Supreme Court of Canada
Miller v. The King, [1928] S.C.R. 318
Date: 1928-02-21
Miller v. His Majesty The King
1928: February 20, 21.
Present: Anglin C.J.C. and Mignault, Newcombe, Lamont and Smith JJ.
APPEAL FROM THE EXCHEQUER COURT OF CANADA
Petition of right—Expropriation—Injurious affection—Acquiescence—Equitable rights—Building restrictions—Restrictive covenant—Statutory limitations
APPEAL by the suppliants from the judgment of the Exchequer Court of Canada, sitting at Halifax, Maclean J., dismissing the appellants’ petition of right to recover from the Crown, for injurious affection to certain lands of the suppliants by reason of the operation of a railway on lands adjoining thereto, and which were expropriated by the Crown, and obtained from suppliants for this purpose.
After hearing counsel as well for the respondent as for the appellants, the Chief Justice of the Supreme Court of
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Canada gave judgment orally, dismissing the appeal with costs.
The judgment of the court said in part, as follows:
“* * *, the appellants must establish that they had an interest in the property taken by the respondent in order to give them a status to maintain this action for injurious affection of nearby property retained by them.
We are unable to find that there was any such interest. * * *.
“It would, therefore, appear that the appellants have failed to establish anything in the nature of a real right in any part of the property taken by the respondent such as is admittedly necessary to enable them to maintain an action for injurious affection of neighbouring property.
“Upon the other grounds on which the learned trial judge rested his conclusion, we find it unnecessary to express any opinion; and we desire it understood that neither approval or disapproval of them is to be inferred from this judgment.”
Appeal dismissed with costs.
W. G. Ernst for the appellants.
C. J. Burchell K.C. and J. E. Rutledge for the respondent.
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