The Queen v. Armour, (1899) 31 SCR 499

Supreme Court of Canada

The Queen v. Armour (1899) 31 SCR 499

Date: 1899-10-03

The Queen, on the Information of the Attorney General for the Dominion of Canada (Plaintiff)

Appellant

And

The Honourable John Douglas Armour, The Toronto General Trusts Company, and Henry Cox (Defendants)

Respondents

1899: Mar. 15, 16, 17, 20, 21; 1899: Oct. 3.

Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and Girouard JJ.

(Reporters' Note.—This case, not reported at the time judgment was delivered, is now published at the request of the court.)

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA.

Exchequer appeal—Assessment of damages—Interference with findings of Exchequer Court Judge.

The Exchequer Court Judge heard witnesses and upon his appreciation of contradictory testimony awarded damages to the respondents. The Crown appealed on the ground that the damages were excessive.

Held, Gwynne and Girouard JJ. dissenting, that as it did not appear from the evidence that there was error in the judgment appealed from, the Supreme Court would not interfere with the decision of the Exchequer Court Judge.

Appeal from the judgment of the Exchequer Court of Canada adjudging that the lands mentioned in the information were vested in Her Majesty The Queen, for the purposes of the Trent Valley Canal, and awarding $14,158 to the respondent, the Honourable John Douglas Armour, as compensation for the said lands with interest and costs, and $100 to the respondent Henry Cox, for damages in respect of his lease of said lands with costs.

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The questions at issue upon this appeal sufficiently appear from the judgments reported.

The judgment appealed from was delivered on the 12th of September, 1898, the learned judge of the Exchequer Court stating his reasons for judgment as follows:

BURBIDGE J.—The information is filed to obtain a declaration that certain lands situated in the County of Peterborough, taken for the Trent Canal, are vested in Her Majesty, and that a sum of six thousand eight hundred and sixty dollars tendered to the defendent, the Honourable John Douglas Armour is sufficient compensation for the lands so taken, and for damages to adjoining lands held therewith.

The question of compensation is the only matter in dispute. The amount tendered is made up of a sum of three thousand eight hundred and sixty dollars for the land taken and a sum of three thousand dollars for damages. The valuators, on whose report the tender was made, put the value of the land taken at two hundred dollars per acre, and I have no difficulty, in view of the evidence as a whole, in accepting that as a fair value.

There is, however, a slight discrepancy between the statements of the quantity of land taken, as given in the tender, on the one hand, and in the pleadings and proof in this case, on the other. In the former it is stated at nineteen acres and three-tenths of an acre; in the latter at nineteen acres and fifty-four-hundredths of an acre. I accept the latter as being correct, and allow three thousand nine hundred and eight dollars for the value of the lands so taken.

With reference to the damages, the evidence discloses a wide difference of opinion. That the amount tendered for damages was not sufficient, can, I think,

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admit of little doubt, but what that amount should be is a question not without its difficulties. I am of opinion, however, to allow in respect thereof, the sum of ten thousand two hundred and fifty dollars. That sum is less than the amount at which Mr. A. F. Wood and other witnesses, who in a general way agreed with him, estimated such damages, but it appears to me to be sufficiently liberal to cover and include all possible elements of damage presented by the case, excepting a sum of one hundred dollars, which, it was understood at the trial, the Crown was to pay to the tenant, Cox, for injury to his crops; the other damages sustained by the tenant being, it was agreed, settled for by the landlord, and included in the general damages awarded to him.

There will be a declaration that the lands mentioned in the information are vested in Her Majesty, and that the defendant, the Honourable John Douglas Armour, is, upon giving the Crown proper discharges or releases from the other defendants, entitled to be paid for compensation for the lands taken, and for damages, the sum of fourteen thousand one hundred and fifty-eight dollars with interest at six per centum per annum, from the eighth day of May, one thousand eight hundred and ninety-six, and that the defendant Henry Cox, is entitled to be paid the sum of one hundred dollars.

The defendants will also have their costs.

S. H. Blake, K.C. and Edwards for the appellant. Osler,

K.C. and Aylesworth, K.C for the respondents.

The judgment of the court was delivered by:

SEDGEWICK J.—The information was filed in the Exchequer Court to obtain a declaration that certain lands situate in the County of Peterboro, taken for the

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Trent Valley Canal, were vested in the Crown, and that the amount tendered therefor and for the injurious affection of adjoining lands, viz., six thousand eight hundred and sixty dollars, should be deemed sufficient compensation.

The case was tried before Mr. Justice Burbidge who awarded for the lands taken the sum of three thousand nine hundred and eight dollars, and for damages done to the adjoining lands the sum of ten thousand two hundred and fifty dollars. From that judgment the Crown has appealed to this court.

At the argument of the appeal I was strongly impressed with the view that these damages were excessive and I subsequently endeavoured to write a judgment giving effect to that view, but in this attempt I failed. After a repeated perusal of the evidence I found it impossible, if proper effect was to be given to it, to do otherwise than confirm the judgment. It seemed to me that it would be necessary to demonstrate in the clearest possible way by reference to the evidence in the case that there was error in the judgment. This was impossible. The learned trial judge who heard the evidence came to a conclusion upon it and the respondent is entitled to the benefit of that conclusion unless the Crown can present a clear case to show he was wrong.

In my view the appeal should be dismissed with costs. There should be amalgamated with the present judgment, if the Crown so desire, the undertaking of the Crown with respect to the subway referred to in the evidence.

GWYNNE J. (dissenting.)—I am compelled to dissent with great deference from the judgment in this case.

The question is as to the amount to be paid by the Dominion Government for nineteen and a half acres

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expropriated for the Trent Valley Canal out of a farm of two hundred and twenty acres of which the respondent Armour is seized in fee subject to a mortgage and to a lease for a term of years not yet expired, to one Cox, tenant of the whole farm. A portion of the farm is within the limits of the Village of Ashburnham and it is claimed by the respondent Armour that such part has a special value as village property and that the construction of the canal will depreciate the value as village lots of so much of the land within the limits of the village plot as is not expropriated.

But during the past thirty years there has been no demand for such land as village lots; all has been occupied and cultivated as farm land and there is not in the evidence any ground for entertaining any reasonable expectation that there shall be any greater demand for such land as village lots in the next thirty years than in the past. Every estimate both of the value of such land as village lots, and of the alleged depreciation in their value of the part not expropriated occasioned by the construction of the canal is purely speculative, conjectural, fanciful and illusory in the extreme. In fine, without entering into a detailed analysis of the evidence it is sufficient for me to say I am of opinion that the only conclusion warranted by a full, fair and reasonable appreciation of the evidence is that the sum tendered by the Government, namely six thousand eight hundred and sixty dollars ($6,860), which is over twenty per cent of the utmost value of the whole farm of two hundred and twenty acres, and all the buildings thereon, none of which are on the part expropriated as existing without the canal, is liberal and ample compensation for the nineteen and a half acres expropriated and for all damage by depreciation, severance or otherwise of the land not

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expropriated, consequent upon and attributable to the construction of the canal, and for which the Court of Exchequer has allowed fourteen thousand one hundred and fifty-eight dollars ($14,158), besides interest thereon, or upwards of forty per cent of the utmost value of the whole two hundred and twenty acres.

I am of opinion, therefore, that the appeal should be allowed.

GIROUARD J. (dissenting).—In expropriation cases and generally in all matters where the valuation of land is involved, I have always been inclined to maintain the findings of experts acting officially, unless clearly wrong. As usual, the evidence in this instance is contradictory. Seven or eight practising attorneys at law, and a few others, have given testimony in favour of the respondent, but, in my humble opinion, it is not of sufficient weight to destroy the report of the experts, supported as it is by the witnesses of the appellant.

All the parties expropriated along the canal have declared themselves well satisfied with the valuation made, except the respondent; but, I see no reason why he should feel to have been unfairly treated.

I am, therefore, of opinion that the amount fixed by the valuators should be restored and the appeal allowed with costs.

Appeal dismissed with costs.

Solicitor or the appellant: E. L. Newcombe.

Solicitors for the respondents: Barwick, Ayelsworth & Wright.