which there was no such agreement. On the hearing of a complaint, al-
leging unjust discrimination in respect to fares, the Board refused to
take the agreement into consideration when tendered in evidence to justify
the granting of the special rates and ordered the company, appellants, to
furnish the service to persons using the tramway in both municipalities
at the same rates of fare. On an appeal, by leave of the Board, in respect
of the propriety of overlooking the contract, submitted as a question of
law: Held, Davies and Anglin, JJ., dissenting, that, as the existence of
the contract was one of the elements bearing upon the decision of the
question of substantial similarity in circumstances, the Board should have
admitted the evidence so tendered in regard to the agreement in considera-
tion of which the special rates of fares had been granted.
Montreal Park & Island Ry. Co. v. Montreal, 11 Can. Ry. Cas. 254, 43
Can. S.C.R. 256.
[Referred to in Can. Pac. Ry. Co. v. Regina Board of Trade, 13 Can. Ry.
Cas. 203, 45 Can. S.C.R. 321.]
OPERATION THROUGH CARS TERMINAL AND INTERMEDIATE POINTS.
Neither the Act of Incorporation of the defendants, 39 Viet. c. 87 (Ont.),
nor the agreement with, and the by-law of the city of Hamilton, contains
any limitation upon the right of the defendants to operate through cars
between terminal points without stopping, and in the absence of any regu-
lation by the Ontario Railway and Municipal Board under the Ontario
Railway Act, 3 & 4 Geo. V. c. 36, the defendants have the same right as
steam railways to run trains or cars from one point on its line to another
without making any intermediate stops.
Fielding v. Hamilton & Dundas Street Ry. Co., 18 Can. Ry. Cas. 82.
ORDER OF ONTARIO RAILWAY AND MUNICIPAL BOARD TO PUT ON ADDITIONAL
CABS FAILURE TO COMPLY WAR CONDITIONS.
It is no answer to an order made by the Ontario Railway and Munici-
pal Board to a street railway company to place additional cars upon its
system, that the company had made all possible efforts to do so, but that
owing to the war and other conditions compliance was impossible, where
the company has not applied to the Board under s. 25 of the Railway and
Municipal Board Act (R.S.O. 1914, c. 186) to rescind or vary the order
or under s. 42 for an extension of time for compliance.
Re Toronto Ry. Co. and Toronto, 46 D.L.R. 547.
ONTARIO RAILWAY AND MUNICIPAL BOARD ORDKB TO PI-T ox ADDITIONAL
CARS FAILURE TO COMPLY WAR CONDITIONS ORDER RESCIND OR VARY.
It is no answer to an order made by the Ontario Railway and
Municipal Board to a street railway company to place additional
cars upon its system, that the company had made all possible efforts
to do so, but that owing to the war and other conditions compliance was
impossible, where the company has not applied to the Board under s. 25
of the Railway and Municipal Board Act (R.S.O. 1914, c. 186) to rescind
or vary the order or under s. 42 for an extension of time for compliance.
Re Toronto Ry. Co. and Toronto, 24 Can. Ry. Cas. 278, 44 O.L.R. 381,
46 D.L.R. 547.
Lxenu.sc or FAXES BT-LAW SUBMISSION TO ELECTUBS.
The city council has power under s. 39 of the Consolidated Railway
Company's Art, 1896 (B.C.), to eater into an agreement with the street
railway increasing the amount of fares to be paid by passengers, and may
pas* a by-law authorizing the same without submitting the by-law to the
electors. The power of the Council under s. 39 to make or vary an agree-
ment as to fares Is not affected by subs. 15 of s. 125 of the Vancouver In-
corporation Act, 1900, as amended by B.C. Stats. 1912, e. 39, s. 5.
Vancouver T. British Columbia Electric By. Co.. 26 B.CJL 162.
D. Muniripal Ownership; Boons.
MrciciPAi. owxEBSHir or RAILWAY ABIUYBAYOBS.
The Q_S. Ry. Co. were authorized under a by-law panned by the corpo-
ration of the city of Quebec and an agreement executed in pursuance there-
of to construct and operate in certain streets of the city a street railway
for a period of forty years, but it was also provided that at the expiration
of twenty years (from the 9th February, 1865), the corporation might,
after a notice of six months to the .-aid company, to be given within the
twelve month* immediately preceding the expiration of the said twenty
years, assume the ownership of the said railway upon payment. etc_ of
its value, to be determined by arbitration together with ten per cent addi-
tional: Held, reversing the judgments of the Courts below. Foamier. J..
dissenting, that the company were entitled to a full six months* not ire
prior to the 9th February, 1885, to be given within the twelve month*
preceding the 9th February. 1885, and. therefore, notice given in N/rn-
ber. 1884, to the company that the corporation would take possession of
the railway in six months thereafter was bad. Per Strong and Henry. JJ.
That the Court had no power to appoint an arbitrator or valuator to
make the valuation provided for by the agreement after the refusal by the
company to appoint their arbitrator. Fonrnier. -! contra.
Quebec Street Ry. Co. T. Quebec, 15 Can. S.C.R. 164.
FRANCHISES ASSUMPTION or OWNERSHIP BY MrMcirAtnr PRINCIPLE or
TALCATIOS VALUE or FBAXCHISE.
RJS.O. 1897, c. 208, s. 41 -1 provides that "No municipal council shall
grant to a street railway company any privilege under this Art for a
longer period than twenty years, but at the expiration of twenty years
from the time of passing the first by-law which is acted upon, conferring;
the right of laving rails upon any street, or at such earlier date as may
be fixed by agreement, the municipal corporation may, after giving -ix
months" notice prior to the expiration of the period limited, assume the
ownership of the railway, and aO real and personal property in connection
with the working thereof, on payment of the value thereof, to be deter-
mined by arbitration.'* Arbitrators were appointed under the Street Rail-
way Act. R.S.O. 1897. c. 208, to determine the value of the appellants'
railway and all real and personal property in connection with the working
thereof, the ownership of which had been assumed, under the provisions of
s. 41 (1) of the Act, by a town corporation, part of the railway being
hud within the town. The arbitrators in their award fixed on a certain
sum as "the actual present value of the railway and of the real and per-
sonal property in *** io with the working thereof." and stated that
in arriving at that valve they had "valued the railway as being- a railway
in use and capable of being used and operated as a street railway,* 7 and
that they had "not allowed anything for the value of any privilege or
franchise whatsoever, 9 in either of the municipalities in which the rail-
682 STREET KAILWAYS.
way was laid. They further stated that they had not been able to assent
to the contention of the company that the proper mode of valuation should
be to capitalize the amount of the permanent net earning power of the
railway, and that they had not reached their valuation in any way on
that basis, but had "considered only the actual present value": Held,
Moss, C.J.O., dissenting, that the arbitrators had erred in their method
of valuation, and that in the case of a railway producing, as the appel-
lant's railway did, a considerable permanent profit, the proper method of
valuation was to take its net permanent revenue and capitalize that, the
result representing its real value. [Stockton and Middlesbrough Water
Board v. Kirkleatham Local Board,  A.C. 444, distinguished.]
Right of owner to allowance of 10 per cent as for compulsory taking dis-
cussed. Judgment of Britton, J., reversed, and award remitted to the
arbitrators for reconsideration.
Berlin & Waterloo Street Ry. Co. v. Berlin, 9 Can. Ry. Gas. 271, 19
[Reversed in 42 Can. S.C.R. 581, 10 Can. Ry. Cas. 181.]
FRANCHISE ASSUMPTION BY MUNICIPALITY PRINCIPLE OF- VALUATION.
By s. 41 of the Ontario Street Railway Act, R.S.O. 1897, c. 208, no
municipal council shall grant to a street railway company any privilege
thereunder for a longer period than twenty years, and at the expiration
of a franchise so granted, or earlier if so agreed upon, it may, on giving
six months' previous notice to the company, assume the ownership of the
railway and all real and personal property in connection with the working
thereof on payment of the value of the same to be determined by arbitra-
tion: Held, reversing the judgment of the Court of Appeal, 19 O.L.R. 57,
9 Can. Ry. Cas. 271, that the proper mode of estimating the value of the
''railway and all real and personal property in connection with the work-
ing thereof," was not by capitalizing its net permanent revenue and taking
that as the value, but by estimating what it was worth as a railway in
use and capable of being operated, excluding compensation for loss of fran-
chise. Held, also, that in view of the provisions in the Street Railway Act
authorizing the municipality to assume ownership of a street railway op-
erating in two or more municipalities the company in this case whose
railway was taken over by the town of Berlin was not entitled to com-
pensation for loss of its franchise in the municipality of Waterloo. On
the expiration of its franchise the company executed an agreement ex-
tending for two months the time for assumption of ownership by the mu-
nicipality, but did not relinquish possession until six months more had
elapsed. During the extended time an Act was passed by the legislature
reciting all the circumstances, ratifying and confirming the agreement for
extension and authorizing the municipality to take possession on payment
of the award subject to any variation in the amount by the Court. Held,
that though this Act did not expressly provide for taking possession on
the same footing aa if it had been done immediately on the expiration of
the franchise its effect was, not to confer on the municipality a new right
of expropriation in respect of an extended franchise, but merely to extend
the time for assumption of ownership under the original conditions. The
rights of the company to compensation are defined by statute, and there
is no provision for an allowance of ten per cent over and above the actual
value of the property.
Berlin v. Berlin & Waterloo Street Ry. Co., 10 Can. Ry. Cas. 181, 42
Can. S.C.R. 581.
MC5ICIPAI. AID OoXSTWTCnOX BETOSD OMITS OT MC5ICJPALHT VjJ_-
The town of Port Arthur passed a by-tar to rake the son of $73.000
for street railway purposes, and to authorize the issue of debentures there-
for, which recited, inter alia, that it was necessary to raise said sum for
the purpose of building. etc_ a street railway connecting the municipality
of Xeebing with the business centre of Port Arthur. At that time a mu-
nicipality was not authorized to construct a street railway beyond its ter-
ritorial limits. The by-law was Toted upon by the ratepayers and passed.
Uu none was submitted ordering the construction of the work. Subse-
quently an Act was passed by the Legislature of Ontario which enacted
that the said by-law ~is hereby confirmed and declared to be valid, legal
and binding on the town . . . and for all purposes, etc.. relating to or
affecting the said by-law, and any and all amendments of the Municipal
Act . . . shall be deemed and taken as having been complied with":
Held, reversing the decision of the Court of Appeal, Tasehereau. i-, dis-
senting. that the said Act did not dispense with the requirements of tm.
-5O4. 505 of the Municipal Act requiring a by-law providing for construc-
tion of the railway to be passed, but only confirmed the one that was
passed as a money by-law. Held. also, that an enoucoui recital in the
preamble to the Act that the Town Council had passed a construction by-
law had no effect on the question to be decided. 19 A.R. (Oat.) 555, re-
Dwyer v. Port Arthur. 22 Can. S.CJL 41.
[Referred to in Bell v. WestmotmU 15 Qne. S.C. 585.]
E. Regulation; Railway Board.
RBGCLATHKC rr crrr BT-L^W.
A requirement of a city by-law that a street railway company shimli
keep and maintain its engines, machinery and power houses within the
city limits, is complied with by the maintenance therein of a sub-station
containing apparatus for the reduction of the voltage of electricity gener-
ated beyond the city limits and also for transforming into a direct cur-
Winnipeg Eke. Ry. Co. v. Winnipeg. 4 D.L.R. 116,  A.C. 355.
AmBOVAL OF PLAXS - COXDITIOXAI. AITBOTAL.
(1) Notwithstanding the provision of & 472 of the Winnipeg Charter
that "the powers of the council shall be exercised by by-law when not
otherwise authorized or provided for." the approval by the city council of
the construction by defendants of a loop line on certain named streets of
the city may be given by resolution. [Toronto v. Toronto Ry. Co. (19M),
12 O-L.R. 534, followed.] >2i It is not a valid objection to such a resolu-
tion that it was one approving a report of the Board of Control even if
such Board had no power to deal with such a matter. (3) The council
had power to give an approval coupled with a condition that the company
should also construct another loop line on certain other streets, although
the council might be unable afterwards to enforce the condition. (4)
Under the law governing such construction the approval of the detailed
plans by the City Council is not required, so that the making of a "fc^g"
in the plans by the city engineer which had not been approved by the
council was no ground for an injunction.
Black v. Winnipeg Elee. Ry. Co.. 17 Man. L.R. 77.
BBEACH or T-LAW IxraTEvnox or ATTOBXET-GEXIAI_
In an action by the Attorney -General on the relation of a city ami it*
084 STREET RAILWAYS.
building inspector and by the city in its own right against an electric
railway company to restrain the breaches of certain city by-laws concern-
ing the erection of buildings and of any gas works or gas holders within
1he city, in which action the company claimed that by virtue of the powers
derived from another company that it was not subject to the by-laws and
also denied their validity, and at the opening of the trial applied to amend
its defence by pleading that the plaintiffs, by the judgment of the Privy
Council in the company's favour in a former action which the city alone
brought against the company and in which the issues were similar to
those in the present action, were estopped from denying that the latter
possessed all the powers of its predecessor, the Attorney-General is not
estopped by the judgment in the former action and as against him the
application to amend should be refused. [St. Mary Magdalene v. Attorney-
(ieneral, 6 H.L.C. 180: People v. Halladay, 93 Cal. 241, 29 Pac. R. 54,
writ of error dismissed, 159 U.S. 415, distinguished.]
Attorney-General v. Winnipeg Elec. Ry. Co., 5 D.L.R. 823, 22 Man. L.R.
BREACH OF MUNICIPAL BY-LAW INTERVENTION OF ATTORNEY-GENERAL.
In an action by a city in its own right and by the Attorney-General on
the relation of the city and its building inspector against an electric rail-
way company to restrain the breaches of certain city by-laws concerning
the erection of buildings and any gas works or gas holders within the city,
in which action the company claimed that by virtue of the powers derived
from another company it was not subject to the by-laws and also denied
the validity of the by-laws, and at the opening of the trial applied to
amend its defence by pleading that the plaintiffs, by the judgment of the
Privy Council in the company's favour in a former action which the city
alone brought against the company and in which the issues were similar
to those in the present action, were estopped from denying that the com-
pany possessed all the powers of its predecessor, the amendment was al-
lowed as against the city and an opportunity given the company of proving
Attorney-General v. Winnipeg Elec. Ry. Co., 5 D.L.R. 823, 21 W.L.B.
ACTIONS AGAINST ELECTRIC RAILWAYS INTERVENTION OF ATTORNEY-GEN-
The right of the Attorney-General to take action on behalf of the public
for the violation by an electric railway company of a by-law forbidding
the erection of gas holders within the city without first obtaining the per-
mission of the city council, cannot be taken away by the city consenting
to the erection of a gas holder by a company in breach of the city's own
by-law. [Yabbicom v. King,  1 Q.B. 444, followed.]
Attorney-General v. Winnipeg Elec. Ry. Co., 5 D.L.R. 823, 21 W.L.R. 906.
BREACH OF CITY BY-LAWS.
The only party who can sue for the protection of the public right is
the Attorney-General of the province in an action to restrain the breach
of three city by-laws, one of which forbade the erection of any gas works
or gas holders within the city without first obtaining the permission of
the city council, another prohibiting the erection of buildings within the
city without a permit from the building inspector, and the third prescrib-
ing an area within the city within which no gas works should be erected
or continued. [Devonport v. Tozer,  1 Ch. 759; Attorney-General v.
STREET RAILWAYS. 685
Wimbledon,  2 Cfc. 34; and Attorney-General T. Pontypridd, [190S]
1 Ch. 338, referred to.]
Attorney-General T. Winnipeg EJee. Ry. Co, 5 DJLJL 825, 21 WX.R.
TOBOXYO BAH.WAY AfcKEEMEXT O5TAKIO RAILWAY BOABD.
An order in council in pursuance of the judgment of the Privy Council.
 A.C. 313. ordered that subject to certain conditions contained in
their agreement it was for the respondents and not the appellants, to deter-
mine what new lines should be bud down on streets within the city of
Toronto. Thereafter an order was made by the Ontario Railway and Mu-
nicipal Board that the respondents construct between ten and fifteen addi-
tional miles off single track, and the company selected certain streets for
that purpose. Subsequently the Court of Appeal for Ontario affirmed a
decision of the said Board* that the company had the right to select:
Held, that the judgment in  A.C. 31-5 was perfectly clear and that
the order in council thereon was unaffected by the Ontario Act. 8 Edw.
VH, e. 112, s. 1_ 19 O-LJL 396. 1 O.W.X. 5. affirmed.
Toronto T. Toronto By. Co.,  A.C. 312.
OCTABIO RAILWAY AND MCXICITAL BOAKD JT/BISDICTIOX AGBEEMENT BE-
TWEEN nrxTcirAiTTiEs POSSESSION or KAIL WAY.
Under an agreement made between two municipalities and confirmed by
the statute. 8 Edw. VII. e. 80 (Ont.), one of the municipalities was, on
payment of the amount of an award, to become the owner of a part of an
electric railway which theretofore had been owned by the other although
operated in both municipalities and the whole road was to be operated
and managed by a board of commissioners constituted in the manner pro-
Tided for in the statute and agreement. The amount awarded having
been paid, and the appellants, a Board of commissioners who had been
operating the railway for the municipality which owned it, retaining con-
trol, management, and possession of the railway, and refusing to permit
compliance with the provisions of the agreement and enactment in tegBid
to its operation and management. The Ontario Railway and Municipal
Board was applied to. and such compliance was enforced by its order:
Held, that the Board did not thereby exceed the powers conferred upon
it by the Ontario Railway and Municipal Board Act. 1906.
Re Port Arthur Elec. Street Ry., 18 O.LJL 376.
OXTABIO RAILWAY AND MUNICIPAL. BOAED FBANCHISE roc ONLY STNGLE
RACK XO rOWEB TO OBDEB DOTBLE TBACK.
Waddington v. Toronto t York Radial Ry. Co.. 18 O.W.R. 621.
CONSTBTCTION AND OPEBAT1OX MrXICIPAI. ASSENT RAILWAY BOABO.
IB the ease of a street railway or tramway or of any railway to be
operated as such upon the highways of any city or incorporated town, the
consent of municipal authority required by & 184. Railway Act. 1903.
must be by a valid by-law, and in the absence of such by-law, the Board
has BO jurisdiction to enforce an order respecting the construction and
operation of such railway.
Montreal Street Ry. Co. v. Montreal Terminal Ry. Co.. 4 Can. Ry. Cas.
373. 36 Can. S.CJL 369.
[Adhered to in Essex Terminal v. Windsor etc.. Ry. Co_ 40 Can. S.C.R.
25; referred to in Can. Pac, Ry. Co. T. Grand Trunk Ry. Co., 12 O.LJL
C86 STREET RAILWAYS.
MUNICIPAL STREET RAILWAYS ACCOUNTING FOR PROFITS.
The Courts will not entertain a suit for an accounting of profits from
the operation of a railway by two municipalities under a formal agree-
ment executed not voluntarily but in conformity to an order of the Ontario
Railway and Municipal Board, since the matter was one exclusively within
the jurisdiction of the Board. 7 D.L.R. 241, 28 O.L.R. 206, affirmed.
Waterloo v. Berlin, 12 D.L.R. 390, 28 O.L.R. 206.
[Referred to in Malone v. Hamilton, 10 D.L.R. 305.]
F. Negligence; Contributory; Ultimate.
See also Negligence.
INJURY TO DRIVER CROSSING TRACK IMPROPER CONSTRUCTION OF TRACK.
The plaintiff, a driver employed by the Montreal Brewing Co., while
crossing the track of the defendants on Place d'Armes, opposite the church
of Notre Dame, was, thrown out of the waggon which he was driving by
the breaking of the rear axle, breaking his leg and sustaining other severe
injuries. He brought an action of damages alleging that the accident had
occurred by the fault of the defendants, owing to the improper construc-
tion and bad order of the track. The Superior Court for Lower Canada
(Torrance, J. ) found that the track was in bad order, the switch being
three inches above the level of the road, contrary to law, and that this
caused the accident without any fault on the part of the plaintiff, whose
damages he assessed at $2,500. The Court of Queen's Bench" for Lower
Canada (appeal side) reversed this judgment, being of opinion that the
rails, as well as the part of the roadway the defendants were bound to
maintain, were lawful and sufficient; that the defendants were not in fault,
and that the plaintiff had not exercised the necessary caution and prudence
to which he was bound, and might, by the exercise of reasonable caution
and prudence, have avoided the accident. On appeal to the Supreme Court
of Canada: Held, that the questions to be decided were purely matters
of fact, and the judgment of the Court of first instance should not have
been disturbed. Strong, J., dissenting, on the ground that the judgment
of the Court of Queen's Bench on the facts was correct. Appeal allowed
Parker v. Montreal City Passenger Ry. Co. (1885). Cass. Can. S.C.
Dig. 3893, p. 731.
[In this case the Privy Council refused leave to appeal. 6 Can. Gaz.
A street railway company is liable, in addition to actual damage suf-
fered, for the diminution in value of an immovable situate at the foot of,
and adjoining a steep hill down which the cars run where they are fre-
quently derailed and precipitated on the immovable to the great peril of
any persons who may be on the spot.
Amyot v. Quebec Ry., Light & Power Co., 36 Que. S.C. 141.
ACCIDENT TO PERSON ON STREET RAILWAY TRACK GUARD HAIL IMPROPER
HEIGHT OF RAIL.
Chisholm v. Halifax Tram. Co., 9 E.L.R. 201 (N.S.).
LIABILITY FOR PROTRUDING RAILS.
Where a city by-law declared that a street railway company should be
responsible for all damages occasioned by the construction, maintenance,
and operation of its railway, it is answerable for injuries sustained by
STREET RAILWAYS. 687
the pli-iir who was thrown from a vehicle by the striking of a wheel
against a rail that was four inches above the surface of the street, not-
withstanding the rail had originally been hud flush with the street, and its
elevation was due to acts of the city in repairing the street.
Montreal Street Ry. Co. v. Bastien, 12 D.LR. 342.
[Alldred T. West Metropolitan Tramway Co.. L.R.. [1S91] 2 Q.B. 398;
and Howit T. Nottingham Tramway Co., 12 Q.BJX 16, distinguished.]
XCISAXCE EtocnoK OF DAM TO OBTAIN rownt OBSTWTCTIOX OF
Where the proprietors of land on opposite banks of a river enter into an
arrangement with respect to the ownership of a dam erected for the par-
pose of obtaining power, touching both banks and extending across the
stream, it is competent for them to do so. and owners farther down the
stream hare nothing to say as to the terms of the arrangement where the
quantity of water passing down is not diminished. Where the owners be-
low by means of a dam erected by them cause the water to flow back and
to obstruct the operation of a mill above them they will be liable in dam-