Supreme Court of Canada
City of Ottawa v. Canada Atlantic Railway. Co., (1903) 33 S.C.R. 376
Date: 1903-05-05
The City of Ottawa (Defendant) Appellant;
and
The Canada Atlantic Railway Company (Plaintiffs) Respondents;
The City of Ottawa (Defendant) Appellant;
and
The Montreal and Ottawa Railway Company (Plaintiffs) Respondents.
1903: March 31; 1903: April 1, 2; 1903: May 5.
Present: Sir Elzéar Taschereau C.J. and Girouard, Davies, Mills and Armour J.J.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway—Highway crossing—Compensation to Municipality—Terminus “at or near” point named.—Control of Streets.
Authority to a company to build a railway empowers them to cross every highway between the termini without permission of the municipal authorities being necessary and without liability to compensate the municipalities for the portions of the highways taken for the road.
A charter authorized construction of a railway from Vaudreuil to a point at or near Ottawa passing through the counties of Vaudreuil, Prescott and Russell.
Held, that if it were necessary the railway could pass through Carleton County though it was not named.
Held also, that in this act the words “at or near the City of Ottawa” meant “in or near” said city.
Judgment of the Court of Appeal (4 Ont. L.R. 56) affirming the judgment at the trial (2 Ont. L.R. 336) affirmed.
APPEAL from decisions of the Court of Appeal for Ontario affirming the judgments at the trial in favour of the respective plaintiffs.
[Page 377]
The Canada Atlantic Railway Co., being empowered by charter to build a railway from Coteau Landing to Ottawa obtained from the Railway Committee of the Privy Council an ex parte order approving of the plan and profile filed and proceeded with the construction of the road which crossed Bridge street one of the highways of Ottawa. The city authorities attempted to prevent the operation of the road over this highway claiming that their permission therefor was necessary whereupon the company brought an action for an injunction and damages. The city by counterclaim also asked for an injunction against the operating of the road and for a mandatory order for removal of the crossing.
The Montreal and Ottawa Railway Co. was, by its charter, empowered to build a railway from Vaudreuil in Quebec to a point at or near Ottawa passing through the counties of Vaudreuil, Prescott and Russell. Their plan and profile were approved by the Railway Committee and the road was constructed coming into Ottawa and crossing the highway at Wellington street. Similar proceedings to those of the Canada Atlantic Ry. Co. were taken except that the city claimed damages instead of an order for removal of the crossing. It was claimed that the railway had no right to enter the city nor to pass through the County of Carleton as they necessarily did.
The actions were tried and decided together and each resulted in favor of the plaintiffs whose judgment was upheld by the Court of Appeal. The City appealed in both cases to the Supreme Court of Canada.
Aylesworth K.C. and McVeity for the appellants. The fee in the soil of the highway is in the municipality; Roach v. Ryan; Galbreath v. Armour; R.S.O. [1897] ch. 223, secs. 598, 601, 640 (2), 657; Lewis on Eminent Domain, secs. 110-118.
[Page 378]
The Railway Committee had no right to authorize the highway to be crossed without consent of the city. The City of Toronto v. Metropolitan Railway Co.
The Montreal and Ottawa Railway Co. were not authorized to pass through Carleton County and the power to build to a point “at ornear” the city precluded them from coming within it.
Chrysler K.C. for the respondents, The Canada Atlantic Railway Co. The municipal authorities have no proprietary rights in the soil of the streets but only hold them as trustees for the public with a limited power of sale on compliance with the conditions contained in the Municipal Act. Municipal Council of Sydney v. Young; Coverdale v. Charlton; Gas Light and Coke Co. v. Vestry of St. Mary Abbotts.
The company, being authorized to take the land for purposes of the railway, are not liable to make compensation unless the statute so provides. East Freemantle Corporation v. Annois;
Nesbitt K.C. and Curle for the respondents, The Montreal and Ottawa Railway Co. As to ownership of highway see Gooderham v. City of Toronto.
THE CHIEF JUSTICE.—This is an appeal by the defendants from the judgment of the Court of Appeal for Ontario, reported at page 56 of 4 Ont. L.R., affirming the judgment pronounced at the trial which had granted an injunction as prayed for by the respondents’ action, restraining the said appellants from preventing or interfering with the railway company, respondents, in crossing with their railway a certain street called Bridge street, in the City of Ottawa, and had dismissed a counter-claim of the appellants, for an injunction
[Page 379]
restraining the respondent company from crossing the said street with their railway.
The respondents raised in limine an objection to the appellants’ right of appeal on the ground that the case did not fall within the Act 60 & 61 Vic. c. 34, which governs, as to Ontario cases, the jurisdiction of this Court. But as we have come to the conclusion that the appeal must be dismissed on the merits, it is unnecessary to pass upon the point so raised by the respondents.
The broad question involved in this case is, whether or not the respondent company had the right to cross the highway in question without expropriating its right of way from and without making compensation therefor to the defendant Municipality in which the said highway is situated.
We are of opinion with the court appealed from that the company had that right. The elaborate opinions delivered upon that point in support of the judgment reported,, render it useless, as we fully agree with them, that we should here review again the statutes upon which the solution of the question depends. This company is chartered with authority to construct a railway from Coteau Landing to Ottawa. That gives them, by necessary implication, the authority to cross each and every one of the numerous intervening highways between such termini. The interference with them is of necessity made lawful. Then the Dominion statute, 51 V. ch. 29, sec. 90 (g) specially enacts that the company may make or construct, in, upon, across or over any highway, roads, ways, passages, &., and (q) do all other acts necessary for making and maintaining the said railway. The appellants have failed to point to anything in the statute which could at all support their contention
[Page 380]
that no highway can be crossed without the leave of the municipality. And the Railway Committee’s interference is required, not to give leave to cross, but to decree what measures of protection for the public safety the company will have to adopt under the circumstances of each case. And that has been found as a fact to have been done in this case by the two Ontario courts. Then as to the claim for compensation. It is not an expropriation of the highway that the respondent company are claiming. They do not intend to divest the appellants of their rights of property in the road bed. They merely want to cross it. Now, nowhere in the statute is any provision to be found for compensation to a municipality in such case. And there is no right of compensation if the statute has not provided for any.
In the case of the Montreal and Ottawa Railway Company, the further objection is taken by the appellants that the respondent company has no right to enter the City of Ottawa and consequently cannot cross any of its streets.
The preamble to the respondents’ special Act says that:
The construction of a line of railway from a point on the Grand Trunk Railway in the Parish of Vaudreuil in the Province of Quebec, to a point at or near the City of Ottawa, in the Province of Ontario, passing through the counties of Vaudreuil, Prescott and Russell, would be greatly beneficial to the population of the counties traversed by the railway as to the general trade of the country,
and the company was authorized to construct a railway,
from a point on the Grand Trunk Railway in the Parish of Vaudreuil to a point at or near the City of Ottawa in the Province of Ontario, passing through the Counties of Vaudreuil, Prescott and Russell, (and were empowered to) connect their railway with the Grand Trunk Railway in the Parish of Vaudreuil and with the railway of any other railway company having a terminus at or near the City of Ottawa.
The appellants contend that, as the railway cannot reach Ottawa without passing through the County of
[Page 381]
Carleton, and as only the Counties of Vaudreuil, Prescott and Russell are mentioned as those through which the railway is to pass, that, coupled with the words “at or near the City of Ottawa”, does not authorize them to enter the City of Ottawa. But that contention cannot prevail. We must give to the words in that charter a reasonable interpretation with reference to the subject matter and the public object that the legislative authority had in view. If necessary to pass through the County of Carleton to reach its terminus, the statute must be read as if that County was included in express words. A statute must not be construed so as to defeat the clear intention of Parliament as the appellants would have us to do here. The same thing may be said as to the words “at or near”. There is no inflexible rule that “at” is always to be construed as exclusive, and we have not to lay down any broad proposition as to its signification. What it means in this statute is all what we have to determine. That the words “to a point at the City of Ottawa” must in this charter be read as “to a point in the City of Ottawa” is to my mind the only reasonable construction to be given to those words under the circumstances. And the words “near” given as the alternative point where the terminus may be shows that “at” and “near” cannot be construed as meaning the same thing, as the appellants’ contention implies.
Then, any doubt in the matter is removed by the Act 63 & 64 Vic., c. 66 by which the railway company is granted in 1900 an extension of four years to complete the railway that their charter authorized them to construct. As their road was then completed up to the boundary line of the City, that statute must be taken as a legislative declaration that their charter authorized them to build up to a point in the City.
[Page 382]
GIROUARD, DAVIES and ARMOUR JJ. concurred.
MILLS J.—I concur in the judgment of my lord the Chief Justice. I am of opinion that the Railway Company had the right to cross the highway in question without expropriating it. The right of way which a railway company acquire in a public street which continues to be such is a mere easement, and it is for the Railway Committee of the Privy Council to settle the terms and conditions upon which that easement is to be exercised, whenever their authority is properly invoked. I am of opinion that the words “at or near the City of Ottawa” mean “in or near the City of Ottawa”, otherwise, the same meaning would be given to the two words. When it is said A. is at home, the idea conveyed is not that he is near to his home, or upon his border, but that he is within his own domain, and so the proposal to extend a line of railway from the City of Montreal, to a point “at or near the City of Ottawa” means near it, or within its limits.
Appeals dismissed with costs.
Solicitor for the appellants: Taylor McVeity.
Solicitors for the respondents C.A. Ry. Co.: Chrysler & Bethune.
Solicitors for the respondents M. & O. Ry. Co.: Scott, Scott, Curle & Gleeson.
Email this Content