFBWRIATIOX SttviciKxer of AWARD.

The Crown represented by the Minister of Railway* and Canals, re-
quiring a portion of a lot belonging to the respondents, for the construc-
tion of the St. Charles Branch of the I.CJI.. deposited in the proper regis-
try office, in accordance with & 10 of the Government Railways Act. l&SL,
a- plan of the land so required, and gave notice under s. 15 of said Act,
tendering the sum of 2,662.42 as compensation for the land expropriated.
The lot in question had been used as a cove, where a profitable lumber
business had been conducted. To enable such a business to be carried on
advantageously, a valuable wharf was erected, running into deep water,
at which vessels of large size could load. Upon the respondents' refusing
to accept the sum tendered, the question of the value to be paid by the
Crown for the land ao expropriated, was submitted by the said Minister,
under the provisions of the Government Railways Act, 1881, to the Board
of Official Arbitrators of Canada for their investigation and award. The
said Board awarded the claimants the amount which had been tendered
and refused as full compensation for the land expropriated, and all dam-
age to the balance of the property, and imposed the cost of the arbitra-
tion upon the claimants. The respondents appealed to the Exchequer
Court, and Fonrnier J., who heard the appeal, and before whom one wit-
ness on either side was examined, set aside the award of the arbitrators,
and allowed the claimants $11,073 (being $3.500 as damages suffered by
the property through the construction of the road through it, and $2.373 as
the value of the land expropriated), also the claimants costs of the ap-
peal (save of their witnesses examined in the Exchequer Court I and
before the arbitrators. On appeal from this judgment the Supreme Court
held that the judgment of the Court below was affirmed and the appeal
dismissed with costs.

The Queen T. Murphy, Cass. Can. S.C.R. Dig. 1893, p. 314.

INTEROOLONIAI. RT. EXTENSION DAMAGES SUBMISSION PETITION or

RIGHT.

Halifax City Ry. Co. T. The Queen (ISSoi. Cass. Can. S.C.R. Dig. 1893,
p. 37.

DAMAGES TO PROPERTY FBOM WORKS EXECUTED ox GOVERNMENT RAILWAY.

Where, by certain work done by the Government Railway authorities in
the city of St. John, the pipes for the water supply of the city were inter-
fered with claimants were entitled to recover for the cost reasonably and
properly incurred by their engineer in good faith, to restore their prop-
erty to its former safe and serviceable condition, under an arrangement
made with the Chief Engineer of the Government railway, and upon his
undertaking to indemnify the claimants for the cost of the said work.
BUuag and Gwynne. J-J.. dissenting on the ground that the Chief Engineer
had no authority to bind the Crown to pay damages beyond any injury
done. 2 Can. Ex. 78. affirmed.

The Queen v. St. John Water Commissioners, 19 Can. S.CJL 125.

AWARD OF OFFICIAL ARBITRATORS COMPENSATION FOB LAND TAKEN.

On an appeal to the Supreme Court from a judgment of the Exchequer
Court increasing the amount awarded by the official arbitrators to the
claimant for expropriation of land for the I.CJL: Held, reversing the
judgment of the Exchequer Court and restoring the award of the official
arbitrators, that to warrant an interference with an award of value neces-
sarily largely speculative an Appellate Court must be satisfied beyond all
reasonable doubt that some wrong principle has been acted on or some-
Can. Ry. L. Dig. 28L



434: GOVERNMENT RAILWAYS.

thing overlooked which ought to have been considered by the official arbi-
trators, and upon the evidence in this case this Court refused to inter-
fere with the amount of compensation awarded by the official arbitrators.

The Queen v. Paradis, The Queen v. Beaulieu, 16 Can. S.C.R. 716, 1
Can. Kx. 191.

[Applied in Bertrand v. The Queen, 2 Can. Ex. 292; Macarthur v. H*e
King, 8 Can. Ex. 257; referred to in Re Gilbert & St. John Horticultural
Assn., 1 X.B. Eq. 442; relied on in The Queen v. Carrier, 2 Can. Ex. 44.]

AWARD OF ARBITRATORS INCREASED BY THE EXCHEQUER COURT.

In an expropriation of land for the Intercolonial Ry., the award of the
arbitrators was increased by the Judge of the Exchequer Court, after addi-
tional witnesses had been examined by the Judge. On appeal to the Su-
preme Court it was: Held, affirming the judgment of the Exchequer
Court, that as the judgment appealed from was supported by evidence, and
there was no matter of principle on which such judgment was fairly open
to blame, nor any oversight of material consideration, the judgment should
be affirmed. Gwynne, J., dissenting. 1 Can. Ex. 291, affirmed.

The Queen v. Charland, 16 Can. S.C.R. 721.

[Referred to in Re Gilbert & St. John Horticultural Assn., 1 N.B. Eq.
442.]

EXPROPRIATION FOR GOVERNMENT RAILWAY PURPOSES SEVERANCE OF LAND
FARM CROSSINGS COMPENSATION*.

When land expropriated for Government railway purposes severed a farm
the owner, although not at the time entitled to a farm crossing apart front
contract, was entitled to full compensation covering the future as well as
the past for the depreciation of his land by want of such a crossing.
Gwynne, J., dissenting on the ground that the owner was entitled to a cross-
ing as a matter of law.

Guay v. The Queen, 17 Can. S.C.R. 30.

[Applied in Grand Trunk Ry. Co. v. Perrault, 36 Can. S.C.R. 677: dis-
cussed in Ontario Lands & Oil Co. v. Canada Southern Ry. Co., 1 O.L.R.
215.]

DAMAGES FARM CROSSINGS.

Where land is taken by a railway company for the purpose of using th<"
gravel thereon as ballast, the owner is only entitled to compensation for
the land so taken as farm land, where there is no market for the gravel.
The compensation to be paid for any damages sustained by reason of any-
thing done under and by authority of R.S.C.. 1886, c. 39, s. 3, subs, (e), or
any other act respecting public works or government railways, includes
damages resulting to the land from the operation as well as from the
construction of the railway. The right to have a farm crossing over one
of the Government railways is not a statutory right, and in awarding dam-
ages full compensation for the future as well as for the past for the want
of a farm crossing should be granted. Gwynne, J., dissenting, was of
opinion that the owner had the option of demanding, and the Government
had a like option of giving, a crossing in lieu of compensation, and that
on the whole case full compensation had been awarded by the Court below.
2 Can. Ex. 11, reversed.

Vezina v. The Queen, 17 Can. S.C.R. 1.

[Adhered to in Guay v. The Queen, 17 Can. S.C.R. 32; applied in Re
Armstrong & James Bay Ry. Co., 12 O.L.R. 137, 7 O.W.R. 713; Grand
Trunk Ry. Co. v. Perrault, 36 Can. S.C.R. 677; Ontario Lands & Oil Co.
v. Canada Southern Ry. Co., 1 O.L.R. 215; distinguished in Grand Trunk



GOVERNMENT RAILWAYS. 435

Ry. Co. v. Huard, 1 Que. Q.B. 510; followed in Can. Northern Quebec Ry.
Co. v. Frenette, 10 Que. P.R. 321; Re Van Home and Winnipeg 4 North-
ern Ry. Co., 16 Can. Ry. Cas. 72, 14 D.L.R, 897; referred to in Neilson v.
Quebec Bridge Co., 21 Que. S.C. 334.]

VALUE OF LAND TAKEN AWARD BY EXCHEQUER COURT JUDGE.

The Supreme Court of Canada will not interfere with the award of the
Judge of the Exchequer Court as to the value of land expropriated for
railway purposes where there is evidence to support his finding and such
finding is not clearly erroneous.

Levis v. The Queen, 21 Can. S.C.R. 31.

[Referred to in Re Gilbert & St. John Horticultural Assn., 1 N.B. Eq.
442.]

TRANSCONTINENTAL RAILWAY COMMISSION EXPROPRIATION.

The Transcontinental Railway Act, 3 Edw. VII. c. 71, does not expressly
empower the Commissioners to deal with compensation for land taken for
the railway, and s. 35, giving them "the rights, powers, remedies and
immunities conferred upon a company under the Railway Act," does not
confer such power. The Transcontinental Railway is a public work within
the meaning of s. 2. subs, (d), of the Exchequer Court Act, and proceed-
ings respecting compensation of land taken for the railway may be taken
by or against the Crown in the Exchequer Court. Judgment of the Exche-
quer Court, 13 Can. Ex. 171, reversed.

The King v. Jones, 44 Can. S.C.R. 495.

VESTING TIME POSSESSION TAKEN.

Under &. 18 of the Government Railways Act, 1881 [now R.S.C. 1906,
c. 143, s. 22], lands taken for the purposes of a Government railway be-
came absolutely vested in the Crown at and from the time of possession
being taken on its behalf, and compensation must be assessed in respect
of the value of the lands at that period. [The Queen v. Clarke (5 Can.
Ex. 64). explained.]

The King v. Royal Trust Co., 12 Can. Ex. 212.

SIDING UNDERTAKING IN MITIGATION OF DAMAGES ix PRIOR SUIT.

In certain expropriation proceedings between the Crown and the sup-
pliant's predecessor in title, the Crown, in mitigation of damages to lands
not taken, filed an undertaking to lay down and maintain a railway track
or siding in front of, or adjoining, said lands, and to permit the then
owner, "his heirs, executors, administrators, assigns (and the owner or
owners for the time being of the said land and premises or any part there-
of and each of them) to use the same for the purposes of any lawful busi-
ness to be carried on or done on the said lands or premises." By order
of Court the suppliant's predecessor in title was declared to be entitled
to the execution of such undertaking. The undertaking was given in 1007.
and at that time the lands in question were not being used for any par-
ticular purpose. The Crown in execution of its undertaking subsequently
laid down a siding in front of or adjoining the said lands. There was,
however, a retaining wall between the siding and such lands, and the
Crown informed the solicitor of the suppliant on the 5th October, 1000.
that "at any time you may desire, we are prepared to open a way through
this retaining wall so as to give access to the siding in order that you
may conduct your business in the manner contemplated in the order of
the Court"; but, although the suppliant presented his claim for dam.-.ji''-;
on the basis that the Crown had not given him a siding suitable for



43G GOVERNMENT RAILWAYS.

carrying on a corn-meal milling business, at the time of the institution of
the present proceedings nothing had been done to utilize the property for
any particular business: Held, that upon the facts the Crown had fully
complied with the terms of the undertaking mentioned, and that the sup-
pliant had not made out a claim for damages. Quaere, whether the suppli-
ant had any right to take proceedings to compel the execution of the
undertaking by the Crown until the property was occupied for the purposes
of some particular business. (2) Whether the suppliant would have any
right to enforce a claim for damages in view of the fact that he had no
assignment of any such claim from his predecessor in title.
Hart v. The King, 13 Can. Ex. 133.

VALUE PROSPECTIVE CAPABILITY.

In estimating the amount of compensation for the expropriation of land
by the Crown, the prospective capabilities of the property or its specula-
tive value cannot be taken into consideration. The compensation should
be measured by the prices paid for similar properties in the immediate
neighborhood.

King v. Blais et al., 18 Can. Ex. 63.

RESIDENTIAL PBOPERTY VALUATION.

The reinstatement principle cannot be taken as the basis of compensa-
tion for residential property expropriated for a public work; nor can
the prospective value of the property arising from the construction of the
work be taken into consideration. The best guide is the selling value of
similar property in the locality.

King v. Blais et al., 18 Can. Ex. 67.

SHUNTING-YAKD SCHOOL HARBOUR RIPARIAN RIGHTS CONSEQUENTIAL
INJURIES.

The Dominion Government in the operation of its railways, constructed
a shunting-yard on lands reclaimed by it from the waters of Bedford
Basin, partly in front of the school buildings of the suppliant corpora-
tion. The latter owning water lots thereon, which had been improved
as a bathing pavilion and wharf in connection with the school, claimed
compensation for injurious affection by reason of the construction and
operation of said yard: Held, Bedford Basin being a public harbour at
the time of Confederation, was the property of the Dominion by virtue of
the B.X.A. Act, and no title to water lots thereon could pass under a pro-
vincial grant. [Maxwell v. The King, 40 D.L.R. 715, 17 Can. Ex. 97,
followed.] The fact that the suppliant had been allowed a crossing over
the railway tracks to reach the beach where its lots were situated, did not
give it an irrevocable license as against the Crown, nor could it under
the circumstances claim such license as a riparian proprietor, nor could
such license be considered as an element of compensation. The injury hav-
ing been caused by the operation of works on lands other than those ex-
propriated from the suppliant, the latter was not entitled to compensa-
tion therefor.

Sisters of Charity of Rockingham v. The King, 24 Can. Ry. Cas. 383, 18
Can. Ex. 385, 46 D.L.R. 213.

EXPROPRIATION PUBLIC WORK ABANDONMENT REVESTING OF LAND TAKEN
COMPENSATION ESTIMATING DAMAGES CONSTRUCTION OF STATUTE
JURISDICTION OF EXCHEQUER COURT NATIONAL TRANSCONTINENTAL
RAILWAY ACT RAILWAY ACT EXCHEQUER COURT ACT "EXPROPRIA-
TION ACT" RAILWAYS AND CANALS ACT.
[The King v. Jones, 44 Can. S.C.R. 495, followed.]

Gibb et al. v. The King, 52 Can. S.C.R. 402, 27 D.L.R. 202; reversed by
P.C. 42 D.L.R. 336.



GOVERNMENT RAILWAYS. 437

PIT BASIS OF TALUK.

Where land was taken for the purpose of a gravel-pit for a Government
Railway, the price paid on the sale of the land some three years after the
expropriation of the right-of-way when the land had been enhanced in
value by the operation of the railway, was held to be the best test and
starting point for ascertaining the market value of the land.

Demers T. The King, 15 Can. Ex. 492.

HOTEL PBOPEBTY EASEMEXT.

Upon an expropriation by the Crown of a portion of a hotel site for
railway purposes, compensation should be allowed on the basis of a build-
ing lot for injury to the property from the construction and operation of
the railway, and for an easement of a right-of-way over a street affected
by the expropriation.
' The King v. Birehdale, 16 Can. Ex. 375.

FLOODING FROM DITCHES.

The Commissioners of the National Transcontinental Ry. had expro-
priated a certain portion of a farm while in the possession of the sup-
pliant's predecessor in title and paid him compensation therefor and for
all damages resulting from the expropriation the deed of sale stating