Vézina v. The Queen, (1889) 17 SCR 1

Supreme Court of Canada

Vézina v. The Queen (1889) 17 SCR 1

Date: 1889-04-30

CASES DETERMINED BY THE SUPREME COURT OF CANADA FROM THE COURTS OF THE PROVINCES AND FROM THE EXCHEQUER COURT OF CANADA.

Jean Vézina (Claimant)

Appellant

And

The Queen (Defendant)

Respondent

1889: Feb. 11; 1889: April 30.

Present.—Strong, Fournier, Taschereau, Gwynne and Patterson JJ.

ON APPEAL FROM THE EXCHEQUER COURT.

Expropriation of land—Railway Company — Damages, estimation of—R. S. C. c. 39 s. 3, sub-sec. (e) — Farm crossings — R. S. C. c. 38 s. 16.

Where land is taken by a railway company for the purpose of using the gravel thereon as ballast, the owner is only entitled to compensation for the land so taken as farm land, where there is no market for the gravel.

The compensation to be paid for any damages sustained by reason of anything done under and by authority of R. S. C. c. 39 s. 3, sub-sec. (e), or any other act respecting public works or Government railways, includes damages resulting to the land from the operation as well as from the construction of the railway.

The right to have a farm crossing over one of the Government railways is not a statutory right and in awarding damages full compensation for the future as well as for the past for the want of a farm crossing should be granted.

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Gwynne J., dissenting, was of opinion that the owner had the option of demanding, and the Government had a like option of giving, a crossing in lieu of compensation, and that on the whole case full compensation had been awarded by the court below. (See now 52 V. c. 38 s. 3.

Appeal from a judgment of the Exchequer Court of Canada, granting the appellant the sum of $2,871 and interest and costs on his claim for compensation against the crown, for land taken for the St. Charles Branch of the Intercolonial Railway.

The appellant's claim in the Exchequer Court was for $7,476 divided as follows:—

Land expropriated, 5 arpents and 10 perches	$ 800 00
44606 cubic yards of gravel at 6 cts.	2676 00
Damages	4000 00
	$7476 00

and the learned judge of the Exchequer Court allowed claimant—

For 8.077 arpents of land expropriated at $100 per arpent	$ 807 70
For depreciation in market value of remaining property (7000.00—807.70=0192.30) 1/3 allowed	2064 10
	$2871 80

and there being no evidence of any tender he adjudged to the claimant interest from the date of expropriation and his costs.

The railway crosses the claimant's farm in two places, dividing it into three parts: the north part on which are the claimant's house, barn and other buildings, the centre part, and the easterly part

Upon the appeal before the Supreme Court of Canada, the appellant did not complain of the valuation put upon the land expropriated as farming land in the judgment appealed from, but complained that he was

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entitled to a greater sum for damages, and that the court should have entertained his claim for the gravel taken from his land.

Belleau for appellant:

A proprietor whose land is expropriated by a railway company has a right to be paid all the damages which are the necessary result of the working of the railway through his property.

See Russell on awards[1]; Chamberlain, v. The West End of London and Crystal Palace Ry. Co.[2].

The farm is a dairy farm, and the crossing in use between parts I and II is used only on sufferance, and appellant ought to have been allowed damages for the want of a crossing. If a subway had been provided it would have been different. A. subway is protected and the cattle can go through it without any body to look after them, whilst they cannot cross the line over the embankment without being led by some one, which increases to a large extent the injury to that part of the property.

There remains the claim for gravel taken from the property, which was altogether rejected by the Exchequer Court.

The Exchequer Court was of opinion that the claimant could only be allowed the value of his land as a gravel pit if he could have used it as such to any more advantage than he could have used it as farming land. This would permit the Government to take from claimant's property, for the small price of $300, a large quantity of gravel that under the most favorable circumstances they could not have got in any other place for less than $1,400 or $1,500. It is true that there is no evidence that claimant's property was ever used as a gravel pit, and it is not likely that he

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would have ever drawn such a quantity of gravel out of his land to sell in the market if the railway had never been built. But it is equally true that claimant's property was the only one in the vicinity where gravel could be got, and that the market value of gravel to be used on the spot far exceeded the ordinary value of farming lands. Whether that value was derived from the opening of the railway or not does not matter much. The general increase of value, and the advantages which result from the building and putting into operation of a railway, is a public benefit for which everybody pays, and the law does not intend that the railway company should offer that general advantage as a set off against private claims. The increase in value which can be opposed by a railway company as a compensation to a claim for land expropriated and for damages, is the increase which is a benefit peculiar to that very land, not the general benefit resulting from the construction of the railway. For instance, if a railway company expropriates a certain piece of land for the purpose of building a station thereon, the indemnity to be paid can be compensated by the increase in value resulting to the remaining property from the expropriation for said purpose.

Angers for respondent:

If the claimant could have used this piece of land as a gravel pit to any more advantage than he could have used it as farming land he would, I think, be entitled to be allowed its value as a gravel pit. But there is no evidence that it was ever so used by the claimant, or any reason to believe that it would ever have been of any use to him for that purpose.

Upon the whole case full compensation has been awarded by the court below.

STRONG, FOURNIER and TASCHEREAU JJ. concurred with PATTERSON J.

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GWYNNE J.—In this case the Minister of Railways has taken for the use of the St Charles Branch of the Intercolonial Railway 8 7/100 arpents off a farm of about 133 arpents belonging to the appellant. The railway, as constructed upon the land so taken, crosses the farm on a curve in such a manner as to divide the farm into three parts. On one is situate the appellant's house and barn which stand a short distance from the northern limit of a public highway which crosses the farm, the southern limit of which highway constitutes the northerly limit of the land taken for the railway as it crosses the farm opposite to the appellant's house and barn, which are thus separated by about the space of three times the width of the public highway from the centre line of the railway track; this piece of the appellant's farm lying north of the railway is called for convenience in the proceedings in the Exchequer Court and here part No. 1. A piece of the same farm called part No. 2, lies between the railway as it crosses the farm opposite to the appellant's house, and the land taken for the railway as it again crosses the farm on the curve near the south-easterly end of the farm where the railway crosses a small stream called the river L'Allemand; the land taken at the south-easterly extremity of this part No. 2 is wider than the land taken in other parts of the farm, having been taken not only for the track, but also as a borrowing or ballasting pit lying alongside of the part whereon the railway track is laid From the highway in front of the appellant's house there has been a communication made under the railway to the part No. 2, but an embankment under which this communication is made destroyed a spring and a well, from the former of which the appellant's cattle, and from the latter his house, were accustomed to obtain water. The farm was used as a dairy farm, and this spring and the river

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L'Allemand and two small streams or watercourses on part No. 2 constituted the appellant's supply of water for his cattle. From the part No. 2 a farm crossing has been constructed by the Government, across the railway track and the ballast pit, to the residue of the farm which is called part No. 3, through which the river L'Allemand flows. From the above it appears plainly enough that the appellant's farm is undoubtedly injuriously affected by the manner in which the railway is constructed across it. The question is as to the reasonable amount of compensation to be awarded to the appellant as well for the value of the land taken as for the depreciation of the land not taken.

We may, I think, start with the assumption that the amount estimated by the learned judge of the Exchequer Court as the full value of the farm with all the buildings on it at the time of expropriation was very liberal indeed, viz.: $7,000.

The learned judge says in his judgment:

For land such as that expropriated in this cause $40 or $50 per acre would, I think, be a fair price if a considerable number of acres were so taken as not seriously to injure the balance by the manner of severance, but taken in the place and manner in which this was taken I am of opinion that $100 per acre is not an unreasonable value to put upon it.

and so he allowed this latter sum, $807 in round numbers for the land taken. Now, by the above language of the learned judge, I understand him to mean that the full value of the farm and buildings before, and at the time of, the expropriation was $40 or $50 per arpent for the land taken to cover the actual value of the land taken and to compensate in some degree the damage done to the land not taken by reason of the manner in which the railway severed the farm into three parts, so that one half at least of this sum of $100 per arpent was awarded by way of compensating to some extent the injury done to the land not taken by the mode of

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its severance; and for further depreciation in value of the land not taken he awarded one-third of its value at the time of expropriation, amounting in the whole to the sum of $2,871.80 to be paid to the appellant.

The appellant's claim was for $7,476, that is to say, for the eight arpents taken and depreciation to the residue a sum exceeding by $476 the full value of the farm, and this amount the appellant still claims, not being satisfied with the amount awarded by the learned judge.

As to the part No. 1 counsel for the appellant in his factum says:

We notice in relation to part 1 another remark of the learned judge to the effect that it is injuriously affected not by construction but by the operation of the railway;

and he argues from this remark that the learned judge has allowed nothing for any injury to the farm if assignable to the operation of the railway, but on the contrary has excluded from his consideration all such injury; but I do not so understand that portion of the learned judge's judgment in which the passage quoted appears. It seems to me rather that the learned judge was enumerating the several grounds of injury in respect of which the appellant suffered damage with the view of compensating them, not severally by distinct amounts, which would have been very difficult, if not impossible, as some might be incapable of being estimated in advance by any reliable or rational measure, but in the end by the lump sum of one-third of the full value of the land not taken. When the learned judge thought the appellant not to be entitled to any particular item of damage for which he claimed compensation he did not hesitate to say so distinctly. Nothing could be more difficult, if not impossible, than to lay down any rule by which to measure, or any specific amount by which to compensate,

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for damage not yet arisen but which may possibly in future arise from the operation of the road, and no one can, I think, say that what the appellant charges the learned judge with having excluded from his consideration is not amply covered by the one-third of the full value of the land not taken, which the learned judge has allowed for the whole depreciation in value sustained by the land not taken. The remark extracted from the learned judge's judgment, appears in the midst of an enumeration of the various injuries caused, or claimed to have been caused, to the appellant's farm by the railway having been constructed across it in the manner in which it was. He says:

By reference to the plan and the evidence, it will be seen that the farm is divided by the railway into three parts nearly equal in extent. On the north-westerly part are the claimant's house, barn and other buildings. The highway and the railway separate this part from the centre portion, and the latter is separated from the south-easterly portion by the railway, where near the River L'Allemand it again crosses the farm. I shall hereafter refer to these three parts respectively, and in the order mentioned as parts 1, 2, 3.

Part 1 is injuriously affected, not by construction but by the operation of the railway. The injury as stated by the witnesses, consists in the proximity of the railway to the claimant's buildings. In addition, at a point near the claimant's barn is the western end of a long snow shed from which trains emerge suddenly and without notice or warning, causing the claimant's horses to be much frightened. From part 1 to part 2, which was used principally as a pasture, the claimant has convenient access by a subway. The injury to part 2 consists in this, that by the construction of the railway, a well and spring at the westerly end thereof were destroyed, and that access therefrom to the River L'Allemand was cut off. The claimant's cattle before the expropriation, were accustomed to drink either at the spring or at the river, and the fences of the pasture were always so arranged as to give them access to one or the other. The witnesses for the claimant all agreed that there is not on part 2 any other spring or natural water courses, and that the cattle cannot now be driven to the River L'Allemand, which is on part 3. They have, I think, however, greatly magnified any difficulty there is in procuring water for the cattle.

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It appears from the evidence of the claimant's son that, there is at the easterly end of part 2 a ditch which is filled with water except in the dry season. When I visited the property in the present month (June, 1888) there was a good stream of water running from this ditch, and it was evident, I think, from the character of the land, that there would be no difficulty, at least by digging a well, in finding at any time an ample supply of water on part 2.

Then again, in regard to the means of access to the river L'Allemand the witnesses who stated that there were none, were entirely mistaken. It appears that until last winter when the snow shed was extended the claimant had a crossing, but that by its extension that crossing was destroyed; and witness after witness stated that there is now no way of crossing the railway because of the ballast pit. One of the witnesses, Mr. Simard, speaks of making a crossing by constructing a bridge 110 feet long by 13 1/2 high. It will be observed, however, that the claimant's son does not state that there is no crossing now, and the fact is that there is a fair road across the ballast pit, with a reasonable grade, and a good crossing over the railway. These I saw in the presence of the claimant's attorney, and they bore evidence of having been in use.

Part 2 then is depreciated in value by the fact that the claimant must either dig a well and pump water for the cattle pasturing there or drive them across the railway tracks for water during the dry season.

Part 3 is injuriously affected, according to the evidence of the claimant's witnesses, by the absence of any communication between it and part 2. In this, as I have already stated, they are manifestly mistaken. The means of communication are very good, and the depreciation is not, I think, very considerable.

The learned judge, thus, as it appears to me, enumerates the several items which he has to consider in estimating the amount of compensation which should be paid by the Government to the claimant.

On part 1 he found damage to be compensated for to arise from the operation of the road, which damage being wholly prospective, there was no measure by which it could be estimated with any degree of accuracy. Although it had to be taken into consideration, it was wholly of a speculative character. Then upon parts Nos. 2 and 3 the learned judge by a personal inspection of the premises, satisfied himself that the estimate, as represented by some

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of the complainant's witnesses, was greatly exaggerated, and in some particulars wholly without any foundation in point of fact, as indeed is a common occurrence in all those claims of compensation for the expropriation of land for public purposes. The learned judge, in consequence found, as he says, great difficulty in concluding how much he should allow, and he seems to me to have resolved that his judgment should not be open to any just complaint upon the ground of insufficiency in the amount awarded. Accordingly, he estimated the land taken at about double its ordinary value, that is to say, for the purpose for which it was used before the expropriation, and the depreciation in market value of the property not taken, upon what appears to me to have been a most liberal scale. For the land taken he allowed $100 per arpent, or at the rate of $13,300 for the whole farm without any buildings on it, while, with its buildings, it was upon a most liberal estimate not worth more than $7,000, and for the depreciation in market value of the land not taken he allowed one-third of the full value of the farm with all its buildings after deduction of the $100 per arpent for the 8.077 arpents of land taken.

Thus, for the land taken in the manner in which it was taken he allowed	$ 807 70
And for depreciation in value of the remaining land one-third its full value, or	2,064 10
Making in all	2,871 80

with interest thereon from the time of the land having been taken.

From the nature of the injuries actual, prospective and speculative done to the claimant's farm, it is impossible, I think, to say with any degree of certainty,

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that too much or too little has been awarded, while there can be no difficulty in saying that the demand of the claimant was unconscionable in the extreme.

As to the claim urged before us, based upon the contention that it is only by mere sufferance that the claimant has had, or has any communication across the railway from part 2 to part 3, and that he may be deprived of it at any moment at the will and caprice of the Government, or by sale by the Government of the piece taken for and used as a ballasting pit, it is, in my opinion, utterly devoid of the slightest foundation; for it is preposterous, in my judgment, to conceive it to be competent for the Government to divide a man's property, in the manner in which the claimant's property has been divided, by the railway and leaving him the severed parts to deprive him of all right to a crossing over or under the railway from one part to another suitable to the exigencies of the case and the full enjoyment of his farm, as severed into parts by the railway, or having once provided a necessary crossing to deprive the land of the benefit of such crossing.

In cases of this description, that is to say the severance by a railway of a man's property into parts requiring a convenient crossing for the full enjoyment of the severed parts, the question is, not whether such a right is conferred upon the owner of property severed by the statute authorizing the railway to be constructed, but whether any statute in virtue of which the railway is constructed has conferred upon the persons constructing it power to deprive against his will the owner of the property severed into parts, of a right so necessary to the full enjoyment of his property as convenient access across the railway from one of the severed parts to another; and in my opinion, as has been already determined by the judgment of this court

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in the Canada Southern Railway Company v. Clouse[3], the General Railway Act under which all railways, including the Intercolonial, are authorized to be constructed confers no such power either upon the Government or any railway company. No man can against his will be compelled to accept pecuniary compensation in lieu of a crossing, when a crossing is necessary to the full enjoyment of the severed parts and can conveniently be constructed, nor upon the other hand, can the owner of property severed by a railway compel a railway company, or the Government, constructing a railway across his property, to compensate him, against their will, by pecuniary compensation in lieu of a crossing when they are willing to give and can give a suitable crossing; and the ordinary courts of the country, in case the parties can not agree among themselves, and not arbitrators, under the statute in the case of railway companies or the Exchequer Court in the case of a Government railway, are the proper tribunals to be appealed to to have determined what number and what description of crossings would in each case be reasonable and proper to be ordered to be given.

My brother Patterson, as I understand him, takes exception to an expression in my judgment in the Canada Southern Railway Company v. Clouse (1) wherein I refer to two Statutes of the State of New York, the one being, ch. 140, sec. 44, of the Acts of 1850, and the other ch. 282, sec. 8, of the Statutes of 1854, as the probable source from which respectively were taken sec. 13 of the Statute of Canada, 14 and 15 Vic., ch. 51, and sec. 13 of ch. 66 of the Consolidated Statutes of Canada, and referring to sec. 8 of the above ch. 282 I said: "In the courts of the State of New York this amendment has not been considered to make any difference in the construction, and that it should not

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is, I think, the right conclusion." I then proceeded to show why, in my opinion, judgment upon sec. 13, of ch. 66 of the Consolidated Statutes of Canada should not be different from the judgment which had been pronounced upon sec. 13 of 14 and 15 Vic., ch. 51. My brother Patterson now says, that sec. 8, of chap. 282 of the New York statute of 1854, was not substitutional for the sec. 44 of the statute of 1850, but additional thereto. That I find upon more particular inspection of the statutes is the case when applied to railways constructed under the statute of 1850, but it applies independently to all railways not constructed under the Act of 1850, and that there are such railways appears, I think, from the case of Purdy v. The New York and New Haven Railway Company[4]. However, the point raised is wholly unimportant as the judgment in Canadian Southern Railway Company v. Clouse[5] was not rested upon the supposed construction put by the courts of the State of New York upon the statutes of that State, but upon principle and the arguments offered in support of the conclusion arrived at, namely that the section as amended in chap. 66 of the Consolidated Statutes is to be construed as regarding "farm crossing," to be a necessary convenience for the use of the proprietors of the lands adjoining the railway when one part of a man's property is separated from the residue by the railway, to which necessary convenience the proprietor is entitled as of right, unless it shall appear that he has released and abandoned that right upon receiving compensation from the railway company, and that the ordinary courts of the country are the courts wherein all differences as to the nature, location and number of the crossings they are entitled to have, and also other matters incidentally arising, are to be adjudicated upon and

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determined, in support of which latter view I found four cases in the American courts, which I cited.

In the case now before us the Government appear to have constructed such crossings as appeared to them to be sufficient. It is not, in my opinion, in the power of the Government by sale of the land which has been used for a ballast pit to deprive the claimant of his right of crossing from one part of his farm to the other over the railway and ballast pit by the crossing supplied by the Government equally after such sale, if any should take place, as before. Assuming it to be possible that the Government could find a purchaser for the ballast pit, to which no access could be given except by the railway, the sale of it would necessarily be subject to the right of the claimant to cross from one part of his farm to the other, to which the land was subject when in possession of the Government, and if the claimant's, his heirs or assigns' rights should at any future time be interfered with by any one, the courts are open to him and competent to give him adequate relief. So that it is quite out of the question, in my judgment, that any compensation should be awarded to the claimant upon the assumption which has been made the basis of his appeal in respect of this crossing.

In fine, I can see no ground whatever upon which, as an appellate court, we can with any propriety say that there is any error either in point of law or of fact in the amount as awarded by the learned judge of the Exchequer Court who, having had the advantage of personally inspecting, the premises and judging for himself of the degree of weight to be attached to the several witnesses, has had opportunities of estimating the amount proper to be awarded to the complainant which we have not. We should, therefore, be very careful not to interfere, unless for some manifest error

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in law, with the judgment of the learned judge in matters of this nature to which no accurate measure of damages can be applied. I am of opinion that this appeal should be dismissed with costs.

PATTERSON J.—The land of the appellant, taken for the purposes of the St Charles Branch of the Intercolonial Railway is a trifle over eight arpents, 5.10 arpents being taken for the track and 2.977 for a borrowing pit whence gravel for ballast is taken. The expropriation was made, as we are informed, in June, 1882, and not in August as the learned judge of the Exchequer Court understood. The difference of date affects the computation of interest, as the valuation has to be made as of the date of the expropriation[6]. The evidence in support of the claim was not taken till May, 1888. There was therefore ample time to ascertain the extent to which the property of the claimant was affected.

The railway crosses the claimant's farm in two places, dividing it into three parts: the north part on which are the claimant's house, barn and other buildings, the centre part, and the easterly part.

The claim is for the land taken and for injury by the severance, and in other ways, to the remainder of the land.

The learned judge has allowed $807.70 for the land taken, being $100.00 per arpent. This valuation is not complained of so far as the five arpents taken for the track are concerned, and it is not asserted that the three arpents taken for the gravel pit were, as farm lands, of any greater value. But the claimant insists that it shall be valued with reference to the gravel, some 45,000 cubic yards, taken from it, as if he had sold the gravel at so much a yard. The learned judge considered

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that those three arpents were, to the owner, simply three arpents of his farm, not rendered any more valuable to him by the existence of a bed of gravel under the soil, as there was no market for gravel, and it became of value to the Government only because the railway required it for ballast.

I do not see any reason for finding fault with that view, and there is no doubt that the price per arpent of $100 was a liberal estimate.

In addition to the value of the land taken, the learned judge has allowed for depreciation of the remainder one-third of its value. He bases this calculation on an estimate of $7,000 as the value of the property, land and houses, and considers, rightly I think, the $7,000 an outside value. Then deducting the $807.70, which leaves $6,192.30, he allows one-third of that, or $2,064.10, making his whole amount $2,811.80.

It must be an exceptional case in which, on a mere estimate of damage depending on appreciation of the evidence and the exercise of judgment, this court can be expected to interfere with the amount settled by the tribunal primarily charged with the inquiry, and which has facilities for arriving at a correct conclusion that are not possessed by the appellate court. Where the tribunal of first instance has proceeded on correct principles and does not appear to have overlooked or misapprehended any material fact, an appeal against the amount awarded will in most cases resemble an appeal against an assessment of damages in an action, which would be a hopeless proceeding unless some very special reason for the interference of the appellate court can be shown.

This appeal is not addressed to the estimate of damages solely, but Mr. Belleau has, in the careful argument of which we have had the advantage, pointed out particulars in which he contends that the learned

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judge has taken incorrect views of the legal rights of the appellant.

The learned judge has not awarded damages for the depreciation of each portion of the land by itself, but he has noted the views he took respecting the effect of the railway or works upon each portion. Thus of the northerly division he says:

Part I is injuriously affected, not by the construction but by the operation of the railway. The injury as stated by the witnesses consists in the proximity of the railway to the claimant's buildings. In addition, at a point near the claimant's barn, is the western end of a long snow shed from which trains emerge suddenly and without notice or warning, causing the claimant's horses to be much frightened.

Both parties understood, as appears from their factums, that these damages from the operation of the railway of which the learned judge speaks were excluded by him in making his award.

I think they were a proper subject for compensation under the statutes.

By the Expropriation Act, R.S.C. ch. 39, sec. 3, sub-sec. (e.), the Minister is empowered to contract for the purchase of any land necessary for the construction, maintenance and use of the public work, and also as to the amount of compensation to be paid for any damages sustained by reason of anything done under and by the authority of that act or of any other act respecting public works or government railways. Sections 10 and 17 in their amended shape under 50-51 Vict., ch. 17, provide for a reference to the Exchequer Court when the Minister fails to agree with any person as to the value to be paid for any land or property taken, or for compensation as aforesaid; and by 50-51 Vict., ch. 16, sects. 30 and 31, some rules are laid down for the guidance of the court in determining the amount to be paid to any claimant for land or property taken for the purpose of any public work or for injury done to any land or property.

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The terms under which the right to compensation is given are wider than those of the English Lands Clauses Act 1845, where the compensation is for "lands taken "or required for or injuriously affected by the execution "of the undertaking," as in sec. 32, the expression being somewhat varied or expanded in other sections, as in sects. 49, 63 and 68; or those of the Railway Clauses Consolidation Act, 1845, section 6 of which requires the company to "make to the owners and occupiers "of, and all other parties interested in any lands "taken or used for the purposes of the railway or injuriously "affected by the construction thereof full compensation "for the value of the lands so taken or used, "and for all damage sustained by such owners, occupiers "and other parties by reason of the exercise, as regards "such lands, of the powers by this or the special "act, or any act incorporated herewith vested in the "company."

The rule now settled as applicable to the English acts in a case where, like the present case, part of the claimant's land is taken and compensation is claimed for injury to his other land by reason of the unavoidable effect of the operation of the railway, may be taken from the language of Lord Chelmsford in Duke of Buccleuch v. Metropolitan Board of Works[7].

In Hammersmith Railway Company v. Brand[8] it was held that a person whose land had not been taken for the purposes of a railway was not entitled to compensation from the railway company for damage arising from vibration occasioned (without negligence) by the passing of trains after the railway had been brought into use. And in City of Glasgow Union Railway Company v. Hunter[9] it was held that compensation could not be claimed by reason of the noise or

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smoke of trains, by a person no part of whose property had been injured by anything done on the land over which the railway ran. In neither of these cases was any land taken by the railway company connected with the lands which were alleged to have been so injured, and the claim for compensation was for damages caused by the use and not by the construction of the railway. But if in each case lands of the parties had been taken for the railway, I do not see why a claim for compensation in respect of injury for adjoining premises might not have been successfully made on account of their probable depreciation by reason of vibration, or smoke, or noise occasioned by passing trains.

That rule was acted on in the Duke of Buccleuch's Case[10] by holding that the arbitrators properly took into consideration the traffic, and dust and dirt and commotion and noise which would be the result of the construction of a road upon the Thames embankment, for which a part of his property had been taken.

That rule applies in the present case. Whether it would also apply under our statutes if no part of the claimant's property had been taken is a question which does not how arise.

The compensation is to be in respect of land taken for the purpose of a railway, and the injury sustained is not simply the deprivation of so many arpents of land, but the establishment upon that land of a railway which cannot be operated without injuriously affecting the property from which the expropriated portion is taken.

This is happily put by Mr. Justice Lush in giving his opinion to the House of Lords in Hammersmith Ry. Co v. Brand,[11] where he said,

In professing to give compensation for all damage sustained by the

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owners of the adjacent land by the 'execution of the works,' or 'the exercise of the powers of the Act as regards such lands' (Sec. 6, Railway Glauses Act,') the legislature must, as it appears to me, have had in view the ultimate object aimed at, the works when complete and in operation—the dock, railway or canal—not abstractedly as a mere excavation, embankment or reservoir, but in connection with its appropriate traffic, and with the ordinary incidents of a business undertaking.

See also the recent judgment of the House of Lords in Essex v. Local Board of Acton, reversing the judgment of the Court of Appeal in The Queen v. Essex,[12] which has as yet reached us only in the weekly notes of the 13th inst., and in the Times Law Report[13].

It would, therefore, have been proper for the learned judge to have considered the effect upon the northerly or north-easterly part of the claimant's property of the railway as a running concern.

There is a late case which shows that the sudden emerging of a train from the snow shed in the ordinary working of the road, though calculated to frighten the claimant's horses, is something of which he must take the risk. It is an incident of the operation of the road differing only in degree from the tendency of a moving train on an exposed railway to frighten horses; and, therefore, is a proper subject for consideration in fixing, once for all, the compensation to be paid in connection with the expropriation of the land. Simkin v. London and North-Western Ry. Co.[14].

The injuries in respect of the centre and the eastern portions of the land are in one way associated together. The farm is a dairy farm, and the claimant's cattle used to drink either at a spring in the centre part or at the river Allemand on the eastern portion of the land. The works have destroyed the spring, and the railway has to be crossed to get from the centre to the eastern portion.

I see no reason to find fault with the principle on

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which this branch of the claim has been looked at by the learned judge, except with regard to the railway crossing. He gives his opinion that the crossing in use, and which by reason of the extension of the snow shed is the only practicable crossing, is sufficient. It traverses the gravel pit as well as the track. The sufficiency of the way is a matter of fact, on which the opinion of the learned judge who heard the evidence and saw the place is of more value than my opinion could be; but M. Belleau points out in his argument that this way is used on sufferance only, and not under any title which could be asserted against the company if the company should find it to its interest to sell the gravel land, or should decide to fence it in.

The point seems to me to be well taken.

The right to have a farm crossing over one of our government railways is not, as I understand the law, a statutory right. The only provision on the subject of farm crossings in the Government Railways Act, which is now ch. 38 of the Revised Statutes of Canada, is in section 16, where the Minister is required to erect and maintain on each side of the railway fences at least four feet high and of the strength of an ordinary division fence, with swing gates or sliding gates, commonly called hurdle gates, with proper fastenings at farm crossings of the railway for the use of the proprietors of the lands adjoining the railway, and also cattle guards at all public road crossings, suitable and sufficient to prevent cattle and animals from getting on the railway; and in section 19 which requires that at every road and farm crossing on the grade of the railway the crossing shall be sufficiently fenced on both sides so as to allow of the safe passage of trains.

The statute 50-51 Vict., ch. 18, added a definition of hurdle gate, and provided that every gate at a farm

[Page 22]

crossing shall be of sufficient width for the purpose for which it is intended.

There is no direction as to what persons are to have farm crossings, or how many, or what kind of crossing any farmer is to have. The provision simply is that, where there is a farm crossing, it is not to be blocked by the fences of the railway, but is to be furnished with suitable gates. This is the law under the Government Railways Act.

Under the general Railway Acts of the Dominion the law was the same down to the year 1888, when a change was made which was not extended to the government railways but which was confirmatory of my interpretation of the law as it previously stood. I shall notice it further on. An amendment had also been made in 1884, by 47 Vict. ch. 11, sect. 9, not extending to government railways, and not altering the law on the particular point in discussion. It enacted that farm crossings which railway companies were bound to make should be made as there specified, but left the obligation to make crossings to depend, as I understand the law to have been, on contract, the farmer making his own arrangement with the company or the Minister, when his land was being expropriated, respecting such crossings as he required, or receiving compensation for the severance of his farm.

A different rule once prevailed in Ontario owing to the construction put upon the clause respecting "fences" as it appeared in the General Railway Act of 1851, 14 & 15 Vict ch. 51. By what seems very like a typographical error the clause which, as it has always been in the Dominion Railway Acts, speaks of gates, &c. at farm crossings of the railway, was worded in the Act of 1851, "gates, &c., and farm crossings of the road.

This expression, appearing though it did in the

[Page 23]

section whose general subject was fences, and unlikely as it was that so important a subject as the right to a farm crossing, which might be anything from a simple footpath on the level to a costly bridge or culvert, would be dealt with in this incidental way and by an allusion rather than a substantive enactment, was nevertheless acted on by the courts of Upper Canada as a legislative declaration of the right of every farmer whose land was divided by a railway constructed under that act to have, in addition to the purchase money of the land expropriated or voluntarily sold for the purpose of the railway and to the compensation for incidental injury to his other land, one or more farm crossings.

I am not able to say how the statute was acted on by the courts of Lower Canada.

The course of decision continued in Upper Canada until after the consolidation of the statutes of Canada in 1859. In the Consolidated Statute, ch. 66, the word and was changed to at, and the clause appeared in the form it has always assumed in the Dominion acts.

Singularly enough, this change from and to at was not followed in the French copy of the Consolidated Statutes. I shall refer by-and-by to the later legislation of the Province of Quebec.

On the first occasion on which the question came before any court in Upper Canada after 1859, which was in Brown v. Toronto and Nipissing Ry. Co.[15], it was held that there was no longer any statutory obligation upon the railway company to make a farm crossing.

The same question was discussed in this court in Canada Southern Ry. Co. v. Clouse[16], upon the construction of the present law of the Province of Ontario, where my brother Gwynne, who had taken part in the

[Page 24]

judgment of the Court of Common Pleas in Brown's Case, came to the conclusion that that decision was erroneous, and considered that conclusion supported, as I gather from his judgment, by decisions on a statute of the State of New York which was the model from which the act of Canada of 1851 was framed.

I am relieved from much of the hesitation which I should feel in differing from my learned brother by two considerations: First, that the second thoughts, which I do not on this occasion think the best, are his own second thoughts to which I prefer his first, and secondly, because I am satisfied that his attention cannot have been called to the real state of the law in New York.

It is true that the general railway law of New York of 1850 contained the clause, chapter 140, section 44, which was adopted verbatim in the Canadian act of 1851 with the word and—"and farm crossings of the road." It is true also that, by a line of decisions, the courts of that State construed this as a statutory mandate to the railway companies, formed under that act, to make farm crossings, and that the courts of Upper Canada simply followed the New York decisions in so construing the act of 1851.

It is true, moreover, that in 1854, a railway law was passed in New York, chapter 282, the 8th section of which enacted that:

Every railroad corporation whose line of road is open for use shall within three months after the passage of this Act, and every railroad company formed or to be formed, but whose lines are not now open for use, shall before the lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads of the height, &c. with openings or gales or bars therein at the farm crossings of such railroads, for the use of the proprietors of the land adjoining such railroad;"

and so on; but it is not true, however much this enactment may look like a correction of the clause of 1850,

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that it superseded that clause. It is regarded as cumulative and not substitutionary. Both clauses will be found at full length in the Revised Statutes of New York of 1875 and 1882. In Revised Statutes of 1875, where the various railroad acts are thrown into one, the act of 1850 being taken as the basis, and the original number of the section given in brackets when the section is taken from that act, these two sections concerning fences are sections 66 (44) and 67. They are at p. 548 of the 2nd vol. The revision of 1882 is on a different system, each act being printed by itself. The clauses are there found at pages 1569 and 1585 respectively.

Now remembering that section 44 of 1850, continued as it is in its original wording, applies to "every corporation formed under this act," and that the act is the general one under which railroad corporations in New York, as a rule, are formed, it will readily be seen that the law of 1850, under which the first cases were decided, is still the law.

I have looked at all of the large number of cases on the subject which are mentioned in the notes in the revised act of 1882, as edited by Mr. Montgomery H Throop.

Four of those cases are referred to by my brother Gwynne in Clouse's Case[17], and they are enough for me to refer to now, as they are, I believe, the latest cases, as well as those which best illustrate the position. They bear out the view of the New York law which I have taken.

Of the other cases I find one and only one in which the section with at is quoted, but the case was not upon the subject of a farm crossing. The four cases are Clarke v. Rochester, Lockport &c. R. R. Co.[18] which was decided under the act of 1850, and before the passing

[Page 26]

of the act of 1854; Wademan v. Albany &c. R. R. Co.[19] which, though decided in 1873, was decided under the act of 1850, Johnson, C., expressly saying "the question in this case arises upon the 44th section of the General Railroad Act of 1850,"[20]; Smith v. New York & Oswego Midland Railway Company[21] which was also a decision under the act of 1850, no reference being made to the act of 1854.; and Jones v. Seligman[22] which follows Smith's Case. In the judgment delivered by Miller J. the act of 1854 is quoted but with the words in question omitted. Thus: "with opening gates or bars for the use of the proprietors, &c."

There is no decision that the change from and to at made or would make no difference, and that question could not easily be raised for decision while the general act under which companies are constituted contains the original form of the clause, nor has the matter ever, so far as I have been able to discover, been a subject of discussion in the courts of New York.

New York precedents are thus outside of the lines presented by our legislation. The Dominion Statutes have always been, and the law of the Province of Canada was from 1859 onwards, just as we find it in the Railway Act, and the Government Railways Act in the R. S. C., that is to say with a direction, under the subject of fines, to make gates, &c., at farm crossings, but without any direction on the subject of furnishing crossings. Such a direction, if it were to be found, would properly be looked for under some other heading than "fences."

L rd Chelmsford remarked in Hammersmith Railway Company v. Brand[23]:—

[Page 27]

That the sections of the Railway Clauses Act are arranged under different heads which indicate the general objects of the provisions immediately following, and these may be usefully referred to to determine the sense of any doubtful expression in a section arranged under a particular heading.

The same learned lord had used similar language, as had also Bramwell, B. and Lord Wensleydale, in Eastern Counties &c. Companies v. Marriage[24].

The Government Railways Act must of course be construed according to the natural and proper meaning of its own language. The considerations which influenced the original decisions in Upper Canada on the Railway Act of 1851 have no place in the discussion, and any interest they have is chiefly historical.

In Quebec the legislature has taken a different course, but in departing from the language of the Dominion acts, it recognises the effect of those acts as being what I understand it to be.

The Quebec Railway Act, 1869, followed the Dominion Railway Act, 1868, in adopting the language of the English version of the Consolidated Statute, ch. 66, which provided for gates, &c., "at farm crossings of the railway;" but this was altered in 1875 by 38 Vic. ch. 42, (Q.) which returned to the original form of words, substituting "and farm crossings" for "at farm crossings," and adding a positive enactment which is probably somewhat vague, and the English version of which is translated (not very happily) from the French, that "farm crossings shall be made and maintained by the company upon the application of any owner of land, present or future, on each such land."

So the law of Quebec remains as to railway companies incorporated under the General Railway Act of that province[25], and such is now the law applicable

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under the Railway Act of 1888 to all railways subject to the legislative authority of the Dominion, except government railways.

The Railway Act, 51 Vic. ch. 29, sec. 191, declares that

Every company shall make crossings for persons across whose land the railway is carried, convenient and proper for the crossing of the railway by farmers' implements, carts and other vehicles.

We do not find this enactment associated with the provisions respecting fences in the act of 1888. It properly stands by itself, and I take it to confirm, as I before remarked, my reading of the sections by which gates are required in fences, at farm crossings, as not involving the duty to furnish or construct crossings.

Mr. Belleau was, in my opinion, correct in his contention that the uncertainty of the tenure of the way now used by Vézina, should have been considered in awarding the compensation, notwithstanding that it may, for the time being, serve his purposes well enough.

I have no doubt that it is intended that Vézina shall have a crossing, and that on attention being called to the matter steps will be taken to secure him a sufficient right of way. That being done his claim for damages on this score will cease.

Apart from that question and the other question of damage to the remaining land from the proper use by the railway of that which is taken I should not disturb the award.

I have felt inclined to remit the matter to the Exchequer Court for further consideration of those two points and to give an opportunity to have the crossing definitely settled. On reflection, however, I am satisfied that it will be better to close the litigation by ourselves adjusting the amounts. I would add to the present award two sums of five hundred dollars each,

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one being in respect of what has been called the operation of the railway, and the other in respect of the want of a farm crossing. These additions will make the award $3811.30. But in case the Government shall, within three months from the pronouncing of this judgment, confirm to the applicant the farm crossing which he at present uses, or another crossing with which he shall be satisfied, then no sum is to be allowed in respect of the crossing, and the award is to be for $3311.80.

The appeal is allowed with costs.

Appeal allowed with costs.

Solicitors for appellant: Belleau, Stafford & Belleau.

Solicitors for respondent: Casgrain, Angers & Hamel.