The Saskatchewan Land and Homestead Company and the Trusts and Guarantee Company (Claimants) Appellants;
and
The Calgary and Edmonton Railway Company (Contestants) Respondents
1914: October 30; 1915: February 2.
Present:—Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA.
Railways — Expropriation — Materials for construction — Notice to treat—Statute—"Railway Act," R.S.C., 1906. c. 37, ss. 180, 191, 192, 193, 194, 196—Compensation—Date for ascertainment of value—Order for possession—Deposit of plans—Approval of Board of Railway Commissioners.
[Page 1]
With regard to obtaining materials for the construction of railways, the effect of sub-section 2 of Section 180 of the "Railway Act," R.S.C. 1906, ch. 37, merely requires the general provisions of the Act relating to the using and taking of lands to be observed in so far as they are appropriate to the expropriation of the lands and settling the compensation to be paid therefor; section 192 of the Act has no application to such a case.
[Page 2]
Notices were given, in compliance with sections 180, 193 and 194 of the "Railway Act," and, before any change had taken place in respect to the value of the lands to be taken, the railway company obtained an order of a judge permitting it to do so and took possession of the lands in question.
Held, that the title of the company to the lands, when consummated, must be considered as relating back to the date when possession was taken and that the compensation payable therefor should be ascertained with reference to that time.
Judgment appealed from (6 Alta. L.K. 471) affirmed.
APPEAL from the judgment of the Supreme Court of Alberta, dismissing an appeal from an award of arbitrators appointed under the "Railway Act," R.S.C. 1906, ch. 37, to ascertain the amount of the compensation payable by the railway company upon the expropriation of lands for railway purposes.
In June, 1908, the Saskatchewan Land and Homestead Company and certain other persons were interested in lands in the Province of Alberta which were required by the railway company for the purposes of obtaining stone, gravel, earth, sand, water and other material to be used in the construction and operation of the railway. Notices were served upon the parties interested in the lands by the railway company, under the provisions of sections 180, 193, and 194 of the "Railway Act." Shortly afterwards, the company obtained an order from a judge for immediate possession of the lands, under section 217 of the Act (upon depositing $1,150), and, thereupon, it entered into possession of the property. The parties were unable to agree as to the amount of compensation to be paid for the taking and using of the lands, but arbitrators were not appointed until the year 1912 and the arbitration did not take place until the month of September of that year. Attached to the notice to treat was a
[Page 3]
certificate by a land surveyor, as required by section 194 of the Act, fixing the value of the property and the compensation to be offered at $733.05, and, in making their award, the majority of the arbitrators adopted that amount as the proper compensation payable by the railway company. On an appeal from the award to the Supreme Court of Alberta, the decision of the arbitrators was affirmed by the judgment now appealed from.
Whiting K.C. and A. B. Cunningham for the appellants.
The court and the arbitrators erred in fixing the amount of the compensation at $733.05; in finding that the date with reference to which compensation or damages should be ascertained was the date of the order for immediate possession, viz., 24th July, 1908, and in making no allowance for the value of the land for gravel purposes.
We rely upon the following authorities:—
Vezina v. The Queen; Trent-Stoughton v. Barbadoes Water Supply Co.; Ripley v. Great Northern Railway Co.; In re Gough and Aspatria. Silloth and District Joint Water Board; Bailey v. Isle of Thanet Light Railways Co.; In re Tyneworth and the Duke of Northumberland; Cedars Rapids Manufacturing and Power Co. v. Lacoste.
The actual value in 1912 is the proper measure of the prospective value in 1908. Bwllfa and Merthyr
[Page 4]
Dare Steam Collieries v. Pontypridd Waterworks Co.. The burden is not imposed upon a person whose land is taken from him against his will of proving by costly experiments the mineral contents of his land as a condition precedent to obtaining compensation. Brown v. Commissioner for Railways. The land owner is entitled to more than an ordinary vendor, because he is a vendor who is compelled to sell. The Queen v. Essex, at page 451.
O. M. Biggar K.C. for the respondents. The respondents, by their conduct, are estopped from making any claim for extraordinary damages; they consented to possession being taken, on the deposit of $1,150 by the railway company, which then proceeded to make use of the material and it was not until several years afterwards that the owners first suggested any extraordinary value; this claim was not based upon the value at the time of the consent, but upon a value alleged to have been acquired by the property long after the removal of the material.
Section 192, with regard to the date by reference to which the value of lands is to be ascertained in the case or arbitrations, can by no possibility have any application to arbitrations with regard to lands taken under section 180. Section 192 depends for its operation upon there being a necessity to deposit a plan with the registrar of deeds, and there is no provision authorizing the registrar to receive any plan not certified by the Board of Railway Commissioners. As section 180 expressly relieves the railway company from the necessity of obtaining any approval of a plan
[Page 5]
required under that section, there is no way in which any plan can be deposited with the registrar of deeds so as to make section 192 apply.
The rule adopted under the English "Lands Clauses Consolidation Act," 1845, must be resorted to, viz., that the value is to be ascertained as of the date upon which the notice to treat is given. Hudson on Compensation, vol. 1, p. 161; Penny v. Penny ; Tyson v. Mayor of London. Possession having been taken with the consent of the owners, the railway company must be deemed to have become equitably entitled to the lands when they entered into possession, subject to the ascertainment of the proper value as of that date. Carnochan v. Norwich and Spalding Railway Co.; Mercer v. Liverpool, St. Helen's and South Lancashire Railway Co..
The order for possession having been made, and the company having gone into possession pursuant to it, there was no right of withdrawal. See "Railway Act," section 207; Canadian Pacific Railway v. Little Seminary of Ste. Thérèse; Re Haskill and Grand Trunk Railway Co.; Atwood v. Kettle River Valley Railway Co..
THE CHIEF JUSTICE.—With some hesitation I agree that this appeal should be dismissed with costs.
IDINGTON J.—The respondent acting under section 180 of the "Railway Act," sought to expropriate a
[Page 6]
piece of gravel-bearing land which belonged to the appellants and, accordingly, by notice of the 30th of June, 1908, served pursuant to said section on appellant and others concerned therein informed them of such intention and tendered the sum of $733.05 as compensation for said land and for any damages to be suffered by the exercise of the powers conferred by said section and notified them that if the said offer was not accepted within ten days after service of said notice the appellant would apply to a judge for the appointment of an arbitrator or arbitrators as provided by section 196 of the said Act. Attached to said notice was a plan and certificate of a Dominion land-surveyor such as required in such cases by section 194 of said Act.
The then Chief Justice of Alberta on the 24th July, 1908, made, under section 217, an order upon consent of all parties interested that upon payment into court of $1,150 the respondent might enter into immediate possession of said lands.
The respondents, accordingly, shortly thereafter entered into possession and from time to time removed a very large quantity of gravel. No steps towards arbitration seem to have been taken until the year 1911, when a board of arbitrators was named, but for some reason failed to act and a new one was constituted in the year 1912, which proceeded with the reference and heard a great deal of evidence directed by both sides almost entirely to the then marketable value of the gravel according to the quality thereof about which there was much conflict of opinion.
The majority of the arbitrators held that the value of the property expropriated must be taken to be that
[Page 7]
which it was worth in 1908, when possession was taken, and awarded the amount tendered then. One of the arbitrators dissented from this view, holding that by section 192, as amended in 1909, its value at the time of the hearing was what ought to govern.
The appellant asked the court of appeal to set the award aside, but that court dismissed that appeal and hence this appeal.
The first and chief question thus raised is whether or not the said section 192, as so amended, is applicable.
Section 191, sub-section 1, is as follows:—
191. After the expiration of ten days from the deposit of the plan, profile and book of reference in the office of the registrar of deeds, and after notice thereof has been given in at least one newspaper, if any published, in each of the districts and counties through which the railway is intended to pass, application may be made to the owners of lands, or to persons empowered to convey lands, or interested in lands, which may be taken, or which suffer damage from the taking of materials, or the exercise of any of the powers granted for the railway; and, thereupon, such agreements and contracts as seem expedient to both parties may be made with such persons, touching the said lands or the compensation to be paid for the same, or for the damages, or as to the mode in which such compensation shall be ascertained.
The second sub-section provides in case of disagreement that all questions shall be settled as thereinafter in said Act is provided. Then follows under the caption of "Compensation and Damages," section 192, as unamended, as follows:—
192. The deposit of a plan, profile and book of reference, and the notice of such deposit, shall be deemed a general notice to all parties of the lands which will be required for the railway and works.
2. The date of such deposit shall be the date with reference to which such compensation or damages shall be ascertained.
It is to be observed in the first place that the deposit of plans in the registry office is constituted by this section notice to all concerned and that service
[Page 8]
thereof on those concerned is not required until proceedings taken for arbitration.
In the next place it may be observed that, for what is done under and by virtue of section 180, no plans are required to be deposited or approved of as are other plans by some appointed authority before deposit.
Now let us turn to section 180 and see what it provides. It is as follows:—
Whenever—
(a) any stone, etc., or other material is required, etc.; or (b) (as therein appears); and (c) (as therein appears) * * * the company may, if it cannot agree with the owner of the lands for the purchase thereof, cause a land surveyor, duly licensed to act in the province, or an engineer, to make a plan and description of the property or right-of-way, and shall serve upon each of the owners or occupiers of the lands affected a copy of such plan and description, or of so much thereof as relates to the lands owned or occupied by them respectively, duly certified by such surveyor or engineer.
Contrast this with the mode of service by deposit in the registry office and we see at a glance how radically different the two modes of procedure are as framed by this section 180 and the section 192. I, with respect, submit the latter is dragged in needlessly to aid section 180, which, in that which section 192 has regard to, needs no aid, but is a self-contained section and power in that regard.
True, sub-section 2 of section 180 provides as follows:—
2. All the provisions of this Act shall, in so far as applicable, apply, and the powers thereby granted may be used and exercised to obtain the materials or water so required, or the right-of-way to the same, irrespective of the distance thereof: Provided that the company shall not be required to submit any such plan for the sanction of the Board.
And it is urged that it expressly relates to such
[Page 9]
powers being exercised to obtain material and it is pointed out that section 191 in express terms refers to lands which may be taken,
or which may suffer damage from the taking of materials.
Surely there are conceivable manifold possibilities of situations or conditions being opened up or created by or for the planning of a railway, and its construction, whereon this taking of materials might operate without going outside the obvious purposes of this all comprehensive section relative thereto.
Even if it could not be made operative as clearly as it can be shewn, in every word thereof, by a little effort of the imagination, applied to railway building, without making it apply to section 180, which even in its express language it does not fit, that would not render it necessary to pervert the obvious meaning of section 180.
In short, what was to be done under section 180 never required the deposit of a plan or profile in the registry office or elsewhere, but substituted therefor, and the publication thereof in a newspaper as required by section 191, service on those concerned, and to avoid any misapprehension as to the sanction of the board being required that was expressly dispensed with. Section 192 seems, therefore, as it originally stood, entirely inapplicable to what was to be done by virtue of section 180 providing a very common-place power such as municipalities have to enable them to execute or repair works, they possess.
Such being my conclusion I need not follow up the amendment of 1909 and its possible effect; yet I may be permitted to point out that it was no doubt enacted to put an end to the serious wrong done by railway companies filing plans in the registry office and keep-
[Page 10]
ing them there for an unreasonable length of time, to the detriment of the proprietors of lands affected thereby, without taking any steps to expropriate any part of such lands or indeed, as has been known, never proceeding with the construction of the railway.
Such proprietors of land had no remedy unless by making an application to the Railway Board. They had no powers of initiative to force an arbitration unless and until something more was done. The company alone was given the right to serve a notice to treat and often left that off till executing the work.
And reading the amendment it seems to me that the language hardly fits a case such as this in the way appellant suggests. On the other hand it does suggest, that it might well be argued, that it could not apply where the work was done and presumably an agreement had been reached or arbitration had taken place within a more reasonable time than, as in this case, three years before the amendment.
To give effect to the contention would be in this case to make the amendment, retrospective over a period of three years. I need not come to any opinion on this phase of the case and express none beyond this that it is one of the curious phases of a rather peculiar case.
Passing all that and agreeing in the contention acted upon by the arbitrators, must we set aside the award simply because there was no evidence presented by the appellant applicable to its claim?
It is rather a novel situation that is thus presented and, so far as I can find, barren of express authority to guide us.
The parties proceeded, by the respondents present-
[Page 11]
ing to the arbitrators the notice required by section 193 of the "Railway Act," accompanied by the certificate of a sworn surveyor, required by the 194th section thereof, stating as therein required his opinion that the sum offered is a fair compensation for the land and damages thereto; the appellant tendering a mass of evidence which shewed how much, at the time of the hearing, gravel existed on the premises in question, and how much had been taken, and its value for a variety of purposes at that time; without directly giving evidence of the market value of the land at any time, and by the respondents meeting that case by similar evidence.
Hardly any of this, it is admitted, touched in truth the correct issue.
It is, therefore, claimed by appellant that there was no evidence upon which the arbitrators could act and that, hence, the award ought to be set aside. On principle it does not seem to me to lie in the mouth of appellant to set up such a contention. The only semblance of authority I can find is such cases as Graven v. Craven, and Grazebrook v. Davis.
The former was a motion to set aside an award for the reason that the arbitrator had refused to hear evidence. But it was shewn that none was in fact tendered; after hearing the arbitrator had expressed an adverse opinion as to the possibility of its being applicable.
The latter was an action on a bond of submission where on demurrer it was held a plea which failed to allege the tender of evidence could not be maintained.
These cases seem to proceed upon the theory that
[Page 12]
it was the duty of the party complaining of the award to have expressly tendered evidence that would be relevant.
In this case in hand we must, I think, look at the nature and scope of the reference which seems by the Act to be designed to try the issue of whether or not the offer made is fair, and to lay the foundation for such a trial by requiring the tender of such a specific sum and prima facie proof, in the shape of a surveyor's certificate, that it is so.
That presents an issue upon which the burden of proof to displace the certificate rests upon the party who claims a greater sum.
In this case the appellant failed to do so by tendering what, on the view I hold of the Act, was admittedly entirely irrelevant evidence.
This mode of presenting the issue is in marked contrast with the proceedings under the "Lands Clauses Consolidation Act" of 1845, under which the offer cannot be brought before the court trying the question of compensation.
I, therefore, think the award made was justifiable and must be upheld. The appeal should be dismissed with costs.
It certainly is to be regretted that so much expense was incurred for so little. Let us hope when dismissing this appeal with costs, that in taxing costs of the reference, if attempted, justice may be so far done that respondents reap nothing from the useless expenditure of putting forward irrelevant evidence.
DUFF J.—I concur in the conclusion at which the appellate court of Alberta has arrived. Section 180
[Page 13]
of the "Railway Act," under which the proceedings were taken, is in the following terms:—
180. Whenever—
(a) any stone, gravel, earth, sand, water or other material is required for the construction, maintenance or operation of the railway, or any part thereof; or,
(b) such materials or water, so required, are situate or have been brought to a place at a distance from the line of railway; and,
(c) the company desires to lay down the necessary tracks, spurs or branch lines, water pipes or conduits, over or through any lands intervening between the railway and the land on which such materials or water are situate, or to which they have been brought;
The company may, if it cannot agree with the owner of the lands for the purchase thereof, cause a land surveyor, duly licensed to act in the province, or an engineer, to make a plan and description of the property or right-of-way, and shall serve upon each of the owners or occupiers of the lands affected a copy of such plan and description, or of so much thereof as relates to the lands owned or occupied by them respectively, duly certified by such surveyor or engineer.
2. All the provisions of this Act shall, in so far as applicable, apply, and the powers thereby granted, may be used and exercised to obtain the materials or water, so required, or the right-of-way to the same, irrespective of the distance thereof; provided that the company shall not be required to submit any such plan for the sanction of the Board.
3. The company may, at its discretion, acquire the lands from which such materials or water are taken, or upon which the right-of-way thereto is located, for a term of years or permanently.
4. The notice of arbitration, if arbitration is resorted to, shall state the extent of the privilege and title required.
5. The tracks, spurs or branch lines constructed or laid by the company under this section shall not be used for any purpose other than in this section mentioned, except by leave of the Board, and subject to such terms and conditions as the Board sees fit to impose.
This section obviously provides for two distinct cases: First, the case in which the company desires to take land adjoining the railway containing the material required and no necessity exists for constructing a spur or branch line through any property except that owned by the company and that intended to be taken Secondly, the case in which the plan of the railway company involves the construction of a spur or branch
[Page 14]
line through lands intervening between the railway and that where the material is situated. The effect of sub-section 2, in my opinion, is that in the first case the provisions of the Act are to be followed in so far only as they are appropriate to the taking of and compensation for land not required in the construction or working of the railway itself: and in my judgment section 192 has no application in such a case.
It is not necessary to determine for the purposes of this case the exact stage of the proceedings with reference to which the amount of compensation or damages payable by the railway company is to be determined. On the 30th of June, 1908, notices were served on the persons interested in the land in question together with a plan and description of the properties in compliance with section 180 and containing the description and declaration mentioned in section 193, together with a notice of an application for possession to be made under section 196 in the event of the railway company's offer not being accepted. On the 24th of July, 1908, an order was made by the Chief Justice of Alberta giving the railway company leave to enter into possession of the lands and this order appears to have been acted upon without delay. Whether, therefore, the amount of compensation and damages falls to be determined under the statute, first, by reference to the date when the plan and description under section 180 was served upon the owners, or, secondly, when notice to treat was given under section 193, or, thirdly, when the right to take possession became consummated by the order referred to it appears to be unnecessary to decide. It is not suggested that any change took place in the relevant circumstances be-
[Page 15]
tween the 30th of June, 1908, when the notices were served and the 24th of July, 1908, when the order for possession was obtained.
The company at that date came, in my opinion, under an enforceable obligation to take the property and to proceed with the ascertainment of the amount of compensation. It seems reasonable, therefore, as it is strictly in accordance with legal analogy to hold that the company's title once consummated relates back at least to this date; and the appellant cannot complain of having the compensation ascertained with reference to it.
The relation of vendor and purchaser was, I think, constituted completely when the right of possession was obtained. Only the ascertainment of the price remained.
ANGLIN J.—Not, I confess, without some lingering misgivings I have reached the conclusion that this appeal should be dismissed.
The mention in section 191 of the "Railway Act" of lands "which suffer damage from the taking of materials" no doubt affords some ground for the appellants' contention that the group of sections in which section 191 is found, dealing with the preparation, filing with the Board, approval and deposit for registration of plan, profile and book of reference, applies to expropriations under section 180 — the only section of the Act which deals with the acquisition of lands required for the purpose of taking materials from them. But I am, nevertheless, of the opinion that the group of sections to which I have referred does not apply to cases under section 180. That section itself provides for the making of a plan and description
[Page 16]
by a surveyor, and requires, the company to serve a copy thereof on the owners whose lands are to be taken. Submission of this plan to the Board of Railway Commissioners is expressly dispensed with. Registration of it is not provided for. Having regard to these special provisions and to the nature of the subject-matter, I am satisfied that the application of the sections dealing with the plan, profile and book of reference to expropriations under section 180 is inferentially excluded by sub-section 2 of that section, which declares that
all the provisions of this Act shall, so far as applicable, apply.
If the statute required that a plan, profile and book of reference should be prepared, etc., in cases under section 180, as in the case of lands to be acquired for the ordinary right-of-way, there would be no reason for the requirement of a special plan and description or for the service of copies of them on the owners to be affected, as section 180 prescribes.
It follows that the provisions of section 192 and the amendment thereto of 1909 (8 & 9 Edw. VII. ch. 37, sec 3), relied upon by the appellants, do not govern this case, no provision being made for the deposit in the registry offices of copies of the plan and description prescribed by section 180, similar to that made for the deposit of copies of the plan, profile and book of reference in the case of lands taken for the ordinary right-of-way.
In the absence of any provision in the statute fixing a different date, I agree that the valuation of land taken under section 180 must be made either as of the date when the copy of the plan, profile and book of reference is served upon the owner (treating that as
[Page 17]
the equivalent of service of notice to treat under the English statute) or as of the date when actual possession is taken, whether by consent or under the authority of a warrant or order of the court. In the present case possession by consent having closely followed upon the service of the copy of the plan and description, it is immaterial which date is taken. Unless some explicit statutory provision should render such a course inevitable, it would seem to be unreasonable to require a railway company to pay, for land which had been taken possession of by consent and materials of which a considerable part had been used four years before, their value at the date of the arbitration hearing, which had been then greatly enhanced by adventitious circumstances. The fact that, since the amendment of section 196 of the "Railway Act" in 1907 (6 & 7 Edw. VII. ch. 37), owners have the same opportunity as the company to apply for the appointment of arbitrators, removes any hardship to which the former state of the law may have subjected them.
I agree with Harvey C.J. that there was some evidence before the arbitrators which entitled them to fix the value of the land taken in 1908 at the figure which they have allowed, although it would have been much more satisfactory, to me at all events, had the attention of all parties been more clearly directed during the proceedings before the arbitrators, to the fact that the value was to be fixed as of that date.
The appeal fails and should be dismissed with costs.
BRODEUR J.—The gravel land that a railway company desires to expropriate may be taken without any
[Page 18]
plans being submitted to the Board of Railway Commissioners. The procedure is different in the other cases of expropriation. The railway company is then bound by the law to have its plans approved by the Board. In the former case the company proceeds under section 180 of the "Railway Act," that says:—
Whenever—
(a) any stone, gravel, earth, sand, water or other material is required for the construction, maintenance or operation of the railway, or any part thereof; or,
* * * * *
(c) the company desires to lay down the necessary tracks, spurs or branch lines, water pipes or conduits, over or through any lands intervening between the railway and the land on which such materials or water are situate, or to which they may have been brought;
The company may, if it cannot agree with the owner of the lands for the purchase thereof, cause a land surveyor, duly licensed to act in the province, or an engineer, to make a plan and description of the property or right-of-way, and shall serve upon each of the owners or occupiers of the lands affected a copy of such plan and description, or of so much thereof as relates to the lands owned or occupied by them respectively, duly certified by such surveyor or engineer,
2. All the provisions of this Act shall, in so far as applicable, apply, and the powers thereby granted may be used and exercised to obtain the materials or water, so required, or the right-of-way to the same, irrespective of the distance thereof; provided that the company shall not be required to submit any such plan for the sanction of the Board.
In the present case a certified copy of a plan of the lands required was served with the notice to treat and, later on, the railway company was, with the consent of the owners, put in possession (section 218) under a warrant given by a judge.
The appellants contend that the expropriation of a gravel pit would require virtually the same procedure as regards the location of the line and the proceedings in expropriation, that section 192, should govern in this case and that the date with reference to which compensation is to be ascertained should be the time
[Page 19]
at which the hearing of the witnesses should take place.
I cannot concur in such a view.
It seems to me reasonable that the damages or compensation should be determined according to the value that the land taken had when the company took possession of it.
In the ordinary cases of expropriation the "Railway Act" states (section 215) that the value shall be ascertained as of the date of the deposit of the plan. Now, with regard to gravel pits, no such deposit is provided for. But the plan duly certified by a surveyor will be served upon the owner.
Then the value could be ascertained from the date on which such a notice would be given, or it could be ascertained from the date at which the expropriated party has given consent for possession.
There is no difference as to the value of the gravel pit at those two dates.
But it would be certainly unfair and illegal to have this value determined by the date at which the case was heard a long time after.
For those reasons the judgment of the Supreme Court en banc, confirming the award of the majority of the arbitrators, should be confirmed with costs.
Appeal dismissed with costs.
Email this Content