Sutherland-Innes Co. v. Romney (Township), (1900) 30 SCR 495

The work done upon the Big Creek proper extended from the Forks in lot 15, in the seventh concession, to the concession line between the third and fourth concessions at lot No. 18. The distance of this point from the shore of the Lake St. Clair, in the broken front concession, is fully 4½ miles in about a due north direction, while the distance along the stream which here takes a more north-easterly and easterly direction to its mouth in the River Thames, east of Lake St. Clair, is between six and seven miles. The greatest height of any land between this concession line and the lake in this neighbourhood is said to be

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three feet. All the evidence concurred in saying that the height varied from one to three feet. A witness who had been employed on this work, which was executed by the Ontario Government in 1878, says that the work was carried as far as it could be because of the waters of the lake, which were so very high then. The cost of this work, as returned for assessment of the several parcels of land benefited by it, was $5,983.32.

The only other work comprehended in the works thus undertaken by the Provincial Government was done upon the East Branch stream which also is a natural stream or watercourse, and the work done upon this stream, which as already mentioned had a fall of fifteen feet to its mouth at the Forks, a distance of three miles, and in which the two drains in Romney had their outlet, extended from about the point where the Romney drains in one channel debouched into the said East Branch about half a mile or three quarters of a mile distant from the north-west angle of Romney to the mouth of the said East Branch Stream at the Forks. The cost of the work done on this stream, as returned for assessment of the several parcels of land benefited by this work, was $3,570.34.

Now it appears to be clear beyond all controversy that no lands in Romney derived or could by possibility be supposed to derive any benefit whatever from the work done on the Little Creek which debouched into Lake St. Clair at a point in the broken front concession of Tilbury West about three miles west of the mouth of Big Creek. So neither could any lands in Romney be supposed to derive any benefit from the work done upon Tremblay Creek, which emptied into Big Creek in the first concession of Tilbury West about two miles from its mouth, but where its waters in their natural state were almost, if not actually, upon a level with the waters of Lake St.

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Clair; nor from the work done in any of the drains numbered “1, 2, 3 and 4 of Mr. Holwell’s survey” as above described; nor from the work done on Big Creek proper itself—that is to say, between the place called “The Forks” and the termination of the work at or about the line between the third and fourth concessions.

The only work by which the lands in Romney could have been supposed to have been benefited was the work done on the East Branch Stream by deepening and it may be widening that stream where it had been so as aforesaid made the outlet of the Romney drains above mentioned. The improvement of this outlet constituted the sole benefit conferred upon lands in Romney. The cost of this work as we have seen was $3,570.34.

Now I think it may fairly be assumed that the assessors to whom was entrusted the duty to determine the amount chargeable to lands in Romney for such benefit, did as I think they should have done, that is to say, did according to the best of their judgment, charge all the Romney lands benefited by apportioning to those lands such proportion of the cost of that work as they considered fair and just having regard to the value to those lands of the improvement to the outlet of the Romney drains so as aforesaid made into the said East Branch Stream. The assessors determined all the lands in Romney which were so benefited and upon a roll they set opposite to each lot the amount chargeble to each; and here it may incidentally be remarked that lots Nos. 21, 22 and 23, in the third concession, (450 acres of which are now owned by the appellants and have been charged by the by-law of Tilbury West which the by-law 601 of Romney has been passed to give effect unto, with the sum of $414.42, notwithstanding that some time since 1878

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the council of the Township of Romney have, under the provisions of 36 Vict. ch. 39, constructed a drain along the front of said lots in the 3rd concession, which by a tunnel through a ridge of high land which separates the water flowing into Lake St. Clair from those flowing into Lake Erie, whereby means of drainage of the said lots in the 3rd concession into Lake Erie is supplied in relief of the No. 4 drain in Romney) were not entered as lands benefited and were not charged with any sum. The total amount chargeable to lands in Romney, as adjudged by the assessors, was $2,127 or about two-thirds of the cost of the work done in the East Branch; of this amount the sum charged to lands in the fourth and fifth concessions now owned by the appellants containing in the whole 1,000 acres, was $120. Upon appeal by the council of Romney from this assessment it was reduced by an award made by arbitrators under the provisions of the statute in that behalf who adjudged and awarded as follows:

That the said assessment be reduced from the said sum of two thousand one hundred and twenty-seven dollars to the sum of twelve hundred dollars, said sum to be distributed and apportioned over and upon the said lands and highways particularly specified in the said assessment roll in the same relative proportion that they bear one to the other at present, in and by the said roll, the said reduction being equal to about forty-three per cent and three-fifths of one per cent upon each of the respective assessments.

The effect of this award was to reduce the sum total of the charge upon the lands now owned by the appellants as aforesaid from $120 to $67.70.

Now that award so made operated as a conclusive adjudication of what lands in Romney were benefited by the works constructed, and it operated as I think further, by force of the statutory provisions in that behalf, as determining conclusively and judicially the utmost extent to which the lands so benefited in

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Romney and so assessed for cost of construction, could be charged for the cost of the repair and maintenance of the work from time to time when necessary.

All of the above provisions of 36 Vict. c. 39 so incorporated into the Municipal Institutions Act of the same year, 36 Vict ch. 48, with certain alterations and additions from time to time subsequently made, have been retained in the several sections relating to drainage works, inserted in the several Municipal Institutions Acts passed from thence until the year 1894, when the Drainage Act of 1894, 57 Vict. ch. 56 was passed, in which are consolidated all the provisions of the Municipal Institutions Act of 1892 relating to drainage works constructed upon the local improvement principle, namely, that the cost of the construction and of the repair and maintenance thereof should be chargeable and charged wholly upon the lands benefited thereby and the owners of such lands. Although the point now immediately under consideration relates solely to the liability of lands of the appellants, situate in the Township of Romney, to contribute to payment of the cost of works which by the by-law of Tilbury West (which the by-law 601 of Romney is passed to give effect unto) were proposed to be executed chiefly within the Township of Tilbury North, and the residue within the Township of Tilbury West, still as the contention of the respondents is that the fundamental principle of the statutes relating to works of local improvement (which these clauses affecting drainage works are) has been wholly subverted by 57 Vict. c. 56, I shall take occasion to refer briefly to the main provisions of that statute before dwelling upon those which bear specially upon the question raised in this appeal, which is as to the jurisdiction of the council of Tilbury West to charge the lands of the appellants situate in the Township of Romney for the

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cost of the works as proposed to be executed under the by-law of Tilbury West which the by‑law 601 of Romney was passed to give effect unto.

By sec. 3, s. s. 1, the petition for the construction of any drain, or the deepening, widening, clearing of obstructions or otherwise improving any stream, creek or watercourse, &c., &c., must be in the form formerly prescribed and in it must be described, as formerly, the area proposed to be drained by the particular species of work mentioned in the petition, and it is the area so proposed to be drained, or the stream or watercourse proposed to be deepened, straightened, widened, cleared of obstructions, or otherwise improved according to the prayer of the petition that the engineer is authorised to make an examination of

and to prepare a report, plans, specifications and estimates of the drainage work, and to make an assessment of the lands and roads within said area to be benefited, and of any other lands and roads liable to be assessed as hereinafter provided, stating, as nearly as may be, in his opinion the proportion of the cost of the work to be paid by every road and lot or portion of lot, for benefit and for outlet and relief from injuring liability as hereinafter defined.

Then sub-sec. 2 enacts that the provisions of the preceding sub-section shall apply in every case where the drainage work can only be effectually executed by embanking, pumping or other mechanical operations, but in every such case the municipal council shall not proceed except upon the petition of at least two-thirds of the owners of lands within the area described according to said sub-section.

Then the definition of the term “injuring liability” as used in the Act is given in sub-sec. 3:

If from the lands or roads of any municipality, company or individual, water is by any means caused to flow upon and injure the lands and roads of any other municipality, company or individual, the lands and roads from which the water is so caused to flow may under all the formalities and powers contained herein, except the petition, be

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assessed and charged for the construction and maintenance of the drainage work required for relieving the injured lands or roads from such water and to the extent of the cost of the work necessary for their relief as may be determined by the engineer or surveyor, Court of Revision, county judge, or referee, and such assessment may be termed “injuring liability.”

Then the definition of the term “outlet liability,” as used in the Act, is given in sub-sec. 4.

The lands and roads of any municipality, company or individual using any drainage work as an outlet, or for which when the work is constructed an improved outlet is thereby provided either directly or through the medium of any other drainage work or of a swale, ravine, creek or watercourse, may, under all the formalities and powers contained herein, except the petition, be assessed and charged for the construction and maintenance of the drainage work so used as an outlet, or providing an improved outlet and to the extent of the cost of the work necessary for any such outlet as may be determined by the engineer or surveyor, court of revision, county judge or referee, and such assessment may be termed “outlet liability.”

Then precise directions for determining in every case what lands shall be chargeable with “injuring liability” and also with “outlet liability,” as those terms are used in the Act, and how the amounts chargeable to each lot in respect of each of those liabilities shall be determined is given in s. s. 5 of this third section.

Sub-section 5: The assessment for injuring liability and outlet liability provided for in the two next preceding sub-sections shall be based upon the volume and shall also have regard to the speed of the water artificially caused to flow upon the injured lands, or into the drainage work from the lands and roads liable for such assessments.

Then by section 57 provision is made for the assessment of lands “benefited” by any drainage work, as this term “benefited” had always been used in all previous statutes relating to drainage works constructed under municipal by-laws, in precisely the same circumstances in which “lands using any drainage works as an outlet” are authorised to be assessed by sec. 3 s. s. 3 and 4.

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Sec. 57: Where any drainage work is not continued into any other than the initiating municipality any lands or roads in the initiating municipality or in any other municipality or roads between two or more municipalities which will in the opinion of the engineer or surveyor be benefited by such work or furnished with an improved outlet or relieved from liability for causing water to flow upon and injure lands or roads may be assessed for such proportion of the cost of the work as to the engineer or surveyor seems just.

Then the Act prescribed that in the by-law “shall be” set out “the purport of the petition describing generally the lands and roads to be benefited.”

Now whatever may have been the reason (for none appears in the statute) for this alteration in the language of the provisions contained in the third section which, read literally, purports to authorise the engineer to make an assessment not only on the lands and roads to be benefited within the area of the proposed work, but also of “any other lands and roads liable to be assessed as hereinafter provided,” I find an insuperable difficulty in construing them as having the intent and effect contended for by the respondents, namely, of abrogating the fundamental, essential, principle upon which rest these clauses in the Municipal Institutions Acts for constructing local works for the improvement of particular lands at the cost of the owners of the lands which are benefited thereby, expressed in the maxim qui sentit commodum sentire debet et onus, and substituting therefor a provision which subjects persons who derive no benefit whatever from the work to contribute to the payment of its cost. There is nothing new in the substantial elements of the ideas expressed by the terms “injuring liability,” and “outlet liability.” These were matters which had always to be taken into consideration as part of the cost of the work to be constructed under all previous municipal by-laws passed for the construction of drainage works. As to “injuring liability”

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under a clause in the Municipal Institutions Act which subjected all persons whose lands were benefited by the proposed work to assessment to bear and pay for (as part of the cost of the work) any damage done in the construction of or consequent upon the construction of the work, and if a sufficient sum was not included in the assessment (of the lands benefited), for the cost of construction to compensate for all damages subsequently appearing to have been occasioned as consequential upon the construction, relief for such damage (how great soever it might be) could be obtained by, and only by, an award made under the provisions of the Acts in that behalf, though the damage occasioned could not have been foreseen and became developed only many years after the construction of the works to which the damage was attributed and arose directly by reason of non repair of the works. This appears to be the effect of the judgment of the Privy Council in Williams v. Corporation of Raleigh^[9].

It can scarcely be contended that the legislature had any intention, in passing 57 Vic. c. 56, to exempt the owners of land benefited by a drainage work constructed under the Act from injuring liability of this nature, and yet the Act in its terms only authorises an assessment to be made for “injuring liability,” when the injury and its cause are apparent and are of the precise nature of that described in sec. 3, s. s. 3; and surely there cannot be entertained a doubt that, if water, which, (to use the language of the subsection) had been caused to flow from any lands, the property of one person, upon other lands so as to injure such other lands, is so cut off and carried away by any drainage work constructed under sec. 3 as to relieve the injured lands from the injury so caused, and to relieve the owners of the land from which the waters

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so flowed from liability, that constitutes undoubtedly a most material benefit conferred by the said drainage work upon the owner of the land from which the water was so caused to flow for which his land so benefited is justly chargeable in the mode prescribed in the Act in its definition of “injuring liability,” with an assessment for the benefit so conferred. The Act, however, in some degree sets a limit to the arbitrary discretion of the engineer or land surveyor in determining the amount chargeable for such benefit by prescribing that the amount to be charged shall be based upon a calculation of the volume in which and the speed at which, the water is artificially caused to flow from the lands from which they do flow to and upon the injured lands, or into the drainage work which cut this water off.

This provision seems to be calculated, if not intended, to afford some protection to the parties assessed against the uncontrolled discretion of the engineer or land surveyor initiating the scheme of drainage work, first, by providing that before any authority is vested in the engineer or land surveyor to make any assessment for “injuring liability,” there must, in each particular case, be a “corpus delicti,” so to speak, that is to say, there must be apparent, water which is caused to flow by an artificial channel from the lands to be assessed into the drainage work or upon other lands to their injury, which water is to be carried off by the proposed drainage work, and each assessment must be made upon the circumstances of each particular case upon the basis prescribed in the subsection 5; and, secondly, as supplying some mode, though not a very perfect one, of testing the value of the calculations as made by the engineer.

That this is well calculated to be of some benefit to the parties assessed is apparent from the present

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case, in which the engineer (apparently in the mere exercise of an uncontrolled discretion) has assessed all of the lands of the appellants in Romney at 30 cents per acre for injuring liability, whereas another engineer, one of the respondent’s own witnesses, of upwards of twenty years practice of his profession in the immediate neighbourhood of the lands in question, said that he could not see any foundation whatever for any charge for “injuring liability,” and, in point of fact, not a single case appeared of any injury whatever of the nature of that which is defined in the Act as “injuring liability”; no case whatever of water caused to flow artificially from any lands into the Romney drains having their outlet as aforesaid in said East Branch Stream or indeed into any drainage work or upon any lands.

Then as to “outlet liability” nothing can be more mistaken than the idea that an assessment by way of enforcing contribution to the payment of the cost of a drainage work constructed under the provisions of the Act, can under the term “outlet liability” be made upon lands not benefited by the work. The idea of “outlet liability” apart from benefit is inconceivable; but the language of the Act upon this subject is, I think, sufficiently clear, upon the question when, and when only, an assessment may be made for “outlet liability.” Section 59 enacts, as had been enacted by all the drainage work clauses in the several Municipal Institutions Acts from time to time in force, that a drainage work commenced in one municipality “may be continued into another municipality until a sufficient outlet is reached,” and this term “sufficient outlet” is, by the interpretation section of the present Act, defined to mean “the safe discharge of water at a point where it will do no injury to lands or roads.”

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In every such case the engineer may assess all lands and roads to be “affected by benefit, outlet or relief.”

Then the Act in sufficiently plain terms defines what it means by this term “outlet,” and prescribes the only occasion when liability to assessment for “outlet liability” shall arise.

Sec. 3, s.s. 4. The lands and roads of any municipality, company, or individual using any drainage work as an outlet or for which, when the work is constructed, an improved outlet is thereby provided, * * * * may * * * * be assessed and charged for the construction and maintenance of the drainage work so used as an outlet,

but only “to the extent of the cost of the work necessary for any such “outlet.” Then in sub‑section 5, is enacted the mode by which the amount to be charged to each particular lot to be assessed is to be determined.

A careful consideration of the Act therefore condemns, in my judgment, as wholly inadmissible, a construction which should hold that lands not benefited by a drainage work constructed under the provisions of the Act are nevertheless made liable to assessment for “injuring liability” or “outlet liability,” notwithstanding the words in the third section purporting to authorise the engineer “to make an assessment of the lands and roads within said area to be benefited and of any other lands and roads liable to assessment as hereinafter provided.”

The provisions coming under the terms “as hereinafter provided” seem I think to favour rather the construction that what the legislature intended was, to provide, in the interest of the persons to be assessed, that the sums to be assessed upon all lands benefited by the work should shew the nature of each item charged separately as follows: 1. For “benefit,” meaning, I apprehend thereby (for no definition is given of this work in the Act), the benefit conferred by the

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facility for the drainage of all lands within the area of the drainage work, which benefit would vary according to the difference of elevation of the respective lots—the quantity of water to be drained from each—the distance of the several lots from the drainage work—and the like. 2. For “injuring liability,” i.e. for the special charge to each lot from which water is caused to flow to the injury of other lands in the manner described in the Act under the definition of “injuring liability”; the whole of the cost of this work in so far as it relates to the removal of this water is to be borne specially by an assessment upon the lot from which the water doing the injury is so caused to flow. 3. For “outlet liability”—which is only authorised to be assessed for in the one particular case of a drain constructed in one township being continued into another until a “sufficient outlet” for the waters coming down such drain is reached.

The application of the same precise mode for determining the amounts chargeable for “injuring liability” and for “outlet liability” does not appear to be, I think, quite felicitous. The just mode of applying that subsection to “outlet liability” would seem to be; first, to determine the total amount chargeable for “outlet liability” by a calculation based upon the volume in which and the speed at which this water comes down the drain to its outlet in another municipality than that in which the drain is initiated; and secondly, to apportion that sum among the several lots from which the water is caused to flow by artificial means from the lands assessable into the drains upon a calculation based upon the volume in which and the speed at which such waters are respectively so caused to flow into the drain. In any case all lands from which no water is so caused to flow into a drain having its outlet in another

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municipality than that in which the drain was initiated would be exempt from assessment, and this is the condition of all of the lands of the appellants in Romney assessed for “outlet liability” in the present case.

Two sections still remain, to which alone it seems to be necessary to refer, viz., sections 70 and 75, upon the latter of which the main contention of the respondents has been rested.

Section 70 is the only section of the Act which in terms is made applicable to a work constructed under the Ontario Drainage Act, 36 Vict. c. 38. The section simply enacts that the same provisions as to the repair and maintenance of a work constructed under the Ontario Drainage Act, and initiated in one municipality but continued into another to a “sufficient outlet,” there reached as in sec. 69, are made applicable in similar circumstances in the case of a work constructed under a municipal by-law. The provisions of sec. 70 had their origin in the Municipal Amendment Act, 48 Vict c. 39, sec. 26, which made the sections of the Municipal Institutions Act of 1883, 46 Vict. c. 18, as to the maintenance and repair of a work initiated in one municipality and continued into another until an outlet is reached, and constructed under a municipal by-law, applicable to the case of a work initiated in one municipality and in like circumstances continued into another, and constructed under the Ontario Drainage Act. The utility of this enactment is not apparent for precisely similar provisions as those contained in the Municipal Acts in relation to works constructed under municipal by-laws, were contained in the Ontario Drainage Act, 36 Vict. c. 38 in relation to like works constructed under that Act; and as an award was made in 1878, under the provisions of that statute, which determined the extent of the liability of lands in Romney for the construction, maintenance and

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repair of the work executed by the Ontario Government in the East Branch stream at the point where the Romney drains continued into the Township of Tilbury West reached their sufficient outlet the necessity of section 70 is not apparent.

However, this is by the way at present, for we are not now dealing with a by-law passed for maintenance and repair of the work for which the lands in Romney were assessed in 1878 and done by the Ontario Government in the outlet of the Romney drains. When the question of the liability of lands in Romney to contribute to the cost of repair and maintenance of that work shall arise, it will be time enough to consider whether they can be rated for the cost of maintenance and repair in any greater proportion than that in which they were, by the award of 1878, rated for the cost of construction.

However the language of this section 70 has, I think, some considerable bearing upon the construction of section 75 upon which the respondents so much rely. The legislature, by the language used in section 70, seems to shew a plain intention of limiting the application of the Act to works constructed under the Ontario Drainage Act, to the provisions of that section, namely, to cases of repair and maintenance alone.

Then it is enacted by section 75 that wherever it shall be deemed expedient to change the course of any “drainage work”

constructed under the provisions of this Act or any Act respecting drainage by local assessment, * * * * or to make a new outlet for the whole or any part of the work, or otherwise improve, extend or alter the work, or to cover the whole or any part of it, the council of the municipality or any of the municipalities whose duty it is to maintain the said drainage work may, without the petition required by section 3 of this Act, but on the report of an engineer, * * * * undertake and complete the change of course, new outlet, improvement, extension, alteration or covering specified in the

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report and the engineer or surveyor shall, for such change of course, new outlet, improvement, extension, alteration or covering, have all the powers to assess and charge lands and roads in any way liable to assessment under this Act for the expense thereof in the same manner and to the same extent * * * * as are provided with regard to any drainage work constructed under the provisions of this Act.

Now while the language of this section is most apt when construed as applying only to a “drain,” that is a wholly artificial work having a course capable of being altered, extended and improved, and having an “outlet” for which a new outlet is capable of being substituted, the language appears to be quite inapt to be applied to a work such as that done by the Ontario Government in Big Creek in 1878 terminating at the line between the third and fourth concessions of Tilbury West, which work consisted merely in the straightening and deepening the natural stream by dredging. Work of that character so terminating and done wholly in the bed of the running stream cannot be said to have there an outlet capable of being altered and to have another substituted therefor. The stream in which the work of dredging was done, flowed on in its natural course to its outlet (but that is quite a different thing), about seven miles further down, but the work done in that stream which consisted of deepening by dredging, and straightening, could not be said to have an outlet, to which section 75 could apply.

Then again, this section 75 is enacted in lieu of section 585 of The Consolidated Municipal Act of 1892 which is repealed by section 114 of 57 Vict. c. 56. Now that section 585 so repealed was a clause in consolidation of section 585 of The Municipal Act, ch. 184, R.S.O. of 1887, which again was in consolidation of section 586 of The Municipal Institutions Act of 1883, [46 Vict. c. 18,] which again was but in consolidation of section 17 of 45 Vict. c. 26, an Act intituled “An Act to make further provision for the construction of

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Drainage Works by Municipalities,” where the clause originated, and in each of these sections the word “drain” was used in every place where the words “drainage works” or “work” (simply) occur in this section 75, so that the fair and reasonable construction of this section, I think, is that the words “drainage work” and “work” as used in it mean precisely the same thing as the word “drain” as used in section 585 of the Act of 1892, and in all the other sections of the above mentioned Acts of which that section was but a consolidation, and nothing more. When then we find the legislature in section 70 applying in express terms the provisions of that section (as to repair and maintenance) to a work constructed under the “Ontario Drainage Act” and in section 75 re-enacting all the provisions of the repealed section 585 of the Consolidated Municipal Act of 1892 except the words comprehending “a work constructed under the Ontario Drainage Act” the natural and reasonable conclusion would seem to be that the section could not be construed to have any application to such a work, and if all works constructed under the Ontario Drainage Act were of the character of the works appearing in this case as having been executed by the Ontario Government in 1878, with the exception of the drains 1, 2, 3 and 4 of Mr. Holwell’s survey, the omission of those words of section 585 from this section 75 would appear to have been most wise, because of the inaptitude of the words used in the section to works of the character of those done in the beds of Big Creek and of Tremblay Creek and of the East and West Branches by the Ontario Government in 1878.

The language used in the section is apt enough to include works of the nature of the “drains Nos. 1, 2, 3 and 4 of Mr. Holwell’s survey,” if the words of the repealed section 585, comprehending works “con-

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structed under the Ontario Drainage Act” had been re-enacted, but quite inapt by way of application to a work of straightening a running stream, or of deepening it by dredging. The effect of the omission of the above words from section 75 would seem to be, to exclude even the “drains Nos. 1, 2, 3 and 4 of Mr. Holwell’s survey” from the operation of the section which works, if the omitted words had been re-enacted, would have been within it; but assuming the words in the section, “any drainage work constructed under the provisions of this Act or any Act respecting drainage by local assessment” to be sufficient, by reason of these latter words, notwithstanding the omission of the omitted words, to include a work constructed under the Ontario Drainage Act, such work must be one constructed, that is to say, as it appears to me, must be an artificial drain just such as is mentioned in section 585 of the Act of 1892, and in all the previous Acts above mentioned since, and inclusive of 45 Vict. c. 26. The reasonable and natural construction of the section, by reason of the omission of the omitted words of section 585 appears to me to be that section 75, like all the other sections, except section 70, applies only to case of drainage works constructed, that is to artificial drains constructed, under municipal by-laws, and the exception made that the works contemplated by the section to be undertaken and completed by the council of the municipality whose duty it is to maintain such work “without the petition” required by section 3 of this Act seems to me to afford corroboration of that view. Why without such petition? Why should a work of the character referred to in the section, to be paid for by special local assessments under section 3, be constructed without the petition required in section 3, when such a projected work could not be entertained by a municipal council without such petition? The

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legislature must have had some reason for this distinction, and the only one which presents itself would seem to be, that, in the case of a drainage work constructed under a municipal by-law which only could be undertaken and constructed originally under such a petition as is provided in section 3, it was thought that power might be given to a municipal council which had authorised the construction of the work originally, or which had imposed upon it the duty to maintain such a work, to change the course of such work, or to make a new outlet for it, &c., &c., as mentioned in the section without the necessity of any further petition.

The by-law No. 45 of Tilbury West was, as we have seen, expressed to be passed

to provide for extending and otherwise improving Big Creek, in the Townships of Tilbury North and Tilbury West.

In point of fact no such project was or could have been in contemplation; it would have been practically impossible. That the council of Tilbury West under R.S.O. of 1887 ch. 184 s. 479, s s. 15, which was the section in 1897 in force in consolidation of 36 Vict. c. 48 s. 372, s s. 10, above extracted, had power to widen, alter the course of, or even to extend (if that were possible) Big Creek, may be admitted, but such work performed under that section must needs have been performed at the charge of the general funds of the municipality. That such was not the intention of the council of Tilbury West can confidently be asserted. The council of Tilbury North appears to have entertained the idea that (under the provisions of section 7 of 54 Vict. c. 81, which was “An Act passed for the purpose of dividing Tilbury West into two townships, Tilbury North and Tilbury West”) the council of Tilbury West had power, which the council of Tilbury North had not, to initiate and complete under

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the provisions of section 75 of 57 Vict. c. 56, a work of a purely local character by the construction of which the council of Tilbury North and the owners of certain lands therein situate would alone be benefited; the procuring the construction of which work unless it could be so procured to be undertaken was hopeless. It appears incontestible, upon the evidence, that this by-law 45 of Tilbury West was passed, and the works therein mentioned were undertaken, by the council of Tilbury West at the earnest instance and pressing solicitation of the council of Tilbury North. It is true that at the trial it was said that some individuals had made some applications by letter to the council of Tilbury West, but the nature of those applications did not appear, for upon counsel for the appellants insisting that they should not be spoken of unless produced the defendants in the action refused to produce them, and so the case was left to stand upon the evidence which was unequivocal, that the engineer was employed to make a report, but upon what particular matter did not appear, and that upon his report the by-law was passed and the work therein mentioned was undertaken at the special instance of the council of Tilbury North. This is an incontestible fact established by the evidence whatever may be the effect of the established fact. Whether the municipality of Tilbury West fulfil the condition precedent necessary to give them the right to act in the circumstances of the present case under section 75 of 57 Vict. ch. 56, may perhaps be open to some doubt, that is to say, whether the municipality had a duty imposed upon it to maintain the drainage works which, done by the Ontario Government in 1878, at the cost wholly, both as to construction and maintenance, of the owners of lands particularly benefited thereby, may perhaps be open to question. But no such point was made in

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the argument before us and I do not think that it is necessary that it should be decided on this appeal.

Now by the Act 54 Vict. c. 81, Tilbury North was made to consist of

all that portion of the former Township of Tilbury West which lies north of the centre of the road allowance between the ninth and tenth concessions, and east of the line between lots 15 and 16, and north of the centre of the road allowance between the range of lots north of the middle road and fourth concession, and north of the centre of the road allowance between the fourth and fifth concessions of said Township of Tilbury West.

By this description the whole of the land lying between Lake St. Clair, the extreme northern boundary of the township, and the line between the fourth and fifth concessions was situate in Tilbury North, and Big Creek proper also which extended from the Forks to its mouth at the River Thames with the exception of about three quarters of a mile measured from the Forks, was in Tilbury North. The only apparent interest which the Council of Tilbury North had which could explain their earnest solicitation of the Council of Tilbury West, to pass the by-law, and undertake the work therein mentioned, consisted in this, that all the lands in Tilbury North lying north of the line between the third and fourth concessions are low, wet, marsh lands called “The Plains,” no part of which is anywhere more than three feet above the ordinary level of the Lake St. Clair. The waters of this lake rise gradually and periodically (and some times to a very great height) and again in like manner subside and rise again in such a manner that this rising and subsiding of the waters is in common language (although inaccurately) spoken of as a tide The broken front concession and the three adjoining concessions have always in every year been overflowed more or less by this rising of the waters of the lake, and in some years so as to leave only a mound of earth

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here and there visible. The ordinary level of Big Creek at a place called The Narrows in the centre of the third concession, and thence to its mouth, a distance of over three miles, is the same as the ordinary level of the lake. These low, wet, marsh lands, besides being exposed to being overflowed and drowned from this cause are also, in all times of freshets, exposed every year to further overflow from the waters of the River Thames, a large navigable river rushing down with great force and in large volume directly opposite to the mouth of Big Creek, thereby forcing the waters of the Thames up the Big Creek and up a large stream called Baptiste Creek, and up Tremblay Creek, and up another stream called Bruley Creek which three latter streams flow into Big Creek as it flows through those low, wet lands called “The Plains,” and so also the waters flowing down all of those streams are penned back and made to spread over “The Plains” where, uniting with the waters of the lake so as aforesaid overflowing the Plains, the combined waters keep the Plains continually flooded to a greater or less height until the waters of the lake subside and the force of the freshets have ceased. There is not, nor does there appear to have been supposed to be any possible mode of draining those lands either into Big Creek or otherwise, and there is said to be no possible mode of reclaiming them except by embankments made so as to enclose the parts to be reclaimed, and thus keep out the flood waters.

Within the last ten years many pieces of those lands have been reclaimed in this manner in Tilbury East along Baptiste Creek. Pumping has been used in some cases to get the water out of the parts enclosed by the embankments, but this is not essentially necessary. Since the Grand Trunk Railway and the Canadian Pacific Railway have been con-

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structed across these “Plains,” the former in the broken front concession, and the latter in the second concession, their embankments which it has been necessary to construct to a height sufficient to enable the railway tracks to be laid above the flood waters, have served to be used as embankments in this reclaiming process. This is the unquestioned evidence as given by engineers who have been familiar with the condition of these “Plains,” for very many years. Mr. McDonald, an engineer, who designed some of the works completed by the Ontario Government in 1878, says that these embankments, together with the embankments constructed in the present scheme would afford perfect means of reclaiming all of the lands in the Plains if the railway companies would close the many passages kept open under the railways by which the flood waters pass up from the lake on to the “Plains” and back again when the lake subsides. He suggested this to the Grand Trunk Railway Company some years ago, but that company refused to concur in his suggestion through apprehension, as it would seem, that if the flood waters from the lake were prevented from passing under the railway, their force might destroy the railway embankment. A Mr. Holland has reclaimed a farm upon lot 16, in the first concession, about 1½ miles west of Big Creek. He used the process of pumping to clear the water from his enclosure, but that is not requisite in all cases A Mr. Morris has reclaimed a farm in the third concession about half a mile east of Little Creek, and over a mile west of Big Creek. He has not made use of the pumping process but has availed himself of a railway embankment upon one side of his enclosure.

Now the work designed by the said by-law no. 45 of Tilbury West to be done here, as appears by

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the engineer’s report, which was made part of the by-law, was of the following description, namely:

That embankments should be made on each side of Big Creek proper from the Canada Southern Railway, that is to say, from where it crosses the line between the fourth and fifth concessions to the Grand Trunk Railway which crosses Big Creek about half a mile from its mouth, a distance of over six miles, and like embankments along Tremblay Creek from its junction with Big Creek on lot 19, in the first concession, to where the Canadian Pacific Railway crosses Tremblay Creek on lot 20, in the fourth concession. These embankments were to be made according to plans and specifications referred to in the report which was made part of the by-law and were to be of prescribed dimensions in height and width and of sufficient strength to prevent the waters of these two streams Big Creek and Tremblay Creek expanding over these low, wet lands called the Plains, of which, as the report says, there are 4,500 acres in Tilbury North which, as the report also says, will be greatly benefited by the embankments which were designed to prevent the overflow of water upon them from Big Creek and Tremblay Creek. That these lands would not only be greatly benefited, but that they would be the only lands deriving any benefit from this work which was designed to be constructed at a cost of $31,000 is the only conclusion reasonably to be deduced from the evidence. Now such a work, constructed along Big Creek and its affluent Tremblay Creek where the ordinary level of these streams is the same as the level of Lake St. Clair, cannot, in my opinion, be said with any propriety to be a drainage work at all or to be in any respect connected with the work done in Big Creek proper in 1878 between the Forks and the line between the third and fourth concessions at a cost as already

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stated of $5,983.32, nor can it be said, in my opinion, to come within the provisions of sec. 75 of 57 Vict. c. 56. The work so designed at a cost of $31,000 is nothing but a scheme for reclamation of drowned lands situate in such a low position as to be incapable of being drained, a work in fact of a character that has been in much use as a reclamation scheme on these plains within the last ten years, since the railway embankments were made across the plains. There is no novelty in the scheme, save only in attributing to it the character of a drainage work; that it does not come within the scope and intent of the section 75 appears to me to be clear for the reasons already given, and that it does not appears to be concluded by s.s. 2 of sec. 3 of 57 Vict. c. 56. It is said that the embankments under consideration here are not such embankments as that sub-section refers to, but no reason is suggested that I can see in support of such a contention. It is perfectly obvious that without the embankments the purpose for which they were designed, namely, of preventing the waters in the streams expanding over those low lands, could not be obtained. If the work can be considered to be a drainage work at all the embankments are essentially necessary to such work.

Then the by-law wholly ignores the condition of the lands in Romney and the clauses of the Act in virtue of which the council of Tilbury West claims to have jurisdiction to affect those lands.

The lands in Romney are subject to whatever obligation has been imposed upon them, by 36 Vict. c, 38 and the award made thereunder in 1878, to maintain in repair the work done by the Ontario Government on the outlet of the drains in Romney into the natural watercourse of the East Branch stream, that is to say at the point where the Romney drains reached a

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sufficient fall to prevent injury to lands and roads. Whatever may be the extent of this obligation, the lands in Romney assessed in 1878 by the award then made are subject to it; but that obligation gives no jurisdiction whatever to the council of any of the townships through which Big Creek flows to charge lands in Romney for contribution to the cost of every work any one or more of such townships might undertake to construct anywhere along the course of Big Creek from its source in the township of Mersea to its mouth, a distance of eighteen or twenty miles. The obligation to maintain the work at the outlet of the Romney drains for which the lands in Romney were assessed by the award in 1878 can, I apprehend, be enforced against the council of Romney, and the owners of such lands, by any person claiming to suffer injury by neglect to repair and maintain. Whether the council of Tilbury West has jurisdiction suo motu, to determine when the work has fallen into such a condition as to require repair and to enforce the obligation upon the lands in Romney, cannot be judicially determined until such jurisdiction shall be asserted. It is sufficient at present to say that this is not a case of that description. When the case shall arise it will be time enough to determine what is the extent of the liability of the lands in Romney in view of the award made in 1878 under the provisions of 36 Vict. c. 38.

The engineer who made the report which is made part of the by-law has said in his evidence that the charges for “injuring liability” and “outlet liability” which he has made upon the lands in Romney were made upon the principle of preventing injury to the low, wet lands above referred to; this was the only explanation he could, or at least did, offer for making those charges. He was asked to explain upon what principle he had proceeded in charging the lands in

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Romney thirty cents per acre as for “outlet liability.” To this inquiry he could not or, at least, did not give an answer save as above. It is not strange then, I think, that two engineers of considerable experience, one called as a witness for the plaintiff, and the other for the defendant in the action, Mr. McGeorge and Mr. Laird, should have said in their evidence that they could not see any ground whatever for any charge for “injuring liability” in the present case. Referring to the definition of those terms, “injuring liability” and “outlet liability” as given in the Act, and to the only obligation to which the lands in Romney were made liable by 36 Vict. c. 38, and the award thereunder, the council of Tilbury West had, I think, no more jurisdiction to charge lands in Romney for the work mentioned in the by-law, either for “benefit,” or “injuring liability,” or “outlet liability” than they had to charge lands in the Township of Dover at the opposite side of the River Thames.

For the reasons above given, I am of opinion that the appeal, in so far as it relates to the by‑law 601 of Romney, must be allowed with costs, and that judgment in the action must be ordered to be entered for the plaintiff with costs in so far as relates to the said by-law 601. The form of the judgment (being limited as was the action to the interests of the plaintiff, the now appellant) should be to the following effect:

Declare that the council of the municipality of Tilbury West had no jurisdiction to attempt to impose any charge, as they have assumed to do by the by-law 45, upon the lands in the pleadings mentioned, the property now of the appellant, viz., lots Nos. 21, 22 and 23 in the 5th concession, the South ½ of lot 21, lots 22, 23 and 26 in the 4th concession, and the North ½, and the West ½ of the South ½ of lot 21, and the North ½ of lot 22, and the North ½ and the West ½ of the South ½

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of lot 23 in the 3rd concession of the Township of Romney, in the County of Kent:

Restrain the council of the Township of Romney from taking any steps or proceedings to enforce the by-law No. 601 of the Township of Romney against the said lands:

Declare that the registration of the said by-law is ineffectual and void and has imposed no lien upon the said lands in respect of the assessments in the said by-law assumed to be imposed.

AS TO BY-LAW NO. 602.

There can be no doubt that the Council of the Township of Romney had jurisdiction to pass this by-law. It is nothing but a by-law to repair and maintain a drain constructed under the provisions of 36 Vict. ch. 39. Whether or not there has been any miscarriage in the proceedings taken under the provisions of the statute as regards such a by-law is not a matter open to inquiry in this action.

In so far, therefore, as relates to by-law no. 602, the appeal must be dismissed, but as the main, and indeed almost the whole contention in the appeal related to the by-law no. 601, and the costs of the appeal do not appear to have been increased by the contention as to the by‑law no. 602, the appeal, in so far as it relates to that by-law, is dismissed without costs.

Appeal allowed with costs as to by-law 601; dismissed without costs as to by-law 602.

Solicitor for the appellant: Geo. M. Douglas.

Solicitors for the respondent: Rankin & Scullard.