they cannot be granted or acquired ic any other manner, e-g., by overt act.
waiver or acquiescence either by a committee of the council or by the whole
municipal council itself.

Montreal Street Ry. Co. v. Montreal, 3 D.L.R. 812.

CLBULM MrxrctFAi. COSSEST RESTMCTIOSS AS TO IXFOBTATIOX.

A company empowered to operate a street railway and to supply electric-
ity for light, heat and power, over poles and wires erected in the streets
and public puces of a city, may, without first obtaining the consent of
the city, transmit thereon electricity generated and developed beyond the
city limits.

Winnipeg Elec. Ry. Co. T. Winnipeg, 4 DJLJ5. 116, [1912] A.C. 355.

FkAXcmscs SWITCHES USE or HJGHWATS.

A stipulation in an agreement beteen a county corporation and the
railway company which deals in several respects with the entire line of an
electric railway, that the company may construct, put in, and maintain
such switches, and turn-outs, as may from time to time be found necessary
for the operating of the company's line oi railway on a named street, is to
be construed as of general application to the whole of the line upon the
street named and not merely to the line of extension of the railway on that
ftUeet which the agreement anthorud. It i~ within the jurisdiction of
the Chairman of the Ontario Railway and Municipal Board to eonstrur
an agreement between a county corporation and a railway company grant-
ing power to enlarge the number of switches operated by the railway
company upon a highway.

Re Waddington and Toronto t York Radial Ry. Co., 9 D.LJR. 81, 15 Can.
Ry. Cas. 82.



Ml'MdTAI. FKAXCB3SES - VAUBITT I.trUlEXTHKC OF

A municipal corporation cannot attack the validity of a contract between
it and an electric railway company because the by-law authorizing its
execution was not submitted to the electors for approval as required by .
64 of the B.C. Municipal Act of 1897. where the company had made large
expenditures as a direct consequence of ita execution, if not pursuant t-
the contract. In an action by a municipal corporation to obtain a declara-
tion that a contract between it and an electric railway company is rokl



360 STREET RAILWAYS.

because a portion of its conditions were ultra vires, the Court will not, on
such general claim, make a selection of such of its provisions as are ultra
vires, but will leave that to be settled in concrete cases questioning the
validity of specific clauses of the agreement. The Attorney-General should
be made a party to a proceeding to question the power of an electric rail-
way company to operate its road notwithstanding informalities in obtain-
ing the municipal franchise, where, after due notice to the municipality, an
authorization of certain crossings had been made by the Board on the foot-
ing of the electric railway having the requisite franchise. [Re Point Grey,
16 B.C.R. 374, distinguished.]

Burnaby v. British Columbia Elec. Ry. Co., 12 D.L.R. 320.

CONTRACT FOB CONSTRUCTION SANCTION OF CONTRACT BY SHAREHOLDERS.

Action for damages for breach of contract for construction of electric
railway. Plaintiff proved execution of the contract under corporate seal
signed by president and secretary. The contract was never carried out:
Held, that R.S.O. (1897), c. 209, s. 17, had enacted that no such contract
should be of any force or validity until sanctioned by a resolution passed
by the votes of the shareholders, in person or by proxy, representing two-
thirds in value of the paid-up stock, at a general meeting specially called,
and not having been complied with action should be dismissed, but under
the circumstances without costs.

Thomas v. Walker, 1 O.W.N. 1094, 16 O.W.R. 751.

MUNICIPAL ORDINANCE BY-LAW VALIDITY APPROVAL BY RATEPAYERS
SPECIAL PRIVILEGE CONFERRED BY LEGISLATURE.

A municipal by-law directing the execution of an agreement between the
municipality of Point Grey and an electric railway company consenting to
the construction of a tramway on certain streets of the municipality and
also imposing terms on which cars should be operated, does not confer such
particular privilege, right or franchise as to require the submission of the
by-law to the ratepayers for approval under s. 64 of the Municipal Clauscte
Act, B.C. Stat. 1906, where the railway company was empowered by c.
55 of the B.C. Stat. of 1896, to construct and operate a tramway in that
and other municipalities subject to the consent of the municipal council
being first obtained and to the latter's designation of the streets upon which
the tramway should be built, although the permission of the municipal
council was further specified by statute to be upon such conditions as to
plan of construction and for such period as might be agreed upon between
the company and the council; the purpose of the proviso requiring the con-
sent of the municipality is restrictive and not donative in character, and
its function is to circumscribe, or impose conditions upon the exercise of
the rights already conferred by the Legislature. [Re Point Grey Elec.
Tramway By-law, 16 B.C.R. 374, reversed.]

British Columbia Elec. Ry. Co. v. Stewart, 16 Can. Ry. Cas. 54, [1913]
A.C. 816, 14 D.L.R. 8.

ESTOPPEL MUNICIPALITY WAIVER OF RIGHT TO ASSERT FORFEITURE or

FRANCHISE.

Mere forbearance on the part of a municipality in asserting a forfeiture
of a street railway company's franchise for noncompliance with its re-
quirements, does not amount to a waiver of or acquiescence in the default
of the company.

Brantford v. Grand Valley Ry. Co., 16 Can. Ry. Cas. 408, 15 D.L.R. 87.



STREET RAILWAYS. :

Gums RAILWAY oojnussiox Forrmne: or KAJLWAT FCAXCBISE.

Sxmee the Railway Act, IMC, does not confer jurisdiction on the Beard to
declare or relieve from a forfehore. it being clothed oahr with sneh powers
as are cimfaied by the Act, or by some special Act,, or sae has relate to
the <nfinumml of orders. regnUt i<im mad directions aiade thtiianiUr. the
Cnmrta an not deprived of jurisdiction to declare the forf eitnre of a street
railway franchise for amtnmwtial breaches of it* terms. [Waterloo T.
Berfia, 7 D-LR. 241, aad ia appeal. 12 DX.K. 39Ci ITilmjnMii I ]

T. Graad Valley By. Cou It Can. Ry. Os. 408, 15 D-LR- ST.

TO ABJOIXESG taofurn owxx* RESTWCTGCG ACCXSS.



A ptupulj ovmer oa the street affected who would sastaia special daa>-
age hecaaae of restricted access to his piupeHi if mm electric railway liae
were exteaded akws the adjoiaia^ street ay sae the railway eoaqmBy to
rectraia the coastnrtioa. ahthoa^ aothorized hy the anakipality if ao
p i aiiaiua has beea obtained from the Oatario' Railway aad Mnkipal
Board hy the coaqiaay sobject to its authority nader the Oatario Railway
Act, 3 * 4 Geo. e. 3aV& 250.

Mitehell T. Saadwicfcv Windsor t Jkiaherstlmr* By. COL, 19 Can. By. Ca*.
300, 33 O J^E. 597. 22 DJ-B. 531.

ExcursriT KKBTS. SUBJECT TO FIA^CHISES or OTHEX BAIL WATS REMOVAL
or BEs



A municipal corporation granting a street railway company the exdus-
iv* right to operate carfare street railways in the city, for a term of
years, subject to certain restrictions, effected by the franchise? of other
railway*, cannot, after the removal of restrictions upon the termination of
the other franrhmrs, within the period of the grant, withhold its consent to
the right to operate upon the portion of a street vacated by another fran-
chise, in the same manner as upon the other streets of the "city. [Toronto
By. Co. T. Toronto. [1906] A.C. 117, followed. 5 O-WJS. 130, 132, ami mid.]

Toronto By. Co. T. Toronto, 19 Can. By. Cas. 323, 34 OJLJL 45*. 2C

T% T T> Xi.1

p",!^ ic Joi.

[Affirmed in 20 Can. By. Cas. 115. 29 DJ-.B. 1, [191C] 2 A.C. 542.]

ETCUTBXTEXESB troy TEKXLTAHDX or AJITIK UKJI r inBiw

An agreement granting an i nhmin. franchise for a period of years over
a dr*rd area, and, so far as the grantor can. over another area in which
a third party has existing rights, will take- effect so as to confer on the
grantee an exetosive franchise within the second area when the antecedent
rights terminate. 26 DJLJL 5SL, 34 O.LR. 456. amrmed.

Toronto T. Toronto By. Cou 2O Can. By. Ca*. 115. [191] 2 A.C. 542.
29 D J-E. L

inrsncrrALTTT

Tinder the Ontario Railway and Municipal Board Amendment Act, 191O,
the Board baa no jurisdiction to require the appellants operating a street
railway along certain streets in Toronto to pave the part of the road used
by the railway or to do works which would give the roadway a new char-
acter when the agreement with the municipality under which the appel-
lants operate (dame <l provides that the appeBants should -keep dean



6G2 STREET RAILWAYS.

and in proper repair that portion of the traveled road between the rails
and for eighteen inches on either side thereof."

Toronto Suburban Ry. Co. v. Toronto, 20 Can. Ry. Cas. 260, [1915] A.C.
590, 24 D.L.R. 269.

ALTERATION OF ROUTE MUNICIPAL CONSENT.

The Toronto & York Radial Ry. Co., by the terms of its franchise and
by legislation, is authorized to deflect its lines from Yonge street in the city
of Toronto, to a private right-of-way owned by it; the deflection is for the
purpose of enabling it to operate the railway already located and con-
structed, and therefore the consent of the municipal council is not neces-
sary.

Toronto & York Radial Ry. Co. v. Toronto, 21 Can. Ry. Cas. 167, 31
D.L.R. 627.

AGREEMENT WITH CORPORATION CONSTRUCTION LIABILITY.

A railway company which is obligated under a by-law granting it the
right under certain conditions to construct, maintain and operate an
electric railway, to pay an agreed rate for every mile 6r pro rata for a
portion of a mile of railway operated, is liable to pay only for the portion
of railway actually operated; if, however, the effect of the by-law is that
the whole railway is to be operated, the company is liable in damages
for nonperformance of this condition, the damage being equal to the amount
the company would have had to pay had the whole line been operated.

Wentworth v. Hamilton Radial Elec. Ry. Co., 41 D.L.R. 199.

AGREEMENT WITH CORPORATION CONSTRUCTION OPERATION FORMER AC-
TION CAUSE OF ACTION NOT THE SAME SAME QUESTION NOT IN ISSUE

RES ADJUDICATE ESTOPPEL.

A railway company which is obligated under a by-law granting it the
right under certain conditions to construct, maintain and operate an elec-
tric railway, to pay an agreed rate for every mile or pro rata for a por-
tion of a mile of railway operated, is liable to pay only for the portion
of railway actually operated; if, however, the effect of the by-law is that
the whole railway is to be operated, the company is liable in damages for
nonperformance of this condition, the damage being equal to the amount
the company would have had to pay had the whole line been operated.
Where the cause of action is not the same as a former action (County
of Wentworth v. Hamilton Radial Elec. Ry. Co., 28 D.L.R. 110, 31 O.L.R.
659, 33 D.L.R. 439, 35 O.L.R. 434, 54 Can. S.C.R. 178), and the same
question was not in issue and was not raised or decided, there can be
no application of the doctrine of estoppel or res adjudicata.

Wentworth v. Hamilton Radial Elec. Ry. Co., 23 Can. Ry. Cas. 209, 41
O.L.R. 524, 41 D.L.R. 199.

Tx>CATION AND PLANS APPROVAL.

Clause 5 of the agreement between the Metropolitan Street Ry. Co. and
the municipal council of the County of York, in schedule A of 56 Viet. c.
94 (Ont. ) , setting out that the location of the line of the railway in the said
street or highway shall not be made until the plans shewing the positions
of the rails and other works have been submitted to and approved by the
warden, county Commissioners and engineer, and clause 3 of the agreement
in schedule A of 60 Viet. c. 92, setting out that before the work is com-
menced upon any section of such extension, the plans setting forth the
proposed location of the company's tracks shall be approved by the com-
mittee, form the very basis of all the work to be afterwards undertaken



STREET RAILWAYS.

and the production of the plans so approved cannot be dispensed with by
the Ontario Railway and Municipal Board. [Toronto 4 York Radial Ry.
Co. T. Toronto. 15 D-L.R. 370: Toronto v. Metropolitan Ry. Co, 1 Can.
Ry. Cms. 63, 31 OJL 367, applied.]

Re Toronto York Radial Ry . Co. and Toronto. 26 DJLR. 244.



OX Oil KIMUJS* GOXSEXT OF ML'MCIT ALJTT.

The provisions of &. 235 of the Railway Act, 1906, requiring the consent
by by-law of the nmnieipal authority of a city or incorporated town before
any company can carry its fines upon the highway, only applies to a street
railway or a railway operated as such.

Re London Railway finMrimiim, 32 WJJEL 224.



R. Use of Streets; Wires: Poles:
I DAMAGE ro LAXB AiwonrrsG Srppon.
A street railway company, in grading a street in Yancourer. in accord-
ance with an agreement entered into with the corporation, pursuant to
the Yancourer Incorporation Act and Amendment of 1995. is not liable
for damages for loss of support caused to lands adjoining: the street.
Maedonell T. British Columbia Eke. Ry. Co.. 9 BUCJL SO.

RECCXATIOX OF CSE or HIGHWAYS FIXES AXD PEXAI.TIES.

|1) The Recorder's Court for the city of Montreal has jurisdiction to
try an action for the recovery of a fine imposed for a breach of the con-
ditions in a by-law to grant a street railway company certain privileges.
The fact that a contract is entered into by the city and the company, to
carry out the by-law, does not alter the nature of the duties prescribed
by die latter, so as to convert them into contractual obligations. (2}
When a municipal by-law has a proviso to be carried out upon an order
to be given by the council, the adoption by the latter of a report of one
of its committees empowered to deal with the matter, recommending per-
formance and that instructions be given for the purpose, amount* to a
substantive order, as required by the by-law. |3 A clause in a by-la vr
imposing a penalty, that its enforcement shall devolve upon an officer
named, makes it his duty to initiate and carry on proceedings, but does
not mean that be must do so in his own name. (4) A covenant in a
contract between a city and a street railway company, that the latter, in
case of annexation by the former "of any of the outside municipalities,
shall extend its system" thereto, is binding only as to the outside munici-
palities that were, at the time of the- contract, contiguous to and adjoin-
ing the city. (51 A company cannot be compelled to execute a covenant
into which it has no power to enter under its charter. (6) When a eon
tract between a city and a street railway company, to build and operate
a railway, designates the streets in which this is to be done, and a cove-
nant is added that in ease of the annexation of neighbouring territory,
the company shall extend its railway to it. when ordered to do so, the
order to be effective, must designate the streets in the new territory to
which it is meant to apply. (7) A covenant to extend a railway into
"outside municipalities thereafter to be annexed, does not apply to "pniln
of outside municipalities*' which are annexed. (8l Xor can the company
be compelled to carry it out. until the city has complied with subsequent
legislative- enactments of a public nature, for the protection of interested
parties.

Montreal Street Ry. Co. v. Recorders Court, 37 Que. S.C. 311 (David-
son. J.I.

( See Quebec Ry.. etc., Co. T. Quebec, 41 Can. S.C-R. 145, affirming 17 Que,
K.B. 256, 32 Qoe. S.C. 489.]



664 STREET RAILWAYS.

USE OF STREETS BY-LAW PENALTY.

The city enacted a by-law granting the company permission to use its
streets for the construction and operation of a tramway, and, in con-
formity with the provisions and conditions of the by-law, the city and
the company executed a deed of agreement respecting the same. A pro-
vision of the by-law was that "the cars shall follow each other at intervals
of not more than five minutes, except from eight o'clock at night to mid-
night, during which space of time they shall follow each other at intervals
of not more than ten minutes. The council may, by resolution, alter the
time fixed for the circulation of the cars in the different sections." For
neglect or contravention of any condition or obligation imposed by the by-
law, a penalty of $40 was imposed to be paid by the company for each day
on which such default occurred, recoverable before the Recorder's Court,
"like other fines and penalties." An amendment to the by-law, by a subse-
quent by-law, provided that "the present disposition shall be applicable
only in such portion of the city where such increased circulation is required
by the demands of the public": Held, that default to conform to the con-
ditions and obligations so imposed on the company was -an offence against
the provisions of the by-law, and that, under 29 & 30 Viet. c. 57, s. 50 (D.),
the exclusive jurisdiction to hear and decide in the matter of such offence
was in Recorder's Court of the city of Quebec. Quebec Ry. v. Recorder's
Court, 17 Que. K.B. 256, 32 Que. S.C. 489, affirmed.

Quebec Railway, Light & Power Co. v. Quebec, 41 Can. S.C.R. 145.
[See Montreal Street Ry. Co. v. Recorder's Court, 37 Que. S.C. 311.]

DUTY AND CARE OF STREET RAILWAY.

Apart from statutory enactment, a street car (ind other vehicles have
equal rights of the same kind to the concurrent use of the streets, the
rights and duties of both are reciprocal and mutual, and each is bound
to the exercise of reasonable care in self-protection and in avoiding harm.
[Jones v. Toronto & York Radial Ry. Co., 25 O.L.R. 158, specially referred
to.]

Carleton v. Regina, 1 D.L.R. 778, 20 W.L.R. 395, 5 S.L.R. 90.

[Referred to in Balke v. Edmonton, 1 D.L.R. 876, 4 Alta. L.R. 406.]

FRANCHISES RIGHTS IN AND TO USE OF STREETS DUTY TO PAVE BETWEEN

AND OUTSIDE OF RAILS.

Where the predecessor of a street railway company, on being granted a
long term franchise by the predecessor of a municipal corporation to build
a street railway in a public highway in close proximity to a large and
rapidly growing city, agreed that the traveled portion of the highway
1)etween the rails and for eighteen inches outside thereof should be kept clean
and in proper repair by the railway (such agreement being confirmed by 63
Viet. (Ont.) c. 124) , the company is bound to pave between its rails and for
eighteen inches outside thereof at its own expense on the highway becoming
a city street and being subsequently paved by the municipality, notwith-
standing the highway was but an unpaved "mud road" when such agreement
was entered into. The Ontario Railway and Municipal Board, under s. 3 of
10 Edw. VII. (Ont.) c. 83, which provides that the Board may require the
making of changes, repairs, improvements or additions which ought reason-
ably to be made in the tracks used by any railway company in connection
with the transportation of passengers, freight or property, in order to pro-
mote the security or convenience of the public, has power to require a street
railway company, at its own expense, to pave between its rails and for
eighteen inches outside thereof on the subsequent paving by a city of the



STREET RAILWAYS.



highway on which the tracks were laid, notwithstanding the feet that
the company acquired its franchise and laid its tracks on such highway
it was a mere "mud road" lying beyond bat in dose proximity to the limits
of a large and rapidly growing city; since tie word tracks" as used
in s. 3 must be girt* its widest meaning so as to include act only the rails
thereof, but also that part of the highway occupied by the railway itself.
The power of the Board, under a. 3 of 10 Edw. VIL (Oat.) c. S3. to require
a street railway aot constructed under mm order of the Board, to pare
between its rails and outside thereof, is not affected by c. 54 of 1 Ceo. V.
(Oat.), which is applicable only to sneh railway as may hare been con-
structed under an order of such Board. On requiring a street railway
company to pave between and outside of its rails, the Board should pre-
scribe the materials to be used, and not leave it to the determination of
the engineer of the Board in the event that the city and the railway com-
pany cannot agree in respect thereto. [New York v. Harlem Bridge, etc.,
By.'Co, ISC X.Y. 3>4. followed.]

Re Toronto and Toronto & Suburban Ry. COL, 13 D.UR. 675. 29 (XLJL
105.



FOB POLES AXD WttES CAKBTTSC ELECIMC CTBKEXT AGKEE-
MEVT TO KEEP PU* K> HOUSES WIIH1X CTTT UMTrs.

It was a term of the agreement between the plaintiffs and the Winnipeg
Elec. Street Ry. Co. that the company would place and keep within the
city limits all their engines, machinery, power houses, etc.. for their
street railway system, and the agreement further provided that, in so
far as its terms and conditions related to the operation, conduct and
management of the railway ajstem. the same and the fulfilment of same
should be conditions precedent to the continued enjoyment of the privi-
leges and rights of the company. In 1904 the above-named company
amalgamated, under the name of the defendants, with the Winnipeg Gen-
eral Power Co.. which had. under its charter powers^ constructed a hydro-
electric plant at Lac du Bonnet, on the Winnipeg river, and a line of
poles and wires for the transmission of the electric current to the city.
The power company's Act of incorporation gave it the right to erect
notes and wires in the streets of the city for the puipose of convey-
ing electric current for lighting, heating or supplying motive power
with the consent of the council. No sneh consent was ever given
or asked for, but after the amalgamation the defendants discontinued
the use of their steam power plant in the city, and operated their
street railway system by power derived from the alternating cmient
brought into the city from the power plant at Lac du Bonnet and
changed at a transforming station in the city into the direct current
used for propelling the cars: Held (Richards. JJL dissenting), that there
had been no breach of the term of the agreement first above refer led to.
that there was *i"-g in the agreement requiring the defendants to
generate their own power for the purpose of operating their ears, that
they would have the right to purchase power for that purpose from
any other company, and that the power used in propelling the cars was.
in fact, generated within the city limits. Per Mathers. J.. in the Court
below: There was a distinct breach of the agreement for which an ac-
tion for damages would lie, but the keeping of the power house within
the city was not a condition or term renting to the "operation, conduct
and management* of the railway system, and. therefore, there was no
forfeiture of the rights and privileges of the defendants. Moreover., if
the agreement had fully provided for sneh forfeiture, the dtj had waived



6G6 STREET RAILWAYS.

it by afterwards passing by-laws fixing schedules for the running of the
cars, by calling on the company to proceed at once with the construction
and operation of new lines, which were accordingly built and subsequently
operated at great expense to the company, and by accepting five per cent
of the gross earnings of the company payable under the agreement, all
these things having been done after the plaintiffs had full knowledge of
the alleged breach of the agreement. The defendants, through the amal-
gamation with the power company, had also acquired the right to develop
electric energy outside the city and to distribute it in the city through
poles and wires for lighting and commercial power purposes, but only
with the consent of the city council; and their own act of incorporation
empowered them to furnish light and power and use the streets for those
purposes, but only when authorized by a by-law of the city: Held, (1)
as no such consent had been given or by-law passed, the plaintiffs were
entitled to an injunction to prevent the defendants from erecting, main-
taining or re-erecting poles or Avires on the streets, lanes or highways
of the city for the transmission of electric energy for any purpose other
than for their street railway and requiring the defendants, upon due
notice, to remove all such poles and wires now used by them for any such
other purpose. (2) The city was not estopped from applying for the in-
junction by having applied for, taken and paid for power transmitted
with its knowledge, over the poles and wires objected to, from the plant
outside the city without its consent and against its protest. (3) The
issue by the city engineer of a permit for the erection of the poles and