Supreme Court of Canada
Broughton v. Grey and Elma (Townships), (1897) 27 S.C.R. 495
Date: 1897-05-01
Albert Broughton (Plaintiff) Appellant;
and
The Township of Grey and The Township of Elma (Defendants) Respondents.
1897: March 10, 11; 1897: May 1.
Present: Sir Henry Strong C.J. and Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Municipal law—Drainage—Assessment—Inter-municipal obligations as to initiation and contributions—By-law—Ontario Drainage Act of 1873—36 V. c. 38 (O.)—36 V. c. 39 (O.)—R.S.O. (1887) c. 184—Ontario Consolidated Municipal Act of 1892—55 V. c. 42 (O.)
The provision of the Ontario Municipal Act (55 V. c. 42, s. 590) that if a drain constructed in one municipality is used as an outlet or will provide an outlet for the water of lands of another the lands in the latter so benefited may be assessed for their proportion of the cost applies only to drains properly so called, and does not include original watercourses which have been deepened or enlarged.
If a municipality constructing such a drain has passed a by-law purporting to assess lands in an adjoining municipality for contribution to the cost a person whose lands might appear to be affected thereby, or by any by-law of the adjoining municipality proposing to levy contributions toward the cost of such works, would be entitled to have such other municipality restrained from passing a contributory by-law, or taking any steps towards that end, by an action brought before the passing of such contributory by-law.
APPEAL from the decision of the Court of Appeal for Ontario which affirmed the judgment of the Common Pleas Division of the High Court of Justice, maintaining the judgment of the trial court which had dismissed the plaintiff’s action without costs.
[Page 496]
The appellant is owner of certain lands in the township of Elma, included amongst lands in that township sought to be affected by a by-law of the corporation of the township of Grey under the provisions of the Ontario Consolidated Municipal Act, 55 Vict. ch. 42, sec. 585, by which taxes were charged and assessed upon these lands to raise funds for the construction and future maintenance of drainage works to be made by the said township of Grey. He brought this action for the purpose of having the said by-law of the township of Grey set aside as null and of no effect so far as his lands were concerned, and further to restrain the corporation of the township of Elma from passing a proposed by-law to raise funds to be levied by rating said lands to meet the proportion of contribution towards said drainage works charged thereon by the report of the engineer on which the by-law of the corporation of Grey had been passed.
Mabee for the appellant.
Garrow Q.C. for the respondent, Township of Grey.
McPherson for the respondent, Township of Elma.
The judgment of the court was delivered by:
GWYNNE J.—Before adverting to the nature of the scheme of drainage work proposed to be executed by the municipality of the township of Grey, so as to affect lands in the township of Elma, in which township the land of the plaintiff is situate, it will be convenient to draw attention to the status quo ante, and to the acts of the legislature of Ontario, tracing them from their source, in virtue of which the municipality of the township of Grey claims to be invested with power to assess lands in the township of Elma for the purpose of compelling such lands to contribute to the cost of the construction and maintenance of a work
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necessary for the better draining of lands in the township of Grey and proposed to be constructed wholly within that township, the nearest point of which proposed work to the township of Elma is about four miles from the boundary line between the two townships.
In or about the year 1873 a small drain was constructed in the township of Grey under the provisions of secs. 3 and 4 of the Ontario Drainage Act of 1873—36 Vict. ch. 38. By the provisions of that Act, the drain so constructed having been a local one, constructed wholly within the limits of the township of Grey, it became the duty of the municipality of that township to maintain the drain and to keep it in repair when completed, either at the sole expense of the municipality or of the parties more immediately interested, or at the joint expense of such parties and of the municipality.
By an Act passed in the same session of the Ontario legislature, viz.: 36 Vict. ch. 39, s. 2—it was enacted that—
In case the majority in number of the owners as shown by the last revised assessment roll to be resident on the property to be benefited in any part of the municipality, do petition the council for the deepening of any stream, creek or watercourse, or for draining of the property (describing it), the council may procure an examination to be made by an engineer or provincial land surveyor of the stream, creek or watercourse proposed to be deepened, or of the locality proposed to be drained, and may procure plans and estimates to be made of the work by such engineer or provincial land surveyor, and an assessment to be made by such engineer or surveyor of the real property to be benefited by such deepening or draining, stating as nearly as may be in the opinion of such engineer or provincial land surveyor, the proportion of benefit to be derived by such deepening or drainage by every road and lot and portion of lot, and if the council be of opinion that the deepening of such stream, creek or watercourse, or the draining of the locality described or a portion thereof, would be desirable the council may pass by-laws in form or to the effect set forth in the schedule for (among other things) determining what real property will
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be benefited by the deepening or draining and the proportion in which the assessment should be made on the various portions of lands so benefited,
subject to appeal as provided in the sections.
Then by sec. 7 it was enacted that:
When the deepening and drainage do not extend beyond the limits of the municipality in which they are commenced, but in the opinion of the engineer or surveyor aforesaid benefit lands in an adjoining municipality or greatly improve any road lying within any municipality, or between two or more municipalities, then the engineer or surveyor aforesaid shall charge the lands to be so benefited and the corporations, corporation or company whose road or roads are improved with such proportion of the costs of the works as he may deem just, and the amounts so charged for roads as agreed upon by the arbitrators, shall be paid out of the general funds of such municipality or company.
By sec. 10 it was enacted that:
The council of the municipality in which the drainage was to be commenced shall serve the head of the council of the municipality whose lands or roads are to be benefited without the drainage being continued therein, with a copy of the report, &c., &c., of the engineer so far as they affected such last mentioned municipality, and unless the same is appealed from as hereinafter provided, shall be binding upon the council of such municipality.
Sec. 11 enacted that
the council of such last mentioned municipality shall within four months from the delivery to the head of the corporation of the report of the engineer or surveyor as provided in the next preceding section, pass a by-law in the same manner as if a majority of the owners resident on the lands to be taxed, had petitioned, as provided in the first section of this Act, to raise such sum as may be named in the report, or in case of an appeal, for such sum as may be determined by the arbitrators.
Secs. 12 to 15 inclusive provided for the appeal to the arbitrators, and it was enacted sec. 16 that
in case of difference between the arbitrators the decision of any two of them shall be conclusive.
Then it was enacted by sec. 18 that
should a drain already constructed, or hereafter constructed by a municipality be used as an outlet or otherwise by another muni-
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cipality, company or individual, such municipality, company or individual using the same, as an outlet or otherwise, may be assessed for the construction and maintenance thereof in such proportion as shall be ascertained by the engineer, surveyor or arbitrators under the formalities provided in the preceding sections.
All of the above provisions are re-enacted in ch. 184 of R.S.O.1887, by which all the previous Acts on the subject are repealed. In this ch. 184, the section in which the provisions of sec. 18 of 36 Vict. ch. 39 are re-enacted, is numbered 590, and is as follows:
If a drain already constructed, or hereafter constructed by a municipality is used as an outlet by another municipality, company or individual, or if any municipality, company or individual, by any means, causes waters to flow upon and injure the lands of another municipality, company or individual, the municipality, company or individual using such drain as an outlet or otherwise or causing waters to flow upon and injure such lands, may be assessed in such proportion and amount as may be ascertained by the engineer, surveyor or arbitrators under the formalities (except the petition) provided in the foregoing sections for the construction and maintenance of the drain so used as an outlet as aforesaid, or for the construction or maintenance of such drain or drains as may be necessary for conveying from such lands the waters so caused to flow upon and injure the same.
Some amendments were made to this section by 52 Vict. ch. 36 sec. 37 (1889) and 53 Vict. ch. 50 sec. 37, (1890), but they are unimportant as regards the present case.
Now in 1891 it was decided by the Court of Appeal for Ontario in the case of the Township of Orford v. Howard, upon the construction of this sec. 590 of R.S.O. of 1887, that a drain to be regarded within the meaning of that section, as an outlet for the waters flowing from a township situated higher up than that in which the drain has been constructed must be a drain artificially constructed within the limits of the lower township and must be used by the upper township as an outlet for carrying off the waters reaching the drain
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from the upper township, and that a municipality from which surface water flows whether by
drain or by natural outlets into a natural watercourse cannot be called on to contribute to the expense of a drainage scheme merely because the natural course is used as a connecting link between drains constructed under that scheme and because the drainage scheme is in part necessitated by the large amount of surface water brought into the natural watercourse in question. In that judgment and in the reasons given by the learned judges who pronounced it, I entirely concur. It proceeds much upon the same principle as it appears to me as did the judgment of this court upon one of the points decided in Chatham v. Dover. In that case the Municipal Council of the Township of Chatham upon a report of their engineer adopted by the council passed a by-law for the construction of a drain within the limits of the township of Chatham into a stream called Bear Creek for the drainage of certain lands in Chatham. This stream called Bear Creek flowed through the townships of Chatham and Dover and by it all waters brought into it by drains constructed both in Chatham and Dover flowed down the natural stream into Lake St. Clair. In the engineer’s report which was adopted by the by-law it was declared that for the purpose of making the drain proposed to be constructed effectual it would be necessary to deepen the stream, into which the waters coming down the drain would flow, not only in the township of Chatham but also in the township of Dover, and the by‑law therefore to compel the lands in the latter township to contribute to the expense of the works assessed the lands in Dover as for outlet. The council of Dover appealed against this by-law, insisting, among other things, that the lands in Dover were not liable to con-
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tribute to the cost of such a work. The case came before us on appeal from an award of the arbitrators. In the case before the arbitrators the engineer who devised the scheme which the by-law adopted gave evidence among other things—that the lands in Dover could use the creek without the drain, and that he had assessed the lands in Dover not because they would derive any possible benefit, but because they used and would use the natural stream which he called the outlet. This court was, however, of opinion that the use by lands in Dover of the natural stream for the purpose of carrying off water brought into it by drains in Dover did not subject those lands to any obligation to contribute to the cost of the work proposed to be done under the Chatham by-law.
In the year 1892 the legislature by the Consolidated Municipal Act of that year, 55 Vict. ch. 42, altered the language of the sec. 590 of ch. 184 of R.S.O. 1887 in some respects. That section in the Act of 1892 reads as follows:—
590. If a drain already constructed, hereafter constructed, or proposed to be constructed, by a municipality, is used as an outlet, or will provide when constructed an outlet for the water of the lands of another municipality, or of a company or individual, or if from the lands of any municipality, company or individual, water is by any means caused to flow upon and injure the lands of another municipality, company or individual, then the lands that use or will use such drain when constructed as an outlet either immediately or by means of another drain from which water is caused to flow upon and injure lands, may be assessed in such proportion and amount as may be ascertained by the engineer or surveyor, Court of Revision, county judge or referee, under the formalities, except the petition, provided in the foregoing sections, for the construction and maintenance of the drain so used or to be used as an outlet as aforesaid,
or for the construction and maintenance of such drain or drains as may be necessary for conveying from such lands the waters so caused to flow upon and injure the same. In
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The Township of Harwich v. Raleigh, where a question arose identical with that which had arisen in Orford v. Howard, the Court of Appeal for Ontario were divided in opinion upon the question whether the section 590 of the Consolidated Municipal Act of 1892, so differed in its language from sec. 590 of ch. 184 of R.S.O. 1887 under which Orford v. Howard6, was decided as to necessitate in Harwich v. Raleigh5, a different judgment from that which was pronounced in Orford v. Howard6.
The Chief Justice and Mr. Justice Burton were of opinion in the affirmative, Mr. Justice Osler and Mr. Justice Maclennan in the negative, these two learned judges being of opinion that sec. 590 of the Act of 1892, equally as that section in the Act of 1887, applies, upon the question of outlet, only to drains properly so called, and does not extend to nor include original watercourses which have been deepened or enlarged. In this opinion, and in the reasons given in support of it, I certainly concur. Indeed, the contrary opinion appears to me to be wholly inconsistent with the principle upon which the whole of the legislation upon the subject is founded. The language of all of the Acts is very express, and in my opinion very clear, that it is only where a drain constructed by one municipality within its own limits is used by lands in another municipality for the purpose of carrying off water from the lands in such other municipality that the term outlet is used. It is only in such a case that the lands in the latter municipality are subjected to the obligation of contributing to the cost of the construction of a drain in another municipality. A natural stream running through a municipality in which a drain is constructed by the municipality, and into which the waters brought down by the drain are
[Page 503]
discharged for the purpose of being carried off thereby, is no part of the drain constructed by the municipality; and lands in another municipality situate higher up on the same stream into which the lands in such municipality are also drained by drains discharging their waters into the same stream within the limits of the upper municipality, can in no sense be said to use a drain constructed by the lower municipality within its own limits, and which discharges its waters into the same stream, and therefore such lands are not by any of the Acts subjected to the obligation of contributing to the cost of the construction of a drain in the lower municipality from which, as not using it they do not, and cannot, derive any benefit.
There does not appear in any of the Acts a scintilla of intent on the part of the legislature to legislate in such a manner as to enable one municipality by a by-law passed by its council to impose upon lands situate in another municipality an obligation to contribute to the cost of the construction and maintenance of a drain constructed within the limits of the former municipality for the drainage of lands situate therein, which work, in point of fact, contributed no benefit whatever upon the lands in the other municipality. The whole scheme of the legislation upon the subject is that they who derive benefit from such a work, and they only, shall bear the burden of its construction and maintenance. Qui senlit commodum sentire debet et onus is the principle upon which all legislation on the subject is expressly founded. The learned counsel for the respondents rested their defence to the present appeal wholly upon the above sec. 590, and upon sec. 585 of the Act of 1892. This latter section enacts as follows:
In any case wherein the better to maintain any drain constructed under the provisions of this Act, or of the Ontario Drainage Act and the amendments thereto, or of the Ontario Drainage Act of 1873, or of
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any other Act respecting drainage works and local assessment therefor, or of the municipal drainage aid Act, or to prevent damage to adjacent lands, it shall be deemed expedient to change the course of such drain or make a new outlet, or otherwise improve, extend or alter the drain, or to cover any portion of the said drain where it passes through a ridge of land, the council of the municipality or of any of the municipalities whose duty it is to preserve and maintain the said drain, may, on the report of an engineer or surveyor appointed by them to examine and report on such drain, undertake and complete the alterations and improvements or extension specified in the report under the provisions of sec. 569 to 582 inclusive, without the petition required by sec. 569, and the engineer, or surveyor, Court of Revision, county judge, or referee, (as the case may be) shall for such alterations, improvements or extension, have all the powers to assess and charge lands and roads conferred by said sections, and section 590.
Now in connection with this section all that we have to do with is the drain constructed under the Drainage Act of 1873 within the limits of the township of Grey, and which had been constructed wholly at the expense of the municipality of Grey and the landowners therein who were alone benefited by the work.
Now by the by-law of the township of Grey set out in the plaintiff’s statement of claim, we see that this drain “commenced on the road allowance between the 17th and 18th concessions at about the line between lots 28 and 29, and was constructed from that point along the road westerly to Beauchamp Creek,” where it terminated, having there its outlet into the creek by which the waters coming down the drain into the creek were carried to the River Maitland, where, as appears by the engineer’s report adopted by the by-law, the engineer treated the outlet of the drain to be, thus regarding the Beauchamp Creek which is a natural stream into which drains in Elma also discharge their waters, to be part of the drain which was constructed under the Ontario Drainage Act of 1873, which very
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clearly it was not. Now what the engineer by the scheme suggested in his report recommended to be undertaken, was the improving this stream called Beauchamp Creek from the mouth of the drain no. 2 to the River Maitland, and so he says in his report:
In order to make a proper outlet for this drain it will be necessary to improve this creek to the line between the 12th and 13th concessions, which is almost its intersection with the Maitland River. This creek as a whole is in a very bad state to form a proper outlet for the extent of country that drains into it. In places there is a well defined channel requiring little improvement, while in most of its courses it will require to be deepened, widened and straightened, and have all the fallen timber taken out.
The main portion of the work so proposed to be done consists in deepening, widening and strengthening this natural stream called Beauchamp Creek to the junction of its waters, from the point of discharge into it of drain no. 2, the drain constructed under the Ontario Drainage Act of 1873, with the Maitland River so as to give to this creek sufficient capacity to enable it to carry off all the water already discharged into it from drains constructed in Elma and Grey, and which upon the completion of the work the engineer has estimated will be drained into from lands in the township of McKillop, which lands he has assessed (as for “outlet,” also apart from any benefits). In another part of his report the engineer speaks of this proposed work in Beauchamp Creek as constituting almost the whole of the work proposed to be done. He says:
The amount of fall in the proposed work being small, the effect of straightening and shortening the course of the proposed work is very important.
The fall in Beauchamp Creek from the mouth of the original drain no. 2 to the Maitland River being small, would doubtless make it very important that the stream should be deepened and its course straightened for the purpose of enabling it to carry off the waters
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flowing into it from drains situate low down upon the stream in the township of Grey, but the sluggish character of the stream there points to the conclusion that the proposed deepening &c., &c., of the stream where proposed to be done would have no sensible effect on the stream in the township of Elma, the nearest point of which is distant four miles from the drain, and so an explanation is given by the engineer why he did not assess any lands in Elma as for any benefit whatever but solely as for “outlet,” quite apart from any benefit being conferred by the work upon any lands in Elma. The engineer also shows upon his report, which the by-law has adopted, what that which he calls “outlet” is, for which he has assessed the lands in Elma to the amount of $4,013.24. He says:
In laying out the work I have endeavoured as far as practicable to straighten the course of the Beauchamp Greek or outlet.”
So that it is apparent that what the lands in Elma are assessed for is the outlet which Beauchamp Creek gives to them, and it is the lands and roads naturally draining into the same, which in another place the engineer says that he has assessed for outlet. Now as to this section 585 it is apparent that if any by-law is authorized to be passed under it, the section in express terms, by making the provisions of the section subject to the provisions in sections 569 to 582, limits the jurisdiction as to any lands outside of the township of Grey to such lands as are benefited by the work proposed to be undertaken and to the extent of such benefit. So as to section 590, as already observed, neither that nor any other section authorizes lands in Elma to be assessed for contribution under the name of “outlet” or otherwise for any work constructed wholly within the limits of the township of Grey and which confers no benefit whatever upon the lands in
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Elma. That section in its terms expressly is limited to cases (1) where a drain already constructed is used as an outlet, or (2) to one which when “hereafter” constructed will provide an outlet for the water of the lands of another municipality, etc., then the lands which use or will use such drain when constructed as an outlet, either immediately or by means of another drain from which water is caused to flow upon and injure lands may be assessed.
Now the government drain no. 2 as originally constructed terminated at the point where it discharged the waters coming down it into Beauchamp Creek—and it will still continue to be in precisely the same spot when the work proposed to be undertaken under the by-law of the township of Grey shall be completed. That drain never has been used as an outlet for waters on lands in Elma whether brought into the drain either immediately or by means of another drain, nor is it suggested that the drain so originally constructed when the work proposed to be undertaken shall be completed will provide such an outlet for any lands in Elma. What the by-law regards as an outlet for which the lands in Elma have been assessed, plainly is, the natural stream called Beauchamp Creek as proposed to be deepened, &c., which the engineer’s report which is adopted by, and made part of, the by-law calls the outlet of the drain no. 2. Well, it is equally so of all the water draining into it from lands in Elma; but such an outlet provided by a natural stream for all waters drained into it by drains in the several townships through which it flows is a very different thing from a drain constructed in Grey which conducts its waters to the stream being an outlet provided by Grey which is used by lands in Elma, when in point of fact no water from any lands in Elma passes through the drain in Grey into
[Page 508]
the stream, but all waters from lands in Elma reach the stream within the limits of the township of Elma by drains constructed in that township.
If the deepening, straightening and widening of Beauchamp Creek, where it is proposed to be deepened, &c., &c., within the township of Grey, benefited lands in Elma for drainage purposes, they might be assessed by a proper by-law for that purpose to the extent of the benefit conferred by such work; but that is a very different case from the present, where it is apparent on the engineer’s report adapted by the by-law that the proposed work does not benefit the lands in Elma. But moreover, the by-law assesses the lands in Elma to the amount of $604.12 for the cost of the original construction of the drain no. 2, in Grey, constructed in 1873, and has credited the parties originally assessed for that work in Grey with such amount upon the assessments made against the lands in Grey for the work proposed to be undertaken. For this charge there is no pretence of there being any authority whatever.
Thus it appears by the by-law that lands in Elma are charged with the sum of $4,617.36, which with interest added for twenty years during which debentures will run, which are contemplated to be issued to raise the necessary funds, amounts to $6,796.60 as the contribution assessed upon lands in Elma for the execution of work from which those lands do not derive any benefit whatever.
For the above reasons I am of opinion that the lands in Elma purported to be affected by the by-law are not assessable for, nor liable to contribute any part of the cost of, the proposed work, and that as regards these lands the by-law of the township of Grey is absolutely ultra vires.
[Page 509]
Now it appears that the Township of Elma not only have not appealed, as they might have done, but although requested by the plaintiff to do so have insisted upon acting under it, and have passed a provisional by-law for that purpose which they intend finally to pass unless prevented by process of law, and as the lands of the plaintiff or his title thereto would in the event of the Municipal Council of Elma passing such by-law and issuing debentures thereunder, be prejudiced until the cloud affecting them by such by-law should be judicially removed, the plaintiff has, I think, an undoubted right to appeal now to the courts by the proceeding which he has taken instead of waiting until after the passing of the Elma by-law. Greater difficulties might be raised to his seeking redress if the by-law should be, as it might, and no doubt would be, registered under secs. 351 et seq. of the Municipal Act of 1892.
I am of opinion, therefore, that the plaintiff is entitled to the relief prayed in his statement of claim, and that therefore his appeal must be allowed with costs in this court and in the Court of Appeal for Ontario, and that a decree be ordered to be made in the action in the court wherein the action has been brought, to the effect that the by-law no. 53 of the Township of Grey, in the pleadings mentioned, is void and ultra vires, as affecting or purporting to affect lands in the township of Elma, and that the defendants, the Township of Elma be enjoined from passing the proposed by-law no. 321 already provisionally passed, and from taking any steps for the purpose of giving effect in the township of Elma to the said by-law of the Township of Grey—with costs against the said Township of Elma.
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The defendants, the Township of Grey to have no costs of defence to the said action.
Appeal allowed with costs.
Solicitor for the appellant: J.P. Mabee.
Solicitors for the respondent, the Township of Grey: Garrow & Proudfoot.
Solicitors for the respondent, the Township of Elma: McPherson & Davidson.
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