Supreme Court of Canada
Royal Trust Co. v. City of Montreal, (1918) 57 S.C.R. 352
Date: 1918-10-08
The Royal Trust Company (Plaintiff) Appellant;
and
The City of Montreal (Defendant) Respondent.
1918: May 27; 1918: October 8.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Expropriation—Irregularities prior to notice—Acquiescence—Actual value—Servitude—62 Vict. c. 58, s. 418.
Held, per Davies, Anglin and Brodeur JJ.—In proceedings to expropriate lands, taken under the provisions of the charter of the City of Montreal, the expropriated party, by appointing his commissioners and prosecuting his claim before the Board, estops himself after the award is made, from attacking it on the grounds of alleged irregularities anterior to the notice of expropriation.
Per Fitzpatrick C.J. and Anglin J.—The commissioner, in fixing the owner's compensation, are not entitled to make any deduction from the actual value of the expropriated land, in respect of the burden imposed upon it by the confirmation or homologation of a plan.
Per Davies and Brodeur JJ.—The commissioners, in finding the actual value of land which, when expropriated, will become a public street, are bound to take into consideration the facts of the homologation and confirmation of the lines of that street.
Judgment of the Court of King's Bench, appeal side (Q.R. 26 K.B. 557), affirmed.
APPEAL from the judgment of the Court of King's Bench, appeal side, reversing the judgment of the Superior Court, District of Montreal, by which the plaintiff's action was maintained.
The action was taken to set aside and have declared illegal and null proceedings which had been taken by the City of Montreal by way of expropriation for opening or extending Sherbrooke street in the east end of
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the city and also to set aside the award of the arbitrators in so far as it affected certain lots of land required for the opening of that street and owned by the appellant in trust for the estate of one Charles Sheppard.
Lafleur K.C. and A. Chase-Casgrain K.C. for the appellant.
Atwater K.C. and Jarry K.C. for the respondent.
The Chief Justice.—The substantial question in this appeal is what were the rights of the appellant in the land expropriated and for which it had a claim to be indemnified.
The lots in question were within the homologated street lines shewn on a plan prepared by the city and confirmed by the court in 1887 as being included in land required for an extension of Sherbrooke street.
The proprietor of land expropriated is entitled to be compensated by payment of the value of the land taken and section 421 of the city charter provides, inter alia:—
Indemnity, in case of expropriation, shall include the actual value of the immovable, part of immovable or servitude expropriated and the damages resulting from the expropriation; but, when fixing the indemnity to be paid, the commissioners may take into consideration the increased value of the immovables from which is to be detached the portion to be expropriated and offset the same by the inconvenience, loss or damages resulting from the expropriation.
Section 418, however, provides:—
418. The city shall not be liable for any indemnity or damages claimed with respect to any building constructed, or improvements, leases or contracts made by any person whatever, upon any land or property, after the confirmation of any plan or map, or of any modification or alteration of, or addition thereto.
The question is what is the effect of section 418? Mr. Justice Cross, in his reasons for the judgment appealed from, says:—
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The respondent (now appellant) is in error in its pretension that it should have been awarded what would have been the real value of the land in question if it had been marketable land. It is said for the respondent (appellant) that the city is not to be permitted to depreciate land by putting it on a plan and then take the land at the depreciated value made so by its own act. To that it can be said that the city plan is given certain effect by statute. That effect causes depreciation but it is the law.
I must dissent altogether from this interpretation of section 418.
It is a well-recognised canon of construction not to interpret an Act of the legislature in such a way as to take away property without compensation unless such intention is clearly expressed or is to be inferred by plain implication.
In the recent case in the English Court of Appeal of the Cannon Brewery Company v. The Central Control Board (Liquor Traffic) reported in the Times of the 17th of May 1918, the Master of the Rolls in his judgment said:
No intention could he attributed to Parliament of taking away from individuals their property without paying them for it unless such intention was expressed in clear and unequivocal language.
See Gibb.v. The King also
Now I can see nothing in section 418 to warrant the view that it is intended to have the effect of a partial and indeed almost total confiscation of the property of an owner of land. The intention of the legislature, I think, was this: Where a city improvement is proposed, the carrying out of which may necessarily take some time, parties whose land will need to be expropriated for the purpose are not to be allowed to aggravate the indemnity which they will be entitled to claim by carrying out improvements in the interval.
This does not seem to me to involve any intention on the part of the legislature to deprive the landowner
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of the full value of his land which he is entitled to be paid.
The power given to the city is a very exceptional one and one that, no doubt, may easily lead to considerable hardship. Under it, the city can, owing to want of security, practically prevent a landowner making any use of his property for an indefinite time without being under any obligation to take the land at all or to pay any damages occasioned. That is sufficiently unfavourable to the landowner without an unnecessary finding in the statute of an intention to allow the owner even eventually nothing but the value of what would be scarcely more than a bare legal title, of which, indeed, the respondent's expert witness, Beausoleil, says:—
la valeur n'est que nominale et ne dépasse pas $1, pour tout le terrain.
The second clause in the third paragraph of section 421, that, namely, providing for an offset in consideration of increased value of the immovables from which is to be detached the portion to be expropriated is not, I think, effective here because at the date of the expropriation the appellant had no other lands than those expropriated. It had already disposed of its other immovables which benefited by the increased value. If it had sold them subsequently to the expropriation the increase in their value would have had to be set against the compensation for the land expropriated. At the time of the sale, however, the extension of Sherbrooke street had not been made and might never have been made. No doubt there was a probability that it would be made and the purchasers were willing to accept the possibility, still I do not see how this can affect the legal rights as between the appellant and the respondent.
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I think that from the record two facts are established: (1) that the value of land in the locality was more than that allowed in the award; and (2) that the majority of the commissioners took into consideration the homologated plan as depreciating the value of the land expropriated.
These are substantially the findings of Mr. Justice Cross, who says:—
It can be said that the proof establishes that the real value of marketable land in the locality was 60c. per foot. The award is only 25c. per foot. That great disparity is suggestive of the view that the majority of the commissioners subjected themselves to some error not merely of estimate of value but to some error in principle.
And again he says:—
The fact is that the majority of the commissioners did take into consideration the effect of the homologated plan and they would have been wrong if they had not done so.
It would be difficult to say how the commissioners arrived at their award. They seem to have been agreed at first in saying that they took into account the servitude of the road although later inclining to the contrary opinion. The principles on which they should have proceeded as above indicated are, however, so simple that I think it is clear they were not guided by these. No adequate explanation is forthcoming of the difference between the allowance for these and other lands taken; whilst one of the majority of the commissioners says that if he had taken the servitude into account he would have allowed only 15c. instead of 25c. per foot, A difference of only 10c. between the full value of lands and their value burdened with a servitude which, as the respondent's witnesses say, renders them absolutely valueless is inexplicable.
I do not wish to be understood as expressing now any opinion upon the amount of the compensation which the appellant is entitled to recover. The amount
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awarded may for reasons which I have not considered work out as a fair and proper compensation, but if so it has worked out right rather by chance and the appellant is entitled to have a more satisfactory consideration and regular determination of its claim.
The appeal should, therefore, in my opinion, be allowed and the matter referred back to the commissioners to establish the actual value of the land expropriated the amount of which is to be awarded as indemnity to the appellant, but in view of the finding below and out of respect for the opinion of the majority here I do not enter a formal dissent.
Davies J.—This is an appeal from the judgment of the Court of King's Bench, Province of Quebec, reversing a judgment of the Superior Court judge which declared certain expropriation proceedings in connection with the plaintiff's property and the award of the majority of the commissioners to be null and void.
The Court of King's Bench reversed that decision and dismissed the plaintiff's action and against this judgment the present appeal was taken.
I agree fully with the Court of King's Bench that the alleged illegalities in the antecedent proceedings of the city and the commissioners cannot be invoked in this case on the grounds stated in the court below. The conduct and action of the present appellants in appointing their commissioners and prosecuting their claim before the Board effectually estopped them after the award was made from attacking it on the ground of these alleged irregularities, anterior to the notice of expropriation.
The statute makes the award of the commissioners, in such cases as the present, final and without appeal. In order to give grounds for attacking it, either highly
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improper conduct on the commissioners' part, or fraud, or the proceeding by the commissioners in making the award upon an improper principle, must be clearly shewn.
The latter was the ground relied upon in this case.
The Court of King's Bench held that the award attacked should not be interfered with and I think they were right in their conclusions.
The owner of land expropriated is undoubtedly entitled to be paid its actual value at the time of its expropriation; but it is the actual value of the land to him subject to any statutory charges upon it, and not the value to the person, corporation or company taking it that is to be awarded.
The City of Montreal had, in the year 1887, laid down on a plan the lines of a proposed extension of Sherbrooke street, one of the principal streets of Montreal, which extension ran through the property in question, and had the plan confirmed by a judge of the Superior Court.
The law provided that after the homologation of these lines by the confirmation of the plan of the same, the city was freed from liability or damages
with respect to any building constructed or improvement, leases /?/or contracts made by any person whatever upon any land or property after the confirmation.
An amendment, 7 Ed. VII. ch. 63, sec. 30, speaks of portions of vacant lots between homologated lines as being reserved for "public or municipal purposes."
In 1908 the Sheppard estate, of which the plaintiff is trustee, made a plan of subdivision of its land in the locality of the locus in question and made its plan to conform to the city plan so far as concerns the site of Sherbrooke street. Afterwards, in 1912, lots on the north-east side were sold to Larivière and Messier by
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the now appellant and these lots are described in the deed as being bounded by Sherbrooke street.
When the commissioners made their award, upon what principle should they have proceeded? Clearly, in my opinion, they should have awarded the actual value of the land to its owner and in finding that actual value they were bound to take into consideration the fact of the proposed extension of Sherbrooke street and the homologation, and confirmation of the lines of that street through the plaintiff's lands as shewn on the plan of the same. In my judgment, the plaintiff had not a marketable title at the time of the expropriation. Such title as he had was one subject to the effect of the proposed extension of Sherbrooke street and the confirmation of the plans thereof, in other words, subject to a statutory charge. The commissioners were obliged, in my judgment, to consider this in making their award. This statutory charge or "reservation for municipal purposes," or servitude, or whatever name you choose to give it was something which affected the value of the land and diminished its marketable value. It is true it may have raised, probably greatly raised, when adopted by the Sheppard estate in making their plan of the land in 1908, the value of the lands fronting on that proposed street, but with that we have nothing to do. The owners of these adjoining lands, in this instance the plaintiff itself, got the benefit of that increase and no one complains or has a right to complain of that. But when they sold these adjoining lands at 60c. a foot, and then claimed to have allowed them the same price for the lands of the proposed street, the opening of which gave them the increased price they got for the adjoining lands, and contend that this was the principle on which the arbitrators should have acted they are going too far and advancing as a
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principle something I cannot for a moment accept. They claim properly all the increased price caused by the opening of the street to the adjoining lands and then contended that this increased price was that which should have guided the arbitrators in fixing the compensation for the street itself. As Mr. Justice Cross says:—
It is simply resorting to the too common project of land speculators to get paid twice for the same thing.
Their title to the lands within the street boundaries was subject to the statutory charge or reservation I have referred to. It was not a marketable title such as that to the lands fronting on the street. It had to be valued as it stood at the time of the expropriation subject to the charge and if that had been done by the arbitrators, I would have held it was rightly done. Mr. Justice Cross holds that the majority of the commissioners did take into consideration the effect of the homologated plan, the Sheppard estate sudivision plan and the description of the Larivière and Messier lots as bounded on the street, which consideration would, of course, tend to decrease the actual value of the street land.
If they did, from my point of view they were right, and there is no ground for the contention that they acted upon a wrong principle.
If they did not, they omitted doing what they should have done in that respect; but the appellants have no ground of complaint on that score, as the omission would be in their favour.
I am unable to find that the arbitrators acted upon any wrong principle, and I would, therefore, agreeing, as I do, with the reasons for his judgment given by Mr. Justice Cross and with the conclusions of the Court of King's Bench, dismiss the appeal with costs.
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Idington J.—I think this appeal should be dismissed with costs.
Anglin J.—I agree with the learned judges of the Court of King's Bench that the award of the expropriation commissioners cannot be successfully attacked upon the grounds of alleged irregularities in the antecedent proceedings preferred by the appellants. Whether the provisions of the charter of the City of Montreal (62 V., ch. 58, and amendments) required or justified the commissioners in fixing the amount of compensation for the land expropriated to make a deduction from its actual value on account of rights or easements in favour of the municipality and the public to which it was subjected by the confirmation, in 1887, of a plan for the extension of Sherbrooke street, and whether they have in fact made such a deduction are, in my opinion, the only debatable questions. Both of them—the one a question of law, the other of fact—require careful consideration.
The principle of natural law which underlies Art. 407 of the Civil Code:—
No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid,
is likewise the foundation of the well-established rule of statutory construction thus stated by Farwell J. in Earl of Lonsdale v. Lowther:—
It is a sound rule of construction not to construe an Act of Parliament as interfering with or injuring persons' rights without compensation, unless one is obliged so to construe it: see per Lord Esher in Attorney-General v. Horner.
The city charter declares that streets and highways indicated and projected upon a plan or map duly confirmed by the Superior Court shall be deemed to be
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highways (section 411). Although the city is not bound to carry into effect any projected street opening, widening, or extension so confirmed (section 417), the owner is disentitled to indemnity, should the city subsequently expropriate the land, for any buildings or improvements constructed or made upon it subsequently to such confirmation (section 418). "Nor," says section 417:—
shall the city hereafter be liable for any indemnity or damages whatever by reason merely of the confirmation of such plan or any alteration or modification thereof or addition thereto.
The only offset to the very serious interference with and deprivation of his rights thus authorised is that the property owner has by recent legislation (section 419 (a), enacted by 7 Ed. VII., ch. 63, sec. 30) been relieved from liability for taxes, but only if the expropriated land be vacant, and that he may make such use of his land as is practicable without building upon or otherwise improving it except at the risk of losing his expenditure and subject to the rights of the public in it as a highway. It is obvious that so burdened the interest of the owner in the land would be of little, if any, value and that if his indemnity on its ultimate exporpriation should be confined to the value of an interest so depreciated he will, in effect, have been deprived of his property without compensation. That such a result was intended by the legislature is most improbable.
The interval between the homologation of a plan shewing a projected highway or highway extension, and the expropriation of the land required for it, may be prolonged for many years. During that period the owner undoubtedly must submit to the hardship of the burden placed upon him by the statute as the result of confirmation of the plan without compensation
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because the legislature has expressly negatived his right to
any indemnity or damages whatever by reason merely (simplement) of the confirmation of the plan.
But the opening, widening or extension of a street cannot be actually made without expropriation under the provisions of the charter (section 419), and when that takes place the case is no longer one merely (simplement) of confirmation of a plan. The land itself must then be acquired and the statute says that the owner's indemnity
shall include the actual value (la valeur réelle) of the immovable, part of immovable or servitude expropriated and the damages resulting from the expropriation (s. 421).
Applying to the two provisions which I have quoted from sections 417 and 421 the rule of interpretation above indicated and harmonizing their construction as far as their language permits with art. 407 of the Civil Code, I think section 417 should be read as suspending the right of the owner to compensation for the loss, temporary or permanent, of the rights of which he is deprived on confirmation of the plan. The loss may be temporary only, because the city is not bound to proceed with the projected opening, etc.; it may, by altering or modifying the homologated plan with the sanction of the court (section 415), abandon the project without incurring liability for indemnity (section 417). The loss may be permanent if the city proceeds with the project, necessitating the expropriation of the land. Thereupon, as already stated, the case ceases to be merely one of confirmation of the plan of a projected improvement and the owner becomes entitled to indemnity not by reason of such confirmation, but because his land is taken from him and the statute says that his indemnity shall include its actual value. The suspension
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under section 417 is then terminated. That confirmation of the plan should produce only a suspension of the owner's claim for indemnity in the event of ultimate expropriation seems very clearly to be the purpose of the word "merely" (simplement) in section 417, and—I say it with all becoming respect—I cannot but believe that the significance of this word has escaped the attention of those who have taken the contrary view.
I am, therefore, of the opinion that the commissioners in fixing the owner's compensation were not entitled to make any deduction from the actual value of the land taken in respect of the burden imposed upon it by the confirmation of the plan in 1887—that it was the actual value of the land for which they were to award compensation and not merely the value of the owner's interest therein subject to the rights of the municipality and the public acquired under the homologation.
Neither can I subscribe to the contention that by selling adjacent lands as fronting on Sherbrooke street, then a projected highway, and under the statute to "be deemed to be a public highway," the owner necessarily subjected the part of his property afterwards expropriated for that street to a servitude in favour of the purchasers and their assigns in respect of which the commissioners were required or entitled to make a deduction from its actual value in ascertaining the amount of the indemnity payable to the owner on expropriation.
Did the commissioners in fact make any such deduction? Mr. Justice Cross says:—
The fact is that the majority of the commissioners did take into consideration the effect of the "homologated" plan, the making of the Sheppard estate subdivision plan and the description of the Larivière
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and Messier lots as being bounded by Sherbrooke street; and they would have been wrong if they had not done so.
He reaches this conclusion apparently because of what he regards as the otherwise unexplained and inexplicable disparity between the 25c. a square foot allowed to the appellants as compensation and the 60c. a square foot which he says the proof establishes was the real value of marketable land in the locality.
On the other hand, the late Chief Justice of the Court of King's Bench (Sir Horace Archambeault) and Mr. Justice Carroll accepted the testimony given by each of the three commissioners who constituted the majority of the board that they had made no deduction on account of what they term "the servitude". Recorder Geoffrion, Chairman of the Board, deposed that in taking this course the majority of the commissioners acted on the opinion of a judge of the Superior Court obtained and communicated to them by him; and the two other commisssioners confirmed this statement. Mr. Justice Trenholme, the remaining member of the court, delivered no written opinion, but the formal judgment would seem to indicate that on this point he agreed with the learned Chief Justice and Mr. Justice Carroll rather than with Mr. Justice Cross. It is erroneously stated in the official report that Mr. Justice Pelletier sat as a member of the court.
After careful consideration of the entire record, notwithstanding some discrepancies, and the obviously fidgetty scrupulosity of Recorder Geoffrion, I have not found sufficient reason for disbelieving the commissioners' testimony or doubting its accuracy, corroborated as it is by that of Mr. Senecal, the secretary of the board. Still less am I prepared to hold
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that upon this question of fact the Court of King's Bench clearly erred in its appreciation of the evidence. The mere disparity referred to by Mr. Justice Cross does not warrant such a conclusion. Moreover, I am not satisfied that the actual value of lands in the locality,
excluding any advantage due to the carrying out of the scheme for which the property (was) compulsorily acquired, (Fraser v. Fraserville),
was 60c. a square foot. Mr. Findlay valued the land in question at 40c. a square foot free from all servitudes and 20c. subject to the servitudes discussed, and there is no evidence how much less than the figures put upon it by the several expert witnesses it would be worth if the extension of Sherbrooke street were merely a possibility and not a realized possibility. Cedars Rapids Manufacturing Co. v. Lacoste. So far as appears none of the witnesses who deposed to values ranging from 40c. to 75c. a square foot were examined on this footing. One of them, Mr. Beausoleil, said that, subject to the "servitude," he would value the whole lot at $1. Moreover, other properties in the locality, some of them not shewn to have been so wholly different from that of the appellants as to preclude comparison, were valued by the commissioners at the same figure, 25c. a square foot, and there are the circumstances that the property in question had been the location of a city dump, was very low, and was comparatively close to abattoirs, which the commissioners regarded as having a tendency to depreciate its value.
There is no appeal from an award such as this. The statute expressly excludes it (section 429)—(4
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Ed. VII., ch. 49, section 18). Without entertaining an appeal an award may not be set aside solely because the court is of opinion that it is too high or too low— even very considerably so—unless the disparity be so great that it is clear that the award must have been fraudulently made or that the arbitrators must have been influenced by improper or illegal considerations. The Court of King's Bench has held that neither of these grounds of invalidity has been established, and the clear case necessary to justify a reversal of its judgment, in my opinion, has not been made out.
I would merely add that if I thought it necessary to pass in detail upon the considerations that should affect the commissioners in arriving at the amount of the indemnity to which an expropriated owner is entitled under section 421 of the Montreal city charter, I am not at all certain that where, at the time of the homologation of the plan shewing the projected improvement, he owns adjacent lands, from which the expropriated property is thereby detached, and parts with those lands in the interval before expropriation, he should not, for the purposes of the off-set of increased value of such adjacent lands provided for by that section, be in the same position as if he still held them. Why should the amount which the city has to pay for the expropriated land be increased because the owner has parted with his adjacent property since the homologation of the plan of the projected work? It would seem to be contrary to the purpose of the statute providing for homologation and its consequences with the apparent object of preventing changes in the condition of the property affected which would increase the burden of the expropriating municipality that it should. But on this aspect of the case it is not necessary now to express a definite opinion.
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Solely on the ground that the evidence does not clearly establish that the award of 25c. a square foot was such a gross undervaluation of the appellants' property as would warrant a finding that the commissioners in making it must have been influenced by improper considerations, and a fortiori, that it has not been so plainly demonstrated that the Court of Bang's Bench erred in reaching that conclusion that a reversal of its judgment would be justified (Demers v. Montreal Steam Laundry Co., I would dismiss this appeal.
Brodeur J.—La principale question qui se présente dans cette cause est de savoir si les commissaires en expropriation en fixant le montant de l'indemnité se sont basés sur un principe erroné.
La propriété expropriée faisait partie autrefois d'un lot vacant; et en 1887 la cité de Montréal en vertu de sa charte a décidé de prolonger la rue Sherbrooke à travers ce lot. Elle a indiqué cette prolongation sur la plan officiel et l'a fait confirmer par la Cour Supérieure. Par ces procédures la rue projetée est devenue voie publique (art. 411 de la charte).
Une autre disposition de la charte déclare cependant que la cité n'est pas tenue, à raison de la confirmation du plan, d'ouvrir la rue; et elle n'est pas tenue non plus de payer une indemnité ou des dommages-intérêts à raison de la confirmation de ce plan (art. 417).
Cette disposition est certainement contraire aux principes ordinaires du droit. En effet, le Code Civil, art. 407, déclare que nul ne peut être contraint de céder sa propriété qu'en étant payé au préalable d'une juste indemnité. Or, voici un propriétaire dans la cité de Montréal qui voit tracer une rue sur son terrain. Il ne pourra plus le vendre sans dénoncer l'alignement
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dont il est frappé (Ménard v. Rambeau; Sirey 1871-1-48). Il ne pourra pas, non plus, exiger d'indemnité ou des dommages-intérêts pour les bâtiments qu'il y construira.
La cité cependant ne pourra pas exiger de taxe pour le terrain couvert par cette ligne homologuée (art. 419a de la charte). Le propriétaire, du moment qu'une ligne est tracée comme cela, demeure bien le propriétaire du terrain qui sert d'assiette de la rue; mais il ne peut plus y faire de construction, à moins de s'exposer à les enlever sans compensation quand l'indemnité sera fixée pour le terrain lui-même. Son droit de propriété se trouve donc gravement restreint; et, de plus, ce terrain devient une voie publique, ainsi que le déclare l'article 411 de la charte.
Il est bien vrai que ce propriétaire a la perspective de voir une rue traverser sa propriété; et alors, à raison de cela, les lots que bordent la rue projetée augmentent en valeur et l'indemnisent. C'est probablement cette plus-value qui a induit la législature à adopter cette législation apparemment contraire au principe qui veut qu'il n'y ait pas d'expropriation sans indemnité.
Mais, d'un autre côté, si la cité jugeait à propos de ne pas donner suite à son projet d'ouvrir une rue à l'endroit en question, cela pourrait créer de graves injustices. Mais c'est là une question pour le législateur et non pour les tribunaux.
Dans le cas actuel, la rue fut tracée sur le plan en 1887, comme je l'ai dit plus haut; et ce n'est qu'en 1913 que la cité a décidé d'acquérir la rue et de faire fixer l'indemnité qui devait être payée au propriétaire.
Les commissaires en expropriation ont procédé à entendre les parties et leurs témoins et la majorité a
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décidé d'accorder 25 cents du pied au propriétaire. Ce dernier n'est pas satisfait de cette décision et demande qu'elle soit annulée et mise de côté.
La principale question soulevée est de savoir si les commissaires devaient accorder pour cette rue la même valeur que pour les lots riverains. Il est en preuve que ces lots riverains se vendaient environ 60 cents du pied. Alors l'appellante prétend qu'elle devrait avoir pour la rue le même prix.
Il est incontestable que du moment qu'une ligne est tracée à travers un lot vacant pour une rue que le droit du propriétaire est nécessairement restreint. Une servitude de droit de passage y est créée, puisque par l'article 411 de la charte la rue tracée sur le plan devient une voie publique. Il demeure bien le propriétaire du fonds. Mais son droit n'est pas absolu, comme il l'était. Alors, que nous considérions cette charge comme une servitude ou comme une restriction du droit de propriété, il n'en reste pas moins que ce terrain n'avait pas, lorsque les commissaires ont déterminé l'indemnité, la même valeur que les terrains riverains sur lesquels il n'existe aucune telle charge. Les commissaires étaient donc tenus, suivant moi, de prendre en considération cette charge et ce droit de passage.
Il y a un certain doute dans la preuve de savoir s'ils l'ont prise en considération ou non. Cependant, si nous prenons le montant qui a été accordé à l'indemnitaire, 25 cents du pied, et la valeur, qui paraît admise, des terrains riverains, 60 cents du pied, il me paraît évident qu'ils ont dû prendre en considération, comme c'était leur devoir, l'existence de cette servitude.
Je concours, par conséquent, dans l'opinion exprimée à ce sujet par le juge Cross. Car si j'étais certain qu'ils n'auraient pas tenu compte de cette
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servitude, je serais alors d'opinion que la sentence arbitrale devrait être nulle, et que la cause devrait êteé renvoyér devant les arbitres pour qu'on y procède de nouveau. Mais alors ces nouvelles procédures seraient probablement au détriment de l'appelante, vu que la sentence arbitrale accorderait peut-être une somme moindre que celle qui a été donnée.
L'appelante prétend, en outre, que la sentence arbitrale devrait être mise de côté parce que certaines procédures initiales ne sont pas tout à fait régulières. Elle allègue, par exemple, que le rapport préalable qui devait être fait par le contrôleur avant que le conseil municipal décide de procéder à faire fixer l'indemnité n'était pas régulier et que la résolution du conseil lui-même n'a pas été adoptée par la majorité des membres du conseil, tel que voulu par la loi.
Il me semble que cette prétendue informalité aurait due être soulevée ab initio. D'ailleurs, il est à présumer que l'appelante avait tout intérêt à ce que l'indemnité soit fixée; car elle avait sur les bras un terrain qui ne lui rapportait rien et, par conséquent, elle devait être anxieuse que la compensation en fut déterminée le plus tôt possible. Il est trop tard pour elle, maintenant que la sentence arbitrale est rendue, de se plaindre de procédures auxquelles elle a acquiescé en procédant elle-même et en acceptant leur juridiction.
Si la résolution du conseil était illégale, rien ne lui était plus facile alors que de prendre les procédures nécessaires pour la faire mettre de côté. Mais non: je suis convaincu que l'appelante devait voir avec satisfaction que la cité, après plusieurs années d'attente, allait la payer pour son terrain; et il est trop tard aujourd'hui pour se plaindre de cela.
Pour ces raisons, l'appel doit être renvoyé avec
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dépens et le dispositif du jugement de la cour d'appel doit êteé confirmé.
Appeal dismissed with costs.
Solicitors for the appellant: Casgrain, Mitchell, McDougall & Creelman.
Solicitors for the respondent: Laurendeau, Archambault, Damphousse, Jarry, Butler & St Pierre.
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