City of Edmonton v. Calgary and Edmonton Railway Co., (1916) 53 SCR 406

Supreme Court of Canada

City of Edmonton v. Calgary and Edmonton Railway Co., (1916) 53 S.C.R. 406

Date: 1916-06-13

The City of Edmonton Appellant;

and

The Calgary and Edmonton Railway Company Respondents.

1916: May 4; 1916: June 13.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Anglin and Brodeur JJ.

ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA.

Railways—Location—Registration of plans—Construction of line—Plan of subdivision subsequently filed—Dedication of highways—Rights of municipality-—Priority—"Railway Act," R.S.C., 1906; c. 37—Dominion "Railway Act," 1903.

The filing of location plans by a railway company in the proper registry office, after such plans have been approved by the Board of Railway Commissioners under the provisions of the Dominion "Railway Act," is sufficient and effective, after the railway company has constructed its line upon the location indicated, to establish the seniority of the right of the railway company over that of the municipality at points where highways were not dedicated, by the filing of plans of subdivision by the owner or otherwise, or actually used, constructed or accepted by the municipal corporation at the time of the registration of the location plans by the railway company.

APPEAL on a case stated by the Board of Railway Commissioners for Canada for the opinion of the Supreme Court of Canada pursuant to the "Railway Act."

Stated Case.

"1. Prior to the 30th of September, 1902, the Hudson Bay Company was registered as owner * * * of the portion of their reserve in the City of Edmonton now in question.

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"2. On the 30th of September, 1902, a plan of subdivision of a portion of the reserve was registered in the Land Titles Office. A memorandum of the registration was noted upon the outstanding certificate of title and a new certificate of title was issued to the Hudson Bay Company.

"3. On the 27th of May, 1905, the Calgary and Edmonton Railway Company caused to be filed in the Land Titles Office for the North Alberta Land Registration District a railway location plan which had been duly sanctioned by the Board of Railway Commissioners under the provisions of the 'Railway Act' on the 3rd of May, 1905.

"4. On the 20th of November, 1905, a further plan of subdivision was registered by the Hudson Bay Company. A memorandum of the registration was placed upon the Hudson Bay Company's certificate of title and a new certificate of title was issued.

"5. Agreements for sale and transfers were from time to time made by the Hudson Bay Company, according to plans B 2 and B 4, as shewn by the indorsements on certificates of title. The company retained those lots corresponding with the lands shewn as required by the Calgary and Edmonton Railway on plan, exhibit 4.

"6. Evidence was given before the Board at its sittings at Edmonton on the 31st of October, 1913, as follows:—

* * * * *

"7. On the 20th of October, 1909, an agreement was made between the City of Edmonton and the Calgary and Edmonton Railway Company. The by-law of the City of Edmonton adopting this agreement was validated and confirmed by the Alberta statutes of 1910, ch. 5.

[Page 408]

"8. On the 1st of April, 1912, a transfer was executed by the City of Edmonton pursuant to the agreement, transferring to the Calgary and Edmonton Railway Company the lands described in paragraph 2 of the agreement. This transfer was delivered by the city to the railway company and on the 5th of August, 1912, was returned by the railway company's solicitor to the city solicitor for correction owing to objections taken by the surveyor of the Land Titles Office to the accuracy of the description of the land. Since then the railway company has repeatedly requested its return but this has not been done as, in the opinion of the" registrar, a portion of the lane adjoining in the rear of the lots abutting on Jasper Avenue between 9th and 10th streets has not yet been dedicated by the Hudson Bay Company and negotiations for the purpose of removing this difficulty are proceeding.

"9. Transfers have been made by the Hudson Bay Company and others to the Calgary and Edmonton Railway Company of those of the lots according to plan B 4, required by the latter company for railway purposes, and the latter company has now become the registered owner of the lands shewn upon the location plans as required, except such parts of the said lands as are shewn as streets and lanes on plan B 4, and which are described in the transfer. The transfer from the Hudson Bay Company to the Calgary and Edmonton Railway Company was made and accepted on the terms set out in the letters from Curie. & Bond, solicitors for the Calgary and Edmonton Railway Company to the Commissioner of the Hudson Bay Company and the reply thereto.

"10. Except as stated in the foregoing paragraphs neither party to the application before the Board of

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Railway Commissioners had acquired any rights in respect of the land in question.

"12. The formal order made by the Board on the application was as follows:

"Upon the hearing of the application at the sittings of the Board held at the City of Edmonton, in the Province of Alberta, on Friday, the 31st of October, 1913, in presence of counsel for the said city, the Calgary and Edmonton Railway Company, and the Canadian Pacific Railway Company; and what was alleged by counsel aforesaid:—Counsel for the said municipality submitting that it was necessary, in the first instance, to determine whether or not the municipality has, as a matter of title, the right to open the said highway and was the owner of the land required for the said highway so as to make the said highway senior to the railway;

"The Board finds and adjudges that the title of the railway company is sufficient and effective as against the municipality, and that should the said highway be opened, such opening would be subject to the seniority of the railway company's title and construction.

"(Sgd.) H. L. Drayton,

"Chief Commissioner,

"Board of Railway Commissioners for Canada.

"13. The questions which at the request of the Corporation of the City of Edmonton are stated by the Board and submitted for determination by the Supreme Court of Canada are:—

"(1) Whether as a matter of law the filing of the location plan by the railway company in the appropriate Land Titles Office (said plan having been duly

[Page 410]

approved by the Board under the provisions of the Act and carried into effect by the railway company), is sufficient and effective to establish the railway company's seniority to the municipality at points where highways were not dedicated by plan or otherwise or actually used, constructed or accepted by the municipality at the time the location plan was so filed?"

"(2) If as a matter of law the municipality had the right as against the railway company to maintain highways at the points in question, was such right discharged by the statute of the Province of Alberta, 10 Edw. VII., ch. 5, sec. 1, and the by-law and agreement thereby validated and confirmed?"

O. M. Biggar K.C. for the appellant.

W. N. Tilley K.C. for the respondents.

The Chief Justice.—My answer to the first question is in the affirmative and it will, therefore, be unnecessary to answer the second.

The question for determination and the circumstances under which this matter was brought before the Railway Board and referred here are fully explained in the notes of my brother Anglin.

Once the location of the railway was officially approved of by the Board and the plan filed with the registrar the right of the railway company to take the land, subject to the payment of compensation, was absolute. By the deposit of the plan the Hudson Bay Company was divested of the power to dispose of its property within the limits of the right-of-way: "the land was put extra commercium." The deposit of the approved plan with the registrar fastened a servitude upon the land taken and

[Page 411]

gave the company a statutory right to acquire a complete title to it for railway purposes. The railway company would not be trespassing if it entered upon the land even before its expropriation. Vide Re Ruttan and Dreifus and Canadian Northern Railway Company[1], at p. 571. Compare sections 178, 180 of the "Railway Act."

It followed necessarily that the filing of the location plan by the railway company with the registrar was sufficient and effective to establish the railway company's seniority to the municipality at points where the highways were not dedicated by plans or otherwise or actually used, constructed or accepted by the municipality at the time the location plan was filed. Vide Williamsport Railroad Co. v. Philadelphia Railroad Co.[2].

Davies J.—I answer the first question referred in the affirmative, which dispenses with an answer being given to the second question.

Idington J.—I would answer the first question herein submitted in the affirmative. That question being so answered, the second question does not seem to call for any answer.

Anglin J.—The question for determination in this case is whether after a railway company had deposited in the proper registry office its location plan, profile and book of reference under sections 122-124 of the "Railway Act" 1903 (now secs. 158-160 of the Revised Statutes of Canada, 1906, ch. 37), the owner of the property across which the railway, according to the

[Page 412]

plan, etc., so deposited, is carried, can by filing a subdivision plan thereof before notice has been served under section 154 of the Act of 1903 (now sec. 193), oblige the railway company to recognize the existence as highways of streets shewn upon such plan of subdivision as carried across the located right-of-way of the railway.

The location plan, etc., duly approved, were deposited in May, 1905, and notice thereof was duly given under section 152 (now sec. 191). The plan of subdivision was filed in November, 1905. The railway company took actual possession of the right-of-way and constructed its railway upon the portion of it in question some time before the enactment of 8 and 9 Edw. VII., ch. 32, sec. 3. It does not appear when notice under section 154 (now sec. 193), was given.

Section 153 of the "Railway Act" of 1903 (now sec. 192, R.S.C. 1906, ch. 37), was in these terms:

The deposit of a plan, profile and book of reference, and the notice of such deposit, shall be deemed a general notice to all parties of the lands which will be required for the railway and works; and the date of such deposit shall be the date with reference to which such compensation or damages shall be ascertained.

It was, in my opinion, not within the power of the landowner, after the deposit of the location plan, etc., in anywise to affect the land thereby designated as that which the company intended to acquire for its right-of-way so as to interfere with the right of expropriation or to render its exercise more burdensome or less advantageous to the company.

The agreement of 1909 made between the City of Edmonton and the railway company in my opinion did not affect their respective rights in regard to the question before us. While unable, in view of the express reservation in it of the city's right to set up

[Page 413]

the contention that Athabasca and Peace Avenues extend as public highways across the railway right-of-way, to concur in the view expressed by the learned Chief Commissioner that the agreement of 1909

extinguished any right the public might have of using the continuation of Peace and Athabasca Avenues across the right-of-way of the railway company,

I am on the other hand of the opinion that nothing in that agreement involves any recognition by the company of these two streets as highways crossing its right-of-way, or interferes with its maintaining whatever rights it had acquired by the deposit of its approved location plan, etc.

I would, for these reasons, answer the first question submitted by the Board of Railway Commissioners in the affirmative—a conclusion which renders an answer to the second question unnecessary.

Brodeur J.—The Board of Railway Commissioners has referred the following questions for the consideration of this court:—

1. Whether as a matter of law the filing of the location plan by the railway company in the appropriate Land Titles Office (said plan having been duly approved by the Board under the provisions of the Act and carried into effect by the railway company), is sufficient and effective to establish the railway company's seniority to the municipality at points where highways were not dedicated by plan or otherwise, or actually used, constructed or accepted by the municipality at the time the location plan was so filed ?

2. If as a matter of law the municipality had the right as against the railway company to maintain highways at the points in question was such right discharged by the statute of the Province of Alberta, 10 Edw. VII., ch. 5, sec. 1, and the by-law and agreement thereby validated and confirmed?

In 1905 the respondent company registered a location plan under the provisions of section 160 of the "Railway Act." It appears that the railway company without having paid a compensation to the

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landowners started to construct its railway. It is not very clear in the evidence whether this possession of the land has been taken with the permission of the owner; but it is to be supposed, however, that the company was not considered as a trespasser, since no injunction has been taken to prevent it.

Some months after the deposit of the plans with the registrar, the land owner filed with the registrar a subdivision plan of the property in question on which the street Athabasca Avenue was mentioned. There is no formal evidence as to the date at which this street was dedicated to or accepted by the municipality appellant; but it is pretty evident that the railway was constructed before the street was established as a public work by by-law or was assumed for public use by the City of Edmonton (Ordinances N.W.T. 1904, ch; 19, sec. 6 of Title XXX.).,

The situation might be different if before the construction of the railway the municipality had constructed its highway. I would be inclined to think that the highway would be considered then as having the seniority, though the location plan of the railway would have been previously deposited.

We could then apply the principle enunciated by the Board of Railway Commissioners in the case of the Canadian Northern Railway Co. and the Canadian Pacific Railway Co. and known as the Kaiser Crossing Çase[3], in which Mr. Mabee, the then chairman of the Board, said;

I do not think that the mere approval of the plans filed with it necessarily gives seniority to the plans first approved. * * * It seems to me that the railway that is in actual occupation with an existing work upon the ground with the ownership of the fee at the point of crossing has much stronger claims to seniority than the railway which has merely obtained a prior sanction of its plans.

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That decision was followed by the Board in another case of the Canadian Northern Railway Co. v. Canadian Pacific Railway Co.[4], that held:

That construction and not approval of location gave priority.

Assuming then that the construction of the railway in the present case has preceded the construction of the highway, I have no hesitation in answering in the affirmative the first question.

In view of that answer to the first question, it is not necessary to deal with the second question.

Question submitted answered accordingly.

Solicitor for the appellant; J. F. Bown.

Solicitor for the respondents: George A. Walker.