Lord
THANKERTON:—The
present
action
was
brought
by
the
respondent
on
October
29,
1929,
for
the
recovery
of
municipal
and
school
taxes
imposed
upon
the
immovables
of
the
appellant
situated
within
the
municipality
of
the
respondent
for
the
years
1926,
1927
and
1928.
The
taxes
imposed
for
the
years
1926
and
1927
were
levied
upon
an
assessed
value
of
$25,000
placed
upon
"!poteaux,
fils,
cables
et
tout
le
système”;
for
the
year
1928
the
assessed
value
was
increased
to
$45,000.
It
is
agreed
that
the
increase
was
due
to
the
inclusion
of
the
value
placed
upon
a
switchboard,
with
its
associated
plant,
which
the
appellant
had
brought
from
another
area,
and
had
placed
in
premises
of
which
the
appellant
was
not
the
owner,
but
only
a
tenant
under
a
lease,
and
which
had
been
put
into
service
on
April
7,
1928.
While
in
the
defence
as
filed
the
appellant
disputed
liability
for
any
of
the
taxes
claimed,
the
appellant
subsequently
filed
a
pleading,
confessing
to
Judgment
for
all
the
taxes
claimed
except
those
levied
in
1928
upon
the
increased
value
of
$20,000
in
respect
of
the
switchboard.
The
confession
of
judgment
was
refused
by
the
respondent.
Accordingly
the
only
question
left
in
issue
is
in
relation
to
the
switchboard.
On
this
point
the
appellant
succeeded
succeeded
before
the
Circuit
Court,
but,
on
appeal
to
the
Court
of
King’s
Bench
(Appeal
Side),
the
respondent
was
successful.
The
power
of
the
respondent
to
levy
the
municipal
taxes
is
derived
from
sec.
521
of
the
Cities
and
Towns
Act,
R.S.Q.
1925,
eh.
102,
which
provides
in
part
as
follows:
"
"
521.
The
council
may
impose
and
levy,
annually,
on
every
immoveable
in
the
municipality,
a
tax
of
not
more
than
two
per
cent.
of
the
real
value
as
shown
on
the
valuation
roll.’’
The
school
taxes
are
levied,
under
the
authority
of
sec.
249
of
the
Education
Act,
R.S.Q.,
1925,
ch.
1933,
upon
“
“
all
taxable
property
in
the
school
municipality,’’
which
is
identified
with
the
subjects
taxable
in
respect
of
the
municipal
taxes.
It
has
been
decided
by
this
Board
in
Montreal
Light,
Heat
and
Power
Consolidated
v.
City
of
Outremont
[1932]
A.C.
423,
459,
that
the
word
"‘immoveable’’
in
sec.
521
of
the
Cities
and
Towns
f
Act
must
bear
the
meaning
given
to
it
by
the
Quebec
Civil
Code,
the
material
articles
of
which
are
as
follows:
(Articles
374,
375,
376,
377,
378,
379,
380,
381,
382.)
The
switchboard
in
question
is
of
the
manual
type
known
as
N.
1-92
Jack.
It
is
made
up
of
seven
sections,
each
of
which
consists
of
a
cabinet
containing
an
assembly
of
wires
and
electrical
apparatus
for
connecting
the
telephone
circuits
of
the
subscribers
either
with
one
another
or
with
trunk
lines.
It
has
certain
ancillary
equipment,
such
as
a
distributing
frame,
but
this
equipment
affords
no
additional
or
separate
argument.
Apart
from
the
actual
physical
connecting
up
of
the
cables
and
wires,
which
are
led
on
to
the
premises,
with
the
switchboard
and
its
equipment,
the
latter
are
not
in
any
way
attached,
but
merely
rest
on
the
floor
of
the
premises.
On
detachment
of
the
physical
connection
with
the
cables
and
wires,
the
switchboard
and
its
equipment
are
easily
removable,
without
injury
to
the
premises.
As
already
stated,
the
appellant
is
only
a
tenant
of
the
premises.
Accordingly,
the
respondent’s
claim
is
rested
solely
on
art.
376
of
the
Code,
and
on
the
view
that
the
switchboard
is
an
integral
part
of
that
which
is
admittedly
immovable—namely,
the
poles,
wires
and
cables
of
the
appellant.
The
learned
trial
judge,
on
a
review
of
the
authorities,
held
that
the
only
test
was
incorporation
in
the
soil,
and
that
the
fact
that
the
switchboard
formed
part
of
the
telephone
system
of
the
appellant
was
not
sufficient
to
make
it
become
immovable
by
nature
under
art.
376
of
the
Code.
In
the
Court
of
King’s
Bench,
the
following
paragraphs
of
the
judgment
express
succinctly
the
reasons
for
the
contrary
view
taken
by
that
Court:
"
"
Considérant
que
dans
l’espèce,
le
tableau
téléphonique
susdit
ne
fait
pas
partie
de
la
bâtisse
dans
laquelle
il
est
érigé,
et
qu'il
n’est
pas
placé
là
pour
la
compléter,
mais
qu’il
y
est
pour
compléter
le
système
téléphonique,
lequel
est
immeuble;
qu’il
est
nécessaire
pour
les
opérations
du
système,
étant
relié
aux
cables
placés
dans
le
sol,
lesquels
câbles
sont
la
propriété
de
la
compagnie
de
téléphone
;
"Considérant
que
ledit
tableau
est
une
partie
intégrante
et
essentielle
du
système
de
la
compagnie
défenderesse,
que
sans
lui,
il
n’existerait
que
des
poteaux
et
des
câbles
sans
utilité,
et
que
pour
constituer
le
système,
il
faut
nécessairement
et
essentiellement
ledit
tableau
les
poteaux
et
les
câbles.”
The
basis
of
this
conclusion
is
expressed
in
the
leading
opinion,
which
was
delivered
by
Bernier
J.,
who
states
that
it
must
now
be
taken
as
settled
that
the
whole
system—telephonic,
telegraphic
or
similar
systems
of
power
transmission—constitutes
an
immovable.
The
learned
judge
cites,
as
authority
for
that
proposition,
three
decisions
to
which
their
Lordships
will
shortly
refer.
It
appears
to
their
Lordships
that
the
above
proposition
clearly
involves,
as
distinct
from
consideration
of
the
physical
nature
of
the
attachment
and
whether
it
amounts
to
incorporation
in
the
soil,
consideration
of
the
purpose
which
the
attachment
serves.
It
is
agreed,
and
indeed
it
is
stated
in
the
first
paragraph
above
quoted,
that
the
physical
attachment
of
the
switchboard
to
the
premises
is
insufficient
to
make
it
immovable
by
nature.
The
earliest
of
the
three
decisions
is
Montreal
Light,
Heat
and
Power
Consolidated
v.
City
of
Westmount
[1926]
S.C.R.
919.
The
only
property
owned
by
the
appellant
in
that
case
within
the
municipality
consisted
of
gas
mains,
located
in
the
public
streets,
a
system
of
electric
poles,
wires
and
transformers,
almost
entirely
upon
the
public
streets,
and
meters
placed
in
the
houses
of
the
consumers
in
the
municipality.
The
Supreme
Court
of
Canada
held
that
the
gas
mains,
poles,
wires
and
transformers
were
immovable,
but
that
the
gas
meters
were
not.
In
delivering
the
leading
judgment,
Anglin,
C.J.
stated
at
p.
520:
"‘The
sole
question
with
regard
to
the
statutory
power
to
impose
the
taxes
sued
for—municipal
and
school
alike—is
whether
the
subjects
of
taxation
in
this
instance
are
immovables
within
the
meaning
of
that
term
as
used
in
art.
5730
of
the
R.S.Q.,
1909.
That
question
formed
the
principal
matter
of
discussion
at
bar;
but,
while
not
free
from
difficulty,
it
would
seem
to
be
concluded
adversely
to
the
appellant
by
the
decision
of
this
court
in
Bélair
v.
Ste.
Rose
(1922)
63
S.C.R.
526
as
to
the
gas
mains
and
electric
poles
and
wires,
which,
for
the
reasons
there
stated,
must
be
regarded
as
‘buildings’
(bâtiments)
within
the
meaning
of
art.
376
C.C.
and,
therefore,
‘immovable
by
their
nature’.
In
that
case
three
things
were
distinctly
held:
(a)
that
the
scope
of
the
word
‘immovable’
in
art.
5730,
R.S.Q.,
1909,
is
to
be
ascertained
by
reference
to
the
provisions
of
the
Civil
Code,
arts.
376
et
seq;
(b)
that
the
word
‘buildings’
(bâtiments)
in
art.
376
C.C.
is
used
in
the
sense
of
‘constructions’;
(c)
that
it
is
immaterial
to
its
taxability
under
art.
5730
that
a
construction
is
erected
on
land
which
does
not
belong
to
the
person
who
owns
the
construction.
There
is
no
distinction
in
principle
which
would.
justify
the
taxation
of
the
bridge
in
that
case
under
art.
5730
as
an
immovable
and
warrant
the
exemption
of
the
appellant’s
gas
mains,
and
electric
poles
and
wires
in
the
present
case
as
movables.
The
materials
of
which
the
structures—bridge
and
distribution
systems
alike—were
comprised
were
all
movables
before
being
placed
in
situ
and
made
part
of
such
structures.
Once
incorporated
in
the
structures,
however,
the
materials
lost
that
character;
and
the
structures
themselves
took
on
the
character
of
immovables.
‘
"
Nor
does
it
appear
to
matter
for
the
present
purpose
whether
the
immobilisation
of
the
pipes,
poles
and
wires
be
attributed
to
their
physical
connection
with
the
land
in
or
upon
which
they
are
placed,
or
with
the
buildings
from
which
they
radiate
as
parts
of
a
distribution
system.
In
either
view
they
are
immovables
actually
(in
the
sense
of
physically)
situated
in
the
municipality
and
thus
‘come
within
the
letter
of
the
law’
which
confers
the
power
to
tax.
Partington
9
s
case
(Partington
v.
Attorney-General
(1869)
L.R.
4
H.L.
100).
The
immobilisation
of
the
transformers
may
not
be
so
clear.
But
they
are
usually
attached
to
the
company’s
poles
and
form
an
integral
part
of
the
system
quite
as
much
as
the
wires
strung
on
the
poles
to
carry
the
current.”
It
may
be
noted
that
the
transformers
so
referred
to
‘were
firmly
tied
by
wires
and
metal
braces
to
the
posts
supporting
the
electric
wires.
The
proposition
expressed
by
Bernier,
J.
in
the
present
case
appears
to
have
been
derived
from
the
second
paragraph
above
quoted,
but,
in
their
Lordships’
opinion,
the
language
of
Anglin,
C.J.
does
not
warrant
such
inference.
He
clearly
predicates
that
the
materials
must
be
physically
incorporated
as
part
of
the
structure
which
is
itself
incorporated
in
the
soil.
He
clearly
held
that
the
wires
and
transformers
were
physically
incorporated
with
the
poles.
The
poles
were
in
fact
embedded
in
the
soil,
but
the
learned
Chief
Justice
was
also
ready
to
regard
the
whole
physical
system
of
pipes,
poles
and
wires
as
one
incorporated
physical
structure.
The
element
of
commercial
usefulness
of
that
structure
with
or
without
any
of
its
component
parts
is
not
referred
to
by
him
at
all.
In
their
Lordships’
opinion,
that
case
gives
no
warrant
for
the
proposition
laid
down
by
the
King’s
Bench
Court
in
the
present
case.
The
second
decision
is
Lower
St.
Lawrence
Power
Co.
v.
L
f
Immeuble
Landry,
Ltée.
[1926]
S.C.R.
655,
in
which,
following
the
above
decision,
it
was
held
that
the
pipes,
poles,
wires
and
transformers
of
an
electric
lighting
system,
erected
in,
and
on,
the
public
streets
of
a
municipality
were
immovables;
it
was
further
held
that
the
fact
that
they
had
been
sold
separately
from
the
original
generators,
for
the
purpose
of
being
later
connected
to
generators
belonging
to
the
buyer
did
not
cause
them
to
lose
the
character
of
immovables.
The
opinion
of
the
majority
of
the
Court,
which
included
Anglin,
C.J.,
was
delivered
in
a
very
able
judgment
by
Rinfret,
J.
in
which
he
reviews
at
length
the
judicial
decision
and
also
the
opinions
of
well-known
jurists,
from
which
he
derives
the
following
propositions
at
pp.
668,
670
:
"‘La
très
grande
majorité
des
commentateurs
enseigne
qu’il
n'est
pas
nécessaire
que
la
construction,
pour
être
considérée
comme
immeuble
par
nature,
soit
fixée
au
sol
à
perpétuelle
demeure.
I]
suffit
que
l’incorporation
ne
soit
pas
purement
passagère
et
accidentelle.
C’est
le
fait
de
l’attachement
au
sol
que
la
loi
considère.
La
condition
de
rigueur
est
que
‘la
construction,
quelle
qu
’elle
soit,
fasse
corps
avec
le
sol
’
;
qu
’elle
y
soit
‘cohérente’,
suivant
l’expression
de
Pothier,
ou
‘adhérente’,
suivant
celle
de
Laurent.
C’est
toujours
la
règle:
Quod
solo
inaedificatur,
solo
cedit
.
.
.
De
même,
les
bâtiments
ou
autres
ouvrages
unis
au
sol
sont
immeubles
par
leur
nature,
qu'ils
aient
été
construits
par
le
propriétaire
du
fonds
ou
par
un
tiers
possesseur
;
et
ce,
dans
le
cas
même
où
le
tiers
constructeur
se
serait
réservé
la
faculté
de
les
démolir
lors
de
la
cessation
de
sa
jouissance
.
.
.
Ce
réseau,
d’après
l’opinion
la
plus
générale,
est
un
immeuble
par
lui-même,
en
tant
que
construction
adhérente
au
sol,
et
non
pas
seulement
comme
faisant
partie
intégrante
de
l’usine
génératrice
de
l’électricité.”
These
passages,
with
which
their
Lordships
are
in
accord,
do
not
support
the
proposition
of
the
Court
of
King’s
Bench.
The
third
decision
referred
to
by
Bernier,
J.
is
the
decision
of
this
Board
in
Montreal
Light,
Heat
and
Power
Consolidated
v.
City
of
Outremont
[1932]
A.C.
423,
in
which
the
decision
of
the
Supreme
Court
in
the
City
of
Westmount
case
[1926]
S.C.R.
515,
so
far
as
relating
to
gas
mains
laid
in
the
public
streets,
was
challenged,
but
was
approved
of
by
this
Board.
The
reasoning
of
the
majority
of
the
Supreme
Court
contained
in
the
Judgment
of
Anglin,
C.J.
was
held
to
be
well
founded,
and
Lord
Tomlin,
in
delivering
the
judgment
of
the
Board,
said
(at
p.
436)
:
‘What
then
is
an
‘immovable’
under
the
Civil
Code?
A
gas
main
laid
in
the
earth
is
an
‘immoveable’
in
the
sense
that
it
is
physically
a
construction
fixed
in
the
earth,
though
the
individual
pipes
of
which
it
is
made
up
were
moveable
before
they
came
to
form
part
of
the
construction
.
.
.
The
vas
mains
were
never
moveables,
though
constructed
out
of
things
which
were
moveables.
‘
‘
This’
case
likewise
affords
no
support
to
the
proposition
.of
the
Court
of
King’s
Bench.
In
their
Lordships’
opinion,
the
existence
of
a
building
which
is
immovable
by
its
nature
under
art.
376
involves
two
things
—namely,
that
you
have
a
structure
and
that
such
structure
is
incorporated
with,
or
adherent
to,
the
soil.
In
the
present
case,
the
switchboard
with
its
equipment,
admittedly,
is
not
itself
incorporated
with,
or
adherent
to,
the
soil.
Is
it
then
part
of
a
structure
which
is
so
incorporated
or
adherent?
As
shown
by
the
cases
cited,
it
must
be
physically
incorporated
as
part
of
the
structure.
The
question
whether
the
structure
of
which
it
is
claimed
to
be
part,
is
commercially
able
to
operate
without
its
assistance
is
irrelevant,
in
the
opinion
of
their
Lordships,
and,
apart
from
that
suggestion,
it
is
clearly
incorrect
to
say
that
the
switchboard
is
physically
incorporated
in
the
structure
composed
of
poles,
wires
and
cables
belonging
to
the
appellant’s
undertaking.
Their
Lordships
agree
with
the
reasoning
of
the
Trial
Judge,
and
they
are
of
opinion
that
the
judgment
of
the
Court
of
King’s
Bench
should
be
reversed
and
that
of
the
Trial
Judge
restored,
the
appeal
being
allowed
with
costs
to
the
appellant
throughout.
Their
Lordships
will
humbly
advise
His
Majesty
accordingly.
Appeal
allowed.